Americans United for Separation of Church and State says the Supreme Court should not continue to let individual employers use their religious beliefs as justification for discrimination. Along with 76 faith leaders and 13 religious and civil rights organizations, this coalition filed an amicus brief on April 24 in the 6th Circuit Court of Appeals supporting Aimee Stephens – the transgender woman who was fired in August 2013 from the Garden City location of the Detroit-based R.G. & G.R. Harris Funeral Homes – urging the court to overturn the lower court's ruling that Stephens was not discriminated against.
Her fight has been ongoing since September of 2014 when a lawsuit was filed by the U.S. Equal Employment Opportunity Commission on Stephens' behalf, which found that her civil rights under Title VII had been violated.
Stephens was employed since 2007. Her termination came two weeks after she wrote her employer a letter informing them about her transition from male to female, and explaining that she intended to dress in appropriate business attire as a woman. The funeral home's owner, Thomas Rost, responded, according to Stephens, by handing her a severance agreement telling her that what she was proposing to do was unacceptable.
The funeral home moved to dismiss the case in April 2015 on the grounds that gender identity is not protected by Title VII; however, the court concluded that the EEOC had properly alleged a sex discrimination claim asserting that Stephens was fired for failing to conform to Rost's sex-or gender-based stereotypes.
After the motion to dismiss was denied, the funeral home – represented by Alliance Defending Freedom – amended its answer to raise defenses under the Free Exercise Clause and the Religious Freedom Restoration Act.
The funeral home argues that it is protected by RFRA, which prohibits encroachment on certain kinds of business owner's religious convictions absent a compelling government interest. The Supreme Court in June 2014 held in the highly-controversial case, Burwell v. Hobby Lobby, that RFRA applies to closely-held for-profit companies.
That case in particular has emboldened other religious objectors, like R.G. & G.R. Harris Funeral Homes, to assert their faith-based beliefs, which does considerable harm to LGBTQ people.
Setting a dangerous precedent in this case, U.S. District Judge Sean F. Cox wrote in his August 2016 ruling that requiring the funeral home to do something it was religiously opposed to because of discrimination laws "would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs."
The next step was to appeal the decision to the 6th Circuit, which the EEOC did in October 2016. Then Donald Trump won the presidential election and Stephens became worried as he quickly named Victoria Lipnic EEOC Commissioner in January. Lipnic is a Republican, and acting chair of the commission. In July, Lipnic will replace Jenny Yang, a Democrat, who has been the current chair since September 2014.
Lipnic's LGBTQ Track Record
Lipnic was first appointed to the EEOC by former President Barack Obama in 2010 through recess appointment. She was subsequently nominated to a second term and confirmed by the Senate in late 2015. Lipnic's history of supporting LGBTQ issues has reportedly been mixed, but she did vote in favor of pursuing the Stephens case.
Lipnic was part of the EEOC's unanimous 2012 decision in Macy v. Holder, where the EEOC held that intentional discrimination against a transgender individual because of that person's gender identity is discrimination based on sex and therefore violates Title VII.
She voted against a key decision in 2015 that found discrimination based on sexual orientation to be illegal. But she later supported the commission's first sexual orientation lawsuits and another one in January.
Concerns Loom as EEOC Moves Toward Republican Majority
Lipnic's appointment prompted the EEOC's request in January for a 30-day extension to file its legal arguments citing "administration-related changes at the commission" as their reason.
Shortly after, a Slate report broke this news when the ACLU filed a request to intervene amid speculation the EEOC may withdraw from Stephens' case.
Although the EEOC appealed the decision, "Recent actions by the government have given Ms. Stephens significant cause for concern that the EEOC will not continue to adequately represent her interests," according to court records. "Given the recent change in presidential administration, Ms. Stephens may bring a different perspective to the sex discrimination and religious exercise issues at stake in this appeal. She should not be left to rely on the arguments made by the government, which may now decide to change its position on the issues under review."
The funeral home urged the 6th Circuit on February 6 not to let Stephens intervene, noting in an opposition memo that her motion is "untimely," according to a Law360 report. R.G. & G.R. Harris called Stephens' claims the EEOC would not vigorously represent her "sheer speculation."
The Future of Title VII Protections
The EEOC's leadership, appointed by the president, is composed of the chair, vice chair and three commissioners, with the chair having considerable influence over the commission's direction. Trump has not appointed a fifth commissioner or new general counsel yet, which supports the commission. Until then, legal analysts at Law360 predict little to no change, though they anticipate a decline in Obama's emphasis on LGBTQ protections down the road as they do not seem to be priorities for President Trump.
Moving forward, the EEOC plans to pursue Stephens' case – an opening brief was filed in February – and as stated on their website, will continue to function as "an independent federal agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee." And while the EEOC's stance is consistent with that taken by the commission while Obama was in office, the ACLU remains concerned cases of anti-LGBTQ discrimination will not be pursued with the same force they were under Democratic influence.
With the future of Title VII protections for LGBTQ people in question, Americans United became involved in this case through its Protect Thy Neighbor project, which seeks to stop religion-based discrimination against LGBTQ people and others.
As a religious liberty organization that advocates for the freedom to believe – or not – as one chooses, Americans United often files amicus briefs in church-state cases across the country.
"True religious freedom, however, does not include the right to use one's religious beliefs to inflict harm on others. Here, that is exactly what the funeral home is trying to do. Firing Aimee because she is transgender is clearly illegal. It's a violation of Title VII. But the funeral home is arguing that it shouldn't have to comply with Title VII because of its owner's religious beliefs. We believed that it was crucial to offer the point of view of clergy and religious liberty and civil rights organizations to counter the funeral home's narrative. There are many people of faith and many supporters of a robust right of religious exercise who do not believe that religious freedom includes the right to ignore anti-discrimination laws," said Carmen Green, a Madison Fellow at Americans United who litigates church-state cases at trial and on appeal.
Green explains that people of faith and religious groups have voiced support for the rights of LGBTQ persons in amicus briefs submitted in Gloucester County School Board v. GG (bathroom access), Obergefell v. Hodges (marriage-equality), and United States v. Windsor(striking down DOMA), to name just a few cases.
Green said their brief "represents a broad network of religious and religious liberty groups, as well as clergy, who believe that we can simultaneously have robust protections for religious exercise and ensure dignity and equal rights for all."
Protect LGBTQ Employees
While Stephens' case and protections for LGBTQ employees are being determined at the federal level, there is no statewide law in Michigan that prohibits discrimination based on sexual orientation or gender identity in both public and private sector employment.
More than four percent of the American workforce identifies as LGBTQ. Approximately 184,000 of these workers live in Michigan, according to a 2015 report by the Williams Institute, and 84 percent of them are transgender workers who experience workplace discrimination.
In 2016, a record number of more than 200 anti-LGBTQ bills were introduced – a number that is expected to increase in 2017.
Until the Elliott Larsen Civil Rights Act is amended in Michigan to protect LGBTQ people from employment, housing and public accommodation discrimination, more than 40 cities across the state have adopted non-discrimination ordinances that prohibit this kind of discrimination based on either sexual orientation or gender identity, or both.
As a growing number of courts have held that discrimination on the basis of gender identity violates Title VII, employers are encouraged to enforce more inclusive policies, practices, and procedures for transgender employees.
