Shout out to Chris Opfer at Bloomberg Law.
Chris reported yesterday that the U. S. Department of Justice filed this brief with the United States Supreme Court in this case, in which it argues that Title VII of the Civil Rights Act of 1964, the federal employment discrimination law, does not cover discrimination against an individual because of the individual’s gender identity.
Is this a big deal? Yes. Is it a surprise that the DOJ has taken this position? Heck no.
Although on a personal level and as a matter of law, I disagree with the DOJ’s position. It’s disappointing. But, I knew it was coming.
Readers of this blog should’ve known it too.
Let’s recap the timeline from 2017 onward:
- February 22, 2017: The DOJ and the Department of Education released a guidance document withdrawing their “position that the prohibitions on discrimination ‘on the basis of sex’ in Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its implementing regulations, see, e.g., 34 C.F.R. § 106.33, require access to sex-segregated facilities based on gender identity.” This caused the Supreme Court to send an important transgender rights case back to the Fourth Circuit for reconsideration.
- July 26, 2017: President Donald Trump tweeted that the military should ban transgender people from serving and the DOJ filed its brief is called Zarda v. Altitude Express, Inc. arguing that Title VII does not cover discrimination against an individual because of the individual’s sexual orientation.
- October 4, 2017: The DOJ issued this memo in which it posited that Title VII does not protect transgender workers from discrimination based on their gender identity per se.
- October 21, 2018: The New York Times reported that “‘Transgender’ Could Be Defined Out of Existence Under Trump Administration” by “narrowly defining gender as a biological, immutable condition determined by genitalia at birth.”
- October 24, 2018: The DOJ filed the brief above with which I led off this post.
So, what’s next at the Supreme Court?
The Supreme Court has to decide which of three cases it may wish to rule upon:
- In Zarda v. Altitude Express, Inc., the Second Circuit Court of Appeals held that Title VII prohibits discrimination based on sexual orientation. The employer appealed.
- In Bostock v. Clayton County, the Eleventh Circuit Court of Appeals held that Title VII permits discrimination based on sexual orientation. The employee appealed.
- In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court of Appeals concluded that Title VII bans discrimination based on gender identity. The employee appealed.
It could consolidate some cases, or not. Or, it may decide not to hear any of them.
I know that I may sound like a broken record here but, in the meantime, I know that most of you have policies that forbid discrimination in your workplace based on LGBT status. And, many of you probably live in states or localities where the law prohibits this type of behavior anyway. Keep doing what you’re doing.
And, if you are #TEAMDOJ on LGBT rights (or lack thereof) at work, that’s not carte blanche to discriminate. Even if there is no state or local law on point where you operate, you may still find yourself in court facing a viable claim of sex discrimination under a sex stereotyping theory.
Eventually, you may also find yourself on the wrong side of history.