About Us  |  About Cheetah®  |  Contact Us

EEOC to pursue appeal in transgender bias case—for now

In a closely watched case seen as an important bellwether on the direction the Trump administration would take on transgender protections in the workplace (and elsewhere), the EEOC has signaled that it will follow through on its appeal of an adverse district court decision in a case that it had pursued on behalf of a transgender funeral home director who was fired because she would not conform to the employer’s sex-specific dress code. The employer had staked its defense in the sex discrimination suit on the Religious Freedom Restoration Act’s exemption from Title VII.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., a federal court in Michigan denied the EEOC’s motion for summary judgment in August 2016 and granted the employer’s in part, and the agency filed an appeal. However, after President Trump took office January 20, the commission asked the Sixth Circuit for more time to file its brief, leaving observers to speculate whether the administration was reconsidering its stance and its efforts to oppose transgender discrimination under Title VII. However, the EEOC filed its opening appellate brief in the case on February 10, making it clear that the commission would forge ahead.

The EEOC also filed a reply brief after the complainant in the case moved to intervene in the matter, urging the court of appeals to grant her motion. The complainant’s concern that the federal government would not adequately represent her interests “has been borne out by recent events,” the EEOC asserted. “Although the EEOC has filed a brief in this case, its position may change once the agency’s General Counsel is confirmed.” The brief also noted that it would now be in the hands of Attorney General Jeff Sessions to decide whether the government would ultimately pursue Supreme Court review. if need be.

Dropping the case for transgender students. Prompting the EEOC’s doubts: In another key ongoing transgender rights case, the Department of Justice had previously filed a motion in the Fifth Circuit seeking a partial stay pending appeal of a nationwide preliminary injunction issued by a Texas federal court, in State of Texas vs. United States, barring the DOJ from enforcing its directive mandating that transgender students be allowed to use the bathroom consistent with their gender identity. But the government just moved to withdraw its motion, ending its challenge to the injunction. The injunction on the DOJ issuance was entered in a case brought by more than 10 states in response to an Obama administration interpretation concluding that it was a violation of federal discrimination law to demand that students utilize bathroom facilities consistent with their gender at birth. Oral argument on the government’s motion had been scheduled for February 14.

In a separate ruling, the Fifth Circuit dismissed an appeal to the injunction brought by a transgender faculty member, noting that the professor was not a party and thus could not pursue an appeal.