DOJ Says Title VII Doesn’t Protect Gender Identity, EEOC Says Supreme Court Should Settle the Issue

November 02, 2018

In a brief filed to the Supreme Court, the Department of Justice has reversed the Equal Employment Opportunity Commission’s lower court position on Title VII and gender identity, with the Department saying the law’s ban on sex discrimination can’t be read to protect transgender workers because “sex” at the time Title VII was passed “meant biological sex.”

EEOC’s stance in the Sixth Circuit reversed: Earlier this year, the EEOC persuaded the Sixth Circuit Court of Appeals in R.G. & G.R. Harris Funeral Homes that Title VII covers gender identity.  (While the EEOC argues its case at the district and circuit court levels, DOJ speaks for the agency at the Supreme Court.)

  • According to the Sixth Circuit, Title VII protects transgender workers because firing employees for not following gender norms is illegal sex-based stereotyping and because a worker’s gender identity is intrinsically tied to their sex.

The Supreme Court is considering taking up two other related cases on whether Title VII’s ban on sex discrimination protects gay workers because of their sexual orientation.  In one of those cases, Zarda v. Altitude Express, Inc., the DOJ similarly filed a brief in opposition to the EEOC, arguing that Title VII does not explicitly cover sexual orientation discrimination in the workplace.

Acting EEOC Chair Victoria A. Lipnic wants legal clarity.  “There’s a lot of litigation going on this," she said.  "We have lots of people who have filed charges with the EEOC that we have taken in.  I’m always in favor of clarity.”

Outlook:  The DOJ asked the Supreme Court not to rule on the Harris petition until it decides whether to take up the other two related sexual orientation appeals.  Given the current circuit court split on Title VII and sexual orientation, it is likely the high court will resolve the issue, but a decision could be one or two years away.