In two weeks’ time, two U.S. circuit courts of appeal — the 2nd and the 6th — have ruled that the Civil Rights Act of 1964’s provision against discrimination based on sex includes protection for gender identity.
The 6th ruled March 7 in favor of a male funeral director who was fired when he told his employer that he was going to begin presenting himself as a female. The employer argued that his religious faith would not abide by someone’s changing his birth gender, but the court rejected that argument on the grounds that a funeral home is a secular business.
The case being reviewed was EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., and in rendering its ruling, the three-judge panel unanimously overturned a district court that had issued a summary judgment in favor of the employer, who claimed he had the right to dismiss the defendant, Aimee Stephens, because of the Religious Freedom Restoration Act (RFRA).
The district court actually determined that there was “direct evidence to support a claim of employment discrimination” on the basis of sex in violation of Title VII, but nevertheless dismissed the suit, accepting the funeral home’s argument that the RFRA applied
The 6th circuit, however, rejected the RFRA argument and concluded that “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,” and thus “[t]here is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity[.]”
The Equal Employment Opportunity Commission (EEOC) has long held that such protection exists, but the Trump Department of Justice (DOJ) has argued that there is no per se language in the act to justify protection for gender identity. One other circuit court, the 11th, has taken the position of the Trump DOJ.
The Supreme Court has declined to take up the issue thus far, but could be moved to do so if more courts split on the issue.