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Trump DOJ turns EEOC’s take on gender-identity discrimination on its head

By Pamela Wolf, J.D.

Turning the EEOC’s former position in the case on its head, the Department of Justice is now taking the position, in its brief in opposition on behalf of the EEOC in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, that Title VII does not protect against discrimination based on gender identity. The petition for certiorari was filed by the funeral home, which was on the losing end of a Sixth Circuit Court of Appeals ruling favoring the EEOC.

Transgender employee. Below, the employee, who intervened in the case after the EEOC filed suit on her behalf, is a transgender woman who was “assigned male at birth.” She was hired in 2007 and presented as a man until July 2013, when she informed her employer that she “decided to become the person that [her] mind already is.” She explained that she intended to have sex reassignment surgery and, as the first step, would live and work full-time as a woman for one year.

The funeral home fired her about two weeks later because she would no longer dress like a man under the funeral home’s dress code, which required all public-facing male employees to wear suits and ties, and its public-facing female employees to wear skirts and jackets. The funeral home provided all male employees who interacted with clients with free suits and ties, but until October 2014—after the EEOC filed this suit—did not provide its female employees with any sort of clothing or clothing allowance.

EEOC wins. In a huge victory for the EEOC, the Sixth Circuit ruled in March 2018 that discrimination against employees, either because of their failure to conform to sex stereotypes or because of their transgender and transitioning status, is illegal sex discrimination under Title VII. The unrefuted facts showed that the funeral home fired its transgender funeral director because she refused to abide by its stereotypical conception of her sex. The appeals court thus reversed the district court’s contrary decision, holding that the EEOC was entitled to summary judgment as to its unlawful termination claim on behalf of the employee.

Nor did the Religious Freedom Restoration Act provide the funeral home owner with any relief, as continuing to employ the funeral director would not, as a matter of law, substantially burden the owner’s religious exercise. Even if it did, enforcing Title VII here was the least restrictive means of furthering the compelling government interest in combating and eradicating sex discrimination.

EEOC-DOJ battle. Notably, the employee sought to intervene in the Sixth Circuit case due to concerns that changes in the policy priorities of the U.S. government might prevent the EEOC from fully representing her interests in the case. At the time, it was already clear that the Trump Administration’s DOJ, which ordinarily would be required to defend the case if the High Court grants certiorari, was at odds with the EEOC. According to the Trump Administration DOJ, Title VII protections do not extend to discrimination based on sexual orientation or gender identity.

Hold pending disposition of other cases. The DOJ contends that the High Court should hold this petition pending resolution of petitions for certiorari, and potentially on the merits, in Altitude Express, Inc. v. Zarda (No. 17-1623) and Bostock v. Clayton County (No. 17-1618), both of which present questions as to whether sexual orientation discrimination amounts to discrimination based on “sex” under Title VII. The DOJ argues that if the Justices deny review in Zarda and Bostock, the petition in R.G. & G.R. Harris Funeral Homes should also be denied.

About-face on EEOC. It turns out that the employee correctly saw the handwriting on the wall because the DOJ has taken a position directly contrary to the EEOC’s former position. In its brief in opposition, the DOJ also wrote, “To be sure, the United States disagrees with the court of appeals’ decision. As relevant here, the court’s analysis of whether petitioner engaged in improper sex stereotyping reflects a misreading of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court’s further conclusion that gender-identity discrimination necessarily constitutes discrimination because of sex in violation of Title VII—although it was unnecessary to the ultimate result the court reached in this case—is also inconsistent with the statute’s text and this Court’s precedent.”

“As the Attorney General’s October 4, 2017, memorandum explained, the Department of Justice ‘must and will continue to affirm the dignity of all people, including transgender individuals,’ and the Department does not ‘condone mistreatment on the basis of gender identity,’” the Solicitor General continued. “The Department also ‘has vigorously enforced,’ and ‘will continue to’ enforce, Title VII and other laws that ‘protect[] against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals,’ as well as laws that specifically prohibit gender-identity discrimination … But ‘the Department of Justice must interpret Title VII as written by Congress,’… and the court of appeals misread the statute and this Court’s decisions in concluding that Title VII encompasses discrimination on the basis of gender identity.”

The DOJ argued that the Sixth Circuit’s conclusion that gender-identity discrimination categorically constitutes sex discrimination under Title VII is incorrect, reiterating its position that “the ordinary meaning of ‘sex’ does not refer to gender identity.”

EEOC’s position hasn’t changed. Notably, the EEOC is an independent federal agency that apparently has not changed its position on the scope of Title VII’s protection against discrimination based on “sex.” On the agency’s website, sub-regulatory guidance still states that “discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.”