Earlier this year, R.G. & G.R. Harris Funeral Homes, Inc. appealed the Sixth Circuit’s decision against it that found that “sex” discrimination under Title VII encompasses “gender identity” discrimination. The case was brought by Aimee Stephens, a transgender former funeral home director, whom the funeral home terminated a few weeks after she announced that she intended transition to a woman. The funeral home maintained that it terminated Stephens based on her intention to violate the home’s sex-specific dress code that required men to wear pant suits and women to wear skirt suits. The owner believes that a person’s sex is immutable, and he would be “violating God’s commands” if he permitted a male employee to present as a woman while representing his business. (His justification strikingly resembles one baker’s religious-based reasons for refusing to provide a wedding cake for a same-sex couple in Masterpiece Cakeshop v. Colorado Civil Rights Commission, an issue the Supreme Court skirted (pun intended) earlier this year.) The EEOC found that the funeral home discharged Stephens based on her gender identity and her intention to transition from male to female in violation of Title VII.
The funeral home argues that reading “gender identity” into the definition of “sex” under Title VII is incorrect, and that redefining “sex” to mean “gender identity” would “shift what it means to be male or female from a biological reality based in anatomy and physiology to a subjective perception evidenced by what people profess they feel.” It also argues that the Supreme Court should hear the case in part because of the growing circuit split on the issue and increasing “division and confusion” in general, noting the need for clarification now.
Briefs in opposition to the funeral home’s petition for writ of certiorari were filed earlier this week. The Department of Justice (DOJ) responded on behalf of the EEOC, an agency at which the DOJ is currently at odds since the DOJ announced last year that Title VII does not prohibit discrimination based on gender identity per se. (Noticeably, the DOJ’s brief did not use pronouns (he or she) while describing Stephens, the individual on whose behalf the DOJ is apparently advocating.) The DOJ reiterated that it must “interpret Title VII as written by Congress” noting that the Sixth Circuit misread Title VII when it concluded that the statute encompasses gender identity discrimination.
The EEOC has since reaffirmed that it will continue to prosecuted claims of transgender identity discrimination.