Americans must be able to rely on what the law says. That’s what’s so disappointing about the Supreme Court’s decision in the trio of Title VII employment-discrimination cases: Bostock, Zarda, and Harris Funeral Homes.
As Justice Samuel Alito explained in his dissent from those decisions, “There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”
The Supreme Court’s decision has an immediate, adverse effect on everyday Americans like our clients Tom Rost and Harris Funeral Homes. Tom was targeted for relying on what the law says. Now, a Supreme Court majority has placed them and millions more like them in harms’ way by redefining the law. Every American business and citizen should worry that what the law prohibits today, a court will punish tomorrow.
Redefining “sex” to mean “gender identity” will also 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. It’s not difficult to see how.
In Connecticut, two boys identifying as girls have taken 15 girls’ track-and-field state championships in the past two years — titles that used to belong to nine girls. When a parent protested, an official declared that girls had the right to participate, but not the right to win. No one could have imagined such an outcome at the time Title IX was enacted. After all, the law was specifically meant to protect equal opportunities for women and girls in sports. But that understanding is now in question.
Or consider Alaska. There, city officials tried to force a women’s shelter to allow a man identifying and presenting as a woman to sleep mere feet away from women who had been raped, trafficked or abused. A federal court was forced to step in and issue an injunction to stop those officials from compelling the women’s shelter to capitulate. That ruling, too, may be up in the air.
In this very case, Tom Rost is being punished for having the audacity to apply a sex-specific dress code based on an employee’s biological sex, something the Equal Employment Opportunity Commission’s compliance manual has authorized for years — including at the time Tom made the difficult decision not to allow a male funeral director to dress and present as a woman when meeting with the funeral home’s grieving clients. As Justice Alito put it, “A more brazen abuse of (the court’s) authority to interpret statutes is hard to recall.”
No business owner should be punished for relying on laws the way they are written and in accord with how the government and courts have interpreted them for many years. Equally important, no one should be punished for their views about marriage and human sexuality. Biology is not bigotry; while all people are equal, men and women are not the same. Disagreement about what it means to be male and female, or about the meaning of marriage, is not discrimination but diversity.
The Supreme Court’s opinion does hold out the hope that those with diverse views will receive protection based on religious liberty. That may be true. But it will take years of litigation in the federal courts to resolve those conflicts. Sexual orientation and gender identity statutes have been weaponized at the state and local level for years to punish people who hold beliefs about marriage, sex and gender that the Supreme Court has called “decent and honorable.” Yet now, the high court has handed activists another very powerful weapon.
The freedom to disagree and to debate our differences is what makes us American. That’s true diversity. And we look forward to the day when political institutions, courts and everyday Americans can embrace that reality. Only then will the dignity of all be truly respected.
John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom. He argued Harris Funeral Homes before the Supreme Court. He wrote this for InsideSources.com.