The U.S. Supreme Court has an opportunity to rule on whether existing civil rights law banning sex discrimination covers discrimination based on gender identity.
A Michigan funeral home operator, represented by the anti-LGBT Alliance Defending Freedom, has asked the high court to review an appeals court’s decision that its firing of a transgender employee violated Title VII of the Civil Rights Act of 1964; Title VII bans sex discrimination. The ADF filed its petition with the Supreme Court last week, and the justices have not said if they’ll take the case.
R.G. & G.R. Harris Funeral Homes, which operates several funeral homes in Michigan, fired funeral director Aimee Stephens in 2013 after she announced she was transitioning and would begin presenting as a woman. Her boss, Thomas Rost, told her the concept of gender transition went against his religious beliefs. “A person’s sex is an immutable God-given fit,” he testified at one point in the case. He said that she violated the company’s dress code by wearing women’s clothing.
The Equal Employment Opportunity Commission sued on Stephen’s behalf, and the American Civil Liberties Union later intervened in the case. A U.S. district court dismissed her suit, saying the EEOC had proven sex discrimination but that the federal Religious Freedom Restoration Act gave the funeral home company an exemption from Title VII.
On appeal in March, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled that not only is discrimination against trans people sex discrimination, but the federal RFRA does not provide an exemption in this case. It sent the case back to the district court “for further proceedings consistent with this opinion,” Judge Karen Nelson Moore wrote.
But now the ADF wants the Supreme Court to review it instead. “Redefining ‘sex’ to mean ‘gender identity’ is no trivial matter,” the ADF writes in its filing. “Doing so shifts 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.” Classifying gender identity as sex also “threatens freedom of conscience,” the petition continues.
The petition shows obvious animus toward transgender people, writes Daily Kos contributor Rebecca Pilar Buckwalter Poza. But she fears the funeral home and ADF are “more than likely to succeed if the case comes before a Supreme Court with both Neil Gorsuch and Brett Kavanaugh on it. Both are happy to be partisan; both love to give lip service to originalism in any form that furthers their political convictions.”
Senate Majority Leader Mitch McConnell is eager to get Kavanaugh, Donald Trump’s latest Supreme Court nominee, confirmed before the court begins its session October 1. Kavanaugh is nominated to replace Anthony Kennedy, who is retring.
The court also may hear a case involving whether Title VII covers sexual orientation discrimination. A skydiving company that fired an instructor after he told a client he was gay has asked the Supreme Court to review a Second Circuit decision finding that antigay discrimination violated Title VII, although the Second Circuit did not rule on the merits of the case, that is, whether such discrimination had actually taken place. The skydiving company, Altitude Express, claimed it fired instructor Donald Zarda for misconduct, something that the now-deceased Zarda’s friends and family dispute. The high court justices also haven’t said whether they’ll take that case.