OpinionTrending Commentary

Until Congress Acts, the Supreme Court Should Rule Against Aimee Stephens


The Supreme Court will soon issue its ruling in the case of R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. In doing so, the court will decide whether the Civil Rights Act of 1964, as it is currently written, guarantees protections to transgender people in the workplace. Based on the intent of Title VII, its current written form, and the far-reaching implications of adopting Stephens’ definition of “sex” under Title VII, the court should deny Stephens’ (whose former name was Anthony) interpretation.

In R.G., Aimee Stephens (who, sadly, recently passed away) had presented as a man when she started her job in 2007. She was subsequently fired when she announced her intention to transition to a woman and to wear women’s clothing on the job. The United States Court of Appeals for the Sixth Circuit ruled for Stevens and stated that “Discrimination against transgender people was barred by Title VII.” The court opined that firing someone based on their status as a transgender person was motivated, in part, by the person’s sex. “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court stated.

There is no doubt that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin. However, the Act does not include a specific reference to sexual orientation or transgender status. Relying on this point, the Department of Justice argued that the term “sex,” as used in the Act, refers to a person’s “biological sex.” In support of this “narrow” interpretation of the term “sex,” the DOJ pointed to the original intent behind Title VII in its brief:

Title VII includes statute-specific definitions of various terms, but not “sex.” See 42 U.S.C. 2000e (defining “because of sex” and “on the basis of sex” to include pregnancy-related issues but not defining “sex”). The term “sex” thus should “be interpreted as taking [its] ordinary, contemporary, common meaning.” When Title VII was enacted in 1964, “sex” meant biological sex. The term “refer[red] to [the] physiological distinction[]” between “male and female.” Webster’s New International Dictionary of the English Language 2296 (2d ed. 1958) (Webster’s Second).

The DOJ also pointed out that Title VII does not prohibit discrimination against transgender persons based on their transgender status. Rather, “Title VII prohibits treating an individual less favorably than similarly situated individuals of the opposite sex.”

Conversely, Stephens argued that sex was a “but-for” cause for her termination because the funeral home would not have fired a female funeral director who (like Stephens) sought to dress as a female. However, this comparison is not entirely correct in that it does not compare Stephens to a similarly situated individual of the opposite sex. Rather, it compares Stephens to a biological female who seeks to dress in accordance with the dress code for her own sex.

Finally, Stevens asserted that the decision to fire her amounted to discrimination based on “gender identity.” This, she argued, was analogous to discrimination resulting from sex stereotypes based on appearance or behavior, and was, therefore, improper. In response, the DOJ asserted that the funeral home did not discriminate against Stevens based on “sex stereotypes.” Rather, she was fired because she did not comply with the sex-specific dress code, which burdened men and women equally.

The Supreme Court’s decision will not only have direct impact on the funeral home and other employers, it will also have a much broader impact. More particularly, if the court rules in favor of Stephens, and finds that the term “sex” includes ones “gender-identity,” this could extend to other venues, including sports.

One such example is the case of Selina Soule. Soule competes in track at Bloomfield High School in Connecticut. Soule was unable to qualify for regionals in the 55-meter run because two spots were taken by biological boys who identified as girls and who ran faster. As a result, Soule sought redress pursuant to Title IX of the Education Amendments of 1972, which states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” If the Supreme Court interprets the term “sex” broadly in Stephens’ case, will that interpretation be applied in Title IX cases as well? The potential problems and obvious inequities that could flow from such a broad definition are self-evident.

The Supreme Court’s decision in this case is a very important one. As is evident, the court’s decision will have far-reaching implications. Moreover, given the intent of Title VII and the specific language in the Act, it appears that the decision of whether to re-define “sex” under Title VII, or to afford protections based on gender-identity under the Act, belongs to Congress, not the courts.

If Congress feels compelled to do so based on evolving societal norms, it is free to do so on its own volition.

This article is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. You should not take, or refrain from taking, any legal action based upon the information contained in this article without first seeking professional counsel.

Mr. Hakim is a political writer and commentator and an attorney.  His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker and other online publications. 

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The Thoughtful Conservative

Mr. Hakim is a writer, commentator and a practicing attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Epoch Times, American Thinker and other online publications. . He has also appeared on various nationally syndicated radio shows including the Dan Abrams Show and the Alan Nathan Show.

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