Bloomberg Law
July 31, 2018, 11:32 AM

Trump Administration Rift on LGBT Worker Rights Nears Showdown

Chris Opfer
Chris Opfer

A dispute within the Trump administration over whether LGBT workers are protected by federal employment law could be coming to a head.

The Equal Employment Opportunity Commission’s position is that a federal ban on sex discrimination at work includes sexual orientation and gender identity. The Justice Department, which controls government involvement in cases before the Supreme Court, says Congress didn’t have gay and transgender workers in mind when it passed the Civil Rights Act more than five decades ago.

Lawyers for a Michigan funeral home recently asked the U.S. Supreme Court to decide whether the company had the right to fire Aimee Stephens after she told supervisors that she was transitioning from a man to a woman. The EEOC, which successfully sued on Stephens’ behalf, will have to get the DOJ’s approval if it wants to respond to that request by an Aug. 23 deadline.

“The EEOC is the premier agency to represent people who have suffered discrimination,” John Knight, an American Civil Liberties Union attorney, told Bloomberg Law. “Having them to weigh in on our side would be hugely important.”

The ACLU intervened in the case after President Donald Trump was elected, fearing the administration would change its position on the issue. Attorney General Jeff Sessions did just that in October. Sessions issued a memo saying the law doesn’t cover transgender discrimination, a reversal of the DOJ’s stance during the Obama era.

The Justice Department last year also broke with the EEOC in a separate case in New York, arguing the law doesn’t currently ban sexual orientation discrimination. That set up what one judge called an “awkward” appeals court battle, with the DOJ on one side and the EEOC on the other.

Justice Department spokeswoman Sarah Sutton declined to comment on whether the department will allow the EEOC to continue to participate in the Stephens case. EEOC spokeswoman Christine Nazer said the Civil Rights Act gives the attorney general the right to enforce the law at the Supreme Court, but she declined to comment on whether the agency will seek approval to participate in the case.

The White House has stalled EEOC sexual harassment guidance sent for review late last year. That holdup is in part because the agency said in the document that the federal anti-discrimination law bans harassment based on sexual orientation and gender identity.

Three’s Company

The Supreme Court will have three opportunities to consider LGBT discrimination when it reconvenes for the fall term.

A New York skydiving company wants the court to reverse an appeals court ruling that found the company violated the law by firing a gay instructor. A Georgia county employee who said he was fired because of his sexual orientation asked the justices to overturn a decision holding that his claims aren’t covered by the Civil Rights Act.

The cases are a “twofer,” William Olson, who represents social conservative organizations like Public Advocate and the Conservative Legal Defense and Education Fund, told Bloomberg Law. “Not only is it an effort to have a societal sanction for an immoral lifestyle, but it’s being accomplished by unelected judges who are admitting they are changing the law,” Olson said.

The funeral home case is the only one that would put the transgender discrimination question directly before the court: whether firing a female worker who previously presented as a man is a form of illegal sex stereotyping. The U.S. Court of Appeals for the Sixth Circuit in 2017 became the first federal appeals court in the country to conclude that transgender bias is a form of sex discrimination when it said R.G. & G.R. Harris Funeral Homes violated the law by firing Stephens.

The Justice Department has said firing a worker for not complying with certain gender norms could be a form of stereotyping. Still, LGBT advocates assume the department won’t adopt the EEOC’s position that the funeral home discriminated against Stephens in this case.

“We know what DOJ’s position on this is going to be because we have the Sessions memo,” Lambda Legal attorney Greg Nevins told Bloomberg Law.

Sessions June 30 announced the department was forming a religious liberty task force. Courts, lawmakers, and administrative agencies have debated how to thread the needle between religious rights and protections against discrimination.

“We don’t give up our rights when we go to work, start a business, talk about politics, or interact with the government,” Sessions said at an event announcing the task force. “We don’t give up our rights when we assemble or join together. We have religious freedom as individuals and as groups.”

Sex Stereotyping

The New York and Georgia cases concern discrimination based on sexual orientation. That includes sex stereotyping claims because the men argue, among other things, that they were fired for not complying with gender norms.

“The case law supporting sex stereotyping applied to transgender people is more widespread” than for gay workers, the ACLU’s Knight said. “We’re talking about an employer who fires someone based on the way they perceive them.”

Alliance Defending Freedom, a religious liberty group, is representing Harris Funeral Homes in the Stephens case. ADF lawyer James Campbell told Bloomberg Law that only Congress has the power to update the law to include a ban on gender identity discrimination.

“Replacing ‘sex’ with ‘gender identity,’ as the Sixth Circuit and the EEOC have done, is a dramatic change,” Campbell said via email. “What it means to be male or female shifts from a biological reality based in anatomy and physiology to a subjective perception. Far-reaching consequences accompany such a transformation.”

ADF has scored a number of recent victories at the Supreme Court. That includes convincing the justices that a Colorado baker could refuse to make a gay couple’s wedding cake on religious grounds.

The Justice Department also filed a brief in support of Masterpiece Cakeshop owner Jack Phillips. Sessions in his comments at the task force unveiling cited “the ordeal faced so bravely” by Phillips, who was sued for declining to make the wedding cake.

Solicitor Has Final Word

Attorneys on both sides of the Stephens case say they’ve seen no indication whether the Justice Department will pick a side or allow the EEOC to participate in the case. The EEOC’s authority to enforce the Civil Rights Act is limited to federal district and appeals courts.

Typically when government agencies disagree over what position to take in a Supreme Court case, they hash it out informally in front of the solicitor general. The DOJ’s top Supreme Court lawyer—a job currently held by Noel Francisco—has the final say on how the government proceeds.

“It would seem to me that the solicitor general would have great incentive to restore some respect for the written laws of the United States,” Olson told Bloomberg Law.

Francisco in a recent Supreme Court case allowed the National Labor Relations Board to make its own arguments before the justices. The NLRB argued against the Justice Department, challenging mandatory class action waivers in employment contracts. The agency was on the losing end of that case.

If Francisco doesn’t give the EEOC his blessing to participate in the Stephens case, the justices themselves may ask the commission to weigh in.

“It would seem like a reasonable and rational thing for the court to want to hear from the preeminent enforcement agency on this issue,” the ACLU’s Knight said.

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

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at