The New York Times reports on the upcoming November 30 Supreme Court conference on whether to accept three job discrimination cases from gay and transgender workers.
“‘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,’ the [Sixth Circuit U.S. Court of Appeals] court said. “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.’”
“The Trump administration filed a curious brief in Ms. Stephens’s case, one that said two seemingly contradictory things. The appeals court had gotten things badly wrong on legal issues that were ‘recurring and important,’ Solicitor General Noel J. Francisco told the justices. The ruling, he added, was ‘inconsistent with decisions of other circuits.’”
In fact, there is no inconsistency, as no modern federal appeals court has issued a ruling stating that trans people are excluded from sex discrimination protections. “Those are precisely the things you say when you want to persuade the Supreme Court to hear a case. But Mr. Francisco went on to urge the court to deny review in the funeral home’s appeal and instead hear one of the cases on whether Title VII bars discrimination based on what he called ‘another non-biological-sex attribute — an individual’s sexual orientation.’”
This position by the US Solicitor General is because the argument for protection of trans people is a much easier argument, logically and based on precedent, than the argument for protection of gay workers. While gay workers are equally entitled to protection from job discrimination, that argument involves the proposition that discrimination based on one’s romantic interests in people of a certain sex is “because of sex,” even though it is based on the generic partner’s sex. That’s why Mr. Francisco urged the Supreme Court to turn down the trans case, surprising court watchers, who assumed the Administration would relish the chance to let its newly-emboldened Supreme Court conservatives loose on the nearly unanimous lower federal court opinions protecting trans people from sex discrimination under the Federal Civil Rights Act. The trans worker’s termination so clearly involved her sex, and the employer’s rejection of her sex, that the Supreme Court conservatives, who have long espoused interpreting words, like “sex,” according to their present meaning rather than the meanings of long-dead legislators, will be hard put to convincingly argue that “gender discrimination” is today unprotected, because sex meant only anatomy in 1964.
Here’s my law review article on that subject: https://ift.tt/2QEkSMq
The funeral home that fired the trans worker made this curious argument that defies the logic of the Trump era, which doubts national identity as much as it does gender identity: “Treating a person whose sex is male as a man is no more stereotyping than is classifying someone born in Canada as Canadian,” the funeral home said in a brief filed last week. Why did they choose to pick on the Canadians? Because the same cannot be said of Americans in the Trump era. The Trump Administration has put all its stock into the argument that birth does not determine one’s identity. But logical consistency is not the Administration’s strong suit, resulting in absurd arguments that no rational judge, even a conservative one, can justify.
I nonetheless have no desire for the Supreme Court to weigh in now. The Court is clearly in flux, not a good time for any issue that is such a political football. That tends to skew the arguments towards the political, rather than the legal and logical.
Can a Fired Transgender Worker Sue for Job Discrimination? https://nyti.ms/2z6yzgx?smid=nytcore-ios-share
See this link: https://nyti.ms/2z6yzgx?smid=nytcore-ios-share
