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6 Questions with the Attorney Arguing the Harris Funeral Homes Case at the Supreme Court

6 Questions with the Attorney Arguing the Harris Funeral Homes Case at the Supreme Court

August 20, 2019

On October 8, Alliance Defending Freedom will appear before the U.S. Supreme Court to represent Harris Funeral Homes. John Bursch, Vice President of Appellate Advocacy at ADF, will be the attorney arguing before the Court. John took some time to answer a few questions about the case, what it means, and why it is important.

Could you explain what this case is about?

JB: Harris Funeral Homes has been in business for more than 100 years, serving grieving families in the Detroit area. Tom Rost has been the owner for 35 years, and he does it with the support of his wife Nancy. Like many funeral homes, they have codes of conduct and of dress to ensure that families can focus on the grieving process and not the funeral home or its staff.

Harris hired a funeral director, Anthony Stephens, who promised to abide by those policies, which included a sex-specific dress code. After following that policy for nearly six years, Stephens told Tom that he would begin presenting and dressing as a woman while at work and interacting with Harris’s grieving clients.

Tom took time to think and pray about this. He considered Stephens’s interests, his other employees’ interests, and the needs of those that Harris Funeral Homes serves. He decided that he could not go along with Stephens’s demand to violate the dress code and instead offered a severance that Stephens refused. Even though Tom was acting consistently with existing laws in enforcing the funeral home’s sex-specific dress code based on biological sex, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Tom and the funeral home for sex discrimination, in an attempt to redefine “sex” to mean “gender identity” in federal law.

Since then the U.S. Court of Appeals for the 6th Circuit ruled against Harris. The federal government has since changed course and now agrees with Tom and the funeral home. But the ACLU has continued to push for the courts to redefine “sex.”

What would happen if “sex” is redefined as “gender identity” in federal law?

JB: Redefining “sex” as “gender identity” has major consequences for a lot of people. It would mean the denial of equal opportunities for women and girls in athletics at the high school and collegiate level. It would mean the violation of intimate, private spaces at high schools and colleges – including showers, restrooms, and locker rooms. And it also affects safe spaces at women’s shelters. Recently in Alaska, a man who arrived at a women’s shelter dressed in a nightgown demanded to sleep mere feet away from the women staying there, many of whom were survivors of sexual abuse. The city tried to punish the shelter for not allowing that to happen.

What is a common misperception about this case?

JB: Tom cares about Stephens, not only as an employee, but as a person. After Stephens’s demand to violate the dress code, Tom thought a lot about Stephens and Stephens’s wife and was concerned for them. Tom also considered his other employees, including the women who would have had to share a single-sex bathroom with Stephens and what that might mean to them. And he pondered how this might affect the grieving families who entrust themselves to the funeral home. Tom really cared about doing what was best for everyone involved in the situation, and that’s what made the decision so difficult.

Why should the average American care about this case?

JB: Americans should care about Tom and his case because they could be in Tom’s position someday. They could be business owners, or even employees of a business, and see the federal courts change the law out from under them and then face punishment for relying on the law. What’s more, this case started as a federal agency targeting an unsuspecting family business to advance its own policy goal of redefining sex in federal law.

The average American should also care that when sex is redefined, it has consequences for the equal opportunity and privacy of women, girls, and others. If the word “sex” is transformed to mean “gender identity,” girls who participate in sports will be forced to compete against boys who identify as girls. And women will be forced to share locker rooms, restrooms, and shower facilities with men who identify as women. This is just the tip of the iceberg. That’s why it’s so important that the U.S. Supreme Court rule in favor of Tom and Harris Funeral Homes.

Why is this case important to you personally?

JB: I care about this case for many reasons, but I’ll discuss two. First, I care very deeply about the fairness of our justice system. If we have a legal system where unelected judges can change the law to mirror their policy preferences and then punish people for not anticipating those changes, we’ve ripped a terrible hole in the Constitution and the laws of the United States.

Second, I care because of the long-term generational impact it will have. Tom has spoken about the funeral home and how his family has, over generations, continued to minister to grieving families. But as a husband and father, I care about the multi-generational impact, too. Because this court ruling won’t just affect me and my kids; it will also affect my grandkids and my great-grandkids. And I don’t want to see my granddaughters and great-granddaughters or anyone else’s granddaughters denied equal opportunities in athletics, scholarships, and other contexts because the meaning of sex has been changed. I don’t want them to see their privacy rights infringed at school or work. This has a huge impact for everybody.

How can we be praying?

JB: I ask that you pray in a special way for Tom, his wife Nancy, and their entire family, and for everything that they’re going through right now. Please pray for the legal team, that we can communicate the best arguments, that we can be persuasive and winsome, and that we can carry the message of Jesus Christ in the courtroom and also to the media and culture at large. I ask that you pray for the Justices. And finally, I ask you to pray for Stephens and Stephens’s wife and all the difficult issues that they must be facing as they go through this process as well.

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