Guest post: Rally at the Supreme Court Tuesday
Guest post by Dave Ricks.
In the 1964 Civil Rights Act (CRA), the word “sex” was clearly intended to remedy a history of discrimination based on “sex” meaning female (i.e. a dictionary definition, biologically, XX chromosomes, etc.).
But recent legal actions conflate “sex” with “gender identity”. For example, the way the Democrats wrote the Equality Act (EA) as changes to the CRA (PDF here), they replace the word “sex” with the phrase “sex (including sexual orientation and gender identity)“. A civil rights lawyer wrote three blog posts here that show how this conflation will undo 50 years of case law, spawn 50 years of new cases to interpret the conflation, and be a disaster for the sex-based rights of females who were intended to benefit from the CRA originally.
Another example is the Harris Funeral Homes case at the Supreme Court (Tuesday, Oct 8). Aimee Stephens worked at a funeral home and came out to their employer as a transwoman. Stephens lost their job for wearing a dress, which is against the dress code of the employer who considers Stephens to be a man. If this was simply a dress code problem, I would not be alarmed, but this case uses CRA Title VII (about employment) to argue that — under the protected category of “sex” — an employer must accept the employee’s “gender identity”.
The Women’s Liberation Front (WoLF) filed an amicus brief with the court (PDF here) that explains legal problems with this. Natasha Chart of WoLF talks about it for about 30 minutes here. I could write more, but she speaks for herself, so I’ll stop here.
WoLF will rally at the court Tuesday, and I should go to support them. WoLF will be vastly outnumbered by Trans Rights Advocates (TRAs) who think only evil people could disagree with them. That could get interesting.
Wouldn’t having different dress codes for men and women be a violation of a sex-based view of the Civil Rights Act?
Colin, that’s a logical question, so Natasha Chart answers it early in the video:
Instead, this case is about the employee arguing they can wear a dress if you let “sex” in the 1964 CRA mean “gender identity”. This is WoLF’s argument #1 in their amicus brief — “Sex” does not mean “gender” or “gender identity.”
I can’t imagine a conservative Court ruling that words (sex) no longer mean what they have always meant. Especially not in a way that could be extended to other areas. If you can radically change laws by redefining what the words mean, where would legislation from the bench end?
Perhaps they could redefine “bear arms” to include discharging arms, and invalidate all municipal ordinances restricting gunfire. And if the Court swings back, a liberal Court could redefine “arms” to refer to upper appendages only. Perhaps they could redefine “murder” to include contraception, or say that nobody can face manslaughter charges for killing a woman..
Also, which powerful corporations would benefit from this change? Half the Supremes would sell their own mothers if the money was right, but cui bono?
I was fooled into thinking this was about dress codes. The articles I read in the Guardian etc didn’t mention the case seeks to change “sex” into “gender identity” in law. That would mean provisions for pregnant women, maternity leave, single sex spaces etc etc are going to be affected, maybe even disappear.
Who is funding Aimee? How did the idea to word the case this way pop up as the plan?
Why does so much transactivism seek to undo women’s rights?
I wouldn’t pay too much attention to what is said in an amicus brief, especially from a group like WoLF that has little influence with the Court.
Papito #3 wrote:
This argument about “redefining what words mean” was used by religious conservatives during the legal debate on gay marriage with regard to the word “marriage.” It was a bad argument then because there’s really nothing in the basic concept of civil marriage which necessitates the respective sex of the partners. But there’s no doubt that trans rights proponents will capitalize on the similarity.
And it’s quite possible that the more liberal judges will think the superficial resemblance relevant. Changing “sex” to “gender (identity)” is no different than changing “marriage between a man and woman” to “ marriage between two people.” The word isn’t being redefined at all; it’s being clarified by eliminating restrictive baggage. Or so the argument goes.
It certainly doesn’t help that I think the defendant in this particular case should have been accommodated. Ethically speaking, it’s really not an employer’s job to use employees to make philosophical points.
Sorry, I read too quickly and assumed that the problematic argument was coming from the amicus brief. I gather that instead the claim is that the employee’s argument is the problem. But I’m still unpersuaded. I just skimmed the amicus brief, and it doesn’t seem to quote the employee’s brief much if at all, so it seems we’re getting WOLF’s characterization of employee’s argument, and/or the implications of Petitioner’s argument. That’s always a red flag to me: when one lawyer says “that other lawyer is arguing [plainly absurd argument]” and doesn’t back it up with a direct quote, it’s likely a strawman.
I don’t have time now to read all the main briefs, but let’s just say I’m suspicious. Especially of a group that thinks it’s effective advocacy to describe itself on the first page of a brief to the Supreme Court as “radical feminists.” Yeah, that’ll get them to keep reading….
(Yes, I know that “radical feminist” has a specific meaning in their world. But that world is not the world of the justices. The conservative justices might well buy into some of WOLF’s arguments, so why alienate them by characterizing yourself in a way that makes conservatives roll their eyes?)
I lean towards supporting the employer in this case. It’s a funeral home, not a shop or ordinary business. The people coming in are bereaved. I can see the mental strain of dealing with something very unusual being a bit of a problem for the people asking for services. How many elderly people are going to be fine, no questions asked?
That IS transphobic. But having buried 3 family members in 18 months, I can honestly say you don’t want any surprises from the funeral home.
Changing “sex” to “gender (identity)” is no different than changing “marriage between a man and woman” to “ marriage between two people.” The word isn’t being redefined at all; it’s being clarified by eliminating restrictive baggage. Or so the argument goes.
I suppose the argument continues that, just as allowing men and women to marry men and women doesn’t take anything away from women and men who have married each other, allowing whoever says they’re a lady into ladies’ rooms and the like doesn’t take anything away from people who actually are ladies. I don’t think that’s a terribly good argument, or comparison, because gay marriage doesn’t mean I have to let gays into my marriage, but redefining sex as feelings means I have to let men into my rape crisis center, women’s prison, women’s soccer team, etc, all to the detriment of actual women.
I continue to assert that this is an attempt to create legislation from the bench. If there is a political faction that wants new rights extended to transpeople, they should push to make that legislation in the House.
Also, as far as the great redefinition of marriage goes, the “Boston Marriage” was a known practice for a century before the courts made it legal.