USA TODAY International Edition
Whether 1964 law covers trans rights also at issue
WASHINGTON – For nearly six years, Aimee Stephens’ job at R. G. & G. R. Harris Funeral Home in Garden City, Michigan, was to attend to the bodies of the deceased, to dress them in clothes brought by their loved ones, to set their bodies, their faces, for viewing.
To make them look “normal,” she said.
But if normal means conforming to some societal standard of what a person is expected to look like, based on one’s name and gender, Aimee Stephens was struggling with it herself:
Born with – or assigned, in the current parlance – male genitalia, Stephens, by July 2013, at age 52, had been living for some years outside work as a woman, dressing as a man only at work. A year earlier, she had considered killing herself, standing
in her Redford Township backyard with a gun pressed to her chest, tired, she said, “of living a lie.”
Finally, she confronted her boss with a letter explaining who she really was and her decision to begin dressing as a woman at work, which had a strict – and distinct – gender- based dress code. The funeral home owner, Thomas Rost, told her, “This is not going to work out.” And when she turned down a severance package, he fired her.
Six years later, Stephens’ case has come to the Supreme Court, with justices hearing arguments Oct. 8 about whether federal law – specifically, the Civil Rights Act of 1964 – prohibits discrimination against transgender people.
And Stephens will be there.
“I can’t say I’m worried or nervous, but it’s been a long time coming,” said Stephens. “I only hope the justices will listen to reason and look at what the lower courts have said.”
Transgender status is not specifically mentioned in the 1964 Civil Rights Act. That means whether it should apply in transgender cases comes down to how courts have dealt with questions surrounding gender in the past and what that term means: Whether it is what society once may have accepted as a binary biological fact of male or female, or whether it’s something more personal, wrapped up with one’s individual disposition.
While the Supreme Court has ruled in the past that gender stereotypes can’t be used to punish or hold someone back in their career, the funeral home’s lawyers argue that Rost – a devout Christian – also has rights under existing law to enforce a gender- based dress code as long as it doesn’t advantage or disadvantage one sex over the other, just as employers can have separate bathrooms based on gender without being accused of discrimination.
Rost’s lawyers say that if a biologically assigned female had asked to dress as a male, despite being transgender, the funeral home would have made the same demand – so there is no disadvantage between the genders to be litigated.
A three- judge panel of the U. S. 6th Circuit Court of Appeals ruled last year for Stephens, however, declaring that firing her for not dressing in a way that conformed with Rost’s definition of gender violated a Supreme Court ruling that any kind of gender consideration must be “irrelevant” to employment decisions.
But Rost’s lawyers argue the 6th Circuit effectively – and improperly – rewrote the law, defining gender as a personal disposition and not as a biological fact. And they say it’s the latter definition, not the former, that was held by Congress to be the case in 1964.
And while what Congress meant in 1964 by “sex” has never been specifically and conclusively decided, neither has Congress passed any law giving transgender individuals protected status or enacting a broader definition in the law, which it could have done.
“Congress has considered this … and rejected it,” said John Bursch, who argued against the same- sex marriage decision before the Supreme Court on behalf of Michigan’s attorney general and who is now working with the Alliance Defending Freedom, a Washington group that advocates for religious liberties, to argue Rost’s case. “They did amend the statute. When the Supreme Court concluded that sex discrimination did not include differential treatment based on someone’s pregnancy, Congress immediately responded by amending the act. … And even though ( courts have) rejected claims based on transgender status, Congress never acted in response to that.”