Alaska Attorney General Kevin Clarkson joined a group of more than a dozen other Republican state attorneys general in signing an amicus brief last week urging the United States Supreme Court to rule that federal law protecting workers from being fired on the basis of sex does not protect transgender workers.
The group signed a friend-of-the-court brief that sides with a Michigan funeral home that fired one of its workers for coming out as transgender. The brief argues that transgender individuals are not protected by Title VII of the 1964 Civil Rights Act that bans discrimination on the basis of sex.
On Oct. 8, the Supreme Court will hear a collection of cases involving LGBTQ individuals who say they were fired for being gay or transgender. The debate at the core of the issue is whether Title VII also prohibits discrimination on the basis of sexual orientation and gender identity.
The brief filed last week says the law does not protect these individuals.
A group of Democratic attorneys general who filed a brief taking the opposite position in July says it does.
While the brief filed by Republican attorneys general did not specifically take a position on whether the law should protect transgender individuals from being fired based on their gender identity, the brief does state their position that the Civil Rights Act correctly adheres to the “common understanding of the term ‘sex’ as ‘biological status as male or female’.”
Clarkson did not provide a direct comment to the Daily News-Miner but Alaska Assistant Attorney General Cori Mills explained Clarkson’s position on the case.
“This case and why the Attorney General signed onto this brief does not have to do with what the law should be — that is a policy choice that should be made by Congress and state legislatures,” Mills wrote in an email to the Daily News-Miner. “The question in the case is whether Title VII currently prohibits discrimination based on sexual orientation or gender identity, and it does not. Attorney General Clarkson signed onto the brief because he fundamentally believes these policy decisions should not be made by the courts; these decisions should be left to Congress. According to the Attorney General, it is important that separation of powers is respected, and that the proper branch of government go through a deliberate and public process to determine what our anti-discrimination laws should cover.”
When asked of Clarkson’s position on whether transgender workers should be able to be fired based on their gender identity, Mills did not answer directly, responding that because Clarkson’s role is “to advise on what the law is, not what it should be ... his opinion does not matter.”
This subject matter is not new territory for Clarkson who, as a private practice lawyer before his confirmation as attorney general, represented an Anchorage women’s shelter that refused to house a transgender woman.
The upcoming Oct. 8 supreme court hearing and Clarkson’s recent signature of the brief have sparked concern from members of the Fairbanks LGBTQ community.
Abby North, a leading member of the transgender support group Gender Pack formerly known as Gender Pioneers, said she was not surprised Clarkson signed such a brief.
“This administration and AG have not exactly been good for any marginalized people. Lesbian, gay, bisexual, transgender people are clearly not excluded from that,” North said. “Clearly I disagree with the brief’s premise. If someone discriminates against us, it is pretty clearly sex discrimination, perhaps not the way they’re defining sex but really it’s just discrimination based on how someone else perceives biological sex.”
For North, the issue at its core is not even about Title VII.
“To me, we shouldn’t even really need Title VII. I’ve always said either the constitution protects us all equally or it doesn’t really protect any of us,” North said. “It breaks my heart a bit that our state is signing on to this, that our state is signing on to allowing people to discriminate against LGBTQ people. It’s absolutely ridiculous, we’re just people.”
Pete Pinney, a more than 20 year member of the social justice activism and LGBTQ support organization PFLAG, said the brief is upsetting.
“People often say things out of fear or a lack of understanding which sits at the root of systemic discrimination,” Pinney said. “To say that one should have religious freedom to discriminate against a group that they don’t understand or know, it’s a personally held religious belief, it doesn’t apply to everyone. We recognize there is freedom of expression of religious beliefs, but similarly and just as importantly, there is also protection from such beliefs. So, when you start to use those beliefs to discriminate against people it’s entirely unequal.”
Pinney noted the language in the brief mirrored much of what he heard in testimony against a nondiscrimination ordinance brought before the Fairbanks City Council earlier this year. The ordinance, which would have prohibited discrimination on the basis of sexual orientation or gender identity, was passed by the City Council but vetoed just days later by Fairbanks City Mayor Jim Matherly.
The other attorneys general who signed last week’s brief are from Alabama, Arkansas, Idaho, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and West Virginia.
Contact staff writer Erin McGroarty at 459-7544. Follow her on Twitter: @FDNMPolitics.