The Trump administration’s Department of Justice filed a brief August 16 asking the Supreme Court to set a legal precedent allowing employers to fire transgender employees.
The DOJ is asking SCOTUS to rule that Title VII, a federal law that prohibits employment discrimination on the basis of sex, race, color, religion or national origin, not protect transgender people. Title VII of the Civil Rights Act of 1964 generally applies to employers with 15 or more employees, including federal, state and local governments.
In 2014, President Barack Obama expanded the Civil Rights Act to include sexual orientation and gender identity, thus the actions of the DOJ would roll back protections that have been in place for the past five years.
The Trump administration has previously stipulated in 2017 that lesbians and gay men cannot claim they are discriminated against under Title VII.
There are two gay discrimination cases before the SCOTUS when the new session opens: Gerald Lynn Bostock and the estate of the now-deceased Donald Zarda. There is also the case of Aimee Stephens, a trans woman who was fired from her job at a funeral home after she came out as transgender. The latest brief from the DOJ is about Stephens’ case, which has been appealed by the funeral home for which she worked after a lower court found she had been discriminated against because she was transgender.
Stephens had informed the funeral home that she would be wearing the company’s female uniform instead of the male one. The company argued that Stephens was fired because she failed to adhere to the dress code — which they argued stipulated she dress as a man. They argued, "Maintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process."
Stephens’ case pivots on whether or not it is unlawful to fire someone under Title VII because that person is transgender. Before the Trump administration, the DOJ and lower courts had been ruling in favor of trans and gender nonconforming people more often than not. The lower court ruled for Stephens, but the funeral home appealed, sending the case to the Supreme Court.
The DOJ argues in its latest brief that the justices should throw out a lower court ruling that found in Stephens’ favor. Stephens filed her complaint with the Equal Employment Opportunity Commission (EEOC). Stephens’ case could set a precedent on whether Title VII can be widely applied to LGBTQ workers.
The insertion of a separate brief from the DOJ in the Stephens case argues that transgender people are not the gender they identify as, but the gender they were assigned at birth and as a consequence there can be no discrimination against them under Title VII.
It’s a convoluted argument that the DOJ expects will be widely accepted and widely utilized. It states, in part, “Stephens contends that sex was a but-for cause of Stephens’s termination because Harris Homes would not have fired a female funeral director who (like Stephens) sought to dress as a female. That comparison fails because it does not compare Stephens to a similarly situated individual of the opposite sex. It compares Stephens to a biological female who, unlike Stephens, seeks to dress according to the dress code for her own sex. Neither Stephens nor the Sixth Circuit has identified evidence that Harris Homes would have treated a female who sought to dress as a male any differently from the way it treated Stephens. None of the decisions of this Court that Stephens cites supports a contrary conclusion.
The brief against Stephens reads in part, "In 1964 [a reference to the year the Civil Rights Act was signed into law], the ordinary public meaning of ‘sex’ was biological sex. It did not encompass transgender status."
The brief also states "Title VII [of the act] does not prohibit discrimination against transgender persons based on their transgender status. 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,” and, "Sex stereotyping by itself is not a Title VII violation."
Trump has rolled back many Obama-era protections for LGBTQ people, instituted a trans ban against trans people serving in the military, fostered religious freedom laws and rulings that allow broad discrimination against LGBTQ people based on their sexual orientation and/or gender identity and even banned U.S. embassies from flying rainbow flags during Pride month.
Should the Supreme Court find in favor of the employers and the Trump administration in the Stephens’ case, it would stipulate that it is not illegal to fire people for being LGBTQ. Such a ruling could expand discrimination against LGBTQ people in a wide arena, including healthcare, housing, schools and any and all employment.
Stephens’ case is scheduled to be heard on October 8.