Feds Argue Against Shield for Transgender Workers

(CN) – The Department of Justice is turning to the U.S. Supreme Court to challenge a ruling that a funeral home illegally fired a transgender woman for disclosing her male-to-female transition and planning to dress in a female uniform at work.

The DOJ’s brief, filed Thursday, argues that the Sixth Circuit erred in reversing a district court decision that found R.G. & G.R. Harris Funeral Homes had a right to fire Aimee Stephens because keeping her would interfere with its “ability to conduct business in accordance with its sincerely held religious beliefs.”

A unanimous three-judge panel of the Cincinnati-based appeals court found that “discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender or transitioning status, is illegal under Title VII” of the Civil Rights Act.

The DOJ, however, claims that the Sixth Circuit incorrectly concluded that the Garden City, Michigan-based funeral home did not discriminate against Stephens by “applying its sex-specific dress code based on Stephens’s biological sex, rather than Stephens’s gender identity.”

Stephens was fired in 2013 after telling her employer that she was going to undergo gender reassignment surgeries, and that after a planned vacation she would be wearing the uniform required for female employees upon returning to work.

Stephens had worked with R.G. & G.R. Harris since 2007, most recently as a funeral director.

R.G. & G.R. Harris claimed at the time Stephens was fired that allowing her to present as female would have “disrupted the grieving and healing process’ of ‘clients mourning the loss of their loved ones,’” and that “female clients and staff would be forced to share restroom facilities with Stephens.”

“In any event, the court of appeals’ conclusion that gender-identity discrimination categorically constitutes sex discrimination under Title VII is incorrect,” according to the DOJ brief, which further states that “the ordinary meaning of ‘sex’ does not refer to gender-identity.”

The brief also asserts that it “is highly doubtful that enforcement of a sex-specific dress code by itself constitutes discrimination on the basis of gender identity, given that the code applies equally to employees based on their sex regardless of their gender identity.”

Jason Lemieux, director of government affairs for the Center for Inquiry, said in a statement Thursday that it is “wrong to fire an employee because they happen to be a member of the LGBTQ community.”

“CFI has long worked to strengthen federal protections against discrimination based on sexual orientation or gender identity,” Lemieux said. “Here, the judge was spot on when she said it is impossible to fire someone for being transgender without firing them for a reason related to their gender. That’s exactly what Title VII exists to prevent.”

Nick Little, CFI’s vice president and general counsel, added, “This administration cannot wait to use the new, religious right majority on the Supreme Court created by Justice Kavanaugh’s appointment to roll back any advances made by the LGBTQ community.”

Justice Brett Kavanaugh was confirmed to the Supreme Court in a 50-48 vote earlier this month after a contentious confirmation process, including hearings before the Senate Judiciary Committee over allegations of sexual misconduct by Dr. Christine Blasey Ford.

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