Trump administration supports business who fired transgender employee
The US Department of Justice (DOJ) has argued that it should be legal for businesses to discriminate against transgender employees.
DOJ officials filed a brief to the Supreme Court on Wednesday (October 24) arguing against discrimination protections for transgender employees on the basis of sex.
The Supreme Court is considering whether to take up the case of Harris Funeral Homes, which in March was found in violation of the 1964 Civil Rights Act over the firing of transgender employee Aimee Stephens, who was dismissed for presenting as female at work.
Title VII of the 1964 Civil Rights Act states that it is illegal “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, colour, religion, sex, or national origin.”
The Trump administration has taken a sharp shift against transgender rights, with a report in the New York Times on Sunday (October 21) alleging that the administration is planning to adopt a sweeping new definition of sex as “immutable biological traits” assigned at birth, which will effectively bar recognition of transgender people.
The DOJ brief contends that existing discrimination law “does not apply to discrimination against an individual based on his or her gender identity” and argues that the employer has a right to “apply its sex-specific dress code based on Stephens’s biological sex, rather than Stephens’s gender identity.”
The brief avoids the use of gendered pronouns to refer to Stephens outside of quotations, instead repeatedly using her name.
The submission makes clear that “the United States disagrees with the [lower court] decision” in favour of the transgender employee, suggesting the judges “misread the statute [in] concluding that Title VII [of the civil Rights Act] encompasses discrimination on the basis of gender identity.”
An explicit LGBT+ anti-discrimination law has never been passed by the US Congress due to opposition from Republicans, but the funeral home faced action on the basis of the undefined Civil Rights Act category of “sex discrimination,” which liberals argue should be interpreted as inclusive of gender identity and sexual orientation discrimination.
The DOJ brief notes that two similar pending cases are before the Supreme Court on “whether discrimination because of an individual’s sexual orientation constitutes discrimination because of such individual’s sex,” suggesting it could take a similar stance towards anti-gay discrimination if those cases are taken up.
In a statement to the press, Sarah Warbelow of Human Rights Campaign said: “Time and time again, federal circuit courts have ruled that discriminating against an individual based on their gender identity is form of sex discrimination—which is prohibited under a wide range of federal laws including Title VII of the Civil Rights Act of 1964.
“The Trump-Pence Administration is continuing down a destructive path that will put transgender people at further risk of discrimination and violence. For the Department of Justice to conveniently ignore significant legal precedent is deeply disturbing.”
The Department of Justice has taken a number of concerning stances under Attorney General Jeff Sessions, who has sought to reverse Obama-era guidance and undermine protections for LGBT+ people across the federal government.
In November 2017, Sessions issued a directive protecting “the right to perform or abstain from performing certain physical acts in accordance with one’s beliefs”, granting an unlimited license to discriminate against LGBT people based on religion.
The Justice Department also made an uninvited intervention into a discrimination case in September 2017 to argue that it’s legal to discriminate against gay employees.
The anti-transgender plan reported by the New York Times, however, emanates from the Department of Health and Human Services (HHS).
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The plan has faced some resistance since it came to light.
The director of the Centers for Disease Control and Prevention (CDC) director Robert Redfield suggested in an interview on Tuesday that the plan was “not in the interest of public health.”
Huffington Post reports that officials within the Education Department are also not yet on board with the proposals.
The outlet reports that a tense, pre-planned meeting between Education officials and LGBT+ campaigners went ahead on Monday (October 22), where doubts were voiced about the plan.
However Education Secretary Betsy DeVos has previously deferred to the White House on LGBT+ issues despite sources briefing the media of her own personal opposition to the administration’s stance. In August, her department tossed out discrimination complaints from transgender students.