The Trump administration is stepping up its attacks on transgender, gender nonconforming, and non-binary communities, telling the Supreme Court in a Wednesday brief that it doesn't consider anti-trans discrimination a violation of federal law.
This assertion came from Solicitor General Noel Francisco, who asked Supreme Court justices to reconsider an anti-discrimination case that had already been ruled on by the 6th Circuit Court of Appeals in March. In their decision, 6th Circuit judges ruled that a Michigan funeral parlor had breached Title VII of the Civil Rights Act of 1964 when its management fired a trans employee, ostensibly for violating the dress code. The trans employee had notified their superiors that they would be transitioning and had begun to present as a woman at the time of their termination.
Fransisco, however, wants the Supreme Court to reassess "whether the court of appeals erred in concluding the petitioner discriminated against the employee 'because of' the employee's 'sex' by applying its sex-specific dress code based on the employee's biological sex rather than the employee's gender identity," and whether gender discrimination is the same as sex discrimination.
If the Supreme Court agrees to take up the case, it would mean a definitive ruling on whether trans individuals can access the anti-discrimination protections guaranteed to other Americans.
Many in the trans community worried the Trump administration had something of the sort in the works after a leaked memo from the Department of Health and Human Services threatened to define transgender people out of existence.
The memo seeks to define gender as a "biological, immutable condition determined by genitalia at birth," according to the New York Times, leaving trans people with no legal ground on which to claim they've been discriminated against.
Trans advocates are planning to fight as hard as they can to prevent the Trump administration's constricting definition of gender from going before the Supreme Court, for fear that the court's new makeup guarantees a ruling in the administration's favor.
"I have no confidence in [Justice Brett] Kavanaugh or the very right-leaning court to protect those who are discriminated against and to affirm a definition and understanding of sex and gender that upholds the rights of trans individuals," Sage Carson, an advocate at Know Your Title IX, told Broadly on Tuesday. "I'm fearful this administration is trying to enshrine into law that trans people don't have these rights and protections—I think it's a strategic attack."
Some legal experts, however, don't feel cowed by the administration's attempts to overturn trans protections, and say that even a court with two Trump-appointed justices doesn't guarantee a loss for trans Americans.
"This proposed policy doesn't change the law," Omar Gonzalez-Pagan, a senior attorney at Lambda Legal, said earlier this week. "Several courts have sided with us on this question, even those with judges appointed by Republican presidents.
Gonzalez-Pagan continued: "Law, science, medicine and real-life experiences are on our side."