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U.S. Court of Appeals Rules That Title VII Protects Transgender Individuals From Discrimination

In a March 7 ruling the U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Ohio, Michigan, and Tennessee, ruled in Stephens v. R.G. & G.R. Harris Funeral Home, Inc. that Title VII's prohibition against discrimination on the basis of "sex" extends protection to transgender individuals based on their status as such. This is the first federal court of appeals decision to that effect.

Aimee Stephens, a transgender woman, worked at the funeral home for six years as a male. Stephens then presented the employer with a letter indicating a lifelong struggle with gender identity, and a decision to transition to female. The owner, Thomas Rost, discharged Stephens after receipt of the letter, stating that he did not think it would "work out." He later stated that he had a sincere religious belief that a person's sex is "God-given and immutable." He also said that the circumstances would unnecessarily upset and distract customers.

The Court of Appeals squarely ruled that discrimination on the basis of transgender or transitioning status is discrimination because of sex. The Court relied on a long history of cases finding that discrimination based on sexual nonconformity is a form of sex discrimination, and found that discrimination because of transgender status was a clear form of such discrimination. Per the Court, transgender or transitioning status is an "inherently" gender non-conforming trait.

The employer attempted to defend its action based on the Religious Freedom Restoration Act, which protects employers if they can show that a generally applicable law substantially burdens their exercise of religious freedom: the funeral home argued that retaining Stephens would distract and upset its customers and hinder their healing process for grief over loss of the departed, and the owner also argued that complying could force him out of the funeral home business by forcing him to act against his faith.

The Court rejected both contentions. As to the first, the Court found that customer preferences cannot justify discrimination. As to the second, the Court allowed that the owner's belief may have been a sincerely held religious conviction. Even so, such a belief did not justify discrimination. Merely tolerating Stephens' employment and thus complying with Title VII was not tantamount to condoning the behavior, and did not substantially burden the owner's exercise of religion.

The bottom line is that in states covered by the Sixth Circuit, transgender and transitioning status is now protected under Title VII. Further, this decision continues the trend toward finding that discrimination on the basis of LGBT status is discrimination because of "sex" and thus prohibited. We will not be surprised to see more decisions of this nature this year.

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