- 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workplace discrimination on the basis of being transgender; however, in 2017, former Attorney General Jeff Sessions rescinded an Obama-era policy that included LGBTQ+ identities in the “sex” category.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.
California Gov. Gavin Newsom Survives Recall
Experts say the outcome should act as a warning for Republicans who tie themselves to former President Donald Trump and attempt to undermine election results by promoting false voter fraud claims.
Recall Effort Fails
After seven months and an estimated $276 million in taxpayer money, the Republican-led effort to recall California Gov. Gavin Newsom (D) failed Tuesday.
Just under 70% of the votes have been reported as of Wednesday morning, showing that “no” on the recall received 63.9% of the vote. That’s nearly twice as many votes as “yes,” which had 36.1%.
According to The Washington Post, even if the margin narrows as more votes are counted, this still marks one of the biggest rejections of any recall effort in America over the last century.
Analysts say the historic rebuke was driven by high Democratic turnout and broader fears over resurging COVID cases.
While the Delta variant continues to push new infections to record highs in many parts of the country with lax mask rules and low vaccination rates, California, once a global epicenter of the pandemic, now has one of the highest vaccination rates and lowest new caseloads in the nation.
Newsom has continually tried to convince voters that those figures are the results of his vaccine and masking policies, which have been some of the most aggressive in the U.S.
Given that polls showed the pandemic was the top concern for California voters, it is clear that the majority favored his policies over those of his competitors. Larry Elder, the Republican talk radio host of led the field of 46 challengers, ran on a platform of getting rid of essentially all COVID restrictions.
In his victory speech Tuesday night, Newsom painted the recall’s failure not only as a win for Democratic coronavirus policies but also for Democracy at large.
“We said yes to science. We said yes to vaccines. We said yes to ending this pandemic,” he said. “We said yes to people’s right to vote without fear of fake fraud or voter suppression.”
“I think about just in the last few days and the former president put out saying this election was rigged,” he continued. “Democracy is not a football. You don’t throw it around. That’s more like a, I don’t know, antique vase. You can drop it and smashing a million different pieces. And that’s what we’re capable of doing if we don’t stand up to meet the moment and push back.”
“I said this many, many times on the campaign trail, we may have defeated Trump, but Trump-ism is not dead in this country. The Big Lie, January 6th insurrection, all the voting suppression efforts that are happening all across this country.”
A Warning for Republicans
Newsom’s remarks took aim at the efforts by Elder and other Republicans — including former President Donald Trump — who over the last week have claimed falsely and without evidence that voter fraud helped secured the governor’s win before Election Day even took place.
While it is currently unknown whether that narrative may have prompted more Republican voters to stay home, Newsom’s effort to cast Edler as a Trump-like candidate and the recall as an undemocratic, Republican power grab appears to have been effective.
Now, political strategists say that the outcome of the recall should serve as a warning that Republicans who pin themselves to Trump and his Big Lie playbook may be hurt more in certain states.
“The recall does offer at least one lesson to Democrats in Washington ahead of next year’s midterm elections: The party’s pre-existing blue- and purple-state strategy of portraying Republicans as Trump-loving extremists can still prove effective with the former president out of office,” The New York Times explained.
Even outside of a strongly blue state like California, analysts say this strategy will also be effective with similar candidates in battleground states like Georgia, Arizona, Missouri, and Pennsylvania, which will be essential to deciding control of the Senate.
See what others are saying: (The Washington Post) (The New York Times) (NPR)
Justice Department Sues Texas Over Abortion Ban
The department claims the Texas law violates past Supreme Court precedents on abortion and infringes on Constitutional protections.
Biden Administration Takes Aim at Texas Law
The Department of Justice sued Texas on Thursday in an attempt to block the state’s newly enacted law that effectively prohibits all abortions by banning the procedure after six weeks, before most people know they are pregnant.
The abortion law, which is the most restrictive in the country and does not provide exceptions for rape or incest, allows private citizens to take legal action against anyone who helps a person terminate their pregnancy after six weeks.
In its lawsuit, the Justice Department argued that the Texas law is unconstitutional because it violates past Supreme Court precedents through a technical loophole.
While numerous other states have passed similar laws banning abortion after about six weeks, federal judges have struck down those measures on the grounds that they are inconsistent with Roe v. Wade and subsequent Supreme Court decisions that states cannot prevent someone from seeking an abortion before a fetus can viably live outside the womb, usually around 22 to 24 weeks.
The Texas law, however, skirts the high court decisions by deputizing citizens to enforce the law rather than state government officials, taking the state out of the equation entirely and protecting it from legal responsibility.
Individuals who do so do not have to prove any personal injury or connection to those they take legal action against, which can range from abortion providers to rideshare drivers who take someone to a clinic.
If their lawsuit is successful, the citizen is entitled to a $10,000 award.
DOJ Lawsuit Targets Constitutionality
During a press conference detailing the DOJ lawsuit, Attorney General Merrick Garland referred to the enforcement mechanism as “an unprecedented” effort with the “obvious and expressly acknowledged intention” to prevent Texans from their constitutionally protected right to have an abortion.
“This kind of scheme to nullify the Constitution of the United States is one that all Americans — whatever their politics or party — should fear,” Garland said, adding that the provision of the law allowing civilians “to serve as bounty hunters” may become “a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.”
The Justice Department argued that the Texas policy violates equal protection guarantees under the 14th Amendment as well as the Constitution’s Supremacy Clause, which establishes that the Constitution and federal law generally take precedence over state law.
The lawsuit also claimed that the law interferes with the constitutional obligation of federal employees to provide access to abortion, including in cases of rape or incest, to people who are under the care of federal agencies or contractors such as those in prisons.
Both Sides See Path to Supreme Court
While proponents of abortion rights applauded the Justice Department’s legal challenge, officials in Texas defended the law and accused the Biden administration of filing the lawsuit for political reasons.
“President Biden and his administration are more interested in changing the national narrative from their disastrous Afghanistan evacuation and reckless open border policies instead of protecting the innocent unborn,” a spokeswoman for Texas Gov. Greg Abbott (R), said in a statement.
“We are confident that the courts will uphold and protect that right to life.”
The DOJ’s suit will now be decided by a federal judge for the Western District of Texas, based in Austin.
Depending on how that court rules, either opponents or supporters of the abortion ban are expected to appeal the case, sending it to the conservative Fifth Circuit Court of Appeal and likely ultimately placing the matter before the Supreme Court again in a matter of months.
The Supreme Court allowed the law to go into effect by declining to approve an emergency petition to block the measure last week, but it did not rule on the constitutionality of the policy.
As a result, the Justice Department’s legal challenge could force the high court to hear another facet of the law that it has not yet considered if it decides to see the case.
See what others are saying: (The Washington Post) (The New York Times) (The Texas Tribune)
Texas Governor Says Rape Victims Aren’t Forced To Give Birth Because They Have 6 Weeks To Get an Abortion
The governor also defended the six-week abortion ban’s lack of exceptions for rape and incest by saying the state will “eliminate all rapists.”
Abbott Defends Texas Abortion Law
Texas Gov. Greg Abbott (R) on Tuesday defended the state’s new controversial law that bans abortion after six weeks, before many know they are pregnant, after facing criticism that the policy does not provide exceptions for rape and incest.
During a press conference, Abbott refuted a reporter’s assertion that the law forced victims of rape and incest to carry their pregnancies to term, claiming that it “provides at least six weeks for a person to be able to get an abortion.”
“Let’s make something very clear: Rape is a crime,” the governor continued.
“And Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.”
Backlash Over Remarks on Abortions at Six Week
Abbott’s claim that rape victims would still have plenty of time to get an abortion was widely criticized by many, including Rep. Alexandria Ocasio-Cortez (D-N.Y.), who called his remarks “disgusting” in a now-viral interview on CNN,
“I don’t know if he is familiar with a menstruating person’s body. In fact, I do know that he’s not familiar with a female or menstruating person’s body because if he did, he would know that you don’t have six weeks,” she said.
“But in case no one has informed him before in his life, six weeks pregnant means two weeks late for your period,” Ocasio-Cortez continued. “Two weeks late for your period for any person, any person with a menstrual cycle, can happen if you’re stressed, if your diet changes, or for really no reason at all.”
Those comments were echoed by a lot of other people who pointed to data from Planned Parenthood that said 85-90% of people who obtain abortions in Texas are at least six weeks into their pregnancy.
Critics Note Flaws in Abbott’s Claims About Rapists
Many also took aim at Abbott’s claim that he was going to “eliminate all rapists” by mocking the governor.
“Wait. Governor Abbott had a solution to end all RAPE and he sat on it until now?” Texas State Representative Gene Wu (D) tweeted.
Others argued that historical evidence proves Abbott’s promise was ignorant.
According to data from the Justice Department analyzed by the Rape, Abuse & Incest National Network (RAINN), only 1 out of every 3 rapes and sexual assaults are reported.
Out of every 1,000 assaults, only 50 lead to arrest, and only 25 lead to incarceration, meaning that more than 97% of people who commit assault walk free.
Some critics also said that Abbott’s goal of getting rid of “all rapists” relied on a faulty conception of who actually perpetrates sexual crimes.
“The majority of people who are raped and who are sexually assaulted are assaulted by someone who they know,” Ocasio-Cortez told CNN. “And these aren’t just predators that are walking around the streets at night. They are people’s uncles, they are teachers, they are family friends.”
“And when something like that happens, it takes a very long time, first of all, for any victim to come forward,” she added. “And second of all, when a victim comes forward they don’t necessarily want to bring their case into the carceral system.”