The Justice Department told the Supreme Court on October 24 that it is legal for businesses to discriminate against transgender employees based on their gender identity, according to Bloomberg Law.

In a brief sent to the Supreme Court, the Department of Justice said that federal civil rights law banning discrimination on the basis of sex does not extend to transgender people.

This filing comes as the Supreme Court, which is now heavily conservative, weighs whether to take on a case that would decide whether transgender people are covered under the 1964 Civil Rights Act. The Equal Employment Opportunity Commission (EEOC) already successfully argued the case when it sued on behalf of Aimee Stephens in the U.S. Court of Appeals for the Sixth Circuit, claiming that a Michigan funeral home fired Stephens after and because she came out as a transgender woman and informed the company she wanted to present as such at work.

According to The Hill, the presiding judge of the 6th Circuit Court of Appeals wrote at the time that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

Five federal appeals courts, more than a dozen lower federal courts, and the EEOC have agreed that discrimination against transgender people is illegal sex discrimination, according to the ACLU.

Despite that, the DOJ filing sent to the Supreme Court on Wednesday says that "the ordinary meaning of ‘sex’ does not refer to gender identity."

Attorney General Jeff Sessions said last year that transgender people would no longer be protected from sex discrimination under Title VII of the federal Civil Rights Act of 1964. And on October 24, Sessions’s DOJ told the Supreme Court that the Sixth Circuit made the wrong decision by ruling in Stephens’s favor.

“The court of appeals misread the statute and this Court’s decisions in concluding that Title VII encompasses discrimination on the basis of gender identity,” Solicitor General Noel Francisco said in a brief filed with the Supreme Court.

It will take the Supreme Court months to decide whether they will take the case, but the move comes at a contentious time, just days after a Trump administration memo surfaced in an October 21 New York Times report; that document proposed legally redefining gender under Title IX of the 1964 Civil Rights Act as a purely biological condition determined at birth based on a person’s genitalia. The move would exclude transgender and nonbinary individuals from civil rights protections.

“This administration is not a friend of the LGBT community,” Greg Nevins, an attorney for Lambda Legal, told Bloomberg Law. “They can say what they’re going to say, but the courts will have the final word.”

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