Constitution Daily

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Administration opposes transgender civil rights shield

October 25, 2018 by Lyle Denniston


Taking its strongest stand so far against applying civil rights law to protect transgender people, the Trump Administration outlined its new position in a filing Wednesday at the Supreme Court.  Although it urged the Court to hold off ruling on the issue for the time being, it explicitly switched its own legal position and indicated that it now flatly opposes such protection in the workplace under a 1964 civil rights law, Title VII, which bans sex bias on the job.

Administration lawyers did so as attorneys for the U.S. Equal Employment Opportunity Commission – the main agency that enforces Title VII—in the very case in which that agency had taken the opposite legal position and won in a federal appeals court ruling last March.

A Detroit-based chain of funeral homes has taken that case to the Supreme Court, arguing that the 1964 ban on discrimination “because of sex” does not include bias based on “gender identity.”  Its appeal challenges a March 7 ruling by the U.S. Court of Appeals for the Sixth Circuit in EEOC v. Harris Funeral Homes.

In that decision, the business’s appeal contended, the Sixth Circuit Court ordered the funeral homes’ owner “to allow a male funeral director to dress and present as a woman at work.”  That amounted to “judicially amending the word ‘sex’ in Title VII,” the business’s lawyers asserted.  The Supreme Court has not yet scheduled a time to act on that appeal.

While that appeal contends that the federal appeals courts “are irreconcilably split” on that issue, the Trump Administration’s lawyers told the Court in their new filing that the split is not yet deep enough to justify the Justices granting review at this point. 

What was most significant about that document, though, was that it made explicit that the Administration has now settled firmly on this position: “Title VII does not apply to discrimination against an individual based on his or her gender identity.  Notably, Congress has specifically prohibited discrimination based on ‘gender identity’ [in other laws]…It has not included similar language in Title VII as originally enacted in 1964 or in any amendment in the 54 years since.”

The Administration has been developing its view on transgender rights since soon after President Donald Trump took office early last year.   After the Supreme Court had previously agreed to decide whether another civil rights law against sex bias – Title IX, involving education programs paid for with federal funds – applied to transgender people, the Administration said it was reviewing its position but at least would no longer insist that schools getting federal aid had to allow students to use bathrooms matching their gender identity.

That case involved a high school youth in Virginia, Gavin Grimm, who was assigned female gender at birth but later identified as male.  The Supreme Court did not rule on his case, but sent it back to lower courts.  Grimm, who has since graduated from high school, is still pursuing his claim for money damages based on his claim of bias under Title IX and under the Constitution’s guarantee of legal equality.  The school board had a policy requiring students to use bathrooms at school based on their gender at birth.

So far, Grimm has been winning his case in a federal trial court in Norfolk, allowing his case to move forward toward a trial, but there have been recent discussions about potentially settling the case without further court action.

The Administration apparently is continuing its internal review of the overall policy it intends to apply regarding claims of transgender rights.  Last weekend, The New York Times published some of the contents of an internal memo that the story said is now circulating among Administration agencies, advocating the view that gender identity should always be determined  as a legal matter by what was assigned on a person’s birth certificate.  It is unclear whether that approach will be adopted across the Administration.

In the meantime, the filing in the Supreme Court on Wednesday indicated that the current Administration will line up in court cases against the extension of Title VII – and, presumably, Title IX, too – to claims of discrimination by transgender people.  

The Administration has already made clear in pending cases in lower federal courts that it opposes extending protections against sex bias to claims of discrimination based on sexual orientation – that is, bias against gays and lesbians.   There are now two cases pending at the Supreme Court on that question.

In Wednesday’s filing, Administration lawyers urged the Justices to take no action on the funeral home case involving Title VII and gender identity bias, until after the Court decides whether to hear one or both of the cases involving that law and its possible application to sexual orientation cases.  The outcome of review of that issue, the new filing said, could have a bearing on the similar issue regarding the same law and gender identity discrimination claims.

The two sexual orientation cases are fully briefed and ready for action by the Justices at any time.  So far, the Administration is not involved in either of those cases.

It is involved in the funeral home case on gender identity, however, because that is a case that originated with a government agency, the EEOC.  The agency went to court in support of a funeral home employee, Aimee Stephens, who was assigned male identity at birth and worked at the funeral home for more than five years as a male.  More recently, Stephens identifies as a female, and insisted on wearing female clothing to work.

The religiously devout owner of the funeral home where she worked believes that a person’s sex is an “immutable God-given gift” and this faith precept forbids the company from allowing an employee to deny their sex while remaining on the payroll.  Stephens was fired for refusal to obey a company dress code that required her to wear male clothing.   Stephens complained to the EEOC about alleged discrimination based on gender identity, and the agency ultimately wound up suing along with her to challenge the alleged violation.

The agency and Stephens won the case in the Sixth Circuit.   Even though the Trump Administration was in the process of changing its legal position on transgender rights while that case was moving through the lower courts, EEOC’s own lawyers continued to hold to their agency’s position.  They did so in a filing in the Sixth Circuit Court as recently as last October, before that court ruled.

Because the agency and Stephens are on the other side of the funeral home chain’s appeal to the Supreme Court, they were required to respond, and they had a deadline of Wednesday to do so.

The EEOC’s own legal staff did not handle the agency’s response; instead, only Justice Department lawyers were listed on the filing.  The third-ranking official of the Justice Department, Solicitor General Noel J. Francisco, who controls when government agencies may pursue appeals, signed the new document along with other Department attorneys.   One of the others is a lawyer, Eric Treene, whose special assignment is to work on issues regarding religious freedom.

Stephens’ lawyers urged the Justices not to grant review of the case, arguing that the Sixth Circuit Court did not actually rule in a definitive way on whether Title VII applies specifically to gender identity bias.  Thus, this would not be a good test case on the question, the filing asserted.

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011.  


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