Liberty Counsel filed two amicus briefs in support of employers in three Supreme Court cases regarding whether federal anti-discrimination laws should apply to “sexual orientation” and “gender identity.” The High Court will hear the cases on October 8, 2019.
The Supreme Court’s order refers to Title VII, the part of the Civil Rights Act of 1964 that prohibits employers from discriminating on the basis of race, color, religion, sex and national origin. Two lower federal courts disagreed on whether the plain wording of the word “sex” should include “sexual orientation.” A third case ruled that the law should include “gender identity.” To include either term would require the law to be re-written, which is the prerogative of the legislature.
The first case, Bostock v. Clayton County, Georgia, ruled that “sex” in Title VII of the Civil Rights Act of 1964 does not include “sexual orientation.” The court ruled against Gerald Bostock who claims he was relieved from his job as a child welfare services coordinator for a Georgia county’s juvenile court system when his employer found out he was homosexual.
The Bostock case has been consolidated with Altitude Express, Inc. v. Zarda, in which the lower court stretched the word “sex” to include “sexual orientation.” The court ruled in favor of skydiver, Donald Zarda, who was let go after he told a female jumper not to worry about being strapped to him because he was homosexual. Zarda died in an October 2014 base-jumping accident, but his family pressed forward with the case on his behalf. A 10-4 majority found that discrimination based on “sexual orientation” violates the Civil Rights Act.
In the third case, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, the lower court ruled that “sex” includes “gender identity.” The court ruled in favor of the employee who was terminated after he told his employer that he would return from his vacation as a woman. The owner stated that “the employee’s actions would violate the company’s sex-specific dress code and disrupt the healing process of grieving families.”
Title VII was enacted, in part, to protect women in the workforce from discrimination, and does not include claims based on ‘sexual orientation” and “gender identity.” The Supreme Court’s sex discrimination precedents recognize the common-sense reality that men and women are biologically distinct, with immutable characteristics that divide men and women into two, separately-identifiable groups. In 1964, the word “sex” clearly meant male and female. Congress has repeatedly rejected multiple attempts to add “sexual orientation” and “gender identity” to the law. Adding “gender identity” would undermine the intent and purpose of the law to protect women. Gender identity would eviscerate the law by allowing males to subjectively claim to be female. Even the American Psychological Association admits that gender identity is based on one’s “sense of being male, female, or something else” rather than biology. To broadly interpret sex discrimination to include someone with the mental sense of being female, but who is in fact a biological male, does not advance the purposes of ensuring that women, as a class, and men, as a class, are afforded the same workplace opportunities.
Liberty Counsel Founder and Chairman Mat Staver said, “A plain reading of federal employment law is clear that it does not include ‘sexual orientation’ or ‘gender identity.’ In fact, including ‘sexual orientation’ and ‘gender identity’ would undermine and destroy the intent of the law to protect women from discrimination. The original intent and meaning of the law