Yesterday in EEOC v. R.G. &. G.R. Harris Funeral Homes, the Sixth Circuit held that “Title VII protects transgender persons because of their transgender or transitioning status” as a form of sex discrimination. In comprehensive and unequivocal language, the court also rejected the Funeral Home’s asserted RFRA defense that employing Stephens while she represented herself as a woman would constitute an unjustified substantial burden upon the owner’s sincerely held religious beliefs. The court remanded the case with the instruction that the “EEOC should have the opportunity to prove that the Funeral Home violated Title VII by firing Stephens because she is transgender and transitioning from male to female.”
Aimee Stephens was terminated from R.G. &. G.R. Harris Funeral Homes shortly after she informed its owner and operator, Thomas Rost, that she intended to transition from male to female and would represent herself and dress as a woman while at work. The EEOC brought suit charging the Funeral Home with violating Title VII by “(1) terminating Stephens’s employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes; and (2) administering a discriminatory-clothing-allowance policy.” During trial, Rost testified that he fired Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.” Rost also stated his belief that “authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit ‘in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.’”
Finding for the EEOC, Judges Karen Nelson Moore, Helene White, and Bernice Donald wrote that “the unrefuted facts show[ed] that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex” and that the Funeral Home discriminated against its female employees by not providing the clothing benefit it afforded to male employees.
Following the logic in Price Waterhouse and Smith v. City of Salem, the court held that discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex. In strong, clear language, the court deemed it “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,” in violation of Title VII. At one point, the court stated, “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.” To flesh out its argument, the court also cited recent cases holding Title VII protects against discrimination based on sexual orientation, including Hively from the Seventh Circuit and Zarda from the Second Circuit.
The court then held that in applying Title VII’s proscriptions against sex discrimination, the Funeral Home was not entitled to the ministerial exception under Title VII or a defense under RFRA for a substantial burden of Rost’s religious exercise. The court found the Funeral Home’s claim that Stephens’s transition would “present a distraction that [would] obstruct Rost’s ability to serve grieving families” unsupported at best, and asserted that “bare compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—[did] not amount to an endorsement of Stephens’s views.” The court also went a step further in its RFRA analysis. (“in the interest of completeness”), finding that even if a religious exercise were substantially burdened, enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination, and would survive strict scrutiny.
This compelling argument made by the Sixth Circuit is the view of the EEOC and is increasingly becoming a trend in federal courts. But as with the question of whether Title VII proscribes discrimination based on sexual orientation, it is not the view of the whole government. Last October, Attorney General Sessions sent a memo to all federal prosecutors reversing the Obama-era policy that transgender workers were considered protected from discrimination under Title VII. The memo stated that Title VII “does not encompass discrimination based on gender identity per se, including transgender status.”