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Analysis Law and Policy

Fired for Being Transgender or for Violating Company Dress Code? The Supreme Court Will Decide.

Jessica Mason Pieklo

In a brief filed Friday with the Supreme Court, the Trump administration says an employer can fire you for being transgender if they are really enforcing a dress code.

On Friday, the Trump administration told the U.S. Supreme Court that federal employment anti-discrimination laws do not protect LGBTQ workers. This fall, the justices will hear a trio of cases on the matter and decide whether they agree.

The administration made the arguments in a brief filed in one of those three cases: that of Aimee Stephens, a transgender Michigan funeral director who was fired once she came out at work. Stephens had been a funeral director for Harris Funeral Homes from 2008 until 2013, when she told her supervisor, funeral home owner Thomas Rost, that she had gender identity disorder and would begin transitioning at work. In response, Rost fired Stephens, saying that things “were not going to work out” if she intended to “no longer represent [herself] as a man.”

Stephens then filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging Harris Funeral Homes and Rost had violated Title VII of the Civil Rights Act’s prohibition on sex-based discrimination by firing her. A lower court initially ruled in favor of Harris Funeral Homes, but the Sixth Circuit Court of Appeals reversed that decision and held that the federal anti-employment discrimination law protects workers from being fired because they are transgender.

On Friday, the U.S. Department of Justice (DOJ) told the Roberts Court that the Sixth Circuit was wrong.

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The EEOC was initially pursuing the charge on Stephens’ behalf, but that changed once Donald Trump became president. Headed by Trump appointee Janet Dhillon, the agency—which helped shape pro-LGBTQ worker policy—is still a party in the case. But the DOJ represents the agency before the Supreme Court. And given that the DOJ is now openly hostile to civil rights and has taken the position that federal law does not protect workers like Stephens, the American Civil Liberties Union has taken over her case. The rift between the two agencies became more apparent Friday, when the DOJ filed its brief without a single EEOC attorney joining, despite reported pressure to do so.

It is not surprising that the DOJ is arguing federal law does not protect transgender employees. In October 2017, then-Attorney General Jeff Sessions reversed an Obama-era federal guidance declaring Title VII’s ban on sex-based discrimination includes discrimination on the basis of gender identity. But Friday’s filing takes that one step further: It asks the Supreme Court for a sweeping ruling enshrining the reversal into federal civil rights jurisprudence.

“Title VII does not prohibit discrimination against transgender persons based on their transgender status,” the DOJ’s brief states. “It simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”

Instead, the administration argues, “Title VII prohibits treating an individual less favorably than similarly situated individuals of the opposite sex.”

In defending Stephens’ termination, the DOJ claims Stephens wasn’t fired for being transgender, but for failing to abide by her employers’ dress code policy. “Harris Homes did not discriminate against Stephens based on sex stereotypes in violation of Title VII,” the brief continues. “It terminated Stephens for refusing to comply with Harris Homes’ sex-specific dress code.”

The administration goes on to argue that Harris Funeral Homes’ dress code is nondiscriminatory because it “burdens men and women equally.”

This regressive read of federal civil rights laws could bless any number of discriminatory employer policies based on outdated beliefs regarding gender roles.

It’s also an argument that strikes at the heart of civil rights protections for sex-stereotyping and sexual orientation discrimination claims. In siding with Stephens last year, the Sixth Circuit explained “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” That logic applies equally to the other two LGBTQ employment rights cases the Court will hear alongside Harris Funeral Homes that seek to answer whether sexual orientation discrimination is also protected under Title VII. The administration’s brief in those cases is due later this week, and it’s fair to expect the administration will argue, again, that the answer is no.

The Court is hearing these cases at a time when the stakes couldn’t be higher for LGBTQ employees. Only 20 states and the District of Columbia have laws that explicitly prohibit discrimination on the basis of sexual orientation and gender identity. Three states—Arkansas, Tennessee, and North Carolina— have laws affirmatively preventing passage and enforcement of local laws and ordinances that would protect LGBTQ employees. But if the Court accepts the Trump administration’s position, the impact would reach all employees. Workplace policies that mandate appearance standards based on an employer’s religious beliefs pertaining to assigned sex at would be perfectly fine, so long as both men and women were expected to adhere to them.

In the late 1980s, Ann Hopkins was denied partnership at her accounting firm for not being “feminine” enough. The Supreme Court would ultimately rule in Hopkins’ favor in 1989, holding for the first time that gender stereotyping is a form of sex discrimination prohibited under Title VII. The Trump administration—and attorneys from the conservative litigation mill Alliance Defending Freedom (ADF) representing Harris Funeral Homes—ultimately want the Court to undo the very notion that it’s wrong for employers to ground their policies and practices in gendered assumptions. This is regressive to the point of dangerous absurdity. It’s a terrible mashup of Mad Men meets The Handmaid’s Tale. But it’s a stance we should expect from an administration that wants the women who work for it to “dress a certain way.”

In 2015, the Supreme Court protected the dignity rights of LGBTQ people by striking down bans on same-sex marriage. This fall, the Court could wipe away much of the meaning of that dignity doctrine by siding with the Trump administration and ADF and erasing LGBTQ workers from protection under Title VII.

The Court hears oral arguments in the cases on October 8.

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