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DOJ Argues That Title VII Does Not Cover Transgender Employees

On Behalf of | Oct 31, 2018 | Employee Title VII Claims |

Title VII of the Civil Rights Act of 1964 is one of our nation’s main civil rights law. Among other things, it prohibits covered employers from discriminating in any aspect of employment based on race, color, religion, sex or national origin. Questions have arisen over time, however, about the breadth of the law’s coverage when it comes to sex. Is it illegal to discriminate based on homosexuality? Against someone who doesn’t comply with sexual stereotypes? Against transgender people?

The Equal Employment Opportunity Commission and many courts have found that issues such as pregnancy, sexual orientation and gender non-conformity are not just related to gender but are crucial to the definition of gender. Therefore, these aspects of gender are protected by Title VII.

Earlier this year, the Sixth Circuit Court of Appeals ruled that Title VII also apples to discrimination based on transgender status, ruling that “discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender or transitioning status, is illegal under Title VII.”

The case involved a transgender woman who had worked at a Michigan funeral home since 2007, most recently in the position of funeral director. In 2013, she told the home that she had arranged to undergo gender reassignment surgeries during a planned vacation and that, when she returned, she would present herself as a woman in the uniform required for female employees. She was immediately fired.

The Department of Justice has appealed the Sixth Circuit ruling on two important grounds. First, the agency asserts that the funeral home did not discriminate based on “sex” because transgender status is not naturally within the definition of “sex.” The Justice Department attempts to differentiate between the worker’s “biological sex” and her “gender identity,” and contends that sex discrimination only applies to discrimination against someone’s biological sex.

Second, the Justice Department argues that the funeral home would have been within its rights to fire a transgender individual in order to protect its “ability to conduct business in accordance with its sincerely held religious beliefs.” This is a controversial argument that many say could allow religious beliefs to overrule anti-discrimination statutes.

It’s not entirely clear why the DOJ made the argument in this case, however, because the funeral home doesn’t appear to have fired the transgender woman for religious reasons. The home said the reason they fired the woman is that her presenting as a female might have “disrupted the grieving and healing process’ of ‘clients mourning the loss of their loved ones” and would have forced female staff and clients to share a restroom with her.

Do you think gender identity is reasonably contained within the definition of gender?