The Trump Administration’s Onslaught Against Trans Rights Continues
The Justice Department wants to make it legal to fire someone for being trans — or for just not resembling what it thinks a woman should look like
There is no way to embrace discrimination against transgender women without embracing discrimination against women. This should have been painfully obvious to all of us a long time ago. But, if you somehow missed the memo, the Trump administration’s latest attack on trans rights — formally urging the Supreme Court to rule that firing transgender and gender nonconforming people for how they dress does not constitute workplace discrimination — should clue you in.
The matter centers on a Supreme Court case, R.G. & G.R. Harris Funeral Homes v. EEOC. The plaintiff in that case, Aimee Stephens, was fired because she wore women’s clothes on the job. Her employer, Harris Funeral Homes, required “male” employees to wear suits and “female” ones to wear skirts; because Stephens is transgender, her employer did not recognize her right to choose the skirt. She sued under Title VII of the Civil Rights Act of 1964, which specifically prohibits firing someone on the basis of “race, color, religion, sex, or national origin.”
The central question here is whether discrimination on the basis of transness counts as “sex” discrimination. The Sixth Circuit Court of Appeals, which ruled in 2018 that Stephens was unlawfully fired, has affirmed that it does. As Ian Millhiser writes at ThinkProgress, transphobia is predicated on the assumption of someone’s assigned sex, and the belief that their behavior or appearance doesn’t line up with that sex. Therefore, gender identity discrimination is always sex-based discrimination: “An employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.”
After losing its case, Harris Funeral Homes petitioned SCOTUS to review it, and here we are. The Supreme Court will be ruling on Stephens’ case, along with those of Don Zarda and Gerald Bostock (two men who were fired for being gay), to formally determine whether LGBTQ employees are covered by discrimination law. Trump’s Justice…