Case No. 18-107 | 6th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
This case is about whether Title VII protects transgender people. The respondent, a biological male at birth, was fired by the petitioner after sending a letter to the petitioner explaining a decision to transition and dress like female employees. There was no question about the respondent’s ability to work and the petitioner specifically mentioned that the reason for the firing was the respondent’s decision to act and dress as female. The petitioner maintained disparate dress codes and policies for males and females, and also had single-sex restrooms at his business.
After the respondent filed an Equal Employment Opportunity Commission (“EEOC”) complaint, the EEOC filed a suit against the petitioner. The district court held that there is no inherent violation of Title VII by transgender discrimination, but there was a discrimination based on a sex stereotype. Yet, the district court ultimately granted summary judgement for the petitioner, giving him an exception under the Religious Freedom Restoration Act. The Sixth Circuit reversed this decision unanimously. The petitioner filed a petition for certiorari, and was granted it for the limited question of whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
The respondents argue that the petitioner fired respondent for “(1) having a male sex assigned at birth and (2) living openly as a woman.” Brief for Respondent Aimee Stephens at 20, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, No. 18-107 (U.S. filed June 26, 2019). Because the petitioner would not have fired someone born female for identifying and living openly as a woman, this is sex discrimination under City of L.A., Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978), respondents argue. Additionally, the statute only requires the sex to be a motivating factor and thus the Court does not need to decide whether “sex” includes gender identity for the purposes of Title VII. See 42 U.S.C. § 2000e-2(m) (2018). The respondents also noted that (1) finding discrimination against transgender people not covered by Title VII might lead to an inconsistent result undermining Title VII protection as a whole, (2) there is no express ban on including transgender discrimination and (3) the text should dictate the meaning of the statute regardless of whether a specific application was contemplated at the time of enactment.
The petitioner’s approach is drastically different. The petitioner argues that the firing was due to a dress code violation and there was no sex discrimination. According to petitioner, “sex discrimination meant differential treatment based on a person’s biological sex, something fixed and objectively ascertained based on chromosomes and reproductive anatomy. It occurs when employers favor men over women, or vice versa, because of their sex.” Brief for the Petitioner at 2, R.G. & G.R. Harris Funeral Homes, No. 18-107 (U.S. filed Aug. 16, 2019). The petitioner argues that the proper comparator in this case is a transgender male who was born a biological female, not a biological female wanting to dress as a female. Then the petitioner goes on to argue that affirming this decision will result in undesirable outcomes such as (1) prohibition on employers’ maintaining of “sex-specific privacy in overnight facilities, showers, restrooms, and locker rooms,” (2) denial of women and girls’ “fair opportunities to compete in sports, to ascend to the winner’s podium, and to receive critical scholarships,” and (3) “damage to the constitutional separation of powers.” Id. at 4.
This case will be argued after Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda, which call for inclusion of sexual orientation under the protection of Title VII, and are drawing a lot of attention.