Donald Trump’s administration is urging the Supreme Court to rule that it’s legal to fire employees for being transgender.
U.S. Solicitor General Noel Francisco, who is part of the Department of Justice, filed a brief to that effect Friday afternoon, the Washington Blade reports. It comes in the case of R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, over the company’s firing of a funeral director, Aimee Stephens, after her gender transition; the owner said she violated the dress code by wearing women’s clothing. The high court will hear the case October 8 along with cases involving the firing of gay men.
At issue is whether Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also bans discrimination based on sexual orientation and gender identity. In Stephens’s case, a federal appeals court ruled that it applies to gender identity, and another appeals circuit ruled that it applies to sexual orientation in the case of the late skydiving instructor Donald Zarda, who said he was fired for being gay. A third appeals court ruled the opposite in the case of Georgia social worker Gerald Bostock, setting up the conflict that appears to have led the Supreme Court to take the case.
The position laid out in the brief signed by Francisco is that since Title VII does not explicitly say sexual orientation and gender identity are covered, they are not. “As it stands, Title VII prohibits treating an individual less favorably than similarly situated individuals of the opposite sex,” the brief says. “It simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”
To argue that Title VII does not apply to gender identity, the brief points to congressional efforts to add the characteristic to federal law, as in the never-passed Employment Non-Discrimination Act and its successor, the now-pending Equality Act. Congress “has specifically addressed gender-identity discrimination in multiple other statutes, listing ‘gender identity’ separately from and in addition to ‘sex’ or ‘gender,’” the document says.
Francisco had also argued for the lawfulness of anti-transgender discrimination in a brief filed with the Supreme Court last year, when the court was weighing whether to hear the Stephens case.
However, others, even some Republicans, have made the argument that if an employer treats a worker differently because of her gender identity, it’s treating her differently because of her sex. Of the Stephens case, a group of prominent Republicans (although none currently holding office) wrote in a friend-of-the-court brief, “Had the plaintiff been assigned female at birth (or had the employer otherwise believed her to be female in essence), she would not have been discharged for representing herself as a woman.” And eight federal appeals courts and 35 federal district courts have ruled that anti-transgender discrimination is sex discrimination, the Blade reports, citing figures from the National Center for Transgender Equality.
The solicitor general filed his brief because the federal government is a party in the Stephens case, with the EEOC, a quasi-independent federal agency, having brought the suit on behalf of Stephens. However, the Trump administration recently instructed the EEOC to stop advocating for transgender workers. No EEOC attorney signed the Francisco brief.
The government is not a party in either the Zarda or Bostock cases, but it is likely to file a friend-of-the-court brief in those, the Blade notes. The deadline for those briefs is next Friday. “Based on the litigation position it assumed in the Zarda case when it was before the U.S. Second Circuit Court of Appeals,” the Blade reports, it will probably ask the high court to declare that discrimination based on sexual orientation is legal.
Francisco has done much anti-LGBTQ bidding for the Trump administration. He argued at the Supreme Court on behalf of Masterpiece Cakeshop owner Jack Phillips, who was sued over his refusal to create a custom wedding cake for a same-sex couple because of his religious beliefs; Phillips won a qualified victory. Francisco also filed petitions urging the high court to uphold Trump’s ban on military service by transgender Americans; it has allowed the ban to go into effect while cases against it proceed through lower courts.
In the Stephens case, the primary owner of the funeral home company said that accepting her as a woman violated his religious beliefs about gender. The case hinges on Title VII, not religious freedom, but Francisco’s brief does mention the religious aspect, saying, “Harris Homes’ principal owner averred that his religious objection to employing a funeral director who would dress according to the dress code of the opposite sex applies equally to females as to males.”
The anti-LGBTQ Alliance Defending Freedom, which is representing the company, also filed a brief in the case Friday. “It is not sex discrimination for an employer to apply a sex-specific dress code or provide sex-specific changing and restroom facilities based on biological sex rather than one’s internal sense of gender,” the brief says. “Here, Harris Funeral Homes would have responded to a female employee who insisted on dressing as a man while working with grieving families the same way it responded to Stephens. Because it does not disfavor one sex compared to the other, Harris does not discriminate based on sex.”
The Human Rights Campaign quickly denounced Francisco’s brief. “The Trump-Pence administration’s filing today is both legally and morally unjustifiable,” said a statement issued by HRC Legal Director Sarah Warbelow. “Their argument is un-American, anti-business, and flies in the face of decades of federal case law, including established Supreme Court precedent. There can be no justification for such a narrow interpretation of the term ‘sex.’ Our community will not be silent, and we will not be erased.”
GLAAD issued a statement as well, noting that this is the 123rd attack by the administration on LGBTQ people: “This latest attack by the Trump Administration on protections for transgender people is egregious and could have broader implications that impact the lives of LGBTQ people nationwide.”