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Acton Commentary

Gender ideologues, bureaucrats and judges take aim at small businesses

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.

If there is one thing every American ought to be able to do, it’s rely on what the law says.

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.

courts have been all too eager to elevate their own policies over the long-standing definition of sex

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?”

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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.