Dept. of Justice Tells Supreme Court: Federal Law Prohibiting Sex Discrimination Does Not Include ‘Gender Identity’

WASHINGTON — In a crucial Supreme Court case that could determine whether or not Christian organizations and businesses must accommodate the wishes of an employee who decides to begin identifying as the opposite sex, and whether or not the hiring and dismissal practices of religious organizations are protected in such situations, the U.S. Department of Justice has submitted an amicus brief arguing that gender identity cannot reasonably be read into civil rights law prohibiting discrimination on the basis of sex.

“To be clear, the question in this case is not whether employers ought to be prohibited from discriminating against individuals who are transgender. It is whether Title VII as written currently bars such discrimination,” the department wrote in the brief filed on Friday. 

It said that it is up to Congress to decide whether or not “gender identity” should be added to Title VII of the Civil Rights Act of 1964.

The law currently states, “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

“Congress has specifically prohibited gender identity discrimination in multiple other statutes that the Department of Justice will continue to enforce vigorously. But Congress has not taken that step in Title VII. Unless and until it does so, the proper role of the executive, and of this court, is faithfully to enforce the law as written,” the department stated in its legal filing this week.

Read the brief in full here.


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As previously reported, the nation’s highest court is hearing three appeals cases surrounding the matter of homosexual and transgender discrimination in employment practices, including R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, which involves an explicitly Christian-based funeral home.

“R.G. & G.R. Harris Funeral Homes recognize that its highest priority is to honor God in all that we do as a company and as individuals,” the company’s website states. It also features a quote from Matthew 6:33, in which Jesus taught that men should “seek first the kingdom of God and His righteousness.”

Anthony Stephens, who now goes by the name Aimee Stephens, was hired as the funeral director and embalmer for RG & GR Harris Funeral Homes in 2007. In 2013, Stephens informed his employer that he had been diagnosed with gender dysphoria and would therefore desire to wear a woman’s suit for work.

However, owner Thomas Rost, a Christian who serves on the board of directors for Salvation Army of Metro Detroit, has a company dress code in place, which states that males must wear dark suits and white shirts.

Because Stephens sought to wear female clothing, which is a violation of the dress code, and because Rost did not feel comfortable with providing a skirt suit due to his Christian convictions, Stephens was let go.

He consequently took the matter to the federal Equal Employment Opportunity Commission (EEOC), which sued Rost with the aid of the ACLU in alleging gender discrimination.

“R.G. employees understand that the dress code requires funeral directors to wear company-provided suits,” attorneys for Rost outlined in a legal brief. “Rost sincerely believes that he would be violating God’s commands if he were to pay for or otherwise permit one of RG’s funeral directors to wear the uniform for members of the opposite sex while at work.”

In August 2016, U.S. District Judge Sean Cox sided with the funeral home and dismissed the EEOC’s legal challenge.

“The court finds that the funeral home has met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” he wrote.

However, the Sixth Circuit Court of Appeals disagreed with Cox’s ruling and overturned the decision the following year.

“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 unrefuted facts show that the funeral home fired Stephens because [he] refused to abide by [his] employer’s stereotypical conception of [his] sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim,” wrote Judge Karen Nelson Moore on behalf of the unanimous panel.

The case was therefore appealed to the U.S. Supreme Court, which agreed to hear the matter in April. A decision in still forthcoming.


Rost and R.G. & G.R. Harris Funeral Homes are being represented by the religious liberties organization Alliance Defending Freedom (ADF).

“Since Rost cannot in good conscience ‘support the idea that sex is a changeable social construct,’ forcing him to allow a male funeral director to present as a woman while representing Harris Homes ‘would impose a substantial burden’ on Rost’s ability ‘to conduct his business in accordance with his sincerely-held religious beliefs,’” the appeal brief before the nation’s highest court states.

ADF notes that Rost believes that he would be “violating God’s commands” if he allowed a man — who represents the company and its God-centered mission — to dress like a woman. Being forced to choose between his business or his faith would result in the closure of the the funeral home altogether.

“Were he forced to violate his faith that way, Rost ‘would feel significant pressure to sell [the] business and give up [his] life’s calling of ministering to grieving people as a funeral home director and owner,’” the brief laments.

However, ADF further explains that the ramifications of the case could also be pandemic, affecting hiring practices, restroom and locker use, women’s shelters, women’s sports, schools, and freedom of conscience for employers nationwide.

It could additionally force Christian employers or employees to refer to workers by their preferred pronouns — as one Virginia teacher was recently fired as his faith prohibits him from referring to girls as boys and vice versa, as well as to pay for their employees’ “sex change” services via insurance coverage.

“[R]edefining sex discrimination in Title VII will prohibit employers from maintaining sex-specific privacy in overnight facilities, showers, restrooms, and locker rooms. It will prevent employers from protecting privacy through bona fide occupational qualifications, such as allowing only females to work as a women’s sexual abuse counselor,” ADF wrote in its brief also filed on Friday. 

“[And] no matter how accommodating employers and coworkers may be in terms of using a person’s legal name or avoiding pronouns, the government will compel them to use sex-identifying terminology that they object to using,” it explained. “What’s more, if employers or employees express any religious doubts at work about whether people can or should change their sex, those doubts could elicit lawsuits and punishment under a hostile work environment theory.”

Read the brief in full here.

The U.S. Supreme Court will now need to consider whether “sexual orientation” and “gender identity” fall under Title VII of the Civil Rights Act of 1964, specifically whether or not the terms can be construed as applying to discrimination based on sex.

200 corporations have asked the court to read gender identity into the law, including Amazon, American Express, AT&T, Ben & Jerry’s, Best Buy, Coca-Cola, CVS Health, eBay, Etsy, Facebook, General Motors, Google, IKEA, KIND Healthy Snacks, Levi Strauss & Co., Lyft, Macy’s, Marriott International, Microsoft, Nike, PayPal, Pinterest, Procter & Gamble, Starbucks Corporation, State Farm Mutual Auto Insurance, T-Mobile, Vimeo, The Walt Disney Company, Wells Fargo and Zillow.

It is not clear why those who do not identify as Christian would seek to be employed at an explicitly Christian organization or business with a faith-based mission.

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