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6th Circuit First Appellate Court to Declare Transgender or Transitioning Status Discrimination is Sex Discrimination Under Title VII

In a milestone decision, the 6th Circuit Court of Appeals held discrimination based on an employee’s transgender or transitioning status violates Title VII. In addition, the court held as a matter of law that a religious employer “cannot rely on customers’ presumed biases to establish a substantial burden” under the Religious Freedom Restoration Act (RFRA). Thus, the employer’s sincerely held religious beliefs did not free it from the proscriptions of Title VII.

Transgender Symbol Pink and BlueThe plaintiff, Aimee Stephens, was born a biological male. She worked at R.G. & G.R. Harris, a nondenominational funeral home, for several years as a funeral director and embalmer, always presenting as a man. After deciding to transition from male to female, she informed the funeral home’s owner that she had struggled with her gender identity her entire life, and recently decided to have sex reassignment surgery. To begin her transition, she would live and work as a female. The owner, a devout Christian, terminated Aimee’s employment two weeks later. Making no effort to conceal his motive, the owner testified he terminated Aimee, formerly Anthongy, because “he was no longer going to represent himself as a man. He wanted to dress as a woman.” According to the owner, if he allowed Aimee to dress as a woman, he would be complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”

Following her termination, Aimee filed an EEOC charge. The EEOC found probable cause, then commenced a federal lawsuit when conciliation efforts failed. The complaint alleged the funeral home terminated Aimee’s employment because of her transgender or transitioning status and her refusal to conform to sex-based stereotypes.

Both parties moved for summary judgment. The funeral home argued, among other things, that requiring it to permit Aimee to work as a woman would place an unjustified substantial burden on the owner’s sincerely held religious beliefs, in violation of the RFRA. The district court granted the funeral home’s motion. But the 6th Circuit overturned the decision on appeal.

The 6th Circuit panel held transgender discrimination is sex discrimination under Title VII. In so holding, it reasoned that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The court illustrated this point by calling attention to the obvious: no employer would terminate a female employee for complying with the women’s dress code. In addition, the court noted discrimination based on transgender status is necessarily discrimination based on “gender noncomformity,” a type of discrimination that is already proscribed by the law. The court reasoned “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.”

The court also rejected the funeral home’s RFRA defense on grounds that the funeral home did not show the application of Title VII substantially burdened the owner’s sincere religious exercise.  The court explained that “bare compliance with Title VII—without actually assisting or facilitating [Aimee’s] transition efforts—does not amount to an endorsement” of Aimee’s views on gender identity. That the owner felt he was being compelled to endorse Aimee’s transition did not make it so. Finally, the court held that the EEOC established that enforcing Title VII was the least restrictive means of furthering its compelling interest in eradicating workplace discrimination against Aimee.

This decision is a huge win for the transgender community, which continues to face substantial barriers to employment. Until and unless the Supreme Court says otherwise, transgender employees in Kentucky, Michigan, Ohio, and Tennessee no longer need to prove that the adverse employment action they suffer is because of sex-stereotyping or nonconformity with gender norms. Employers should revise their anti-discrimination and anti-harassment policies to prohibit discrimination and harassment on the basis of gender identity.

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