throbber
d J
`
`No. 18-107
`
`Gabriel Arkles
`Chase B. Strangio
`Ria Tabacco Mar
`James D. Esseks
`Louise Melling
`Jennesa Calvo-Friedman
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`125 Broad Street
`New York, NY 10004
`
`Jay D. Kaplan
`Daniel S. Korobkin
`AMERICAN CIVIL LIBERTIES
`UNION FUND OF MICHIGAN
`2966 Woodward Avenue
`Detroit, MI 48201
`
`ohn A. Knight
`Counsel of Record
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`150 N. Michigan Avenue,
`Suite 600
`Chicago, IL 60601
`(312) 201-9740
`jaknight@aclu.org
`
`David D. Cole
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`915 15th Street, NW
`Washington, DC 20005
`
`Elizabeth O. Gill
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`39 Drumm Street
`San Francisco, CA 94111
`
`Supreme Court of the United States
`
`IN THE
`
`R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
`
`—v.—
`
`Petitioner,
`
`EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
`and AIMEE STEPHENS,
`
`Respondents.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE SIXTH CIRCUIT
`
`BRIEF FOR RESPONDENT AIMEE STEPHENS
`
`

`

`QUESTION PRESENTED
`
`Whether Title VII prohibits discrimination
`against transgender people based on (1) their status
`as transgender or (2) sex stereotyping under Price
`Waterhouse v. Hopkins, 490 U.S. 228 (1989).
`
`
`
`
`
`
`
`i
`
`

`

`PARTIES TO THE PROCEEDING
`
`The following were parties to the proceedings
`in the United States Court of Appeals for the Sixth
`Circuit:
`
`Petitioner R.G. &. G.R. Harris Funeral Homes,
`Inc., which is a closely held, for-profit corporation.
`
`Respondent United States Equal Employment
`Opportunity Commission.
`
`Respondent Aimee Stephens, who
`individual and citizen of Michigan.
`
`is an
`
`
`
`
`
`
`
`
`
`ii
`
`

`

`TABLE OF CONTENTS
`
`QUESTION PRESENTED .......................................... i
`
`PARTIES TO THE PROCEEDING ........................... ii
`
`TABLE OF AUTHORITIES ...................................... vi
`
`OPENING BRIEF FOR RESPONDENT ................... 1
`
`OPINIONS BELOW ................................................... 1
`
`JURISDICTION .......................................................... 1
`
`RELEVANT STATUTORY PROVISION ................... 1
`
`INTRODUCTION ....................................................... 3
`
`STATEMENT OF THE CASE .................................... 4
`
`SUMMARY OF ARGUMENT .................................. 15
`
`ARGUMENT ............................................................. 20
`
`I. WHEN HARRIS HOMES FIRED MS.
`STEPHENS BECAUSE SHE IS
`TRANSGENDER, IT DID SO BECAUSE OF
`HER SEX IN VIOLATION OF TITLE VII ...... 20
`
`A. When Sex Is a But-For Cause of an
`Adverse Employment Decision,
`the Decision Violates Title VII ................. 21
`
`B. Since Harris Homes Would Not Have
`Fired Ms. Stephens for Living Openly
`as a Woman Had She Been Assigned the
`Female Sex at Birth, Her Discharge Was
`Because of Sex ........................................... 23
`
`II. HARRIS HOMES VIOLATED TITLE VII BY
`FIRING MS. STEPHENS FOR DEPARTING
`FROM SEX-BASED STEREOTYPES ABOUT
`MEN AND WOMEN ......................................... 28
`
`
`
`iii
`
`

`

`A. Harris Homes Discriminated Against
`Ms. Stephens Because She Departed
`from Its Owner’s Expressly Articulated
`Stereotypes About How Men and Women
`Should Identify, Appear, and Behave ...... 29
`
`B. Discrimination Against Employees for
`Being Transgender Is Inherently Based
`on Sex Stereotypes .................................... 32
`
`C. Permitting Employers to Discriminate
`Against Transgender People for Not
`Matching Sex-Based Generalizations
`Would Undermine Title VII Protections
`for All Workers .......................................... 34
`
`III. THERE IS NO BASIS FOR EXCLUDING
`TRANSGENDER INDIVIDUALS FROM TITLE
`VII’S PROHIBITION ON DISCRIMINATION
`BECAUSE OF SEX........................................... 36
`
`A. Nothing in Title VII’s Text or Structure
`Supports an Exclusion of Transgender
`Individuals ................................................ 36
`
`1. Title VII’s Plain Language Protects
`“Individuals” from Discrimination,
`Not Groups ........................................ 37
`
`2. There is Only One Statutory Exception
`to the Ban on Discrimination Because
`of Sex and it Does Not Reference
`Transgender Employees .................... 40
`
`B. The Meaning of a Statute Is Determined
`by Its Text, Even if All of Its Applications
`Were Not Expressly Contemplated at the
`Time of Its Enactment .............................. 41
`
`
`
`iv
`
`

`

`C. Neither Subsequent Legislative Action nor
`Inaction Has Changed the Relevant Text of
`Title VII ..................................................... 45
`
`IV. THIS CASE DOES NOT TURN ON THE
`LAWFULNESS OF SEX-SPECIFIC
`EMPLOYMENT RULES GENERALLY OR
`THE APPLICATION OF SUCH RULES TO
`TRANSGENDER EMPLOYEES ...................... 47
`
`A. Ms. Stephens Was Fired for Being
`Transgender, Not Solely for How She
`Was Going to Comply with Harris
`Homes’s Dress Code .................................. 48
`
`B. The Question of Whether Sex-Specific
`Policies Are Permissible or How They
`Apply to Transgender Workers Is Not
`Presented .................................................. 50
`
`CONCLUSION .......................................................... 52
`
`
`
`
`
`
`
`
`
`
`
`v
`
`

`

`TABLE OF AUTHORITIES
`
`
`CASES
`
`Barnhart v. Sigmon Coal Co., Inc.,
`534 U.S. 438 (2002) ............................................... 37
`
`Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) ....... 45
`
`Burrage v. United States, 571 U.S. 204 (2014) ........ 23
`
`Capitol Square Review & Advisory Bd. v. Pinette,
`515 U.S. 753 (1995) ............................................... 47
`
`Competitive Enter. Inst. v. U.S. Dep’t of Transp.,
`863 F.3d 911 (D.C. Cir. 2017) ............................... 42
`
`Connecticut Nat. Bank v. Germain,
`503 U.S. 249 (1992) ............................................... 37
`
`Connecticut v. Teal, 457 U.S. 440 (1982) ................. 39
`
`Diaz v. Pan Am. World Airways, Inc.,
`442 F.2d 385 (5th Cir. 1971) ................................. 41
`
`Dothard v. Rawlinson, 433 U.S. 321 (1977) ...... 39, 41
`
`EEOC v. A & E Tire, Inc.,
`325 F. Supp. 3d 1129 (D. Colo. 2018) ................... 35
`
`EEOC v. Abercrombie & Fitch Stores, Inc.,
`135 S. Ct. 2028 (2015) ..................................... 21, 25
`
`Evans v. Georgia Reg’l Hosp.,
`850 F.3d 1248 (11th Cir.) ...................................... 30
`
`Fabian v. Hosp. of Cent. Conn.,
`172 F. Supp. 3d 509 (D. Conn. 2016) .................... 27
`
`Flowers v. Mississippi,
`No. 17-9572 (U.S. June 21, 2019) ......................... 39
`
`Frontiero v. Richardson, 411 U.S. 677 (1973) .......... 33
`
`
`
`vi
`
`

`

`Glenn v. Brumby,
`663 F.3d 1312 (11th Cir. 2011) ........... 24, 28, 32, 33
`
`Gross v. FBL Fin. Servs., Inc.,
`557 U.S. 167 (2009) ............................................... 21
`
`Hobbie v. Unemployment Appeals Comm’n of Fla.,
`480 U.S. 136 (1987) ............................................... 27
`
`Int’l Union, United Auto., Aerospace & Agr.
`Implement Workers of Am., UAW v. Johnson
`Controls, Inc., 499 U.S. 187 (1991) ....................... 34
`
`Jespersen v. Harrah’s Operating Co.,
`444 F.3d 1104 (9th Cir. 2006) ............................... 51
`
`Lewis v. City of Chicago, 560 U.S. 205 (2010) ......... 43
`
`Los Angeles Dep’t of Water & Power v. Manhart,
`435 U.S. 702 (1978) ........................................ passim
`
`Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
`475 U.S. 574 (1986) ................................................. 5
`
`Meritor Sav. Bank, FSB v. Vinson,
`477 U.S. 57 (1986) ................................................. 43
`
`Miller v. Bank of Am.,
`418 F. Supp. 233 (N.D. Cal. 1976) ........................ 43
`
`Newport News Shipbuilding & Dry Dock Co. v.
`EEOC, 462 U.S. 669 (1983) ................................... 44
`
`Nichols v. Azteca Rest. Enterprises, Inc.,
`256 F.3d 864 (9th Cir. 2001) ................................. 35
`
`Oncale v. Sundowner Offshore Servs., Inc.,
`523 U.S. 75 (1998) .......................................... passim
`
`Pa. Dep’t of Corrs. v. Yeskey,
`524 U.S. 206 (1998) ............................................... 42
`
`Phillips v. Martin Marietta Corp.,
`400 U.S. 542 (1971) ........................................ passim
`
`
`
`vii
`
`

`

`Phillips v. Martin Marietta Corp.,
`411 F.2d 1 (5th Cir. 1969) ..................................... 22
`
`Price Waterhouse v. Hopkins,
`490 U.S. 228 (1989) ........................................ passim
`
`Reid v. Sears, Roebuck & Co.,
`790 F.2d 453 (6th Cir. 1986) ................................. 10
`
`Robinson v. Shell Oil Co.,
`519 U.S. 337 (1997) ......................................... 37, 46
`
`Schroer v. Billington,
`577 F. Supp. 2d 293 (D.D.C. 2008) ........... 27, 31, 46
`
`Schwenk v. Hartford,
`204 F.3d 1187 (9th Cir. 2000) ............................... 32
`
`Smith v. City of Salem, Ohio,
`378 F.3d 566 (6th Cir. 2004) ..................... 24, 32, 35
`
`Solid Waste Agency of N. Cook Cty. v. U.S. Army
`Corps of Eng’rs, 531 U.S. 159 (2001) .................... 46
`
`Union Bank v. Wolas, 502 U.S. 151 (1991) .............. 42
`
`United States v. Diebold, Inc., 369 U.S. 654 (1962) ... 5
`
`United States v. Price, 361 U.S. 304 (1960) ............. 46
`
`United States v. Virginia, 518 U.S. 515 (1996) ........ 33
`
`Univ. of Texas Sw. Med. Ctr. v. Nassar,
`570 U.S. 338 (2013) ......................................... 21, 23
`
`West v. Gibson, 527 U.S. 212 (1999) ......................... 43
`
`Wis. Cent. Ltd. v. United States,
`138 S. Ct. 2067 (2018) ........................................... 42
`
`STATUTES
`
`28 U.S.C. § 1254(1) ..................................................... 1
`
`42 U.S.C. § 2000e-2 ............................................ passim
`
`
`
`viii
`
`

`

`42 U.S.C. § 2000e-2(a)(1) ................................... passim
`
`42 U.S.C. § 2000e-2(e) ............................................... 41
`
`42 U.S.C. § 2000e-2(m) ....................................... 21, 22
`
`42 U.S.C. § 2000e-5(g)(2) .......................................... 22
`
`OTHER AUTHORITIES
`
`110 Cong. Rec. 2728, 13837–38 (1964) ..................... 23
`
`Br. for Resp’ts, Oncale v. Sundowner Offshore Servs.,
`Inc., 523 U.S. 75 (1998) (No. 96-568) .................... 44
`
`Civil Rights Uniformity Act of 2017, H.R. 2796,
`115th Cong. § 3(b) (2017) ...................................... 46
`
`EEOC, Guidelines on Discrimination Because of Sex,
`29 C.F.R. § 1604.1(a)(i)(ii) ..................................... 28
`
`Eli Coleman et al., World Prof’l Ass’n for
`Transgender Health, Standards of Care for the
`Health of Transsexual, Transgender, and Gender
`Nonconforming People (7th ed. 2012) ..................... 7
`
`Webster’s New International Dictionary
`(2d ed. 1958) .......................................................... 24
`
`Wylie C. Hembree et al., Endocrine Treatment
`of Gender-Dysphoric/Gender-Incongruent Persons:
`An Endocrine Society Clinical Practice Guideline,
`102 J. Clinical Endocrinology & Metabolism 3869
`(2017) ................................................................... 5, 6
`
`
`
`
`
`
`
`
`
`
`ix
`
`

`

`OPENING BRIEF FOR RESPONDENT
`
`respectfully
`Respondent Aimee Stephens
`requests that this Court affirm the judgment of the
`United States Court of Appeals for the Sixth Circuit.
`
`OPINIONS BELOW
`
`The opinion of the United States Court of
`Appeals for the Sixth Circuit (Pet. App. 1a–81a) is
`published at 884 F.3d 560. The opinion of the United
`States District Court for the Eastern District of
`Michigan denying the EEOC’s Motion for Summary
`Judgment and granting in part and denying in part
`Petitioner’s Motion for Summary Judgment (Pet.
`App. 82a–161a) is published at 201 F. Supp. 3d 837.
`The opinion of the district court denying Petitioner’s
`Motion to Dismiss (Pet. App. 162a–187a) is published
`at 100 F. Supp. 3d 594.
`
`JURISDICTION
`
`The judgment of the court of appeals was
`entered on March 7, 2018. Petitioner filed a Petition
`for Writ of Certiorari on July 20, 2018, which the
`Court granted on April 22, 2019. This Court has
`jurisdiction under 28 U.S.C. § 1254(1).
`
`RELEVANT STATUTORY PROVISION
`
`Section 703 of the Civil Rights Act of 1964, as
`amended, 42 U.S.C. § 2000e-2, provides in pertinent
`part:
`
`
`
`(a) Employer practices
`
` It shall be an unlawful employment practice
`for an employer—
`
`
`
`1
`
`

`

`(1) to fail or refuse to hire or to discharge any
`individual, or otherwise to discriminate against any
`individual with respect to his compensation, terms,
`conditions, or privileges of employment, because of
`such individual’s race, color, religion, sex, or national
`origin . . . .
`
`(e) Businesses or enterprises with
`
`personnel qualified on basis of religion, sex, or
`national origin; educational institutions with
`personnel of particular religion
`
`Notwithstanding any other provision of this
`subchapter,
`(1)
`it shall not be an unlawful
`employment practice for an employer . . . [to] employ
`any individual . . . on the basis of his religion, sex, or
`national origin in those certain instances where
`religion, sex, or national origin is a bona fide
`occupational qualification reasonably necessary to
`the normal operation of that particular business or
`enterprise . . . .
`
`of
`consideration
`(m) Impermissible
`
`race, color, religion, sex, or national origin in
`employment practices
`
`this
`in
`Except as otherwise provided
`subchapter, an unlawful employment practice is
`established
`when
`the
`complaining
`party
`demonstrates that race, color, religion, sex, or
`national origin was a motivating factor for any
`employment practice, even though other factors also
`motivated the practice.
`
`
`
`
`
`
`
`
`
`2
`
`

`

`INTRODUCTION
`
`Aimee Stephens was a valued employee at
`Petitioner R.G. & G.R. Harris Funeral Homes, Inc.
`(“Harris Homes”)
`for
`six
`years. She was
`compassionate,
`skilled, and well-regarded by
`management, customers, and fellow employees. But
`when she informed Harris Homes that she is
`transgender and would begin living openly as a
`woman, it fired her. When Harris Homes fired Ms.
`Stephens for being transgender, it denied her one of
`the central promises of Title VII: that she would be
`judged as an employee based on her individual merit,
`not her sex.
`
`Title VII prohibits discharging an individual
`employee “because of such individual’s . . . sex.” This
`Court has made clear that a firing is “because of sex”
`where “the evidence shows treatment of a person in
`a manner which but for that person’s sex would
`be different.” Los Angeles Dep’t of Water & Power
`v. Manhart, 435 U.S. 702, 711 (1978) (internal
`quotation marks omitted).1
`
`“sex”
`to
`if Title VII’s reference
`Even
`encompasses only one’s sex assigned at birth, as
`Harris Homes asserts, the decision to fire Ms.
`Stephens was “because of sex.” Had Ms. Stephens
`been assigned a female rather than a male sex at
`birth, Harris Homes would not have fired her for
`living openly as a woman. Because Harris Homes
`would have treated Ms. Stephens differently had her
`assigned sex at birth been different, its decision to
`fire Ms. Stephens violated Title VII.
`
`
`1 Respondent uses “because of sex” rather than “because of . . .
`sex” when quoting 42 U.S.C. § 2000e-2(a)(1).
`
`
`
`3
`
`

`

`Harris Homes also fired Ms. Stephens for
`failing to conform to its owner’s views of how men
`and women should identify, look, and act. This Court
`has long recognized that discharging an employee
`because of the employer’s sex-based stereotypes
`violates Title VII. There is no basis for excluding
`transgender people from that protection, and any
`attempt to do so would undermine Title VII’s
`protections for all workers.
`
`The unambiguous text of Title VII prohibited
`Harris Homes from firing Ms. Stephens because of
`her sex. It is irrelevant whether the Congress that
`enacted Title VII contemplated its application to
`transgender employees. Statutes must be interpreted
`based on their text rather than on an assessment of
`their
`originally anticipated applications. Any
`exception to Title VII permitting sex discrimination
`against transgender employees would have to come
`from Congress, not this Court.
`
`Under Title VII, sex “must be irrelevant to
`employment decisions.” Price Waterhouse v. Hopkins,
`490 U.S. 228, 240 (1989) (plurality). When Harris
`Homes fired Aimee Stephens, it violated that basic
`premise by evaluating her based on sex and not her
`unquestioned ability to do her job.
`
`STATEMENT OF THE CASE
`
`A. Factual Background
`
`Respondent Aimee Stephens is a woman who
`is transgender, which means that she was assigned a
`male sex at birth and has a female gender identity.2
`
`
`2 The case was decided by the district court on cross-motions for
`summary judgment. Unless otherwise noted, the Statement of
`the Case reflects the undisputed facts, with all reasonable
`
`
`
`4
`
`

`

`J.A. 88, 180–81. “Sex assigned at birth” refers
`to the sex an infant is presumed to be at birth,
`usually based on external reproductive anatomy. 3
`Everyone has a gender identity, which is “one’s
`internal, deeply held sense of gender.”4 Most people,
`whether transgender or not, become aware of their
`gender identity in early childhood. Id. at 3874–76.
`Ms. Stephens recalls knowing she was a girl when
`she was five years old. Resp. App. 1a. Although most
`people have a gender identity that matches their sex
`assigned at birth, this is not true for the at least 1.55
`million transgender people who live in the United
`States today. See Amici Curiae Br. of Scholars Who
`Study Transgender Population
`in Support of
`Respondent Aimee Stephens, (Background).
`
`Ms. Stephens worked in the funeral industry
`over the course of nearly thirty years. Resp. App.
`34a. In October of 2007, she began working for
`Harris Homes as a licensed funeral director and
`embalmer. Pet. App. 93a–94a. At first, Ms. Stephens
`
`
`inferences drawn in Harris Homes’s favor. Matsushita Elec.
`Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). But
`to the extent that Harris Homes asks the Court to reverse the
`judgment below and enter summary judgment in its favor, the
`facts must be construed in a light most favorable to Ms.
`Stephens. See id. (“[o]n summary judgment the inferences to be
`drawn from the underlying facts . . . must be viewed in the light
`most favorable to the party opposing the motion.”) (alterations
`in original) (quoting United States v. Diebold, Inc., 369 U.S.
`654, 655 (1962)).
`
`3 Wylie C. Hembree et al., Endocrine Treatment of Gender-
`Dysphoric/Gender-Incongruent Persons: An Endocrine Society
`Clinical Practice Guideline, 102 J. Clinical Endocrinology &
`Metabolism 3869, 3875 (2017) (hereinafter “Endocrine Society
`Guidelines”).
`
`4 Id. at 3875.
`
`
`
`5
`
`

`

`conformed her dress and appearance to her sex
`assigned at birth. She wore typically male clothing,
`J.A. 101, and used a typically male name, J.A. 87.
`She was perceived as male, see Resp. App. 12a, but
`“felt imprisoned in a body that d[id] not match [her]
`mind.” Resp. App. 1a.
`
`Throughout her employment at Harris Homes,
`Ms. Stephens did exemplary work. It is undisputed
`that she was not fired for any performance-related
`reason. Pet. App. 100a. Thomas Rost, the owner of
`Harris Homes, testified that Ms. Stephens was “able
`to perform the jobs of a funeral director and
`embalmer,” J.A. 40, and “showed sensitivity and
`compassion to the clients who came in,” J.A. 41. In
`dealing with families, “Stephens had been solicitous
`of their feelings” and had “been courteous and
`compassionate.” J.A. 35. She was an “incredible
`embalmer.” J.A. 171; see also Resp. App. 72a.
`“[F]amilies seemed very pleased” with her work.
`Resp. App. 72a.
`
`Two years after she began working for Harris
`Homes, Ms. Stephens began treatment with a
`therapist to address the despair, loneliness, and
`shame she suffered because of the difference between
`the sex she understood herself to be and the sex she
`was assigned at birth. Resp. App. 1a. For Ms.
`Stephens,
`like many
`transgender people,
`the
`disparity between her gender identity and the sex
`she was assigned at birth led to clinically significant
`distress known as gender dysphoria. Resp. App. 1a–
`2a; Endocrine Society Guidelines at 3875. The
`prevailing clinical standards for the treatment of
`
`
`
`6
`
`

`

`gender dysphoria 5 recommend that patients take
`steps to live consistently with their gender identity to
`alleviate the anguish they experience. WPATH
`Standards of Care at 9–10. This process, known as
`gender transition, can include medical and surgical
`treatment as well as changes to clothing, hair,
`grooming, name, sex designation on
`identity
`documents, and the sex one describes oneself to be
`when interacting with others. Id. Medical standards
`generally recommend living openly in accordance
`with one’s gender
`identity
`for a year before
`undergoing certain surgical treatment. Id. at 59–61.
`
`Following these standards, Ms. Stephens’s
`treating clinicians recommended that she begin
`living her life consistently with her gender identity
`for a year before undergoing surgery. Resp. App. 2a.
`After four years of professional counseling, and with
`the support of her wife Donna, Ms. Stephens decided
`she could no longer delay her transition. Resp. App.
`1a–2a, 84a.
`
`Ms. Stephens carefully drafted a letter to her
`“Friends and Co-Workers” explaining that she was a
`transgender woman. Resp. App. 1a; J.A. 91. She
`described the challenges she had faced in accepting
`herself as a woman and outlined her prescribed
`treatment, which included living openly as a woman.
`Resp. App. 1a. On July 31, 2013, she provided that
`
`
`5 Eli Coleman et al., World Prof’l Ass’n for Transgender
`Health, Standards of Care for the Health of Transsexual,
`Transgender, and Gender Nonconforming People (7th ed. 2012),
`https://www.wpath.org/media/cms/Documents/SOC%20v7/Stand
`ards%20of%20Care_V7%20Full%20Book_English.pdf
`(hereinafter “WPATH Standards of Care”).
`
`
`
`7
`
`

`

`letter to Mr. Rost. Pet. App. 94a–95a. In it, she
`explained:
`
`I have known many of you for some time
`now, and I count you all as my friends.
`What I must tell you is very difficult for
`me and is taking all the courage I can
`muster. . . . I have a gender identity
`disorder that I have struggled with my
`entire life. I have managed to hide it
`very well all these years. . . . With the
`support of my loving wife, I have
`decided to become the person that my
`mind already is. . . . Toward that end, I
`intend
`to have
`sex
`reassignment
`surgery. The first step I must take is to
`live and work full-time as a woman for
`one year. At the end of my vacation on
`August 26, 2013, I will return to work
`as my true self, Amiee Australia
`Stephens,
`in appropriate business
`attire.
`
`I realize that some of you may have
`trouble understanding this. In truth, I
`have had to live with it every day of my
`life and even I do not fully understand it
`myself. . . . As distressing as this is sure
`to be to my friends and some of my
`family, I need to do this for myself and
`for my own peace of mind and to end the
`agony in my soul. . . . It is my wish that
`I can continue to work at R.G. & G.R.
`Harris Funeral Home doing what I have
`always done, which is my best!
`
`Resp. App. 1a–2a.
`
`
`
`8
`
`

`

`On August 15, 2013, two weeks after receiving
`Ms. Stephens’s letter, Mr. Rost told her that her
`“services would no longer be needed.” Pet. App. 95a–
`96a. When asked “the specific reason that [he]
`terminated” Ms. Stephens, Mr. Rost responded,
`“because he . . . was no longer going to represent
`himself as a man. He wanted to dress as a woman.”
`Pet. App. 109a. 6 Mr. Rost also objected to Ms.
`Stephens’s use of the name “Aimee” “because he’s a
`man.” Resp. App. 61a. He further explained his view
`that one “should not deny or attempt to change their
`sex” and that it is “wrong for a biological male to
`deny his sex by dressing as a woman or for a
`biological female to deny her sex by dressing as a
`man.” J.A. 131.
`
`Ms. Stephens made clear that when she
`returned from her vacation and began to live fully
`and openly as Aimee, she would continue to wear
`“appropriate business attire.” Resp. App. 2a; J.A.
`116. Mr. Rost testified that Harris Homes would
`have required a female funeral director to wear a
`skirt suit instead of a pants suit. J.A. 75, 133. While
`Mr. Rost had never seen Ms. Stephens dressed in a
`skirt suit or outwardly expressing herself in other
`typically feminine ways, he stated that “I’ve yet to
`see a man dressed up as a woman that I didn’t know
`was not a man dressed up as a woman” and therefore
`
`
`6 Mr. Rost consistently referred to Ms. Stephens as “he” and “a
`man,” refusing to address her with feminine pronouns,
`consistent with his view that a “biological male” should not
`adopt typically feminine names or other signifiers. J.A. 129–
`134; Pet. App. 109a. In this brief, Ms. Stephens quotes Mr.
`Rost’s actual words, but notes that as a matter of accuracy and
`respect, Ms. Stephens is properly referred to as “she” and “a
`woman.”
`
`
`
`9
`
`

`

`“there is no way that” Ms. Stephens “would be able to
`present in such a way that it would not be obvious
`that it was [a man].” J.A. 31. He said that families
`who patronized his business “don’t need some type of
`a distraction” and Ms. Stephens’s
`“continued
`employment would negate that.” J.A. 30. Mr. Rost
`testified that even if Ms. Stephens adhered to the
`dress code for men at work, if a customer saw her
`dressed in a feminine way outside of work and
`complained, he “probably would have” considered
`that a factor in how to address her “situation.” J.A.
`78–79. When asked whether he would have fired her
`for that reason, he responded, “Perhaps, yes.”7 Id.
`
`In his deposition, Mr. Rost speculated that
`women might not feel comfortable in a restroom with
`Ms. Stephens. J.A. 57. However, he conceded that
`any concern about restroom use was “hypothetical”
`and that at no point did he discuss restroom use with
`Ms. Stephens or anyone else before he made his
`decision to fire her. J.A. 37. He made clear he would
`have fired Ms. Stephens regardless of any concerns
`about restrooms because she was no longer going to
`“represent himself as a man.” Pet. App. 109a–110a.
`
`Harris Homes currently includes three funeral
`home locations and a cremation business. J.A. 122–
`23. The company maintains a sex-specific dress code
`that requires women to wear skirts instead of pants,
`even though its owner is aware that female funeral
`
`
`7 While Mr. Rost contradicted the statement he made during his
`deposition testimony in a subsequent affidavit, “[a] party may
`not create a factual issue by filing an affidavit, after a motion
`for summary judgment has been made, which contradicts her
`earlier deposition testimony.” Reid v. Sears, Roebuck & Co., 790
`F.2d 453, 460 (6th Cir. 1986).
`
`
`
`10
`
`

`

`directors wear pants suits at other funeral homes.
`J.A. 78. Mr. Rost, however, requires women to wear
`skirts because he believes that “a male should look
`like a . . . man, and a woman should look like a
`woman.” Resp. App. 62a–63a.
`
`for male
`Harris Homes purchased suits
`funeral directors to wear to work, but required
`women to pay out of pocket for their work clothing.
`J.A. 14. Asked to explain this discrepancy, Mr. Rost
`replied, “women are a strange breed.” Resp. App.
`11a. After Ms. Stephens
`filed a charge of
`discrimination with the EEOC in this case, Mr. Rost
`began providing a stipend for clothing to women,
`although the stipend was significantly less than the
`value of the clothes he provided to men. Pet. App.
`7a–8a.
`
`In the thirty-five years Harris Homes has been
`owned by Mr. Rost, the company hired only funeral
`directors it believed to be men. J.A. 122, 133.
`Although Harris Homes has operated as many as six
`locations at once, the company has not employed
`anyone it understood to be a woman as a funeral
`director at any location since Mr. Rost’s grandmother
`stopped working in 1950. J.A. 122–23, 133. With
`respect to the staff generally, Mr. Rost distinguished
`between his “key people” and his “lady attendents
`[sic].” Resp. App. 7a.
`
`B. Proceedings Below
`
`Ms. Stephens filed a charge of discrimination
`with the EEOC soon after she was fired. Resp. App.
`4a–6a. On September 25, 2014, the EEOC filed a
`complaint against Harris Homes, alleging that it
`violated Title VII by firing Ms. Stephens because she
`is transgender, because of her “transition from male
`
`
`
`11
`
`

`

`to female, and/or because [she] did not conform to
`[Harris Homes’s] sex- or gender-based preferences,
`expectations, or stereotypes.” Pet. App. 164a, 166a.
`The EEOC’s complaint also alleged discrimination in
`compensation because of Harris Homes’s policy of
`paying for men’s work clothing but not women’s. Id.
`at 167a.
`
`Harris Homes moved to dismiss, arguing that
`Title VII does not protect transgender people from
`discrimination. Pet. App. 170a. The district court
`rejected one of the EEOC’s sex discrimination
`theories—that anti-transgender discrimination
`is
`inherently a form of sex discrimination—holding that
`“transgender . . . status is currently not a protected
`class under Title VII.” Pet. App. 172a. But the
`district court held that the EEOC had stated a claim
`that Ms. Stephens was fired in violation of Title VII
`because Harris Homes fired her based on its
`objections
`that her appearance and behavior
`departed from its sex stereotypes. Pet. App. 173a–
`184a. The district court reasoned that “any person—
`without regard to labels such as transgender—can
`assert a sex-stereotyping gender-discrimination
`claim under Title VII . . . if that person’s failure to
`conform to sex stereotypes was the driving force
`behind the termination.” Pet. App. 164a.
`
`Following discovery, both the EEOC and
`Harris Homes moved for summary judgment. Pet.
`App. 83a–84a. The district court held that Mr. Rost’s
`testimony that he fired Ms. Stephens because “he
`was no longer going to represent himself as a man,”
`and would “dress as a woman” constituted “direct
`evidence
`to support a claim of employment
`discrimination.” Pet. App. 109a–110a. But the
`district court concluded that the Religious Freedom
`
`
`
`12
`
`

`

`Restoration Act (“RFRA”) provided Harris Homes an
`“exemption from Title VII . . . under the facts and
`circumstances of this unique case,” and therefore
`granted summary judgment to Harris Homes. Pet.
`App. 142a. The district court also dismissed without
`prejudice the discriminatory compensation claim
`related to clothing, holding that Harris Homes could
`not reasonably expect that claim to arise from the
`charge Ms. Stephens filed. Pet. App. 160a.
`
`The EEOC appealed. Pet. App. 12a. Ms.
`Stephens, who had not been a party before the
`district court, filed a motion to intervene on appeal
`because of her concerns about whether the EEOC
`would be able to continue fully representing her
`interests as the case progressed. Id. The Sixth
`Circuit granted that motion, and she participated in
`briefing and argument of the case on appeal. Pet.
`App.

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