- - Tuesday, June 16, 2020

The U.S. Supreme Court’s recent decision in the Harris Funeral Homes case (bundled together with two other cases) fails to honor the separation of powers created by our Constitution. And in practice, this decision and the legal challenges to follow will pose the greatest threats to a single group: women and girls.

Harris came about because bureaucrats and activists tried to do an end-run on Title VII, the 1964 law that bans discrimination based on — among other things — a person’s sex. At the time it was written, Congress clearly meant “sex” in the biological sense. Those determined to see the law changed to include gender identity and sexual orientation have found their efforts repeatedly thwarted in Congress, where legislators have clearly recognized the threat such a rewrite poses to religious liberty, freedom of speech and women’s rights.

So activists turned to Plan B, which involved circumventing the law through the courts. Enter Harris: the case of Tom Rost and his fifth-generation family funeral home business declining to let a male funeral director violate a long-standing dress code by dressing and presenting as a woman while working with grieving clients — a professional decision well within Tom’s legal rights.

In response, activists filed a complaint with the Equal Employment Opportunity Commission, which filed suit to make an example of Tom. Their mission: Convince federal judges to rewrite Title VII so that “sex” includes gender identity — a change Congress has repeatedly refused to make.

Unfortunately, these activists succeeded, and the Supreme Court’s decision could pose numerous dangers for women and girls.

For one thing, Title VII has always allowed sex-specific policies for a reason. Without such policies, women could be compelled to compete with men for job opportunities under the same physical strength requirements before they could become police officers or prison guards. Only by acknowledging the differences between the sexes can Title VII treat women fairly and increase the number of career opportunities available to them.

Businesswomen have also benefitted from Title VII, but redefining “sex” in the law could harm them. The Small Business Administration, for example, has helped increase the number of women-owned businesses by delegating money to entrepreneurs based on their sex. But if those funds are distributed according to gender identity, more women will be shouldered aside.

Another concern is the encouragement the Supreme Court’s decision will give to activists intent on rewriting other laws, particularly Title IX. Female athletes have already lost opportunities to compete in high school and college athletics, earn crucial scholarships, and maybe even move on to professional sports careers. Inserting even more males into female competitions will deprive women of a fair playing field and of the equal athletic opportunities that Congress wrote Title IX to protect.

If activists get their way, this could also have a devastating impact on some of the most vulnerable women among us. Take Downtown Hope Center in Anchorage, Alaska, as an example. It offers refuge and support to homeless women, many of them victims of rape, trafficking and abuse. But Anchorage tried to force the Hope Center to let males who identify as female sleep next to vulnerable and frightened women who would otherwise be out on the street.

All of this underscores how many questions are left unanswered by the court’s decision. These are questions with enormous implications for our society and for the future of men and women, boys and girls … questions that should be decided by Congress, not unelected officials or the American Civil Liberties Union. The questions this decision has created will continue to be litigated in our nation’s courts for years to come.

One of the primary purposes of Title VII was to protect women and girls. But after the Supreme Court’s decision, Title VII may end up doing the opposite.

• Kate Anderson is senior counsel with Alliance Defending Freedom (@AllianceDefends), which represents R.G. & G.R. Harris Funeral Homes.

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