Groups argue law doesn't protect transgender woman from workplace bias

Melissa Nann Burke
The Detroit News

Washington — More than three dozen groups, from Christian colleges to feminists, filed friend-of-the-court briefs urging the U.S. Supreme Court to side with a Michigan funeral home business that fired a transgender employee who dressed as a woman. 

The groups' arguments follow a filing by the Trump administration last month urging the nine justices to rule that a federal civil rights law prohibiting sex discrimination doesn’t protect transgender people in the workplace.

Groups supportive of R.G. and G.R. Harris Funeral Homes in Garden City say a ruling for the transgender employee, Aimee Stephens, would burden religious liberty and employment law, erode expectations of privacy and undermine equal opportunities for women and girls. 

Thomas Rost, owner of R.G. & G.R. Harris Funeral Homes in Garden City, Michigan, is at the center of a U.S. Supreme Court case involving allegations of transgender discrimination by a former employee.

The groups include the U.S. Conference of Catholic Bishops, the Billy Graham Evangelistic Association and the Lansing-based Great Lakes Justice Center, filing in one of two closely watched LGBT-rights cases that the High Court is set to hear in early October.

The other case examines whether discrimination on the basis of sexual orientation also violates a provision of the Civil Rights Act of 1964 — known as Title 7 — that bars employers from discriminating on the basis of sex.

The friend-of-the-court briefs support Harris Homes, a family-owned business that in 2013 fired Stephens after she told her boss she was transitioning from male to female and would begin following the funeral home's dress code for women.  

The federal Equal Employment Opportunity Commission in 2014 sued Harris Homes on behalf of Stephens. An appeals court in March 2018 ruled that her firing constituted sex discrimination under Title 7.

Harris Homes want the justices to reverse the appeals court decision, saying it threatens freedom of conscience and rewrites federal law by adding "gender identity" as a protected category that Congress never intended under the law.

"It is not sex discrimination for an employer to apply a sex-specific dress code or provide sex-specific changing and restroom facilities based on biological sex rather than one’s internal sense of gender," attorneys for Harris Homes wrote in their brief. 

"Harris Funeral Homes would have responded to a female employee who insisted on dressing as a man while working with grieving families the same way it responded to Stephens. Because it does not disfavor one sex compared to the other, Harris does not discriminate based on sex."

Harris Homes also argues it's not illegal sex “stereotyping” for an employer to apply a sex-specific dress code based on an employee's biological sex, and that Stephens’ appearance would disrupt the grieving of its clients.

Aimee Stephens

Organizations including medical groups and lawmakers recently filed briefs in support of Stephens, asking the justices to affirm that gay and transgender workers are already protected by Title 7 against discrimination on the basis of sexual orientation and gender identity because both are inherently related to a person’s sex. 

Harris Homes' owner, Thomas Rost, has said he believes the Bible teaches a person’s sex is an "immutable God-given gift."

Rost says he would be violating God’s commands by allowing one of his funeral directors to deny their sex while acting as a representative of the business, or by permitting a funeral director of either sex to follow the dress code for the opposite sex while on the job. 

U.S. Catholic bishops, in a brief joined by the Foursquare Church and the religious liberty arm of the Southern Baptist Convention, contend that construing Title 7’s prohibition on sex discrimination to apply to gender identity would create conflicts for many believers with religious and moral convictions about sexual identity and "sexual difference."

"Such an interpretation will affect the ability of churches and faith-based schools and charities to hire and retain employees who, by word and conduct, accept or at least do not contradict the church’s religious message," the brief reads. 

The bishops also warn that businesses like Rost's could face "marginalization" of their religious and moral views or even be driven out of business. 

They say lawmakers, not the courts, should decide the issue, noting all 21 states that prohibit gender identity discrimination in the private sector have a religious exemption of some sort.

Michigan is not among the 21 states, as it has no law that explicitly protects people against discrimination on the basis of their sexual orientation or gender identity.

The nonprofit Great Lakes Justice Center, which is based in Lansing, submitted a brief arguing the appeals court's ruling last year, if left to stand, would lead to censorship and punishment for citizens whose religious, political or cultural views conflict with what it calls the "'gender identity' political agenda."

The center also says that a policy allowing a biologically male individual the right to use women's bathrooms or locker rooms "requires citizens to risk being intimately exposed to those of the opposite sex merely because a member of the opposite sex wants to see them and is willing to state a belief concerning his or her own gender," the brief reads. 

"Common sense and common decency belie the Sixth Circuit’s fundamentally flawed analysis and radical, erroneous conclusions in this case."

U.S. Rep. Tim Walberg, R-Tipton, signed onto a brief with 47 other members of Congress who are concerned about religious freedom. He was the only Michigan member to do so.

Walberg and his colleagues maintain that Title 7 does not expressly include sexual orientation or gender identity as protected classes, and that the legislative history doesn't support the view the law was meant to protect them.

"Some of the potential effects (of the cases) include collateral impacts on businesses and imposition on matters of conscience," the lawmakers wrote.

"The rights of those who claim protections for sexual orientation and gender identity must be weighed against First Amendment protections of religious freedom." 

They also cautioned that the court's broadening Title 7 would likely affect the way other statutes such as Title 9 and the Affordable Care Act are interpreted.

The Women's Liberation Front, a group of self-described radical feminists, says in its brief that Stephens' case is an attempt to redefine the fundamental meaning of the term “sex” under federal civil rights law.

"Legally redefining 'female' as anyone who claims to be female results in the erasure of female people as a class," wrote a lawyer for the group, known as WoLF. 

"If, as a matter of law, anyone can be a woman, then no one is a woman, and sex-based protections in the law have no meaning whatsoever. The ruling below effectively repeals the sex-based protections in Title VII — a ruling that Congress surely did not intend."

WoLF warns that if "sex" is redefined to mean “gender identity,” it would potentially reduce educational scholarships for women if the awards are also open to transgender individuals. 

WoLF claims the ruling would allow men who claim to identify as women to live in all-girls dormitories and enter other intimate spaces for women, such as bathrooms or dressing rooms, to "ogle" women there. 

"Redefining sex to mean 'gender identity,' as the court below has done, effectively decriminalizes this predatory sexual activity and gives a get-out-of-jail free card to any predator who smiles and says, 'I identify as female,'" the brief says.  

A ruling in the case is expected next spring amid the 2020 presidential campaign.