Redefining ‘Sex’ is Not the Work of Courts or Federal Agencies
When the United States Supreme Court returns from its summer recess in October, a major case with potential religious liberty undertones will be among the first items on its docket.
Oral argument in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission will be heard by the justices on October 8. This case is bound to have a large impact on how the government defines critically important terms such as “sex” and “gender identity” for purposes of federal law.
The appeal is often referred to simply as “Harris Funeral Homes” and the factual background is important. Harris Funeral Homes is a relatively small, family-owned business made up of several chapels which have served the people of metropolitan Detroit for over a century.
The funeral home’s employees are obligated to follow certain rules and regulations as with most other businesses. To Harris Funeral Homes, and in the funeral home business in general, it is especially important when interacting with the bereaved to promote a professional environment and to make sure that customers are treated with the utmost respect during one of the most difficult periods of their lives, focusing on the loss of a loved one. One such rule is a sex-specific dress code.
In 2007, Harris Funeral Homes hired a male employee who signed the same contract as every other employee, including the commonplace dress code regulations. In 2013, the situation became complicated when that employee, who worked for Harris for six years, informed his employer that he would begin to dress as a woman when at work. This would be a violation of the sex-specific dress code, which the funeral home management decided would not be in the best interest of some of its emotionally distressed clients. Recognizing the sensitive nature of the situation, Harris Funeral Homes offered the employee a severance package, but the employee refused.
Not long after, the Equal Employment Opportunity Commission (EEOC) became aware of the employee’s situation and decided to prosecute the funeral home. The EEOC’s goal is to change the definition of the word “sex” in Title VII of the Civil Rights act of 1964 to include “gender identity.” The EEOC was successful in its mission when it argued the case before the 6th U.S. Circuit Court of Appeals, but the case has now reached to the Supreme Court.
The 1964 Civil Rights Act was designed and implemented to protect employment discrimination based on immutable and/or protected characteristics of a person such as race, sex, religion, and national origin. Sex, a biological term with a clear definition, is not the same thing as “gender identity” — a subjective term with a nebulous and unclear definition.
This case is important for a number of reasons and will test whether replacing the definition of “sex” to mean “gender identity” would have far-reaching implications for any employer who distinguishes differences between men and women. Not to mention the argument that neither government agencies nor courts have the authority to change federal law. This is a potentially path-breaking case.
One notable supporter of Harris Funeral Homes is the U.S. government, which has submitted a “friend of the court” brief arguing that the word “sex” in Title VII of the 1964 Civil Rights Act does not include transgender persons.
Should this case go the way the EEOC desires, the long-standing employment practices of many American businesses would be in jeopardy, and the legal definition of “sex” would be vastly expanded into uncertain legal territory. A decision is expected sometime in 2020.
Written with Alec Fornwalt; an Associate in the Focus on the Family Washington office.
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