DOJ Tells Supreme Court ‘Sex’ Doesn’t Mean ‘Gender Identity’

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by Anita Carey  •  ChurchMilitant.com  •  August 22, 2019   

Harris Funeral Homes v. EEOC could redefine Civil Rights Act of 1964

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WASHINGTON (ChurchMilitant.com) - The Department of Justice is telling the Supreme Court not to redefine sex discrimination to mean gender identity in a ruling for a case regarding a transgender employee.

Responding to a question presented by Alliance Defending Freedom (ADF) on Friday that asked whether Title VII of the Civil Rights Act of 1964 applied to transgendered people, the Department of Justice (DOJ) responded that it does not.

According to the brief, Noel Francisco, the solicitor general, and his staff concluded: "As it stands, Title VII prohibits treating an individual less favorably than similarly situated individuals of the opposite sex. It simply does not speak to discrimination because of an individual's gender identity or a disconnect between an individual's gender identity and the individual's sex."

Continuing, they wrote:

That does not mean transgender individuals are somehow "exclude[d]" from Title VII's protections. It means that transgender employees, like all other employees, may not be treated less favorably on any of the grounds Title VII covers. But transgender status is not among them and restyling a claim of gender-identity discrimination as one based on consideration of sex or sex stereotyping does not change that result. 

Church Militant reached out to ADF, the group representing Tom Rost, the owner of Harris Funeral Homes in Garden City, Michigan, and a defendant in R.G. & G.R. Harris Funeral Homes v. EEOC.

This case started as a federal agency targeting an unsuspecting family business to advance its own policy goal of redefining sex in federal law.

The complaint stemmed from an incident in 2013 when Aimee Stephens, a funeral director at Harris Funeral Homes, told Rost that after six years, he could no longer abide by the dress code and wanted to present himself as a woman.

In his affidavit given in 2016, Rost said, "Maintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process."

Rost, a Christian, also stated under oath that he "believe[s] that the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman or for a biological female to deny her sex by dressing as a man" also said he would be violating God's commands if he would permit employees to do so. 

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Donna and Aimee Stephens
courtesy of ACLU

Rost did not immediately fire Stephens but took time to pray and discern how this decision would affect other employees and grieving clients. He offered Stephens a severance package, but Stephens declined it and worked with the American Civil Liberties Union (ACLU) to file a complaint with the Equal Employment Opportunities Commission (EEOC). 

The EEOC, under the Barack Obama administration, filed a lawsuit against Harris Funeral Homes in 2015 claiming they violated Title VII of the Civil Rights Act of 1964.

Alliance Defending Freedom Vice President of Appellate Advocacy John Bursch explained in an interview, "[T]his case started as a federal agency targeting an unsuspecting family business to advance its own policy goal of redefining sex in federal law."

Since President Donald Trump took office in 2016, he as been rolling back changes the Obama administration's transgender mandate forced, such as permitting transgendered people to use the bathroom of their choice. 

Trump also dropped the Obama administration's plans to redefine "biological sex" in the 1972 Title IX nondiscrimination law as "gender identity."

These rollbacks could be reversed and gender ideology could be made a priority with a new president and several Democratic presidential candidates have already made campaign promises to advance gender identity issues and reverse Trump's religious freedom protections.

This means prosecution from government agencies, similar to Harris Funeral Homes, could ramp up with a change of administration.


ADF believes redefining sex to mean gender identity would have long-reaching consequences. Title IX protections ensuring equal opportunities for girls in education and athletics would be further eroded since local governments are already allowing boys to compete as girls.

"[J]udicially rewriting sex discrimination in Title VII will spill over into other federal laws that prohibit sex discrimination," ADF explained in the U.S. Supreme Court brief, adding:

It will deny women and girls fair opportunities to compete in sports, to ascend to the winner's podium, and to receive critical scholarships. It will also require domestic-abuse shelters to allow men to sleep in the same room as female survivors of rape and violence. And it may dictate that doctors and hospitals provide transition services even in violation of their religious beliefs.

"As this moves to analogous nondiscrimination laws in education and housing, equal opportunities and bodily privacy protections for women and girls will be lost," Bursch said.

The DOJ brief concluded that the judgment of the Sixth Circuit Court of Appeals should be reversed.

The Supreme Court will be deciding two questions with this case: whether "sex" in federal employment non-discrimination law includes "gender identity" and whether requiring a dress code based on biological sex rather than gender identity is unlawful sex stereotyping.

Bursch will appear before the Supreme Court on Oct. 8 to represent Harris Funeral Homes, and he has asked for prayers for the defense team, the Rost family and the Stephens family.

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