DIVE: Trump asks SCOTUS for anti-trans discrimination
Such a ruling would undermine all "sex" nondiscrimination protections.
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The Trump administration has asked the Supreme Court to declare that it’s perfectly legal to fire someone from their job simply because they are transgender. (That sentence contains no hyperbole.)
If you haven’t heard, this October SCOTUS will hear a trio of cases related to LGBTQ employment protections. Two of them relate to firing someone for their sexual orientation. It was inevitable the Court would take them up because two different circuit courts ruled differently in similar cases, and one of SCOTUS’s primary goals is to ensure that federal law is enforced consistently across the country.
The third case, which we’re going to focus on today, is called R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, or “the funeral home case” for short. Aimee Stephens was an employee for Harris Funeral Homes in Michigan when she announced that she would be transitioning, including switching to wearing the women’s uniform. Owner Thomas Rost objected to her wearing the women’s uniform and fired her for it. With help from the Equal Employment Opportunity Commission (EEOC), she sued, and the Sixth Circuit Court of Appeals agreed that she had been fired illegally.
Harris Funeral Homes, represented by the anti-LGBTQ hate group Alliance Defending Freedom, is asking the Supreme Court to overturn that decision. Curiously, they’re no longer asserting a “religious freedom” argument to justify the firing, but they are challenging the appeals court’s interpretation that Title VII protects transgender employees. The Trump administration agrees with them.
Before I get into what exactly the Trump administration said in its brief this week, I want to offer a quick recap of how Title VII has been interpreted in the past. That way you can understand just how much is at stake — and just how vile Trump’s arguments are. I’ll also show you some of what ADF is similarly arguing, which is far less subtle in its transphobia.
Does “sex” include “gender identity”?
Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone on the basis of “sex” in employment. What that word “sex” means and how it should be interpreted under the law is at the core of transgender discrimination cases like Stephens’.
Now, it’s important to remember that the law does not always interpret words the way everybody else does. Through sociology and queer theory, we’ve come to understand that “sex,” “gender,” “sexual orientation,” and “gender identity,” are all separate dimensions of identity. But those words aren’t necessarily defined as such in the law, which is why it’s up to courts to figure out what the words that have been used actually mean in practice.
It can be tempting to believe that these cases are an ultimate showdown, where on one side you have conservatives arguing for a narrow “biological sex” definition — they do, in fact, routinely cite dictionaries to try to make this case — and liberals arguing for an expanded definition that includes “gender identity.” Courts, however, do not like to be seen as writing new law, so it’s actually a tall order to ask them to create a new category. Instead, the tactic has been to show them that discrimination against trans people is made “on the basis of sex” without “expanding” the definition of “sex” to do it.
It’s important to note, however, that SCOTUS has twice expanded that definition itself. In the 1989 case Price Waterhouse v. Hopkins, the Supreme Court concluded that it is illegal under Title VII to discriminate on the basis of “sex stereotypes.” Ann Hopkins had been denied a partnership at the firm because they thought she was too aggressive and didn’t act womanly enough. The Court agreed that relying on such stereotypes violated the law.
Then again in 1998’s Oncale v. Sundowner Offshore Services, the Supreme Court expanded Title VII’s interpretation to include sexual harassment between people of the same sex. (The law really hadn’t accounted for that before based on the assumption that it would only be men harassing women.) Writing for the unanimous court, Justice Antonin Scalia notably emphasized the important of interpreting laws beyond what Congress originally envisioned:
As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.
So while transgender people might not have been on Congress’ mind back in 1964, that shouldn’t stop the courts from protecting them under Title VII.
Victories for transgender workers
The precedents of these two cases has actually set up several victories for transgender plaintiffs over the past decade. One of the most compelling rulings was actually way back in 2008. A federal judge concluded that a plaintiff named Diane Schroer had indeed been illegally discriminated against when the Library of Congress fired her for transitioning. But rather than try to reinterpret the word “sex,” Judge James Robertson made a thoughtful analogy.
Imagine an employer who doesn’t discriminate against Jews or Christians, he wrote, but that does discriminate against people who convert between the two. Discrimination against such converts would easily be considered discrimination “because of religion.” Transition is just as obviously discrimination on the basis of sex.
One of the biggest early victories was a few years later in 2011, when the Eleventh Circuit Court of Appeals ruled in favor of Vandy Beth Glenn, a woman who’d been fired from the Georgia General Assembly because her supervisor found her transition “unsettling” and “unnatural.” Even the super anti-LGBTQ judge William H. Pryor agreed that to “presume that men and women’s appearance and behavior will be determined by their sex” clearly relies on sex stereotypes. Thanks to the Price Waterhouse case, Glenn won her case and established a precedent that has protected trans workers in three states.
The following year, the EEOC issued its own ruling that transgender people are protected under Title VII. That case dealt with Mia Macy, who was denied a job with the Bureau of Alcohol, Tobacco, Firearms, and Explosives because of her transition during the application process. Citing both Glenn’s case and particularly Price Waterhouse, the EEOC ruled that Title VII extends to gender discrimination “and not just discrimination on the basis of biological sex.” This paragraph from the opinion spells it all out:
When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment “related to the sex of the victim.” This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In each of these circumstances, the employer is making a gender-based evaluation, thus violating the Supreme Court’s admonition that “an employer may not take gender into account in making an employment decision.”
Since then, the EEOC has taken up various cases for transgender victims of discrimination. For example, in 2015, the EEOC ruled that the Army had illegally discriminated against Tamara Lusardi, a transgender civilian employee who was prohibited from using the women’s restroom in the workplace. “There is no cause to question that Complainant — who was assigned the sex of male at birth but identifies as female — is female,” the decision explained.
This speaks to the fundamental importance of recognizing transgender people under Title VII. If they aren’t respected according to their gender identity, the law essentially doesn’t protect them from sex discrimination. Lusardi, Macy, Glenn, and others filed complaints because they were treated differently from other women. It wouldn’t make sense for them to claim they were being treated differently from men because they aren’t men.
The EEOC also took up Aimee Stephens’ case, filing a suit on her behalf. In 2018, the Sixth Circuit Court of Appeals agreed that “sex” was a determining factor in the funeral home firing her. They concluded that however distinct gender identity may be, it’s impossible to separate from a person’s sex:
Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens’s sex impermissibly affected Rost’s decision to fire Stephens.
ADF appealed, and now we’re at the Supreme Court. But the EEOC’s role in the case speaks to how troubling it was to learn this week that the Trump administration was pressuring the EEOC to reverse its seven-year precedent and stop advocating for transgender workers.
And now we get to see what the Trump administration really thinks.
The Trump administration’s brief
It’s worth noting that last year, the Trump Department of Justice (DOJ) urged SCOTUS not to take Stephens’ case. Sure, take the sexual orientation cases, DOJ said, but rule on them first (against LGB people) — then use that precedent to rule on the gender identity case. We got a pretty clear view of the administration’s argument in favor of anti-trans discrimination then, but it’s even clearer in the new brief filed Friday.
The DOJ brief tries to caveat that it’s not saying trans people shouldn’t be protected from discrimination — merely that they currently aren’t. This is fairly hard to believe given everything the Trump administration has done to dismantle transgender protections, including the DOJ itself rescinding workplace protections the Obama DOJ had put in place.
To make sense of the administration’s argument, you have to buy into two separate premises:
“Sex” only means “biological sex,” and thus does not account for transgender identities in any way.
Sex stereotyping notwithstanding, discrimination only occurs if males or females are treated unequally.
If you don’t buy into both of these premises, the argument falls apart entirely. For example, if sex does include gender identity, then it’s easy to show that treating a trans person differently fits the kind of discrimination outlined by the second pillar. Conversely, if sex stereotyping is not confined to such narrow parameters, then even if gender identity is not respected as “sex,” such different treatment is still discrimination. Both pillars have to support each other, and neither is particularly strong.
As I alluded above, the administration takes great lengths to demonstrate how the word “sex” was defined by dictionaries in 1964. It also argues that because Congress has since sought to protect “gender identity” separately in other legislation, this proves that “sex” as used in Title VII does not include gender identity. This is misleading, as the two are not mutually exclusive. In the wake of courts mostly rejecting transgender plaintiffs until the 2000s, Congress had every reason to clarify that transgender people are protected. Its failure to do so does not preclude that they weren’t already protected.
And let’s be clear, defining “sex” so narrowly largely erases the experience of transgender people. Indeed, it has long been a transphobic trope to define trans people entirely by their genitals, their DNA, or whatever other arbitrary “biological” component can be contrived. Doing so completely negates their lived experience, including how they experience their “sex,” how others perceive their “sex,” or how they otherwise engage with the concept. It requires ignoring how everybody else in the world interacts with their own sex to create a special exception for trans people.
Forcing Stephens to only be seen by the law as “male” allows the administration to argue that she is only similarly situated to other “males” and other transgender people. As the brief asserts, “However the Court defines ‘transgender,’ it is not the same as biological sex.’” As such, they argue that Rost didn’t treat her any differently than he would other males; he only treated her differently than cisgender people. Given he would also have allegedly treated transgender men in the same way — requiring them to continue wearing the female uniform — he wasn’t discriminating on the basis of sex. (I know many trans men who are bald and/or have facial hair, so I somehow doubt Rost would prefer such individuals still wear a skirt, but that’s the claim.)
It’s as I explained above that if the law doesn’t recognize trans people’s gender, it doesn’t protect them at all. In a sense, the administration isn’t really recognizing Stephens’ gender at all, seeing her only as transgender, and comparing her only to other transgender people irrespective of their gender.
This is where that second pillar comes in, the one requiring all males or females be similarly mistreated for discrimination to be evident. By completely separating transgender status from sex, it sets the administration up to make the incredible claim that Rost wasn’t treating any gender differently from another gender:
The employer treats transgender individuals less favorably than non-transgender individuals. But so long as the employer treats transgender individuals of both sexes equally, it has not discriminated against either males or females. Put differently, if an employer discriminates against a transgender individual, the less favorable treatment is not the “consequence” of that individual’s sex.
The administration paraphrases this argument again a few pages later:
Here, Harris Homes did not violate Title VII because it did not treat employees of Stephens’s sex (male) less favorably than similarly situated employees of the opposite sex (female).
And just in case you had any doubt how insistent they were on erasing Stephens’ gender, here’s one more excerpt:
Stephens argues that Harris Homes would not have fired Stephens if Stephens were biologically female and sought to dress as a female, and therefore Stephens was “fired because of [Stephens’s] sex.” That analysis, which the court of appeals also embraced, is fundamentally flawed because it compares Stephens to a female who is not similarly situated. Stephens is biologically male and sought to dress according to the dress code for the opposite sex. In contrast, the hypothetical woman Stephens posits would be dressing according to the dress code for her own sex. In other words, the hypothetical woman is not similarly situated to Stephens because the woman differs from Stephens in an additional way beyond sex: the woman (unlike Stephens) is not presenting as transgender.
It’s confusing, but what the DOJ is actually arguing here is that it isn’t just that Stephens is not protected as a transgender person. They’re actually arguing that the fact that she’s transgender justifies her being treated differently.
This is all to protect the sanctity of sex-specific dress codes. The administration wildly claims that the appeals court’s ruling would make any distinctions based on sex illegal, asserting that “real physiological differences” justify such distinctions:
Or, in short:
Through all of these claims, you might be thinking, “What about sex stereotypes? Didn’t the Supreme Court rule that relying on sex stereotyping is a form of sex discrimination? Isn’t ‘pants vs. skirts’ a really obvious form of stereotyping?” You’d be correct on all fronts.
The Trump administration tries to get around this point by claiming that Price Waterhouse “did not recognize sex stereotyping as a novel, freestanding category of Title VII liability.” Sex stereotyping can be used as evidence, they claim, but not as the sole proof of discrimination. Per that second pillar, they still assert that it must be proven “that the employer has treated members of one sex less favorably than similarly situated members of the opposite sex.”
As such, per the first pillar, they claim: “Treating transgender persons disadvantageously based on failure to conform to sex stereotypes, without more, does not violate Section 2000e-2(a)(1) because that provision does not prohibit sex stereotypes in and of themselves.”
See how insidious it is? If you buy into completely erasing transgender people’s lived experiences, it’s easy to justify discrimination against them. The end result is that Title VII doesn’t protect transgender people at all, because according to this line of reasoning, the only “sex” they can be recognized as is one with which they do not even identify.
When headlines roared last year that the Trump administration wants to completely erase transgender people from any recognition under the law, we weren’t kidding.
Just as importantly, this interpretation would significantly weaken the Price Waterhouse standard in place. If SCOTUS agrees with this reasoning, it would become significantly more difficult for people to bring sex discrimination cases even when there are no transgender identities involved.
So not only is the Trump brief a significant attack on trans people, it’s a significant attack on all people — particularly women who are still fighting for equality in the workplace.
Hate that is a bit more obvious
Before wrapping up, it’s worth noting ADF also filed its final brief this week, defending Rost for firing Stephens. Unsurprisingly, this hate group’s arguments require far less parsing to see how wickedly they reject the legitimacy of transgender identities. Still, its arguments largely parallel the Trump administration’s, and given the close ties between the two, it’s hard not to see these two briefs as working in conjunction.
To understand the more candid disrespect contained in ADF’s brief, perhaps all you really need to see is this footnote, in which ADF insists upon misgendering Stephens throughout the brief:
Or perhaps this excerpt in which ADF completely rejects the legitimacy of transgender identities, comparing them to mental illnesses like anorexia by citing hatemonger Paul McHugh:
ADF also engages in quite a bit of self-advertisement. Transgender equality, it claims, will hurt women by denying them “fair opportunities to compete in sports,” requiring domestic-abuse shelters to “allow men to sleep in the same room as female survivors of rape and violence,” and require hospitals to provide transition services that violate their religious beliefs. It just so happens that ADF is fighting the inclusion of transgender student athletes in Connecticut, defending an anti-trans women’s shelter in Anchorage, and has supported hospitals that want to deny transition services.
But perhaps what’s most telling is that ADF dismisses the claim that they’re undermining transgender rights even more bluntly than the DOJ did:
Harris [Funeral Homes] is asking the Court not to rewrite Title VII by adding a classification that Title VII’s text omits; Harris is not asking the Court to exclude transgender individuals from Title VII. They are protected from sex discrimination just the same as everyone else.
Except under this interpretation, they aren’t. Everybody else is protected according to the sex with which they identify. ADF would single out transgender people to be excepted from that standard, thereby making irrelevant any protection the law hypothetically provides them.
There’s a lot more garbage in ADF’s brief, but that’s all you really need to know. The Trump administration and this hate group want to convince the Supreme Court that discriminating against transgender people doesn’t require a single consideration on the basis of sex, and they’re willing to completely negate the lives of transgender people to do it.
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