Does “Sex” Mean “Gender Identity?” SCOTUS Heard Arguments on This!

WASHINGTON, D.C. – On October 8, 2019, the Supreme Court of the United States (SCOTUS) heard arguments in the R.G. & G.R. Harris Funeral Homes, Inc (Harris) v. Equal Employment Opportunity Commission, et al. (EEOC).

There are two questions that are presented in this case, as noted by Harris in the Petition for a Writ of Certiorari.

  • Whether the word ‘sex’ in Title VII‘s prohibition on discrimination ‘because of … sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.
  • Whether Price Waterhouse v Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex, rather than their gender identity.

This case was brought when Thomas Rost, the current owner of Harris, was notified that his funeral home director Stephens identified as a female and would take steps necessary to have surgery to be female and would start living and dressing as a female. Stephens, who had been hired in 2007 as the director, presented and lived as a man up to that point. When Stephens told Harris that he would start dressing as a female according to the dress code in place for females, Rost notified him that this would not work out and offered him a severance package.

He was let go because his dressing as a female would violate the dress code for men and also because Rost, a devout Christian, worried that the female employees and clients would need to share a bathroom with him. Rost has stated in depositions that if he had continued to dress as a man at work, he would not have been fired. Rost has also stated that he believed in the Bible and that he felt this violated God’s commands and if he was forced to violate his faith by allowing him to crossdress, he would feel a pressure to sell his business and give up his life’s calling to minister to grieving people.

Title VII was enacted in 1964 to cure the “unlawful employment practice to fail to refuse to hire or to discharge individual because of their race, color, religion, sex or national orgin.” This was a concern before Congress. The original bill did not include the word “sex” until it was added one day before the House approved it. At the time this was enacted, the word “sex” meant a male or a female by their anatomical or physiological factors. Gender identity refers to the inner sense of being a male or a female. The term “gender identity” did not appear in federal law until 1990 when the American with Disabilities Act specifically excluded “gender identity disorders.”

The writ of certiorari states that Congress did not intend for the word “sex” to equal “gender identity” when they reenacted Title VII in 1991. In fact, Congress rejected proposals to add “gender identity” to the protected class or to include it in the definition of sex. Dozens of states and local legislatures have tried to remedy this perceived injustice in the law by adding it to non-discriminatory laws that include the word “sex.”

In September 2013, Stephens filed a charge with the EEOC on discrimination stating his termination was unlawful as it was based on his “sex” and “gender identity.” The EEOC then filed suit against Harris due to violating Title VII allegedly “‘because Stephens is transgender and sought to ‘transition from male to female’ and because Stephens did not conform to [Harris Homes’] sex or gender-based preferences, expectations, or stereotypes.”

Harris moved to dismiss the suit, and the district court agreed. “[T]here is no Sixth Circuit or Supreme Court authority to support the EEOC’s position that transgender status is a protected class under Title VII.” However, the court did find that under Price Waterhouse v. Hopkins, the EEOC had a claim on “a sex-stereotyping gender-discrimination,”  and declined to dismiss the claim. The district court ended up ruling for Harris because transgender status or gender identity is not a protected class.

Stephens filed an appeal to the Sixth Circuit “because of a concern that changes in policy priorities within the U.S. government might prevent the EEOC from fully representing Stephens’ interests.” The court stated Harris engaged in unlawful sex stereotyping by applying sex-specific policies, according to the employee’s sex, instead of their gender identity. The EEOC did not challenge Harris’ dress code, so the alleged stereotype at issue was “declining to treat a male employee who professes a female gender identity as a woman.”

This had the legal effect of changing the word “sex” to mean “gender identity” and that “discrimination on the basis of transgender … status violates Title VII.”  The court stated that sex-specific policies based on an employee’s sex instead of their gender identity are “stereotypical notions of how sexual organs and gender identity ought to align.”  The writ states that “the Sixth Circuit thus treated the very idea of sex – which determines a person’s status as male or female based on reproductive anatomy and physiology – as an illicit stereotype. The mere fact that the employer ‘consider[s] that employee’s biological sex … necessarily entails discrimination on the basis of sex.”

The court then went on to hold that Title VII does protect “transitioning status” and had the effect of replacing “sex” with “gender identity.” This was done by stating that “gender identity changes-it is ‘fluid, variable, and difficult to define’-because it has an ‘internal genesis that lacks a fixed external referent,’ and much like religion, should be ‘authenticat[ed]’ through professions of identity rather than ‘medical diagnoses.’

The writ also stated that the Sixth Circuit went beyond and dismissed the “statutory-construction principles” that Harris relied on to bring the case. Harris looked at the original construction or meaning of the statute. The Sixth Circuit stated that “sex” includes “gender identity” because “statutory prohibitions often go beyond the principal evil that Congress sought to remedy.” The court looked to the Violence Against Women Act, which prohibits discrimination “on the basis of [both] ‘gender identity’ and ‘sex’ because ‘Congress may certainly choose to use both a belt and suspender to achieve its objectives. Nor was there any ‘significance,’ the court said, in Congress’ long-running rejection of bills seeking ‘to modify Title VII to include … gender identity.'”

Lastly, the Sixth Circuit found that the Religious Freedom Restoration Act (RFRA) was not a valid defense. This would make Rost go against his beliefs and even have the effect of giving up his ministry to not violate those beliefs.

The writ lays out four reasons to grant the petition and be heard before the justices:

  1. The lower courts are themselves split into three different ideas of what “sex” means.
  2. The Sixth Circuit conflicts and distorts the Supreme Court’s decision in Price Waterhouse.
  3. The decision by the lower court goes against the Supreme Court’s “principles of statutory construction.”
  4. The decision to alter what is male or female will have consequences that will be widespread and drastic.

This case is ongoing. Next, we will cover the brief of the two respondents. We will also be covering some amicus briefs and the oral arguments followed by the decision when it is published. Please stay tuned!

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