Vexed Question of Gender Rights Raised in Case Before Supreme Court

October 8, 2019 Updated: October 8, 2019

WASHINGTON—The courts should punish employers for refusing to use a transgender employee’s preferred personal pronouns that conflict with biological reality, a lawyer for a man who was fired by his employer after he began presenting as a woman told a divided Supreme Court Oct. 8.

Attorney David D. Cole represents transgender person and former funeral home employee Aimee Stephens, who was born male and was formerly known as William Anthony Beasley Stephens, in the case cited as R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (EEOC). The EEOC sued on Stephens’s behalf and later prevailed in the 6th Circuit Court of Appeals.

When Stephens informed his employer that he planned to dress as a woman at work, the Christian owner of the business said he was free to do so in his private life, but not at work because presenting as a woman would upset mourners.

“This case just asks, when you fire somebody because you say she—he was going to represent himself as a man, because she was using the name Aimee and that’s not permissible because he’s a man, is that sex discrimination?” Cole said in response to a question from Justice Ruth Bader Ginsburg.

“Yes, that is sex discrimination,” he said.

At issue in the case is whether discrimination against transgender individuals is covered by the sex-discrimination provision in Title VII of the Civil Rights Act of 1964. The word “sex” didn’t appear in the original draft of the law but was added late in the legislative process to a section prohibiting employers from discriminating on the basis of “race, color, religion, or national origin.”

The thinking then was that the statute would promote “women’s equality,” said funeral home lawyer John Bursch of the Alliance Defending Freedom.

But a lack of linguistic clarity has clouded the issue in recent years as the concepts of sex and sexual identity, or gender, a politically and scientifically contentious concept whose definition isn’t universally agreed upon, have become difficult to separate. Despite the distinct meanings of the two words, many institutions and individuals use “gender” to mean biological sex, especially on fillable forms and documents.

The Trump administration weighed in on the side of the funeral home.

Solicitor General Noel Francisco told the court that “sex and gender identity, like sex and sexual orientation, are different traits.”

At times, the justices seemed just as interested in the future jurisprudential implications of any decision they might render in this case as in the particular facts of the matter before them.

Both Chief Justice John Roberts and Justice Sonia Sotomayor spoke about why public bathrooms are segregated by sex. Sotomayor acknowledged that some women “would feel intruded upon if someone who still had male characteristics walked into their bathroom.”

Neil Gorsuch and other justices suggested that if Congress wanted to protect the gender of individuals, it would have done so when the issue was raised time and time again.

Gorsuch asked Cole what a hypothetical judge should do when asked to decide the meaning of the words in the civil rights law.

“At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that Congress didn’t think about it and that … [it is] more appropriate [as] a legislative rather than a judicial function?

“That’s it,” Gorsuch added. “It’s a question of judicial modesty.”

Cole rejected what he called the “notion that somehow this is going to be a huge upheaval—we haven’t seen that upheaval for 20 years … Transgender people follow the rule that’s associated with their gender identity. It’s not disruptive.”

Cole said the meaning of the word “sex” in the Civil Rights Act has long been understood to cover sexual identity, a contention some justices and opposing counsel disputed.

“Federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years,” Cole said.

Apart from the hearing itself, critics say that transgender activists are now enforcing a politically correct linguistic orthodoxy that can lead to legal troubles for dissenters.

For example, a New York City human-rights law that bans so-called gender identity discrimination imposes fines of up to $250,000 for failing to use a person’s preferred personal pronouns.

Virginia high school teacher Peter Vlaming is suing after he was fired for refusing to use masculine pronouns for a female student said to identify as male.

The left is pressing to amend the Civil Rights Act of 1964 to add “gender identity” and “sexual orientation” to the classes protected against discrimination in employment, housing, public accommodations, education, jury service, banking and credit, and retail stores. The proposed “Equality Act” was introduced in Congress on March 13 by Rep. David Cicilline (D-R.I.).

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