Opinion: Supreme Court ruling redefining 'sex' affects more than a funeral home

John Bursch

The U.S. Supreme Court ruling against my client, Harris Funeral Homes, should be a concerning sign for all of us. In redefining “sex” in federal employment law to include “gender identity” and “sexual orientation,” the court signaled that Americans cannot rely on the plain meaning of the law.

That is unfair. No one should be punished under a law that changed after they relied on it. Yet, that is exactly what happened to my client, Tom Rost. He upheld a sex-specific dress code in accord with existing federal law and industry standard, but now faces punishment based on the Supreme Court’s later revision to that law.

Sadly, some will mischaracterize this ruling and argue that it means “sex” should also be changed at the local level and in other laws to include “gender identity” and “sexual orientation.” Some in Michigan are pushing to do that right now by initiative. But making that change — at the state or federal level — doesn’t ensure freedom; it threatens it … especially for women and girls.

The Supreme Court in Washington, early Monday, June 15, 2020.

Take, for example, women’s athletics. When “gender identity” is added to civil rights laws, biological boys can compete in girls’ athletics, taking away awards and scholarship opportunities. This has already happened in Connecticut, where two boys who identify as female took 15 girls’ state track-and-field titles and kept girls from competing at their state’s highest levels and before college recruiters. When girls’ parents questioned officials about the fairness of this, they were told that girls have the right to participate but not to win.

That is hardly the level playing field intended by laws that ban “sex discrimination” to ensure equal opportunities for women.

The unmooring of “sex” from biology also means men can access women’s showers, locker rooms and overnight accommodations, including in schools and shelters. Recently, Anchorage, Alaska, used a “gender identity” law to try to force a women’s shelter to let a man who identifies as female sleep mere feet from women who have survived rape, trafficking and other abuse.

These consequences don’t stop there. We’ve seen altered civil rights laws weaponized to harm individual employees and business owners. In addition to Tom Rost, that is also what happened to Kelvin Cochran, who was fired from his position as the Atlanta fire chief after years of accolades because, in his free time, he wrote a book for his men’s Bible study in which he indicated that he believed marriage is between one man and one woman.

Or consider Barronelle Stutzman, a floral artist in Washington state who stands to lose everything she built over her more than 70-year lifetime because, after serving a same-sex couple for over 10 years — creating custom arrangements for their anniversaries, birthdays and other events — she respectfully referred them to another florist for custom floral arrangements celebrating their same-sex wedding ceremony.

Even those focused on helping individuals with gender dysphoria are at risk of punishment. Dr. Alan Josephson, the head of child psychology at University of Kentucky, was demoted and then fired after he publicly warned against rushing into affirmative treatment for gender dysphoria. He contended that doctors should proceed slowly and deliberately with children exhibiting signs of gender dysphoria to ensure each child receives the tailored treatment they need.

As these cases show, disagreement about what it means to be male and female, or about what marriage means, is not discrimination — it is true diversity. And blindly changing these laws can hurt many people. No one wins when activists and unelected officials seek to codify one side of this social debate while marginalizing the other.

The Supreme Court’s decision marks a radical change to federal law. I hope that the citizens of Michigan do not do the same on the state level. The historic ban on “sex discrimination” has ensured equal opportunities for women and girls, and consistency for employers. It should continue to do both.

John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom (@AllianceDefends), and argued Harris Funeral Homes’ case before the U.S. Supreme Court. Bursch served as Michigan’s solicitor general from 2011-13.