Employer Cites Religious Values to Fire Transgender Employee: Lawful?

No, said a recent federal appeals court—but President Trump’s apparent effort to broadly regulate transgender protections out of all federal laws could essentially negate the impact of this ruling. So could the newly formed conservative bloc of the Supreme Court.

In this recently decided case (EEOC v. R.G. & G.R. Funeral Homes), the employer fired Aimee Stephens (pictured) because she was transitioning from male to female. The employer said that employing Ms. Stephens violated his religious view that gender is biologically determined at birth.

The federal Sixth Circuit Court of Appeals sided with the EEOC, finding that Stephens was fired “because of … sex.” The words are in quotes because that’s exactly how Title VII—the statute— reads. The court said that if Stephens remained male, she would have avoided termination.

The most interesting part of the lengthy decision is the court’s treatment of the owner’s religious values. His funeral home was not for Christians only, though it had Jesus prayer cards. The business also conducted Jewish funerals. The court reasoned that the owner’s religious values (as expressed in business dealings) were fluid and indeterminate—it had a Christian focus, but not so exclusive as to close off business from atheists, Jews, and people of other faiths.

The court compared religious fluidity with gender fluidity. Its point was that religious belief is not always orthodox or rigid. Sometimes it’s a mixture of faiths; or no faith. Ditto for gender identity: some people are strictly male or female by birth and biological identity, but others—to use the religion analogy—seek to convert due to an “intensely personal decision.”

My students asked if the Supreme Court will review the case. The answer is maybe. Here is the latest:

05/11/2018 Docket Entry: APPLICATION (17A1267) TO EXTEND THE TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI FROM JUNE 5, 2018 TO AUGUST 3, 2018, SUBMITTED TO JUSTICE KAGAN. …

09/18/2018 Docket Entry: THE MOTIONS TO EXTEND THE TIME TO FILE RESPONSES ARE GRANTED AND THE TIME IS FURTHER EXTENDED TO AND INCLUDING OCTOBER 24, 2018, FOR ALL RESPONDENTS.

So, we will have an answer soon. My guess is the Court will grant the cert petition (relying on four votes from conservative justices). Personally, I hope I am wrong—I believe the Sixth Circuit was correct.