Let’s Talk About Sex: Do Title VII Protections Under the Civil Rights Act of 1964 Transcend a Gender-Normative Narrative?
On October 8, the Supreme Court of the United States heard oral arguments for R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, a notable pending case in the arena of LGBTQ+ civil rights law. The case, which has been reviewed by both a district and appellate court since September of 2014, was raised by Aimee Stephens, a transgender defendant dismissed by her employer after announcing her decision to publicly live and identify as a woman. [1] Stephens had worked for R.G. & G.R. Harris Funeral Homes for more than half a decade, and in response to her abrupt and flagrantly discriminatory termination, sought legal recourse through the Equal Employment Opportunity Commission (EEOC). Invoking Title VII of the Civil rights Act of 1964, which declares it unconstitutional to “discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin,” the EEOC held that the funeral home unconstitutionally discriminated against Stephens on the basis of her identifying and wishing to dress as a woman. [2]
In August of 2016, Judge Sean Francis Cox of the U.S. District Court for the Eastern District of Michigan ruled in favor of the funeral home, holding that not only did Title VII protections not extend to discrimination against individuals for being transgender, but that, in accordance with the 2014 Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., the Religious Freedom Restoration Act of 1993 also allowed religious beliefs to trump discrimination claims under Title VII of the Civil Rights Act. Hobby Lobby established protections against the government “substantially burden[ing]” an individual’s right to religious practice. Given Stephens’s employer, Thomas Rost’s, religious background as a devout Christian, Cox ruled that it would substantially burden Rost’s religious beliefs to force him to employ an individual who dressed in clothing that did not align with their biological sex assigned at birth. While Cox did not necessarily support or reject the validity of Rost’s belief that the “Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex,” he nevertheless ruled that Rost’s beliefs were “sincerely held,” and that thus, “To enforce Title VII (and the sex stereotyping body of case law that has developed under it) 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.” [3]
Disturbed by the trial court’s negation of transgender and gender non-conforming individuals’ inherent right to freedom from discrimination, the Equal Employment Opportunity Commission appealed Cox’s decision, and in March of 2018, triumphed at the U.S. Court of Appeals for the Sixth Circuit. Using reasoning from the 1989 Supreme Court case Price Waterhouse v. Hopkins, which condemned discrimination for not conforming to supposedly traditional male and female conventions of dress, speech, or similar behavior, the appellate court found that “‘discrimination based on a failure to conform to stereotypical gender norms’ was no less prohibited under Title VII than discrimination based on ‘the biological differences between men and women.’” [4] Ultimately, the appellate court overturned the trial court’s support for the funeral home’s claims of religious protections under the Religious Freedom Restoration Act.
More recently, the case was heard by the Supreme Court. Twenty-one states, 206 businesses, and a plethora of civil rights groups such as the Transgender Legal Defense and Education Fund and National Women’s Law Center have filed amicus curiae briefs in favor of Stephens. [5] As the Court’s decision pends release, the central question involves the court’s need to address Title VII protections against sex-based discrimination under the Civil Rights Act of 1964: Do such protections extend to an individual’s identification with a gender different from the biological sex with which they were born? Several cases provide precedent and suggest that transgender individuals do enjoy Title VII protections.
One landmark case is Price Waterhouse v. Hopkins, which lies at the heart of the Sixth Circuit Court’s decision in R.G. & G.R. Harris Funeral Homes, Inc. [6] Plaintiff and Price Waterhouse employee Ann Hopkins filed Title VII sex discrimination charges after being denied a promotion at the company in spite of overwhelming qualifications and prior nomination for a position. Hopkins’s employers, the prosecution held, unjustly denied her the position not solely because of her being a woman, but because of her failure to conform to so-called traditional “sex stereotypes,” such as “walk[ing] more femininely, talk[ing] more femininely, dress[ing] more femininely,” and applying makeup, among other societally imposed norms. Price Waterhouse revolutionized the way we define Title VII sex discrimination because it affirmed that discrimination for deviating from “sex stereotypes,” not solely for being biologically born a certain sex constituted grounds for Title VII claims. [7]
In the 2004 case Smith v. City of Salem, Ohio, Price Waterhouse’s expanded Title VII criteria were tested. Jimmie L. Smith—legally referenced in the case brief as male, though she identifies as a transsexual female—was dismissed from her job at the Salem Fire Department after disclosing her transgender identity to a department superior who subsequently informed the department’s chief. After filing Title VII sex discrimination claims, which were rejected at the district level, Smith appealed to the U.S. Sixth Circuit Court of Appeals. The appellate court affirmed that Title VII protections extend to unjust treatment on the basis of one’s status as transgender. [8] Smith’s case very closely parallels that of Stephens; both were longtime employees of their respective institutions—Stephens had worked for approximately six years with R.G. and G.R. Harris Funeral Homes and Smith had worked for seven with the fire department—and had generally never raised cause for concern or possible dismissal. Smith’s termination, which lacked rational justification other than her coming out as a transgender person also nearly identically parallels Stephens’s firing on similar grounds, and thus sets a persuasive federal precedent for discrimination claims. “[D]iscrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman,” the opinion holds, condemning such prejudice as “impermissible discrimination.” [9]
Further, a more recent scenario from which to potentially draw authority is the 2008 case Schroer v. Library of Congress, in which the U.S. District Court for the District of Columbia ruled in favor of the transgender woman Diane Shroer’s claims to sex-based discrimination. Schroer had applied, and after demonstrating impressive qualifications, received an offer for a high-ranking research position at the Library of Congress. However, upon coming out to her future employer as transgender prior to starting work, Schroer was informed that she was no longer “a good fit” and that her offer would be rescinded. [9] Schroer brought two veins of argument to her case: firstly, citing Price Waterhouse, she argued that she was unjustly discounted for not behaving in accordance with normative “sex stereotypes” and secondly, that unfair treatment based on gender—in other words, on the basis of how she identifies herself rather than her biological sex assigned at birth—is encompassed by the notion of sex discrimination. The judge supported Schroer’s claims to discrimination for deviation from sex stereotypes as well as transgender status, though left unaddressed the issue raised by the defense of the intended applications of Title VII. Several cases, such as Holloway v. Arthur Anderson & Co. and Etsitty v. Utah Transit Authority, advocate the belief that Congress only intended Title VII to prevent discrimination against men for being male and women for being female; the District Court refrained from clarifying such questions with the rationale that “the Library’s refusal to hire Schroer after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination ‘because of . . . sex.’” [10] Thus, the question remains of whether Title VII’s definition of sex specifically includes—whether in spirit or original Congressional intent—status as a transgender individual.
As American social norms progress and popular society becomes more tolerant of nontraditional gender identities and sexualities, our nation stands on the brink of a powerful legal turning point for LGBTQ+ rights. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission offers a critical opportunity to affirm transgender individuals’ inherent right to be free from maltreatment based solely on who they are as human beings. Codifying Title VII protections for transgender individuals into the body of common law would liberate transgender men and women like Aimee Stephens to express their identities without fear of professional retribution and is supported by both federal and district-level precedent. Thus, in accordance with the fundamental democratic ideals of equality and protection of individuals of all backgrounds and identities from prejudicial treatment, the Supreme Court should uphold the Circuit Court’s decision and rule in favor of Stephens’ claims to Title VII sex-based discrimination.
[1] H. Alan Scot, Who Is Aimee Stephens? Landmark Transgender Rights Supreme Court Case
Explained, Newsweek (September 30, 2019), online at
https://www.newsweek.com/who-aimee-stephens-landmark-transgender-rights-supreme-court-case-explained-1462182 (visited November 8, 2019).
[2] Civil Rights Act of 1964, Title VII, 42 U.S. Code § 2000e.
[3] Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc. (E.D. Mich. 2016).
[4] Equal Employment Opportunity Commision v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018).
[5] LGBTQ Discrimination Cases at the Supreme Court, American Civil Liberties Union (July 3, 2019), online at https://www.aclu.org/cases/lgbtq-discrimination-cases-supreme-court (visited November 8, 2019).
[6] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
[8] Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004).
[9] Ibid.