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Justice Department tells Supreme Court transgender bias is not sex discrimination

Supporters of LGBTQ rights rally outside the U.S. Supreme Court
Photo: Ken Cedeno/Corbis via Getty Images

The Department of Justice told the Supreme Court in a brief Wednesday that federal law does not shield transgender workers from discrimination on the basis of their gender identity — a position that conflicts the view of the U.S. Equal Opportunity Commission.

The big picture: The Justice Department under President Trump has previously argued against protections for gender identity and sexual orientation. The brief follows a New York Times report this week that said the Trump administration plans to define "gender" as biological and fixed at birth.

The details: A conservative group is asking the Supreme Court to overturn a lower court ruling that said a Michigan funeral home violated a federal anti-discrimination law when it fired a transgender worker over compliance with its dress code.

  • Solicitor General Noel Francisco told the court it should not take up the case until it decides whether to review two cases that ask whether sexual-orientation bias is a form of sex discrimination.
  • Francisco argued that if the court takes up the case, the transgender employee should lose, because anti-discrimination law does not cover gender identity.

The backdrop: There has been conservative legal efforts to cement “religious liberty” laws that would allow businesses and others to refuse service to LGBTQ people without violating federal law.

  • The Supreme Court is eventually expected to decide whether the Civil Rights Act’s ban on sex discrimination includes discrimination based on someone’s sexual orientation or gender identity.
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