Metro Weekly

Transgender woman’s lawyers ask Supreme Court to decline to hear appeal

ACLU says court should allow decision finding a funeral home director unlawfully fired a trans employee to stand

Aimee Stephens – Photo: Charles William Kelly.

Lawyers for a transgender woman who was fired from a Michigan funeral home have asked the Supreme Court not to hear the funeral home director’s appeal.

The U.S. 6th Circuit Court of Appeals ruled in March that Thomas Rost, the owner of the Michigan-based chain R.G. & G.R. Harris Funeral Homes, unlawfully discriminated against former employee Aimee Stephens and violated her rights under Title VII when he fired her due to her failure to adhere to gender norms or stereotypes of how a woman is supposed to appear, dress, and act.

Rost’s lawyers, with the right-wing legal group Alliance Defending Freedom, and attorneys general and governors from at least 16 states, have appealed the decision and asked the Supreme Court to rule that federal law does not prevent employers from firing LGBTQ workers because of personal religious or moral objections to their sexual orientation or gender identity.

The U.S. Department of Justice submitted its own brief on Wednesday arguing that federal civil rights law does not protect LGBTQ people from discrimination.

That brief echoed an earlier one that the DOJ had submitted urging the 2nd Circuit Court of Appeals to reject a lawsuit brought on behalf of a deceased gay skydiving instructor’s estate against his former employer.

But Stephens’s lawyers, with the ACLU, argue in their brief that the high court should decline to hear Rost’s appeal, thereby allowing the 6th Circuit’s decision to stand.

The ACLU argues that the Stephens case is not the right vehicle for resolving issues of whether transgender people are protected under the nation’s civil rights laws.

The U.S. Equal Employment Opportunity Commission has also made similar arguments in their own brief submitted to the court.

“Since Price Waterhouse, the circuit courts have uniformly agreed that all people, including those who are transgender, may bring sex discrimination claims under Title VII if their employers discriminate against them because of sex stereotypes related to behavior and appearance,” the ACLU’s brief reads.

“Applying that principle here, the court below first held that the funeral home discriminated against Ms. Stephens on the basis of sex when it fired her for failing to conform to her employer’s expectations of how men and women should look and behave. It then held in the alternative that discrimination based on a person’s transgender status is sex discrimination.”

Because the 6th Circuit found in Stephens’s favor based on Rost’s stereotypes about how women should look, behave, dress, and act, and Stephens’ failure to adhere to those norms — which courts have ruled are a form of discrimination under Title VII — the ACLU says the Supreme Court does not have to, and should not, determine once and for all whether anti-transgender discrimination is inherently a form of sex discrimination under Title VII.

“This Court has made clear that Title VII encompasses disparate treatment motivated by sex stereotypes about an employee’s appearance and behavior,” the ACLU writes. “Thus, even if this Court were to resolve the asserted circuit split regarding status-based claims in Petitioner’s favor, the result in this case would not change. The Court should not grant certiorari to decide a question that will not affect the judgment below.”

Alliance Defending Freedom has previously argued that the court should take up the case to resolve whether the court’s precedent “prohibits employers from applying sex-specific policies according to their employee’s sex rather than their gender identity.”

But the ACLU argues that, because the 6th Circuit found that Rost fired Stephens based on multiple sex stereotypes, and not just those related to Harris Funeral Homes’ dress code, the case is not an ideal vehicle for resolving that issue either.

“Mr. Rost’s concern was not about which dress code Ms. Stephens would follow, but about having a woman working for him who would not ‘look like a woman.’ He objected not only to Ms. Stephens dressing in a traditionally feminine way, but also to her using a traditionally feminine name or otherwise looking or acting in any way he believed only women should,” the ACLU’s brief reads.

“Mr. Rost was concerned that Ms. Stephens’s appearance and behavior would be perceived as unacceptably masculine for a woman, regardless of how she dressed,” the brief continues. “He anticipated that if Ms. Stephens wore traditionally feminine clothing, she would still be perceived as masculine, and that would be ‘distracting to my clients.'”

The ACLU has noted that five federal appeals courts, as well as dozens of lower federal courts, have found that anti-transgender discrimination is a form of sex discrimination that violates federal law.

Given that legal precedent, James Esseks, the director of the ACLU’s LGBT and HIV Project, has been highly critical of the Trump administration’s recent proposal that would deny recognition of transgender and gender-variant people by defining gender as fixed and binary.

“No administrative rules, such as those the administration is reportedly considering, can override all the federal court rulings that have found anti-trans discrimination to be a form of sex discrimination that violates federal law,” Esseks wrote in an essay. “The issue now sits with the Supreme Court. It should recognize the rightness of those earlier court decisions and allow the ruling in Aimee’s case to stand. Her story shows why it’s simply wrong to fire someone because they are transgender.”

Stephens penned her own account of her transition and firing, noting that, prior to her transition, her performance reviews were had always been positive.

“Deciding to share my identity with my employer followed a lifelong journey to understand my gender. I knew, from around five years old, that I was different, even though there was no internet to help make sense of what was going on with me,” she writes. “One day, in November 2012, I felt that I couldn’t go any further. I couldn’t come out at work — I had overheard coworkers make derogatory remarks at times and I didn’t feel I could face them. But I also couldn’t keep living two lives. I felt ready to kill myself, because I couldn’t think of a way out….

“The first coworkers I told were ready to support me, which made me feel so much better. A few months later, I handed my boss the letter while sitting in the chapel of the funeral home. It said that after an upcoming vacation, I would start using the name Aimee and following the home’s dress code requirements for women. My boss didn’t say anything at the time,” Stephens writes. “A couple weeks later, he came up to me and said, ‘This isn’t going to work.’ He handed me a letter with a severance package.

“I had given almost seven years of my life to the funeral home, offering countless families comfort when they needed it most. Being discarded so coldly was hard to understand,” she adds. “I brought this lawsuit in part to extend that support to all transgender people. No one should be fired because of who they are. I hope the Supreme Court sees the same.”

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