The U.S. Supreme Court has released its October argument calendar, and three blockbuster cases are scheduled for hearing by the justices on October 8.
All three cases test whether lower courts and government agencies can redefine terms in laws passed by Congress. All three involve the federal employment non-discrimination law known as Title VII, which was passed as part of the Civil Rights Act of 1964 (The “1964 Act”). And all three involve the inexorable march by the Left to push homosexuality and transgenderism into a protected class similar to race, even where Congress has continually declined to do so when presented with the opportunity.
In Altitude Express v. Zarda, a male skydiving instructor was fired after a female customer accused him of touching her inappropriately. He claims he was fired because of his homosexuality. In Bostock v. Clayton County GA, a gay-identified male employee was fired after his government employer accused him of mismanaging public funds. The employee claims that the mismanagement of funds claim was a pretext—the real reason for his firing, he asserts, was his sexual orientation.
In Harris Homes v. EEOC., a Christian funeral home owner refused a male employee’s request to wear women’s apparel to work as part of his “transition” from male to female. The owner’s refusal was based on his religious beliefs about the nature of God’s creation of male and female as well as sensitivity to how grieving families would react to seeing and interacting with the employee.
In all three of these cases, employers were sued for employment discrimination based on sex, in violation of Title VII, which in pertinent part says:
“It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…” (emphasis added)
In the 1964 Act, the word “sex” was not defined, of course, nor would any member of Congress or the public at the time have thought it necessary to do so. “Sex” meant biological male or female. It still does.
Congress has considered bills introduced nearly every year since the early 1990s attempting to add homosexuality and/or transgenderism to the 1964 Act, such as ENDA (Employment Non-Discrimination Act). They have all failed to pass. This year the so-called Equality Act (with even more extreme provisions than previous ENDAs) was passed by the House of Representatives, and awaits consideration in the Senate.
In the last few years, however, liberal courts as well as the Equal Employment Opportunity Commission have both pushed for a non-legislative redefinition of “sex” in the 1964 Act to include sexual orientation and gender identity. The Supreme Court has not addressed this issue yet, but in October will hear the legal arguments.
Hopefully, the Court will then issue a decision around the first of the new year upholding Congress’s sole constitutional authority to legislate. The justices can and must put a stop to the lawless practices of progressive judges and agency bureaucrats who, impatient with losing via the democratic process, seek to become legislators themselves.
Photo from Alliance Defending Freedom