DOJ Says Businesses Can Discriminate Against Transgender Employees

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The United States Department of Justice (DOJ) told the U.S. Supreme Court on Wednesday that in their opinion it is legal for employers to discriminate against transgender employees based on their gender identity.

The DOJ submitted a brief to the Supreme Court in which it wrote that the U.S. civil rights laws banning sex discrimination in the workplace do not provide protection for transgender workers.

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The DOJ filing was made as the Supreme Court is deciding whether or not to hear a case in which a lower court ruled the 1964 Civil Rights Act protects transgender workers against bias and discrimination.

“This administration is not a friend of the LGBT community,” Greg Nevins, an attorney for Lambda Legal, told Bloomberg Law. “They can say what they’re going to say, but the courts will have the final word.”

In March the 6th Circuit Court of Appeals held that a Detroit funeral home violated Title VII anti-discrimination laws by firing its funeral director after she came out as transgender.

The judge presiding over that case wrote that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

The March case was celebrated and seen as a win for LGBTQ advocates. But the new DOJ filing says “the ordinary meaning of ‘sex’ does not refer to gender identity.”

In August 13 states weighed in on the case, jointly filing an amicus curiae brief which argued that the Supreme Court was misinterpreting the word “sex” in the Civil Rights Act.

“The Sixth Circuit’s opinion … erases all common, ordinary understandings of the term ‘sex’ in Title VII and expands it to include ‘gender identity’ and ‘transgender’ status,” the brief states. “In doing so, the lower court rewrites Title VII in a way never intended or implemented by Congress in the Civil Rights Act of 1964.”

The DOJ brief comes days after it was reported that the Trump administration is considering a change to its definition of “gender” that would exclude transgender and nonbinary individuals from civil rights protections.

LGBT advocates throughout the week have demonstrated against the proposed move, saying it is an attempt by the administration to “erase” trans people from existence.