Bloomberg Law
Oct. 24, 2018, 8:02 PMUpdated: Oct. 24, 2018, 8:41 PM

DOJ: Businesses Can Discriminate Against Transgender Workers (1)

Chris Opfer
Chris Opfer
Labor and Employment Deputy Team Lead

The Justice Department today told the U.S. Supreme Court that businesses can discriminate against workers based on their gender identity without violating federal law.

Solicitor General Noel Francisco told the high court that a civil rights law banning sex discrimination on the job doesn’t cover transgender bias. That approach already has created a rift within the Trump administration, contradicting the Equal Employment Opportunity Commission’s view of the law it’s tasked with enforcing.

A Michigan funeral home wants the high court to overturn a U.S. Court of Appeals for the Sixth Circuit decision finding that the company violated federal workplace discrimination law when it fired Aimee Stephens, a transgender worker. The EEOC successfully sued on behalf of Stephens in that case, but the Justice Department has the sole authority to represent the government before the Supreme Court. The DOJ told the high court that the Sixth Circuit got the case wrong.

“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 said in a brief filed with the court.

The Supreme Court is expected to decide in the coming months whether to take up the case. It’s also been asked to consider two other cases testing whether sexual orientation bias is a form of sex discrimination banned under the existing law.

The Justice Department asked the Supreme Court to first decide whether to take those two cases before making a decision on whether to review the Stephens case.

The DOJ’s brief follows a New York Times report that the Department of Health and Human Services is considering limiting its definition of gender to sex assigned at birth.

“This administration is not a friend of the LGBT community,” Greg Nevins, an attorney for Lambda Legal, told Bloomberg Law. “They can say what they’re going to say, but the courts will have the final word.”

The American Civil Liberties Union has intervened in the case and will represent Stephens if the high court decides to grant the funeral home’s request for review.

No Religious Protection

With its ruling in the funeral home case, the Sixth Circuit last year 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. It previously recognized transgender discrimination as a form of prohibited sex stereotyping.

The court said Harris Funeral Homes violated the law by firing Stephens after she told owner Thomas Rost she was transitioning to a woman.

“It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” Judge Karen Nelson Moore wrote for the Sixth Circuit.

The court rejected the company’s claim that Stephens overstepped a funeral home dress code requiring her to wear clothing corresponding to her birth gender and that allowing her to continue to work at the funeral home would distract mourners. It also said the company wasn’t protected by a federal religious freedom law, even though Rost said allowing Stephens to continue working would conflict with his Christian beliefs.

“You’re talking about someone with the same bundle of experience and qualifications coming back in the form of a woman,” Nevins said. “That sounds like not only a viable sex discrimination case but a slam dunk case.”

Congress Question?

The Justice Department—and 16 states that recently asked the Supreme Court to scrap the decision—say Congress didn’t intend Title VII’s ban on sex discrimination to cover bias against lesbian, gay, bisexual, or transgender employees.

The DOJ said Congress has specifically included gender identity as a protected class in federal hate crimes law. Because lawmakers haven’t similarly amended Title VII, the department said Congress didn’t intend gender identity bias to be covered.

The Senate passed a federal ban on LGBT bias in 2013, but that measure didn’t get a vote in the House. Similar legislation has been introduced in Congress several times over the last two decades.

“This debate highlights the fact that the crown jewel of LGBT activism since the dawn of the contemporary LGBT equality movement half a century ago— federal nondiscrimination legislation—remains unachieved,” Gregory Angelo, president of the Log Cabin Republicans, told Bloomberg Law. “As it is the strongest, cleanest, and most permanent means to achieving nondiscrimination protections, it is clear that the path to LGBT freedom in the United States rests not in the courts, but in legislatures across the country and in the nation’s capital.”

“This conservative solution is not only overdue, but necessary given the political landscape in the United States today,” Angelo said.

Laws in 20 states and Washington, D.C., directly ban employment discrimination based on sexual orientation and gender identity.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Chris Opfer in New York at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Simon Nadel at