"The dress code requires male employees to wear suits and ties and female employees to wear skirts and business jackets."
Title IX and Title VII are federal laws that prohibit discrimination in schools and employment respectively.
How exactly they are defined and by whom is still being debated. This week the Trump administration wants to make it clear that Title VII does not protect transgender people at work and they are using a business' dress code as one reason why.
The case involves Aimee Stephens, a transgender Michigan funeral director who was fired when she came out at work. She worked at Harris Funeral Homes from 2008 until 2013. Once she confided in business owner Thomas Rost about her transition, he fired her saying if she no longer wanted to represent herself as a man, things “were not going to work out."
Stephens then filed a complaint with the Equal Employment Opportunity Commission (EEOC), she felt Rost had violated Title VII of the Civil Rights Act’s prohibition on sex-based discrimination by firing her. A lower court ruled in the funeral home's favor but that was soon reversed by the Sixth Circuit Court of Appeals ruling that the Stephens was protected under Title VII as a trans person.
The Department of Justice stated to the court last week that the Sixth Circuit was wrong.
In the past, the Obama administration issued a federal guidance which said Title VII protections also included sex-based discrimination on the basis of gender identity, but in 2017, then-Attorney General Jeff Sessions reversed that order. Friday's filing proposes that the Supreme Court make that reversal a permanent part of civil rights law.
The American Civil Liberties Union has taken over Stephen's case because the DOJ is representing EEOC before the Supreme Court. The DOJ has taken an aggressive stance against LGBT rights since Trump took office. Specifically arguing that federal law does not protect trans workers.
“Title VII does not prohibit discrimination against transgender persons based on their transgender status,” they argue. “It simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”
The DOJ asserts that Stephens wasn't fired for the reasons she's claiming: “Harris Homes did not discriminate against Stephens based on sex stereotypes in violation of Title VII,” the brief continues. “It terminated Stephens for refusing to comply with Harris Homes’ sex-specific dress code.”
Further backing the termination, the brief says the Harris' dress code is required for an explicit purpose:
"Harris Homes has adopted a written, sex-specific dress code for its employees who interact with the public. The dress code requires male employees to wear suits and ties and female employees to wear skirts and business jackets. In Harris Homes’ view, '[m]aintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.' Harris Homes provides suits and ties for male employees and currently provides a clothing stipend to female employees."
The Sixth Circuit defended Stephens last year by saying, “it 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 Court hears oral arguments for the cases on October 8.
You can read the entire DOJ brief HERE.