Bloomberg Law
Oct. 25, 2018, 6:23 PMUpdated: Oct. 25, 2018, 8:14 PM

One Trump Agency Defies Another to Defend Transgender-Bias Rules (1)

Chris Opfer
Chris Opfer

The Equal Employment Opportunity Commission plans to continue prosecuting transgender discrimination cases, at least for now, Acting Chair Victoria Lipnic (R) told Bloomberg Law today.

The Justice Department Oct. 24 diverged from the EEOC in a case involving a Michigan funeral home, telling the Supreme Court that a federal ban on sex bias on the job doesn’t make it unlawful for businesses to discriminate based on gender identity. But Lipnic said the EEOC will continue to enforce the law based on the agency’s view: The term “sex” goes beyond biological gender at birth, and hiring, firing, and other decisions based on gender identity are a form of sex discrimination.

“The EEOC has not relented and has not retracted,” said Lipnic, who President Donald Trump tapped for the acting leadership role last year. “At some point there is going to be some new leadership at the EEOC,” Lipinc said in an interview. “I can’t predict what will happen there. I can only say this is what I’ve done and this is what I thought was important for the commission to do.”

Janet Dhillon, a corporate attorney nominated by Trump to chair the EEOC, is still waiting for a Senate confirmation vote. The confirmation process for Dhillon and other EEOC picks has hit a snag in Congress, thanks to concerns from a handful of Republicans about Trump’s nomination of Chai Feldblum (D) for another term on the commission. Those lawmakers say Feldblum, the EEOC’s first openly gay commissioner, doesn’t adequately respect religious freedom rights.

Lipnic, who is expected to remain on the EEOC as a commissioner through 2020, acknowledged that the EEOC’s position also could change if the U.S. Supreme Court decides the issue. The high court has been asked to take up three cases on whether LGBT discrimination is sex bias, banned by Title VII of the 1964 Civil Rights Act.

The EEOC says it has obtained more than $6 million, mostly settlement money, from businesses that allegedly discriminate against gay and transgender workers over the last five years. The commission in May lost the first transgender bias case it took all the way through trial.

A Justice Department spokeswoman declined to comment.

The Trump administration has been rolling back rules aimed at protecting transgendered people. The DOJ’s Supreme Court brief came days after 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. Proposed EEOC sex harassment guidance has been put on hold over Trump administration concerns about provisions stating that the harassment of LGBT workers is a form of sex discrimination.

The Justice Department and Education Department last year withdrew Obama-era guidance finding that public schools can’t force transgender students to use bathrooms that correspond with their biological gender. The DOJ has unsuccessfully defended the Trump administration’s proposed ban on transgender soldiers in U.S. military forces, which was blocked by a federal court.

DOJ Takes Lead

Harris Funeral Homes wants the Supreme Court to overturn an appeals court decision finding the Michigan company violated Title VII when it fired Aimee Stephens, a transgender worker. The EEOC successfully convinced the U.S. Court of Appeals for the Sixth Circuit that Stephens was protected by a federal civil rights law prohibiting sex discrimination at work.

The Justice Department is the only agency authorized to represent the federal government before the high court, meaning that the EEOC will likely be forced to sit out the case if the justices decide to take it up. DOJ asked the court to put that decision off until it determines whether it will review two other cases testing whether sexual orientation bias is a form of sex discrimination banned under the existing law.

But Solicitor General Noel Francisco, who represents the government before the nation’s highest court, told the Supreme Court Oct. 24 that the Sixth Circuit got the Harris Funeral case wrong. “The ordinary meaning of ‘sex’ does not refer to gender identity,” Francisco told the court in a brief.

Attorney General Jeff Sessions last year issued a memo laying out the DOJ’s position, and the similar argument that sexual orientation also isn’t covered by Title VII. Lipnic said the EEOC has continued to push its view in an effort to get the courts and Congress to weigh in.

“I was not inclined to turn my back on people,” Lipnic said. “The law should have a chance to develop and there should be breathing room. My preferred position on everything is Congress needs to decide these things.”

(Updated to include additional comments from Lipnic.)

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

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