Supreme Court to hear discrimination suits from transgender, gay workers

By Pamela Manson
Aimee Stephens says she was fired from her job as a funeral director in Michigan after telling the owner of her plans to transition and dress as a woman. Photo by Charles William Kelly/ACLU
1 of 2 | Aimee Stephens says she was fired from her job as a funeral director in Michigan after telling the owner of her plans to transition and dress as a woman. Photo by Charles William Kelly/ACLU

June 11 (UPI) -- The U.S. Supreme Court is slated to hear the case of a transgender employee who was fired from a Detroit-area funeral home after informing the owner of plans to transition from male to female and begin dressing as a woman.

The case -- which puts before the court the question of whether the Civil Rights Act of 1964 protects against discrimination based on gender identity -- could have far-reaching implications for LGBT rights, along with two other cases.


Thomas Rost, the owner of R.G. & G.R. Harris Funeral Homes, which has three locations in Michigan, said the dismissal stemmed from the worker's intention to violate the business' dress code, which requires men to wear a suit and women to wear a skirt and suit jacket. Allowing a man to dress as a woman would disrupt the grieving process of clients, he said.


In addition, Rost said as a devout Christian who interprets the Bible as teaching that gender is immutable, he "would be violating God's commands" if a man presented himself as a woman while representing the company.

Lawyers for the employee, Aimee Stephens -- formerly known as Anthony Stephens, who had been living as a man during six years of employment as a funeral director at Harris Funeral Homes -- disputes that the dress code was the basis for her firing.

"They ignore the fact that they said they're firing her because she would be expressing herself as a woman in the workplace," John A. Knight, an attorney with the American Civil Liberties Union Foundation in Chicago, told UPI. "They discriminated against our client because she is transgender."

Knight added that courts consistently have found that imposition of generalizations of how people should live and act should not be the basis for firing them.

EEOC complaint

Shortly after she was let go from the Garden City funeral home in 2013, Stephens filed a complaint with the Equal Opportunity Employment Commission alleging sex discrimination. The EEOC brought suit against Harris Funeral Homes, alleging the business violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex or national origin.


A district court judge ruled in favor of the funeral home but that decision was overturned at the 6th U.S. Circuit Court of Appeals, which ruled Stephens had been discriminated against on the basis of her sex. The ruling also rejected the argument that requiring the funeral home to employ Stephens while she dresses and represents herself as a woman would constitute an unjustified substantial burden upon sincerely held religious beliefs, in violation of the Religious Freedom Restoration Act.

Harris appealed to the U.S. Supreme Court. Briefs are being filed in the case this summer and the high court will hear the case during the term that begins in October.

The Supreme Court is considering two questions. One is whether the word "sex" in Title VII's prohibition against discrimination "because" meant "gender identity" and included transgender status when Congress enacted that law in 1964. The other is whether Title VII prohibits discrimination against transgender people based on sex stereotyping. Rost's religious objection is not part of the appeal.

The Office of the Solicitor General, which represents federal agencies before the U.S. Supreme Court, has taken the opposite position of the EEOC in the case and is arguing the ordinary meaning of "sex" does not refer to gender identity.


That argument aligns with the stand of the Department of Justice, which released a memo in October 2017 saying Title VII "does not prohibit discrimination based on gender identity per se, including transgender status."

"This is a conclusion of law, not policy," the memo says, adding, "Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity."

Stephens is now represented by the ACLU.

The case for Harris

Kate Anderson, senior counsel at Alliance Defending Freedom, said Stephens agreed to follow the dress code and a code of conduct when she was hired in 2007 and that Rost acted legally when he let her go. ADF, a Christian nonprofit organization based in Scottsdale, Ariz., is representing Harris Funeral Homes.

"Small businesses should be able to rely on the existing law," Anderson said. "What's happened here is the courts are trying to change the law midstream."

Letting the 6th Circuit ruling stand would have far-reaching consequences, including undermining equal opportunity for women, Anderson said.

Among the fields affected would be sports, she said. In a Connecticut girls indoor track championship this year, transgender athletes took first and second place in a 55-meter dash and a transgender Canadian woman won a cycling championship last year in Los Angeles.


Anderson also cited the case of a faith-based women's shelter in Alaska that was investigated on an allegation it violated an ordinance prohibiting gender identity discrimination after it referred a biological man who identifies as female to a hospital rather than allow an overnight stay. ADF lawyers say the transgender woman was inebriated and injured and was not denied services based on gender identity.

Many of the women at the shelter are victims of domestic violence, sexual assault or human trafficking, Anderson said, and experience anxiety just being in the presence of a man.

James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project, said the stakes in the Harris case are huge.

"If federal law says it's fine to fire someone because she's lesbian or transgender, other federal civil rights laws may well not protect LGBTQ people, either," Esseks wrote in a blog.

Stephens said in her own blog post last fall that she always tried to live as a man but knew since she was a child that she was different. After seeing a therapist, she started taking steps to become more comfortable expressing herself, including going grocery shopping and out to eat dressed as a woman.


She had the support of her wife and many friends and family members, Stephens said, and filed suit to extend that support to all transgender people.

"No one should be fired because of who they are," Stephens wrote.

Two other cases

The Supreme Court is also considering two cases involving Title VII protections of men who allege they were fired from their jobs for being gay.

Gerald Bostock, a child welfare services coordinator in Clayton County, Ga., said he was fired soon after it became known in 2013 that he played on a gay recreational softball league. He is appealing the dismissal of his lawsuit alleging discrimination based on sexual orientation. His former employer denies that Bostock was fired for being gay.

Donald Zarda, a New York skydiving instructor, said he lost his job at Altitude Express in 2010 after he disclosed to a student that he was gay and the student's boyfriend complained to the company. The 2nd U.S. District Court of Appeals ruled that sexual orientation discrimination is a subset of sex discrimination, leading to an appeal by Altitude Express, which says the dismissal was based on complaints about Zarda's behavior.

Zarda died in a BASE jumping accident in 2014, and the suit has continued on behalf of his estate.


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