The latest session of the Supreme Courts will be dealing with some issues of enormous political implications. A case determining reality itself goes to the top of the list.
In R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, SCOTUS will essentially have to decide whether one’s sex is a biological and/or chromosomal reality or whether “gender identity,” based on nothing more than self-identification, is not only legitimate, but has always been protected by the Civil Rights Act of 1964’s ban on sexual discrimination in the work place.
Since 1910, Harris Funeral Homes has helped the people of Detroit deal with processes that attend death and grieving. To lend an expected level of dignity to that process they instituted a dress code: Men must wear dark business suits, and women must wear skirts.
This dress code complies with federal law, and for six years employee Anthony Stephens had no problems or complaints. Then in 2013, he presented his boss, Thomas Rost, with a letter explaining that he was “transgender” and would begin following the funeral home’s dress code for women. “The owners faced a dilemma: They cared about Stephens; they also cared about the grieving families they served,” explains columnist Ryan Anderson. “They had concerns about how Stephens’ dressing as a woman would affect clients’ grieving. Also problematic were the funeral home’s single-sex bathrooms: Should they make female employees and guests share a bathroom with Stephens?”
Rost did not immediately fire Stephens, but two weeks later he ultimately decided that Stephens’s decision would negatively affect his business. Rost offered Stephens a severance package, but Stephens rejected the offer and teamed up with the American Civil Liberties Union (ACLU). A complaint was filed with the Equal Employment Opportunities Commission (EEOC). In 2015, the Obama administration’s EEOC filed a lawsuit against Harris Funeral Homes alleging it had violated Title VII of the Civil Rights Act of 1964.
A district court sided with the funeral home, ruling that Title 7’s protections do not apply to transgender employees. A three-judge panel of the U.S. Circuit Court of Appeals for the Sixth Circuit unanimously reversed that decision in 2018. “It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” the panel wrote.
The judges further cited the Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins, which determined that punishing employees for not adhering to gender stereotypes is a form of sex discrimination covered by Title 7. “An employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align,” SCOTUS said.
In other words, biological reality is nothing more than a “stereotypical” way of viewing the differences between men and women.
Yet nine years later, in Oncale v. Sundowner Offshore Services, Inc., SCOTUS unanimously ruled that while the Civil Rights Act bans double standards, it requires “neither asexuality nor androgyny.”
“That’s why bans on sex discrimination didn’t abolish sex-specific private facilities (like bathrooms), sex-specific fitness standards (for police and firefighters) or sex-specific athletic competitions (like the NBA and WNBA),” Anderson explains. “After all, sex-specific bathrooms, fitness standards and sports leagues don’t disfavor men or women. On the contrary, they prevent disadvantageous treatment.”
Ironically, many of the same leftists who champion the Sixth Circuit’s take were undoubtedly behind SCOTUS’s 1996 ruling in United States v. Virginia, requiring the all-male Virginia Military Institute to become co-ed based on the determination segregating men and women without a compelling reason violated the 14th Amendment’s Equal Protection Clause. Yet when writing for the majority, Justice Ruth Bader Ginsburg made it clear sexual differences existed, noting that going co-ed “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.”
For the activist left, such assertions are anachronistic. They prefer a world where “men” and “women” are nothing more than social constructs and one self-professed sexual identity should have the force of law behind it.
There’s a reason “sexual” is italicized in the last paragraph. That because the same leftists who would make sex wholly determined by one’s personal choice were absolutely enraged when a white woman named Rachel Dolezal claimed to “identify” as a black woman. It seems that some self-identification is “more equal” than other self-identification, especially when the political ramifications — as opposed to reality — are factored in: Self-determined gender identity advances the Left’s desire to fundamentally transform America, whereas self-determined racial identity not only does not, but threatens the Left’s entire racial agenda. The one that allows places like Harvard to continue discriminating under the banner of “diversity.”
Thus, gender is “fluid,” but race is immutable.
Ultimately, the question becomes whether or not the Supreme Court is willing to “reinterpret” the original meaning of the 1964 law to accommodate today’s political sensibilities — and usurp the role of Congress and the will of the people in the process. “If we discard the rule of law and simply allow unelected judges to rewrite any statute they happen to disagree with, no American — male or female — will be able to count on keeping their rights,” warns columnist Ken Paxton.
John Bursch, a former Michigan solicitor general who will argue before the justices on behalf of the funeral home, echoes that assertion. “Federal courts are not the branch of government that should be rewriting the law,” he rightly asserts. “In this case, Congress has already considered on 12 different occasions proposals to add transgender status to Title 7, and they’ve declined to do that every time.”
Activist leftists couldn’t care less. They prefer a world where reality itself is reduced to self-identification, backed by court-sanctioned, government force — but solely as they define it. Otherwise, the same activists who celebrate the triumph of two biological, Connecticut high-school males competing as girls and winning track meets previously won by girls, would champion anyone who identifies as a black American benefitting from the lower SAT score requirements Harvard reserves for that particular group of applicants.
That they don’t speaks volumes. Moreover, what about “sexual dysphoria”? As of now it is still defined in medical terms as a “conflict between a person’s physical or assigned gender and the gender with which he/she/they identify,” according to the American Psychiatric Association — the same Association that differentiates it from “gender nonconformity,” which it defines as “behaviors not matching the gender norms or stereotypes of the gender assigned at birth.”
Note that gender nonconformity, not sexual dysphoria, was the basis of the Sixth Circuit Court ruling. Thus what really remains to been seen is if SCOTUS prefers elevating politics over science.
And while the justices are deciding, they might ask themselves a question: If those who wrote and passed the Civil Rights Act of 1964 believed sex is based solely on self-identity, why did they even bother adding sexual discrimination to the list of prohibitions? If there is no difference, then there can be no discrimination.