RFI, Islamic Scholars File Brief in Supreme Court on Sexual Orientation and Gender Identity

The Supreme Court has granted certiorari and consolidated three cases dealing with sexual orientation and gender identity in the workplace. These cases will resolve a circuit split over whether the term “sex” in Title VII of the 1964 Civil Rights Act prohibits discrimination only on the basis of biological sex, or whether the term also covers sexual orientation and gender identity. This short podcast provides a thorough discussion of the issues involved in these cases.

RFI’s Islam and Religious Freedom Action Team has filed an amicus brief, joined by two scholars of traditional Sunni Islam, in support of the employers. The purpose of the brief is to set forth orthodox Sunni Islam’s position that sex is biologically determined upon conception, and that to interpret “sex” to mean gender identity would have applications that impinge on Muslims’ religious rights. 

The brief explains that, like other faiths,

Islam teaches that God designed and created two distinct and complementary sexes, male and female, for conjugal union and reproduction. God assigns biological sex at creation as a gift, a blessing. Resistance to or rejection of one’s assigned sex is rebellion against the created order…

Islam considers it sinful for men to imitate women and women to imitate men. If “sex” in the 1964 Civil Rights Act is interpreted to mean “how a person chooses to identify their gender,” then Muslim-run businesses, schools, and organizations will be forced to hire those who, during their working hours, openly engage in a practice that Muslims deem to be sinful. This amounts to requiring Muslim-owned businesses to endorse this practice and provide a platform for it.

The brief further argues that if the court interprets “sex” in the 1964 Civil Rights Act to include transgender status, 

then a Muslim-run business, school, or organization that has multi-stall sex-specific bathrooms will be required to allow men claiming to be women to use the women’s bathroom. This dramatic change in legal obligations will demand violation of religious conscience, cessation of business, or new accommodations that will cause an undue burden on religious employers and their Muslim employees.

The brief makes clear, though, that this position does not imply a denial of “the human dignity or respect due to an individual who identifies as transgender.” Rather,

for Muslims the moral issue is not refusal to accept the person who identifies as homosexual or transgender, but rather it is about the Muslim’s religious obligations, rights, and responsibilities in a society that would mandate that people be treated based on their personal identity preference in disregard of their biology.

As far as we know, RFI’s brief marks the first time that classical Islamic scholars have weighed in on a Supreme Court case to explain the ramifications for Muslim religious practices.

Another group of Muslim leaders has filed an amicus brief supporting the employers. Their brief sets forth Islam’s position on sexual relations between those of the same sex, and likewise discusses the violation of Muslims’ religious liberty if “sex” in Title VII is interpreted to cover sexual orientation.

Taking a contrary position, a group of progressive Muslims has filed an amicus brief supporting the notion that Title VII should be interpreted to cover sexual orientation and gender identity. Essentially, they argue that if “sex” is not interpreted as broadly as possible, then discrimination against Muslims will also be permitted. The progressives argue that changing one’s sex is analogous to changing one’s religion. The briefs that RFI and the Muslim American leaders filed roundly reject these arguments.

These dueling amicus briefs reflect diverging trends in the American Muslim community between secular progressive and traditional approaches to Islam. The former tends to see religion through a lens of identity, while the latter tends to value the preservation of religious beliefs and practices.