It may be up to Congress in the end to protect transgender individuals

It may seem like a long shot today, but it’s possible that transgender individuals will eventually be protected at work by federal law due to action taken by Congress.

Sixteen states recently urged the U.S. Supreme Court to rule that business can fire employees based on their sexual orientation and gender identity without violating federal workplace discrimination laws.

The states are Alabama, Arkansas, Kansas, Kentucky, Louisiana, Maine, Mississippi, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming.

The issue stems from a case, EEOC v. R.G. & G.R. Harris Funeral Homes Inc., decided by the U.S. Court of Appeals for the Sixth District. The EEOC sued Detroit-based R.G. & G.R. Harris Funeral Homes. The funeral home fired Aimee Stephens, a funeral director/embalmer, because she is transgender, according to information provided by the EEOC.

Stephens gave the funeral home a letter stating that she was transitioning from male to female and planned to start wearing appropriate business attire relative to identifying as female. Stephens was terminated two weeks later.

Title VII, which was enacted in 1964 by Congress and has been amended since to prevent discrimination in the work place, does not contain explicit language protecting individuals who identify as transgender. The nation’s 13 federal appellate districts have not ruled uniformly on the matter.

The states that oppose Title VII as a tool to protect transgender individuals argue that Title VII does not have specific language banning disparate treatment of such individuals. The states contend that if Congress had intended to protect such people, it would have included that language in the statute.

As the Supreme Court becomes more conservative, it’s possible that if the court were to hear the case, it would conclude that because Title VII does not contain language protecting transgender individuals, their rights are not protected by that law.

But if the court were to reach that decision, all is not lost. Congress could amend Title VII to include transgender individuals. Maybe Congress will finally be compelled to act.