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Sex is a big topic on the US Supreme Court’s upcoming docket

Ephrat Livni
Grand Marshalls of the 2019 World Pride NYC and Stonewall 50th LGBTQ Pride Parade in New York.

The US government is at war with itself over the definition of sex, and the Supreme Court will soon have to settle the dispute.

An upcoming high court case, to be argued in October, asks whether transgender employees are protected from discrimination under a federal civil rights statute known as Title VII. The Department of Justice says no. It is siding with a funeral home owner who fired a transgender employee.

But the worker was successfully represented in the lower courts by the Equal Employment Opportunity Commission (EEOC), a federal government agency. That puts the federal government in the somewhat awkward position of fighting the person who was originally its client. Even more awkward, the DOJ is arguing that employment discrimination is fine.

The meaning of sex

The Justice Department insists in a brief filed this month that Title VII, enacted in 1964, doesn’t cover transgender employees because “the ordinary public meaning of sex” at the time of its passage was biological sex as determined by reproductive organs. The legislation was “originally designed to eliminate employment discrimination against racial and other minorities—it was especially clear that the prohibition on discrimination because of ‘sex’ referred to unequal treatment of men and women in the workplace,” the DOJ brief states.

Aimee Stephens, the employee who the EEOC represented against her employer, argues that she was fired because of her sex, however. Stephens was hired as a man and worked for Harris Funeral Homes for six years before transitioning genders. She informed her employer of her transition plans in advance and said that she’d be donning “appropriate business attire,” meaning the uniform required of female employees—a jacket and skirt—rather than wearing a suit, which was required of men. She was soon fired.

Stephens says that the dismissal is based on the funeral home owner’s expressly articulated stereotypes about how men and women should identify, appear, and behave. Employment discrimination against transgender people, she contends, is inherently based on sex stereotypes, and permitting such discrimination undermines all employees’ rights under Title VII.

Harris Funeral Homes argues that it didn’t fire Stephens because she was transitioning. She could have kept working there if she wore a suit to work instead of planning to wear a skirt. But the Christian funeral-home owner felt it would be disruptive to grieving customers if Stephens presented as female at work. The employer claims that the case is about complying with the company dress code and, with the DOJ arguing on its behalf, warns that a decision for Stephens will wreak havoc, causing particular harm to women, who were intended to be protected by Title VII from unfavorable treatment in the workplace compared to men.

The case made its way through the lower courts, and the Sixth Circuit court of Appeals unanimously found for Stephens, concluding that Harris Funeral Homes violated Title VII by firing her because she did not conform to the owner’s sex stereotypes about how men and women should appear and behave. Discrimination against a transgender employee is inherently a form of sex discrimination that violates Title VII, it said. “[I]t is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” the appeals court wrote.

A change of heart

The DOJ used to take a similar position not long ago, under former attorney general Eric Holder. But former attorney general Jeff Sessions issued a memo in October 2017 stating that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se.” Under Sessions’ reading, only employment practices that place different burdens on similarly situated workers can be viewed as discriminatory. Practices that distinguish between sexes without somehow burdening one type of worker more than the other—such as having separate bathrooms for male and female workers—are legal, however.

With that view in mind, the DOJ now argues that transgender discrimination is legal (although its brief notes that Congress should feel free to amend the statute to specifically include gender identity if indeed it intends to protect transgenders under Title VII). Specifically, in Stephens’ case, the DOJ says she was not treated differently than any other similarly situated workers because the burden of complying with the Harris Homes dress code applied to all and there is no evidence that the employer would have treated a female employee who identified as male and chose to wear a suit any differently than it did Stephens, who sought to conform to the female employee dress code.

A world without distinctions

The DOJ warns that the Sixth Circuit’s view of Title VII’s “because of sex” protections threatens women at work. If the Supreme Court were to interpret the statute as broadly as Stephens and the lower court suggest it should, any distinction between the sexes will be subject to challenge. That means, for example, that in jobs requiring a certain level of physical fitness the physiological differences between men and women will have to be ignored and everyone will have to meet the same exact standards. It also means that different dress codes for men and women will no longer be reasonable, as they will necessarily be based on stereotypes about the sexes.

This is where the arguments get a bit tricky. On the one hand, eliminating expectations of gendered behavior and appearance from the workplace seems like a fine idea. On the other hand, ignoring all physiological distinctions between men and women arguably would be an injustice to women, giving men an inherent advantage in certain positions.

But protecting women isn’t really the issue here, and pitting transgender protections against those for women only masks the true concerns of those who oppose Title VII protection for transgender individuals.

An amicus brief filed by a group of philosophers and theologians is more forthright in its formulations. Basically, it states that it’s not “natural” to be transgender. They write:

“[G]ender identity” and “transgender/transitioning status” are metaphysical constructs of dubious ideological and political origin, enabled by the technological manipulation of human biology, and that they are destined to catalyze further and more radical biotechnical interventions whose safety and ultimate consequences cannot be known in advance…When courts hold that “sex” in antidiscrimination legislation includes or means “gender identity,” they also implicitly accept this latter category as real.

The brief argues that accepting “gender identity” as real means that people can choose who they are based on what they feel, rather than what is “organic or natural.” And this, the theologians and philosophers warn, threatens Americans’ basic way of life. “[I]t suggests that the organic ties of vital human communities, such as the family, kinship group, and larger communities, which are very often mediated in subtle ways by sexual difference, are artificial and arbitrary, rather than natural.”

In other words, opponents of transgender protection under the sex clause of Title VII fear a future in which traditional family values are eroded and ancient notions about sex are undermined to the point of total societal breakdown. What will we do if we can’t, in groups, rely on the old tropes we’ve so long used to understand gender roles?

That argument is highly problematic. First, it utterly fails to recognize Stephens’ reality and that of other transgender and nonbinary individuals. Second, it justifies discrimination based on traditional norms although Title VII was designed to illegalize discrimination in the workplace even though it was once common to treat minorities poorly.

Not so simple

No one can say where the Supreme Court will fall on the issue ultimately, and we likely won’t see a decision from the justices until 2020. But there’s some indication that they won’t solely entertain simplistic arguments about tradition.

In filing its petition for review, the funeral home framed the question before the court as one about sex-specific dress codes and focused on the definition of sex in 1964. When the court granted review, however, it asked the parties to explain how transgender status should be viewed in light of its 1989 case, Price Waterhouse v. Hopkins, about a woman perceived as aggressive and denied a partnership in her firm. In that case, a plurality of the justices found that gender stereotyping is indeed sex discrimination.

Framing the issue in this way suggests that past perceptions will not necessarily determine the future of gender identity in employment law and that simply relying on dictionary definitions of sex in 1964 will not win the case for the funeral home and its new ally, the DOJ.

 

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