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Trump admin files SCOTUS brief against redefining sex discrimination to bar trans hiring decisions

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August 20, 2019 (LifeSiteNews) – The Trump administration lent its weight Friday to the upcoming Supreme Court case on whether long-standing anti-discrimination laws should be reinterpreted to cover homosexuality or gender confusion, filing a brief on behalf of a Christian funeral home that fired a male employee who insisted on dressing as a woman on the job.

The case, which the Court will hear on October 8, consolidates three separate cases into one: the funeral home case; the case of a skydiving instructor who was fired after informing a customer he was gay; and that of 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, CNN reported.

This case does not concern whether, as a matter of policy, Title VII should forbid discriminating on the basis of transgender status,” U.S. Solicitor General Noel Francisco argued in the brief. “Congress has made that policy choice in other statutes, expressly addressing gender-identity discrimination separately from sex. It has yet to make a similar decision with respect to Title VII, either in 1964 or at any point since.  

“As it stands, Title VII prohibits treating an individual less favorably than similarly situated individuals of the opposite sex,” Francisco continued. “It simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”

Siding with the Trump administration, Alliance Defending Freedom (ADF) senior counsel John Bursch wrote at National Review that not only does the ACLU and 6th Circuit’s position conflict with the law, it would “cause problems in employment law, reduce bodily privacy protections for everyone, and erode equal opportunities for women and girls.”

“The meaning of ‘sex’ depends on the term’s public meaning in 1964, the year Congress enacted Title VII,” Bursch argued. “There is little dispute that, in 1964, the term 'sex' was publicly understood, as it is now, to mean biological sex: male and female. After all, the term 'gender identity' wasn’t even part of the American lexicon at the time. Its first use was at a European medical conference in 1963. And no semblance of it appeared in federal law until 1990.”

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).

Since President Donald Trump nominees Neil Gorsuch and Brett Kavanaugh were confirmed, the Supreme Court has delivered social conservatives a modest victory on anti-Christian discrimination and allowed the Trump administration’s ban on transgender soldiers to take effect, but neither was a definitive ruling on the core legal questions of either case. The October case will be the new justices’ first major test on LGBT issues.

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