Anti-LGBTQ Organization Asks SCOTUS to Review Case of Transgender Woman Who Faced Employment Discrimination

By Adam Polaski • July 24, 2018 • 2:28 pm

Today the anti-LGBTQ organization Alliance Defending Freedom filed a petition for review with the United States Supreme Court in EEOC and Aimee Stephens v. R.G. & G.R. Harris Funeral Homes. The case centers on the question of whether Title VII of the Civil Rights Act, which prohibits discrimination based on “sex,” also prohibits discrimination based on gender identity. The filing of the cert petitions kicks off a weeks-long process where parties on both sides of the dispute weighs in. The Supreme Court Justices are likely to conference on the petitions and decide whether or not to grant review in the fall of 2018.

In March 2018, a 3-judge panel from the U.S. Court of Appeals for the 6th Circuit, which covers Kentucky, Michigan, Ohio and Tennessee, voted to reverse a terrible lower court ruling, remanding the case. The case is EEOC and Aimee Stephens v. R.G. & G.R. Harris Funeral Homes. The ACLU represents Aimee Stephens, the woman at the center of the case.

The case centers on Aimee Stephens, a transgender woman fired just because she transitioned from male to female. The panel ruled that the federal Religious Freedom Restoration Act (RFRA) does not grant employers an exemption from Title VII, which prohibits discrimination based on sex. In 2004 the 6th Circuit recognized that Title VII’s prohibition on discrimination based on sex extends to discrimination based on gender identity. After all, if a person faces discrimination because they transition sexes, it follows that they are being discriminated against because of their sex.

In the 6th Circuit, positive case law has long determined that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on gender identity. However, after losing a motion to dismiss, defendants in the case argued that the federal Religious Freedom Restoration Act protects the funeral home’s decision to fire Aimee, despite the fact that the business is not affiliated with any religious entity. In an unprecedented and shameful ruling in August 2016, a federal judge agreed with the defendants.

The petition is especially disturbing in its anti-transgender rhetoric. The petition reads:

The Sixth Circuit’s startling decision to change what it means to be male and female will have widespread consequences. It threatens to drive out sex-specific policies—ranging from living facilities and dress codes to locker rooms and restrooms—in employment and public education. It undermines critical efforts to advance women’s employment and educational opportunities. And it imperils freedom of conscience. The sweeping implications of the Sixth Circuit’s ruling counsel strongly in favor of this Court’s granting review.

The docket of cases concerning LGBTQ Americans that the Supreme Court could potentially grant review to continues to grow. Last month two separate petitions were filed centered on whether Title VII prohibits discrimination based on sexual orientation. This growing swath of cases adds fuel to the many reasons that it’s vital to ask Judge Brett Kavanaugh critical questions about LGBTQ people – there is simply too much at stake, including equality and dignity for LGBTQ people.

Across the country, the legal consensus is building that no one should face discrimination because of who they are or who they love. In the past year and a half, the U.S. Courts of Appeals for the 7th Circuit and 2nd Circuit have ruled that federal law already prohibits employment discrimination based on sexual orientation. Other appellate courts – including the 11th Circuit, have found that federal law prohibits employment discrimination based on gender identity. And just last year the 7th Circuit found that the federal Title IX, which prohibits discrimination against students based on sex also covers transgender students. This groundswell of legal consensus is hard to ignore – read all about it in our Litigation Tracker here, including Where We Stand in the Courts. 

We are excited and grateful to see courts from coast to coast recognizing that discrimination based on LGBTQ identity violates federal law, and we’re hopeful that states and municipalities will continue to pass even more explicit and express protections for LGBTQ people. People should be evaluated on their hard work and commitment – not discriminated against based on their sexual orientation or gender identity. That’s the consensus that’s building, and that’s the imperative that we are proud to push along every day.

Keep up to date on all of the LGBTQ-related litigation in the courts here.


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