If 'sex' in federal law is replaced with 'gender identity,' the government will be unable to ensure equal opportunities for women.

R.G. & G.R. Harris Funeral Homes has been serving grieving families in the Detroit area since 1910. But in recent years, the Equal Employment Opportunity Commission (EEOC) has targeted this small family-owned funeral home for punishment due to their refusal to participate in an employee’s so-called gender identity preferences.

Why? To achieve its political objective: replacing “sex” in Title VII, a federal law, with “gender identity.” This means bypassing Congress to completely change the meaning of federal laws intended to advance women by including men who say they are women in the same legal categories.

If Harris Funeral Homes loses, it could be forced to pay a price few small businesses can survive—hundreds of thousands of dollars. Worse yet, women could be forced to sacrifice something priceless that they have struggled for decades to achieve: legal equality.

Harris Funeral Homes’ priority is to aid families in overcoming grief by remembering their loved one. To that end, its policies emphasize professionalism for employee dress and appearance. Consistent with the EEOC’s own manual, the company requires female employees to wear skirt suits and male employees to wear pant suits and ties.

In 2012, Harris Funeral Homes decided to part ways with an employee. That employee, a male who had been issued the male funeral director uniform and consistently worn it to that point, announced his intent to begin dressing and presenting as a woman while interacting with grieving families. That would violate the company’s dress policy, and Harris Funeral Homes decided the employee’s proposal would not be in the best interest of the grieving families it serves.

In response, the EEOC sued the Detroit business, claiming it had discriminated on the basis of sex. For this, the EEOC seeks punitive damages. On April 22, 2019, the U.S. Supreme Court agreed to hear Harris Funeral Homes’ case. That case will decide whether federal agencies can rewrite federal law.

Not only is rewriting federal law something that neither courts nor government agencies have power to do, but the proposed change would have widespread consequences for everyone, especially women. The reality is, if “sex” in federal law is replaced with “gender identity,” the government will be unable to ensure equal opportunities for women.

“Sex” and “gender identity” are not the same thing. “Sex” treats whether someone is male or female as an objective fact based in biology, while “gender identity” is a fluid, difficult-to-define concept that reduces maleness or femaleness to subjective perceptions. Replacing “sex” with “gender identity” in federal law—or state or local law, for that matter—brings about drastic changes.

For one thing, it ends equality in women’s athletics. For example, Selina Soule and other female high-school track athletes in Connecticut have been repeatedly displaced by two boys who are allowed to compete as girls, due to their alleged gender identity, under the athletic association rules. Trophies, scholarships, and opportunities to compete and advance to the highest levels are now being given to boys who believe themselves to be girls instead of the girls who earned and deserve those honors.

Replacing “sex” with “gender identity” also sacrifices women’s dignity and privacy. Organizations are being forced to allow men who believe they are women to access women’s shelters, restrooms, and locker rooms. Anchorage, Alaska, is trying to force a women’s homeless shelter to allow biological men to sleep just three feet away from female victims of rape, sex trafficking, and domestic violence—all because of gender identity demands.

“Gender identity” laws also force employers to stereotype their employees. As the employee who filed the complaint against the funeral home testified, employers must treat men who believe themselves to be women as if they are, in fact, women, unless those employees don’t “meet the expectations” of what women “typically” look like.

Ironically, in the hands of the EEOC, a law designed to bring equality to women has morphed into a tool to undo the equality women have already achieved.

There is no doubt that how to level the playing field is an important policy question. But in America, unelected officials—whether bureaucrats or judges—don’t have the power to answer that question for us. Hopefully, for Harris Funeral Homes and women everywhere, the Supreme Court will see that.