Before the Supreme Court: Case of a Male Funeral Home Director Who Wanted to Pretend to be a Woman at Work

The U.S. Supreme Court will hear arguments today in a case involving a funeral home director who wanted to pretend to be a woman at work. The owner told him he could not present as a woman at work. The man complained, and the case ended up before the nation’s highest court.

At issue is an appeals court decision that redefined “sex” under federal law to include “gender identity”or “transition status.”

A person’s sexual behavior, feelings, and delusions shouldn’t be equated with immutable characteristics like race and sex and shouldn’t, in any case, be the basis for refining federal anti-discrimination law. Additionally, only Congress has the constitutional authority to rewrite federal law.

The funeral home director complained to the Equal Opportunity Employment Commission. A lower court ruled in the funeral home’s favor. The U.S. Court of Appeals for the Sixth Circuit, however, ruled against the funeral home. From the funeral home’s legal counsel, Alliance Defending Freedom:

Last month, a diverse array of groups, officials, and experts filed friend-of-the-court briefs with the high court arguing that unelected government officials can’t usurp the role of Congress by redefining the word “sex” in federal law to mean “gender identity.” In Harris Funeral Homes’ own brief filed with the court, ADF attorneys explained that allowing that to happen “will cause problems in employment law, reduce bodily-privacy protections for everyone, and erode equal opportunities for women and girls, among many other consequences.”

“Americans should be able to rely on what the law says. Redefining ‘sex’ to mean ‘gender identity’ creates chaos, is unfair to women and girls, and puts employers in difficult situations,” said Bursch, who served as Michigan’s solicitor general from 2011-13. “Title VII and other civil rights laws, like Title IX, are in place to protect equal opportunities for women; changing ‘sex’ to mean ‘gender identity’ undermines that.”

The obvious problem with redefining “sex” based on anything other than biological sex would mean, for example, denying female athletes opportunities to compete fairly and to win against competitors. Men pretending to be women in women’s sports would always win, because they’re larger, stronger, and faster. Testosterone gives them an unfair advantage.

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