Case Insight: Bostock/Altitude Express/Harris Funeral Homes

The U.S. Supreme Court issued a troubling ruling involving three cases – Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. These cases focused on anti-discrimination laws based on sex.

There is much to criticize in the high court’s 6-3 decision, which, in effect, expands federal law to include protections on the basis of sexual orientation and gender identity. Justice Gorsuch delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. 

As Justices Alito and Thomas said in their dissent, “A more brazen abuse of our authority to interpret statutes is hard to recall.”

For background, Harris Funeral Homes had a dress code for employees that required males to be in suits and females to wear dresses. A male funeral director – employed for nearly six years who had agreed to abide by the sex-specific dress code – expressed the intent to begin dressing and presenting as a woman at work while interacting with grieving families. Ultimately, Tom Rost – the owner of Harris Funeral Homes – decided he could not agree to the funeral director’s plan, and they parted ways. A complaint was filed, and ultimately the case was combined with two other cases seeking to redefine “sex” to also include “sexual orientation” and “gender identity.” Unfortunately, that’s what has led to this troubling decision.

Everyone is now wondering about the implications, such as for women’s sports, locker room privacy, and religious liberty. The Court was clearly saving those issues for another day. Since the Court did not ultimately redefine sex, as many expected the Court may do, we believe that cases involving women’s sports and locker room privacy remain extremely important and winnable. 

Additionally, we won’t have to wait long to see what the Court does with the tension between religious liberty and LGBT issues as the Court has agreed to hear Fulton v. City of Philadelphia this coming term — a case dealing with the City’s heavy hand against Catholic Social Services due to that ministry’s beliefs about marriage. (The Independence Law Center filed an amici brief with the Supreme Court this month on behalf of Fifteen State Senators in support of Catholic Social Services in this case.)

The Independence Law Center also filed an amici brief on behalf of Dr. Paul McHugh in support of Harris Funeral Homes.  John Bursch of Alliance Defending Freedom argued on behalf of Harris Funeral Homes and Jeff Harris of Consovoy McCarthy argued on behalf of the other two employers.