DOJ Argues Title VII Does Not Protect Transgender Workers

The U.S. Supreme Court building under a blue sky
By Joseph Fawbush, Esq. on August 23, 2019 10:16 AM

Nearly half the States, and municipalities across the country, have laws on the books specifically protecting transgender workers from workplace discrimination. However, courts are currently split on whether Title VII’s listing of “sex” as a protected class covers transgender people. As such, the question of what federal protections exist for transgender workers remains unclear.

This fall, the Supreme Court is set up to take the most important case on the issue to date. On October 8, the justices will hear oral arguments in Harris Funeral Homes v. EEOC. The Department of Justice submitted a brief to the Supreme Court on August 16 for the Harris Funeral Homes case. It argued that Title VII does not protect transgender workers.

Even Federal Agencies Split

It is not just States and federal appellate courts that have split on the issue. The government itself can’t seem to agree. The Department of Justice last week argued before the Supreme Court in its brief that it maintains Title VII does not protect transgender workers. The Equal Employment Opportunity Commission, on the other hand, has maintained since the Obama Administration that it does.

The DOJ’s Argument

In its brief, the Department of Justice argues that taking adverse action against a “biological male dressing as a woman” should be compared to how a “biological woman dressing as a male” is treated. Since “sex” in Title VII refers to treating similarly situated employees of the opposite sex differently, the argument goes, there is no Title VII protection.

However, that argument will have to contend with the Supreme Court’s decision in Price Waterhouse v. Hopkins, under which federal courts­­ have found that “sex stereotyping” can be the basis for a Title VII claim. This includes the 6th Circuit, which held for the plaintiff (the EEOC) in the case now before the Supreme Court.

Should Title VII be found not to encompass transgender workers, then the counterargument holds that adverse action could be taken against workers found not to meet stereotypical gender roles.

DOJ’s Arguments Expected

The DOJ’s brief should not come as a surprise. It has held that position since then-Attorney General Jeff Sessions issued a memorandum in 2017 on the issue.

The Supreme Court’s upcoming decision could have the most effect for local and small businesses in states and municipalities in which no laws protecting transgender workers currently exist. Should the Supreme Court side with the DOJ – a possibility considering that Justice Anthony Kennedy is no longer on the court – small businesses would still have to tread carefully and monitor federal, state and local laws to ensure they complied with all existing protections. Congress could very well take up the issue in the near future, as well.

Or, of course, they could just not make employment decisions based on transgender status. ­­­­­

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