Broad support filed with US Supreme Court against judicial redefinition of ‘sex’ to mean ‘gender identity’

WASHINGTON – A diverse array of groups, officials, and experts filed friend-of-the-court briefs with the U.S. Supreme Court last week in support of affirming that judges and government agencies can’t usurp the role of Congress by redefining the word “sex” in federal law to mean “gender identity.” The briefs—submitted by members of Congress; state attorneys general; feminists; female athletes; privacy groups; religious groups; legal, medical, and policy scholars; and others—all voice support for a Michigan funeral home punished even though it acted in accord with federal law.

On Aug. 16, Alliance Defending Freedom attorneys representing R.G. & G.R. Harris Funeral Homes and its owner, Thomas Rost, filed their brief, which explained to the high court that allowing judges and agencies to redefine the law “will cause problems in employment law, reduce bodily-privacy protections for everyone, and erode equal opportunities for women and girls, among many other consequences.”

“The people and groups filing briefs last week agree that Americans should be able to rely on what the law says. They understand as we do that redefining ‘sex’ to mean ‘gender identity’ creates chaos, is unfair to women and girls, and puts employers in difficult situations,” said ADF Vice President of Appellate Advocacy John Bursch, who served as Michigan’s solicitor general from 2011-13 and is scheduled to argue on behalf of the funeral home before the Supreme Court. “Title VII and other civil rights laws, like Title IX, are in place to protect equal opportunities for women; changing ‘sex’ to mean ‘gender identity’ undermines that.”

The U.S. Court of Appeals for the 6th Circuit ruled in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission that the federal government can force Rost and his business to allow a male funeral director who identifies as female to violate the business’s professional dress code—a dress code that is in accord with industry standard and federal law—by dressing as a woman when ministering to grieving families. This came six years after the employee agreed to follow the dress code at the time of hire. The 6th Circuit’s decision 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, color, religion, national origin, or sex.

“Under our Constitution, contentious policy disputes are resolved by the people, through their elected representatives in Congress,” wrote 48 members of Congress in their brief filed with the Supreme Court. “The extension of Title VII to protect…gender identity raises a complex set of concerns and potentially far-reaching consequences. These issues merit thoughtful consideration and the deliberative participation of the people.” Fifteen states agreed, urging the court in their brief “to leave to Congress and to the political process any decision to make a different policy choice.” A brief filed by business organizations echoed those concerns and added that redefinition of Title VII by the courts “would raise numerous, complex issues for U.S. employers.”

Allowing the 6th Circuit’s decision to stand would also have ramifications for related laws such as Title IX, which ensures equal opportunities in education and athletics for women and girls who are already being marginalized by local governments that are allowing boys who identify as girls to compete in girls’ sports. In Connecticut, two boys who identify as girls have recently won 15 girls’ state track-and-field titles, which nine different girls held in 2016.

As one of the briefs, filed by the feminist group Women’s Liberation Front, argues, “If, as a matter of law, anyone can be a woman, then no one is a woman, and sex-based protections in the law have no meaning whatsoever. The ruling below effectively repeals the sex-based protections in Title VII—a ruling that Congress surely did not intend.” Similarly, a brief filed on behalf of more than 1,000 female athletes and parents notes, “In the short term, a ruling in favor of [those trying to redefine federal law without Congress] will reduce the number of athletic opportunities for biological women and girls. In the long run, it will undermine the legal justification for maintaining any sex-specific athletic teams and may result in the elimination of women’s sports altogether.”

In 2016, the U.S. District Court for the Eastern District of Michigan ruled in favor of the funeral home. The 6th Circuit later reversed. The federal Equal Employment Opportunity Commission sued over the funeral home’s decision to apply its dress code to the employee, who insisted on violating that policy despite having agreed to it and followed it for years. Although the federal government now agrees with the funeral home, the American Civil Liberties Union is arguing on behalf of the former employee that the Supreme Court should rewrite the law.

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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