Speech for Harris Case Rally
Washington DC, October 8, 2019
"We are here today to ask the U.S. Supreme Court to restore sanity and the rule of law. Americans should be able to rely on what the law says. Yet, in these three cases, the lower courts have effectively redefined the word “sex” in federal law to include “gender identity,” creating unfair situations for women and girls, and punishing businesses like Harris Funeral Homes for relying on what the law says. Redefining “sex” to mean “gender identity” creates chaos and is unfair to women and girls.
Title VII was enacted to ensure that men and women have equal employment opportunities. It was not designed to be a radical social engineering project that shoehorns sexual liberties into federal law. Yet some lower courts, including the Sixth and Second Circuits, jump from stereotypical ideas about the roles of men and women to conclusions that render heterosexuality—and even the very idea of biological sex—illicit stereotypes.
The cases at issue here, have ripped the stereotyping terminology from the pages of the Supreme Court’s earlier decision in Price Waterhouse v. Hopkins and commandeered it for purposes far removed from Title VII’s objectives. The result is a sweeping redefinition of biological reality that injects sexual orientation and/or gender identity into the meaning of the word “sex.”
Title VII’s relevant protected characteristic is “sex,” which in 1964 and still today means biological sex. Plaintiffs now demand protection for sexual orientation (Zarda, Bostock) and gender identity (Harris)—radically different categories.
The Sixth Circuit substitutes gender identity for sex in Title VII, rewriting the statutory text and redefining the reality of plaintiff’s sex.
Gender identity theory cements stereotypes in stone rather than eradicating them from the law. It reduces what it means to be male or female to a collection of stereotypes that many people—especially women—have spent many years trying to overcome and that many people reject.
The word “sex” in Title VII is an objective term determined by reproductive anatomy. Sexual orientation is subjectively determined by individual’s preference in sexual partners. Gender identity is subjectively determined by a person’s internal sense of being male or female. These subjective categories represent a radical departure from the text of Title VII and the underpinnings of previous case law.
The Sixth Circuit was wrong when it precluded an interpretation of Title VII that reads “sex” to mean only individuals’ chromosomally driven physiology and reproductive function. That is precisely the definition of “sex” in Title VII and many other laws. The circuit courts attempt to redefine reality and infuse the federal law with meanings that are simply not there.
Laws cannot be enforced or rightly interpreted if word definitions can be shifted at will to mean whatever someone wants them to mean.
Blurring the binary concept of male and female detracts from the fundamental purpose of both Title VII and Price Waterhouse—to ensure that male and female employees have equal employment opportunities.
Male and female are both human beings, but they are not interchangeable in every respect. When the line is blurred, there is no assurance that women will have equal opportunities vis-à-vis men.
Redefining “sex” to mean “gender identity” creates unfair situations for women and girls.
Title VII and other civil rights laws are in place to protect equal opportunities for women; changing “sex” to mean gender identity undermines nearly 50 years of advances for women.
- It undermines equal opportunities for women. Men identifying as female will take women’s places on athletics teams and on the award podium. Just this fall, the North Carolina High School Athletic Association changed its rules regarding participation, so that transgender athletes can now compete according to their gender identity, rather than their biological sex. The Court’s decision in these cases will impact whether female athletes in North Carolina have to continue under this oppressive rule or can return to a fair playing field, where biology determines which team on which boys can compete—not feelings.
- It jeopardizes bodily privacy rights of women by forcing organizations to open women’s shelters, locker rooms, restrooms, and showers to men who say they are women. For example, the Obama Justice Department attempted to force schools and government buildings in North Carolina to allow men who say they are women into women’s bathrooms, showers and locker rooms. Women should be able to expect privacy and safety in such facilities.
Redefining “sex” to mean “gender identity” causes big problems.
- It puts employers in unfair situations.
- Employers must treat men who believe themselves to be women as if they are women, unless those employees don’t “meet the expectations” of what women “[t]ypically” look like. This is an impossible standard and forces employers to engage in the very stereotypes the law is supposed to condemn.
- It sacrifices freedom of conscience.
- Forcing doctors to participate in—or employers to pay for—providing hormone blockers or
surgical efforts to alter sex in violation of religious beliefs.
- It endangers freedom of speech.
- Forcing business owners, employees, teachers and others to speak in violation of their conscience by compelling them to use pronouns and other sex‐specific terms according to identity rather than biology. For example, in Charlotte and Raleigh , North Carolina, teachers and guidance counselors have been told they must use gender neutral terms such as “students” rather than “he” or “she” and that they must use preferred pronouns for students who identify as the sex other than their biological sex.
So much is riding on the Court’s decision in these cases. This decision will impact public schools, employers, business owners, employees, and churches. We implore the Justices not to re-define what it means to be a woman and a man, but rather to follow the law, common sense, and the order of Creation."
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