ABOVE: Donald Trump, Washington Blade file photo by Michael Key.
Defying massive case law, the Trump administration urged the Supreme Court late Friday to issue a ruling that federal civil rights law doesn’t cover discrimination based on gender identity, therefore firing workers for being transgender is perfectly legal.
In a 54-page brief signed by U.S. Solicitor General Noel Francisco, the U.S. Justice Department argues Congress didn’t intend to include transgender people when it passed Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex in employment.
“As it stands, Title VII prohibits treating an individual less favorably than similarly situated individuals of the opposite sex,” the brief says. “It simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”
As evidence that Congress didn’t intend Title VII to include transgender people, the briefs to the failure of lawmakers to approve legislation that would explicitly change federal civil rights law to include LGBT people, such as the Employment Non-Discrimination Act or the Equality Act.
“It has specifically addressed gender-identity discrimination in multiple other statutes, listing ‘gender identity’ separately from and in addition to ‘sex’ or ‘gender,’” the brief says. “Many states have done the same. Yet in the face of (until recently) uniform circuit precedent construing ‘sex’ in Title VII not to encompass transgender status, Congress has consistently declined similarly to expand that statute — even while amending Title VII in other respects.”
The Trump administration filed the brief because the U.S. government is a party in the case before the Supreme Court, EEOC v. Harris Funeral Homes.
The Supreme Court agreed to take up the transgender rights case along with two consolidated cases on gay rights, Bostock v. Clayton County and Zarda v. Altitude Express. The latter two will determine whether discrimination against gay, lesbian and bisexual workers is a form of sex discrimination.
The Justice Department has an opportunity to weigh in on those cases with a friend-of-the-court brief, which is due next week Friday. It’s likely the Trump administration will take the opportunity to file a brief and, based on the litigation position it assumed in the Zarda case when it was before the U.S. Second Circuit Court of Appeals, declare anti-gay discrimination is also lawful.
The litigation in the Harris case was initiated by Aimee Stephens, a transgender employee who was terminated from her job as a director at the Michigan-based funeral home after she announced on the job she’d transition.
Representing Stephens before the Supreme Court is the American Civil Liberties Union, which said the Trump administration brief is part and parcel of its anti-LGBT record.
“On Wednesday, Trump’s Department of Labor said religiously-affiliated employers should be able to fire trans people,” said ACLU staff attorney Chase Strangio. “Now they are saying all employers should be able to fire trans people.”
The owner of Harris Funeral Homes, Tom Rost, has defended his decision to terminate Stephens by saying her transition and desire to present as female would violate the business’ sex-specific dress code. Because Rost personally purchases the uniforms for his employees, he argued having to purchase a female uniform for Stephens would violate his religious freedom.
Although the question of religious freedom isn’t before the court, the solicitor general invokes that concern, referencing Rost’s testimony that allowing transgender employees to wear clothes consistent with their gender identity would be contrary to his religious beliefs.
“Harris Homes’ principal owner averred that his religious objection to employing a funeral director who would dress according to the dress code of the opposite sex applies equally to females as to males,” the brief says.
Representing Harris Funeral Homes is the anti-LGBT legal firm Alliance Defending Freedom, which filed its own brief Friday before the Supreme Court.
“It is not sex discrimination for an employer to apply a sex-specific dress code or provide sex-specific changing and restroom facilities based on biological sex rather than one’s internal sense of gender,” the brief says. “Here, Harris Funeral Homes would have responded to a female employee who insisted on dressing as a man while working with grieving families the same way it responded to Stephens. Because it does not disfavor one sex compared to the other, Harris does not discriminate based on sex.”
Undermining the positions of ADF and the Trump administration is the vast legal case law that has determined anti-trans discrimination is a form of sex discrimination, therefore unlawful.
Over nearly two decades, eight federal appeals courts and 35 federal district courts have affirmed anti-transgender discrimination is sex discrimination and unlawful, according to the National Center for Transgender Equality.
Alliance Defending Freedom urged the Supreme Court to take up the case after the U.S. Sixth Circuit Court of Appeals ruled in favor of Stephens, adding to the list of courts that found transgender discrimination is a form of sex discrimination.
The brief from the solicitor general, who’s responsible for arguing before the Supreme Court on behalf of the U.S. government, is also at odds with the position of the U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal workplace law. In the 2012 case Macy v. Holder, EEOC determined anti-trans discrimination is a form of sex discrimination, therefore illegal under Title VII.
Although the EEOC has retained that Obama-era position during the Trump administration, the Justice Department urged the agency to reverse its position Title VII is LGBT-inclusive, according to a recent report in Bloomberg Law.
No attorney affiliated with the EEOC signed his or her name to the Trump administration’s brief. The Washington Blade has placed a request in with the agency seeking comment on the filing.
The Justice Department declined to provide additional comment beyond the content of the legal filing.
It remains to be seen what decision justices will reach in either the Harris case or the Zarda and Bostock cases, although LGBT rights advocates have expressed pessimism in the aftermath of the Trump remaking the court with a conservative majority. The Supreme Court has set Oct. 8 for oral arguments in the litigation and a ruling will follow afterward.
The White House didn’t respond to a request to comment on the Justice Department brief and whether President Trump had seen the filing.