Mind-blowing makeover: Supremes redefine 'sex'

In a landmark ruling Monday, the U.S. Supreme Court redefined "sex" in Title VII of the Civil Rights Act, ruling 6-3 that employers can no longer discriminate on the basis of "sexual orientation" or "gender identity."

When the law was passed in 1964, Congress understood "sex" to mean male and female biologically. But now, for example, an employer can't fire a male employee for dressing like a woman on the job.

The ruling covered three cases. In one, a Michigan funeral home worker was fired after he began coming to work dressed as a woman and calling himself Aimee Stephens. In Georgia, county worker Gerald Bostock was fired as a child welfare advocate for conduct "unbecoming" a county employee after he joined a gay softball league. In the third case, New York skydiving instructor Donald Zarda was fired days after mentioning he was homosexual.

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex," Associate Justice Neil Gorsuch wrote in the majority opinion.

"Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

In dissent, Justice Samuel Alito, joined by Clarence Thomas, charged the majority was exceeding its role as the interpreter of the Constitution.

"There is only one word for what the court has done today: legislation," he wrote.

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Alito pointed out that the body responsible for legislation, the Congress, has proposed such measures, but they have failed.

"The document that the court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive," he wrote. "Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: 'race, color, religion, sex, [and] national origin.' … Neither 'sexual orientation nor 'gender identity' appears on that list. For the past 45 years, bills have been introduced in Congress to add 'sexual orientation' to the list, and in recent years, bill have included 'gender identity' as well. But to date, none has passed."

Alito argued that because Congress has not expanded the definition of sex in Title VII, the "prohibition of discrimination because of 'sex' still means what it has always meant."

"But the court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the court has essentially taken H.R. 5's provision on employment discrimination and issued it under the guise of statutory interpretation," he said.

"A more brazen abuse of our authority to interpret statutes is hard to recall."

Analysts have feared such a ruling would destroy the advances made for women's rights in recent decades, because it would allow a man to co-opt those rights.

The Alliance Defending Freedom defended the Michigan funeral home, R.G. & G.R. Harris Funeral Homes, which was sued by the Equal Employment Opportunity Commission.

"Americans must be able to rely on what the law says, and it is disappointing that a majority of the justices were unwilling to affirm that commonsense principle," said ADF spokesman John Bursch.

"Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts," he argued. "Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women. Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities — the ones the law was designed to protect."

The Supreme Court had been warned of the consequences of such a decision.

A petition filed in the Michigan case with the Sixth Circuit said: "Employment reserved for women – like playing in the WNBA or working at a shelter for battered women – now must be opened to males who identify as women," Bursch said. "The same is true of sports and educational opportunities under Title IX. The Sixth Circuit's ruling impedes women's advancement. ... In sum, the Sixth Circuit ushered in a profound change in federal law accompanied by widespread legal and social ramifications."

A petition from nine people who have experienced the dysphoria that causes people to desire to identify as the opposite gender also have warned the justices of the problems such a ruling would create.

Walt Heyer, Jamie Shupe, Linda Seiler, Hacsi Horvath, Clifton Francis Burleigh Jr., Laura Perry, Jeffrey Johnston, Jeffrey McCall and Kathy Grace Duncan filed a friend-of-the-court brief urging the justices to affirm that "sex" in the federal statute mean male and female.

They related their own life experiences in the brief.

"Heyer is a man who was diagnosed with gender dysphoria, took hormones and underwent surgery to adopt the physical appearance of the opposite sex, and lived for eight years appearing to be a woman. But those steps did not resolve his problems and he attempted suicide," the brief says. "He was diagnosed with dissociative disorder and was able to resolve his gender dysphoria through psychotherapy to effectively treat the dissociative disorder. His feelings of wanting to be the opposite sex went away, and he was able to return to living with a male appearance and be happy."