SCOTUS to Hear Critical Case in the Gender Revolution

By Rita Dunaway Published on April 27, 2019

America is in the midst of a gender revolution. While the sexual revolution of the ’60s was all about divorcing sex from marriage, today’s gender revolution aims to divorce gender from biology. The sexual revolution involved a shift in attitudes about morality; the gender revolution involves denying scientific facts.

This latest revolution just happens to coincide with another trend in our country — one that has to do with the way our government functions. Nowadays, if an activist group can’t get the policy changes it wants from the legislative branch, it simply moves on to the courts. Of course, the job of the judicial branch is to apply laws to the facts of particular cases. It has no legitimate authority to make or change public policy. But it has long since crossed that great divide.

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And so the courts have become the fruitful last resort of those groups that our Founding Fathers referred to as “factions.” These special interest groups may not persuade lawmakers that the policy they want is best for society. But they just might persuade an activist judge that the policy is somehow implied in an existing law — or even the Constitution.

Such was the mission of the activists who convinced the Supreme Court that people have a constitutional right to same-sex marriage. And it is now the mission of those who would have our society deem biological sex irrelevant.

The Supreme Court to Step In

The Supreme Court recently agreed to weigh in on the issue in the context of Title VII. Title VII is the federal law prohibiting employers from discriminating on the basis of race, color, religion, sex, or national origin. The Court will decide whether the statute somehow also forbids discrimination against “transgender” people. The case is R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, and its implications will be huge.

The case involves a small funeral home. Its dress code requires male funeral directors to wear pant suits and female funeral directors to wear skirt suits. After working there for several years, a male funeral director named Stephens informed owner Thomas Rost that he was in the process of “transitioning” to female. This, he said, would require him to live and work as a “female” for one year. When Rost told Stephens it was not acceptable for him to wear a skirt to work, the two parted ways.

Stephens filed a charge with the Equal Employment Opportunity Commission, which found that Rost had discriminated against him on the basis of sex. On initial appeal, the district court sided with Rost. Then the case went to the Sixth Circuit Court of Appeals, where the court vastly expanded the plain language of Title VII in order to find for Stephens.

The Sixth Circuit relied on a prior Supreme Court case involving the use of gender stereotypes to treat women less favorably than men. It ruled that employers also engage in “sex stereotyping” when they administer sex-specific policies (like dress codes) according to their employees’ sex instead of their “gender identity.”

Don’t Let the Courts Rewrite Law

This is, as Alliance Defending Freedom attorneys pointed out, a “bewildering view.” In effect, the Sixth Circuit is saying the whole idea of biological sex is a stereotype. If the Supreme Court upholds this ruling, it will mean that employers must apply sex-specific policies according to “gender identity” instead of biological fact. And if that is the way it must be, then all sex-specific policies — including separate bathrooms and dress codes — essentially become meaningless.

The Sixth Circuit did not stop with its bizarre finding that applying sex-specific policies based on sex is the same as treating one sex badly based on stereotypes. It went even further to hold that Title VII actually prohibits discrimination based on “gender identity,” even though the law does not even mention that term. The statute forbids discrimination based on sex. How can “sex” be the same as “gender identity?” After all, “gender identity” only becomes an issue when it is different from one’s “sex.”

Let’s hope that the Supreme Court overrules the Sixth Circuit’s bad logic. But even more than that, let’s hope that the Court reminds every court in the nation that a court’s job is not to break new ground in emerging policy issues or to redefine the language in statutes to the judge’s liking. The job of a court — plain and simple — is to apply the law, as written, to the case before it. And nothing in Title VII requires an employer to pretend a man is a woman or to let a man wear a ladies’ uniform.

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