Happy #PoliNerd Thursday my friends! As promised, here is my first article on issues regarding our country’s politics. I/m thinking of upping the postings to both Tuesdays and Thursdays as things move fast in the political world and the current administration do egregious things to different communities daily. Below details out, as the title says, the most aggressive attack on LGBTQ rights yet, specifically the rights of transgender workers, continue reading to see what’s at stake!
On Friday the 18th, the Trump administration took one of its most aggressive attacks yet in their attempt to legalize anti-transgender discrimination. They told the Supreme Court that federal law allows the firing of workers solely based on being transgender.
Now, it was not surprising that the administration took this stance – as they have been very vocal about this topic. However, the big issue to focus on is that their filing asks the highest court of the land, the Supreme Court, to establish federal case law which would be a sweeping setback for LGBTQ rights nationwide if set.
The issue is with the word “sex.” Which then brings Title VII of the Civil Rights Act into the conversation. For those of you who do not know, Title VII explicitly bans discrimination in the workplace on the basis of sex. However, when this act was written, LGBTQ individuals were not taken into account, and the courts have never worked out, exactly, what the term means in the context of LGBTQ workers.
On Friday, the DOJ released their brief, in which they state that the word “sex” refers to a person’s “biological sex.” They go even further, by saying that transgender discrimination was not addressed by a 1989 Supreme Court ruling that found that Title VII bans stereotyping based on sex. They believe that this precedent sets their argument in stone, not understanding that the law does not have to interpret “sex” in such a stereotypical connotation.
They say that transgender workers will still be protected under Title VII, however, they will not be protected from the most essential part of the act, discrimination based on the fact that they are transgender…
A ruling of the Supreme Court in favor of the administration’s position would set off serious ramifications for LGBTQ individuals in America by asserting that laws that ban discrimination based on sex have to be looked at as “black letter law,” or very narrowly. Meaning, that it would allow no room for application in cases involving sexual orientation or gender identity. Most definitely, this decision would extend in spaces far beyond the work place.
Now there is no federal law that explicitly bans anti-LGBTQ discrimination, but the word “sex” appears in several laws, federal and state, and policies that explicitly ban discrimination. And, these laws and policies have been used in the past by courts to protect LGBTQ rights and people in several settings from schools to doctor’s offices. So why not now?
The counterargument presented from LGBTQ advocates and lower courts is that the intent of lawmakers’ does not limit a specific law’s reach. Which in layman’s terms means its not the black letter law that matter, what matters is how that law can be interpreted or the times we are currently in. The discrimination of a transgender person based on the fact that they do not conform to a stereotypical definition of sex, is inherently discrimination based on sex.
The case at issue is of Aimee Stephens, who presented as a man when first hired, but was fired from her job by the owner of a Michigan funeral home when she announced her plans to transition. This case is one of three LGBTQ cases to be heard by the Supreme Court in October, and is also the only case that has to deal with the rights of transgender individuals.
The Court of Appeals for the 6th Circuit led by Judge Karen Nelson Moore, last year, found that the funeral fired Stephens because she refused to abide by her employer’s stereotypical conception of sex. She explained that it is analytically impossible to fire an employee based on the fact that the employee is transgender without being motivated by that employee’s sex. Which, I personally believe, is a common sense ruling, but that’s just me.
The Justice Department, does not agree with this view. They say that in 1964, when the Civil Rights Act was passed, the meaning of “sex” and the ordinary public definition of “sex” at that time was biological sex. To the Justice Department, it did not and does not encompass transgender status.
The case of Aimee Stephens was brought to court by the Equal Employment Opportunity Commission, mainly an autonomous federal agency that championed Stephens’s cause argues that Title VII covers LGBTQ individuals, including sexual orientation.
However, since the case is now in front of the Supreme Court, as procedure dictates, the solicitor general at the Justice Department has taken over to represent this case.
Meaning, that government lawyers in Stephens’s case are saying that it was legal to fire her…holding the exact opposite of the EEOC when it is supposed to be representing the EEOC…
Under former (MY) president Barack Obama, the Justice Department has asserted that under Title VII transgender workers were protected and were going to act accordingly in courts. When Trump took office, however, that stance was tossed out and Jeff Sessions reversed that stance as soon as he could.
The Supreme Court will hear arguments in October on this case and two other cases in October. As more unfolds on these cases, check back here and with other news reporters to stay on top of what the occupant of the Whitehouse (thank you Ayanna Pressley for the brilliant decision to call him that) does next in regards for taking away the rights of people different than him in this country.