By: Mary Margaret Clark
Member, American Journal of Trial Advocacy
In 1964, Congress began making changes to federal law to reflect the Civil Rights Movement in the United States. Specifically, Congress enacted Title VII of the 1964 Civil Rights Act (Title VII), which paved the way for federal employment discrimination law. Title VII prohibits employers of at least 15 employees from discriminating against employees or applicants upon the basis of the employee’s race, color, sex, religion, or national origin. Over the years, courts have increasingly accepted the notion that Title VII bans discrimination based on sexual orientation. However, courts are reluctant to uniformly extend Title VII to cover discrimination based on gender identity.
Recently, Attorney General Jeff Sessions issued a memorandum announcing the U.S. Justice Department’s new stance on the issue of Title VII protecting transgender employees. On October 4, 2017, Sessions stated “Title VII does not prohibit discrimination based on gender identity per se. This is a conclusion of law, not policy.” Although the treatment of Title VII claims that include transgender bias may seem clear pursuant to the Attorney General on its face, there has since been backlash by courts. Notably, the Sixth Circuit’s decision in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc. “h[eld] that discrimination on the basis of transgender and transitioning status violates Title VII,” ruling in direct opposition of the Attorney General’s approach. Subsequent to the Sixth Circuit’s ruling, 16 individuals, “13 [of whom are] Republican attorneys general and two [of whom are] Republican governors,” filed an amicus curiae brief, asking the Supreme Court to overturn the Sixth Circuit ruling.
Although certiorari has not yet been granted, the Supreme Court could bring clarity to the treatment of Title VII claims that are brought due to transgender bias across the United States. The brief stated that until Congress affirmatively acts, “[the U.S.] Constitution leaves to the states the authority to determine which protections, or not, should flow to individuals based on gender identity.”.
The Sixth Circuit Ruling
Aimee Stephens (Stephens), born as Anthony Stephens, was the funeral director at R.G. & G.R. Funeral Homes, Inc. for almost five and a half years, until August 2013. During the course of her employment, Stephens presented herself as a man. In late July of 2013, Stephens provided “Rost [, the owner of the Funeral Home,] with a letter stating that she has struggled with ‘gender identity disorder’ her ‘entire life,’ and “that she has decided to become the person that [her] mind already is.” She stated in the letter that she was undergoing sex reassignment surgery and would return from her vacation on August 26, 2013 “as [her] true self . . . in appropriate business attire.” After Rost received the letter, and before Stephens left for vacation, Rost fired Stephens.
The Sixth Circuit, in its opinion, addressed discrimination on the basis of transgender and transitioning status. The analysis of the discrimination was based largely on case law from the Second, Fourth, Sixth, and Seventh Circuits, all of which previously expanded the definition of sex discrimination under Title VII to include sexual orientation and transgender status. The opinion also made reference to a Supreme Court decision, Price Waterhouse v. Hopkins. Price Waterhouse involved a woman (Plaintiff) whose candidacy was put on hold at an office of Price Waterhouse (Defendant), and was later denied a reproposal by the partnership. Plaintiff felt she had been discriminated against when she was instructed to “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry” because she did not fit the mold of a female. Thus, Plaintiff sued alleging the Defendant discriminated against her “on the basis of sex for partnership positions.” The Supreme Court ruled in favor of Plaintiff and held “that when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.”
Although the Court in Price Waterhouse only addressed discrimination based on failure to conform to specific gender norms, the Sixth Circuit in R.G. & G.R. Harris Funeral Homes, Inc. used the precedent to expand Title VII. In particular, the Sixth Circuit noted that “the Supreme Court made clear in Price Waterhouse that Title VII requires ‘gender [to] be irrelevant to employment decisions.’” The court stated that “gender (or sex) is not being treated as irrelevant to employment decisions if an employee’s attempt or desire to change his or her sex leads to [termination].” The Sixth Circuit further held discrimination on the basis of transgender or transitioning status “implicates Title VII’s proscriptions against sex stereotyping.”
In its analysis, the court stated that transgendered individuals are “gender non-conforming.” “Thus, an employer cannot discriminate on the basis of transgender [or transitioning] status without [first] imposing its stereotypical notions of how sexual organs and gender identity [should] align.” In a conclusory statement the court directly held “Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”
The Amicus Curiae Brief
As expected, there has been contention among the states after the Sixth Circuit ruling in March. In the amicus brief, supporters of the petitioner state that the Sixth Circuit’s ruling “erases all common, ordinary understandings the term ‘sex’ in Title VII . . . .” Supporters of the petitioner further contend that the Sixth Circuit “rewrites Title VII in a way never intended nor implemented by Congress in the Civil Rights Act of 1964.”
Those in support of the petitioner also argue that the meaning of “sex” when Congress enacted the Civil Rights Act of 1964 simply meant biological gender, and was never meant to include gender identity. This is supported with psychologist and psychoanalyst writings that conclude “sex” is biological and “gender” is social, and that “gender roles” were not determined at birth, but developed over time in the same way that a child learns a language. The brief also identifies legislation in which Congress has confirmed the meaning of “sex” as biological status since the Civil Rights Act of 1964 was implemented. The petitioner also asserts that there have been “numerous occasions” when Congress has reaffirmed the statutory term “sex” in Title VII refers to the “physiological characteristics of males and females.” These definitions of “gender” further supporters of the petitioner’s notion that the Title VII language that includes nondiscriminatory employment practices on the basis of sex as not including transgender or transitioning status.
What This Could Mean to Employers
At this time, employers should be aware of their own state law governing the issue of discrimination based on gender identity. Employers should also be aware of implications that may arise when employer autonomy intersects with discrimination. When this intersection occurs, Title VII’s prohibitions on discrimination will usually prevail over the employer’s prerogative. Whether or not these prohibitions on discrimination include transgender bias by all courts is to be determined. All things considered, if certiorari is granted for the Sixth Circuit case, employers could be expected to change their employment practices to comply with the ruling.
 Pre 1965: Events Leading to the Creation of the EEOC, EEOC, https://www.eeoc.gov/eeoc/history/35th/pre1965/index.html.
 William R. Corbett, Babbling About Employment Discrimination Law: Does the Master Builder Understand the Blueprint for the Great Tower?, 12 U. Pa. Bus. L. 683, 684 (2010).
 42 U.S.C. § 2000e-2(a) (2006).
 Angela N. Johnson, DOJ Reverses Course On Title VII Protections for Transgender Persons, 27 No. 11 Ind. Emp. L. Letter 3 (Nov. 2017).
 Memorandum from United States Attorney General Jefferson B. Sessions, III on Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Oct. 4, 2017), https://www.justice.gov/ag/page/file/1006981/download.
 884 F.3d 560 (6th Cir. 2018).
 Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560, 574-75 (6th Cir. 2018); Johnson, supra note 4.
 LePage joins court brief seeking to allow companies to legally fire gay or transgender employees, Press Herald (August 27, 2018), https://www.pressherald.com/2018/08/27/lepage-joins-15-other-states-in-brief-to-high-court-about-transgender-worker-case/.
 Emanuella Grinberg, She came out as transgender and got fired. Now her case might become a test for LGTBQ rights before the US Supreme Court, CNN Politics (Sept. 3, 2018), https://www.cnn.com/2018/08/29/politics/harris-funeral-homes-lawsuit/index.html.
 R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d at 566-67.
 Id. at 568.
 Id. at 569.
 Id. at 574-75.
 Sixth Circuit Joins Other Circuits in Expanding Definition of Sex Discrimination Under Title VII, JDSupra.com (June 15, 2018) https://www.jdsupra.com/legalnews/sixth-circuit-joins-other-circuits-in-69945/; see Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2nd Cir. 2018) (holding that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of. . . sex.’”); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 340-41 (7th Cir. 2017) (holding that discrimination based on sexual orientation is a form of sex discrimination); G.G. v. Gloucester Cty. School Bd., 654 Fed. Appx. 606, 607 (4th Cir. 2016) (interpreting another sex discrimination case as holding “discrimination against a transgender individual based on that person’s gender status is discrimination because of sex under federal civil rights statutes”).
 490 U.S. 228 (1989).
 Price Waterhouse, 490 U.S. at 228.
 Id. at 235.
 Id. at 228.
 Id. at 258.
 R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d at 576.
 R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d at 577.
 Brief Amici Curiae of States of Nebraska, et al, at 2, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107 (6th Cir. August 23, 2018).
 Id. at 7.
 Id. at 8.
 Brief for the Petitioner, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, 884 F.3d 560 (6th Cir. 2018) (No. 18-107), 2017 WL 564598 at * 26.
 Michael T. Saul, What Does Attorney General’s Memo on Transgender Rights Mean for Employers?, Pennsylvania Lab. & Emp. Blog (Oct. 6, 2017), https://www.palaborandemploymentblog.com/2017/10/articles/discrimination-harassment/attorney-generals-memo-transgender-rights-mean-employers/.
 Henry L. Chambers, Jr., The Supreme Court Chipping Away at Title VII: Strengthening It or Killing It?, 74 La. L. Rev. 1161, 1166 (2014).