At the beginning of October, when much of the country was focused on the drama of now-Justice Brett Kavanaugh’s confirmation hearings, a group of pastors and Christian-owned businesses filed a little-noticed class-action lawsuit against the Equal Employment Opportunity Commission (EEOC) and Attorney General Jeff Sessions in federal district court. The lawsuit, filed in the Northern District of Texas, is seeking something extraordinary: a religious exemption to Title VII of the Civil Rights Act, the federal law banning employment discrimination, with regard to gay and transgender people.
The complaint on its face is as absurd as it is offensive. It’s the kind of legal filing I’d normally expect a court to dismiss almost immediately. But these are not normal times, and this lawsuit wasn’t filed in a normal federal court. It was filed in Judge Reed O’Connor’s court, which has become the conservative starting point for pipelining issues up to the U.S. Supreme Court.
Now, the issue of whether federal civil rights bans on sex discrimination also prevent gender identity and sexual orientation discrimination is one the Court could take up as early as this term. If it does, it will be in no small part thanks to O’Connor’s legal opinions. Once viewed as far-right outliers, his rulings are quickly helping to shape conservative legal jurisprudence regarding LGBTQ people—which is why we must pay attention to this most recent lawsuit, even if it is laughably bad.
This week, the Trump administration filed a brief with the Roberts Court stating that as far as the Justice Department was concerned, employers can lawfully discriminate against transgender workers. The brief was filed in the case of R.G. & G.R. Harris Funeral Homes v. EEOC, the case of Michigan trans woman Aimee Stephens. Stephens had been a funeral director for Harris Funeral Homes since 2008. In 2013, she told both her supervisor and company owner Thomas Rost she was publicly transitioning. Two weeks later, Stephens was fired.
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Rost defended the decision to fire Stephens on religious grounds, and on the grounds that Stephens would not be able to abide by his company’s sex-specific dress code if she was going to “dress as a woman.” Rost maintained he would be violating God’s law if he allowed Stephens to work as a woman. Rost argued that even if he had discriminated against Stephens for being trans, that discrimination was permissible under the Religious Freedom Restoration Act (RFRA) because of his sincerely held belief that not comporting to a biological binary of “man” and “woman” violated God’s will.
The lower court went along with Rost’s argument and held that RFRA could be used to avoid Title VII’s non-discrimination requirements. But the Sixth Circuit Court of Appeals reversed the ruling, noting specifically that to allow RFRA to trump Title VII would gut the civil rights law.
The Supreme Court is now considering whether or not to take the case. If it does, the Trump administration has made clear which side it will take. Its brief, filed Wednesday, read: “[T]he Department of Justice must interpret Title VII as written by Congress, and the court of appeals misread the statute and this Court’s decisions in concluding that Title VII encompasses discrimination on the basis of gender identity.”
“Title VII does not define the term ‘sex,’ so the term should ‘be interpreted as taking [its] ordinary, contemporary, common meaning.’ When Title VII was enacted in 1964, ‘sex’ meant biological sex,” the brief continues.
“Title VII thus does not apply to discrimination against an individual based on his or her gender identity,” the brief concludes.
The Justice Department’s brief followed reports of a leaked memo circulating from U.S. Department of Health and Human Services officials that would drastically narrow the definition of “sex” under Title IX of the Education Amendment Act, the federal civil rights law that bans sex discrimination in schools and colleges that receive federal financial assistance. According to the New York Times, the memo seeks to define sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.”
The reported language tracks with the arguments the Trump administration just filed with the Court, and, really, with all of the Trump administration’s public-facing statements on transgender rights. It also cites anti-trans decisions from Judge O’Connor himself as authority for the change.
But this rhetoric goes beyond targeting trans people alone. At issue in Harris, for instance, is not just the question of what “sex” means under Title VII. Rather, it’s about the strength of a line of Title VII cases recognizing that sex discrimination can look like a whole of things beyond just hiring or firing someone based on their sex.
In 1989, the Supreme Court in Price Waterhouse v. Hopkins ruled that sex discrimination includes “sex stereotyping,” actions that punish employees for not conforming to gender norms. In that case, employee Ann Hopkins sued accounting firm Price Waterhouse and claimed she was denied a partnership because she didn’t fit the partners’ notions of how women should act. Her supervisor had said at one point, for example, that she would increase her chances of promotion if she walked, talked, and dressed more “femininely.” The Court ruled Price Waterhouse violated Title VII by engaging in improper sex stereotyping when it denied Hopkins her promotion.
Lower courts have since taken Price Waterhouse and applied its prohibition on sex stereotyping to anti-LGBTQ discrimination, especially anti-trans discrimination beyond the workplace. The Obama administration used this logic, for example, when it issued its 2016 guidance to schools that denying transgender students access to restrooms that align with their gender identity, as opposed to their biological sex, was sex discrimination under Title IX. Schools that engaged in this kind of sex discrimination, the Obama administration said, were at risk of losing federal funding.
Conservatives, you might remember, flipped their collective lids over the Obama Title IX guidance and sued to block its implementation. A collection of conservative states led by Texas Attorney General Ken Paxton (R) sued to block the guidance, arguing the Obama administration didn’t have the authority to issue it.
Where did they file their lawsuit, you ask? In the Northern District of Texas, with Judge Reed O’Connor.
In August 2016, O’Connor issued a nationwide injunction that blocked the Obama administration from enforcing the guidance and protecting transgender students just as the school year was starting. In his order, O’Connor determined that “sex” does not include gender identity, but only “the biological and anatomical differences between male and female students as determined at their birth.”
The Obama administration appealed O’Connor’s decision, but then the 2016 presidential election happened—and an administration that had been making slow but steady progress advancing transgender rights broadly was replaced by that of President Donald Trump. Shortly after Trump took office, the Department of Education under Secretary Betsy DeVos announced it was rescinding the guidance. With the guidance rescinded, the case proceeding against it was now moot, and the Obama administration’s appeal disappeared.
The Obama-era Title IX guidance wasn’t the only fight over transgender rights conservatives picked before the 2016 presidential election. Just as they sued to block the guidance, a similar coalition of states sued to block enforcement of Section 1557, the provision of the Affordable Care Act that prohibits sex discrimination—including discrimination against trans people—in the delivery of health-care services.
Like their lawsuit challenging the Title IX guidance, conservatives filed this challenge with O’Connor. And like he did that August, in December 2016 O’Connor issued another nationwide injunction—this time blocking enforcement by the federal government of 1557. In blocking 1557, O’Connor specifically relied on the same narrow read of “sex” he had made a few months prior.
This narrow read of “sex” is, you guessed it, the same one advanced by the Trump administration in its Supreme Court brief filed Wednesday in the Harris case, and by the HHS in its leaked memo. Although the focus of the civil rights statutes in question differs—one concerns health care, one concerns schooling, and one concerns employment—the argument against protecting trans people remains virtually the same.
Let’s return to the early-October lawsuit in Texas for a moment. The plaintiffs want O’Connor to certify as a class “all churches in the United States that oppose homosexual or transgender behavior for sincere religious reasons” and then a separate class of all businesses in the United States with similar objections before issuing an order that would allow all of those class members to claim a RFRA exemption from Title VII.
It will be interesting to see how, or if, the administration proceeds in defending against the claims made. All of its policies to date suggest it would support such an exclusion. After all, this is the same administration that argued at the Supreme Court in defense of Colorado baker Jack Phillips in Masterpiece Cakeshop v. The Colorado Civil Rights Commission, and it has argued for broad religious and moral exceptions to the birth control benefit in the Affordable Care Act. It’s not difficult to imagine it agreeing in principle to this radical judicial extension of RFRA that would effectively eliminate civil rights protections for transgender and other LGBTQ people.
For now though, we wait to see if the Supreme Court will take up Harris, or whether it first takes two other cases asking whether sexual orientation bias is a form of sex discrimination at the workplace. We wait and see what the administration’s final Title IX and 1557 rules say when they are released later this fall, and whether they include the rumored narrow definition of “sex” the New York Times reported.
Finally, we wait and see what happens in the Texas RFRA litigation. Will Judge O’Connor grant religiously affiliated businesses an RFRA exemption to Title VII? It is almost absurd to type the question, except for the fact that in 2012 a for-profit craft store filed a lawsuit making the incredulous claim that businesses were people and could have religious objections, suing to block the Obama administration from enforcing the birth control benefit against it. Not only would the Supreme Court eventually agree in 2014 in Burwell v. Hobby Lobby, one of the architects of the legal reasoning adopted by the Court was one Neil Gorsuch. And with conservatives using O’Connor’s court to try and fast-track their cases up to the Supreme Court, where they clearly believe they have five votes in their favor, even the most absurd cases need to be taken very seriously.
The lives of millions of people in this country hang in the balance.