Utah Attorney General Sean Reyes has signed Utah on to join 14 other states to argue that job discrimination against transgender Americans is still legal.
Reyes insists that he isn’t saying transgender people should face job discrimination. He’s just saying that Congress hasn’t said they shouldn’t face such discrimination, so the federal courts shouldn’t be stopping anyone from discriminating.
Reyes is still arguing the last war.
At issue is a Michigan case in which a funeral director was fired after telling her boss she had a gender identity disorder and was transitioning from male to female. The boss, citing the Religious Freedom Restoration Act, argued that gender transition violates God’s commands and the transitioned employee would hurt his business.
A lower court agreed with the boss, but the U.S. Sixth Court of Appeals sided with the fired employee and overturned the lower court. Now Reyes has joined an amicus brief arguing that the appeals court is expanding the definition of “sex” to include transgender people.
As the Sixth Circuit’s opinion points out, that isn’t an expansion. Current civil rights law, passed by Congress, already prohibits discrimination of all people on the basis of “sex stereotypes.” No one should be treated differently for failing to conform to gender norms, regardless of physiology. To not include transgender people would be narrowing the definition of sex.
The Sixth Circuit’s opinion also tossed out the argument that the employer was protected by RFRA. He had argued that working with a transitioning employee infringes on his religious beliefs and would create distractions that would drive him out of business. But the court says the employee’s mere presence does not affect the employer’s beliefs. Also, the court said, if the mere fear of distraction is enough to allow discrimination, couldn’t other employees claim similar distractions as the basis for firing employees who are black or Muslim? That clearly would be illegal.
The disheartening part of Reyes’ decision is that, in Utah, this debate has been settled. The landmark “Utah compromise” legislation in 2015 made it illegal to discriminate in employment decisions, and transgender Utahns were specifically included. The compromise was widely heralded for bringing together diverse interests — from gay rights groups to The Church of Jesus Christ of Latter-day Saints.
In explaining his decision to join the Michigan case last week, Reyes even had to go so far as to clarify that the decision would have no effect on Utah law.
So this case doesn’t apply in Utah, and Utah law already lines up on the side Reyes is arguing against. Utah’s attorney general may think there is still some point to be made here, but it doesn’t seem many Utahns would agree.