The new brief was the second time in weeks the Justice Department has lined up against the EEOC at the Supreme Court. The government’s brief in an unrelated bias case backed a national railway company, and the arguments in that case undercut a lower-court victory for the employment agency.

READ: Justice Department’s brief in Harris Funeral Homes v. EEOC

The Supreme Court on Oct. 8 will hear the transgender rights case, one of a trio of cases that confront the scope of Title VII workplace protections for gay, lesbian and transgender employees. The other two cases explore protections for sexual orientation. Federal appeals courts are divided.

Trump’s Justice Department, reversing Obama-era litigation positions, has advanced in lower courts a narrow reading of Title VII protections for LGBT workers, despite opposition from the EEOC, which has argued that the law shields those workers from harassment and discrimination. Messages left with the EEOC general counsel and the agency’s media office were not immediately returned Friday.

The EEOC last year won a unanimous decision from a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in the agency’s case against Michigan-based R.G. and G.R. Harris Funeral Homes. The American Civil Liberties Union represents the fired worker, Aimee Stephens, who alleged she was dismissed after revealing she intended to transition from male to female.

While the Sixth Circuit appeal was pending, then-U.S. Attorney General Jeff Sessions in October 2017 issued a memorandum reversing the Obama Justice Department position on Title VII and teeing up a clash with the EEOC’s litigation position. The memo stated that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”

The Justice Department’s argument in the brief filed by Francisco in the high court Friday was not a surprise. Francisco had urged the high court in October either to delay reviewing the transgender case pending the outcome of the other two other LGBT discrimination cases at the high court or deny review entirely. He also told the justices that the government disagreed with the Sixth Circuit ruling.

The EEOC currently has a 2-1 Republican majority with two vacancies. Chairwoman Janet Dhillon, at the time of her confirmation, was largely mum about her thinking on the scope of protections for LGBT workers, saying the matter was being litigated. Bloomberg Law reported this week that the Justice Department had pressed the EEOC to join the government’s brief in the Supreme Court.

Stephens, who intervened in the Sixth Circuit appeal, is represented in the high court by John Knight of the American Civil Liberties Union Foundation. Knight’s Supreme Court brief argued that a firing is “because of sex” in circumstances “where but for the employee’s sex, the employee would not have been fired. Sex need not be the sole cause, as long as it is a cause, for the decision.”

Knight also argued, as the Sixth Circuit ruled, that Harris Funeral Homes violated Title VII by firing Stephens because she failed to conform to its sex-based stereotypes about how men and women should identify, appear and behave.

“In the same way that Ann Hopkins was denied partnership because she did not comply with Price Waterhouse’s sex stereotypes about how women should walk, talk, dress, and groom, so too was Ms. Stephens fired for failing to fulfill Harris Homes’s stereotypes about how men and women should appear and behave,” Knight wrote in his brief, referring to the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins.

John Bursch addresses the media outside the U.S. Supreme Court in April 2015. Photo: Diego M. Radzinschi/NLJ

Harris Funeral Homes also filed its merits brief Friday. The Michigan business’s counsel, John Bursch of Alliance Defending Freedom, told the justices that Stephens’s view “drastically expands the meaning of sex discrimination and rewrites Title VII to add protected categories that Congress never included, all without advance notice to employers.”

Harris Funeral Homes, Bursch wrote, “would have responded to a female employee who insisted on dressing as a man while working with grieving families the same way it responded to Stephens. Because it does not disfavor one sex compared to the other, Harris does not discriminate based on sex.”

Bursch also said it is not illegal sex stereotyping to apply a sex-specific dress code based on biological sex. “To begin, this court has never construed Title VII as providing an independent cause of action for sex stereotyping. The plurality in Price Waterhouse v. Hopkins, held only that stereotyping could be used as evidence to show ‘disparate treatment of men and women.’”

Francisco was on the Justice Department’s brief with, among other lawyers, Joseph Hunt, the head of the civil division; Eric Dreiband, who leads the civil rights division; Jeffrey Wall, the principal deputy solicitor general; and Hashim Mooppan, a deputy assistant attorney general.

The two other Title VII cases, consolidated for argument, are Altitude Express v. Zarda and Bostock v. Clayton County, Georgia. Those cases ask whether Title VII’s ban on sex discrimination includes discrimination because of sexual orientation.

Read more: 

• Industry giants come out in defense of transgender rights
• 4 steps businesses can take to be inclusive of transgender employees
• Are workplaces becoming more LGBTQ friendly? Depends on who you ask.