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Justice Department argues transgender isn't protected by law

Two years ago, a unanimous three-judge panel of the Sixth Circuit Court of Appeals in Cincinnati held that Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender individuals.

"Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender or transitioning status, is illegal under Title VII," the court wrote.

The case involved a transgender woman who had worked at a Michigan funeral home for six years and had reached the level of funeral director. In 2013, she arranged to undergo gender reassignment surgery during a vacation. She informed the home of her intention to return as a woman. She was immediately fired.

The funeral home explained that allowing her to present as a woman would have "disrupted the grieving and healing process" of the home's clients, along with requiring both clients and staff to share a restroom with a transgender person.

The court ruled that these concerns did not excuse the firing, which it held was a form of sex discrimination under Title VII.

DOJ makes an unusual move

The Department of Justice has made the unusual move of appealing the ruling on its own. It claims Title VII's prohibition of discrimination "because of sex" does not apply because the woman was fired due to her gender identity and expression, not her biological gender. This argument misses two important points.

First, several courts around the U.S., along with the Equal Employment Opportunity Commission, have determined that the concept of sex does include connected issues such as pregnancy, sexual orientation, gender expression and conformity with sexual norms.

Second, it assumes that only a narrow view of biological gender is protected by the law. Presumably, the DOJ's position is that gender can be definitively determined at birth or by performing a DNA test.

This ignores the fact that a small but significant number of people cannot be gendered in this way because their bodies and DNA do not conform to the simple binary of male and female. Moreover, it ignores the life experience of transgender people, who are willing to undertake a great deal of pain and expense in order to align their gender expression with their perceived gender.

The Justice Department also argues that the funeral home would have been within its rights to fire the woman because continuing to employ her would have interfered with its "ability to conduct business in accordance with its sincerely held religious beliefs." This argument ignores the non-religious reasons the home gave when it fired the funeral director.

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