Trump administration supports business who fired transgender employee

The US Department of Justice (DOJ) has argued that it should be legal for businesses to discriminate against transgender employees.

DOJ officials filed a brief to the Supreme Court on Wednesday (October 24) arguing against discrimination protections for transgender employees on the basis of sex.

The Supreme Court is considering whether to take up the case of Harris Funeral Homes, which in March was found in violation of the 1964 Civil Rights Act over the firing of transgender employee Aimee Stephens, who was dismissed for presenting as female at work.

Attorney General Jeff Sessions (Getty)

Title VII of the 1964 Civil Rights Act states that it is illegal “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, colour, religion, sex, or national origin.”

The Trump administration has taken a sharp shift against transgender rights, with a report in the New York Times on Sunday (October 21) alleging that the administration is planning to adopt a sweeping new definition of sex as “immutable biological traits” assigned at birth, which will effectively bar recognition of transgender people.

The DOJ brief contends that existing discrimination law “does not apply to discrimination against an individual based on his or her gender identity” and argues that the employer has a right to “apply its sex-specific dress code based on Stephens’s biological sex, rather than Stephens’s gender identity.”

The brief avoids the use of gendered pronouns to refer to Stephens outside of quotations, instead repeatedly using her name.

The submission makes clear that “the United States disagrees with the [lower court] decision” in favour of the transgender employee, suggesting the judges “misread the statute [in] concluding that Title VII [of the civil Rights Act] encompasses discrimination on the basis of gender identity.”

Aimee Stephens

An explicit LGBT+ anti-discrimination law has never been passed by the US Congress due to opposition from Republicans, but the funeral home faced action on the basis of the undefined Civil Rights Act category of “sex discrimination,” which liberals argue should be interpreted as inclusive of gender identity and sexual orientation discrimination.

The DOJ brief notes that two similar pending cases are before the Supreme Court on “whether discrimination because of an individual’s sexual orientation constitutes discrimination because of such individual’s sex,” suggesting it could take a similar stance towards anti-gay discrimination if those cases are taken up.

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