As Republicans work to remove trans and nonbinary gender protections, Iowa City will host a ‘Don’t Erase’ rally

On Wednesday, the Justice Department filed a brief with the U.S. Supreme Court that said business owners should be allowed to discriminate against transgender workers. Representing the Trump administration, Solicitor General Noel Francisco discarded the position the Justice Department has previously held, and argued in the brief there is nothing in federal law preventing such discrimination.

If the Supreme Court adopts Francisco’s position, it would have far-ranging consequences and eliminate the legal basis for the federal government’s efforts to stop discrimination based on sexual orientation.

The filing came in the case of Aimee Stephens, a transgender woman in Michigan, who sued her former employer, Harris Funeral Homes, for firing her after she told the owner she was transitioning to a woman. The funeral home claimed it was justified in firing her because its dress code calls for employees to dress in accordance with the sex listed on their birth certificates. Harris Funeral Homes also asserted having a transgender employee would be distracting for customers mourning the loss of loved one, and that keeping Stephens on staff would violate the owner’s religious beliefs.

Stephens appealed the funeral home’s decision to the U.S. Equal Employment Opportunity Commission (EEOC), which ruled the firing violated federal protections against gender discrimination. The EEOC recognizes discrimination against LGBTQ people as a violation of Title VII, the federal civil rights law that forbids discrimination based on race, national origin, religion and sex. Over the last 30 years, courts — and federal agencies such as the EEOC — have come to regard Title VII’s prohibition on discrimination based on “sex” to include discrimination based on gender and gender identity.

The U.S. Supreme Court ruled in Price Waterhouse v. Hopkins (1989) that “sexual stereotyping” by businesses — that is, requiring employees to conform to gender stereotypes — violates Title VII. That ruling has served as the basis for providing federal protection to LGBTQ employees.

In March, the Sixth Circuit Court of Appeals ruled in Stephens’ favor.

“It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” Judge Karen Nelson Moore wrote in the court’s decision.

The Solicitor General argues in his brief that when Congress passed Title VII in 1964 it intended to prevent discrimination strictly based on a person’s identity as either a man or woman, and that “sex” was then understood as fixed at birth. Attorneys general from 13 states, as well as the governors of three other states, have joined a friend-of-the-court brief asking the Supreme Court to overturn the appeals court decision, and adopt the Trump administration’s view of Title VII.

All the attorneys general and governors are Republicans.

Because there is no federal law explicitly forbidding discrimination against LGBTQ people, a Supreme Court decision eliminating protection based on Title VII would essentially remove federal protection for the LGBTQ community.

The Solicitor General’s filing came three days after the New York Times reported on a U.S. Department of Health and Human Services memo proposing that federal agencies adopt a definition of gender “as a biological, immutable condition determined by genitalia at birth.” That definition would have the effect of erasing transgender people from federal regulations.

Members of Iowa City’s LGBTQ community are holding a rally on the Pentacrest on Thursday to protest the Trump administration’s policies. “Support Trans Lives — Don’t Erase” is scheduled to begin at 5 p.m.