By Kati Massey, Senior Editor
In this time of uncertainty—when the Supreme Court has ceased hearing arguments amid COVID-19 concerns—it seems like a good opportunity to look back at the cases already argued, especially those whose decisions we are still eagerly awaiting. One of the most highly anticipated is that of R.G. & G.R Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.
In 2008, Respondent Aimee Stephens began working for R.G. & G.R. Funeral Homes as Anthony Stephens, a male-presenting individual.[i] After working as a Funeral Director and Embalmer at the funeral home for more than five years, she gave the funeral home operator, her boss, a letter explaining her struggles with gender identity disorder.[ii] The letter went on to detail that she had decided to “become the person that [her] mind already is,” and begin presenting as a female.[iii] Two weeks later, her boss fired her, later testifying that he did so because Aimee wanted to dress like a woman and was no longer going to represent himself as a man.[iv] Her boss further stated that it is “wrong for a biological man to deny his sex by dressing as a woman.”[v] Aimee, not surprisingly, brought the case arguing she was fired because of her sex.
This case questions whether Title VII of the Civil Rights Act of 1964 prohibits employee discrimination of transgender individuals based on sex stereotyping or transgender status.[vi] The Court below, our very own Sixth Circuit Court of Appeals, decided that it did on both counts.[vii]
Title VII prohibits employers from discriminating against individuals on the basis of that individual’s race, color, religion, sex, or national origin.[viii] Although similar plaintiffs to Aimee have been denied protection under Title VII because the court refused to read “transgender” into Title VII, the Sixth Circuit held that the funeral home discriminated under Title VII because the funeral home fired Aimee based on sex (while also reading “transgender” into the statute).[ix]
This was determined using Price Waterhouse, precedent in which the 1989 Supreme Court established that Title VII’s “’because of…sex” means that gender must be irrelevant to employment decisions.” (Hint: firing someone because you don’t think they should wear a dress makes gender relevant). Price Waterhouse found that a female employee could properly claim a Title VII violation if she faced an adverse employment decision because she failed to act womanly enough.[x] Thus, Title VII protection for “sex stereotyping” was born.
The Sixth Circuit explained that an employer violates Title VII where the discrimination would not have occurred but for the person’s sex, and “stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.”[xi] Because the funeral home operator admittedly fired Aimee because he did not think she was going to act as someone with birth-assigned gender should, I do not see how the Sixth Circuit could have gotten it wrong.
Although, as we are all familiar, the Supreme Court has more conservative justices at this time; therefore, it is not unthinkable to assume the Court could set aside all precedent and find for the funeral home. If the Supreme Court reverses the Sixth Circuit’s decision, they will have to defend this blatant attempt to outright deny transgender individuals protection under Title VII even though, if a cis-gendered individual brought the same claims, the Court would have properly acknowledged the evidence in favor of the Respondent.
Footnotes
[i] EEOC v. R.G., 884 F.3d 560, 568 (6th Cir. 2018).
[ii] Id.
[iii] Id.
[iv] Stephens Br. 9.
[v] Id.
[vi] R.G., 884 F.3d at 567.
[vii] Id.
[viii] 42 U.S.C. 2000e-2(a)(1).
[ix] R.G., 884 F.3d at 567.
[x] Id. at 571-72.
[xi] Id. at 572.