ADF Asks Supreme Court If ‘Sex’ Can Be Redefined Without Congress

Attorneys with Arizona-based Alliance Defending Freedom representing a Michigan funeral home filed a petition Friday with the U.S. Supreme Court that asks the court to review a lower-court decision that redefines the word “sex” in federal law to mean “gender identity.”

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled in March that the federal government can force R.G. & G.R. Harris Funeral Homes to allow a male employee who identifies as female to dress in women’s clothing in violation of the family business’s sex-specific dress code. In so doing, that court redefined “sex” in Title VII to mean something other than what Congress clearly intended.

“No court or federal agency has the authority to rewrite a federal statute. That power belongs solely to Congress,” said ADF Senior Counsel Jim Campbell. “Replacing ‘sex’ with ‘gender identity,’ as the Sixth Circuit and the EEOC have done, is a dramatic change. What it means to be male or female shifts from a biological reality based in anatomy and physiology to a subjective perception. Far-reaching consequences accompany such a transformation.”

In 2016, U.S. District Court for the Eastern District of Michigan ruled in favor of the Detroit funeral home. The EEOC had sued over the funeral home’s decision to part ways with an employee who insisted on violating the company’s dress code. The EEOC appealed the decision.

As the petition filed with the U.S. Supreme Court in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission explains, “[t]he Sixth Circuit’s mandate that organizations enforce their sex-specific policies based on gender identity raises a host of problems. For one, it fosters inconsistency and opens the door to manipulation. Anyone—not just those with ‘medical diagnoses’—can profess a gender identity that conflicts with their sex….”

“Equally important, the Sixth Circuit’s decision undermines the primary purpose for banning discrimination based on sex—to ensure ‘equal opportunities’ for women…” the petition continues. “Employment reserved for women—like playing in the WNBA or working at a shelter for battered women … —now must be opened to males who identify as women. The same is true of sports and educational opportunities under Title IX. The Sixth Circuit’s ruling impedes women’s advancement…. In sum, the Sixth Circuit ushered in a profound change in federal law accompanied by widespread legal and social ramifications. The stakes are too great—and the impacts on third parties too substantial—for this Court to let that decision go unreviewed.”

“Court opinions should interpret words in federal statutes according to their plain meaning when Congress passed them,” said John Bursch of Bursch Law PLLC, which also represents the funeral home. “This opinion instead rewrites federal law and is directly contrary to decisions from other federal appellate courts. That’s why we are asking the Supreme Court to consider this case.”


  1. Your comment Al, is a mess of inconsistencies. First you ask us to get used to a system of checks and balances (a system of dividing the functions of government between three separate branches to ensure no one branch has too much, or even all, the power) but when we agree and say, in recognition of the principle of checks and balances, if we wish to change a law, a legislative function, it must be done by the LEGISLATURE changing the law, not by courts changing the definition of words in the law, YOU object. Giving too much power to the courts however is exactly what you want us to do here and thus ignore the principle of checks and balances between the court and the legislature. If we allow the courts to redefine the words in our laws, as you would have us do here, then the laws become meaningless EXCEPT as the courts CHOOSE to define the words used to give meaning to those same laws.
    Regarding slavery, the Constitution did not define an African American as 3/5 of a man. It stated that for purpose of allocating legislative representation to the individual states, the slave POPULATION would be divided by 3/5 to determine the number of legislators in the House of Representatives the slave holding state would qualify for. The constitution`s 3/5ths rule was not a definition of black people as you imply but a tool to apportion seats in the House of representatives. Regarding a woman`s right to vote, that has nothing to do with the definition of a woman, either. In both instances of the right to vote you refer to, the right to vote was accomplished NOT by courts redefining terms used in the constitutions or other laws, but by constitutional amendment as prescribed by that same document. Please note, that in both instances, voting rights were expanded entirely by white men adopting the necessary constitutional amendments, not by courts redefining the plain meaning of words.

  2. Three separate and co-equal branches of government. It’s called checks and balances. It’s the American Way. Get used to it. It’s why Obama or Trump can’t be dictators, why legislative rushes to judgment (remember the Gulf of Tonkin resolution that began the Vietnam War, based on a lie) can be appealed. True enough that any of those branches can become dysfunctional — Congress and the White House are current prime examples — but over the long run the Constitution works.

    As for courts not interpreting the ever-changing meaning of words and staying only with their original meanings, well, does that make African Americans still 3/5 of a man, and women don’t get to vote? But if you believe in that, then rethink Second Amendment arguments for unlimited guns — originally intended to apply to a “well regulated militia” established by Congress, and never meant to apply to semi- or automatic weapons since they didn’t exist.

    Gender identity and sexuality were once taboo subjects. Now people feel less like hiding in a closet and more willing to acknowledge who and what they are, and it’s all part of being human. And for the rest of us to acknowledge and accept them as well. What’s wrong with that?

    • Lannon – Im sure you’ll be comfortable with the guy in the bathroom with your grand daughter just exercising his gender…

      • Hey BillyB — I lived in San Francisco for 35 years and saw the changes as the LGBTQ community found its voices and strengths. It helped me overcome the homophobia I was raised with, and to see that people are people, good, bad or indifferent, regardless of gender identity or sexual orientation (or even Republican or Democrat politics).

        I remember getting free tickets to a “women’s” concert where almost all the audience were women. At intermission I went to the bathroom with my son and daughter, and women were lined up at both locations. So we just got in line and waited our turn and did our business, and you know what happened? Nothing. And Holly Near is still one of my favorite singer-songwriters.

    • Obama or Trump can’t be dictators, why legislative rushes to judgment (remember the Gulf of Tonkin resolution that began the Vietnam War, based on a lie) – Yeah the first deep state lie, just about got me killed.. remember that quite clearly, the resolution signed the day after the assassination of Kennedy – Que Milagro!

      The 9th circuit legislative penile court… overturning every other branch of government with an agenda pen – the collapse of the system in progress or progressive

  3. Legislating from the bench is a typical proven tactic of the left.
    It’s the favored method of the looney left to circumvent the will of the people and the power of the legislature.
    Somehow the three separate but equal branches of government have become dysfunctional as the executive and legislative branches have become bullied into submission by a over bearing partisan left wing mess of appointed justices who have taken overreach to an art forum.
    One only has to look to the 9th circus court to see it. The 9th leads all others in overturned decisions, now there’s something to be proud of.

    The Oracle

  4. “gender identity” today means what ever you feel like at any minute for any reason. To include a male watching young or adult females using the restroom.

  5. Allowing a male to identify as female to have rights reserved for females is ludicrous. Identifying does not make something valid. If I identify as the owner of the U of A, do I have rights to enter any building or room at anytime to inspect is just as ridiculous as trying to say that I am something that I am not.

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