Problematic Women: How Women Lose in Supreme Court’s Decision to Redefine Sex

American women have lost an important battle.

The Supreme Court ruled 6-3 in favor of protecting new LGBT rights Monday in the case of R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. The ruling redefines sex to include sexual orientation and gender identity. 

Kate Anderson, an attorney with Alliance Defending Freedom, joins “Problematic Women” to discuss what the court’s decision means for women all over America. 

Plus, Dr. Elinore McCance-Katz, assistant secretary for mental health and substance use at the federal Department of Health and Human Services, joins the show to discuss the harmful emotional and psychological effects of extended quarantine measures because of COVID-19.

And as always, we will crown our Problematic Woman of the Week. 

Listen to the podcast below or read the lightly edited transcript. Enjoy the show.

Lauren Evans: Welcome back. We’re joined by Kate Anderson, attorney with Alliance Defending Freedom. Kate, welcome to the show.

Kate Anderson: Thank you for having me on.

Evans: So, Kate, to begin, can you let us know what Alliance Defending Freedom, or ADF, is? And what do you guys do?

Anderson: Alliance Defending Freedom is a nonprofit legal organization, and we take cases across the country promoting religious freedom and freedom of speech for everyone.

We take all of our cases pro bono. So, we’re supported by ministry friends that help us do the work that we do with no cost to our clients, which is a huge blessing.

Virginia Allen: So, today, we’re focusing our discussion on a pretty big Supreme Court ruling that just happened this week. For our listeners who aren’t familiar, what events led up to the Harris Funeral Home case?

Anderson: Well, the question before the court was the meaning of the term “sex” in federal employment law, whether “sex” means biology, as it always has, or whether it will be changed to include the concepts of gender identity and sexual orientation.

We represented Harris Funeral Homes, a fifth-generation family business in the Detroit area who had a male funeral director who had worked for them for about six years, always abiding by their sex-specific dress code.

This employee, after about six years, contacted the owner and indicated that the employee planned to present and dress as a woman while working with grieving families.

The owner had to think about this, considered how this would impact this particular employee, the other employees there, many of whom were elderly women—there was only one restroom for women at the facility—and how this would impact his clients.

He concluded that he could not go along with the plan, needed the sex-specific dress code to be in place, was in accord with both industry standard and federal law. The ACLU ended up making a test case out of this to push this kind of a change in the law, which they were successful [with] this week.

That’s going to have some very concerning consequences for our country and particularly for women.

Allen: … Like you say, that decision was made on Monday. How is that decision going to change kind of the way that the law is interpreted and so on and so forth?

Anderson: What the court did was change the term “sex” in federal employment law to mean, and include, sexual orientation and gender identity. We’re talking about a law that has always operated primarily to protect equal opportunities for women where biology matters.

So, this is a drastic change in the law that calls into question whether women are going to be protected as they have been. If men can be women under the law, then those protections really go away.

You see women both on the far left of the political spectrum and on the far right of the political spectrum who are deeply concerned with this.

Evans: So, this ruling, in some ways limited, but in other ways, bigger and sets a dangerous precedent. Can you kind of weigh those two outcomes?

Anderson: Absolutely. So, this was about the federal employment law, Title VII, and the court did attempt to cabin it to that.

However, the same logic can apply elsewhere, and we have every expectation that activists who want to see this change in the law, this splitting from the idea that biology does determine sex, the activists that want to see that happen will use this logic in other cases.

That’s how you see things like we’ve seen in Connecticut with women’s track and field. They’re two biological boys who identify as female, over the last two years, took 15 state track and field championship records that used to be held by nine different girls.

With that, all of the athletic and scholarship opportunities that go with that. When the girls’ parents contacted officials to question what was going on, those officials told them, “Well, girls have a right to compete, but they don’t have a right to win.”

That’s the kind of response that we’re seeing where this kind of change has happened already in the law, and we expect it to grow.

Allen: So, let’s talk about that a little bit more, because one of the topics that we’re super, super passionate about at “Problematic Women” and that we’ve done a lot of reporting on is just that, protecting women and sports and their opportunities to win championships and to earn college scholarships and to even compete at the Olympics.

So, you’re saying that this rule endangers that even more so than what we’ve already seen, and you raised the situation in Connecticut?

Anderson: Yes. It certainly endangers that role. It’s a different statute. So good arguments can be made that sex needs to be interpreted differently under Title IV, which is what protects women’s sports opportunities and scholarship opportunities. But the same logic can be applied.

If sex is no longer linked to biology in federal employment law, certainly activists are going to try to tear that apart in other laws.

Even on the employment level, it’s concerning as a woman, as a mother, as someone who’s grown up in a profession that has largely catered to men. It’s deeply concerning to see the advances that women have been able to make because of sex discrimination law that has protected equal opportunities and employment and elsewhere, watch that be torn down by this type of a ruling.

Allen: Wow. That’s really frightening. What about locker rooms at schools and bathrooms? Will the court’s decision mean that, let’s say, an eighth-grade boy who believes that he’s a woman, or even just says that he believes he’s a woman, can now use the girls’ locker room or the bathroom?

And even if there are girls that say, “I’m uncomfortable with this,” or even if the principal of the school is uncomfortable with it, they won’t actually have any real course of action to take in order to keep that biological male from using a female restroom or locker room?

Anderson: That’s very much the concern here, because we have seen the logic from this case already be applied at local law levels, where this kind of a change has already happened. That’s where you saw cases in the last few years, where girls were saying, “I’m uncomfortable with a biologically male student in my locker room, and yet I’m having to face that.”

The school is backing the student’s presence there. I think that will grow. I also represented the downtown Hope Center in Anchorage, Alaska, and they run a women’s shelter that focuses on serving women who have experienced and survived horrible abuse.

These are women who have been trafficked, raped, subject to domestic violence, and they need a safe place to sleep in Alaska, where they’re not going to be confronted with a biological male in a private space.

The city of Anchorage used a law that had already been changed to read gender identity and sexual orientation into the meaning of [the term] sex. They used that law to try to force the Hope Center to allow a biological male to come in and sleep just mere feet from these women.

Again, I talked to these women. These are women who have experienced extreme trauma and are triggered, again, by the mere presence of a biological male, no matter what he’s doing in a place where they’re going to sleep.

Fortunately, we were able to intervene in that case and stop that from happening. But that’s continuing to go on around the country in similar circumstances.

Evans: I’m glad you brought up the Hope Center, because I actually wanted to talk about that, and I think they really, in some ways, got demonized because they just wanted this transgender person to sleep on the streets, but that wasn’t the case at all.

They still wanted to help these people in the Hope Center. [It] even helps men, is that correct?

Anderson: Absolutely. The Hope Center runs a soup kitchen that serves about 500 meals a day. They also provide shower facilities, laundry services, and clothing and other goods for people who are faced with homelessness. Both men and women.

So, during the day, they serve both men and women. They actually have served and continue to serve the particular individual who is at issue in this case. But at night they have created a women’s-only space because there was a deep need for that in Anchorage.

All of the other shelters allow biological men in our mixed shelters. So they needed a space where women who are dealing with this type of trauma from trafficking and other abuse can go and feel safe and begin to truly recover in their lives. It’s amazing to see the good work that the Hope Center has been able to do and the success stories that they see in women’s lives.

Evans: Let’s say, Kate, that I run a Christian school, and I have a teacher at that school that one day decides that they’re transgender. But what’s so important about going to a Christian school is that they’re upholding the beliefs of what’s in the Bible. Does this ruling now mean that I couldn’t fire or take action against that teacher who is going against exactly what the school stands for?

Anderson: This ruling is about Title VII, which actually has a religious exemption in it. The court decision tried to provide for that kind of a situation. I believe by highlighting that there’s a religious exemption in place that free exercise under the First Amendment still applies, that [the Religious Freedom Restoration Act], the federal law that protects religious people to live according to their beliefs, that still applies.

However, there’s definitely open questions about how those will be used in practice. I fully anticipate that activists will try to use this ruling to force schools, like you described, to employ people that are not aligned with their mission.

Allen: So, we’ve talked about how this role can really strongly affect women, how it might affect religious organizations. Who else is specifically affected in America by the court’s decision?

Anderson: Certainly, the direct implication is for employers like our client, which is concerning.

There’s an unfairness when you change the law. I think there’s a question as to whether things that have already happened, people who have already relied on the law, if this will impact them immediately. Certainly, to everywhere we have seen these kinds of changes in the law, to add sexual orientation and gender identity.

We’ve seen those laws weaponized to try to prevent people of faith from living according to their beliefs. We don’t see these laws actually acting as they are promoted to act to stop any kind of discrimination.

Instead, what we see is them weaponized, and that’s where you get cases like [Kelvin] Cochran in Atlanta, who was a fire chief, highly decorated, had received accolades from President [Barack] Obama, but because he, on his own time, wrote a men’s Bible study book that talked about his beliefs in marriage, he was fired from his position.

You also saw, and are seeing, Barronelle Stutzman’s case. She’s the florist in Washington state who served a same-sex couple for 10 years, providing custom floral arrangements for them for many occasions. But when they asked her to do her wedding, she referred them to someone else.

The state of Washington has come after her and is trying to take away her livelihood, her business, basically everything she has because of this decision. So, that’s of deep concern.

It shows with those cases that these are people of good faith who respect everybody, definitely people in the LGBT community, but these laws are being used in a weaponizing way to try to force them to violate their beliefs. That’s something that we really shouldn’t have in this country.

Evans: So, I think, honestly, even more than the outcome of this case, people have been talking about [Supreme Court Justice Neil] Gorsuch. Why is what Gorsuch decided in the stance he took so surprising?

Anderson: The courts interpret the laws in a way that looks to the original public meaning of that law. So, how the courts have always dealt with laws like this is to look at what would “sex” mean at the time this law was passed in 1964.

And no one at that time would have thought that sex meant gender identity or sexual orientation, yet that’s what the majority opinion held here, that those laws can be added into that, that the statute can be updated in a way that the courts really haven’t done, especially judges that have always held more of an originalist approach, looking at the text of the law.

So, that’s a deep concern that you see even textualist judges revising a statute after the fact to add things that were not in place at the time that the statute was passed.

The reason why we interpret statutes that way is because it builds in the consistency in the law and allows people to rely on what the law says when they’re making business decisions, which is what our client did. Now, to have the law changed underneath him, is a real problem.

Allen: So, what are the next steps? I mean, are there courses of action that can be taken in order to kind of protect individuals in the future? Is it a waiting game until another similar case rises to the Supreme Court and we hope for a better outcome? What does the future hold, and what are the possibilities?

Anderson: I think there’s a lot of open questions there, but ADF is going to continue to work hard in the cases that we have and cases that we will bring to protect equal opportunities for women and to protect people of faith in their ability to live and work according to their beliefs.

We need to see a greater respect and education in our country for people of faith, that people who do not agree with us on issues of marriage, issues on sexuality, issues of identity, can understand that there are differences of opinion there, and that the differences of opinion are valuable and need to be respected.

No one should be punished for simply following what they believe to be true about identity or about marriage.

So, I think there’s work to be done there in terms of the culture, as well as in these court cases, but we will be working hard in Connecticut and other places to make sure that women and girls are able to continue to have the equal opportunities that they have under the previous versions of Title VII.

Evans: So, what future cases should people have their eye on?

Anderson: I think Connecticut is going to be an important one that is continuing on in the courts and asks the question about how this issue of sexuality and biology is going to play out in the women’s sports context.

There are other cases like that around the country, dealing with schools and such, but I think the Connecticut case is really on the forefront right now.

Allen: Kate, thank you so much for the work that you do every day at Alliance Defending Freedom. We’re just really thankful for you all and how you’re promoting freedom for us every day. So, we really appreciate your time today and just breaking down this kind of complex issue.

Anderson: Thank you. Thank you for covering this issue. It is an important one.