Courts Continue to Confirm that Transgender Persons Are Protected from Discrimination Under Federal Law

Recently, the Sixth Circuit issued a unanimous decision that established “discrimination on the basis of transgender and transitioning status violates Title VII.” In EEOC v RG & GR Harris Funeral Homes, Inc, the employer, a funeral home, fired an employee, Aimee Stephens, who was in the process of transitioning from male to female. The employee sued, claiming that the employer discriminated against her on the basis of sex.

Title VII prohibits employers from discriminating against employees on the basis of several “protected” characteristics, including sex and sex stereotyping. Before this decision, the Sixth Circuit had been silent on whether “sex”, as used in Title VII, includes transgender status. In EEOC, the court confirmed that discrimination based on transgender and transitioning status is “necessarily discrimination on the basis of sex,” and that transgender-based discrimination im­poses the employer’s “stereotypical notions of how sexual organs and gender identity ought to align.” The Sixth Circuit found no way to distinguish discrimina­tion based on transgender status from discrimination based gender non-conformity and concluded that there was “no reason to try.”

The funeral home argued that being required to employ Stephens while she dressed as a woman would constitute an unjustified substantial burden on a sin­cerely held religious belief in violation of the Religious Freedom Restoration Act (RFRA). RFRA prohibits the government from “substantially burden[ing] a per­son’s exercise of religion even if the burden results from a rule of general applicability,” unless the gov­ernment “demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Sixth Circuit rejected this defense, ruling that the funeral home failed to show that its religious exercise was substantially burdened. The court further noted that even if the funeral home had shown a sub­stantial burden, the claim would still fail because Title VII was still the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination.

The Sixth Circuit’s decision follows two recent cases from the Seventh and Second Circuits that also held that sex discrimination under Title VII includes discrimination based on transgender or transitioning status.

As always, Thrun Law Firm will continue to track new developments in this rapidly evolving area of the law and will keep you updated.