Sixteen states filed amicus briefs on Friday asking the Supreme Court to weigh in on whether it’s legal to fire someone for being transgender.
States like Alabama, Texas, and Utah requested the nation’s highest bench issue its legal opinion in a Sixth Circuit Court of Appeals ruling concerning Aimee Stephens, who claims she was dismissed from her job at a Michigan funeral home after she informed her superiors she had begun transitioning.
In a March 2018 ruling, Judges Bernice Donald, Karen Nelson Moore, and Helene White claimed her termination on the basis of her “failure to conform to sex stereotypes” constituted a “violation of Title VII.”
“We… hold that discrimination on the basis of transgender and transitioning status violates Title VII,” the Sixth Circuit claimed in a written opinion.
“[A]n employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align,” the court continued. “There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.”
Petitioners, however, would like to see that groundbreaking ruling thrown out.
They claim Title VII of the Civil Rights Act of 1964, which prohibits bias on the basis of color, race, religion, sex, and national origin, was not written with trans people in mind.
“The Sixth Circuit’s opinion below erases all common, ordinary understandings of the term ‘sex’ in Title VII and expands it to include ‘gender identity’ and ‘transgender’ status,” argue Nebraska Attorney General Douglas J. Peterson and Chief Deputy Attorney General David Bydalek. “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.”
Filed on Aug. 23, the “friend of the court” brief was co-signed by Attorneys General representing 13 states and the governors of three states. These governors include Kentucky’s Matt Bevin, Maine’s Paul LePage, and Mississippi’s Phil Bryant. All are Republicans.
Elizabeth Kuhn, a spokesperson for Gov. Bevin’s office, said the state should have the ability to determine its employment laws separate from the Sixth Circuit’s input.
“The state’s authority to create employment protections outside Title VII was established when the law was enacted in 1964 and should not change as a result of modern-day judicial activism,” Kuhn claimed in a statement provided to Kentucky’s Courier-Journal.
Kentucky is one of 30 states lacking statewide nondiscrimination laws preventing bias against trans people in the workplace. Transgender individuals can be fired or denied employment in every state which signed onto the brief.
LGBTQ advocates argue conservatives are effectively seeking a “license to discriminate” in fighting to preserve these prejudicial practices.
“This brief is a political attack on the humanity of transgender people,” claimed Harper Jean Tobin, director of policy for the National Center for Transgender Equality, in a statement. “It ignores decades of law and the realities faced by transgender workers across this country.”
“All Americans deserve a fair shot at their jobs, and the desperation of officials from these 16 states to legalize discrimination is despicable,” she added.
According to 2015 data from NCTE, three in 10 transgender people say they have been denied a promotion, let go from their jobs, or refused advancement in the workplace due to their gender identity. Meanwhile, trans individuals are twice as likely to be unemployed as the average person.
The Sixth Circuit Court isn’t the only authority to find such treatment unlawful. In July 2014, President Barack Obama signed an executive order extending employment protection to federal workers on the basis of gender identity.
Although Trump’s Justice Department rolled back that interpretation, the Sixth Circuit case highlighted disagreement in the current administration on the subject of LGBTQ protections. Even as the White House pursues “religious freedom” guidance allowing discrimination on the basis of faith, the Equal Employment Opportunity Commission (EEOC) has continued to support Stephens.
The Supreme Court has not responded to the Friday amicus brief.
But should the bench decide to take up the case, advocacy organizations pledged to continue working to ensure dignity and equal treatment for trans people under the law.
“It is appalling to see these misguided Attorneys General and Governors use their power to further hurt our transgender community which already faces monumental obstacles to employment,” said AC Dumlao, program manager for the Transgender Legal Defense & Education Fund, in a statement. “Numerous courts have already ruled that transgender discrimination is sex discrimination under Title VII.”
“We must not and cannot go back in time,” Dumlao continued. “TLDEF strongly denounces this cruel attempt by these 16 state officials to enshrine bias against the very people they have sworn to represent and protect.”