DOJ Takes a Stand: Sex Is Purely Biological, Civil Rights Act Doesn't Protect Transgenders


The Trump administration’s Justice Department urged the Supreme Court to rule that the Civil Rights Act of 1964, which bars discrimination based on “sex,” does not include “gender identity.”

The DOJ’s brief filed Friday in the R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission case contended it is the role of Congress, not the courts, to amend the law to include gender identity, if it chooses to do so.

Aimee Stephens, a biological man who identifies as a woman, filed a complaint with the EEOC in 2014 for wrongful termination against R.G. and G.R. Harris Funeral Homes, claiming unlawful discrimination based on sexual identity.

The funeral home dress code has certain requirements in accordance with industry standards for men and women. Nevertheless, the EEOC determined the funeral home discriminated against Stephens by requiring its employee to dress as a man.

A federal district court ruled in the funeral home’s favor in 2016; in March 2018, however, the 6th U.S. Circuit Court of Appeals found Stephens was wrongfully fired.

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U.S. Solicitor General Noel Francisco argued in the government’s brief that the language in the Civil Rights Act is clear.

“In 1964, the ordinary public meaning of ‘sex’ was biological sex,” he wrote. “It did not encompass transgender status, which Stephens and the Sixth Circuit describe as a disconnect between an individual’s biological sex and gender identity.”

“In the particular context of Title VII — legislation originally designed to eliminate employment discrimination against racial and other minorities — it was especially clear that the prohibition on discrimination because of ‘sex’ referred to unequal treatment of men and women in the workplace,” added Francisco.

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The solicitor general went on to note that thus far, Congress has “consistently declined” to expand the Civil Rights Act to include gender identity.

R.G. and G.R. Harris Funeral Homes’ counsel, John Bursch with Alliance Defending Freedom, wrote in a brief also submitted Friday that Stephens’ view “drastically expands the meaning of sex discrimination and rewrites Title VII to add protected categories that Congress never included, all without advance notice to employers.”

Further, Bursch wrote his client “would have responded to a female employee who insisted on dressing as a man while working with grieving families the same way it responded to Stephens. Because it does not disfavor one sex compared to the other, Harris does not discriminate based on sex.”

The feminist Women’s Liberation Front filed an amicus brief urging the Supreme Court not to expand the definition of “sex” to include gender identity.

“WoLF’s interest in this case stems from its interest in protecting the safety and privacy of women and girls and preserving women’s sex-based civil rights,” the brief reads.

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The group argued women’s constitutional rights are being threatened by the embrace of “the vague concept of ‘gender identity.'”

“Legally redefining ‘female’ as anyone who claims to be female results in the erasure of female people as a class,” the Women’s Liberation Front said. “If, as a matter of law, anyone can be a woman, then no one is a woman, and sex-based protections in the law have no meaning whatsoever.”

Another amicus brief was filed by the Independence Law Center on behalf of Dr. Paul McHugh, the University Distinguished Service professor of Psychiatry at the Johns Hopkins University School of Medicine.

The brief reads that the doctor “seeks to discuss the frequently heard claims about gender identity, which sometimes masquerade as science but are really ideological pronouncements not supported by scientific evidence.”

Independence Law Center senior counsel Jeremy Samek wrote in an email to The Western Journal, “We filed the brief on behalf of Dr. McHugh to highlight the dangers of ideology masquerading as science.”

“The biological nature of binary sex is fact, and manipulating healthy bodies to fit the mistaken beliefs of the mind is harmful,” he added.

John Knight, Stephens’ attorney with the American Civil Liberties Union, stated in a brief to the court that his client was fired “because of sex.”

Knight elaborated, “but for the employee’s sex, the employee would not have been fired,” as he called for the Supreme Court to uphold the 6th Circuit’s ruling.

The Washington Examiner reported the Supreme Court will hear oral arguments in the case after the start of its new term in October.

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Randy DeSoto has written more than 2,000 articles for The Western Journal since he joined the company in 2015. He is a graduate of West Point and Regent University School of Law. He is the author of the book "We Hold These Truths" and screenwriter of the political documentary "I Want Your Money."
Randy DeSoto is the senior staff writer for The Western Journal. He wrote and was the assistant producer of the documentary film "I Want Your Money" about the perils of Big Government, comparing the presidencies of Ronald Reagan and Barack Obama. Randy is the author of the book "We Hold These Truths," which addresses how leaders have appealed to beliefs found in the Declaration of Independence at defining moments in our nation's history. He has been published in several political sites and newspapers.

Randy graduated from the United States Military Academy at West Point with a BS in political science and Regent University School of Law with a juris doctorate.
Harrisburg, Pennsylvania
Graduated dean's list from West Point
United States Military Academy at West Point, Regent University School of Law
Books Written
We Hold These Truths
Professional Memberships
Virginia and Pennsylvania state bars
Phoenix, Arizona
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Politics, Entertainment, Faith