October 30, 2018 at 1:59 pm PST | by Jon Davidson
Adding insult to injury

Jon Davidson is Chief Counsel for Freedom for All Americans. (Photo courtesy Davidson)

One of several LGBTQ cases the Supreme Court may hear this term involves a woman named Aimee Stephens who was fired from her job as a funeral director after she told her boss she was transitioning and intended to start dressing in business attire traditionally worn by women. She sued under Title VII, which prohibits employment discrimination based on sex (as well as race, religion and national origin). She won at the Sixth Circuit, which unanimously ruled that, because discrimination based on gender identity is a form of sex discrimination, she could proceed with her suit.

That court held that was true for two reasons. First, discrimination against someone who is transgender is based on a sex stereotype that people should only identify and present as the sex they were identified as at birth. Second, discriminating against an individual who is transgender necessarily takes their sex into account. It either is based on what people thought their sex was when they were born or what the individual currently knows their sex to be or both.

Just because there are separate terms for “gender identity” and “sex” doesn’t mean a job termination based on someone’s gender identity isn’t a form of sex discrimination. As the Sixth Circuit noted, if someone was fired because they converted from Judaism to Christianity, their employer couldn’t credibly argue that was not religious discrimination because Title VII doesn’t mention the word “converts.” Likewise, it’s well-settled that an employer who refuses to hire female employees who have children cannot defend that by noting that Title VII doesn’t reference the term “mothers.”

Nonetheless, in a brief filed on Oct. 24 by the Department of Justice (which these days might be better known as the Department of Injustice), they take the position that the Sixth Circuit’s decision is “erroneous.” That position is contrary to the view of the EEOC, the principal federal agency that interprets and applies Title VII, which brought the suit on Stephens’ behalf.

Together with the recently leaked Department of Health and Human Services memo, this latest legal position by the Trump administration is perhaps the worst body blow by that administration to our community. That memo apparently proposes the adoption of regulations that would consistently define “sex” under federal law as either male or female, as something that cannot be changed, and as determined by the genitals a person is born with. That position—which negates the very existence of transgender and intersex people—is a turnabout from the Obama administration’s and is inconsistent with both science and basic human dignity.

While contesting the correctness of the Sixth Circuit’s ruling, DOJ’s brief urges the Supreme Court not to take up Stephens’ case now, but instead hold it until the Court takes up and decides either of two Title VII cases dealing with sexual orientation-based employment discrimination or, if the Court takes up neither, not hear Stephens’ case at all in order to await further circuit rulings on the issue.

There are a number of reasons DOJ may be urging that. They may think the gender identity issue is harder than the sexual orientation one and that they will have an easier time winning both if the Supreme Court hears the sexual orientation issue first. While there currently is a split in the circuit courts on whether sexual orientation discrimination is a form of sex discrimination, six of 12 federal circuits agree that gender identity discrimination is. Second, having the Justice Department undermine a case brought by the EEOC is a bad visual. Third, they may not want to go up against the ACLU, which intervened on appeal in the case to directly represent Stephens.

But why is the Trump administration taking these anti-LGBTQ positions? Perhaps they are playing to biased members of their base. This may just be another effort to undo anything the Obama administration accomplished. Or it may be because the current administration is filled with anti-LGBTQ advocates, like Roger Severino, the director of HHS’s Office of Human Rights, who previously worked for the Heritage Foundation.

This should not be mistaken for a partisan dispute. One of the judges who joined the Sixth Circuit’s opinion was appointed by President George W. Bush, and numerous other federal judges who have agreed with the opinion’s conclusions also have been appointed by Republican presidents.

The non-partisan Public Religion Research Institute found last year that 60 percent of Republicans favor laws protecting LGBTQ people against discrimination. Similarly, New Hampshire, a state with a Republican governor and Republican-controlled legislature, enacted express protections against gender identity discrimination in June.

But because the strong judicial decisions so far are subject to possible review by an increasingly conservative Supreme Court, one thing is clear: enacting additional statutory protections against anti-LGBTQ discrimination is more critical than ever.

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