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ADF asks US Supreme Court to weigh in on whether EEOC and court can redefine 'sex' without Congress

ADF attorneys represent Michigan funeral home punished because court judicially rewrote clear wording of Title VII

Friday, Jul 20, 2018
WASHINGTON – Alliance Defending Freedom attorneys representing a Michigan funeral home filed a petition Friday with the U.S. Supreme Court that asks the court to review a lower-court decision that redefines the word “sex” in federal law to mean “gender identity.”

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled in March that the federal government can force R.G. & G.R. Harris Funeral Homes to allow a male employee who identifies as female to dress in women’s clothing in violation of the family business’s sex-specific dress code. In so doing, that court redefined “sex” in Title VII to mean something other than what Congress clearly intended.

“No court or federal agency has the authority to rewrite a federal statute. That power belongs solely to Congress,” said ADF Senior Counsel Jim Campbell. “Replacing ‘sex’ with ‘gender identity,’ as the Sixth Circuit and the EEOC have done, is a dramatic change. What it means to be male or female shifts from a biological reality based in anatomy and physiology to a subjective perception. Far-reaching consequences accompany such a transformation.”

In 2016, U.S. District Court for the Eastern District of Michigan ruled in favor of the Detroit funeral home. The EEOC had sued over the funeral home’s decision to part ways with an employee who insisted on violating the company’s dress code. The EEOC appealed the decision.

As the petition filed with the U.S. Supreme Court in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission explains, “[t]he Sixth Circuit’s mandate that organizations enforce their sex-specific policies based on gender identity raises a host of problems. For one, it fosters inconsistency and opens the door to manipulation. Anyone—not just those with ‘medical diagnoses’—can profess a gender identity that conflicts with their sex….”

“Equally important, the Sixth Circuit’s decision undermines the primary purpose for banning discrimination based on sex—to ensure ‘equal opportunities’ for women…” the petition continues. “Employment reserved for women—like playing in the WNBA or working at a shelter for battered women ... —now must be opened to males who identify as women. The same is true of sports and educational opportunities under Title IX. The Sixth Circuit’s ruling impedes women’s advancement…. In sum, the Sixth Circuit ushered in a profound change in federal law accompanied by widespread legal and social ramifications. The stakes are too great—and the impacts on third parties too substantial—for this Court to let that decision go unreviewed.”

“Court opinions should interpret words in federal statutes according to their plain meaning when Congress passed them,” said John Bursch of Bursch Law PLLC, which also represents the funeral home. “This opinion instead rewrites federal law and is directly contrary to decisions from other federal appellate courts. That’s why we are asking the Supreme Court to consider this case.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.
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