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Unpacking SCOTUS’s Redefinition of “Sex”

On June 15, 2020, the U.S. Supreme Court issued a ruling in Bostock v. Clayton County, Georgia saying that “sex” in federal anti-discrimination law included “sexual orientation” and “gender identity.” As NC Family shared with you, this ruling by our nation’s highest court could have disastrous ramifications for religious freedom, freedom of speech, personal privacy, and much more.

Our friends at Alliance Defending Freedom represented one of the defendants in Bostock, and ADF senior counsel Matt Sharp joins NC Family President John Rustin on this week’s episode of the Family Policy Matters radio show and podcast to unpack the Supreme Court’s ruling, and to discuss the effect it will have on our nation.

Sharp argues that the majority of the U.S. Supreme Court took over Congress’s role in this ruling, by legislating and changing the law instead of interpreting the law. “Ultimately this boiled down to a, ‘Do we follow the law as it’s been on the books for 60 years, and if law needs to change, then that’s the job of Congress,’” says Sharp, “or ‘Do we allow the courts to step in and rewrite the law to their preferred policy preferences so that people have no idea what to expect?’”

The ramifications of SCOTUS’s ruling cannot be overstated, argues Sharp. Teachers could lose their jobs if they fail to use their students’ desired pronouns, and women’s shelters could be sued for refusing to allow biological males to sleep in the same room as women fleeing sex trafficking or abuse. Finally, “There are going to be cases over whether religious organizations can continue to hire people that do not just affirm and say that they share their faith, but live it out day in and day out.”

Tune in to Family Policy Matters this week to hear Matt Sharp unpack SCOTUS’s dangerous ruling redefining “sex.”

Family Policy Matters
Transcript: Unpacking SCOTUS’s Redefinition of “Sex”

JOHN RUSTIN: Well, welcome everybody. Our guest today is Matt Sharp, Senior Counsel with Alliance Defending Freedom, a national alliance-building legal organization that advocates for the right of people to freely live out their faith. Matt is a great friend and ally of NC Family and directs ADF Center for Legislative Advocacy. As you’ll see during our discussion, he is an accomplished attorney with a very keen legal mind.

Matt, welcome, and thanks for being with us today.

MATT SHARP: Thanks for having me on, John.

JOHN RUSTIN: Well Matt, this past Monday, June 15th, the U.S. Supreme Court issued a groundbreaking opinion in a very important case entitled Bostock v. Clayton County Georgia. In fact, this case was a combination of three separate, but related cases, dealing with employment law and claims of discrimination under Title VII of the Civil Rights Act of 1964. The defendant in one of those cases, Harris Funeral Homes, is actually a client of ADF, and we’ll talk about that in a moment. But the bottom line here is that our nation’s highest court—in what many have characterized as an act of judicial activism, even judicial tyranny, and certainly legislating from the bench—essentially redefined the word “sex” to include special legal protections on the basis of an individual’s “sexual orientation” and “gender identity.” Surprisingly, Justice Neil Gorsuch authored the majority opinion, and Justice Alito responded with a scathing rebuke in a dissent that was joined by Justice Clarence Thomas, and also Justice Brett Kavanaugh wrote his own dissent. Again, we’ll jump into the details of the opinion in just a minute, but Matt, before we do that, I’d like for you to take just a few minutes to tell us about your client, Harris Funeral Homes, and how in the world we got to this place.

MATT SHARP: This is a great Christian family. They’ve had this funeral home in their family for several generations. They work on dealing with people at the very worst times of their lives, of grieving over a loved one. And part of their practice was they want everyone that works at their funeral home to be dressed very nicely and appropriately. And so, they wanted the men to be wearing a nice suit, and women to be wearing a nice dress. Well, the Rost family had a longtime employee, biological male, that announced that he was going to be identifying as a female, Amy Stevens, and that he wanted to start wearing a dress as part of this dress code. And the Rost family replied, “Look, what you do on your own time is your business, but when you work for us, males need to wear a suit, and females need to wear a dress.”

This had always been the law. This federal law that bans sex discrimination in employment has said, “Although you have to treat males and females equally, you can have sex-specific dress codes.” And so, that’s what the Rost family was doing. Well, when Stevens didn’t like that, and they parted ways, and the next thing you know, they find themselves being sued for sex discrimination. And the argument was because you treated me differently because of my gender identity, because I wanted to identify as a woman rather than a man, you discriminated based on my sex, and you are now liable. Well, again, the Rost family was following the law as it had been on the books for decades, and yet find themselves being dragged into court and accused of sex discrimination for simply requiring a biological male employed by them to wear a suit while on the job.

JOHN RUSTIN: So Matt, what were the primary legal questions before the Supreme Court in this case not just related to your client, but also the other two cases that were combined with it?

MATT SHARP: Yeah. So, the other two cases dealt with employees that had been terminated, and the claim was that they had been terminated because of their sexual orientation. So, you have our client where the claim was you discriminated based on my gender identity; the other two were sexual orientation. And all of these were lumped together with the argument that Title VII’s ban on sex discrimination, which has been on the books for 60 years, now applies to sexual orientation and gender identity. And so, these were the arguments going up to the Supreme Court, and the response to ADF and the others in these cases who were making a defense was saying, “Look, when Congress passed Title VII in 1964, everyone knew what they were trying to do. They didn’t want a woman being terminated or denied a promotion because she was a woman. They wanted men and women to be treated equally.” No one would have thought that this was meant to deal with sexual orientation or gender identity. And yet that’s exactly what the other side was pushing or telling the court, “You need to reinterpret this. You need to change this law with the times.” And so, ultimately this boiled down to a, “Do we follow the law as it’s been on the books for 60 years, and if law needs to change, then that’s the job of Congress,” or “Do we allow the courts to step in and rewrite the law to their preferred policy preferences so that people have no idea what to expect?” Like the Rost family, you can follow the law that’s been on the books for 60 years, then find yourself in violation for doing exactly what you’ve always done.

JOHN RUSTIN: So Matt, was the opinion what you expected, or was it a complete surprise?

MATT SHARP: This was a surprise to a lot of us for a couple of reasons. Number one, that it was Gorsuch as the author. He has traditionally been very good on these issues, but also very principled. You know, when you apply the right principles, you get solid outcomes, and traditionally he had done so, and to see him author this opinion caught a lot of us off guard. I think even more troubling in a lot of ways was how he got to it. So, for example, when you look back at, you know, Obergefell and those cases where you had Justice Kennedy, he wasn’t trying to ground it in what the law said. He just, you know, would say, “I’m creating a right to same-sex marriage, and this is required by giving dignity to people.” And we look at it and say, “Look, you know, it’s frustrating, and you’re creating principals out of whole cloth, and you’re abandoning legal principles.” But what Gorsuch did was try and take originalism principles—things we as conservatives often agree with you know, from Scalia and others—and just as you said, sort of twist them to reach his intended goal. And this is what Justices Alito and Kavanaugh really hit him hard for to say, “This is not originalism. This is not textualism. And this is not how we interpret the Constitution or these federal laws.” Because again, it’s as simple as what did the people that enacted Title VII intend, and not a single one of them intended this to allow a man to wear a dress at the job. None of them would have viewed it that way. And so it’s a shock both that it came from Gorsuch, and that it was sort of twisting these principles to reach this end goal in a way that is really inconsistent with the right way to interpret laws.

JOHN RUSTIN: It definitely raises a lot of questions for the future, not only the implications and potential and likely impact of this opinion in and of itself, but the Court moving so drastically in this direction and certain members of the Court doing so that we’re not expected to do that. So, wow, it just creates kind of a seismic unrest in a lot of people’s hearts and minds. You’ve mentioned on a couple of occasions, the dissenting opinions of Alito and Kavanaugh. Of one particular note, Justice Alito said, “As the briefing in these cases has warned, the position that the court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.” Again, he talks about freedom of religion, freedom of speech, and personal privacy and safety being at risk. This really suggests that the scope and implications of the opinion will extend far beyond just employment law and even just the Civil Rights Act. How do you think it will impact religious liberty, speech, personal privacy and safety, and other areas of our lives? I know that’s a broad question, but I think that’s the big question that individuals, that people of faith in particular, across the country are seeking an answer to.

MATT SHARP: Yeah, absolutely. Let me give three examples that will cover all of those. ADF is going to continue fighting on this; we are not giving up ground. But one example is going to be religious freedom. Let’s talk about religious organizations and their ability to hire people that share their mission and values. You can take a private religious school. They want all of their employees from the headmaster and teacher to even the janitor and secretary answering the phones to share their Christian beliefs and values. They do that because that’s what the families attending that school want. If under this opinion, a private Christian school was told, “You have to hire someone that is a male that claims a female identity and wants to identify as such on the job around these kids every day; you must do so.” Now there is an exemption under Title VII that says religious organizations can hire people that share their religion, but the question that Alito was talking about was—which is it—is this the right of the religious organization to say, “As part of hiring people that share a religion, you must live out the religion every day in all that you do,” or as the other side is going to say, “No, this is not religious discrimination; this is gender identity discrimination, and that is impermissible.” So, there are going to be cases over whether religious organizations can continue to hire people that not just affirm and say that they share their faith, but to live it out day in and day out. So, I think that’s the scenario, big scenario with religious liberty.

We talk about free speech pronouns. We have cases ongoing right now where college professors, teachers are at risk of losing their job because they refused to use inaccurate, false pronouns for one of their students. And sometimes this even extended outside of the school day. Whereas, you know, if I bumped into one of my students at the grocery store, the school was saying, “If Johnny says he’s a girl, you must call Johnny, ‘Ms.’” To which the professor says, “No, I’m speaking untruth; you are forcing me to speak a lie to use that false pronoun.” But under this, you could argue and say, “Well that’s, you know, a hostile work environment unless you force all of your employees to use inaccurate pronouns to affirm that which they don’t believe is true.” So in terms of speech, I think there’s a lot of things like that.

Other scenarios like Fire Chief Kelvin Cochran, one of our clients in Atlanta where I’m based, who was fired because he wrote a men’s devotional book that covered sexual orientation and God’s plan for marriage. So, lots of issues with that.

And then the final one you mentioned was privacy and safety. All of this goes to scenarios like a women’s shelter—can a women’s shelter turn away a man that identifies as a woman, or must they allow that man to come in and use the same showers, sleep in the same bedding arrangements, and all of that? That puts the privacy and safety of the women, many of whom may be fleeing sex trafficking or abuse, at risk. And I think that’s just three of the ongoing cases ADF has been involved in. There’s just so many things that are implicated by this because religious people, people of faith, it is not hostility towards LGBT, but rather it is us saying, “We have a duty first and foremost to God, and we hold fast to those Scriptures and the teachings on all of this.” And now those very teachings, those very beliefs, can become a basis to hold that boss liable, to take him to court. That is going to have a very self-censoring effect, I think, on a lot of people of faith. They may say, “Man, when I go to work, I’m just going to keep my head down, not talk about my faith, not do anything because all of it can get me in trouble because of this rule.”

JOHN RUSTIN: Yeah. So Matt, clearly time is going to tell what the implications of this monumental decision are going to be. What can we do as people of faith to regain some of the ground that’s been lost and to continue to stand for truth in a culture that seems to be slipping away more and more and becoming more and more averse to biblical truth and morality?

MATT SHARP: So, I would say two things. I think number one is we need to do a better job of showing the world the good of religion. That what we’re trying to protect is not a license to discriminate, as the other sidelights could put it, but we are preserving something that is good. I always tell people, “Remember that the same faith that motivated Samaritan’s Purse to invest tons of money to travel to New York City in the midst of COVID-19 and set up on their own dime a field hospital to help care for people, that same faith also tells them how they ought to live when it comes to marriage and the nature of male and female.” And when you start telling them that one part of your faith is bad, they’re going to pull back, and that’s bad for society. We want people to be motivated by faith. So I would say number one, we’ve got to do a better job of showing the world why our faith is so good and important for society and living that out.

The second thing is we’re going to need legislative response to this, both at the federal level and protections at the state level. Not only protections for religious liberty, to make sure that people of faith can live and work consistent, but even allowing common sense, workplace rules. Making sure businesses can still have man and woman restrooms and changing rooms, to make sure that women’s shelters can continue to limit themselves to biological females, and that sports and other things like that don’t become dominated by men taking over women’s opportunities. I think there is going to be some necessary legislative response that we need to get behind. But then the bigger picture of helping to change culture’s view of religion to show that it is a force for good that needs to be nurtured and protected in our laws and in the court system.

JOHN RUSTIN: Matt, we really are grateful for your time, grateful for your insights. So Matt, keep up the great work. We appreciate you. We love you and just pray that God continues to bless you and your efforts.

MATT SHARP: Thank you, John. I appreciate it.

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