It is le­gal for a con­ser­va­tive Chris­tian em­ployer to fire a trans­gen­der em­ployee, sim­ply be­cause the per­son wants to dress as a woman.

The HR Digest - - Content Features -

Your Con­ser­va­tive Chris­tian Em­ployer Can Fire Your Trans­gen­der Co-worker

In a sum­mary judge­ment against the Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion at a Michi­gan district court, the rul­ing said that a con­ser­va­tive Chris­tian em­ployee has the right to ter­mi­nate a for­mer funeral home di­rec­tor, who was start­ing to tran­si­tion from male to fe­male. The lat­est rul­ing is a pow­er­ful re­minder of how ten­u­ous work­place trans­gen­der rights are in the United States. Aimee Stephens, was a funeral di­rec­tor at Har­ris Funeral Home from 2007 and 2013. In Au­gust 2013, Stephens in­formed her em­ployer that she was trans­gen­der and would be un­der­go­ing gen­der­af­firm­ing surgery, and planned to re­turn to work as a woman. Two weeks later she was fired by the Bap­tist busi­ness owner, Thomas Rost, be­cause she in­tended to dress as a fe­male.

Stephen’s case was one of the two sex dis­crim­i­na­tion law­suits filed by the EEOC in 2014. These law­suits high­light the need for the fed­eral em­ploy­ment agency to ini­ti­ate lit­i­ga­tion on be­half of trans­gen­der peo­ple. In the 56page de­ci­sion on the EEOC v. Har­ris Funeral Homes case, Judge U.S. District Judge Sean F. Cox gave his sum­mary judge­ment. Judge Cox ruled that the Ti­tle VII does not specif­i­cally count pro­tec­tions against gen­der iden­tity dis­crim­i­na­tion or trans­gen­der sta­tus, and hence the statute does not ap­ply in Stephen’s case.

“This Court pre­vi­ously re­jected the EEOC’S po­si­tion that it stated a Ti­tle VII claim by virtue of al­leg­ing that Stephens’s ter­mi­na­tion was due to trans­gen­der sta­tus or gen­der iden­tity - be­cause those are not pro­tected classes,” Cox wrote. Since Rost has a sin­cerely held re­li­gious be­lief re­gard­ing the im­mutabil­ity of gen­der, al­low­ing Aimee Stephens to fol­low the fe­male dress code was an un­due bur­den on his free­dom to ex­er­cise re­li­gion. He backed up his judge­ment cit­ing the fed­eral Re­li­gious Free­dom Restora­tion Act and the prece­dent set by the Bur­well v. Hobby Lobby.

“The Court finds that the Funeral Home has shown that the bur­den is “sub­stan­tial.” Rost has a sin­cere re­li­gious be­lief 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 one of his funeral homes be­cause do­ing so would sup­port the idea that sex is a change­able so­cial con­struct rather than an im­mutable God-given gift. To en­force Ti­tle VII … by re­quir­ing the Funeral Home to pro­vide a skirt to and/or al­low an em­ployee born a bi­o­log­i­cal male to wear a skirt at work would im­pose a sub­stan­tial bur­den on the abil­ity of Rost to con­duct his busi­ness in ac­cor­dance with his sin­cerely-held re­li­gious be­liefs.”

If this ra­tio­nale is main­tained, it could get to be con­trol­ling le­gal stan­dard for how trans­gen­der work­ers are to be treated at work, and it speaks to a ca­pa­ble re­proach to the case law that rec­om­mends Ti­tle VII in­cor­po­rates gen­der iden­tity.

Above all else, Cox’s de­ci­sion in­fers that a spe­cific re­li­gious per­spec­tive about the change­less­ness of sex trumps the wide ac­knowl­edg­ment of ex­is­tence of trans­gen­der in­di­vid­u­als by the sci­en­tific and med­i­cal com­mu­nity. Even un­der the gen­er­ally tra­di­tion­al­ist guide­lines in Michi­gan, hav­ing gen­der-af­firm­ing surg­eries would have per­mit­ted Stephens to be law­fully viewed as fe­male and as­signed all things con­sid­ered on both her driver’s per­mit and her birth cer­tifi­cate. Her med­i­cal records would have been up­graded to des­ig­nate her as fe­male. How­ever, in spite of the le­git­i­mate and medic­i­nal ac­knowl­edg­ment of Stephens’ way of life as fe­male, the court is per­mit­ting Rost’s own re­li­gious con­vic­tion that sex is God-given and per­ma­nent to abro­gate the of­fi­cial des­ig­na­tion of Stephens’ gen­der.

Ba­si­cally, the court de­ter­mined that on the grounds that Rost’s re­li­gion does not per­mit him to per­ceive trans­gen­der in­di­vid­u­als, his busi­ness does not need to rec­og­nize them ei­ther. That speaks to an un­nerv­ing and per­ilous in­fringe­ment on the le­git­i­macy of trans-in­di­vid­u­als’ ex­is­tence, even where they have be able to win some trans-af­firm­ing poli­cies with re­spect to of­fi­cial doc­u­men­ta­tion.

Cox’s judge­ment is like­wise a con­cern­ing reen­trench­ment of ideas con­ceived out of Hobby Lobby about the free ex­er­cise of re­li­gion through a busi­ness. The Hobby Lobby de­ci­sion held that an or­ga­ni­za­tion couldn’t be forced to give a ben­e­fit to its em­ploy­ees that abused the or­ga­ni­za­tion’s sin­cerely held re­li­gious con­vic­tions.

Cox’s judge­ment ex­pands that rea­son­ing to hold that an or­ga­ni­za­tion can’t be con­strained to tol­er­ate the pres­ence of an in­di­vid­ual worker who is not act­ing as per the or­ga­ni­za­tion’s re­li­gious views. At any rate, Cox’s choice de­ter­mines that an or­ga­ni­za­tion has the priv­i­lege to con­strain its work­ers to credit to its spe­cific per­spec­tives about gen­der - re­gard­less of the pos­si­bil­ity that those con­vic­tions con­tra­dict both statu­tory and med­i­cal stan­dards. For what­ever length of time that the busi­ness ex­presses that those con­vic­tions are earnestly held mat­ters of con­fi­dence, it can con­strain em­ploy­ees to fol­low its own spe­cific un­der­stand­ing of gen­der. This ex­ten­sion with re­spect to the idea of free prac­tice of re­li­gion is in­tended to truly en­croach on the per­sonal au­ton­omy and self-de­ter­mi­na­tion of trans­gen­der peo­ple.

The per­ils for the trans­gen­der group here reach out be­yond just the ide­o­log­i­cal con­tentions about the un­chang­ing na­ture of sex. Trans­gen­der peo­ple face high lev­els of seg­re­ga­tion and unem­ploy­ment. A ma­jor­ity of states in the U.S. still have no laws par­tic­u­larly keep­ing man­agers from ter­mi­nat­ing trans­gen­der in­di­vid­u­als ba­si­cally to be their iden­tity. Re­gard­less of the best ef­forts of the Obama or­ga­ni­za­tion, there are still no gov­ern­ment stat­ues that un­equiv­o­cally dis­tin­guish trans-in­di­vid­u­als as a class shielded from em­ploy­ment dis­crim­i­na­tion.

Var­i­ous LGBT rights groups have crit­i­cized Cox’s judg­ment. Hu­man Rights Cam­paign le­gal ex­ec­u­tive Sarah War­be­low said in an an­nounce­ment:

“This is a reck­less rul­ing against a woman who was fired sim­ply be­cause she is trans­gen­der. Judge Cox’s deeply dis­ap­point­ing de­ci­sion has the pos­si­bil­ity of set­ting an in­cred­i­bly danger­ous prece­dent that pur­ported re­li­gious be­liefs can be used as an ex­cuse to vi­o­late non-dis­crim­i­na­tion laws. It has the po­ten­tial of open­ing a Pan­dora’s box of dis­crim­i­na­tion against a wide range of vul­ner­a­ble com­mu­ni­ties. We are in­cred­i­bly con­cerned about the im­pli­ca­tions.”

The EEOC lawyers are also un­happy with the judge’s de­ci­sion.

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