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KU professor writes brief for Supreme Court arguing Title VII protects against transgender discrimination

Tuesday, October 01, 2019

LAWRENCE — In one of the first cases of its upcoming term, the U.S. Supreme Court will hear the case of a transgender woman who was fired from her job and determine if Title VII protects against discrimination against transgender individuals. A University of Kansas law professor has co-written an amicus brief, or friend of the court brief, arguing that both law and history are on the side of the respondent.

Aimee Stephens was fired from her job at Harris Funeral Homes on the basis of being transgender. She sued, and the Sixth Circuit Court of Appeals ruled she was dismissed for illegal reasons. Title VII, passed in 1964, prevents employment discrimination based on race, color, religion, sex and national origin. The legal team for the funeral home argues transgender status is not covered. Kyle Velte, associate professor of law at KU, and her co-authors argue Title VII does, in fact, protect transgender individuals.

“Our friend of the court brief is trying to debunk that idea that Congress couldn’t have considered transgender people,” Velte said. “It’s saying you have to know your history. There were many examples of transgender individuals in society at the time, and we’ve included many of them. It’s not as much about legal arguments as it is about history.”

Among the examples cited are media accounts of transgender individuals, such as the story of Christine Jorgensen, a World War II veteran who returned to Europe to undergo what was then known as “sex reassignment surgery” and today is known as gender confirmation surgery. Jorgensen’s story made front-page news in the New York Daily News in 1953, even amid reporting on the Korean War and King George VI of England’s death. Jorgensen was only one transgender person to receive extensive media coverage prior to 1964, and the authors include news clips of stories from major media outlets including Time, Newsweek, the New York Daily News, African American publications such as Sepia and Ebony, and cult tabloid publications including Mr. and Whisper.

In addition to history, Velte and co-authors claim the law is on Stephens’ side as well. Because of that, speculation about what Congress intended in writing Title VII in 1964 is irrelevant.

“Because the plain text of Title VII unambiguously prohibits the employment discrimination Stephens suffered because of her sex, it is inapposite to speculate about the intent of enacting and amending Congresses with respect to whether transgender individuals are covered under the statute,” the authors write. “However, even if this court sought to divine unitary intent among the various members of Congress that enacted and amended Title VII, there is no indication that Congress sought to exclude transgender individuals.”

Furthermore, had Congress not been aware of transgender individuals in 1964, lawmakers who passed amendments to Title VII in 1991 and 2009 most certainly would have been.

Stephens’ case is one of three the Supreme Court will hear this fall on sexual orientation, gender identity and employment discrimination. Velte, who teaches classes on employment discrimination, evidence, and gender, sexuality and the law, has also filed or co-written amicus briefs on notable Supreme Court cases including Obergefell v. Hodges, the case that affirmed marriage equality for same-sex couples; Masterpiece Cakeshop v. Colorado Civil Rights Commission; and United States v. Windsor, the case that determined the 1996 Defense of Marriage Act was a violation of the due process clause of the Fifth Amendment.

Velte also cites Price Waterhouse v. Hopkins, a 1989 Supreme Court case that ruled employers cannot take action against employees for not conforming to gender stereotypes.

“It’s going to be hard to get out of this, unless the court simply overturns Price Waterhouse, which would be very harmful to heterosexual ‘masculine’ women or men who are considered effeminate. Or it would simply be mental gymnastics,” Velte said.

Though while she’s sure the high court should uphold the lower court’s ruling, it is by no means a guarantee. Should they overturn the ruling, Velte said Congress could add new amendments to Title VII or pass a new employment discrimination law to protect LGBT employees. Federal law, either through a Supreme Court decision or action by Congress, is required to ensure uniform protections from sexual orientation and gender identity employment discrimination nationwide. While many states have state laws that prohibit such discrimination, there are still 28 states that allow employers to fire or refuse to hire employees based on sexual orientation and gender identity. This means that until the Supreme Court or Congress acts, 44 percent of the LGBT population lives in states that do not prohibit employment discrimination based on sexual orientation or gender identity.

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