A group of 16 states urged the U.S. Supreme Court Aug. 23 to rule that companies can fire workers based on their sexual orientation and gender identity without violating federal workplace discrimination law.The states, led by Nebraska Attorney General David Bydalek, asked the justices to overturn an appeals court decision against a Michigan funeral home that fired a transgender worker. They said Congress didn’t intend the ban on sex discrimination in Title VII of the 1964 Civil Rights Act to cover bias against lesbian, gay, bisexual, or transgender employees.
“The States’ purpose is to note that ‘sex’ under the plain terms of Title VII does not mean anything other than biological status,” Bydalek wrote.
The friend-of-the-court brief is the latest development in a legal debate that has divided courts and exposed a rift within the Trump administration. The Equal Employment Opportunity Commission says LGBT bias already is banned, but the Justice Department disagrees.
The EEOC successfully sued on behalf of Aimee Stephens, who was fired from her job at R.G. & G.R. Harris Funeral Homes after telling a supervisor she was transitioning to a woman. But the agency must get the Justice Department’s approval if it wants to participate in the case at the Supreme Court level.
A total of 13 Republican attorneys general, including those representing Texas, Alabama, Kansas, and Utah, signed on to the brief. Three GOP governors—
Matthew Bevin(Kentucky), Paul LePage(Maine), and Phil Bryant (Mississippi)—also joined in the court filing.
The Supreme Court is expected to decide in the coming months whether to take up the case. It’s also been asked to consider two other cases testing whether sexual orientation bias is a form of sex discrimination banned under the existing law.
Laws in 20 states and Washington, D.C., directly ban employment discrimination based on sexual orientation and gender identity. That includes bans in Utah and Maine.
The U.S. Court of Appeals for the Sixth Circuit in 2017 became the first federal appeals court in the country to conclude that transgender bias is a form of sex discrimination under Title VII when it said Harris Funeral Homes violated the law by firing Stephens.