Photo: Drew Angerer (Getty)

Lawyers from the Department of Justice told the Supreme Court on Wednesday that, in their opinion, American businesses are free to discriminate against trans employees.

The DOJ weighed in as the court decides whether or not it will take a case about trans employment rights. Its intervention is actually creating a split between two parts of the government against one another. The DOJ says that discrimination against trans workers is fine, but the Equal Employment Opportunity Commission (which would actually have to apply and enforce that law) says that it’s not.

Per Bloomberg Law:

Solicitor General Noel Francisco told the [Supreme Court] that a civil rights law banning sex discrimination on the job doesn’t cover transgender bias. That approach already has created a rift within the Trump administration, contradicting the Equal Employment Opportunity Commission’s view of the law it’s tasked with enforcing.

The conflict stems from the case of Aimee Stephens, a worker who was fired from a Michigan funeral home after she came out as a trans woman to her boss, a devout Christian. The EEOC sued the funeral home on behalf of Stephens, and worked the case all the way up to the Sixth Circuit of the U.S. Court of Appeals, which eventually ruled in Stephens’ favor. The problem is that it’s the DOJ’s job to represent the government in front of the Supreme Court—and the DOJ wants the court to overturn the decision.

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The ACLU has said it will step in and take up Stephens’ case if the Supreme Court decides to hear it.

Per Bloomberg Law, that could come down to a couple of factors:

The Supreme Court is expected to decide in the coming months whether to take up the case. It’s also been asked to consider two other cases testing whether sexual orientation bias is a form of sex discrimination banned under the existing law.

The Justice Department asked the Supreme Court to first decide whether to take those two cases before making a decision on whether to review the Stephens case.

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The DOJ’s decision comes, of course, as the Trump administration seems to be systematically attacking trans people’s humanity and civil rights by attempting to narrowly define gender at a federal level. We should know if the Supreme Court—and its newest member Brett Kavanaugh—will take the case in the coming weeks.