Federal Appeals Court Revives Michigan Transgender Bias Suit

Discrimination based on a person’s transgender status is discrimination based on sex and is prohibited under Title VII of the Civil Rights Act of 1964, the 6th U.S. Circuit Court of Appeals has ruled.

The decision in EEOC v R.G. & G.R. Harris Funeral Homes, Inc. reinstated a funeral director’s transgender bias claim against the Michigan funeral home that had fired her.

In its ruling, the 6th Circuit rejected the funeral home’s argument that it was protected by the Religious Freedom Restoration Act (RFRA). The funeral home’s owner claimed that employing the director, who was biologically male but was transitioning to female, went against his Christian beliefs.

The decision comes on the heels of two rulings out of the 2nd U.S. Circuit Court of Appeals and 7th U.S. Circuit Court of Appeals. Both of those decisions held that discrimination based on sexual orientation is prohibited under Title VII. 

Fired Funeral Director

Aimee Stephens, a funeral director at R.G. & G.R. Harris Funeral Homes, was born male. She was fired from her job after informing the funeral home’s owner that she intended to transition from male to female and intended to present as a female at work. 

After being discharged, Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC), asserting discrimination based on sexual orientation. The EEOC investigated and filed suit against the funeral home in the Eastern District of Michigan, alleging sex discrimination in violation of Title VII. The funeral home filed a motion to dismiss the EEOC’s lawsuit, arguing there was no valid sex discrimination claim. The funeral home maintained the RFRA precluded the enforcement of Title VII because doing so would “substantially burden” the funeral home owner’s exercise of his religious beliefs. 

The Eastern District of Michigan dismissed the EEOC’s complaint, holding that transgender status is not a protected trait under Title VII and that the EEOC could not file a discrimination claim based solely on the plaintiff’s transgender and/or transitioning status. In so ruling, the Eastern District accepted the funeral home’s argument that the RFRA applied.

On appeal, the 6th Circuit reversed. According to the Court, the Eastern District improperly held that a claim cannot be pursued under Title VII based on transgender/transitioning status.

“Stereotypical Notions”

In its decision, the 6th Circuit explained that sexual stereotyping and transgender discrimination are “based on the non-conformance of an individual’s gender identity and appearance with sex-based norms or expectations.” As a result, discrimination because of an individual’s transgender status “is always based on gender stereotypes: the stereotype that individuals will conform their appearance and behavior – whether their dress, the name they use, or other ways they present themselves – to the sex assigned them at birth,” the Court said.

According to the 6th Circuit, “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.” The Court explained that an employer cannot discriminate based on transgender status without imposing its stereotypical notions of how “sexual organs and gender identity ought to align” and there is “no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity.”

Rejecting the funeral home’s claim that the RFRA precluded enforcement of Title VII, the 6th Circuit pointed out the RFRA prohibits the government from “substantially burdening” a person’s exercise of religion, unless the government demonstrates the burden is:

• in furtherance of a compelling governmental interest, and

• the least restrictive means of furthering that compelling governmental interest.

In this case, the 6th Circuit said the funeral home’s argument that the “burden” in connection with Stephens presenting as female – namely that it (1) would be a “distraction” for the deceased’s family members and (2) would force the funeral home to violate the owner’s faith – was not “substantial” within the meaning of RFRA. 

Addressing the “distraction” argument, the 6th Circuit said a religious claimant “cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.” Regarding the “faith” argument, the Court explained that allowing Stephens to wear attire that reflects a conception of gender that is at odds with the owner’s religious beliefs was not a substantial burden because “tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.” The Court added, “[T]he fact that [the funeral home owner] sincerely believes that he is being compelled to make such an endorsement does not make it so.” 

In conclusion, the 6th Circuit noted that even if a substantial burden was involved, enforcing Title VII was the least restrictive means of furthering the compelling interest of preventing workplace discrimination. “Where the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme’s objectives is through its enforcement,” the Court wrote.