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The Department of Justice (“DOJ”) recently filed a brief in a case which may soon make its way to the Supreme Court of the United States, claiming Title VII of the Civil Rights Act of 1964 does not protect transgender people.   The case is EEOC v. R&G and G&R Harris Funeral Homes, Inc.

In July 2013, after 6 years of working for Harris Funeral Homes (“Harris”), funeral director Aimee Stephens wrote a letter to her boss, a devout Christian, advising him she would soon be transitioning from male to female and dressing in appropriate women’s attire at work.  She was fired two weeks later after being told what she was planning to do was unacceptable.  Stephens filed a complaint with the EEOC, which sued the funeral home, alleging the funeral home they fired Stephens for being transgender and for her refusal to conform to sex-based stereotypes.

A federal district court found for the funeral home on summary judgement, holding Title VII did not protect transgender people. The EEOC appealed. On appeal, the 6th Circuit Court of Appeals ruled in favor of Stephens and the EEOC, finding Title VII does provide protection to transgender workers and that an employer’s religious beliefs cannot be used to justify discrimination.  The funeral home is now seeking to appeal the 6^th Circuit decision, and Alliance Defending Freedom, a conservative Christian advocacy group, is urging the Supreme Court to review the case.

The Supreme Court is being asked to consider whether it is sex discrimination under federal civil rights law to fire someone because the person is transgender.  Last month, the DOJ filed a brief in support of the funeral home’s position, claiming Title VII wouldn’t provide a transgender person such as Aimee protection from discrimination. Title VII prohibits employment discrimination on the basis of “race, color, religion, sex and national origin.”  In its brief, the DOJ argues when Title VII was enacted in 1964, sex meant biological sex – it referred to the “physiological distinctions’ between ‘male and female.’” The DOJ takes the position that Title VII was never intended to prohibit LGBTQ discrimination, a position in line with other directives coming from the agency in recent years.  Just last fall, the DOJ released a memo asserting federal civil rights laws do not protect transgender people from discrimination at work.

Before you get ahead of yourself, the law is certainly not settled on this issue.  In fact, at least five federal appeals courts have already ruled to the contrary, with the latest ruling on Aimee Stephen’s case coming in as number six.  The American Civil Liberties Union (ACLU) has joined Stephens in her battle and is urging the Supreme Court not to consider the case, and let the 6^th Circuit decision stand.  The Justices of the Supreme Court are scheduled to confer on November 30, and we expect they will decide if it is time to weigh in on this issue.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com  or 203.454.0560.