By DEACON MIKE MANNO, JD
The Civil Rights Act of 1964 was a landmark law that was passed by Congress and signed by President Lyndon Johnson. It made it illegal to discriminate on the basis of race, color, religion, sex, or national origin. At the time those terms and their implications were well known and not subject to much debate or controversy.
In 1964 discrimination on the basis of sex was clearly understood to be discrimination against women (or men) because of their status as a woman (or man) — and, of course, it was primarily used to protect women in the workplace or academia.
Fast forward to the 2000s, and as improbable as it may have seemed to those voting on the bill in 1964, the question of what is meant by the word “sex” has baffled lawyers, social scientists, politicians, bureaucrats, and sometimes even doctors.
Now, as parts of society have unbelievably moved to accept the changeable nature of one’s sexual identity, and are thus no longer willing to accept the immutability of maleness or femaleness as established at birth, we are faced with the legal question of whether the concept of “gender” or “gender identity” is covered as a protected class as defined by the word sex in the law.
In simple words, is a cross-dresser protected? Is a transgender protected? Is someone who calls himself or herself “other” protected? Legally these questions become vexing problems in a litigious society where a new wave of progressives are attempting to use the courts, not Congress, to answer these questions. And, there may soon be an answer by the Supreme Court which will anger some, gladden others, and mystify nearly any sane person sitting on the sidelines horrified by the entire spectacle.
Most of you who read this will be familiar with some of the societal problems the transgender movement has caused, such as boys identifying as female being allowed to shower in school gym facilities with girls; a growing number of women’s sports being dominated by men identifying as women; and the list could go on.
Much of this was started by federal bureaucrats who, during the last administration, began using gender identity and sex as synonymous. Thus, if a male employee, claiming to identify as female began to wear women’s clothing to work and was disciplined, that discipline was due to sex and thus the employee was protected under the law. The same went for schoolchildren who identified with the opposite sex — if they could not use the restroom and locker faculties for the sex they identified with, they were protected.
When these cases ended up in court, it was anyone’s guess how the court would decide and, in fact, such cases reaching the federal appellate courts have produced conflicting results. Thus it’s not surprising that the Supreme Court last month agreed to hear several cases in this area to answer the question, “Is gender identity protected as sex or not?”
And, just a not so small technical legal point to consider: On several occasions Congress has had the opportunity to amend the Civil Rights Act of 1964 to include gender identity, but has declined to do so. Does that reluctance to amend then give authority to the bureaucracy or the courts to do so by interpretation?
The two cases that will be decided by the court, probably this term, are R.G. & G.R. Harris Funeral Homes v. EEOC and Altitude Express v. Zarda.
The Zarda case is one in which a gay employee sued his employer for termination due to his sexual orientation, but the facts are kind of interesting. Zarda worked as a skydiving instructor for Altitude Express. As part of his duties, he assisted students in a tandem jump in which he would be strapped hip-to-hip and shoulder-to-shoulder with the student. According to his brief, he would sometimes tell female students he was gay to put them at ease about the bodily closeness. When one of the students complained about some inappropriate touching, Zarda was fired. He sued claiming discrimination due to sexual stereotyping and sexual orientation.
A district court had dismissed most of Zarda’s claims, including that for sexual orientation discrimination as not included in the Civil Rights Act. However, the appeals court disagreed, holding that the law applies “to any practice in which sex is a motivating factor.” It added, “sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted [and] based on assumption of stereotypes about how members of a particular should be…attracted.”
The other case, Harris Funeral Homes, may provide a clearer ruling, since Zarda is handicapped by some problems with factual findings that are not present here, and it also presents some issues that may cut a wider swath. I dealt with this case before in the November 15, 2018 edition of The Wanderer. In short, it is about a devout Christian funeral home owner who had a dress code for all his employees who worked with bereaved family members. The code was sex-specific, men had to wear suits and women had to wear dresses or skirts.
The funeral home had hired Anthony Stephens as a funeral director and during six years of his employment he presented himself as a man, and in fact all his employment records, including his mortuary science license, listed him as male. All went well until 2013 when Stephens notified his employer that he now identified as a female — and went from Anthony to Aimee — and that he intended to have sex-reassignment surgery and that to qualify he had to live, dress, and act as a woman for a year.
Thus, he told the funeral home his plan was to present himself and dress as a woman when dealing with families as part of his job. The owner then, after consulting with an attorney, told Stephens that this would not work out and offered him a financial settlement in a severance package. Stephens declined the offer.
The Equal Employment Opportunity Commission then took Stephens’ complaint and filed suit in federal court over his “discharge” due to “sex and gender identity.” The district court ruled in favor of the funeral home, stating that the termination “was due to [Stephens’] transgender status or gender identity [and] those are not protected classes” under the Civil Rights Act.
The appeals court saw it otherwise, ruling that employers engage in “unlawful sex stereotyping when they administer sex-specific policies according to their employees’ sex instead of their gender identity.” Thus, according to the funeral home’s brief, “The Sixth Circuit then judicially amended the word ‘sex’ in Title VII [the Civil Rights Act] to mean ‘gender identity’ and held that ‘discrimination on the basis of transgender . . . status violates Title VII’.”
This case has the potential to elicit a broad opinion from the court; however, it must be noted that in most cases courts tend to try to rule as narrowly as possible. It will be interesting to see if the court gives any deference to the funeral home’s argument that Stephens’ newfound wardrobe might be a bit too much for grieving families to bear.
On the other hand, the Zarda case might not be as sweeping since there was a dispute as to the reason for the firing, unlike the funeral home’s termination of Stephens. There’s also the fact that during the pendency of the case Mr. Zarda himself was killed in a skydiving accident and his executor was allowed to replace him as a party.
We’ll keep watching to see how these cases are decided. The ramifications for issues of gender identity could be profound.
(You can contact Mike at: DeacoMike@q.com.)
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