Harris Funeral Homes v. EEOC: Frequently Asked Questions

Last week the U.S. Supreme Court heard arguments from the parties in Harris Funeral Homes v. Equal Employment Opportunity Commission, Case No. 18-107, (hereafter Harris v. EEOC or Harris). This is a lawsuit initiated by a man named Anthony Stephens, who a few years ago changed his name to Aimee Stephens and now claims to be a woman based on the vague concept of “gender identity.” 

Recently we’ve witnessed misinformation spreading online about our submission of an amicus (friend of the court) brief in the case, and our co-sponsorship and participation in a rally to raise awareness about how the outcome of the case may harm the rights, privacy, and safety of women and girls. Some of our detractors’ claims go to the heart of who WoLF is as a nonprofit radical feminist advocacy organization. We offer this detailed FAQ to reaffirm our principles and intentions for our members and supporters, and to refute some of the worst misinformation.  

1.         Why have you gotten involved in the Harris case when the employer is a conservative Christian who enforces a sex-based dress code?

If the Supreme Court rules for Stephens it will have profound and lasting effects on the lives of women and girls, because it will fundamentally change how “sex” is interpreted under U.S. civil rights law. If the court decides that “sex” means “gender identity,” then any man can declare himself to be a woman for purposes of civil rights law.

In the particular case at hand, Stephens filed his lawsuit under Title VII of the Civil Rights Act, 42 U.S.C. 2000e-2, a statute that provides access to federal courts and remedies for people (mainly women, for obvious reasons) who are subject to discrimination in the workplace “on the basis of sex.” If Stephens wins, employers of men who merely claim to “identify as a woman” will be forced to use female pronouns and generally pretend the man is woman; to apply sex-based dress codes as though the man is a woman (i.e. if employers require skirts on women, they must require skirts on men who claim to identify as women); and require employees who are women to share the women’s bathrooms with that man – all of which were specific demands Aimee Stephens made of Harris Funeral Home.

As discussed in # 3 and #4 below, a bad ruling in the Harris case would also have many additional legal and social consequences beyond the borders of the case and Title VII.

2.        What question will the U.S. Supreme Court decide in Harris?

In virtually every case before the U.S. Supreme Court, it accepts and decides a specific legal issue called a “question presented.” In this case the Court’s order accepting the Harris case is specifically “limited to the following question: Whether Title VII prohibits discrimination against transgender [sic] people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).”  

If you find that question confusing, you are in good company. For one, neither the Supreme Court, nor Stephens, nor his allies at the American Civil Liberties Union (ACLU), nor the EEOC provided a non-circular definition of the term “transgender” or “status as transgender.” Stephens’ brief asserts that “Aimee Stephens is a woman who is transgender, which means that she was assigned a male sex at birth and has a female gender identity.” In other words, although Stephens does not contest the fact that he is male (i.e. a man), he claims that his subjective and unexplained “female gender identity” makes him “a woman.” 

Under the formulation pushed by Stephens and the ACLU, “status as transgender” is purely a matter of a person’s self-declaration—though, declaration of what no one is quite able to explain. Recall that Stephens’ core demand is that he be treated as though he is a woman for all employment purposes, including not only dress code and bathroom use but compelling his employer’s speech. Given those specific facts, a ruling under option (1) in the question presented (i.e. that Stephens’ “female gender identity” makes him a woman and Title VII prohibits “discrimination”  based on his “status as transgender”) would be very broad and harmful. It would also, we think, amount to a violation of both women’s fundamental rights to privacy and safety and everyone’s First Amendment protection against compelled speech.

A possible ruling under option (2) in the Court’s question presented is perhaps even more muddled. The Supreme Court has already ruled in the Price Waterhouse case that employees covered by Title VII have a legal remedy under this law if they are punished, penalized, or denied promotion or employment on the basis of pernicious sex-stereotyping. As a matter of basic law, this holding already applies to all situations and all individuals covered by Title VII. Thus, Stephens has always been free to make the claim that his employer’s dress code is unlawful because it stems from the sex-stereotype that the people who wear skirts are women and men cannot or should not wear skirts. But this clearly is not the outcome Stephens desires; he very much wants to be required to wear skirts to work, because his “gender identity” ideology tells him that wearing skirts is part of “living openly as a woman.”  

The ACLU has exploited the confusing nature of the case by implying that it aims to combat sex-stereotyping or sex-based dress codes, but that is inaccurate and misleading. WoLF supports the use of sex-stereotyping as a legal theory, but NOT the interpretation of sex to mean or include “gender identity.” In other words, if Stephens or any other man wishes to make a claim of unlawful sex stereotyping, he must do so as a man. It is not acceptable to claim (as do Stephens and the ACLU) that a man can self-identify as a woman and that denying his claim to womanhood amounts to treating him as “the wrong kind of woman.”

Stephens is not any kind of woman, and recognizing that fact is perfectly permissible. Accurate knowledge of a person’s sex cannot be a stereotype because it is fact. Indeed, the Supreme Court already made this clear in a ruling issued nearly 20 years ago: “[p]hysical differences between men and women” are not “gender-based stereotype[s].” Nguyen v. INS, 533 U.S. 53, 68 (2001). 

It is ironic that WoLF is being falsely accused of seeking to roll back civil rights law (see #5 and # 6 below) by people and groups who actually seek to fundamentally reshape those laws beyond recognition.

3.          Would a bad ruling in Harris spawn similar Title VII lawsuits that harm the rights, privacy, and safety of women and girls?

Almost certainly. If any man can declare himself a woman under Title VII, a male prison guard will have a new legal theory on which to base his demand that he be assigned to strip-search incarcerated women. His employer will be subject to major fines and injunctions under Title VII if they refuse to give him this “right.” A male high school or elementary school coach will have a legal basis on which to demand that school administrators let him visually supervise girls inside their shower and changing rooms, because woman coaches are allowed to do that and he identifies as a woman. Male nurses will demand the right to sponge bathe nude and helpless women and children in the care of a nursing home or hospital, and any employer who questions that demand can be hauled into court to face punitive remedies under Title VII.

4.          I’ve heard that your rally at the Supreme Court wasn’t about Title VII or the facts in the Harris case and was only about unrelated “cultural issues,” is this true?

No. The effects of a ruling in Harris will not be limited to the Harris case or even to other Title VII employment cases – though as discussed in #3 just the effect on employment law will be significant. The ruling will set a legal precedent that will directly control all future Title VII cases, and will govern (or in some cases heavily influence) how all federal agencies and federal courts must interpret the term “sex.” Indeed, the Supreme Court and other lower federal courts have previously stated that its interpretation of the phrase “on the basis of sex” under Title VII generally applies the same way to claims under Title IX, a statute written to address discrimination against women and girls in the educational arena including school athletics. As WoLF explained in our amicus brief:

Ever since this Court’s decision in Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75 (1992), which expressly relied on its Title VII decision in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), to hold that Title IX supported actions for damages, courts have read Title IX in light of Title VII. “This Court has also looked to its Title VII interpretations of discrimination in illuminating Title IX[.]” Olmstead v. L. C. by Zimring, 527 U.S. 581, 616 n.1 (1999) (Thomas, J., dissenting). “The identical standards apply to employment discrimination claims brought under Title VII [and] Title IX[.]” Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2000); Preston v. Commonwealth of Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994).  

Even had the court not expressly made the connection between Title VII and Title IX, it is entirely commonplace for courts to interpret legal terms by looking at how the same term has been applied by other courts or by legislatures in other contexts. It is also common for lawmakers and agency staff to fall in line with a certain legal interpretation, even when they’re not strictly required to do so, perhaps because they fear litigation. In these ways, not only as a matter of law but as a simple matter of policy influence, a bad ruling in Harris v. EEOC could have a devastating effect on laws and policies that affect the lives of women and girls. 

5.          Are you trying to get Price Waterhouse reversed or rolled-back? Are you trying to prevent people who claim to be “transgender” from using the sex-stereotyping theory in Price Waterhouse established?  

No. WoLF wholeheartedly supports the principle established in Price Waterhouse, and we have no problem with applying that principle to any individual, including those who claim to be transgender. Accordingly, we might have supported Aimee Stephens if he had claimed discrimination based on the principle in Price Waterhouse, but he did not. See also # 2 above. Specifically, Stephens could have argued that dress codes requiring women to wear skirts and requiring men to wear pants and ties (but not vice-versa) is sexist, and therefore enforcing that dress code constitutes discrimination “on the basis of sex,” but he did not. Instead, he argues 1) that a man’s vague, subjective “gender identity” makes him literally a woman; 2) that his “gender identity” entitles him to share a restroom with his 80-year old woman coworker who does not want him there; and 3) that the U.S. legislature and U.S. courts must validate Stephen’s “gender identity” by compelling his employer (on threat of fines or worse) to use female pronouns when addressing him and generally pretend that he is a woman.

6.          Is your support for the employer in Harris creating or increasing a risk that the Supreme Court will reverse or roll back its holding in Price Waterhouse? Could the ruling in this case deprive LGBTQIA people of civil rights remedies for sex-stereotyping? 

This question requires unpacking to expose the sleight of hand the ACLU and other gender identity activists are pulling here. First, as explained in the beginning of # 2 above, the Supreme Court’s “question presented” does not ask whether people who claim to be trans deserve any legal protection from discrimination at all. Rather, it explicitly sketches out two possible options for their discrimination claims: either (1) that they can claim discrimination on the basis of “transgender status,” whatever that means, or (2) they can claim discrimination on the basis of unlawful sex-stereotyping.

Let us be absolutely clear: WoLF and the Supreme Court are in agreement that people who claim to be transgender will have some form of redress for unlawful discrimination. The only question truly in dispute is whether “sex” means “gender identity,” and thus whether men who claim to be women on the basis of their subjective, undefined, self-declared “gender identity” can use U.S. civil rights law to claim that it is discrimination if others refuse to validate that belief.

Regarding the ability of lesbian, gay, and bisexual individuals to use the legal precedent in Price Waterhouse that prohibits employers from engaging in unlawful sex-stereoptyping, WoLF made its position equally clear in our Harris amicus brief:

“Importantly, re-affirming the prohibition on sex-stereotyping would also protect gay employees against workplace discrimination because heterosexuality functions as a sex-stereotype, in the sense that society tends to presume that people are heterosexual. Taking an action against a homosexual employee because of that person’s sexuality would, therefore, constitute unlawful sex-stereotype sex discrimination.”

In short, we believe Price Waterhouse provides an option for LGB individuals to obtain relief from discrimination, though not necessarily the only option.  

7.         I’ve seen the claim that the Supreme Court can’t change the legal definition of sex because rules around sex change are established at the state level, is this true?

This is patently incorrect. As an initial matter, the Obama administration (i.e. the federal government) was heavily engaged in changing the meaning of sex to include “gender identity.” In doing so the federal government attempted to change the legal meaning of woman to mean anyone, including any man, who claims to identify as a woman. While WoLF argued that the administration lacked the authority to do this without notice-and-comment rulemaking, we never saw anyone argue that the federal government is categorically prohibited from defining (or affirming the existing common definition) of sex, nor would we support such an argument. Sex is such a fundamental concept in federal civil rights and other laws, we can’t imagine the basis for arguing that only states can define sex or even “sex change.”   

8.        Why are you represented in the Harris case by a man rather than a woman lawyer? Is it true that your lawyer is a member of the conservative Federalist Society?

We are grateful to have been represented in the Harris case pro bono by David Bookbinder. Every single argument in our brief was vetted, line-edited, and rejected or approved as written by members of the WoLF board of directors, some of whom are lawyers or have significant experience interpreting legal arguments.

Though it is arguably irrelevant to the content, strategy, and policy preferences underlying our brief, the claim that Mr. Bookbinder is a member of the conservative Federalist Society is baseless. It appears to stem from the mere fact that he has contributed his professional opinion to discussions and debates hosted by the Federalist Society. In all of these, as far as we can tell he discussed his theories for how the public can use environmental laws and the courts to fight climate-change pollutants. We are rather happy to have a close WoLF ally and expert in environmental law talking with influential conservatives and libertarians about the importance of making corporations pay for the environmental and health costs of fossil fuel extraction.

9.          Is WoLF run by another group? Does WoLF get funding from conservative groups?

WoLF is run by an all-volunteer board of directors (most of whom do the work on top of full-time day jobs), with help from member-volunteers. We are funded by donations from anyone who supports our work, the vast majority of which come from individual members and allies. We use that funding carefully to pay for travel and supplies needed to make our actions possible. Though, also, our most active board members and volunteers often self-fund their own travel and related costs.

WoLF donors have made it possible for ordinary women to travel to Washington, DC to lobby our legislators and talk to decision-makers; to print and distribute written materials we and leaders of WoLF’s regional chapters use to educate local authorities about issues like the dangers of the sexual-exploitation industry; for residential space that doubles as meeting and venue space for our advocacy activity; to pay for server space and other I.T. needs; and to provide modest support for this year’s WoLF Festival, just for a few examples. While WoLF is happy to take advantage of other groups’ resources, such as the conservative group funding that paid for the Harris rally physical infrastructure and security, we also used WoLF donations from our own members and supporters to help get women to the rally and provide shelter to some, produce signs for the rally, and organize two related women’s events during the same week.

At the same time, our volunteers and guests donated uncounted hours helping to plan the rally, provide a free livestream, provide a high-quality compilation video for anyone to view, write and re-write their rally remarks, prepare and present our “Lesbians on Chairs” discussion panel, and generally make the most of the opportunities we had that week to air our radical feminist views widely. We are deeply grateful for the continuing support and trust our donors have placed in our hands. And we hold ourselves accountable for accomplishing something material with that support—unlike some of our detractors who positively brag about their lack of commitment or accountability to anything other than their personal views.

10.      At the Supreme Court rally you participated with conservative groups who don’t support same-sex marriage and oppose abortion. Have you abandoned your commitment to abortion rights and equal rights for same-sex couples?  

No. WoLF’s publicly-stated principles make clear that we are dedicated to women’s complete autonomy in all material conditions of our lives, including reproductive, sexual, emotional, and labor conditions. By definition this includes our support for the availability of safe and legal abortion, and our support for the freedom of all women to have same-sex relationships and reject heterosexual relations.

Many diverse social and political groups and individuals disagree with our goals broadly, or disagree with some of the particulars. As has been the case with abortion and same-sex marriage, some of these disagreements have been resolved through the courts or legislation, as is often best in a democracy. We have no plan and no desire whatsoever to reduce our commitment to any one of our principles, nor have any conservative individuals or groups asked that of us.