The Trump Justice Department is siding with a Christian-owned funeral home against a fired transgender employee in a major Supreme Court case that will determine whether federal law bans employment discrimination based on sexual orientation and gender identity.
The high court will hear oral arguments Oct. 8 to decide if Title VII of the Civil Rights Act of 1964 – which bars discrimination based on race, color, religion, sex and national origin – also bans discrimination based on sexual orientation and gender identity.
Lower courts have split on the issue. The U.S. Sixth Circuit Court of Appeals – which heard the funeral home case – ruled that the definition of “sex” within the Civil Rights Act encompasses sexual orientation and gender identity.
The Trump Justice Department, in a new brief, sides with R.G. & G.R. Harris Funeral Homes, a Michigan business which dismissed a biological male employee who came out as a transgender female and began dressing like a woman. The ex-employee is Aimee Stephens, formerly known as Anthony Stephens.
The funeral home’s owner is a Christian who has a sex-specific dress code requiring “male employees to wear suits and ties and female employees to wear skirts and business jackets,” the brief notes.
The question of whether transgender employees should be protected within the Civil Rights Act, the Justice Department says in the brief, should be left to Congress.
“In 1964, the ordinary public meaning of ‘sex’ was biological sex,” the brief says. “It did not encompass transgender status, which Stephens and the Sixth Circuit describe as a disconnect between an individual’s biological sex and gender identity. In the particular context of Title VII – legislation originally designed to eliminate employment discrimination against racial and other minorities – it was especially clear that the prohibition on discrimination because of ‘sex’ referred to unequal treatment of men and women in the workplace. Congress’s actions since 1964 confirm this understanding.”
Congress, the brief says, “has consistently declined similarly to expand that statute – even while amending Title VII in other respects.”
The Justice Department warns about the widespread repercussions if the Supreme Court sides with the Sixth Circuit, saying it “would render unlawful every practice that takes account of or turns on sex,” from “workplace dress codes, to sex-specific restrooms, to different male and female fitness standards.”
“Title VII cannot plausibly be construed to compel that extreme result,” the Justice Department says.
The issue, the brief says, is not “whether employers ought to be prohibited from discriminating against individuals who are transgender” but “whether Title VII as written currently bars such discrimination.”
“Fundamentally… that is a question for Congress, not the courts,” the brief says.
The case is one of three LGBT cases the Supreme Court will hear Oct. 8.
In Altitude Express v. Zarda, a gay man says he was fired by a skydiving company because of his sexual orientation. The U.S. 2nd Circuit Court of Appeals sided with him.
In Bostock v. Clayton County, Georgia, a man says he was fired as a child welfare services coordinator because he is gay. He sued and lost at the U.S. 11th Circuit Court of Appeals.
Michael Foust is a freelance writer. Visit his blog, MichaelFoust.com.
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