Washington — The U.S. Supreme Court probed arguments Tuesday from both sides of a Michigan case that could decide whether civil rights law shields transgender individuals from workplace discrimination or keeps intact the traditional meaning of sex bias.
Attorneys for Aimee Stephens of Metro Detroit, who was fired from a Garden City funeral home in 2013 after informing her boss she was transitioning from male to female, argued that her termination violated the Civil Rights Act's prohibition on employment discrimination based on sex.
Lawyers for Stephens' former employer, R.G. and G.B. Harris Funeral Homes Inc., countered the protections do not extend to gender identity or transgender status, arguing that Congress could not have anticipated the Stephens case when the Civil Rights Act was passed in 1964.
Justices debated how far the High Court could bend the 55-year-old law to apply to the 58-year-old Stephens, who had worked as a man at the funeral home for years while privately living as a woman outside of work. The court has a 5-4 conservative majority but it ruled 5-4 in 2015 that all 50 states must recognize same-sex marriages.
"...Title VII is a statute about individuals and whether individuals are being treated differently because of his or her sex. It's a statute that uses the word 'individual' twice and says is a particular person being treated differently because of her sex? And here, Ms. Stephens, was being treated differently because of her sex."
Michigan is among 29 states without discrimination protections for transgender individuals.
But Bursch argued the funeral home was within its rights to insist that Stephens adhere to its dress code for male employees during work hours.
"Treating women and men equally does not mean employers have to treat men as women," said Bursch, the former Michigan solicitor general who lost his defense of Michigan's gay marriage ban in 2015. "That is because sex and transgender status are independent concepts."
The U.S. Circuit Court of Appeals for the 6th Circuit last year ruled against Harris Homes, saying discrimination on the basis of transgender status is "necessarily" discrimination on the basis of sex.
"It is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex," the unanimous three-judge panel wrote.
Justice Neil Gorsuch, appointed by President Donald Trump, argued for judicial restraint, citing the potential for civic unrest if the High Court further expands protections against discrimination on the basis of sex to include cases like Stephens'.
The "textual evidence" for extending gender discrimination protection to Stephens is "really close," Gorsuch said.
But he worried the court might be usurping legislative authority by veering from the traditional interpretation of sex discrimination and setting off "massive social upheaval."
"It's a question of judicial modesty," Gorsuch said.
But the justices quickly steered the arguments into other controversies involving transgender individuals but not connected to the funeral home case.
Chief Justice John Roberts, a swing vote in recent high-profile cases and an appointee of President George W. Bush, zeroed in on how the arguments of Stephens' attorney would apply to legal cases that have arisen about transgender bathroom access.
Other areas of federal law prohibit transgender people from participating in athletic competitions based on gender, said Justice Samuel Alito, a Bush appointee.
"A transgender woman is not permitted to compete on a woman's college sports team," he said. "Is that discrimination on the basis of sex in violation of Title IX?"
Stephens' attorney David Cole of the American Civil Liberties Union countered that he was not asking the Supreme Court to redefine the legal definition of sex even as he sought to convince the justices that Stephens' civil rights were violated.
"We're not asking that you update the statute," Cole said. "We're not asking that you redefine sex. We are accepting ... for purposes of this case, the narrowest definition of sex and arguing that you can't understand what Harris Homes did here without it treating her differently because of her sex assigned at birth."
"The purpose of Title VII as this Court defined it was to make sex irrelevant to people's ability to succeed at work," Cole added. "When Harris Homes fired Aimee Stephens because it learned about her sex assigned at birth being different from her gender identity, it did not make sex irrelevant to her ability to succeed at work. It made it determinative."
All the liberal justices seemed to agree.
It is inevitable that the court will have to weigh in on a broader transgender case said Justice Stephen Breyer, a President Bill Clinton appointee, citing controversies over bills passed in several states to prohibit transgender individuals from using public restrooms for their self-identified genders.
Stephens' lawyers have argued a ruling for the funeral home could potentially upend case law that has prohibited firing anyone — including straight people — for not adhering to sex-based stereotypes.
Breyer also accused attorneys for the funeral home of raising unnecessary fears about the court perhaps recognizing the civil rights of transgender people.
"You have made the argument as I call it the parade of horribles," he said.
Justice Ruth Bader Ginsburg, appointed by Clinton, drew parallels to the evolution of the definition of discrimination to include sexual harassment in recent years.
"No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in '64," Ginsburg said. "It wasn't until a book was written in the middle '70s bringing that out. And now we say, of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination but it wasn't recognized."
Discrimination against homosexual and transgender people is too prevalent in modern society, said Justice Sonia Sotomayor, an Obama appointee.
"We can't deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly, not because they can't do whatever is required of a position, but merely because they're a suspect class to some people," Sotomayor said.
"They may have power in some regions, but they are still being beaten, they are still being ostracized from certain things," she continued. "At what point does a court say, Congress spoke about this...? ... And regardless of what others may have thought over time, it's very clear that what's happening fits those words. At what point do we say we have to step in?" she said.
Advocates cry Stephens' name
Gay and transgender advocates rallying outside the court chanted Stephens’ name as she left the building following the arguments.
“It’s very positive, very uplifting to know that all these people are behind me,” Stephens said in a brief interview.
We're just trying to make right wrongs done to us — not only just to me but to a lot of the people you see standing here today,” Stephens added.
She described being inside the courtroom Tuesday as “different.”
“We just hope for the best and see what they come down with,” she said. “I'm optimistic.”
The "family's livelihood and legacy hang in the balance," funeral home owner Tom Rost said following the arguments.
While Rost said he worried about Stephens after she told him she planned to begin presenting as a woman at work, he said firing her "was a difficult choice" that was "in the best interest of the grieving families our business serves.”
Rost blasted the ACLU for trying to “punish” his family business, using it “as a pawn to achieve a larger political goal that it has been unable to achieve in Congress, where this issue belongs.”
“We’re hopeful the Supreme Court won’t impose such unjust punishment on us,” he said.
Justices “across the bench” were “troubled” by how the ACLU’s argument would eliminate all sex-specific policies in the workplace, whether they be sex-specific showers, dress codes, restrooms or sports teams, said Bursch, the attorney representing Rost.
“Every single one of those things would have to go,” he said.
“Justice Ginsburg observed that, unlike other classifications, certain distinctions require treating men and women differently. That should be patently obvious to all of us.”
Bursch highlighted comments from Roberts and Alito questioning whether courts should be in the business of what he called “rewriting the law.”
Asked about Gorsuch's comment that the text is a “close" call, Bursch said he disagreed.
“Title VII prohibits discrimination because of sex," he said. "... When you apply that test, no one could say the employee here was treated worse than a similarly situated woman because women were not allowed to dress as men when meeting with grieving clients, any more than Stephens was allowed to dress as a woman when meeting with grieving clients.”
Asked about the justices’ veering into discussions of bathrooms and “societal upheaval,” Cole was dismissive.
“There were transgender lawyers in the courtroom today, and the transgender men were following the men’s dress code and using the men’s restroom, and the transgender women were following the women’s dress code and using the women’s restroom," he said. "The sky did not fall.”