Justice Department says businesses can discriminate against transgender employees

Justice Department says businesses can discriminate against transgender employees
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The Department of Justice (DOJ) on Wednesday told the Supreme Court that it is lawful to discriminate against transgender employees based on their gender identity, according to Bloomberg Law

In a brief to the Supreme Court, the DOJ wrote that federal civil rights law banning sex discrimination in the workplace does not extend to transgender people.

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The filing comes as the Supreme Court weighs whether to take on a case in which a lower court ruled the 1964 Civil Rights Act can be interpreted to protect transgender workers against bias and discrimination.

"This administration is not a friend of the LGBT community,” Greg Nevins, an attorney for Lambda Legal, told Bloomberg Law. “They can say what they’re going to say, but the courts will have the final word.”

The 6th Circuit Court of Appeals in March found that a Detroit funeral home violated Title VII anti-discrimination laws when it fired its funeral director after she came out as transgender.

The presiding judge wrote at the time that "discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex."

The DOJ filing says "the ordinary meaning of ‘sex’ does not refer to gender identity."

The March case was widely regarded as a win for LGBTQ advocates.

Sixteen U.S. states, including 13 attorneys general and three GOP governors, in August weighed in on the case, filing an amicus curiae brief claiming the 6th Circuit Court was misinterpreting the word "sex" in the Civil Rights Act. 

"The Sixth Circuit’s opinion ... erases all common, ordinary understandings of the term 'sex' in Title VII and expands it to include 'gender identity' and 'transgender' status," the brief states. "In doing so, the lower court rewrites Title VII in a way never intended or implemented by Congress in the Civil Rights Act of 1964." 

The DOJ brief comes days after The New York Times reported that the Trump administration is considering a change to its definition of "gender" that would exclude transgender and nonbinary individuals from civil rights protections. 

LGBT advocates throughout the week have demonstrated against the proposed move, saying it is an attempt by the administration to "erase" trans people from existence.