March 7, 2018 at 2:03 pm EST | by Chris Johnson
6th Circuit: ‘Religious freedom’ doesn’t allow anti-trans discrimination

Startwaune Anderson, conversion therapy, gay news, Washington Blade

The U.S. Sixth Circuit Court of Appeals has ruled religious freedom doesn’t allow anti-trans workplace discrimination.

A three-judge panel on a federal appeals court in Cincinnati ruled Wednesday the federal Religious Freedom Restoration Act doesn’t allow employers to engage in anti-transgender employment discrimination.

Writing the 49-page unanimous opinion, U.S. Circuit Judge Karen Nelson Moore, a Clinton appointee, determined R.G. & G.R. Harris Funeral Homes in Michigan “engaged in unlawful discrimination” against transgender employee Aimee Stephens under Title VII of the Civil Rights of 1964.

“The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim,” Moore writes. “RFRA provides the Funeral Home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden Rost’s religious exercise, and even if it did, the EEOC has shown that enforcing Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination.”

The decision remands the case back to trial court, which concluded the funeral home did have leeway to terminate Stephens under RFRA, a 1993 law intended to protect religious minorities that requires the federal government to take the least restrictive path when infringing upon religious liberty.

In essence, the Sixth Circuit establishes two milestones with the decision. First, it explicitly concludes discrimination against transgender workers is sex discrimination, and unlawful under Title VII. Second, it makes clear religious freedom as outlined under RFRA doesn’t supersede Title VII’s prohibition on employment discrimination.

The case, EEOC v. Harris Funeral Homes, began in 2013 when Harris Funeral Homes fired Stephens, who has worked there for six years, after she announced that she would transition. The basis for the termination was that by dressing as a women, Stephens would violate the dress code for the business and that would place a substantial burden on the religious beliefs of the funeral home’s owner, Thomas Rost.

In her reasoning for the decision, Moore first establishes anti-transgender discrimination is sex discrimination. Although the Sixth Circuit in the 2004 ruling of Smith v. City of Salem determined sex-stereotyping amounts to sex discrimination, the court had never before ruled anti-trans discrimination is unlawful.

“An employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align,” Moore writes. “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.”

On the issue of whether the Harris Funeral Homes has leeway to terminate Stephens under the Religious Freedom Restoration Act, Moore also rules against the claims of the business.

Moore rejects the assertion Stephens’ presentation as a woman would be a distraction for the deceased’s loves ones at a funeral home, deriding the idea as “premised on presumed biases,” as well as the notion it would place a burden on Rost’s religious beliefs because he pays for attire for employees.

“Simply permitting Stephens to wear attire that reflects a conception of gender
that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA,” Moore writes, adding, “We hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.”

Joining in Moore in the decision is U.S. Circuit Judge Helene White, an appointee of George W. Bush; and U.S. Circuit Judge Bernice Donald, an Obama appointee.

Although the Trump administration isn’t a party to the case, the ruling is a blow to U.S. Attorney General Jeff Sessions, who issued a memo asserting transgender people aren’t covered under Title VII despite legal precedent and another memo in favor of religious freedom that critics say green lights anti-LGBT discrimination.

Stephens was represented in her lawsuit by the U.S. Equal Employment Opportunity Commission, which in its 2012 ruling in Macy v. Holder concluded that anti-trans discrimination amounts to sex discrimination under Title VII.

John Knight, senior staff attorney with the LGBT & HIV Project for the American Civil Liberties Union, argued the case before the Sixth Circuit and called it “an exciting and important victory for transgender people and allied communities across the country.”

“In too many workplaces around the country, coming out as trans is a fireable offense, as our client Aimee Stephens personally experienced,” Knight said. “But this ruling affirms that that is illegal, setting an important precedent confirming that transgender people are protected by Title VII of the Civil Rights Act. It also ensures that employers will not be able to use their religious beliefs against trans employees, ruling that there is no ‘right to discriminate’ in the workplace.”

Rachel Laser, executive director of Americans United for Separation of Church & State, said in a statement the decision “rights a grievous wrong and protects our core values of religious freedom, fairness and equality.”

“Aimee Stephens had worked diligently for this funeral home for six years. It’s unconscionable that an employer would fire her simply because she began to live and dress in a manner consistent with her gender identity,” Laser said. “Aimee’s identity had no bearing on how well she performed her job. Her employer is entitled to his personal religious beliefs but has no right to fire her for living in accordance with her identity.”

Representing Harris Funeral Home in the case was Alliance Defending Freedom, a anti-LGBT legal firm that has engaged in efforts nationwide to promote the idea religious liberty should take precedent over LGBT rights.

Gary McCaleb, senior counsel at Alliance Defending Freedom, said the Sixth Circuit was erroneous in its conclusions.

“Today’s decision misreads court precedents that have long protected businesses which properly differentiate between men and women in their dress and grooming policies,” McCaleb said. “Court opinions should interpret legal terms according to their plain meaning when Congress passed the law. This opinion instead re-writes federal law and is directly contrary to decisions from other federal appellate courts.”

Alliance Defending Freedom has the options of seeking “en banc” review before the full Sixth Circuit or filing a petition for certiorari before the U.S. Supreme Court. McCabe said his organization is “consulting with our client to consider their options for appeal.”

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

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