May I ask a simple question: What is the legal definition of “sex”? And no, I’m not asking about the verb, but about what it means to be a man or a woman, a boy or a girl.
Until very recently, to ask the question was to answer it. Living things reproduce after their own kind, after all, and a brief primer on the birds and the bees would have cleared up any confusion. That was certainly the understanding of the U.S. legislators who passed Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, national origin, and sex.
Today, our society is asking questions that never would have occurred to the senators and congressmen who struck a decisive blow to Jim Crow segregation in the South and opened the workplace to women like never before.
This discussion has arisen because some have tried to import the notion of “gender identity” into the definition of sex under Title VII. This has led to current legal quagmires like deeply split circuit courts, as well as more tangible dilemmas: How do employers, schools, and other organizations administer sex-specific policies that govern locker rooms, restrooms, and showers?
For too long, courts and unelected bureaucrats have taken it upon themselves to redefine the law. Now it’s time for the U.S. Supreme Court to reaffirm the original public meaning of “sex” in Title VII.
The case that can reaffirm Congress’ rightful role is R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, which the Supreme Court is considering in its upcoming conference on Nov. 30.
You’d be hard-pressed to find a clearer case of unelected officials replacing “sex” with “gender identity.” Here, appointed members of the EEOC took it upon themselves to rewrite the law to bring charges against a small funeral home in Michigan that has been family-owned since 1910. Even more shockingly, the U.S. Court of Appeals for the 6th Circuit followed suit, not only deepening the split among circuit courts, but also usurping the role of Congress in the process.
So instead of focusing all his attention on supporting grieving families, the funeral home’s owner, Tom Rost, has been forced to appeal all the way to the Supreme Court. Tom just wants to minister to families mourning the loss of a loved one. But the EEOC has elevated its political goals above the interests of the grieving people Tom serves.
Here’s what led Tom and his family to this place: In 2007, his funeral home hired a male employee. Like all of Tom’s employees, the man agreed up front to the company’s sex-specific dress code policy. Tom’s priority is for families to focus on their loss and their grief. Its policies are crafted to emphasize professionalism and provide as few distractions as possible.
In 2013, however, the employee notified Tom that he would no longer comply with the dress code, designed to best serve the needs of grieving families. Soon, he would be dressing as woman during work hours, including those that involved personal interaction with the bereaved.
This left Tom with a choice to make: Either he could agree to let his male employee dress as a woman during work hours, not just breaking the dress code, but undermining why the dress code exists — which is to assist grieving families in focusing on the healing process — or he could part ways with an employee who would no longer abide by the dress code.
Tom made the best decision he could, given the circumstances. He offered a severance package, seeking to do right by his now-former employee. The law should have protected his right to do so, but in came the EEOC and its attempt to smuggle “gender identity” into Title VII.
“Sex” and “gender identity” are not the same thing. “Sex” treats whether someone is male or female as an objective fact based in biology. In contrast, “gender identity” is a fluid, non-binary, and difficult-to-define concept that reduces maleness or femaleness to subjective perceptions.
Neither government agencies nor the courts have authority to rewrite federal law by replacing “sex” with “gender identity” — a change with widespread consequences for everyone. And Tom Rost isn’t alone in paying the consequences of shifting legal ground. The larger question applies to school restrooms, women’s-only homeless shelters, and women’s athletics, to name a few.
In R.G. & G.R. Harris Funeral Homes, the Supreme Court has its chance to affirm the clear definition of “sex.” Let’s hope the justices take the opportunity before them.
Jay Hobbs is deputy director of media communications for the nonprofit Alliance Defending Freedom.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
