Trump Administration: Sex Discrimination Does Not Include Gender Identity

August 19, 2019 Updated: August 19, 2019

WASHINGTON—Civil rights laws don’t protect transgender employees from being fired because of their gender identity, the Trump administration argued in a new filing with the Supreme Court.

The legal brief was filed Aug. 16 in R.G. and G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunities Commission, a lawsuit involving a transgender person, Aimee Stephens, formerly known as Anthony Stephens, who was fired by a Michigan funeral home.

In 2013, Stephens declared a desire to begin dressing as a woman while at work and was fired by Thomas Rost, the Christian owner of the business, who said he was merely upholding a sex-appropriate dress code. Rost made it clear he wouldn’t have fired Stephens for dressing as a woman outside of work. Stephens refused to comply with the sartorial rule and turned down an offer of severance pay.

The U.S. Equal Employment Opportunity Commission (EEOC) sued on Stephens’s behalf and lost at the trial level, but then prevailed in the 6th Circuit Court of Appeals. Citing a 1989 Supreme Court precedent known as Price Waterhouse v. Hopkins, the appeals court found that Stephens was fired unlawfully for failing “to conform to sex stereotypes.”

While the case was working its way through the judicial system, in October 2017, the Trump administration announced that going forward the Department of Justice would take the position that the law’s “prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se.”

The decision undid a December 2014 directive issued by the Obama administration that took the opposite position.

On April 22, the Supreme Court agreed to hear the funeral home’s appeal but a date for oral arguments hasn’t yet been scheduled. The Supreme Court will consider whether the sex-discrimination provision in Title VII of the Civil Rights Act forbids discrimination against transgender individuals, whether because of their transgender status or because they don’t adhere to culturally accepted notions of how men or women should appear or behave.

“Congress has enacted definitions of a number of terms used in the statute, but it has never enacted a Title VII-specific definition of ‘sex,’” Solicitor General Noel J. Francisco wrote in the brief.

The brief states that at one point Congress added a provision to the statute stating that “[the] terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions,” but “Congress has otherwise left ‘sex’ undefined.”

John Bursch, a vice president and senior counsel for the Alliance Defending Freedom, a Christian public interest law firm based in Scottsdale, Arizona, that is representing the funeral home, argued in an op-ed at National Review that if the business loses the case, “legal chaos and adverse consequences for everyone” will be unleashed.

“If ‘sex’ is governed by ‘gender identity,’ organizations will no longer be able to maintain sex-specific sleeping facilities, showers, restrooms, and locker rooms,” said Bursch. “Men can take jobs reserved for women, such as a position playing in the Women’s National Basketball Association, or a job as a female nurse hired to care for an elderly woman’s private needs. Scarce jobs requiring fitness tests, such as police and fire positions, can exclude women as they are forced to compete against men who identify as female.”

In its petition to the Supreme Court, the funeral home stated: “Redefining ‘sex’ to mean ‘gender identity’ is no trivial matter. Doing so shifts what it means to be male or female from a biological reality based in anatomy and physiology to a subjective perception evidenced by what people profess they feel.”