DOJ formally says businesses can discriminate against transgender workers

WASHINGTON — Bloomberg Law reported Wednesday that the U.S. Department of Justice had told the U.S. Supreme Court that businesses can discriminate against workers based on their gender identity without violating federal law.

From Bloomberg Law:

Solicitor General Noel Francisco told the high court that a civil rights law banning sex discrimination on the job doesn’t cover transgender bias. That approach already has created a rift within the Trump administration, contradicting the Equal Employment Opportunity Commission’s view of the law it’s tasked with enforcing.

A Michigan funeral home wants the high court to overturn a U.S. Court of Appeals for the Sixth Circuit decision finding that the company violated federal workplace discrimination law when it fired Aimee Stephens, a transgender worker. The EEOC successfully sued on behalf of Stephens in that case, but the Justice Department has the sole authority to represent the government before the Supreme Court. The DOJ told the high court that the Sixth Circuit got the case wrong.

“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.

This comes just days after news of a memo proposing removing transgender people from consideration by federal agencies hit the news.

“Time and time again, federal circuit courts have ruled that discriminating against an individual based on their gender identity is form of sex discrimination — which is prohibited under a wide range of federal laws including Title VII of the Civil Rights Act of 1964,” said Human Rights Campaign Legal Director Sarah Warbelow in a statement Wednesday night. “The Trump-Pence Administration is continuing down a destructive path that will put transgender people at further risk of discrimination and violence. For the Department of Justice to conveniently ignore significant legal precedent is deeply disturbing.”