Law & the Courts

An Over-Expansive Definition of ‘Sex Discrimination’

Demonstrators hold signs during the “Stand Up for Transgender Rights” event to show their support for transgenderism in Chicago February 25, 2017. (Kamil Krzacznski/Reuters)
A federal court rules that an employer cannot fire a man who insisted on presenting as a woman.

The Sixth Circuit Court of Appeals ruled on Wednesday that transgender individuals are protected by Title VII’s prohibition of sex discrimination. In effect, the court held that employers violate the federal anti-discrimination statute when they refuse to affirm the sexual identity claimed by a transgender employee, even if their refusal is based on sincerely held religious beliefs.

A unanimous three-judge panel reached this decision in a case brought by the Equal Employment Opportunity Commission on behalf of Anthony Stephens against his former employer R. G. & G. R. Harris Funeral Homes, Inc. Stephens had served as a funeral director for more than five years at the closely held corporation when the owner, Thomas Rost, fired him after he informed Rost that, according to the court, he “intended to have sex reassignment surgery.” Stephens explained to his employer that the first step in his transition involved living and working full-time as a woman for one year. When he returned to work following an upcoming vacation, he would be attired as a woman and answer to Aimee Australia Stephens.

Before Stephens left for vacation, Rost fired him, telling him, “This is not going to work out.” Rost later testified in a deposition that he fired Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.” Rost further explained that the funeral home’s dress code requires “its public-facing male employees to wear suits and ties and its public-facing female employees to wear skirts and business jackets.”

After his termination, Stephens filed a complaint with the EEOC, arguing that the Harris Funeral Home violated Title VII’s prohibition of sex discrimination. Rather than issue a right-to-sue letter and allow Stephens to litigate the matter himself, as is the norm, the EEOC, likely to advocate an expansive interpretation of Title VII, decided to file suit against the Harris Funeral Home.

The EEOC’s tactic worked. The decision of the Cincinnati-based appellate court in EEOC v. R. G. & G. R. Harris Funeral Homes, Inc. represents the most expansive view of sex discrimination to date and threatens to force employers to deny sincerely held religious beliefs on human nature.

The Sixth Circuit began its decision quite simply by quoting Title VII, the federal statute that prohibits employers from discriminating against individuals because of their “race, color, religion, sex, or national origin.” The appellate court then relied on the Supreme Court’s plurality opinion in Price Waterhouse v. Hopkins (1989) for the proposition that sex stereotyping is illegal sex discrimination. That was the court’s first misstep: Price Waterhouse held not that sex stereotyping is sex discrimination but that it could be evidence of it.

The Sixth Circuit went further. It rejected the lower court’s view that “transgender or transsexual status is currently not a protected class under Title VII,” holding instead that “discrimination on the basis of transgender and transitioning status violates Title VII.” The court reasoned that an “employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.”

Taken to its logical conclusion, the Sixth Circuit’s reasoning mandates that employers affirm the gender identity of their employees. This point becomes clear later in the opinion when the court claims that Stephens “fully intended to comply with the company’s sex-specific dress code” but “refused to conform to the Funeral Home’s notion of [his] sex.”

However, contrary to the Sixth Circuit’s claim, Stephens did not intend “to comply with the company’s sex-specific dress code.” That dress code required men to wear a suit and tie, and women to wear a skirt and business jacket. The courts have upheld sex-specific dress codes so long as they burdened the sexes equally — e.g., shaving for men and make-up for women. The Sixth Circuit sidestepped this precedent, though, by treating Stephens as a woman for purposes of the dress code — and holding that the Harris Funeral Home must as well.

Rost countered that he would be “violating God’s commands” if he were to permit “male funeral directors to wear the uniform for female funeral directors while at work.” Furthermore, it would involve him “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift. The Harris Funeral Home argued that, for these reasons, requiring it to continue to employ Stephens while allowing him to present as a woman would violate the Religious Freedom Restoration Act (1993).

The plaintiff, Anthony Stephens, sought more than tolerance of his identifying as a woman — he sought affirmation.

The Sixth Circuit rejected this argument as well, finding that “tolerating Stephens’s understanding of [his] sex and gender identity is not tantamount to supporting it.” But Stephens sought more than tolerance — he sought affirmation. He wanted the Harris Funeral Home to view him as a woman, as demonstrated by his demand that he be allowed to comply with the dress code applicable to women. Presumably, he would likewise insist on feminine pronouns and the feminine title Ms. The EEOC and the Sixth Circuit did not address that issue, and understandably so, because the government would be hard pressed to prove that it could compel such speech without running afoul of the First Amendment.

While Stephens prevailed in the circuit court, he has not yet won his case. The Harris Funeral Home could ask the full Sixth Circuit to reconsider the panel decision — that is, to rehear it en banc. Or the funeral home could seek review by the Supreme Court. And even if the Sixth Circuit’s decision remains intact, that merely means that Stephens has the right to sue for transgender discrimination under Title VII; he must still prove his case to a jury.

Whatever the eventual outcome for Stephens, the decision of the Sixth Circuit foretells a difficult future for employers who hold to the scientific and religious belief that sex is biological and immutable. Parents will likely see this precedent extended to schools because of Title IX’s parallel use of the word “sex” in the federal statute prohibiting discrimination in educational institutions.

Margot Cleveland is a lawyer, CPA, stay-at-home mom, and former full-time faculty member and current adjunct professor at the college of business at the University of Notre Dame.

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