On Monday, April 22, 2019, the U.S. Supreme Court announced it would hear R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. The case involves a family-owned funeral home that had been serving its community over a century. Recently, however, the federal government targeted it for punishment in a quest to rewrite federal law.
At the core of the case is the EEOC’s attempt to redefine “sex” in federal nondiscrimination law to mean “gender identity”—despite that meaning being in open conflict with what Congress wrote in the law and the long-established definition of sex as meaning male or female.
What does this case mean for you and me?
Let’s take a look.
Since 1910, R.G. & G.R. Harris Funeral Homes has ministered to grieving families in the Detroit area. Employees of the small, family-owned business follow policies designed to meet the needs of the grieving, as they work hand in hand with those suffering the loss of a loved one.
In 2007, the funeral home hired a male employee who agreed to comply those policies, including the company’s sex-specific dress code, which was crafted to emphasize professionalism and keep the focus on those mourning the loss of a loved one.
In 2013, however, the employee notified funeral home owner Tom Rost that he intended to begin dressing as woman at while interacting with the bereaved, in violation of the company’s dress code.
Alliance Defending Freedom senior counsel David Cortman, writing at National Review, explained how losing a loved one is an especially sensitive time for the bereaved, and how Tom Rost has spent decades serving people enduring intense grief. Cortman writes:
The grandson of R. G. & G. R. Harris Funeral Homes’ founder, Tom has spent his life coming alongside families in the midst of grief. Tom believes that’s his calling. As he puts it, his company always “attempts to create a transformational experience in order to help our clients, their families, and friends begin the healing process when they have lost a loved one.”
The needs of grieving families always come first for Tom, his family, and his staff. Every single interaction — from discussing burial options to parking cars for mourners — is orchestrated to make sure friends and family have the support they need to begin the grieving process.
This is why maintaining a dress code is of utmost importance for Harris Funeral Homes, and it’s why Tom Rost determined that allowing a male employee to dress and present as a woman at work would not be in the best interests of families processing their grief.
Tom Rost was following long-settled law by establishing a dress code to serve his clients’ best interests, but the Equal Employment Opportunity Commission nonetheless targeted the funeral home for prosecution, seeking to impose its political goal by rewriting “sex” in Title VII of the Civil Rights Act of 1964 to mean “gender identity.” Unlike “sex,” which simply means the fact of being a man or a woman, “gender identity” is a concept that allows a person to claim to be masculine, feminine, or something else, according to how they feel about their gender.
In early 2018, the U.S. Court of Appeals for the 6th Circuit ruled that the federal government can force Harris Funeral Homes to allow the male employee to dress as a women. In so doing, the court redefined “sex” in Title VII to conflict with the word’s well-understood meaning since the law’s enactment in 1964. Title VII is a federal law intended to ensure equal opportunities in employment, regardless of a person’s race, religion, national origin, or sex.
In ADF’s press release announcing the Court’s decision to grant the case a hearing, Vice President of Appellate Advocacy John Bursch had this to say:
Neither government agencies nor the courts have authority to rewrite federal law by replacing “sex” with “gender identity”—a change with widespread consequences for everyone. Businesses have the right to rely on what the law is—not what government agencies want it to be—when they create and enforce employment policies.
ADF appealed the 6th Circuit’s decision to the U.S. Supreme Court, and the Court granted the case, along with two others that ask a similar question about the definition of “sex” as it relates to sexual orientation.
By reading “gender identity” into federal law, overreaching courts and government agencies have introduced a litany of problems, which disproportionately affect women and girls. In Alaska, for example, the city of Anchorage is using a gender identity law to target a Christian women’s shelter, trying to force it to allow biological men who identify as women to sleep in a common sleeping area, just a few feet away from women who have experienced rape, sex trafficking, and domestic violence.
Replacing “sex” with “gender identity” also undermines equal treatment for women when it comes to athletic scholarships. This recently happened at Connecticut’s high school track-and-field championships, where Selina Soule and other female athletes were denied a fair opportunity to compete because the government allowed two boys who believe themselves to be female to run against the girls. Not surprisingly, the two male athletes placed first and second, their times significantly better than any of the female athletes. And in Pennsylvania, young students changing for gym class were shocked to find students of the opposite sex also changing clothes in the locker room—the one place where everyone expects privacy from the opposite sex.
These examples illustrate the reality that, while stopping sex discrimination is a good thing, redefining sex actually undercuts that worthy objective.
The Wall Street Journal paints a picture of why the timing of the Court granting these cases is so important:
Lower courts have differed sharply on whether the 1964 Civil Rights Act, which prohibits sex discrimination, necessarily covers sexual orientation or gender identity. Congress, unlike some two dozen states, hasn’t explicitly added those classifications to federal antidiscrimination laws.
The court’s calendar all but ensures decisions will come in the late spring or early summer of 2020, injecting a significant social issue—and likely the makeup of the Supreme Court itself—into the presidential election season.
Presidential elections and Supreme Court justices are certainly important, but Cortman explains why a decision in favor of Harris Funeral Homes is vital to the freedom of every American:
The EEOC is not alone in its usurping of congressional authority. Agencies and departments across the governmental landscape, as well as courts, are creating a fractured foundation that leaves small-business owners such as Tom Rost at their mercy.
Tom and every other business owner have the right to rely on what the law is — not what government agencies want it to be — when they create and enforce employment policies. That’s why the Supreme Court should affirm that “sex” refers to an objective reality, not a subjective perception about a person’s own gender.
A win for Harris Funeral Homes means victory for our constitutional form of governance, but for Tom, he’s just looking to best serve the grieving families he cares for each and every day.