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Michigan woman's case wins landmark transgender ruling

Melissa Nann Burke
The Detroit News

A Michigan woman waged a legal fight on behalf of transgender Americans for seven years after she was fired from her job as a funeral home director in Garden City.

Aimee Stephens won that battle Monday — a month after her death — when the U.S. Supreme Court ruled 6-3 that federal law prohibits employment discrimination based on sexual orientation or gender identity. 

Her supporters celebrated the landmark victory and mourned that she didn't live to learn of the decision. They said their next goal is to amend Michigan's civil rights law to explicitly protect LGBTQ people from all forms of discrimination.

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 in 2019 after the justices heard arguments in her case.

"For the last seven years of Aimee’s life, she rose as a leader who fought against discrimination against transgender people, starting when she was fired for coming out as a woman," said Donna Stephens, who was married to Aimee for 20 years.

"I am grateful for this victory to honor the legacy of Aimee, and to ensure people are treated fairly regardless of their sexual orientation or gender identity.” 

One of her attorneys for the American Civil Liberties Union, Chase Strangio, predicted the decision would have ripple effects across other areas of federal law, including housing, education and health care. 

"I'm so devastated that Aimee and Don didn't live to see it. Didn't live to see that their trauma, what they suffered, led to a sweeping affirmation of LGBTQ rights for everyone," Strangio told reporters, referring to another plaintiff, Donald Zarda, who died in 2014.

After years of health problems, Stephens died May 12 from complications related to kidney failure.

Stephens was fired from her job at R.G. and G.R. Harris Funeral Homes in 2013 after informing her boss she was transitioning from male to female and would start abiding by the business' dress code for women. 

The owner of Harris Homes, Thomas Rost, said Stephens’ dress would become a distraction for grieving families. His lawyer argued the funeral home was within its rights to insist that Stephens adhere to its dress code for male employees during work hours. 

Tthe high court concluded Monday that Title 7 of the Civil Rights Act of 1964, which bars workplace discrimination because of sex, protects gay and transgender workers.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex," Justice Neil Gorsuch wrote for the majority. 

"Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

Chief Justice John Roberts and the court's four liberal justices joined Gorsuch's opinion.

"This is as big a win as the LGBT rights bar could have asked for," said Sam Bagenstos, who teaches constitutional law at the University of Michigan Law School.

"The court was very clear and unqualified in saying that Title 7 by banning sex discrimination necessarily bans discrimination against gays, lesbians and transgender people. That’s everything that the plaintiffs asked for here."

Michigan for years has had a dispute over whether the state's Elliott-Larsen Civil Rights Act, which also bans discrimination because of sex, protects gay and lesbian and transgender people against bias. 

The Michigan Civil Rights Commission in 2018 held that such discrimination was illegal under the state law. The commission has asked Attorney General Dana Nessel for an opinion.

Michigan's statute has similar language to the federal Title 7, so the same analysis that the Supreme Court applied to Title 7 probably ought to apply to the Elliott-Larsen statute, Bagenstos said.

"It’s now up to the Michigan courts to actually say that," he said.

He noted that the Supreme Court's ruling wasn’t based on its understanding of what Congress intended at any particular time, but instead on an analysis that discrimination on the basis of sexual orientation or gender identity necessarily involves sex discrimination. 

"All of those arguments would be the same arguments under the Elliott-Larsen Act," he said. 

Caledonia attorney John Bursch, the former Michigan solicitor general, represented Harris Homes and Rost, who was disappointed in the ruling, he said.

Bursch cited the dissent of Associate Justice Samuel Alito, who wrote that there “is only one word for what the court has done today: legislation."

"That's when you amend a law to say something that it doesn't mean. There was no one for the first 50 years after Title 7 was enacted that ever would have interpreted it this way," Bursch said. 

"For them to wave a magic wand and say, 'oh no, it means something else,' makes it difficult for businesses and everyday Americans to be able to rely on the word that lawmakers pass." 

He predicted the ruling would set up the country for more "cultural, courtroom struggles" with activists trying to take the new protections and try to "ram them down the throats of people of faith and moral convictions."

"Disagreement of what it means to be a male or female or what marriage means is not discrimination. It's simply diversity of thought, which is something that we've always recognized," Bursch said.

He noted Gorsuch's opinion talked about keeping sacred and protecting religious convictions.

"And so the battlefield lines are simply going to shift, and now when such and such happens, we're going to be talking about whether religious convictions prevail or do activists get to enforce their view of human sexuality and marriage on everyone?" Bursch said. "It's just going to be the beginning of a long period of uncertainty."

Stephens' estate could recover compensatory and perhaps other damages for the alleged violation of her rights, legal experts said. 

Bursch said it's up to the estate whether it wants to try to "further punish Rost and Harris Funeral Homes for having acted in compliance with the law as it was interpreted for more than 50 years."

Nessel, who represented a same-sex Michigan couple before the Supreme Court when the justices held that gay couples had a constitutional right to marry, hailed Monday's decision as groundbreaking but "not the end of the story."

She said the court's decision was relatively narrow as it involved only Title 7 in federal civil rights law and applies only to employment decisions.

"The court left for another day decisions regarding housing, education, public accommodations and anything else of the kind. And it left to future cases how religious liberty doctrines interact with Title VII," Nessel said in a statement.

"What this means is that we must continue to work together for equal protection under the law for all Michiganders.” 

Two of Michigan’s first openly gay lawmakers, state Sen. Jeremy Moss, D-Southfield, and Rep. Jon Hoadley, D-Kalamazoo, called on the Republican-led Legislature to take up bills that would expand the protections in the Elliott-Larsen law.

“This decision — from a conservative-led court, no less — ought to propel the Michigan Legislature to carry on this work and extend these employment protections to those in Michigan facing housing and public accommodation discrimination," they said in a statement.

"We welcome our colleagues to join us in celebrating Pride Month and embracing equality.”

mburke@detroitnews.com