US Justice Department Says Employees Can Be Fired for Being Transgender
The DOJ argues that federal laws on sex discrimination don't include gender identity.
The US Department of Justice (DOJ) argued on Wednesday that protections against employment discrimination do not apply to the transgender community, according to Bloomberg News.
Lawyers for the federal government were responding to a decision by a US Court of Appeals for the Sixth Circuit that ruled that Farris Funeral Homes, a Michigan-based funeral home, had violated federal law by firing a transgender employee because of her gender expression.
Although the civil rights law Title VII prevents sex-based discrimination in the workplace, the DOJ argued in its brief that "the ordinary meaning of 'sex' does not refer to gender identity" and people are therefore not protected against discrimination on the basis of their gender identity.
"The Sixth Circuit’s opinion ... erases all common, ordinary understandings of the term 'sex' in Title VII and expands it to include 'gender identity' and 'transgender' status," the brief says.
The DOJ’s brief does not mean that it has the power to enforce its views on gender discrimination, according to the Daily Beast. That responsibility falls on the Equal Employment Opportunity Commision (EEOC), a semi-independent federal agency that oversees federal workplace discrimination laws. This encompasses all nationwide cases, including LGBTQ people in states that aren’t protected by local legislation.
“EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation,” the EEOC wrote on its website.
The Sixth Circuit had ruled in favor of Aimee Stevens, who was fired from the funeral home in Michigan after she came out to her coworkers and started using clothing to express her gender identity. The EEOC represented Stevens in a lawsuit and won in court, citing Title VII. The Michigan funeral home and 16 US states hope to overturn this decision by taking it to the federal level with the Supreme Court.
Workplace discrimination is a common issue for transgender people in the US. The unemployment rate for trans people is three times the national average, and last year, 27% of transgender people who held or applied for a job said they were fired, did not receive the job opportunity, or did not receive a promotion because of their gender identity.
Only 20 states currently have laws in place to protect transgender people because of their gender identity.
While the DOJ can’t overturn the Sixth Circuit’s decision decision, it can influence the Supreme Court’s decision if the top judicial body decides to take the case. If the Supreme Court rules in favor of Harris Funeral Homes, the EEOC would likely have to enforce the Supreme Court’s decision.
The DOJ’s brief highlights the Trump administration’s attitude toward the LGBTQ community, which runs counter to the Obama’s interpretation of Title VII. A few days earlier, the New York Times published a leaked report from the Department of Health and Human Services (HHS) that revealed that it wants to change the definition of the term gender. It aims to reduce gender to “male or female based on immutable biological traits,” that can be found “on a person’s birth certificate, as originally issued.”
“It’s purely political,” Shannon Minter, legal director for the National Center for Lesbian Rights, told the Daily Beast in regard to the HHS brief. “It has no practical impact except for sending a message and encouraging discrimination.”
The Department of Education also dismissed multiple Title IX complaints from transgender students, according to a report by the Daily Beast. Title IX prevents gender discrimination and other forms of prejudice within education programs.
The Senate passed a nationwide ban on bias against the LGBTQ community in 2013, but the ban didn’t get approved by the House of Representatives. Similar legislation has been introduced in Congress over the past two decades.
“This debate highlights the fact that the crown jewel of LGBT activism since the dawn of the contemporary LGBT equality movement half a century ago, federal nondiscrimination legislation, remains unachieved,” Gregory Angelo, president of the Log Cabin Republicans, told Bloomberg Law.
The Supreme Court is anticipated to make a decision about whether they will hear Stevens’ case in the next few months.