The Folly of Self-Defined Sex – Part 1

The cutting edge of the sexual revolution, transgenderism, or self-defined sexuality, will be the focus of a looming Supreme Court case in the coming term. R.G. & G.R. Harris Funeral Homes vs. the Equal Employment Opportunity Commission (EEOC) concerns whether a male employee of the funeral home can legally be a woman, simply by redefining himself, and thus dress as a woman at work.

The case, which would effectively make sex self-defined and thus eliminate all legal protections for biological women (such as the right to separate rest rooms and locker rooms) was debated by lawyers in an event sponsored by the Alliance Defending Freedom at the Jones Day law firm in Washington, D.C., on September 16. John Bursch of ADF argued against redefinition, while Brian Burgess of Goodwin Law argued the merits of sex legally being what an individual claims it to be. Amy Howe of SCOTUSblog moderated the discussion.

The discussion began by observing the case, to be argued on October 8, concerns the key question of whether the Supreme Court can redefine sex under the law. Bursch recounted first that the funeral home has dress codes specific to men and women. It does not want grieving customers and funeral home visitors disturbed by employees dressed in ways appropriate to the opposite sex. EEOC had sued on behalf of Anthony Stevens (now Aimee Stevens) a biological male who identified as a woman, insisted on dressing as a woman at work, and planned sex alteration surgery. The funeral home’s dress code also included prohibitions against “flashy clothing,” tattoos, or unusually dyed hair. The sex specific requirements included coat and tie for men and dresses for women. Stevens was hired in 2007 and had agreed to adhere to all dress requirements, including sex specific requirements.

Six years later, Stevens presented the funeral home with a letter saying that in two weeks, he would identify as a woman, dress as a woman, and expect accommodation as a woman. Most notably, this would mean use of women’s rest rooms. The funeral home decided that in view of their work, they could not accede to Stevens’ demands. Stephens then “filed a complaint with the EEOC, which then filed a lawsuit.” EEOC claimed that Harris Funeral Homes was guilty of sex discrimination as defined by Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex. Thus, EEOC really claimed that “transgenderism” is a reality that must be legally accommodated, and classification on the basis of biology regardless of a person’s wishes is sex discrimination. It was also claimed that the funeral home was guilty of “sex stereotyping” (the expectation that people will behave in ways traditionally expected of their sex). The Supreme Court had found this to be prohibited by Title VII in Price Waterhouse vs. Hopkins (1989) if it results in a person receiving less favorable treatment because of his or her sex. While the funeral home originally claimed protection under the Religious Freedom Restoration Act of 1993 (RFRA) against the sex discrimination claim of Title VII, this is no longer part of the case. The funeral home’s claim is now that the meaning of “sex” in Title VII is biological sex, not an individual’s own determination of his or her sex.

Bursch said that “the original public meaning” of sex discrimination was treating a person less favorably than the opposite sex because of that person’s sex. For decades, federal courts unanimously said that sex discrimination involved only discrimination suffered because an individual of one biological sex was being treated less well than members of the opposite biological sex. This changed in 2017, when the Seventh and Second Circuit Courts held that sexual orientation and gender identity were included in the meaning of sex.

Bursch said that “discrimination based on ‘sex stereotyping’ is not discrimination unless the notion of sex itself is discrimination.” If the latter is the case, then society will “lose any ability to have sex segregated dress codes, rest rooms, locker rooms, overnight facilities, a whole variety of things.” The key question in the case is whether or not the law applies as written by the legislature, “or whether the judiciary has the right to re-write the law according to its policy preferences the way it thinks the law should apply today.” Another severe problem, in addition to the grave social problems of self-defined sex, is that the redefinition of fact can “quickly move into other areas of the law as well.” Self-defined sex will effectively eliminate women’s sports, since males can compete in them, and in fact have won championships and scholarships. Bursch observed that one track coach has said that “girls have the right to participate, but they don’t have the right to win.” In Anchorage, Alaska, there was an attempt (recently defeated in court) to require a homeless shelter “for women … who had been raped, trafficked, or abused” to allow a biological man who identified as a woman to sleep near the women. Other examples include the importance of classifying sex by biology in supervising showers in women’s prisons, or strip searching in women’s prisons.

Burgess asserted that the issue was a matter of “framing.” He seems to have meant that Bursch’s claims were factually correct, but should be thought of in a different way, a way in which transgenderism seems plausible. He said that the issue of proper “framing” was “particularly stark here.” We should not think of courts attempting to “redefine what sex discrimination means.” He maintained that “no one thinks that that is what the judicial inquiry is here.” He said only Judge Richard Posner took the view that it was “appropriate for the court to update the law according to what prevailing social values are.” This “framing” is “certainly not how the Title VII plaintiffs envision the case. Their view is that they’re just asking the court to apply the law on the plain meaning of sex.” He said that sexual orientation and gender identity (transgenderism) are “sex linked” and therefore “the plain meaning of sex.” It appears that a redefinition of sex (to self-defined sexuality) is being defined as being not redefinition. He appeared to make this clear when he said that if one uses “biological sex” or “sex assigned at birth” as the basis of making an employment decision, that it was “inherently” discrimination “on the basis of sex.” It is not a question of redefinition, or an expansion of categories, he said, but a recognition that LGBT categories are protected by the law as written, apparently because LGBT categories are sex-linked.

This writer would observe the obvious, which is that this is a change in the meaning of “sex,” from one of two biological categories to things associated with those categories. It should be noted that the legislators who enacted Title VII surely meant that sex is determined by biology, not by what is going on in one’s mind. Burgess’ desired result amounts to saying that the mental life of people who feel hurt by objective reality should be protected at the expense of society, which must depend on reality to live. Burgess also believes that it is harassment to be disciplined for not acting in ways traditionally associated with one’s sex (“gender stereotyping”), which would seem to rule out sex specific dress codes whether or not LGBT categories are accepted as “protected categories.”

Americans (and others in the West) have always been taught that it is crucial for citizens to be protected by the rule of law. But if the words of a law do not have an unchanging meaning which courts respect whether they think that law is good or not, the law provides no security. That was further illustrated in the remainder of the discussion at Jones Day, which will be covered in a subsequent article.