Differences between the Trump administration and the Obama administration are not difficult to find, but they will be front and center in the most important cases on the Supreme Court’s docket this fall.
One is obvious: President Trump wants the Supreme Court to approve his administration’s efforts, which began just after he took office, to end the Deferred Action for Childhood Arrivals (DACA) program offering deportation protection for undocumented residents brought to the United States as children.
The other issue — whether federal law forbids employment discrimination against gay and transgender workers — requires the Justice Department to repudiate its past readings of the law and those of the Equal Employment Opportunities Commission, which endorsed a lawsuit by a funeral director who was fired after announcing a transition from male to female. The EEOC and the Obama Justice Department took the position that gay and transgender workers were covered by a 1964 civil rights act, Title VII, which forbids adverse hiring and firing decisions based on sex.
Solicitor General Noel J. Francisco filed Supreme Court briefs outlining the administration’s positions on both issues in recent days. The court will consider three cases involving gay workers and the funeral director, Aimee Stephens, on Oct. 8. On Nov. 12, it will consider three cases about the administration’s DACA action.
Francisco’s most far-reaching arguments come in the Stephens case, even though it was a case he had urged the court not to take so that the issue could be heard first by additional lower courts.
Stephens had worked for Michigan-based R.G. and G.R. Harris Funeral Homes for six years as Anthony Stephens. Stephens in 2013 acknowledged a lifelong gender identity disorder in a letter to co-workers and said sex-reassignment surgery was planned. But the first step was to “live and work full-time as a woman for one year,” the letter said.
“At the end of my vacation on August 26, 2013, I will return to work as my true self … in appropriate business attire,” Stephens wrote. According to the funeral home’s rules, that meant a coat and tie for men, a skirt and jacket for women.
Two weeks later, the company’s owner, Thomas Rost, fired Stephens. Rost acknowledged in a deposition that he fired Stephens “because he was no longer going to represent himself as a man. He wanted to dress as a woman.”
Although no court previously had said Title VII protected transgender workers, the U.S. Court of Appeals for the 6th Circuit said the act was broad enough to cover Stephens.
It is “analytically impossible” not to take into account a person’s sex when deciding whether to fire him or her for being transgender, the court ruled. “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”
And the court ruled for Stephens for an additional reason: a 1989 Supreme Court decision called Price Waterhouse v. Hopkins that said it was illegal to discriminate against workers who do not conform to gender stereotypes.
Francisco writes in his brief to the court that the civil rights law must be read now as it would have been in 1964.
“The ordinary public meaning of ‘sex’ was biological sex, not transgender status. Subsequent action by Congress confirms that it has never understood or intended Title VII to cover transgender individuals as a protected class,” he writes.
“Congress could eventually conclude that changes since 1964 warrant expanding the statute’s scope to reach beyond sex to encompass transgender status. But that is exclusively a question for Congress.”
The Justice Department argues that the 6th Circuit did not make the right comparison in deciding whether Stephens had faced prohibited discrimination. The law requires only that women not be treated worse than men, and vice versa, Francisco wrote.
“Neither the Sixth Circuit nor Stephens has shown that discriminating based on transgender status results in treating males or females less favorably than similarly situated members of the opposite sex.”
The brief said that the Price Waterhouse ruling on the prohibition on stereotypes was more narrow than many courts have recognized over the past three decades. Title VII doesn’t “prohibit sex stereotypes per se,” the brief says. Instead, it “merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated . . . It did not recognize sex stereotyping as a novel, freestanding category of Title VII liability.”
Chase Strangio, a staff attorney for the American Civil Liberties Union, which represents Stephens, said that would be a “stunning” change that would take the case beyond transgender plaintiffs. Anyone, male or female, who does not conform to gender stereotypes could be vulnerable, Strangio said.
The administration’s arguments in the DACA case are more familiar, perhaps because it has been making them so much longer. Trump has seen a string of losses in the lower courts since the Department of Homeland Security announced Sept. 5, 2017, that it would begin dialing down the program.
Lower courts have commanded DHS to keep the program in place, and the administration is looking to the Supreme Court for relief.
DACA is an “ongoing violation of federal immigration law by nearly 700,000 aliens,” Francisco wrote. “At best, DACA is legally questionable; at worst, it is illegal . . . Yet two nationwide preliminary injunctions have forced DHS to maintain this entirely discretionary policy for nearly two years.”
The Trump administration moved to scuttle the program after Texas and other states threatened to sue to force its end. Then-Attorney General Jeff Sessions advised DHS that the program was probably unlawful and that it could not be defended.
Sessions based that decision on a ruling by the U.S. Court of Appeals for the 5th Circuit, which said that a similar Obama program protecting immigrants was beyond the president’s powers. The Supreme Court deadlocked 4 to 4 in 2016 when considering the issue.
Appeals courts in California, New York, Virginia and a district judge in the District of Columbia have said DHS must base its reasons for ending DACA on more than just a belief about legal underpinnings.
“To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion,” Judge Kim McLane Wardlaw wrote in her opinion in the U.S. Court of Appeals for the 9th Circuit. “We hold only that here, where the Executive did no t make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”
Francisco argues that the decision is up to the agency and thus not open to judicial review. But even if it is, he writes, the administration has given reasons to end what was always meant to be a temporary action.
On that, he quotes President Barack Obama, the man who initiated the program in 2012.
“This is not a path to citizenship,” Obama said then. “It’s not a permanent fix. This is a temporary stopgap measure.”