Written by: Daniela Ellerbeck, FOR SA Legal Advisor
Article source: forsa.org.za

In a recent landmark case, the Supreme Court of the United States of America (SCOTUS) on 15 June handed down, what to many would be, a jaw-dropping decision: It found that the term “sex” in a 1964 law that prohibited employers from discriminating against their employees on grounds of their “sex”, also includes sexual orientation and gender identity.

Fact and Fiction
This decision concerned employees suing their employers for alleged sex discrimination in three (3) separate cases: Bostock sued Clayton County and Zarda sued Altitude Express for being dismissed after it came to light that they were both homosexual. Aimee Stephens (a biological male who presented as male when hired, but later wanted to “live and work full-time as a woman”)sued Harris Funeral Homes after being dismissed for being transgender.

Title VII of the American Civil Rights Act of 1964, which is the law under which the three (3) employees sued their employers, makes employer discrimination based on sex, illegal.

In what can only be described as an exercise in legal acrobatics, the majority judgment found that whenan employerfires an employee for being ho­mosexual or transgender, it fires that person for traits or ac­tions it would not have questioned in members of a different sex. As such, SCOTUS held that “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids”. Simply put, the highest court in America found that “sex” also means “sexual orientation” and “gender identity”.

This decision by the majority comes in a context where the American Congress (i.e. the federal legislative authority) has been considering various laws that would prohibit employment discrimination based on sexual orientation and gender identity, but had not yet passed such a law.

Checks and balances
Whatever one’s views on employers who intentionally unfairly discriminate against homosexual and transgender employees, there is no way around denying that SCOTUS in this instance breached the constitutional checks and balances built into the Constitution’s separation of powers – i.e.  Congress (as the legislative authority) makes the law, and the Courts (as the judicial authority) interpret the law.

In two (2) scathing dissenting judgments, Justices Alito, Thomas and Kavanaugh blast the majority for law-making and thus usurping the role of Congress, who are the American people’s democratically elected representatives to make laws.

As Justice Kavanaugh points out: “In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude… If judges could rewrite laws based on their own policy views… the critical distinction between legisla­tive authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty.”

He points out further that ordinary people would no longer be able to know exactly what the law is, as no modern American would even interpret “sex” to include “sexual orientation” and “gender identity”. This, in his view, undermines the rule of law and prevents democratic accountability.

Future Consequences
In his own blazing dissenting judgment, Justice Alito looks at only some of the potential (and even likely) far-reaching consequences of the Supreme Court’s decision. (Ironically, the majority expressly refrained from dealing with the consequences of their decision, choosing instead to leave this to future litigation.)

According to Justice Alito, this is a decision that no one should take as a pure victory for individual liberty, but rather one that threatens religious freedom, freedom of speech, privacy and safety. In elaboration of this he names some the following practical areas that are likely to be affected:

  1. Bathrooms and locker rooms
    In terms of SCOTUS’s decision, transgender and “gender fluid” persons that have not undertaken any physical transitioning to the opposite sex, will be able to argue that they are entitled to use a bathroom or locker room of the sex they choose to identify with at that given point in time.

    Naturally, this fills many biological women, some who have been the victims of sexual assaults and rape, with apprehension as their rights to privacy and safety are infringed.

  2. Women’s sports
    Justice Alito postulates that both school and professional sports teams that have historically been reserved, for example, for biological women may now be open to transgender individuals. The effect of the Court’s judgment may be to force women to compete against people who have a very significant biological advantage – such as those who have the size and strength of a male, but iden­tify as female, and those who are taking male hormones to transition from female to male.

    In his words, this issue “threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports”.

    One would be remiss to not point out that many scholarships set aside for women athletes will now no longer benefit those they were intended for, with many women losing education opportunities as a result.

  3. Housing
    If a transgender student should identify as, for example, a woman, schools and universities may now also be forced to assign that biological male student as the roommate of a female student in a female residence.

    Again, this gives rise to privacy and safety concerns which cannot merely be swept under the carpet.

  4. Religious Liberty – specifically employment by religious organisations
    Numerous briefs were filed by various representatives of America’s religious sector, including the Christian, Jewish and Muslim communities, that mentioned the need of religious organisations such as churches, synagogues, temples and mosques, to employ people who “actually live the faith” – something which may no longer be possible as a result of this judgment.

    Justice Alito concludes that the need to employ people who “live the faith” is especially felt by religious schools: “if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment.

  5. Freedom of speech
    Justice Alito looks at two (2) possible areas where freedom of speech could be implicated: The first being where someone may now be forced to address another by their preferred pronouns: “After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination.

    The second being where employers may now feel pressure and/or be pressurised to suppress any statements by employees expressing disapproval of same-sex relationships and/or sex reassignment surgery, fearing that if they allow employees to express their (religious) views on these subjects, that may result in it (the employer) facing harassment claims.

SCOTUS’ redefinition of “sex” has far-reaching consequences, and is rightly critiqued. Some decry the Court for, in this instance, acting as a “super-legislature” that took away the decision from the American people duly represented by their chosen representatives in Congress, and imposed a law on them without their permission and/or opportunity to give input. Some lament no longer being able to rely on the law as it is written by Congress, because words may no longer be interpreted or understood by the courts to have their ordinary meaning. Many more still express deep concerns over the sweeping consequences this decision will have on all areas of American life.

Given that what happens across the Atlantic invariably is felt here in South Africa, it is indeed a very concerning judgment for religious freedom and women’s rights everywhere.

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Date published: 26/06/2020
Feature image: United States Supreme Court Building

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