The Case of Aimee Stephens and Georgia LGBTQ+ Discrimination

Posted November 1, 2019 By Richy Wagner Capitol Corner

Note: The following article contains language that some readers may find transphobic, homophobic, sexist, or otherwise offensive. Arguments and facts presented in this document intend to provide a complete account of the Stephens case and Georgia law and do not necessarily reflect the views of the author nor Spencer Frye. Discretion is advised.

 

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission & Aimee Stephens (2019)

Facts of the Case

Respondent Aimee Stephens had worked as a funeral director for nearly six years at Petitioner R.G. & G.R. Harris Funeral Homes Inc. when, in 2012, she wrote a letter to her employers coming out as transgender, revealing her identity as a woman and her intentions to transition. Harris Funeral Homes subsequently fired her for “repeated dress code violations.” Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC),[1] which then sued Harris Funeral Homes on her behalf, claiming a violation of Title VII of the Civil Rights Act (CRA) of 1964 “by terminating Stephen’s employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes,” (Oyez).

The district court ruled in favor of Harris Funeral Homes, but the Sixth Circuit of the US Court of Appeals reversed this decision, holding that Stephen’s termination indeed violates Title VII. Harris Funeral Homes petitioned for a writ of certiorari, which the Supreme Court granted, now forcing the Court to answer the question of whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.[2]

About Title VII

Title VII of the Civil Rights Act of 1964 states that employers cannot “fail or refuse to hire or to discharge any individual, or otherwise discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.”

Stephens’s Argument

Stephens, represented by attorney David Cole, contends that Harris Funeral Homes “discriminated against [Stephens] because of her sex for three reasons: First, in firing her for failing to conform to its owner’s explicitly stated stereotypes about how men and women should behave, it discriminated against her in the same way that Price Waterhouse discriminated against Ann Hopkins for failing to walk and talk more femininely. […] Second, Harris Homes fired her for identifying as a woman only because she was assigned a male sex at birth. […] Third, Harris Homes fired her for, in its owner’s words, changing her sex,” (Oyez).

Title VII states that employers cannot discriminate against employees on the basis of sex; thus, each of the arguments in favor of Stephens seek to provide clear textual support for the interpretation of Title VII to include transgender individuals. The first argument rests on the precedent of Price Waterhouse v. Hopkins in which Hopkins’s employers discriminated against her because of her “lack of femininity;” in keeping with this precedent, the termination of Aimee Stephens’s employment because of a failure to display sufficient masculinity (in the opinion of Harris Funeral Homes) should also constitute discrimination in violation of Title VII. The second argument for Stephens contends that a misalignment of sex assigned at birth and gender identity does not constitute a reasonable basis for termination under Title VII. Stephens’s third argument states that changing one’s sex (i.e., undergoing medical procedures to change the anatomical composition of one’s body in relation to primary and secondary sexual characteristics and legal procedures to have one’s sex recognized as something different from that written on one’s birth certificate) does not constitute valid grounds for termination.

Harris Funeral Homes Inc.’s Argument

            Harris Funeral Homes, represented by attorney John Bursch, argues that employers need not treat transgender women the same as cisgender women because “sex and transgender status are independent concepts,” and that a ruling in favor of Stephens would “[redefine] sex to include transgender status.” Bursch cites two examples for his argument:

“First, [Cole’s] but-for test would mean that a women’s overnight shelter must hire a man who identifies as a woman to serve as a counsellor to women who have been raped, trafficked, and abused and also share restroom, shower, and locker room facilities with them. That is because, but for the man’s sex, he would be allowed [to] hold that job and to use those facilities. The purportedly simple test does not get to the ultimate inquiry of whether men are treated less favorably than similarly situated women because of sex. […] Second, under [Cole’s] stereotyping logic, it is always illegal stereotyping to apply sex-specific policies based on biological sex.”

Essentially, Harris Funeral Homes argues for a conflation of gender and sex under Title VII. To illustrate his argument, Bursch describes an example in which transgender status would either disprivilege a pregnant transgender man of reproductive care through his insurer or the freedom to dress pursuant to the employer’s male dress code as allowing for both would constitute an inconsistency of the application of sex. However, Bursch mistakenly calls dress codes “sex-specific” when in fact dress codes are gender-specific. To enforce a sex-specific dress code would require employers to validate employee’s genitalia, chromosomes, hormone levels, and other anatomical characteristics pertaining to sex (which the Court would almost certainly forbid)[3] where as a gender-specific dress code would simply require employees to communicate their gender to the employer and dress accordingly.

Potential Outcomes & Future Implications

The Court is likely to rule in one of three ways: (1) that discrimination against transgender individuals falls under a category distinct from sex discrimination that is not protected under Title VII, (2) that discrimination against transgender individuals falls under the same category as discrimination against sex that does not include discrimination against sexuality (essentially, isolating the “T” from “LGBT”) and is protected under Title VII, or (3) that discrimination against transgender individuals falls under the same category as discrimination against sex that does include discrimination against sexuality and is protected under Title VII.

The Court often splits into two factions, the conservatives comprising Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh, and the liberals, comprising Justices Ginsberg, Breyer, Sotomayor, and Kagan. Many predict the justices will decide this contentious case along ideological lines; the conservatives will vote against Stephens (e.g., Ruling 1) and the liberals will vote for her (e.g., Ruling 3). However, a few factors complicate a purely ideological vote. From oral arguments, it appears Justice Gorsuch strongly considers the textual argument in favor of Stephens and may be the key swing vote to break the conservative majority. Chief Justice Roberts may also swing in favor of Stephens because, despite his reputation as a conservative, his position as chief justice directly attaches his name to the legacy of the current era of the Supreme Court in the archives of history; that is, decisions by the “Roberts Court” that deeply divide the nation, contravene public opinion, or delegitimize or disrepute the Supreme Court personally reflect upon the Chief. Thus, Roberts may act more cautiously to protect the reputation of the Court and prevent the appearance of starkly partisan divides to demonstrate compromise. Should either of these justices desert their faction, the Court may instead produce a narrow holding (along the lines of Ruling 2) that satisfies both factions in some marginal capacity.

A broad ruling in Stephens’s favor (e.g., Ruling 3) could mean substantial steps toward protection against LGBTQ+ workplace discrimination in Georgia. Currently, the state does not offer any protections against discrimination on the basis of sexuality although it does protect on the basis of gender identity under the Eleventh Circuit Court of Appeals’ ruling in Glenn v. Brumby et. al (2011), which interpreted the same 1964 Civil Rights Act at issue in Stephensalong the lines of Ruling 2. Currently, an LGBTQ+ individual can legally face a denial of goods and services, the right to change one’s gender,[4] blood donations,[5] and adoption[6] on the basis of their sexuality or gender identity in the state of Georgia. Furthermore, Georgia law stipulates no provision against the practice of conversion therapy, and employers may still discriminate on the basis of sexuality if not gender identity. A ruling for Stephens would be a landmark advancement for the national LGBTQ+ community, but the state of Georgia should enact statutory protections against discrimination on the basis of sexuality or gender. This will ensure that the principles of civil rights and equal opportunity, regardless of the conditions of one’s birth, identity, or intrinsic characteristics, can never again be forsworn.

 

[1] Interestingly, following the election of Donald Trump, the EEOC has been largely absent from Stephens’s case despite being Stephens’s earliest advocates back in 2013 and actually argued for a ruling against Stephens in front of the Supreme Court. The ACLU has largely taken up the mantle of counsel for Stephens in its stead.

[2] In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), Ann Hopkins failed to receive a partnership at Price Waterhouse, despite substantial qualifications, because other partners, upon whose recommendations her potential partnership relied, openly opposed women in advanced positions and her “aggressive” demeanor. That is, Hopkins’ “unfeminine” behavior precluded her from a promotion she would otherwise receive. The Supreme Court ruled this a violation of Title VII of the 1964 CRA; employers cannot discriminate against an employee because of sex stereotypes.

[3] In Stephens Safford Unified School District v. Redding 557 US _ (2009), School administration strip searched a student believed to have prescription drugs on her person. The Court ruled that this constituted a violation of the student’s right to privacy. Historically, the Court has held for stricter limitations on student freedoms than would be permissible for adults, meaning the Court is more likely not to find violation of privacy in the case of students than in the case of adults, so in keeping with precedent, a “strip inspection” and numerous invasive medical procedures to determine an adult employee’s sex would almost certainly constitute a privacy violation.

[4] Only individuals who undergo gender confirmation surgery, an expensive and painful procedure, can apply for a legal gender change.

[5] Men cannot donate blood if they have had sex with another man in the past year.

[6] Georgia has no explicit protections for the adoption rights of same sex couples although it does not affirm any right to deny same sex couples, either.

 

Works Cited

Arkles, Gabriel. “I Am One of Aimee Stephens’s Lawyers, and I Heard Yesterday’s Argument

Firsthand.” American Civil Liberties Union, 9 Oct. 2019,

https://www.aclu.org/blog/lgbt-rights/transgender-rights/i-am-one-aimee-stephenss-lawye

rs-and-i-heard-yesterdays-argument.

Glenn v. Brumby et al., 724 F. Supp. 2d 1284, aff’d, 663 F.3d 1312 (11th Cir. 2011)

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission &

Aimee Stephens, citation pending (2019)

“R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.” Oyez,

www.oyez.org/cases/2019/18-107. Accessed 21 Oct. 2019.

“R.G. & G.R. Harris Funeral Homes v EEOC & Aimee Stephens.” American Civil Liberties

Union, 10 Sept. 2019,

https://www.aclu.org/cases/rg-gr-harris-funeral-homes-v-eeoc-aimee-stephens.

“R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.”

SCOTUSblog,

https://www.scotusblog.com/case-files/cases/r-g-g-r-harris-funeral-homes-inc-v-equal-op

portunity-employment-commission/. Accessed 23 Oct. 2019.

Stephens Safford Unified School District v. Redding 557 US _ (2009)

Written by: Richy Wagner