The Trump administration has made more and more aggressive moves to signal its lack of support for LGBTQ people. At the same time, however, courts across the country are increasingly doing the opposite—most recently the Sixth Circuit Court of Appeals, which held this week that a company cannot justify discrimination against trans people based on religious beliefs.
In EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit joined the Second Circuit and the Seventh Circuit in recognizing that Title VII, which prohibits employment discrimination based on sex, provides protection for trans individuals.
The circumstances that gave rise to the Harris litigation began in 2013, when Aimee Stephens began transitioning at her place of work, the Harris Funeral Home. Stephens had been a funeral director for Harris since 2008. In July 2013, Stephens told her supervisor, funeral home owner Thomas Rost, that she had struggled with gender identity disorder her whole life and would be transitioning and that, as is common for individuals who transition, her first step was to live and work full-time as a woman for a year before pursuing surgery. Stephens had a vacation planned; when she returned, she intended to work in what was considered appropriate business attire for women at the funeral home—a skirt suit.
Instead, Rost fired her, stating that things were “not going to work out” and offering Stephens a severance if she would keep the circumstances of her firing secret. According to court documents, Stephens declined, and instead filed a sex-discrimination charge with the Equal Employment Opportunity Commission (EEOC). When she did so, she said that the only reason she’d received from her management for her firing was that her job as a funeral director required public contact, and the public would not accept her transition. Later, Rost actually testified he fired her because she “was no longer going to represent [herself] as a man” and wanted to “dress as a woman.” (When the lower court addressed this lawsuit, the judge noted drily that while it is rare to see cases where there is “direct evidence” to support the discrimination claim, that was indeed the case here.)
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Initially, the EEOC was pursuing the case on behalf of Stephens. However, after President Donald Trump’s inauguration, when it was beginning to become clear that his administration would soon reverse course on many of the protections LGBTQ people enjoyed in the Obama era, Stephens joined the lawsuit herself. That fear is likely well-founded. While the EEOC continues to protect LGBTQ individuals, the Department of Justice has begun to intervene on the side of anti-LGBTQ companies.
In defending himself and his company against the suit, Rost explained that he was a Christian and he would be violating God’s law if he allowed Stephens to live and work as a woman. The company makes its Christian beliefs explicit in some ways. There is a verse of scripture on the bottom of its webpage and its employees leave Bibles in rooms at the funeral homes, but it also hires employees of any faith (or none) and holds non-Christian burial services. Regardless of this clearly secular corporate behavior, Rost argued—and the lower court agreed—that even if he had discriminated against Stephens for being trans, that discrimination was permissible under the Religious Freedom Restoration Act (RFRA). To require Harris Funeral Home to continue to employ Stephens while transitioning, or post-transition, the argument went, would be a substantial burden on Rost and the funeral home’s free exercise of religion.
RFRA states that the government cannot in general substantially burden someone’s exercise of religion unless the government demonstrates the burden furthers a compelling government interest and is the least restrictive means of doing so. A number of conservative groups have used RFRA to push anti-LGBTQ agendas. In Indiana, then-Gov. Mike Pence (R) oversaw passage of a state-level version of RFRA designed to allow businesses to refuse services to LGBTQ people.
In this case, the funeral home argued, functionally, that RFRA trumps the non-discrimination requirements of Title VII. It’s an argument that the lower court bought, agreeing that even if Title VII discrimination occurs, a sincerely held religious belief makes that discrimination permissible.
After losing at the district court level, the EEOC and Stephens appealed, arguing that Title VII protects against “sex stereotyping”—requiring individuals to present themselves in a certain way based on “traditional” notions of how men and women should appear. They argued that the prohibition on sex stereotyping would extend to discrimination against transgender individuals because the very fact of being transgender involves non-conformance of your gender identity with “sex-based norms or expectations.”
The pushback from the funeral home was exactly as expected, given that its case was being handled by the Alliance Defending Freedom (ADF). The ADF was an instrumental part of the successful effort by Hobby Lobby to impose its religious beliefs regarding contraception on its employees. The organization has brought other cases on behalf of companies who don’t want to provide services to LGBTQ people. It continually refuses to recognize the reality of transgender individuals and repeatedly argues in court cases that the term sex refers only to a biological or anatomical status and is binary. In other words, people can only be male or female, and they can never change.
ADF made the exact same argument in this case, arguing that it was fine to discriminate against Stephens because under Title VII, “sex” could only refer to a “binary characteristic for which there are only two classifications, male and female,” and that classification is “based on their chromosomally driven physiology and reproductive function.”
The view of the ADF and the funeral home is a dangerously outmoded and hate-fueled one, and, thankfully, it is one that the court here soundly rejected. And Judge Karen Nelson Moore didn’t mince words. She specifically stated that Title VII protects transgender people “because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.” That’s a bold and much-needed statement, and it leaves no wiggle room: Transgender people are protected in the workplace, period.
In some ways, the result in this case was inevitable in the Sixth Circuit, as that same court had already held, back in 2004, that companies couldn’t discriminate based on “a failure to conform to stereotypical gender norms.” In that case, Smith v. City of Salem, the Sixth Circuit held that a transgender plaintiff could file an employment discrimination suit under Title VII because that discrimination wouldn’t have occurred “but for the victim’s sex.” And that’s exactly what Title VII prohibits: discrimination on the basis of sex. With that decision, the Sixth Circuit was well situated to decide as it did here.
In so holding, the Sixth Circuit also rejected the RFRA claim of Rost and the funeral home. Rost had argued that his business of comforting grieving families, fueled by his faith, would be compromised when customers were made uncomfortable by Stephens’ gender presentation. The court found, though, that Rost was unable to point to anyone who had indicated discomfort—in no small part because he had fired Stephens prior to her workplace transition. The court also pointed out that letting customer biases drive your workplace employment decisions (as regards the civil rights of your employees) is generally not permissible in the first place. Finally, to allow RFRA to trump Title VII would eviscerate the reach of that civil rights law.
Rost then tried to argue that, by paying for Stephens to dress in women’s clothes, rather than the male clothes he had previously paid for Stephens to wear pursuant to the funeral home’s dress clothes stipend, he would violate his religious beliefs. This opened up an entirely different line of problems for Rost and the funeral home. For years, they had provided male employees with free suits and ties, but not done the same for female workers. So, the argument that he would be compelled, essentially, to buy Stephens clothing traditionally associated with women fell flat—as he hadn’t been paying for clothes for female employees at all.
The Sixth Circuit did not find any of these arguments compelling and stated that merely keeping Stephens employed, as the funeral home was required to do under Title VII, didn’t amount to endorsing her views, as they weren’t being asked to pay for her transition or assist it in any way. This made the case meaningfully different from the Hobby Lobby case, because there Hobby Lobby was able to argue that they were being asked to directly or indirectly financially subsidize their employees’ use of birth control.
This week’s decision means that trans people living in Kentucky, Michigan, Ohio, and Tennessee (the states that comprise the Sixth District), now enjoy the full protections of Title VII. The recent decision in the Second Circuit, Zarda v. Altitude Express, extended the protections of Title VII to gay and lesbian employees in Connecticut, Vermont, and New York. And the Seventh Circuit’s holding in Hively v. Ivy Tech did the same in Illinois, Indiana, and Wisconsin.
It’s a patchwork way to ensure that LGBTQ people have equal rights in the workplace—but given the Trump administration’s demonstrated hostility to those rights, it’s all we’ve got right now.
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