I’ve been saying for a couple of years now that we were eventually going to have to have a showdown in the Supreme Court over certain aspects of the transgender rights debate which has embroiled the nation. Between the various bathroom battles and Title IX arguments, boycotts, protests, and lawsuits, some sort of uniform set of definitions would be required. Well, as the Hill reports this week, that moment may be coming up sooner than I’d thought. The Supremes are set to decide whether or not they will hear a case related to this subject in the near future. Unfortunately, it’s not the aspect of this debate most in need of a resolution. (The Hill)
The fight over civil rights protections for transgender people could prove to be a major test for the Supreme Court, particularly its conservative wing, as justices weigh whether to take up the issue this term.
The court has a request before it to hear a case challenging whether civil rights laws that prohibit discrimination on the basis of sex in employment extend to transgender workers.
It’s a dispute that may have a significant impact on the Trump administration’s reported plans to exclude federal protections for transgender people by narrowly defining gender.
The case in question is R.G. and G.R. Harris Funeral Homes v EEOC & Aimee Stephens. Stephens was a long time employee of the funeral home who was fired after announcing that he was transgender and would begin openly living as a female. Stephens is being represented by the ACLU and the funeral home is represented by the Alliance Defending Freedom. The funeral home originally prevailed before a U.S. District Judge in 2016, where it was found that their decision to terminate was supported under Title VII, but the 6th U.S. Circuit Court of Appeals overruled that decision, sending it back to the original court. The Supreme Court has been asked to issue a Writ of Certiorari and hear the case.
This entire affair is problematic for a couple of reasons. What we’re dealing with here is a discrimination suit and it clearly seems that Stephens was discriminated against. Claiming that your religious beliefs forbid you from employing a man who dresses as and claims to be a woman is weak tea at best because I don’t recall the subject coming up in the Bible. Unless there is some aspect of the employer’s dress code which could demonstrate that Stephens couldn’t do his job while wearing a dress or that doing so would fundamentally damage their business interests, it’s tough to see why the courts would uphold the original judge’s decision.
But even if the Supreme Court takes on the case, no matter which way they decide, it doesn’t get to the underlying heart of the matter. Even asking them to rule on whether you can discriminate in employment or other areas against people suffering from gender dysphoria doesn’t get us anywhere. We don’t allow discrimination against anyone in this country. Why we need to add another layer to those laws to account for how someone dresses is a mystery to me, particularly when you consider that gender-specific clothing styles have increasingly become a thing of the past. If you can’t fire a woman for wearing a suit and tie to the office (and you can’t, and shouldn’t be able to) then you’re on thin ice claiming that you can fire a man for wearing a dress.
Here’s what the case doesn’t address. Are people suffering from gender dysphoria (or at least believing they are), technically some new, third gender? And in specific areas where gender distinction is traditionally held as being important (such as privacy in public restroom or shower facilities or being accepted in competitive sports with male and female categories) can the science of biology and the obvious differences between the sexes be simply swept away under the broom of Title IX and Title VII?
Settling the Stephens case answers none of these questions. The article at The Hill makes it sounds as if a SCOTUS decision in this case could overturn the White House plans to clarify definitions of sex and gender under Title IX, but the two are almost entirely (if not entirely) unrelated.