Appeals Court Rules Funeral Home ‘Illegally’ Fired Male Director Who Wanted to Dress as Woman

DETROIT, Mich. — The Sixth Circuit Court of Appeals has ruled that a Christian funeral home owner engaged in illegal discrimination for firing a male director who announced that he wanted to begin dressing as female.

“Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the funeral home fired Stephens because [he] refused to abide by [his] employer’s stereotypical conception of [his] sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim,” wrote Judge Karen Nelson Moore on behalf of the unanimous panel on Wednesday.

The court claimed that Title VII of the 1964 Civil Rights Act, which prohibits sex discrimination, also applies to discrimination for not meeting “sex stereotypes.”

“Title VII proscribes discrimination both against women who ‘do not wear dresses or makeup’ and men who do,” Nelson Moore asserted. “Under any circumstances, ‘[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.’”

“Here, Rost’s decision to fire Stephens because Stephens was ‘no longer going to represent himself as a man’ and ‘wanted to dress as a woman,’ falls squarely within the ambit of sex-based discrimination that [is prohibited under case law],” the panel concluded.

As previously reported, Anthony Stephens, who now goes by the name Aimee Stephens, was hired as the funeral director and embalmer for RG & GR Harris Funeral Homes in 2007. In 2013, Stephens informed his employer that he had been diagnosed with gender dysphoria and would therefore desire to wear a woman’s suit for work.

Owner Thomas Rost, a professing Christian who also serves on the board of directors for Salvation Army of Metro Detroit, has a company dress code in place, which states that males must wear dark suits and white shirts.

“R.G. employees understand that the dress code requires funeral directors to wear company-provided suits,” legal argument filed in court outlines. “Rost sincerely believes that he would be violating God’s commands if he were to pay for or otherwise permit one of RG’s funeral directors to wear the uniform for members of the opposite sex while at work.”

Because Stephens sought to wear female clothing, which is a violation of the dress code, and because Rost did not feel comfortable with providing a skirt suit due to his Christian convictions, Stephens was let go. He took the matter to the federal Equal Employment Opportunity Commission (EEOC), which sued Rost with the aid of the ACLU for gender discrimination.

The EEOC argued in court that since Rost would not otherwise fire an employee for living in sin, his actions to fire Stephens were unbalanced and selective. But Alliance Defending Freedom (ADF) asserted that the dress code served an important purpose: to provide a respectful image to the clients with which employees interact.

Rost reportedly provides two suits for male employees in accordance with the dress code, and would also provide the business jacket and skirt should a woman be hired as well.

In August 2016, U.S. District Judge Sean Cox sided with the funeral home and dismissed the EEOC’s legal challenge.“The Court finds that the funeral home has met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” he wrote.

“Rost sincerely believes that it would be violating God’s commands if he were to permit an employee who was born a biological male to dress in a traditionally female skirt-suit at the funeral home because doing so would support the idea that sex is a changeable social construct rather than an immutable God-given gift,” Cox said.

He pointed to the U.S. Supreme Court’s Hobby Lobby Ruling and the federal Religious Freedom Restoration Act (RFRA) as the basis of his decision. The RFRA states that the government cannot force any entity to violate their religious convictions unless they use the “least restrictive means” of furthering a “compelling government interest.”

“The Supreme Court has directed that it is not this Court’s role to decide whether those ‘religious beliefs are mistaken or insubstantial,’ Cox explained. “Instead, this Court’s ‘narrow function’ is to determine if this is ‘an honest conviction’ and, as in Hobby Lobby, there is no dispute that it is….”

“Significantly, neither transgender status nor gender identity are protected classes under Title VII,” he also concluded.

However, the Sixth Circuit Court of Appeals disagreed with Cox’s ruling and overturned the decision on Wednesday.

“[I]t is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” Nelson Moore wrote. “[A]n employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. 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.”

The court also opined that Rost’s freedom of religious exercise would not be significantly burdened by allowing Stephens to dress as a woman.

“[S]imply 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,” the panel asserted.

“We presume that the ‘line [Rost] draw[s]’—namely, that permitting Stephens to represent [himself] as a woman would cause him to ‘violate God’s commands’ because it would make him ‘directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,’—constitutes ‘an honest conviction.’ But we hold that, as a matter of law, tolerating Stephens’s understanding of [his] sex and gender identity is not tantamount to supporting it,” it concluded.

Read the ruling in full here.

Alliance Defending Freedom (ADF), which represented Rost in court, expressed disappointment with the decision.

“American business owners, especially those serving the grieving and the vulnerable, should be free to live and work consistently with their faith,” said Senior Counsel Gary McCaleb. “The funeral home’s dress code is tailored to serve those mourning the loss of a loved one. Today’s decision misreads court precedents that have long protected businesses which properly differentiate between men and women in their dress and grooming code policies.”

“Court opinions should interpret legal terms according to their plain meaning when Congress passed the law,” he added. “This opinion instead rewrites federal law and is directly contrary to decisions from other federal appellate courts. We are consulting with our client to consider their options for appeal.”