On Wednesday, the U.S. Court of Appeals for the Sixth Circuit handed down a massive victory for transgender worker. Title VII’s nondiscrimination protections on the basis of sex, the court ruled, necessarily protect people on account of their gender identity as well.
The case revolves around R.G. & G.R. Harris Funeral Homes in Michigan, whose owner, Thomas Rost, fired employee Aimee Stephens after she announced she would be transitioning and intended to follow the funeral home’s female dress code. A lower court had ruled in Rost’s favor, declaring that the Religious Freedom Restoration Act allowed him to engage in such discrimination. The Sixth Circuit decision overturns that ruling, declaring that the discrimination was clearly illegal under Title VII of the Civil Rights Act and that RFRA does not protect Rost’s actions.
Gender identity and sex cannot be separated
Because one’s gender identity (i.e. their status as being transgender or not) is, on its face, a different vector of identity than their sex, the lower court had agreed that Stephens’ firing was illegal because it depended on sex stereotypes, but not because she was transgender. The Sixth Circuit ruling rejects that reasoning, observing, “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.” Stephens was not fired because she refused to follow the funeral home’s dress code, the decision explains, but because “she refused to conform to the Funeral Home’s notion of her sex.”
Gender identity may be different, but it is still inextricably tied to sex:
First, it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex…Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens’s sex impermissibly affected Rost’s decision to fire Stephens.
The decision also cites a 2008 case regarding transgender discrimination that makes one of the most compelling arguments for this reasoning. In Schroer v. Billington, U.S. District Judge James Robertson pointed out that if an employee were fired for converting their religion, a court would clearly conclude it was a case of discrimination “because of religion.” Thus, a person who is discriminated against because of transitioning their sex is clearly being discriminated against because of their sex.
Rost openly said that he had fired her because she was “no longer going to represent himself [sic] as a man” and “wanted to dress as a woman.” He believes that “the Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex” and that “the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman.” This clearly demonstrates that his decision to fire Stephens was motivated by her sex. “Gender (or sex) is not being treated as ‘irrelevant to employment decisions’ if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision,” the decision explains. Rost also admitted that he did not fire her for any performance-related issues.
The Sixth Circuit had previously ruled in favor of a trans plaintiff in a discrimination case, but had stopped short of declaring that one’s transgender status fell under the classification of sex. Plenty of other courts had referred to that older case as pointing to that conclusion, however, which was not lost on the panel current considering Stephens’ case. “Such references support what we now directly hold: Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”
The funeral home had countered with the argument that being transgender is not unique to one biological sex, but the court was not convinced. “Because an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex — no matter what sex the employee was born or wishes to be.”
The “religious freedom” argument
Rost argued that because he fired Stephens because of his religious beliefs, he should be protected by the Religious Freedom Restoration Act (RFRA) in much the same way that the Supreme Court determined that RFRA protected Hobby Lobby from having to offer contraception coverage to female employees. He argued that Stephens would somehow “create distractions” for people who are grieving and also said that if he were required to violate his faith by employing Stephens, it would force him to leave the funeral industry. This is in spite of the fact that the funeral home is not religious in nature, serving people of all faiths and not displaying symbols of any particular religion.
The court was not sympathetic to Rost’s presumption that clients of the funeral home would be somehow “distracted” by Stephens. First of all, he provided no proof that they would be. But moreover, “a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.” A business can’t illegally discriminate just because its customers would want it to. “We refuse to treat discriminatory policies as essential to Rost’s business — or, by association, his religious exercise,” the decision quips.
The panel also disagreed with the lower court that requiring Rost to allow Stephens to wear clothing matching her gender identity constituted a substantial burden under RFRA. “Tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.” Indeed, the decision goes on to conclude, “At bottom, the fact that Rost sincerely believes that he is being compelled to make such an endorsement does not make it so.”
In ruling in Rost’s favor, the lower court had suggested that there were less restrictive ways the law could have been enforced, such as requiring a gender-neutral dress code. The Sixth Circuit panel found this unreasonable, because even though Rost objected to Stephens dressing as a woman, “the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation.” For example, he complained that she would disrupt female clients’ healing process because they would have to “share a bathroom with a man dressed up as a woman.” Rost’s lawyers even admitted that he would object to her “acting as a woman” in the workplace.
Moreover, the decision notes that in the Hobby Lobby case, Justice Samuel Alito explicitly wrote that RFRA’s protections should not justify discrimination under Title VII:
The Court seemingly recognized Title VII’s ability to override RFRA in Hobby Lobby, as the majority opinion stated that its decision should not be read as providing a “shield” to those who seek to “cloak as religious practice” their efforts to engage in “discrimination in hiring, for example on the basis of race.” As the Hobby Lobby Court explained, “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” We understand this to mean that enforcement actions brought under Title VII, which aims to “provid[e] an equal opportunity to participate in the workforce without regard to race” and an array of other protected traits, will necessarily defeat RFRA defenses to discrimination made illegal by Title VII.
Rost and the funeral home are represented by the Alliance Defending Freedom (ADF), an anti-LGBTQ hate group fighting to allow for discrimination against LGBTQ people across the country. After winning in the lower court, ADF had bragged that the funeral home had “buried” the federal government, but after Wednesday’s ruling, the group was singing a different tune, objecting to how the ruling gave the government the right to “strong-arm” Rost.
In a statement, ADF Senior Counsel Gary McCaleb objected to the ruling by trying to frame the case as only being about enforcing dress codes. “Today’s decision misreads court precedents that have long protected businesses which properly differentiate between men and women in their dress and grooming code policies.,” he said. “This opinion instead rewrites federal law and is directly contrary to decisions from other federal appellate courts. We are consulting with our client to consider their options for appeal.”
Despite how sweeping a victory this is for transgender workers, that appeal could wipe it all away. The Sixth Circuit is very conservative, and if they reconsider the case “en banc” — i.e, with a larger panel than the three judges who issued this week’s ruling — it could go a very different way.