Republican governors and attorneys general from 16 states have asked the U.S. Supreme Court to rule that LGBT employees can be fired based merely on their sexual orientation and gender identity.
The states that signed onto the friend-of-the-court brief are Nebraska, Alabama, Arkansas, Kansas, Louisiana, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wyoming, Maine, Mississippi, and Kentucky.
Currently, only 20 states plus Washington, D.C. have passed laws expressly banning LGBT discrimination in the workplace.
A study by the Human Rights Campaign in 2011 showed 87% of voters erroneously believe its illegal under federal law to fire someone just for being LGBT.
Its notable that Maine and Utah, two of the 20 states that have LGBT workplace protections in place, have signed on in support of the brief.
The request to the Supreme Court comes in response to a lawsuit brought by the Equal Employment Opportunity Commission on behalf of a transgender funeral home employee in Michigan, Aimee Stephens, who was fired in 2013 after sharing with her supervisor she was transitioning.
In 2017, the 6th Circuit Court of Appeals ruled that Harris Funeral Homes illegally discriminated against Stephens in firing her referencing Title VII of the 1964 Civil Rights Act which bans workplace discrimination based on sex.
At the time, Judge Karen Nelson Moore of the 6th Circuit wrote in the opinion that anti-trans discrimination is inherently sex based.
“[I]t is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” she wrote. Businesses that discriminate against a worker on the basis of being “transgender or transitioning status,” is taking sex into account thus violating Title VII.
Led by Nebraska Attorney General David Bydalek, the 16 states are asking SCOTUS to overturn that appeals court decision saying Congress didn’t intend for the ban on sex discrimination in Title VII to cover bias against lesbian, gay, bisexual, or transgender employees.
“The States’ purpose is to note that ‘sex’ under the plain terms of Title VII does not mean anything other than biological status,” Bydalek wrote.
The Supreme Court will decide this fall whether to take up the case.
(h/t Bloomberg Law)