Will the Supreme Court affirm the definition of “sex” for us?

This is a story we touched on a few weeks ago, but it’s back in the news over at National Review raising even more questions. It deals with the lawsuit involving G. R. Harris Funeral Homes, a company that was sued by a male employee who announced that he was going to begin living life (and dressing) as a woman, but was told he could not do so at work.

That case has made it all the way to the Supreme Court, where arguments will be heard in the upcoming term. John Bursch is an employee of Alliance Defending Freedom, the group representing the funeral home in this case. In his essay at National Review, he optimistically predicts that the Supremes will be deciding two critical questions that will impact a great many lawsuits around the country in coming years.

The reason I used the word “optimistically” above is that my take on this case hasn’t changed much since I wrote the piece I linked to from earlier this month. But with that said, let’s look at the two questions John poses in the order presented.

First, will the court declare whether the term “sex,” either as used in Title VII or more generically in the field of law, should include the concept of “gender identity?” It would be lovely if they did, assuming they stick to the fundamental tenets of science. If they handed down a ruling reaffirming that humanity is comprised of two genders, male and female, both required for reproduction of the species (with the rare exceptions of individuals born with anomalous DNA, having characteristics of both sexes) we could put a lot of these issues to rest. But I wouldn’t bet the ranch on it.

The way the lawsuit against G. R. Harris Funeral Homes is structured, the court doesn’t need such a sweeping declaration to reach a decision. They could issue a very narrowly tailored ruling dealing strictly with employment rights and dress code issues. This court has been notoriously gunshy about taking on big, difficult cases that deal with divisive social questions for some time now and I’d be willing to bet a large coffee that we’ll see the same pattern repeated here.

That brings us to the second question. Whether they manage to sweep the question of whether or not the plaintiff is a “woman” under the rug or not, how the court treats dress code rules is not easily predicted. The benchmark case is often held to be Price Waterhouse v. Hopkins. And if that’s the standard the court adheres to, the funeral home is pretty much doomed. The court ruling there “forbids employers from discriminating against an employee for failing to live up to gender role expectations.” In other words, the employer can’t set the standard for what qualifies as “masculine” or “feminine.”

But the courts have backed down from that in later cases. In Jespersen v. Harrah’s Operating Company, it was held that employers can institute dress codes and that they can vary between men and women provided they don’t place a disproportionate burden on one gender over the other. The courts have also held that dress codes are enforceable when covering more generic terms, such as clean, neat, professional, etc.

Personally, I find it hard to believe that the employer, in this case, could insist that men wear a suit and tie but be allowed to fire a woman who showed up similarly attired if the clothing was clean and professional looking. So the same should apply to a male wearing a professional skirt or pantsuit of some sort. But I wouldn’t say the decision of this particular Supreme Court is a sure thing either way.

"(1) whether the term “sex” in federal employment nondiscrimination law, Title VII, includes “gender identity,” and…"

FR: Never Accept the Premise of Your Opponent’s Argument

If post-FDR era, institutionally indoctrinated Supreme Court justices would read Free Republic, they would know that the only sex-related protection that the states have expressly constitutionally authorized the feds to deal with is limited to voting issues, evidenced by the 19th Amendment, that amendment recognizing only biological male and female sexes.

"19th Amendment:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation [emphasis added]."
”From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added].” —United States v. Butler, 1936.

Consider that the unconstitutionally big, post-17th Amendment ratification federal government is likewise limited to preventing race discrimination only in the context of voting rights, evidenced by the 15th Amendment.

"15th Amendment:
Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2: The Congress shall have power to enforce this article by appropriate legislation [emphasis added].”

"(2) whether it is unlawful sex stereotyping to administer a dress code based on biological sex rather than gender identity."

Title VII helped federal career lawmakers to exploit low-information voters by winning their votes so they could stay in power. But politically correct, constitutionally indefensible laws like Title VII need to be taken out of the books imo.

"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition [emphasis added]." —United States v. Sprague, 1931.

Remember in November 2020!

MAGA! Now KAG! (Keep America Great!)

Ironically, William Clinton was correct (but for an illicit and immoral purpose):

So-called oral sex is not sex. So-called anal sex is not sex.

Coitus is sex.

Everything else is foreplay, afterplay, or sexually-stimulating eroticism of some kind.

Only real coitus - between a sexually-mature male and a sexually-mature female - can produce real zygotes.

By the bye, this means that pedophilia, even between a male and a female, is not legitimate sex, because a pre-pubescent female - or male - cannot produce the gametes necessary to then produce a viable zygote.

Boys are boys, and girls are girls; they are not androgynous, interchangeable, malleable things; they are sexed, not gendered. But they are sexually IMMATURE beings who must protected by adults.

Fifty years ago, secular scientists were emphatic that the only reason for the emotion of love was to bio-chemically induce sexually mature males and females to engage in sexual intercourse, and thus to reproduce.

They asserted that sex was real, and love was illusion. Now, the secular scientists of today assert that love is real, and sex is illusion.

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