What You Need to Know About the Transgender Case at the Supreme Court

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This interview, which is lightly edited, originally aired on “Problematic Women.”

Lauren Evans: Welcome back. Virginia and I are in the studio today with religious liberty superstar Emilie Kao. Emilie is an attorney and director of the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation and has spent the past 14 years fighting for religious liberty. Welcome to the show, Emilie.

Emilie Kao: Thank you, Lauren.

Evans: There’s a case that will be heard by the Supreme Court where a man who identifies as a woman is alleging sex discrimination after being fired from their job at a funeral home. Can you tell us more about this case, Emilie?

Kao: Yes. The Harris Funeral Homes case originated when a male employee of a funeral home wanted to start presenting as a woman. He wanted to start dressing as a woman, and the funeral home has a sex-specific dress code, which is legal.

The funeral home owner, Thomas Rost, was very concerned, not only about his employees, his female employees, who might have to share bathrooms with the male employee, but also about the effect on the people whom the funeral homes serve. Because these are people who are grieving at a time when they’re very focused on their emotional loss, and it could be very distracting and even disturbing for them to see a man dressed as a woman.

So when the employee refused to comply with the dress code according to his sex, they decided to part ways with him and offered him a severance package.

What happened next was that the employee and the EEOC, the Equal Employment Opportunity Commission, got involved and sued the funeral home. And the case has percolated up through the courts. They lost in the lower court and now it’s gotten to the Supreme Court.

Virginia Allen: Emilie, I want to ask you just to provide a definition for sexual discrimination.

Kao: The correct way to understand discrimination on the basis of sex—it is when one person is treated more disfavorably than a person of the other category.

So if you have a person who is male who is treated worse than a person who’s female because of their sex, that is sex discrimination. If you have a female who is treated worse than a male, that is sex discrimination.

Sex discrimination is not merely when you treat two people differently because we treat males and females differently all the time. That’s why we have some of the other sex-segregated spaces and events that we’ve talked about before. That’s why we have sex-segregated bathrooms. We have sex-segregated sports. Because the courts and the American people have realized men and women are different, and so there’s nothing discriminatory about having sex segregation in appropriate ways, sex-segregated spaces, sex-segregated events that involve a person’s physical capacity.

But what the people in the Harris Funeral Homes case are arguing on behalf of the employee who is identifying as transgender is that he was treated more poorly because of his status as a person who identifies as transgender.

He’s a male who wants to dress as a female. He’s a male who wants to use female restrooms. But that is not sex discrimination because the funeral home would have treated somebody of the opposite sex the same way if they manifested in the same way that this employee is.

So if you were a female employee of that funeral home and you wanted to identify as a male and use the male restroom and wear the male clothing that’s required by the dress code and be referred to as a male, the treatment would be the same of that female employee. So that’s why this case does not actually qualify for the sex discrimination category.

Evans: What was crazy to me about this case is that no laws were technically broken, correct?

Kao: Well, the claim of the EEOC and the employee is that the funeral home owner has violated the 1964 Civil Rights Act, which prohibits discrimination on the basis of sex.

The whole theory of the transgender-identifying employee is that sex actually means gender identity, which there’s nothing in the text that says gender identity. But they have a theory that sex should mean gender identity.

So they’re essentially saying that the EEOC can redefine sex, and they now want the Supreme Court to redefine sex. And the Supreme Court should stay in its own lane, which is to interpret the law, not make the law, which is Congress’ duty.

Allen: So, Emilie, this case is going to come before the Supreme Court on Oct. 8, where it will decide, hopefully, whether federal civil rights law that bars job discrimination on the basis of sex protects transgender people. What do you think we can expect?

Kao: I think you can expect from the funeral home side that they will say Congress should stick with the original public meaning of what the word sex meant in 1964. And that is it established a way of interpreting the law that the court should refer to the original public meeting, which means, what did a regular person in the general public understand sex to mean, not what did a particular member of Congress think?

I think everyone pretty much agrees that in 1964, the word sex meant biological sex, male or female, not a person’s subjective self-perception of their gender, which is what gender identity means.

So I think that there will be a lot of discussion about the procedural part, which is, what is the correct role of the Congress versus what is the correct role of the courts?

As your listeners may know, the Congress has actually been trying to amend the Civil Rights Act recently through the Equality Act to add the classes of sexual orientation and gender identity. So the fact that the Equality Act is being introduced in Congress sort of begs the question, “Well, if sex already meant gender identity, why would you have to add it through this legislation?”

We also know that through the decades, Congress has actually dealt with the question of gender identity. Sometimes they have added it to legislation like the Violence Against Women Act, but sometimes they have declined, they have projected the addition of the term gender identity. So the historical record’s pretty clear. Congress knows that gender identity and sex are two different things.

Allen: So if SCOTUS rules that gender identity does not apply to federal civil rights law, will that create a roadblock for Congress to move forward with the passage of the Equality Act?

Kao: I think it will clarify what the current understanding of the Civil Rights Act should be, and I think it will make it more difficult for the EEOC to continue to politicize these cases. But I don’t think it will make it more difficult in a procedural sense for Congress to try and pass something like the Equality Act.

However, I do think it could make the public support for something like the Equality Act change. Because I think one of the interesting things about this case is that it will bring to the forefront some of the issues that we’ve talked about, how gender identity essentially erases women as a coherent category in the law.

We’ve seen the manifestation of this in several cases like the homeless shelter in Alaska. They were sued because they would not allow a man into a space that was reserved for women who’d been battered, and abused, and trafficked. The whole theory behind the male plaintiff’s case was that he was being discriminated against on the basis of gender identity.

So we see from that case that when you introduce the idea of gender identity, it erases the protections in the law for women, for their safety, and privacy. And there are a number of other cases with women’s sports and with, unfortunately, a girl in a public school in Georgia being sexually assaulted after the school adopted a transgender bathroom policy.

Allen: Emilie, I’m glad that you brought up the Alaska case about the homeless shelter. I want to get into that for a moment. Let me just give a little bit of background to our listeners if they’re not familiar.

The Hope Center is a Christian nonprofit women’s homeless shelter in Anchorage, Alaska. Right now, we have some great news that we just received this week that they are now free to continue serving homeless women without the threat of looming legal action or even being shut down.

The reason why that threat arose to them was in January 2018, a drunk and injured man dressed in a pink nightgown tried to gain access to the Hope Center. During the day, the center does serve men and women by providing them with meals, laundry, and shower services, job skills training, and clothing. But in order to provide a safe space for homeless women, the shelter at night does only house women.

So when this intoxicated, biological man identifying as a woman came knocking on the center’s door after hours, the Hope Center sent the individual to the hospital to get the care he needed. They even paid for the taxi. But then the Hope Center faced a complaint from the Anchorage Equal Rights Commission claiming that the center had discriminated against this individual because of his gender identity. This appeared to be an attempt to attack the center’s Christian beliefs.

At that point, the Christian nonprofit legal defense firm Alliance Defending Freedom stepped in to help and they filed a lawsuit in federal court on the center’s behalf. In August, that court issued an order that temporarily stopped the city from misplaying this law against the Hope Center.

So, Emilie, I want to ask you, how big of a win is this, and do you think this is actually the end of this case or will there be maybe an appeal?

Kao: I think it’s a very big win, not only for the Hope Center but for similarly situated women’s shelters and other spaces for women around the country. I think it’s a great precedent. My understanding is that there was a settlement. So if there was a settlement, I don’t expect that this will be relitigated.

Evans: One thing that I’ve learned since this case has come out is that Anchorage actually has a higher than normal population of women who have been sex trafficked because it’s kind of a middle point between Russia and the United States. So … these women, they need a safe space.

How unique is this case, and are faith-based women’s homeless shelters under attack pretty much everywhere?

Kao: Unfortunately, this is not a totally unique case because we’ve also seen a case in California called Poverello House, I believe it is a secular women’s shelter, where the women were forced to shower with a man who was apparently making, they allege, lewd comments toward them in the showers.

It was actually the women in that case who sued because they did not want to be housed with a man and have to share intimate facilities with a man.

So I think that, unfortunately, wherever we see these laws that have sexual orientation and gender identity in addition to the other protected categories, there is the possibility that women’s safety and privacy will be compromised in spaces that used to be for their protection.

Evans: The name of the act is the Equality Act, and it puts, I think, our listeners and people who believe in religious liberty in a hard place when somebody is like, “Man, why aren’t you for equality?”

So what is kind of misunderstood about this case, and what are some talking points that our listeners can use when put in this hard place of wanting to love all people but wanting to protect women?

Kao: I think the term equality has been misused. I think that one basic thing you can say is that all people have dignity and deserve to be treated with respect. All people have equal status, but not all ideas have equal status. And we don’t have to agree on all ideas.

What the Equality Act would do is basically adopt a government orthodoxy on sexual orientation and gender identity. Now, those two categories are distinct from many of the other categories that are protected in the Civil Rights Act. So if you think of race and sex, those are both biological and immutable traits. Gender identity is a person’s subjective perception of their own sex, which people have the freedom to believe that, but people also should have the freedom to disagree with that, to say, “Well, I think you actually are either a male or a female,” and they don’t believe in gender fluidity.

Then, the category of sexual orientation, again, that also involves a person’s behavior or their conduct, which we are free to have different opinions about behavior and conduct. That is not an immutable characteristic. So, unfortunately, what the Equality Act would do is it would lead to a government orthodoxy, and that will lead to the punishment of dissenters.

Some of those dissenters will be people who have religious convictions. Some of those dissenters will be people with moral convictions. And some of those dissenters, as we’ve seen from the women who oppose the Equality Act, their objections are based on science and based on concerns for women’s safety, and privacy, and equality.

So, unfortunately, the Equality Act would establish a nationwide orthodoxy and punish disagreement.

Allen: Emilie, with cases like the Hope Center case, do you see this as the left weaponizing anti-discrimination law and then using that to attack faith-based organizations?

Kao: I think that the treatment of people of faith over the past few years by the left, especially by organizations like the Human Rights Campaign and actually some members of Congress, has been incredibly intolerant.

You look at some of the rhetoric, the way that they describe people like Jack Phillips, the baker from Colorado. In Colorado, some of the government officials compared him to a Nazi and a slave owner. When you look at the targeting of organizations, businesses like his, with boycotts and picketing and not only that but death threats, harassing phone calls.

That’s, unfortunately, not an isolated incident. We’ve seen that with many of the wedding vendor cases, many of the cases involving sexual orientation and gender identity. There’s been verbal harassment, and economic threats, boycotts, and also sometimes threats of physical violence.

So, unfortunately, I think our culture is at a point right now that the left’s intolerance of religious beliefs about sexuality, and marriage, and even sex differences is increasing. So the use of these laws to punish people for disagreement, I think, is part of an overall picture of increasing intolerance toward people who simply hold the view that marriage is between a man and a woman and that there are two sexes, male and female.

Evans: Emilie, we talk a lot on the show about the Equality Act and these transgender issues, but at the end of the day, we’re blessed in the United States to have the First Amendment that protects our right to religious liberty. A lot of people in the world don’t have that First Amendment protection, and you [look at] a lot of issues talking about international religious freedom. And I know President Trump made a speech … at the U.N. about international religious freedom.

Can you give our listeners kind of an update about what’s going on around the world with these religious freedom issues?

Kao: President Trump gave a landmark speech and elevated religious freedom at the U.N. General Assembly to a level that it’s never been elevated before, which is very critical because the U.N. tends to downplay the importance of religious freedom even though over 80% of the world’s population lives under serious restrictions of religious freedom. So it really put the U.N. on notice and many of the countries that are the worst violators of religious freedom on notice.

I thought a particularly interesting part of the event that he held was to spotlight the survivors of religious persecution, and some people who were there had family members who are still in prison in places like China and Iran.

So I think that the Trump administration has added at the U.N. General Assembly to the work that it’s been doing for the past few years with the International Religious Freedom Ministerial Summit that Secretary [of State Mike] Pompeo and Ambassador-at-Large for International Religious Freedom Sam Brownback have hosted.

They’ve done a great job on building multilateral cooperation. Their summits have brought together government leaders from over 100 countries, and it has fostered more cooperation in places like the Middle East, and Asia, and Europe to combat religious freedom violations.

Allen: Emilie, I want to take just a moment to let you share a little bit about an event that’s happening at The Heritage Foundation next week. Earlier in the show, Lauren and I took some time to talk about the epidemic of child abuse through child pornography. And there is an event that you’re hosting next week at Heritage that addresses this crisis. Could you tell us a little bit more about that?

Kao: Thanks, Virginia. Yes, we are very concerned about this growing epidemic of children being sexualized by adults through culture, and education, and health care. Sometimes, this is actually as a result of government-led initiatives, which means that it is actually the use of taxpayer money.

So we will be looking at issues like pornography and trafficking, also the introduction of comprehensive sexuality education in public schools, the introduction of sexual orientation, gender identity curriculum, the transgender policies, and private facilities like bathrooms and locker rooms, and the increasing politicization of health care for children with gender dysphoria that’s leading to harmful treatments of testosterone and surgeries on children. So we will be bringing together thought leaders from around the country to discuss these issues with one another.

Hopefully, this will be a great way for parents to learn about what they can do. We’ll be introducing the national parent resource guide on the transgender trend, which is a very helpful tool for parents, gives them practical steps that they can take if a transgender policy is being introduced in their school district, ways that they can talk to their school, and it tells them what their rights are.

So we’re really looking forward to bringing together all of these experts from around the country to find solutions to this growing epidemic.

Allen: When is the event taking place, and how can people register?

Kao: The event is Wednesday, Oct. 9 from 9 a.m. to 12 p.m. They can watch online, and they can register on the Heritage website. We will have three panels on culture, education, and health care, in that order.

>>> On Wednesday, Oct. 9, The Heritage Foundation and Family Policy Alliance will co-host a Summit on Protecting Children from Sexualization to examine these issues in-depth. The summit also will debut the National Parents Resource Guide on the Transgender Trend. RSVP for the event or watch the livestream here.

We really encourage all parents to tune in at some point to this summit because it will give them an overview of how children are being targeted for sexualization, will give them practical tools to fight back, and it will introduce them to some of the federal and state policies that can help solve some of these problems.

Evans: If you are a podcast person, all Heritage events are turned into podcasts. You can listen to it. It’s almost immediate, usually takes an hour or two for us to get it uploaded. Also, a lot of the participants in the panel will be doing interviews with The Daily Signal, which will run throughout the week and probably into next week.

Allen: Thank you so much, Emilie, for joining us. We really appreciate your time and you sharing your expertise with us.

Kao: Thank you.