“Sex” Vs. “Gender Identity” And Title VII

By MIKE MANNO

There is an interesting case out of Michigan that has been appealed to the U.S. Supreme Court that has the potential to determine whether the word “sex” in Title VII of the 1964 Civil Rights Act also refers to “gender identity” for purposes of anti-discrimination enforcement.
Courts have been split on the issue and this case, with its unusual mix of facts and law, might be the vehicle with which the top court finally decides the issue.
To the facts: The defendant in a case brought by the U.S. Equal Employment Opportunity Commission (EEOC) is a Detroit funeral home, R.G. & G.R. Harris Funeral Homes; the complainant is the former Anthony, now Aimee, Stephens. Mr. or Ms. Stephens (whichever is appropriate) was a former funeral director and embalmer at one of Harris’ locations.
For six years Mr. Stephens apparently worked well and the funeral home had no problems with him. Then in July of 2013, Mr. Stephens told the funeral home’s owner — Thomas Rost — that he no longer was comfortable as a male and identified as a female; further, he intended to have sex reassignment surgery. However, he explained that he could not have the surgery immediately, but had to live and work full-time as a woman for a year first.
He told Rost that he intended to present himself as a woman and dress in female clothing at work, where his duties included meeting with grieving family members and guiding them through the funeral process. That violated the funeral home’s attire guidelines: Male employees were to wear suits and female employees were to wear skirts or dresses.
He was then terminated from his position for refusing to comply with the company dress policy. He was offered a severance package, but refused.
On top of this, Rost is a devout Christian who believes in a biblical interpretation of sex and believes that a person’s sex is an immutable God-given gift. Thus transgenderism (if that’s a word) is a violation of God’s plan and he did not want to give support to it.
Stephens then filed a complaint with the EEOC claiming sex discrimination. The EEOC found enough evidence to support the complaint and filed a federal suit on Stephens’ behalf. The district court, however, ruled against Stephens and the EEOC.
The district court agreed with the funeral home that transgender status was not a protected trait under Title VII and thus the EEOC could not sue for discrimination based solely on the complaint’s status as transgender. The court also held that since Rost “sincerely believes his purpose in life is to minister to the grieving and his religious faith compels him to do that important work” the Religious Freedom Restoration Act (RFRA) protects the funeral home against any EEOC enforcement.
The EEOC then appealed the case to the Sixth Circuit Court of Appeals. Joining the appeal as an intervener was the aforementioned former Anthony and now Aimee Stephens who moved to intervene on January 26, 2017. “She” did so for two reasons. First, there was a change of administrations in January of 2017 and “Aimee” was afraid that the new administration’s policy considerations would cause the EEOC to drop the case or modify its position; and, second, the provisions of RFRA only applied against the government, not an individual, and thus “she” wanted to preserve that legal route.
In March of this year, a three-judge panel of the Sixth Circuit reversed the district court’s decision and ruled against Rost and the funeral home, and granted summary judgment to the EEOC on its claim of unlawful termination of employment claim.
The court rejected the funeral home’s argument that Title VII does not prohibit discrimination “based on a person’s transgender to transitioning status because ‘sex,’ for the purposes of Title VII ‘refers to a binary characteristic for which there are only two classifications, male and female’ and ‘which classification arises in a person based on their chromosomally driven physiology and reproductive function’.”
The court, in rejecting that argument, said: “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex. . . . Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens’ sex impermissibly affected Rost’s decision to fire Stephens,” wrote Judge Karen Nelson Moore for the court.
Addressing the legal question of why some statues have clearly protected transgender individuals in sexual discrimination claims, while Title VII only mentions sex, the court continued, “In short, nothing precludes discrimination based on transgender from being viewed both as discrimination based on ‘gender identity’ for certain statutes and, for the purposes of Title VII, discrimination on the basis of sex.”
As to the RFRA claim, the court also reversed and held that “requiring the funeral home to comply with Title VII constitutes the least restrictive means of furthering the government’s compelling interest in eradicating discrimination against Stephens on the basis of sex.”
Now the case moves to the Supreme Court. A writ of certiorari (request to be heard on appeal) has been filed, but as of this writing, the court has not granted it. In it the funeral home argues that Congress, in enacting Title VII’s prohibition against discrimination due to “race, color, religion, sex, or national origin,” sought to address the lack of opportunities for women when it added sex to the prohibited categories.
“Both at the time of Title VII’s enactment and today, the word ‘sex’ refers to a person’s status as male or female…in contrast, gender identity is an altogether different construct. It refers to an ‘inner sense of being male or female’….Congress has considered and rejected at least a dozen proposals to similarly add ‘gender identity’ to Title VII, even while enacting other nondiscrimination provisions listing either ‘sex’ or ‘gender’ alongside ‘gender identity’.”
In addition to its arguments over statutory construction, the funeral home also argues that: “Funerals are somber and solemn events that…mark some of the most difficult times in life. They often are traumatic and painful experiences, and family and friends need to be able to focus on each other and their grief. Because of this, Rost requires his employees to conduct and present themselves in a professional manner and to avoid disrupting or distracting clients as they process their grief. Harris Homes’ dress code for employees who interact with clients is integral to ensuring that the company meets the high standards it sets.”
Some thoughts: If Aimee Stephens was worried about a change in policy at the EEOC by the Trump administration, “she” should really worry about the addition of two new justices to the court. The president has never been overly concerned about trans or gay rights, and, in fact, has been more supportive of them than most Republicans. However, there is now a solid conservative majority on the court which, if it reverses the circuit court, could actually write new law concerning how antidiscrimination statutes and court rulings will affect transgender litigants.
The case is now sitting at the Supreme Court’s door, asking to be let in. As Mr. Trump says: We’ll see.
(You can contact Mike at: DeaconMike@q.com.)