Back in March, I wrote about a remarkable bright spot: the Sixth Circuit’s decision in favor of a transgender plaintiff discriminated against by the funeral home she worked for, siding with the Obama-era Equal Employment Opportunity Commission—a proponent of protections for LGBTQ workers.
“Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex,” wrote the Sixth Circuit panel. That ruling was all the more remarkable because that appeals court is usually fairly conservative; it’s the court that hears appeals from Kentucky, Michigan, Ohio, and Tennessee.
Now in July it’s time to review the very predictable petition for certiorari—a.k.a. plea for the Supreme Court to hear an appeal—filed by the Alliance Defending Freedom, an anti-LGBTQ hate group focused on eroding LGBTQ rights in law and promoting a perverted concept of “religious liberty,” among other things.
The case is EEOC v. Harris Funeral Homes, and ADF is urging SCOTUS to overrule the six federal appellate courts that have held that the “sex” of “sex discrimination” in Title VII of the Civil Rights Act, meant to ban workplace discrimination, also protects employees from being discriminated against on the basis of gender identity. Another two appeals courts have ruled that sex discrimination also covers sexual orientation, by the way.
Aimee Stephens, the employee at the center of the legal conflict, has been represented by the EEOC and now the ACLU, as an intervenor. In this case, the ACLU moved to intervene so it can serve as a stand-in for a government that upholds rather than attacks civil rights. EEOC has previously argued that the Religious Freedom Restoration Act does not give discriminators a right to fire LGBTQ employees.
No word from DOJ yet, but it’s likely that Jeff Sessions’s silence won’t last. This is just the kind of opportunity to spew hate under the guise of legal argumentation that Trump’s DOJ pounces on regularly.
The ADF starts off by framing its question as a matter of what Congress meant at the time that it passed the Civil Rights Act.
Whether the word “sex” in Title VII’s prohibition on discrimination “because of . . . sex,” 42 U.S.C. 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964.
It’s a sneaky, very Scalia way to phrase the question. The laziest of conservative workarounds, after all, is to object on the basis of what the founders knew or meant, what meaning a specific word had at the time of composition—that sort of thing.
Sure, there aren’t a lot of folks who’ll tell you that a majority of Congress in 1964 anticipated the question of whether Title VII protects LGBTQ people as it does women. But there are plenty of us who’ll point out that pretending legislation can be entirely exhaustive in its language at any point in time is a fallacy. It’s also absurd to think that neither the Constitution nor any one law can be understood to have no purpose and create no protection not envisioned at the very moment of its drafting.
Yet the ADF swings for the fences with its dictionary-intent arguments.
Title VII forbids discrimination “because of. . . sex.” “In common, ordinary usage in 1964—and now, for that matter—the word ‘sex’ means biologically male or female,” as objectively determined by anatomical and physiological factors, particularly those involved in “reproductive functions.”
What’s notable in the above passage is that after quoting Title VII, it relies entirely on dissents.
Continuing, ADF wrote:
The Sixth Circuit ignored this undisputed definition. Instead, it assumed that “sex,” as understood in 1964, meant “gender identity.” That is impossible. Not only is gender identity—defined by the EEOC as the “inner sense of being male or female”—very different from sex, it was a nascent concept when Congress enacted Title VII.
Pro tip: Lawyers don’t use the word “impossible” often for a reason. Using that word rather than making the argument for impossibility—and letting the evidence speak for itself—betrays just how weak the ADF case is. (NB: Similar key words to watch out for: “clearly,” “obviously,” “thus,” especially in court opinions.)
Lacking though ADF’s filing is, and obvious as its animus is, they’re more than likely to succeed if the case comes before a Supreme Court with both Neil Gorsuch and Brett Kavanaugh on it. Both are happy to be partisan; both love to give lip service to originalism in any form that furthers their political convictions.
That’s why, as I’ve said before, we must fight Kavanaugh’s confirmation tooth and nail. Hopefully, his records prove his undoing.