The Supreme Court’s decision in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and the related Title VII cases is a loss for originalism, the separation of powers, and the right of everyone to rely on the law as it is written. Though this decision will be praised by many, it has numerous downsides that cannot be swept under the rug.
Harris Funeral Homes ministers to grieving families in the Detroit area during some of the most challenging moments of their lives. In 2007, the funeral home hired a male funeral director. Funeral directors are the “face” of a funeral home. They are often the first person a family encounters after walking in the door, grieving the loss of a loved one. To help them do that, the funeral home has several policies in place, including a sex-specific dress code, which is industry standard.
In 2013, a male funeral director gave the funeral home a letter expressing an intent to begin dressing and presenting as a female while serving grieving families. The funeral home considered the needs of this employee, its other employees, and the families it serves. It felt it could not go along with this employee’s plan.
The Equal Employment Opportunity Commission, the federal agency that enforces the nation’s employment laws, then sued the funeral home for sex discrimination under Title VII, alleging that “sex” included “gender identity.” The American Civil Liberties Union later joined the lawsuit against the funeral home, which was represented by Alliance Defending Freedom.
The Supreme Court’s decision to redefine “sex” is problematic for several reasons. First, if the Supreme Court can rewrite Title VII to include “gender identity,” a concept that was not included in the meaning of “sex” when then law was drafted, it can rewrite anything. That reality threatens our ability to rely on our laws as Congress wrote them — which is exactly what Harris Funeral Homes did.
In 2013, when the complaint was filed, the funeral home had no reason to believe “sex” in Title VII included “gender identity.” As Justice Samuel Alito noted in his dissent, “until 2017, every single Court of Appeals to consider this question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex.”
Courts did this because “sex,” in the biological sense, is exactly what Congress had in mind when it passed the law, way back in 1964. For decades, courts rightly interpreted “sex” discrimination in Title VII as prohibiting employers from treating women worse than men because they are women and vice versa. Rewriting the law to include “gender identity” as a protected status should be a power held solely by the legislative branch, and Congress has declined to make this change multiple times.
The same is true about adding “sexual orientation” to Title VII, the legal issue debated in Zarda and Bostock, two cases the Supreme Court also decided in the same opinion. Again, Congress has repeatedly rejected adding that classification to Title VII, as this was clearly not what Congress meant by “sex” when it passed Title VII either.
This very point was recognized earlier in Zarda’s litigation by Judge Gerard Lynch, an Obama appointee on the U.S. Court of Appeals for the 2nd Circuit. Lynch supports adding at least one LGBT classification to Title VII as a matter of policy. Yet he did not interpret the law that way, saying: “I would be [very] pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago—until I actually woke up. … Because we all know that Congress did no such thing.”
Lynch rightly followed the law’s original public meaning and respected our separation of powers. Yet in Monday’s 6-3 decision, the Supreme Court did not.
Further, the opinion, which raises more questions than it answers, will result in numerous disputes between lower courts on the meaning of “sex” in other laws.
If Congress had chosen to make gender identity a protected status, legislators would have at least had the opportunity to carefully tailor such a law to ensure it did not hurt other interests, such as fairness in women’s sports, religious freedom, freedom of speech, and more. But instead, the Supreme Court redefined “sex” in the courtroom where these nuances cannot be addressed, and lower courts are left to guess on the many important legal questions that result.
The one bright spot is that the majority’s opinion left open the possibility that the high court will still protect religious convictions and liberty. Disagreement about what it means to be male and female, or about what marriage means, is true diversity — not discrimination. The Supreme Court has previously recognized that the Constitution protects and defends that diversity.
In delivering the opinion of the court, Justice Neil Gorsuch said such questions were “for future cases.” Hopefully, in those future cases, our constitutional order will be preserved, we will be able to rely on the law as Congress wrote it, and the diversity of all will be protected and upheld.
Ryan Everson is a communication integrity specialist with Alliance Defending Freedom (@AllianceDefends), which represents R.G. & G.R. Harris Funeral Homes.
