Registration is Now Open for TGC's 2020 Women's Conference

The FAQs: Supreme Court to Decide Whether ‘Sex’ Includes Sexual Orientation and Gender Identity

Lightstock

What just happened?

On Monday the Supreme Court announced it has accepted three cases involving homosexuals and transgender persons who claim they were discriminated against at work. The Court will rule on whether current federal anti-discrimination laws protect employees based on sexual orientation and gender identity.

What are the cases about?

In two of these cases, the Court is asked to decide if the phrase “because of . . . sex” in Title VII of the Civil Rights Act of 1964 was meant to protect employees from discrimination because of sexual orientation. In the third case, the Court will also determine whether the word “sex” meant “gender identity” and included “transgender status” when in 1964 Congress enacted Title VII.

The three cases to be considered by the Court are:

Altitude Express v. Zarda

Donald Zarda worked as a skydiving instructor at Altitude Express. After a tandem skydive, Rosanna Orellana told Zarda’s boss she had been touched in a flirtatious manner and that her instructor disclosed he was homosexual and “ha[d]an ex-husband” in an effort to excuse his otherwise inappropriate behavior. Zarda was fired, his employers claim, because he had a history of similar complaints of inappropriate behavior.

Zarda filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming “[he was] not making this charge on the grounds that [he] was discriminated on the grounds [sic] of [his] sexual orientation. Rather . . . in addition to being discriminated against because of [his] sexual orientation, [he] was also discriminated against because of [his] gender.” Zarda claimed that “[a]ll of the men at [his workplace] made light of the intimate nature of being strapped to a member of the opposite sex,” but that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”

Bostock v. Clayton County, Georgia

Gerald Lynn Bostock is a homosexual man who was employed as the child welfare services coordinator for the Clayton County Juvenile Court System. He alleges his employer fired him after the county learned of his sexual orientation, of his participation in a gay recreational softball league, and of his promotion of volunteer opportunities with the county to league members. He also claims the county falsely accused him of mismanaging public funds as a pretext for terminating his employment because of his sexual orientation.

(Note: The Altitude and Bostock cases have been consolidated and will be considered together by the Court.)

R. G. & G. R. Harris Funeral Homes v. EEOC

Harris Homes is a small, family-owned funeral business run by Thomas Rost. As a devout Christian, Rost says he “sincerely believes that his ‘purpose in life is to minister to the grieving, and his religious faith compels him to do that important work.’” Harris Homes’s mission statement, announced on its website, says that the company’s “highest priority is to honor God in all that we do.”

Rost hired Anthony Stephens as a funeral director in 2007. At the time, Stephens presented as a man. In a July 2013 letter, Stephens first told Rost that he identifies as female, that he “intend[ed] to have sex reassignment surgery,” and explained that “[t]he first step . . . is to live and work full-time as a woman for one year.” Stephens’s plan was to present as a woman and wear female attire at work. Rost told Stephens that the situation was “not going to work out,” but because he wanted to reach “a fair agreement,” he offered Stephens a severance package.

Stephens declined the offer and filed a charge of discrimination with the EEOC in September 2013, alleging an unlawful discharge based on “sex and gender identity” in supposed violation of Title VII.

According to court documents, Rost believes the Bible’s teaching that sex is immutable and that he “would be violating God’s commands” if a male representative of Harris Homes presented himself as a woman while representing the company. Were he forced to violate his faith that way, Rost “would feel significant pressure to sell [the] business and give up [his] life’s calling of ministering to grieving people as a funeral home director and owner.” (The EEOC “does not contest [Rost’s] religious sincerity.”)

What is Title VII of the Civil Rights Act of 1964?

Title VII of the Civil Rights Act of 1964 is a federal law that states, “It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Nowhere in the statute does it say that “sex” is intended to include sexual orientation or gender identity.

Why is the term ‘sex’ presumed to cover sexual orientation and/or gender identity?

Title VII is one of several statutes that prohibit discrimination “because of sex.” For example, Title IX of the Education Amendments of 1972 is a law that prohibits discrimination on the basis of sex in education programs receiving federal financial assistance. In May 2016, the Obama administration reinterpreted Title IX to make “gender identity” synonymous with “sex.”

The administration sent a letter to all public schools in America notifying teachers and administrators of the regulations they must comply with in regards to their students’ “gender identity.” The letter stated that, to comply with federal law, policies concerning students must be based on their gender identity and not on their biological sex. That was the beginning of the attempt at the federal level to officially redefine the meaning of “sex.”

Currently, 21 states and the District of Columbia have also passed laws that extend the provisions of the Civil Rights Act of 1964 to homosexual and transgender people.

Why should Christians care about the outcome of these cases?

There are three main reasons Christians should be concerned about the Court ruling that the term “sex” covers gender identity and sexual orientation.

First, it would allow federal agencies to redefine reality. In 1984, the landmark Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. established the standard known as “Chevron deference.” Because of Chevron deference the executive branch, through the various regulatory agencies (such as the EEOC), provides most interpretation of statutes passed by Congress (such as Title VII). When Congress passes a new law it usually goes to a regulatory agency to determine how the law will be put in place. Because the judiciary branch has established the Chevron deference, any interpretation deemed “reasonable” is likely to be the standard that is used. If the Court deems it reasonable to use “sex” as synonymous with transgenderism and homosexuality, federal agencies will be able to override the will of the American people on these issues.

Second, it would further undermine religious freedom. As the Harris Funeral Homes case shows, Christian-owned businesses would be required to hire and accommodate transgender persons even for roles in which it would violate their employer’s moral and religious beliefs (e.g., such as hiring a man who identifies as a women to work in areas where girls and women undress).

Third, as Alliance Defending Freedom notes, it would undermine equal treatment for women by, for example, allowing women’s scholarships to be given to men who believe themselves to be women. It would also jeopardize the dignity and privacy of women, forcing organizations to open women’s shelters, locker rooms, and restrooms to men who believe themselves to be women.

LOAD MORE
Loading