Wednesday brought a raft of good news, legally speaking: A federal appeals court ruled for a transgender plaintiff in a workplace discrimination suit, and Lambda Legal filed a complaint that could lead to yet another LGBTQ rights blockbuster case.
The Sixth Circuit, the arbiter of federal law for Kentucky, Michigan, Ohio and Tennessee, summarized the scenario it faced deftly in the case decided Wednesday:
Aimee Stephens (formerly known as Anthony Stephens) was born biologically male.1 While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. (“the Funeral Home”), a closely held for-profit corporation that operates three funeral homes in Michigan. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work.
The defendant-employer wasn’t shy about his reasons for firing Stephens at the time—or even in court.
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 avers that he “sincerely believe[s] that the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if [he] were to permit one of [the Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the] organization” or if he were to “permit one of [the Funeral Home’s] male funeral directors to wear the uniform for female funeral directors while at work.” In particular, Rost believes 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.”
The Sixth Circuit made short work of Rost.
Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim. [The Religious Freedom Restoration Act] provides the Funeral Home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden Rost’s religious exercise, and even if it did, the EEOC has shown that enforcing Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination.
The Sixth Circuit’s ruling is a landmark one for transgender rights. “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex,” wrote the panel. That’s a sentence to savor.
Lambda Legal is urging the Eighth Circuit to join the Second and Seventh Circuits in acknowledging that discrimination on the basis of sexual orientation in the workplace is sex discrimination. Their vehicle in this case concerns a rescinded job offer.
Mark Horton had already signed an offer letter, given notice at his current employer, and emailed with his then-excited future employer, St. Louis-based Midwest Geriatric Management (MGM), about start dates before an offhand remark revealed his sexual orientation. After learning that Horton is gay and partnered, MGM pulled the professional equivalent of ghosting, behaving as if no commitment had been made. Lambda argues that this is sex discrimination.
If Lambda succeeds, that will make its third federal appellate success on this topic.
“We have taken huge strides in ensuring that federal courts across the country recognize that sexual orientation discrimination is a form of sex discrimination prohibited by federal law. Thanks to the landmark decisions by the Second and Seventh Circuits, we have the wind on our backs and progress towards the correct understanding that the Civil Rights Act covers LGBT workers now is as inexorable as it is inevitable,” said Greg Nevins, Employment Fairness Project Director for Lambda Legal. “The only metric employers or prospective employers should use is: is the candidate or employee qualified? Mark’s case was textbook discrimination by any standard. It was all systems go until MGM realized Mark is gay and withdrew the job offer.”
If the Eighth Circuit follows the Second and Seventh circuits, that’ll make 16 states in which an employee can sue an employer for discriminating on the basis of sexual orientation under federal law. Each victory is critical not only for the populations affected but as precedent to sway other circuits, to create momentum. Moreover, they lay the groundwork for rulings extending sex discrimination to gender identity, as the Sixth Circuit did Thursday.