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Conservatives file briefs to defend biological reality in Supreme Court Title VII case

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WASHINGTON, D.C., September 12, 2019 (LifeSiteNews) – As the U.S. Supreme Court prepares to consider whether long-standing anti-discrimination laws should be reinterpreted to cover homosexuality or gender confusion, conservative groups are filing amicus briefs articulating the importance of ensuring the government does not impose a “fluid” understanding of biological sex on the rest of the country.

The case, which the Court will hear on October 8, consolidates three separate cases into one: a Christian funeral home that fired a male employee who insisted on dressing as a woman on the job; a skydiving instructor who was fired after informing a customer he was gay; and a county child welfare services coordinator who was fired after his employer learned he was gay. All hinge on whether Title VII of the 1964 Civil Rights Act extends its non-discrimination protections to the categories of sexual orientation or “gender identity.”

In March, the 6th Circuit Court of Appeals ruled that Title VII’s prohibition of “employment discrimination based on ... sex” covers not just biological sex but whatever sex an individual feels themselves to be. Sixteen states have filed an amicus brief urging the Supreme Court to reverse the 6th Circuit’s decision, as has the Trump administration.

This week, Ethics and Public Policy Center president Ed Whelan has highlighted several noteworthy amicus briefs filed in the upcoming case, which speak to the core question and potential ramifications of the issue.

One brief, filed by Heritage Foundation senior research fellow Ryan Anderson, argues that those seeking to redefine Title VII are attempting to impose a meaning that is wholly alien not only to its long-standing understanding but the Supreme Court’s own prior conclusions.

“As this Court explained in Oncale v. Sundowner Offshore Services, Inc., Title VII requires ‘neither asexuality nor androgyny,’” he wrote. “It requires equality and neutrality. It forbids double standards for men and women — policies that disfavor at least some individuals of one sex compared to similarly situated members of the other.”

By contrast, “Respondents and their amici urge the Court to adopt a theory of sex discrimination that would rule out (as discriminatory) any policies that advert to sex, rather than only those sex-related policies that result in ‘disparate treatment of men and women,’ where members of one sex suffer under ‘disadvantageous terms’ that the other does not. That would lead to asexuality and androgyny.”

“Adopting Respondents’ theory … would require either the elimination of all sex-specific programs and facilities or allow access based on an individual’s subjective identity rather than their objective biology,” Anderson argues. “That Respondents and their amici are evasive about which of these outcomes is required by their theory is telling. Making its implications explicit would prove decisively that their reading is unsound.”

In another brief representing more than a thousand athletes and parents who would be affected by a pro-LGBT outcome, the conservative Independent Women’s Forum (IWF) warn that redefining Title VII would have a devastating impact on girls’ and women’s athletic programs.

“In the short term, a ruling in favor of Respondents will reduce the number of athletic opportunities for biological women and girls,” IWF argues. “In the long run, it will undermine the legal justification for maintaining any sex-specific athletic teams and may result in the elimination of women’s sports altogether.”

“Prior to the passage of Title IX, only one in 27 girls participated in organized sports,” the brief says. “Today, two in five participate.” With this dramatic expansion, “the female share of athletic scholarships has also risen. Forty-five years ago, almost no such scholarships existed. But as of 2012, almost 200,000 women played college sports, and many on scholarship.”

However, they warn, a “ruling that prevents distinctions based on biological sex will lend credence to the movement to eliminate sex-specific sports altogether (...) Although the effort to eliminate sex-specific athletics may seem like a fringe movement, a ruling in favor of Respondents in this case might very well achieve this objective through the backdoor.” 

“If schools are required to allow male-to-female transgender athletes to compete on women’s teams, there is no logical reason to prohibit any male athletes from participating on women’s teams,” IWF argues. “Eventually, a ruling in favor of Respondents would require that all athletic teams be co-ed. Is there any doubt that if schools offer only one co-ed ice hockey team or one co-ed soccer team, female athletes will lose opportunities to play?”

Whether the LGBT lobby succeeds in redefining Title VII by judicial fiat or by legislation such as the so-called Equality Act, conservatives warn that the change would do far more than merely protect homosexual or gender-confused Americans from tangible harm.

Rather, it would likely force other Americans such as photographers, florists, and bakers to participate in same-sex “weddings;" force employers and businesses to fund practices like sex-change treatments regardless of their own values or policies; and to force women and girls to share sleeping quarters, showers, changing areas, and restrooms with gender-confused males (or “cis” men merely claiming trans status to get easy access to vulnerable women).

The Title VII case is expected to be the first major test on LGBT issues for President Donald Trump’s two nominees to the nation’s highest court, Justices Neil Gorsuch and Brett Kavanaugh.

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