Kansas has joined 15 other states in asking the U.S. Supreme Court to rule that it’s legal to fire people for being transgender.
Last week, the 16 states filed a friend-of-the-court brief urging the court to overturn a federal appeals court's decision that it was illegal for a Michigan funeral home to terminate an employee who was transitioning from male to female. The appeals court ruled that Aimee Stephens’ firing violated Title VII’s prohibition against discrimination based on sex.
The facts of the case before the Supreme Court are not in dispute. After working for six years as a funeral director at R.G. & G.R. Harris Funeral Homes in Detroit, Stephens told the funeral home’s owner that she was a transgender woman and planned to dress accordingly.
The owner, a devout Baptist who believed that God created males and females in the traditional biological sense, told her that was unacceptable and fired her. Stephens filed a complaint with the Equal Employment Opportunity Commission, which sued the funeral home for sex discrimination.
The EEOC takes the position that Title VII’s prohibition of sex discrimination forbids any employment discrimination based on gender identity or sexual orientation.
But a federal judge dismissed the EEOC’s complaint. While he agreed it had proven sex discrimination, he ruled the owner’s religious beliefs would be burdened under the Religious Freedom Restoration Act. The EEOC appealed and earlier this year 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 contend that “sex” denotes biological status, and the Sixth Circuit’s ruling “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, written by the Nebraska attorney general’s office, “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.
Kansas Attorney General Derek Schmidt, who signed the brief, declined KCUR’s interview request. But his spokeswoman, Jennifer Montgomery, emailed a statement saying that his office has “consistently argued for a narrow interpretation of the term ‘sex’ in Title VII and Title IX because of the state's interest in limiting the taxpayers' exposure in potential future lawsuits."
“It is within Congress’ authority to expand the scope of these laws, but to date Congress has not chosen to do so,” Montgomery added. “Whether to change these laws is for the people’s elected representatives to decide and not the courts.”
That’s been Kansas’ position since Sam Brownback became governor. In 2015, Brownback rescinded an executive order by former Gov. Kathleen Sebelius that offered protections for lesbian, gay, bisexual and transgender state employees. The current governor, Jeff Colyer, has said harassment and discrimination are not acceptable in his administration but has not reinstated Sebelius’ executive order.
“It’s just sad that in this day and age we still live in a world where people have to conform to these archaic notions of what it means to be male or female and not have to fit into those arbitrary, decidedly constructed boxes,” said Stephanie Mott, president and executive director of the Kansas Statewide Transgender Education Project.
The question of whether federal sex discrimination laws apply to transgender people has been taken up by numerous federal courts over the last 20 or so years. The majority have ruled that the laws do apply. The 10th U.S. Circuit Court of Appeals, which covers Kansas, is one of the few courts to rule otherwise.
In a 2007 decision, it upheld a lower court decision finding that federal laws prohibiting sex discrimination do not protect transgender people.
“The majority of the judges who have encountered this issue have said this has to do with sex and so it’s covered by the sex discrimination aspects of Title VII,” said Mark P. Johnson, an attorney in the Kansas City office of the Dentons law firm.
Johnson said the minority of courts seems to view the prohibition against sex discrimination as applying to one sex or another and not to someone who’s transitioning.
“Their argument appears to be that if Congress wanted to cover this sort of third status, if you will, then it would have written the law that way either originally or amended it,” Johnson said.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies