Nebraska State Attorney General Doug Peterson filed an Amicus brief on Friday asking the nation’s highest court to overturn a March ruling that favored a transgender woman who was fired by a funeral home in Michigan for being transgender. In the ruling, the Sixth Circuit Court found that her termination had violated Title VII protections against discrimination on the basis of sex. The decision had reversed a lower court’s decision which held that religious beliefs were sufficient to exempt employers from anti-discrimination laws.
In addition to Nebraska, fifteen other states signed on to the brief including Alabama, Arkansas, Kansas, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming.
The states are taking issue with the Title VII provision that prevents employers from discriminating on the basis of "race, color, religion, sex or national origin." They contest that “sex” refers to “one’s biological status as male or female, not to a changeable psychological view of one’s gender.” The filing also goes on to claim that “both the common and academic definitions of ‘sex’ did not include ‘gender identity’ or ‘transgender’ when congress enacted Title VII. The brief also accuses the Sixth Circuit of attempting to rewrite the law by “adding a new, unintended meaning.”
Further complicating the issue is the question of whether the Department of Justice will allow U.S. Equal Employment Opportunity Commission (EEOC) to continue to participate in the case under the leadership of Attorney General Jeff Sessions. Just last year, Sessions had issued a memo taking the position that that Title VII does not cover transgender discrimination.
Currently, there are laws in 20 states and Washington, D.C., which prevent employment discrimination based on sexual orientation and gender identity. This includes Maine and Utah, two of the states who signed the brief.