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Gorsuch sends mixed signals during Supreme Court arguments on redefining sex discrimination

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WASHINGTON, D.C., October 8, 2019 (LifeSiteNews) – The U.S. Supreme Court heard oral arguments Tuesday about whether long-standing anti-discrimination laws should be reinterpreted to cover homosexuality or gender confusion in a case that could have drastic ramifications on religious liberty as well as whether Americans will be forced to adopt a “fluid” understanding of biological sex in scores of policies. 

The case consolidates several separate cases into one, including that of 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 as well as conservative groups.

During Tuesday’s arguments (transcripts here and here), lawyers representing both sides addressed the justices, whose questioning did not conclusively signal how they would ultimately vote but largely conformed to expectations. 

“We can't deny that homosexuals are being fired merely for being who they are,” Justice Sonia Sotomayor asserted. “At what point does a court say, Congress spoke about this ... and regardless of what others may have thought over time, it's very clear that what's happening fits those words?”

During cross-examination, Justice Samuel Alito got Stanford law professor Pamela Karlan to concede that sex and sexual orientation were two distinct concepts, but Karlan maintained that discrimination against the latter was still a “subset” of discrimination against the former.

Alito also expressed concern that, by siding with the LGBT side, the Court would be “deciding a major policy question that was not in Congress' mind in 1964.” 

“The Equality Act is before Congress right now. Congress has declined or failed to act on these requests. And if the Court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature,” Alito said, predicting the criticism of such a ruling. “We might as well just take the Equality Act and issue that as our opinion.”

The court’s newest member, Justice Brett Kavanaugh, only spoke once during the hearing, to ask attorney Jeffrey Harris to clarify the meaning of his usage of the phrase “because of sex.” Kavanaugh did not follow up, however, leaving no indication in either direction as to his take on the case.

With so little to go on from the rest of the justices, President Donald Trump’s first nominee, Justice Neil Gorsuch, appears to have captured the bulk of onlookers’ attention for questions that appeared to sympathize with aspects of both sides’ arguments. 

At one point, Gorsuch seemingly agreed “that at least one contributing cause appears to be sex” in the case of the fired skydiving instructor, and at another he expressed concern for the “massive social upheaval” that could result from siding in his favor, and whether the issue would be better resolved by the legislative branch than by the courts.

“Americans should be able to rely on what the law says,” Alliance Defending Freedom vice president of appellate advocacy John Bursch said in a statement. “Redefining ‘sex’ to mean ‘gender identity’ creates chaos, is unfair to women and girls, and puts employers in difficult situations. Title VII and other civil rights laws, like Title IX, are in place to protect equal opportunities for women; changing ‘sex’ to mean ‘gender identity’ undermines that.”

If the LGBT lobby succeeds in getting the Supreme Court to redefine Title VII – or if Congress and a future president accomplish the same result legislatively by enacting 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 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).

“This decision will impact public schools, employers, business owners, employees, and churches,” NC Values Coalition executive director Tami Fitzgerald warned outside the Supreme Court on Tuesday. “Blurring the binary concept of male and female detracts from the fundamental purpose of both Title VII to ensure that male and female employees have equal employment opportunities.”

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