In classical mythology, King Midas was given the power to turn everything he touched to gold. He rushed home to turn a bowl of fruit, a stool, and a farm animal to gold, and he rejoiced. But his joy quickly turned to sorrow when he turned people, food, and everything else useful or dear to him to gold also. In the end, King Midas learned the valuable lesson that you should not throw away everything you need in pursuit of something you want.
Those who ask activist courts to make laws that legislatures have already rejected would do well to remember the lesson of King Midas. Take R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a case the U.S. Supreme Court will hear later this year. Unless the Supreme Court corrects the errors of the lower courts — who re-wrote the law instead of interpreting it — , the case could fatally damage the constitutional separation of powers and reverse nearly 100 years of advancements in women’s rights.
The facts of the case are relatively simple: the Obama Administration sued a Michigan funeral home for requiring its employees to wear the type of clothing generally worn by people of that employee’s biological sex. The legal question is also simple: may a court or an unelected administrative agency usurp the role of Congress and the will of the people by re-writing a federal law? The answer to that question is also simple: no.
In this case, the lower courts re-wrote the law to define the word “sex” to include “gender identity.” In the statute, the word “sex” refers to male and female. That makes sense because the law favors clear and objective standards. Determining a person’s sex based on biology is about as clear and objective as any legal standard can get. After all, there’s a fairly obvious biological difference between males and females, and those differences are recognized by all of modern medical science and by common sense.
Even liberal judges acknowledge this fact. In the U.S. Supreme Court’s decision in United States v. Virginia Military Academy, Justice Ruth Bader Ginsberg underscored the biological element of sex differences: “physical differences between men and women, however, are enduring.” She quoted the case Ballard v. United States, saying that “the two sexes are not fungible.” Men and women are equal, but not identical or interchangeable. On the contrary, each sex is unique and has distinct biological features.
Recently, however, we’ve witnessed attempts to deny that any differences exist. Some alleged feminist groups like Planned Parenthood are even saying, “some men have a uterus.” Today, many who claim to be pro-woman are willing to surrender the hard-won rights of women under the law and destroy equal opportunity in athletics, education, and business by allowing men to compete in women’s sports, win college scholarships designed for women, and take advantage of female-only opportunities for women-run businesses.
If we allow courts to re-write the law so that males can simply choose to be females, we will undermine laws that exist to ensure equality for women. Title VII of the Civil Rights Act was amended to add protections against discrimination based on “sex” to address the undeniable history of unequal treatment women had experienced in the workplace. Many other laws that use the word “sex” have been put in place to address other historical challenges faced by women. But such statutes will continue to protect women only if we maintain the rule of law.
If we discard the rule of law and simply allow unelected judges to rewrite any statute they happen to disagree with, no American — male or female — will be able to count on keeping their rights. Some may feel they have struck gold by advancing their preferred view of social justice, until they find their victory is much like Midas touch, undermining every useful tool we have for protecting freedom.
The stakes here are high. The Supreme Court should uphold women’s rights, the separation of powers, and the right of citizens to govern themselves. Just like the story of King Midas has taught us, we should never allow any group to obtain something they want at the expense of something we dearly need to protect our liberty — the rule of law, representative government, and a faithful adherence to the Constitution.
Ken Paxton, a Republican, is the Attorney General of Texas.
