A recent U.S. Supreme Court case has grabbed the national spotlight. The subject matter forces us to reflect, and if fortunate, become a bit uncomfortable in the process.
R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission concerns the rights of transgender Americans – some 1.5 million of them. According to the National Center for Transgender Equality, one in six transgender employees have been fired for being transgender. This tussle is also about employer rights.
As a country with no shortage of AM radio firebrand moralizers, we cannot avoid peering into these great moral chasms (and airwaves) that pretend to divide us. This case has me exploring the precarious landmines and trap doors of my own moral landscape.
The contour of gender identity had also found its way into our community – should you recall the soap opera that played out in 2017 when a new procedure — gender reassignment surgery — was taken up by Gritman Medical Center and Pullman Regional Hospital. In Pullman, the issue received a mountain of community input, much of it in the form of faith-based opposition. Yet one unanimous board vote later and we have added “vaginoplasty” to our lexicon.
And now for the legal counterpoint: the artistry that surgeons render with their scalpels must somehow be interpreted and codified in law, by a conservative-weighted Supreme Court. Regardless of our personal stance on how we ought to and ought not think of our anatomy, we can all be grateful that the court agreed to hear this case.
While the court is hearing arguments, Rep. Joe Kennedy III of Massachusetts has introduced legislation, The Equality Act, which explicitly provides protections for all LGBTQ citizens so that “no transgender American should be subjected to discrimination at their workplace when they live their truth.” Mitch McConnell, as we know, has his own truth, and the bill is unlikely to make its way past his desk.
The outcome of this and two related cases “are the single most important set of explicitly LGBT cases ever to reach the Supreme Court,” according to ACLU’s Chase Strangio. Oral arguments were heard Oct. 8, and the word “transgender” made its Supreme Court debut. The court’s decision hinges upon judicial interpretation of Title VII of the 1964 Civil Rights Act … which prohibits employers from discriminating “because of … race, color, religion, sex, or national origin.”
The setting is Harris Funeral Home, a business with more than 100 years of tradition in Livonia, Mich. In 2013, its owner, Thomas Rost, had received a letter from his employee, funeral director Anthony Stephens, who had been on vacation. The letter said, “I will return to work as my true self, Aimee Australia Stephens, in appropriate business attire.”
Aimee – formerly Anthony – was promptly dismissed.
The way Rost sees it, “a male should look like a man, and a woman should look like a woman” and that biological gender is “an immutable God-given gift.”
Well, howdy do – enter the lawyers and the legal twilight zone.
When Title VII and its reference to “sex discrimination” was enacted, it did not explicitly prohibit discrimination based on gender identity. (At that time, homosexual acts were still illegal in many states). As there were no federal protections, individual states took up the matter. Today, in 26 states, it is not illegal for employers to discriminate based on transgender identity.
For those interested in the oral arguments, the transcript is easily found at supremecourt.gov. In reading it, I found Harris Funeral Home’s argument that distinguishes between sex and gender identity as having rational allure, as it seems Justice Gorsuch did; he considered the “massive social upheaval” of not making that distinction. To my mind though, the “social upheaval” would be tilted in favor of a more just society.
More impressive for me was the teenage girl who told Aimee Stephens, “you are my role model.” Aimee had transformed self-pity into courage. The girl could have selected another role model from American history who transformed adversity and strength — and enjoyed adding powder to his ponytailed hair: George Washington.
After years of globetrotting, Todd J. Broadman finds himself writing from his perch on the Palouse and loving the view.