There are few things more ruthlessly differentiated “on the basis of sex” than the maternity ward at a hospital. I gave birth to my first child earlier this year. While I’ll spare you the details, it was an exquisite and exhausting case study in the differences between male and female.
Fifty-six years ago, lawmakers passed a federal employment law — Title VII of the Civil Rights Act of 1964 — to help ensure women wouldn’t be fired “because of sex” or conditions biologically tied to being a woman (specifically, pregnancy and childbirth). On Monday, however, a majority of U.S. Supreme Court justices retroactively redefined that federal law and the words “on the basis of sex” to be interpreted to include the more fluid, subjective, and personal notions of “gender identity” and “sexual orientation.”
With its decision in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (bundled with two other cases), a six-justice majority essentially reinvented the meaning of “sex” in federal employment law.
It isn’t plausible to argue — with a straight face at least — that the legislators who wrote the Civil Rights Act in the 1960s or any citizen reading it at the time understood “sex” to mean anything different than being a man or woman. Yet the court just decided to step outside its role as interpreter and revised federal law 50 years after it was enacted.
Justice Samuel Alito clearly said as much in his dissent: “There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”
My employer, Alliance Defending Freedom, represented R.G. & G.R. Harris Funeral Homes in the case dealing with the question of “gender identity.” The Harris case centers on a family-owned business in the Detroit metro area.
Over five generations, the Harris name served as the gold standard in its community, earning a reputation for serving grieving families with compassion and integrity. Part of that impeccable service included a sex-specific dress code for funeral home employees — muted attire that allowed families to focus on processing their grief. The dress code was an industry standard and one allowed by federal law.
In 2007, the funeral home’s owner, Tom Rost, hired a male funeral director who agreed to — and followed — Harris’s policies. Six years later, however, the funeral director announced intentions to dress and present as a woman when working with grieving families. Tom considered the impact on the employee, the funeral home’s other employees, and the needs of the grieving families.
With a burdened heart, Tom decided he could not accommodate the request and parted ways with the funeral home director. The Equal Employment Opportunity Commission filed a lawsuit on the funeral director’s behalf, deciding to use the funeral home as a test case to rewrite Title VII.
Thanks, in part, to Monday’s decision, attorneys will debate the meaning of “textualist” for years to come. But even if one celebrates the policy achieved by Monday’s decision, the method matters. The majority’s decision leaves Americans, including business owners and employees, unable to rely on what the law says — and that’s a problem for all Americans.
Even if, however, the court had deferred to Congress as it should have, redefining sex to include gender identity and sexual orientation would still create chaos and be unfair to women and girls.
In light of this challenge, progressive feminists and religious conservatives have found common ground—arguing that being a woman is a biological reality. In a recent, eloquent essay, J.K. Rowling wrote, “But, as many women have said before me, ‘woman’ is not a costume. ‘Woman’ is not an idea in a man’s head. ‘Woman’ is not a pink brain, a liking for Jimmy Choos, or any of the other sexist ideas now somehow touted as progressive.”
Although Monday’s decision focused on a small section of American employment law, the effort to rewrite federal legislation could quickly extend to women’s athletic and educational opportunities protected by Title IX.
Similar reasoning has already been used to sideline women and undermine the privacy and dignity of school-age girls. This logic has nearly forced vulnerable homeless women to choose between sleeping outside in the Alaskan winter or sharing a room with a violent man. It shouldn’t require expert testimony to explain that men and women are different — in athletics, in the maternity ward, or a whole range of other ways.
Neither pregnancy nor childbirth makes me a woman. But these beautiful and brutal tasks are possible only because of my biological make-up — the chromosomal reality imprinted on every cell within my body. Monday’s decision muddles our consensus about human identity and our shared understanding of language.
Many of us expect that women and girls will bear the brunt of this sweeping reinterpretation of the law and human relationships. But, with humility, we’ll keep making the case that true diversity allows for contrasting viewpoints and the ability to respectfully but robustly disagree.