Harris v. EEOC and the women’s rights legacy of Ruth Bader Ginsburg

What is a woman? In oral arguments scheduled for today, the Supreme Court soon will consider this question. 

In R.G. and G.R. Harris Funeral Homes v. EEOC and Stephens, a man named Anthony Stephens, who worked at a funeral home, decided that he is a woman and took the name Aimee. The funeral home’s dress code requires men to wear pants and women to wear skirts; Aimee demanded the right to wear a skirt, but the funeral home did not agree and said things weren’t going to work out. Aimee complained to the Equal Employment Opportunity Commission (EEOC), which sued the funeral home, arguing that it engaged in sex discrimination because of Aimee’s “gender identity.” The EEOC and Aimee won. 

The question now before the Supreme Court is whether Congress intended sex to mean “gender identity” when it wrote the Civil Rights Act. 

The Women’s Liberation Front (WoLF) has filed a friend-of-the-court brief in the case, asking the court to rule definitively that Congress intended for the word “sex” to follow the longstanding, traditional meaning of the term — the biological classification of human beings as either female or male — when it incorporated it into Title VII of the Civil Rights Act. Or, in the words of Merriam Webster, “either of the two major forms of individuals that occur in many species and that are distinguished respectively as female or male especially on the basis of their reproductive organs and structures.” 

The word “sex” does not equate to some vague, ill-defined concept of “gender identity.” Women have been discriminated against for thousands of years because we are biologically women, not because of “identity.” 

WoLF is in this fight this because we care about the rights, privacy and safety of women and girls, as does Supreme Court Associate Justice Ruth Bader Ginsburg. We hope that she will side with us. Justice Ginsburg long has argued that women deserve justice under the law, on the basis of sex. She knows what a woman is, and it would be difficult to overstate her commitment to advancing the rights of women. There are too many examples to detail here, but to name a few:

In 1971, Ginsburg worked as a volunteer at the American Civil Liberties Union (the ACLU understood in 1971 what the word “woman” means). While there, she wrote a brief before the Supreme Court in the case of Reed v. Reed, describing the legally enforced second-class status of women. She argued that a law stating that “males must be preferred to females,” in appointing administrators of estates, violated the 14th Amendment’s Equal Protection Clause. Ginsburg’s 68-page brief included an appendix of state laws that discriminated on the basis of sex. She won, and the court concluded that women are entitled to equal protection. 

In 1972, Ginsburg co-founded the Women’s Rights Project at the ACLU and, in 1973, she became the Project’s general counsel. She argued six sex discrimination cases before the Supreme Court and won five of them.

In 1973, Ginsburg wrote another brief for the ACLU making similar arguments. Her relentless advocacy on behalf of women ultimately prevailed in the case of Craig v. Boren, where the court ruled that sex discrimination claims would receive “intermediate scrutiny” — a significant legal win. Ginsburg had advised the plaintiffs’ ACLU lawyer in that case and submitted a brief in support.

Ginsburg’s advocacy on behalf of women has not been limited to judicial arguments. Between 1972 and 1980, she taught at Columbia University — the first female tenured faculty member — and co-authored the nation’s first legal textbook on sex discrimination. She has written dozens of Law Review articles on this topic, and is ferocious in researching how women have been systematically excluded from participation inside and outside of the legal profession. For example, she wrote in 1979 that:

“[W]omen litigated few sex equality claims in the eight decades following ratification of the Fourteenth Amendment. The brave handful who did were unsuccessful: Myra Bradwell, in 1873, was told she had no federal constitutional right to practice law; Virginia Minor, less than two years later, was told participation in the processes of democratic government through the franchise was properly reserved to men …”

Her statements on this topic aren’t limited to those she made in the 1970s. In 2015, she stated: “I’m sometimes asked when will there be enough [women on the Supreme Court] and I say, ‘When there are nine’; people are shocked. But there’d been nine men and nobody’s ever raised a question about that.”

Some are concerned that if our society achieves true equality of the sexes, we will be unable to enforce sex-based segregation when there is legitimate reason to do so. But that is simply not true — justice does not require denying the reality of biological sex. This is precisely what Ginsburg meant when she stated, in 1975: “Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.”

It is well known that Ginsburg replaced the word “sex” with the word “gender” in her advocacy because she was concerned that using “sex” would make the justices squeamish. But there is no reason to believe that by doing so she intended to create a third sex class, or to advance the notion that men can be women. 

In the current case, Stephens could have simply challenged the sex-specific dress code, but instead is attempting to redefine the fundamental meaning of the term “sex” under federal civil rights law. 

“Gender identity” is an enshrinement of the sex-based stereotypes that Ginsburg has been fighting for decades. “Sex” means biological sex, not “gender identity.” We look forward to a Supreme Court ruling that settles the question.

Kara Dansky serves on the board of the Women’s Liberation Front (WoLF), a radical feminist organization that sued the Obama administration to restore Title IX rights to women and girls. A lawyer, she helps coordinate WoLF’s legal and policy strategies in volunteer status. The views expressed here represent a considered position of WoLF. Follow on Twitter @WomensLibFront.

Tags Civil Rights Act Gender identity On the Basis of Sex Reed v. Reed Ruth Bader Ginsburg

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