Legal Docket: LGBT vs. religious liberty

NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 9th of September, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Today, the most significant LGBT versus religious liberty case of this year’s Supreme Court term.

It’s gotten quite a lot of attention and when the justices hear the case in October, it’ll attract lots more. It’s called R.G. & G.R. Harris Funeral Homes, Inc v. Equal Employment Opportunity Commission.

I find oftentimes that the narrower the issue, the more controversial that it is. This one is narrow and the question presented involves the hotly disputed definition of a single word: the word “sex” in the Civil Rights Act of 1964. Does it include transgendered individuals, or doesn’t it? 

And that question goes far beyond the facts of this particular case.

EICHER: Facts do provide some context, though. 

So here’s the background. 

Tom Rost owns a small chain of funeral homes in Michigan. His grandfather started the business back in 1910. 

For his part, the grandson considers the business an extension of his Christian faith to help people in their grief.

How his employees dress is part of his business plan, and it does comply with federal law: a dark suit and tie for men, a dark skirt suit for women.

Rost hired Anthony Stephens as his funeral director, and over the next six years of employment, Stephens received positive reviews and pay raises.

But in 2013, Stephens told Rost he would start using the name “Aimee,” and would present himself as a woman and wear female attire to work.

REICHARD: If you ask Rost, this was what marked the beginning of a legal saga now six years and running. Rost takes the position that decorum and respect for grieving families is the crucial value proposition in his business. Stephens is obviously male and he must dress professionally, as a man, according to the company dress code. Stephens had agreed to that dress code at the beginning of his employment and had always complied with it. 

Until, that is, that moment in 2013.

So Rost terminated Stephens but not without a severance package.

Stephens refused the severance and fought the firing. He got in touch with EEOC, the Equal Employment Opportunity Commission in Washington, and filed a sex-discrimination complaint.

EEOC backed Stephens. The agency found that Rost had engaged in illegal discrimination. How it arrived at that conclusion is at the heart of the case.

It used a definition of the word “sex” to mean something it did not mean when Congress passed the law governing here: Title VII of the Civil Rights Act of 1964.

Now, the relevant part of Title VII in this case prohibits discrimination by certain employers “on the basis of sex….” It says nothing about transgenderism.

EICHER: But EEOC had reasoned that Supreme Court precedent in other cases expanded the definition of sex discrimination to cover those claiming gender dysphoria. 

The U.S. Court of Appeals for the Sixth Circuit went along. That court agreed with the EEOC that Title VII does include transgendered individuals. 

So Rost appealed to the court of last resort: the Supreme Court.

REICHARD: This is a more complex case than it may seem on the surface. It’s going to take two reports to set this one up. 

Next week on Legal Docket, I plan to present the legal position of Anthony, now Aimee, Stephens, and only that legal position. It will be by design a one-sided report.

But if you put that together with today’s one-sided report, my hope is that you will have a complete picture going into the oral arguments next month.

Today, I will present to you the views of three parties who filed briefs in support of Tom Rost.

First, Anita Milanovich. She practices law in Montana and she has a particular interest in women’s sports. Milanovich says that if the court decides in favor of Stephens, she says biologically female athletes will pay the price.

I asked her to start by sorting out the different “Titles” we hear so much about. The funeral home case is about Title VII, which relates to employer discrimination.

MILANOVICH: But what a lot of people may not know is that Title IX is interpreted often in the same manner that Title VII is in relation to discrimination. So Title VII, relating to employment.  Title IX, relating to education. And in particular our emphasis was on sports. So we see a direct relationship between the outcome of this Title VII case with a future outcome for discrimination in the Title IX context.

Title IX, education, specifically relating to female student athletes. Remember I made the point that the outcome of this particular case goes far beyond its facts?

MILANOVICH: So historically, you know, 1 in 27 women participated in sports prior to Title IX and now that has exponentially increased … participation went from about 300,000 female athletes to now over 3 million female athletes as a result of Title IX.

Suppose the Supreme Court in this case confirms that “sex” has no scientific biological and genetic meaning, but is trumped by an individual’s subjective self-perception. Milanovich says that means bigger, stronger biological men can compete against women for valuable scholarships.

MILANOVICH: I think the motivation for women to participate, the drive to compete may diminish simply because they know that their opportunities to move on or to win that gold medal or to, you know, to pursue their athletic goals is undermined when the best that they can do can never compare to the best that these these transgender athletes are able to put forward.

That’s women’s sports. But a loss for Tom Rost’s funeral business may well have repercussions for all businesses.

I talked to a man with deep knowledge of how business owners must operate to keep in step with the law.

Michael Sharrow heads up C12 Group. This is an organization that helps Christian business owners and executives live out their faith at work.

SHARROW: So honestly, the biggest perplexion has not been how do you deal with people who have different sexual orientations? That’s always been a factor in the workplace. It’s been this sudden, almost fear, of is there this unspoken liability that the business is supposed to somehow change, how we operate, accordingly? It feels like a moving target for them. 

So I think right now there’s a lot of chaos around it. Hey, we’re just trying to run our businesses. And it seems like their rulebook’s maybe being redefined in the air.

Sharrow says responsible business owners are careful to have systems and processes in place that are legally vetted and that actually work. Handbooks, HR policies, everything is set, and business owners need to know those are solid.

SHARROW: So for instance if the registering of an employee or a customer, you know, you gotta be careful about is that a man or a woman, and that man or woman election can become dynamic. It can change. 

Well, that could then put me in a spot where like, ‘Whoa, my records were right. What if my records are not right now?’ And how do I have a constant changing of those? And how do I watch how I speak?

Businesses need stability in the law in order to succeed, and the transgender revolution is creating chaos — and that’s compounded for businesses trying to compete globally.

SHARROW: A lot of businesses have multinational workforces where you have people from all different language groups. And even something as simple as having to train or regulate around dynamic pronouns when some languages don’t have the fluidity of pronouns we’re trying to be coerced into adopting. It literally creates a communication challenge for a lot of our companies that have got very, very diverse workforces.

Health-care and medical businesses would face new problems, because biological science dictates specific treatment approaches.

SHARROW: Are your hormone levels right. Are your iron levels right? All those kinds of things actually vary greatly if you’re a boy or girl. Well, if intake forms and lab data pieces lose their pronoun fidelity, it literally creates a question for doctors, nurses and healthcare data analytic companies. How do I know that I’m making the right judgment on data? Like I could make a malpractice decision, unintentionally.

Even if you’re not in the health business, you’re still likely to provide health benefits …

SHARROW: Do I report to the health insurance company my employee workforce based upon their gender identity or their biological gender? And do I need to now bifurcate those in my systems, because I could literally violate my underwriting contract with health insurance, claiming a certain gender ratio that’s not true.

Will I be now required to cover transgender surgery services, the lifetime of pharmacology in drugs or hormone treatments it takes to maintain those treatments afterwards or the consequences of that? Like have I just kind of adopted now a medical responsibility for what would otherwise be classified as elective surgeries?

Sharrow had other worrisome scenarios: within his organization, hundreds of business owners have gone through the process of becoming classified as a “woman-owned business enterprise.” That designation privileges historically under-represented female entrepreneurs. If you obliterate the sex distinction, you potentially obliterate the remedy. 

Then finally, I called up the firm representing Tom Rost and the funeral home, ADF, Alliance Defending Freedom. 

Kate Anderson is one of the lawyers on the case. 

She says this matter of redefining what “sex” means isn’t the job of the courts. It’s for Congress to debate and decide as representatives of the people.  

And even though it’s not a religious liberty case on its face, it still affects religious liberty.

ANDERSON: Certainly religious organizations are one of the groups that are impacted by a change like this. Because you can think of many nonprofits, religious nonprofits, churches, other organizations that do adhere to the belief that there are men and there are women. And that that’s biblically based. And if they are forced to adopt a version of that that says gender identity is really what we have in society, then that violates their beliefs and their ability to pursue their mission.

That’s the position of the funeral home owner, Tom Rost.

Many of the more liberal media outlets I’ve read are framing the funeral home case as a simple matter of respecting the dignity and wishes of the transgendered person, Anthony Stephens, now Aimee Stephens.

And of course those who suffer gender dysphoria are deserving of dignity and respect, as human beings made in God’s image.

But a rule-of-law principle is that courts and government agencies must not take matters into their own hands and unilaterally define things to mean what they don’t say in the law. That’s the job of Congress, the representatives of the people, after debate, after hearing from those who will be adversely affected by any changes in the law.

And that means hearing from biological women who’ve come a long way, baby, and don’t want to go back.

And that’s this week’s Legal Docket. 

(AP Photo/Patrick Semansky, File) In this May 23, 2019 file photo, the U.S. Supreme Court building at dusk on Capitol Hill in Washington.

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