WASHINGTON – For nearly six years, Aimee Stephens’ job at R.G. & G.R. Harris Funeral Home in Garden City, Michigan, was to attend to the bodies of the deceased, to dress them in clothes brought by their loved ones, to set their bodies, their faces, for viewing.
To make them look “normal,” she said.
But if normal means conforming to some societal standard of what a person is expected to look like, based on one's name and gender, Aimee Stephens was struggling with it herself:
Born – or assigned, in the current parlance – with male genitalia, Stephens, by July 2013, at age 52, had been living for some years outside of work as a woman, dressing only as a man at work. A year earlier, she had considered killing herself, standing in her Redford Township backyard with a gun pressed to her chest, tired, she said, “of living a lie.”
Finally, she confronted her boss with a letter explaining who she really was and her decision to begin dressing as a woman at work, which had a strict – and distinct – gender-based dress code. The funeral home owner, Thomas Rost, told her, “This is not going to work out.” And when she turned down a severance package, he sacked her.
Six years later, Stephens’ case has come to the Supreme Court, with justices hearing arguments Oct. 8 about whether federal law – specifically, the Civil Rights Act of 1964 – prohibits discrimination against transgender people.
And Stephens will be there.
“I can’t say I’m worried or nervous, but it’s been a long time coming,” said Stephens, speaking in a soft Southern drawl that reveals her North Carolina upbringing. “I only hope the justices will listen to reason and look at what the lower courts have said.”
She never dreamed she would be in these circumstances but said she has no regrets: “It was either send the letter or not be here anymore.”
But there are reasons for her and supporters – who include “Orange is the New Black” star Laverne Cox, who gave the case and Stephens’ American Civil Liberties Union lawyers a shout-out on the red carpet at the Emmys on Sept. 23 – to be worried.
Four years after the Supreme Court decided 5-4 that same-sex individuals had the right to wed, the court has changed dramatically. Justice Anthony Kennedy, who wrote that majority opinion, is gone. He has been replaced by Justice Brett Kavanaugh, who was appointed by President Donald Trump.
And while guessing in advance how a justice may rule is risky, Kavanaugh is generally seen as more aligned with the conservative wing of the court – which includes Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – than Kennedy was, leaving lots of LGBTQ advocates and their supporters nervous.
Stephens' case will be heard on the same day the court hears sexual orientation discrimination cases. In those two cases, one involving a skydiving instructor who has since died and another a Georgia child services coordinator, the court is being asked whether it was legal, under the same federal civil rights law, for employers to have fired them because they were gay.
It’s not just high court changes causing concern
Transgender status is not specifically mentioned in the 1964 Civil Rights Act. That means whether it should apply in transgender cases comes down to how courts have dealt with questions surrounding gender in the past and what that term means: Whether it is what society once may have accepted as a binary biological fact of male or female, or whether it's something more personal, wrapped up with one’s individual disposition.
It also raises questions about cultural stereotypes and what it means to present oneself as a man, or as a woman, or something else entirely.
Those are cultural questions. The legal ones don’t end there.
While the Supreme Court has ruled in the past that gender stereotypes can’t be used to punish or hold someone back in their career, the funeral home’s lawyers argue that Rost – a devout Christian – also has rights under existing law to enforce a gender-based dress code as long as it doesn’t advantage or disadvantage one sex over the other, just as employers can have separate bathrooms based on gender without being accused of discrimination.
Rost’s lawyers say that if a biologically assigned female had asked to dress as a male, despite being transgender, the funeral home would have made the same demand – so there is no disadvantage between the genders to be litigated.
A three-judge panel of the U.S. 6th Circuit Court of Appeals ruled last year for Stephens, however, declaring that firing her for not dressing in a way that conformed with Rost’s definition of gender violated a Supreme Court ruling that any kind of gender consideration must be “irrelevant” to employment decisions.
“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 appeals court found.
But Rost’s lawyers argue the 6th Circuit effectively – and improperly – rewrote the law, defining gender as a personal disposition and not as a biological fact. And they say it's the latter definition, not the former, that was held by Congress to be the case in 1964.
“It’s a fascinating time to be alive, (though, this case) certainly wasn’t anything I was looking for,” said John Bursch, a west Michigan lawyer who argued against the same-sex marriage decision before the Supreme Court on behalf of Michigan’s attorney general and who is now working with the Alliance Defending Freedom, a Washington group that advocates for religious liberties, to argue Rost’s case.
“I do feel strongly that every person is entitled to rely on what the law says,” said Bursch, who will lead arguments in the case before the Supreme Court. “And this is a clear instance where the 6th Circuit Court of Appeals rewrote (the statute) to punish a business based on acts that were fully in accord with federal law.”
If that decision were allowed to stand, he said, it could have all sorts of ramifications, raising questions, say, about programs intended to ensure equality and fairness for women in education, in employment, in sports. “If sex means your own internal sense of what your gender is, then that opens the door for boys to identify as girls and compete against girls,” he said. “That's happening right now.”
Stephens’ lawyers say that’s nonsense, that it’s not a question of gender-based dress codes, but whether an employer should be able to fire someone for not conforming to their ideas of sex.
“Aimee being Aimee at work wasn’t going to upset the apple cart,” said Jay Kaplan, staff attorney for the ACLU of Michigan. “She was fully willing to comply with the funeral home’s dress code for women.”
And Kaplan says federal courts have been consistently moving toward recognizing that discrimination against transgender individuals is disallowed, in part because of a Supreme Court case, in 1989, that ruled against the use of sex stereotypes.
In that case, the court upheld part of a lower court finding that it was improper to use a sex stereotype – that some believed a woman was too "aggressive" – to justify denying her a partnership at accounting firm Price Waterhouse. Since then, that decision has been used to bolster numerous discrimination actions.
“The (Supreme) Court would have to … overrule (itself),” said Kaplan, adding that, if that happened, it could roll back discrimination practices across the board. “There’s a lot at stake for male and female employees.”
Stephens no longer works, despite loving what she did
Six years after being fired, Stephens, 58, is unemployed and on medical disability. Even though she had prior experience and had been certified as an embalmer in North Carolina, she couldn’t find work after Rost fired her.
Ultimately, she got a job as an autopsy technician in a metro Detroit hospital but, in late 2014, she suffered kidney failure and had to leave.
She is on dialysis three days a week. But she’s alive.
Her relationship with her second wife, Donna, is still solid: Stephens told her some years before she confronted the funeral home owner with how she felt and began presenting as a woman, a change that both seem to agree made it easier for Stephens to accept and understand who she is.
“I know (I’m) much happier with who I am,” said Stephens, adding that Donna has noticed the change, too. And as for their neighbors in Redford, Michigan, Stephens said they have shown nothing but support over the years.
But it hasn’t been easy.
Her wife still works full-time but money is often tight. Sometimes, she said, resources are hard to come by. “Our noses are just above water,” she said. “We don’t have a lot.”
And Stephens has had to make sacrifices. For instance, when, on July 31, 2013, Stephens handed Rost the letter saying she had struggled with gender dysphoria her whole life, she added that she intended to have sex reassignment surgery and that living and presenting as a woman was part of that process.
Because of her medical condition, however, she and her doctors have decided that going through reassignment surgery may be too dangerous, meaning she likely will have to give up on any hope of making a change that she had wanted so badly.
“It’s something that I've had to think about a lot,” she said. “I’ve made peace with that now. And if I don't ever get to have surgery, I can live with it.”
Then there is the loss of her job, which she said surprised her. While she suspected that Rost might be uncomfortable with her decision, she didn’t expect what she considered such an extreme reaction.
“I loved my job. I liked doing what I was doing. It was a way for me to help families remember their loved ones,” she said. “Death is never easy to handle to begin with. But to have a negative last memory is not good at all. And that was something that I could help change.”
But as she said: no regrets. Not after a lifetime of feeling different from other people. She said she was probably 5 – and growing up in a Baptist family – when she began to know she was different than other kids, though it would be decades before she could explain, even to herself, how she felt.
“They offered me a severance package that I could not accept. … (But) I couldn't keep my mouth shut for the rest of my life,” she said. “It was too important.”
Rost’s lawyers say he carefully considered his options
Rost wasn’t willing to speak to the Free Press but according to his lawyers, he didn’t make a snap decision about the dress code and Stephens’ letter. They say he took two weeks to consider it, on how it might affect other “female employees and clients who would be sharing a single-sex restroom with Stephens.” They say he thought about the impact it might have on grieving families.
And he decided it was best for Stephens to leave.
Ultimately, the Equal Employment Opportunity Commission took up the case but lost in a ruling by U.S. District Court Judge Sean Cox, who noted that transgender or transsexual status isn’t a specifically protected class under the law and that Rost's religious opposition to Stephens' transgender status protected him from any sex stereotype claim.
The ACLU and Stephens argued successfully to the 6th Circuit that past court decisions made such a ruling by the district court improper. But Bursch said that the Supreme Court needs to overturn the 6th Circuit based on what Congress meant in 1964 by “sex.”
And while that has never been specifically and conclusively decided, neither has Congress passed any law giving transgender individuals protected status or enacting a broader definition in the law, which it could have done.
“Congress has considered this … and rejected it,” Bursch said. “They did amend the statute. When the Supreme Court concluded that sex discrimination did not include differential treatment based on someone's pregnancy, Congress immediately responded by amending the act. … And even though (courts have) rejected claims based on transgender status, Congress never acted in response to that.”
Meanwhile, Rost’s lawyers reject comments made at the Emmys suggesting that, if Stephens loses the case, it would result in sexual stereotypes being legally enforceable. They say their argument is that gender-based protocols, such as dress codes, are allowed as long as they are equally applied. It's only stereotypes that treat one gender worse than another that are prohibited.
On the other hand, many people feel that telling someone how to dress based on their biologically assigned gender is inherently wrong and that violating that is, in itself, discrimination.
But if the Emmys comment proves anything it is this: That the issue comes down to a question debated far more openly in society today than it was in 1964, when the law was passed, which is whether gender is, or should be, an objective, observable fact or something more closely held, something inherent, inside of a person.
Aimee Stephens would have been about 3 in 1964. At most, she had two years before she began feeling, as she said, “different” from all the other kids.
But, still: no regrets.
“I'm happy to be where I'm at,” she said. “I'm just not happy about how I got here.”
This article originally appeared on Detroit Free Press: Supreme Court hears Aimee Stephens transgender discrimination case