Unpacking SCOTUS's Redefinition of "Sex"

Family policy matters in engaging and informative weekly radio show and podcast produced by the North Carolina family policy Council hi this is John Ralston, presidency, family, and were grateful to have you with us for this week's program is our prayer that you will be informed, encouraged and inspired by what you hear on family policy matters and that you will for better equipped to be a voice of persuasion, family values in your community, state and nation will 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 Vince. He 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 map welcome and thanks for being with us today and Fred and Rhonda will Matt this past Monday, June 15. The US Supreme Court issued a groundbreaking opinion in a very important case entitled Bostock the 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 will 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 redefine 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. Also, Justice Brett Cavanaugh all wrote his own dissent again will jump into the details of the opinion in just a minute but met before we do that I 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.

This is a great Christian family that had this problem in the family for several generations. They work on dealing with people at the very worst times in the lives of a grieving overallotment part of their practice was. We want everyone that works out funeral home to be dressed very nicely, and appropriate, so we want our men to be wearing a nice suit when a Wednesday when I stress all the cost had a a longtime employee biological male that announced that he was going to be identified as a female Amy Stephen and that he wanted to start wearing a dress as part of the stress and the rusted root family replied.

Look what you do on your own time is your best.

But when you work for us, males beachwear student emails need to wear this. This had always been the law this federal law that banned sex discrimination in employment is that although you to treat males and females equally. You can have that specific dress codes, incidents with the loss were well when Stevens didn't like that they parted ways. The next thing you know they find them of being sued for sex discrimination and the argument was because you treated me differently because Mike gender identity because I wanted to identify as a woman rather than a man. You discriminated based on my sex and you are now live organ the loss were 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 suit on the job and submit what 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 you, so that the other two cases dealt with employees that had been terminated and that the claim was that they had been terminated because of their sexual orientation. So you have our client with a claim was 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. It's been on the books for 60 years now applies to sexual orientation and gender identity as these are the arguments going up to the Supreme Court and the response that ADF and the others in these cases were making in cancel same but when Congress passed title VII in 1964.

Everyone knew what they were trying to 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. No one would have thought this was meant to deal with sexual orientation or gender identity.

And yet that's exactly what the other side was pushing of telling the court.

You need to reinterpret this you need to change this law with the time and still ultimately this boil down to a we follow the laws it's been on the books for 60 years and if law needs to change. That's the job of Congress or do we allow the courts to step in and rewrite the laws to their preferred policy preferences so that people have no idea what to expect, like the loss. You can follow the law that's been on the books for six years than find yourself in violation for doing exactly which always done so Matt, what was the opinion what you expected or was it a complete surprise. This was a surprise to a lot of us work for a couple reasons at number one that it was corsets in the author.

He has traditionally been very good on these issues, but also very principled, yet when you apply the right principles you get solid outcomes in and traditionally had done so to see him author this opinion, a lot of us off guard. I think even more troubling, and a lot a lot of ways was how he got to. So for example when you look back at your burger felt in those cases where yet. Justice Kennedy, he was a trying to grounded in and with the loss that he does know it's a I'm creating a right to same-sex marriage in this. This is required by giving dignity to people and we look at it and say like you know it's frustrating and you're creating principles out of whole cloth in your abandoning legal principle. What corsets did was try and take originalist in principle things we as conservatives often agree with you know from Scilly and and others.

And just as you sensitive with them to reach is his is intended and this is what Justices Alito on capital really hit him hard for to say this is not originalist. This is not textual. This is not how we interpret the Constitution or these federal laws busy and it's a simple as what did the people that enacted title VII intent 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 that way. And so it's a shot both that it came from corsets and that it was sort of twisting these principles to reach this this end goal.

In a way that is really inconsistent with the right way to interpret loss.

It deftly 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 core doing so that the were not expected to do that.

So wow it just creates cannabis of seismic unrest and a lot of people's hearts and minds. You mentioned on a couple of occasions the dissenting opinions of Alito and Cavanaugh of one particular note. Justice Alito said in our quote is a briefing in these cases is 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 un-alloyed 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 the individuals that people of faith, in particular across the country are seeking an answer to absolutely and let me let me give three examples that will cover all of that is to continue fighting on as we are. 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 value 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 about they do that because that's what the families attending that school. What if under this opinion, a private Christian school was told, you have to hire someone that is a male that claims of 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 the religion. But the question that Alito was talking about was that which is. It is, is this the right of the religious organization to say as part of hiring people.

It's your religion.

You must live out the religion every day and all that you do or is the other side can say is no.

This is not religious discrimination.

This is gender identity, discrimination, and that is impermissible, so there is going to be cases over whether religious organizations continue to hire people that not just a farm and say that there share the faith but to live it out day in and day out that he got snagged exam with religious liberty. We talk about free-speech pronouns. We have cases ongoing right now there are college professors, teachers are at risk of losing their job because they refused to use inaccurate, false pronouns are what other students and sometimes this even extended outside of the school day rest yet. 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 Mrs. Deutsch that Prof. says now I I'm I'm speaking untruth you are forcing me to speak of why use that false pronoun, but under this you can argue and say well that's no hostile work environment unless you force all of your employees to use an accurate pronoun to affirm that which they don't believe the street so in terms of speech setting. There's a lot of things like that. Other scenarios like Fire Chief Calvin Cochran one of our clients in Atlanta where I base it was fired because he recommends devotional book that covered sexual orientation are God's plan for marriage seven lots of issues without in 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 allow that man to come in and use the same showers sleep in the same betting arrangements and all of that puts the privacy and safety of the women, many of whom may be playing sex trafficking work use that privacy and safety at risk and I think that's just three of the ongoing cases ADF is been involved in just so many things that are complicated by this because religious people, people, faith is is not hostility towards LGBT but rather is a say we have a duty first and foremost a guy and we hold fast to those Scriptures and the teaching that all lesson and now those very teachings is 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 the fact that he got a lot of people faith I save man. I go to work just to keep my head down not talk about my faith not do anything because all they can get in trouble because this will cement clearly. Tom's 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 it'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 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 were trying to protect is not a license to discriminate is the other side likes to put it that we are preserving something that is good. I always tell people remember that the same faith that motivated Samaritans purse to invest tons of money to travel to New York City in the midst of the code 19 and set up on their own dime a field hospital help care for people that same fate also tells them how they ought to live when it comes to marriage and the nature fell in female and we start telling them that one party or faith is bad.

They're going to call back that's bad for society.

We want people to be motivated by faith. So I would say number one we got to do a better job of showing the world why our faith is so good and important for society living that out. The second thing is, we're going to need legislative response to this with the federal level and protections at the state level not only protections for religious liberty to make sure that people faith can live and work consistent but even allowing commonsense workplace roles, making sure business is can still have man and women restrooms and changing rooms. 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 of a women's opportunity setting there is to be some necessary legislative response that we need to get behind.

But in the bigger picture of helping to change cultures view of religion to show that is a force for good needs to be nurtured and protected in our laws and the courts are really are grateful for your time grateful for your insights. So Matt, keep up the great work. We appreciate you we love you and I just pray to God continue to bless you and your effort.

Thank you, God presented you been listening to family policy matters. We hope you enjoyed the program and plenitude in again next week to listen to the show online and to learn more about NC families work to inform, encourage and inspire families across North Carolina go to our website it NC family.award that's NC family.org. Thanks again for listening and may God bless you and your family