: The Department of Justice ("DOJ") filed a brief in a high-profile Supreme Court Case, Harris Funeral Homes v. EEOC, slated to be heard October 8th, concerning whether Title VII extends its protections to reach transgender employees. In such brief, the DOJ reversed course from the Holder era to take the opinion that Title VII was never contemplated for such protections; nor does it have the infrastructure to support the unique needs of the transgender community and the discrimination it may face. But before you, or the many headlines already circulating in the news take issue and urge that the Trump Administration and the Sessions era DOJ promotes discrimination against transgender employees, or is refusing to protect the transgender community, read the entire brief HERE.
The current DOJ is not promoting such discrimination; rather the DOJ is remaining steadfast in its unbiased nature to simply apply the plain meaning [rule] to the statutory language of Title VII in interpreting it, as all in the profession of law are required to do (the plain meaning rule, also known as the literal rule, is one of three rules of statutory construction).
: All Circuit Courts that originally addressed this issue, the EEOC and the DOJ had originally gone on record to state that Title VII does not extend its "sex" definition to include protections based on transgender status or gender identity. Circuit Courts, the EEOC and the DOJ held this consistent and unified opinion for many years.
Meaning of "Sex" as Title VII Contemplated It in 1964
: The DOJ states in its brief that Title VII as passed in 1964 never contemplated such [transgender] protection to be included in the definition of sex and is not written to address the unique needs for such protection. It argues that the role of the Courts is not to extend a law and give meaning to it which it never had; rather its role is to interpret the law as it was written and allow the Legislative Branch to develop and pass new laws for these new issues as they arise.
And the Legislative Branch is not in unfamiliar territory as it had to address pregnancy discrimination when the Supreme Court held in Gilbert v. General Electric (1976) that Title VII did not extend the definition of "sex" to include pregnancy as sex discrimination. The result? Congress, our Legislative Branch, passed the Pregnancy Discrimination Act of 1978. While many states have already addressed this topic at its level and have added sexual orientation and identity to its protected characteristics in employment, in addition to discrimination based on "sex" and "gender", Congress has failed to act. To illustrate these points:
...To be clear, the question in this case is not whether employers ought to be prohibited from discriminating against individuals who are transgender. It is whether Title VII as written currently bars such discrimination. The court of appeals' discomfort with construing a landmark civil-rights law to allow what the court viewed as inappropriate bias implicates policy questions about whether Title VII should reflect societal changes that Congress in 1964 could not have envisioned. Fundamentally, however, that is a question for Congress, not the courts. Congress has specifically prohibited gender identity discrimination in multiple other statutes that the Department of Justice will continue to enforce vigorously but Congress has not taken that step in Title VII. Unless and until it does so, the proper role of the Executive, and of this Court, is faithfully to enforce the law as written. ...
(DOJ Brief, August 2019, p. 15-16)
...Those statutes are significant for two reasons. First, they demonstrate that Congress "kn[ows] how" to prohibit discrimination based on gender identity when it wishes to do so. Department of Homeland Sec. v. MacLean, 135 S. Ct. 913, 921 (2015). "If Congress had meant to prohibit * * * transgender discrimination" in Title VII, "surely the most straightforward way to do so would have been to say so-to add * * * 'transgender status' or 'gender identity' to the list of classifications protected under Title VII." Wittmer v. Phillips 66 Co., 915 F.3d 328, 338 (5th Cir. 2019) (Ho, J., concurring). But Congress has never done so.
Second, the above statutes enumerate "gender identity" as a separate prohibited basis of discrimination, distinct from "sex" or "gender" simpliciter. See p. 22, supra. That approach reflects Congress's continued understanding that "sex" and "gender" do not mean transgender status or gender identity. If Congress had viewed "sex" as including gender identity, and had merely meant to clarify that understanding, it could easily have said so. For example, when Congress amended Title VII in 1978 to supersede a decision of this Court that had held that discrimination "because of sex" did not encompass pregnancy-related issues, Congress did so by specifying that "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions." Pregnancy Discrimination Act, 92 Stat. 2076 (42 U.S.C. 2000e(k)) (emphasis added); see pp. 2-3, supra. Instead, in the statutes above, Congress separately prohibited discrimination based on gender identity, reflecting Congress's recognition that the meaning of "sex" as biological sex has endured.
(DOJ Brief, August 2019, p. 23-24)
Next week, sex stereotyping as a form of sex discrimination under Title VII in light of this case and the DOJ brief just filed will be discussed.
And as always, Spognardi Baiocchi will continue to monitor this important court case.