Mississippi Enacts Law Defining "Sex" In Biological Terms

On May 13, Mississippi Governor Tate Reeves signed Senate Bill 2753, the Securing Areas for Females Effectively and Responsibly (SAFER) Act (full text). The law requires separate (or single sex or family) restrooms, changing facilities and educational housing space for males and females at public schools and colleges. It then goes on to define gender terms found in these as well as for other sections of Mississippi statutes as follows:

(1)  "Female" means an individual who naturally has, had, will have, or would have, but for a developmental or genetic anomaly or historical accident, the reproductive system that at some point produces eggs.

(2)  "Male" means an individual who naturally has, had, will have, or would have, but for a developmental or genetic anomaly or historical accident, the reproductive system that at some point produces sperm.

(3)  "Sex," when used to classify a natural person, means the biological indication of male and female as observed or clinically verified at birth, without regard to a person's psychological, chosen, or subjective experience, feelings, actions, or sense of self.

(4)  The following additional provisions apply to the use of "sex" and related terms: (a) There are only two (2) sexes, and every individual is either male or female. (b)  "Sex" is objective and fixed. (c)  Persons with "DSD conditions" (sometimes referred to as "differences in sex development", "disorders of sex development", or "intersex conditions") are not members of a third sex.

Liberty Counsel issued a press release announcing the governor's action.

11th Circuit: Excluding Sex Change Surgery from Health Plan Violates Title VII

 In Lange v. Houston County, Georgia, (11th Cir., May 13, 2024), the U.S. 11th Circuit Court of Appeals in a 2-1 decision held that an employer violated Title VII's ban on sex discrimination in employment when its employee health insurance plan excluded coverage for sex change surgery. The majority said in part:

The Exclusion is a blanket denial of coverage for gender-affirming surgery.  Health Plan participants who are transgender are the only participants who would seek gender-affirming surgery.  Because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status....

 By drawing a line between gender-affirming surgery and other operations, the plan intentionally carves out an exclusion based on one’s transgender status.  Lange’s sex is inextricably tied to the denial of coverage for gender-affirming surgery.

Judge Brasher dissenting said in part:

... [T] the employer-provided health insurance plan here does not deny coverage to anyone because he or she is transgender. The alleged problem with this plan is that it excludes coverage for sex change surgeries, not that it denies coverage to transgender people. On the face of this policy, it doesn’t treat anyone differently based on sex, gender nonconformity, or transgender status....

... [T]he majority’s reasoning effectively eliminates “disparate impact” as a separate theory of liability. For various reasons, Lange is proceeding here under a disparate treatment theory, which is why the claim requires a showing of discriminatory intent. But we have developed an entire body of law—disparate impact—to address claims about certain facially nondiscriminatory employment policies that harm members of a protected class.... That body of law requires, among other things, an evaluation of an employer’s legitimate business reasons for adopting the policy.....

TLDEF issued a press release announcing the decision.

Certiorari Granted in Case on Interpretation of Title VII

On Friday, the U.S. Supreme Court granted review in Muldrow v. St. Louis, MO, (Docket No. 22-193, certiorari granted 6/30/2023) (Order List), a Title VII employment discrimination case. The grant of certiorari was limited to the question of:

Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?

At issue is a Title VII sex discrimination claim by a female police sergeant who was transferred from the St. Louis police department's Intelligence Division to work in the city's Fifth District and was subsequently denied a transfer to the Second District. The Court of Appeals in Muldrow v. City of St. Louis, (8th Cir., April 4, 2022), held that absent a showing of harm resulting from a transfer, there has been no adverse employment action for purposes of Title VII. The Court's decision will impact religious discrimination in employment cases under Title VII as well as sex discrimination cases. Here is SCOTUSblog's case page with links to all the filings in the Supreme Court in the case.

Pastor's Convictions For Corrupting Minors Dismissed

Christian Chronicle reports on a March 18, 2019 decision by a Pennsylvania trial court judge vacating a long-time Church of Christ youth minister's convictions for corruption of minors and indecent exposure.  Clyde Brothers, Jr. had been sentenced to five years in prison for showing pornographic movies and performing lewd acts in front of church boys. Granting a post-trial motion, however, the court held that the state's statute of limitations barred the prosecution.