Supreme Court redefines ‘sex’ in federal law, ruling on funeral home transgender case

The U.S. Supreme Court ruled Monday that courts and federal agencies can exceed their constitutional boundaries and redefine what “sex” means in federal law.

In a 6-3 opinion written by Justice Neil Gorsuch, the U.S. Supreme Court issued a lengthy opinion holding that, “An employer who fires an individual merely for being gay or transgender violates Title VII.”

The High Court went on to write, “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

“There is only one word for what the Court has done today: legislation,” wrote Justice Samuel Alito in a strongly worded dissent from the Supreme Court’s majority opinion. “The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”

Alliance Defending Freedom attorneys represent the Michigan funeral home at the center of the case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.

The dispute arose when the funeral home declined an employee’s request to violate the company’s sex-specific dress code by dressing and presenting as the opposite sex, claiming to be transgender, while meeting with the grieving family members.

Liberty Counsel Founder and Chairman Mat Staver, said: “The majority opinion departs from the clear language of Title VII and is no less than legislation from the bench. While the case did not include a religious freedom defense, the Court expressly stated that religious employers will likely have a valid defense under the First Amendment and the federal Religious Freedom Restoration Act.”

Two lower federal courts (Bostic and Altitude Express) disagreed on whether the plain wording of the word “sex” in Title VII of the Civil Rights Act should include “sexual orientation.” A third case (Harris Funeral Homes) ruled that the law should include “gender identity.”

“Americans must be able to rely on what the law says, and it is disappointing that a majority of the justices were unwilling to affirm that commonsense principle,” said ADF Vice President of Appellate Advocacy John Bursch, who served as Michigan’s solicitor general from 2011-13 and argued the case for the funeral home.

“Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts. Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women. Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities—the ones the law was designed to protect.”


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