The fight over civil rights protections for transgender people could prove to be a major test for the Supreme Court, particularly its conservative wing, as justices weigh whether to take up the issue this term.
The court has a request before it to hear a case challenging whether civil rights laws that prohibit discrimination on the basis of sex in employment extend to transgender workers.
It’s a dispute that may have a significant impact on the Trump administration’s reported plans to exclude federal protections for transgender people by narrowly defining gender.
{mosads}The New York Times reported last week that the Department of Health and Human Services (HHS) is leading an effort to write a rule that defines gender as a biological, immutable condition determined by genitalia at birth, a move that would affect civil rights laws banning gender discrimination in education programs that receive federal funding.
While the pending case before the justices deals with civil rights in the workplace, experts say a Supreme Court ruling could very well affect the administration’s planned gender rule.
“If the Supreme Court took it and held what the majority of courts are holding — that sex discrimination includes transgender people — the administration would be hard-pressed to go ahead with that rule,” said Diana Flynn, litigation director at Lambda Legal, a group that advocates for LGBT rights.
Several federal statutes prohibit sex discrimination in employment, education and health care, and legal analysts say each one has the same underlying language and concept.
“Courts tend very strongly to read them together,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality. “A ruling under one law would be very likely to impact other laws.”
The case pending before the Supreme Court centers on Aimee Stephens, a transgender woman who alleges she was fired from her job as a funeral director and embalmer after she told her employer she would begin living and working openly as a woman.
Ruling in her favor, the 6th Circuit Court of Appeals said discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII — the law that bans discrimination based on sex in employment.
The American Civil Liberties Union (ACLU), which is representing Stephens, says there’s no need for the Supreme Court to take the case because the majority of courts have issued rulings in line with the 6th Circuit.
“The Seventh, Ninth, and Eleventh Circuits agree with the Sixth Circuit’s alternative holding for respondents that when a decision maker discriminates against someone for being transgender, that discrimination is inherently based on sex,” the ACLU argued in its brief.
If the justices decide to weigh in, it could challenge the ideals of conservatives on the bench like Justice Neil Gorsuch, a Trump appointee who prides himself on basing his decisions on the text of the law.
Transgender advocates say you can’t discriminate against someone who is transgender without thinking about their sex.
“I think it would hypocritical in the extreme for justices, who claim to be textualists, to rule against Aimee Stephens,” said Tobin.
Alliance Defending Freedom (ADF), which is representing the funeral home in its appeal, disagrees.
“The claim rests on a faulty premise,” said Jim Campbell, a senior counsel at ADF. “Title VII does not define sex and should be given its understanding of when it was defined in 1964.”
Back then, he said, sex referred to male or female based on biology and physiology.
ADF’s argument relies heavily on a 2007 ruling from the 10th Circuit Court of Appeals, which said discrimination on the basis of transgender status is not a violation of Title VII.
The Department of Justice Department (DOJ) also argued in a brief last week that Title VII does not apply to discrimination against an individual based on his or her gender identity. DOJ said justices should first take up two other pending cases challenging whether anti-discrimination protections in Title VII extend to sexual orientation.
Transgender advocates say Stephens should prevail even if the justices take the case because the 6th Circuit ruled that the funeral home discriminated against Stephens based on a sex stereotype.
“Circuit courts have uniformly agreed that all people, including those who are transgender, may bring sex discrimination claims under Title VII if their employers discriminate against them because of sex stereotypes related to behavior and appearance,” ACLU argued.
There’s no guarantee the justices will agree to hear the dispute. Court watchers have said the justices may try to avoid weighing politically charged issues after the highly partisan confirmation fight over Justice Brett Kavanaugh.
Chief Justice John Roberts stressed the importance of an independent judiciary in a speech earlier this month at the University of Minnesota Law School.
“Now the court has from time to time erred and erred greatly, but when it has it has been because the court yielded to political pressure,” he said.
ADF’s Campbell said Dec. 3 is the earliest the justices could announce a decision on whether to take up the Stephens case.
As for an administration rule narrowly defining sex, that could take several months at a minimum.
Under the federal rulemaking process, HHS would have to propose a rule, accept and review public comments and then issue a final regulation.
While advocacy groups like the Transgender Law Center have vowed to fight any rule that attempts to remove legal protections for transgender people, they will have to wait for a finalized rule before taking legal action.