"You're trying to change the meaning of sex"

The oral arguments at the Supreme Court in the case of Harris Funeral Homes v. EEOC and two other cases involving LGBT employment issues seem to indicate that we’re heading toward yet another set of close decisions split along partisan lines. If you’ve been following our ongoing coverage of the case here, you’re already aware that the dispute in Harris involves a funeral director named Aimee Stephens who was fired after announcing that he was transgender and planned to begin living and dressing as a woman on the job. Two other cases deal with gay workers who were allegedly fired from their jobs after coming out.

Some of the questions and comments from the justices are particularly telling. Some details are provided by The Guardian. (Emphasis added)

Chief Justice John Roberts, a possible swing vote, wondered about the implications of what he described as an expansion of the job-discrimination law.

If we’re going to be expanding the definition of what ‘sex’ covers, what do we do about that issue?” Roberts asked.

Samuel Alito, a conservative, suggested the high court would be usurping the role of Congress by reading protection for sexual orientation into the 1964 Civil Rights Act, when lawmakers at the time likely envisioned they were doing no such thing.

“You’re trying to change the meaning of ‘sex,”’ he said.

The liberal wing of the court seemed to take a decidedly different tone. Elena Kagan stated that “a man who loves other men cannot be treated differently by an employer than a woman who loves men.”

We already know that Chief Justice John Roberts is frustrated at the number of cases that are decided in a 5-4 split and the public perception that his court is a politically charged beast. He’s broken ranks with the other, more conservative justices before and could well wind up being the swing vote in these cases yet again. But at a minimum, he’s at least raising doubts about some of the issues in play here.

One problem we’re running into is the trend of conflating issues of gay rights with transgender rights. For example, one of the other cases, Altitude Express v. Zarda, has nothing to do with transgender issues. Donald Zarda is a gay skydiving instructor who was fired from his job under complicated conditions. He had a habit of telling female clients about his sexual orientation so they would feel more comfortable being strapped closely together during tandem jumps. But one female customer complained after the jump that he had touched her inappropriately and was trying to use his sexual orientation to cover it up.

Zarda denied any inappropriate contact and claimed he was fired simply for being openly gay. Obviously, if the woman’s story is true he should have been terminated. If Zarda is telling the truth that would be a terrible thing for the employer to do. But Title 7 doesn’t cover employment protection based on sexual orientation unless the court determines that the word “sex” includes sexual orientation.

That’s very different than the Harris case. In that one, as Alito pointed out, the plaintiffs aren’t trying to “expand” the definition of sex but to radically alter it entirely. If the court is willing to conflate sex with whatever “gender” a person claims they associate with, then the entire meaning of both words goes out the window. And that will be a tragic blow to actual women in any number of areas, particularly in competitive sports.

But as I’ve written before, I have a suspicion that the court will try to dodge those larger issues in Harris and deliver a far more narrowly tailored decision focusing on workplace dress codes.