Funeral Home Asks US Supreme Court to Hear Appeal of Ruling Asserting Owner ‘Illegally’ Fired Man Who Wanted to Dress as Woman

WASHINGTON — Attorneys for the owner of a funeral home in Michigan have asked the U.S. Supreme Court to accept an appeal of a ruling from the Sixth Circuit Court of Appeals asserting that it was “illegal” under Title VII of the Civil Rights Act for the funeral home to fire a man who wanted to dress as a woman.

“By replacing ‘sex’ with ‘gender identity’ and denouncing sex as a stereotype, the Sixth Circuit brought about a seismic shift in the law. While ‘sex’ views the status of male and female as an objective fact based in reproductive anatomy and physiology, ‘gender identity’ treats it as a subjective belief determined by internal perceptions without ‘a fixed external referent,'” the petition filed Friday by Alliance Defending Freedom on behalf of RG & GR Harris Funeral Homes reads.

“This very case involves freedom-of-conscience concerns. As the district court explained, accepting the EEOC’s claim compels Rost—a devout man of faith—to violate his sincere religious beliefs about the immutability of sex,” it outlines.

As previously reported, Anthony Stephens, who now goes by the name Aimee Stephens, was hired as the funeral director and embalmer for RG & GR Harris Funeral Homes in 2007. In 2013, Stephens informed his employer that he had been diagnosed with gender dysphoria and would therefore desire to wear a woman’s suit for work.

Owner Thomas Rost, who identifies as a Christian and serves on the board of directors for Salvation Army of Metro Detroit, has a company dress code in place, which states that males must wear dark suits and white shirts. Rost reportedly provides two suits for male employees in accordance with the dress code, and would also provide the business jacket and skirt should a woman be hired as well.

Because Stephens sought to wear female clothing, which is a violation of the dress code, and because Rost did not feel comfortable with providing a skirt suit due to his Christian convictions, Stephens was let go. He consequently took the matter to the federal Equal Employment Opportunity Commission (EEOC), which sued Rost with the aid of the ACLU in alleging gender discrimination.

“R.G. employees understand that the dress code requires funeral directors to wear company-provided suits,” attorneys for Rost outlined in a legal brief. “Rost sincerely believes that he would be violating God’s commands if he were to pay for or otherwise permit one of RG’s funeral directors to wear the uniform for members of the opposite sex while at work.”

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The EEOC argued in court that since Rost would not otherwise fire an employee for living in sin, his actions to fire Stephens were unbalanced and selective. But ADF asserted that the dress code served an important purpose: to provide a respectful image to the clients with which employees interact.

In August 2016, U.S. District Judge Sean Cox sided with the funeral home and dismissed the EEOC’s legal challenge.“The court finds that the funeral home has met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” he wrote.

“Rost sincerely believes that it would be violating God’s commands if he were to permit an employee who was born a biological male to dress in a traditionally female skirt-suit at the funeral home because doing so would support the idea that sex is a changeable social construct rather than an immutable God-given gift,” Cox said.

He pointed to the U.S. Supreme Court’s Hobby Lobby Ruling and the federal Religious Freedom Restoration Act (RFRA) as the basis of his decision. The RFRA states that the government cannot force any entity to violate their religious convictions unless they use the “least restrictive means” of furthering a “compelling government interest.”

“The Supreme Court has directed that it is not this Court’s role to decide whether those ‘religious beliefs are mistaken or insubstantial,’ Cox explained. “Instead, this Court’s ‘narrow function’ is to determine if this is ‘an honest conviction’ and, as in Hobby Lobby, there is no dispute that it is….”

“Significantly, neither transgender status nor gender identity are protected classes under Title VII,” he also concluded.

However, the Sixth Circuit Court of Appeals disagreed with Cox’s ruling and overturned the decision in March.

“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 [he] refused to abide by [his] employer’s stereotypical conception of [his] sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim,” wrote Judge Karen Nelson Moore on behalf of the unanimous panel.

“[I]t 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,” she asserted. “[A]n employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. 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.”

The panel also concluded that “simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA.”

Rost has consequently asked the nation’s highest court to weigh in on the matter, contending that the Sixth Circuit ruling distorts Congress’ plain meaning of Title VII, as it was intended to prevent women from being treated differently than men in employment opportunities.

“[T]he Sixth Circuit’s decision undermines the primary purpose for banning discrimination based on sex—to ensure ‘equal opportunities’ for women,” the petition reads. “Employment reserved for women—like playing in the WNBA or working at a shelter for battered women … —now must be opened to males who identify as women. The same is true of sports and educational opportunities under Title IX.”

It also argues that, following the reasoning of the Sixth Circuit, a female employee could be fired if she did not physically present herself in as much of a feminine manner as Stephens.

“[E]mployers like Harris Homes must consider Stephens a woman because Stephens planned to conform to enough female stereotypes, but they could treat differently another employee who did not. Administering policies under that regime requires decision-making based on sex stereotypes. It will entrench rather than eradicate them,” the petition states.

Read it in full here.

“No court or federal agency has the authority to rewrite a federal statute. That power belongs solely to Congress,” said ADF Senior Counsel Jim Campbell in a statement. “Replacing ‘sex’ with ‘gender identity,’ as the Sixth Circuit and the EEOC have done, is a dramatic change. What it means to be male or female shifts from a biological reality based in anatomy and physiology to a subjective perception. Far-reaching consequences accompany such a transformation.”

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