Journal: Eikon
Volume: EIKON 01:2 (Fall 2019)
Article: Transgenderism And The Supreme Court
Author: Jon Whitehead

Eikon 1:2 (Fall 2019) p. 16

Transgenderism And The Supreme Court

Jon Whitehead

Since 1964, federal law has prohibited discrimination on the basis of sex. At the time, no one argued that “sex” included sexual orientation or transgender identity. Congress has repeatedly rejected attempts to add specific references to sexual orientation and gender identity.

But some new theories of sexuality and gender treat “sex” as a set of stereotypes about human bodies, and they treat gender as subjective. Under these theories, if a person believes they are a woman, it is irrational and discriminatory to suggest the physical evidence shows anything else. In three cases to be decided this term, the United States Supreme Court will ask whether the non-discrimination laws should be read today as if Congress had protected sexual orientation or transgender status all along. Especially in the case concerning transgender status, the Supreme Court is being asked to accept that “sex” is a set of stereotypes.

In one of the cases before the court, the United States Court of Appeals for the 6^th Circuit adopted this reasoning. Harris Funeral Home had a dress code for male and female employees, which prior cases have allowed. But when a male employee announced his intention to “transition,” the court said an employee could not be fired for refusing to wear a male uniform. It suggested that “sex” lacks any “fixed external referent.”

Suddenly, the non-discrimination law meant to protect the sexes from bias threatens to make any claim to be a man or woman vague and unintelligible.

My firm filed a “friend of the court” brief in Harris Funeral Home on behalf of more than two dozen groups concerned about the potential impact of this decision on the rights of parents. The cases at the court do not involve children. But the definition of male and female, and ideas like “boy” and “girl,” are important to the relationships between children, their mothers, and their fathers. In one fell swoop, “mother,” “father,” “son,” and “daughter” would lose their legal meanings. Laws that are supposed to help and guide mothers and fathers would turn into Kafkaesque traps.

Eikon 1:2 (Fall 2019) p. 17

This kind of change in the law would influence parental choice in education. For example, the law currently says schools can make some distinctions based on (birth) sex. These include:

- Human sexuality classes

- Toilets

- Locker rooms

- Showers

- Living/sleeping accommodations (dormitories)

- Social fraternities or sororities

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