October 24, 2018 at 4:34 pm EST | by Chris Johnson
DOJ dodges on whether Supreme Court should review trans protections
Kirby v. North Carolina State University, Supreme Court, gay news, Washington Blade

The Justice Department calls on the Supreme Court to act on transgender protections.(Washington Blade file photo by Michael Key)

Days after an explosive New York Times report revealing the Department of Health & Human Services is planning to define transgender people out of existence, the Trump administration is sidestepping a question before the U.S. Supreme Court on whether justices should take up a case to review whether the term “sex” under federal laws applies to transgender people.

The U.S. Justice Department took the position Wednesday in a filing responding to a petition from Alliance Defending Freedom, an anti-LGBT legal group, calling on the Supreme Court to reverse a decision from the U.S. Sixth Court of Appeals finding transgender protections under Title VII of the Civil Rights Act of 1964.

The case involves Aimee Stephens, a transgender worker at Harris Funeral Homes in Michigan who was terminated from her position after she announced she would transition on the job. Although the district court agreed employers could terminate Stephens based on religious freedom principles under the Religious Freedom Restoration Act, the Sixth Circuit reversed.

U.S. Solicitor General Noel Francisco took the position for the Justice Department as a representative for the U.S. Equal Employment Opportunity Commission, which initially brought the complaint on behalf of Stephens.

Instead of either calling on the court to accept or reject the petition, the Justice Department asserts the Supreme Court should first make a decision on two petitions requesting clarification on whether sexual orientation discrimination is sex discrimination and therefore unlawful under Title VII.

“If the court were to grant the petitions in Zarda, Bostock, or both to resolve that conflict, its decision may bear on the questions petitioner raises concerning gender-identity discrimination and thus may bear on the proper disposition of the petition in this case,” the brief says. “The question presented in those cases is distinct from the issues petitioner raises here, but analysis of the issues may overlap.”

In the event the Supreme Court decides to reject the petitions in the Zarda and Bostic cases, the Justice Department argues it “would be appropriate to deny review of the questions presented in this case at this juncture.”

Nonetheless, the Justice Department filing asserts the United States “disagrees with the court of appeals’ decision” in the Sixth Circuit finding transgender protections under Title VII.

“In any event, the court of appeals’ conclusion that gender-identity discrimination categorically constitutes sex discrimination under Title VII is incorrect,” the filing says. “As discussed above, the ordinary meaning of ‘sex’ does not refer to gender identity…The court’s position effectively broadens the scope of that term beyond its ordinary meaning. Its conclusion should be rejected for that reason alone.”

It takes a vote of four justices to issue a writ of certiorari, or agree to take up a case. It remains to be seen whether the Supreme Court will grant in this case, especially with newly seated U.S. Associate Justice Brett Kavanaugh on the bench.

If the Supreme Court were to take up the case and deliver a ruling against transgender protections, it would defy decades of case law from lower courts finding laws against sex discrimination also prohibit anti-trans discrimination.

However, the Supreme Court could take up the case and affirm transgender protections nationwide, which would make the Trump administration’s argument transgender people aren’t protected under current law even more tenuous. Such a decision may well prompt the administration to enforce federal laws against sex discrimination to bar anti-trans discrimination.

Countering the Justice Department brief was a filing from the American Civil Liberties Union, which has intervened in the case to represent Stephens.

The brief argues the Supreme Court shouldn’t take up the case because of massive case law asserting laws against discrimination, including Title VII, protect transgender people and because issues presented by Alliance Defending Freedom in this case weren’t adjudicated by lower courts.

“Every circuit court to address whether transgender people may state claims for discrimination based on gender non-conforming appearance and behavior after Price Waterhouse has agreed that they may — not only under Title VII, but also under other provisions of federal law that similarly prohibit sex discrimination,” the brief says.

James Esseks, director of the LGBT project at the ACLU, said even though the Justice Department declined to outright say the Supreme Court should take up the case, the Trump administration’s anti-trans view is clear.

“While the department didn’t expressly call for the court to grant review in Aimee’s case, its sharp critique of the appeals court ruling still sends a clear message to the court that the administration doesn’t support transgender equality,” Esseks said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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