Michigan woman takes gender discrimination case to the Supreme Court

Wednesday, October 9, 2019 - 6:38pm

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Design by Lauren Kuzee

Garden City resident Aimee Stephens became a funeral director for one reason: to help people. Despite facing hardship in her personal life, Stephens found comfort in the knowledge she enabled individuals to memorialize those they loved. 

Stephens, a transgender woman, said she knew she was a woman from the age of five. After a lifetime of suppressing her identity, Stephens began to live as a woman, dressing as a man only while at work in the funeral home’s distinct male and female uniforms. 

Stephens had worked at R.G. & G.R. Harris Funeral Home in Garden City for nearly six years. In 2013, her lifelong internal struggle with gender identity came to a head, and Stephens decided to announce her intention to live fully as a woman to her co-workers. In an interview with the Detroit Free Press, Stephens described the moment she told her boss her gender identity — through a letter. 

“We just went into the chapel to talk … I gave him the letter, he read it, he folded it up and put it in his coat pocket, and he said, ‘I’ll have to think about this,’” Stephens said. 

 She went on to recount the moment her boss fired her.

“That was pretty much all that was said for two weeks … he comes back in one afternoon and he says … ‘This is not going to work.’ That’s pretty much all he said, and he handed me basically a letter firing me and offering me what I took it to be as hush money to keep my mouth shut, and basically sign away any rights I may or may not have,” Stephens said. 

Instead of accepting the money, Stephens sued with the backing of the Equal Employment Opportunity Commission, a federal agency enforcing civil rights law against workplace discrimination.  Ultimately, she took her case to the United States Sixth Circuit Court of Appeals. There, the court ruled Harris Funeral Home had unlawfully fired Stephens, and had violated Title VII of the Civil Rights Act of 1964, which prevents employers from engaging in unlawful sex discrimination.

Yesterday, Stephens’s case was heard in the U.S. Supreme Court, where attorneys David Cole and Pam Karlan argued Title VII also applies to discrimination based on gender identity.

Jay Kaplan, staff attorney for the ACLU of Michigan’s LGBT Project, explained to The Daily the organization’s argument, which deems any workplace decision made on the basis of a worker’s gender identity or sexuality inherently qualifies as discrimination based on sex. 

“You can’t understand anything about who a transgender person is without considering that person’s sex — by definition, a transgender individual is someone who identifies differently from the sex that was assigned to them at birth,” Kaplan said. “So, it’s pretty obvious, just look at the text. When you’re talking about gay, lesbian, bisexual individuals, you cannot understand them without calling attention to their sex and the sex of the person to whom they are attracted to.”

The defendants, on the other hand, took the argument that at the time of Title VII’s enactment, legislators did not foresee the potential for discrimination based on gender identity.

John Bursch, the lawyer who argued the case on behalf of the funeral home, did not respond to The Daily’s request for comment in time for publication. 

Samuel Bagenstos, a former civil rights lawyer and professor at the University of Michigan’s Law School, told The Daily the ideological composition of the court may factor into how effective this argument ends up.

“One of the characteristics of the conservative majority on the Supreme Court right now is that they have taken, generally, a very strong stand in favor of applying the statutory text, and not looking to what the purposes were behind the texts,” Bagenstos said. “They’ve argued that this is a matter of judicial restraint, that if judges just focus on the texts, they won’t be pouring their own policy preferences into their decisions.”

According to Bagenstos, the argument that a given law was written without the anticipation of a relevant social development has been used frequently by conservative lawyers in the past, but does not hold up in the case of Harris Funeral Homes.

“There’s a great example even in the same statute,” Bagenstos said. “Title VII prohibits sex discrimination. In 1964 when it was passed, no one was thinking of sexual harassment as sex discrimination, as the term hadn’t even really been coined yet. And yet, beginning in the 1970s, the courts began to recognize that when women in the workplace face harassment that men don’t, that’s sex discrimination.”

Bagenstos also said the tendency of the conservative majority to strictly adhere to texts may come into conflict with the facts of the case as the court nears a decision in the spring.

“What this case will be, in a significant way, is kind of a test of whether conservative justices, who say that text is the thing they focus on, really adhere to that in a case where following the texts may lead them in a direction that they find uncomfortable politically,” he said.

Public Policy graduate student Kate Bell, who is Co-Chair of Out In Public, an LGBTQ student organization housed in the Ford School, hosted a lecture featuring Bagenstos Monday. Bell discussed in an interview with The Daily how Bagenstos’ discussion of the case shed new light on American workplace discrimination policy for many of the attendees.

“I think a takeaway some of the attendees got from that was understanding just how few states actually offer protections in the workplace. Michigan is actually among them,” Bell said. “I think this case is really bringing to the forefront this tension between personal identification and relationships outside of the workplace, and how that could affect your job, or if it even should be on the employer’s mind.” 

Kaplan reflected on the scene outside of the Supreme Court after the arguments had been delivered. He was moved by the support for Stephens and the role she had taken on. 

“She was at the Supreme Court yesterday, it was so heartwarming,” he said. “When we walked out of the court, crowds of people outside were there cheering her on and thanking her for her courage and her willingness to be part of this movement and have her case, her situation litigated in the highest court in the land.”