Transgender
A federal judge has ruled that a man who wanted to dress as a woman while working as a funeral director cannot impose his lifestyle choice on his employer, because it would conflict with the religious standards the company advocates.
A federal judge has ruled that a man who wanted to dress as a woman while working as a funeral director cannot impose his lifestyle choice on his employer, because it would conflict with the religious standards the company advocates.

The claim had been brought by the federal Equal Employment Opportunity Commission on behalf of Anthony Stephens, who informed his employer, R.G. & G.R. Harris Funeral Homes, that he would be known as Aimee Australia Stephens when he returned from his vacation.

Stephens also told Harris he would be dressing as a woman. Harris owner Thomas Rost replied that his services no longer were needed, noting the funeral home requires men to dress in suits and ties, and women to dress in skirts and coats.

The EEOC first tried convincing the judge that Rost's response was illegal discrimination against a transgender, but the judge ruled the argument was rejected "because those are not protected classes."

Regarding the claim of discrimination based on sex/gender stereotypes with respect to clothing, the judge ruled that the EEOC failed to show that allowing Stephens to dress as a woman on the job would create the least violation of the company owner's religious rights.

"The feds shouldn't strong-arm private business owners into violating their religious beliefs, and the court has affirmed that here," said Alliance Defending Freedom Legal Counsel Doug Wardlow, who argued before the court on Aug. 11. "The government must respect the freedom of those who are seeking to serve the grieving and vulnerable. They shouldn't be forced into violating their deepest convictions."

ADF explained the background: "The funeral home hired the biologically male employee as a funeral director and embalmer at its Garden City location in 2007. Funeral directors at the company regularly interact with the public, including grieving family members and friends. After informing the funeral home of an intention to begin dressing as a female at work, the employee was dismissed for refusing to comply with the dress code. The employee was at all times free to dress as desired outside of work but was required to abide by the same dress policy that all employees are required to follow while on the job."

The court acknowledged Rost is a Christian whose "faith informs the way he operates his business and how he presents it to the public."

ADF said, "Not only would Rost be violating his faith if he were to pay for and otherwise permit his employees to dress as members of the opposite sex while at work, the employee dress policy is also designed to be sensitive to interaction with customers at an especially delicate time of their lives."

The judge said 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."

"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. The Supreme Court has directed that it is not this court's role to decide whether those 'religious beliefs are mistaken or insubstantial.' ... 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."

The judge pointed out it was actually the EEOC that was "stereotyping" male and female, since it was insisting Stephens be allowed to wear "women's" clothing.

"The EEOC claims the funeral home fired Stephens for failing to conform to the masculine gender stereotypes expected as to work clothing and that Stephens has a Title VII right not to be subject to gender stereotypes in the workplace.

"Yet the EEOC has not challenged the funeral home's sex-specific dress code, that requires female employees to wear a skirt-suit and requires males to wear a pants-suit with a neck tie," the judge said.

"Rather, the EEOC takes the position that Stephens as a Title VII right to 'dress as a woman' (ie., dress in a stereotypical feminine manner) while working at the funeral home, in order to express Stephens' gender identity."

He continued, "If the compelling interest is truly in eliminating gender stereotypes, the court fails to see why the EEOC couldn't propose a gender-neutral dress code as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here.

"But the EEOC has not even discussed such an option, maintaining that Stephens must be allowed to wear a skirt-suit in order to express Stephens' gender identity. If the compelling governmental interest is truly in removing or eliminating gender stereotypes in the workplace in terms of clothing (i.e., making gender 'irrelevant'), the EEOC's chosen manner of enforcement in this action does not accomplish that goal."

Stephens had written to the funeral home employees about his internal turmoil.

Calling his mental state a "birth defect that needs to be fixed," he told the workers he planned to have sex reassignment surgery, and before that would live and work "fulltime 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, Aimee Australia Stephens, in appropriate business attire," he wrote, adding, "I realize that some of you may have trouble understanding this."