Stephens may not live to hear result of transgender rights case

Melissa Nann Burke
The Detroit News

Aimee Stephens, the Michigan woman who last year became the first transgender person to have a civil rights complaint heard by the U.S. Supreme Court, might not live to hear whether she won. 

Stephens, 58, of Metro Detroit has struggled with kidney disease in recent years. Her condition recently deteriorated to the point that she had to discontinue dialysis, and she is now in stage four renal failure and under hospice care, according to a GoFundMe page set up to help her wife, Donna, pay for end-of-life care and funeral expenses. 

Aimee Stephens

The American Civil Liberties Union, which represented Stephens in her case, confirmed that her health has worsened.

“Aimee is now in hospice care at home. It is truly heartbreaking,” said Dana Chicklas, spokeswoman for the ACLU of Michigan.

Stephens’ case was argued before the justices in October, and a ruling is expected this spring. 

At issue is whether Title 7 of federal civil rights law, which prohibits workplace discrimination based on sex, applies to discrimination against transgender people. Michigan is among 29 states without discrimination protections for transgender individuals.

Stephens was fired from her job at a Garden City funeral home in 2013 after informing her boss she was transitioning from male to female. 

Transgender activists say at stake in the case is their right to work, earn a living and support their families. 

The funeral home and its supporters say a ruling for Stephens could bar sex-specific policies altogether, forcing employers and organizations to open facilities such as showers, restrooms, locker rooms and shelters to "men who believe themselves to be women."

The U.S. Circuit Court of Appeals for the 6th Circuit in 2018 ruled against Harris Homes, concluding in part that discrimination on the basis of transgender status is "necessarily" discrimination on the basis of sex.

Stephens’ death wouldn't render the case moot, said Sam Bagenstos, who teaches constitutional law at the University of Michigan Law School.  

Her estate could still recover compensatory and maybe other damages for the alleged violation of her rights, he said, explaining that Title 7 doesn't have a provision that specifies whether claims survive a plaintiff's death. 

“Sometimes, courts look to general federal law rules to fill in the gap. Those rules would say that claims to compensate the plaintiff survive the plaintiff's death,” Bagenstos said. 

Sometimes courts look to state law rules, and Michigan has a very broad survival statute, which would permit the recovery of any sort of damages, he added.

“So however the courts would decide the federal-versus-state-law question, there would still be claims that survived,” Bagenstos said.

“This is kind of a ghoulish discussion, but I understand why people would want to know.”

Stephens had trouble finding work in the funeral home industry after losing her job at R.G. & G.R. Harris Funeral Homes, ultimately landing a position as an autopsy technician at the Detroit Medical Center's Sinai-Grace Hospital, where she worked until her kidneys failed in late 2014. 

Between doctor's appointments and dialysis treatments, she couldn't work full-time and was forced to retire, she said last year. With the household under financial stress, Stephens’ spouse Donna took on several jobs for them to get by.

The GoFundMe page says family members have stepped up to help when they could, “but years of lost income have taken a toll on their finances,” and that the money raised would be used to alleviate some of the financial burden Donna faces. The page reports that over $20,700 has been raised as of Monday.

Michigan’s Aimee Stephens, flanked by wife Donna at left and ACLU attorney Ria Tabacco Mar, greets well-wishers outside the U.S. Supreme Court on Tuesday after the justices heard arguments in her case. Rally-goers outside the court chanted her name as she left the building.

“Sadly it appears that Aimee will never see the result of her valiant and difficult fight for transgender rights,” reads the page, started by John Pedit of Ypsilanti.

“The response has been overwhelming. We are very thankful for everyone's generosity and expressions of support and love. Aimee continues in hospice. She has moments of clarity. She is thankful and gets peace from the comments that have been shared.”

Chase Strangio, the ACLU's deputy director for Trans Justice, said it's been "devastating to learn about Aimee’s declining health."

"The entire ACLU family is thinking of both Aimee and her wife Donna. We will continue to seek their guidance on the type of support they want and need. An opportunity to share a positive message with Aimee — a woman who has inspired millions — should be announced soon," Strangio said.

"No matter what the Supreme Court decides, Aimee has earned a place in history. I have been honored to be on her team and to learn from her and her incredible advocacy.”