WAGGONER: Bureaucrats Shouldn’t Be Involved In Gender Politics At Funeral Homes

Kristen Waggoner | Alliance Defending Freedom

If you thought the reach of federal bureaucrats could not possibly stretch any further, think again. The government is now in the business of telling funeral homes how they must minister to grieving families. We’re thankful that on Monday, the Supreme Court announced it will address the latest attempt by an administrative agency to rewrite our nation’s laws.

Funeral homes are hardly the place for instigating culture wars. They are intended to provide support to the grieving — the respectful, stately, and comforting surroundings for final goodbyes. Funeral homes offer the quiet places where a daughter offers a tearful tribute to her father, a neighbor shares her simple condolences, or a husband clasps his wife’s hand for the last time.

But where most see a ministry to the grieving, the U.S. Equal Employment Opportunity Commission (EEOC) sees an opportunity — to expand its authority and impose its political views. The federal agency enforces civil rights laws against workplace discrimination. Not content with mere enforcement, the agency now wants to rewrite those laws. And its chosen method for doing so is to sue Harris Funeral Homes, the small family-run business that has served Michigan communities and grieving families since 1910.

Several years ago, a male funeral director informed the funeral home’s owner that the director identified as a woman and planned to start dressing as a woman while at work, in violation of the funeral home’s sex-specific dress-code policy. The owner was understandably concerned about this, as the policy promotes professionalism and enables grieving family and friends to focus on mourning their lost loved ones.

The EEOC’s own manual states that employers may use a sex-specific dress code. But without any congressional authorization, the EEOC decided to change the legal definition of “sex” to make illegal what the law actually allows.

Whatever you think about gender-identity theory, the EEOC’s actions are troubling. Our liberty is rooted in a democracy where Congress makes the laws, and the executive branch enforces them. No administrative agency has the authority to rewrite federal employment laws as though it were Congress. Yet the EEOC is treating the people’s voice — the legislative process — as a cumbersome inconvenience to its political agenda.

The EEOC is hoping to use the courts to endorse its strategy of replacing the word “sex” with “gender identity” in the federal anti-discrimination statute that Congress enacted in 1964. The change might seem subtle, but “sex” and “gender identity” are not the same thing. One identifies objective fact based in biology.

The other is a fluid, nonbinary, and difficult-to-pin-down concept that reduces maleness or femaleness to subjective perceptions. One thing is for sure: when Congress used the word “sex” more than 50 years ago, that term did not include the altogether distinct and novel concept of “gender identity.”

Replacing “sex” with “gender identity” has significant implications in many areas of the law — the kind of change that warrants congressional action, not administrative fiat. Female athletes can be forced to compete with males who believe they are female. Students’ constitutional right to bodily privacy become contingent on how other students perceive their own gender. And women who have been sexually abused and find themselves in shelter care overnight can be forced to accept a male in their sleeping quarters.

The cultural, social, and anthropological stakes are simply too high to allow a federal agency to bully anyone — especially a funeral home — into accepting a redefined understanding of sex without Congress weighing in. We ask the Supreme Court to uphold the rights of Harris Funeral Homes and its owner, clarify the EEOC’s role as enforcing — not rewriting — the law, and ensure that vital conversations about what it means to be male or female stay where they belong, with the American people.

Kristen Waggoner (@KWaggonerADF) is senior vice president of the U.S. legal division 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.

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