16 States Tell Supreme Court: Congressional Intent of Title VII Was Birth Sex, Not ‘Gender Identity’

WASHINGTON — 13 attorneys general and 3 governors, representing 16 states, have joined together in an amicus brief submitted to the United States Supreme Court surrounding an appeal of a ruling out of the Sixth Circuit Court of Appeals, which found it “illegal” under Title VII of the Civil Rights Act for a Michigan funeral home to fire a man who wanted to dress as a woman.

“The Sixth Circuit’s opinion … erases all common, ordinary understandings of the term ‘sex” in Title VII and expands it to include ‘gender identity’ and ‘transgender’ status. In doing so, the lower court rewrites Title VII in a way never intended or implemented
by Congress in the Civil Rights Act of 1964,” the brief states.

It provides several examples to show that the Congressional intent of the statute related to birth sex and not “gender identity,” as it was meant to combat inequitable treatment of women.

“In the one instance when Congress actually amended ‘sex’ in Title VII to cover discrimination ‘on the basis of pregnancy, childbirth, or related conditions,’ it did so to ensure that pregnant and post-partum women face the same opportunities for advancement as men,” the document outlines.

“In amending the law in this way, Congress indicated that invidious ‘sex’ discrimination occurs when females and males are not afforded the same avenues for advancement, i.e., when pregnant women may be legally fired or not hired,” the states note. “Thus, this amendment affirmed Congress’s long-held view that ‘sex’ refers to biological sex, and not to an individual’s self-perception of his or her ‘gender identity.'”

Those who joined the legal brief, led by Nebraska Attorney General David Bydalek, include attorneys general Steve Marshall of Alabama, Derek Schmidt of Kansas, Mike Hunter of Oklahoma, Marty Jackley of South Dakota, Ken Paxton of Texas, Patrick Morrisey of West Virginia, and Peter Michael of Wyoming, along with governors Matt Bevin of Kentucky, Paul LePage of Maine and Phil Bryant of Mississippi.

Read the amicus brief in full here.

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As previously reported, the case at hand, R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, centers around Anthony Stephens, who now goes by the name Aimee Stephens. He was hired as the funeral director and embalmer for the Detroit-based funeral home in 2007.

In 2013, Stephens informed his employer that he had been diagnosed with gender dysphoria and would therefore desire to wear a woman’s suit for work.

Owner Thomas Rost, who identifies as a Christian and serves on the board of directors for Salvation Army of Metro Detroit, has a company dress code in place, which states that males must wear dark suits and white shirts. Rost reportedly provides two suits for male employees in accordance with the dress code, and would also provide the business jacket and skirt should a woman be hired as well.

Because Stephens sought to wear female clothing, which is a violation of the dress code, and because Rost did not feel comfortable with providing a skirt suit due to his Christian convictions, Stephens was let go. He consequently took the matter to the federal Equal Employment Opportunity Commission (EEOC), which sued Rost with the aid of the ACLU in alleging gender discrimination.

“R.G. employees understand that the dress code requires funeral directors to wear company-provided suits,” attorneys for Rost outlined in a legal brief. “Rost sincerely believes that he would be violating God’s commands if he were to pay for or otherwise permit one of RG’s funeral directors to wear the uniform for members of the opposite sex while at work.”

The EEOC argued in court that since Rost would not otherwise fire an employee for living in sin, his actions to fire Stephens were unbalanced and selective. But ADF asserted that the dress code served an important purpose: to provide a respectful image to the clients with which employees interact.

In August 2016, U.S. District Judge Sean Cox sided with the funeral home and dismissed the EEOC’s legal challenge.

“The court finds that the funeral home has met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” he wrote.

“Rost sincerely believes that it would be violating God’s commands if he were to permit an employee who was born a biological male to dress in a traditionally female skirt-suit at the funeral home because doing so would support the idea that sex is a changeable social construct rather than an immutable God-given gift,” Cox said.

He pointed to the U.S. Supreme Court’s Hobby Lobby Ruling and the federal Religious Freedom Restoration Act (RFRA) as the basis of his decision. The RFRA states that the government cannot force any entity to violate their religious convictions unless they use the “least restrictive means” of furthering a “compelling government interest.”

“The Supreme Court has directed that it is not this Court’s role to decide whether those ‘religious beliefs are mistaken or insubstantial,’ Cox explained. “Instead, this Court’s ‘narrow function’ is to determine if this is ‘an honest conviction’ and, as in Hobby Lobby, there is no dispute that it is….”

“Significantly, neither transgender status nor gender identity are protected classes under Title VII,” he also concluded.

However, the Sixth Circuit Court of Appeals disagreed with Cox’s ruling and overturned the decision in March.

“Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the funeral home fired Stephens because [he] refused to abide by [his] employer’s stereotypical conception of [his] sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim,” wrote Judge Karen Nelson Moore on behalf of the unanimous panel.

“[I]t is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” she asserted. “[A]n employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.”

The panel also concluded that “simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA.”

Rost consequently appealed the ruling to the U.S. Supreme Court and is waiting to hear whether or not his case will be heard. The high court accepts very few cases out of the many appeals it receives.


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