Please, Please, Please Let Us Discriminate Against Transgender Employees! Please?

That is the import of an appeal made by Republican officials from 16 states. On Tuesday they urged the Supreme Court during the upcoming term to rule that Title VII does not prohibit transgender discrimination. Title VII is the main federal employment discrimination law (others are ADA, USERRA [servicemembers], and ADEA [age]).

The petition grows out a ruling by a three-judge panel of the 6th U.S. Circuit Court of Appeals—a court that leans conservative, by the way. That decision ruled that a funeral home violated Title VII by firing funeral director Aimee Stephens when she told the home’s owner that she planned to transition from male to female.

The 13 attorneys general and three governors, led by the office of Nebraska Attorney General Douglas Peterson, said in an amicus brief that Congress did not intend for the protections against sex discrimination in the workplace to extend to gender identity when it passed Title VII of the Civil Rights Act in 1964.

Well, that is literally true but quite misleading.

As a matter of fact, the congressman (Howard Smith, Virginia Dixiecrat) who proposed that Title VII should be broadened to include sex discrimination—it had only proposed race, color, religious and national origin discrimination— was an ardent segregationist.

He thought that by broadening the protections against race and color discrimination, the bill would lose support—and Jim Crow would live for another day.

He miscalculated.

The point in mentioning this sorry history is that Congress never intended to outlaw sexual harassment. But courts have long since gotten past that discussion—they have ruled over and over again that discrimination “because of sex” includes discrimination because of sexual harassment.

By that logic, the Sixth Circuit reasoned that the only reason that Aimee Stephens lost her job was gender bias, i.e., “because of sex.”

Important to note, these GOP politicians are not speaking for America’s leading businesses. A quick and random check of LER employers proves this point. GE is one many examples. In a publicly available website, it states:

Gay, Lesbian, Bisexual, Transgender & Ally Alliance (GLBTA)

The GLBTA is focused on creating a more inclusive environment for all employees at GE, and promoting the company’s commitment to developing GLBT talent around the world. GLBT employees and their allies connect through regional and global events to discuss and raise awareness about GLBT issues and engage GE’s senior leadership.

See here: https://www.ge.com/careers/culture/diversity/gay-lesbian-bisexual-transgender-ally-alliance

So, given that this is an employment law case— another way of saying, it’s a business-type case— and given that American employers support transgender employees, what is the motivation for this appeal to the Supreme Court?

That is a question for you to consider.

KITTY CAT UPDATE: 

If you work in Michigan, Kentucky, or Tennessee, this “Kitty Cat” case applies to you. The case name is Equal Employment Opportunity Commission v. RG & GR Harris Funeral Homes Inc. The decision is found here: https://scholar.google.com/scholar_case?case=11341739590762191378&hl=en&as_sdt=6&as_vis=1&oi=scholarr.