Whether 1964 law cov­ers trans rights also at is­sue

USA TODAY International Edition - - FRONT PAGE - Todd Span­gler

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 fired her.

Six years later, Stephens’ case has come to the Supreme Court, with jus­tices hear­ing ar­gu­ments Oct. 8 about whether fed­eral law – specifically, 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 specifically 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 firing her for not dress­ing in a way that con­formed with Rost’s defini­tion 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 effec­tively – and im­prop­erly – rewrote the law, defining gen­der as a per­sonal dis­po­si­tion and not as a bi­o­log­i­cal fact. And they say it’s the lat­ter defini­tion, 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 specifically and con­clu­sively de­cided, nei­ther has Congress passed any law giv­ing trans­gen­der in­di­vid­u­als pro­tected sta­tus or en­act­ing a broader defini­tion 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 differ­en­tial 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.”

CHARLES WIL­LIAM KELLY/ ACLU

Aimee Stephens says she was fired from her funeral home job af­ter de­cid­ing to dress as a wo­man at work. She says her firing vi­o­lated fed­eral law.

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