August 19, 2016 at 9:18 am EDT | by Chris Johnson
Judge: Religion permits funeral home to engage in anti-trans bias
hate crime, gay news, Washington Blade

A federal court ruled against a transgender worker facing discrimination at a funeral home.

Much to the dismay of transgender advocates, a federal judge ruled on Thursday against a transgender worker alleging employment discrimination at a Michigan funeral home, determining federal law affords the business a religious exemption to engage in anti-trans bias.

U.S. District Judge Sean Cox, an appointee of former President George W. Bush, found in the 56-page decision R.G. & G.R. Harris Funeral Homes can legally discriminate against Amiee Stephens on the basis of the Religious Freedom Restoration Act.

“The court finds that the funeral home has met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” Cox writes.

Cited as precedent for the decision is the U.S. Supreme Court’s 2014 decision in the Hobby Lobby case, which allowed closely held for-profit companies to deny contraception care to workers for religious reasons. Although Cox invokes the case to rule in favor of the funeral home, U.S. Associate Justice Samuel Alito wrote the decision applies only to contraception and “provides no such shield” to engage in employment discrimination.

Stephens, hired in 2007 by the funeral home as a funeral director and embalmer, declared to her employer in 2013 she would transition. The business terminated her on the basis that by presenting as female, she was refusing to comply with the dress code.

The majority owner of the funeral home, Thomas Rost, asserted his Christian faith prohibits him from paying for and permitting employees to dress as members of the opposite sex, as he put it.

Representing Stephens was the U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal employment civil rights laws. EEOC filed suit against the funeral home on the basis the termination violated the prohibition on gender discrimination under Title VII of the Civil Rights of Act of 1964.

By asserting Stephens has a right to present as female, the court maintains the federal government isn’t taking the least restrictive approach of barring gender stereotyping in the workforce while upholding religious freedom.

“If the compelling interest is truly in eliminating gender stereotypes, the court fails to see why the EEOC couldn’t propose a gender-neutral dress code as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here,” Cox writes.

Justine Lisser, a spokesperson for the EEOC, said the agency hasn’t yet determined whether the agency will appeal the decision to the U.S. Sixth Circuit Court of Appeals.

“We are disappointed with the decision and reviewing next steps,” Lisser said.

Representing the funeral home before the federal court was the anti-LGBT Alliance Defending Freedom, which praised the ruling as a victory for religious freedom.

“The feds shouldn’t strong-arm private business owners into violating their religious beliefs, and the court has affirmed that here,” ADF Legal Counsel Doug Wardlow said. “The government must respect the freedom of those who are seeking to serve the grieving and vulnerable. They shouldn’t be forced into violating their deepest convictions.”

Sarah Warbelow, legal director for the Human Rights Campaign, called the decision a “reckless ruling” against an employee fired simply for being transgender.

“Judge Cox’s deeply disappointing decision has the possibility of setting an incredibly dangerous precedent that purported religious beliefs can be used as an excuse to violate non-discrimination laws,” Warbelow said. “It has the potential of opening a Pandora’s box of discrimination against a wide range of vulnerable communities. We are incredibly concerned about the implications.”

Pending comprehensive LGBT non-discrimination legislation before Congress known as the Equality Act would explicitly bar bias based on transgender status in federal law. The legislation would also prohibit courts from interpreting the Religious Freedom Restoration Act to allow anti-LGBT discrimination.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • lnm3921

    As long as social conservatives (The GOP) are in control of Congress, and goodness forbid the White House, the Equality Act is going nowhere.

    This ruling is a wake up call that despite what the EEOC may say, that doesn’t prevent judges from concluding otherwise.

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