The Supreme Court heard oral arguments Tuesday in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, the case of an individual who says they were fired for being transgender and sued citing Title VII of the Civil Rights Act and its prohibition on discrimination based on sex. Based on oral arguments, the Supreme Court’s opinions seem mixed. I predict a close 5-4 vote in either direction.
David Cole, counsel for Aimee Stephens, the transgender woman who sued the funeral home, made a strong case. The strength of his argument lay in his claim that he was not asking the Supreme Court to redefine sex. At one point in oral arguments Cole said:
Justice Neil Gorsuch, probably the most strict textualist on the Court, seemed empathetic to this, saying:
Yet it was also Gorsuch, and in fact several justices on both sides of the usual ideological split, including Justices Sonia Sotomayor and Ruth Bader Ginsburg, who mentioned the potential problems this could create when it comes to bathroom use nationwide.
At the same time, Cole did perform some significant mental gymnastics to argue that Title VII does prohibit discrimination of a transgender person. Cole said in his opening statement:
John Bursch, counsel defending the funeral home, made a strong counter-argument.
Unfortunately, the arguments danced around the issue of sex and gender identity too much for my liking. I kept waiting for someone to ask: “Is gender identity the same as sex? If so, how? What does gender identity mean? What about other potential identities? Are they too protected under Title VII?”
Instead, the majority of the justices (save for Justice Brett Kavanaugh who didn’t utter a word during these oral arguments) allowed for the fabrication of language and seemed to accept that gender identity is interchangeable with sex, which could insinuate a more generous reading of Title VII to include gender identity as sex.
The closest we got to that discussion was from Chief Justice John Roberts.
Of course, to most conservatives and the funeral home in the lawsuit, the “discrimination” of Stephens was not because Stephens was assigned male sex at birth and fired for it, but because Stephens’ new attire and name didn’t coincide with sex-based differentiation, thereby adversely affecting the workplace and leaving the funeral home no choice. As Bursch said in his opening, “What Title VII says is that sex-based differentiation is not the same as sex discrimination.”
Most conservatives believe Title VII doesn’t interpret sex the same as gender identity, that this decision to reinterpret the law should be left up to Congress, and that upholding the Sixth Circuit’s ruling in favor of Stephens could cause “massive social upheaval,” as Gorsuch said. How the Supreme Court decides remains to be seen, but the decision will have massive implications either way.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner‘s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
