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By Chris Opfer
A group of 16 states urged the U.S. Supreme Court Aug. 23 to rule that companies can fire workers based on their sexual orientation and gender identity without violating federal workplace discrimination law.
The states, led by Nebraska Attorney General Doug Peterson, asked the justices to overturn an appeals court decision against a Michigan funeral home that fired a transgender worker. They said Congress didn’t intend the ban on sex discrimination in Title VII of the 1964 Civil Rights Act to cover bias against lesbian, gay, bisexual, or transgender employees.
“The States’ purpose is to note that ‘sex’ under the plain terms of Title VII does not mean anything other than biological status,” Peterson wrote.
The friend-of-the-court brief is the latest development in a legal debate that has divided courts and exposed a rift within the Trump administration. The Equal Employment Opportunity Commission says LGBT bias already is banned, but the Justice Department disagrees.
The EEOC successfully sued on behalf of Aimee Stephens, who was fired from her job at R.G. & G.R. Harris Funeral Homes after telling a supervisor she was transitioning to a woman. But the agency must get the Justice Department’s approval if it wants to participate in the case at the Supreme Court level.
A total of 13 Republican attorneys general, including those representing Texas, Alabama, Kansas, and Utah, signed on to the brief. Three GOP governors— Matthew Bevin (Kentucky), Paul LePage (Maine), and Phil Bryant (Mississippi)—also joined in the court filing.
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.
Laws in 20 states and Washington, D.C., directly ban employment discrimination based on sexual orientation and gender identity. That includes bans in Utah and Maine.
The U.S. Court of Appeals for the Sixth Circuit in 2017 became the first federal appeals court in the country to conclude that transgender bias is a form of sex discrimination under Title VII when it said Harris Funeral Homes violated the law by firing Stephens.
The American Civil Liberties Union intervened in the case on behalf of Stephens. ACLU attorney John Knight told Bloomberg Law that 18 states—including Maine—and Washington, D.C., last year signed a brief in a separate Supreme Court case challenging a Virginia county restriction on transgender students’ access to bathrooms. They argued that transgender discrimination is a form of sex bias prohibited by a similar federal civil rights law.
The Supreme Court sent that case back to an appeals court without deciding the issue.
“The states, courts, and the public in general agree that people should not be fired from their job because they are transgender and that support is only growing,” Knight said.
This time around, the states weighing in on the Harris Funeral Homes case called the transgender discrimination question one of “national importance.”
“The role of the courts is to interpret the law, not to rewrite the law by adding a new, unintended meaning,” Peterson wrote.
The case is R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, U.S., No. 18-107, brief filed 8/23/18.
—With assistance from Jay-Anne B. Casuga.
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