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US Supreme Court to hear arguments on lower court decision that redefined 'sex' in federal law

Press conference Tuesday following oral arguments in pivotal case affecting family businesses, women’s shelters, female athletes, others

Friday, Oct 4, 2019

WHO: ADF Vice President of Appellate Advocacy John Bursch; R.G. & G.R. Harris Funeral Homes owner Thomas Rost and his wife, Nancy; other ADF clients

WHAT: Press conference immediately after Supreme Court oral arguments in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission

WHEN: Tuesday, Oct. 8, at approximately 12:15 p.m. EDT, immediately following oral arguments

WHERE: Outside U.S. Supreme Court, 1 First St. NE, Washington


  1. Harris Funeral Homes declined to allow a male funeral director to violate the company’s sex-specific dress code by dressing and presenting as a woman when working with its clients—the family and friends of deceased loved ones.
  2. Unelected federal bureaucrats used the funeral home as a test case, convincing a lower court to rewrite the meaning of “sex” discrimina­tion and reject what the public and the U.S. Supreme Court have understood it to mean for more than half a century.
  3. ADF is asking the Supreme Court to reverse the lower court’s rewriting of federal law, declare that Americans can rely on what the law says, and forbid unelected government officials from changing the law to illegitimately accomplish what they have been unable to achieve through Congress.
WASHINGTON – Alliance Defending Freedom Vice President of Appellate Advocacy John Bursch will participate in a news conference immediately following his oral argument before the U.S. Supreme Court Tuesday in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. Bursch will argue on behalf of Harris Funeral Homes in the case and will be joined at the news conference by owner Thomas Rost and his wife, Nancy.

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.”

Other ADF clients who could be affected by the outcome of the case will also be present at the press conference:
  • Bianca Soule, mother of high school female athlete Selina Soule, who lost honors and opportunities at elite levels because of a Connecticut athletic conference policy that allows boys who identify as girls to compete in girls’ sports. When athletes and parents complained about two boys taking 15 track-and-field state titles in the girls’ division, an official said that girls have the right to participate but not the right to win.
  • Dr. Allan M. Josephson, the former chief of the Division of Child and Adolescent Psychiatry and Psychology at the University of Louisville, who was demoted, harassed, and then effectively fired after urging caution about rushing children experiencing gender dysphoria into life-altering medical treatments and surgeries before science has adequately examined these procedures and determined what’s best for patients.
  • Alexis Lightcap, who, while a student at Boyertown High School in Pennsylvania, unexpectedly encountered a boy in the girls’ locker room because of an unannounced school policy that disregarded the bodily privacy rights of students by opening locker rooms and restrooms to students of the opposite sex based on those students’ beliefs about their own gender. When she and other students raised concerns, school officials told them to “act natural” and get used to having members of the opposite sex in private spaces.
In 2016, the U.S. District Court for the Eastern District of Michigan ruled in favor of Harris Funeral Homes. The U.S. Court of Appeals for the 6th Circuit reversed, ruling that the federal government can force Rost and his business to allow a male funeral director who identifies as female to violate the business’s professional dress code—a dress code that is in accord with industry standard and federal law—by dressing as a woman when working with grieving families. This came six years after the employee agreed to follow the dress code at the time of hire.

The 6th Circuit’s decision redefined “sex” in Title VII to conflict with the word’s well-understood meaning when the law was enacted in 1964. Title VII is a federal law intended to ensure equal opportunities in employment, regardless of a person’s race, color, religion, national origin, or sex. Under the 6th Circuit’s ruling, employers cannot maintain sex-specific policies, including policies for overnight facilities, showers, restrooms, locker rooms, and employee dress.

Although the federal government now agrees with the funeral home, the American Civil Liberties Union is arguing on behalf of the former employee that the Supreme Court should rewrite the law.
  • One-page summary: R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission

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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