Letter: Law prohibits employment discrimination for changing sex

The Detroit News
Aimee Stephens, 58, a former funeral home director, was fired from her job in 2013 after telling her boss that she was transitioning from male to female and would begin following the funeral home’s dress code for women. Her lawsuit  alleging workplace discrimination will be heard by the U.S. Supreme Court in early October.

In John Bursch’s Sept. 26 Detroit News op-ed, “Much at stake in transgender Supreme Court case,” he argues that Harris Funeral Homes was right to fire Aimee Stephens when she transitioned from male to female and would no longer adhere to the company’s male dress code. His argument is without merit and is full of logical fallacies, misleading conclusions and, possibly, personal animus towards Stephens.

Bursch’s primary argument is that civil rights laws barring sex discrimination do not protect Stephens from firing because Stephens violated the dress code, applying equally to men and women, by dressing as a woman. Underpinning this assertion is Harris’ belief that sex is immutable and, therefore, Stephens is a man no matter how apparently feminine she appears or what legal recognition the government grants her.

Harris is entitled to hold this belief, but his belief does not supersede United States law.

In the United States, sex is not immutable. All 50 states and the federal government have legal pathways to change one’s sex. This is lawful and backed by science — the primacy of sex at birth is apparent to most, but less so for the intersexed and transgender Americans born each day.

Even if sex were immutable, Harris Funeral Homes would have still broken the law by firing Stephens. That’s because the U.S. Supreme Court found in in 1989 in Price Waterhouse Vs. Hopkins that employment discrimination against someone who doesn’t conform to traditional definitions of sex is still sex-based discrimination.

Bursch asks readers to consider how uncomfortable it might make Harris’ customers or elderly employees to interact with or share a restroom with Stephens now that she is a woman, but there is no basis in law for employment discrimination based on these considerations.

We don’t allow racists to fire minorities or misogynists to fire women, and we shouldn’t allow people holding other legally unsupported views to fire people for similarly hateful and superstitious thinking.

Perhaps most troubling about Bursch’s op-ed is that, in it, he only refers to Stephens by her male name. Transgender people fight their whole lives to establish a consistent identity, and they find it personally demeaning when those who know better continue to identify them with their former name.

The Supreme Court should uphold the law as it stands and find that Harris Funeral Homes unlawfully discriminated against Aimee Stephens by firing her for changing her sex.

To Bursch’s concern: We wouldn’t want the Supreme Court to go around making laws for us now, would we?

Kate Cherry is a transgender woman from Detroit.