Three Reasons ACLU Is Dead Wrong in Trying to Redefine Sex

Ryan Everson | April 9, 2020 | 11:23am EDT
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Funeral home owner Tom Rost speaks outside the US Supreme Court in Washington, D.C., October 8, 2019, as the Court holds oral arguments. (Photo credit: SAUL LOEB/AFP via Getty Images)
Funeral home owner Tom Rost speaks outside the US Supreme Court in Washington, D.C., October 8, 2019, as the Court holds oral arguments. (Photo credit: SAUL LOEB/AFP via Getty Images)

Could you imagine being the target of a six-year lawsuit that went all the way to the U.S. Supreme Court simply because you ran your family business in keeping with the law?

That’s what happened to Tom Rost.

Tom is the owner of Harris Funeral Homes, a 100-year-old family business in Michigan. Tom serves the grieving in their time of need. He checks in on family members after their loved ones have passed—calling, visiting, and even picking up groceries.

Tom has important policies in place to help ensure Harris Funeral Homes serves the grieving with excellence. One of those policies is a sex-specific dress code, which is industry standard. This policy helps ensure that the families Harris serves can focus on the grieving process, rather than the funeral home or its employees.

One day, a male funeral director gave Tom a letter. The letter expressed the funeral director’s intent to begin dressing and presenting as a woman while interacting with grieving families at work.

Tom cares deeply for his employees and for all the people he serves. He was concerned about how the funeral director’s plan would affect other employees, including an 84-year-old woman who would be forced to share sex-specific facilities with the funeral director. He also gave careful thought to how the plan would affect grieving families and friends at one of the most troubling times in their lives. Ultimately, this is why Tom could not agree.

Tom was then sued for “sex” discrimination by the federal government, which claimed that “sex” in a federal employment law includes “gender identity.” The federal government has since reversed positions and supports Tom and Harris Funeral Homes. But the ACLU continued its efforts to punish Tom. The case went all the way to the U.S. Supreme Court.

The ACLU claims that Tom violated the law, and that the Supreme Court should rewrite federal law by redefining “sex” to include “gender identity.”

But let’s take a look at why the ACLU’s arguments fall far short.


1. Biological sex can’t be changed.

At oral arguments before the Supreme Court, the ACLU attorney claimed that Tom’s actions constituted sex discrimination “…in the same way that firing someone for changing their religion would be religious discrimination.”

This statement is confusing, unpersuasive, and objectively false.

A human being’s biological sex is determined by the presence of an X or Y chromosome from that person’s father. In fact, this X or Y chromosome is present in every cell in the human body. Those chromosomes cannot be changed; therefore, biological sex cannot be changed either. Heritage Foundation scholar Ryan T. Anderson articulates this in his book When Harry Became Sally:

"Sex differences manifest themselves all the way down to the molecular level. People who have sex reassignment surgery do not become the opposite sex, because they do not change their organismal organization for reproduction; they merely acquire the outward appearance of a change in bodily organization."

In contrast, changing one’s religion involves a change in beliefs. In fact, a great many people experience changing ideas and emotional ups and downs in their relationship with God throughout their life. And that is why our nation’s employment laws define religious discrimination to include bad treatment based on beliefs.

The bottom line is that it’s impossible to change your biology, but it’s clearly possible to change your beliefs. Therefore, the ACLU’s alleged parallel is no parallel at all.


2. Redefining “sex” would have massive consequences for women.

Justice Gorsuch asked the ACLU attorney to comment on the “massive social upheaval” that would occur if the Court ruled in their favor. The attorney responded that there was “no reason” we would see such upheaval.

That’s not accurate, and the upheaval would primarily harm women and girls.

The ACLU would have the Court discard all sex-specific employment policies. That means no more women’s-only showers, restrooms, locker rooms, overnight facilities, or professional athletic teams. As a recent ACLU tweet proudly proclaimed on International Men’s Day, “Men who get their periods are men.” And “Men who get pregnant and give birth are men.”

In addition, it would change the laws in counties and cities throughout the United States. The Human Rights Campaign, a far-left ally of the ACLU’s, asserts that 225 U.S. cities and counties have adopted sexual orientation and gender identity (SOGI) laws that classify “gender identity” as a protected status. That may seem like a lot, but it means more than 10,000 cities have not adopted these SOGI laws.

What if those pro-SOGI municipalities were ordered to do away with their laws? What if courts reversed the laws of these 225 local governments? The ACLU would certainly consider it to cause a “social upheaval” of epic proportions.

Yet the ACLU is pushing for the Supreme Court to do this exact thing to more than 10,000 cities while somehow asserting it would not result in massive social upheaval.

Numbers don’t lie. The ACLU may not confess to pushing for massive social upheaval, but that is exactly what it is doing.


3. Legislatures are responsible for making law. Courts are not.

The ACLU wants the Supreme Court to rewrite federal law. However, it is not federal courts, but elected officials who are best equipped to deal with complex policy matters. These officials can carefully craft laws that appropriately address every nuance of the various issues involved.

That same cannot be said when these decisions are made by courts, and a ruling redefining “sex” to include “gender identity” would leave far more questions than answers. Could federal law then force young female athletes to compete against (and be dominated by) males who identify as female in every state? Could shelters for homeless women be forced to allow men who identify as women to sleep mere feet away from the vulnerable women who recently suffered abuse from men? These are not hypotheticals. These are real issues being debated in our nation’s courts.

The bottom line is that unelected officials should not have the power to fundamentally rewrite laws affecting over 300 million Americans, especially in a nation as diverse as ours. That is why the Constitution prohibits courts from changing the law like this.

Contrary to the ACLU’s claims, every American deserves the right to rely on the law as it is written by our legislatures. That’s why the Supreme Court should rule in favor of Harris Funeral Homes.

Ryan Everson serves as Alliance Defending Freedom's Communication Integrity Specialist. He worked as a Washington, D.C. Catholic and political journalist before coming on board with ADF in July 2019. Ryan graduated from Arizona State University and works out of ADF's office in Scottsdale, Ariz.

Editor's Note: This piece originally appeared on the Alliance Defending Freedom.

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