The Department of Justice Is Arguing It's Fine for Employers to Discriminate Against Trans People

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Days after the New York Times leaked a memo demonstrating the Trump administration’s intention of undoing basic legal protections for trans people, the Justice Department has essentially told employers that it’s okay to discriminate against trans people in the workplace.

Bloomberg Law reports that on Wednesday, the Justice Department sided with a Michigan funeral home, which in 2013 fired Aimee Stephens after she came out as trans.

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After Stephens told her former boss at Harris Funeral Homes, Thomas Rost, he said it was “not going to work out,” according to court documents. Stephens filed a complaint with the Equal Employment Opportunity Commission, which successfully sued the funeral home. Rost, a self-described devout Christian, is represented by right-wing, anti-LGBTQ group Alliance Defending Freedom.

“The funeral home’s dress policy is legitimate, understandable, and legal,” ADF Legal Counsel Doug Wardlow said in a press release on the suit.

After a district court ruled in favor of Stephens, in March, the Sixth Circuit Court of Appeals upheld the ruling, saying that Harris Funeral Homes had violated Title VII of the 1964 Civil Rights Act. The court became “the first federal appeals court in the country to conclude that transgender bias is sex discrimination” under the law, Bloomberg Law reports.

But the funeral home wants to take the case to the Supreme Court. In August, Republican officials in 16 states—13 attorneys general and three governors—filed a brief in support of the funeral home, claiming that the appeals court has erroneously expanded the definition of “sex” in the Civil Rights Act “to include ‘gender identity’ and ‘transgender’ status,” which “rewrites Title VII in a way never intended or implemented by Congress.”

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Even though the EEOC sued on Stephens’s behalf, the Justice Department “has the sole authority to represent the government before the Supreme Court,” Bloomberg Law notes, and the Justice Department happens to agree with the funeral home—not with Stephens.

From Bloomberg Law:

“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,” Francisco said in a brief filed with the court.

The Supreme Court is expected to decide in the coming months whether to take up the case. It’s also been asked to consider two other cases testing whether sexual orientation bias is a form of sex discrimination banned under the existing law.

The Justice Department asked the Supreme Court to first decide whether to take those two cases before making a decision on whether to review the Stephens case.

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The Trump administration has made it clear, time and time again, that it believes trans people do not deserve basic rights. Stephens’s case, which will determine whether trans people are protected from discrimination under the Civil Rights Act, now lies at the discretion of the Supreme Court, now stacked with emboldened conservative justices.

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Prachi Gupta

Prachi Gupta is a senior reporter at Jezebel.

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