Aimee Stephens is a transgender woman; she was born a male. When Stephens was originally hired as a Funeral Director at R.G. & G.R. Harris Funeral Homes, Inc., she presented as a man and went by her then-legal name, Anthony. During the course of her employment, Stephens announced her intention to transition from male to female and start presenting as a woman, including at work. Shortly thereafter, she was terminated. The Funeral Home’s owner alleged he sincerely believes “the Bible teaches that a person’s sex is an immutable God-given gift” and it would be “violating God’s commands” if he were to permit one of the Funeral Home’s employees to “deny their sex while acting as a representative of the organization” or wear the uniform of the opposite sex while at work. After she was fired, Stephens filed a lawsuit alleging that she was terminated in violation of Title VII due to her sex and gender identity.

The Sixth Circuit agreed, noting that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.” Title VII includes protections against sex stereotyping, and “transgender discrimination is based on the non-conformance of an individual’s gender identity and appearance with sex-based norms or expectations.” Though the Court never made transgender status its own protected characteristic (like race, national origin, and others enumerated by statute) in and of itself, it is clear that it indisputably qualifies under the existing gender-based protections. The Court continued, “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.” Like many other courts that have r ecently considered the issue, the Sixth Circuit concluded that “there is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.”

Title VII’s prohibition against discrimination means that “gender must be irrelevant to employment decisions.” But the Funeral Home failed to establish a non-discriminatory basis for Stephens’s termination, in fact admitting that she was fired because Stephens “was no longer going to represent himself as a man” and “wanted to dress as a woman.” Clearly, gender is not being treated as “irrelevant to employment decisions” if an employee’s “attempt or desire to change his or her sex leads to an adverse employment decision” as it did with Stephens.

The Funeral Home also argued that requiring it to continue to employ Stevens was in violation of the Religious Freedom Restoration Act because it constituted an unjustified substantial burden on the owner’s sincerely held religious beliefs. The Sixth Circuit ultimately rejected this argument as well. The Funeral Home’s argument was based on its assumption that Stephens (post-transition) would present a distraction for grieving families, but “a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under the RFRA.” Further, the Court reasoned that requiring the Funeral Home to “tolerat[e] Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.” Though the owner may have genuinely believed that by continuing to employ Stephens, he would be supporting and endorsing her views regarding the mutability of sex – which directly contradicted his religious beliefs – his position on that issue di d not make it so. The Sixth Circuit concluded that mandating the Funeral Home’s compliance with Title VII in this case, “without actually assisting or facilitating Stephens’s transition efforts…does not amount to an endorsement of Stephens’s views.” In other words, tolerance is not endorsement.

With this decision, the Sixth Circuit joins the growing number of federal courts (including district courts in the Tenth Circuit, where Oklahoma lies) to conclude that discrimination on the basis of transgender or transitioning status violates Title VII’s prohibition against discrimination on the basis of sex. Regardless of whether they feel that such practices may violate their own religious beliefs, employers should be aware that they may face liability if they act otherwise.

By: Rebecca D. Bullard, rbullard@dsda.com