From the Right



Can Ruth Bader Ginsburg Make a Man Into a Woman?

Terence P. Jeffrey on

Judging by the argument that one lawyer made to Justice Neil Gorsuch, Tuesday must have been an interesting day in the restrooms at the U.S. Supreme Court.

"There are transgender lawyers in this courtroom today," attorney David Cole told Gorsuch.

"Of course, there are," said Gorsuch.

Cole was in the court to represent a biological male who decided in 2013 that he "identified" as a female -- and who then fought a family-owned Michigan-based funeral home all the way to the Supreme Court because it fired him as a funeral director when he indicated that he intended to start dressing as a female at work.

"As I was saying," Cole said a few moments later, according to the transcript of the oral argument in the case, "there are transgender male lawyers in this courtroom following the male dress code and going to the men's room and ... the Court's dress code and sex-segregated restrooms have not fallen."

"Transgender people follow the rule that's associated with their gender identity," Cole told the court. "It's not disruptive."


Specifically at issue in the court on Tuesday was whether the funeral home violated Title VII of the Civil Rights Act of 1964 by insisting that a biologically male funeral director would need to dress according to the funeral home's male dress code while he was at work.

Title VII says: "It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

In the funeral home case, the court must now decide what the word "sex" means legally when it describes an "individual's ... sex."

Are human beings male and female? Or are there additional sexes?


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