In March, a federal appeals court extended the nation’s primary federal employment discrimination statute to cover transgender and transitioning employees. The 6th Circuit Court of Appeals ruled that employers cannot discriminate against such employees without violating Title VII of the federal Civil Rights Act. The 6th Circuit Court of Appeals includes Tennessee, Kentucky, Ohio, and Michigan; Texas is in the 5th Circuit. The case, Stephens v. R.G. & G.R. Harris Funeral Homes, Inc., involves a funeral director for a privately owned and closely held funeral home in Detroit. After six years of employment at the funeral home, an employee named Stephens presented the funeral home with a letter indicating that he intended to undergo sex reassignment surgery to transition from male to female. The owner of the funeral home then fired Stephens, stating that he (the owner) has a sincere belief that the Bible teaches that a person’s sex is an immutable God-given gift, and he would be violating God’s commands if he were to permit his male-born funeral director to “wear women’s clothes.” The owner of the funeral home also said that he believed that his customers would be unnecessarily distracted and upset by the situation. Stephens filed suit in federal court against the funeral home, alleging her termination amounted to sex discrimination under Title VII of the federal Civil Rights Act. After Stephens lost at the trial court level, the Court of Appeals reversed the decision. The appeals court stated that discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping, which has long been held to be unlawful under the federal statute. “There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try,” the court concluded. “Title VII protects transgender persons because of their transgender or transitioning status because transgender or transitioning status constitutes an inherent gender non-conforming trait.” The funeral home owner attempted to block the Title VII claim by raising a Religious Freedom Restoration Act (RFRA) defense. That statute protects employers if they can demonstrate that complying with a generally applicable law would substantially burden their religious exercise. But, the court swept aside this defense, noting that the RFRA statute protects religious “exercise,” not simply “religious beliefs.” Stephen’s transition from male to female would not interfere with the funeral home owner’s exercise of his religion; Stephen’s transition merely disagreed with the owner’s religious beliefs. The court then rejected the argument related to potential distractions to the funeral home’s customers. “A religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA,” it said, noting that the Court would never permit the preferences and prejudices of customers to determine whether employment discrimination was valid. Moreover, the court noted, there was no evidence to suggest that a customer would have ever been distracted by Stephens had she presented herself as a woman at the funeral home. While this decision does not yet directly affect the law in Texas because it involves a different federal district court circuit, it is one of several in a series across the nation that deal with transgender employment discrimination. It seems clear that multiple court decisions are creating momentum across the nation to increase employment protection for LGBT issues, even in the absence of state law protections.
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