The definitions of "sex" and "gender identity" are heading to SCOTUS... sort of

For some time now, we’ve been waiting for a court case that could clear up some of the rather daunting questions arising from issues of transgender rights and how they intersect with traditional views on privacy and the segregation of the genders. A variety of these cases have produced a mixed bag of results in the lower courts and the Supreme Court has seemed reluctant to do more than nibble around the edges of the underlying questions. That may be about to change, though perhaps not for the better.

The Daily Signal has a good summary of such a case where oral arguments will be presented before the Supremes on October 8th. The case is R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (EEOC). The case centers on Tom and Nancy Rost, who operate a family-owned funeral home in the Detroit area.

Six years ago, one of their male employees announced that he was transgender and planned to begin dressing as a woman at work. Tom reportedly agonized over the decision and the impact it might have on his female employees and, even more so, their grieving clients. In the end, he decided he couldn’t allow the employee to do that and declined the request. In short order, he was sued by the EEOC. And as the Daily Signal points out, it’s a decision that could have a dramatic impact on small businesses around the country.

Later, following the commission’s urging, a federal court of appeals effectively redefined the word “sex” in federal law to mean “gender identity.”

Enacted by Congress in 1964, Title VII of the Civil Rights Act has long protected women, along with racial and religious minorities, from unjust discrimination in the workplace.

Redefining the term “sex” in that law to mean “gender identity” would create chaotic, unworkable situations and unjustly punish business owners like Tom while destroying important gains women and girls have made over the past 50 years.

Indeed, Tom Rost’s case, in which Alliance Defending Freedom represents the funeral home, is just the tip of the iceberg.

Speaking as someone who has been digging into the broader aspects of this subject for some time now, I regret to say that this is probably just about the worst case you could pick to send to the Supreme Court, and not just because it looks likely to go against the defendants. The problems here are many, but the biggest one is the type of action that the employer is trying to engage in.

We’ve covered more transgender lawsuits here than I can count, but the big ones that have been of interest almost uniformly revolve around either issues of privacy or fairness, particularly in competitive sports. The former generally deal with public access to bathrooms, lockers, and showers while the latter focus on males identifying as females competing against actual women in sporting events. In all these cases, natural women and girls frequently come out on the losing end when they go before a judge.

In Harris Funeral Homes, while the issue of bathroom access comes up (and could be easily resolved) this primarily comes down to an employment opportunity question. What the owners have done is basically informed their employee that they can’t keep their job if they dress as the opposite sex. We shouldn’t be in the business of denying jobs to transgender workers, to begin with, and the court will probably read the case that way and find for the plaintiff.

Even worse, this case gives the Supremes an open invitation to ignore the larger, underlying questions we need answered and duck out of a sticky situation with a very narrow, tailored ruling. This case does nothing to address the question of whether or not “identifying” as the opposite gender actually makes you that other gender in the eyes of the law. It doesn’t force the justices to demand answers in terms of the “science” behind transgender claims. It doesn’t take into account the issues surrounding the natural physical advantages males have over females in competitive environments.

No, this case ignores all of that and allows the plaintiff to basically frame this as a question of whether or not the funeral home can force him to dress a certain way for work and fire him if he fails to comply. And of course, the answer to that question is no. It’s not a question of sloppy or inappropriate clothing. It’s gender-specific clothing. And as longs as the clothes are clean and professional-looking, you could no more fire a woman dressed in a suit, tie and trousers than you could a man wearing a gown. Nor should you.

What we need to see is one of these cases of men competing in women’s sports make it to the Supreme Court and attempt to force them to answer these question of whether or not these are actually women and how fair or unfair such competitions are. Don’t be shocked if the Supremes duck away from Harris Funeral Homes on those larger issues and treat this as an equal employment opportunity case. It’s what they love to do in the trickier social conflict cases (as well as with the Second Amendment) and they will almost certainly take that escape hatch here if it’s available.

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