In 2007 a fifth-generation family business in Michigan, Harris Funeral Homes, hired a “Mr Stephens” who went on to work for the company as a funeral director for six years. In 2013, Mr Stephens told his employer, Thomas Rost, that he identified as a woman and wanted to wear women’s clothing at work.

Mr Rost discussed the issue with Mr Stephens and decided that they should part ways. He felt that allowing him to wear female clothing would violate the funeral home’s dress code and the mission by which it was operating. This stated that:

Harris Funeral Homes recognize that its highest priority is to honour God in all that we do as a company and as individuals. With respect, dignity, and personal attention, our team of caring professionals strive to exceed expectations, offering options and assistance designed to facilitate healing and wholeness in serving the personal needs of family and friends as they experience a loss of life.

On this basis, Mr Rost wanted to ensure that families were able to focus on processing their grief and hence the sex-specific dress code and code of conduct which the fifth-generation funeral home operator asked his employees to abide by.

This case, along with, Bostock v Clayton County, in which an employee was fired for promoting a gay softball league, and Altitude Express Inc. v. Zarda, in which a gay skydiving instructor was fired for misconduct, was decided by the US Supreme Court this week.

In a 6-3 decision, SCOTUS affirmed LGBT employment rights by determining that discrimination on the grounds of gender identity and sexual orientation is “sex discrimination”. As Justice Neil Gorsuch explained: “employers are prohibited from firing employees on the basis of homosexuality or transgender status”

This was a landmark decision which was greeted with jubilation by the LGBT+ lobby. Gay rights are civil rights now, said the New York Times in an exultant editorial.

Surprisingly, and disappointingly, two conservative judges joined the majority: a Trump appointee, Justice Neil Gorsuch, and Chief Justice John Roberts.

The nub of the issue is the interpretation of the meaning of “sex” under Title VII of the 1964 Civil Rights Act. This prohibits discrimination “because of” “race, colour, religion, sex, or national origin.”

The majority opinion written by Justice Gorsuch goes to extraordinary lengths to make a one-size fit-all test. It says: “If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred”.

The Court has redefined sex from an empirical, scientifically verifiable reality based on anatomy to a subjective feeling:

“homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

This stretches the word “sex” like a piece of bubble gum.

Justice Alito was scathing in his assessment of the majority opinion. He argues that the Court’s “duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” And he points out that Congress has had ample opportunity over the years to include sexual orientation and gender identity in anti-discrimination legislation — but has consistently refused to do so.

“There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive… A more brazen abuse of our authority to interpret statutes is hard to recall.”

“The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

His comments are worth studying.

First of all, he consults dictionaries – but finds no comfort there. “Determined searching has not found a single dictionary from that time that defined ‘sex’ to mean sexual orientation, gender identity, or ‘transgender status’.” Sex was always defined with anatomical markers. Perhaps, Justice Alito suggests acidly, the Supreme Court believes “the Members [of Congress] were not ‘smart enough to realize’ what its language means”.

He discovers, too, a contradiction. The majority opinion is that discrimination because of sexual orientation or gender identity necessarily entails discrimination “because of sex”. However, during oral questioning, a lawyer for the plaintiffs was asked whether an employer who refused to hire gays, lesbians, or transgender individuals implemented this policy without knowing the biological sex of job applicants would be discriminating “because of sex”. No, she replied, that would not constitute sex discrimination. “And she was right,” writes Justice Alito.

How about the baneful consequences of the decision? The majority brushed these aside. “Irresponsible”, says Justice Alito.

Bathrooms and locker rooms. “The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a con-fined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”

Women’s sport. “The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.”

This is already being seen in Connecticut where three school-girls have sued the Connecticut Interscholastic Athletic Conference for allowing males to compete and thus deprive the girls of scholarship opportunities. The SCOTUS decision this week places their case in serious jeopardy.

Housing. Students may be forced to room with transgender students of the opposite biological sex.

Employment by religious organisations. These entities need employees whose lives are consistent with the tenets of their faith. “Compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message. This problem is perhaps most acute when it comes to the employment of teachers.”

Healthcare. Health insurers may be forced to cover expensive sex-reassignment surgery.

What will affect everyone, as Justice Alito points out, is freedom of speech. “After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination.” And what about negative opinions about same-sex marriage? “Employers are already imposing such [speech] restrictions voluntarily,” he observes, “and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.”

The United States is a nation of laws made by Congress, not by the Supreme Court. As Justice Alito concludes in his dissent:

The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is.

Apart from playing the part of a represented body, the decision has placed the justice system squarely in the path of a litigation landslide. Watch this space.

Joseph Chigwidden

Joseph Chigwidden

Joseph Chigwidden is a Blackstone Fellow and a recent Arts/Law graduate from the University of New South Wales. He has published articles on topics ranging from Australian Indigenous rights, Australian...