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Supreme Court of the United States

The Slippery Slope of Redefining 'Sex' to Mean 'Gender Identity'

By Sarah Kramer posted on:
September 24, 2019

Did you know that the term “gender identity” did not appear in U.S. federal law until 1990?

That is more than a quarter century after Congress enacted Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating based on “race, color, religion, sex, or national origin.” At the time, the public definition of “sex” was understood to mean male and female. And the prohibition on sex discrimination in Title VII was understood to mean that employers could not favor one sex over the other, because of sex, when making employment decisions.

But now, activists are trying to completely redefine the term, claiming that “sex” includes “gender identity.”

That’s the argument being made against R.G. & G.R. Harris Funeral Homes in Michigan.

Where It All Began

In 2013, Harris Funeral Homes parted ways with a male funeral director who expressed the intent to begin dressing and presenting as a woman at work, and when interacting with grieving families. This funeral director had worked at Harris Funeral Homes for six years and agreed to abide by the sex-specific dress code at the time of hire – a policy, by the way, that federal law allows and is consistent with industry standard.

Harris Funeral Homes has professional conduct and dress codes to ensure that the grieving families it serves can focus on healing and not on the funeral home or its employees. Ultimately, the funeral home determined that it could not agree to the funeral director’s plan. That prompted the funeral director to file a complaint against Harris for employment discrimination.

Now this case has made its way to the U.S. Supreme Court, where it will be heard on October 8.

What is unsettling about this case is that Harris Funeral Homes was simply acting according to existing law. And still, it has been targeted and tied up in a lawsuit for the past six years.

How did it come to this?

The funeral director’s complaint led the Equal Employment Opportunity Commission (EEOC), an unelected federal agency, to sue Harris Funeral Homes. To justify this, the federal government insisted that the word “sex” includes “gender identity.” And even though the federal government has since agreed with Harris Funeral Homes, the ACLU has continued to push this case forward.

Redefining the Terms

The fact is that no one in America would have understood “sex” to mean “gender identity” when the Civil Rights Act was passed in 1964. That was a term that had not yet made its way into the American vocabulary.

And the meaning of the law does not change simply because an unelected government official would like it to change.

If that were the case, employers – or anyone else for that matter – could not rely on what the law actually says.

Employers would have to make hiring decisions based on what they think the law must mean – only to have the rug pulled out from under them if an unelected government official decides the law means something completely different.

That’s what happened to Harris Funeral Homes.

But there’s more. Changing “sex” to include “gender identity” in federal law also undermines privacy, dignity, and equal opportunities for women and girls.

We’ve already seen this happen across the country in cities and states where “gender identity” has been added to nondiscrimination laws. In Anchorage, Alaska, the government tried to force a women’s shelter to allow a man who identifies as a woman to sleep mere feet away from the vulnerable women they serve – many of whom have been trafficked, abused, or sexually assaulted. In Connecticut, two male athletes who identify as female have been allowed to participate in women’s track – winning 15 women’s track championship titles that were once held by nine different girls.

If we set the precedent that words in the law can be changed based on what some want them to mean at any given time, how can we rely on the law?

That’s why Alliance Defending Freedom is asking the U.S. Supreme Court to uphold the law as it is written.

Otherwise, every one of us is safe from persecution only until the next arbitrary government official decides to act.

Sarah Kramer

Sarah Kramer

Digital Content Specialist

Sarah worked as an investigative reporter before joining the Alliance Defending Freedom team.

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