• Jay Kaplan is the staff attorney for the ACLU of Michigan’s LGBT Project. He spoke to a small crowd at Affirmations April 4 about the court ruling

Town Losing Time to Appeal Trans Rights Ruling Against Funeral Home

Jason A. Michael
By | 2018-04-11T13:42:56+00:00 April 11th, 2018|Michigan, News|

It’s been a month since the landmark ruling from the Sixth Circuit Court of Appeals was decided. The 6th Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, ruled that Aimee Stephens was inappropriately fired from R.G. & G.R. Harris Funeral Home in Garden City, Michigan, for being transgender.
Stephens had five years of excellent evaluations under her belt when she notified her employer that was transitioning from male to female, and that she planned to begin presenting as a woman at work. Shortly after, the funeral home fired her.
Stephens complained to the Equal Employment Opportunity Commission. The funeral home was candid with the EEOC when it admitted to them that they had fired Stephens for being transgender. The EEOC ultimately sued the funeral home on the basis that the firing violated Title VII of the Civil Rights Act of 1964.
While Title VII does not specifically cover gay or transgender people and even though Michigan law says you can be fired simply for being LGBT, previous cases have been successfully argued on the basis of sex discrimination.
“Title VII says you can’t discriminate based on sex and our federal courts have recently expanded the definition of what sex discrimination is,” said Jay Kaplan, who spoke to a small group at Affirmations on April 4 about the ruling. “We have a split in our circuit court of appeals and eventually it will be the Supreme Court who will decide this issue for everyone.”
Initially, the EEOC lost in federal district court.
“We had a really bad decision from the federal district court and it was decided to appeal to the 6th Circuit Court,” Kaplan said. “The case was the EEOC against the funeral home. When the case was appealed we had a new administration coming in. So the ACLU filed to motion to intervene or, in other words, to be able to enter this lawsuit on behalf of Aimee.”
The case was heard before a three-judge panel last October.
“The 6th Circuit is made up of 15 judges,” Kaplan said. “Of the three judges we had two of them were appointed by President Obama so we knew they were going to be somewhat progressive. And the third judge was appointed by President Bush but had been nominated by Bill Clinton.
So we had these three judges who were open-minded to our arguments and listened to our arguments.”
Five months later, on March 7, the ruling came down. It was an absolute victory for Stephens and the EEOC.
“It was an incredible decision because it did a number of things,” said Kaplan. “The court made absolutely clear that transgender people are protected against discrimination under Title VII based on gender stereotyping. They said being transgender in and of itself is gender nonconforming. You’re not able to conform to gender stereotypes.
“This was the first time a federal court, a circuit court of appeals, had addressed the issue of trying to use religion as an excuse or a defense against discrimination against LGBT people, particularly transgender people,” Kaplan said. “The biggest threat to LGBT rights today is this attempt to use religious beliefs in nonreligious activity as a basis, as a reason, to justify that discrimination.”
But the battle may not be over just yet. The losing side can request a rehearing of the case before the full panel of judges who are on 6th Circuit Court of Appeals.
“A majority of those judges would have to decide they’d like to hear the case,” Kaplan said. “The other side has 45 days to request this hearing.”
The funeral home has until April 21st to made their decision. If they do to ask for the rehearing and if they are granted it, the outcome may be uncertain.
“The majority of the judges on the 6th Circuit are conservative,” said Kaplan. “Just this past year President Trump had four conservative appointees to the 6th Circuit approved by the Senate, tilting the balance even more.”
The uncertainty is difficult for Stephens and her family.
“When we first got the phone call it was great,” said Donna Stephens, Aimee’s wife. “Now it’s just like what are they going to do? Are they going to appeal it or are they going to let it go? Right now we’re on pins and needles.”
The case, Donna Stephens said, has taken a toll on her family.
“There’s been times when Aimee has said I can’t do this anymore. And I’d say no, we’re gonna do this,” she said. “When she got fired we went through hell and we don’t want to see that happen to anyone else.”
For the moment, Kaplan said he is just basking in the victory.
“We just have to wait to see but the for the time being we have this sort of island oasis,” he said. “We’re really having some tough times with LGBT rights with this current administration. So we’re just going to have to see what happens with this.”

About the Author:

Jason A. Michael
Jason A. Michael earned a bachelor’s degree in journalism from Wayne State University before joining Between The Lines as a contributing writer in 1999. Jason has received both the Spirit of Detroit Award (presented by the Detroit City Council) and the Media Award from the Community Pride Banquet & Awards Ceremony for his writing and activism. Jason is also an Essence magazine bestselling author having written the authorized biography "Strength Of A Woman: The Phyllis Hyman Story," which he released on his own JAM Books imprint.