16 states ask Supreme Court to reverse addition of gender confusion to ‘sex discrimination’

The governors and attorneys general of 16 states are asking the U.S. Supreme Court to reverse a lower court’s judgment this year that gender-confused individuals are covered by the Civil Rights Act.

The 6th Circuit Court of Appeals ruled in March that Title VII of the 1964 law, which was passed to end racial segregation and hiring discrimination on the basis of race, sex, religion, ethnicity, or national origin, also extends to employees who wish to “identify” as the opposite of their biological sex.

The case was sparked by a Detroit funeral home that fired a male employee who wanted to present himself as a woman while on duty, in defiance of the home’s dress code. “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex,” Judge Karen Nelson Moore ruled.

On August 23, the states of Alabama, Arkansas, Kansas, Kentucky, Louisiana, Maine, Mississippi, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming filed an amicus brief calling on the nation’s highest court to reverse the 6th Circuit’s judgement, The Hill reports.

“The States’ purpose is to note that ‘sex’ under the plain terms of Title VII does not mean anything other than biological status,” the brief says. “Unless and until Congress affirmatively acts, our Constitution leaves to the States the authority to determine which protections, or not, should flow to individuals based on gender identity. The Sixth Circuit ignored this fact and essentially rewrote federal law, engaging in policy experimentation. “

It argues that the 6th Circuit failed to “apply basic canons of statutory interpretation” meant to guide courts to the ordinary meaning and original understanding of a statute’s language, which would have led them to recognize that the Congress of 1964 meant “sex” to mean only biological sex, and had no intention of incorporating 2018 notions of transgender ideology.

“The term ‘gender identity,’ or as the Sixth Circuit labels it, ‘transgender’ and ‘transitioning status,’ are not found in the text or legislative history of Title VII,” the brief notes. It also highlights the fact that “gender identity” referred “more to social and cultural roles” at the time, and was a distinct concept from the one being considered by Congress, biological sex.

“Replacing ‘sex’ with ‘gender identity,’ as the Sixth Circuit and the EEOC have done, is a dramatic change,” Alliance Defending Freedom (ADF) senior counsel Jim Campbell said in July. “What it means to be male or female shifts from a biological reality based in anatomy and physiology to a subjective perception. Far-reaching consequences accompany such a transformation.”

ADF also argued that one of those consequences could undermine the original purpose of Title VII, ensuring equal opportunities for actual women.

“Employment reserved for women—like playing in the WNBA or working at a shelter for battered women [...]—now must be opened to males who identify as women,” ADF explained. “The same is true of sports and educational opportunities under Title IX. The Sixth Circuit’s ruling impedes women’s advancement.”

The dispute echoes the Trump administration’s reversal last year of ex-President Barack Obama’s direction that federal agencies interpret Title VII to cover “gender identity” and “transgender status.” 

Pro-LGBT activists, who have been pressuring states and private businesses to enforce acceptance and promotion of homosexuality and transgenderism among private citizens, saw both Obama’s move and the 6th Circuit ruling as milestones in their efforts.

The Supreme Court is expected to decide whether to take the case sometime in the coming months.