The U.S. Supreme Court issued a ruling yesterday that makes the nation’s high court look more like a uber-legislative body than a judicial one. The Court declared that the federal prohibition of employment discrimination based on sex in the 1964 Civil Rights Act also prohibits discrimination on the basis of “sexual orientation” and “gender identity.” In redefining the term that describes biological sex, the Supreme Court took the question of protected categories out of the hands of the American people and once again created judicial legislation.

Justice Alito’s dissent noted that legislation has been introduced for the past 45 years to incorporate sexual orientation into Title VII and in the past few years there has been an attempt to include gender identity. None have passed the required process to be incorporated into law, the process that speaks on behalf of the American people. Instead, yesterday six unelected judges decided to usurp the legislative process and insert “protections” that the American people time after time have failed to institute. There was not enough political will to incorporate these terms — just judicial will of the six justices.

Judges should not be allowed to rewrite the Civil Rights Act to add gender identity and sexual orientation as protected classes. It is clear that the Civil Rights Act included the term “sex” to protect women from being discriminated against in the workplace. It fought the idea that women were less equal to perform a job than men. Nowhere did Congress intend to include sexual orientation or gender identity when protecting women against discrimination. This opinion demeans workplace advancement of women and makes a mockery of our representative form of government. We’ve already witnessed in recent years how courts have used the redefinition of words as a battering ram to crush faith-based businesses and organizations. This opinion is no different, and it poses a dangerous threat to religious liberty.

The court’s insistence that a Christian funeral home must retain a man who was hired to assist and comfort grieving families even though he decided after six years to show up in women’s clothing, threatens its freedom to operate according to its understanding of sexuality that is rooted in the facts of science and human history. The Harris Funeral Homes, a family operated business for more than a hundred years, was challenged by a male employee who said that he would no longer follow the company dress code of wearing sex-specific clothes for work.

It’s time that unelected judges end the practice of usurping the will of the American people, especially with such strong implications for religious liberty. If the American people wanted to add terms to any law there is a remedy, and it is not the opinion of the justices.

Originally published here.

Idaho State Bengals Battle the ACLU

In sports, you win some and you lose some. Everyone knows and accepts this. But being cheated against is any athlete’s worst nightmare. It’s a form of theft, taking away years of training in a moment of dishonesty. And when it happened to Mary Kate Marshall, a sprinter for the Idaho State University Bengals, she decided to act.

A competitor in a number of championship races, Mary Kate was astonished to be placed in a lower racing category after losing a race. It’s not that Mary Kate is a sore loser — it’s that she lost to a man.

“When I lose to another woman, I assume that she must train harder than I do and it drives me to work harder,” says Marshall. “If I lose to a man, it feels completely different. It’s deflating. I wonder whether he has to work as hard as I do, whether he was even trying, or was that an easy race for him. It makes me think that no matter how hard I try, my hard work and effort will not matter.”

This experience led Mary Kate and her fellow Tiger Madison Kenyon to file a lawsuit, with the help of FRC’s friends at the Alliance Defending Freedom, to stop biological men from competing in women’s sporting events. And it also led Idaho State Rep. Barbara Ehardt, R-Idaho Falls, to author the Fairness in Women’s Sports Act.

Ehardt knows something about women’s athletics. For 15 years, she was an NCAA Division I women’s basketball coach, serving at four universities including a stint as head coach at Cal State-Fullerton. Ehardt was herself a college basketball player who credits sports with helping her achieve her personal and professional goals. Explaining the reason for her bill, she says that it "would ensure that girls and women are competing on a fair and level playing field against other girls and women.“ And it’s not as though males can’t play sports — as the legislator notes, "boys and men have their opportunities to compete and those will not be taken away.”

The measure, passed overwhelmingly in the Idaho legislature and signed into law by Gov. Brad Little, cites a federal court ruling recognizing that men and women “have inherent differences” and that these differences are a cause for celebration. The bill also quotes from a Psychology Today article that says usually, men have “denser, stronger bones, tendons, and ligaments” and “larger hearts, greater lung volume per body mass, a higher red blood cell count, and higher hemoglobin.” In other words, with rare exceptions, men can run longer and faster than can women. So, if women compete against men in athletics, the biological deck is stacked against them.

But as you might expect, the ACLU has gotten into the act and sued. Not confident in their lawsuit that is heavy on feelings and light on facts, the ACLU is also pressuring the NCAA to remove its 2021 men’s basketball tournament from Idaho’s Boise State University, and the NCAA has said it will consider doing this at a meeting in August. The fact that the ACLU would resort to this tactic shows they know how weak their legal case is.

In response, Christiana Holcomb of the ADF writes that it is “profoundly ironic and deeply disappointing” that the NCAA is considering this action. “Comparably fit and trained male athletes will always have physical advantages over females; that’s the whole reason we have girls’ sports as a separate category.” And as Rep. Ehardt said in an interview with FRC’s Sarah Perry, the NCAA seems to be “turning on women. It’s so disappointing to see this.”

Idaho State runner Madison Kenyon put it eloquently: “Allowing males to enter women’s sports defeats an entire aspect of sports: It eliminates the connection between an athlete’s effort and her success.” She raises the key point: it’s really a matter of justice. “Sex separation in sports helps ensure that males and females each enjoy opportunities for fair competition and victory.”

Originally published here.

This is a publication of the Family Research Council. Mr. Perkins is president of FRC.