The governors of Maine, Mississippi, and Kentucky all joined together in a brief arguing that the Civil Rights Act does not, and should not, protect transgender employees.
Marilyn Drew Necci | September 10, 2018
Three state governors — Phil Bryant of Mississippi, Matt Bevin of Kentucky, and Paul LePage of Maine — along with 13 state attorneys general have filed a legal brief with the Supreme Court, petitioning them to rule against protections against employment discrimination for trans people. The brief relates to a case that the anti-LGBTQ hate group Alliance Defending Freedom have asked the Supreme Court to hear, which concerns Title VII of the Civil Rights Act of 1964.
Specifically, the case is against RG & GR Funeral Home in Michigan. In 2014, RG & GR Harris terminated a funeral director in their employ after learning that she would be transitioning from male to female. The reason given, according to the terminated employee, Aimee Stephens, was that “the public would (not) be accepting of (her) transition.” Stephens filed a sex-discrimination claim as a result of the firing, and the US Equal Employment Opportunity Commission filed suit against RG & GR Harris.
Since then, the case has been rising through the courts. An initial district court ruling against Stephens and the EEOC was overturned on appeal by the 6th US Circuit Court of Appeals. The 6th Circuit Court ruling stated that “discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.”
This is the point that the governors and attorneys general have taken issue with. In the brief they have filed with the Supreme Court, they argue that “‘sex’ under the plain terms of Title VII does not mean anything other than biological status.” At the time of the Civil Rights Act’s passage, they state, “the understanding of the word ‘sex’ did not include the expansion of that word to include ‘gender identity.’”
“The term ‘gender identity’ does not appear in the text of Title VII or in the regulations accompanying Title VII,” the brief continues. “In fact, ‘gender identity’ is a wholly different concept from ‘sex,’ and not a subset or reasonable interpretation of the term ‘sex’ in Title VII.”
The 6th Circuit Court specifically addressed this point within their ruling, however, pointing to a precedent established within a 1989 Supreme Court ruling in the case of Price Waterhouse v. Hopkins. Within that ruling, the Supreme Court found that “gender must be irrelevant to employment decisions.” “Gender (or sex) is not being treated as “irrelevant to employment decisions” if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision,” the 6th Circuit Court wrote in their ruling.
Whether the Supreme Court will hear this case, and how they will rule if they do, could have a longterm effect on transgender employment opportunities for years to come. Current concerns over the nomination of Brett Kanaugh to replace Justice Anthony Kennedy definitely point toward a negative outcome for LGBTQ rights if he is confirmed. And without federal protections, the ability of trans people to live free of employment discrimination comes down to the laws within their state. Here in Virginia, only state employees are protected from such discrimination.
So let’s all cross our fingers on this one.