On Friday, the EEOC filed an appeal in a critical trans rights case, quashing—at least temporarily—concerns that the agency would withdraw from the litigation and affirming that it will continue to fight on behalf of LGBTQ employees from the time being.
The case, EEOC v. R.G. & G.R. Harris Funeral Homes, involved a funeral home employee named Aimee Stephens who transitioned from male to female. Her employer fired her, explaining that he could not tolerate her “dress[ing] as a woman” at work. With the help of ACLU attorneys, Stephens filed a claim of sex discrimination under Title VII with the EEOC, which sued the funeral home on her behalf. A lower court judge ruled against Stephens, holding that although her employer had engaged in sex discrimination, specifically gender stereotyping, it had a religious right to do so.
Typically, the EEOC would appeal this decision to the U.S. Court of Appeals for the 6th Circuit. But before the agency filed an appeal, Donald Trump won the presidential election. Stephens grew concerned that, following Trump-instituted personnel changes, the EEOC would no longer adequately represent her interests. And alarmingly, the agency had requested that Stephens’ ACLU attorneys not contact her while the agency prepared an appeal. It also sought an extension in filing the appeal “because of Administration-related changes at the Commission.” Stephens’ ACLU attorneys were so uneasy that they asked to intervene “to ensure that [Stephens’] interests are adequately protected throughout the rest of this litigation.” As I reported at the time, it appeared that the agency was considering withdrawing from the litigation, which involved a politically fraught clash between religious freedom and anti-trans discrimination.
But these apprehensions proved incorrect on Friday, when the EEOC finally appealed the lower court ruling. Its brief vigorously contests the judge’s conclusion that Stephens’ employer should have a religious right to engage in sex discrimination. This full-throated defense of a trans employee may, in part, signify that Trump’s changes to the EEOC have not yet fully taken effect. Trump has named Victoria Lipnic, a Republican commissioner on the EEOC, as acting chair of the agency. He has not, however, appointed a fifth commissioner—or new general counsel. The EEOC’s general counsel is quite independent and directs the course of litigation. Until Trump appoints a new one, we will likely see little change to the agency’s work or legal positions.
On Monday, I asked John Knight, one of Stephens’ attorneys at the ACLU, whether he would withdraw the request to intervene since the EEOC filed its appeal.
“No,” he told me. “We sought to intervene because of our concerns about whether our clients’ interests are fully and adequately represented by the EEOC going forward. The fact that they filed a brief does not change those concerns.”
“The new general counsel will influence the direction of the EEOC in their litigation position,” Knight continued. “Filing this brief is not the last step. There are oral arguments, there could be an appeal or a remand, and we want to be sure our client will be protected.”
Knight pointed out that the Justice Department has already begun changing its position in trans rights cases.
“We are concerned about the government’s willingness to protect the rights of transgender people,” he said. “And we are concerned about whether or not the EEOC will continue to seek Title VII protections for LGBT people at all.”
The ACLU has reason for concern. Later this year, Trump will have an opportunity to replace one Democratic commissioner with a Republican appointee. Presuming he fills the current vacancy by then, three of the five commissioners will be Republicans. Although Lipnic has been fairly progressive on trans issues, she voted against allowing anti-gay discrimination claims under Title VII. With a Republican majority, the commission could reverse its expansion of Title VII protections to LGBTQ people. Stephens’ case may continue moving forward for now. But a much bigger battle looms on the horizon.