Does Title VII of the Civil Rights Act of 1964 prohibit discrimination against transgender individuals, either as a form of sex discrimination or as impermissible “sex stereotyping” under Price Waterhouse v. Hopkins?
This case asks the Supreme Court to decide whether the prohibition of sex-based discrimination under Title VII of the Civil Rights Act of 1964 also extends to discrimination based on gender identity. Harris Funeral Homes (“Harris Homes”) terminated Aimee Stephens’s employment shortly after Stephens informed Harris Homes that she was transgender. Harris Homes and the Equal Opportunity Employment Commission (“EEOC”) take the position that Stephens’s termination was not discriminatory because her termination was premised upon her refusal to follow Harris Homes’s sex-specific and strictly applied dress code. Stephens counters that her dismissal was impermissible under Title VII because the decision to fire her was based on her sex and general principles of “sex stereotyping.” The Supreme Court’s decision will have implications for the wellbeing of transgender employees and for the religious interests of employers.
Questions as Framed for the Court by the Parties
Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.
From October 2007 to August 2013, Aimee Stephens was employed as a funeral director for R.G. & G.R. Harris Funeral Homes (“Harris Homes”), a for-profit corporation operating funeral homes in Michigan. During the course of her employment, Stephens, who was born biologically male, presented as a man and went by the name Anthony. On July 31, 2013, Stephens informed her employer, Thomas Rost (who owned 95.4% of Harris Homes) about her lifelong struggle with gender identity and her decision to transition by first living and working as a woman before undergoing sex reassignment surgery. Stephens told Rost that she would return from her vacation in business attire appropriate for her gender identity. Before Stephens left for vacation, however, Rost terminated her employment.
Harris Homes has a sex-specific workplace attire policy, which required its public-facing male employees to wear suits and ties, and public-facing female employees to wear skirts and business jackets. Harris Homes provided its male employees with free work clothing. Until October 2014––which was when the Equal Employment Opportunity Commission (“EEOC”) commenced the present action against Harris Homes––it did not provide similar resources for its female employees. Harris Homes now provides public-facing female employees with an annual clothing stipend.
After Stephens’s termination, she filed a sex-discrimination charge with the EEOC. Stephens claimed that the only explanation Harris Homes had offered for her termination was that the public would not accept her transition. On June 5, 2014, the EEOC issued a letter of determination stating there was reasonable cause to believe Harris Homes had violated Title VII of the Civil Rights Act of 1964 by discharging Stephens because of her gender identity. The EEOC and Harris Homes were unable to resolve the dispute through an informal mediation process, and on September 25, 2014, the EEOC filed a complaint against Harris Homes in the United States Court for the Eastern District of Michigan (the “District Court”).
Harris Homes moved to dismiss the action for failure to state a claim. The District Court denied the motion but agreed with Harris Homes that Title VII did not protect transgender individuals. Consequently, the EEOC could not pursue a claim under Title VII for gender-identity discrimination. The District Court, however, agreed with the EEOC that Harris Homes had terminated Stephens for her failure to conform to sex-based stereotypes. Finally, the District Court ruled in favor of Harris Homes, finding that it was exempt from Title VII under the Religious Freedom Restoration Act.
On appeal, the Court of Appeals for the Sixth Circuit (the “Sixth Circuit”) permitted Stephens to intervene to represent her interests, and reversed the District Court, holding that discrimination based on gender identity violated Title VII. The Sixth Circuit concluded that Harris Homes discriminated against Stephens based on her sex and granted summary judgment to the EEOC on its claims of unlawful termination. While the case was pending before the Sixth Circuit, the U.S. Attorney General Jeff Sessions issued a memorandum re-interpreting Title VII and forcing the EEOC to take the opposite stance, against Stephens. Harris Homes appealed the Sixth Circuit’s decision and on April 22, 2019, the Supreme Court of the United States granted certiorari. ,
APPLYING TITLE VII TO GENDER-IDENTITY DISCRIMINATION
Petitioner Harris Homes argues that Title VII’s prohibition on sex discrimination does not include gender-identity discrimination. Harris Homes asserts that including transgender discrimination within the scope of Title VII’s restrictions would bypass the commonly understood “ordinary meaning” of discrimination. It explains that the ordinary meaning of discrimination is limited to “less favorable treatment of people of certain classes” because of bias based on their sex. Harris Homes contends that being transgender is “legally irrelevant” to Title VII’s application because in 1964, when Title VII was enacted, “sex” exclusively meant “biologically male or female.” It also added that Congress has consistently distinguished sex classifications from gender identity and transgender status. Harris Homes asserts that employers discriminate based on sex under Title VII’s “ordinary meaning” only when they treat biological men better than biological women or vice versa. Harris Homes argues that because it would treat any woman who refuses to abide by its dress policy in the same manner as it treated Stephens, there is no sex discrimination. Harris Homes challenges Stephens’s analogy of transgender discrimination to religious discrimination under Title VII, asserting that while Title VII specifically defines its prohibition on religious discrimination as encompassing “all aspects of religious observance and practice,” the term “sex” receives no such definition. Harris Homes cautions that Stephens’s argument conflates “sex” and “gender” much in the same way that the plaintiff in Espinoza v. Farah Manufacturing Co., unsuccessfully attempted to conflate “citizenship” discrimination and Congressionally recognized “national origin” discrimination under Title VII.
The Respondent EEOC, also arguing for a reversal of the Sixth Circuit, emphasizes that when Congress intends to prohibit gender-based discrimination, it specifically amends statutes to say so. The EEOC explains that at the time of the 1991 Amendment to Title VII, Congress was aware that multiple circuit courts refused to extend Title VII to protect transgender discrimination but declined to make any related changes to encompass gender-based discrimination. According to the EEOC, by declining to draft transgender protections into the Amendment at that time, Congress effectively upheld the view that Title VII did not prohibit transgender discrimination. The EEOC posits that Stephens, as a biologically male transgender woman, cannot prove that Harris Homes illegally discriminated against her because she cannot show that Harris Homes would have treated a biologically female transgender man any better.
Stephens counters that Title VII specifically prohibits transgender discrimination because it bars employers from terminating their employees “because of [an] individual’s . . . sex.” Stephens maintains that, by terminating someone because they are not conforming with their employer’s view of how that person’s “biological sex” should present itself, the employer is necessarily using that person’s “sex” as it was determined at birth to discriminate against them. Stephens points out that if the Court were to exclude transgender discrimination from Title VII, it would be adding to the only codified exception to Title VII’s protections. This exception—the bona fide occupational qualifications exception—permits differing treatment “on the basis of . . . sex” when such treatment is reasonably necessary in a particular business or career context. She warns that because Congress has specifically contemplated and codified an exception to Title VII, the Court is not permitted to read in its own unwritten exception through “judicial fiat.”
Additionally, Stephens emphasizes that whether or not Congress understood Title VII to encompass transgender discrimination during its 1964 enactment has no bearing on how the Court determines the statute’s meaning and application today. Stephens notes that the Court has a history of reaching beyond Title VII’s original intent to determine if an action constitutes sex-based discrimination, as it did with different-sex and same-sex harassment. Quoting Justice Scalia in Onacle v. Sundowner Offshore Servs. Inc., Stephens raises the point that the Court recognizes types of sex discrimination which were “not the principal evil Congress was concerned with” in 1964, because they are covered under the statute’s plain text. Similarly, Stephens disputes that congressional actions since 1964 on sex-discrimination issues have any bearing on the proper understanding of Title VII. Stephens analogizes an employer’s decision to fire employees for their transgender status to the impermissible act of terminating employees because they changed religions. Stephens also counters Harris Homes’ analogy of transgender status to citizenship status under Espinoza by pointing out that while it is possible to discriminate against someone for being a non-citizen without knowing or discriminating against them based on their national origin, it is impossible to discriminate against individuals based on their transgender identity without necessarily knowing and factoring in their biological sex at birth.
SEX-STEREOTYPING UNDER PRICE WATERHOUSE V. HARRIS
Harris Homes contends that Price Waterhouse v. Hopkins does not apply when determining whether Title VII covers gender-based discrimination. Harris Homes argues that an employer’s use of sex stereotypes, according to the plurality in Price Waterhouse, might be indicative of sex-based discrimination but is not an independent cause of action by itself. Further, Harris Homes posits that sex stereotypes can be evidence of sex discrimination under Title VII, but that the alleged discrimination must still be proven by showing that one of the two sexes is being disadvantaged as compared to the other—at least where both sexes are similarly situated. According to Harris Homes, the Sixth Circuit classified sex itself as a stereotype, and warns that such a broad interpretation of sex stereotyping would defeat every sex-specific company policy in existence, and also be inconsistent with the Court’s precedent that differences in reproductive organs between men and women are not “gender-based stereotypes.” Harris Homes maintains that an employer who treats transgender men the same as transgender women is not engaging in “sex stereotyping” against those individuals under Title VII. It asserts that there can only be a discrimination claim when the sex stereotype is used to discriminate against a person of that sex. The EEOC rebuts Stephens’s argument that employers may not avoid Title VII claims by discriminating equally between both sexes by emphasizing that equal treatment of male and female sexes—no matter how objectionable that treatment is—can never actually be discrimination “because of . . . sex” under Title VII.
Stephens argues that any decision to terminate an employee because they are transgender necessarily engages in an impermissible form of “sex stereotyping” under Title VII, as recognized by the court in Price Waterhouse. Stephens contends that, similar to the plaintiff in Price Waterhouse, who was denied a promotion for failing to match the feminine stereotypes expected by her bosses, Stephens was terminated because she failed to conform to Harris Homes’s stereotypes for how men and women should dress in the workplace. Stephens asserts that terminating an individual for being transgender is innately a decision to terminate them for failing to meet the “sex stereotypes” for how people with a certain biological sex are expected to display themselves to the world. Stephens argues that in evaluating discrimination under Title VII, the issue is not whether men or women categorically have faced worse treatment than one another, but rather whether an individual employee has been mistreated “because of” their sex. Stephens points again to Price Waterhouse as an example of a sex-discrimination case which required no analysis of how men in the same position would have been treated for the Court to determine that the plaintiff was being discriminated against “because of” her sex. Stephens concludes that employers cannot fend off sex-discrimination claims under Title VII by ensuring that they discriminate against both men and women equally because of their respective sexes.
WOMEN’S RIGHTS VS. LGBTQ RIGHTS
The Women’s Liberation Front, arguing in support of Harris Homes, states that upholding the Sixth Circuit’s interpretation of “sex” in Title VII would have far-reaching implications for the safety of women in education, employment, and other areas. They contend that women enrolled in female-only educational institutions would be forced to share their living space with men who self-identify as women. They also warn that such an interpretation of “sex” could lead to potential violence against women by permitting men who identify as women to invade spaces reserved exclusively for women. Defend My Privacy and other advocacy organizations also contend that sex-specific workplace dress codes protect the wellbeing of sexual assault survivors. The Organizations argue that in contexts such as professional work environments, sex-specific dress codes protect survivors of sexual assault from being triggered by indicating the sex of the person wearing the attire. This, they argue, helps survivors to discern those with whom they would be more comfortable interacting in some professional service contexts.
Five law school professors, in support of Stephens, counter that requirements, like the one Harris Homes imposed on Stephens, severely harm transgender individuals. They argue that workplace policies that distinguish based on sex negatively affect transgender employees by robbing them of opportunities to which they would otherwise have access. They urge that compelling transgender employees to abide by workplace rules opposing their gender identity will cause them to experience loneliness, shame, and despair. The American Medical Association (“AMA”) agrees and cites to statistics showing that an overwhelming majority of employed transgender individuals hide their true gender identity to avoid being discriminated against. The AMA also notes that unemployment rates for transgender individuals are almost three times the national average. The AMA asserts that workplace discrimination reinforces the societal stigma of “otherness” in transgender individuals which in turn will lead to psychological distress and health disparities between transgender and cisgender persons. The AMA contends that this type of stigma can ultimately lead to “hypertension, diabetes, anxiety, depression, suicidality, substance abuse, acquiring HIV, and even death.”
PROTECTING RELIGIOUS INTERESTS
The First Liberty Institute (“The Institute”), in support of Harris Homes, explains that expanding Title VII to include gender identity would threaten the ability of religious institutions to prescribe internal standards of conduct which may include faith-based beliefs about gender identity. The Institute contends that religious ministries should be able to require their employees to adhere to codes that are consistent with the institutions’ religious beliefs. The Institute points out that some religious institutions, such as some Catholic schools, require their employees to adhere to a certain set of religious convictions so that they may work together under a central religious mission. Certain religious organizations also contend that extending Title VII to cover sexual orientation and gender identity would unfairly favor employees’ rights over employers’ religious liberties, undermining the employers’ ability to maintain a religious identity.
A group of religious stakeholders including the Presiding Bishop of the Episcopal Church (“Faith Leaders”), in support of Stephens, reject the argument that including gender-identity discrimination within Title VII would be inconsistent with their religious tenets. According to the Faith Leaders, all major religions embrace the inherent dignity of all individuals, including the LGBTQ community and so the amici for EEOC and Harris Homes do not represent a “unified voice” of American religions. They assert that deciding in favor of employers, such as Harris Homes, because of religion would improperly favor one religious view over another. Faith Leaders also challenge the Institutions’ argument that protecting transgender individuals from workplace discrimination would interfere with their religious beliefs.They respond that requiring employers to treat employees equally in the workplace will not affect their religious liberty to hold different views about gender identity and sexuality because they would remain free to preach their religion in the religious realm.
The authors would like to thank Professor Michael C. Dorf for his guidance and insights into this case.
- Adam Liptak, Supreme Court to Decide Whether Landmark Civil Rights Law Applies to Gay and Transgender Workers, The New York Times (April 22, 2019).
- Nicole Russell, Justice Department Takes Controversial Stand on Transgender Case at Supreme Court, Washington Examiner (August 26, 2019).
- Marcia Coyle, Does This Anti-Discrimination Law Protect LGBTQ Workers? 3 Cases Ask Supreme Court to Decide, PBS News Hour (September 12, 2019).