On June 28, the Supreme Court refused to hear an appeal in the Title IX transgender case Gloucester County School Board v. Grimm. In denying a local school board’s petition for review, the Supreme Court has all but guaranteed that the lower courts—and the Biden administration—will adopt an extreme view of transgender discrimination that threatens parental rights, privacy rights, and the right to free speech and free exercise of religion. Here’s why.
In 2020, in a 6-3 decision, the Supreme Court held R.G. & G.R. Harris Funeral Homes v. EEOC that transgender discrimination is, by its very nature, sex discrimination and thus prohibited under Title VII, which bans discrimination in employment on the basis of an individual’s sex. The majority opinion, authored by Justice Neil Gorsuch, reasoned that “an employer who fired an individual for being homosexual or transgender fires that person for traits or actions that it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
While declaring transgender discrimination illegal, the majority refused to delineate what exactly constitutes such discrimination, stressing “the only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.” Since “sex-segregated bathrooms, locker rooms, and dress codes,” as well as other anti-discrimination laws such as Title IX, which prohibits sex discrimination in educational institutions, were not before the court, the majority claimed not to “prejudge any such question today.”
Before moving to the mischief the court spurred with its holding in Harris Funeral Home, it is initially important to expose the fallacy in Gorsuch’s claim that the only question before the court concerned whether firing someone for simply being transgender discriminated against that individual because of the individual’s sex. Contrary to Justice Gorsuch’s framing of the issue, Harris Funeral Home did not fire Aimee Stevens because he was transgender: The funeral home fired Stevens because he informed the funeral home he would be presenting himself as a woman at work,
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