A group of sixteen states has filed a brief calling on the Supreme Court to rule that it’s legal to fire people for being transgender.
In the amicus brief filed Friday, the states recommended the Court consider R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, a case about a Michigan funeral home that fired an employee, Aimee Stephens, for transitioning while on the job. The U.S. Court of Appeals for the Sixth Circuit ruled in March that Stephens’ termination violated Title VII’s protections on the basis of sex, and the Alliance Defending Freedom, an anti-LGBTQ hate group, has appealed the case to the Supreme Court.
The Supreme Court should hear the case, the states argue, and reverse it. Calling the Sixth Circuit’s decision “policy experimentation” and an “egregious error,” the states insist that the word “sex” can only mean biological sex and should not be interpreted to include gender identity. “‘[G]ender identity’ is a wholly different concept from ‘sex,’ and not a subset or reasonable interpretation of the term ‘sex’ in Title VII,” they write.
This is accompanied by a full page of dictionary citations that define the word “sex” according to “reproductive functions” or “reproductive organs.” The states also point to language in Title IX that allows educational institutions to maintain “separate living facilities for the different sexes.” This use of “different” somehow proves “that Congress was referring to the two biological sexes” whenever it used the term “sex.”
The states also insist that because Congress has at times tried to pass laws enumerating protections specifically for “gender identity,” this proves that it’s different from “sex.” Likewise, because Congress has used both terms at the same time, that must indicate that the two “are not interchangeable.”
These arguments ignore that in the past, courts had ruled against the claim that transgender people are protected under Title VII. The effort by the LGBTQ movement to convince both the courts and Congress to ensure that transgender people cannot be fired just for being trans is a both/and strategy, not an either/or one. It is simultaneously true that discriminating on the basis of gender identity requires discriminating on the basis of sex and that enumerating those protections will better safeguard from courts who don’t agree.
The states represented in the suit include Nebraska, Alabama, Arkansas, Kansas, Louisiana, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming, as well as Kentucky Gov. Matt Bevin (R), Maine Gov. Paul LePage (R), and Mississippi Gov. Phil Bryant (R). Utah and Maine have state laws protecting against anti-LGBTQ employment discrimination, but none of the rest do.
There has already been significant backlash against the brief.
Kentucky Attorney General Andy Beshear (D), who refused to sign the brief on behalf of the state, called Bevin’s decision to sign on “surprising” given that Kentucky state employees do enjoy protections against anti-LGBTQ discrimination, thanks to an executive order that Bevin has not rescinded. The Fairness Campaign, Kentucky’s state LGBTQ group, has also decried Bevin’s decision.
— Fairness Campaign (@FairnessCamp) August 24, 2018
Utah Attorney General Sean Reyes (R) has defended his decision to join the brief simply because he believes that “Congress — not the federal courts — should decide those types of policy questions.” The Alliance for a Better Utah, a government accountability group, believes Reyes’ participation flies in the face of the 2015 “compromise” law that created statewide LGBTQ protections in housing and employment.
“Sean Reyes’ signature on this amicus brief is a flagrant violation of the spirit of that compromise based in inclusion and acceptance,” said Chase Thomas, policy and advocacy counsel for the Alliance. “Whether gay, straight, bisexual or transgender, every person deserves to be able to pursue a career without fear of discrimination.”
In a statement, the National Center for Transgender Equality’s Harper Jean Tobin described the brief as “a political attack on the humanity of transgender people” and accused the attorneys general and governors of “acting in a complete state of ignorance.”
Three other briefs have been filed calling on the Supreme Court to reverse the Sixth Circuit’s decision. Two of them are from organizations the Southern Poverty Law Center has identified as anti-LGBTQ hate groups. Roy Moore’s Foundation for Moral Law argues that religion should justify firing transgender people, and Public Advocate of the United States complains that the Sixth Circuit was biased because it was willing to identify Stephens with female pronouns.