Trump Administration Seeks to Prejudice Against Those Who Depart from Sex Stereotypes

Caveat: I am not an attorney. None of the following should constitute, nor be considered a legal opinon. The following is simply a conferral of a legal event or the plans for a legal event as stated in the news and my opinion from a philosophical/linguistic point of view.

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TIME reporter Tara Law said that the Trump Administration asked that the Supreme Court permit employment discrimination against a transgender individual. This happened on Friday, August 16, 2019.

The Trump administration’s Department of Justice argued, according to Tara Law, that Title VII, a federal law prohibiting employment discrimination based of five protections, including sex, did not protect transgenders. Underlying the Department of Justice’s argument was that the transgender individual would distract grieving families from their healing process. The transgender person wearing a female uniform, a jacket and skirt vs. a suit and tie, would do this.

The Department of Justice argued for a funeral home by saying that Title VII protects biological sex and not whatever transgenderism is.

The Department of Justice further argued that when Title VII was enacted (1964), ‘“Ordinary public meaning of “sex” was biological and did not encompass transgenders.’” They further argued that the prohibition on discrimination because of ‘sex’ referred to unequal treatment of men and women.’”

One question that could be asked is whether or not transgenders are biologically compelled to change their genders, which I will address later in this piece as prejudicial of its own.

Another question is do men and women, of which trans people are apart, qualify as persons since they are either male or female? The answer to that question seems obvious. The spirit of our laws when considering that all men (and inherently women) are equal cannot be seen to exclude anyone. Being a transgender is still and always will be seen as being a person.

Furthermore, the shifting sands doctrine in law refers to the meaning of something taking on a new interpretation and thus upsetting the previous argument for it. Where in this case, to prejudice against a transgender person seems to have become unacceptable. The American Civil Liberties Union argues that “No one should be denied a job, a place to live, or access to a public place or business simply because of who they are.”

“Since passage of Title VII in 1964, the law’s protections have extended to people of all sexual orientations, including transgender employees. Federal laws also ban workplace discrimination based on disability, genetic information, family medical history and age,” according to Mission Box.

Mission Box provides examples of workplace discrimination as: “Physically isolating employees from coworkers, customers or clients based on race or ethnicity.” The funeral home in terminating the transgender individual physically removed her from clients based on her choice and effect to change her gender.

In an article by NPR reporter Tania Lombrozo, Lombrozo found that “If people appreciate the non-dichotomous and diverse nature of gender identity, they are less likely to have negative views toward transgenders, and [are] less likely to oppose their rights.”

In the Lombrozo article, Lombrozo cites Barbara J. King, who talks about “The spectrum of gender expression, and ‘the fact that gender identity isn’t only — or even mostly — about biology and that it’s most certainly not reducible to the sex one is assigned at birth.’”

So, not only do transgenders fall into the categories of male or female, but the debate itself fosters prejudice against them.

My position is that Title VII seeks to protect against discrimination on the basis of sex, while also protecting against discrimination of religion, which is a social construct, whereas “If your belief system plays some particular role either in your social life, in your society, or in your psychological life, then it is a religion; otherwise, it’s something else (like philosophy)” Clearly, being transgender is playing a role in the individual’s life.

Title VII is about discrimination. The Department of Justice is arguing for discriminating against a person for so choosing to be transgender, whether they are biologically inclined or not.

Furthermore, “Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship,” (EEOC-P/E-1 (Revised 11/09)). The reason I cite this is because the spirit here is to make reasonable accommodations even for those who may be wrongfully concluded as having physical or mental limitations.