- The Department of Justice filed a brief on Friday asking the Supreme Court to rule that Title VII of the Civil Rights Act of 1964 does not protect workplace discrimination on the basis of being transgender.
- The DOJ filed the brief in response to a case against Harris Funeral Homes brought by Aimee Stephens, a transgender funeral director who says she was fired after coming out to her boss and saying she would wear a female uniform.
- Harris Funeral Homes and the DOJ argue Title VII protects against discrimination based on biological sex only, while the Equal Employment Opportunity Commission says LGBTQ+ workers should be protected under sex-based discrimination.
DOJ Submits Brief Against Trans Protection
On Friday, the U.S. Department of Justice submitted a brief asking the Supreme Court to rule that Title VII of the Civil Rights Act of 1964 does not protect transgender individuals in the workplace.
The brief comes in response to an upcoming case the Supreme Court will hear in October concerning a transgender funeral director who was fired after coming out to her boss in 2013.
Title VII protects workers from employment discrimination on the basis of sex, race, color, religion, and national origin.
While some argue sexual orientation and gender identity are protected under the term “sex,” the DOJ argued “sex” only refers to a person’s biological sex. It said when the Civil Rights Act of 1964 was passed, the interpretation rested on the basis of biological sex.
In the brief, the DOJ stated “[Title VII] simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”
Instead, it argued Title VII prohibits discrimination of people in similar positions and of the opposite biological sex.
The DOJ asserted any changes in the law should be made through Congress, not through the judicial system. Currently, no federal laws prohibit workplace discrimination on the basis of being transgender; however, in 2017, former Attorney General Jeff Sessions rescinded an Obama-era policy that included LGBTQ+ identities in the “sex” category.
“While the issue that the Supreme Court took up is a narrow one, whether civil rights protections against ‘sex’ discrimination passed in 1964 should include ‘gender identity’ and transgender rights, it will have vast implications for religious groups,” said Craig Parshall, General Counsel for National Religious Broadcasters. “There is an increasing movement to force faith-based employers to bend to the newly-minted doctrine that a person’s subjective ideas of how they think of their own gender should always prevail, regardless of the religious conscience of employers, businesses, and ministries.”
Meanwhile, the Human Rights Campaign and the American Civil Liberties Union have condemned the action.
“The Trump-Pence administration’s filing today is both legally and morally unjustifiable,” said HRC Legal Director Sarah Warbelow in a Friday statement. “Their argument is un-American, anti-business, and flies in the face of decades of federal case law, including established Supreme Court precedent. There can be no justification for such a narrow interpretation of the term ‘sex.’ Our community will not be silent, and we will not be erased.”
R.G. and G.R. Harris Funeral Homes V. EEOC & Aimee Stephens
Aimee Stephens worked for R.G and G.R. Harris Funeral Homes in Michigan as a funeral director from 2007 to 2013, presenting as a man for the six years of her employment.
In 2013, she decided to come out to her boss, Thomas Rost, in a letter where she stated she would begin wearing a woman’s uniform and start her transitioning process.
She said the decision came after many years of struggling to accept her identity. At one point in her life, she said she considered killing herself.
Though she said she hoped her job performance over the years would help ease her transition, she was fired soon after.
She then filed a complaint with the Equal Employment Opportunity Commission, which in turn, sued the funeral home for discrimination, sending the case to district court.
In court, the funeral home argued Stephens needed to wear a man’s uniform, saying that “[m]aintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.”
Rost, who is a devout Christian, also said he does not believe people can change their gender and defended his firing of Stephens under the protection of the Religious Freedom Restoration Act.
The district ruled in favor of the funeral home on both points, concluding Title VII does not extend to discrimination on the basis of being transgender.
In 2018, Stephens and the EEOC appealed the case in circuit court, where it overturned the district decision and ruled in their favor.
“Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII,” the decision states. “The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex.”
The circuit also struck down the district’s religious freedom ruling.
This time, the funeral home sought to overturn the decision, arguing that the circuit court had over-reached its authority, and particularly, that it had expanded the definition of what it means to be a man or woman. It asked the U.S. Supreme Court to hear the case. In April, the Supreme Court agreed to hold a hearing.
“Harris Homes ‘administers its dress code based on [its] employees’ biological sex, not based on their subjective gender identity,’ the DOJ’s Friday brief states. “Rost has stated that he ‘believe[s] that the Bible teaches that a person’s sex is an immutable God-given gift,’ and he would ‘violat[e] God’s commands’ by ‘permit[ting] one of [Harris Homes’] funeral directors to deny their sex while acting as a representative of [the] organization’ or by permitting a funeral director of either sex to ‘wear the uniform for’ funeral directors of the opposite sex ‘at work.’”
The Supreme Court will also hear two LGBTQ+ other cases involving “sex” discrimination in relation to Title VII and sexual orientation.
Senate Democrats To Introduce Voting Rights Bill This Week
Republicans are expected to block the legislation, but Democratic leaders hope the GOP’s unified opposition will lay the groundwork to justify getting rid of the filibuster.
Voting Bill Set for Floor
Senate Democrats are officially set to advance their voting rights bill this week, with a procedural vote to start debate on the legislation scheduled for Tuesday.
The move comes as an increasing number of Democrats and progressive activists have begun to embrace a more watered-down version of the bill proposed by Sen. Joe Manchin (D-W.V.), the sole Democrat who opposed the initial proposal on the grounds that it was too partisan.
While Democrats have spent the weekend hashing out the final details of compromise on Manchin’s bill, which he has touted as a more bipartisan compromise, Senate Republicans have still broadly rejected it.
Minority Leader Mitch McConnell (R-Ky.), who previously opposed the initial For the People Act as too far-reaching, called Manchin’s alternative proposal “equally unacceptable” and predicted that no members of his party will vote in favor.
The legislation is all but guaranteed to fail in the chamber, where it will require all 50 Democrats and at least 10 Republicans to overcome the filibuster.
However, bringing the bill to the floor still has major utility for Democrats because it will lay the groundwork for the party to justify scrapping the filibuster entirely.
Pathway for Filibuster Reform
Specifically, if Manchin agrees to some form of the bill which Republicans then filibuster, Democrats can say they had the to votes to pass the legislation if the filibuster were removed.
That, in turn, would bolster the Democratic argument that bipartisanship cannot be a precondition to taking actions to secure our democracy if it relies on reaching common ground with a party that they believe is increasingly and transparently committed to undermining democracy.
It would also give more ground to the Democratic claim that the GOP is abusing existing Senate rules to block policy changes that have gained wide public support following the Jan. 6 insurrection and amid the growing efforts by Republican governors and legislatures to restrict voting access in their states.
As a result, if Republicans block the legislation along party lines, Democratic leaders hope that could change objections to scrapping the filibuster voiced privately by some members and publicly by Manchin and Sen. Kyrsten Sinema (D-Az.).
This is especially true for Tuesday’s planned vote, because it is just a vote to proceed to debate, meaning that if Republicans filibuster, they will be preventing the Senate from even debating any efforts to protect democracy, including Manchin’s plan which he crafted specifically to reach a compromise with the GOP.
Whether a full party rejection would be enough to move the needle for Manchin and the other Democrats remains to be seen. Any successful overhaul of the contentious Senate rule would not only be incredibly significant for President Joe Biden’s agenda, but also for the precedent it could set.
See what others are saying: (The New York Times) (Reuters) (USA Today)
McConnell Says He Would Block a Biden SCOTUS Nominee in 2024
The Senate Minority Leader also refused to say whether or not he would block a hypothetical nominee in 2023 if his party overtakes the chamber’s slim majority in the midterm elections.
McConnell Doubles Down
During an interview with conservative commentator Hugh Hewitt on Monday, Senate Minority Leader Mitch McConnell (R-Ky.) threatened to block a hypothetical Supreme Court nominee from President Joe Biden in 2024 if Republicans took control of the Senate.
“I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled,” he said. “So I think it’s highly unlikely. In fact, no, I don’t think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election.”
McConnell’s remarks do not come as a surprise as they are in line with his past refusal to consider former President Barack Obama’s nomination of Merrick Garland to the court in February 2016 on the grounds that it was too close to the presidential election.
The then-majority leader received a ton of backlash for his efforts, especially after he forced through Amy Coney Barrett’s confirmation just eight days before the 2020 election. At the time, McConnell argued the two situations were different because the Senate and the president were from the same party — a claim he reiterated in the interview.
McConnell also implied he may take that stance even further in comments to Hewitt, who asked if he would block the appointment of a Supreme Court justice if a seat were to be vacated at the end of 2023 about 18 months before the next inauguration — a precedent set by the appointment of Anthony Kennedy.
“Well, we’d have to wait and see what happens,” McConnell responded.
Many Democrats immediately condemned McConnell’s remarks, including progressive leaders who renewed their calls to expand the court.
“Mitch McConnell is already foreshadowing that he’ll steal a 3rd Supreme Court seat if he gets the chance. He’s done it before, and he’ll do it again. We need to expand the Supreme Court,” said Sen. Ed Markey (D-Ma.).
Some also called on Justice Stephen Breyer, the oldest SCOTUS judge, to retire.
“If Breyer refuses to retire, he’s not making some noble statement about the judiciary. He is saying he wants Mitch McConnell to handpick his replacement,” said Robert Cruickshank, campaign director for Demand Progress.
Others, however, argued that the response McConnell’s remarks elicited was exactly what he was hoping to see and said his timing was calculated.
The minority leader’s comments come as the calls for Breyer to step down have recently grown while the current Supreme Court term draws near, a time when justices often will announce their retirement.
On Sunday, Rep. Alexandria Ocasio-Cortez (D-N.Y.) was asked if she thought Breyer should leave the bench while Democrats still controlled the Senate. She responded that she was “inclined to say yes.”
With his latest public statement, McConnell’s aims are twofold here: he hopes to broaden divisions in the Democratic Party between progressives and more traditional liberals, who are more hesitant to rush Breyer to retire or expand the court, while simultaneously working to unite a fractured Republican base and encourage them to turn out in the midterm elections.
See what others are saying: (The New York Times) (CNN) (The Hill)
Gov. Abbott Says Texas Will Build Border Wall With Mexico
The announcement follows months of growing tension between the Texas governor and President Biden over immigration policies.
Texas Border Wall
Texas Gov. Greg Abbott (R) announced during a press conference Thursday that the state would build a border wall with Mexico, extending the signature campaign promise of former President Donald Trump.
Abbott provided very few details for the border wall plans, and it is unclear if he has the authority to build it.
While some of the land is state-owned, much of it belongs to the federal government or falls on private property.
Even if the state were able to build on federal ground, private landowners who fought the Trump administration’s attempts to take their land through eminent domain would still remain an obstacle for any renewed efforts.
During his term, Trump built over 450 miles of new wall, but most of it covered areas where deteriorating barriers already existed, and thus had previously been approved for the federal project.
The majority of the construction also took place in Arizona, meaning Abbott would have much ground to cover. It is also unclear how the governor plans to pay for the wall.
Trump had repeatedly said Mexico would fund the wall, but that promise remained unfulfilled, and the president instead redirected billions of taxpayer dollars from Defense Department reserves.
While Abbott did say he would announce more details about the wall next week, his plan was condemned as ill-planned by immigration activists, who also threatened legal challenges.
“There is no substantive plan,” said Edna Yang, the co-executive director of the Texas-based immigration legal aid and advocacy group American Gateways. “It’s not going to make any border community or county safer.”
Abbott’s announcement comes amid escalating tensions between the governor and the administration of President Joe Biden.
Biden issued a proclamation that stopped border wall construction on his first day of office, and has since undone multiple Trump-era immigration policies. Abbott, for his part, has blamed Biden’s rollback of Trump’s rules for the influx of migrants at the border in recent months.
Two weeks ago, the governor deployed over 1,000 National Guard members and troopers from the Texas Department of Public Safety to the border as part of an initiative launched in March to ramp up border security dubbed Operation Lone Star.
Last week, Abbott issued a disaster declaration which, among other measures, directed the Texas Health and Human Services Commission to strip the state licenses of all shelters that house migrant children and have contracts with the federal government.
The move, which federal officials have already threatened to take legal action against, could effectively force the 52 state-licensed shelters housing around 8,600 children to move the minors elsewhere.
During Thursday’s press conference, Abbott also outlined a variety of other border initiatives, including appropriating $1 billion for border security, creating a task force on border security, and increasing arrests for migrants who enter the country illegally.
“While securing the border is the federal government’s responsibility, Texas will not sit idly by as this crisis grows,” he said. “Our efforts will only be effective if we work together to secure the border, make criminal arrests, protect landowners, rid our communities of dangerous drugs and provide Texans with the support they need and deserve.”