Dozens back trans woman's legal case

Melissa Nann Burke
The Detroit News

Washington — Dozens of academics, organizations and elected officials this past week filed friend-of-the-court briefs urging the U.S. Supreme Court to side with a Michigan transgender woman and two gay plaintiffs to rule that federal law protects them from workplace discrimination.

Major corporations including General Motors Co. signed on to briefs, as well as religious leaders, the American Medical Association, the American Bar Association and a group of women CEOs and executives. 

Aimee Stephens

Those from Michigan signing on to briefs included Michigan Attorney General Dana Nessel, six Democratic House members, U.S. Sen. Gary Peters, law and philosophy professors, LGBTQ rights groups and nine Michigan cities and counties, including Detroit, Grand Rapids, Lansing, Flint, Pleasant Ridge and Washtenaw County.

The briefs refer in part to a Michigan case to be argued before the justices in October involving R.G. and G.R. Harris Funeral Homes, which fired a six-year employee in 2013 after she told her boss she was transitioning from male to female.  

Harris Homes has argued that an appeals court ruling last year that sided with the transgender employee, Aimee Stephens, "threatens freedom of conscience" and effectively rewrites federal law by replacing "sex" with "gender identity." 

Stephens’ appearance would violate its dress code and disrupt the grieving of its clients, the funeral home said.

Two other cases, one from New York and one from Georgia, involve gay men who claim the were fired due to their sexual orientation.

Briefs advocating for the employers involved in the litigation are not due to be filed with the high court until August. 

At issue in the high-profile litigation is whether gay and transgender people are protected by Title VII of the Civil Rights Act of 1964, which bars employers from discriminating against employees on the basis of sex as well as race, color, national origin and religion. 

Many of the briefs ask the justices to affirm that gay and transgender workers are already protected by Title VII against discrimination on the basis of sexual orientation and gender identity because both are inherently related to a person’s sex.  

“For too long we’ve allowed discriminatory practices to be carried out against members of the LGBTQ community and the idea that they could be denied an opportunity to support their families due to who they love or how they identify is appalling," said Nessel, who joined a brief by 21 state attorneys general. 

"What should matter is the quality of the individual’s work, not the sexual orientation or gender identity of the employee."    

President Donald Trump’s administration and employers in the case have argued that Congress did not intend for Title VII to protect gay and transgender people when it passed the law.

Democratic lawmakers, led by House Speaker Nancy Pelosi of California and Senate Minority Leader Chuck Schumer of New York, disagree.

Their brief was signed by 151 members of Congress who are co-sponsors of the Equality Act of 2019, which passed the House and would explicitly codify that Title VII protects LGBT people from discrimination based on sexual orientation or gender identity.

Two Democrats from Michigan's delegation did not sign onto the brief: Sen. Debbie Stabenow of Lansing and Rep. Haley Stevens of Rochester Hills. 

In a separate filing, former Republican U.S. Rep. Joe Schwartz and Michigan GOP operative Greg McNeilly signed on to a brief with more than 30 high-profile Republicans, telling the court that the "plain language" of the law protects against discrimination toward gay or transgender workers.

Schwartz represented Michigan's 7th District in Congress from 2005-07. He served as a Republican but now identifies as independent.

McNeilly, an adviser to the DeVos family in West Michigan and a prominent gay Republican, was executive director of the Michigan Republican Party from 2003-05. 

"Obviously the brief speaks for itself, but there really is an opportunity for both Congress and various state legislatures, including Michigan, to address this issue," McNeilly said.

Health professionals from 16 medical, mental health, nursing and other groups submitted a brief specifically in support of Stephens' case, saying discrimination has the potential to interfere with treatment and can reinforce the stigma associated with being transgender. 

"Employment discrimination directly interferes with medical treatment of gender dysphoria when it results in transgender individuals losing income or health insurance," they wrote.

"Lack of treatment, in turn, increases the rate of negative mental health outcomes, substance abuse and suicide." 

Sam Bagenstos, who teaches constitutional law at the University of Michigan, co-wrote a brief with other professors, addressing cases like Stephens' where employees are required to comply with sex-specific dress codes in the workplace.

Stephens, 58, of Metro Detroit, was fired in 2013 after disclosing to her boss that she was transitioning from male to female and would begin following the home’s dress code requirements for women.

The federal Equal Employment Opportunity Commission in 2014 sued Harris Homes, which operates three funeral homes in southeast Michigan, on behalf of Stephens. The U.S. Court of Appeals for the 6th Circuit ruled last year that her firing constituted sex discrimination under federal law.

Bagenstos and his colleagues contend that the justices don't have to decide whether Title VII prohibits discrimination against transgender people based upon their transgender status, arguing that Harris Homes’ insistence that Stephens comply with its dress and presentation standards for men constituted discrimination under Title VII.

Their brief says Thomas Rost, owner of Harris Homes, claimed that he did not discharge Stephens simply because she was transgender but because she planned to dress in women's business attire and would otherwise present herself as a woman.

"It follows that but for Stephens’ 'sex' ... Rost would not have required her to meet the dress, grooming and presentation standards he imposed upon men in the Harris Homes workplace," the brief reads.

"The conditions Harris Homes imposed upon Stephens — including to dress only in conventional male attire — were themselves the product of sex-specific stereotypes and would not have been applied to Stephens had her anatomy been different."

Michigan has no law that explicitly protects people against discrimination on a basis of their sexual orientation or gender identity.

Nessel, who took office in January, recommended in June that the Michigan civil rights department continue to investigate gay and transgender discrimination complaints, despite a legal opinion by former Attorney General Bill Schuette. 

Schuette had invalidated a similar sex bias interpretation by the Michigan Civil Rights Commission.

Republican leaders questioned whether Nessel's own opinions — including one used to halt state cooperation on plans to move Enbridge’s controversial Line 5 oil pipeline into a tunnel beneath the Straits of Mackinac — should also be disregarded if the underlying questions are the subject of pending litigation.

"I'm confused about my Attorney General being confused about whether her opinion matters or doesn't matter,” Senate Majority Leader Mike Shirkey, R-Clarklake, told reporters last month.

“I can only conclude, therefore, that her opinion is simply that — an opinion, and it matters no more than that."

Nessel spokeswoman Kelly Rossman-McKinney said that is not the case, arguing Schuette’s opinion was unique because it “disregarded” other federal court rulings now under review by the Supreme Court.

“The situation is not analogous to Attorney General Nessel’s opinions interpreting the constitutionality of recently passed legislation,” she said.

“Our office's direction to the Civil Rights Commission that it is not bound by Mr. Schuette's opinion is consistent with past practice when a prior opinion is disregarded because the opinion was based on developing case law.”

Staff writer Jonathan Oosting contributed