The Department of Justice is now squarely at odds with the Equal Employment Opportunities Commission over whether Title VII’s prohibition on sex discrimination also applies to discrimination against transgender employees.  Specifically, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the EEOC had filed suit against a funeral home for terminating a transgender funeral director (who was born a male) after she informed the owner that she intended to transition from male to female, and would thus proceed to dress as a woman at work.  The funeral home’s basis for terminating the employee was that her decision to dress as a woman at work violated its dress code policy, which required male employees to wear suits and ties, and female employees to wear skirts and business jackets.  The EEOC asserted that the funeral home’s decision violated Title VII’s prohibition against discrimination on the basis of “sex,” because its decision was based on her failure to conform to sex stereotypes or, alternatively, that terminating someone for being transgender or “transitioning from male to female,” itself, qualifies as sex discrimination under Title VII.  Ultimately, the Sixth Circuit Court of Appeals agreed, and on March 7, 2018, held that discrimination on the basis of transgender or transitioning status amounts to unlawful sex discrimination under Title VII.

This, however, is not the end of the story.  To the contrary, following the Sixth Circuit’s ruling, the employer filed a petition with the U.S. Supreme Court, asking it to take the case.  Notably, the EEOC cannot oppose such a petition without the permission of the Department of Justice, which has previously adopted the position that Title VII does not protect against sexual orientation or gender identity discrimination.  Thus, the petition placed the DOJ in an odd position: it could either advocate for the reversal of a decision secured by another agency of the federal government during the same administration, or reverse its own narrow reading of Title VII’s applicability to discrimination based on gender identity.

Well, last week, the DOJ opted for the former, with a slight caveat presumably intended to avoid the spectacle of the Supreme Court overruling the Trump Administration’s EEOC’s victory at the insistence of the Trump Administration’s DOJ.

Specifically, last week, the DOJ filed a brief in response to the employer’s petition for certiorari, in which it (a) unequivocally stated that Title VII does not prohibit discrimination on the basis of gender identity, but (b) asked the Court to postpone any decision on whether to take the case until it decides whether to grant the petitions in two other cases, Altitude Express, Inc. v. Zarda, and Bostock v. Clayton Cnty., which deal with the related issue of whether Title VII prohibits discrimination on the basis of sexual orientation.  Notably, because the government was not a party to either the Zarda or Bostock cases, this position provides the DOJ with a potential avenue for avoiding the embarrassment of, in essence, having two governmental agencies arguing against each other before the U.S. Supreme Court.  However, by arguing that the Court should evaluate the petitions in Zarda and Bostock first, the DOJ also tied the fate of the Sixth Circuit’s decision in R.G. & G.R. Harris Funeral Homes, Inc. to the outcome of those two other decisions, as it conceded that if the Court declines to hear the Zarda and Bostock cases, it should also decline to hear the petition in R.G. & G.R. Harris Funeral Homes, Inc., an outcome that would allow the Sixth Circuit’s decision that Title VII prohibits discrimination against employees who are transgender or transitioning to stand.  In short, the DOJ is asking the Court for an all-or-nothing approach, in which it hears three cases that collectively will determine whether Title VII covers sexual orientation discrimination and discrimination against transgender employees, or let the lower court rulings stand in all three matters.

The impact that these three decisions will have on employers across the Country will largely depend on the states in which they operate.  This is because, although these cases all involve Title VII, state laws on the subject vary largely from jurisdiction to jurisdiction, with some states prohibiting both sexual orientation discrimination (i.e., the issue in Zarda and Bostock) and gender identity (i.e., the issue in R.G. & G.R. Harris Funeral Homes, Inc.), while other states have either enacted more limited forms of anti-discrimination measures (e.g., Wisconsin only prohibits sexual orientation discrimination, but not discrimination based on gender identity) or have not passed any legislation on the subject at all.