The ACLU's own Twitter feed shows what's at stake when 'sex' is redefined
© Greg Nash

In an Oct. 8 oral argument, the American Civil Liberties Union asked the U.S. Supreme Court to redefine sex in federal law. When pressed by the justices, the ACLU’s counsel said such a change would secure rights for transgender employees, but it would not result in men demanding access to women’s privacy spaces or affect the rights of women in sports. A recent ACLU tweet shows the exact opposite.

The case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, involves Title VII and its prohibition on discrimination because of “sex” in employment. The ACLU represents a biological male employee that the funeral home hired as a funeral director. After abiding by the funeral home’s sex-specific dress code for nearly six years, the employee expressed an intent to dress and present as a woman when meeting with grieving family members and friends. The funeral home could not go along with that and was sued for “sex” discrimination.

At oral argument, numerous justices expressed concern that redefining “sex” in federal law would have widespread consequences. Chief Justice John Roberts, Justice Neil GorsuchNeil GorsuchSupreme Court denies Trump request to immediately resume federal executions House, Senate Democrats call on Supreme Court to block Louisiana abortion law Justices appear cautious of expanding gun rights in NY case MORE, and Justice Sonya Sotomayor all asked if the ACLU’s argument would mean that a biological man must be allowed to use women’s privacy facilities. This is a serious question: In Alaska, a federal court had to enjoin an Anchorage commission that tried to force a women’s shelter to allow a man identifying as a woman to sleep in the same room as women who had been raped, trafficked and abused. The ACLU’s counsel assured the justices that a ruling for the employee would not affect showers, restrooms, locker rooms and the like.

ADVERTISEMENT

Justice Sotomayor continued to press the issue, noting that if the Supreme Court decided in favor of the employee, questions regarding opposite-sex showers, restrooms, and locker rooms would be inevitable. Again, the ACLU’s counsel ducked the issue and seemed to suggest that privacy facilities could still be separated by biological sex.

Justices Samuel AlitoSamuel AlitoSupreme Court denies Trump request to immediately resume federal executions Justices appear cautious of expanding gun rights in NY case The ACLU's own Twitter feed shows what's at stake when 'sex' is redefined MORE and Ruth Bader GinsburgRuth Bader GinsburgSupreme Court halts subpoena to Deutsche Bank for Trump records Justices appear cautious of expanding gun rights in NY case Ginsburg health scare raises prospect of election year Supreme Court battle MORE then asked about a biological man who desires to compete on a woman’s college sports team. Wouldn’t redefining sex require the college to say yes to that request? This is also a serious question. Two boys identifying as girls have won 15 Connecticut track-and-field titles in the girls’ division in the last two years alone. But the ACLU’s counsel said, again, that a ruling against the funeral home would not affect women’s sports.

Then, on Nov. 19, the ACLU posted a tweet to celebrate #InternationalMensDay. The tweet was a more candid look at the ACLU’s views on these important social issues:

As you can imagine, the Twitter-verse had a field day with the ACLU’s announcement. Many of the responses should not be reprinted. But the tweet was illuminating.

ADVERTISEMENT

Regardless of what you believe about these issues, any honest reading of the ACLU’s tweet must conclude that the ACLU is calling for a wholesale redefinition of what it means to be a man or woman. As I’ve pointed out elsewhere, a decision in the ACLU’s favor in Harris Funeral Homes wouldn’t merely fly in the face of the public meaning of federal employment law and its legislative history, undermining the ability of Americans to rely on what the law says. Such a decision would also create massive problems—particularly for women and girls.

If the ACLU prevails, it will demand that a man identifying as a woman be allowed to sleep in the same room as abused women at an overnight shelter. It will demand that high school boys identifying as girls be allowed in the girls’ shower. And it will demand that any male identifying as a female be allowed to take a female’s place on a women’s sport team, or on the winner’s podium.

Some may welcome such developments. Others will certainly reject them. But what the ACLU tweet illustrates is that the courts are not the proper forum to decide such thorny questions. This is particularly true of justices who are self-identified “textualists,” which means that, when interpreting a statute, they look for the text’s original public meaning.

When Title VII was enacted more than half a century ago, everyone understood that a prohibition on “sex” discrimination meant that an employer had to treat women and men equally. No one thought the statute meant that an employer must treat a man as a woman. Yet outside the courtroom, that is precisely what the ACLU demands.

The ACLU insists that its legal position in Harris Funeral Homes does not turn law and society upside down. Its Twitter account says otherwise.

John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom (@AllianceDefends). Bursch argued on behalf of G.R. & R.G. Harris Funeral Homes before the U.S. Supreme Court on Oct. 8. A ruling in the case is expected next year.