"It is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex," said the appellate court, according to the New York Times. "Discrimination 'because of sex' inherently includes discrimination against employees because of a change in their sex."
Bursch, who served as solicitor general of Michigan from 2011 to 2013, said the funeral home wanted "to serve families mourning the loss of a loved one." He charged "the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves."
"Businesses have the right to rely on what the law is-not what government agencies want it to be-when they create and enforce employment policies," Bursch added.
The Supreme Court accepted the funeral home case on the limited questions of whether Title VII bars discrimination against self-identified transgender people based on "their status as transgender" or "sex stereotyping" under a 1989 Supreme Court decision, Price Waterhouse v. Hopkins.
Alliance Defending Freedom's brief filed with the U.S. Supreme Court argued that the Sixth Circuit's interpretation "undermines the primary purpose for banning discrimination based on sex," namely to ensure equal opportunities for women and to eliminate workplace inequalities that have held women back.
If the lower court's interpretation holds, it said, employment reserved for women like playing basketball in the WNBA or working at a shelter for abused women "now must be opened to males who identify as women." Such a definition would also undermine Title IX efforts to advance women's participation in sports and educational opportunities, it said.
"Substituting 'gender identity' for 'sex' in nondiscrimination laws also threatens freedom of conscience," the ADF petition added, saying that such interpretations have forced doctors to participate in surgical efforts to alter sex "in violation of their deeply held beliefs" and best medical judgment.
"In sum, the Sixth Circuit ushered in a profound change in federal law accompanied by widespread legal and social ramifications," the legal group charged.
Two other cases, Bostock v. Clayton County, Georgia and Altitude Express, Inc. vs. Zarda, will also go before the Supreme Court. They were consolidated because of similar claims regarding employer discrimination on the basis of sexual orientation, National Public Radio reports.
The case Altitude Express, Inc. v. Zarda involves the late New York skydiving instructor Donald Zarda, who said he was fired because he was gay. He was fired after a female customer complained. She had voiced concerns about being tightly tied to Zarda during a tandem dive, and Zarda tried to reassure her by telling her he was "100% gay," the New York Times reports.
Zarda was killed in a skydiving accident in 2014 but his estate is continuing to pursue the case.
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A divided 13-judge panel for the U.S. Court of Appeals for the 2nd Circuit ruled that the lawsuit could proceed.
Chief Judge Robert A. Katzmann, writing the court's majority opinion, said "sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination." Sexual orientation discrimination is "predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions."
"(S)exual orientation discrimination-which is motivated by an employer's opposition to romantic association between particular sexes-is discrimination based on the employee's own sex," Katzmann's decision added.
The case Bostock v. Clayton County involves a Georgia child welfare services coordinator who said he was fired for being gay, the New York Times reports.
The 11th Circuit Court of Appeals in July 2018 issued an unsigned opinion citing a 1979 5th circuit court decision ruling that firing for homosexuality is not barred by Title VII.
Most federal courts do not consider sexual orientation discrimination to be a form of sex discrimination, the New York Times reports.