Trump admin to Supreme Court: It’s OK to fire workers for being trans
Defying massive case law to the contrary, 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.
“The statutory text and this court’s decisions make clear that…prohibition on sex-based disparate treatment bars only employment practices that treat women less favorably than similarly situated men because they are women, or vice versa,” the brief says. “Treating a transgender person less favorably than a non-transgender person because he or she is transgender does not fall within that bar.”
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, Bostock v. Clayton County and Zarda v. Altitude Express, which 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.
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.
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 Trump administration’s position 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.
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.
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.