BAD NEWS: The federal court system is gradually changing what the words “sex” and “gender” meanMay/June 2018
The federal Sixth Circuit Court of Appeals, with jurisdiction over Kentucky, has ruled that Title VII’s prohibition against “sex” discrimination “protects transgender persons because… transgender or transitioning status constitutes an inherently gender nonconforming trait.”
Although the Sixth Circuit’s March 7 decision in EEOC v. R.G. & G.R. Harris Funeral Homes deals with a nonreligious for-profit corporation, advocates for House Bill 372 in the 2018 Session say it shows the need to protect religious organizations from being punished for their sincerely held beliefs or moral convictions regarding sexuality. HB 372, which failed to pass during the 2018 Session, sought to do just that.
Citing their 2004 decision in Smith v. City of Salem and the U.S. Supreme Court’s 1989 decision in Price Waterhouse, the Sixth Circuit stated that it is impossible to interpret the use of “sex” in Title VII of the Civil Rights Act of 1964 to mean only individuals’ “chromosomally driven physiology and reproductive function.”
It is from that foundational premise that the March 7, 2018 decision found that a Christian owner of a funeral home broke the law when he fired a funeral home director who had expressed that he would begin identifying as and transitioning to a woman.
The Christian owner proclaimed to the court “that God has called him to serve grieving people” and “his purpose in life is to minister to the grieving.” The mission statement on the Funeral Home’s website says the company’s “highest priority is to honor God in all that we do as a company and as individuals.”
He went on to explain that he “sincerely believes that the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if he were to permit one of the Funeral Home’s funeral directors to deny their sex while acting as a representative of the organization” or if he were to “permit one of the Funeral Home’s male funeral directors to wear the uniform for female funeral directors while at work.”
The Sixth Circuit ruled that enforcement actions brought under Title VII will necessarily defeat both federal and state Religious Freedom Restoration Act defenses to discrimination made illegal by Title VII. The court concluded, “Thus, even if we agreed with the Funeral Home that… religious exercise would be substantially burdened by enforcing Title VII in this case, we would nevertheless…hold… that requiring the Funeral Home to comply with Title VII constitutes the least restrictive means of furthering the government’s compelling interest in eradicating discrimination… on the basis of sex.”
While advocates of HB 372 have expressed confidence that ministers of religious organizations are protected by the “ministerial exception,” which was recognized by the U.S. Supreme Court in its 2012 Hosanna-Tabor decision, there are some questions about exactly how wide or narrow the scope of the “ministerial exception” is.
The main concern of HB 372’s advocates is the impact this case could have on a religious organization’s non-ministerial employees. Among other specifics, they seek to ensure that an organization “marked by clear and obvious religious characteristics” can make any employment-related decision in accordance with their sincerely held religious beliefs or moral convictions on sexuality, regardless of whether or not that employee qualifies as a “minister” under the Sixth Circuit’s four factors.