Today the U.S. Supreme Court heard arguments in three cases involving employees who sued their employers for allegedly discriminating against them on the basis of sex, in violation of Title VII of the federal Civil Rights Act of 1964. All three employees are (or were, in the case of one deceased plaintiff) male.

None of the three is claiming that they were treated differently than females at the same job would have been treated. Yet that’s what Title VII’s prohibition of discrimination “based on sex” means. The definition of the word “sex” in 1964 if you looked it up in a dictionary would be based on the biological differences between men and women. No one in Congress at the time the law was passed, on either side of the aisle, expressed an understanding of the word “sex” other than the biological attributes that make us either male or female. And the amazing part of these cases that were heard today at the nation’s highest court is that nobody on either side disputes this.

Yet here we are in 2019 arguing over whether the word “sex” in the 1964 Act encompasses a man who wants to dress like a woman at work (Harris Funeral Homes v. EEOC), or two men who were allegedly fired for identifying as homosexual (Bostock v. Clayton County).

For weeks and months now, the media has willfully framed these cases as focusing on whether the court will “allow” an employer the “right” to fire someone for being gay or transgender.

That turns the cases upside down in terms of what is really at stake, but those headlines sell more newspapers and get more clicks than if the cases were more appropriately framed as: Does the Constitution’s “separation of powers” principle leave the legislative function to Congress, or can federal agencies and judges legislate also if they feel the need?

You may already see where I’m going with this. Since Congress’ language and intent were clear in the usage of the word “sex” in 1964, and since Congress has rejected amendments to the 1964 Act many times over the years that would have added sexual orientation and gender identity as protected classes, why on earth do judges and federal agencies think they have the authority to do what Congress refuses to do?

That’s how we arrived at the Supreme Court argument today. A few federal judges and the Equal Opportunity Employment Commission (EEOC), dissatisfied with the lack of “progress” on LGBT issues coming before them, decided to speed up the process and interpret “sex” to include sexual orientation and gender identity.  And the issue before the Supreme Court is whether those other federal judges and the EEOC are correct to do so. If the court rules in the employees’ favor, then Congress’ role, defined in Article I of the U.S. Constitution, will be forever weakened. The separation of powers principle and the “check and balance” that it plays in keeping the three branches of government from usurping the work of each other will suffer a major blow.

What did the Justices have to say on the subject in court today? We’ll explore that in depth tomorrow.