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Alliance Alert

Oct 11, 2019

A Win for Harris Funeral Homes Means Americans Can Rely on What the Law Says

Oral arguments for Harris Funeral Homes have come and gone. Now, the nation awaits a decision from the justices of the U.S. Supreme Court, which is expected to come no later than June 2020.

While the case itself started with an employee’s refusal to comply with a sex-specific dress code at a century-old funeral home in Detroit, the possibility of allowing unelected bureaucrats and judges to re-write federal law has far-reaching implications.

The outcome in Harris could have a huge impact on workplaces, schools, athletic fields, and even women’s shelters all over the nation.

The case raises a crucial question: Can Americans rely on the law as it’s written, or must we live in fear that it could change at the behest of unelected government officials?

Since 2013, Harris Funeral Homes and its owner, Tom Rost, have been the targets of a lawsuit that aims to redefine “sex” in federal law to include “gender identity” and punish the fifth-generation funeral home in the process.

Now, it’s up to the Supreme Court to weigh in.

Let’s take a look.

For a detailed look at Harris, you can revisit our article here.

In 2007, the award-winning funeral home hired a biological male, Anthony Stephens, as a funeral director. Funeral directors are the face of the business, working closely with grieving families. For nearly six years, Stephens abided by the funeral home’s sex-specific dress code, which is consistent with the EEOC’s Compliance Manual.

Then, in 2013, Stephens told Tom that Stephens planned to begin dressing and presenting as a woman while interacting with grieving families at work. Tom was concerned for Stephens, as he is for all of his employees. He was also concerned about the grieving families he serves, whose needs Tom’s family has prioritized for generations.

Since Stephens’s proposal would have violated the agreed-upon dress code, Tom decided it was not going to work. It wasn’t long before Tom found himself defending his position on the opposite side of a courtroom from the federal government and, later, the ACLU.

They sued Tom to get a court to rewrite the law—to change the word “sex” in the Civil Rights Act of 1964 to include “gender identity.” But Tom shouldn’t be punished for relying on the law as it’s written. Unelected government officials don’t have the authority to change a law that Congress has adopted. If the courts give them that power, none of us can rely on what the law says.

ADF Senior Counsel John Bursch—who argued the case before the U.S. Supreme Court—explains in an article for Acton Institute:

When Congress enacted federal laws including Title VII and Title IX -- the former of which is specifically at stake in Harris -- in the 1960s and 1970s, there was no question what “sex” meant. The term “gender identity” first emerged in 1963 at a European medical conference. And it didn’t appear in federal law until 1990 when Congress enacted the Americans with Disabilities Act and excluded protection for “gender identity disorders.” In the three decades since, Congress has proposed and multiple times decided against adding “sexual orientation” and “gender identity” as protected classes alongside race, color, national origin, sex, and religion.

The ACLU is trying to bypass elected officials in order to achieve a goal that Congress has repeatedly turned down. Should the ACLU get its way, it will lead to big consequences.

In an article written for The Hill, Kara Dansky of the Women’s Liberation Front (WoLF) explains how changing “sex” to mean “gender identity” would set back decades of gains for women everywhere—undoing the life work of Justice Ruth Bader Ginsburg.

It is well known that Ginsburg replaced the word “sex” with the word “gender” in her advocacy because she was concerned that using “sex” would make the justices squeamish. But there is no reason to believe that by doing so she intended to create a third sex class, or to advance the notion that men can be women.

In the current case, Stephens could have simply challenged the sex-specific dress code, but instead is attempting to redefine the fundamental meaning of the term “sex” under federal civil rights law.

“Gender identity” is an enshrinement of the sex-based stereotypes that Ginsburg has been fighting for decades. “Sex” means biological sex, not “gender identity.” We look forward to a Supreme Court ruling that settles the question.

The consequences women and girls face wouldn’t end there. Vicki Wilson of Students and Parents for Privacy writes at The Washington Examiner:

We believe students who struggle with their gender identity and suffer from gender dysphoria have equal dignity and value to other kids. We definitely believe they should never be bullied or subjected to violence. We also believe they can be given an accommodation outside their assigned locker room/bathroom.

But maintaining sex-specific private spaces is necessary in our schools, and that’s one reason why the Supreme Court’s decision in Harris matters so much. Kids have a right to go into a private, intimate space knowing someone of the opposite sex is not allowed in there too. It’s especially vital for every girl or young woman who has been subjected to sexual harassment or violence, when even the presence of a boy undressing in her locker room can trigger anxiety and panic.

Children would not be the only ones who suffer from a lack of privacy. In Alaska, the city of Anchorage attempted to force an overnight women’s shelter to allow a man who claimed a female identity to sleep three feet away from victims of abuse, rape, and sex trafficking.

Sherri Laurie of Downtown Hope Center writes at Disrn:

I don’t think I’ve met a single woman who has stayed overnight at our shelter who has not been a victim of rape or assault by a man. Many don’t even report when they’ve been raped. The violence is so common and the situation feels so hopeless.

These women need a safe place to stay, but the [Anchorage Equal Rights Commission] was fighting to take that place away—to force us to open our overnight shelter to males who identify as female.

Along with jeopardized privacy, women and girls would lose hard-fought opportunities in women’s athletics. Anita Y. Milanovich explains at USA Today that we are already seeing the consequences of men with biological advantages overtaking women’s sports—including breaking records, a fair playing field, and skulls. 

As Beth Stelzer, a biologically female amateur powerlifter and founder of Save Women’s Sports, observes, “If biological men are allowed to compete in women’s sports, there will be men’s sports, there will be co-ed sports, but there will no longer be women’s sports.”

My heart aches seeing the struggles of males who believe they are females. Anyone struggling with his or her identity in this way needs love, support, compassion and friendship — and absolutely deserves protection from bullying and violence.

Even so, a just, equitable and compassionate solution simply cannot require the redefinition of what it means to be a girl or a woman. Loving each other does not necessitate a spot on the women’s team, or a woman’s trophy.

As if this is not enough evidence that understanding “sex” as a biological reality is imperative, the original question still remains: Can Americans rely on the law as written? ADF CEO, President, and General Counsel Michael Farris explains at Inside Sources:

A representative democracy, properly known as a constitutional republic, is premised on the moral principle that the people should elect the officials that make all laws. If the people don’t like the laws that are being made, voters should have the ability to “throw the rascals out” and get new leaders who will make laws more to their liking.

If judges or administrative agencies make new laws that the people must obey, voters are robbed of their constitutional authority to vote the lawmakers out of office.

This really shouldn’t be a partisan issue. It takes little imagination to realize that the political winds change. In some seasons of our history, the political leanings of both courts and agencies have waxed and waned. If judges that you like are authorized to make laws, then judges you don’t like will possess the same power.

Women need privacy in intimate spaces. Girls deserve a chance to compete fairly. And all Americans should be able to rely on what the law says. All of this would be erased of the ACLU gets its way. That’s why the Supreme Court’s decision in Harris affects us all.

  • Title VII
  • Downtown Hope Center
  • Harris Funeral Homes
  • Friday Feature
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