DOJ argues that Title VII does not prohibit discrimination based on gender identity

On 24 October 2018 the US Department of Justice (DOJ) filed a brief in the Supreme Court arguing that Title VII of the Civil Rights Act does not prohibit discrimination based on gender identity. The brief was filed in RG & GR Harris Funeral Homes, Inc v Equal Employment Opportunity Commission, a case originally brought by the Equal Employment Opportunity Commission (EEOC) on behalf of a transgender employee whose employment was terminated because she wished to present as female at work, which her funeral home employer considered to be a violation of its dress code. The Sixth Circuit ruled against the employer, concluding that discrimination against transgender individuals is sex-based discrimination prohibited by Title VII. The defendant has asked the Supreme Court to review the case.

The DOJ submitted its brief on behalf of the EEOC, but argued against the EEOC's previous position in the case, stating that "Title VII... does not apply to discrimination against an individual based on his or her gender identity". The DOJ reasoned that when Title VII was enacted, 'sex' was understood as the "physiological distinction between male and female", and the funeral home's dress code did not create a disparate impact on one sex. However, the DOJ asked that the Supreme Court wait to grant certiorari until it has had the opportunity to consider whether Title VII applies to sexual orientation discrimination – an issue addressed in several other pending Supreme Court petitions.

The DOJ's brief demonstrates the impact of the attorney general's October 2017 announcement that the DOJ will no longer consider Title VII to prohibit discrimination based on gender identity. It also underscores the DOJ's sharp disagreement with the EEOC, which has continued to bring Title VII cases against employers for gender identity discrimination. Until the Supreme Court and other appellate courts provide more clarity on this issue, employers should consider reviewing their employment policies and hiring practices to ensure that they are treating transgender status as a protected category.

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