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DOJ argues against high court extending Title VII to transgendered

Title VII

The Department of Justice is urging the U.S. Supreme Court to rule that transgendered individuals are not protected from discrimination under Title VII of the Civil Rights Act of 1964.

A brief filed by the DOJ on Friday asks the high court to overturn a federal appeals court ruling that held a funeral home’s fired transgender employee was protected from discrimination under Title VII.

Title VII’s prohibition on discrimination because of sex “does not bar discrimination because of transgender status,” states the brief submitted by the DOJ on Friday in R.G. & G.R., Harris Funeral Homes Inc. v. Equal employment Opportunity Commission et. al.

The case involved Aimee Stephens, who was fired two weeks after informing her employer and co-workers around July 2013 at the Detroit-based funeral home that he was undergoing a gender transition to female from male and intended to start dressing as a female.

The EEOC filed suit on her behalf and a Detroit District Court ruled in the funeral home’s favor, but was overturned by the 6th U.S. Circuit Court of Appeals in Cincinnati. The appeals court held the District Court erred in finding Ms. Stephens could not pursue a claim she was not discriminated against because of her transgender and transitioning status.

The U.S. Supreme Court accepted the case for review in April. Oral arguments in the case, as well as two other related cases, are scheduled for Oct. 8.

The DOJ’s arguments include that Congress has not acted on the issue of Title VII protecting transgendered individuals. “It has specifically addressed gender-identity discrimination in multiple other statutes, listing ‘gender identity’ separately from and in addition to ‘sex’ or ‘gender.’

“Many states have done the same. Yet in the face of (until recently) uniform circuit precedent, construing ‘sex’ in Title VII not to encompass transgender status, Congress has consistently declined similarly to expand that statute – even while amending Title VII in other respects.”

The filing states said also under Supreme Court precedent, “proving discrimination because of sex under Title VII requires showing that an employer treated members of one sex less favorably than similarly situated members of the other sex…Treating all transgender persons less favorably than non-transgender persons does not violate that rule.

“The Sixth Circuit’s approach, which equates considering sex with discriminating because of sex, would invalidate all sex-specific policies from restrooms to dress codes.”

Some experts have predicted the high court will say the issue of protections for LGBTQ employees is a matter for Congress to decide.

In a statement issued Friday, Sarah Warbelow, legal director of the Washington, D.C.-based Human Rights Commission, an LGBTQ civil rights organization, said the filing is “both legally and morally unjustifiable.”

The Harris case is one of three accepted by the Supreme Court for review over the issue of sexual orientation and gender identity discrimination, with the court hearing oral arguments on all three consecutively Oct. 8. The two others, which will be heard by the court first are: Melissa Zarda et al. v. Altitude Express and Gerald Lynn Bostock v. Clayton County.

In Zarda, the 2nd U.S. Circuit Court of Appeals in New York decided in favor of Donald Zarda, a gay skydiver who sued his former employer, Calverton, New York-based Altitude Express, alleging he was fired from his job as skydiving instructor because of his sexual orientation.

In Bostick, the 11th U.S. Circuit Court of Appeals in Atlanta upheld a lower court decision and ruled against Mr. Bostock, a gay man who contended he was fired as a child welfare services coordinator for the Clayton County Juvenile Court system because of his systemic sexual orientation.




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