On Tuesday, the Supreme Court will hear a case in which one side wants to usurp the role of Congress by redefining the word “sex” in federal law to mean “gender identity.” In R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, Harris Funeral Homes, a fifth-generation family business serving grieving families in the Detroit area for over 100 years, is being targeted because an employee hired in 2007 as a funeral director who agreed to follow the company’s sex-specific dress code told the owner six years later that he would start presenting himself as a woman and dressing like one when dealing with grieving families.
The owner, Tom Rost, told the employee, Anthony Stephens, that he could not agree with Stephens’ plans, as that would mean Stephens would be sharing the women’s restroom with women from grieving families as well as one 80-year-old woman working at the funeral home. That triggered the Equal Employment Opportunity Commission to sue Rost.
As The Alliance Defending Freedom, which is representing Rost and his wife, writes:
In 2016, the U.S. District Court for the Eastern District of Michigan ruled in favor of Harris Funeral Homes. The U.S. Court of Appeals for the 6th Circuit reversed, ruling 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 working with 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 when the law was enacted 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 the 6th Circuit’s ruling, employers cannot maintain sex-specific policies, including policies for overnight facilities, showers, restrooms, locker rooms, and employee dress.
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.
ADF noted, “The EEOC’s own compliance manual says that a ‘dress code may require male employees to wear neckties at all times and female employees to wear skirts or dresses at all times.’”
ADF Vice President of Appellate Advocacy John Bursch, who served as Michigan’s solicitor general from 2011-13, stated, “Americans should be able to rely on what the law says. Redefining ‘sex’ to mean ‘gender identity’ creates chaos, is unfair to women and girls, and puts employers in difficult situations. 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.”
ADF noted that changing sex discrimination to mean discrimination based on gender identity “undermines equal opportunities for women. Men identifying as women will take women’s places on athletics teams and the award podium, as recently happened at the Connecticut girls’ high school track finals where Selina Soule, Alanna Smith, and other female athletes were denied fair opportunity to compete. It jeopardizes bodily privacy rights of women by forcing organizations to open women’s shelters, locker rooms, restrooms, and showers to men who say they are women. For example, in Alaska, an Anchorage commission tried to force a women’s shelter to allow a man who identifies as female to sleep three feet from women who have been raped, trafficked, and abused.”
For a list of friend-of-the-court briefs supporting ADF and the Rosts, see here.