The U.S. Department of Justice has levied a new attack against transgender people.
In a brief to the U.S. Supreme Court, Solicitor General Noel Francisco insisted that businesses can discriminate against workers based on their gender identity without violating federal law.
Francisco filed the brief Oct. 25 to override the Equal Employment Opportunity Commission’s support for Aimee Stephens, a Michigan trans woman who was fired from her job when she revealed she was in the process of transitioning. He argued that the EEOC, which has defended Stephens, is wrong in its assertion that she and other transgender workers are protected under Title VII of the 1964 Civil Rights Act based on gender identity.
SCOTUS is considering hearing the Stephens case in its next session.
Local activists were quick to decry the Trump administration’s latest attack on the LGBT community.
Naiymah Sanchez, transgender education and advocacy coordinator for the ACLU of Pennsylvania, condemned the DOJ’s latest move.
“It’s not a shocker that Trump and the departments working under him are trying to roll back the protections for trans people,” Sanchez said. “It just heightens our anxiety that we may not be protected in work, housing or schools. As of right now, we are protected. The ACLU and other organizations are fighting to make sure that we continue to stay protected and that the language reflects us as people.”
The latest argument of the DOJ follows its attack last July on lesbian, gay and bisexual workers, when Attorney General Jeff Sessions declared they could not file discrimination suits based on sexual orientation and gender identity.
That decision was made in advance of two separate discrimination cases brought by Kimberly Hively and Jameka Evans, lesbians who had been fired, and a case brought by a gay man, Donald Zarda, who was also fired. The federal courts found in their favor. (Zarda died in an accident prior to his case being heard, but his family pursued the discrimination suit.)
Each of the cases hinged on Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex. It also prohibits discrimination against lesbians, gay men and bisexual people — a position supported by the EEOC.
The cases were on their way, with representation by Lambda Legal, for what was expected to be more landmark legislation protecting lesbian and gay workers.
Then Sessions, in a 36-page brief, argued that employers should have the legal right to fire gay, lesbian and bisexual people based on their sexual orientation. Any employer who found homosexuality immoral or abhorrent could fire that employee, Sessions wrote, adding that Title VII didn’t cover sexual orientation or gender identity in the aforementioned LGBT cases.
Sessions’ argument was the opposite of what the lower courts had found.
In his brief, Francisco cited the decision by Sessions more than a year ago on LGBTQ people.
‘War cry against us’
Deja Lynn Alvarez, a system navigator for the Department of Health and a trainer at the Transgender Training Institute, was one of the organizers of the Oct. 23 rally for Trans Existence and Resistance in LOVE Park.
That the Trump administration is “going out of its way to target us is a war cry against us,” Alvarez said. “So many of us have been fighting for so long that we started to feel that we could breathe a little bit under Obama and that the government wasn’t waging a war against us. Now the DOJ is attacking us with claims that anti-trans discrimination shouldn’t be seen as sex discrimination.”
As with the previous lesbian and gay discrimination cases in 2017, the DOJ’s Oct. 25 argument was intended to nullify a current case slated to come before the high court. That case involves a trans woman who informed her employer she was transitioning. The employer, a Michigan funeral home, was appealing a decision by the U.S. Court of Appeals for the Sixth Circuit, which held the company violated federal workplace-discrimination law when it fired Aimee Stephens, a trans worker. The ruling held that the discrimination was due to Stephens’ gender identity.
The EEOC had sued on behalf of Stephens, but the DOJ has sole authority to represent the government before the SCOTUS. When the case reached the Supreme Court, the DOJ maintained that the lower court was wrong — exactly what Sessions argued about the lesbian and gay cases in 2017.
Now the DOJ is arguing that the law doesn’t cover trans workers because lesbian, gay and bisexual workers aren’t covered.
“The Court of Appeals misread the statute and this court’s decisions in concluding that Title VII encompasses discrimination on the basis of gender identity,” Francisco wrote. Under most state laws and also federal law, there is no explicit protection for LGBT people from discrimination in the workplace, housing or public accommodations such as restaurants, hotels or other places that serve the public. Thus, the lower-court rulings in the cases of Hively, Zarda and Evans set legal precedent for protecting lesbian, gay and bisexual — but not trans — workers.
“In a groundbreaking 8-3 decision, the full Seventh Circuit Court of Appeals ruled that workplace discrimination based on sexual orientation violates federal civil rights law,” according to Lambda Legal, referencing Hively’s case. “This came after Lambda Legal urged the Court to reverse a lower-court ruling and allow Hively to present her case alleging that Ivy Tech Community College in Indiana, where she worked as an instructor for 14 years, denied her full-time employment and promotions and eventually terminated her employment because she is a lesbian.”
Stephens’ case also was groundbreaking. The Sixth Circuit became the first federal-appeals court in the country to conclude that transgender bias is sex discrimination under Title VII of the 1964 Civil Rights Act.
“Even though trans people are protected in Philadelphia from being fired for being trans, there’s no protection for us nationwide,” said Tatyanna Woodard, community engagement coordinator at Mazzoni Center. “We have an even bigger target on our backs with Trump in office. It’s hard enough for trans people to have fair employment opportunities and I fear that more employers will fire trans workers if the Supreme Court rules in favor of trans discrimination not being considered as a form of sex discrimination.”
Woodard referenced Stephens’ case, noting, “This attack on trans lives not only affects our livelihoods, but it can affect the decisions of those in the process of transitioning.”
The court had earlier ruled that discrimination against trans workers is a form of prohibited sex stereotyping, which Hively also argued.
In Hively and Stephens cases, the judges argued it was impossible to ignore the gender identity of the women in relation to the discrimination. Thus, two different federal courts came to the same conclusion about Title VII, which is that it protects lesbians, gay men, bisexuals and transgender people.
But the DOJ argues they got it wrong.
Sanchez said the ACLU will continue to challenge the DOJ.
“The work that I am doing and other advocates statewide and across the nation are doing is helping to preserve what we currently have and making sure that people know what their rights are,” she said. “That’s the most that we can do. We can organize and strategize what to do after the midterms, but we need to make sure that we are organizing our community and building that unity because we’re powerful in numbers and we’re louder together. Once you start removing protections from the most marginalized and oppressed, then it will continue to trickle up. Eventually, we’ll all lose those protections. The most privileged would be the most protected.”
The federal courts have overwhelmingly argued in favor of LGBT workers in discrimination cases. Gender-nonconforming lesbians and transgender workers have faced significant discrimination in the workplace, with the numbers ranging between 45 percent and 75 percent. These figures also explain why so many LGBTQ people face economic hardships when getting and maintaining a job is fraught with discrimination.
Alvarez said the community is ready to fight back.
“We’re re-energizing. We are stronger now than we’ve ever been before. We’re going to be more ready for this fight than the White House expects.”
If you feel you have been discriminated against on the basis of sexual orientation or gender identity, contact the Philadelphia Mayor’s Office for LGBT Affairs at 311, or visit the website which outlines protections: https://www.phila.gov/2017-12-04-philadelphias-lgbtq-protections/.