Gender Ideologues, Bureaucrats And Judges Take Aim At Small Businesses – OpEd
By John Bursch*
If
there is one thing every American ought to be able to do, it’s rely on
what the law says. Without that assurance, every individual and business
is subject to sudden and unexpected changes in the law by unelected
judges and bureaucrats rather than our elected legislators.
Yet, there’s no doubt we’ve seen a sharp erosion of our shared reliance on the law in recent years.
A prime example of this dangerous trend is front and center in R.G. & G.R. Funeral Homes v. Equal Employment Opportunity Commission. Headed for oral argument at the U.S. Supreme Court this October, this case has drawn intense interest. The stakes are high.
Harris Funeral Homes is a fifth-generation family
business, serving grieving families in Detroit since 1910. Harris has
long maintained professional codes of dress and conduct — in accord
with federal law and industry standard — to ensure that families focus
on processing their grief rather than on the funeral home and its
employees. That is why the funeral home prohibits flashy clothing and
has a sex-specific dress code, as the law allows.
In 2007, the funeral home hired a biological male, Anthony Stephens, as a
funeral director, a position that effectively operates as the face of
the funeral home, working closely with grieving families. Stephens
agreed to and abided by these policies, including the sex-specific dress
code.
Nearly six years later, Stephens informed the funeral home’s owner, Tom
Rost, that Stephens planned to begin dressing and presenting as a woman
while interacting with grieving families. Tom took some time to think
about Stephens’s plan. He was concerned for Stephens, as he is for all
of his employees, as well as Stephens’ wife. He considered his female
clients and employees — including an 80-year-old woman — who would be
sharing the women’s restroom with Stephens. And Tom thought about the
impact on the grieving families he serves. Since Stephens was unwilling
to abide by the agreed-upon dress code, Tom decided the proposal was not
going to work and tried to part ways on good terms.
In response, Stephens filed a complaint with the Equal Employment
Opportunity Commission, and the agency — disregarding its own
compliance manual — used the situation to push the federal courts to
redefine the word “sex” in federal law to mean “gender identity.” The
federal government has since changed its position in this case and now
supports the funeral home, but the American Civil Liberties Union
intervened and is continuing to pursue this change to redefine “sex” in
federal law.
In Harris, the Supreme Court has the opportunity to confirm
that Americans can rely on what federal law says, including
long-standing protections against sex discrimination. If the justices
rule in favor of Harris, it would mean they rightly recognize the
meaning of “sex” under federal law as a biological reality. If they rule
against Harris and side with the ACLU’s arguments, the justices would
effectively redefine “sex” as a subjective, self-realized, and fluid
sense of self that will generate legal chaos in virtually every sphere
of American life.
When Congress enacted federal laws including Title VII and Title IX — the former of which is specifically at stake in Harris
— in the 1960s and 1970s, there was no question what “sex” meant. The
term “gender identity” first emerged in 1963 at a European medical
conference. And it didn’t appear in federal law until 1990 when Congress
enacted the Americans with Disabilities Act and excluded protection for
“gender identity disorders.” In the three decades since, Congress has
proposed and multiple times decided against adding “sexual orientation”
and “gender identity” as protected classes alongside race, color,
national origin, sex, and religion.
But where legislative attempts have stalled, unelected judges and
bureaucrats have stepped in and effectively rewritten the law to suit
their political goals. Some of the bureaucratic shenanigans have been
reined in by the Trump administration. For example, an HHS decision this
past summer restored a biological definition of sex that had been undermined by the previous administration during its final days in office.
Yet courts have been all too eager to elevate their own
policies over the long-standing definition of sex, leading to chaos in
the legal landscape that has drastic effects on the lives of everyday
Americans. Consider, for example, what a redefinition of sex to mean
gender identity means for female athletes. Over the past two years in
Connecticut, two high school boys competing as girls have won
championships in 15 events that were previously held by nine different
girls.
Responding to the unfair playing field Connecticut officials have
created, my colleagues at Alliance Defending Freedom filed a complaint
with the U.S. Department of Education’s Office for Civil Rights, which is now investigating the matter. Meanwhile, another client of ours, Downtown Hope Center in Anchorage, Alaska, was forced to obtain a court injunction
to stop the city of Anchorage from insisting that the center allow a
man who self-identifies as a woman to sleep three feet away from women,
many of whom are victims of rape, sex trafficking, and domestic
violence.
And in a business setting, the uncertainty of being forced to react on a
moment-to-moment basis to dynamic gender identity would be enough to
sink every small business. As Stephens testified in the Harris
case, employers should only be forced to allow employees to present as
the opposite sex if they “meet[ ] the expectations of” that sex, but
“[y]our guess is as good as mine” as to what dress style meets
expectations. At the end of the day, only enormous companies with the
ability to hire on corporate law teams would stand a chance of competing
in a marketplace at the mercy of gender ideology. A legal regime that
tilts the playing field in this way undermines the equality before the
law that is an essential feature of justice — the virtue that is the
foundation and purpose of legitimate government.
There’s no question that Tom and his family business are being used as
pawns in a much larger game. And there’s also no question Harris Funeral
Homes should be free to rely on what the law says and focus on serving
grieving families. That’s the freedom ADF is asking the Supreme Court to
uphold for Tom, and for business owners across the nation.
The only question remaining for every American is this: “Am I next?”
*About the author: John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom (@AllianceDefends), which represents Tom Rost and R.G. & G.R. Harris Funeral Homes.
Source: This article was published by the Acton Institute