The Justice Department is signaling its opposition to providing federal protections for transgender employees who claim workplace discrimination.

In a brief filed Friday at the Supreme Court, the Trump administration is opposing the position taken by the Equal Employment Opportunity Commission (EEOC), which had been supporting a transgender employee in her lawsuit against a Michigan funeral home.


The justices will hear a pair of arguments Oct. 8 on whether the federal Civil Rights Act’s Title VII laws permit LGBTQ workers to sue for job discrimination. Federal courts have been divided on whether such protections apply, even though Congress did not specially mention that class of individuals when the law was passed more than five decades ago.

The cases involve challenges by gay men in Georgia and New York, and a separate case involving a Detroit-area funeral home that terminated a longtime employee after she began transitioning. Aimee Stephens first took her complaint to the EEOC, which ruled in her favor, as did a federal appeals court in Cincinnati.

The funeral home has argued in part that Congress was not thinking about transgender people when it included sex discrimination in Title VII.

In its filing with the high court on Friday, the Justice Department said the dispute is over the limits of the definition of “sex.”

“A transgender plaintiff therefore cannot prevail in a Title VII suit simply by showing that an employer relied on sex stereotypes,” said the administration.

The plaintiff must show that the employer treated similarly situated members of the opposite sex more favorably.

“Like any other plaintiff, a transgender person may use evidence of sex stereotyping in making that showing,” the DOJ wrote. “But the individual’s transgender status does not alter the legal standard.   Here, Harris Homes did not discriminate against Stephens based on sex stereotypes in violation of Title VII.  It terminated Stephens for refusing to comply with Harris Homes’ sex-specific dress code.”


Sources told Fox News that the Justice Department had been trying for weeks to get the EEOC to change its official position and support the new brief, but that a majority of commission members had refused.

It sets up an unusual dynamic of potentially having two federal entities opposing one another in court. It was unclear whether the EEOC would clarify its own legal position with the Supreme Court.

The Trump administration’s position is a setback for LGBTQ rights. Officials are also asking for courts to allow enforcement of its ban on transgender people joining the U.S. military to proceed.