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Transgender Bias at Work Not Banned by Law, DOJ Tells Justices

Aug. 16, 2019, 9:19 PM

The Justice Department told the U.S. Supreme Court businesses can discriminate against transgender workers without violating federal civil rights law, cementing the stance the government will take in upcoming oral arguments.

Solicitor General Noel Francisco and other Justice Department attorneys said Aug. 16 that Congress didn’t intend to include transgender status when it passed Title VII of the 1964 Civil Rights Act, and the law’s ban on discrimination because of “sex” referred to unequal treatment of men and women in the workplace. The brief to the justices also argues that Congress hasn’t passed attempts to add gender identity to the statute.

“Under this Court’s precedent, proving discrimination because of sex under Title VII requires showing that an employer treated members of one sex less favorably than similarly situated members of the other sex,” the Justice Department said in its brief.

The high court is slated this October to consider a trio of cases that grapple with whether Title VII includes protections for gay, lesbian, bisexual, and transgender workers. The Justice Department will argue against the position the Equal Employment Opportunity Commission put forward on behalf of former funeral home director Aimee Stephens, who was fired after she informed her boss she would transition from male to female.

The Justice Department said the funeral home terminated Stephens because she didn’t comply with the “sex-specific dress code.” It said the decision in her favor “would invalidate all sex-specific policies, from restrooms to dress codes.”

The DOJ represents the EEOC before the Supreme Court, but its brief to the high court shows the department will veer from the EEOC’s stance that Title VII’s sex discrimination protectionsshould cover LGBT workers. Then-Attorney General Jeff Sessions previously reversed Obama-era guidance on transgender discrimination. The Trump DOJ said in a memo that it doesn’t consider gender identity a protected category under Title VII.

Stephens’ position will be argued by the American Civil Liberties Union. LGBT advocates, along with the EEOC, have advocated for a broader view of Title VII, and cite evolving case law that says sexual orientation and gender identity are inherently tied to a worker’s sex. They cite previous Supreme Court rulings that expand the scope of sex discrimination to include sex stereotyping and same-sex harassment protections.

The funeral home, represented by the Alliance Defending Freedom, told the Supreme Court Aug. 16 that allowing sex discrimination to include “transgender status” would usurp Congress’ authority. The attorneys argued that redefining sex discrimination will cause problems in employment law, reduce privacy, and erode equal opportunities for women and girls. The courts, they argued, aren’t in the best position to balance these considerations.

The EEOC didn’t sign the brief written by the Justice Department, despite urging from the Solicitor General’s office.

In addition to Stephens’ gender identity discrimination case, R.G. & G.R. Harris Funeral Home v. EEOC, the Supreme Court will hear arguments in Altitude Express v. Zarda and Bostock v Clayton County, Georgia, which consider sexual orientation protections.

The EEOC won the Harris Funeral Home case on behalf of Stephens in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. At least five federal appeals courts have said gender identity is covered under Title VII’s protections under sex discrimination. Sexual orientation protection, however, has created a divide in federal appeals courts in recent years. The Seventh Circuit in Chicago and the Second Circuit in New York split from other appeals courts and said sexual orientation should be protected under the definition of sex discrimination.

The Justice Department previously told the Supreme Court it shouldn’t take up the Sixth Circuit decision.

The case is R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, U.S., No. 18-107, 8/16/19.

To contact the reporter on this story: Erin Mulvaney in Washington at

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