LINCOLN — Fifteen states have joined Nebraska’s lead in backing a Michigan funeral home’s right to fire a transgender employee.
State Attorney General Doug Peterson filed a friend-of-the-court brief last week on behalf of the 16 states, urging the U.S. Supreme Court to take up the funeral home’s case.
In the brief, Peterson said Congress never intended Title VII of the 1964 Civil Rights Act to address bias against lesbian, gay, bisexual and transgender employees. He argued that the Sixth U.S. Circuit Court of Appeals, in ruling against the home, had rewritten the law “to its own liking.”
“The Sixth Circuit’s opinion … erases all common, ordinary understandings of the term ‘sex’ in Title VII and expands it to include ‘gender identity’ and ‘transgender’ status,'” he said, calling the case one of national importance.
At issue is a March appeals court ruling that found R.G. & G.R. Harris Funeral Homes had violated the federal anti-discrimination ban when the home fired Aimee Stephens.
Stephens was terminated in 2013, after telling her supervisor she was transitioning from a man to a woman. She wanted to dress and present as a woman at work for a year before undergoing surgery.
But the funeral home president and owner, Thomas Rost, said her plan would violate the home’s dress code. He also expressed concern about Stephens using the women’s bathroom and said it would violate his Christian faith to have a male employee presenting himself as a woman.
The Equal Employment Opportunity Commission brought the case on Stephens’ behalf. The American Civil Liberties Union intervened after President Donald Trump was elected, out of concern that the administration would change its position on the case.
It remains to be seen whether the Department of Justice, under Attorney General Jeff Sessions, will allow the EEOC to continue participating in the case if it is taken up by the Supreme Court. Sessions issued a memo last year saying the law does not cover transgender discrimination.
The provision at issue in Title VII bans employers from discriminating on the basis of “race, color, religion, sex or national origin.”
The appeals court found that employers engage in unlawful sex stereotyping when they apply sex-specific policies according to employees’ biological sex instead of their gender identity.
Laws in 20 states and Washington, D.C., ban employment discrimination based on sexual orientation and gender identity.
The Omaha City Council passed a workplace anti-discrimination ordinance in 2012. It has not been matched elsewhere in Nebraska, despite efforts to pass a state ban on discrimination based on sexual orientation and gender identity.
Joining Nebraska in the filing are Alabama, Arkansas, Kansas, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming.