US Supreme Court to weigh in on whether EEOC, courts can redefine ‘sex’ without Congress

WASHINGTON – The U.S. Supreme Court agreed Monday to review a lower court decision that redefines the word “sex” in federal law to mean “gender identity.” Alliance Defending Freedom attorneys representing a Michigan funeral home filed a petition asking the high court to take the case. The high court also agreed to take up two other cases raising related issues.

ADF will host a media briefing featuring ADF Vice President of Appellate Advocacy John Bursch, former solicitor general of Michigan, at 11:15 a.m. EDT (8:15 a.m. PDT) Monday. Interested media may participate online or by calling (425) 440-5100 using guest PIN 356719#.

The U.S. Court of Appeals for the 6th Circuit ruled that the federal government can force R.G. & G.R. Harris Funeral Homes and its owner, Thomas Rost, to allow a male employee who identifies as female to dress in women’s clothing when meeting with the deceased’s grieving family members and friends, in violation of the family business’s sex-specific dress code. 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.

“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,” said Bursch. “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. The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves.”

In 2016, the U.S. District Court for the Eastern District of Michigan ruled in favor of the funeral home. The EEOC sued over the funeral home’s decision to part ways with the employee, who insisted on violating the company’s dress code. The EEOC appealed.

As explained in the petition filed with the U.S. Supreme Court in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, “the Sixth Circuit’s decision undermines the primary purpose for banning discrimination based on sex—to ensure ‘equal opportunities’ for women , and ‘eliminate workplace inequalities that [have] held women back from advancing…. Employment reserved for women—like playing in the WNBA or working at a shelter for battered women…—now must be opened to males who identify as women. The same is true of sports and educational opportunities under Title IX. The Sixth Circuit’s ruling impedes women’s advancement….”

“Substituting ‘gender identity’ for ‘sex’ in nondiscrimination laws also threatens freedom of conscience,” the petition continued. “Statutes interpreted that way have the effect, for instance, of forcing doctors to participate in—or employers to pay for—surgical efforts to alter sex in violation of their deeply held beliefs…. In sum, the Sixth Circuit ushered in a profound change in federal law accompanied by widespread legal and social ramifications.”

“These are important policy questions that the people have the right to decide through their elected officials,” said ADF Senior Counsel Jim Campbell. “Unelected officials—whether bureaucrats or judges—don’t have the power to make these choices for us.”

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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