Kansas Attorney General Derek Schmidt on Friday defended the state's decision to weigh in on a case that could limit transgender rights.
Asked by reporters about Kansas’ decision to join 15 other states in urging the U.S. Supreme Court to rule that it’s legal to fire people for being transgender, Schmidt noted that the 10th U.S. Circuit Court of Appeals, which includes Kansas, has taken that position.
“Almost certainly at some point, some plaintiff or group of plaintiffs is going to file a lawsuit to test the continued validity of the 2007 decision that binds Kansas today,” Schmidt said. “Or we can say, 'Let's do our part to try to get this in front of the Supreme Court as quickly as possible.' That adds certainty, it reduces litigation risk and cost.”
Schmidt was referring to the 10th Circuit’s decision that federal laws prohibiting sex discrimination do not protect transgender people.
That decision runs contrary to the majority of courts that have addressed the issue. And although Schmidt said the ruling was binding on Kansas, the state is free to adopt a broader interpretation of the law if it wishes, a legal expert said.
“They can always extend broader protections at the state than what the law requires,” said Kim Jones, an employment lawyer at Seyferth Blumenthal & Harris in Kansas City. “So even if the 10th Circuit took that position, as an employer, as an enforcement agency, they (Kansas) could take the position that, no, we are going to treat people better than the law would require.”
Schmidt made his remarks after Kansas joined a friend-of-the-court brief asking the Supreme Court to overturn another federal appeals court’s decision that it was illegal for a Michigan funeral home to fire an employee who was transitioning from male to female.
The employee, Aimee Stephens, had told the funeral home’s owner that she was a transgender woman and planned to dress as a woman. The owner, a devout Baptist who believed that God created males and females in the traditional biological sense, said that was unacceptable and terminated her.
The Equal Employment Opportunity Commission sued on Stephens’ behalf but the case was dismissed. On appeal, the Sixth U.S. Circuit Court of Appeals reversed, finding that gender identity discrimination is a form of sex discrimination prohibited under Title VII.
Kansas and the other states argue in their brief that the Sixth Circuit decision “erases all common, ordinary understandings of the term ‘sex’ in Title VII and expands it to include ‘gender identity’ and ‘transgender’ status.”
“In doing so,” says the brief, “the lower court rewrites Title VII in a way never intended or implemented by Congress” when it passed Title VII as part of the Civil Rights Act of 1964.
Jones said that while the 10th Circuit found that Title VII’s protection against sex discrimination does not extend to transgender individuals, many lawyers have managed to get around that by arguing that their transgender clients were discriminated against because they did not conform to gender stereotypes.
“And that is a form of sex discrimination that has been recognized by virtually all of the circuits, including the 10th. So nothing about that (2007) opinion would have necessitated Schmidt to do what he did,” Jones said.
“And, in fact, even in enforcing the laws for which his office is responsible, he could take the position that this is about sex stereotyping and that a transgender person should be protected because this is a form of sex discrimination.”
Schmidt told reporters that even if the Supreme Court finds that the firing of Stephens was illegal, “that still saves the state money because we don’t have, potentially, years of litigation sorting it out in the appeals courts.”
“Obviously, I’m going to advocate on the side of both federal and state as it’s applied in Kansas,” Schmidt said. “I’m not going to arbitrarily choose a different position, but I think as the state’s lawyer, the interest I’m trying to protect is in minimizing the state’s litigation risk, getting an answer, moving on with the least amount of hassle.”
“At the end of the day,” he added, “I’ve got to do my job.”
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies