This doesn’t happen too often.
According to one reporter, a conservative legal group has an argument that could persuade liberal Justice Ruth Bader Ginsburg to side against the progressive line.
‘On the basis of sex’
The Alliance Defending Freedom (ADF), a conservative legal group, is representing a Detroit-area funeral home that was sued by the Equal Employment Opportunity Commission (EEOC) after it fired an employee for coming out as transgender.
The suit was filed under Title VII of the 1964 Civil Rights Act, which outlaws discrimination on the basis of sex.
The EEOC operates on the opinion that “allegations of [workplace] discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” but that isn’t found in the legislation, as Title VII gives the following definition:
The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise.”
While the text goes on to specify that employers may not be compelled to pay for an abortion, it makes no mention of either sexual orientation or of transgender individuals.
Nevertheless, the Sixth Circuit Court of Appeals found against the funeral home, which is now seeking redress from the Supreme Court.
Winning RBG’s support
Reporter Chris Johnson claims to know one of the arguments that will be used by John Bursch, ADF’s vice president of appellate advocacy and senior counsel.
Johnson is the chief political and White House reporter for the Washington Blade, billed as “the newspaper of record for the LGBT community.” Johnson recently said that he heard Bursch talk about the case.
“John Bursch says Ginsburg may rule against LGBT-inclusive Title VII, cites ruling about man impersonating woman to get job with fewer pushups,” Johnson tweeted.
He next quoted Bursch, saying, “I think there’s a reasonable possibility that she could look at that and say, you know what, this is going to destroy that I worked for.”
The “she” in question is Justice Ruth Bader Ginsburg, and the statement about fewer pushups refers to a case called Bauer v. Lynch, which upheld the use of differing physical standards for male and female FBI recruits.
That case hinged on the fact that physical strength varies between men and women due to biological differences. If the term “sex” were to be stripped of its biological meaning in law, then it and other rulings would be thrown into question.
Johnson’s Twitter followers seemed skeptical that Ginsburg would side with the defendant. Oral arguments will be heard on October 8.
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