By Tom Strode
WASHINGTON — Non-discrimination protections in federal workplace law do not cover “sexual orientation” or “gender identity,” the Southern Baptist Ethics & Religious Liberty Commission and other faith-based organizations have told the U.S. Supreme Court.
The ERLC signed onto friend-of-the-court briefs filed Aug. 23 by the U.S. Conference of Catholic Bishops (USCCB) that urge the high court to rule that the classification “sex” in Title VII of the 1964 Civil Rights Act does not include “sexual orientation” or “gender identity.”
The justices will hear oral arguments Oct. 8 in two consolidated cases addressing “sexual orientation,” followed by arguments in an appeal regarding the “gender identity” issue.
The controversial matters have divided federal appeals courts and the two most recent presidential administrations.
Two appeals courts — the Second Circuit in New York City and the Sixth Circuit in Cincinnati — ruled in 2018 that gay and transgender individuals, respectively, are protected under the category of “sex” in federal employment law. The 11th Circuit in Atlanta, however, decided last year that “sex” does not refer to “sexual orientation.”
Though “sex” was long interpreted to refer only to whether a person is biologically male or female, the Justice Department under President Obama determined it also encompassed people who identify as gay or transgender. President Trump’s Justice Department has returned to the previous interpretation.
With the cases, the high court has an opportunity to clarify a contentious sphere of law that sometimes involves the conscience rights of business owners, especially Christians, in conflict with the claims of their employees.
“The ACLU and others are bending the words of Title VII to mean what Congress did not write,” ERLC President Russell Moore told Baptist Press in written comments. “This reckless misreading seeks to punish any who would dare disagree with the most radical aspects of the Sexual Revolution.
“My prayer is that the arguments this fall bring clarity to the public debate and that the justices would restore a natural reading of the English language to the application of these laws,” he said.
The friend-of-the-court briefs make largely similar arguments for rejecting a reading of Title VII to include gay and transgender rights.
“By forbidding workplace discrimination based on sex, Congress intended to level the playing field between men and women,” according to both briefs. “Differential treatment based on ‘sexual orientation’ [or ‘gender identity’], however, does not expose women to disadvantageous terms or conditions to which men are not exposed (or vice versa).”
“Sexual orientation” and “gender identity” are therefore “not sex discrimination,” the briefs say.
Title VII is “modest in scope,” protecting only five classes — “those who have been treated differently in the workplace due to their race, color, religion, sex, or national origin,” according to the briefs.
All of these classes, except religion, are immutable, and Congress has never added a protected class in the 45 years since Title VII became law despite proposals to do so, the briefs say.
“Title VII is not a free-ranging fairness code by which Congress has delegated to other branches the authority to define what is fair,” according to the briefs. “It is not the proper role of courts to read into the law what advocates have recognized it does not cover and have tried and failed on so many occasions to enact.”
The briefs contend interpreting “sex” discrimination to cover gay and transgender rights would create conflicts for churches, religious schools and charities, and individual believers.
Regarding a congregation, the brief regarding “gender identity” says, “[C]ompelling a church by law to hire and retain employees who, by speech or conduct, do not espouse or have not integrated its mission and message into their own lives, or who by their speech or conduct contradict that message, would invariably bring harm to a church. It would also undercut the church’s right to decide for itself what its mission and message are.”
Signing onto the USCCB briefs in addition to the ERLC were the Anglican Church in North America, Association of Christian Schools International, The Cardinal Newman Society, Catholic Bar Association and the International Church of the Foursquare Gospel.
The “sexual orientation” cases involve employees in New York and Georgia who said they were fired because they are gay, while the “gender identity” case involves a male employee at a Michigan funeral home who was fired after he told the owner he identified as a female and planned to begin wearing women’s clothing.
Donald Zarda, who has since died, was a skydiving instructor in New York who filed suit after he was dismissed by Altitude Express Inc. The executors of his estate continued the suit, and the Second Circuit reversed a federal judge’s ruling against Zarda’s claim under Title VII.
The 11th Circuit upheld a federal court’s dismissal of a suit by Gerald Lynn Bostock, a child welfare services worker, against Clayton County in Georgia. A three-judge panel agreed with the lower court that Title VII does not pertain to “sexual orientation.”
In Michigan, the Equal Employment Opportunity Commission (EEOC) brought legal action against the R.G. & G.R. Harris Funeral Homes after owner Thomas Rost dismissed Anthony Stephens, who told Rost in 2013 he was transitioning to a woman, intended to dress accordingly and was changing his name to Aimee. Stephens had worked for Harris Funeral Homes for six years.
The cases are Altitude Express Inc. v. Zarda, Bostock v. Clayton County and Harris Funeral Homes v. EEOC.
LGBT advocates are urging Congress to act on the legislative front to provide legal protections. In May, the Democratic-controlled House approved the Equality Act, H.R. 5, which would add “sexual orientation” and “gender identity” to the classifications protected in federal civil rights law.
Passage in the Republican-majority Senate appears unlikely, however, and the Trump administration has criticized the legislation without promising a veto. B&R