By Tara Law
August 17, 2019

The Trump administration’s Department of Justice is asking the Supreme Court to set a legal precedent that would enable employers to fire employees because they are transgender.

The Department of Justice has submitted a brief to the Court Friday asking the Justices to rule that Title VII, a federal law that prohibits employment discrimination on the basis of sex, race, color, religion or national origin, does not protect transgender people. The department argued that they should throw out a lower court ruling that found that a funeral home that fired a transgender woman had discriminated against her.

The brief concerns R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, one of three cases that the Supreme Court agreed to hear earlier this year that concern whether Title VII can be applied to LGBTQ workers.

In the case, the U.S. Court of Appeals for the 6th Circuit found that the owner of the funeral home, Thomas Rost, had violated the law when he fired Aimee Stephens, a transgender woman who worked for the company from 2007 to 2013. According to court documents, Stephens sent the company a letter in 2013 that said she struggled with a “gender identity disorder” and planned to begin to live as a woman, including by wearing the company’s female uniform – a jacket and skirt – instead of a suit and tie.

The company argued that Stephens was fired because she refused to wear the company’s dress code and argued that “[m]aintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.”

In its brief, the Department of Justice has argued in favor of the funeral home, arguing that Title VII only protects what it defines as “biological sex.”

“In 1964 [when Title VII was enacted], the ordinary public meaning of ‘sex’ was biological sex. It did not encompass transgender status,” the DOJ writes, clarifying, “In the particular context of Title VII—legislation originally designed to eliminate employment discrimination against racial and other minorities—it was especially clear that the prohibition on discrimination because of “sex” referred to unequal treatment of men and women in the workplace.”

Chase Strangio, an American Civil Liberties Union attorney representing Stephens, told HuffPo that the case could weaken Title VII protections both for transgender people and other groups.

“People don’t realize that the stakes are extending not just the trans and LGB communities, but every person who departs from sex stereotypes: Women who want to wear pants in the workplace, men who want more childbearing responsibilities,” Strangio said.

Write to Tara Law at tara.law@time.com.

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