A group of 16 states have asked the U.S. Supreme Court to protect a Christian-owned funeral home that has been sued for firing a transgender worker for wearing women's clothing.
Three Republican governors have joined 13 Republican state attorneys general in signing an amicus brief calling on the nation's highest court to hear the case of R.G. & G.R. Harris Funeral Homes.
More specifically, the government leaders are calling on the court to rule that the federal Title VII civil rights law does not extend sex discrimination protections to cover gender identity.
The owner of the Michigan funeral parlor chain Tom Rost appealed to the Supreme Court after the U.S. Court of Appeals for the Sixth Circuit ruled in favor of the U.S. Equal Employment Opportunity Commission earlier this year.
The federal entity sued the the Michigan funeral home chain on behalf of former transgender employee Aimee Stephens (formerly known as William Anthony Beasley Stephens) in 2014.
The appeals court's ruling not only struck down a lower court ruling that Rost could claim protection under the Religious Freedom Restoration Act, it was also the first time a federal appeals court had interpreted transgender bias as a form of sex discrimination, according to Bloomberg.
The brief argues that the Sixth Circuit "erred" in its ruling.
"The text, structure, and history of Title VII, however, demonstrate Congress's unambiguous intent to prohibit invidious discrimination on the basis of 'sex,' not 'gender identity,'" the brief reads. "The term 'gender identity' does not appear in the text of Title VII or in the regulations accompanying Title VII. In fact, 'gender identity' is a wholly different concept from 'sex,' and not a subset or reasonable interpretation of the term 'sex' in Title VII."
The brief was signed by attorneys generals from Texas, Nebraska, Alabama, Arkansas, Louisiana, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. It was also signed by Kentucky Gov. Matt Bevin, Maine Gov. Paul LePage and Mississippi Gov. Phil Bryant.
While laws in about 20 states ban discrimination on the basis of gender identity, federal law does not explicitly ban discrimination on the basis of gender identity. However, the federal government under the administration of Democrat Barack Obama began in 2012 to interpret Title VII in a way that bans gender identity discrimination.
"Title VII prohibits employers from firing employees because they do not behave according to the employer's stereotypes of how men and women should act, and this includes employees who present themselves according to their gender identity," EEOC Indianapolis Regional Attorney Laurie Young said in a statement at the time the lawsuit was filed against R.G. & G.R. Harris Funeral Homes in 2014.
The Sixth Circuit agreed.
The amicus brief concluded that the Sixth Circuit rewrote Title VII "to its own liking, rather than interpreting the statute based on its text, history, and purpose."
Furthermore, the Republican leaders contend that the Sixth Circuit overstepped its constitutional bounds because it "ignored the will of Congress" and "bestowed upon itself the power to rewrite congressional enactments in violation of the separation of powers."
"The role of the courts is to interpret the law, not to rewrite the law by adding a new, unintended meaning," the brief concludes.
In order to continue this case at the Supreme Court, the EEOC will need the approval of a Jeff Sessions-led Department of Justice. The U.S. attorney general issued a sweeping guidance last year stating that the First Amendment protects the free exercise rights of businesses and for-profit corporations, as well as religious nonprofits and groups.
Earlier this month, the Department of Justice was given an extension up to September 24 to respond to the case. Its initial deadline was August 23.