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My wife and I live in the Portland, Oregon area. We enjoy living in a beautiful region, surrounded by trees, parks, and at the same time close to a thriving urban center. Once the pandemic passes, we hope to open our home again to transgender persons seeking a place to stay while in the area for surgery and postoperative care.

Monday, June 15, 2020

Commentary on the Alliance Defending Freedom response to the Supreme Court LGBTQ Employment Ruling

As many of us would expect, the Alliance Defending Freedom, an anti-LGBTQ rights organization and hate group, had a few things to say after finding itself on the losing side of the Supreme Court ruling on LGBTQ employment rights.


The Southern Poverty Law Center describes the ADF:

Founded by some 30 leaders of the Christian Right, the Alliance Defending Freedom is a legal advocacy and training group that has supported the recriminalization of sexual acts between consenting LGBTQ adults in the U.S. and criminalization abroad; has defended state-sanctioned sterilization of trans people abroad; has contended that LGBTQ people are more likely to engage in pedophilia; and claims that a “homosexual agenda” will destroy Christianity and society. ADF also works to develop “religious liberty” legislation and case law that will allow the denial of goods and services to LGBTQ people on the basis of religion. Since the election of President Trump, ADF has become one of the most influential groups informing the administration’s attack on LGBTQ rights.


https://www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom


After Aimee Stephens came out to her employers, the Harris Funeral Homes, and indicated her intention to transition, she was fired, explicitly because she was a transgender person and therefore failed to meet the dress code for male employees her employer demanded she follow.  The Equal Employment Opportunity Commission backed her, and the case was litigated with decisions in Aimee’s favor.  On the opposite side of the case was the Alliance Defending Freedom, representing her employer and funded through it’s very conservative Christian backers.


After losing at the U.S. Court of Appeals for the Sixth Circuit, which ruled that not only was this discrimination, but the Religious Freedom Restoration Act did not allow an exemption in the case, the Alliance Defending Freedom decided to take the case to the Supreme Court.


That court decision has now been published:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

- US Supreme Court, Harris Funeral Homes vs EEOC Majority Opinion, 2020


https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf


There it is.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. There isn’t any wiggle room in this very clear ruling.


Naturally, this upset the Alliance Defending Freedom, and they voiced their outrage and disappointment on their website today.


https://www.adflegal.org/blog/supreme-court-delivers-troubling-decision-against-harris-funeral-homes

“Redefining “sex” to mean “gender identity” creates chaos, with widespread consequences for everyone.

  • It undermines dignity, privacy, and equal opportunities for women.
  • It could compel professionals from all walks of life to refer to colleagues with pronouns and other sex-specific terms according to gender identity rather than biology.
  • It puts employers like Tom in difficult positions—requiring them to treat men who believe themselves to be women as if they are in fact women, even if that results in violating the bodily privacy rights of other employees.

The bottom line is that ignoring biological reality in our laws threatens our freedoms of conscience, religion, and speech.”


OK, they said their piece.  Let’s dismantle these intellectual droppings.


ADF writes: “Redefining “sex” to mean “gender identity” creates chaos, with widespread consequences for everyone.”


The Supreme Court decision did not do this.  Instead, they simply applied a test.  If Aimee had been assigned a female sex at birth, would she have been fired?  No, she was only fired because she had been assigned a male sex at birth.  She was fired for failing to adhere to the dress code of her assigned at birth sex, while she identified as a woman and adhered to the woman’s dress code of her employer.


Her employer fired her.  Sex played a necessary and undisguisable role in the decision, exactly what Title VII forbids.


ADF writes: “It undermines dignity, privacy, and equal opportunities for women.”


Rights are not a pie, in which a larger slice for one person means smaller slices for others.  Transgender persons, just as women are, are entitled to human rights, the fundamental rights that belong to every person.  Persons who are cisgender (that is, not transgender), or are transgender deserve to live, even flourish within their communities, with freedom to work, love, learn and play.  Both cisgender and transgender persons should be able to build their lives at home, at work, and in public spaces without fear for their safety and survival.  


Each human life, cisgender or transgender, is and should be the prerogative of the individual, deserving of the law’s equal protection.   It is very unlikely that people with a transgender identity simply choose their identity, unlike a freely chosen religious belief, yet the USA protects this choice of religion.  A property as intrinsic to the individual as their gender identity, whether cisgender or transgender, is something at the core of the individual.  The choices each individual makes about the expression of their gender, as a human being, whether cisgender or transgender, affect fundamental aspects of the individual’s identity at work, in school, and in the community, and are supported by our laws and policies, now at the federal level with this Supreme Court opinion.


ADF writes: “It could compel professionals from all walks of life to refer to colleagues with pronouns and other sex-specific terms according to gender identity rather than biology.”


Yes, it’s true.  Professionals really shouldn’t be assholes towards their colleagues.  That’s just... unprofessional.  Professionals don’t typically refer to colleagues with racial epithets, and professionals don’t typically refer to persons of another sex with sexualized or belittling language, either, if they wish to continue their employment.   Colleagues are supposed to be collegial, right?


Oh, and biology A person’s being transgender rather than cisgender is almost certainly due to biology, nature and not nurture.  It’s not mere chromosomes, but a complex dance of genetics, the uterine environment, chemistry, timing, and fetal brain development.  This biology appears to set the gender identity, and in some cases, about as common as natural redheads, this biology sets a gender identity deep in the brain that does not match the genitals that determine the assigned sex at birth.


ADF writes: “It puts employers like Tom in difficult positions—requiring them to treat men who believe themselves to be women as if they are in fact women, even if that results in violating the bodily privacy rights of other employees.”


These are not men who believe themselves to be women These are women whose bodies were assigned a male sex at birth, but whose gender identity deep in the brain is that of a woman.  These are men whose bodies were assigned a female sex at birth, but whose gender identity deep in the brain is that of a man.  These are non-binary people who decide to live true to their gender identity.


These are people who have made the decision to finally live as their authentic selves, deciding to stop hiding themselves within a false front matching the assigned sex at birth and constructed painfully for the purpose of protecting themselves and pleasing others.  Their gender identity is at the very core of their being.  The choices each individual makes about the expression of their gender, as a human being, whether cisgender or transgender, affect fundamental aspects of the individual’s identity at work, in school, and in the community, and are supported by our laws and policies, as affirmed by this decision of the Supreme Court of the land.


If an employer’s workplace is constructed so as be violating the bodily privacy rights of employees, whether of the same or a different anatomy or sex, that employer may want to reconsider how their workplace is set up.  I know that in the women’s room, no other woman can observe details of my anatomy, as we have doors on each stall.  Mens rooms also include urinals, but there can be dividers installed to afford the men a little more privacy.  There are very nice gender-neutral restroom designs available, should one be planning a significant remodel of the facilities.


ADF writes: “The bottom line is that ignoring biological reality in our laws threatens our freedoms of conscience, religion, and speech.”


The biological reality is that transgender people exist, and are human beings, entitled to the same basic human rights as cisgender persons.  If the existence of these people violates your freedoms of conscience, religion, and speech, I have to ask; what exactly do you expect society to do about this?  


Erasure of an entire population of human beings has been suggested by a few of your supporters, however, I suspect that would be considered a violation of the human rights of that population.


Perhaps, just perhaps, it is time to sit with your conscience, and look deep within yourself to see where these feelings come from.  A deeply held belief system is all well and good, until it conflicts with reality.  Remember that your freedoms end when they curtail the basic human rights of another, just as their rights end where they would curtail your own basic human rights.


Your religion, and your speech are your choices.  You are free to make choices that align with reality and civil behavior.  You are free to make different choices, as long as you do not curtail the basic human rights of others.


These are your choices.  Choose wisely.



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