While most of us have studied protected classes in law school or during our undergraduate degree, we can all agree that the question of whether a transgender individual should be provided constitutional protections lacks any substantial precedent one way or the other.  However, this week the Trump Administration began the process of seeking court permission to discriminate against transgender individuals in employment.  On Friday, Trump’s Department of Justice provided a brief to the United States Supreme Court in the case of R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.

That case out of the Sixth Circuit Court of Appeals sided with a funeral home worker who had been discriminated against by her employer on the basis of her identity as a transgender individual.  The court found the employer violated Title VII protections when the owner, Thomas Rost, fired his employee, Aimee Stephens, who was a transgender woman who had worked for him for approximately six years. According to documents in the court file, Stephens contacted the employer explaining that she was struggling with “gender identity disorder.” She had decided that she wanted to start living as a woman.  At work, this meant that instead of wearing a suit and tie she wanted to wear the company’s female uniform –which was a jacket and skirt. The company refused and fired her on the basis of failing to wear the appropriate uniform.  Title VII is a federal law which prevents employers from discriminating against employees on the basis of sex, race, color, religion or national origin.  However, it does not protect transgender people.

In taking the unusual step of filing a brief in a case that it is not a party to, the Department of Justice sent a clear message as to what policy it hopes the Supreme Court will create through its ruling.  The DOJ argued that Title VII did not protect the employee because the law only works to protect citizens from discrimination based on “biological sex.” In its view selecting a gender is a choice that does not warrant federal safeguards.  The policy would be consistent with Trump’s previous decree of no transgender individuals serving in the military.

Opponents of Trump’s administration find the DOJ’s argument is in danger of creating a slippery slope.  What is considered transitional clothing for genders?  Will a Court ruling prevent women from wearing clothes typically associated with men?  “People don’t realize that the stakes are extending not just the trans and LGB communities, but every person who departs from sex stereotypes: Women who want to wear pants in the workplace, men who want more childbearing responsibilities,” said Chase Strangio, an American Civil Liberties Union attorney representing Stephens.  Court watchers will be anxious to see how the Court rules on this case in this year’s session.