MEDIATION,REOPENED,STAYED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:14−cv−13710−SFC−DRG

Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc. Assigned to: District Judge Sean F. Cox Referred to: Magistrate Judge David R. Grand

Case in other court:

U.S. Court of Appeals − Sixth Circuit, 16−02424

Cause: 42:2000e Job Discrimination (Employment)

Plaintiff

Date Filed: 09/25/2014 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Equal Employment Opportunity Commission

represented by Miles Shultz U.S. Equal Employment Opportunity Commission 477 Michigan Avenue Suite 865 Detroit, MI 48226 313−226−6217 Email: miles.shultz@eeoc.gov ATTORNEY TO BE NOTICED

Dale R. Price , Jr. Equal Employment Opportunities Commission 477 Michigan Avenue Suite 865 Detroit, MI 48226 313−226−7808 Email: dale.price@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
R.G. &. G.R. Harris Funeral Homes, Inc. 31551 Ford Road Garden City, MI 48135

represented by Douglas G. Wardlow 14033 Commerce Avenue NE #300−310 Prior Lake, MN 55372 612−840−8073 Email: dwardlowlaw@gmail.com ATTORNEY TO BE NOTICED
James A. Campbell 2863 E. Odessa Street Mesa, AZ 85213 480−567−4747 Email: jacampbell00@hotmail.com TERMINATED: 02/11/2020 ATTORNEY TO BE NOTICED
Joel J. Kirkpatrick Kirkpatrick Law Offices, P.C. 843 Penniman Ave. Suite 201 Plymouth, MI 48170 734−404−5710 Fax: 866−241−4152 Email: joel@joelkirkpatrick.com ATTORNEY TO BE NOTICED

Interested Party Aimee Stephens
Amicus American Civil Liberties Union Amicus American Civil Liberties Union of Michigan Date Filed # Docket Text

John J. Bursch Bursch Law PLLC 9339 Cherry Valley Ave SE, #78 Caledonia, MI 49316 616−450−4235 Email: jbursch@burschlaw.com ATTORNEY TO BE NOTICED
Jonathan C. Dalton Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: cdalton@adflegal.org ATTORNEY TO BE NOTICED
Joseph Paul Infranco Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jinfranco@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED
represented by Jay Kaplan American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313−578−6812 Fax: 313−578−6811 Email: kaplan@aclumich.org ATTORNEY TO BE NOTICED
John A. Knight American Civil Liberties Union Foundation LGBT & AIDS Project 180 N. Michigan Ave. Suite 2300 Chicago, IL 60601 312−201−9740 Fax: 312−288−5225 Email: jknight@aclu−il.org ATTORNEY TO BE NOTICED
represented by Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED
represented by Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED

09/25/2014
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04/16/2015
04/21/2015 04/23/2015 04/29/2015 04/30/2015 05/06/2015 05/12/2015

1 COMPLAINT filed by Equal Employment Opportunity Commission against R.G. &. G.R. Harris Funeral Homes, Inc. with Jury Demand. Plaintiff requests summons issued. No Fee Required − US Government. County of 1st Plaintiff: USA − County Where Action Arose: Wayne − County of 1st Defendant: Wayne. [Previously dismissed case: No] [Possible companion case(s): None] (Price, Dale) (Entered: 09/25/2014)
2 NOTICE of Appearance by Miles Shultz on behalf of Equal Employment Opportunity Commission. (Shultz, Miles) (Entered: 09/25/2014)
3 SUMMONS Issued for *R.G. &. G.R. Harris Funeral Homes, Inc.* (DWor) (Entered: 09/26/2014)
4 CERTIFICATE of Service/Summons Returned Executed. All Defendants. (Price, Dale) (Entered: 10/06/2014)
5 STIPULATION AND ORDER Extending Time for Defendant to Respond re 1 Complaint. (Responsive Pleading due by 11/19/2014) Signed by District Judge Sean F. Cox. (JMcC) (Entered: 10/17/2014)
6 NOTICE of Appearance by Joel J. Kirkpatrick on behalf of R.G. &. G.R. Harris Funeral Homes, Inc.. (Kirkpatrick, Joel) (Entered: 11/18/2014)
7 MOTION to Dismiss Complaint by R.G. &. G.R. Harris Funeral Homes, Inc.. (Attachments: # 1 Exhibit A − Vickers case, # 2 Exhibit B − Price Case, # 3 Exhibit C − Oiler case) (Kirkpatrick, Joel) (Entered: 11/19/2014)
8 NOTICE OF HEARING on 7 MOTION to Dismiss Complaint. Motion Hearing set for 4/2/2015 02:00 PM before District Judge Sean F. Cox (JMcC) (Entered: 12/08/2014)
9 RESPONSE to 7 MOTION to Dismiss Complaint filed by Equal Employment Opportunity Commission. (Price, Dale) (Entered: 12/10/2014)
10 REPLY to Response re 7 MOTION to Dismiss Complaint filed by R.G. &. G.R. Harris Funeral Homes, Inc.. (Attachments: # 1 Exhibit Eure case) (Kirkpatrick, Joel) (Entered: 12/23/2014)
11 NOTICE OF RESCHEDULED HEARING on 7 MOTION to Dismiss Complaint. Motion Hearing set for 4/16/2015 04:00 PM before District Judge Sean F. Cox (JMcC) (Entered: 01/26/2015)
Set/Reset Deadlines as to 7 MOTION to DismissComplaint. Motion Hearing set for 4/16/2015 04:00 PM before District Judge Sean F. Cox, in Courtroom 861, Judge Duggan's Courtroom (LOCATION CHANGE ONLY) (JMcC) (Entered: 04/15/2015)
Minute Entry for proceedings before District Judge Sean F. Cox: Motion Hearing held on 4/16/2015 re 7 MOTION to Dismiss Complaint filed by R.G. &. G.R. Harris Funeral Homes, Inc. Disposition: Taken Under Advisement (Court Reporter Marie Metcalf) (JMcC) (Entered: 04/17/2015)
12 OPINION and ORDER Denying 7 MOTION to Dismiss Complaint. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 04/21/2015)
13 AMENDED OPINION and ORDER Denying 7 MOTION to Dismiss Complaint Signed by District Judge Sean F. Cox. (JMcC) (Entered: 04/23/2015)
14 ANSWER to Complaint with Affirmative Defenses with Jury Demand by R.G. &. G.R. Harris Funeral Homes, Inc.. (Kirkpatrick, Joel) (Entered: 04/29/2015)
15 NOTICE TO APPEAR: Scheduling Conference set for 5/26/2015 02:30 PM before District Judge Sean F. Cox (JMcC) (Entered: 04/30/2015)
16 NOTICE of Appearance by Joseph Paul Infranco on behalf of R.G. &. G.R. Harris Funeral Homes, Inc.. (Infranco, Joseph) (Entered: 05/06/2015)
17 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Price, Dale) (Entered: 05/12/2015)

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18 MOTION to Amend/Correct 1 Complaint,, by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A, First Amended Complaint and Jury Demand) (Price, Dale) (Entered: 05/19/2015)
Minute Entry for proceedings before District Judge Sean F. Cox: Scheduling Conference held on 5/26/2015. (JMcC) (Entered: 05/26/2015)
19 SCHEDULING ORDER: Discovery due by 2/1/2016 Motion Cut−off set for 3/31/2016 Final Pretrial Conference set for 7/11/2016 02:00 PM before District Judge Sean F. Cox Trailing Trial Docket set for September/October 2016 Signed by District Judge Sean F. Cox. (Refer to image for additional dates) (JMcC) (Entered: 05/26/2015)
TEXT−ONLY ORDER GRANTING 18 MOTION to Amend/Correct 1 Complaint, filed by Equal Employment Opportunity Commission. Entered by District Judge Sean F. Cox. (JMcC) (Entered: 05/26/2015)
20 ANSWER to Amended complaint filed May 26, 2015 by R.G. &. G.R. Harris Funeral Homes, Inc.. (Kirkpatrick, Joel) (Entered: 05/29/2015)
TEXT−ONLY ORDER Requiring Plaintiff to File Amended Complaint within five (5) days of the date of this Order re Text−Only Order Granting 18 MOTION to Amend/Correct Complaint, filed by Equal Employment Opportunity Commissio Leave to File Amended Complaint. Entered by District Judge Sean F. Cox. (JMcC) (Entered: 06/01/2015)
21 AMENDED COMPLAINT with Jury Demand filed by Equal Employment Opportunity Commission against R.G. &. G.R. Harris Funeral Homes, Inc.. NO NEW PARTIES ADDED. (Price, Dale) (Entered: 06/01/2015)
22 ANSWER to Amended Complaint with Affirmative Defenses by R.G. &. G.R. Harris Funeral Homes, Inc.. (Kirkpatrick, Joel) (Entered: 06/04/2015)
23 MOTION for Protective Order by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A: Defendants First Set of Interrogatories, Requests for Documents and Admissions) (Shultz, Miles) (Entered: 07/14/2015)
24 ORDER REFERRING MOTION to Magistrate Judge David R. Grand: 23 MOTION for Protective Order filed by Equal Employment Opportunity Commission. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 07/17/2015)
25 RESPONSE to 23 MOTION for Protective Order filed by All Defendants. (Attachments: # 1 Document Continuation Appendix, # 2 Index of Exhibits Index of Exhibits, # 3 Exhibit EEOC Press Release, # 4 Exhibit Email Exchange July 2015) (Kirkpatrick, Joel) (Entered: 07/28/2015)
26 NOTICE OF HEARING on 23 MOTION for Protective Order . Motion Hearing set for 8/12/2015 10:00 AM before Magistrate Judge David R. Grand (EBut) (Entered: 07/31/2015)
27 RENOTICE OF HEARING on 23 MOTION for Protective Order . Motion Hearing set for 8/28/2015 02:00 PM before Magistrate Judge David R. Grand (EBut) (Entered: 08/05/2015)
28 REPLY to Response re 23 MOTION for Protective Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Index of Exhibits, # 2 Exhibit B, Commission's Response to Defendant's First Set of Interrogatories, Requests for Documents and Admissions) (Shultz, Miles) (Entered: 08/07/2015)
29 STIPULATION AND ORDER to file exhibit under seal. Signed by Magistrate Judge David R. Grand. (DPer) (Entered: 09/01/2015)
30 SEALED EXHIBIT by All Plaintiffs. (Shultz, Miles) (Entered: 09/01/2015)
31 Defendant preliminary Law WITNESS LIST by R.G. &. G.R. Harris Funeral Homes, Inc. (Kirkpatrick, Joel) (Entered: 09/01/2015)
32 WITNESS LIST by Equal Employment Opportunity Commission (Price, Dale) (Entered: 09/01/2015)

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Minute Entry for proceedings before Magistrate Judge David R. Grand: Motion Hearing held on 8/28/2015 re 23 MOTION for Protective Order filed by Equal Employment Opportunity Commission. Disposition: taken under advisement(Court Reporter Digitally Recorded) (EBut) (Entered: 09/02/2015)
33 TRANSCRIPT of Motion Hearing held on 8/28/15. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 26) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 10/13/2015. Redacted Transcript Deadline set for 10/23/2015. Release of Transcript Restriction set for 12/21/2015. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 09/22/2015)
34 ORDER granting in part and denying in part 23 Motion for Protective Order. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 09/24/2015)
35 Notice of Expert WITNESS LIST by R.G. &. G.R. Harris Funeral Homes, Inc. (Kirkpatrick, Joel) (Entered: 10/01/2015)
36 [DOCKET ERROR− WRONG EVENT USED − DOCUMENT IS DEFENDANT R.G. & G.R. HARRIS FUNERAL HOMES, INC.S OBJECTIONS TO THE MAGISTRATES ORDER GRANTING IN PART AND DENYING IN PART EEOCS MOTION FOR PROTECTIVE ORDER] MOTION to Set Aside Plaintiff's Objections To The Magistrates Order Granting In Part And Denying In Part EEOCs Motion For Protective Order by R.G. &. G.R. Harris Funeral Homes, Inc.. (Kirkpatrick, Joel) Modified on 10/7/2015 (LGra). (Entered: 10/06/2015)
37 RESPONSE to 36 MOTION to Set Aside Plaintiff's Objections To The Magistrates Order Granting In Part And Denying In Part EEOCs Motion For Protective Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: August 28, 2015, Hrg Tr.) (Shultz, Miles) (Entered: 10/23/2015)
38 [STRICKEN PER ORDER DATED 11/5/2015] REPLY to Response re 36 MOTION to Set Aside Plaintiff's Objections To The Magistrates Order Granting In Part And Denying In Part EEOCs Motion For Protective Order filed by R.G. &. G.R. Harris Funeral Homes, Inc.. (Kirkpatrick, Joel) Modified on 11/5/2015 (KWin). (Entered: 10/30/2015)
39 MOTION for Leave to File Excess Pages for Defendant reply brief by R.G. &. G.R. Harris Funeral Homes, Inc.. (Kirkpatrick, Joel) (Entered: 11/03/2015)
40 RESPONSE to 39 MOTION for Leave to File Excess Pages for Defendant reply brief filed by Equal Employment Opportunity Commission. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: November 3, 2015, email) (Shultz, Miles) (Entered: 11/04/2015)
TEXT−ONLY ORDER Denying 39 MOTION for Leave to File Excess Pages for Defendant reply brief filed by R.G. &. G.R. Harris Funeral Homes, Inc., and Striking 38 REPLY to Response re 36 MOTION to Set Aside Plaintiff's Objections To The Magistrates Order Granting In Part And Denying In Part EEOCs Motion For Protective Order filed by R.G. &. G.R. Harris Funeral Homes, Inc. Signed by District Judge Sean F. Cox. (KWin) (Entered: 11/05/2015)
41 REPLY to Response re 36 MOTION to Set Aside Plaintiff's Objections To The Magistrates Order Granting In Part And Denying In Part EEOCs Motion For Protective Order Compliant Brief filed by R.G. &. G.R. Harris Funeral Homes, Inc.. (Kirkpatrick, Joel) (Entered: 11/09/2015)
42 Corrected Version of 33 TRANSCRIPT of Motion Hearing held on 8/28/2015. Release of Transcript Restriction set for 12/21/2015. (Russell, C.) (Entered: 11/12/2015)
43 Plaintiff's First Amended WITNESS LIST by All Plaintiffs (Price, Dale) (Entered: 11/18/2015)

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44 STIPULATION TO EXTEND DEFENDANTS TIME TO SUBMIT ITS EXPERT WITNESS REPORT, (Defendant's Expert Witness Report due by 12/15/15 and Plaintiff's Response due by 2/1/2016.) Signed by District Judge Sean F. Cox. (KWin) (Entered: 11/24/2015)
45 ORDER OVERRULING 36 DOCKET ERROR− WRONG EVENT USED − DOCUMENT IS DEFENDANT R.G. & G.R. HARRIS FUNERAL HOMES, INC.S OBJECTIONS TO THE MAGISTRATES ORDER GRANTING IN PART AND DENYING IN PART EEOCS MOTION FOR PROTECTIVE ORDER MOTION to Set Aside Plaintiff's Objections To The Magistrates Order Granting In Part And Denying In Part EEOCs Motion For Protective Order filed by R.G. &. G.R. Harris Funeral Homes, Inc. Signed by District Judge Sean F. Cox. (KWin) (Entered: 11/25/2015)
46 STIPULATED CONFIDENTIALITY PROTECTIVE ORDER. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 12/22/2015)
47 MOTION for Withdrawal of Attorney Laurie A. Young by Equal Employment Opportunity Commission. (Shultz, Miles) (Entered: 01/21/2016)
TEXT−ONLY ORDER Deeming a Moot re 47 MOTION for Withdrawal of Attorney Laurie A. Young filed by Equal Employment Opportunity Commission. Attorney Laurie A. Young has not filed an appearance in this matter. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 01/25/2016)
48 ORDER REFERRING CASE to Mediation. Final Pretrial Conference set for 7/11/2016 02:00 PM before District Judge Sean F. Cox. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 02/03/2016)
49 STIPULATION AND ORDER Extending Motion Filing Deadline. (Motion Cut−off set for 4/7/2016) Signed by District Judge Sean F. Cox. (JMcC) (Entered: 03/15/2016)
50 Ex Parte MOTION for Leave to File Excess Pages by Equal Employment Opportunity Commission. (Price, Dale) (Entered: 04/07/2016)
51 MOTION for Summary Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A−−Stephens Letter, # 3 Exhibit B−−Rost 30(b)(6) Dep., # 4 Exhibit C−−Notice of 30(b)(6) Dep., # 5 Exhibit D−−Daily Bread Devotional, # 6 Exhibit E−−Jesus card, # 7 Exhibit F−−Shaffer Dep., # 8 Exhibit G−−RGGR Mission Statement, # 9 Exhibit H−−Nemeth Dep., # 10 Exhibit I−−Kish Dep., # 11 Exhibit J−−Cash Dep., # 12 Exhibit K−−Crawford Dep, # 13 Exhibit L−−Matthew Rost Dep., # 14 Exhibit M−−McKie Dep., # 15 Exhibit N−−Kowalewski Dep., # 16 Exhibit Rost Personal Dep., # 17 Exhibit P−−Clothing Allowance Checks, # 18 Exhibit Q−−Stephens Dep., # 19 Exhibit R−−Articles of Incorporation, # 20 Exhibit S−−Dress Code, # 21 Exhibit T−−Answers to Interrogatories, # 22 Exhibit Fabian Case, # 23 Exhibit McKnight Case, # 24 Exhibit Wilson Case) (Price, Dale) (Entered: 04/07/2016)
52 STATEMENT of Material Facts Not in Dispute by Equal Employment Opportunity Commission (Price, Dale) (Entered: 04/07/2016)
53 MOTION for Summary Judgment by R.G. &. G.R. Harris Funeral Homes, Inc.. (Attachments: # 1 Memorandum of Law in Support of Motion for Summary Judgment, # 2 Index of Exhibits, # 3 Exhibit 1 − Affidavit of Thomas Rost, # 4 Exhibit 2 − Affidavit of Shannon Kish, # 5 Exhibit 3 − Excerpts from Rule 30(b)(6) Deposition of Thomas Rost, # 6 Exhibit 4 − Excerpts from Deposition of Thomas Rost, # 7 Exhibit 5 − Excerpts from Deposition of Shannon Kish, # 8 Exhibit 6 − Excerpts from Deposition of George Crawford, # 9 Exhibit 7 − Excerpts from Deposition of Delores Nemeth, # 10 Exhibit 8 − Excerpts from Deposition of David Cash, # 11 Exhibit 9 − Excerpts from Deposition of David Kowalewski, # 12 Exhibit 10 − Excerpts from Deposition of Matthew Rost, # 13 Exhibit 11 − Excerpts from Deposition of Michelle Peterson, # 14 Exhibit 12 − Excerpts from Deposition of Troy Shaffer, # 15 Exhibit 13 − Excerpts from Deposition of Wendy McKie, # 16 Exhibit 14 −Excerpts from Deposition of Aimee Stephens, # 17 Exhibit 15 − RG Webpage, # 18 Exhibit 16 − EEOC Affidavit of Thomas Rost, # 19 Exhibit 17 − EEOC Affidavit of Shannon Kish, # 20 Exhibit 18 − EEOC Affidavit of George Crawford, # 21 Exhibit 19 − RG Employee Manual, # 22 Exhibit 20 − Stephens's Letter, # 23 Exhibit 21 − EEOC Charge of Discrimination, # 24 Exhibit 22 − Response to Charge of Discrimination, #

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25 Exhibit 23 − EEOC Memo for File, # 26 Exhibit 24 − Order and Petition for Name Change, # 27 Exhibit 25 − Plaintiff's Response to First Set of Discovery, # 28 Exhibit 26 − Plaintiff's First Supplemental Response to First Set of Discovery, # 29 Exhibit 27 − Defendant's Response to First Set of Discovery, # 30 Exhibit 28 − Defendant's Response to Second Set of Discovery, # 31 Exhibit 29 − Barker v. Taft, # 32 Exhibit 30 − Burwell v. Hobby Lobby, # 33 Exhibit 31 − EEOC v. Bailey, # 34 Exhibit 32 − Jespersen v. Harrah's, # 35 Exhibit 33 − Price Waterhouse v. Hopkins, # 36 Exhibit 34 − Smith v. City of Salem) (Campbell, James) (Entered: 04/07/2016)
54 MOTION for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment by R.G. &. G.R. Harris Funeral Homes, Inc.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Affidavit of Thomas Rost, # 3 Exhibit 2 − Affidavit of Shannon Kish, # 4 Exhibit 3 − Excerpts from Deposition of Thomas Rost, # 5 Exhibit 4 − Excerpts from 30(b)(6) Deposition of Thomas Rost, # 6 Exhibit 5 − Excerpts from Deposition of Shannon Kish, # 7 Exhibit 6 − Excerpts from Deposition of George Crawford, # 8 Exhibit 7 − Excerpts from Deposition of Delores Nemeth, # 9 Exhibit 8 − Excerpts from Deposition of David Cash, # 10 Exhibit 9 − Excerpts from Deposition of David Kowalewski, # 11 Exhibit 10 − Excerpts from Deposition of Matthew Rost, # 12 Exhibit 11 − Excerpts from Deposition of Michelle Petersen, # 13 Exhibit 12 − Excerpts from Deposition of Troy Shaffer, # 14 Exhibit 13 − Excerpts from Deposition of Wendy McKie, # 15 Exhibit 14 − Excerpts from Deposition of Aimee Stephens, # 16 Exhibit 15 − R.G. Webpage, # 17 Exhibit 16 − EEOC Affidavit of Thomas Rost, # 18 Exhibit 17 − EEOC Affidavit of Shannon Kish, # 19 Exhibit 18 − EEOC Affidavit of George Crawford, # 20 Exhibit 19 − R.G. Employee Manual, # 21 Exhibit 20 − Stephens's Letter, # 22 Exhibit 21 − EEOC Charge of Discrimination, # 23 Exhibit 22 − Response to Charge of Discrimination, # 24 Exhibit 23 − EEOC Memo for File, # 25 Exhibit 24 − Order and Petition for Name Change, # 26 Exhibit 25 − Plaintiff's Response to Defendant's First Set of Discovery, # 27 Exhibit 26 − Plaintiff's First Supplemental Response to Defendant's First Set of Discovery, # 28 Exhibit 27 − Defendant's Response to Plaintiff's First Set of Discovery, # 29 Exhibit 28 − Defendant's Response to Plaintiff's Second Set of Discovery, # 30 Exhibit 29 − Barker v. Taft Broadcasting Co., # 31 Exhibit 30 − Burwell v. Hobby Lobby, # 32 Exhibit 31 − EEOC v. Bailey Co., # 33 Exhibit 32 − Jespersen v. Harrah's, # 34 Exhibit 33 − Price Waterhouse v. Hopkins, # 35 Exhibit 34 − Smith v. City of Salem) (Campbell, James) (Entered: 04/07/2016)
55 STATEMENT of Material Facts Not in Dispute by R.G. &. G.R. Harris Funeral Homes, Inc. (Campbell, James) (Entered: 04/07/2016)
TEXT−ONLY ORDER Granting 50 Ex Parte MOTION for Leave to File Excess Pages filed by Equal Employment Opportunity Commission. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 04/08/2016)
TEXT−ONLY NOTICE Adjourning 7/11/2016 Final Pretrial Conference Without Date. (JMcC) (Entered: 04/12/2016)
56 NOTICE OF HEARING on 51 MOTION for Summary Judgment, 54 MOTION for Summary Judgment. Motion Hearing set for 8/4/2016 02:00 PM before District Judge Sean F. Cox (JMcC) (Entered: 04/12/2016)
57 MOTION for Leave to File Amicus Brief (Unopposed Motion) by American Civil Liberties Union, American Civil Liberties Union of Michigan. (Attachments: # 1 Exhibit A − ACLU Amicus Brief) (Kaplan, Jay) (Entered: 04/15/2016)
58 NOTICE OF RESCHEDULED HEARING on 51 MOTION for Summary Judgment, 54 MOTION for Summary Judgment. Motion Hearing set for 8/11/2016 02:00 PM before District Judge Sean F. Cox (JMcC) (Entered: 04/19/2016)
TEXT−ONLY ORDER Granting re 57 MOTION for Leave to File Amicus Brief (Unopposed Motion) filed by American Civil Liberties Union, American Civil Liberties Union of Michigan. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 04/21/2016)
59 Amicus Curiae BRIEF by American Civil Liberties Union, American Civil Liberties Union of Michigan (Kaplan, Jay) (Entered: 04/21/2016)

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60 RESPONSE to 51 MOTION for Summary Judgment filed by R.G. &. G.R. Harris Funeral Homes, Inc.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Ex 35 − Deposition Excerpts of Aimee Stephens, # 3 Exhibit Ex 36 − Deposition Excerpts of Thomas Rost, # 4 Exhibit Ex 37 − Deposition Excerpts of Delores Nemeth, # 5 Exhibit Ex 38 − Deposition Excerpts of George Crawford, # 6 Exhibit Ex 39 − Deposition Excerpts of Wendy McKie, # 7 Exhibit Ex 40 − Deposition Excerpts of Shannon Kish) (Wardlow, Douglas) (Entered: 05/02/2016)
61 STATEMENT of Counter−Statement of Disputed Facts by R.G. &. G.R. Harris Funeral Homes, Inc. (Wardlow, Douglas) (Entered: 05/02/2016)
62 Ex Parte MOTION for Leave to File Excess Pages by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A, Response to Defendant's Motion for Summary Judgment) (Price, Dale) (Entered: 05/02/2016)
63 RESPONSE to 54 MOTION for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Index of Exhibits, # 2 Exhibit U, Charge, # 3 Exhibit V, Onsite Investigation Notes, # 4 Exhibit W, Letter of Determination, # 5 Exhibit X, Rost 30(b)(6) Dep., # 6 Exhibit Y, Kowalewski Dep., # 7 Exhibit Z, Cash Dep., # 8 Exhibit AA, Kish Dep., # 9 Exhibit AB, Shaffer Dep., # 10 Exhibit AC, Crawford Dep., # 11 Exhibit AD, Rost Dep., # 12 Exhibit AE, Stephens Dep., # 13 Exhibit AF, Severance Agreement, # 14 Exhibit AG, McKie Dep., # 15 Exhibit AH, http://sammichaels.com/about/, # 16 Exhibit AI, Defendants Position Statement, # 17 Exhibit AJ, The Experience of Healing Diagrams, # 18 Exhibit Case 1, Chavez v. Credit Nation Auto Sales, __Fed.Appx.__, 2016 WL 158820 (11th Cir. Jan. 14, 2006), # 19 Exhibit Case 2, Dawson v. H&H Elec., Inc., No. 4:14−00583, 2015 WL 5437101 (E.D. Ark. Sept. 15, 2015), # 20 Exhibit Case 3, Fabian v. Hospital of Central Connecticut, No. 3:12−cv−1154, __F. Supp. 3d __, 2016 WL 1089178 (D. Conn. March 18, 2016), # 21 Exhibit Case 4, G.G. v. Gloucester Cty. School Bd., __F.3d__, 2016 WL 1567467 (4th Cir. Apr. 19, 2016)) (Price, Dale) (Entered: 05/02/2016)
64 STATEMENT of Counter−Statement of Disputed Facts by Equal Employment Opportunity Commission (Price, Dale) (Entered: 05/02/2016)
TEXT−ONLY ORDER Granting 62 Ex Parte MOTION for Leave to File Excess Pages filed by Equal Employment Opportunity Commission. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 05/03/2016)
65 STIPULATION AND ORDER to Postpone Case Evaluation. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 05/06/2016)
66 Ex Parte MOTION for Leave to File Excess Pages by R.G. &. G.R. Harris Funeral Homes, Inc.. (Wardlow, Douglas) (Entered: 05/19/2016)
67 REPLY to Response re 54 MOTION for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment filed by R.G. &. G.R. Harris Funeral Homes, Inc.. (Wardlow, Douglas) (Entered: 05/19/2016)
68 STATEMENT of Plaintiffs Reply to Defendants Counter Statement of Material Facts Not in Dispute by Equal Employment Opportunity Commission (Price, Dale) (Entered: 05/19/2016)
69 REPLY to Response re 51 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Price, Dale) (Entered: 05/19/2016)
TEXT−ONLY ORDER GRANTING 66 Ex Parte MOTION for Leave to File Excess Pages filed by R.G. &. G.R. Harris Funeral Homes, Inc. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 05/20/2016)
70 MOTION for Leave to File Surreply to Respond to New Arguments in Defendants Reply Brief by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A, Plaintiffs SurReply In Opposition to Defendants Motion for Summary Judgment) (Price, Dale) (Entered: 06/22/2016)
71 RESPONSE to 70 MOTION for Leave to File Surreply to Respond to New Arguments in Defendants Reply Brief filed by R.G. &. G.R. Harris Funeral Homes, Inc.. (Campbell, James) (Entered: 07/06/2016)

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72 NOTICE of Appearance by Jonathan C. Dalton on behalf of R.G. &. G.R. Harris Funeral Homes, Inc.. (Dalton, Jonathan) (Entered: 07/27/2016)
73 ORDER Regarding Exhibit., (Response due by 8/2/2016.) Signed by District Judge Sean F. Cox. (TMcg) (Entered: 07/28/2016)
74 EXHIBIT re 73 Order, Set Deadlines/Hearings by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit AK, Proposed Conciliation Agreement) (Shultz, Miles)[SEALED EXHIBIT−SEE 75 FOR DETAILS] Modified on 8/2/2016 (TMcg). (Entered: 08/02/2016)
75 ORDER Sealing 74 Exhibit. Signed by District Judge Sean F. Cox. (TMcg) (Entered: 08/02/2016)
Reset Hearing (TIME CHANGE ONLY) as to 51 MOTION for Summary Judgment and 54 MOTION for Summary Judgment. Motion Hearing reset for 8/11/2016 at 10:30 AM before District Judge Sean F. Cox. (SBur) (Entered: 08/10/2016)
Minute Entry for proceedings before District Judge Sean F. Cox: Motion Hearing held on 8/11/2016 re 51 MOTION for Summary Judgment and 54 MOTION for Summary Judgment. Disposition: Motions Taken Under Advisement. (Court Reporter: Marie Metcalf) (SBur) (Entered: 08/11/2016)
TEXT−ONLY ORDER Granting 70 MOTION for Leave to File Surreply to Respond to New Arguments in Defendants Reply Brief filed by Equal Employment Opportunity Commission. Entered by District Judge Sean F. Cox. (JMcC) (Entered: 08/18/2016)
76 OPINION and ORDER Granting in Part and Denying in Part 54 MOTION for Summary Judgment, and Denying 51 MOTION for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 08/18/2016)
77 JUDGMENT. Signed by District Judge Sean F. Cox. (SBur) (Entered: 08/18/2016)
78 NOTICE OF APPEAL by Equal Employment Opportunity Commission re 13 Memorandum Opinion & Order, 77 Judgment, 76 Memorandum Opinion & Order. Fee Status: No Fee Paid. (Price, Dale) (Entered: 10/13/2016)
79 Certificate of Service re 78 Notice of Appeal. (LGra) (Entered: 10/13/2016)
80 TRANSCRIPT of Motion to Dismiss held on 04/16/2015. (Court Reporter/Transcriber: Marie Metcalf) (Number of Pages: 20) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 11/23/2016. Redacted Transcript Deadline set for 12/5/2016. Release of Transcript Restriction set for 1/31/2017. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Metcalf, M) (Entered: 11/02/2016)
81 TRANSCRIPT of Motion for Summary Judgment held on 08/11/2016. (Court Reporter/Transcriber: Marie Metcalf) (Number of Pages: 45) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 11/23/2016. Redacted Transcript Deadline set for 12/5/2016. Release of Transcript Restriction set for 1/31/2017. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Metcalf, M) (Entered: 11/02/2016)
82 ORDER from U.S. Court of Appeals − Sixth Circuit re 78 Notice of Appeal filed by Equal Employment Opportunity Commission [Appeal Case Number 16−2424] (Ahmed, N) (Entered: 03/27/2017)
83 STIPULATION AND ORDER for Leave to Depose a Witness Signed by District Judge Sean F. Cox. (JMcC) (Entered: 10/26/2017)

10/30/2017 01/25/2018 03/07/2018 05/08/2018 05/09/2018 06/08/2018 06/08/2018 06/12/2018 06/18/2018
07/26/2018 07/26/2018 08/15/2018 01/24/2020 01/24/2020 02/11/2020

84 NOTICE of Appearance by John A. Knight on behalf of Aimee Stephens. (Knight, John) (Entered: 10/30/2017)
85 NOTICE of Change of Address/Contact Information by Douglas G. Wardlow on behalf of All Defendants. (Wardlow, Douglas) (Entered: 01/25/2018)
86 OPINION from U.S. Court of Appeals − Sixth Circuit re 78 Notice of Appeal filed by Equal Employment Opportunity Commission [Appeal Case Number 16−2424] (SKra) (Entered: 03/07/2018)
87 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 78 Notice of Appeal filed by Equal Employment Opportunity Commission [Appeal Case Number 16−2424] (DWor) (Entered: 05/08/2018)
88 NOTICE TO APPEAR: Status Conference set for 6/12/2018 at 03:30 PM before District Judge Sean F. Cox (JMcC) (Entered: 05/09/2018)
89 NOTICE of Appearance by Jay Kaplan on behalf of Aimee Stephens. (Kaplan, Jay) (Entered: 06/08/2018)
90 NOTICE by R.G. &. G.R. Harris Funeral Homes, Inc. Letter to the Court (Campbell, James) (Entered: 06/08/2018)
Minute Entry for proceedings before District Judge Sean F. Cox: Status Conference held on 6/12/2018 (JMcC) (Entered: 06/12/2018)
91 SCHEDULING ORDER: Discovery due by 8/13/2018, Dispositive Motion Cut−off set for 9/28/2018, Final Pretrial Conference set for 2/12/2019 at 02:00 PM before District Judge Sean F. Cox Trailing Trial Docket set for March/April 2019 Signed by District Judge Sean F. Cox. (Refer to image for additional dates) (JMcC) (Entered: 06/18/2018)
92 MOTION to Stay Proceedings Pending Resolution of Defendant's Petition for a Writ of Certiorari by R.G. &. G.R. Harris Funeral Homes, Inc.. (Wardlow, Douglas) (Entered: 07/26/2018)
93 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on 6/24/2018. [Supreme Court Case Number: 18−107] [Court of Appeals Case Number: 16−2424] (SKra) (Entered: 07/27/2018)
94 ORDER Granting 92 Motion to Stay. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 08/15/2018)
95 NOTICE of Appearance by John J. Bursch on behalf of R.G. &. G.R. Harris Funeral Homes, Inc.. (Bursch, John) (Entered: 01/24/2020)
96 NOTICE of Withdrawal of Attorney James A. Campbell for on behalf of R.G. &. G.R. Harris Funeral Homes, Inc.. (Campbell, James) (Entered: 01/24/2020)
97 ORDER Granting Withdrawal of Attorney James A. Campbell. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 02/11/2020)

 
 2:14-cv-13710-SFC-DRG Doc # 1 Filed 09/25/14 Pg 1 of 9 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION, )

)

Plaintiff,

)

)

v.

)

)

R.G. & G.R. HARRIS FUNERAL )

HOMES INC.,

)

)

Defendant.

)

_________________________________ )

CIVIL ACTION NO.
Complaint AND Jury Demand

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964

to correct unlawful employment practices on the basis of sex and to provide appropriate relief to Amiee Stephens who was adversely

affected by such practices. As alleged with greater particularly in

paragraphs 8 through 16 below, Defendant R.G. & G.R. Harris

Funeral Home, Inc., fired Stephens, a transgender woman, because

of sex. Additionally, as alleged in paragraphs 12 and 17 below, Defendant discriminated against female employees by not providing

them work clothing while providing work clothing to male

employees.

1

2:14-cv-13710-SFC-DRG Doc # 1 Filed 09/25/14 Pg 2 of 9 Pg ID 2
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) (“Title VII”), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for Eastern District of Michigan, Southern Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the “Commission”), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant, R.G. & G.R. Harris Funeral Home, Inc. (the “Employer”), a Michigan Corporation, has continuously been doing business in the State of Michigan and the
2

2:14-cv-13710-SFC-DRG Doc # 1 Filed 09/25/14 Pg 3 of 9 Pg ID 3
Cities of Detroit, Livonia, and Garden City, and has continuously had at least 15 employees.
5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
CONDITIONS PRECEDENT 6. More than thirty days prior to the institution of this lawsuit, Stephens filed a charge with the Commission alleging violations of Title VII by Defendant Employer. 7. All conditions precedent to the institution of this lawsuit have been fulfilled.
STATEMENT OF FACTS 8. Amiee Stephens had been employed by Defendant as a Funeral Director/Embalmer since October 2007. 9. Stephens adequately performed the duties of her position. 10. Stephens is a transgender woman. On or about July 31, 2013, Stephens informed Defendant Employer and her co-workers in a letter that she was undergoing a gender transition from male to
3

2:14-cv-13710-SFC-DRG Doc # 1 Filed 09/25/14 Pg 4 of 9 Pg ID 4
female and intended to dress in appropriate business attire at work as a woman from then on, asking for their support and understanding.
11. On or about August 15, 2013, Defendant Employer’s owner fired Stephens, telling her that what she was “proposing to do” was unacceptable.
12. Since at least September 13, 2011, the Defendant Employer has provided a clothing allowance to male employees but not female employees. Defendant Employer provides work clothes to male employees but provides no such assistance to female employees.
STATEMENT OF CLAIMS 13. Paragraphs 8 through 12 are fully incorporated herein. 14. Defendant engaged in unlawful employment practices at its Garden City, Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), by terminating Stephens because of sex. 15. Defendant Employer’s decision to fire Stephens was motivated by sex-based considerations. Specifically, Defendant Employer fired Stephens because Stephens is transgender, because
4

2:14-cv-13710-SFC-DRG Doc # 1 Filed 09/25/14 Pg 5 of 9 Pg ID 5
of Stephens’s transition from male to female, and/or because Stephens did not conform to the Defendant Employer’s sex- or gender-based preferences, expectations, or stereotypes.
16. The effect of the practices complained of in paragraphs 8 through 11 and 14 through 15 above has been to deprive Stephens of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex.
17. Defendant engaged in unlawful employment practices at its Garden City, Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), by providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex.
18. The effect of the practices complained of in paragraphs 12 and 17 above has been to deprive a class of female employees of equal employment opportunities and otherwise adversely affect their status as employees because of their sex.
19. The unlawful employment practices complained of in paragraphs 8 through 18 above were intentional.
20. The unlawful employment practices complained of in paragraphs 8 through 18 above were done with malice or with
5

2:14-cv-13710-SFC-DRG Doc # 1 Filed 09/25/14 Pg 6 of 9 Pg ID 6
reckless indifference to the federally protected rights of Stephens and a class of female employees.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them, from engaging in any unlawful practice which discriminates against an employee or applicant because of their sex, including on the basis of gender identity. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities regardless of sex (including gender identity), and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make Stephens whole by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief
6

2:14-cv-13710-SFC-DRG Doc # 1 Filed 09/25/14 Pg 7 of 9 Pg ID 7
necessary to eradicate the effects of its unlawful employment practices, including but not limited to front pay for Stephens.
D. Order Defendant Employer to make Stephens and a class of female employees whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 8 through 18 above, including medical losses, job search expenses, and lost clothing allowances, in amounts to be determined at trial.
E. Order Defendant Employer to make Stephens and a class of female employees whole by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 8 through 18 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Defendant Employer to pay Stephens and a class of female employees punitive damages for its malicious or recklessly indifferent conduct described in paragraphs 8 through 18 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
7

2:14-cv-13710-SFC-DRG Doc # 1 Filed 09/25/14 Pg 8 of 9 Pg ID 8
H. Award the Commission its costs of this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
P. DAVID LOPEZ General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel s/ Laurie A. Young LAURIE A. YOUNG Regional Attorney s/ Kenneth Bird KENNETH BIRD Supervisory Trial Attorney s/ Miles Shultz MILES SHULTZ (P73555) Trial Attorney
8

2:14-cv-13710-SFC-DRG Doc # 1 Filed 09/25/14 Pg 9 of 9 Pg ID 9

Dated: September 25, 2014

s/ Dale Price DALE PRICE (P55578) Trial Attorney
DETROIT FIELD OFFICE Patrick V. McNamara 477 Michigan Avenue, Room 865 Detroit, Michigan 48226 Dale.Price@EEOC.GOV Tel. No. (313) 226-7808 Fax No. (313) 226-6584

9

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Equal Employment Opportunity Commission,

Plaintiff,

v.

Case No. 14-13710

R.G. & G.R. Harris Funeral Homes, Inc.,
Defendant. ______________________________________/

Sean F. Cox United States District Court Judge

OPINION & ORDER DENYING DEFENDANT’S MOTION TO DISMISS

The United States Equal Employment Opportunity Commission (the “EEOC”) brought

this employment discrimination action against R.G. & G.R. Harris Funeral Home, Inc. (“the

Funeral Home”) asserting two claims against the Funeral Home. First, it asserts a Title VII

claim on behalf of the Funeral Home’s former Funeral Director/Embalmer Stephens, who is

transgender and is transitioning from male to female. The EEOC asserts that the Funeral

Home’s decision to fire Stephens was motivated by sex-based considerations, in that the Funeral

Home fired Stephens because Stephens is transgender, because of Stephens’s transition from

male to female, and/or because Stephens did not conform to the defendant employer’s sex- or

gender-based preferences, expectations, or stereotypes. Second, the EEOC asserts that the

Funeral Home engaged in an unlawful employment practice in violation of Title VII by

providing a clothing allowance/work clothes to male employees but failing to provide such

assistance to female employees because of sex. This second claim appears to be brought on

behalf of an unidentified class of female employees of the Funeral Home.

1

The Funeral Home filed a Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). The parties fully briefed the issues and the Court heard oral argument on April 16, 2015. For the reasons that follow, the Court shall DENY the Funeral Home’s Motion to Dismiss.
The pending motion does not challenge the EEOC’s claim based on the alleged disparate treatment in relation to a clothing allowance and, therefore, that claim remains.
This Court also concludes that the EEOC’s complaint states a Title VII claim against the Funeral Home on behalf of Stephens. As explained below, transgender status is not a protected class under Title VII. Thus, if the EEOC’s complaint had alleged that the Funeral Home fired Stephens based solely upon Stephens’s status as a transgender person, then this Court would agree with the Funeral Home that the EEOC’s complaint fails to state a claim under Title VII. But the EEOC’s complaint also asserts that the Funeral Home fired Stephens “because Stephens did not conform to the [Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.” (Compl. at ¶ 15). And binding Sixth Circuit precedent establishes that any person
without regard to labels such as transgender can assert a sex-stereotyping genderdiscrimination claim under Title VII, under a Price Waterhouse theory, if that person’s failure to conform to sex stereotypes was the driving force behind the termination. This Court therefore concludes that the EEOC’s complaint states a claim as to Stephens’s termination.
Finally, the remaining arguments in the Funeral Home’s motion are without merit or are improperly raised in a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6).
BACKGROUND On September 25, 2014, the EEOC filed this action against the Funeral Home. The EEOC’s complaint describes the nature of this action as follows:
2

This is an action under Title VII of the Civil Rights Act of 1964 to correct unlawful employment practices on the basis of sex and to provide appropriate relief to Amiee Stephens who was adversely affected by such practices. As alleged with greater particularity in paragraphs 8 through 16 below, Defendant R.G. & G.R. Harris Funeral Home, Inc., fired Stephens, a transgender woman, because of sex. Additionally, as alleged in paragraphs 12 and 17 below, Defendant discriminated against female employees by not providing them work clothing while providing work clothing to male employees.
(Compl. at 1). The EEOC.’s complaint alleges as follows in its “Statement of Facts” section:
8. Amiee Stephens had been employed by Defendant as a Funeral Director/Embalmer since October 2007.
9. Stephens adequately performed the duties of her position.
10. Stephens is a transgender woman. On or about July 31, 2013, Stephens informed Defendant Employer and her co-workers in a letter that she was undergoing a gender transition from male to female and intended to dress in appropriate business attire at work as a woman from then on, asking for their support and understanding.
11. On or about August 15, 2013, Defendant Employer’s owner fired Stephens, telling her that what she was “proposing to do” was unacceptable.
12. Since at least September 13, 2011, the Defendant Employer has provided a clothing allowance to male employees but not female employees. Defendant Employer provides work clothes to male employees but provides no such assistance to female employees.
(Id. at 3-4). The EEOC’s complaint alleges as follows in its “Statement of Claims” section:
13. Paragraphs 8 through 12 are fully incorporated herein.
14. Defendant engaged in unlawful employment practices at its Garden City, Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), by terminating Stephens because of sex.
15. Defendant Employer’s decision to fire Stephens was motivated by sex-based considerations. Specifically, Defendant Employer fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to the Defendant Employer’s sex- or gender-based preferences, expectations, or stereotypes.
3

16. The effect of the practices complained of in paragraphs 8 through 11 and 14 through 15 above has been to deprive Stephens of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex.
17. Defendant engaged in unlawful employment practices at its Garden City, Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), by providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex.
18. The effect of the practices complained of in paragraphs 12 and 17 above has been to deprive a class of female employees of equal employment opportunities and otherwise adversely affect their status as employees because of their sex.
19. The unlawful employment practices complained of in paragraphs 8 through 18 above were intentional.
20. The unlawful employment practices complained of in paragraphs 8 through 18 above were done with malice or with reckless indifference to the federally protected rights of Stephens and a class of female employees.
(Id. at 4-5) (emphasis added). The prayer for relief in the EEOC’s complaint states as follows:
PRAYER FOR RELIEF
Wherefore, the Commission respectfully requests that this Court:
A. Grant a permanent injunction enjoining Defendant Employer, its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them, from engaging in any unlawful practice which discriminates against an employee or applicant because of their sex, including on the basis of gender identity.
B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities regardless of sex (including gender identity), and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant Employer to make Stephens whole by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to front pay for Stephens.
4

D. Order Defendant Employer to make Stephens and a class of female employees whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 8 through 18 above, including medical losses, job search expenses, and lost clothing allowances, in amounts to be determined at trial.
E. Order Defendant Employer to make Stephens and a class of female employees whole by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 8 through 18 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Defendant Employer to pay Stephens and a class of female employees punitive damages for its malicious or recklessly indifferent conduct described in paragraphs 8 through 18 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action.
(Id. at 6-8).
On November 19, 2014, the Funeral Home filed a Motion to Dismiss, pursuant to Fed. R.
Civ. P. 12(b)(6). The motion has been fully briefed and the Court heard oral argument on April
16, 2015.
STANDARD OF DECISION
When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must
construe the complaint in a light most favorable to the plaintiff and accept all the well-pleaded
factual allegations as true. Evans-Marshall v. Board of Educ., 428 F.3d 223, 228 (6th Cir. 2005).
Although a heightened fact pleading of specifics is not required, the plaintiff must bring forth
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
5

550 U.S. 544, 570 (2007). ANALYSIS
I. The Funeral Home’s Motion Does Not Challenge The EEOC’s Claims Based On The Alleged Disparate Treatment In Relation To Clothing Allowances For Male And Female Employees. The EEOC’s complaint in this action asserts two different types of claims against the
Funeral Home. First, the EEOC asserts that the Funeral Home’s decision to fire Stephens was motivated
by sex-based considerations, in that the Funeral Home fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to the Defendant Employer’s sex- or gender-based preferences, expectations, or stereotypes.
Second, the EEOC asserts that the Funeral Home engaged in an unlawful employment practice in violation of Title VII by “providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex.” (Compl. at ¶ 17). This second type of claim appears to be brought on behalf of an unidentified class of female employees of the Funeral Home.
Although the Funeral Home’s motion is titled a “Motion to Dismiss” and asks the Court to dismiss the EEOC’s “complaint,” (Def.’s Motion at 1), the motion does not include any challenges to the EEOC’s second claim. As such, that claim would remain even if the Court found the Funeral Home’s challenges to the first claim to have merit.
II. The EEOC’s Complaint States A Title VII Claim Against The Funeral Home On Behalf Of Stephens. 6

Again, as to its first claim, the EEOC asserts that the Funeral Home’s decision to fire Stephens was motivated by sex-based considerations, in that the Funeral Home fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to the Defendant Employer’s sex- or gender-based preferences, expectations, or stereotypes.
A. Transgender Status Is Not A Protected Class Under Title VII. If the EEOC’s complaint had alleged that the Funeral Home fired Stephens based solely upon Stephens’s status as a transgender person, then this Court would agree with the Funeral Home that the EEOC’s complaint would fail to state a claim under Title VII. That is because, like sexual orientation, transgender or transsexual status is currently not a protected class under Title VII. See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (Stating that “sexual orientation is not a prohibited basis for discriminatory acts under Title VII.”); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007) (Concluding that “transsexuals are not a protected class under Title VII”, rejecting the plaintiff’s argument for “a more expansive interpretation of sex that would include transsexuals as a protected class,” and noting that “[e]ven the Sixth Circuit, which extended protection to transsexuals under the Price Waterhouse theory” “explained that an individual’s status as a transsexual should be irrelevant to the availability of Title VII protection.”). But the EEOC’s complaint does not allege that the Funeral Home fired Stephens based solely upon Stephens’s status as a transgender person. The EEOC’s complaint also asserts that the Funeral Home fired Stephens “because Stephens did not conform to the [Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.” (Compl. at ¶ 15).
7

In its brief, however, the EEOC appears to seek a more expansive interpretation of sex under Title VII that would include transgender persons as a protected class. (Pl.’s Br. at 8) (Arguing that the EEOC’s “complaint states a claim of sex discrimination under Title VII because Stephens is transgender and [the Funeral Home] fired her for that reason.”). There is no Sixth Circuit or Supreme Court authority to support the EEOC’s position that transgender status is a protected class under Title VII.
B. A Transgender Person – Just Like Anyone Else – Can Bring A Sex StereoTyping Gender-Discrimination Claim Under Title VII.
Even though transgender/transsexual status is currently not a protected class under Title VII, Title VII nevertheless “protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.” Myers v. Cuyahoga Cnty, Ohio, 183 F. A’ppx 510, (6th Cir. 2006) (Citing Smith v. City Of Salem, 378 F.3d 566 (6th Cir. 2004) and Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)).
The seminal Sixth Circuit case on this issue is Smith v. City of Salem. The plaintiff in Smith was born a male and had been employed by the Salem Fire Department for seven years without any negative incidents. After being diagnosed with Gender Identity Disorder, Smith began expressing a more feminine appearance on a full-time basis, including while at work. Smith, 378 F.3d at 568. Smith’s co-workers began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.” Id. Smith then advised his supervisor about his Gender Identity Disorder diagnosis and informed him that his treatment would eventually include “complete physical transformation from male to female.” Id. The news was not well-received by Smith’s employer. Smith’s superiors met to devise a plan to terminate Smith, which included requiring him to undergo three separate psychological
8

evaluations in the hope that he would quit.
Smith ultimately filed suit and his claims against the city included a Title VII claim of
sex stereotyping, in violation of the Supreme Court’s pronouncements in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989). The district court dismissed Smith’s sex-stereotyping claim
under Title VII but the Sixth Circuit reversed.
The Sixth Circuit began its analysis by looking at the Supreme Court’s decision in Price
Waterhouse:
In Price Waterhouse, the plaintiff, a female senior manager in an accounting firm, was denied partnership in the firm, in part, because she was considered “macho.” 490 U.S. at 235, 109 S.Ct. 1775. She was advised that she could improve her chances for partnership if she were to take “a course at charm school,” “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. (internal quotation marks omitted). Six members of the Court agreed that such comments bespoke gender discrimination, holding that Title VII barred not just discrimination because Hopkins was a woman, but also sex stereotyping that is, discrimination because she failed to act like a woman. Id. at 250 51, 109 S.Ct. 1775 (plurality opinion of four Justices); id. at 258 61, 109 S.Ct. 1775 (White, J., concurring); id. at 272 73, 109 S.Ct. 1775 (O’Connor, J., concurring) (accepting plurality’s sex stereotyping analysis and characterizing the “failure to conform to [gender] stereotypes” as a discriminatory criterion; concurring separately to clarify the separate issues of causation and allocation of the burden of proof).
Smith, 378 F.3d at 571-72. The Smith court further explained that:
The Supreme Court made clear that in the context of Title VII, discrimination because of “sex” includes gender discrimination: “In the context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Price Waterhouse, 490 U.S. at 250, 109 S.Ct. 1775. The Court emphasized that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Id. at 251, 109 S.Ct. 1775.
Id. The Smith court concluded that Smith had stated a Title VII claim for relief, pursuant to
Price Waterhouse’s prohibition of sex stereotyping, based on his gender non-conforming
9

behavior and appearance. The court noted that:
His complaint sets forth the conduct and mannerisms which, he alleges, did not conform with his employers’ and co-workers’ sex stereotypes of how a man should look and behave. Smith’s complaint states that, after being diagnosed with GID, he began to express a more feminine appearance and manner on a regular basis, including at work. The complaint states that his co-workers began commenting on his appearance and mannerisms as not being masculine enough; and that his supervisors at the Fire Department and other municipal agents knew about this allegedly unmasculine conduct and appearance. The complaint then describes a high-level meeting among Smith’s supervisors and other municipal officials regarding his employment. Defendants allegedly schemed to compel Smith’s resignation by forcing him to undergo multiple psychological evaluations of his gender non-conforming behavior. The complaint makes clear that these meetings took place soon after Smith assumed a more feminine appearance and manner and after his conversation about this with Eastek. In addition, the complaint alleges that Smith was suspended for twenty-four hours for allegedly violating an unenacted municipal policy, and that the suspension was ordered in retaliation for his pursuing legal remedies after he had been informed about Defendants’ plan to intimidate him into resigning. In short, Smith claims that the discrimination he experienced was based on his failure to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance.
Id. at 572.
The Smith court explained that “[h]aving alleged that his failure to conform to sex
stereotypes concerning how a man should look and behave was the driving force behind
Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender
discrimination.” Id.
The Smith court went on to explain that the district court erred in relying on “a series of
pre-Price Waterhouse cases from other federal appellate courts holding that transsexuals, as a
class, are not entitled to Title VII protection because ‘Congress had a narrow view of sex in
mind’ and ‘never considered nor intended that [Title VII] apply to anything other than the
traditional concept of sex.’” Id. (citations omitted). In that “earlier jurisprudence, male-to-
10

female transsexuals (who were the plaintiffs in Ulane, Sommers, and Holloway) as biological males whose outward behavior and emotional identity did not conform to socially-prescribed expectations of masculinity were denied Title VII protection by courts because they were considered victims of ‘gender’ rather than ‘sex’ discrimination.” Smith, 378 F.3d at 573.
The Smith court held that the approach in those cases, and the district court’s position below, “has been eviscerated1 by Price Waterhouse.” Id. “By holding that Title VII protected a woman who failed to conform to social expectations concerning how a woman should look and behave, the Supreme Court established that Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms. See Price Waterhouse, 490 U.S. at 251, 109 S.Ct. 1775.” Id.
Thus, “[a]fter Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.” Smith, 378 F.3d at 574 (emphasis added).
The Sixth Circuit then rejected the position that, because a person is transgender, that person is somehow less worthy of protection under Title VII as to a sex-stereotyping claim:
Yet some courts have held that this latter form of discrimination is of a different and somehow more permissible kind. For instance, the man who acts in
1Notably, the Funeral Home’s motion and brief rely on some of the very same cases that the Sixth Circuit stated were eviscerated by Price Waterhouse.
11

ways typically associated with women is not described as engaging in the same activity as a woman who acts in ways typically associated with women, but is instead described as engaging in the different activity of being a transsexual (or in some instances, a homosexual or transvestite). Discrimination against the transsexual is then found not to be discrimination “because of ... sex,” but rather, discrimination against the plaintiff’s unprotected status or mode of self-identification. In other words, these courts superimpose classifications such as “transsexual” on a plaintiff, and then legitimize discrimination based on the plaintiff’s gender non-conformity by formalizing the non-conformity into an ostensibly unprotected classification. See, e.g., Dillon v. Frank, No. 90 2290, 1992 WL 5436 (6th Cir. Jan.15, 1992).
Such was the case here: despite the fact that Smith alleges that Defendants’ discrimination was motivated by his appearance and mannerisms, which Defendants felt were inappropriate for his perceived sex, the district court expressly declined to discuss the applicability of Price Waterhouse. The district court therefore gave insufficient consideration to Smith’s well-pleaded claims concerning his contra-gender behavior, but rather accounted for that behavior only insofar as it confirmed for the court Smith’s status as a transsexual, which the district court held precluded Smith from Title VII protection.
Such analyses cannot be reconciled with Price Waterhouse, which does not make Title VII protection against sex stereotyping conditional or provide any reason to exclude Title VII coverage for non sex-stereotypical behavior simply because the person is a transsexual. As such, discrimination against a plaintiff who is a transsexual and therefore fails to act and/or identify with his or her gender is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman. Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.
Smith, 378 F.3d at 574-75. “Accordingly, we hold that Smith has stated a claim for relief
pursuant to Title VII’s prohibition of sex discrimination.” Id.
In Barnes v. City of Cincinnati, the Sixth Circuit concluded that the transsexual plaintiff
in that case had also sufficiently pleaded a Title VII sex discrimination claim under a Price
Waterhouse theory. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). The plaintiff in
that case, Barnes, was employed by the Cincinnati Police Department. Barnes “was a male-to-
female transsexual who was living as a male while on duty but often lived as a woman off duty.
12

Barnes had a reputation throughout the police department as a homosexual, bisexual or cross-
dresser.” Id. at 733.
Following a promotion to sergeant, Barnes was assigned to District One for a
probationary period. During that probationary period, Barnes “was living off-duty as a woman,
had a French manicure, had arched eyebrows and came to work with makeup or lipstick on his
face on some occasions.” Id. at 734.
After Barnes was demoted from sergeant, he filed suit and asserted a claim under Title
VII. After a jury verdict in Barnes’s favor, the City appealed. Among other things, the City
asserted that Barnes did not sufficiently plead or prove a sex discrimination claim under Title
VII. The Sixth Circuit rejected that argument, explaining as follows:
In this case, Barnes claims that the City intentionally discriminated against him because of his failure to conform to sex stereotypes. The City claims that Barnes failed to establish the first and the fourth elements of a prima facie case, because he was not a member of a protected class and he failed to identify a similarly situated employee who passed probation.
Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004), instructs that the City’s claim that Barnes was not a member of a protected class lacks merit. In Smith, this court held that the district court erred in granting a motion to dismiss by holding that transsexuals, as a class, are not entitled to Title VII protections, stating:
Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.
Id. at 575. By alleging that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind defendant’s actions, Smith stated a claim for relief pursuant to Title VII’s prohibition of sex discrimination. Id. at 573, 575. Following the holding in Smith, Barnes established that he was a member of a protected class by alleging discrimination against the City for his failure to conform to sex stereotypes.
13

Barnes, 401 F.3d at 737. Accordingly, Smith and Barnes establish that a transgender person just like anyone else
can bring a sex-stereotyping gender-discrimination claim under Title VII under a Price Waterhouse theory.
Here, the EEOC’s complaint alleges that Stephens informed the Funeral Home that Stephens “was undergoing a gender transition from male to female and intended to dress in appropriate business attire at work as a woman from then on,” and that the Funeral Home responded by firing Stephens and stating that what Stephens “was ‘proposing to do’ was unacceptable.” (Compl. at ¶¶ 10 & 11). The complaint further alleges that the Funeral Home’s “decision to fire Stephens was motivated by sex-based considerations,” and that the Funeral Home fired Stephens because Stephens “did not conform to the [Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.” (Compl. at ¶ 15).
This Court concludes that, having alleged that Stephens’s failure to conform to sex stereotypes was the driving force behind the Funeral Home’s decision to fire Stephens, the EEOC has sufficiently pleaded a sex-stereotyping gender-discrimination claim under Title VII.
C. The Funeral Home’s Remaining Arguments Are Without Merit Or Are Improperly Raised In A Motion To Dismiss Under Fed. R. Civ. P. 12(b)(6).
The Funeral Home’s Motion to Dismiss makes numerous arguments. As stated above, this Court concludes that the EEOC has sufficiently pleaded a Title VII claim on behalf of Stephens. Below, the Court addresses challenges made by the Funeral Home that are not encompassed in the above analysis.
1. The Funeral Home’s “Gender Identity Disorder” Arguments Are Irrelevant.
14

In the pending motion, the Funeral Home asserts that “[t]o the extent the EEOC’s claim is that [Stephens] was terminated due to his gender identity disorder, the claim must be dismissed.” (Def.’s Br. at 11). In making this argument, the Funeral Home also asserts that Gender Identity Disorder is not a protected class under Title VII. (Id. at 3).
The EEOC’s complaint never uses the term Gender Identity Disorder; nor does it assert that Gender Identity Disorder is a protected class under Title VII. Moreover, to the extent that the EEOC asks this Court to rule that transgender status is a protected class under Title VII, this Court declines to do so, as set forth in Section II. A. of this Opinion.
2. The Court Rejects The Funeral Home’s Ultra Vires Arguments. The Funeral Home also asserts that “Title VII does not extend its protections to ‘gender identity disorder’” and then takes the position that the EEOC’s prosecution of this case is an ultra vires act. The Court rejects this argument. As stated above, the Court concludes that, having alleged that Stephens’s failure to conform to sex stereotypes was the driving force behind the Funeral Home’s decision to fire Stephens, the EEOC has sufficiently pleaded a sexstereotyping gender-discrimination claim under Title VII.
3. The Funeral Home’s Defenses Based Upon Its Enforcement Of An Alleged Dress Code Are Not Properly Before The Court On A Motion Brought Under Fed. R. Civ. P. 12(b)(6).
In its motion, the Funeral Home also asserts that “the Complainant [Stephens] was terminated for refusing to comply with the employer’s dress and grooming code” and therefore the claim fails. (Def.’s Br. at 19). It then cites cases that involved plaintiffs who filed suit alleging that their employer’s dress codes violated Title VII.
Here, however, the EEOC’s complaint does not assert any claims based upon a dress
15

code and it does not contain any allegations as to a dress code at the Funeral Home.
To the extent that the Funeral Home seeks to proffer a defense to the Title VII claim
asserted on behalf of Stephen based upon its alleged dress code, this Court agrees with the
EEOC that such a defense has no place in the context of a motion brought pursuant to Fed. R.
Civ. P. 12(b)(6):
Essentially, Defendant is injecting a defense into a 12(b)(6) motion and asking the court to accept the defense as true in order to find the complaint legally deficient. This is not the proper use of a motion to challenge a complaint. As noted above, a 12(b)(6) motion is not a vehicle “to resolv[e] . . . the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). Instead, Rule 12(b)(6) by its terms provides for a defendant to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” (Pl.’s Br. at 14).2
CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that Defendant’s Motion to Dismiss is
DENIED.
IT IS SO ORDERED.
S/Sean F. Cox Sean F. Cox United States District Judge
Dated: April 21, 2015
2The Court also notes that although the Funeral Home makes assertions as to it having a dress code, and assertions as to what it entails (see Def.’s Br. at 6-7), the Funeral Home did not submit any evidence as to its purported dress code. Thus, even if the Court wished to convert this motion to dismiss into a summary judgment motion, under Fed. R. Civ. P. 12(d), and consider matters outside of the pleadings, there would be no basis for it to do so here.
16

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Equal Employment Opportunity Commission,

Plaintiff,

v.

Case No. 14-13710

R.G. & G.R. Harris Funeral Homes, Inc.,
Defendant. ______________________________________/

Sean F. Cox United States District Court Judge

PROOF OF SERVICE I hereby certify that a copy of the foregoing document was served upon counsel of record on April 21, 2015, by electronic and/or ordinary mail.
S/Jennifer McCoy Case Manager

17

 
 2:14-cv-13710-SFC-DRG Doc # 21 Filed 06/01/15 Pg 1 of 9 Pg ID 241

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION, )

)

Plaintiff,

)

)

v.

)

)

R.G. & G.R. HARRIS FUNERAL )

HOMES INC.,

)

)

Defendant.

)

_________________________________ )

CIVIL ACTION NO.
First Amended Complaint and Jury Demand

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964

to correct unlawful employment practices on the basis of sex and to provide appropriate relief to Aimee Stephens who was adversely

affected by such practices. As alleged with greater particularly in

paragraphs 8 through 16 below, Defendant R.G. & G.R. Harris

Funeral Home, Inc., fired Stephens, a transgender woman, because

of sex. Additionally, as alleged in paragraphs 12 and 17 below, Defendant discriminated against female employees by not providing

them work clothing while providing work clothing to male

employees.

1

2:14-cv-13710-SFC-DRG Doc # 21 Filed 06/01/15 Pg 2 of 9 Pg ID 242
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) (“Title VII”), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for Eastern District of Michigan, Southern Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the “Commission”), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant, R.G. & G.R. Harris Funeral Home, Inc. (the “Employer”), a Michigan Corporation, has continuously been doing business in the State of Michigan and the
2

2:14-cv-13710-SFC-DRG Doc # 21 Filed 06/01/15 Pg 3 of 9 Pg ID 243
Cities of Detroit, Livonia, and Garden City, and has continuously had at least 15 employees.
5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
CONDITIONS PRECEDENT 6. More than thirty days prior to the institution of this lawsuit, Stephens filed a charge with the Commission alleging violations of Title VII by Defendant Employer. 7. All conditions precedent to the institution of this lawsuit have been fulfilled.
STATEMENT OF FACTS 8. Aimee Stephens had been employed by Defendant as a Funeral Director/Embalmer since October 2007. 9. Stephens adequately performed the duties of her position. 10. Stephens is a transgender woman. On or about July 31, 2013, Stephens informed Defendant Employer and her co-workers in a letter that she was undergoing a gender transition from male to
3

2:14-cv-13710-SFC-DRG Doc # 21 Filed 06/01/15 Pg 4 of 9 Pg ID 244
female and intended to dress in appropriate business attire at work as a woman from then on, asking for their support and understanding.
11. On or about August 15, 2013, Defendant Employer’s owner fired Stephens, telling her that what she was “proposing to do” was unacceptable.
12. Since at least September 13, 2011, the Defendant Employer has provided a clothing allowance to male employees but not female employees. Defendant Employer provides work clothes to male employees but provides no such assistance to female employees.
STATEMENT OF CLAIMS 13. Paragraphs 8 through 12 are fully incorporated herein. 14. Defendant engaged in unlawful employment practices at its Garden City, Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), by terminating Stephens because of sex. 15. Defendant Employer’s decision to fire Stephens was motivated by sex-based considerations. Specifically, Defendant Employer fired Stephens because Stephens is transgender, because
4

2:14-cv-13710-SFC-DRG Doc # 21 Filed 06/01/15 Pg 5 of 9 Pg ID 245
of Stephens’s transition from male to female, and/or because Stephens did not conform to the Defendant Employer’s sex- or gender-based preferences, expectations, or stereotypes.
16. The effect of the practices complained of in paragraphs 8 through 11 and 14 through 15 above has been to deprive Stephens of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex.
17. Defendant engaged in unlawful employment practices at its Garden City, Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), by providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex.
18. The effect of the practices complained of in paragraphs 12 and 17 above has been to deprive a class of female employees of equal employment opportunities and otherwise adversely affect their status as employees because of their sex.
19. The unlawful employment practices complained of in paragraphs 8 through 18 above were intentional.
20. The unlawful employment practices complained of in paragraphs 8 through 18 above were done with malice or with
5

2:14-cv-13710-SFC-DRG Doc # 21 Filed 06/01/15 Pg 6 of 9 Pg ID 246
reckless indifference to the federally protected rights of Stephens and a class of female employees.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them, from engaging in any unlawful practice which discriminates against an employee or applicant because of their sex, including on the basis of gender identity. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities regardless of sex (including gender identity), and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make Stephens whole by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief
6

2:14-cv-13710-SFC-DRG Doc # 21 Filed 06/01/15 Pg 7 of 9 Pg ID 247
necessary to eradicate the effects of its unlawful employment practices, including but not limited to front pay for Stephens.
D. Order Defendant Employer to make Stephens and a class of female employees whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 8 through 18 above, including medical losses, job search expenses, and lost clothing allowances, in amounts to be determined at trial.
E. Order Defendant Employer to make Stephens and a class of female employees whole by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 8 through 18 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Defendant Employer to pay Stephens and a class of female employees punitive damages for its malicious or recklessly indifferent conduct described in paragraphs 8 through 18 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
7

2:14-cv-13710-SFC-DRG Doc # 21 Filed 06/01/15 Pg 8 of 9 Pg ID 248
H. Award the Commission its costs of this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
P. DAVID LOPEZ General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel s/ Laurie A. Young LAURIE A. YOUNG Regional Attorney s/ Kenneth Bird KENNETH BIRD Supervisory Trial Attorney s/ Miles Shultz MILES SHULTZ (P73555) Trial Attorney
8

2:14-cv-13710-SFC-DRG Doc # 21 Filed 06/01/15 Pg 9 of 9 Pg ID 249

Dated: June 1, 2015

s/ Dale Price DALE PRICE (P55578) Trial Attorney
DETROIT FIELD OFFICE Patrick V. McNamara 477 Michigan Avenue, Room 865 Detroit, Michigan 48226 Dale.Price@EEOC.GOV Tel. No. (313) 226-7808 Fax No. (313) 226-6584

9

 
 2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 1 of 50 Pg ID 591

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION, )

)

Plaintiff,

)

)

v.

)

)

R.G. & G.R. HARRIS FUNERAL )

HOMES, INC.,

)

)

Defendant.

)

CIVIL ACTION NO. 2:14-CV-13710 Hon. Sean F. Cox Magistrate Judge David R. Grand

Motion for Summary Judgment

Pursuant to Fed. R. Civ. P. 56, the Plaintiff Equal Employment

Opportunity Commission moves for summary judgment on the grounds

that there is no material factual dispute that the Defendant discharged

Aimee Stephens because of sex.

The Commission further states neither the First Amendment to the

Constitution nor the Religious Freedom Restoration Act authorizes the

discharge of employees on the basis of sex, thus Defendant’s affirmative

defenses must fail as a matter of law.

Finally, the Commission states that there is no material factual

dispute with respect to Defendant’s clothing allowance, which provided

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 2 of 50 Pg ID 592
free clothing benefits to male employees and nothing to females until October 2014. Since that time, Defendant has provided stipends to women which are less than the value of the benefit provided to men. Both fringe-benefit policies constitute sex discrimination in violation of Title VII.
The Commission respectfully directs the Court to the attached memorandum for the arguments supporting this Motion.
The Commission sought concurrence in this motion from defense counsel on February 1, 2016 and said concurrence was denied.
Wherefore, the Commission respectfully moves for summary judgment in its favor.
2

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 3 of 50 Pg ID 593

Dated: April 7, 2016

Respectfully submitted,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
s/ Miles Shultz MILES SHULTZ (P73555) Trial Attorney
s/ Katie Linehan KATIE LINHAN (P77974) Trial Attorney
s/ Dale Price DALE PRICE (P55578) Trial Attorney
DETROIT FIELD OFFICE Patrick V. McNamara 477 Michigan Avenue, Room 865 Detroit, Michigan 48226 Dale.Price@EEOC.GOV Tel. No. (313) 226-7808 Fax No. (313) 226-6584

3

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 4 of 50 Pg ID 594

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION, )

)

Plaintiff,

)

)

v.

)

)

R.G. & G.R. HARRIS FUNERAL )

HOMES, INC.,

)

)

Defendant.

)

CIVIL ACTION NO. 2:14-CV-13710 Hon. Sean F. Cox Magistrate Judge David R. Grand

Memorandum in Support of Plaintiff EEOC’s Motion for Summary Judgment

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 5 of 50 Pg ID 595
Table of Contents Statement of the Issues............................................................................iv Table of Authorities ................................................................................ ix Controlling Authority...............................................................................ix Index of Exhibits ....................................................................................... x I. Introduction ........................................................................................... 1
A. Overview of the Case. .................................................................... 1 B. The Affirmative Defenses .............................................................. 2 C. Thomas Rost Limits His Religious Exercise. ................................ 4 D. RGGR does not operate as a religious enterprise. ........................ 5 E. Rost’s religious beliefs about men and women motivated him to
fire Stephens. ................................................................................. 8 F. Defendant’s Clothing-Allowance Policy.......................................10 II. Relevant Law ...................................................................................... 12 A. Rule 56 Standard ......................................................................... 12 B. First Amendment Free Exercise Standard ................................. 13 C. RFRA Standard............................................................................14
ii

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 6 of 50 Pg ID 596
III. Arguments.........................................................................................15 A. The Commission Has Not Violated Defendant’s Free- Exercise rights. ........................................................................................... 15 B. Defendant’s RFRA defense should be rejected............................17 1. The Commission does not contest Defendant’s religious sincerity. ...................................................................................................... 17
2. Defendant’s Religious Exercise at RGGR is Not Affected by Title VII Enforcement...........................................................................18
3. Enforcement of Title VII does not substantially burden Defendant. .................................................................................... 21
4. Enforcement of Title VII here furthers a compelling governmental interest in eradicating sex discrimination and is precisely tailored to further that interest. ............................................................... 24
C. Summary Judgment as to liability for Stephens’s gender-motivated termination is warranted. .............................. 26
D. Defendant’s Clothing-Allowance Policy Constitutes Sex-Based Discrimination. ............................................................................ 32
IV. Conclusion .................................................................................... 34
iii

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 7 of 50 Pg ID 597
Statement of the Issues
1. Title VII is a neutral rule of general applicability which applies to businesses operated by non-religious and religious persons alike. Does the Commission’s attempt to vindicate Aimee Stephens’s Title VII rights violate Defendant’s rights under the First Amendment Free Exercise Clause?
The Commission answers “No.”
2. The Religious Freedom Restoration Act prohibits the government from substantially burdening a sincere religious exercise unless such is done in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. Defendant admits that it would not have had to change any of its religious practices if it had continued to employ Stephens, and has only asserted that Rost’s beliefs have been impinged upon. Protection of the Title VII rights of employees is a compelling governmental interest, and Title VII is precisely tailored to further that interest. Does RFRA trump this enforcement action under Title VII?
The Commission answers “No.”
3. The Defendant’s owner and sole decisionmaker has admitted that his decision to fire Aimee Stephens was motivated by his beliefs and attitudes about how men and women are supposed to act and present themselves. Are these testimonial admissions sufficient to warrant summary judgment in favor of the Commission as to liability for Aimee Stephens’s termination?
The Commission answers “Yes.”
4. Until October 2014, Defendant provided a fringe benefit by which male employees were granted a clothing allowance of suits and ties free of charge, including free replacements as they wore out,
iv

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 8 of 50 Pg ID 598
whereas female employees were given nothing. The approximate value of a suit and tie is $235. Since October 2014, the female employees have been given annual stipends of either $75 or $150 depending upon whether they are part- or full-time, while the male employee benefit has remained the same. Do the pre- and post-October 2014 fringe benefit policies violate Title VII, warranting summary judgment in favor of the Commission? The Commission answers “Yes.”
v

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 9 of 50 Pg ID 599
Table of Authorities Page(s)
Constitution U.S. Const. amend. I ................................................................... 12, 23, 34 Cases Celotex Corp. v. Catrett,
477 U.S. 317 (1986)............................................................................. 12 EEOC v. Preferred Mgmt. Corp.,
216 F. Supp. 2d 763 (S.D. Ind. 2002)................................ 16, 22, 23, 25 EEOC v. Townley Engineering & Mfg. Co.,
859 F.2d 610 (9th Cir. 1988)............................................................... 16 Employment Division v. Smith,
494 U.S. 872 (1990)....................................................................... 28, 29 Fabian v. Hospital of Central Connecticut,
No. 3:12-cv-1154, __F. Supp. 3d __, 2016 WL 1089178 (D. Conn. March 18, 2016)........................................................................ 28 General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980)............................................................................. 16 Hansen v. Ann Arbor Pub. Schools, 293 F. Supp. 2d 780 (E.D. Mich. 2003)............................................... 13 Henderson v. Kennedy, 253 F.3d 12 (D.C.Cir.2001) ................................................................. 19 Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), aff’d sub nom Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) ........................ 17, 24
vi

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 10 of 50 Pg ID 600
Holt v. Hobbs, 135 S. Ct. 853 (2015)........................................................................... 19
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ............................................................. 15
Laffey v. Northwest Airlines, Inc., 567 F.2d 429 (D.C. Cir. 1976) ............................................................. 32
Long v. Ringling Brothers-Barnum & Bailey Combined Shows, 9 F.3d 340 (4th Cir. 1993) ................................................. 32-33
Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988)............................................................................. 21
McKnight v. MTC, 2015 WL 7730995 (N.D. Tex. Nov. 9, 2015) ................................. 19, 20
Michigan Cath. Conf. v. Burwell, 807 F.3d 738 (6th Cir. 2015) (Burwell II)..................................... 14, 21
Michigan Catholic Conf. v. Burwell, 755 F.3d 372 (6th Cir. 2014), vacated and remanded, 135 S. Ct. 1914 ......................................................................... 14, 15, 21, 24
Mt. Elliott Cemetery Ass’n. v City of Troy, 171 F.3d 398 (6th Cir. 1999)............................................................... 13
Myers v. Cuyahoga Cty., 182 Fed. Appx. 510 (6th Cir. 2006)..................................................... 27
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)............................................................................... 27
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)................................................................. 27, 28, 29
Sims v. Memphis Processors, Inc., 926 F.2d 524 (6th Cir. 1991)............................................................... 12
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Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)................................................... 27, 28, 29
Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) ........................ 19
Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985)............................................................................. 22
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564 (6th Cir. 2003)............................................................... 26
Wilson v. James, __F. Supp. 3d__, 2015 WL 5952109 (D.D.C. 2015) ...................... 18, 19
Statutes 42 U.S.C. § 2000bb–1(a), (b).............................................................. 14, 18 42 U.S.C. § 2000e–1(a) ............................................................................ 16 42 U.S.C. § 2000e-2(a)(1)......................................................................... 32 Regulations 29 C.F.R. §1604.9(a)–(b) .......................................................................... 32 Rules Fed. R. Civ. P. 56 ..................................................................................... 12
viii

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 12 of 50 Pg ID 602
Controlling Authority Employment Division v. Smith, 494 U.S. 872 (1990). Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). Michigan Catholic Conf. v. Burwell, 755 F.3d 372 (6th Cir. 2014),
vacated and remanded, 135 S. Ct. 1914; affirmed after remand, 807 F.3d 738 (6th Cir. 2015). Mt. Elliott Cemetery Ass’n. v City of Troy, 171 F.3d 398 (6th Cir. 1999). Hansen v. Ann Arbor Pub. Schools, 293 F. Supp. 2d 780 (E.D. Mich. 2003).
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Index of Exhibits Exhibit A, Stephens Letter Exhibit B, Rost 30(b)(6) Dep. Exhibit C, Notice of 30(b)(6) Dep. Exhibit D, Daily Bread Devotional Exhibit E, Jesus card Exhibit F, Shaffer Dep. Exhibit G, RGGR Mission Statement Exhibit H, Nemeth Dep. Exhibit I, Kish Dep. Exhibit J, Cash Dep. Exhibit K, Crawford Dep. Exhibit L, Matthew Rost Dep. Exhibit M, McKie Dep. Exhibit N, Kowalewski Dep. Exhibit O, Rost Dep. Exhibit P, Clothing Allowance Benefits Checks Exhibit Q, Stephens Dep.
x

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 14 of 50 Pg ID 604
Exhibit R, Articles of Incorporation Exhibit S, Dress Code Exhibit T, Defendant’s Responses to Plaintiff’s First Set of Discovery
Requests Case 1, Fabian v. Hospital of Central Connecticut, No. 3:12-cv-1154, __ F.
Supp. 3d __, 2016 WL 1089178 (D. Conn. March 18, 2016) Case 2, McKnight v. MTC, 2015 WL 7730995 (N.D. Tex. Nov. 9, 2015) Case 3, Wilson v. James, __ F. Supp. 3d __, 2015 WL 5952109 (D.D.C.
2015)
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2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 15 of 50 Pg ID 605
I. INTRODUCTION A. Overview of the Case. The Equal Employment Opportunity Commission brought this
Title VII case alleging sex discrimination. The case stems from a Charge filed by Aimee Stephens, who is a transgender woman and served as a funeral director/embalmer for the Defendant for nearly six years under the name of Anthony Stephens. It is undisputed that Stephens was a capable, competent employee who was not fired for performance reasons.
The Commission’s Complaint alleged, inter alia, that the Defendant discharged her because she did not conform to the Defendant’s sex-based stereotypes. Despite being a good employee, she was fired after giving the Defendant’s owner, Thomas Rost, a letter describing her life struggles with gender-identity issues and stating her intention to present at work as a woman in appropriate business attire. Ex. A, Stephens Letter.
Rost responded two weeks later by handing Stephens a severance agreement. Ex. B, Rost 30(b)(6) Dep. at 126:1-8. “[T]he specific reason” Rost fired Stephens was that Stephens was going to present as a female:
1

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“he [Stephens] was no longer going to represent himself as a man. He wanted to dress as a woman.” Id. at 135:24-136:1.
Given the testimonial admissions of Rost, there is no material dispute that Stephens was terminated because she did not conform to Rost’s gender stereotypes, and summary judgment in favor of the Commission as to the termination claim is appropriate.
In addition, the Defendant has maintained a discriminatory clothing-allowance policy which until October 2014 provided suits and ties to male employees who interacted with the public and nothing to similarly situated females. Since October 2014, female employees have been given an annual stipend of either $75 or $150, but this is still inferior to that accorded to men, both in dollar value and in flexibility, as the men can replace suits as needed. Thus, summary judgment is also appropriate as to this issue.
B. The Affirmative Defenses After eight months of litigation—including a Motion to Dismiss and an initial Answer to the Complaint—Defendant injected new defenses. Only after the Commission filed an Amended Complaint, which merely
2

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corrected the spelling of the Charging Party’s first name, Defendant first asserted that its termination of Stephens was protected by the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb–1 (“RFRA”). See Dkt. 22, Answer to Amended Complaint, p. 5 (Affirmative Defenses 12-13).
Defendant admits it discharged Stephens because she did not conform to the masculine gender stereotypes that Rost expected of her. That is sex discrimination. Yet, Defendant asserts that its religious beliefs have been burdened by Aimee Stephens’s Title VII right to not be subject to gender stereotypes in the workplace.
That argument misconstrues both the Free Exercise Clause and RFRA. Controlling Supreme Court precedent makes clear that the Free Exercise Clause does not excuse compliance with a neutral and generally applicable law such as Title VII. Moreover, Defendant has identified no religious exercise that is substantially burdened, as is required to invoke RFRA. Even if Defendant had done so, courts have consistently recognized that preventing employment discrimination is a compelling government interest, which also takes this matter outside of RFRA’s
3

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scope. Because there are no material facts in dispute, summary

judgment in favor of the Commission is appropriate on Affirmative

Defenses 12 and 13.

C. Thomas Rost Limits His Religious Exercise.

Thomas Rost owns 94.5% of the shares of Defendant and was the

sole decision-maker who terminated Stephens’s employment. Ex. B, Rost

30(b)(6) Dep. at 26:20-26:24; 117:23-118:6 . Rost testified as to

Defendant’s religion-based affirmative defenses. Ex. C, Notice of 30(b)(6)

Deposition, and Ex. B at 6:14-10:3. Defendant’s religious exercises are

those of Rost. Ex. B at 29:1-7.

Rost is a Christian. Id. at 29:20-22. He attends two churches with

some regularity. Id. at 29:25-30:1-6. However, the evidence shows that

Rost’s exercise of his religious beliefs at or through RGGR is limited to

the placement of (1) “Daily Bread” devotional books and (2) cards bearing

the name of Jesus with New Testament verses on the back.

Can you think of any ways in which you

24

express your faith through Harris, R.G. G.R.

25

Harris; you exercise your faith using your

40: 1 business?

2 A The only thing in a direct way is little things

3

that we leave out, we give away Daily Breads

4

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 19 of 50 Pg ID 609

4

which is a little daily devotional; it's a pick

5

up. We have a little card that people can pick

6

up. That would be the only thing.

7 Q Okay. And this is just -- as they walk out

8

they can grab something like that?

9 A Yes. It's a pick up item if they so desire.

10 Q What about, you say a little card, what's that?

11 A We call it a Jesus card.

12 Q Okay.

13 A I forgot what it says on the front. It's kind

14

of to grab your attention and then on the back

15

it just has references, verse references.

16 Q Scriptural references about Jesus?

17 A Yes, exactly. Yes.

Id. at 39:23-40:17; Ex. D (Daily Bread Devotional); and Ex. E (Jesus

card). These publications were placed on a credenza or desk at the entry

place for each location for visitors to take or leave as they desire. Ex. B,

Ex. B at 39:14-40:17.

Rost admitted that continuing to employ Stephens would not have

interfered with these religious practices at RGGR. Id. at 57:2-19.

D. RGGR does not operate as a religious enterprise.

Defendant is not affiliated with or part of any church. Id. at

31:15-31:19. Rost employs people from different denominations and of no

religious beliefs at all. Id. at 40:18-41; Ex. F, Shaffer Dep. at 33:10-12. He

admits that employing individuals with beliefs different from his own 5

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does not constitute an endorsement of their beliefs or activities by RGGR. Ex. B at 41:20-42:18. He does not impose his own beliefs on employees, stating that he would not, for example, terminate an employee because he or she had sex outside of marriage, had an abortion, or committed adultery. Id. at 138:2-138:16.
The Defendant’s articles of incorporation do not avow any religious purpose. Ex. R, Articles of Incorporation at p. 6. There are no religious views or values that employees are expected to uphold. Ex. B at 81:18-21. RGGR’s website contains a “mission statement” which makes two references to God, the second of which is a passage in the Gospel of Matthew (Ex. G), which Rost chose because he liked it. Ex. B at 85:7-85:21. And the Defendant’s employees do not regard RGGR as a Christian business enterprise. See, e.g., Ex. H, Nesmith Dep. at 19:18-20:4; Ex. I, Kish Dep. at 55:10-55:25.
Defendant is open 24 hours per day, 365 days per year, and Easter is not a paid holiday. Ex. B at 88:20-89:21. It serves clients of every religion (various Christian denominations, Hindu, Muslim, Jewish, native Chinese religions) or those of no religious affiliation. Ex. J, Cash
6

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Dep. at 41:19-42:10; Ex. K, Crawford Dep. at 32:18-34:9; Ex. B at 33:19-36:23. Indeed, employees have been known to wear Jewish head coverings when holding a Jewish funeral service. Ex. K at 34:20-35:4; Ex. J at 42:7-12. The business keeps Catholic religious items (crucifixes, kneelers, candles) in storage until requested by Catholic (or occasionally non-Catholic) clients. Ex. L, Matthew Rost Dep. at 36:20-25; Ex. J at 42:19-25; Ex. H at 26:1-10; Ex. K at 34:20-35:11; Ex. F at 34:16-35:10; Ex. M, McKie Dep at 29:12-25; 31:11-14.
While the rooms where funerals are held on site are called “chapels,” they are decorated to look like living rooms and are not decorated with visible religious fixtures. Ex. B at 84:2-85:6. This is done deliberately to avoid offending people of different religions. Id. Although some of the chapels have statues of Jesus Christ and the Virgin Mary, these are kept hidden behind curtains unless a Catholic service is being held. Ex. J at 53:7-16; Ex. M at 29:16-25.
As far as presenting itself to the outside world, Defendant has not advertised in Christian publications or church bulletins in more than twenty years, with one exception. Ex. B at 37:25-38:9. The one exception
7

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is a small advertisement in a Catholic parish’s festival publication that Rost regards as a “gift.” Id. at 39:2-13.
RGGR does not sponsor publications which call people to join the Christian faith or celebrate Christian holidays. Id. at 31:20-32:2; 39:2-16. There are no prayer groups or Bible studies at RGGR. Ex. J at 47:8-16; Ex. N, Kowalewski Dep. at 30:11-12; Ex. H at 19:18-24; Ex. I, Kish Dep. at 55:10-20; Ex. M at 27:8-15. RGGR does not have any religion-based exclusions to employee medical coverage, such as refusing to pay for abortions. Ex. B at 92:17-93:20.
Significantly, Rost admitted that the business climate causes him to act against his religious ideals: the practice of cremation instead of holding a funeral. His Christian beliefs align him toward performing funerals. Id. at 51:22. However, the industry has changed, with a growing preference for cremations, and he needs to do them to stay in business. Id. at 52:14-53:10.
E. Rost’s religious beliefs about men and women motivated him to fire Stephens.
Rost’s religious beliefs—not a religious exercise—led him to terminate Stephens’s employment after she presented her transition
8

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 23 of 50 Pg ID 613

letter. When asked what was objectionable to him about continuing to

employ Aimee Stephens, Rost stated that transgender expression

violated his beliefs regarding proper behavior by men and women:

Q So, your personal faith as a follower of Jesus

22

Christ tells you that it would be improper

23

or -- to employ someone like the person you

24

knew as Anthony Stephens?

25 A Absolutely.

55: 1 Q Okay. You indicated as part of the healing

2

process, but what about your religious beliefs

3

specifically are violated by continuing to

4

employ Stephens?

5 A I believe it would violate my faith, yes,

6

absolutely.

7 Q Okay. What aspects of it?

8 A Well, I believe that God created a man as a man

9

and God created a woman as a woman. And to --

10

to not honor that, I would feel it's a

11

violation of my faith, absolutely.

12 Q So Stephens would be presenting in a way that

13

offended your religious beliefs, essentially?

14 A Yes. Yes.

Ex. B at 54:21-55:19. Later, under questioning by his own attorney, Rost

re-affirmed that Stephens’s non-conformance with his beliefs regarding

the behavior of men and women prompted the firing decision. Compare

the above with Id. at 135:24-136:3 (“[the specific reason Stephens was

fired] was [that Stephens was] no longer going to represent himself as a

9

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 24 of 50 Pg ID 614
man. He wanted to dress as a woman”). Rost also testified that he objected to Stephens’s use of “Aimee” in
the charge of discrimination, saying that this made him “uncomfortable….because he’s [Stephens] a man.” Ex. O, Rost Dep. at 23:4-8.
F. Defendant’s Clothing-Allowance Policy Defendant provides a different clothing allowance to its male and female employees. Id. at 24:8-25; Ex. I, Kish Dep. at 16:13–19:5. This dress code requires female employees to wear a suit jacket, skirt, and blouse. Ex. O at 24:8-25; Ex. I at 16:15-17:7. Male employees, including funeral directors, must wear a suit jacket, suit pants, white dress shirt, and tie. Ex. O at 13:4-21; Ex. I at 17:8-24. For male employees who have contact with customers, Defendant provides nearly all work attire free of charge. Approximately 10 years ago, Defendant made an arrangement with a local clothier—Sam Michael’s—to pay for suit jackets, suit pants, and ties for the male employees. Immediately upon hire of a full-time male, Defendant pays for two suit jackets, two suit pants, and two ties from Sam Michael’s. Ex.
10

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 25 of 50 Pg ID 615
O at 14:9-19. For part-time males, Defendant pays for one suit jacket, one suit pant, and one tie. Id. These clothing benefits also include tailoring of the suit jackets and pants (Ex. I at 19:20-24) and repairs to the suit as needed (Ex. O at 19:2-24). Moreover, replacement suit jackets, suit pants, and ties are provided on an as-needed basis, which, on average, is every year or sometimes more often. Ex. K at 19:1-3; Ex. J at 21:4-8; Ex. F at 44:3-15; Ex. N at 22:21-23:1.
No work-clothing benefits were provided to any female employees until late 2014. Ex. O at 15:16-16:12; Ex. I at 20:16–21:3; Ex. P, Clothing Allowance Checks; Ex. M at 42:1-4; Ex. H at 13:5–14:4. Beginning in October 2014, Defendant began to provide female employees who have customer contact an annual clothing stipend. Ex. I at 20:16–21:23; Ex. P. The amount depends on the employee’s status: full-time females are given $150 per year and part-time women receive $75 per year. Ex. I at 20:16-21:23. Defendant acknowledges, however, that the attire it provides to its male employees costs Defendant approximately $235 (part-time) to $470 (full-time) per employee. Ex. O at 15:3-6. Defendant also acknowledges that it based the amount of clothing allowance for its
11

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 26 of 50 Pg ID 616
female employees on what it determined was “fair,” rather than the amount it paid for its male employees’ clothes. Id. at 45:12-20. Furthermore, unlike Defendant’s male employees who receive their clothing benefits immediately upon hire, Defendant’s female employees are required to wait until the next clothing allowance checks are issued for all female employees. Ex. I at 25:11-15, 38:15-25. II. RELEVANT LAW
A. Rule 56 Standard Summary judgment is only appropriate where the record reveals there are no issues of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the burden of “clearly and convincingly” demonstrating the absence of any genuine disputes of material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524 (6th Cir. 1991) (citing Kochins v. Linden-Ailmak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986)). If Plaintiff meets this burden, the Defendant is required to present significant probative evidence showing that genuine, material disputes remain. Sims, 926 F.2d at 526.
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2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 27 of 50 Pg ID 617
B. First Amendment Free Exercise Standard
The standard for review of a free-exercise claim is well-established:
a religious objector to legislative enactments must comply with neutral
laws of general applicability. Mt. Elliott Cemetery Ass’n. v City of Troy,
171 F.3d 398, 403 (6th Cir. 1999) (quoting Employment Division v.
Smith, 494 U.S. 872, 879 (1990)).
To determine whether a law is neutral and of general applicability,
the Sixth Circuit asks if the object of the law is to target practices
because of their religious motivation:
A law is not neutral if the object of the law, whether overt or hidden, is to infringe upon or restrict practices because of their religious motivation. See [Church of the] Lukumi Babalu [, Aye, Inc. v. City of Hialeah,] 508 U.S. 520, 535 (1993).
The requirement that the law be of general applicability protects against unequal treatment which results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.
Mt. Elliott Cemetery Ass’n., 171 F.3d at 405.
Ultimately, if a religious person is being treated the same as a
non-religious person under a valid and neutral law of general
applicability, there is no free-exercise violation. See Hansen v. Ann Arbor 13

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 28 of 50 Pg ID 618
Pub. Schools, 293 F. Supp. 2d 780, 809 (E.D. Mich. 2003) (where no
students were permitted to comment at a school panel on homosexuality,
free-exercise rights of religious student were not violated).
C. RFRA Standard
The Religious Freedom Restoration Act (“RFRA”) prohibits the
government from substantially burdening the exercise of religion unless
the government demonstrates that the burden is in furtherance of a
compelling governmental interest and is the least restrictive means of
furthering that interest. 42 U.S.C. § 2000bb–1(a), (b).
The standard for analyzing a RFRA claim is a two-step process:
First, the plaintiff must make out a prima facie case by establishing Article III standing and showing that the law in question would (1) substantially burden (2) a sincere (3) religious exercise. If the plaintiff makes out a prima facie case, it falls to the government to demonstrate[ ] that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest . The government carries the burdens of both production and persuasion when it seeks to justify a substantial burden on a sincere religious practice.
Michigan Catholic Conf. v. Burwell, 755 F.3d 372, 383 (6th Cir. 2014),
vacated and remanded, 135 S. Ct. 1914; affirmed after remand, 807 F.3d
738 (6th Cir. 2015) (citations and internal quotation marks omitted). 14

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 29 of 50 Pg ID 619
Determining whether or not the government has substantially burdened an exercise of religion is a question of law. Id. at 385. Further, “[a] substantial burden exists when government action puts substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (quoting Thomas v. Review Bd., 450 U.S. 717, 718 (1981)). III. ARGUMENTS
A. The Commission Has Not Violated Defendant’s FreeExercise rights.
Defendant alleges in Affirmative Defense 12 that the EEOC’s claims violate RGGR’s free exercise rights, but that cannot be: the Defendant did not put the Commission on notice that religious exercise issues were involved until it filed its Answer to the Amended Complaint in June 2015. Rost admits that he did not raise such defenses during the EEOC’s investigation of Stephens’s charge of discrimination. Ex. B at 70:7-71:17; 141:2-142:15. Thus, the lawsuit could not have been formulated with any anti-religious motive in mind.
Even if the defense were construed to be an attack on Title VII, which it does not seem to be, Defendant’s claim would be unsuccessful
15

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under the Free Exercise Clause. Title VII is a neutral law of general applicability.1 See General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 326 (1980) (there is a public interest in preventing employment discrimination ). Title VII applies equally to all employers with 15 or more employees regardless of religious status—including Defendant. See Dkt. 22 at paragraphs 5-6 (admitting that Defendant is an employer for the purposes of Title VII).
A free-exercise claim cannot insulate an employer from liability under Title VII, and no court has so held. See EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610, 620-21 (9th Cir. 1988) (elimination of mandatory attendance requirement for corporate prayer meetings to accommodate the Title VII rights of a non-religious employee did not violate Defendant’s free exercise rights). In another religious claim involving Title VII enforcement, the court held that an investigation and subsequent lawsuit did not infringe upon a business owner’s religious practices. See EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763, 810 (S.D. Ind. 2002) (even assuming the effect of EEOC’s 1 Far from being intended to infringe upon religion, Title VII protects the convictions of religious institutions by allowing them to restrict employment to those of their own faith. 42 U.S.C. § 2000e–1(a).
16

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 31 of 50 Pg ID 621
investigation and litigation were to force conformance to Title VII’s strictures against using religious criteria to make employment decisions, such would not “substantially burden” owner’s religious beliefs or practices).
Consequently, summary judgment in favor of the Commission is proper as to Defendant’s free-exercise defense set forth in Affirmative Defense 12.
B. Defendant’s RFRA defense should be rejected. 1. The Commission does not contest Defendant’s religious sincerity.
Defendant’s religious exercise is limited—much more than the religious practices of other plaintiffs in RFRA disputes. See, e.g., Hobby Lobby v. Sebelius, 723 F.3d 1114, 1122 (10th Cir. 2013), aff’d sub nom Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (describing the evangelical activity, religious principles and actions demonstrated by the two plaintiff corporations). And the Defendant here gave no indication that its religious beliefs were being violated until litigation had been underway for nearly eight and a half months. Nevertheless, for the purposes of this motion, the Commission will not contest the
17

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 32 of 50 Pg ID 622
sincerity of Defendant’s religious views. 2. Defendant’s Religious Exercise at RGGR is Not Affected by Title VII Enforcement.
There is nothing about enforcement of Title VII that will interfere with Rost’s religious exercises at Defendant. RFRA protects religious exercise, not simply beliefs. 42 U.S.C. § 2000bb(1)(a)) In particular, RFRA does not protect Mr. Rost from having his religious beliefs offended. The Commission is not requesting that Defendant endorse Stephens’s transition or otherwise affirm something to which Rost objects.
In Wilson v. James, __ F. Supp .3d __, 2015 WL 5952109 (D.D.C. 2015), the plaintiff, a member of the Utah National Guard, was reprimanded after he sent an email using a military account objecting to a same-sex marriage ceremony held in the Cadet Chapel at West Point. The plaintiff sued under RFRA, claiming that he was being punished for his beliefs. However, the district court rejected the RFRA claim, noting that a burden on beliefs was different from a burden on the exercise of those beliefs:
A substantial burden on one’s religious beliefs—as distinct from 18

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 33 of 50 Pg ID 623
such a burden on one’s exercise of religious beliefs—does not violate RFRA. [H]ere, Plaintiff has not identified any burdened action or practice of the LDS faith. The discipline imposed did not “force[ him] to engage in conduct that [his] religion forbids” or “prevent[ him] from engaging in conduct [his] religion requires,” Henderson v. Kennedy, 253 F.3d 12, 16 (D.C.Cir.2001). Nor did it “condition[ ] receipt of an important benefit upon conduct proscribed by [his] religious faith, or ... den[y] such a benefit because of conduct mandated by [his] belief,” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717–18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). Nothing prevented Plaintiff from continuing to maintain his beliefs about same-sex marriage and homosexuality, just as he had before the [reprimand], without repercussion.
Wilson, 2015 WL 5952109 at *8.
Similarly, in McKnight v. MTC, 2015 WL 7730995 (N.D. Tex. Nov.
9, 2015), a prisoner filed a claim under the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc–1, et seq.,2 alleging
that his religious freedom rights had been violated by the placement of a
homosexual cellmate in his cell. In the absence of any claim that the
plaintiff’s religious exercise had been changed, the court held that the
claim was without merit:
Here, Plaintiff has pled no facts tending to show that Defendants' refusal to accommodate his housing request “put a substantial pressure on him to modify his behavior and to violate his beliefs.”
2 RLUIPA claims are evaluated under the same standard as RFRA claims. See Holt v. Hobbs, 135 S. Ct. 853, 860 (2015).
19

2:14-cv-13710-SFC-DRG Doc # 51 Filed 04/07/16 Pg 34 of 50 Pg ID 624
Jehovah [v. Clarke], 798 F.3d [169 (4th Cir. 2015)] at 180–181 (quotations and quoted case omitted). Plaintiff relies instead on conclusory statements that sharing a cell with a homosexual inmate is against his conscience and “religious obligation to honor God.” … Thus, Plaintiff's allegations suggest that he takes issue only with the exposure to a homosexual cellmate, and not with any effect it has on his religious activities. Indeed, his filings do not identify any religious exercise apart from mentioning very general tenets of his religion to “honor God” and maintain his “human dignity.”
McKnight, 2015 WL 7730995 at *4.
The facts are similar here: Rost avers that his obligation to honor
God obliges him to fire Stephens, who does not act as Rost’s beliefs
dictate she should. In other words, the mere presence of and exposure to
Stephens offends his beliefs. See Ex. T, Def’s Answers to Plaintiff’s First
Set of Discovery Requests at p. 4 (“Stephens[‘s] intentions also violated
Mr. Ros[t]’s sincerely held religious beliefs”). However, this is not
sufficient to sustain a RFRA claim.
Significantly, Defendant is still able to engage in the religious
activities identified by Rost—the placement of devotionals and cards for
the public—regardless of whether or not one of its employees happens to
violate Rost’s religion-based gender stereotypes. Thus, Rost’s religious
exercises are not affected by the presence or employment of Stephens. 20

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The mere fact that Rost thinks Stephens’s continued employment
violates his religious beliefs is legally insufficient under RFRA.
3. Enforcement of Title VII does not substantially burden Defendant.
Even if Defendant identifies a religious exercise that has been
burdened, RFRA requires a “substantial burden” and such is a question
of law for the Court. “RFRA is not a mechanism to advance a generalized
objection to a governmental policy choice, even if it is one sincerely based
upon religion.” Michigan Cath. Conf. v. Burwell, 807 F.3d 738 (6th Cir.
2015) (Burwell II) (affirming Burwell I):
But a government action does not constitute a substantial burden on the exercise of religion even if “the challenged Government action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs” if the governmental action does not coerce the individuals to violate their religious beliefs or deny them the “rights, benefits, and privileges enjoyed by other citizens.” Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 449, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988).
Id., 755 F.3d at 384 (6th Cir. 2014).
Here, RGGR cannot establish a substantial burden. As stated
before, there is no burdened exercise. Further, the Commission is not
asking Rost to adopt a different belief about transgender people, and 21

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Rost has already admitted that employing people with religious beliefs
different from his own does not constitute an endorsement of the
employee’s religious views.
Likewise, continued employment of Aimee Stephens does not
constitute an endorsement of any religious view. As Justice O’Connor
stated in a concurring opinion:
A statute outlawing employment discrimination based on race, color, religion, sex, or national origin has the valid secular purpose of assuring employment opportunity to all groups in our pluralistic society. Since Title VII calls for reasonable rather than absolute accommodation and extends that requirement to all religious beliefs and practices rather than protecting only the Sabbath observance, I believe an objective observer would perceive it as an anti-discrimination law rather than an endorsement of religion or a particular religious practice.”
Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 711-712 (1985).
Instead, in this case, the EEOC has filed suit in an effort to create a
workplace free of gender discrimination for a qualified funeral director
and embalmer. Since no employer can discharge people for reasons
grounded in sexual stereotypes, the Defendant is not being denied any
right, benefit or privilege granted to an employer who does not share its
views. Further, Commission investigations and lawsuits under Title VII
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are not a substantial burden under RFRA. In EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763 (S.D. Ind. 2002), the Commission investigated and sued an employer under Title VII for alleged religious discrimination against employees and applicants who did not share the fundamentalist Christian views of the Defendant’s management. Both the investigation and lawsuit involved extensive and searching examination of the religious viewpoints of the Defendant’s decision-makers and employees. See Preferred, 216 F. Supp. 2d at 772-803. The defendant in Preferred objected to this process, claiming that it violated its rights under RFRA and the First Amendment. Id. at 804-805. The court held that neither the 2½-year investigation (which included 24 depositions) nor the litigation itself constituted a substantial burden on the religious rights of the employer. Id. at 807-809, 810.
Here, because the Defendant chose not to assert them, the Commission was entirely unaware of any potential religious issues during the investigation. Thus, there can be no claim of a substantial burden from the investigation. As to the litigation itself, Defendant injected religion into the matter, so the Commission properly probed the
23

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religious claims at stake. Therefore, as a matter of law, it should be held that Defendant’s
rights have not been substantially burdened by this action. 4. Enforcement of Title VII here furthers a compelling governmental interest in eradicating sex discrimination and is precisely tailored to further that interest.
To the Commission’s knowledge, there is no case law holding that RFRA trumps Title VII. To the contrary, the Supreme Court suggested in a colloquy between the principal dissent and the majority opinion in Hobby Lobby, 134 S. Ct. 2751, that Title VII serves a compelling governmental interest which cannot be overridden by RFRA. While dealing with a matter far removed from the dispute here, the discussion is worth quoting in full.
In Burwell, the principal dissent expressed concerns about RFRA being used to trump laws regarding accommodation and hiring, especially in the context of sex-based hiring decisions informed by religion. See Burwell at 2804-2805 (Ginsberg, J., dissenting).
In response, the majority opinion emphasized that anti-discrimination laws with respect to hiring would not be trumped by
24

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RFRA:
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 2804 – 2805. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
Id. at 2783. Title VII’s prohibitions against sex discrimination in the
workplace demonstrate that the government has a compelling interest in
protecting employees from losing their jobs on the basis of an employer’s
gender stereotyping, and they are precisely tailored to ensure this.
Ultimately, the concurring opinion stated the balance most clearly
in the employment context:
Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.
Id. at 2786-87 (Kennedy, J., concurring).
Even if Title VII burdens a religious practice, there “is a
‘compelling government interest’ in creating such a burden: the
eradication of employment discrimination based on the criteria 25

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identified in Title VII[.]” Preferred Mgmt., 216 F. Supp. 2d at 810. In the final analysis, Thomas Rost is free to exercise his Christian
religious beliefs, but he is not free to take away Aimee Stephens’s livelihood in the process. Nor is he able to excuse his actions under the cloak of religious freedom. Neither the Constitution nor RFRA authorize the firing of Stephens. To the contrary, Rost’s admissions warrant entry of judgment in favor of the Commission.
C. Summary Judgment as to liability for Stephens’s gender-motivated termination is warranted.
Title VII violations can be established through either circumstantial or direct evidence. “Direct evidence of discrimination is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003). Rost admits that his sex-based stereotypes motivated Stephens’s termination. Ex. B at 135:24-136:3. And this constitutes an admission of discrimination. Thus, the Commission respectfully requests that summary judgment as to liability for Stephens’s termination be entered in favor of the Plaintiff.
26

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As this Court discussed in its Amended Opinion & Order Denying Defendant’s Motion to Dismiss (Dkt. 13), an employer discriminates on the basis of sex when it fires an employee for failing to conform to the employer’s notions of the employee’s sex. See Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (sexual stereotyping claim based on, among other things, instruction to plaintiff to wear jewelry and dress more femininely); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998) (“statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils”). Here, there is no material dispute of fact regarding motivation. Rost has frankly and forthrightly stated his motivation for firing Stephens in no uncertain terms—that Stephens was a man and had to present as one. Ex. B at 135:24-136:3.
In Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004), the Sixth Circuit explained that an employer violates Title VII when it takes action against an employee based on “[s]ex stereotyping,” that is, “based on a person’s gender non-conforming behavior.” This includes penalizing an employee for dress or mannerisms that, in the employer’s mind, conform to the wrong sex stereotypes. See also Myers v. Cuyahoga Cty.,
27

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182 Fed. Appx. 510, 519 (6th Cir. 2006) (“Title VII protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender”) (citing Smith and Barnes); Fabian v. Hospital of Central Connecticut, No. 3:12-cv-1154, __F. Supp. 3d __, 2016 WL 1089178 at *10-13 (D. Conn. March 18, 2016) (following inter alia, Title VII’s plain language, Price Waterhouse and Smith and discussing the development of the case law).
Thus, an employee who alleges that failure to conform to sex stereotypes concerning how a man or woman should look and behave was the “driving force” behind the employer’s adverse employment actions “state[s] a claim for relief pursuant to Title VII’s prohibition of sex discrimination.” Smith, 378 F.3d at 575. In particular, an employer may not fire a transgender woman for failing to comport with the employer’s gender expectations. Such an act is discrimination “because of … sex,” which Title VII prohibits.
RGGR fired Stephens because she did not conform to its expectations of how someone assigned the male sex at birth should look and act:
28

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Q [Defense Counsel] Okay. Why did you -- what was the specific reason that you terminated Stephens?
A Well, because he -- he was no longer going to represent himself as a man. He wanted to dress as a woman.
Ex. B at 135:24-136:1. Rost also admits that Stephens’s termination was not motivated by any performance reasons. Id. at 108:25-109:9.
Stephens intended to provide the same level of services to the Respondent as she had always provided. And she still intended to dress professionally, in a manner consistent with the Respondent’s dress requirements for women. Ex. Q, Stephens Dep. at 133:6-133:9. In other words, she still intended to meet all of the Respondent’s legitimate business expectations. Therefore, RGGR discriminated against Stephens based on its gender stereotypes, in contravention of Smith. Ex. B at 55:8-55:9 (“Well, I believe that God created a man as a man and God created a woman as a woman.”). As the Sixth Circuit noted in Smith, Price Waterhouse states that Title VII forbids discrimination based on the employer’s notions of how a male or female should look or act. See 378 F.3d at 572-73.
Because the Commission can establish direct evidence of
29

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discrimination, the Court need not proceed to the second step of the traditional McDonnell Douglas burden-shifting analysis for cases proceeding under a circumstantial evidence theory. Even if the Court considers RGGR’s dress code a possible defense, RGGR’s argument fails for two reasons: RGGR’s dress code is not a legitimate, non-discriminatory reason for terminating Stephens, and even if it were non-discriminatory, the dress code is a pretext, not the real reason RGGR fired Stephens.
RGGR is likely to cite a string of cases allegedly standing for the proposition that sex-specific dress codes do not violate Title VII. See Dkt. 7 at Pg ID 38-40. However, as this Court already recognized, this is not the Commission’s allegation in the lawsuit. See Dkt. 13 at Pg ID 197 (“Here, however, the EEOC’s complaint does not assert any claims based upon a dress code and it does not contain any allegations as to a dress code at the Funeral Home”). The Commission is not asserting that RGGR’s dress code violates Title VII—rather the violation is RGGR’s insistence that Stephens dress in accord with Rost’s gender stereotypes. Stephens’s gender identity is female, and she was prepared to abide by
30

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RGGR’s female dress code. Ex. Q, Stephens Dep. at 133:6-9. RGGR’s desire to force her to present as a male at work evidences the exact sex-based consideration that establishes RGGR terminated Stephens because of her sex.
RGGR claims that if it cannot force Stephens to dress inconsistent with her gender identity, sex specific dress codes would be “effectively invalidate[d].” Dkt. 7 at Pg ID 40-42. RGGR’s argument misses the mark because Stephens fully intended to abide by the female dress code—and to continue to dress in a professional manner at work.
RGGR claims that employers will not be “able to any longer control how its employees and agents appear to the public.” Dkt. 7 at Pg ID 41. This is unworthy of credence. RGGR can require its employees to dress professionally and appropriately. What RGGR cannot require is that an employee dress inconsistently with his or her gender identity. It is RGGR’s insistence that it could require Stephens to present inconsistently with her gender identity—but consistently with RGGR’s stereotypes for how she should dress—that establishes that RGGR terminated Stephens for violating its gender-based expectations. Such
31

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employer action violates Title VII. D. Defendant’s Clothing-Allowance Policy Constitutes Sex-Based Discrimination. Title VII makes it unlawful for an employer to “to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). Defendant’s policy of paying for the work clothing of male employees, while failing to provide a comparable benefit to female employees violates Title VII.
As clarified by the EEOC Guidelines on Discrimination Because of Sex, “fringe benefits” are encompassed by the language in § 2000e-2(a)(1). 29 C.F.R. §1604.9(a)–(b). Federal courts have also recognized various allowances, including work-clothing-related allowances, as being fringe benefits under Title VII. See Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 443, 453–56 (D.C. Cir. 1976) (upholding lower court’s finding that providing a uniform-cleaning allowance to only the male employees, but not female employees, constituted a violation under Title VII); Long v. Ringling Brothers-Barnum & Bailey Combined Shows, 9 F.3d 340, 343–44 (4th
32

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Cir. 1993) (finding genuine issues of material fact in a Title VII case involving a claim of fringe benefits, which included allowances for meals, laundry and valet services, and life and health insurances).
Thus, Defendant’s practice of providing fringe benefits only to men in the form of free work clothing violated Title VII.
Even now, although Defendant provides female employees with a yearly clothing allowance of $75 to $150, this is significantly less than the clothing benefits in excess of $200 provided to male employees, and is less flexible, since women can only obtain it on a pre-determined schedule and even part-time male employees can replace clothing at need as it wears out or is damaged.
Specifically, RGGR permits its male employees to receive their clothing benefits immediately upon hire and they can replace soiled or damaged clothes as needed, also at no cost. In contrast, Defendant’s female employees are required to wait until the next clothing allowance checks are issued for all female employees before they receive their clothing allowance. As a consequence, Defendant has only lessened, but not eliminated, its discrimination against female employees. Hence, it
33

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continues to violate Title VII and is liable for damages for discrimination on the basis of sex. Thus, summary judgment is appropriate as to the clothing-allowance claim as well. IV. CONCLUSION
There is no factual dispute that Thomas Rost discharged Aimee Stephens because she refused to conform to his sex-based stereotypes and present as a man. Rost has forthrightly admitted this, and more than once. Moreover, his religious beliefs regarding transgender persons do not excuse him from his duty as an employer to respect Aimee Stephens’s Title VII rights. No case has held that either the First Amendment or RFRA trumps or voids employee discrimination claims.
Further, Defendant has and continues to provide inferior clothing allowance benefits to female employees. This, too, is not a matter of dispute. Consequently, summary judgment in favor of the Commission is appropriate as to both of the claims at issue in this lawsuit, and the Commission respectfully requests that the Court grant its motion as to liability and the matter proceed as to the calculation of damages
Respectfully submitted,
34

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

s/ Miles Shultz MILES SHULTZ (P73555) Trial Attorney

s/ Katie Linehan KATIE LINHAN (P77974) Trial Attorney

Dated: April 7, 2016

s/ Dale Price DALE PRICE (P55578) Trial Attorney

DETROIT FIELD OFFICE Patrick V. McNamara 477 Michigan Avenue, Room 865 Detroit, Michigan 48226 Dale.Price@EEOC.GOV Tel. No. (313) 226-7808 Fax No. (313) 226-6584

Certificate of Service

I hereby certify that on April 7, 2016, I electronically filed the forgoing with the clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all record attorneys.

dated: April 7, 2016

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
s/ Dale Price DALE PRICE (P55578) Trial Attorney
35

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36

 
 2:14-cv-13710-SFC-DRG Doc # 53 Filed 04/07/16 Pg 1 of 4 Pg ID 887

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Equal Employment Opportunity Commission,

Plaintiff,
v.
R.G. & G.R. Harris Funeral Homes, Inc.,

Civil Action No. 2:14-cv-13710 Hon. Sean F. Cox

Defendant.

DEFENDANT R.G. & G.R. HARRIS FUNERAL HOMES, INC.’S MOTION FOR SUMMARY JUDGMENT
Pursuant to Fed. R. Civ. P. 56 and Local Rule 7.1, and for the reasons set forth in the accompanying Memorandum of Law, Defendant R.G. & G.R. Harris Funeral Homes, Inc. (“R.G.”) hereby moves this Court for the entry of summary judgment in R.G.’s favor.
As set forth more fully in the accompanying Memorandum of Law, there is no genuine dispute as to any material fact. And R.G. is entitled to judgment as a matter of law for three reasons. First, the undisputed evidence demonstrates that Charging Party Stephens was not subject to unlawful discrimination based on sex. Second, the Religious Freedom Restoration Act (“RFRA”) prohibits Plaintiff Equal Opportunity Employment Commission (the “EEOC”) from punishing R.G. for its decision to
1

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dismiss Stephens under these circumstances. Third, the EEOC lacks authority to raise its claim (on behalf of a class of unidentified female employees) that work clothes or clothing allowances were provided to male employees but not to female employees, and the undisputed evidence shows that R.G.’s provision of work clothes or clothing allowances did not discriminate between comparable male and female employees. Consequently, R.G. is entitled to summary judgment on all of the EEOC’s claims.
This Motion is based on the accompanying Memorandum of Law, the exhibits filed with the Motion, R.G.’s Statement of Undisputed Material Facts, orders and documents previously filed in this case, and the oral argument of counsel.
Pursuant to Local Rule 7.1(a), R.G.’s counsel asked for the EEOC’s position on this Motion and the relief sought herein, and the EEOC’s counsel indicated that the EEOC opposes this Motion and the relief requested.
2

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Dated: April 7, 2016

Respectfully submitted,
/s/ James A. Campbell James A. Campbell (AZ Bar 026737) Douglas G. Wardlow (AZ Bar 032028) Joseph P. Infranco (NY Bar 1268739) Bradley S. Abramson (AZ Bar 029470) ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (480) 444-0028 Fax jcampbell@ADFlegal.org dwardlow@ADFlegal.org jinfranco@ADFlegal.org babramson@ADFlegal.org
Joel J. Kirkpatrick (P62851) JOEL J. KIRKPATRICK, P.C. 843 Penniman Ave., Suite 201 Plymouth, MI 48170 (734) 404-5710 (866) 241-4152 Fax joel@joelkirkpatrick.com
Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on April 7, 2016, I electronically filed the foregoing Motion for Summary Judgment and all accompanying papers (which include the Memorandum of Law and the Exhibits in Support of the Motion) with the Clerk of the Court using the ECF system, which will send notification of this filing to all parties in the case.
/s/ James A. Campbell James A. Campbell
4

2:14-cv-13710-SFC-DRG Doc # 53-1 Filed 04/07/16 Pg 1 of 33 Pg ID 891

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Equal Employment Opportunity Commission,

Plaintiff,
v.
R.G. & G.R. Harris Funeral Homes, Inc.,

Civil Action No. 2:14-cv-13710 Hon. Sean F. Cox

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT R.G. & G.R. HARRIS FUNERAL HOMES, INC.’S MOTION FOR SUMMARY JUDGMENT

James A. Campbell (AZ Bar 026737) Douglas G. Wardlow (AZ Bar 032028) Joseph P. Infranco (NY Bar 1268739) Bradley S. Abramson (AZ Bar 029470) ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (480) 444-0028 Fax jcampbell@ADFlegal.org dwardlow@ADFlegal.org jinfranco@ADFlegal.org babramson@ADFlegal.org

Joel J. Kirkpatrick (P62851) JOEL J. KIRKPATRICK, P.C. 843 Penniman Ave., Suite 201 Plymouth, MI 48170 (734) 404-5710 (866) 241-4152 Fax joel@joelkirkpatrick.com

Attorneys for Defendant

2:14-cv-13710-SFC-DRG Doc # 53-1 Filed 04/07/16 Pg 2 of 33 Pg ID 892
Statement of the Issues Presented 1. Whether the Court should grant summary judgment to Defendant R.G. & G.R. Funeral Homes, Inc. (“R.G.”) on Plaintiff Equal Opportunity Employment Commission’s (the “EEOC”) Title VII claim on behalf of Charging Party Stephens, when the undisputed evidence demonstrates that R.G. dismissed Stephens because of Stephens’s stated intent to violate a sex-specific dress code that imposes equal burdens on the sexes. 2. Whether the Religious Freedom Restoration Act (“RFRA”) requires the Court to grant summary judgment to R.G. on the EEOC’s Title VII claim on behalf of Stephens, when the undisputed evidence shows that the EEOC seeks to compel R.G. (a closely held corporation) to violate its owner’s sincerely held religious beliefs. 3. Whether the Court should grant summary judgment to R.G. on the EEOC’s Title VII claim (on behalf of an unidentified group of women) that challenges R.G.’s manner of providing work clothes and clothing allowances to its employees, when the EEOC lacks authority to bring a claim of discrimination that is unrelated to Stephens (a biological male when employed by R.G.) and that involves a kind of discrimination (discrimination in the terms and conditions of employment) different than that alleged by Stephens (discriminatory discharge), and when the undisputed evidence demonstrates that R.G. provides work clothes and clothing allowances that are equivalent for comparable male and female employees.
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Authority for the Relief Sought Issue No. 1
Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977) Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc) Issue No. 2 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, et seq. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) Issue No. 3 EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977)
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Table of Contents
Introduction ............................................................................................................................ 1
Standard of Review ................................................................................................................ 2
Argument................................................................................................................................. 3
I. Stephens Was Not Unlawfully Dismissed Because of Sex in Violation of Title VII. ..................................................................................... 3
A. Stephens Must Be Considered a Male for Purposes of Title VII.......................................................................................................... 4
B. R.G.’s Enforcement of its Sex-Specific Dress Code Does Not Violate Title VII........................................................................... 5
1. Sex-Specific Dress Codes That Impose Equal Burdens on Men and Women Do Not Violate Title VII. ............................................................................................. 5
2. R.G.’s Sex-Specific Dress Code Does Not Impose Unequal Burdens on Males and Females. ............................. 7
3. Neither Price Waterhouse nor Smith Invalidate R.G.’s Sex-Specific Dress Code.......................................................... 9
4. R.G.’s Dress Code Furthers Particular Business Needs in the Funeral Industry. ............................................. 12
II. RFRA Prohibits the EEOC from Compelling R.G. to Violate its Sincerely Held Religious Beliefs. ................................................................. 15
A. RFRA Protects R.G.’s Exercise of Religion. .................................. 15
B. Applying Title VII in this Case Would Substantially Burden R.G.’s Exercise of Religion............................................................... 18
C. The EEOC Cannot Demonstrate That Applying Title VII in this Case Would Satisfy Strict Scrutiny. ...................................... 19
III. The EEOC Cannot Prevail on its Clothing Allowance Claim on Behalf of a Class of Female Employees. .................................................... 21
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A. The EEOC Lacks Authority to Raise its Clothing Allowance Claim. ............................................................................... 21
B. The EEOC’s Clothing Allowance Claim Lacks Merit Because R.G. Does Not Discriminate Between Comparable Male and Female Employees. ........................................................... 24
Conclusion............................................................................................................................. 25
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Index of Authorities
Cases:
Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977).................................................................................. 6, 9
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) ........................................................................... 16, 17, 19, 20
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)................................................................................................... 21
EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977)........................................................................21, 22, 23
EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594 (E.D. Mich. 2015) ................................................................... 4
Fagan v. National Cash Register Co., 481 F.2d 1115 (D.C. Cir. 1973) ................................................................................. 5
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)............................................................................................. 19, 20
Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058 (7th Cir. 2003).................................................................................. 14
Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998).................................................................................. 7
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .............................................................................................. 23
Holt v. Hobbs, 135 S. Ct. 853 (2015) ................................................................................................ 18
Humenny v. Genex Corp., 390 F.3d 901 (6th Cir. 2004)...................................................................................... 3
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Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006)............................................................. 5, 6, 7, 8, 9, 11
Martin v. Ohio Turnpike Commission, 968 F.2d 606 (6th Cir. 1992)...................................................................................... 2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)..................................................................................................... 3
Nelson v. General Electric Co., 2 F. App’x 425 (6th Cir. 2001)................................................................................. 23
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)................................................................................................... 3, 4
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).............................................................................. 4, 9, 10, 11, 12
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)..........................................................................9, 10, 11
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)................................................................................................... 10
Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981)................................................................................................... 18
Thompson v. North American Stainless, LP, 562 U.S. 170 (2011)................................................................................................... 23
Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972)................................................................................................... 23
Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006)...................................................................................... 3
White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008)................................................................................ 3, 10
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Constitutional Provisions, Statutes, and Rules: Federal Rules of Civil Procedure, Rule 56........................................................................... 2 42 U.S.C. § 2000e-2 .......................................................................................................... 3, 22 42 U.S.C. § 2000e-5 .............................................................................................................. 23 42 U.S.C. § 2000bb-1 ..................................................................................................... 15, 19 Other Authorities: EEOC Compliance Manual (June 2006) ............................................................................. 7
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Introduction Defendant R.G. & G.R. Harris Funeral Homes, Inc. (“R.G.”) and its owner Thomas Rost (“Rost”) walk alongside grieving family members and friends when their loved ones pass away. Rost is a devout Christian who believes that God has called him to minister to these grieving families, and his faith informs the way he operates his business and how he presents his business to the public. Charging Party Stephens was employed by R.G. as a funeral director embalmer. In Stephens’s work as a funeral director, Stephens regularly interacted with the public, including grieving family members and friends. When Stephens, a biological male, informed Rost of an intention to begin wearing the female uniform for funeral directors, R.G. dismissed Stephens for refusing to comply with R.G.’s dress code. Plaintiff Equal Employment Opportunity Commission (the “EEOC”) claims that R.G. violated Title VII’s prohibition on sex discrimination when R.G. dismissed Stephens. This Court’s previous rulings have established that the EEOC is confined to arguing that R.G. engaged in unlawful sex stereotyping when it dismissed Stephens. Yet the undisputed evidence demonstrates that R.G. dismissed Stephens because Stephens stated an intent to violate a sex-specific dress code that imposes equal burdens on men and women. That decision had nothing to do with pernicious or illegitimate sex-based stereotypes. Consequently, as a matter of law, Stephens’s termination does not violate Title VII. In addition, R.G. is entitled to summary judgment because the Religious
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Freedom Restoration Act (“RFRA”) forbids the EEOC from applying Title VII to punish R.G. under the facts of this case. RFRA applies here because R.G. is a closely held corporation entirely controlled and majority-owned by Rost and because Rost operates R.G. consistent with his Christian faith. Rost sincerely believes that a person’s sex (whether male or female) is an immutable God-given gift, and that he would be violating his faith if he were to pay for and otherwise permit his funeral directors to dress as members of the opposite sex while at work. Compelling R.G. to allow its male funeral directors to wear the uniform prescribed for females would thus substantially burden R.G.’s exercise of religion. Because the government cannot satisfy strict scrutiny here, RFRA bars Title VII’s application in this case.
Finally, the Court should reject the EEOC’s claim that R.G. violates Title VII by allegedly failing to provide female employees work clothes or clothing allowances equivalent to those given to males. This is because the EEOC lacks authority to raise that claim and because the work clothes and clothing allowances that R.G. provides to its employees do not discriminate between comparable male and female employees.
Standard of Review Summary judgment must be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Once the moving party carries its initial burden, the non-moving party may avoid summary judgment by “point[ing] to evidence in the record upon which a reasonable jury could find for it.” Martin v. Ohio Turnpike Comm’n,
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968 F.2d 606, 608-09 (6th Cir. 1992) (citations omitted). Argument
I. Stephens Was Not Unlawfully Dismissed Because of Sex in Violation of Title VII. Title VII prohibits an employer from dismissing or otherwise taking adverse
action against an employee “because of” the employee’s sex. 42 U.S.C. § 2000e-2(a)(1). Plaintiffs generally rely on the indirect method of proof for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that method, a plaintiff must establish the prima facie case by showing that “(1) he is a member of a protected class; (2) he was qualified for his job; (3) he suffered an adverse employment decision; and (4) he was replaced by a person outside the protected class or treated differently than similarly situated non-protected employees.” White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008); accord Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006). If the plaintiff establishes these elements, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004). If the employer provides such a reason, the plaintiff’s claim fails unless the plaintiff produces evidence that the proffered reason is a pretext for discrimination. Id.
In Title VII sex-discrimination litigation, “[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale v. Sundowner
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Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Even though Stephens stated an intent to begin wearing the female uniform for funeral directors, Stephens was at all relevant times—from the time of Stephens’s hiring through discharge—a biological male. Consequently, to establish a prima facie case for sex discrimination, Stephens must show that R.G. treated Stephens less favorably than a similarly situated female employee or that Stephens was replaced with a female employee. The EEOC cannot make this showing because R.G. was simply enforcing its legitimate dress code for funeral directors when it dismissed Stephens. Accordingly, the EEOC cannot prove intent to discriminate against Stephens based on sex.
A. Stephens Must Be Considered a Male for Purposes of Title VII. Ruling on R.G.’s Motion to Dismiss, this Court held that “transgender status is not a protected class under Title VII.” EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594, 595 (E.D. Mich. 2015). This Court also “rejected the EEOC’s claim that R.G. violated Title VII by firing Stephens . . . because of Stephens’s transition from male to female.” Order Granting in Part and Denying in Part EEOC’s Motion for Protective Order at *2 (ECF No. 34). The EEOC is thus confined to arguing that R.G. discriminated against Stephens under the sexstereotyping theory set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Legal analysis under that theory must begin by identifying the plaintiff’s sex, which forms the basis of the alleged stereotyping. Because transgender status is not a protected class, the baseline for a sex-stereotyping claim must be a person’s biological sex.
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In this case, there is no dispute that during Stephens’s employment at R.G., Stephens was a biological male. Indeed, this fact is conclusively established in this proceeding. In its response to R.G.’s Requests for Admissions, the EEOC denied that Stephens is “female and not a male for purposes of determining whether discrimination on the basis of ‘sex’ has occurred under Title VII.” Pl.’s Resp. to Def.’s First Set of Discovery at Request for Admission No. 6 (Ex. 25) (emphasis added).
Thus, Stephens must be treated as a male for purposes of Stephens’s Title VII claim. This conclusion has two consequences. First, any claim that Stephens was subjected to unlawful discrimination because Stephens is female must fail. Second, Stephens was subject to R.G.’s dress code for male funeral directors.
B. R.G.’s Enforcement of its Sex-Specific Dress Code Does Not Violate Title VII. 1. Sex-Specific Dress Codes That Impose Equal Burdens on Men and Women Do Not Violate Title VII.
Courts generally uphold sex-specific dress and grooming policies against Title VII challenges. See, e.g., Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1110 (9th Cir. 2006) (en banc) (stating that the Ninth Circuit has “long recognized that companies may differentiate between men and women in appearance and grooming policies, and so have other circuits”); Fagan v. Nat’l Cash Register Co., 481 F.2d 1115, 1117 n.3 (D.C. Cir. 1973) (“[R]easonable regulations prescribing good grooming standards are not at all uncommon in the business world, indeed, taking account of basic differences in male and female physiques and common differences in customary dress of male and
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female employees, it is not usually thought that there is unlawful discrimination ‘because of sex.’”). This is particularly true when even though the challenged policy treats men and women differently, it does so without placing an unequal burden on one sex.
In Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir. 1977), for example, the Sixth Circuit held that a male employee who was discharged for failing to keep his hair short as required by his employer’s sex-specific grooming policy did not state a cause of action under Title VII for discrimination based on sex. The employer’s grooming policy “limited the manner in which the hair of the men could be cut and limited the manner in which the hair of women could be styled.” Id. In holding that the male plaintiff failed to make out a prima facie case of sex discrimination, the court observed that there was “no allegation that women employees who failed to comply with the code provisions relating to hair style were not discharged”; nor was there “any allegation that the employer refused to hire men who did not comply with the code, but did hire women who were not in compliance.” Id. In other words, the plaintiff did not state a claim for sex discrimination because he failed to allege that the employer’s grooming policy imposed an unequal burden on men.
Courts in other circuits have reached the same conclusion. In 2006, an en banc panel of the Ninth Circuit confronted a similar set of facts in Jespersen. There, the court considered whether Harrah’s Casino violated Title VII by requiring its bartenders to conform to a dress and grooming policy that required female bartenders
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to wear makeup and nail polish and to tease, curl, or style their hair, while prohibiting male bartenders from wearing makeup or nail polish and requiring them to keep their hair cut above the collar. Jespersen, 444 F.3d at 1107. The court noted that it has “long recognized that companies may differentiate between men and women in appearance and grooming policies.” Id. at 1110. “The material issue under our settled law is not whether the policies [for men and women] are different, but whether the policy imposed on the plaintiff creates an unequal burden for the plaintiff’s gender.” Id. (citation and quotation marks omitted). Because the female plaintiff failed to show that requiring women to wear makeup (and prohibiting men from doing so) imposed an unequal burden on women, the Ninth Circuit held that she could not establish her claim of sex discrimination. Id. at 1112; see also Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (upholding sex-specific grooming policy); EEOC Compliance Manual § 619.4(d) (June 2006) (stating that sex-specific dress codes that “are suitable and are equally enforced and . . . are equivalent for men and women with respect to the standard or burden that they impose” do not violate Title VII).
2. R.G.’s Sex-Specific Dress Code Does Not Impose Unequal Burdens on Males and Females.
Because R.G.’s dress code for funeral directors imposes equivalent burdens on men and women, the enforcement of the dress code against Stephens was not unlawful discrimination, and R.G. is entitled to judgment as a matter of law.
R.G.’s basic dress code is outlined in the company’s employee handbook. See
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R.G. Employee Manual, EEOC002717-19 (Ex. 19). It is a sex-specific dress code that R.G. applies based on the biological sex of its employees. T. Rost Aff. ¶ 35 (Ex. 1). The dress code requires men who interact with the public to wear dark suits with nothing in the jacket pockets, white shirts, ties, dark socks, dark polished shoes, dark gloves, and only small pins. R.G. Employee Manual, EEOC002717-19 (Ex. 19). Women who interact with the public must wear “a suit or a plain conservative dress” in muted colors. Id. The employees of R.G. understand that this requires those male employees to wear suits and ties and those female employees to wear skirts and business jackets. See Peterson Dep. 30:24-31:25, 32:3-8 (Ex. 11); Kish Dep. 17:8-16, 58:5-11 (Ex. 5); Shaffer Dep. 52:12-22 (Ex. 12); Cash Dep. 23:1-4 (Ex. 8); Kowalewski Dep. 22:10-15 (Ex. 9); McKie Dep. 22:22-25 (Ex. 13); M. Rost Dep. 14:9-19 (Ex. 10).
When analyzing the EEOC’s claim on behalf of Stephens, the relevant requirements of the dress code are those that apply to R.G.’s funeral directors because that is the position held by Stephens. See Jespersen, 444 F.3d at 1106-07 (focusing only on the dress code for the plaintiff’s position). R.G. employees understand that the dress code requires funeral directors to wear company-provided suits. See Kish Dep. 17:8-22 (Ex. 5); Crawford Dep. 18:3-11 (Ex. 6). Although R.G. has not had an opportunity to employ a female funeral director since Rost’s grandmother stopped working for R.G. around 1950, see Stephens Dep. 102:4-14 (Ex. 14); T. Rost Aff. ¶ 5253 (Ex. 1), there is no dispute that R.G. would provide female funeral directors with skirt suits in the same manner that it provides pant suits to male funeral directors, and
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that those female employees would be required to wear those suits while on the job. Id. at ¶ 54. The burden on male funeral directors that must wear a company-issued suit is identical to the burden on female funeral directors that must wear companyissued suits for women.
Moreover, R.G. does not discriminate in its enforcement of the dress code. R.G. has in fact disciplined employees for failing to comply with the dress code, see Kish Dep. 54:1-16, 68:22-69:8 (Ex. 5); M. Rost Dep. 37:22-39:6 (Ex. 10), and no evidence indicates that R.G. has enforced it unevenly. Indeed, it is undisputed that if a female funeral director were to say that she planned to wear a men’s suit at work, that employee would be discharged just like Stephens was. T. Rost Aff. ¶ 55 (Ex. 1). In addition, neither R.G.’s dress code nor any other R.G. policy requires any employee to act in a masculine or feminine manner. Nor has R.G. ever disciplined an employee for failing to act in a stereotypically masculine or feminine way.
The undisputed evidence thus demonstrates that R.G.’s dress code imposes equivalent burdens on male and female funeral directors. Consequently, the EEOC has failed to present an issue of triable fact, and R.G. is entitled to summary judgment.
3. Neither Price Waterhouse nor Smith Invalidate R.G.’s SexSpecific Dress Code.
The Supreme Court’s decision in Price Waterhouse and the Sixth Circuit’s holding in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), do not alter the widely accepted rule acknowledged in Barker and Jespersen that sex-specific dress and grooming codes
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are lawful under Title VII when they impose equivalent burdens on men and women. In Smith, the Sixth Circuit held that a male firefighter’s Title VII complaint, which alleged that his employer took an adverse action against him because he “express[ed] less masculine, and more feminine mannerisms and appearance,” stated a claim upon which relief could be granted. 378 F.3d at 572. In Price Waterhouse, the Supreme Court held that the plaintiff’s employer violated Title VII by denying her a promotion because she was too “macho” and “aggressive” for a woman. 490 U.S. at 235-237, 250-51, 256. In neither case did the plaintiffs refuse to comply with (or challenge) a sex-specific dress code or grooming policy that imposed equal burdens on the sexes.
The absence of such a policy is critical. An important question when resolving sex-discrimination claims is whether the employer treats employees of one sex better than employees of the other sex. White, 533 F.3d at 391. And “the ultimate question” is whether the employee “has proven that the defendant intentionally discriminated against him because of his [sex].” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (quotation marks and alterations omitted). An employer’s comments that a female employee is too “aggressive” or “macho” (as in Price Waterhouse, 490 U.S. at 235, 256) or that a male employee is engaging in “non-masculine behavior” (as in Smith, 378 F.3d at 570) show an intent to single out and discriminate against that employee because of his or her sex. But when an employer is simply enforcing a dress code that places equal burdens on the sexes and that applies to all employees in the same position, that does not demonstrate an intent to treat women worse than men
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(or vice versa). See Jesperson, 444 F.3d at 1111-12 (“The [sex-specific dress and grooming] policy does not single out Jespersen. It applies to all of the [employees in her position], male and female.”). Indeed, unlike the employers in Price Waterhouse or Smith, R.G. never indicated that Stephens’s behavior was too feminine or not masculine enough. R.G. simply maintained that Stephens, like all other employees, whether male or female, must comply with the dress code. Thus, the EEOC (on behalf of Stephens) cannot show what the plaintiff in Price Waterhouse could (and what the plaintiff in Smith alleged)—that R.G. treated Stephens differently from other employees because of Stephens’s sex.
As the Ninth Circuit has noted, the plaintiff in Price Waterhouse established impermissible sex-based discrimination because “the very traits that [the female plaintiff] was asked to hide”—primarily her aggressiveness—“were the same traits considered praiseworthy in men.” Jespersen, 444 F.3d at 1111 (emphasis added). Indeed, the Court in Price Waterhouse explained that “[a]n employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.” 490 U.S. at 251 In other words, by insisting that female employees conduct themselves in a stereotypically feminine fashion, Price Waterhouse impeded those employees’ ability to perform their jobs and advance their careers. That is why the sex stereotyping in Price Waterhouse established unlawful discrimination.
But this case is very different. It is instead like Jesperson, where the plaintiff tried 11

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to use Price Waterhouse to invalidate a sex-specific dress and grooming policy that imposed equal burdens on the sexes. But the Ninth Circuit rejected the plaintiff’s argument, concluding that “Jespersen’s claim . . . materially differs from [the plaintiff’s] claim in Price Waterhouse because Harrah’s grooming standards do not require Jespersen to conform to a stereotypical image that would objectively impede her ability to perform her job requirements as a bartender.” 444 F.3d at 1113.
Similarly here, “[t]he record contains nothing to suggest [that R.G.’s dress] standards would objectively inhibit” one sex’s “ability to do the job.” Id. at 1112. R.G.’s dress code does not require Stephens to conform to a sex stereotype that would impede Stephens’s ability to perform the duties of a funeral director. On the contrary, as discussed below, R.G. implemented its dress code to further its unique work as a funeral business catering to the needs of its customers. Thus, far from impeding Stephens’s ability to perform the requirements of the job, R.G.’s dress code enabled Stephens to do the job well.
4. R.G.’s Dress Code Furthers Particular Business Needs in the Funeral Industry.
R.G.’s dress code is driven by the unique nature of the funeral industry, which requires utmost sensitivity to the needs of grieving families—including the need for an environment free from distraction. See T. Rost Aff. ¶ 34 (Ex. 1) (“Maintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.”); T. Rost 30(b)(6) Dep.
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59:13-60:5 (Ex. 4) (explaining that R.G. instituted its dress code because grieving families and friends that come to R.G. deserve “an environment where they can begin the grieving process and the healing process,” and noting that clients “don’t need some type of a distraction . . . for them and their family”); Stephens Dep. 91:22-92:9 (Ex. 14) (testifying that professional attire is particularly important in the funeral industry given that “the funeral business is a somber one . . . because somebody has died, and people are . . . mourning the loss”). The dress code ensures that R.G.’s “staff is . . . dressed in a professional manner that’s acceptable to the families that [R.G.] serve[s].” T. Rost Dep. 49:22-50:15 (Ex. 3); see also T. Rost 30(b)(6) Dep. 57:2058:6 (Ex. 4) (testifying that the “dress code conforms to what is acceptable attire in a professional manner for the services that [R.G.] provide[s]”).
The sex-specific nature of the dress code is also rooted in the business need for professionalism and the absence of distraction. The dress code forbids male funeral directors from wearing the female uniform because allowing them to do that would attract undue attention to themselves and disrupt the grieving process for the clients. T. Rost Aff. ¶ 37 (Ex. 1). Indeed, Stephens himself, while owner of a funeral business, required male employees to wear a coat and tie and required the only female employee to wear a ladies’ “business-type dress,” described as “[a] ladies’ blue jacket.” Stephens Dep. 36:1-23 (Ex. 14).
Professional dress takes on heightened significance for funeral directors like Stephens because they often deal directly with grieving family members. For example,
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funeral directors regularly interact with families throughout the funeral process. Cash Dep. 27:13-28:9 (Ex. 8); Crawford Dep. 14:8-18 (Ex. 6); T. Rost Aff. ¶¶ 16-31 (Ex. 1). Funeral directors also perform sensitive duties like removing the body of the deceased from the family—a particularly distressing experience for family members. T. Rost Aff. ¶¶ 14-15 (Ex. 1). Rost believes that allowing a male funeral director to dress as a female would distract R.G.’s clients mourning the loss of their loved ones, disrupt their healing process, and harm R.G.’s clients and business. Id. at ¶¶ 36-40.
These uncontested facts demonstrate that R.G.’s dress code and its decision to dismiss Stephens were motivated by legitimate business needs and the interests of the grieving people that R.G. serves. Thus, neither R.G.’s dress code nor Stephens’s discharge violates Title VII’s prohibition on sex discrimination.
R.G. must emphasize one concluding point about the EEOC’s sex-stereotyping argument: accepting that argument would make it impossible for a company to enforce sex-specific dress or grooming requirements, even if they impose equal burdens on the sexes. Not only would this contravene the well-established Title VII case law that affirms those sorts of sex-specific policies, it would also override employers’ freedom to determine how their businesses will present themselves to the public and would jeopardize their success in the marketplace. As Judge Posner has observed, sex-stereotyping case law does not create “a federally protected right for male workers to wear nail polish and dresses . . . , or for female ditchdiggers to strip to the waist in hot weather.” Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1067
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(7th Cir. 2003) (Posner, J., concurring). If it did, Title VII would require employers with legitimate sex-specific dress and grooming policies to allow an employee to dress in a female uniform one day, switch to a male uniform the next day, and return to the female uniform whenever that employee chooses. Congress surely did not have this in mind when it added sex as a protected classification in Title VII. II. RFRA Prohibits the EEOC from Compelling R.G. to Violate its Sincerely
Held Religious Beliefs. RFRA provides that the government “shall not substantially burden a person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). The only exception to this rule is if the government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The EEOC’s attempt to apply Title VII under these circumstances would substantially burden R.G.’s exercise of religion by, among other things, forcing R.G. to violate Rost’s religious belief that a person’s sex (whether male or female) is an immutable God-given gift and that R.G. cannot pay for or otherwise permit one of its male funeral directors to wear the female uniform at work. Because the EEOC cannot demonstrate that forcing R.G. to violate its faith in this way would satisfy strict scrutiny, RFRA prohibits the EEOC’s attempt to apply Title VII here. A. RFRA Protects R.G.’s Exercise of Religion. RFRA applies to “a person’s” exercise of religion. 42 U.S.C. §§ 2000bb-1(a), (b).
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This includes closely held for-profit corporations like R.G., 94.5 percent of which is owned by Rost, its sole officer and chief executive, with the remaining 5.5 percent split between Rost’s two children. See T. Rost 30(b)(6) Dep. 26:20-28:25, 78:2-9 (Ex. 4); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768-69 (2014) (concluding that “persons” protected by RFRA include closely held for-profit corporations).
Moreover, R.G. exercises religion through the work that it performs. As the Supreme Court explained in Hobby Lobby: “[T]he exercise of religion involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition.” Id. at 2770 (quotation marks and citation omitted).
Rost has been a Christian for over sixty-five years. T. Rost 30(b)(6) Dep. 30:1322 (Ex. 4). His faith informs the way he operates his business, id. at 86:20-22, 87:3-24, which includes hosting funeral services of deep spiritual significance to many, see id. at 32:3-13; T. Rost Aff. ¶¶ 10, 20, 26, 30 (Ex. 1). R.G.’s mission statement, which is posted on its website with a Scripture verse, reflects the business’s religious purposes:
R.G. & G.R. Harris Funeral Homes recognize that its highest priority is to honor God in all that we do as a company and as individuals. With respect, dignity, and personal attention, our team of caring professionals strive to exceed expectations, offering options and assistance designed to facilitate healing and wholeness in serving the personal needs of family and friends as they experience a loss of life. R.G. Webpage (Ex. 15). Long-time employees and managers agree that R.G. is
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operated according to Rost’s religious convictions. Cash Dep. 8:25-9:25, 46:5-18 (Ex. 8) (testifying that he considers R.G. to be a Christian business); Kowalewski Dep. 29:8-10 (Ex. 9) (testifying that he considers R.G. to be a Christian business).
R.G. is a tangible expression of Rost’s deeply felt religious calling to care for and minister to the grieving. See T. Rost 30(b)(6) Dep. 86:2-19 (Ex. 4) (testifying that he considers his business to be a ministry to grieving families); T. Rost Aff. ¶ 10 (Ex. 1). Rost describes the ministry of R.G. as one of healing and giving comfort—to help families on the “worst day of their lives” and “meet their emotional, relational and spiritual needs . . . in a religious way.” T. Rost 30(b)(6) Dep. 86:2-19 (Ex. 4). In addition to the spiritual and emotional care involved in his ministry, Rost ensures that all customers have access to spiritual guidance by placing throughout his funeral homes Christian devotional booklets entitled “Our Daily Bread” and small cards with Bible verses on them called “Jesus Cards,” and by making a Bible available to visitors at all his funeral homes. Id. at 39:23-40:17; Nemeth Dep. 27:13-28:2 (Ex. 7); Cash Dep. 47:17-24 (Ex. 8); Kowalewski Dep. 31:17-32:21, 33:5-22 (Ex. 9); M. Rost Dep. 28:2029:19 (Ex. 10); Peterson Dep. 28:18-30:12 (Ex. 11).
Viewing all this evidence of R.G.’s religious exercise in the light of Hobby Lobby, this Court should conclude that RFRA’s protections apply here. Indeed, just as the businesses in Hobby Lobby exercised religion by operating “in [a] manner that reflects [their] Christian heritage,” Hobby Lobby, 134 S. Ct. at 2770 n.23, R.G. exercises religion by, as its mission statement says, upholding as “its highest priority” the need “to
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honor God in all that we do as a company.” R.G. Webpage (Ex. 15). B. Applying Title VII in this Case Would Substantially Burden R.G.’s Exercise of Religion. The EEOC’s attempt to apply Title VII here would substantially burden Rost’s
exercise of religion. A substantial burden exists where the government requires a person “to engage in conduct that seriously violates [his] religious beliefs,” Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (quotation marks omitted), or where it “put[s] substantial pressure on an adherent . . . to violate his beliefs,” Thomas v. Rev. Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). Rost sincerely believes that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex. T. Rost Aff. ¶¶ 41-42 (Ex. 1). He also sincerely believes that he would violate his faith if he were to pay for or otherwise allow one of his funeral directors to wear the uniform for members of the opposite sex while at work. T. Rost Aff. ¶¶ 43-46 (Ex. 1). Thus, compelling R.G. to allow Stephens to wear the uniform for female funeral directors at work would impose a substantial burden on R.G.’s free exercise of religion by compelling Rost to engage in conduct that “seriously violates [his] religious beliefs.” Holt, 135 S. Ct. at 862.
Moreover, requiring R.G. to permit a male funeral director to wear the uniform for female funeral directors would interfere with R.G.’s ability to carry out Rost’s religious mission to care for the grieving. See T. Rost 30(b)(6) Dep. 59:8-12, 69:25-70:6 (Ex. 4). This is because allowing a funeral director to wear the uniform for members
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of the opposite sex would often create distractions for the deceased’s loved ones and thereby hinder their healing process. Id. at 54:8-17, 59:13-60:9; T. Rost Aff. ¶¶ 36-38 (Ex. 1). And by forcing R.G. to violate Rost’s faith, this application of Title VII would significantly pressure Rost to leave the funeral industry and end his ministry. T. Rost Aff. ¶ 48 (Ex. 1). Thus, applying Title VII in this case would substantially burden R.G.’s and Rost’s religious exercise of caring for the grieving.
C. The EEOC Cannot Demonstrate That Applying Title VII in this Case Would Satisfy Strict Scrutiny.
Having established a substantial burden on religious exercise, the burden shifts to the government to satisfy strict scrutiny. 42 U.S.C. § 2000bb-1(b). RFRA requires that the EEOC “demonstrat[e] that application of [a substantial] burden to the person . . . is the least restrictive means of furthering” a compelling government interest. Id. This is an “exceptionally demanding” standard, requiring the government to “show[] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties.” Hobby Lobby, 134 S. Ct. at 2780. The EEOC cannot make the required showing.
To begin with, the EEOC cannot demonstrate a compelling interest here. RFRA’s strict-scrutiny test “look[s] beyond broadly formulated interests justifying the general applicability of government mandates,” and instead scrutinizes the specific interest in applying the law to the party before the court and “the asserted harm of granting specific exemptions to [that party].” Gonzales v. O Centro Espirita Beneficente
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Uniao do Vegetal, 546 U.S. 418, 430-31 (2006); see also Hobby Lobby, 134 S. Ct. at 2779. Thus, the relevant government interest is not a generic interest in opposing discrimination, but the specific interest in forcing R.G. to allow its male funeral directors to wear the uniform for female funeral directors while on the job. Yet the EEOC has no compelling interest in mandating that.
Notably, this case does not involve discriminatory animus against any person or class of persons. R.G. dismissed Stephens because Stephens would no longer comply with the dress code. R.G. was not motivated by animus against people who dress as members of the opposite sex. Indeed, it is undisputed that R.G. would not discharge or otherwise discipline employees who dress as members of the opposite sex on their own time but comply with the dress code while on the job. T. Rost Aff. ¶¶ 50-51 (Ex. 1); T. Rost 30(b)(6) Dep. 137:11-15 (Ex. 4). Moreover, the uncontested evidence demonstrates that R.G.’s dress code and its enforcement of the dress code against Stephens are based on R.G.’s legitimate interest in ensuring that mourners have a space free of disruptions to begin the healing process after the loss of a loved one. T. Rost 30(b)(6) Dep. 139:5-23 (Ex. 4); T. Rost Aff. ¶¶ 36-39 (Ex. 1). Consequently, applying Title VII here would not further a compelling government interest.
Nor can the EEOC satisfy RFRA’s least-restrictive-means requirement. A number of available alternatives would allow the government to achieve its goals without violating R.G.’s free-exercise rights. For example, the government could continue to enforce Title VII in most situations, but permit businesses in industries
20

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that serve distressed people in emotionally difficult situations to require that its public representatives comply with the dress code at work. Alternatively, the government could prohibit employers from discharging employees simply because they dress inconsistently with their biological sex outside of work, while allowing employers to dismiss employees who refuse to wear sex-specific uniforms on the job. Because these alternatives (and others) are available, the EEOC cannot meet RFRA’s least-restrictive means requirement and thus cannot satisfy strict scrutiny. III. The EEOC Cannot Prevail on its Clothing Allowance Claim on Behalf of
a Class of Female Employees. The EEOC’s complaint seeks relief on behalf of “a class of female employees” that were supposedly deprived of work clothes or clothing allowances that R.G. allegedly provides to male employees. Am. Compl. ¶¶ 17-18 (ECF No. 21). R.G. is also entitled to summary judgment on this “clothing allowance” claim. A. The EEOC Lacks Authority to Raise its Clothing Allowance Claim. The EEOC may include in a Title VII suit only claims that fall within an “investigation reasonably expected to grow out of the [complainant’s] charge of discrimination.” EEOC v. Bailey Co., 563 F.2d 439, 446 (6th Cir. 1977), disapproved of on other grounds by Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). The Sixth Circuit has held that a claim falls outside that scope if (1) the claim is “unrelated to [the charging] party” and (2) it involves discrimination “of a kind other than that raised by [the charging party].” Id. at 448. These two considerations show that the
21

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EEOC’s clothing allowance claim does not result from an investigation reasonably expected to grow out of Stephens’s charge of discrimination, which alleged unlawful “discharge[] due to [Stephens’s] sex and gender identity.” Charge of Discrimination, EEOC002748 (Ex. 21).
First, the EEOC’s clothing allowance claim on behalf of a class of women is unrelated to Stephens. As previously discussed, Stephens was a biological male while employed at R.G. See T. Rost Dep. 21:1-25 (Ex. 3); Def.’s Resp. to Charge at 4-5, EEOC002744-45 (Ex. 22); Kish Dep. 67:9-68:21 (Ex. 5). And there is no dispute that Stephens received, accepted, and wore the men’s clothing provided by R.G. See Stephens Dep. 59:14-60:1 (Ex. 14); Pl.’s Resp. to Def.’s First Set of Discovery at Request for Admission No. 2 (Ex. 25). Thus, an allegation concerning work clothes or an allowance not provided to a class of females is simply not related to Stephens.
Second, the clothing allowance claim alleges discrimination of a kind other than that raised by Stephens. In the EEOC charge, Stephens alleged a discriminatory “discharge[].” Charge of Discrimination, EEOC002748 (Ex. 21). Stephens did not mention anything about inequality in the clothing or clothing allowance provided by R.G. Id. A claim that asserts “discriminat[ion] . . . with respect to . . . compensation, terms, conditions, or privileges of employment” (as the clothing allowance claim does) is of a different kind than a claim that alleges discriminatory “discharge.” 42 U.S.C. § 2000e-2(a)(1); see Bailey Co., 563 F.2d at 451 (rejecting “the belief that all forms of unlawful employment discrimination . . . whether involving hiring, discharge,
22

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promotion, or compensation are like or related”); Nelson v. Gen. Elec. Co., 2 F. App’x 425, 428 (6th Cir. 2001) (unpublished) (finding that “the scope of the investigation reasonably expected to grow out of [an] EEOC charge” that alleged unlawful discharge did not include failure to promote). Moreover, a claim of discrimination against a class of women (which the clothing allowance claim is) is separate and distinct from a claim of discrimination against a biological man (which is all Stephens could validly raise in an EEOC charge).
Nor could Stephens have included the clothing allowance claim in an EEOC charge because, as a biological male, Stephens was not “aggrieved” by a clothing policy that supposedly disfavors women. See 42 U.S.C. § 2000e-5(b) (noting that EEOC charges are filed by “person[s] claiming to be aggrieved”). While older case law called for a broad reading of what it means to be an “aggrieved” person under other federal statutes, see Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972), the Supreme Court has mandated a narrower reading of that language in Title VII, see Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 176-77 (2011) (rejecting Trafficante in the Title VII context). Therefore, just as Article III standing principles generally forbid a person from raising the “rights or interests of third parties,” Hollingsworth v. Perry, 133 S. Ct. 2652, 2663 (2013), so does Title VII’s aggrieved person standard, see Thompson, 562 U.S. at 177 (concluding that “the term ‘aggrieved’ [in Title VII] must be construed more narrowly than the outer boundaries of Article III”). Consequently, a
23

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biological male could not raise the legal interests of a class of female employees at R.G.
B. The EEOC’s Clothing Allowance Claim Lacks Merit Because R.G. Does Not Discriminate Between Comparable Male and Female Employees.
The EEOC’s claim that work clothes or clothing allowances were provided to male employees but not to a class of female employees also fails on its merits. To the extent that the class of employees the EEOC references is R.G.’s funeral directors— the position that Stephens held—the EEOC has failed to show disparate treatment. Indeed, R.G. provides suits for all funeral directors. See T. Rost Dep. 13:4-14, 47:2348:11 (Ex. 3); Kish Dep. 64:12-24 (Ex. 5); McKie Dep. 38:19-23 (Ex. 13); Def.’s Resp. to Pl.’s Second Set of Discovery at Interrogatory No. 14 (Ex. 28). Although R.G. has not employed a female funeral director since Rost became the owner (notably, a qualified woman has not applied for an open funeral-director position during that time, see T. Rost Aff ¶¶ 52-53 (Ex. 1)), it is undisputed that R.G. would provide female funeral directors with a women’s suit of equal quality and value to the men’s suit provided to male funeral directors. Id. at ¶ 54.
Nor can the EEOC establish sex discrimination with respect to the clothes and clothing allowances that R.G. provides to employees in positions other than funeral director. Male employees who interact with the public in positions other than funeral director (all of whom are part-time) receive one suit from R.G. that is replaced by R.G. when it is no longer serviceable. See T. Rost Aff. ¶ 57 (Ex. 1) And female employees
24

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who interact with the public in positions other than funeral director receive an annual clothing allowance of $150 for full-time employees and $75 for part-time employees. T. Rost Dep. 15:16-16:4 (Ex. 3); Nemeth Dep. 13:5-23 (Ex. 7); Kish Dep. 20:16-25 (Ex. 5). This allowance is sufficient to purchase an outfit that conforms to R.G.’s dress code for those positions and to cover the cost of replacing those outfits when they wear out. See Kish Aff. ¶¶ 5-7 (Ex. 2). Accordingly, regardless of the sex of the employees in those positions, R.G. provides them with clothing or resources to purchase dress code-complying clothing. Finally, no clothes or clothing allowance is provided for employees, whether male or female, in positions that do not interact with the public. See Kish Dep. 56:14-58:4, 65:17-66:18 (Ex. 5). The EEOC thus cannot prevail on its clothing allowance claim because it is unable to show that R.G. discriminates between comparable male and female employees.
Conclusion For the foregoing reasons, R.G. respectfully requests that the Court grant summary judgment in its favor. Dated: April 7, 2016
Respectfully submitted, /s/ James A. Campbell James A. Campbell
25

 
 2:14-cv-13710-SFC-DRG Doc # 57 Filed 04/15/16 Pg 1 of 8 Pg ID 1704

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
Defendant.

Case No. 14-cv-13710
Hon. Sean F. Cox Mag. David R. Grand

UNOPPOSED MOTION BY THE AMERICAN CIVIL LIBERTIES UNION AND THE AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The American Civil Liberties Union and the American Civil Liberties Union
of Michigan (collectively, the “ACLU”) file this unopposed motion for leave to file
an amicus curiae brief for the reasons that follow and those set forth in the attached
brief:
1. The American Civil Liberties Union is a nonprofit, nonpartisan
organization with over 500,000 members dedicated to protecting the fundamental
liberties and basic civil rights guaranteed by the U.S. Constitution. The American
Civil Liberties Union of Michigan is the Michigan affiliate of the American Civil
Liberties Union.

1

2:14-cv-13710-SFC-DRG Doc # 57 Filed 04/15/16 Pg 2 of 8 Pg ID 1705
2. The ACLU is well-positioned to submit an amicus brief in this case. The ACLU has a long history of defending religious liberty, including defending the right of individuals to freely practice their religion or no religion. See, e.g., Hanas v. Inner City Christian Outreach, Inc., 542 F. Supp. 2d 683 (E.D. Mich. 2008) (holding that a Catholic man’s rights were violated when he was sent to jail for asking a drug court judge to remove him from a drug rehabilitation program that coerced him into practicing the Pentecostal faith).1 At the same time, the ACLU is committed to fighting discrimination and inequality, including discrimination against transgender people. See, e.g., Complaint, Love v. Johnson, 2:15-cv-11834-NGE-EAS (E.D. Mich. filed May 21, 2015) (challenging the State of Michigan’s policy of refusing to correct the gender on a transgender person’s driver’s license or state identification card unless the person requesting the correction produces an amended birth certificate showing the correct gender).2
3. Most relevant to this case, the ACLU filed an amicus brief in a pregnancy discrimination case where the employer raised religious exercise defenses to enforcement of Title VII and the Americans with Disabilities Act. These defenses were rejected. See Herx v. Diocese of Fort Want–South Bend Inc.,
1 For a full history of the ACLU’s free exercise work, see https://www.aclu.org/aclu-defense-religious-practice-and-expression. 2 More information about the ACLU’s LGBT rights work can be found at https://www.aclu.org/issues/lgbt-rights.
2

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48 F. Supp. 3d 1168 (N.D. Ind. 2014), appeal dismissed, 772 F.3d 1085 (7th Cir.

2014).

4. The proposed brief would aid this Court by providing a historical

context for this case, including the long line of cases that have rejected the use of

religion to discriminate against others in employment, and by highlighting the

government’s compelling interest in preventing such discrimination.

5. The proposed brief would also aid this Court by demonstrating why a

sex specific dress code provides no defense to Title VII liability where an

employer terminates a transgender employee for dressing in accordance with her

gender identity.

6. Pursuant to Local Rule 7.1(a), the ACLU has contacted the parties’

counsel to seek concurrence. Both parties concur in the ACLU’s request to file an

amicus curiae brief.

7. If the motion is granted, the ACLU will file the brief attached as

Exhibit A.

WHEREFORE, the ACLU respectfully requests that this Court grant this

motion to allow the ACLU to file the attached amicus curiae brief.

Respectfully submitted,

/s/ Jay D. Kaplan Jay D. Kaplan (P38197) Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085)

/s/ Brian Hauss Brian Hauss (admission pending) Ria Tabacco Mar American Civil Liberties Union

3

2:14-cv-13710-SFC-DRG Doc # 57 Filed 04/15/16 Pg 4 of 8 Pg ID 1707

American Civil Liberties Union Fund of Michigan
2966 Woodward Ave. Detroit, MI 48201 (313) 578-6800 jkaplan@aclumich.org dkorobkin@aclumich.org msteinberg@aclumich.org

Foundation 125 Broad St., 18th Floor New York, NY 10004 (212) 549-2604 bhauss@aclu.org rmar@aclu.org
/s/ John A. Knight John A. Knight American Civil Liberties Union
Foundation 180 N. Michigan Avenue, Suite 2300 Chicago, IL 60606 (312) 201-9740 jaknight@aclu.org

Dated: April 15, 2016

Attorneys for Amici ACLU

4

2:14-cv-13710-SFC-DRG Doc # 57 Filed 04/15/16 Pg 5 of 8 Pg ID 1708

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
Defendant.

Case No. 14-cv-13710
Hon. Sean F. Cox Mag. David R. Grand

BRIEF IN SUPPORT OF ACLU’S UNOPPOSED MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
Pursuant to Local Rule 7.1(d), the ACLU submits this brief in support of its unopposed motion for leave to file an amicus curiae brief. Whether to grant a motion for leave to file an amicus brief is in the sound discretion of the Court. See, e.g., Northland Family Planning Clinic v. Cox, 394 F. Supp. 2d 978, 990 (E.D. Mich. 2005) (granting leave to anti-abortion organization and individuals to file amici briefs in a constitutional challenge to an abortion restrictions); Bay Cnty. Democratic Party v. Land, 347 F. Supp. 2d 404, 438 (E.D. Mich. 2004) (allowing amicus brief with no discussion). The ACLU has frequently been granted leave to file amicus curiae briefs in this Court. See, e.g., Freedom from Religion Found. v. City of Warren, 873 F. Supp. 2d 850 (E.D. Mich. 2012); Doe v. Sturdivant, No. 05-

1

2:14-cv-13710-SFC-DRG Doc # 57 Filed 04/15/16 Pg 6 of 8 Pg ID 1709
70869, 2005 WL 2769000, at *3 (E.D. Mich. Oct. 25, 2005); Everson v. Mich. Dep’t of Corrections, 222 F. Supp. 2d 864 (E.D. Mich. 2002); Thomason v. Jernigan, 770 F. Supp. 1195, 1196 (E.D. Mich. 1991).
In one case, this Court engaged in some analysis when granting leave to the Detroit Free Press to file an amicus curiae brief. This Court granted leave in that case in part because the amicus brief “offers a unique perspective and analysis of the” underlying statute at issue in the case. Flagg v. City of Detroit, 252 F.R.D. 346, 360 n.28 (E.D. Mich. 2008). The same is true here. As discussed in the accompanying motion, the ACLU does not repeat the identical arguments of any party but rather provides an extensive discussion of courts’ refusal to countenance religious exemptions from anti-discrimination laws, as well as an explanation of why a sex specific dress code provides no defense to Title VII liability where an employer terminates a transgender employee for dressing in accordance with her gender identity.
Furthermore, this Court in Flagg also allowed the Free Press to file an amicus brief because of its interest in the case. Id. The ACLU likewise has a significant interest in the outcome of this case and in making sure that religious exercise protections are not used to license discrimination. The intersection of these and other civil rights and liberties uniquely position the ACLU to offer an amicus brief here. Indeed, the ACLU has been granted amicus status in other
2

2:14-cv-13710-SFC-DRG Doc # 57 Filed 04/15/16 Pg 7 of 8 Pg ID 1710

religious exercise challenges to enforcement of Title VII. See Herx v. Diocese of Fort Want–South Bend Inc., 48 F. Supp. 3d 1168 (N.D. Ind. 2014). Moreover, as a membership organization, the ACLU has an interest in ensuring that Title VII’s protections are enforced, which will benefit our members.
Accordingly, the ACLU respectfully requests that this Court grant leave to allow the ACLU to file the attached amicus curiae brief.

Respectfully submitted,

/s/ Jay D. Kaplan Jay D. Kaplan (P38197) Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6800 jkaplan@aclumich.org dkorobkin@aclumich.org msteinberg@aclumich.org

/s/ Brian Hauss Brian Hauss (admission pending) Ria Tabacco Mar American Civil Liberties Union
Foundation 125 Broad St., 18th Floor New York, NY 10004 (212) 549-2604 bhauss@aclu.org rmar@aclu.org
/s/ John A. Knight John A. Knight American Civil Liberties Union
Foundation 180 N. Michigan Avenue, Suite 2300 Chicago, IL 60606 (312) 201-9740 jaknight@aclu.org

Dated: April 15, 2016

Attorneys for Amici ACLU

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2:14-cv-13710-SFC-DRG Doc # 57 Filed 04/15/16 Pg 8 of 8 Pg ID 1711
CERTIFICATE OF SERVICE
I hereby certify that on April 15, 2016, I electronically filed the foregoing
document with the Clerk of the Court using the ECF system which will send
notification of such filing to all counsel of record.
/s/ Jay D. Kaplan Jay D. Kaplan (P38197) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6812 jkaplan@aclumich.org

2:14-cv-13710-SFC-DRG Doc # 57-1 Filed 04/15/16 Pg 1 of 29 Pg ID 1712
Exhibit A

2:14-cv-13710-SFC-DRG Doc # 57-1 Filed 04/15/16 Pg 2 of 29 Pg ID 1713

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
Defendant.

Case No. 14-cv-13710
Hon. Sean F. Cox Mag. David R. Grand

ACLU’S AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFF EEOC’S MOTION FOR SUMMARY JUDGMENT

2:14-cv-13710-SFC-DRG Doc # 57-1 Filed 04/15/16 Pg 3 of 29 Pg ID 1714
TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................ ii INTEREST OF AMICI CURIAE ...................................................................... 1 INTRODUCTION ............................................................................................ 2 FACTUAL AND PROCEDURAL BACKGROUND ..................................... 3 ARGUMENT .................................................................................................... 4 I. The Funeral Home’s dress code is not a defense to its discriminatory
firing of Aimee Stephens ........................................................................ 4 II. The Free Exercise Clause and RFRA do not provide religious
exemptions from Title VII and other civil rights laws ........................... 8 A. Enforcement of Title VII against the Funeral Home does not
violate the Free Exercise Clause .................................................. 9 B. Enforcement of Title VII against the Funeral Home does not
violate RFRA................................................................................ 13 CONCLUSION ................................................................................................. 21
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2:14-cv-13710-SFC-DRG Doc # 57-1 Filed 04/15/16 Pg 4 of 29 Pg ID 1715
TABLE OF AUTHORITIES
Cases
Adkins v. City of New York, No. 14-CV-7519 JSR, 2015 WL 7076956 (S.D.N.Y. Nov. 15, 2015).... 17
Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) ................................................................... 15
Bd. of Directors of Rotary Club Int’l v. Rotary Club of Duarte, 481 U.S. 537 (1987)................................................................................. 16
Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009) ................................................................... 10
Bob Jones University v. United States, 461 U.S. 574 (1983)........................................................................... 11, 21
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)....................................................................... 13, 18
Chavez v. Credit Nation Auto Sales, LLC, No. 14-14596, 2016 WL 158820 (11th Cir. Jan. 14, 2016) ...................... 6
City of Boerne v. Flores, 521 U.S. 507 (1997)................................................................................... 9
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987).................................................................. 20
Cutter v. Wilkinson, 544 U.S. 709 (2005)................................................................................. 20
Dawson v. H&H Elec., Inc., No. 4:14CV00583 SWW, 2015 WL 5437101 (E.D. Ark. Sept. 15, 2015) ........................................................................................... 6
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ..................................................... 13, 16, 21
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2:14-cv-13710-SFC-DRG Doc # 57-1 Filed 04/15/16 Pg 5 of 29 Pg ID 1716
EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986) ............................................... 12–13, 16, 21
EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980) ................................................................... 12
EEOC v. Pac. Press Publ’g Ass’n, 676 F.2d 1272 (9th Cir. 1982), .......................................................... 13, 15
EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763 (S.D. Ind. 2002)................................................ 13, 15
Employment Division v. Smith, 494 U.S. 872 (1990)................................................................................... 9
Estate of Thornton v. Caldor, 472 U.S. 703 (1985)................................................................................. 20
Gen. Conf. Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402 (6th Cir. 2010) ............................................................. 14–15
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ....................................................... 5–6, 17
Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987)................................................................................. 20
J.E.B. v. Alabama, 511 U.S. 127 (1994)................................................................................. 17
Lie v. Sky Pub. Corp., No. 013117J, 2002 WL 31492397 (Mass. Super. Oct. 7, 2002) ............... 6
Mount Elliott Cemetery Ass’n v. City of Troy, 171 F.3d 398 (6th Cir. 1999) ..................................................................... 9
N. Coast Women’s Care Med. Grp., Inc. v. Superior Court, 189 P.3d 959 (Cal. 2008)......................................................................... 19
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2:14-cv-13710-SFC-DRG Doc # 57-1 Filed 04/15/16 Pg 6 of 29 Pg ID 1717
Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941 (D.S.C. 1966) ........................................................ 11, 21
Prater v. City of Burnside, 289 F.3d 417 (6th Cir. 2002) ................................................................... 10
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)................................................................................ 4-5
Redhead v. Conference of Seventh-Day Adventists, 440 F. Supp. 2d 211 (E.D.N.Y. 2006) ......................................... 13, 15–16
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)........................................................................... 14, 16
Romer v. Evans, 517 U.S. 620 (1996)................................................................................. 14
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)....................................................... 5, 8
Sherbert v. Verner, 374 U.S. 398 (1963)........................................................................... 10–11
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ............................................................ passim
Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994) .................................................................... 19
United States v. Burke, 504 U.S. 229 (1992)........................................................................... 14, 19
Vigars v. Valley Christian Ctr. of Dublin, Cal., 805 F. Supp. 802 (N.D. Cal. 1992)...................................................... 9–10
Wisconsin v. Yoder, 406 U.S. 205 (1972)........................................................................... 10–11
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Administrative Decision Lusardi v. McHugh, EEOC DOC 0120133395, 2015 WL 1607756 (Apr. 1, 2015) ......................... 8 Statutes 42 U.S.C. § 2000bb–1(b) ................................................................................... 14 42 U.S.C. § 2000bb(b)(1) ................................................................................. 10–11 Other Authorities Jaime Grant, et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011) ...................................................... 18 M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, ........................ 7 39 Vt. L. Rev. 943 (2015) E.L. Lombardi, et al., Gender Violence: Transgender Experiences With Violence and Discrimination, 42 Journal of Homosexuality 89 (2001)............ 18 Rebecca Stotzer, Violence Against Transgender People: A Review of United States Data, 14 Aggression and Violent Behavior 170 (2009) ....... 17–18
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INTEREST OF AMICI CURIAE The American Civil Liberties Union and the American Civil Liberties Union of Michigan (collectively, “ACLU”) submit this amicus brief in support of Plaintiff’s motion for summary judgment. The right to practice one’s religion, or no religion, is a core component of our civil liberties and is of vital importance to the ACLU. For this reason, the ACLU regularly brings cases aimed at protecting the right to religious exercise and expression. At the same time, the ACLU is committed to fighting discrimination and inequality, including discrimination against transgender people by, for example, denying transgender employees the ability to dress consistently with their gender identity. Amici support the motion for summary judgment filed by Plaintiff Equal Employment Opportunity Commission (“EEOC”). Amici submit this brief to explain why an employer may not use a sex-specific dress code as a license to subject a transgender employee to an adverse employment action, such as firing, because she intends to dress consistently with her gender identity, and to explain why Title VII is essential to furthering the government’s compelling interest in preventing invidious discrimination. Amici take no position on the other issues presented by the parties’ cross-motions for summary judgment.
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INTRODUCTION Amici agree with the EEOC that terminating a transgender employee because she intends to dress consistently with her gender identity constitutes illegal sex discrimination even if couched as the enforcement of a so-called “biological” sex-specific dress code. To hold otherwise would allow employers through the adoption and application of such a dress code to reinforce the sex-stereotypes that Title VII was intended to eradicate. To be clear, this case is not a challenge to gendered dress codes, as Defendant R.G. & G.R. Harris Funeral Homes, Inc. (“Funeral Home”) would have this Court believe. The EEOC’s case is only about whether firing a transgender female employee because of her plan to start dressing as a woman constitutes sex stereotyping in violation of Title VII. It plainly does. Amici further agree with the EEOC that neither the Free Exercise Clause nor the Religious Freedom Restoration Act (“RFRA”) exempts the Funeral Home from liability under Title VII. The religious defenses raised by the Funeral Home—that it has the right to discriminate based on sex in violation of federal civil rights laws because of its owner’s religious beliefs—are, unfortunately, not new. For decades, private employers have attempted to use their religious beliefs to evade compliance with anti-discrimination laws, including Title VII. For example, employers claimed that the right to religious freedom entitled them to pay men more than women, because of their religious belief that men should be the primary breadwinners;
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businesses claimed that the right to religious liberty entitled them to discriminate against people of color in public accommodations, because of their religious belief that the races should be kept separate; and universities claimed a religious liberty right to prohibit interracial dating among their students, because of their religious belief against interracial relationships. In each of these cases, courts squarely rejected the notion that religious liberty provides employers, schools, and businesses open to the public with a license to discriminate. This Court should come to the same conclusion here. The exemption the Funeral Home seeks, if granted, would not only contravene clear and consistent precedent, it would threaten decades of progress achieved by important civil rights statutes and would make employees throughout the country vulnerable to discrimination.
FACTUAL AND PROCEDURAL BACKGROUND Aimee Stephens is a transgender woman who served as a funeral director and embalmer at the Funeral Home. Mem. in Supp. of Pl.’s Mot. for Summ. J. (“Pl. Mem.”) at 1. On July 31, 2013, Ms. Stephens wrote her coworkers a letter informing them about her transition from male to female, and explaining that she intended to dress in appropriate business attire as a woman. See id. Ex. A, Stephens Letter. The Funeral Home’s owner, Thomas Rost, responded two weeks later by handing Ms. Stephens a severance agreement. Mr. Rost has said that the “specific
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reason” he terminated Ms. Stephens was because she “wanted to dress as a woman.” Pl. Mem. at 1–2.
The EEOC brought a sex discrimination lawsuit against the Funeral Home, alleging that its termination of Ms. Stephens violated Title VII’s prohibition on sex discrimination. The Funeral Home moved to dismiss the case on the ground that gender identity is not protected by Title VII; however, this Court concluded that the EEOC had properly alleged a sex discrimination claim by asserting that Ms. Stephens was fired for failing to conform to Mr. Rost’s sex- or gender-based stereotypes. Op. & Order Denying Mot. to Dismiss at 14. After its motion to dismiss was denied, the Funeral Home amended its Answer to raise defenses under the Free Exercise Clause and RFRA. Answer to Am. Compl. at 5. The parties have filed cross-motions for summary judgment.
ARGUMENT I. The Funeral Home’s dress code is not a defense to its discriminatory
firing of Aimee Stephens. The Funeral Home relies on its alleged “biological” sex-specific dress code to justify its termination of Ms. Stephens. Its argument, however, misconstrues the EEOC’s argument as a challenge to its dress code, which it is not, and ignores the ample legal precedent establishing that an employer’s adverse response to an employee’s manner of dress may constitute illegal sex discrimination. Since Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), numerous courts have recognized
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that disparate treatment of an employee because her clothing fails to comport with the employer’s sex-based stereotypes qualifies as illegal sex discrimination. The Sixth Circuit in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), extended Price Waterhouse’s reasoning to a transgender firefighter who had been suspended after she began to express a more feminine appearance at work. The court reasoned that, under Price Waterhouse, “employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex.” Id. at 574.
Consistent with Price Waterhouse and Smith, courts have repeatedly held that an employer’s adverse response to a transgender person’s intention to begin dressing consistently with his or her gender identity—such as occurred in the present case—constitutes unlawful sex stereotyping. In Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), for example, the court found that a transgender woman was subject to sex stereotyping in violation of Title VII, based on evidence that her offer to work at the Library of Congress was retracted because she was perceived as “a man in women’s clothing,” or would be perceived as such by Members of Congress and their staffs. Id. at 305. The Eleventh Circuit reached a similar conclusion in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), finding that the reason for a transgender woman’s termination—because she was perceived
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“as ‘a man dressed as a woman and made up as a woman,’”—provided “ample direct evidence to support the district court’s conclusion” that she was fired due to sex stereotyping in violation of the Fourteenth Amendment. Id. at 1320–21; see also Chavez v. Credit Nation Auto Sales, LLC, No. 14-14596, 2016 WL 158820, at *7 (11th Cir. Jan. 14, 2016) (testimony that transgender woman was told not to wear a dress to and from work evidence of sex discrimination); Dawson v. H&H Elec., Inc., No. 4:14CV00583 SWW, 2015 WL 5437101, at *4 (E.D. Ark. Sept. 15, 2015) (finding that there was “ample evidence from which a reasonable juror could find that [a transgender employee] was terminated because of her sex,” where employer “repeatedly forbade” her to “wear feminine clothes at work” and terminated her employment “soon after she disobeyed [her employer’s] orders and began wearing makeup and feminine attire at work”); Lie v. Sky Pub. Corp., No. 013117J, 2002 WL 31492397, at *5 (Mass. Super. Oct. 7, 2002) (firing of transgender woman for refusing to “wear traditionally male attire” made out case of sex stereotyping).
The Funeral Home suggests that its termination of Ms. Stephens did not violate Title VII because it fired her for failing to comply with its dress code “based on the biological sex of its employees.” Mem. of Law in Supp. of Def.’s Mot. for Summ. J. (“Def. Mem.”) at 8. But the Funeral Home’s assertion that it may require Ms. Stephens to wear men’s attire because it perceives her to be
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“biologically” male is simply another way of describing its illegal sex stereotyping—its refusal to allow a person it perceives as male to dress as a female.1 As such, this case is no different than Smith and the other cases cited supra. And while the Funeral Home claims that the EEOC is challenging its ability to maintain a sex-specific dress code, the lawfulness of sex-specific dress codes is not at issue in this case. What is at issue is the Funeral Home’s discriminatory application of its dress code to Ms. Stephens. None of the cases cited by the Funeral Home involve transgender employees, nor do they permit an employer to treat transgender men and women differently from other men and women. Rather, the cases cited by the Funeral Home involve employees who did not comply with the dress code applicable to them. Here, by contrast, there is no dispute that Ms. Stephens intended to comply with the dress code consistent with her gender identity.
Nor is there any basis for the Funeral Home’s argument that accepting the EEOC’s position in this case would require employers “to allow an employee to dress in a female uniform one day, switch to a male uniform the next day, and return to the female uniform whenever that employee chooses.” Def. Mem. at 15. 1 While it is unnecessary for this Court to resolve this question, it bears pointing out that the Funeral Home’s assertion that Ms. Stephens is “biologically” male is inaccurate—research indicates that gender identity itself has a biological component. See M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt. L. Rev. 943, 944 (2015) (summarizing research).
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A transgender person’s decision to live consistent with her gender identity is not one that is made lightly, nor is going to be reversed on a whim. See, e.g., Schroer v. Billington, 577 F. Supp. 2d 293, 296 (D.D.C. 2008) (transgender job applicant explaining “that she did not see being transgender as a choice and that it was something she had lived with her entire life”). The Funeral Home’s argument that its “business needs and the interests of the grieving people [it] serves” allows it to refuse Ms. Stephens the ability to dress as a woman is similarly devoid of merit Def. Mem. at 14. The record shows that Ms. Stephens intended to dress professionally as a woman. Moreover, “Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.” Lusardi v. McHugh, EEOC DOC 0120133395, 2015 WL 1607756, at *9 (Apr. 1, 2015) (collecting cases). II. The Free Exercise Clause and RFRA do not provide religious
exemptions from Title VII and other civil rights laws. A central question presented in this case is whether a for-profit business can rely on the religious beliefs of its owners to discriminate against a lay employee on the basis of her sex, where other employers would face liability under Title VII or another civil rights statute for engaging in such discrimination. The answer is no. Neither the Constitution’s Free Exercise Clause nor RFRA gives for-profit businesses the right to discriminate against lay employees on the basis of sex, race,
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or other federally protected characteristics, even if the discrimination is motivated by the sincerely held religious beliefs of the business’s owners. To the contrary, courts have consistently refused to grant employers religious exemptions from civil rights laws in circumstances such as these. This Court should apply the same principle here.
A. Enforcement of Title VII against the Funeral Home does not violate the Free Exercise Clause.
In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U.S. 507, 514 (1997) (citing Smith). Since Smith, courts—including the Sixth Circuit—have consistently held that neutral laws of general applicability do not violate the Free Exercise Clause. See, e.g., Mount Elliott Cemetery Ass’n v. City of Troy, 171 F.3d 398, 405 (6th Cir. 1999) (“[T]he City of Troy’s ordinances governing residential and community facilities districts are neutral laws of general applicability. As a result, we find that judgment was properly entered in favor of the City with respect to the free exercise claim.”).
Here, Title VII is a neutral law of general applicability, and it is well-settled that the law does not target any specific religion for discriminatory treatment. See, e.g., Vigars v. Valley Christian Ctr. of Dublin, Cal., 805 F. Supp. 802, 809 (N.D. Cal. 1992) (“Title VII neither regulates religious beliefs, nor burdens religious acts,
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because of their religious motivation. On the contrary, it is clear that Title VII is a secular, neutral statute . . . .”). Even if particular religious beliefs are disproportionately burdened by Title VII, this burden is insufficient to show the statute is intended to discriminate against that religion, such that heightened judicial scrutiny of the statute is required. See, e.g., Bloch v. Frischholz, 587 F.3d 771, 785 (7th Cir. 2009) (“Smith requires more than just evidence of an adverse impact on [religious believers] . . . . Under Smith, the denial of a religious exception is not intentional discrimination.”); Prater v. City of Burnside, 289 F.3d 417, 428–29 (6th Cir. 2002) (“Discrimination may not be inferred . . . simply because a public program is incompatible with a religious organization’s spiritual priorities . . . . The Church, therefore, must show more than disparate impact in order to prove discriminatory animus on the part of the City.”). The Free Exercise Clause accordingly does not exempt lay employees from Title VII’s protections.
Even under the more rigorous pre-Smith analysis, courts repeatedly found that antidiscrimination laws such as Title VII meet strict scrutiny and therefore survive Free Exercise Clause challenges.2 These courts held that any burdens on
2 Before Smith, courts analyzed religious exemption claims by determining whether: (1) the denial of an exemption substantially burdened the claimant’s religious exercise; and (2) if so, whether the denial of an exemption was nevertheless justified by the need to further a compelling government interest. See Wisconsin v. Yoder, 406 U.S. 205, 210–11 (1972); Sherbert v. Verner, 374 U.S. 398, 406–09 (1963). Because RFRA was meant “to restore the compelling interest
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the free exercise of religion imposed by antidiscrimination statutes are outweighed by the compelling state interest in eradicating discrimination and promoting equality. In Bob Jones University v. United States, 461 U.S. 574 (1983), for example, the Supreme Court held that the IRS’s denial of tax exempt status to Bob Jones University and Goldsboro Christian Schools—on the ground that the schools engaged in racial segregation because of its religious belief against interracial relationships—did not violate the Free Exercise Clause, because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education . . . [which] outweighs whatever burden denial of tax benefits places on [the schools’] exercise of their religious beliefs.” Id. at 604; see also, e.g., Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 945 (D.S.C. 1966) (“refus[ing] to lend credence or support to [a restaurant owner’s position] that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs”), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).
In the employment context, courts consistently rejected pre-Smith Free Exercise Clause challenges to Title VII and other nondiscrimination statutes. For instance, in EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980), the Fifth test as set forth” in Sherbert and Yoder, 42 U.S.C. § 2000bb(b)(1), the pre-Smith case law is informative with respect to the Funeral Home’s RFRA defense.
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Circuit held that application of Title VII to a sectarian university’s employment practices did not violate the Free Exercise Clause. Id. at 489. Although the College argued that it should be allowed to discriminate on the basis of sex because of its religious belief that only men should teach certain courses, the court concluded that the College was not exempt from Title VII’s prohibition against discrimination because of sex and that any claimed burden on religious exercise in complying with the law were justified by the government’s “compelling interest in eradicating discrimination in all forms.” Id at 488. To take another example, in EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986), the Ninth Circuit held that a sectarian school’s policy of providing health insurance benefits only to persons it considered to be “head of household”—i.e., single persons and married men, but not married women—violated Title VII and the Fair Labor Standards Act (FLSA). Id. at 1364. The school challenged the statutes on Free Exercise Clause grounds, arguing that its practice of providing health insurance benefits to single employees and married men, but not married women, was motivated by the sincere religious belief that men should be the head of the household. Id. at 1367. The court, however, held that the school’s policy discriminated on the basis of sex and that enforcement of the anti-discrimination statutes was the least restrictive means for furthering Congress’s compelling interest in eliminating discrimination. Id. at 1368–69 (citing EEOC v. Pac. Press Publ’g Ass’n, 676 F.2d 1272, 1279 (9th Cir.
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1982)); accord Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 1990) (holding that enforcement of the FLSA’s minimum wage and equal pay provisions against a sectarian school that paid female teachers less than male teachers did not violate the school’s free exercise rights, because enforcement of these provisions was the least restrictive means for furthering the government’s compelling interest in preventing discrimination and ensuring fair wages).
B. Enforcement of Title VII against the Funeral Home does not violate RFRA.
Just as courts refused to grant religious exemptions from Title VII and other civil rights laws under the pre-Smith Free Exercise Clause, so too they have refused to grant such exemptions under RFRA. See Redhead v. Conference of Seventh-Day Adventists, 440 F. Supp. 2d 211, 221–22 (E.D.N.Y. 2006) (rejecting sectarian school’s RFRA defense to Title VII sex discrimination claim by teacher who was fired after becoming pregnant outside of marriage); EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763, 810–13 (S.D. Ind. 2002) (rejecting for-profit company’s RFRA defense to Title VII religious discrimination claims); see also Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2783 (2014) (stating that “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race”).
Under RFRA, which was meant to restore the pre-Smith approach to religious exemption claims, employers must comply with federal laws, including
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Title VII—even where the requirements of those laws impose a substantial burden on its owner’s religious beliefs—so long as the government “demonstrates that application of the burden to the person . . . (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb–1(b). Here, Title VII is the least restrictive means for furthering the government’s interest in preventing invidious employment discrimination on the basis of sex. “It is beyond question that discrimination in employment on the basis of sex, race, or any of the other classifications protected by Title VII is . . . an invidious practice that causes grave harm to its victims.” United States v. Burke, 504 U.S. 229, 238 (1992). Such discrimination “both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.” Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984). To prevent these evils, Title VII and other civil rights laws ensure equal access to the “transactions and endeavors that constitute ordinary civic life in a free society.” Romer v. Evans, 517 U.S. 620, 631 (1996).3
3 To be sure, there are many cases where a court may dispose of RFRA claims on alternative grounds. For example, the Sixth Circuit has held that RFRA does not apply in a suit between private parties. Gen. Conf. Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402, 410 (6th Cir. 2010). Or, as the EEOC argues here, a court may conclude that the challenged government action does not impose a substantial burden on the RFRA claimant’s religious exercise. Pl. Mem. at 18–24.
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Courts have acknowledged the government’s compelling interest in eradicating all forms of invidious discrimination proscribed by Title VII. In EEOC v. Pacific Press Publishing Association, for example, the Ninth Circuit rejected an employer’s pre-Smith free exercise challenge to an EEOC retaliation case, because of the government’s compelling interest in preventing employment discrimination. 676 F.2d 1272, 1280 (9th Cir. 1982), abrogation on other grounds recognized by Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir. 1991).4 It held that “Congress clearly targeted the elimination of all forms of discrimination as a ‘highest priority.’ Congress’ purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.” Pac. Press, 676 F.2d at 1280 (emphasis added) (citations omitted). Courts have similarly rejected RFRA challenges to Title VII liability, explaining that Title VII furthers the government’s compelling interest in “the eradication of employment discrimination based on the criteria identified in Title VII.” Preferred Mgmt. Corp., 216 F. Supp. 2d at 811; see also Redhead, 440 F. Supp. 2d at 221–22 (stating that the government has a compelling interest in making sure that “Title VII remains enforceable as to [non-ministerial] employment relationships”). 4 The employer in Pacific Press was a Seventh-Day Adventist non-profit publishing house, and maintained that the charging party’s participation in EEOC proceedings violated church doctrines prohibiting lawsuits by members against the church. 676 F.2d at 1280.
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Although it is unnecessary to consider separately the interest in protecting equal employment opportunity based on each of the protected characteristics under Title VII, it is well established that the government has a compelling interest in eradicating discrimination based on sex. As the Supreme Court stated in Roberts, the “stigmatizing injury” of discrimination, “and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race.” 468 U.S. at 625; see also Bd. of Directors of Rotary Club Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (acknowledging the State’s “compelling interest in assuring equal access to women extends to the acquisition of leadership skills and business contacts as well as tangible goods and services”). In the employment context, in particular, courts have consistently recognized that the government interest in preventing gender discrimination is “of the highest order.” Dole, 899 F.2d at 1392 (internal quotation marks omitted); accord Fremont Christian School, 781 F.2d at 1368.
The government’s interest in preventing invidious sex discrimination is no less compelling when the discrimination is directed at transgender persons. Our nation has a long and painful history of sex discrimination against transgender people. See Smith, 378 F.3d at 575 (holding that employer engaged in impermissible sex discrimination when it suspended transgender firefighter after
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she began to exhibit a more feminine appearance at work); cf. Glenn, 663 F.3d at 1319–20 (holding in a case involving employment discrimination against a transgender employee that “governmental acts based upon gender stereotypes— which presume that men and women’s appearance and behavior will be determined by their sex—must be subjected to heightened scrutiny [under the Fourteenth Amendment] because they embody ‘the very stereotype the law condemns’” (quoting J.E.B. v. Alabama, 511 U.S. 127, 138 (1994)); Adkins v. City of New York, No. 14-CV-7519 JSR, 2015 WL 7076956, at *4 (S.D.N.Y. Nov. 15, 2015) (holding that transgender people are a quasi-suspect class for purposes of the Fourteenth Amendment, in part because they “have suffered a history of persecution and discrimination”).
Numerous studies have shown that transgender people face a serious risk of bodily harm, violence, and discrimination because of their transgender status. One systematic review of violence against transgender people in the United States up to 2009 found that between 25 and 50% of respondents had been victims of physical attacks because of their transgender status, roughly 15% had reported being victims of sexual assault, and over 80% had reported being victims of verbal abuse because of their transgender status. Rebecca Stotzer, Violence Against Transgender People: A Review of United States Data, 14 Aggression and Violent Behavior 170 (2009). With respect to employment discrimination in particular, one national
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study found that 37% of transgender people reported experiencing some form of adverse employment action because of their transgender status. E.L. Lombardi, et al., Gender Violence: Transgender Experiences With Violence and Discrimination, 42 Journal of Homosexuality 89 (2001). More recently, the National Transgender Discrimination Survey (“Survey”) found that nearly half of respondents had experienced some form of adverse employment action, and 26% had lost a job, because of their transgender status. Jaime Grant, et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey at 50 (2011), available at http://www.thetaskforce.org /static_html/downloads/reports/reports/ntds_full .pdf. The Survey found that transgender people report twice the unemployment rate of the general population, and that 44% of transgender people report being underemployed. Id. There can be no doubt that the government has a compelling interest in addressing such rampant discrimination.
Finally, uniform enforcement of anti-discrimination laws, such as Title VII, is the least restrictive means of achieving the government’s interest in preventing the social harms of discrimination. Hobby Lobby, 134 S. Ct. at 2783 (recognizing that prohibitions against discrimination are “precisely tailored” to achieve the goal of equal opportunity). There is simply no way to prohibit discrimination except to prohibit discrimination, and any RFRA exemption from Title VII risks imposing concrete harms on employees subjected to invidious discrimination. See N. Coast
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Women’s Care Med. Grp., Inc. v. Superior Court, 189 P.3d 959, 967 (Cal. 2008) (holding that a state law prohibiting discrimination in public accommodations “furthers California’s compelling interest in ensuring full and equal access to medical treatment irrespective of sexual orientation, and there are no less restrictive means for the state to achieve that goal” other than enforcement of the statute).
Every single instance of discrimination “causes grave harm to its victims,” Burke, 504 U.S. at 238, and denies society the benefit of their “participation in political, economic, and cultural life,” Jaycees, 408 U.S. at 625. Because of the individual harms associated with each instance of invidious discrimination, there is simply no “numerical cutoff below which the harm is insignificant.” Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 282 (Alaska 1994) (per curiam) (rejecting state Free Exercise Clause challenge to municipal ordinance prohibiting housing discrimination based on marital status, on the ground that any exemption to the ordinance would directly impede the government’s interest in preventing such discrimination). For the same reasons, enforcement of Title VII against some employers cannot alleviate the harms imposed by allowing other employers to engage in invidious discrimination. See Def. Mem. at 20–21.5
5 Indeed, the Constitution requires the government and courts to account for the harms a religious exemption to Title VII would impose on employees. As the Supreme Court cautioned in Cutter v. Wilkinson, 544 U.S. 709 (2005), the
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The implications of allowing a RFRA exemption in this context are
staggering. People hold sincere religious beliefs about a wide variety of things,
including racial and religious segregation and the role of women in society. Our
country’s tradition of respect for religious freedom, in all its diversity, requires that
we not subject an individual’s assertions about his or her religious beliefs to unduly
invasive scrutiny. As a result, if religious motivation exempted businesses from
anti-discrimination laws, our government would be powerless to enforce those
laws to protect all Americans against the harms of invidious discrimination. To
name just a few examples: Business owners could refuse service to people of color,
on the ground that their religious beliefs forbid racial integration. See Piggie Park,
256 F. Supp. at 945. Employers could refuse to hire women or pay them less than
men, because their religious beliefs require women to remain at home. See
Fremont Christian School, 781 F.2d at 1367–69; Dole, 899 F.2d at 1398. And
Establishment Clause requires courts analyzing religious exemption claims under RFRA and the Religious Land Use and Institutionalized Persons Act to “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Id. at 720; see also Estate of Thornton v. Caldor, 472 U.S. 703, 709–10 (1985) (holding that the Establishment Clause prohibited a Connecticut law that “arm[ed] Sabbath observers with an absolute and unqualified right not to work on whatever day they designate[d] as their Sabbath,” because the statute took “no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath”). Otherwise, “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion.’” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334–35 (1987) (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144–45 (1987)).
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educational institutions receiving federal benefits could impose religiously

motivated racial segregation policies on their students. See Bob Jones Univ., 461

U.S. at 604. All civil rights laws would be vulnerable to such claims where the

discrimination was motivated by religion. Such challenges have no foundation in

the law, and should not be countenanced by this Court.

CONCLUSION

For the foregoing reasons, the EEOC’s motion for summary judgment as to

the Funeral Home’s liability for Ms. Stephens’s gender-motivated termination

should be granted.

Respectfully submitted,

/s/ Jay D. Kaplan Jay D. Kaplan (P38197) Daniel S. Korobkin (P72842) Michael J. Steinberg (P43085) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6800 jkaplan@aclumich.org dkorobkin@aclumich.org msteinberg@aclumich.org
Dated: April 15, 2016

/s/ Brian Hauss Brian Hauss (admission pending) Ria Tabacco Mar American Civil Liberties Union
Foundation 125 Broad St., 18th Floor New York, NY 10004 (212) 549-2604 bhauss@aclu.org rmar@aclu.org
/s/ John A. Knight John A. Knight American Civil Liberties Union
Foundation 180 N. Michigan Avenue, Suite 2300 Chicago, IL 60606 (312) 201-9740 jaknight@aclu.org

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CERTIFICATE OF SERVICE
I hereby certify that on April 15, 2016, I electronically filed the foregoing
document with the Clerk of the Court using the ECF system which will send
notification of such filing to all counsel of record.
/s/ Jay D. Kaplan Jay D. Kaplan (P38197) American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6812 jkaplan@aclumich.org

 
 2:14-cv-13710-SFC-DRG Doc # 76 Filed 08/18/16 Pg 1 of 56 Pg ID 2179

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Equal Employment Opportunity Commission,

Plaintiff,

v.

Case No. 14-13710

R.G. & G.R. Harris Funeral Homes, Inc.,

Sean F. Cox United States District Court Judge

Defendant. ________________________________/

OPINION & ORDER

In enacting Title VII of the Civil Rights Act of 1964, Congress prohibited employers from

discharging or otherwise discriminating against any individual with respect to compensation,

terms, conditions, or privileges of employment “because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).

In filing this action against Defendant R.G. & G.R. Harris Funeral Homes, Inc. (“the

Funeral Home”), the Equal Employment Opportunity Commission sought to expand Title VII to

include transgender status or gender identity as protected classes. The EEOC asserted two Title

VII claims. First, it asserted a wrongful termination claim on behalf of the Funeral Home’s

former funeral director Stephens, who is transgender and transitioning from male to female,

claiming that it “fired Stephens because Stephens is transgender, because of Stephens’s transition

from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or

gender-based preferences, expectations, or stereotypes.” Second, it alleges that the Funeral

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Home engaged in an unlawful employment practice by providing work clothes to male but not female employees.
This Court previously rejected the EEOC’s position that it stated a Title VII claim by virtue of alleging that Stephens’s termination was due to transgender status or gender identity – because those are not protected classes. The Court recognized, however, that under Sixth Circuit precedent, a claim was stated under the Price Waterhouse sex/gender-stereotyping theory of sex discrimination because the EEOC alleges the termination was because Stephens did not conform to the Funeral Home’s sex/gender based stereotypes as to work clothing.
The matter is now before the Court on cross-motions for summary judgment. Neither party believes there are any issues of fact for trial regarding liability and each party seeks summary judgment in its favor. The motions have been fully1 briefed by the parties. The motions were heard by the Court on August 11, 2016.
The Court shall deny the EEOC’s motion and shall grant summary judgment in favor of the Funeral Home as to the wrongful termination claim. The Funeral Home’s owner admits that he fired Stephens because Stephens intended to “dress as a woman” while at work but asserts two defenses.
First, the Funeral Home asserts that its enforcement of its sex-specific dress code, which requires males to wear a pants-suit with a neck tie and requires females to wear a skirt-suit, cannot constitute impermissible sex stereotyping under Title VII. Although pre-Price
1This Court granted all requests by the parties to exceed the normal page limitations for briefs. The Court also granted the sole request for leave to file an amicus brief. Thus, the American Civil Liberties Union and the American Civil Liberties Union of Michigan filed an Amicus Curiae Brief.
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Waterhouse decisions from other circuits upheld dress codes with slightly differing requirements for men and women, the Sixth Circuit has not provided any guidance on how to reconcile that previous line of authority with the more recent sex/gender-stereotyping theory of sex discrimination. Lacking such authority, and having considered the post-Price Waterhouse views that have been expressed by the Sixth Circuit, the Court rejects this defense.
Second, the Funeral Home asserts that it is entitled to an exemption under the federal Religious Freedom Restoration Act (“RFRA”). 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. The burden then shifts to the EEOC to show that application of the burden “to the person:” 1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest. The Court assumes without deciding that the EEOC has shown that protecting employees from gender stereotyping in the workplace is a compelling governmental interest.
Nevertheless, the EEOC has failed to show that application of the burden on the Funeral Home, under these facts, is the least restrictive means of protecting employees from gender stereotyping. If a least restrictive means is available to achieve the goal, the government must use it. This requires the government to show a degree of situational flexibility, creativity, and accommodation when putative interests clash with religious exercise. It has failed to do so here. The EEOC’s briefs do not contain any indication that the EEOC has explored the possibility of any accommodations or less restrictive means that might work under these facts. Perhaps that is
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because it has been proceeding as if gender identity or transgender status are protected classes under Title VII, taking the approach that the only acceptable solution would be for the Funeral Home to allow Stephens to wear a skirt-suit at work, in order to express Stephens’s female gender identity.
In Price Waterhouse, the Supreme Court recognized that the intent behind Title VII’s inclusion of sex as a protected class expressed “Congress’ intent to forbid employers to take gender into account” in the employment context. Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989). That is, the goal of the sex-stereotyping theory of sex discrimination is that “gender” “be irrelevant” with respect to the terms and conditions of employment and to employment decisions. Id. (emphasis added).
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. Rather, the EEOC takes the position that Stephens has 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’s gender identity. 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’s gender identity. If the compelling governmental interest
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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.
This Court finds that the EEOC has not met its demanding burden. As a result, the Funeral Home is entitled to a RFRA exemption from Title VII, and the body of sex-stereotyping case law that has developed under it, under the facts and circumstances of this unique case.
As to the clothing allowance claim, the underlying EEOC administrative investigation uncovered possible unlawful discrimination of a kind not raised by the charging party and not affecting the charging party. As such, under the Sixth Circuit precedent, the proper procedure is for the filing of a charge by a member of the EEOC and for a full EEOC investigation of that new claim. Because the EEOC did not do that, it cannot proceed with that claim in this action. The clothing allowance claim shall be dismissed without prejudice.
BACKGROUND The EEOC filed this action on September 25, 2014. The First Amended Complaint is the operative complaint. The EEOC asserts two different Title VII claims against the Funeral Home. First, it asserts that the Funeral Home violated Title VII by terminating Stephens because of sex. That is, the EEOC alleges that the Funeral Home’s “decision to fire Stephens was motivated by sex-based considerations. Specifically, [the Funeral Home] fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.” (Am. Compl. at ¶ 15). Second, the EEOC alleges that the Funeral Home violated Title VII “by providing a clothing allowance / work clothes to male employees but failing to
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provide such assistance to female employees because of sex.” (Id. at ¶ 17). Following the close of discovery, each party filed its own motion for summary judgment.
This Court’s practice guidelines, which are expressly included in the Scheduling Order issued in this case, provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
a. The moving party’s papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled CounterStatement of Disputed Facts. The Counter-Statement shall list in separately numbered paragraphs following the order or the movant’s statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter-Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter-Statement of Disputed Facts.
(D.E. No. 19 at 2-3). In compliance with this Court’s guidelines, in support of its motion, the EEOC filed a
“Statement of Material Facts Not In Dispute” (D.E. No. 52) (“Pl.’s Stmt. A”). In response to that submission, the Funeral Home filed a “Counter-Statement of Disputed Facts” (D.E. No. 61) (“Def’s Stmt. A”). In support of its motion, the Funeral Home filed a “Statement of Material Facts Not In Dispute” (D.E. No. 55) (Def.’s Stmt. B”). In response, the EEOC filed a CounterStatement of Disputed Facts” (D.E. No. 64) (“Pl.’s Stmt. B”).
Notably, neither party believes that there are any genuine issues of material fact for trial regarding liability. (See D.E. 64 at Pg ID 2087, “The Commission does not believe there are any
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genuine issues of material fact regarding liability for trial;” D.E. No. 61 at Pg ID 1841, “[the Funeral Home] avers that none of the facts in dispute is material to the legal claims at issue.”).
The following relevant facts are undisputed. The Funeral Home and Its Ownership The Funeral Home has been in business since 1910. The Funeral Home is a closely-held, for-profit corporation owned and operated by Thomas Rost (“Rost”). (Stmts. B at ¶ 1). Rost owns 94.5 % of the shares of the Funeral Home. (Stmts. A at ¶ 19). The remaining shares are owned by his children. (Stmts. B at ¶ 8). Rost’s grandmother was a funeral director for the business up until 1950. (Rost Aff. at ¶ 52). Rost has been the owner of the Funeral Home for over thirty years. Rost has been the President of the Funeral Home for thirty-five years and is the sole officer of the corporation. (Stmts. B at ¶¶ 9-10). The Funeral Home has three locations in Michigan: Detroit, Livonia, and Garden City. The Funeral Home is not affiliated with or part of any church and its articles of incorporation do not avow any religious purpose. (Stmts. A at ¶¶ 25-26). Its employees are not required to hold any religious views. (Id. at ¶ 27). The Funeral Home serves clients of every religion (various Christian denominations, Hindu, Muslim, Jewish, native Chinese religions) or none at all. (Stmts. A at ¶ 30). It employs people from different religious denominations, and of no religious beliefs at all. (Id. at ¶ 37). The Funeral Home’s Dress Code Both parties attached the Funeral Home’s written Employee Manual as an exhibit to the pending motions. It contains the following regarding dress code:
DRESS CODE
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September 1998

For all Staff:

To create and maintain our reputation as “Detroit’s Finest”, it is fundamentally important and imperative that every member of our staff shall always be distinctively attired and impeccably groomed, whenever they are contacting the public as representatives of The Harris Funeral Home. Special attention should be given to the following consideration, on all funerals, all viewings, all calls, or on any other funeral work.

MEN

SUITS

BLACK GRAY, OR DARK BLUE ONLY (as selected) with conservative styling. Coats should be buttoned at all times. Fasten only the middle button on a three button coat.

If vests are worn, they should match the suit. Sweaters are not acceptable as a vest. NOTHING should be carried in the breast pocket except glasses which are not in a case.

SHIRTS WHITE OR WHITE ON WHITE ONLY, with regular medium length collars. (Button-down style collars are NOT acceptable). Shirts should always be clean. Collars must be neat.

TIES

As selected by company, or very similar.

SOCKS

PLAIN BLACK OR DARK BLUE SOCKS.

SHOES

BLACK OR DARK BLUE ONLY. (Sport styles, high tops or suede shoes are not acceptable). Shoes should always be well polished.

. . . .

PART TIME MEN - Should wear conservative, dark, business suits, avoiding light brown, light blue, light gray, or large patterns. All part time personnel should follow all details of dress as specified, as near as possible.

FUNERAL DIRECTORS ON DUTY – Are responsible for the appearance of the staff assisting them on services and are responsible for personnel on evening duty.

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WOMEN Because of the particular nature of our business, please dress conservatively. A suit or a plain conservative dress would be appropriate, or as furnished by funeral home. Avoid prints, bright colored materials and large flashy jewelry. A sleeve is necessary, a below elbow sleeve is preferred. Uniformity creates a good impression and good impressions are vitally important for both your own personal image and that of our Company. Our visitors should always associate us with clean, neat and immaculately attired men and women. (D.E. No. 54-20 at Pg ID 1486-87) (underlining and capitalization in original). In addition, it is understood at the Funeral Home that men who interact with the public are required to wear a business suit (pants and jacket) with a neck tie, and women who interact with the public are generally2 required to wear a business suit that consists of a skirt and business jacket. (Stmts. B at 51; D.E. No. 54-11 at Pg ID 1423). The Funeral Home administers its dress code based upon its employees’ biological sex. (Stmts. B at ¶ 51). Employees at the Funeral Home have been disciplined in the past for failing to abide by the dress code. (Stmts. B at ¶ 60). Stephens’s Employment And Subsequent Termination The Funeral Home hired Stephens in October of 2007. At that time, Stephens’s legal name was Anthony Stephens. All of the Funeral Home’s employment records pertaining to Stephens – including driver’s license, tax records, and mortuary science license – identify Stephens as a male. (Stmts. B at ¶ 63). Stephens served as a funeral director/embalmer for the Funeral Home for nearly six years
2Rost testified that female employees at the Detroit location do not wear a skirt and jacket “all the time over there,” and sometimes wear pants and a jacket. (Rost Dep., D.E. No. 54-11 at Pg ID 1423).
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under the name Anthony Stephens. (Stmts. A at ¶¶ 1-2).
On July 31, 2013, Stephens provided the Funeral Home/Rost with a letter that stated, in
pertinent part:
Dear Friends and Co-Workers:
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 am writing this both to inform you of a significant change in my life and to ask for your patience, understanding, and support, which I would treasure greatly.
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 . . .
. . . It is a birth defect that needs to be fixed. I have been in therapy for nearly four years now and have been diagnosed as a transexual. I have felt imprisoned in my body that does not match my mind, and this has caused me great despair and loneliness. With the support of my loving wife, I have decided to become the person that my mind already is. I cannot begin to describe the shame and suffering that I have lived with. 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 . . . It is my wish that I can continue my work at R.G. & G. R. Harris Funeral Homes doing what I have always done, which is my best!
(D.E No. 53-22) (emphasis added).
It is undisputed that Stephens intended to abide by the Funeral Home’s dress code for its
female employees – which would be to wear a skirt-suit. (Stmts. A at ¶ 8; Stmts. B at ¶ 51; D.E.
No. 54-11 at Pg ID 1423; see also D.E. No. 51 at Pg ID 605, and First Am. Compl. at 4).
Stephens hand-delivered a copy of the letter to Rost. (Rost Dep. at 110). Rost made the
decision to fire Stephens by himself and did so on August 15, 2013. (Stmts. A at ¶¶ 10, 12-13;
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Rost Dep. at 117-18). Rost privately fired Stephens in person. (Stmts. A at ¶ 11). Rost testified: Q. Okay. How did you fire Stephens: how did you let Ms. Stephens know that she was being released? A. Well, I said to him, just before he was – it was right before he was going to go on vacation and I just – I said – I just said “Anthony, this is not going to work out. And that your services would no longer be needed here.”
(Rost Dep. at 126). Stephens also testified that Rost said it was not going to work out. (Stephens Dep. at 80). Stephens’s understanding from that conversation was that “coming to work dressed as a woman was not going to be acceptable.” (Id.). It was a brief conversation and Stephens left the facility. (Rost Dep. at 127).
After being terminated, Stephens met with an attorney and ultimately filed a charge of discrimination with the EEOC. (Stephens Dep. at 79-80; D.E. No. 54-22). The EEOC charge filed by Stephens checked the box for “sex” discrimination and indicated that the discrimination took place from July 31, 2013 to August 15, 2013. (D.E. No. 54-22 at Pg ID 1497). The charge stated “the particulars” of the claimed sex discrimination as follows:
I began working for the above-named employer on 01 October 2007; I was last employed as a Funeral Director/Embalmer. On or about 31 July 2013, I notified management that I would be undergoing gender transitioning and that on 26 August 2013, I would return to work as my true self, a female. On 15 August 2013, my employment was terminated. The only explanation I was given was that management did not believe the public would be accepting of my transition. Moreover, during my entire employment I know there are no other female Funeral Directors/Embalmers. I can only conclude that I have been discharged due to my sex and gender identity, female, in violation of Title VII of the Civil Rights Act of 1964, as amended. (Id.).
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Administrative EEOC Proceedings During the EEOC administrative proceedings, the Funeral Home filed a response to the Charge of Discrimination that stated, among other things, that it has a written dress code policy and that Stephens was terminated because Stephens refused to comply with that dress code. (D.E. No. 63-16). During the administrative investigation, the EEOC discovered that male employees at the Funeral Home were provided with work clothing and that female employees were not. (D.E. No. 63-3, March 2014 Onsite Memo). On June 5, 2014, the EEOC issued its “Determination.” (D.E. No. 63-4). It stated, in pertinent part: The Charging Party alleged that she was discharged due to her sex and gender identity, female, in violation of Title VII of the Civil Rights Act of 1964, as amended. Evidence gathered during the course of the investigation reveals that there is reasonable cause to believe that the Charging Party’s allegations are true. Like and related and growing out of this investigation, the Commission found probable cause to believe that the Respondent discriminated against its female employees by providing male employees with a clothing benefit which was denied to females, in violation of Title VII of the Civil Rights Act of 1964, as amended. (D.E. No. 63-4). Complaint, Amended Complaint, and Affirmative Defenses The EEOC filed this civil action against the Funeral Home on September 25, 2014, asserting its two claims. As its first responsive pleading, the Funeral Home filed a Motion to Dismiss seeking dismissal of the wrongful termination claim. This Court denied that motion, ruling that the
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EEOC’s complaint stated a claim on behalf of Stephens for sex-stereotyping sex-discrimination under binding Sixth Circuit authority. (See 4/23/15 Opinion, D.E. No. 13). This Court rejected, however, the EEOC’s position that its complaint stated a Title VII claim on behalf of Stephens by virtue of alleging that the Funeral Home fired Stephens because of transgender status or gender identity. (See D.E. No. 13 at Pg ID 188) (noting that “like sexual orientation, transgender or transsexual status is currently not a protected class under Title VII.”).
On April 29, 2015, the Funeral Home filed its Answer and Affirmative Defenses. (D.E. No. 14).
On May 15, 2015, the EEOC sought to file a First Amended Complaint, in order to correct the spelling of Stephens’s first name. That First Amended Complaint, that contains the same two claims, was filed on June 1, 2015. (D.E. No. 21).3
On June 4, 2015, the Funeral Home filed its Answer and Affirmative Defenses to the EEOC’s First Amended Complaint, (D.E. No. 22). In it, the Funeral Home included additional affirmative defenses, including: 1) “The EEOC’s claims violate the Funeral Home’s right to free exercise of religion under the First Amendment to the United States Constitution;” and 2) “The EEOC’s claims violate the Funeral Home’s rights under the federal Religious Freedom Restoration Act (RFRA).” (Id. at Pg ID 254).
3Although this Court rejected the EEOC’s position that it could pursue a Title VII claim based on transgender status or gender identity, the EEOC kept those allegations in the First Amended Complaint because it wished to preserve its right to appeal this Court’s ruling. (See D.E. No. 37 at Pg ID 462-63).
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Relevant Discovery In This Action
a. Termination Decision
Again, Rost made the decision to terminate Stephens. (Stmts. A at ¶¶ 12-13). It is
undisputed that job performance did not motivate Rost’s decision to terminate Stephens. (Stmts.
A at ¶ 16). During his deposition in this action, Rost testified:
Q. Okay. Why did you – what was the specific reason that you terminated Stephens?
A. Well, because he – he was no longer going to represent himself as a man. He wanted to dress as a woman.
Q. Okay. So he presented you this letter . . . A. Number 7, yes. Q. Yeah, Exhibit 7. So just for a little background and pursuant to the
question of Mr. Price, you were presented that letter from Stephens? A. Correct. Q. Okay. And did anywhere in that letter indicate that Stephens would
continue to dress under your dress code as a man in the workplace? A. No. Q. Did he ever tell you during your meeting when he handed you that letter
that he would continue to dress as a man? A. No. Q. Did he indicate that he would dress as a woman? A. Yes. Yes. Q. Okay. Is it – the reason you fired him, was it because he claimed that he
was really a woman; is that why you fired him or was it because he claimed – or that he would no longer dress as a man? A. That he would no longer dress as a man. Q. And why was that a problem? A. Well, because we – we have a dress code that is very specific that men will dress as men; in appropriate manner, in a suit and tie that we provide and that women will conform to their dress code that we specify. Q. So hypothetically speaking, if Stephens had told you that he believed that he was a woman, but would only present as a woman outside of work, would you have terminated him? A. No.
(Rost Dep. at 135-37) (emphasis added).
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b. Rost’s Religious Beliefs Rost also testified that the Funeral Home’s dress code comports with his religious views. (Stmts. A at ¶ 18). Rost has been a Christian for over sixty-five years. (Stmts. B at ¶ 17). He attends both Highland Park Baptist Church and Oak Pointe Church. For a time, Rost was on the deacon board of Highland Park Baptist Church. Rost is on the board of the Detroit Salvation Army, a Christian nonprofit ministry, and has been for 15 years; he was the former Chair of the advisory board. (Smts. B at ¶¶ 18-19). The Funeral Home’s mission statement is published on its website, which reads “R.G. & G.R. Harris Funeral Homes recognize that its highest priority is to honor God in all that we do as a company and as individuals. With respect, dignity, and personal attention, our team of caring professionals strive to exceed expectations, offering options and assistance designed to facilitate healing and wholeness in serving the personal needs of family and friends as they experience a loss of life.” (Smts. B at ¶ 21). The website also contains a Scripture verse at the bottom of the mission statement page: “But seek first his kingdom and righteousness, and all these things shall be yours as well.”
Matthew 5:33 (Stmts. B at ¶ 22 ; D.E. No. 54-16).
In operating the business, Rost places, throughout the funeral homes, Christian devotional booklets called “Our Daily Bread” and small cards with Bible verses on them called “Jesus Cards.” (Stmts. B at ¶ 23).
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Rost sincerely believes that God has called him to serve grieving people. He sincerely believes that his “purpose in life is to minister to the grieving, and his religious faith compels him to do that important work.” (Stmts. B. at ¶ 31). It is also undisputed that Rost sincerely believes that the “Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex.” (Stmt. B at ¶ 28).
In support of the Funeral Home’s motion, Rost submitted an affidavit. (D.E. No. 54-2). Rost operates the Funeral Home “as a ministry to serve grieving families while they endure some of the most difficult and trying times in their lives.” (Id. at ¶ 7).
At the Funeral Home, the funeral directors are the most “prominent public representatives” of the business and are “the face that [the Funeral Home] presents to the world.” (Id. at ¶ 32). The Funeral Home “administers its dress code based on our employees’ biological sex, not based on their subjective gender identity.” (Id. at ¶ 35).
Rost believes “that the Bible teaches that God creates people male or female.” (Id. at ¶ 41). He believes that “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex.” (Id. at ¶ 42). Rost believes that he “would be violating God’s commands if [he] were to permit one of the [Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the Funeral Home]. This would violate God’s commands because, among other reasons, [he] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” (Id. at ¶ 43). Rost believes that “the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman.” (Id. at ¶ 44). Rost believes that he “would be violating
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God’s commands” if he were to permit one of the Funeral Home’s male funeral directors to wear the skirt-suit uniform for female directors while at work because Rost “would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” (Id. at ¶ 45). If Rost “were forced as the owner of [the Funeral Home] to violate [his] sincerely held religious beliefs by paying for or otherwise permitting one of [his] employees to dress inconsistent with his or her biological sex, [Rost] would feel significant pressure to sell [the] business and give up [his] life’s calling of ministering to grieving people as a funeral home director and owner.” (Id. at ¶ 48).
Rost’s Affidavit also states that he “would not have dismissed Stephens if Stephens had expressed [to Rost] a belief that he is a woman and an intent to dress or otherwise present as a woman outside of work, so long as he would have continued to conform to the dress code for male funeral directors while at work. It was Stephens’s refusal to wear the prescribed uniform and intent to violate the dress code while at work that was the decisive consideration in [his] employment decision.” (Id. at ¶ 50). Rost “would not discharge or otherwise discipline employees who dress as members of the opposite sex on their own time but comply with the dress code while on the job.” (Id. at ¶ 51).
c. Clothing Benefits The Funeral Home provides its male employees who interact with clients, including funeral directors, with suits and ties free of charge. (Stmts. A at ¶ 42). Upon hire, full-time male employees who interact with the public are provided two suits and two ties, while part-time male employees who interact with the public are provided one suit and tie. (Stmts. A at ¶ 47). After those initial suits are provided, the Funeral Home replaces them as needed. (Id. at ¶ 48). The
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Funeral Home spends about $225 per suit and $10 per tie. (Id. at ¶ 52). It is undisputed that benefits were not always provided to female employees. Starting in
October of 2014, however, the Funeral Home began providing female employees who interact with the public with an annual clothing stipend that ranged from $75.00 for part-time employees to $150.00 for full-time employees. (See Stmts. A at ¶ 54; Rost Dep. at 15-16).
In addition, the Funeral Home affirmatively states that it will offer the same type of clothing allowance that it provides to male funeral directors to any female funeral directors in the future: the Funeral Home “will provide female funeral directors with skirt suits in the same manner that it provides pant suits to male funeral directors.” (Rost Aff. at ¶ 54).
STANDARD OF DECISION Summary judgment will be granted where there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists where “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
ANALYSIS Under Title VII, it is an “unlawful employment practice” for an employer 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 sex. 42 U.S.C. § 2000e-2(a). “We take these words to mean that gender must be irrelevant to employment decisions.” Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989) (emphasis added).
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Here, the EEOC asserts that the Funeral Home violated Title VII in two ways. I. Title VII Wrongful Termination Claim On Behalf Of Stephens
The EEOC alleges that Stephens was terminated in violation of Title VII under a Price Waterhouse sex-stereotyping theory of sex discrimination. That is, the EEOC alleges that the Funeral Home violated Title VII by firing Stephens because Stephens did not conform to the Funeral Home’s sex/gender based stereotypes as to work clothing.4
This Court previously denied a Motion to Dismiss filed by the Funeral Home and ruled that the EEOC’s complaint stated a Price Waterhouse sex/gender-stereotyping claim under Title VII. (See D.E. No. 13). That ruling was based on several Sixth Circuit cases that establish that a transgender person – just like anyone else – can bring such a claim under Title VII. See Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) (“Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Myers v. Cuyahoga County, Ohio, 182 F. App’x 510, 2006 WL 1479081 (6th Cir. 2006).
The Court includes here some aspects of those decisions that bear on the positions advanced by the parties in the pending motions. First, the Sixth Circuit has gone a bit further than other courts in terms of the reach of a sex-stereotyping claim after Price Waterhouse and
4Notably, the parties have confined their claims, defenses, and analysis to clothing alone. In addition, unlike many sex-stereotyping cases, this case does not involve any allegations that the Funeral Home discriminated against Stephens based upon any gender-nonconforming behaviors.
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spoke of discrimination against men who wear dresses: After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses5 and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.
Smith, 378 F.3d at 574 (emphasis in original). Second, the cases indicate that Title VII sexstereotyping claims follow the same analytical framework followed in other Title VII cases, including the McDonnell Douglas burden-shifting paradigm. See e.g., Myers, 182 F. App’x at 519.
It is well-established that, at the summary judgment stage, a plaintiff must adduce either direct or circumstantial evidence to proceed with a Title VII claim. Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009); DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004).
The EEOC’s Motion for Summary Judgment asserts that, based on Rost’s testimony, it has direct evidence that the Funeral Home fired Stephens based on sex stereotypes and it is therefore entitled to summary judgment. That appears to be a solid argument, as the “ultimate question” as to the Title VII sex-stereotyping claim is whether the Funeral Home fired Stephens “because of [Stephens’s] failure to conform to sex stereotypes,” Barnes, 401 F.3d at 738, and Rost testified:
Q. Okay. Why did you – what was the specific reason that you terminated Stephens?
A. Well, because he – he was no longer going to represent himself as a man.
5Neither Smith nor Barnes appeared to involve a person who was born male wearing a dress in the workplace. See, e.g., Barnes, 401 F.3d at 738 (noting the plaintiff had a “practice of dressing as a woman outside of work.”).
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He wanted to dress as a woman. . . . .
Q. Did he indicate that he would dress as a woman? A. Yes. Yes. Q. Okay. Is it – the reason you fired him, was it because he claimed that he
was really a woman; is that why you fired him or was it because he claimed – or that he would no longer dress as a man? A. That he would no longer dress as a man. Q. And why was that a problem? A. Well, because we – we have a dress code that is very specific that men will dress as men; in appropriate manner, in a suit and tie that we provide and that women will conform to their dress code that we specify. Q. So hypothetically speaking, if Stephens had told you that he believed that he was a woman, but would only present as a woman outside of work, would you have terminated him? A. No.
(Rost Dep. at 135-37) (emphasis added). Thus, while this Court does not often see cases where
there is direct evidence to support a claim of employment discrimination, it appears to exist here.
The Funeral Home asserts that the EEOC’s motion should be denied, and that summary
judgment should be entered in its favor, based upon two defenses. First, it asserts that its
enforcement of its sex-specific dress code does not constitute impermissible sex stereotyping
under Title VII. Second, the Funeral Home asserts that RFRA prohibits the EEOC from applying
Title VII to force the Funeral Home to violate its sincerely held religious beliefs.6
A. The Court Rejects The Funeral Home’s Sex-Specific Dress-Code Defense.
The Funeral Home argues that its enforcement of its sex-specific dress code cannot
constitute impermissible sex stereotyping under Title VII. It asserts that several courts have
6The EEOC’s Motion, and the ACLU’s brief, both address a First Amendment Free Exercise defense by the Funeral Home. (See, e.g., EEOC’s motion at 13). The Funeral Home, however, did not respond to the arguments concerning that defense because it believes that RFRA provides it more expansive protection. (See D.E. No. 60 at Pg ID 1797, n.4).
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concluded that sex-specific dress codes and grooming policies that impose equal burdens on men and women do not violate Title VII. The Funeral Home essentially asks the Court to rule that its sex-specific dress code operates as a defense to the wrongful termination claim because the Funeral Home’s dress code does not impose an unequal burden on male and female employees. The Funeral Home relies primarily on two cases to support its position: 1) Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc); and 2) Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977).
As explained below, the Court concludes that this defense must be rejected because: 1) the sex-specific dress code cases that the Funeral Home relies on involved claims that challenged an employer’s dress code as violative of Title VII, and this case involves no such claim; 2) the Funeral Home’s argument is based upon a non-binding decision of the Ninth Circuit; 3) the Ninth Circuit decision is divided and the dissent is more in line with the views expressed by the Sixth Circuit as to post-Price Waterhouse sex-stereotyping claims; and 4) the only Sixth Circuit case on dress codes cited by the Funeral Home is from 1977 – a decade before Price Waterhouse was decided.
Unlike the cases that the Funeral Home relies on, as the EEOC and ACLU both note, the EEOC has not asserted any claims in this action based upon the Funeral Home’s dress code policy. That is, the Funeral Home’s sex-specific dress code policy has not been challenged by the EEOC in this action. Rather, the dress code is only being injected because the Funeral Home is using its dress code as a defense to the Title VII sex-stereotyping claim asserted on behalf of Stephens. Indeed, the Funeral Home listed this as an affirmative defense:
The EEOC’s claims are barred by virtue of the fact that the Funeral Home was
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legally justified in any and all acts of which the EEOC complains, including but not limited to the Funeral Home’s right to impose sex-specific dress codes on its employees. (D.E. No. 14 at Pg ID 202). The primary case the Funeral Home relies on is Jespersen. In that case, the Ninth Circuit issued an en banc decision in order to clarify its “circuit law concerning appearance and grooming standards, and to clarify [its] evolving law of sex stereotyping claims.” Jespersen, 444 F.3d at 1105. In that case, the plaintiff was a female bartender who was terminated from her position after she refused to follow the company’s “Personal Best” policy, which required female employees to wear specified make-up7 and prohibited male employees from wearing any makeup. The plaintiff alleged that the policy discriminated against women by: 1) subjecting them to terms and conditions of employment to which men are not similarly subjected; and 2) requiring that women conform to sex-based stereotypes as a term and condition of employment. The majority affirmed the district court’s dismissal of the plaintiff’s claims. In doing so, the majority stated: We agree with the district court and the panel majority that on this record, Jespersen has failed to present evidence sufficient to survive summary judgment on her claim that the policy imposes an unequal burden on women. With respect to sex stereotyping, we hold that appearance standards, including makeup requirements, may well be the subject of a Title VII claim for sexual stereotyping, but that on this record Jespersen has failed to create any triable issue of fact that the challenged policy was part of a policy motivated by sex stereotyping. We therefore affirm. Id. at 1106 (emphasis added). Even though the majority affirmed the district court, it emphasized that it was “not preclud[ing], as a matter of law, a claim of sex-stereotyping on the basis of dress
7Face powder, blush, mascara, and lip color. 23

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or appearance codes. Others may well be filed, and any bases for such claims refined as law in
this area evolves.” Id. at 1113.
Moreover, the dissent lays out a cogent explanation as to why the plaintiff in that case had
a sex-stereotyping claim under Price Waterhouse:
I agree with the majority that appearance standards and grooming policies may be subject to Title VII claims. . . I part ways with the majority, however, inasmuch as I believe that the “Personal Best” program was part of a policy motivated by sex stereotyping and that Jespersen’s termination for failing to comply with the program’s requirements was “because of” her sex. Accordingly, I dissent from Part III of the majority opinion and from the judgment of the court.
Jespersen’s evidence showed that Harrah’s fired her because she did not comply with a grooming policy that imposed a facial uniform (full makeup) on only female bartenders. Harrah’s stringent “Personal Best” policy required female beverage servers to wear foundation, blush, mascara, and lip color, and to ensure that lip color was on at all times. Jespersen and her female colleagues were required to meet with professional image consultants who in turn created a facial template for each woman. Jespersen was required not simply to wear makeup; in addition, the consultants dictated where and how the makeup had to be applied. Quite simply, her termination for failing to comply with a grooming policy that imposed a facial uniform on only female bartenders is discrimination “because of” sex. Such discrimination is clearly and unambiguously impermissible under Title VII, which requires that “gender must be irrelevant to employment decisions.” Price Waterhouse v. Hopkins, 490 U.S. 228, 240, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion) (emphasis added).
Jespersen, 444 F.3d at 1113-14. The dissent noted that “Price Waterhouse recognizes that
gender discrimination may manifest itself in stereotypical notions as to how women should dress
and present themselves” and cited the Sixth Circuit’s decision in Smith, wherein it had stated
“[a]fter Price Waterhouse, an employer who discriminates against women because, for instance,
they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination
would not occur but for the victim’s sex.” Jespersen, 444 F.3d at 1115 (quoting Smith, supra).
The dissent further stated, “I believe that the fact that Harrah’s designed and promoted a policy
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that required women to conform to a sex stereotype by wearing full makeup is sufficient ‘direct evidence’ of discrimination.” Id. The dissent concluded that the plaintiff presented a “classic case” of Price Waterhouse discrimination. Id. at 1116.
The Funeral Home has not directed the Court to any cases wherein the Sixth Circuit has endorsed the majority view in Jespersen. And the only Sixth Circuit dress-code case that it cites is from 1977 – a decade before Price Waterhouse was decided.
In pre-Price Waterhouse decisions, dating back to the 1970’s, other circuits have held that employer personal appearance codes with differing requirements for men and women do not violate Title VII as long as there is “some justification in commonly accepted social norms and are reasonably related to the employer’s business needs.” Carroll v. Talman Fed. Savings & Loan, 604 F.2d 1028, 1032 (7th Cir. 1979); see also Fountain v. Safeway Stores, Inc., 555 F.2d 753, 755 (9th Cir. 1977) (“regulations promulgated by employers which require male employees to conform to different grooming and dress standards than female employees is not sex discrimination within the meaning of Title VII.”). In Barker v. Taft Broadcasting, Co., 549 F.2d 400 (6th Cir. 1977), a majority of a Sixth Circuit panel expressed a similar view, ruling that an employer’s grooming code that required a shorter hair length for men than women did not violate Title VII, while the dissent concluded that a Title VII claim was stated.
But the Sixth Circuit has not provided any post-Price Waterhouse guidance as to whether sex-specific dress codes, that have slightly differing clothing requirements for men and women, either violate Title VII or provide a defense to a sex stereotyping claim. This evolving area of the law – how to reconcile this previous line of authority regarding sex-specific dress/grooming codes with the more recent sex/gender-stereotyping theory of sex discrimination under Title VII
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– has not been addressed by the Sixth Circuit. Lacking such guidance, this Court finds that the dissent in Jespersen appears more in line
with the post-Price Waterhouse views that have been expressed by the Sixth Circuit. This is illustrated by a comparison of the majority’s ruling in Jespersen to the portion of the Sixth Circuit’s decision in Smith that was quoted by the dissent in Jespersen:

The majority in Jespersen upheld the dismissal of a sex discrimination claim where the female plaintiff was terminated for not complying with a policy that required women (but not men) to wear makeup.

“After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.” Smith, supra, at 1115.

It appears unlikely that the Smith court would allow an employer like the employer in Jespersen to avoid liability for a Title VII sex-stereotyping claim simply by virtue of having put its genderbased stereotypes into a formal policy.
Accordingly, for all of these reasons, the Court rejects the Funeral Home’s sex-specific dress code defense to the Title VII sex-stereotyping claim asserted on behalf of Stephens in this case.
B. The Funeral Home Is Entitled To A RFRA Exemption Under The Unique Facts And Circumstances Presented Here.
The Funeral Home also argues that the Religious Freedom Restoration Act of 1993 (“RFRA”) prohibits the EEOC from applying Title VII to force the Funeral Home to violate its sincerely held religious beliefs. It asserts this defense on the heels of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).
“Congress enacted RFRA in 1993 in order to provide very broad protection for religious

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liberty. RFRA’s enactment came three years after” the Supreme Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), “which largely repudiated the method of analyzing free-exercise claims that had been used” in cases such as Sherbert v. Verner and Wisconsin v. Yoder. Hobby Lobby, 134 S.Ct. 2760. In short, in Smith, the Supreme Court rejected the previous balancing test set forth in Sherbert and “held that, under the First Amendment, ‘neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.’” Id.
“Congress responded to Smith by enacting RFRA.” Hobby Lobby, 134 S.Ct. at 2761. “RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§ 2000bb–1(a), (b) (emphasis added). The majority in Hobby Lobby further held:
“[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. § 2000bb(a)(2); see also § 2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” § 2000bb–1(a). If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” § 2000bb–1(b). Id. at 2761. One of the stated purposes of RFRA is to provide a “defense to persons whose religious
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exercise is substantially burdened by the government.” 42 U.S.C. § 2000bb(b)(2). RFRA provides that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding.” 42 U.S.C. § 2000bb-1(c) (emphasis added).
By its terms, RFRA “applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” 42 U.S.C. § 2000bb-3(a) (emphasis added).
1. The Funeral Home Is Entitled To Protection Under RFRA And RFRA Applies To The EEOC, A Federal Agency.
The majority in Hobby Lobby concluded that a for-profit corporation is considered a “person” for purposes of RFRA protection. Hobby Lobby, 134 S.Ct. at 2768-69. The Funeral Home, a for-profit, closely-held corporation, is therefore entitled to protection under RFRA.
RFRA applies to the “government,” which is defined to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” 42 U.S.C. § 2000bb–2(1) (emphasis added). On its face, the statute applies to the EEOC, a federal agency, and the EEOC has not argued otherwise.
2. The Funeral Home Has Met Its Initial Burden Of Establishing That Compliance With Title VII “Substantially Burdens” Its Exercise Of Religion.
If RFRA applies in this case, then the Court “must next ask” whether the law at issue “substantially burdens” the Funeral Home’s exercise of religion. Hobby Lobby, 134 S.Ct. at 2775. “Whether a government action substantially burdens a plaintiff’s religious exercise is a question of law for a court to decide.” Singh v. McHugh, __ F. Supp.3d __, 2016 WL 2770874 at
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*5 (D.C. Cir. 2016). As the challenging party, the Funeral Home has the initial burden of showing a
substantial burden on its exercise of religion. For purposes of RFRA, “exercise of religion” includes “any exercise of religion, whether or not compelled by, or central to, a system of religious beliefs.” Hobby Lobby, 134 S.Ct. at 2762.
Moreover, the majority in Hobby Lobby explained that the “question that RFRA presents” is whether the law at issue “imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs.”8 Hobby Lobby, 134 S.Ct. at 2778 (emphasis in original). Thus, the question becomes whether the law at issue here, Title VII and the body of sex-stereotyping case law that has developed under it, imposes a substantial burden on the ability of the Funeral Home to conduct business in accordance with its religious beliefs. The Court concludes that the Funeral Home has shown that it does.
Rost has been a Christian for over sixty-five years. The Funeral Home’s mission statement is published on its website, which reads “R.G. & G.R. Harris Funeral Homes recognize that its highest priority is to honor God in all that we do as a company and as individuals. With respect, dignity, and personal attention, our team of caring professionals strive to exceed expectations, offering options and assistance designed to facilitate healing and wholeness in serving the personal needs of family and friends as they experience a loss of life.” (Smts. B at ¶ 21).
8The EEOC’s brief asserts that RFRA protects only specific religious activities, not beliefs, and that the Funeral Home is still able to engage in its limited religious activities, like the placing of devotional cards in the funeral homes. The EEOC’s limited view is not supported by the majority opinion in Hobby Lobby.
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Rost believes that God has called him to serve grieving people and that his purpose in life is to minister to the grieving, and his religious faith compels him to do that important work. (Stmts. B. at ¶ 31). Rost believes that the “Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her Godgiven sex.” (Stmt. B at ¶ 28).
The EEOC attempts to cast the Funeral Home as asserting that it would only be substantially burdened if it were required to provide female work clothing to Stephens. (D.E. 63 at Pg ID 1935). The Funeral Home’s position is not so limited.
Rost believes “that the Bible teaches that God creates people male or female.” (Id. at ¶ 41). He believes that “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex.” (Id. at ¶ 42). Rost believes that he “would be violating God’s commands” if he were to permit one of the Funeral Home’s funeral directors “to deny their sex while acting as a representative of [the Funeral Home]. This would violate God’s commands because, among other reasons, [Rost] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” (Id. at ¶ 43). Rost believes that “the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman.” (Id. at ¶ 44). Rost believes that he “would be violating God’s commands” if he were to permit one of the Funeral Home’s biologically-male-born funeral directors to wear the skirt-suit uniform for female directors while at work, because Rost “would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” (Id. at ¶ 45).
Such beliefs implicate questions of religion and moral philosophy. Hobby Lobby, 134
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S.Ct. at 2779. 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.” Hobby Lobby, 134 S.Ct. at 2779. 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.
Notably, the EEOC concedes that the Funeral Home’s religious beliefs are sincerely held. (See D.E. No. 51 at Pg ID 596 & 612, “The Commission does not contest Defendant’s religious sincerity.”).
The Court finds that the Funeral Home has shown that the burden is “substantial.” Rost has a sincere religious belief 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 one of his funeral homes because doing so would support the idea that sex is a changeable social construct rather than an immutable God-given gift. Rost objects on religious grounds to: 1) being compelled to provide a skirt to an employee who was born a biological male; and 2) being compelled to allow an employee who was born a biological male to wear a skirt while working as a funeral director for his business. To enforce Title VII (and the sex stereotyping body of case law that has developed under it) by requiring the Funeral Home to provide a skirt to and/or allow an employee born a biological male to wear a skirt at work would impose a substantial burden on the ability of Rost to conduct his business in accordance with his sincerely-held religious beliefs.
If Rost and the Funeral Home do not yield to Title VII and the body of sex stereotyping
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case law under it, the economic consequences for the Funeral Home could be severe – having to pay back and front pay to Stephens in connection with this case.
Moreover, Rost testified that if he “were forced as the owner of [the Funeral Home] to violate [his] sincerely held religious beliefs by paying for or otherwise permitting one of [his] employees to dress inconsistent with his or her biological sex, [Rost] would feel significant pressure to sell [the] business and give up [his] life’s calling of ministering to grieving people as a funeral home director and owner.” (Rost Aff. at ¶ 48).
The Court concludes 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 the ability of the Funeral Home to conduct business in accordance with its sincerely-held religious beliefs.
3. The Funeral Home Is Entitled To An Exemption Unless The EEOC Meets Its Demanding Two-Part Burden.
Once a claimant demonstrates a substantial burden to his religious exercise, that person “is entitled to an exemption from” the law unless the Government can meet its burden of showing that application of the burden “to the person:” 1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest. Hobby Lobby, 134 S.Ct. at 2761.
The Supreme Court has described the dual justificatory burdens imposed on the government by RFRA as “the most demanding test known to constitutional law.” City of Boerne v. P.F. Flores, 117 S.Ct. 2157, 2171 (1997).
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a. The Court Assumes, Without Deciding, That The EEOC Has Met Its Compelling Governmental Interest Burden.
The EEOC appears to take the position that RFRA can never succeed as a defense to a Title VII claim or that Title VII will always be presumed to serve a compelling governmental interest and be narrowly tailored for purposes of a RFRA analysis. (See D.E. No. 63 at Pg ID 1899, asserting that RFRA “does not protect employers from the mandates of Title VII” and D.E. No. 51 at Pg ID 628, asserting that the majority in Hobby Lobby “suggested in a colloquy” with the principal dissent “that Title VII serves a compelling governmental interest which cannot be overridden by RFRA.”) (emphasis added).
The majority did reference employment discrimination, in discounting the dissent’s concern that the majority’s ruling may lead to widespread discrimination cloaked in religion, stating:
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 2804 – 2805. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. Hobby Lobby, 134 S.Ct. at 2784. This Court does not read that paragraph as indicating that a RFRA defense can never prevail as a defense to Title VII or that Title VII is exempt from the focused analysis set forth by the majority. If that were the case, the majority would presumably have said so. It did not. Moreover, the majority stated “[t]he dissent worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally
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applicable laws, and the dissent expresses a desire to keep the courts out of this business” but
noted that it was Congress that enacted RFRA and explained “[t]he wisdom of Congress’s
judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written.”
Id. at 2784-85.9
And the dissent surely does not read the majority opinion as exempting Title VII (or other
generally-applicable anti-discrimination laws) from a RFRA defense or the focused analysis set
forth in the majority opinion:
Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F.Supp. 941, 945 (D.S.C. 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff'd in relevant part and rev’d in part on other grounds, 377 F.2d 433 (C.A.4 1967), aff’d and modified on other grounds, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); In re Minnesota ex rel. McClure, 370 N.W.2d 844, 847 (Minn.1985) (born-again Christians who owned closely held, for-profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U.S. 1015, 106 S.Ct. 3315, 92 L.Ed.2d 730 (1986); Elane Photography, LLC v. Willock, 2013–NMSC–040, ––– N.M. ––––, 309 P.3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U.S. ––––, 134 S.Ct. 1787, 188 L.Ed.2d 757 (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine ... the plausibility of a religious claim”? Ante, at 2778.
Id. at 2804-05.
9The same is true of this Court.
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Without any authority to indicate that Title VII is exempted from the analysis set forth in Hobby Lobby, this Court concludes that it must be applied here. See also Holt v. Hobbs, 135 S. Ct. 853, 858 (2015) (discussing, in a RLUIPA case, how the lower court believed it was somehow bound to defer to the Department of Correction’s security policy as a compelling interest that is narrowly tailored and explaining that the statute “does not permit such unquestioning deference. RLUIPA, like RFRA, ‘makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.’”) (emphasis added).
The majority in Hobby Lobby instructed that when determining whether a challenged law serves a compelling interest, it is not sufficient to use “very broad terms,” such as “promoting” “gender equality.” Hobby Lobby, 134 S.Ct. at 2779. That is because “RFRA contemplates a ‘more focused inquiry: It ‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. (citations omitted) (emphasis added). This is critical because it means the Government’s showing must focus on justification of the particular person burdened – here, the Funeral Home. In other words, even if the Government can show that the law is in furtherance of a generalized or broad compelling interest, it must still demonstrate the compelling interest is satisfied through application of the law to the Funeral Home under the facts of this case.
The majority in Hobby Lobby held that this requires this Court to scrutinize “the asserted harm of granting specific exemptions to [the] particular religious claimant” and “look to the marginal interest in enforcing” the challenged law in this particular context. Hobby Lobby, 134
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S.Ct. at 2779. The majority in Hobby Lobby, however, assumed without deciding that the requisite “to the person” compelling interest existed. Thus, it did not provide any real guidance for how to go about doing that. As the principal dissent noted, the majority opinion provides “[n]ot much help” for “the lower courts bound by” it. Id. at 2804.
Here, in response to the Funeral Home’s motion, the EEOC very broadly asserts that “Congress’s mandate to eliminate workplace discrimination” is the compelling governmental interest that warrants burdening the Funeral Home’s exercise of religion. (D.E. No. 63 at Pg ID 1934). In the section of its own motion that deals with the government’s burden, the EEOC more specifically asserts that Title VII’s prohibitions against sex discrimination establish that the government has a compelling interest in protecting employees from gender stereotyping in the workplace. (D.E. No. 51 at Pg ID 629).
The Court fails to see how the EEOC has met its requisite “to the person”-focused showing here. But this Court is also at a loss for how this Court is supposed to scrutinize “the asserted harm of granting specific exemptions to [the] particular religious claimant” and “look to the marginal interest in enforcing” the challenged law in this particular context. Hobby Lobby, 134 S.Ct. at 2779. This Court will therefore assume without deciding that the EEOC has met its first burden and proceed to the least restrictive means burden.
b. The EEOC Has Failed To Meet Its Burden Of Showing That Application Of The Burden On The Funeral Home, Under The Facts Presented Here, Is The Least Restrictive Means Of Furthering The Compelling Governmental Interest Of Protecting Employees From Gender Stereotyping In The Workplace.
If the EEOC meets its burden regarding showing a compelling interest, then the Court
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must determine if the EEOC has met its additional, and separate, burden of showing that application of the burden “to the person” is the least restrictive means of furthering that compelling governmental interest. Hobby Lobby, 134 S.Ct. at 2761.
The “least-restrictive means standard is exceptionally demanding.” Hobby Lobby, 134 S.Ct. at 2780. That standard requires the government to “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Id. at 2780.
If a less restrictive means is available for the government to achieve the goal, the government must use it. Holt v. Hobbs, 135 S.Ct. 853, 864 (2015). As another district court within the Sixth Circuit has explained, “[t]his ‘exceptionally demanding’ standard, Burwell, 134 S.Ct. at 2780, begs for the Government to show a degree of situational flexibility, creativity, and accommodation when putative interests clash with religious exercise.” United States v. Girod, __ F. Supp.3d __, 2015 WL 10031958 at *8 (E.D. Ky. 2015) (emphasis added).
Again, it is the EEOC that has the burden of showing that enforcement of the religious burden on the Funeral Home is the least restrictive means of furthering its compelling interest of protecting employees from gender stereotyping in the workplace.
As to this burden, the EEOC’s position is stated in: 1) a page and a half in its own motion (D.E. No. 51 at Pg ID 629-30); and 2) two paragraphs that respond to the Funeral Home’s motion. (D.E. No. 63 at Pg ID 1939). Essentially, the EEOC asserts, in a conclusory fashion, that Title VII is narrowly tailored:
Title VII’s prohibitions against sex discrimination in the workplace demonstrate that the government has a compelling interest in protecting employees from losing their jobs on the basis of an employer’s gender stereotyping, and they are precisely
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tailored to ensure this. (D.E. No. 51 at Pg ID 629).10
Thus, the EEOC has not provided a focused “to the person” analysis of how the burden on the Funeral Home’s religious exercise is the least restrictive means of eliminating clothing11
gender stereotypes at the Funeral Home under the facts and circumstances presented here.
The Funeral Home argues that “the EEOC does not even attempt to explain” how
requiring the Funeral Home to allow a funeral director who was born a biological male to wear a
skirt-suit to work could be found to satisfy RFRA’s least-restrictive means requirement. (D.E. No. 60 at Pg ID 1797).12
Indeed, the EEOC’s briefs do not contain any discussion to indicate that the EEOC has
ever (in either the administrative proceedings or during the course of this litigation) explored the
possibility of any solutions or potential accommodations that might work under the unique facts
10The Sixth Circuit could conclude, on appeal, that the more focused analysis set forth in Hobby Lobby should not apply in a Title VII case. There is no existing authority to support such a position and it is not this Court’s role to create such an exception.
11Again, because the parties have confined their claims, defenses, and analysis to work place clothing, and have not discussed hair styles or makeup, this Court also confines its analysis to clothing.
12Although it is not its burden, the Funeral Home asserts that “[a] number of available alternatives” could allow the government to achieve its stated goal without violating the Funeral Home’s religious rights. In response to those least-restrictive-means arguments, the EEOC states that the Funeral Home never proposed that Stephens could continue to dress in “men’s clothing” while at work, but could dress in “female clothing” outside of work, prior to Rost’s deposition. (D.E. No. 63 at 1924). The EEOC further asserts that the Funeral Home was “free to offer counter-proposals” but failed to do so. (D.E. No. 69 at Pg ID 2131). Such arguments overlook that it is the EEOC’s burden to establish that enforcement of the burden on the Funeral Home is the least restrictive means of furthering its compelling interest under the facts presented here.
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and circumstances presented here. As a practical matter, the EEOC likely did not do so because it has been proceeding as if gender identity or transgender status is a protected class under Title VII,13 taking the approach that the Funeral Home cannot prohibit Stephens from dressing as a female, in order to express her female gender identity. This is one of the first two cases that the EEOC has ever brought on behalf of a transgender person.14 The EEOC appears to have taken the position that the only acceptable solution would be for the Funeral Home to allow Stephens to wear a skirt while working as a funeral director at the Funeral Home in order to express Stephens’s female gender identity. (See, e.g., D.E. No. 69 at Pg ID, arguing that the Funeral Home cannot require that “an employee dress inconsistently with his or her gender identity;” D.E. No. 63 at Pg ID 1923, arguing that “Defendant’s insistence that Stephens wear men’s clothing at work, despite knowledge that [Stephens] now identifies as female,” violates Title VII; D.E. No. 63 at Pg ID 1927, stating that Stephens would present according to the dress code for females; D.E. No. 63 at Pg ID 1936-37, arguing that the Funeral Home having to provide “female clothing to Stephens” would not impose a substantial burden because doing so would not be unduly costly.).
Understanding the narrow context of the discrimination claim stated in this case is important. The wrongful discharge claim in this case is brought under a very specific theory of
13See, e.g., EEOC Determination, finding reasonable cause to believe that charging party was discharged due to sex and “gender identity” (D.E. No. 63-4); Amended Complaint (D.E. No. 21 at Pg ID 244-45), alleging that the Funeral Home discharged Stephens “because Stephens is transgender,” and “because of Stephens’s transition from male to female.”
14See, e.g., EEOC’s 9/25/14 Press Release (stating that this “Lawsuit is One of Two the Agency Filed Today – the First Suits in its History – Challenging Transgender Discrimination Under 1964 Civil Rights Act.”).
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sex discrimination under Title VII. The EEOC’s claim on behalf of Stephens is brought under a Price Waterhouse sex/gender stereotyping theory. Price Waterhouse recognized that sex discrimination may manifest itself in stereotypical notions as to how women and men should dress and present themselves in the workplace.
As the Supreme Court recognized in Price Waterhouse, the intent behind Title VII’s inclusion of sex as a protected class expressed “Congress’ intent to forbid employers to take gender into account” in the employment context. Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989). The goal of the sex-stereotyping theory of sex discrimination is that “gender” “be irrelevant” with respect to the terms and conditions of employment and to employment decisions. Id. (emphasis added).
Significantly, neither transgender status nor gender identity are protected classes under Title VII. 15 The only reason that the EEOC can pursue a Title VII claim on behalf of Stephens in this case is under the theory that the Funeral Home discriminated against Stephens because Stephens failed to conform to the “masculine gender stereotypes that Rost expected” in terms of the clothing Stephens would wear at work. The EEOC asserts that Stephens has a “Title VII right not to be subject to gender stereotypes in the workplace.” (D.E. No. 51 at Pg ID 607) (emphasis added).
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 male employees to wear a suit with pants and a neck tie, in this action. If the EEOC were truly interested in eliminating gender
15Congress can change that by amending Title VII. It is not this Court’s role to create new protected classes under Title VII.
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stereotypes as to clothing in the workplace, it presumably would have attempted to do so. Rather than challenge the sex-specific dress code, the EEOC takes the position that
Stephens has the right, under Title VII, to “dress as a woman” or wear “female clothing”16 while working at the Funeral Home. That is, the EEOC wants Stephens to be permitted to dress in a stereotypical feminine manner (wearing a skirt-suit), in order to express Stephens’s gender identity.
If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home,17 couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here?18 Both women and men wear professional-looking pants and pants-suits in the workplace in this country, and do so across virtually all professions.
The following deposition testimony from Rost supports that such an accommodation could be a less restrictive means of furthering the goal of eliminating sex stereotypes as to the clothing worn at the Funeral Home:
Q. Now, do you currently have any female funeral directors?
16This is the language used by the parties. (See, e.g., D.E. No. 21 at Pg ID 244; D.E. No. 63 at 1935; D.E. No. 59 at Pg ID 1749).
17Rost’s Affidavit states that he would not dismiss Stephens or other employees if they dressed as members of the opposite sex while outside of work. (Rost Affidavit at ¶¶ 50-51). Rost also so testified. (See Rost Dep., D.E. No. 54-5 at Pg ID 1372).
18Similar to the gender-neutral pants, business suit jackets, and white shirts that the male and female Court Security Officers in this building wear.
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A. I do not. Q. If you did have a female funeral director, what would describe what her
uniform would be or what she would be required to wear? MR. PRICE: Objection, speculation. But go ahead. THE WITNESS: She would have a dark jacket and a dark skirt, matching. Matching. BY MR. KIRKPATRICK: Q. Okay. A skirt. So just like the male funeral director she would have a business suit, but a female business suit? A. Yes. Q. As a skirt? A. Yes. . . . . Q. Okay. Why do you have a dress code? A. Well, we have a dress code because it allows us to make sure that our staff – is dressed in a professional manner that’s acceptable to the families that we serve, and that is understood by the community atlarge what these individuals would look like. Q. Is that based on the specific profession that you’re in? A. It is. Q. And again, tell us why it fits into the specific profession that you’re in that you have a dress code? A. Well, it’s just the funeral profession in general, if you went to all funeral homes, would have pretty much the same look. Men would be in a dark suit, white shirt and a tie and women would be appropriately attired in a professional manner. . . . . Q. Okay. Now, have you been to funeral homes where there have been women wearing businesslike pants before? A. I believe I have. Q. Okay. So, the fact that you require women to wear skirts is something that you prefer, it’s not necessarily an industry requirement? A. That’s correct. Q. Okay. But women could look businesslike and appropriate in pants, correct? A. They could.
(D.E. No. 63-11 at Pg ID 1999-2000; see also Rost Dep., D.E. 54-11 at Pg ID 1423, wherein
Rost testified that female employees at the Funeral Home’s Detroit location sometimes wear
pants with a jacket to work). In addition, Stephens testified:
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Q. Okay. Did you have a uniform or a dress code that you had to follow while with R.G. & G.R. Funeral Home?
A. They bought suits. Q. Okay. A. I wore it. Q. So they being the company, bought you a suit or suits? A. Yes. Q. Were they male suits? A. I would assume they were. Q. Okay. A. I guess a female could have dressed in them.
(Stephens’s Dep., D.E. No. 54-15 at Pg ID 1453).19
But the EEOC has not even discussed the possibility of any such accommodation or less
restrictive means as applied to this case.20 Rather, the EEOC takes the position that Stephens
must be allowed to wear a skirt-suit in order to express Stephens’s female gender identity. That
is, the EEOC wants Stephens to be able to dress in a stereotypical feminine manner. 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 manner of
enforcement in this action (insisting that Stephens be permitted to dress in a stereotypical
feminine manner at work) does not accomplish that goal.
This Court concludes that the EEOC has not met its demanding burden. As a result, the
19The Court notes that Rost’s affidavit appears to indicate that he would be opposed to allowing a funeral director who was born a biological female to wear a male funeral director uniform (which consists of a pant-suit with a neck tie) while at work. (Rost Aff. at ¶ 45). Notably, however, Rost has already allowed female employees to wear a pants-suit to work without a neck tie.
20This potential accommodation or least restrictive means of requiring a gender-neutral uniform may actually be consistent with what the EEOC proposed in the administrative proceedings. (See D.E. No. 74-1 at Pg ID 2171, proposing that the Funeral Home reinstate Stephens and agree to “implement a Dress Code policy that affords equivalent consideration to all sexes with respect to uniform requirements and allowance/benefits.”) (emphasis added).
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Funeral Home is entitled to a RFRA exemption from Title VII, and the body of sex-stereotyping case law that has developed under it, under the facts and circumstances of this unique case.
In its amicus brief, the ACLU asserts that the implications of allowing a RFRA exemption to the Funeral Home in this case “are staggering” and essentially restates the HobbyLobby principal dissenting opinion’s fears about the impact of the majority’s decision on employment discrimination and other laws. (See D.E. No. 59 at Pg ID 1767). This Court is bound by the majority opinion in Hobby Lobby and it makes clear that RFRA exemptions are considered on a case-by-case basis.
Moreover, in General Conf. of Seventh-Day Adventists, 617 F.3d 402 (6th Cir. 2010), the Sixth Circuit held, as a matter of first impression, that a RFRA defense does not apply in a suit between private parties.21 The Seventh Circuit has also so ruled. See Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 736-37 (7th Cir. 2015). In the vast majority of Title VII employment discrimination cases, the case is brought by the employee, not the EEOC. Accordingly, at least in the Sixth and Seventh Circuits, it appears that there cannot be a RFRA defense in a Title VII case brought by an employee against a private22 employer because that would be a case between private parties. See, e.g., Mathis v. Christian Heating and Air Conditioning, Inc., 2016 WL 304766 (E.D. PA 2016) (district court ruled, in Title VII case
21The ACLU noted this ruling in a footnote in its brief. (D.E. No. 59 at Pg ID 1761). None of the parties addressed how that ruling by the Sixth Circuit, as a practical matter, appears to prohibit a RFRA defense in a Title VII case brought by an employee against a private employer.
22In Title VII cases brought by an employee against a governmental employer, such as the United States Postal Service, there could not be a RFRA defense because the United States federal government does not hold religious views.
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brought by employee against private employer, that a RFRA defense is not available “because RFRA protects individuals only from the federal government’s burden on the free exercise of religion.”).23 II. Title VII Discriminatory Clothing Allowance Claim
As the second claim in this action, the EEOC alleges that the Funeral Home has violated Title VII by providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees. (Am. Compl. at ¶¶ 15 & 17). The EEOC asserts that the effect of the Funeral Home’s unlawful practice “has been to deprive a class of female employees of equal employment opportunities and otherwise adversely affect their status as employees because of their sex.” (Id. at ¶ 18). The EEOC alleges that “[s]ince at least September 13, 2011,” the Funeral Home has provided a clothing allowance to male employees but not female employees. (Am. Compl. at ¶ 12).
In the pending motions, each party contends that it is entitled to summary judgment as to this claim. Before reaching the merits of the second claim, however, the Court must address the Funeral Home’s assertion that the EEOC lacks the authority to bring the second claim in this action.
A. Under Bailey, The EEOC Cannot Bring The Second Claim In This Action. Relying on EEOC v. Bailey, 563 F.2d 439 (6th Cir. 1977), the Funeral Home notes that the EEOC may include in a Title VII suit only claims that fall within an “investigation reasonably
23This Court recognizes that this appears to produce an odd result. Under existing Sixth Circuit precedent, the Funeral Home could not assert a RFRA defense if Stephens had filed a Title VII suit on Stephens’s own behalf because no federal agency would be a party to the case. But, because this is one of those rare instances where the EEOC (a federal agency) chose to bring suit on behalf of an individual, a RFRA defense can be asserted.
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expected to grow out of the charge of discrimination.” (D.E. No. 54 at Pg ID 1317). The Funeral Home asserts that, under Bailey, a claim falls outside that scope if: 1) the claim is unrelated to the charging party; and 2) it involves discrimination of a kind other than raised by the charging party. It asserts that those considerations show that the EEOC’s clothing allowance claim does not result from an investigation reasonably expected to grow out of Stephens’s EEOC charge. In making this argument, the Funeral Home states that the clothing allowance claim on behalf of a class of women is unrelated to Stephens – who received and accepted the clothing provided by the Funeral Home at all relevant times. The Funeral Home asserts that the clothing allowance claim alleges discrimination of a kind other than that raised by Stephens, wrongful discharge. In support of that proposition, it directs the Court to Nelson v. Gen. Elect. Co., 2 F. App’x 425, 428 (6th Cir. 2001).
In response, the EEOC does not dispute that Bailey is good law. Rather, it attempts to distinguish this case from Bailey. (D.E. No. 63 at Pg ID 1942-43). It asserts that the situation here is more akin to EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205 (6th Cir. 1979). That was a two-page per curiam decision that “involve[d] the scope of the investigatory and subpoena power of the EEOC.” Id. at 205. It did not address the issue that the Court is presented with here. The EEOC does not direct the Court to any other Sixth Circuit authority regarding this challenge.
In Bailey, the underlying charge of discrimination that had triggered the investigation of the employer’s employment practices was filed by a white female employee who alleged sex discrimination against women and race discrimination against black women. Bailey, 563 F.2d at 441 & 445. The EEOC later brought suit against the employer alleging racial and religious
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discrimination. The district court held that the employee’s charge of discrimination could not
support the EEOC’s lawsuit and dismissed it.
On appeal, the Sixth Circuit affirmed the dismissal of the religious discrimination charges
but reversed as to the race discrimination charges. The opinion began by providing an overview
of the process that leads to a civil action being filed by the EEOC:
“In the Equal Employment Opportunity Act of 1972 Congress established an integrated, multistep enforcement procedure culminating in the EEOC's authority to bring a civil action in a federal court.” Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 2451, 53 L.Ed.2d 402 (1977). The procedure is triggered when “a person claiming to be aggrieved” or a member of the EEOC files with the EEOC a charge alleging that an employer has engaged in an unlawful employment practice. Such a charge is to be filed within 180 days after the occurrence of the allegedly unlawful practice, and the EEOC is to serve notice of the charge on the employer within ten days of filing and to investigate the charge. s 706(b) of Title VII, 42 U.S.C. s 2000e-5(b). Under s 709(a) of Title VII, 42 U.S.C. s 2000e-8(a), the EEOC may gain access to evidence that is relevant to the charge under investigation, see Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969), and under s 710, 42 U.S.C. s 2000e-9, the EEOC may gain access to evidence that relates to any matter under investigation. The EEOC is then required to determine, “as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge, whether there is reasonable cause to believe the charge is true. s 706(b), 42 U.S.C. s 2000e-5(b). If there is no reasonable cause, the charge must be dismissed and the person claiming to be aggrieved shall be notified. If there is reasonable cause, the EEOC “shall endeavor to eliminate any such unlawful employment practice by informal methods of conference, conciliation, and persuasion.” s 706(b), 42 U.S.C. s 2000e-5(b). When the EEOC is unable to secure a conciliation agreement acceptable to the EEOC, the EEOC may bring a civil action. s 706(f)(1), 42 U.S.C. s 2000e-5(f)(1). See Occidental Life Insurance Co. v. EEOC, supra, 432 U.S. at --, 97 S.Ct. at 2450-2452; Conference Committee Report, Section-by-Section Analysis of H.R. 1746, The Equal Employment Act of 1972, 118 Cong.Rec. 7168-69 (Mar. 6, 1972).
Id. at 445.
The Sixth Circuit agreed with the district court that it did not have jurisdiction over the
allegations of religious discrimination in the EEOC’s lawsuit because the “portion of the EEOC’s
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complaint incorporating allegations of religious discrimination exceeded the scope of the EEOC
investigation [of the employer] reasonably expected to grow out of the charge of discrimination.”
Id. at 446.
The court noted that the “clearly stated rule in this Circuit is that the EEOC’s complaint is
‘limited to the scope of the EEOC’ investigation reasonably expected to grow out of the charge
of discrimination.” Id. at 446 (citations omitted). The court explained that there are two reasons
for that rule:
There are two reasons for the rule that the EEOC complaint is limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination. The first reason is that the rule permits an effective functioning of Title VII when the persons filing complaints are not trained legal technicians. “(T)his Court has recognized that Title VII of the Civil Rights Act of 1964 should not be construed narrowly,” Blue Bell Boots, Inc. v. EEOC, supra, 418 F.2d at 358, and thus adopted the rule because “charges of discrimination filed before the EEOC will generally be filed by lay complainants who are unfamiliar with the niceties of pleading and are acting without the assistance of counsel.” Tipler v. E. I. duPont deNemours & Co., supra, 443 F.2d at 131. Similarly, we stated in McBride v. Delta Air Lines, Inc., supra, 551 F.2d at 115:
Because administrative complaints are filed by completing a form designed to elicit specificity in charges, and because the forms are not legal pleadings and are rarely filed with the advice of legal counsel, any other standard would unreasonably limit subsequent judicial proceedings which Congress has determined are necessary for effective enforcement of the legal standards established by Title VII. See House Report No. 92-238, U.S.Code Cong. and Admin.News, pp. 2141, 2147-48 (1972).
The second reason for limiting the scope of the EEOC complaint to the scope of the EEOC investigation that can be reasonably expected to grow out of the private party’s charge is explained in Sanchez v. Standard Brands, Inc., supra, 431 F.2d at 466.
The logic of this rule is inherent in the statutory scheme of Title VII. A charge of discrimination is not filed as a preliminary to a lawsuit. On the contrary, the purpose of a charge of discrimination
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is to trigger the investigatory and conciliatory procedures of the EEOC. Once a charge has been filed, the Commission carries out its investigatory function and attempts to obtain voluntary compliance with the law. Only if the EEOC fails to achieve voluntary compliance will the matter ever become the subject of court action. Thus it is obvious that the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation. Bailey, 563 F.2d at 446-47. The Sixth Circuit then explained that in light of those two reasons, the allegations of religious discrimination in the EEOC’s complaint could not reasonably be expected to grow out of the plaintiff’s charge. First, the case simply did not involve the “situation in which a lay person has inadequately set forth in the complaint filed with the EEOC the discrimination affecting that person.” Id. at 447. That is because the EEOC’s allegations regarding religious discrimination did not involve practices affecting the plaintiff who filed the EEOC charge. Id. Second, the court concluded that the present case does not involve a situation in which it would be proper, in view of the statutory scheme of Title VII, to permit the lawsuit to include the allegations of religious discrimination. The court explained that “to allow the EEOC, as it did in the present case, to issue a reasonable cause determination, to conciliate, and to sue on allegations of religious discrimination unrelated to the private party’s charge of sex discrimination would result in undue violence to the legal process that Congress established to achieve equal employment opportunities in country.” Id. at 447-448. The Sixth Circuit then held that “[t]he procedure to be followed when instances of discrimination, of a kind other than that raised by a charge filed by an individual party and
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unrelated to the individual party, come to the EEOC’s attention during the course of an
investigation of the private party’s charge is for the filing of a charge by a member of the EEOC
and for a full EEOC investigation of that charge.” Id. at 448. It explained its rationale for
requiring a new charge by the EEOC:
Then the employer is afforded notice of the allegation, an opportunity to participate in a complete investigation of such allegation, and an opportunity to participate in meaningful conciliation discussions should reasonable cause be found following the EEOC investigation. Section 706(b) of Title VII, 42 U.S.C. s 2000e-5(b), provides for the filing of a charge by a member of the EEOC, and under such a filing, an employer will not be stripped of formal notice of the charge and of the opportunity to respond to the EEOC’s inquiry into employment practices with respect to allegations of discrimination unrelated to the individual party's charge. In addition, the filing of a charge will permit settlement discussions to take place pursuant to 29 C.F.R. s 1601.19a5 after a preliminary investigation but before any finding of reasonable cause.
Several reasons support this position. The filing of a charge by a member of the EEOC as urged by this Court should lead to a more focused investigation on the facts of possible discrimination by an employer when that possible discrimination is not related to the individual party’s charge.
Id. Another reason for that position is “the importance of conciliation to Title VII.” Id. at 449.
The court noted that the EEOC’s duty to attempt conciliation is among its “most essential
functions” and explained:
It is our belief that if conciliation is to work properly, charges of discrimination must be fully investigated after the employer receives notice in a charge alleging unlawful discriminatory employment practices. See EEOC v. MacMillan Bloedel Containers, Inc., supra, 503 F.2d at 1092. The requirement that a member of the EEOC file a charge when facts suggesting unlawful discrimination are discovered that are unrelated to the individual party’s charge does serve the purposes of treating the employer fairly and forcing the employer and the EEOC to focus attention during investigation on the facts of such possible discrimination and thereby does serve the goal of obtaining voluntary compliance with Title VII.
Id. at 449. The court rejected the EEOC’s position that “it would be a matter of placing form
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over substance, resulting in the waste of administrative resources and the delay in the enforcement of rights,” to require “a member of the EEOC to file a charge with respect to the allegations of discrimination uncovered in an EEOC investigation which were of a kind not raised by the individual party and which did not affect the individual party.” Id. at 449.
Accordingly, “[i]f an EEOC investigation of an employer uncovers possible unlawful discrimination of a kind not raised by the charging party and not affecting that party, then the employer should be given notice if the EEOC intends to hold the employer accountable before the EEOC and in court.” Id. at 450.
Finally, the court rejected the EEOC’s position that it did not need to file a new charge because the employer received notice of the new alleged discrimination by virtue of having received a reasonable cause determination that included religious discrimination:
We are unable to accept the EEOC’s argument that it was immaterial that appellee received notice and opportunity to comment at the time the EEOC issued its reasonable cause determination and during conciliation rather than before the issuance of the reasonable cause determination. While a court might conclude that the Due Process Clause of the Fifth Amendment was not violated by the procedure followed by the EEOC in the present case, our concern is with the legislative judgment of due process incorporated into the specific statutory scheme of Title VII. Evidence of that legislative intent indicates a concern for fair treatment of employers. Id. at 450. As was the situation in Bailey, the EEOC investigation here uncovered possible unlawful discrimination: 1) of a kind not raised by the charging party (Stephens); and 2) not affecting Stephens. As such, under Bailey, the proper procedure is for the filing of a charge by a member of the EEOC and for a full EEOC investigation of that charge.
51

2:14-cv-13710-SFC-DRG Doc # 76 Filed 08/18/16 Pg 52 of 56 Pg ID 2230
1. The Discrimination Is Of A Kind Not Raised By Stephens In The EEOC Charge.
The Court concludes that the second discrimination claim alleged in this action is “of a kind not raised by the charging party,” Stephens.
Again, the rule in this Circuit is that the EEOC’s complaint is limited to the scope of the EEOC’s investigation reasonably expected to grow out of the charge of discrimination. “The relevant inquiry is the scope of the investigation that the EEOC charge would have reasonably prompted.” EEOC v. Wal-Mart Stores, Inc., 2010 WL 567316 at * 2 (6th Cir. 2010) (emphasis added). Thus, the court looks to the EEOC charge itself. See, eg., Nelson v. General Elec. Co., 2 F. App’x 425, 428 (6th Cir. 2001).
In Nelson, the court looked to the EEOC charge, noting that the plaintiff’s charge alleged just two discriminatory actions, that the plaintiff was given a bad performance evaluation and was laid off, because of her race and gender, and in retaliation for having complained about race discrimination. Moreover, that EEOC charge expressly confined the charged discrimination to the time period between March 30 and September 22 of 1995. After the EEOC administrative process concluded, the plaintiff filed a complaint that included that her employer failed to promote her because of her race and gender. The district court concluded that the scope of the investigation reasonably expected to grow out of her EEOC charge would not include failure to promote claims. The Sixth Circuit affirmed.
Here, the EEOC charge filed by Stephens checked the box for “sex” discrimination and indicated that the discrimination took place from July 31, 2013 to August 15, 2013 – a two week period in 2013. (D.E. No. 54-22 at Pg ID 1497). The charge stated “the particulars” of the
52

2:14-cv-13710-SFC-DRG Doc # 76 Filed 08/18/16 Pg 53 of 56 Pg ID 2231
claimed sex discrimination Stephens experienced as follows: I began working for the above-named employer on 01 October 2007; I was last employed as a Funeral Director/Embalmer. On or about 31 July 2013, I notified management that I would be undergoing gender transitioning and that on 26 August 2013, I would return to work as my true self, a female. On 15 August 2013, my employment was terminated. The only explanation I was given was that management did not believe the public would be accepting of my transition. Moreover, during my entire employment I know there are no other female Funeral Directors/Embalmers. I can only conclude that I have been discharged due to my sex and gender identity, female, in violation of Title VII of the Civil Rights Act of 1964, as amended.
(Id.). Thus, Stephens alleged just one discriminatory action – termination – that occurred
during a two-week period in 2013. The charge alleged that Stephens alone, who was undergoing a gender transition, was fired due to Stephens’s gender identity and the Funeral Home’s beliefs as to the public’s acceptance of Stephens’s transition. Even though the Funeral Home later asserted, during the administrative proceeding, its dress code as a defense to the alleged discriminatory termination, the EEOC charge itself mentioned nothing about clothing, a clothing allowance, or a dress code. Thus, this Court fails to see how Stephens’s EEOC charge would reasonably lead to an investigation of whether or not the Funeral Home has provided its male employees with clothing that was not provided to females since September of 2011.24 Nelson, supra; see also EEOC v. Wal-Mart Stores, Inc., supra, at * 2 (noting “this is not a case where the
24The EEOC attempts to characterize the clothing allowance claim as the same type of discrimination in Stephens’s EEOC charge because it is alleged sex/gender discrimination. By that logic, the plaintiff in Nelson would have been found to have alleged the same type of discrimination (race and gender) even though her EEOC charge did not allege any failure to promote claims. That was not the case.
53

2:14-cv-13710-SFC-DRG Doc # 76 Filed 08/18/16 Pg 54 of 56 Pg ID 2232
civil complaint alleges different kinds of discriminatory acts than the initial EEOC complaint,” as was the case in Nelson.)
2. The Alleged Clothing Discrimination Claim Does Not Involve Stephens.
In addition, this is not a case wherein Stephens has a claim for the alleged discriminatory clothing allowance, but inadequately set forth that claim in the EEOC charge by virtue of being a lay person. Bailey, 563 F.2d at 447.
Stephens is not included in the class of females who were allegedly discriminated against by the Funeral Home by virtue of not having received clothing that was provided to male employees. That is because, at all relevant times, Stephens was one of the employees who was provided the clothing that was not provided to female employees. Stephens was fired before Stephens ever attempted to “dress as a woman” at work. Thus, Stephens cannot claim a denial of this benefit.25
3. As A Result, Under Bailey, The EEOC Cannot Proceed With The Claim In This Action.
The Court concludes that the EEOC investigation here uncovered possible unlawful discrimination: 1) of a kind not raised by the charging party (Stephens); and 2) not affecting the
25It would not have been a problem if Stephens had asserted a clothing allowance claim on Stephen’s own behalf in the EEOC charge and then the EEOC’s complaint simply broadened that same claim to assert it on behalf of a class of women. See EEOC v. Keco Indust. Inc., 748 F.2d 1097, 1101 (6th Cir. 1984) (explaining that in Bailey the “additional and distinct claim of religious discrimination required a separate investigation, reasonable cause determination, and conciliation effort by the EEOC” and distinguishing it where the EEOC “merely broadened” the scope of the charging party’s charge to assert the same claim on behalf of all female employees in the same division).
54

2:14-cv-13710-SFC-DRG Doc # 76 Filed 08/18/16 Pg 55 of 56 Pg ID 2233
charging party (Stephens). As such, under Bailey, the proper procedure26 is for the filing of a charge by a member of the EEOC and for a full EEOC investigation of that new claim of discrimination. Because the EEOC failed to do that, it cannot proceed with that claim in this civil action. Accordingly, the Court shall dismiss the clothing allowance claim without prejudice.
CONCLUSION & ORDER For the reasons set forth above, the Court ORDERS that the EEOC’s Motion for Summary Judgment is DENIED. It is further ORDERED that the Funeral Home’s Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. The Court GRANTS summary judgment in favor of the Funeral Home as to the wrongful termination claim. The Court rejects the Funeral Home’s sex-specific dress code defense but concludes that, under the unique facts and circumstances of this case, the Funeral Home is entitled to a RFRA exemption from Title VII (and the sex-stereotyping body of case law under it). As to the clothing allowance claim, the Court concludes that the EEOC administrative investigation uncovered possible unlawful discrimination of a kind not raised by the charging party and not affecting the charging party. Under Bailey, the proper procedure is for the filing of a charge by a member of the EEOC and for a full EEOC investigation of that new claim of
26The EEOC argues that it is not required to “ignore” discrimination that it inadvertently uncovers during an administrative proceeding. Bailey does not require the EEOC to “ignore” discriminatory acts that it uncovers during an administrative investigation that are of a kind not raised by the charging party and not affecting the charging party; it just requires the filing of a new charge by a member of the EEOC and a full investigation of the new claim.
55

2:14-cv-13710-SFC-DRG Doc # 76 Filed 08/18/16 Pg 56 of 56 Pg ID 2234 discrimination. Because the EEOC did not do that, it cannot proceed with that claim in this civil action. The Court therefore DISMISSES WITHOUT PREJUDICE the clothing allowance claim.
IT IS SO ORDERED. S/Sean F. Cox Sean F. Cox United States District Judge
Dated: August 18, 2016 I hereby certify that a copy of the foregoing document was served upon counsel of record on August 18, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy Case Manager
56

 
 No. 16-2424 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Equal Employment Opportunity Commission Plaintiff-Appellant, v.
R.G. & G.R. Harris Funeral Homes, Inc., Defendant-Appellee.
On Appeal from the United States District Court for the Eastern District of Michigan Case No. 2:14-cv-13710-SFC-DRG
MOTION TO INTERVENE AS PLAINTIFF-APPELLANT

INTRODUCTION Pursuant to Federal Rule of Civil Procedure 24 and this Court’s inherent authority, Aimee Stephens respectfully moves for intervention on the side of Plaintiff-Appellant. Ms. Stephens has significant claims at stake in this litigation, which may be precluded if the district court’s grant of summary judgment for Defendant R.G. & G.R. Harris Funeral Homes (“Funeral Home”) is upheld. Ms. Stephens had a statutory right to intervene before the district court but believed at that time that the EEOC would adequately represent her interests, which it has done up until now. However, based on the change of federal administration as well as the federal government’s actions over the past few days, Ms. Stephens is reasonably concerned that the EEOC may no longer adequately represent her interests going forward. After conferring with counsel, who was finally granted leave by an EEOC trial attorney to contact Ms. Stephens on January 20, Ms. Stephens has decided that intervention is now necessary to protect her interests in this appeal and in any future proceedings. In order to adequately prepare her opening brief on appeal, Ms. Stephens requests 21 days to file her brief in support of her appeal.
FACTUAL AND PROCEDURAL BACKGROUND Aimee Stephens is a transgender woman who served as a funeral director and embalmer at the Funeral Home. Mem. in Supp. of Pl.’s Mot. for Summ. J. (“Pl.
1

Mem.”), RE 51, PAGE ID # 605. On July 31, 2013, Ms. Stephens wrote her coworkers a letter informing them about her transition from male to female, and explaining that she intended to dress in appropriate business attire as a woman. See Stephens Letter, RE 51-2. The Funeral Home’s owner, Thomas Rost, responded two weeks later by handing Stephens a severance agreement. Mr. Rost has said that the “specific reason” he terminated Ms. Stephens was because Stephens “was no longer going to represent himself as a man” but “wanted to dress as a woman.” Pl. Mem., RE 51, PAGE ID ## 605–606.
The EEOC brought a sex discrimination lawsuit against the Funeral Home, alleging that its termination of Ms. Stephens violated Title VII’s prohibition on sex discrimination. The Funeral Home moved to dismiss the case on the ground that gender identity is not protected by Title VII; however, the district court concluded that the EEOC had properly alleged a sex discrimination claim by asserting that Ms. Stephens was fired for failing to conform to Mr. Rost’s sex-based stereotypes. Op. & Order, RE 12, PAGE ID # 178. After its motion to dismiss was denied, the Funeral Home amended its Answer to raise defenses under the Free Exercise Clause and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”). Answer to Am. Compl., RE 22, PAGE ID # 254.
On cross-motions for summary judgment, the district court granted summary judgment to the Funeral Home on its RFRA defense. The court held that the EEOC
2

failed to demonstrate that allowing Ms. Stephens to dress in accordance with her gender identity was not the least restrictive means for advancing the government’s compelling interest in eliminating gender stereotypes in the workplace with respect to clothing. Op & Order, RE 76, PAGE ID ## 2181–2183. The EEOC appealed.
ARGUMENT I. Ms. Stephens Satisfies the Standard for Intervention As Of Right
Under Rule 24(a). Although the Federal Rules of Appellate Procedure do not expressly address intervention in a pending appeal, this Court has the authority to grant such intervention. See Ne. Ohio Coal. for Homeless & Serv. Emps. Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1006 (6th Cir. 2006); see also Drywall Tapers & Pointers of Greater N.Y. v. Nastasi & Assocs., 488 F.3d 88, 94 (2d Cir. 2007); Alstom Caribe, Inc. v. George P. Reintjes Co., 484 F.3d 106, 111 (1st Cir. 2007) ; Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997); United States v. Bursey, 515 F.2d 1228, 1238 n.24 (5th Cir. 1975); Atkins v. State Bd. of Educ., 418 F.2d 874, 876 (4th Cir. 1969) (per curiam); Hurd v. Ill. Bell Tel. Co., 234 F.2d 942, 944 (7th Cir. 1956). To intervene as of right under Rule 24(a)(2), a party must satisfy “four elements: (1) timeliness of application; (2) a substantial legal interest in the case; (3) impairment of the applicant’s ability to protect that interest in the absence of intervention; and (4) inadequate representation of that interest by parties already
3

before the court.” Blackwell, 467 F.3d at 1007. “Failure to meet [any] one of the [four] criteria will require that the motion to intervene be denied.” Stupak-Thrall v. Glickman, 226 F.3d 467, 471 (6th Cir. 2000) (citation and internal quotation marks omitted) (alterations in original). But Rule 24 as a whole is “broadly construed in favor of potential intervenors.” Id. (citation and internal quotation marks omitted). Here, Ms. Stephens satisfies all four elements.
A. Ms. Stephens Has Legally Protectable Interests at Stake, Which May Be Impaired by the Disposition of This Case.
Consistent with its generally liberal approach to Rule 24, the Sixth Circuit applies a “rather expansive notion of the interest sufficient to invoke intervention of right.” Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997). But even under the most stringent standard, Ms. Stephens has a legally cognizable interest that may be impaired by the disposition of this case. The EEOC has requested various forms of relief on Ms. Stephens’s behalf, including backpay, compensation for pecuniary and nonpecuniary losses, and punitive damages. First Am. Compl. ¶¶ C–F, RE 21, PAGE ID ## 246-247.
Title VII itself explicitly provides that “[t]he person or persons aggrieved [by an unlawful employment action] shall have the right to intervene in a civil action brought by the Commission . . . .” 42 U.S.C. § 2000e-5(f)(1). If the district court’s summary judgment for the Funeral Home on the EEOC’s wrongful termination claim is upheld, Ms. Stephens may well be precluded from ever
4

obtaining relief for the discrimination she suffered. See EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 466 (6th Cir. 1999) (“[W]hile Title VII affords recovery through private action or an action by the EEOC, it does not allow both.”); id. at 462 (“[T]he lawsuit of one will preclude the lawsuit of another.”). Although the statute does not expressly discuss intervention on appeal, the right of intervention should be held to apply with full force here, particularly given the unusual change in circumstances confronting Ms. Stephens. See Triax Co. v. TRW, Inc., 724 F.2d 1224 (6th Cir. 1984) (holding that a patent owner was entitled to intervene as of right for purposes of appealing a district court’s summary judgment order in a patent infringement action, because the order would have deprived him of royalties and collaterally estopped him from seeking damages from other potential infringers of the patents).
B. The EEOC May Not Adequately Represent Ms. Stephens’s Interests in the Appeal and Subsequent Proceedings.
Rule 24(a)’s inadequacy requirement “is satisfied if the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972); accord, e.g., Linton v. Comm’r of Health & Env’t,
5

973 F.2d 1311, 1319 (6th Cir. 1992).1 To satisfy this burden, a proposed intervenor “is not required to show that the representation will in fact be inadequate.” Mich. State AFL-CIO, 103 F.3d at 1247. Rather, it may be enough to show, for example, “that the existing party who purports to seek the same outcome will not make all of the prospective intervenor’s arguments.” Id. By the same token, a decision not to appeal by an original party to the action—or to limit the scope of an appeal—can also constitute inadequate representation of another party’s interest. Id. at 1248 (citing Am. United for Separation of Church & State v. City of Grand Rapids, 922 F.2d 303, 306 (6th Cir. 1990)).
Ms. Stephens passes this low threshold. The change in presidential administration and the government’s actions over the last several days raise serious questions as to whether Ms. Stephens’s interests will be adequately represented by the EEOC in this appeal and any subsequent proceedings. In particular, on the day of President Trump’s inauguration, the White House removed its webpage dedicated to LGBT rights. Colby Itkowitz, LGBT Rights Page Disappears from White House Web Site, Wash. Post (Jan. 20, 2017).2 Additionally, the federal government’s requests for extensions of time in other civil rights cases suggest the
1 This Court has “declined to endorse a higher standard for inadequacy [of representation] when a government entity is involved.” Grutter v. Bollinger, 188 F.3d 394, 400 (6th Cir. 1999). 2 https://www.washingtonpost.com/local/2017/live-updates/politics/live-coverageof-trumps-inauguration/lgbt-rights-page-disappears-from-white-house-web-site.
6

possibility that the EEOC may change its position in the current case as it proceeds.3 Finally, the President has the authority to appoint a new general counsel
for the EEOC, who has authority for the EEOC’s litigation, as well as members of
the Commission itself, 42 U.S.C. § 2000e-4, all of whom may influence the
EEOC’s representation of Ms. Stephens’ interests going forward. Because Ms.
Stephens may well be precluded from seeking independent relief if the district
court’s grant of summary judgment is upheld, she should be allowed to intervene
to ensure that her interests are adequately protected throughout the rest of this
litigation.
C. The Motion to Intervene Is Timely Under the Circumstances.
“The determination of whether a motion to intervene is timely should be
evaluated in the context of all relevant circumstances.” Stupak-Thrall, 226 F.3d at
472–73 (citation and internal quotation marks omitted). This Court has held that
the following factors should be considered in determining timeliness:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors' failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention.
3 https://www.nytimes.com/2017/01/24/us/politics/civil-rights-trumpadministration-sessions.html?_r=0
7

Id. at 473 (citation and internal quotation marks omitted). The timeliness requirement is liberally construed. See, e.g., Cook v. Bates, 92 F.R.D. 119, 122 (S.D.N.Y. 1981) (“In the absence of prejudice to the opposing party, even significant tardiness will not foreclose intervention.”).
As particularly relevant here, courts have recognized that timeliness is measured “from the time [prospective intervenors] became aware that [their interest] would no longer be protected by the existing parties to the lawsuit.” Edwards v. City of Houston, 78 F.3d 983, 1000 (5th Cir. 1996). For example, in United Airlines, Inc. v. McDonald, the Supreme Court held that a class member’s motion to intervene filed after judgment, for purposes of appeal, was timely because she “promptly” moved to intervene “as soon as it became clear to [her] that the interests of the unnamed class members would no longer be protected by the named class representatives.” 432 U.S. 385, 394–96 (1977); see also, e.g., Dow Jones & Co. v. U.S. Dep’t of Justice, 161 F.R.D. 247, 252–53 (S.D.N.Y. 1995) (Sotomayor, J.) (finding intervention timely because movant intervened only after “she realize[d] that the [defendant] might not fully exercise its right to appeal”).
As set forth above, recent actions by the government have given Ms. Stephens significant cause for concern that the EEOC will not continue to adequately represent her interests on appeal. Based on these developments, Ms. Stephens is reasonably concerned that the EEOC may not adequately represent her
8

interests in this appeal or in possible future proceedings. Cf. 28 U.S.C. § 518(a) (“Except when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court . . . .”).
Moreover, until recently, counsel for the EEOC requested that the undersigned counsel—who represented Ms. Stephens in filing a charge with the EEOC and the investigation of that charge—not contact Ms. Stephens during the pendency of this appeal. On January 20, however, the EEOC consented to allowing counsel to contact Ms. Stephens. After counsel spoke with Ms. Stephens, she expressed interest in intervening in this lawsuit to protect her interests. Since then, Ms. Stephens has moved as quickly as possible to intervene in this lawsuit. Even if Ms. Stephens could be accused of delay, allowing intervention now would not impose any significant prejudice on the parties, given that Ms. Stephens requests only an additional 21 days to prepare her opening brief on appeal.
II. Alternatively, This Court Should Grant Permissive Intervention Under Rule 24(b).
In the alternative, Ms. Stephens should be granted permissive intervention under Federal Rule of Civil Procedure 24(b). “To intervene permissively, a proposed intervenor must establish that the motion for intervention is timely and alleges at least one common question of law or fact.” United States v. Michigan, 424 F.3d 438, 445 (6th Cir. 2005). “Once these two requirements are established,
9

the district [or appellate] court must then balance undue delay and prejudice to the original parties, if any, and any other relevant factors to determine whether, in the court’s discretion, intervention should be allowed.” Id.
These circumstances merit permissive intervention. As discussed above, Ms. Stephens’s motion to intervene is timely under the circumstances, and the wrongful termination claim she seeks to vindicate lies at the heart of these proceedings. Although Ms. Stephens requests a 21-day delay in the briefing schedule, so that she may file a separate opening brief on appeal, this delay will not significantly prejudice the existing parties.
III. Ms. Stephens Requests a 21-Day Extension to Prepare a Separate Opening Brief on Appeal.
For substantially the same reasons that intervention should be granted, the Court should grant Ms. Stephens leave to file separate briefs, including a separate opening brief on appeal. Given the recent change in presidential administration, Ms. Stephens may bring a different perspective to the sex discrimination and religious exercise issues at stake in this appeal. She should not be left to rely on the arguments made by the government, which may now decide to change its position on the issues under review. In order to adequately prepare her opening brief on appeal, Ms. Stephens respectfully requests a 21-day extension on the briefing deadline.
10

CONCLUSION For the foregoing reasons, the Court should grant Ms. Stephens’s motion to intervene, with leave to file separate briefs. The Court should also grant Ms. Stephens’s request for a 21-day extension to prepare her opening brief on appeal.

Dated: January 26, 2017

Respectfully submitted,

Brian Hauss* James Esseks American Civil Liberties Union
Foundation 125 Broad St., 18th Floor New York, NY 10004 (212) 549-2604 bhauss@aclu.org
John A. Knight* American Civil Liberties Union
Foundation 180 N. Michigan Avenue, Suite 2300 Chicago, IL 60606 (312) 201-9740 jaknight@aclu.org
Counsel for Proposed Intervenor

/s/ Daniel S. Korobkin Daniel S. Korobkin Jay D. Kaplan Michael J. Steinberg American Civil Liberties Union
Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6800 jkaplan@aclumich.org dkorobkin@aclumich.org msteinberg@aclumich.org

*Applications for admission forthcoming

11

CERTIFICATE OF COMPLIANCE 1. This motion complies with the type-volume limitations of Fed. R. App. P.

27(d)(2) because it contains 2,425 words.

2. This motion complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally spaced typeface using Microsoft Word in 14

point Times New Roman font.

Dated: January 26, 2017

/s/ Daniel S. Korobkin Daniel S. Korobkin

Counsel for Proposed Intervenor

12

CERTIFICATE OF SERVICE I hereby certify that on January 26, 2017, I electronically filed the foregoing document with the Clerk of the Court using the ECF system which will send notification of such filing to all counsel of record.
/s/ Daniel S. Korobkin Daniel S. Korobkin Counsel for Proposed Intervenor
13

 
 No. 16-2424

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant,

v.
R.G. & G.R. HARRIS FUNERAL HOMES, INC., Defendant/Appellee.

On Appeal from the United States District Court for the Eastern District of Michigan, Hon. Sean F. Cox, No. 14-13710
OPENING BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT

JAMES L. LEE Deputy General Counsel
JENNIFER S. GOLDSTEIN Associate General Counsel
LORRAINE C. DAVIS Assistant General Counsel
ANNE NOEL OCCHIALINO Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of General Counsel 131 M St. N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov

TABLE OF CONTENTS
Statement in Support of Oral Argument .............................................................1
Statement of Jurisdiction........................................................................................1
Statement of the Issues ...........................................................................................2
Statement of the Case .............................................................................................3
A. Statement of the Facts...............................................................................3
B. Motion to Dismiss...................................................................................10
C. Amended Answer ...................................................................................11
D. Summary Judgment Order....................................................................13
Standard of Review...............................................................................................16
Summary of Argument ........................................................................................16
Argument ...............................................................................................................20
Summary judgment should be reversed on the EEOC’s Title VII claims of sex discrimination as to the termination of Aimee Stephens and the denial of a clothing benefit as to a class of female employees.......................................................................20
A. The complaint stated a claim of sex discrimination based on transgender status and/or transitioning......................20
B. The court erred in granting summary judgment on the termination claim as to Aimee Stephens. .............................32

TABLE OF CONTENTS 1. Neither Title VII nor the “ministerial exception”
permits the Funeral Home to discriminate based on Rost’s religious beliefs. .....................................................33 2. RFRA does not provide a defense to Stephens’ unlawful termination. .............................................................36 a. The Funeral Home failed to show that its
religious exercise was substantially burdened. ..........41 b. The EEOC established compelling interest and
least restrictive means. ...................................................50 C. The court erred in granting summary judgment on the
clothing benefit claim. ......................................................................61 Conclusion .............................................................................................................. 71 Certificate of Compliance ................................................................................. C-1 Certificate of Service .......................................................................................... C-2 Addendum .......................................................................................................... C-4
ii

TABLE OF AUTHORITIES Statutes 28 U.S.C. § 1291........................................................................................................2 28 U.S.C. § 1331 .......................................................................................................2 Religious Freedom Restoration Act of 1993
42 U.S.C. § 2000bb et seq., .................................................................................1 42 U.S.C. § 2000bb(b)(1)...................................................................................38 42 U.S.C. § 2000bb-1...........................................................................................2 42 U.S.C. §§ 2000bb-1(a) ............................................................................13, 39 42 U.S.C. § 2000bb-1(b)....................................................................................53 42 U.S.C. § 2000bb-2(4) ....................................................................................39 Religious Land Use and Institutionalized Persons Act of 2000 42 U.S.C. § 2000cc-5(7)(A) ..............................................................................39 Title VII of the Civil Rights Act of 1964 42 U.S.C. §§ 2000e et seq. ...................................................................................2 42 U.S.C. § 2000e-1(a) ......................................................................................33 42 U.S.C. § 2000e-2(a).........................................................................................2
iii

TABLE OF AUTHORITIES 42 U.S.C. § 2000e-2(e)(1) .......................................................................................34 42 U.S.C. § 2000e-2(e)(2) ......................................................................................34 42 U.S.C. § 2000e-5(f) .............................................................................................2 Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................31 Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) ..........................30 Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) ............................11,24 Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355 (6th Cir. 2012)...........................16 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) ....................... passim Cutter v. Wilkinson, 544 U.S. 709 (2005) ..............................................................57 DeMarco v. Holy Cross High Sch., 4 F.3d 166, 173 (2d Cir. 1993) ....................35 Dole & EEOC v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ...48 EEOC v. Bailey Company, 563 F.2d 439 (6th Cir. 1977)............................. passim EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) .................35, 52 EEOC v. Gen. Elec. Co., 532 F.2d 359 (4th Cir. 1976) ..............................63,64,70 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984) .............................67,69
iv

TABLE OF AUTHORITIES
EEOC v. Miss. Coll., 626 F.2d 477 (5th Cir. 1980) ........................................51,52
EEOC v. Pacific Press Publ’g Ass’n, 676 F.2d 1272 (9th Cir. 1982) ...................52
EEOC v. Shoney’s, Inc., No. 93-5583, 28 F.3d 1213 (6th Cir. Aug. 18, 1994) (per curiam) (unpublished) ...........................................................................66
EEOC v Tree of Life Christian Schs., 751 F. Supp. 700 (S.D. Ohio 1990) ..........48
Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990) ...........................................................................................38
Eternal World Tele. Network, Inc. v. Sec’y of the Dep’t of Health & Human Servs., 818 F.3d 1122 (11th Cir. 2016) ...............................................................47,55,57
Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007)..................10,27,28
Gen. Tel. Co. of the NW, Inc. v. EEOC, 446 U.S. 318 (1980)......................63,64,68
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2001)................................................24
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).......................................................................................53,54
Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012) ..............................................16
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012).......................................................................................36,51
Holt v. Hobbs, 135 S. Ct. 853 (2015) ......................................................................42
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ..................................41,43 v

TABLE OF AUTHORITIES Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) ...............23 Lusardi v. McHugh, Appeal No. 0120133395, 2015 WL 1607756
(EEOC Apr. 1, 2015) ................................................................................... 27,54 Macy v. Holder, No. 0120120821,
2012 WL 1435995 (EEOC Apr. 20, 2012) ..................................................26,27 McKnight v. MTC, 2015 WL 7730995 (N.D. Tex. Nov. 9, 2015)..................43,44 Michigan Catholic Conf. & Catholic Family Servs. v. Burwell,
755 F.3d 372 (6th Cir. 2014) .............................................................................39 Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) .....................................67,69 Myers v. Cuyahoga Cnty., 182 F. App’x 510 (6th Cir. 2006) ..............................23 Pime v. Loyola Univ. of Chicago, 803 F.2d 351 (7th Cir. 1986)............................34 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)....................................... passim Redhead v. Conference of Seventh-Day Adventists,
440 F. Supp. 2d 211 (E.D.N.Y. 2006) .........................................................52,61 Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000).................... 26 Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) ............................................26 Sherbert v. Verner, 374 U.S. 398 (1963)............................................................37,38 Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ................................. passim
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TABLE OF AUTHORITIES Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707 (1981) ..............42 Vickers v. Fairfield Medical Ctr., 453 F.3d 757 (6th Cir. 2006) ......................10,30 Wagner v. Campuzano, 562 F. App’x 255 (5th Cir. 2014) (per curiam)............42 Wilson v. James, 139 F. Supp. 3d 410 (D.D.C. 2015)......................................41,42 Wisconsin v. Yoder, 406 U.S. 205 (1972) .....................................................37,38,54 United States v. Lee, 455 U.S 252 (1982) ................................................................... Miscellaneous 139 Cong. Rec. 26180 (Oct. 26, 1993)...................................................................47 Rules Fed. R. App. P. 4(a)(1)(B)(ii) ..................................................................................2 Merriam Webster Online Dictionary, Transgender (January 23, 2017) http://www.merriam-webster.com/dictionary/transgender) .........................21
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STATEMENT IN SUPPORT OF ORAL ARGUMENT The Equal Employment Opportunity Commission (EEOC) requests oral argument because this case raises an important and novel issue in this circuit: whether the court erred below in holding that the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq., operates as a defense to the EEOC’s enforcement action in this case seeking to vindicate the charging party’s right to be free from sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This case also raises the significant issue of whether Title VII’s prohibition against sex discrimination, 42 U.S.C. § 2000e-2(a), encompasses discrimination based on transgender status and/or transitioning. Finally, this case raises an important issue regarding the permissible scope of an EEOC lawsuit following an investigation that reveals discrimination beyond that alleged in the charge. Oral argument would assist this Court in resolving these significant issues.
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STATEMENT OF JURISDICTION The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(1), (3). On April 23, 2015, the court ruled on the defendant’s motion to dismiss. Opinion, R.13, PageID#182. On August 18, 2016, the court granted summary judgment and entered final judgment on all claims. Opinion, R.76, PageID#2179-2234; Judgment, R.77, PageID#2235. Pursuant to Fed. R. App. P. 4(a)(1)(B)(ii), on October 13, 2016, the EEOC timely filed its notice of appeal. Appeal Notice, R.78, PageID#2236. This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES 1. Whether Title VII’s prohibition on discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a), encompasses discrimination based on transgender status and/or transitioning from male to female. 2. Whether the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, provides a defense to the EEOC’s enforcement action, allowing the defendant to rely on its sincerely held religious beliefs to justify its termination of Aimee Stephens because she is a transgender woman,
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thereby depriving Stephens of her Title VII right to be free from sex discrimination. 3. Whether the EEOC may pursue its clothing benefit claim for a class of women where the EEOC discovered the alleged violation during a reasonable investigation of Aimee Stephens’ charge alleging sex-based discriminatory termination.
STATEMENT OF THE CASE A. Statement of the Facts Charging party Aimee Stephens is a transgender woman. She was “assigned male at birth.” Stephens Depo. p.49, R.51-18, PageID#817. Stephens began working for Defendant R.G. & G.R. Harris Funeral Homes Inc. (“Funeral Home”) in October 2007, when her legal name was William Anthony Stephens and she presented as a male. Counter Facts, R.61, PageID#1825 (¶¶1,2); Stephens Depo. p.48-50, R.51-18, PageID#816-817. Stephens worked as a funeral director/embalmer. Counter Facts, R.61, PageID#1825 (¶2). The duties of funeral directors/embalmers include removing remains, embalming/cremation, planning services, completing
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obituary notices, processing death certificates, filing for insurance/benefits, appearing at services, and accompanying families and friends to burials. Def.’s Answers to Discovery Requests, R.51-21, PageID#832-33. Stephens was a “very good embalmer”; it is undisputed that her termination was unrelated to her job performance. Kish Aff., R.54-18, PageID#1476; Counter Facts, R.61, PageID#1829 (¶16).
The Funeral Home is a closely-held, for-profit corporation with three Michigan locations. Def. Facts, R.55, PageID#1683-84 (¶1,4).1 Thomas Rost owns 95.4% of the company; his children own the rest. Def. Facts, R.55, PageID#1684 (¶8). Rost is Christian. Def. Facts, R.55, PageID#1685 (¶17). The Funeral Home’s website contains a mission statement providing that its “highest priority is to honor God in all we do as a company” and including a Scripture verse. Def. Facts, R.55, PageID#1686 (¶¶21,23). Placed in the funeral homes are Christian devotional booklets and small “Jesus Cards” with Bible verses. Id. at ¶23.
1 Those facts taken from R.55 were undisputed by the EEOC. CounterStatement of Disputed Facts, R.64, PageID#2066-2088.
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The Funeral Home, however, is not affiliated with any church and its articles of incorporation do not avow any religious purpose. Counter Facts, R.61, PageID#1832-33 (¶¶25,26). The Funeral Home serves clients of every religion (including Hindu, Muslim, Jewish, native Chinese, and no religion), and employs individuals from different religions (or no religion). Counter Facts, R.61, PageID#1833-35 (¶¶30,37). Employees have worn Jewish head coverings during Jewish funeral services. Id. at PageID#1834 (¶31). The Funeral Home is not closed for any religious holiday; rather, it is open 365 days a year. Id. at PageID#1833 (¶29). Although rooms where funerals are held are called “chapels,” they are decorated to look like living rooms and lack religious fixtures. PageID#1834 (¶33).
The Funeral Home has a sex-specific dress code. Dress Code, R.51-20, PageID#826-28. Men must wear dark suits, white shirts, a tie “selected by the company, or very similar,” and dark socks and shoes for funerals, viewings, calls, or any other funeral work. Id. at PageID#827. Women must wear a conservative suit or dress. Id. at PageID#828.
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The Funeral Home provided male employees who interacted with the public with free suits and ties. Counter Facts, R.61, PageID#1836 (¶42). Full-time male employees were provided upon hire with two suits (each worth $225) and two ties (each worth $10), while part-time males were provided one suit and tie upon hire. Counter Facts, R.61, PageID#1837-38 (¶¶47,52). The Funeral Home replaced the men’s suits and ties “as needed,” which ranged from every nine months to every few years. Counter Facts, R.61, PageID#1837 (¶49); Cash Depo. p.19, R.51-12, PageID#754 (new suit every nine months to a year). Male employees who received free suits were also able to have their company suits tailored, free of charge, during work hours. R.61, Counter Facts, PageID#1838 (¶¶50-51). The Funeral Home did not provide female employees who interacted with the public any clothes, or any clothing allowance, until October 2014 (after EEOC filed suit), when it began paying full-time female employees an annual stipend of $150/year and part-time employees a stipend of $75/year. Counter Facts, R.61, PageID#1839 (¶54).
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On July 31, 2013, Stephens gave Rost a letter describing her struggle with “gender identity disorder” and relating her “diagnos[is] as a tran[s]sexual.” Letter, R.54-21, PageID#1494. Stephens stated that she intended to have sex reassignment surgery, which required her to first live and work as a woman for one year. Id. Therefore, she explained, she would return from her vacation as her “true self, A[im]ee Australia Stephens, in appropriate business attire.” Id.
When Stephens returned on August 15, 2013, Rost fired her. Counter Facts, R.61, PageID#1828 (¶10). Rost said, “this is not going to work,” and offered Stephens a severance agreement if she “agreed not to say anything or do anything.” Stephens Depo. pp.75-76, R.54-15, PageID#1455; Rost Depo. p.126, R.63-5, PageID#1974. Stephens refused. Id. Instead, she filed a charge of sex discrimination with the EEOC. Charge, R.54-22, PageID#1497. The charge states that after informing management of her “gender transitioning” plans, Stephens was told that “the public would [not] be accepting of [her] transition.” The charge further states that Stephens believed that she was fired due to her “sex and gender identity, female.” Id.
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During the EEOC’s investigation into these allegations, Rost never mentioned any religious objection to employing Stephens. Rather, the Funeral Home asserted in the position statement submitted to the EEOC that the charge should be dismissed because “Aimee” Stephens never worked there. Statement, R.54-23, PageID#1499. Rost felt uncomfortable with using the name “Aimee” for Stephens because “he’s a man.” Rost Depo. p.23, R.51-16, PageID#769. While the company admitted it fired “Anthony” Stephens, it said the termination was justified because Stephens said she would no longer abide by the male dress code. Statement, R.54-23, PageID#1500. Rost told an EEOC investigator that “dressing as [a] woman would have interrupted business[.]” Notes, R.54-24, PageID#1509.
During the investigation, another employee told the EEOC investigator that Stephens was terminated for refusing to wear the “company provided suit[], tie, and shirt.” Notes, R.54-24, PageID#1513. The investigator then asked the employee whether women were provided suits or uniforms. Id. The witness said not in the last ten or fifteen years. Id.
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The EEOC issued a letter of determination (Determination) finding cause to believe Stephens’ termination violated Title VII. Determination, R.63-4, PageID#1968. The Determination added that “[l]ike and related and growing out of this investigation, the Commission found reasonable cause to believe that [the Funeral Home] discriminated” against female employees by providing only male employees with a clothing benefit. Id. The EEOC attempted to resolve these matters through informal conciliation, but the parties were unable to reach an agreement. See generally Exhibit, R.74, PageID#2165 (attaching (sealed) proposed conciliation agreement).
On September 25, 2014, the EEOC filed a complaint in district court alleging that the Funeral Home fired Stephens “because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex-or genderbased preferences, expectations, or stereotypes.” Complaint ¶15, R.1, PageID#4-5. The EEOC also alleged that the Funeral Home violated Title VII by providing a clothing benefit only to male employees. Id. at ¶17.
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B. Motion to Dismiss The Funeral Home filed a Rule 12(b)(6) motion to dismiss the termination claim for failure to state a claim. Motion, R.7, PageID#22-47. The district court agreed in part with the Funeral Home’s arguments but denied the motion. The court first held that discrimination based on transgender status is not cognizable under Title VII. Opinion, R.13, PageID#188-89.2 The district court relied on Vickers v. Fairfield Medical Center, 453 F.3d 757, 762 (6th Cir. 2006), which held that “‘sexual orientation is not a prohibited basis for discriminatory acts under Title VII[,]’” but the district court did not explain how Vickers’ determination of a different issue—sexual orientation—was relevant to whether transgender discrimination is actionable under Title VII. Opinion, R.13, PageID#188. The district court also relied on an out-ofcircuit decision, Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1222 (10th Cir. 2007), which held that “transsexuals are not a protected class under Title VII.” Opinion, R.13, PageID#188. The district court held, however, that
2 The court did not hold expressly that transitioning from male to female is not cognizable, but that holding seems implicit.
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the complaint did state a claim for relief under the unlawful sexstereotyping theory of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). R.13, opinion, PageID#189-195 (citing Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)).
C. Amended Answer On April 29, 2015, the Funeral Home filed an answer, which did not mention RFRA. R.14, Answer, PageID#199. On June 1, 2015, the EEOC amended its complaint to correct the spelling of Aimee Stephens’ name. Amended Complaint, R.21, PageID#241-249. On June 4, 2015—eight and a half months after the EEOC filed its original complaint—the Funeral Home for the first time asserted RFRA as a defense. Answer, R.22, PageID#254. The EEOC and the Funeral Home later filed summary judgment motions. EEOC motion, R.51, PageID#591-640; Funeral Home Motion, R.54, PageID#1285-1321. In his April 16, 2016, affidavit, submitted in support of the Funeral Home’s motion, Rost stated that continuing to employ Stephens would have conflicted with his sincere religious beliefs. Affidavit, R.54-2, PageID#1326-1338. Rost “sincerely believes that the Bible teaches
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that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex.” Rost Aff. ¶42, R.54-2, PageID#1334. He further believes that he “would be violating God’s commands if [he] were to permit” employees to “deny their sex while acting as a representative of [his] organization.” Id. ¶43. In Rost’s view, it would “violate God’s commands because” he “would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Id. Rost therefore believes it would “violat[e] God’s commands” if he were to permit “male funeral directors to wear the uniform for female funeral directors while at work,” or if he were to “pay for a male funeral director to wear the uniform for female funeral directors.” Id. ¶¶45-46. If forced to pay an employee “to dress inconsistent with his or her biological sex, [Rost] would feel significant pressure to sell” his business and give up his life’s calling of ministering to grieving people. Id. at ¶48.
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Rost stated in his deposition that he fired Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.” Rost Depo.136, R.63-5, PageID#1975.
D. Summary Judgment Order The district court granted summary judgment for the Funeral Home. Opinion, R.13, PageID#2179-2234. The court acknowledged that Rost’s testimony that he fired Stephens because she wanted to dress as a woman appeared to constitute “direct evidence” of sex discrimination. Id. at PageID#2198-99. The court also rejected the Funeral Home’s argument that its sex-specific dress code constituted a defense. Id. at PageID#2199-2204. But the court held that RFRA operated as a defense to any violation of Stephens’ Title VII rights. Id. at PageID#2204-2223. The court noted that RFRA, 42 U.S.C. §§ 2000bb-1(a), (b), prohibits the government from substantially burdening a person’s exercise of religion, even if the burden arises from a generally applicable rule, unless the government shows that application of the burden “to the person” is the least restrictive means of furthering a compelling governmental interest. Id. at PageID#2205. The
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court held that the Funeral Home met its burden of showing that Title VII’s enforcement “substantially burdened” its “exercise of religion.” Id. at PageID#2206.
At the outset, the court ruled that Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), foreclosed the EEOC’s argument that RFRA, by its plain terms, protects religious exercise, not beliefs. Id. at PageID#2207 (n.8). The court recounted Rost’s religious beliefs and concluded that enforcing Title VII “by requiring the Funeral Home to provide a skirt to and/or allow an employee born a biological male to wear a skirt at work would impose a substantial burden on” Rost’s ability to conduct his business in accordance with his sincerely held religious beliefs. Id. If the Funeral Home refused to comply with Title VII, the court said, it would face “severe” economic consequences, as it might have to pay back and front pay, and Rost would feel pressured to sell his business. Id. at PageID#2210. The court therefore concluded the Funeral Home showed substantial burden on religious exercise.
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The court next considered whether the EEOC established compelling interest and least restrictive means. Although the court questioned whether the EEOC satisfied RFRA’s “to-the-person” test, the court assumed that the EEOC established compelling interest. Id. at PageID#2211-2214. But the court held that the EEOC failed to show least restrictive means. The court stated that “the case concerned only “work place clothing,” not “hair styles or makeup.” Id. at PageID#2216 n.11. The court emphasized that the case had been limited to a “Price Waterhouse sex/gender stereotyping theory.” Id. at PageID#2218. Had the EEOC been “truly interested in eliminating gender stereotypes as to clothing,” the court said, the EEOC should have proposed a gender-neutral dress code (which no party had ever raised as an alternative). Id. at PageID#2218-19. The court acknowledged that applying RFRA here produced an “odd result,” since RFRA does not apply in private actions and therefore would not have been a defense had Stephens sued. Id. at PageID#2223 n.23.
Finally, the court granted summary judgment on the clothing benefit claim. Id. at PageID#2223-2233. Citing EEOC v. Bailey Co., 563 F.2d 439 (6th
15

Cir. 1977), the court held that the class claim was unrelated to Stephens’ individual charge of discriminatory termination. The court reasoned that because the charge failed to mention “clothing, a clothing allowance, or a dress code,” it could not have reasonably been expected to lead to an investigation of whether the Funeral Home violated Title VII by providing only male employees with a clothing allowance. Id. at PageID#2231. Upon uncovering this new violation, the court said, the EEOC ought to have filed a Commissioner’s charge. Id. at PageID#2233.
STANDARD OF REVIEW This Court reviews de novo a district court’s dismissal of a complaint under Rule 12(b)(6). Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 358 (6th Cir. 2012). The district court’s grant of summary judgment is also reviewed de novo. Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012).
SUMMARY OF ARGUMENT The district court erred in granting summary judgment on the EEOC’s termination claim on behalf of Aimee Stephens, a transgender woman. Contrary to the court’s ruling below, Title VII’s prohibition on
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discrimination “because of . . . sex” encompasses discrimination based on transgender status and/or transitioning. This conclusion is based on the text of Title VII, as well as decisions of the Supreme Court and this Court that have long recognized that Title VII forbids gender from playing a role in employment decisions. The district court therefore erred in ruling on the Funeral Home’s motion to dismiss that the Commission’s complaint failed to state a claim for relief as to Stephens’ termination based on transgender status and/or transitioning, although the court held correctly that the complaint stated a claim of sex discrimination under Price Waterhouse based on sex stereotypes.
The court also erred in ruling that RFRA provides the Funeral Home a defense to the EEOC’s enforcement action in this case. Congress and the courts have already spoken to the correct balance between Title VII and an employer’s religious exercise; Title VII permits religious organizations to prefer coreligionists, and the judicially created “ministerial exception” prohibits application of federal anti-discrimination laws to the employment relationship between a religious institution and its ministers. Neither of
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these exceptions applies here. And contrary to the court’s conclusion below, RFRA does not provide what Title VII omits: a defense in this case that exempts the Funeral Home from complying with Title VII’s prohibition on sex discrimination based on the sincere religious beliefs of its owner.
RFRA is inapplicable here because the Funeral Home failed to meet its initial burden of showing that the EEOC’s enforcement action imposed a “substantial burden” on the company’s “exercise of religion.” The Funeral Home fell short of establishing on this record that continuing to employ Stephens during, or after, her transition impinged on Rost’s “exercise of religion,” or that any burden imposed by her continued employment was “substantial.”
Even if the Funeral Home met its initial burden, RFRA does not provide a defense in this case. The court assumed correctly that the eradication of sex-based employment discrimination is a compelling governmental interest (as evidenced by Congress’ enactment of Title VII). But the court erred on the final prong of the test in holding that this
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enforcement action was not the least restrictive means of achieving that interest. Although the Funeral Home never suggested it would be open to a gender-neutral dress code as a solution, the court faulted the EEOC for failing to propose it. Contrary to the court’s conclusion, imposing a genderneutral dress code is not the least restrictive means, as the government’s interest is not in the elimination of sex-specific dress codes but in the eradication of sex discrimination, including protecting Stephens’ right not to be fired because she is transgender, transitioning, and/or refuses to comply with traditional sex stereotypes. A gender-neutral dress code would not serve the government’s interest “equally well,” as the record shows that Rost would have objected to employing Stephens had she complied with a gender-neutral dress code, e.g., business attire, but otherwise dressed and acted as a woman.
Finally, the district court erred in granting summary judgment on the EEOC’s clothing benefit claim as to a class of women. The court applied an erroneous legal standard when it ruled that the EEOC cannot seek relief for women denied a clothing benefit because that claim was not included in
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Stephens’ charge. The Supreme Court has held that the EEOC may seek relief as to any violation ascertained during the course of a reasonable investigation. Here, the EEOC’s investigation revealed that the Funeral Home had for years provided male employees who work with the public with free suits, ties, and tailoring, while women who worked with the public were given nothing. The EEOC’s Determination included the clothing allowance claim, and it is undisputed that the EEOC sought to conciliate with the Funeral Home as to this claim. After conciliation efforts failed, the agency was therefore entitled to seek relief in court for a class of women denied the clothing benefit accorded their male co-workers.
ARGUMENT Summary judgment should be reversed on the EEOC’s Title VII claims of sex discrimination as to the termination of Aimee Stephens and the denial of a clothing benefit as to a class of female employees. A. The complaint stated a claim of sex discrimination based on
transgender status and/or transitioning. Title VII makes it unlawful for an employer to discharge an individual “because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
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The EEOC alleged that the Funeral Home’s termination of Stephens violated this provision because it “was motivated by sex-based considerations,” i.e., because “Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based . . . stereotypes.” Complaint, R.1, PageID#4-5 (¶15). 3 Ruling on the Funeral Home’s motion to dismiss, however, the district court held that the EEOC’s complaint stated a claim for relief under only a sex-stereotyping theory. While the district court properly recognized that Title VII’s prohibition on sex discrimination makes it unlawful to discriminate against a transgender individual—like any other individual—based on sex-stereotyping, the court erred in concluding that discrimination based on transgender status and/or transitioning is not inherently sex discrimination. This error requires correction by this Court in order to clarify the meaning of “because of . . . sex” under Title VII, and because the district court’s error
3 The term “transgender” is defined as relating to “a person whose gender identity differs from the sex the person had or was identified as having at birth.” Merriam Webster Online Dictionary, Transgender (January 23, 2017) http://www.merriam-webster.com/dictionary/transgender).
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infected its RFRA analysis, as the court subsequently held that the only compelling interest in this case was the elimination of sex-stereotypes as to the dress code. See Opinion, R.76, PageID#2217-2218 (emphasizing the “narrow context” of the discrimination claim here).
The Supreme Court and this Court have long recognized that Title VII’s prohibition on sex discrimination encompasses the full range of gender-based discrimination. The Supreme Court made this clear in Price Waterhouse, where the Court clarified that the phrase “because of . . . sex” means “that gender must be irrelevant to employment decisions.” Price Waterhouse, 490 U.S. at 240. In Price Waterhouse, the plaintiff was denied partnership because she was “macho” and was told she would improve her promotion chances if she walked, talked, and dressed more femininely and wore make-up and jewelry. Id. at 235. The Court held that this amounted to prohibited sex stereotyping, explaining that “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.‘” Id. at 251 (quoting Los Angeles Dep’t of
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Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). The Court held that Title VII barred not just discrimination because plaintiff was a woman, but also discrimination based on the employer’s belief that she was not acting like a woman. Id. at 250-51.
This Court has also recognized that “[b]y holding that Title VII protected a woman who failed to conform to social expectations concerning how a woman should look and behave, the Supreme Court [in Price Waterhouse] established that Title VII’s reference to ‘sex’ encompasses . . . discrimination based on a failure to conform to stereotypical gender norms.” Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004). In Smith, this Court held that the plaintiff stated a claim for relief under Price Waterhouse where he alleged discrimination based on “his gender nonconforming conduct and, more generally, because of his identification as a transsexual.” Id. at 571. This Court explained that “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior[.]” Id. at 575; see also Myers v. Cuyahoga Cnty., 182 F. App’x 510, 519 (6th Cir. 2006) (“Title VII
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protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.”); Barnes v. City of Cincinnati, 401 F.3d 729, 733, 737 (6th Cir. 2005) (holding that a “preoperative male-to-female transsexual” was protected under Title VII where he alleged discrimination for his failure to conform to sex stereotypes).
That Title VII forbids the full range of gender discrimination leads ineluctably to the conclusion that transgender and transitioning discrimination is discrimination “because of . . . sex.” At its core, transgender discrimination is based on the non-conformance of an individual’s gender identity and appearance with sex-based norms or expectations. In other words, discrimination because of an individual’s transgender status is always based on gender-stereotypes: the stereotype that individuals will conform their appearance and behavior—whether their dress, the name they use, or other ways they present themselves—to the sex assigned them at birth. The Eleventh Circuit has recognized this, holding in Glenn v. Brumby that “discrimination against a transgender individual because of her gender-non-conformance is sex discrimination,
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whether it’s described as being on the basis of sex or gender.” 663 F.3d 1312, 1317 (11th Cir. 2001). The Glenn court explained, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” Id. at 1316 (internal quotation marks and citations omitted).
This Court essentially recognized in Smith that discrimination against an individual who is transgender is discrimination based on the failure to conform to a gender stereotype. This Court stated, “discrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.” 378 F.3d at 575. Smith also recognizes that after Price Waterhouse, “employers who discriminate against men because they do wear dresses and make-up, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not
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occur but for the victim’s sex.” Id. at 574. The logical extension of this Court’s statement is that transgender discrimination is per se prohibited under Price Waterhouse because such discrimination is based on the individual’s failure “to act and/or identify with his or her gender.” Smith, 378 F.3d at 575; see also Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (applying Price Waterhouse to hold that pre-operative male-to-female transgender plaintiff stated a claim for sex discrimination under the Gender Motivated Violence Act because “the perpetrator’s actions stem from” his belief “the victim was a man who ‘failed to act like one’”); Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 215 (1st Cir. 2000) (applying Price Waterhouse to hold that bank’s refusal to give a loan to the plaintiff because the plaintiff’s traditionally feminine “attire did not accord with his male gender” stated a claim under the Equal Credit Opportunity Act).
The Commission’s federal sector decisions underscore that discrimination based on transgender status and/or transitioning constitutes sex discrimination. See, e.g., Macy v. Holder, No. 0120120821, 2012 WL 1435995, at *4-7 (EEOC Apr. 20, 2012) (clarifying that discrimination “based
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on transgender status” is cognizable under Title VII and that discrimination because an individual “has transitioned or is in the process of transitioning” constitutes sex discrimination). Macy recognizes that “consideration of gender stereotypes will inherently be part of what drives discrimination against a transgendered individual.” Id. at *8. Thus, discrimination “against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.” Id. at *11. See also Lusardi v. McHugh, Appeal No. 0120133395, 2015 WL 1607756, at *11 n.6 (EEOC Apr. 1, 2015) (explaining that “Macy [] held that discrimination on the basis of transgender status is per se sex discrimination” and “that a plaintiff need not have specific evidence of gender stereotyping because ‘consideration of gender stereotypes will inherently be part of what drives discrimination against a transgender individual’”) (quoting Macy, 2012 WL 1435995, at *8).
In ruling that Title VII does not prohibit discrimination based on transgender status, the district court relied on Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007). Opinion, R.13, PageID#188. Etsitty
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is weak support for the district court’s ruling. To be sure, in Etsitty the Tenth Circuit declined to adopt a rule that transgender discrimination necessarily constitutes sex discrimination, although the court assumed without deciding that Title VII protects “transsexuals who act and appear as a member of the opposite sex.” 502 F.3d at 1221, 1224. But Etsitty’s rejection of a per se rule that Title VII protects against transgender discrimination was incorrect. First, Etsitty relied on decisions issued before Price Waterhouse. Id. at 1221. Second, the court’s decision was based on its erroneous view that Title VII prohibits discrimination based only on “the traditional binary conception of sex,” i.e., “the two starkly defined categories of male and female.” Id. at 1222. As discussed, however, Price Waterhouse makes clear that the term “sex” under Title VII prohibits the full range of gender-based discrimination.
Schroer v. Billington illuminates the flaw in Etsitty’s “starkly defined” reasoning. 577 F. Supp. 2d 293 (D.D.C. 2008). In Schroer, the defendant revoked its hiring offer after the plaintiff disclosed that she was transgender, would be undergoing a male-to-female transition, and would
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like to start working as “Diane.” Id. at 296. The district court agreed with the plaintiff that this constituted sex discrimination under the Price Waterhouse sex-stereotyping theory. Id. at 302-305. But the court also held that the defendant had literally discriminated “because of . . . sex,” based on the plain language of the statute. Id. at 306-308. The court explained its reasoning by analogizing to religious discrimination. The court postulated that if an employee were fired because she converted from Christianity to Judaism—not because of her employer’s animosity towards either religion, simply out of bias against “converts”—that “would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute.” Id. at 306. Likewise, the court reasoned, discrimination against an individual who converts from male to female should be considered discrimination because of sex. See id. at 307. Courts have only been able to avoid this conclusion by carving out an exception for transgender individuals that simply is not in the statute. Id. at 307.
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The district court also relied on this Court’s decision in Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006), which addressed only whether Title VII forbids sexual orientation discrimination, not discrimination against a transgender individual. Amended Opinion, R.13, PageID#188. This reliance on a case raising a different question was misplaced. Cf. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir. 2015) (noting that gender identify and sexual orientation are “distinct”).
The EEOC therefore urges this Court to clarify that a complaint alleging sex discrimination based on transgender status and/or transitioning has stated a claim for relief under Title VII, as such discrimination is inherently based on sex stereotypes. This conclusion is compelled by the statute’s text, as interpreted by the Supreme Court in Price Waterhouse. This Court should also embrace this conclusion because of the practical difficulty that arises from artificially parsing out discrimination based on transgender status from discrimination based on gender non-conformance. They are difficult to parse out because, in a case involving a transgender individual, they are one and the same.
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Such is the case here. The EEOC presented evidence that upon being informed of Stephens’ transgender status and intention to transition, Rost fired her, saying “this is not going to work[.]” Depo. 75-76, R.54-15, PageID#1455. Rost added that “the public would [not] be accepting of [her] transition.” Charge, R.54-22, PageID#1497. This evidence is difficult to compartmentalize into “sex-stereotyping” versus “transgender/ transitioning” boxes. Placed in either box, the evidence suggests Rost fired Stephens because she refused to continue conforming her behavior and appearance to the gender stereotypes associated with the male sex. This violates Title VII. See Schroer, 577 F. Supp. 2d at 305 (stating that “[u]ltimately,” it should not “matter[] for purposes of Title VII liability whether” an employer fires an individual because it perceives her as being “an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual”).
Finally, the complaint plausibly alleged that Stephens’ termination was in fact based on transgender status and/or Stephens’ intention to transition from male to female. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(complaint must contain sufficient facts to state a plausible claim for relief). The complaint alleged that Stephens performed adequately for six years; she informed Rost on July 31, 2013, that she was undergoing a male-tofemale gender transition; and on August 15, 2013, Rost fired her, stating that what she was “‘proposing to do’ was unacceptable.” Complaint, R.1, PageID#3-4 (¶¶8-11). The complaint therefore sufficed to overcome the motion to dismiss, not only under a sex-stereotyping theory but also as to transgender status and transitioning. See Schroer, 577 F. Supp. 2d at 308 (employer’s refusal to hire the plaintiff after she disclosed her intent to undergo “sex reassignment surgery was literally discrimination ‘because of . . . sex’”).
B. The court erred in granting summary judgment on the termination claim as to Aimee Stephens.
Despite recognizing that this is one of the rare cases in which “there is direct evidence” of discrimination based on sex, the district court granted summary judgment in favor of the Funeral Home. Opinion, R.76, PageID#2198. The court erred. Nothing in Title VII provides an exception by which a for-profit employer may deprive an employee of her
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statutorily-protected right to be free from sex discrimination because of her employer’s religious beliefs. Nor does RFRA provide a defense in this case that permits Rost’s sincerely held religious beliefs to override Aimee Stephens’ Title VII right to be free of workplace discrimination. Summary judgment should therefore be reversed.
1. Neither Title VII nor the “ministerial exception” permits the Funeral Home to discriminate based on its religious beliefs.
When Congress enacted Title VII, it adopted a comprehensive statutory scheme to eradicate employment discrimination based on race, sex, religion, national origin, and color. Notably absent in this comprehensive scheme is any exception that would permit a for-profit company such as the Funeral Home to discriminate based on sex due to its owner’s religious beliefs. It was not, however, that Congress failed to consider the potential conflict between an employer’s religious beliefs and Title VII’s prohibitions on discrimination. Rather, Congress considered these concerns and included in Title VII an exemption that permits religious organizations or educational institutions to prefer “coreligionists,” i.e., individuals of the same religion. See 42 U.S.C. § 2000e-
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1(a) (permitting “a religious corporation, association, educational institution or society” to prefer individuals of that religion), § 2000e-2(e)(2) (permitting a “school, college, university, or other educational institution” owned by a particular religion, or whose learning is directed towards propagation of a particular religion, to prefer its own religious members). An additional exception permits employers to make employment decisions “on the basis of religion” where religion is a “bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business enterprise.” 42 U.S.C. § 2000e-2(e)(1). See generally Pime v. Loyola Univ. of Chicago, 803 F.2d 351, 353-54 (7th Cir. 1986) (BFOQ exception permitted Jesuit college to prefer Jesuit philosophy professor).
None of these Title VII exceptions apply here. The “religious organization” exception is inapplicable because the Funeral Home is not a religious organization: it is a for-profit corporation unaffiliated with any church, its articles of incorporation do not avow any religious purpose, it serves clients of every religion, and it employs individuals from different religions (or no religion). Def. Facts, R.55, PageID#1683(¶1); Counter Facts,
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R.61, PageID#1832-35 (¶¶25,26,30,37). But even if the Funeral Home were a religious organization, the exception would permit the Funeral Home only to prefer co-religionists, not to discriminate against its employees based on sex. See EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (holding that religious school violated Title VII and the Equal Pay Act by providing health insurance benefits to single persons and married men but not to married women); see also DeMarco v. Holy Cross High Sch., 4 F.3d 166, 173 (2d Cir. 1993) (holding that the Age Discrimination in Employment Act, like Title VII, applies to religious institutions and therefore prohibits them from engaging in age discrimination). Nor would the BFOQ defense apply here, as that exception would permit the Funeral Home to discriminate based only on Stephens’ religion, not her sex, and only if religion were a “bona fide occupational qualification reasonably necessary to the normal operation” of the Funeral Home, which it was not.
The “ministerial exception” is also inapplicable here. This judiciallycreated doctrine, which is rooted in the First Amendment’s guarantee of religious freedom, precludes application of federal employment
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discrimination laws to the employment relationship between a religious institution and its ministers. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012) (holding that ministerial exception barred retaliation claim under the Americans with Disabilities Act on behalf of a commissioned minister who taught at a religious school). In short, the ministerial exception recognizes that the government’s interest in eliminating employment discrimination yields to a church’s right under the First Amendment’s Free Exercise Clause and Establishment Clause to choose its ministers. See id. at 188. This exception does not apply here because the Funeral Home is not a religious institution, and because Stephens is not a ministerial employee.
2. RFRA does not provide a defense to Stephens’ unlawful termination. The district court erred in holding that RFRA provides in this case what Title VII does not: a defense that permits the Funeral Home to deprive Aimee Stephens of her Title VII right to be free from sex discrimination based on Rost’s sincerely held religious beliefs.
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RFRA was passed in 1993 against the backdrop of a series of Supreme Court decisions concerning the Free Exercise Clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const., Amdt. 1 (emphasis added). In Sherbert v. Verner, 374 U.S. 398, 403-06 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 220-21 (1972), the Supreme Court used a balancing test to evaluate claims that government action violated the Free Exercise Clause: the test looked at whether the challenged government action imposed a substantial burden on the claimant’s religious practice and, if so, whether the burden was needed to serve a compelling government interest. Applying this balancing test, the Supreme Court held in Sherbert that denying an employee unemployment benefits because she refused to work on her Sabbath violated the First Amendment. 374 U.S. at 403-10. The Supreme Court likewise held in Yoder that the First Amendment was violated by forcing Amish children to attend school until age sixteen where the Amish religion required them to focus on Amish values and beliefs during adolescence. 406 U.S. at 214-36.
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The Supreme Court, however, rejected “the balancing test set forth in Sherbert” when it decided Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 883 (1990). Repudiating the strict scrutiny standard for Free Exercise claims, the Court held in Smith that neutral, generally applicable laws may be applied even without showing compelling government interest. Id. at 885-90. Applying its holding, the Court ruled there was no First Amendment violation when the state denied unemployment benefits to members of the Native American Church who were fired for ingesting peyote during a sacramental service. Id. at 890.
Three years after Smith rejected the compelling interest standard, Congress restored it by enacting RFRA. The stated purpose of RFRA was “to restore the compelling interest test” of Sherbert and Yoder and to “guarantee its application in all cases where free exercise of religion is substantially burdened by government.” 42 U.S.C. § 2000bb(b)(1). Accordingly, RFRA forbids the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability, except” where the government “demonstrates
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that application of the burden to the person” furthers “a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§ 2000bb-1(a),(b).
RFRA applies not only to individuals but also to “for-profit closely held corporation[s].” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2767-75 (2014). Although “exercise of religion” was originally defined in reference to “the exercise of religion under the First Amendment,” 42 U.S.C. § 2000bb-2(4) (1994 ed.), Congress amended that definition when it enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which imposes RFRA’s test to a limited category of government actions. Accordingly, “exercise of religion” under RFRA means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (as incorporated by 42 U.S.C. § 2000bb-2(4)).
RFRA claims are analyzed under a two-step process. First, the party asserting the exemption must show that the law “would (1) substantially burden (2) a sincere (3) religious exercise.” Michigan Catholic Conf. &
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Catholic Family Servs. v. Burwell, 755 F.3d 372, 384 (6th Cir. 2014) (internal quotation marks and citation omitted), vacated and remanded on other grounds, 135 S. Ct. 1914 (2015). If a prima facie case is shown, then the government bears the burden of production and persuasion as to whether “application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means” of furthering that interest. Id. (internal quotation marks and citation omitted).
The RFRA defense is inapplicable here. Although the EEOC does not challenge the sincerity of Rost’s religious beliefs, the Funeral Home failed to show that its “religious exercise” was “substantially burdened.” Even if the Funeral Home established this, the EEOC established that application of the burden to the Funeral Home furthered a compelling governmental interest and that no less restrictive means is available to achieve the government’s compelling interest in eradicating sex-based discrimination in the workplace, including as to Aimee Stephens.
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a. RGGR failed to show that its religious exercise was substantially burdened.
By its terms, RFRA protects religious exercise, not religious beliefs. See 42 U.S.C. § 2000bb-1(a) (government may not substantially burden “a person’s exercise of religion”) (emphasis added); Wilson v. James, 139 F. Supp. 3d 410, 424 (D.D.C. 2015) (“A substantial burden on one’s religious beliefs—as distinct from such a burden on one’s exercise of religious beliefs—does not violate RFRA.”). The exercise of religion “necessarily involves an action or practice.” Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008) (holding that collection of DNA evidence from inmate did not burden his religious exercise). Government action that compels a person to modify his behavior in a way that violates his religious beliefs, prevents him from engaging in conduct required by his religion or forces him to engage in conduct forbidden by his religion, or conditions receipt of important benefits upon conduct proscribed by his religion burdens religious exercise. Wilson, 139 F. Supp. 3d at 425.
In Hobby Lobby, for instance, the Court held that forcing employers to choose between “providing” insurance coverage with contraceptive
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options they found immoral and incurring a severe economic penalty substantially burdened their religious exercise. Hobby Lobby, 134 S. Ct. at 2778. Likewise, religious exercise is burdened (or is at least arguably burdened) when an employee is forced to make turrets for tanks despite his religious objection to manufacturing weapons (Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707 (1981)); when a prisoner whose religion requires him to grow a beard is forced to choose between shaving his beard or being disciplined (Holt v. Hobbs, 135 S. Ct. 853 (2015)); or when a prisoner is denied the chance to play piano for religious services (Wagner v. Campuzano, 562 F. App’x 255 (5th Cir. 2014) (per curiam)). Religious exercise is not implicated, however, when a claimant is disciplined for publicly criticizing same-sex marriages but fails to assert that his religion requires him to publicly voice his dissent, although he believes it immoral (Wilson, 139 F. Supp. 3d at 424-25), or when a prisoner who believes homosexuality is a sin is housed with a homosexual cellmate, since sharing a cell does not “put any pressure on him to change his religious
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conduct” (McKnight v. MTC, 2015 WL 7730995, at *4 (N.D. Tex. Nov. 9, 2015)).
Here, the Funeral Home asserted that the EEOC’s enforcement of Stephens’ Title VII right to work free from sex discrimination would “burden [RGGR’s] free exercise of religion by compelling Rost to engage in conduct that seriously violates his religious beliefs,” i.e., his belief that a person’s sex is an immutable, God-given gift that cannot be denied. Def. Memo., R.54, PageID#1314. But the Funeral Home has not identified how continuing to employ Stephens after, or during, her transition would interfere with any religious “action or practice.” Kaemmerling, 553 F.3d at 679 (holding that collection of inmate’s DNA did not burden his religious exercise and stating that “[t]he government’s extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Kaemmerling to modify his religious behavior in any way—it involves no action or forbearance on his part, nor does it otherwise interfere with any religious act in which he engages”). Rost would still be able to attend church and would be free to continue placing devotionals and cards for the public in
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his funeral homes. Rost did not point to a Bible passage or religious doctrine that precludes him from employing an individual who is transgender, is transitioning, or who was born male but who presents as a woman and wears traditionally female clothes.
In essence, Rost objected to having Stephens continue to work for him because being transgender offends his religious beliefs. But RFRA is about protecting the exercise of religion, not about ensuring that an individual’s religious beliefs are not offended. See McKnight, 2015 WL 7730995, at *4 (rejecting RFRA claim and stating, “Plaintiff’s allegations suggest that he takes issue only with the exposure to a homosexual cellmate, and not with any effect it has on his religious activities”). Here, Rost simply did not identify any government action that coerced him into conduct prohibited by his religious beliefs, or forced him to refrain from conduct required by his religion.
Contrary to the district court’s conclusion, Hobby Lobby does not compel a different result. To be sure, Hobby Lobby states “that the question that RFRA presents” is whether the law at issue “imposes a substantial
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burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs.” 134 S. Ct. at 2778. The Hobby Lobby Court answered that question affirmatively, holding that the plaintiffs met this burden because they had a sincere religious belief that life begins at conception and they were forced to choose between providing health insurance that covers birth control methods that could result in the destruction of an embryo and incurring severe economic consequences (as much as $475 million/year). Id. at 2778-79. Thus, the Court held that the government was coercing the plaintiffs into taking an action—providing contraception they found immoral—that violated their religious beliefs. See id. at 2779.
Unlike the Hobby Lobby plaintiffs, who were forced to choose between facilitating conduct that violated their religious beliefs and incurring crippling economic consequences, Rost was not forced to choose between facilitating conduct that violated his religious beliefs and incurring severe economic hardship. That is because the EEOC’s suit does not coerce the Funeral Home into providing or facilitating Stephens’ transition from male to
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female. Cf. Hobby Lobby, 134 S. Ct. at 2778 (noting that the plaintiffs “believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the [birth control] coverage”) (emphasis added). Enforcement of Title VII in this case does not compel Rost to pay for Stephens’ transition (i.e., he is not being asked to pay for Stephens’ medications or surgery). Rather, in contrast to Hobby Lobby, enforcement of Title VII would require Rost only to continue employing Stephens, as he had for six years, after she began her gender transition and began presenting at work as a female. Unlike the Hobby Lobby plaintiffs, then, Rost would not be forced to “enabl[e] or facilitat[e] the commission of an immoral act”: he would merely be keeping an employee on the payroll. 134 S. Ct. at 2778. Hobby Lobby is therefore inapposite. It would control this case only if it had held that RFRA allowed the plaintiffs to fire female employees who used contraceptives that resulted in the destruction of embryos. Hobby Lobby did not reach so far.
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Even if the Funeral Home’s religious exercise were burdened, the Funeral Home failed to show a “substantial burden.” The word “substantial” was added to the original draft of RFRA, signaling that the modifier carries meaning. 139 Cong. Rec. 26180 (Oct. 26, 1993). As Senator Hatch stated in discussing the proposed amendment, the law “does not require the Government to justify every action that has some effect on religious exercise.” Id. A burden is “substantial” only if it “places significant pressure on an adherent to act contrary to her religious beliefs[.]” Eternal World Tele. Network, Inc. v. Sec’y of the Dep’t of Health & Human Servs., 818 F.3d 1122, 1148-1151 (11th Cir. 2016).
Here, the Funeral Home did not establish on this record that the EEOC’s enforcement action “substantially” burdened the Funeral Home’s exercise of religion. The Funeral Home contends that employing a transgender woman imposes a “substantial” burden, but how? Rost sincerely believes that sex is an immutable God-given gift, but he was not asked to fund Stephens’ transition, and he has not explained how the continued employment of a transgender woman (who worked for him for
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six years) would substantially burden his ability to run his business in accordance with his religious beliefs. Certainly, many employees engage in conduct their employers find religiously objectionable—such as having children out of wedlock, eating pork, or engaging in premarital sex—but merely employing these individuals does not impose a “substantial burden” on religious exercise. See EEOC v Tree of Life Christian Schs., 751 F. Supp. 700, 711 (S.D. Ohio 1990) (holding that “application of the Equal Pay Act” to employer to prohibit it from paying men greater benefits as “head of household” would impose only a “minimal” burden on employer’s religious exercise); Dole & EEOC v. Shenandoah Baptist Church, 899 F.2d 1389, 1397 (4th Cir. 1990) (holding that “any burden” imposed on employer’s free exercise of its religious beliefs by application of Fair Labor Standards Act “would be limited,” and stating that “the Bible does not mandate a pay differential based on sex”).
The district court erred in reaching a contrary conclusion. Opinion, R.76, PageID#2209. The court accepted the Funeral Home’s assertion that permitting Stephens to dress in traditionally feminine attire would make
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Rost complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.” Id. The court never explained, however, how permitting Stephens to dress in female attire would “substantially” impact Rost’s religious exercise. The court also stated that being forced to “provide a skirt” would be a substantial burden, id., but the undisputed record shows that in August 2013, the Funeral Home provided its female employees with no clothes, and no clothing stipend whatsoever. Thus, Rost would not have provided Stephens with a skirt after her transition, undercutting Rost’s assertion of a “substantial” burden. In any event, the EEOC’s enforcement action, even if successful as to the clothing benefit claim, also would not necessarily require Rost to provide Stephens with a skirt. Rather, the EEOC’s suit would require only that if Rost provides a clothing benefit to his male employees, he provide a comparable benefit (which could be in-kind, or in cash) to his female employees. Alternatively, Rost could discontinue the clothing benefit altogether.
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The court also stated that the burden was “substantial” because if Rost refused to employ Stephens, he might have to pay some undefined amount of “back and front pay” to her, and if he permitted her to work dressed as a female, he would feel pressured to sell his business. Opinion, R.76, PageID#2210. But the underpinning of the court’s conclusion is its assumption that being forced to continue to employ Stephens, dressed as a woman, imposes a substantial burden on Rost’s religious exercise. It does not.
b. The EEOC established compelling interest and least restrictive means.
Even assuming, arguendo, that the Funeral Home satisfied its burden, RFRA does not permit the Funeral Home to violate Stephens’ Title VII rights because the EEOC established that it has a compelling interest in eradicating workplace discrimination and that it used the least restrictive means to achieve that interest.
The district court assumed without deciding that the EEOC has a compelling interest in the eradication of sex-based employment discrimination. Opinion, R.76, PageID#2211-2214. That assumption was
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correct. Congress’ enactment of Title VII itself establishes that the elimination of workplace discrimination, including sex discrimination, is of paramount importance. See EEOC v. Miss. Coll., 626 F.2d 477, 488 (5th Cir. 1980) (stating that Title VII “manifested” the government’s compelling interest in eliminating discrimination). The Supreme Court has repeatedly recognized the government’s compelling interest in eliminating discrimination and has also recognized that anti-discrimination laws are narrowly tailored to meet that goal. In Hobby Lobby, the majority stressed that its decision “provides . . . no shield” to racially discriminatory hiring “cloaked as religious practice,” stating that “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” 134 S. Ct. at 2783 (responding to the dissent’s concern that racially discriminatory hiring “might be cloaked as religious practice to escape legal sanction”); see also Hosanna-Tabor, 565 U.S. at 196 (“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important.”); Bob
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Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (holding that the government “has a fundamental, overriding interest in eradicating racial discrimination in education”) (footnote omitted).
Lower courts have uniformly agreed that the government’s interest in eradicating employment discrimination is compelling. See, e.g., Fremont Christian Sch., 781 F.2d at 1368-69 (“‘By enacting Title VII, Congress clearly targeted the elimination of all forms of discrimination as a ‘highest priority’ . . . . Congress’ purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.’”) (quoting EEOC v. Pacific Press Publ’g Ass’n, 676 F.2d 1272, 1280 (9th Cir. 1982)); Miss. Coll., 626 F.2d at 488 (in Title VII subpoena enforcement action as to race and sex discrimination, holding that “the government has a compelling interest in eradicating discrimination in all forms”); Redhead v. Conference of SeventhDay Adventists, 440 F. Supp. 2d 211, 220 (E.D.N.Y. 2006) (rejecting RFRA defense in Title VII case and stating, “generally, Title VII’s purpose of eradicating employment discrimination is a ‘compelling government
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interest’”); EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763, 810 (S.D. Ind. 2002) (holding that “the eradication of employment discrimination based on the criteria identified in Title VII” constitutes a compelling interest under RFRA).
Contrary to the court’s musings below, the EEOC established that compelling interest as to the Funeral Home. Opinion, R.76, PageID#22132214; see 42 U.S.C. § 2000bb-1(b) (government must show that “application of the burden to the person” furthers the government’s compelling interest); Hobby Lobby, 134 S. Ct. at 2779 (stating that RFRA requires a focused inquiry; courts must look “‘beyond broadly formulated interests’ . . . to ‘scrutinize the asserted harm of granting specific exemptions to particular religious claimants’—in other words, to look at the marginal interest in enforcing” the law in this case) (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006) (brackets omitted)).
EEOC satisfied this to-the-person test. This is not a case in which granting an exemption to a religious claimant would have little, or
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minimal, impact on the government’s compelling interest in the uniform application of a law, such as the exemption of the Amish from compulsory school attendance (Yoder) or the exemption from the Controlled Substances Act of church members whose faith requires receiving communion through hoasca (O Centro). Rather, in this case, the “asserted harm” of granting a “specific exemption” to the Funeral Home is severe: it means the deprivation of Stephens’ statutory right to be free from discrimination which, in this case, meant the deprivation of her livelihood. Stephens’ termination also inflicted emotional pain and suffering, as it sent her the message that as a transgender woman she is not valued or able to make workplace contributions. See, e.g., Lusardi, 2015 WL 1607756, at *10 (discrimination against transgender employee “isolated and segregated her from other persons of her gender [and] . . . perpetuated the sense that she was not worthy of equal treatment and respect”).
Thus, the court assumed correctly that the EEOC showed a compelling interest. But the court erred in concluding that the EEOC did not satisfy the least-restrictive-means test. While this test is “exceptionally
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demanding,” the government satisfies it upon showing “that it lacks other means of achieving its desired goal.” Hobby Lobby, 134 S. Ct. 2780. Only when a less restrictive alternative “equally furthers” the government’s compelling interest must the government use it. Id. at 2786 (Kennedy, J. concurring). In assessing whether a less restrictive alternative exists, courts “must consider both the cost to the government and the burden the alternatives impose on the affected [individuals].” Eternal World Television, 818 F.3d at 1158; see Hobby Lobby, 134 S. Ct. at 2760 (denying that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women employed by Hobby Lobby”) (citation and internal quotation marks omitted); United States v. Lee, 455 U.S 252, 261 (1982) (rejecting Free Exercise claim and stating, “[g]ranting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees”) (emphasis added).
Here, the EEOC’s Title VII enforcement action is not merely the least restrictive means of furthering the government’s compelling interest in
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eradicating sex-based employment discrimination as to Stephens, it is the only means. No alternative short of this enforcement action—seeking Stephens’ reinstatement, back pay, and compensatory and punitive damages—would serve “equally well” the government’s interest in this case in vindicating Stephens’ Title VII rights.
The Funeral Home proposed below that the “government could continue to enforce Title VII in most situations, but permit businesses in industries that serve distressed people in emotionally difficult situations to require that its public representatives comply with the dress code at work.” Memo., R.54, PageID#1317. This bizarrely selective enforcement of Title VII (which would impermissibly endorse discriminatory customer preferences against transgender workers) would not achieve “equally well” the government’s compelling interest in eradicating sex-based employment to all those protected by Title VII, and it would not achieve it at all as to Stephens. The Funeral Home would elevate its owner’s religious beliefs above Stephens’ Title VII rights, ignoring them altogether. But this runs afoul of the Supreme Court’s repeated admonition that courts must
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consider burdens imposed on others when evaluating least restrictive alternatives. See Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (“courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries”); Hobby Lobby, 134 S. Ct. at 2760 (stating that “corporations [do not] have free rein to take steps that impose disadvantages . . . on others”) (internal quotation marks and citation omitted).
The Funeral Home also posited below that the government could hire Stephens, provide her a salary while unemployed, and/or pay another funeral home to employ her. Reply, R.67, PageID#2118-19. For the reasons discussed above, these alternatives fail because they would not serve “equally well” the government’s interest in enforcing Stephens’ Title VII rights; they would not achieve, at all, Stephens’ right to work for the Funeral Home without being subject to discrimination. Additionally, these proposals ignore that courts must consider “the cost to the government” when considering alternatives. Eternal World Television, 818 F.3d at 1158; see Hobby Lobby, 134 S. Ct. at 2760 (stating that corporations do not have “free
57

rein” to require “the general public [to] pick up the tab”) (internal quotation marks and citation omitted). RFRA does not compel the government to “pick up the tab” here for a lifetime of employment for Stephens in order to accommodate Rost’s view, although sincerely held, that sex is God-given and immutable.
The district court, seeming to recognize the shortcomings of the Funeral Home’s argument, came up with its own alternative. After stressing the “narrow context” of the EEOC’s claim—limited, by the court, to a Price Waterhouse/sex-stereotyping theory—the court stated that the compelling interest was “in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing.” Opinion, R.76, PageID#2219 (emphasis added). Given this limited interest, the court said, the EEOC should have proposed a “gender-neutral dress code” to achieve that interest. Id. There are many problems with the court’s analysis.
First, as discussed above, discrimination based on transgender status and/or transitioning constitutes discrimination “because of . . . sex.” To the extent the court’s least-restrictive-means analysis turned on its view that
58

the EEOC’s sole interest here is in eliminating narrowly-defined sex stereotypes, and not transgender/transitioning discrimination, the court therefore erred. Second, even if the EEOC’s sex discrimination claim is limited to a sex-stereotyping theory, the compelling interest is not eliminating the Funeral Home’s sex-specific dress code. It is ensuring that Stephens is free from any discrimination based on sex-stereotyping, which includes not being fired because she no longer intends to conform to the stereotype of how an individual “assigned male at birth” should dress and act. Terminating Stephens because she intended to present as a female, and dress in a feminine manner, constitutes impermissible sex-stereotyping discrimination, just as it did when Ann Hopkins was not promoted because she did not wear make-up or jewelry and did not dress, talk, or walk in a stereotypically feminine manner.
Third, the record does not support the court’s assumption that a gender-neutral dress code would have resolved Rost’s religious objections to Stephens’ continued employment. At the time he fired her, Rost never mentioned that a gender-neutral dress code would resolve his concerns.
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Rather, when Rost fired Stephens, he told her “this is not going to work out”(not limiting his comment to the dress code) and that “the public would [not] be accepting of [your] transition.” Charge, R.54-22, PageID#1497. Rost also testified that he fired Stephens, inter alia, because she “was no longer going to represent himself as a man,” and he objected to Stephens’ use of the name “Aimee” in her charge because, Rost said, she is “a man.” Rost Depo.23, R.51-16, PageID#769, Rost Depo.136, R.63-5, PageID#1975. Simply put, Rost did not want Stephens working for him, no matter how she dressed, because he believes it is immoral to be transgender. It thus strains credulity to think that a gender-neutral dress code would have resolved this case; had Stephens dressed in a genderneutral uniform but worn make-up, asked to be called “Aimee” and otherwise identified as a woman, Rost still would have objected to employing her because, he has stated repeatedly, his religious views dictate that individuals should adhere to their “immutable” sex. The district court even equivocated about the viability of the gender-neutral option, stating that it “could be a less restrictive means.” Opinion, R.76, PageID#2219
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(emphasis added). But a less restrictive alternative must actually—not maybe—achieve the government’s compelling interest “equally well.”
In short, the least restrictive means of ending sex-based employment discrimination in this case is to end sex-based employment discrimination, using the tool Congress adopted to do so: Title VII. See Preferred Mgmt. Corp., 216 F. Supp. 2d at 811 (holding that EEOC’s investigation constituted the “least restrictive means that Congress could have used to effectuate its” compelling interest in eradicating discrimination); Redhead, 440 F. Supp. 2d at 222 (ruling that Title VII’s framework “is the least restrictive means of furthering” the government’s compelling interest in enforcing Title VII and rejecting RFRA defense where teacher was fired for being unmarried and pregnant).
C. The district court erred in granting summary judgment on the clothing benefit claim.
The district court applied an erroneous legal standard in concluding that the EEOC could not pursue the clothing benefit claim as to a class of women because it did not fall within an investigation reasonably expected to grow out of Stephens’ charge. Opinion, R.76, PageID#2223-34. In
61

reaching this conclusion, the court relied on EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977). Bailey, however, is in tension with subsequent rulings of the Supreme Court and this Court. Even if Bailey remains good law, it is not controlling here because it is factually distinguishable.
In Bailey, the plaintiff, who was Caucasian, filed a charge of sex discrimination as to pay and promotion. Id. at 442. She later amended the charge to include discriminatory hiring against African-Americans. Id. During the EEOC’s investigation, a company employee admitted it failed to hire an applicant because of religion. Id. at 442, 444. The EEOC issued a determination finding cause as to racial and religious discrimination in hiring. Id. at 442. On appeal, this Court held that the “allegations of religious discrimination exceeded the scope of the EEOC investigation . . . reasonably expected to grow out of [the] charge of sex and race discrimination.” Id. 446. Therefore, this Court said, the EEOC could not pursue the religious discrimination claim. Id. This Court was unswayed by the EEOC’s argument that because the facts relating to the religious discrimination claim “emerged during a legitimate investigation of [the]
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sex discrimination,” the EEOC had authority to pursue the claim. Id. at 448. Rather, this Court held, “when discrimination[] of a kind other than that raised by a charge filed by an individual party and unrelated to the individual party, come[s] to the EEOC’s attention during the course of an investigation,” the EEOC must file a Commissioner’s charge. Id.
Bailey is difficult, if not impossible, to reconcile with General Telephone Co. of the NW, Inc. v. EEOC, 446 U.S. 318 (1980), which the district court failed to consider. In General Telephone, issued three years after Bailey, the Supreme Court clarified that “EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable. See, e. g., EEOC v. General Electric Co., 532 F.2d 359, 366 (CA4 1976); EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 (CA6 1975).” 446 U.S. at 331 (holding that EEOC need not comply with Rule 23 when pursuing relief on behalf of a class of victims). General Telephone therefore stands for the proposition that the EEOC may pursue claims beyond those in the charge, so long as the investigation was
63

reasonable (and the claims are included in the determination and subject to conciliation). This is different than stating, as this Court held in Bailey, that no matter the reasonableness of the EEOC’s actual investigation and what the agency learned during it, newly-discovered violations may be pursued only if they reasonably could have been expected to have grown out of the charge.
The conflict between Bailey and General Telephone is evident when considering the Fourth Circuit’s ruling in EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976). While Bailey seemed to disagree with General Electric, the Supreme Court in General Telephone cited General Electric with approval. Compare Bailey, 563 F.2d at 448 (citing to the dissent in General Electric), with General Telephone, 446 U.S. at 331 (citing General Electric with approval). In General Electric, the Fourth Circuit held that the EEOC could pursue claims for sex discrimination that arose during the agency’s investigation of charges alleging race discrimination. The court explained that a charge provides a “jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices” and that the
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investigation might reveal additional violations. Id. at 364 (internal
quotation marks and citation omitted). The EEOC may pursue in court any
violations it uncovers during a reasonable investigation, the court held, so
long as the uncovered discrimination was included in the cause
determination and conciliated. Id. at 366.
Significantly, the Fourth Circuit explicitly rejected the notion—which
Bailey endorsed—that the EEOC is obligated to pursue a Commissioner’s
charge for any violations unearthed during an investigation that are
unrelated to the charge. The Fourth Circuit stated that:
If the EEOC uncovers during that investigation facts which support a charge of another discrimination than that in the filed charge, it is neither obliged to cast a blind eye over such discrimination nor to sever those facts and the discrimination so shown from the investigation in process and file a Commissioner’s charge thereon, thereby beginning again a repetitive investigation of the same facts already developed in the ongoing investigation. To cast a blanket over such facts in the ongoing proceedings would be a violation of the EEOC’s statutory obligation in the area of employment discrimination.
Id. at 365. The Fourth Circuit held that the EEOC could pursue a claim of
sex discrimination in hiring that was uncovered during “the course of a
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reasonable investigation of the charges” alleging race discrimination in hiring, as both were based on certain tests required of applicants. Id. at 368.
Bailey also appears to be in tension with other decisions of this Court issued after General Telephone. For instance, in EEOC v. Shoney’s, Inc., the charging party alleged sex and national origin discrimination as to his suspension and termination. No. 93-5583, 28 F.3d 1213, at *1 (6th Cir. Aug. 18, 1994) (per curiam) (unpublished). The EEOC later sued for national origin and race discrimination, which it discovered during the investigation of the charge. Id. On appeal, this Court held that “the EEOC’s complaint [of race discrimination] did not go beyond the scope of the EEOC investigation reasonably expected to grow out of the charge.” Id. at *4 (reversing attorneys’ fees award) (emphasis added). While the Shoney panel purported to apply Bailey, id., the dissent stated that the charge contained “no hint of race discrimination” and appeared to question whether Bailey therefore required a different result. Id. at *6 (Nelson, J., dissenting).
Bailey was also based on misconceptions concerning the EEOC’s administrative process. This Court expressed concern that in the absence of
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a Commissioner’s charge, an employer will be deprived of notice of the newly-discovered violation and, therefore, deprived of a meaningful chance to participate in the investigation and conciliation. 563 F.2d at 448. This is incorrect. “The purpose of the EEOC’s investigation . . . is to determine if there is a basis for that charge. The reasonable cause [] determination . . . is designed to notify the employer of the EEOC’s findings and to provide a basis for later conciliation proceedings.” EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984). This process allows room for the EEOC to investigate any additional violations ascertained during the investigation and to notify the employer of them in the reasonable cause determination, which then provides the framework for meaningful conciliation. This is, in fact, what happened in Keco, where this Court held that EEOC could pursue relief as to a class of victims—even though the charge alleged only individual discrimination—following the EEOC’s inclusion of the class claim in the reasonable cause determination and the agency’s effort to conciliate the class claim. Id. at 1100-1102. See also Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1655-56 (2015) (where EEOC
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received individual charge but sued as to a class, ruling that EEOC satisfies its conciliation obligation by “inform[ing] the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause[,]’” and providing the employer with the opportunity to resolve the case).
The Commission therefore urges this Court to clarify, consistent with General Telephone, that the EEOC is entitled to pursue relief for any violations ascertained during the course of a reasonable investigation, where those violations are included in the reasonable cause determination and are subject to conciliation. Under the General Telephone standard, EEOC was clearly entitled to pursue the clothing allowance claim because it was “ascertain[ed] in the course of a reasonable investigation of the charging party’s complaint.” General Telephone, 446 U.S. at 331. Stephens’ charge alleged the Funeral Home fired her when she announced her intention to undergo gender transitioning. During the investigation, an employee told the EEOC’s investigator that Stephens was fired because she refused to continue wearing the “company provided” suit, shirt, and tie. At that
68

point, the investigator asked whether women were provided suits or uniforms, and the witness responded no, not in the last ten or fifteen years. Id. Notes, R.54-24, PageID#1513. Thus, this claim was discovered during the EEOC’s reasonable investigation of Stephens’ charge.
It is also undisputed that the reasonable cause determination notified the Funeral Home of the clothing benefit claim. Determination, R.63-4, PageID#1968 (finding “reasonable cause to believe that the Respondent discriminated against its female employees by providing male employees with a clothing benefit which was denied to females, in violation of Title VII”). Likewise, it is undisputed that the EEOC provided the Funeral Home with an opportunity to informally resolve the clothing benefit claim. See R.74, Exhibit, PageID#2165 (filing sealed proposed conciliation agreement); Opinion, R.76, PageID#2221 n.20 (quoting from proposed conciliation agreement). The EEOC thus satisfied its administrative prerequisites to suit as to the clothing benefit claim, entitling the agency to include the claim in its complaint. See Mach Mining, 135 S. Ct. at 1655-56; Keco, 748 F.2d at 1100.
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The agency had no obligation to pursue a Commissioner’s charge in order to pursue the clothing allowance claim; to the contrary, the agency would have disregarded its statutory obligations had it “cast a blind eye” over the uncovered violation. General Electric, 532 F.2d at 365. Requiring the EEOC to go back to the drawing board and start over with a new charge “would result in an inexcusable waste of valuable administrative resources and an intolerable delay in the enforcement of rights which require a timely and effective remedy.” Id. (internal quotation marks omitted).
Even if Bailey remains good law, the district court’s ruling was erroneous. Unlike Bailey, where the EEOC’s complaint added a claim of discrimination (religion) not encompassed in the original charge (alleging race and sex discrimination), in this case the EEOC’s clothing allowance claim, like the termination claim, alleged sex discrimination. Therefore, this case does not raise the question of whether the EEOC may seek relief for a different kind of discrimination than that alleged in the charge.
In further contrast to Bailey, where it was unreasonable to expect the religious claim to surface during the charge’s investigation, here it was
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reasonable to expect that the investigation of Stephens’ charge of transgender discrimination would touch upon the Funeral Home’s sexspecific dress code and would therefore also bring up that the company supplied the male employees with suits and ties. This case is also distinguishable from Bailey because unlike that case, in which the religion claim was unrelated to the charging party, in this case the clothing allowance claim related to Stephens; had Stephens been permitted to continuing working during her transition to a female, she, too, would have been a victim of the Funeral Home’s discriminatory clothing allowance discrimination (since women did not receive a stipend until after EEOC filed suit). Accordingly, even under Bailey, the EEOC’s clothing allowance claim was within the agency’s authority to pursue. Summary judgment should therefore be reversed on the EEOC’s clothing benefit claim.
CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.
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Respectfully submitted, JAMES L. LEE Deputy General Counsel JENNIFER S. GOLDSTEIN Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel s/Anne Noel Occhialino ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov
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CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 12,780 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino 14 point.

Dated: February 10, 2017

s/Anne Noel Occhialino ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov
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CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system on February 10, 2017, and that counsel of record for the Funeral Home has consented to electronic service and will be served the foregoing brief via the appellate CM/ECF system.
s/Anne Noel Occhialino ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., 5th Fl. Washington, D.C. 20507 (202) 663-4724 (phone) (202) 663-7090 (fax) Annenoel.Occhialino@eeoc.gov
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Docket # 1 7 13 21 22 51 51-10 51-12 51-16 51-21 54
54-2 54-15 54-21 54-22

ADDENDEUM Document Complaint Motion to Dismiss Amended Opinion & Order Amended Complaint Answer EEOC motion for summary judgment Dress Code Cash Deposition (excerpt) Rost Deposition (excerpt) Def. Answers to Discovery Requests Funeral Homes’ motion for summary judgment Rost Affidavit Stephens Deposition (excerpt) Stephens’ Letter Charge
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Page ID # 1-5 22-47 182-197 241-249 250-255 591-642 826-828 1838 769 832-33
1289-1321 1334-1335 1455 1494 1497

54-23 54-24 55 61 63-5 63-4 76 77 78

Position Statement

1499-1504

Investigator Notes

1513

Funeral Homes’ Statement of Facts

1683-1702

Funeral Homes’ Counter Statement of Facts 1824-1843

Rost Deposition (excerpt)

1974-1975

Letter of Determination

1968

Summary Judgment Opinion

2179-2234

Judgment

2235

Notice of Appeal

2236

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 Case: 16-2424 Document: 28-1 Filed: 03/27/2017 Page: 1

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: March 27, 2017

Mr. Richard Brian Katskee Americans United for Separation of Church and State 1310 L Street, N.W., Suite 200 Washington, DC 20005
Mr. Jordan W. Lorence Alliance Defending Freedom 440 First Street, N.W., Suite 600 Washington, DC 20001
Mr. Gregory R. Nevins Lambda Legal Defense and Education Fund Southern Regional Office 730 Peachtree Street, N.E., Suite 1070 Atlanta, GA 30308-1210
Ms. Anne Noel Occhialino U.S. Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E., 5SW20L Washington, DC 20507
Re: Case No. 16-2424, EEOC v. R.G. &. G.R. Harris Funeral Originating Case No. : 2:14-cv-13710
Dear Counsel:
The Court issued the enclosed Order today in this case.
Sincerely yours,

cc: Mr. Gary McCaleb Mr. Douglas G. Wardlow Mr. David J. Weaver
Enclosure

s/Jeanine R. Hance on behalf of Renee Jefferies Case Manager Direct Dial No. 513-564-7021

Case: 16-2424 Document: 28-2 Filed: 03/27/2017 Page: 1

No. 16-2424

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff-Appellant,

)

)

v.

)

)

R.G. & G.R. HARRIS FUNERAL HOMES, INC., )

)

Defendant-Appellee.

)

)

FILED
Mar 27, 2017 DEBORAH S. HUNT, Clerk
O R D E R

Before: GILMAN and GIBBONS, Circuit Judges; HOOD, District Judge.*

In this action under Title VII, the Equal Employment Opportunity Commission (“EEOC”) appeals the partial dismissal of its complaint and the partial summary judgment for R.G. & G.R. Harris Funeral Homes, Inc. (“Harris”). The charging party, Aimee Stephens, moves to intervene as a matter of right or, alternatively, permissively. The EEOC has not responded to the motion. Harris opposes intervention, and Stephens replies.
We may grant a motion to intervene as a matter of right, Fed. R. Civ. P. 24(a), or as a matter of discretion, Fed. R. Civ. P. 24(b). Rule 24 is “broadly construed in favor of potential intervenors.” Purnell v. Akron, 925 F.2d 941, 950 (6th Cir. 1991). To intervene as a matter of right, the movant must satisfy four elements: that the request for intervention is timely; that the movant has a substantial legal interest in the case; that the movant’s interest will be impaired absent intervention; and that the parties already before the court cannot adequately represent that * The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.

Case: 16-2424

Document: 28-2 Filed: 03/27/2017
No. 16-2424 -2-

Page: 2

interest. Stupak-Thrall v. Glickman, 226 F.3d 467, 472 (6th Cir. 2000). For permissive intervention, a movant’s request must be timely and there must be “at least one common question

of law or fact.” Id. Thus, under both subsections, the threshold issue is timeliness. Blount-Hill v. Zelman,

636 F.3d 278, 283−84, 287 (6th Cir. 2011). In evaluating timeliness, we consider: (1) the point

to which the suit has progressed; (2) for what purpose intervention is sought; (3) the length of

time preceding the motion during which the intervenor knew or reasonably should have known

of her interest in the case; (4) the prejudice to the original parties due to the intervenor’s failure

to seek intervention sooner after recognizing her interest was implicated; and (5) any unusual

circumstances weighing for or against intervention. See id. at 284. No single factor is determinative; instead, timeliness “should be evaluated in the context of all relevant

circumstances.” Stupak-Thrall, 226 F.3d at 472−73.

Given that Stephens knew or should have known about this case at the outset, her delay

in seeking to intervene suggests that her request is untimely. See United States v. Tennessee, 260 F.3d 587, 594 (6th Cir. 2001). But “[t]he absolute measure of time between the filing of the

complaint and the motion to intervene is one of the least important of these circumstances.”

Stupak-Thrall, 226 F.3d at 475. The “more critical factor is what steps occurred along the

litigation continuum during this period of time.” Id. Until recently, Stephens had no reason to

question whether the EEOC would continue to adequately represent her interests. Measuring the

timing of Stephens’s motion against current events, however, her request to intervene is timely—

if not premature. The EEOC’s recent actions imply that the new administration will less aggressively pursue transgender rights. Thus, while Stephens’s fears that the EEOC will not

support her case or withdraw from her case have yet to crystallize, the totality of the

circumstances supports permitting her to intervene. Harris should not be prejudiced, given

Stephens’s concession in her reply that she does not intend to raise new issues. Stephens’s

Case: 16-2424

Document: 28-2 Filed: 03/27/2017
No. 16-2424 -3-

Page: 3

intervention will also serve judicial economy, should the EEOC withdraw, because it will not require delaying the case for another motion to intervene or additional briefing.

The remaining criteria support Stephens’s intervention, either as a matter of right or permissively. With regard to intervention as a matter of right, Stephens unquestionably

possesses a substantial legal interest in this case. And the remaining requirements are minimal ones: a movant need only show that representation of her interest “may be” inadequate. Ne.

Ohio Coal. for Homeless v. Blackwell, 467 F.3d 999, 1007−08 (6th Cir. 2006). She has met that

minimal burden here. And, because Stephens is raising at least some of the same legal issues,

permissive intervention is also favored.

The motion to intervene is therefore GRANTED, for briefing purposes only. Stephens shall file her brief on or before twenty days from the date of entry of this order. Harris’s briefing

time shall not begin until Stephens files her brief. Should the appeal be scheduled for oral

argument, Stephens may move the court at that time for permission to participate. See 6th Cir.

R. 24(e).

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 No. 16-2424 IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and
AIMEE STEPHENS, Intervenor,

v.

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
Defendant-Appellee.
On Appeal from a Final Judgment of the United States District Court for the Eastern District of Michigan
Case No. 2:14-cv-13710, Hon. Sean F. Cox
Brief of Seventy-Six Members of the Clergy; Americans United for Separation of Church and State; The Anti-Defamation League; Bend the Arc: A Jewish Partnership for Justice; Central Conference of American Rabbis; Hadassah, the Women’s Zionist
Organization of America, Inc.; The Interfaith Alliance Foundation; Keshet; Muslim Advocates; People for the American Way Foundation; Reconstructionist Rabbinical Association;
Reconstructionist Rabbinical College / Jewish Reconstructionist Communities; Union for Reform Judaism; The United Synagogue of
Conservative Judaism; and Women of Reform Judaism as Amici Curiae Supporting Appellant and Intervenor and Reversal

STEVEN M. FREEMAN DAVID L. BARKEY MIRIAM L. ZEIDMAN
Anti-Defamation League 605 Third Avenue 10th Floor New York, NY 10158 (212) 885-7700

RICHARD B. KATSKEE CARMEN GREEN KELLY M. PERCIVAL* BRADLEY GIRARD
Americans United for Separation of Church and State
1310 L Street, NW Suite 200 Washington, DC 20005 (202) 466-3234

Counsel for Amici Curiae

* Admitted in California only; supervised by Richard B. Katskee, a member of the D.C. Bar.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations and Financial Interest

Sixth Circuit Case Number: 16-2424

Case Name: EEOC v. R.G & G.R. Harris Funeral

Name of counsel: Richard B. Katskee

Pursuant to 6th Cir. R. 26.1, the amici religious and civil-rights organizations
Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
N/A

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:
N/A

CERTIFICATE OF SERVICE
I certify that on _____________A_p_r_i_l _2_6_, _2_0_1_7_____________ the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Richard B. Katskee

This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

6CA-1 8/08

Page 1 of 2

TABLE OF CONTENTS
Corporate Disclosure Statement .......................................................................... i Table of Authorities ............................................................................................ iii Interests of the Amici Curiae ...............................................................................1 Introduction and Summary of Argument ............................................................3 Argument...............................................................................................................6
I. The Establishment Clause Forbids Religious Accommodations That Harm Third Parties. ..........................................................................6
II. The Mortuary Has Failed To Demonstrate A Substantial Burden On Its Religious Exercise. .......................................................... 15
Conclusion .......................................................................................................... 26 Certificate of Compliance .................................................................................. 28 Certificate of Service.......................................................................................... 29 Appendix of Amici Curiae.................................................................................. 1a
Members of the Clergy.................................................................................. 1a Religious and Civil-Rights Organizations ................................................... 6a Designation of Relevant District Court Documents

TABLE OF AUTHORITIES
Cases
Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004) ................................................................... 17
Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) ..................................................................... 3
Braunfeld v. Brown, 366 U.S. 599 (1961) ................................................................................... 8
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) ......................................................................... 6, 12
Clark v. Martinez, 543 U.S. 371 (2005) ........................................................................... 10, 11
Corley v. United States, 556 U.S. 303 (2009) ................................................................................. 16
Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) ................................................................................... 9
Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), petition for cert. filed, 2016 WL 3971309 (U.S. July 25, 2016) (No. 16-111) ............................. 24
Cutter v. Wilkinson, 544 U.S. 709 (2005) ....................................................................... 4, 11, 12
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ........................................................... 18, 19
EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015) ....................................................................... 24, 25
Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013) .......................................................................... 24

TABLE OF AUTHORITIES—continued
Emp’t Div. v. Smith, 494 U.S. 872 (1990) ................................................................................. 13
Estate of Thornton v. Caldor, 472 U.S. 703 (1985) ....................................................................... 7, 11, 22
Gen. Conference Corp. of Seventh-day Adventists v. McGill, 617 F.3d 402 (6th Cir. 2010) ................................................................... 16
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ........................................................................... 13, 16
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) ................................................................. 11
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) ............................................................. 17, 18
Hibbs v. Winn, 542 U.S. 88 (2004) ................................................................................... 16
Holt v. Hobbs, 135 S. Ct. 853 (2015) ........................................................................... 6, 12
Hosanna–Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012) ................................................................................... 9
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ........................................................... 22, 23
Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th Cir. 2007) ............................................................. 19
iv

TABLE OF AUTHORITIES—continued
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) ........................................................................... 15, 16
Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011) ......................................................... 17, 18
Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014), vacated on other grounds, 135 S. Ct. 1914 (2015) .................................................... 20
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) ......................................................... 11, 20
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) ................................................13, 14, 20, 23
Otten v. Balt. & Ohio R.R. Co., 205 F.2d 58 (2d Cir. 1953)....................................................................... 22
Prince v. Massachusetts, 321 U.S. 158 (1944) ................................................................................... 8
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) ................................................................................... 24
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) ................................................................................. 24
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) ............................................................................. 23, 24
Sherbert v. Verner, 374 U.S. 398 (1963) ........................................................................... 13, 23
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ..................................................................... 3
v

TABLE OF AUTHORITIES—continued
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ....................................................................................... 7
Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707 (1981) ................................................................................. 20
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) ..................................................................................... 8
United States v. Lee, 455 U.S. 252 (1982) ............................................................................. 8, 10
United States v. Sterling, 75 M.J. 407 (C.A.A.F. 2016), petition for cert. filed, 2016 WL 7494794 (U.S. Dec. 23, 2016) (No. 16-814) ............................. 18
Van Orden v. Perry, 545 U.S. 677 (2005) ................................................................................. 26
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)..................................................................... 20
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ................................................................................... 9
Wilson v. James, No. 15-5338, 2016 WL 3043746 (D.C. Cir. May 17, 2016).......................................................................... 18
Wisconsin v. Yoder, 406 U.S. 205 (1972) ............................................................................. 8, 23
Statutes, Rules, and Regulations
Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) ................................................................................ 24
vi

TABLE OF AUTHORITIES—continued Religious Freedom Restoration Act,
42 U.S.C. §§ 2000bb et seq................................................................passim Religious Land Use and Institutionalized Persons Act,
42 U.S.C. §§ 2000cc et seq. ............................................................ 4, 11, 17 Other Authorities 139 Cong. Rec. E1216-01 (daily ed. May 11, 1993) ..................................... 14 139 Cong. Rec. E1234-01 (daily ed. May 11, 1993) ..................................... 14 139 Cong. Rec. S14,350-01 (daily ed. Oct. 26, 1993) ................................... 14 139 Cong. Rec. S14,352 (daily ed. Oct. 26, 1993) .................................. 14, 20 S. Rep. No. 103-111 (1993)........................................................................... 14
vii

INTERESTS OF THE AMICI CURIAE1 Amici are seventy-six members of the clergy and fourteen religious and civil-rights organizations. Amici represent diverse denominations and faith traditions but share a common commitment to robust constitutional and statutory protections for religious freedom. These protections include the rights of individuals and their houses of worship to preach, teach, and practice their faith but do not include the right to impose one’s faith on others or to harm third parties in derogation of federal or state antidiscrimination laws. In this case, a for-profit mortuary invokes the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq., to exempt itself from Title VII’s prohibitions against workplace discrimination. If this Court were to afford RFRA the expansive interpretation and application that the mortuary seeks and the district court applied, the result would be massive and unconstitutional encroachment on the religious-freedom rights of all persons. Amici therefore have a strong interest in ensuring that the Court correctly applies RFRA so that it remains the shield for religious freedom that
1 Amici affirm that no counsel for a party authored this brief in whole or in part and that no person other than amici, their members, or their counsel made a monetary contribution intended to fund the brief’s preparation or submission. The parties have consented to the filing of this brief.

Congress intended, and does not become a sword in the hands of some to impose their religious beliefs on others.
The amici, described in more detail in the Appendix, are:  Seventy-six members of the clergy, representing a wide array of faiths and denominations.  Americans United for Separation of Church and State.  The Anti-Defamation League.  Bend the Arc: A Jewish Partnership for Justice.  Central Conference of American Rabbis.  Hadassah, the Women’s Zionist Organization of America, Inc.  Keshet.  The Interfaith Alliance Foundation.  Muslim Advocates.  People for the American Way Foundation.  Reconstructionist Rabbinical Association.  Reconstructionist Rabbinical College / Jewish Reconstructionist Communities.  Union for Reform Judaism.  The United Synagogue of Conservative Judaism.  Women of Reform Judaism.
2

INTRODUCTION AND SUMMARY OF ARGUMENT Aimee Stephens lost her job of six years—her vocation and her livelihood—because she did not conform to her boss’s views on sex roles and gender identity. As a matter of law, “[s]ex stereotyping based on a person’s gender nonconforming behavior is impermissible discrimination, irrespective of the cause of that behavior.” Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004). Hence, firing Stephens, a transgender employee, for “failure to conform to sex stereotypes” (Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005)) violated Title VII’s prohibitions against sex discrimination (see, e.g., id.; Smith, 378 F.3d at 575). The court below acknowledged this binding precedent, correctly concluding that the EEOC had stated a valid sexstereotyping claim. R. 76, Opinion & Order Mots. Summ. J., PageID #2197– 98. But the defendant mortuary asserted that it had a religious motivation for firing Stephens and argued that the Religious Freedom Restoration Act exempts for-profit corporations from otherwise-applicable antidiscrimination laws whenever their unlawful actions are based on or reflect religious belief. Hence, the mortuary contended, Title VII’s bar on sex discrimination cannot be enforced against it because the mortuary owner’s views about what men and women ought to look like are informed by his faith. The court below
3

agreed, adopting an unprecedented interpretation of RFRA that allows forprofit employers to flout federal employment-discrimination law.
That interpretation cannot be correct. Amici agree with the EEOC and the Intervenor that prohibiting the mortuary from firing Stephens serves the compelling governmental interest of combatting sex discrimination in the workplace, and that it does so using the least restrictive means. But this Court need not reach those questions to decide this appeal, because RFRA is inapplicable as a matter of law; and even if it were applicable, the mortuary failed to satisfy RFRA’s statutory prerequisites.
1. The Supreme Court has made clear that when analyzing religious exemptions from generally applicable laws—including RFRA, its sister statute the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq., and accommodations sought thereunder— “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U.S. 709, 720 (2005). To do otherwise would violate the Establishment Clause. Id. This constitutional limitation prohibits providing a religious exemption, under RFRA or otherwise, when, as here, it would impose meaningful harms on third parties.
2. Even if RFRA could be applied here, the mortuary failed to satisfy RFRA’s prerequisite. When a party asserts a RFRA claim or defense, it bears the legal burden to show that the challenged governmental action places a
4

“substantial[ ] burden” on the party’s “exercise of religion.” 42 U.S.C.

§ 2000bb-1(b). Only if the RFRA claimant first successfully makes that

showing does the legal burden shift to the government to justify its behavior

as narrowly tailored to serve a compelling interest. Here, the precondition is

not met: Being forbidden to fire an employee because she does not conform to

one’s religious beliefs about how men and women are supposed to dress is not

a legally cognizable substantial burden on one’s religious exercise. Hence, the

compelling-interest test is not triggered, and the mortuary’s RFRA defense

fails at the outset.

*

*

*

Were the district court’s decision to stand, for-profit businesses would

have broad—indeed, nearly limitless—license to engage in unlawful and

invidious discrimination through a simple expedient: describing their

discrimination as religiously based. Employers could prohibit employees from

becoming pregnant out of wedlock, refuse to place women in managerial

positions, or require employees to wear the symbols of the employer’s

religion—and fire those who do not comply. RFRA provides important

safeguards for religious exercise. But it does not and cannot upend all

employment-discrimination law. The district court’s decision should be

reversed.

5

ARGUMENT The proper application of RFRA necessarily turns on two considerations: the Establishment Clause—which prohibits the government from granting religious exemptions that materially harm third parties—and RFRA’s own statutory prerequisite that only religious exercise that has been substantially burdened may receive the Act’s protections. The asserted defense here fails in both respects. I. The Establishment Clause Forbids Religious Accommodations That Harm Third Parties. The Establishment Clause prohibits granting religious exemptions from generally applicable laws if those exemptions would have a “detrimental effect on any third party.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2781 n.37 (2014); see also Holt v. Hobbs, 135 S. Ct. 853, 867 (2015) (Ginsburg, J., concurring). Yet the court below concluded that RFRA could and did permissibly exempt the mortuary from Title VII, thereby allowing violations of third parties’ Title VII rights, because the motivation for the violation was religiously based. That reading of RFRA cannot be squared with binding Supreme Court precedent or the Establishment Clause’s requirements. 1. The constitutional rule against affording religious exemptions that impose material burdens on third parties is well-settled.
6

In Estate of Thornton v. Caldor, 472 U.S. 703 (1985), for example, the Supreme Court invalidated a statute that guaranteed employees the day off on the Sabbath of their choosing. Id. at 709–10. Because the statute required “those who observe a Sabbath . . . as a matter of religious conviction [to] be relieved of the duty to work on that day, no matter what burden or inconvenience this impose[d] on the employer or fellow workers,” it “impermissibly advance[d] a particular religious practice” and could not stand. Id. at 708–09, 710.
Similarly, in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), the Court struck down a sales-tax exemption for religious periodicals that would have “burden[ed] nonbeneficiaries by increasing their tax bills by whatever amount [was] needed to offset the benefit bestowed on subscribers to religious publications.” Id. at 18 n.8. In doing so, the Court explained that it had upheld religious exemptions from general laws only when the “legislative exemptions . . . did not, or would not, impose substantial burdens on nonbeneficiaries while allowing others to act according to their religious beliefs.” Id.
2. The Supreme Court’s Free Exercise Clause jurisprudence underscores this limitation by recognizing that governmental action taken in the name of protecting religion or religious exercise cannot be required—or
7

even permitted—when that action would transgress the Establishment Clause’s bar on third-party harms.
In United States v. Lee, 455 U.S. 252 (1982), the Court rejected an Amish employer’s request for a religious exemption from paying socialsecurity taxes, explaining that the exemption would impermissibly “operate[ ] to impose the employer’s religious faith on the employees.” Id. at 261. In Braunfeld v. Brown, 366 U.S. 599 (1961), the Court refused to recognize an exemption from a Sunday-closing law for orthodox Jews, whose businesses were already closed on Saturday for the Jewish Sabbath. Id. at 609. The Court explained that the requested exemption, if allowed, may have “provide[d] [the plaintiffs] with an economic advantage over their competitors who must remain closed on [Sunday].” Id. at 608–09. And in Prince v. Massachusetts, 321 U.S. 158 (1944), the Court denied a request for an exemption from child-labor laws to allow minors to distribute religious literature, because while “[p]arents may be free to become martyrs themselves . . . it does not follow [that] they are free, in identical circumstances, to make martyrs of their children.” Id. at 170.2
2 See also, e.g., Wisconsin v. Yoder, 406 U.S. 205, 235–36 (1972) (religious exemption from compulsory-education law granted only after Amish parents “carried the . . . difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education” to meet the children’s educational needs); cf. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 80–81 (1977) (Title VII’s reasonable-accommodation requirement
8

3. Indeed, there has been only one narrow set of circumstances (in two cases) in which the Supreme Court has ever upheld religious exemptions that had the effect of burdening third parties in any meaningful way—and that was when the Free Exercise Clause required the exemption because of the core constitutional protections (embodied in the Establishment and Free Exercise Clauses) for the autonomy and ecclesiastical authority of religious institutions. In Hosanna–Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 196 (2012), the Court held that the Americans with Disabilities Act could not be enforced against a church in a way that would interfere with the church’s selection of its ministers. And in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337–39 (1987), the Court upheld under Title VII’s limited religious exemption (not applicable here) a church’s firing of an employee who was not in religious good standing.
These exemptions from antidiscrimination statutes did not amount to impermissible religious favoritism and were constitutionally permissible under the Establishment Clause because they applied to the internal
does not authorize religious exemptions that would burden employer or other employees); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 630 (1943) (religious exemption from flag-salute requirement under Free Speech Clause “does not bring [plaintiffs] into collision with rights asserted by any other individual,” and “refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to [participate]”).
9

governance and management of religious institutions. Those institutions are entitled to hire only their coreligionists so as not to intrude on their ability to minister to their congregants and propagate their religious tenets in accordance with the dictates of their faith. Hosanna Tabor and Amos were about avoiding interference in the internal workings of the churches, which would have raised serious concerns under both the Free Exercise and Establishment Clauses.
In contrast, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, . . . the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee, 455 U.S. at 261. Avoiding interference with the core ecclesiastical functions of a religious institution simply has no bearing on a private, for-profit business’s desire to violate Title VII by engaging in sex discrimination—even if that desire to discriminate is religiously motivated.
4. As a matter of both substantive constitutional law and constitutional avoidance, therefore, RFRA should be interpreted so as not to authorize exemptions that harm third parties, because to do otherwise would require invalidation of the Act, either facially or on an as-applied basis. See Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (“[W]hen deciding which of two plausible statutory constructions to adopt, a court must consider the
10

necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail” because the courts must assume that Congress intended that its statutes be enforceable).
And, in fact, that is precisely how the Supreme Court has already interpreted both RFRA and its sister statute, RLUIPA.3 Hence, in Cutter, which upheld RLUIPA’s protections for religious exercise by inmates, the Supreme Court explained that to “[p]roperly apply[ ] RLUIPA”—and necessarily, therefore, RFRA as well—courts “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries” and must ensure that the accommodation does “not override other significant interests.” 544 U.S. at 720, 722 (citing Thornton, 472 U.S. at 709–10). In other words, a religious exemption cannot materially harm nonbeneficiaries, for if it did, the governmental action of granting that accommodation—e.g., of enacting or applying RFRA or RLUIPA—would have the effect of preferring and supporting the religious views of the requesting party while compelling nonadherents to pay the price. In that case, the accommodation would run afoul of the Establishment Clause’s clear mandates.
3 RFRA and RLUIPA employ virtually identical language and serve the same congressional purposes. Compare 42 U.S.C. § 2000bb-1 with 42 U.S.C. § 2000cc-1. See generally Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 661 (10th Cir. 2006). Accordingly, courts rely on RFRA and RLUIPA cases interchangeably in interpreting and applying the statutes. Id.; Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1226–27 (11th Cir. 2004).
11

The Supreme Court again underscored this rule in Hobby Lobby. In concluding that certain closely held corporations are entitled to a religious accommodation with respect to the Affordable Care Act’s contraceptivecoverage requirement, the Hobby Lobby Court reaffirmed the test from Cutter and then applied it to hold that the requested accommodation (i.e., the application of RFRA) was constitutionally permissible because it could be provided without “any detrimental effect on any third party.” 134 S. Ct. at 2781 n.37 (citing Cutter, 544 U.S. at 720). Indeed, every member of the Court, whether in the majority or in dissent, reaffirmed that the burdens on third parties must be considered. See id.; id. at 2786–87 (Kennedy, J., concurring); id. at 2790, 2790 n.8 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ., dissenting). The majority held that RFRA could (and therefore did) provide a right to the requested accommodation only after the majority first determined that “the effect of the . . . accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” Id. at 2760; see also id. at 2781–82. The same was true in Holt, in which the Court granted a Muslim inmate an exemption from prisongrooming regulations where “accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.” 135 S. Ct. at 867 (Ginsburg, J., concurring).
12

5. Interpreting RFRA not to license religious exemptions that materially harm third parties is correct not just as a matter of First Amendment jurisprudence and constitutional avoidance, but also as a matter of congressional intent.
Before 1990, the Supreme Court had interpreted the Free Exercise Clause to require application of the compelling-interest test whenever religious exercise was substantially burdened by governmental action. See, e.g., Sherbert v. Verner, 374 U.S. 398, 407 (1963). In Employment Division v. Smith, 494 U.S. 872 (1990), however, the Court held that generally applicable laws that are facially neutral with respect to religion (i.e., they do not specifically favor one faith or denomination over others) are presumed to be constitutional and therefore are subject to only minimal rational-basis review. Thus, the Court held in Smith that the enforcement of neutral drug laws—and the concomitant denial by Oregon of unemployment benefits to persons fired for drug use—did not violate the free-exercise rights of members of the Native American Church who ingested peyote as a sacrament. Id. at 890.
Congress responded by enacting RFRA to restore by statute the preSmith free-exercise jurisprudence that the Supreme Court had abrogated. See 42 U.S.C. § 2000bb; Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006); Navajo Nation v. U.S. Forest Serv., 535
13

F.3d 1058, 1069 (9th Cir. 2008); S. Rep. No. 103-111, at 8 (1993). In doing so, Congress necessarily adopted into RFRA the limitations on religious exemptions in pre-Smith free-exercise law, because those limitations define the constitutional metes and bounds of accommodation. Congress therefore never contemplated that RFRA would afford religious accommodations that imposed material costs, burdens, or harms on third parties. See, e.g., 139 Cong. Rec. S14,350-01 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy) (“The act creates no new rights for any religious practice or for any potential litigant. Not every free exercise claim will prevail, just as not every claim prevailed prior to the Smith decision.”); 139 Cong. Rec. S14,352 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch) (RFRA “does not require the Government to justify every action that has some effect on religious exercise”).4
4 The scope of accommodations considered during the congressional debate is illustrative. See 139 Cong. Rec. E1234-01 (daily ed. May 11, 1993) (statement of Rep. Cardin) (contemplated accommodations included burying veterans only on days of the week permitted or required by decedents’ religious beliefs and refraining from conducting religiously forbidden autopsies); 139 Cong. Rec. E1216-01 (daily ed. May 11, 1993) (statement of Rep. Margolies-Mezvinsky) (contemplated accommodations included protecting ability to take communion and to abide by kosher diet); 139 Cong. Rec. S14,350-01 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch) (contemplated accommodations included allowing individuals to volunteer at nursing homes).
14

Congress’s intent is clear: RFRA protects religious exercise, but it is not an instrument for imposing one’s beliefs on others. The mortuary cannot, therefore, assert a cognizable RFRA defense.

*

*

*

The district court created an exemption from Title VII to allow for-profit

businesses to discriminate against employees on the basis of sex-

stereotyping, thereby granting to businesses the otherwise-unlawful

statutory right to force employees to comply with their employers’ religious

beliefs on pain of termination. That ruling cannot be squared with

unambiguous Supreme Court precedent and the clear intent of the Congress

that enacted RFRA. Aimee Stephens lost her job because she did not conform

to her boss’s views on sex roles and gender identity. Under any other

circumstance, Title VII would have protected her. The result can be no

different when RFRA is invoked, because RFRA does not—and cannot—

elevate an asserted religious interest in discriminating over the rights of

innocent third parties who are the victims of the discrimination. The

Establishment Clause admits of no other conclusion.

II. The Mortuary Has Failed To Demonstrate A Substantial Burden On Its Religious Exercise.
“However much we might wish that it were otherwise, government

simply could not operate if it were required to satisfy every citizen’s religious

15

needs and desires.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 452 (1988). Recognizing this limitation, Congress expressly wrote into RFRA the same critical prerequisite to free-exercise claims found in preSmith free-exercise law: The party invoking RFRA must demonstrate that the government has imposed a substantial burden on its religious exercise. Only then does the burden of persuasion shift to the government to show that its actions are narrowly tailored to serve a compelling governmental interest. 42 U.S.C. § 2000bb-1; O Centro, 546 U.S. at 424; Gen. Conference Corp. of Seventh-day Adventists v. McGill, 617 F.3d 402, 410 (6th Cir. 2010).
As a matter of both statutory construction and congressional intent, the substantial-burden-on-religious-exercise prerequisite must be read to have meaningful and objective content. It cannot be the case—nor is it—that mere invocation of religious belief as a rationale for violating the law is sufficient to trigger RFRA’s burden-shifting and heightened scrutiny. Indeed, should courts automatically jump to strict-scrutiny analysis whenever a religious motivation is cited, as the mortuary proposes here, the result would be to violate the basic canon that a “‘statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’” Corley v. United States, 556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).
The mortuary has failed to make this required threshold showing.
16

1. To assert a defense under RFRA, a party must “demonstrat[e] the honesty and accuracy of his contention that the religious practice at issue is important to the free exercise of his religion.” Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004). The religious practice need not be “central to the adherent’s religious belief system” (id.5), but there must be a sufficient “nexus” between the religious belief and the asserted religious practice to show that the government is “forc[ing the parties] to engage in conduct that their religion forbids or . . . prevent[ing] them from engaging in conduct [that] their religion requires” (Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011) (quoting Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001))). Merely asserting that an action is religiously motivated is insufficient to make that action “religious exercise” under RFRA.
Suppose, for example, that federal law required that all children living on a military base receive a wellness check-up before enrolling in the base’s daycare, but a parent asserted that RFRA exempted her children from this requirement because of that parent’s religious objection to blood transfusions. The religious objection, though sincere, would be inadequate to establish that refusing wellness check-ups is RFRA-protected religious exercise, because
5 RFRA’s definition of “exercise of religion” was amended by RLUIPA in 2000 to cover “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5; id. § 2000bb2(4).
17

medical check-ups are not blood transfusions. See, e.g., Wilson v. James, No. 15-5338, 2016 WL 3043746, at *1 (D.C. Cir. May 17, 2016) (RFRA did not protect member of National Guard against discipline for sending e-mail decrying marriage of same-sex couples as a “mockery to god” because Guardsman “failed to show this letter of reprimand substantially burdened any religious action or practice”); Mahoney, 642 F.3d at 1120–21 (RFRA did not protect plaintiff’s drawing on White House sidewalk because plaintiff described no religious belief that required him to make the drawings); Henderson, 253 F.3d at 16 (RFRA did not protect selling of T-shirts on National Mall, in violation of ban on peddling, because plaintiffs “d[id] not claim to belong to any” “religious group that has as one of its tenets selling [T]-shirts on the National Mall”); United States v. Sterling, 75 M.J. 407, 418– 19 (C.A.A.F. 2016) (RFRA did not protect Marine corporal’s placement of religious signage in public workspace on military base because, though corporal testified about her religious beliefs, “she did not testify that she believed it is any tenet or practice of her faith to display signs at work”), petition for cert. filed, 2016 WL 7494794 (U.S. Dec. 23, 2016) (No. 16-814); see also Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1397–98 (4th Cir. 1990) (pre-Smith free-exercise law did not protect church school’s decision to pay men more than women, in violation of Fair Labor Standards Act, because
18

“church members testified that the Bible does not mandate a pay differential based on sex”).
2. Were the rule otherwise, every time a party ventured to assert that an official act somehow implicated religion, the courts would immediately and automatically have to apply strict judicial scrutiny, forcing the government to satisfy the extraordinarily onerous compelling-interest test. That would not be workable for government or the courts—which would grind to a halt under an avalanche of litigation. Nor would it provide the protection for religious exercise that Congress intended. For without the gatekeeping function of RFRA’s prerequisite, genuine claims for religious accommodation would receive just the same treatment as, and therefore be difficult to distinguish from, mere rhetoric. And Congress and the Executive Branch might be deterred from accommodating religious exercise in the future for fear that any accommodation could likewise be expansively invoked to the point that it derails the government’s entire regulatory program. Religious freedom is far better served by providing for a system of accommodations that treats substantial claims seriously, as Congress has specified.
3. What is more, this Court has rightly held that RFRA’s prerequisite substantial-burden-on-religious-exercise “hurdle is high and . . . determining its existence is fact intensive.” Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007). Courts have thus identified
19

only two ways that governmental action might constitute a substantial burden on religious exercise: by “putting substantial pressure on an adherent . . . to violate his beliefs” (Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)), or by forcing an adherent to choose between practicing his faith and receiving a generally available public benefit (see Navajo Nation, 535 F.3d at 1070; Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007); see also Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 384 (6th Cir. 2014), vacated on other grounds, 135 S. Ct. 1914 (2015)). Simply put, RFRA “does not require the Government to justify every action that has some effect on religious exercise.” See 139 Cong. Rec. S14,352 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch); see also Town of Surfside, 366 F.3d at 1227 (substantial-burden requirement means “more than an inconvenience on religious exercise”).
4. The requisite nexus between belief and practice does not exist here. In his affidavit, mortuary-owner Thomas Rost explains that he “believe[s] that the Bible teaches that God creates people male or female” (R. 54-2, Rost Aff. ¶ 41, PageID #1334); that “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex” (id. ¶ 42); that “it is wrong for a biological male to deny his sex by dressing as a woman” (id. ¶ 44); and that it is wrong for Rost himself
20

to “be directly involved in supporting the idea that sex is a changeable social construct” (id. ¶¶ 43, 45, 46, PageID #1334–35).
Yet Rost’s own explanation for why he fired Ms. Stephens has nothing to do with any of that. Rather, Rost identifies ordinary business interests— namely that, in his view, having a transgender employee would “disrupt the grieving process for the families” using the mortuary’s services (id. ¶ 37, PageID #1333), “disrupt our clients’ healing process” (id. ¶ 38), “harm[ ] my clients and my business and business relationships” (id. ¶ 39), and “drive[ ] away many of my prospective clients” (id. ¶ 40, PageID #1334). Far from contending that his religious beliefs forbid employing (or require firing) transgender persons, he expressly states that he “would not have dismissed Stephens if Stephens had expressed to me a belief that [s]he is a woman” and would “present as a woman outside of work, so long as [s]he would have continued to conform to the dress code for male funeral directors while at work.” Id. ¶ 50, PageID #1336. Firing Stephens because he thinks that her presence at the mortuary would be bad for business has nothing whatever to do with Rost’s proffered beliefs that her gender identity or her actions consistent with it are sinful.
5. But even if Rost’s decision to fire Stephens was genuinely motivated by his religious beliefs rather than by business concerns, his declaration to the contrary notwithstanding, the required nexus would still be missing. Title
21

VII does not force Rost to violate his religious beliefs about sex and gender. What is required of him and of the mortuary is that they not bar employees, on pain of termination, from acting against the employees’ own beliefs and identity. Objecting to others’ conduct, even on religious grounds, is not a cognizable substantial burden on religious exercise under RFRA.
Thus, in Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008), the D.C. Circuit held that the Federal Bureau of Prisons could collect and store a sample of the inmate-plaintiff’s DNA, notwithstanding the plaintiff’s sincere belief that “‘DNA sampling, collection and storage’ ‘defile[ ] God’s temple.’” Id. at 677–80 (quoting complaint). The court concluded that there was no substantial burden on the plaintiff’s religious exercise in having his DNA collected because, although the plaintiff was required to submit to the collection, he himself was not coerced into doing the collecting and storing of the samples. Thus, he was objecting to the actions of others, not to actions required of him. Id. at 679–80; cf. Thornton, 472 U.S. at 710 (“The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.”) (quoting Otten v. Balt. & Ohio R.R. Co., 205 F.2d 58, 61 (2d Cir. 1953)).6
6 Because RFRA was intended to return free-exercise law to its preSmith contours (see 42 U.S.C. § 2000bb; see also Part I, supra), the courts regularly look to pre-Smith Free Exercise Clause jurisprudence—such as Thornton—in determining whether the threshold requirement of a
22

6. Nor can it be said that the government has in any legally cognizable way coerced Rost to “be directly involved in supporting the idea” that one’s sex may be changed (R. 54-2, Rost Aff. ¶¶ 43, 45, 46, PageID #1334–35). Title VII requires employers to hire and fire without regard to race, sex, color, national origin, and religion. Bare compliance with the law does not constitute “support” for employees’ race, sex, religion, or anything else—much less does it amount to legally cognizable compelled support for an employee’s actions, consistent with that employee’s own faith, on matters of marriage, pregnancy, abortion, choice in or number of romantic partners, use or non-use of birth control, use or non-use of fertility treatments, or anything else.
Employers are required to—and do—comply with all manner of antidiscrimination requirements every day. Yet no court of which we are aware has ever considered compliance with those legal obligations to constitute personal endorsement of the protected employees’ behavior. Cf. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 65 (2006) (requiring universities to allow military recruiters on campus did not violate universities’ First Amendment rights because even “high school students can appreciate the difference between speech a school sponsors and
“substantial burden” on the “exercise of religion” has been met. See e.g., Kaemmerling, 553 F.3d at 678–80. As the Ninth Circuit explained: “[T]he cases that RFRA expressly adopted and restored—Sherbert [374 U.S. at 398], Yoder [406 U.S. at 205], and federal court rulings prior to Smith—also control the ‘substantial burden’ inquiry.” Navajo Nation, 535 F.3d at 1069.
23

speech the school permits because legally required to do so”); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 841–42 (1995) (being required to provide funds on equal basis to religious as well as secular student publications does not constitute state university’s support for students’ religious messages); PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980) (views expressed by members of public who speak on shoppingmall property under equal-access policy are not attributable to mall’s owner); Elane Photography, LLC v. Willock, 309 P.3d 53, 69–70 (N.M. 2013) (serving all customers on equal basis in compliance with antidiscrimination statute does not express support for customers’ decisions to marry partners of the same sex); Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 287 (Colo. App. 2015) (same), petition for cert. filed, 2016 WL 3971309 (U.S. July 25, 2016) (No. 16-111).
Hence, employers who believe that sex outside wedlock is a sin do not express support for nonmarital sex when they comply with the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), by not firing unmarried pregnant employees. Devout Jewish employers do not support non-Jewish faiths when they adhere to Title VII by retaining employees who decline to wear a yarmulke; and non-Jewish employers do not support Judaism when they retain employees who do wear one. Non-Muslim employers do not support Islam by retaining employees who wear hijab. Cf. EEOC v. Abercrombie &
24

Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015). Monotheists do not support

polytheism when they fail to fire employees who are Hindu. Non-Sikhs do not

support Sikhism when they fail to fire male employees who wear long hair

and a turban. And white employers who believe in their own racial

superiority as a matter of divine mandate do not suffer RFRA-triggering

burdens on their religious exercise when they obey the law by not firing

African-American employees. In the same way, RFRA-protected religious

exercise is not implicated when the mortuary here is prevented from firing

Stephens, even if the mortuary owner disfavors on religious grounds

Stephens’ gender identity or her actions in accordance therewith.

*

*

*

Thomas Rost was and is free to believe as he wishes and to act

consistently with those beliefs, including by living his own life according to

his personal religious views about gender and sex roles. True, the mortuary

cannot fire employees who fail to live according to its owner’s religious

beliefs. But that really just means that sometimes at work one has to be

around others who practice a different faith—or those who are of a different

race or sex or national origin—or those who live in accordance with their

beliefs—or those who may at some point and in some way fail to live up to

one’s own beliefs about how to live. If that were a legally cognizable

substantial burden on religious exercise—and especially if an employer

25

merely had to assert such religious differences to trigger strict scrutiny under RFRA—Title VII’s mandates against workplace discrimination would be voided whenever an employer articulated a religious basis for otherwiseillegal conduct. This incorrect interpretation of RFRA would also encourage the civic “divisiveness based upon religion” (Van Orden v. Perry, 545 U.S. 677, 698 (2005) (Breyer, J., concurring)) that is so injurious to a pluralistic society, and is one of the prime evils that both of the First Amendment’s Religion Clauses were designed to forestall. And because authority and sheer numbers in the workplace will surely matter in determining who gets treated with favor and who with disfavor, the approach advocated by the mortuary would be especially injurious to religious minorities—those most in need of RFRA’s protections.
CONCLUSION RFRA does not and cannot apply when a requested accommodation or exemption from a general law like Title VII would detrimentally impose the costs of the RFRA claimant’s religious beliefs or practices on third parties. And even if RFRA could potentially apply, Harris Funeral Homes has failed to satisfy the Act’s congressionally mandated prerequisite—a requirement that is critical to safeguarding the very religious freedom for all persons that RFRA was designed to protect. Hence, this Court need not reach the
26

compelling-interest test to conclude that the mortuary’s RFRA defense fails as a matter of law.
The judgment of the district court should be reversed.

Respectfully submitted,
STEVEN M. FREEMAN DAVID L. BARKEY MIRIAM L. ZEIDMAN
Anti-Defamation League 605 Third Avenue 10th Floor New York, New York 10158 (212) 885-7700

/s/ Richard B. Katskee
RICHARD B. KATSKEE CARMEN GREEN KELLY M. PERCIVAL* BRADLEY GIRARD
Americans United for Separation of Church and State
1310 L Street NW, Suite 200 Washington, D.C. 20005 (202) 466-3234

Counsel for Amici Curiae Date: April 26, 2017

*A member of the California bar. Supervised by Richard B. Katskee, a member of the D.C. bar.
27

CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32(g), the undersigned counsel certifies that this brief: (i) complies with the type-volume limitations of Rules 29(a)(5) and 32(a)(7)(B) because it contains 5,986 words, including footnotes and excluding the parts of the brief exempted by Rule 32(f); and (ii) complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office Word 2013 and is set in Century Schoolbook font in a size that measures to 14 points or larger.
/s/ Richard B. Katskee
28

CERTIFICATE OF SERVICE I certify that on April 26, 2017, the foregoing brief was filed using the Court’s CM/ECF system. All participants in the case are registered CM/ECF users and will be served electronically via that system.
/s/ Richard B. Katskee
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APPENDIX OF AMICI CURIAE MEMBERS OF THE CLERGY
The individual amici are seventy-six members of the clergy who represent a wide array of faiths and denominations. These faith leaders believe in the robust right of free exercise of religion, which protects the right to believe and to practice one’s faith but does not grant license to use the law to impose one’s faith on others.
 Rabbi Adina Allen, The Jewish Studio Project, Berkeley, California.  The Reverend J.D. Allen, Pastor, First United Methodist Church, Boyd,
Texas.  The Reverend Phillip B. Allen, Providence Baptist Church,
Hendersonville, North Carolina.  The Reverend Victoria Reed Bailey, University United Methodist
Church, Austin, Texas.  Rabbi Shelley Kovar Becker, Gishrei Shalom Jewish Congregation,
Southington, Connecticut.  Rabbi Phyllis Berman, Philadelphia, Pennsylvania.  Rabbi Jonathan Biatch, Temple Beth El, Madison, Wisconsin.  The Reverend Anna K. Blaedel, University of Iowa Wesley Foundation,
Iowa City, Iowa.  The Reverend Brian Carter, Aldersgate United Methodist Church,
Windsor Heights, Iowa.  The Reverend Nancy E. Brink, The Donna (Ford) and Fahmy Attallah
Endowed Director of Church Relations, Chapman University, Orange, California.  The Reverend Steven Clunn, Upper New York Annual Conference, United Methodist Church, Alexandria, Virginia.
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 Rabbi Eric S. Cohen, Ph.D., Temple Israel, Manchester, New Hampshire.
 The Reverend Harry T. Cook, Detroit, Michigan.  Jennifer E. Copeland, Ph.D., Executive Director, North Carolina
Council of Churches.  The Reverend Dr. Monica Corsaro, Director of Spiritual Life, Knox
College, Galesburg, Illinois.  The Reverend William Donaher, Christ Church of Cranbrook,
Bloomfield Hills, Michigan.  The Reverend Elizabeth Morris Downie, St. Augustine’s Episcopal
Church, Wilmette, Illinois.  Pastor Manisha Dostert, Christ Church of Cranbrook, Bloomfield Hills,
Michigan.  The Reverend Elizabeth M. Edman, Episcopal Priest and author of
Queer Virtue: What LGBTQ People Know About Life and Love and How It Can Revitalize Christianity, New York, New York.  The Reverend Becky Edmiston-Lange, Emerson Unitarian Universalist Church, Houston, Texas.  The Reverend Dr. Marvin M. Ellison, Director of Alumni/ae Relations, Union Theological Seminary, New York, New York.  Rabbi Dr. Andrew Vogel Ettin, Spiritual Leader, Temple Israel, Salisbury, North Carolina.  Rabbi David Fainsilber, Morrisville, Vermont.  Rabbi Jeffrey Falich, Birmingham Temple, Farmington Hills, Michigan.  The Reverend Paul A. Fleck, Pastor, Hamden Plains United Methodist Church, Hamden, Connecticut.  The Reverend Morris V. Fleischer, Pastor, Newport–Mt. Olivet United Methodist Church, Newport, Virginia.  The Reverend Charles A. Fredrickson, The Lutheran Church of the Good Shepherd, San Antonio, Texas.
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 The Reverend Beth Galbreath, Crossroads United Methodist Church, Brookfield, Illinois.
 The Reverend Dr. Daniel R. Gangler, Retired, Meridian Street United Methodist Church, Indianapolis, Indiana.
 The Reverend Wendall Gibbs Jr., 10th Bishop of Michigan, Episcopal Church of the United States, Detroit, Michigan.
 Rabbi Seth Goldstein, President of the Reconstructionist Rabbinical Association, Olympia, Washington.
 The Reverend Gregory D. Gross, Deacon, Berry United Methodist Church, Chicago, Illinois.
 The Reverend Dr. Sid Hall III, Senior Minister, Trinity Church of Austin, United Methodist Church and United Church of Christ, Austin, Texas.
 The Reverend Victoria Jewell, St. Mary Magdalen Catholic Faith Community, Baltimore, Maryland.
 The Reverend Elizabeth Jones, United Methodist Church, Seal Rock, Oregon.
 The Reverend Dr. Neal Jones, Main Line Unitarian Church, Devon, Pennsylvania.
 The Reverend Dr. David W. Key Sr., National Board Chair-Elect of the Association of Welcoming and Affirming Baptists, Lake Oconee, Georgia.
 The Reverend Cindy Kennedy, Gathering House Ministries, Whitesboro Texas.
 The Reverend Dr. D. Andrew Kille, Silicon Valley Interreligious Council, San Jose, California.
 Rabbi Jason Kimelman-Block, Bend the Arc: A Jewish Partnership for Justice, Washington, D.C.
 Rabbi Tamara Kolton, Detroit, Michigan.  Rabbi Van Lanckton, Temple B’nai Shalom, Braintree, Massachusetts.
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 Rabbi Alan LaPayover, Reconstructionist Rabbinical College, Philadelphia, Pennsylvania.
 The Reverend Ardis Letey, United Methodist Church, Seal Rock, Oregon.
 Rabbi Sarra Lev, Reconstructionist Rabbinical College, Philadelphia, Pennsylvania.
 The Reverend Douglas S. Long, Umstead Park United Church of Christ, Raleigh, North Carolina.
 The Reverend Dr. James Lumsden, First Church of Christ, Pittsfield, Massachusetts.
 Rabbi Marc Margolius, West End Synagogue, New York, New York.  The Reverend Joyce Matthews, Christ Church of Cranbrook, Bloomfield
Hills, Michigan.  The Reverend Dr. Fran Mayes, Retired, Universal Fellowship of
Metropolitan Community Churches, Whitmore Lake, Michigan.  Rabbi Margot Meitner, The Meeting Point and Hebrew College, Boston,
Massachusetts.  The Reverend Sharon L. Moe, Senior Minister, First United Methodist
Church, Seattle, Washington.  The Reverend Gary Nims, Grace United Methodist Church, Des
Moines, Iowa.  The Reverend Zach Oaster, Worship Director, Trinity United Methodist
Church, Grand Rapids, Michigan.  The Reverend Jonathan C. Page, Senior Minister, First Congregational
Church, Houston, Texas.  Chris O’Rear, Licensed Clinical Pastoral Therapist, Nashville,
Tennessee.  Catherine Lesley Randall, Priestess of Wicca, The Church of Our Lady
of the Woods, Inc., Jemez Springs, New Mexico.  The Reverend Imogen Rhodenhiser, Christ Church of Cranbrook,
Bloomfield Hills, Michigan. 4a

 The Reverend Renee Roederer, Community Chaplain, Presbytery of Detroit, Ann Arbor, Michigan.
 The Reverend Dr. Rollin O. Russell, Conference Minister Emeritus, Southern Conference, United Church of Christ, Hillsborough, North Carolina.
 Rabbi Merrill Shapiro, Retired from Temple Shalom of Deltona, Palm Coast, Florida.
 The Reverend Barry Sharp, United Methodist Deacon, Cedar Park, Texas.
 The Reverend Dr. Douglas Sharp, Colorado Springs, Colorado.  Rabbi Becky Silverstein, Los Angeles, California.  Rabbi Samuel M. Stahl, Emeritus, Temple Beth-El, San Antonio,
Texas.  The Reverend Terri Stewart, Associate Pastor, Roverton Park United
Methodist Church, Tukwila, Washington.  The Reverend Jerald M. Stinson, Senior Minister Emeritus, First
Congregational Church, Long Beach, California.  The Reverend Les Switzer, Retired, First Congregational Church,
Houston, Texas.  The Reverend Dr. Christy Thomas, Retired, United Methodist Pastor,
Frisco, Texas.  The Reverend Adrienne Trevathan, Deacon & Associate Minister, Holy
Covenant United Methodist Church, Chicago, Illinois.  The Reverend Linda Walker, Lead Pastor, Crossroads of Life Prison
Faith Community, Lincoln, Illinois.  Rabbi Deborah Waxman, Ph.D., President, Reconstructionist
Rabbinical College / Jewish Reconstructionist Communities, Wyncote, Pennsylvania.  Rabbi Elyse Wechterman, Executive Director, Reconstructionist Rabbinical Association, Wyncote, Pennsylvania.
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 The Reverend Ken Wilson, Co-Pastor, Blue Ocean Faith Church, Ann Arbor, Michigan.
 The Reverend Robert A. Wilson, Retired, First United Methodist Church, Pittsburgh, Pennsylvania.
 The Reverend Kevin Young, Senior Minister, St. John’s United Methodist Church, Lubbock, Texas.
RELIGIOUS AND CIVIL-RIGHTS ORGANIZATIONS Americans United for Separation of Church and State
Americans United for Separation of Church and State is a national, nonsectarian public-interest organization that works to protect the rights of individuals and communities to worship as they see fit and to preserve the separation of church and state as a vital component of democratic governance. Americans United represents more than 125,000 members and supporters across the country, including thousands who reside in this Circuit. Since its founding in 1947, Americans United has regularly served as a party, as counsel, or as an amicus curiae in scores of church-state cases before the U.S. Supreme Court, this Court, and other federal and state courts nationwide. The Anti-Defamation League
The Anti-Defamation League was organized in 1913 with a dual mission to stop the defamation of the Jewish people and to secure justice and fair treatment to all. Today, it is one of the world’s leading organizations
6a

fighting hatred, bigotry, discrimination, and anti-Semitism, and safeguarding individual religious liberty. ADL is a staunch supporter of antidiscrimination laws and of the religious liberties guaranteed by both the Establishment and Free Exercise Clauses. It vigorously supported the Religious Freedom Restoration Act as a means to protect individual religious exercise, but not as a vehicle to discriminate by enabling some Americans to impose their religious beliefs on others. Bend the Arc: A Jewish Partnership for Justice
Bend the Arc: A Jewish Partnership for Justice is the nation’s leading progressive Jewish voice empowering Jewish Americans to be advocates for the nation’s most vulnerable. Bend the Arc mobilizes Jewish Americans beyond religious and institutional boundaries to create justice and opportunity for all, through bold leadership development, innovative civic engagement, and robust progressive advocacy. Hadassah, the Women’s Zionist Organization of America, Inc.
Hadassah, the Women’s Zionist Organization of America, Inc., founded in 1912, is the largest Jewish and women’s membership organization in the United States, with more than 330,000 Members, Associates, and supporters nationwide. While traditionally known for its role in developing and supporting healthcare and other initiatives in Israel, Hadassah has a proud history of protecting the rights of women and the Jewish community in the
7a

United States. Hadassah vigorously condemns discrimination of any kind and, as a pillar of the Jewish community, understands the dangers of bigotry. Hadassah strongly supports the constitutional guarantees of religious liberty and equal protection, and rejects discrimination on the basis of gender identity. The Interfaith Alliance Foundation
The Interfaith Alliance Foundation is a 501(c)(3) nonprofit organization that celebrates religious freedom by championing individual rights, promoting policies to protect both religion and democracy, and uniting diverse voices to challenge extremism. Founded in 1994, the Interfaith Alliance Foundation’s members belong to 75 different faith traditions as well as no faith tradition. The Interfaith Alliance Foundation has a long history of working to ensure that religious freedom is a means of safeguarding the rights of all Americans and is not misused to favor the rights of some over others. Keshet
Keshet is a national organization that works for full LGBTQ equality and inclusion in Jewish life. Led and supported by LGBTQ Jews and straight allies, Keshet cultivates the spirit and practice of inclusion in all parts of the Jewish community. Our work is guided by a vision of a world where all Jewish organizations and communities are strengthened by LGBTQ-inclusive
8a

policy, programming, culture, and leadership, and where Jews of all sexual orientations and gender identities can live fully integrated Jewish lives. Muslim Advocates
Muslim Advocates is a national legal-advocacy and educational organization formed in 2005 that works on the front lines of civil rights to guarantee freedom and justice for Americans of all faiths. Muslim Advocates advances these objectives through litigation and other legal advocacy, policy engagement, and civic education. Muslim Advocates also serves as a legal resource for the American Muslim community, promoting the full and meaningful participation of Muslims in American public life. People for the American Way Foundation
People For the American Way Foundation is a nonpartisan civic organization established to promote and protect civil and constitutional rights, including religious liberty. Founded in 1981 by a group of civic, educational, and religious leaders, PFAWF now has hundreds of thousands of members nationwide. Over its history, PFAWF has conducted extensive education, outreach, litigation, and other activities to promote these values. PFAWF strongly supports the principle that the Religious Freedom Restoration Act and the Free Exercise Clause of the Constitution are a shield for the exercise of religion, protecting individuals of all faiths. Indeed, PFAWF’s advocacy affiliate, People For the American Way, was deeply
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involved in drafting and helping secure the enactment of RFRA. PFAWF is concerned, however, about efforts, such as in this case, to transform this important shield into a sword to attack other important interests and harm third parties when actual religious exercise has not been substantially burdened. PFAWF is thus concerned about efforts to interpret RFRA to require religious accommodations that harm the interests of third parties. Reconstructionist Rabbinical Association
The Reconstructionist Rabbinical Association is a 501(c)3 organization that serves as the professional association of 340 Reconstructionist rabbis and the rabbinic voice of the Reconstructionist movement and a Reconstructionist Jewish voice in the public sphere. Based on our understanding of Jewish teachings that every human being is created in the divine image, we have long advocated for public policies of inclusion, antidiscrimination, and equality. As a part of the Reconstructionist movement, we have recently released a comprehensive statement on the advocacy for and inclusion of people who are transgender, nonbinary, and gender nonconforming. Reconstructionist Rabbinical College / Jewish Reconstructionist Communities
The Reconstructionist Rabbinical College / Jewish Reconstructionist Communities is the central organization of the Reconstructionist movement.
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We train rabbis and other leaders, provide support and resources for more than 100 affiliated communities, and are actively involved in imagining a vital Jewish future. We work to bring about a more just and compassionate world where creative Jewish living and learning guide us toward lives of holiness, meaning, and purpose. Based on our understanding of Jewish teachings that every human being is created in the divine image, we have long advocated for public policies of inclusion, antidiscrimination and equality. As a part of the Reconstructionist movement, we have recently released a comprehensive statement on the advocacy for and inclusion of people who are transgender, nonbinary, and gender nonconforming. Union for Reform Judaism, Central Conference of American Rabbis, and Women of Reform Judaism
The Union for Reform Judaism, whose 900 congregations across North America includes 1.5 million Reform Jews, the Central Conference of American Rabbis, whose membership includes more than 2000 Reform rabbis, and Women of Reform Judaism, which represents more than 65,000 women in nearly 500 women’s groups in North America and around the world, come to this issue rooted in our proud legacy of defending both religious freedom and civil rights.
11a

The United Synagogue of Conservative Judaism The United Synagogue of Conservative Judaism is the congregational
arm of Conservative Judaism in North America. USCJ is committed to dynamic Judaism that is learned and passionate, authentic and pluralistic, joyful and accessible, egalitarian and traditional, and thereby seeks to create the conditions for a powerful and vibrant Jewish life for the individual members of its sacred communities, regardless of gender identity or sexual orientation.
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DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

Document Description

Record No.

PageID# Range

Amended Complaint

21

241–249

Answer

22

250–256

EEOC’s Motion for Summary

51

Judgment

591–640

Harris Funeral Homes’ Motion

54

for Summary Judgment

1285–1321

Affidavit of Thomas Rost

54-2

1325–1338

Harris Funeral Homes’

60

Response to Motion for

Summary Judgment

1770–1801

EEOC’s Response to Motion for

63

Summary Judgment

1889–1948

Harris Funeral Homes’ Reply

67

Supporting Motion for

Summary Judgment

2097–2121

EEOC’s Reply Supporting

69

Motion for Summary Judgment

2124–2134

District Court Opinion and

76

Order on Motions for Summary

Judgment

2179–2234

Notice of Appeal

78

2236–2237

 
 No. 16-2424 _______________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
_______________________________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,
AIMEE STEPHENS, Intervenor,
v.
R.G. & G.R. HARRIS FUNERAL HOMES, INC., Defendant- Appellee.
_______________________________________________
On Appeal from the United States District Court for the Eastern District of Michigan, Hon. Sean F. Cox, No. 14-13710
_______________________________________________
AMICUS CURIAE BRIEF OF EQUALITY OHIO IN SUPPORT OF INTERVENOR URGING REVERSAL _______________________________________________
Doron M. Kalir Kenneth J. Kowalski Civil Litigation Clinic Cleveland-Marshall College of Law 1801 Euclid Ave. Cleveland, OH 44115 (216) 687-2300 d.kalir@csuohio.edu
Counsel for Amicus Curiae Equality Ohio

CORPORATE DISCLOSURE STATEMENT Pursuant to Sixth Circuit Rule 26.1, Equality Ohio makes the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly owned corporation?
If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party: No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest: No.
ii

iii

TABLE OF CONTENTS
PAGE
CORPORATE DISCLOSURE STATEMENT……………………………..ii
TABLE OF CONTENTS………………………………………………...…iii
TABLE OF AUTHORITIES…………………………………………….....iv
INTEREST OF AMICUS CURIAE………....……………………………….1
SUMMARY OF ARGUMENT …………………………………………….2
ARGUMENT………………………………………………...……………...4
I. Title VII Applies in This Matter Since the Employer Discriminated Against Stephens “Because of . . . Sex.”……………….4
A. Title VII Prohibits Employers from Relying on Sex-Based Considerations to Make Employment Decisions, Except Where Doing so Constitutes a Bona Fide Occupational Qualification…………………………………………………...4
B. Discrimination Because of an Individual’s Gender Identity Is Actionable Under Title VII Because It Is Motivated by SexBased Considerations…………………………………………..6 1. The meaning of “because of sex” has evolved over time...6
2. Discrimination against Ms. Stephens because of her transsexual identity is unlawful under Title VII…………9
II. The District Court Erred in Holding That Title VII Protection Does Not Apply when the Decision to Terminate Is Based on Transgender Status or Gender Identity…………………………………….....……13
iv

A. The District Court Erred in Failing to Find That Ms. Stephens Was a Member of a Protected Class for Purposes of the Claim of Transgender Status Discrimination…………………………...13
B. The District Court Erred by Posing the Wrong Question……...16 III. As a Matter of Public Policy and the Logical Continuation of
Developing Case Law, This Court Should Hold That Discrimination Because an Individual Is Transsexual Is Discrimination Because of Sex..……………………………………..19 A. While Discrimination Against Transgender Persons Is Not
the Primary Evil Congress Meant to Address in Title VII, Its Language Clearly Includes It…………………………20 B. The Understanding of the Term “Sex” in Title VII Has Evolved Considerably Since 1964...………………………………………………………...21 C. The Employer Cannot Deny Ms. Stephens Her Identity as a Woman………………………………………………………..22
CONCLUSION…………………………………………………………….24 CERTIFICATE OF COMPLIANCE……………………………………....25 CERTIFICATE OF SERVICE AND ELECTRONIC FILING…………....26
v

TABLE OF AUTHORITIES

CASES

PAGE

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)……………………………..15, 17

Bd. of Educ. v. U.S. Dep’t of Educ., No. 2:16-CV-524, 2016 U.S. Dist. LEXIS 131474, *45 (S.D. Ohio)………………………………………………………….18

Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007)……………………………....16

Fabian v. Hosp., of Central Conn., 172 F. Supp. 3d 509 (D. Conn. 2016)…………………7, 17, 18

Jacobs v. Martin Sweets, Co., 550 F.2d 364 (6th Cir. 1977)…………………………….5-6, 12

Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57 (1986)…………………………………………..6-7

Obergefell v. Hodges, 135 S. Ct. 2584 (2015)………………………………………..16

Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75 (1998)……………………………………………20

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)……………………………………..passim

Hively v. Ivy Tech Cmty College of Indiana, No. 115-1720, 2017 U.S. App. LEXIS 5839 (7th Cir. Apr. 4, 2017)……………...………………………………………16, 21

Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)………………………17, 18

vi

Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)……………..…………….passim
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)………………………. 5, 8, 14, 17
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984)……………………………..7, 16
Vickers v. Fairfield Med. Cir., 453 F.3d 757 (6th Cir. 2006)…………………………………16
STATUTES 42 U.S.C. § 2000e-2(a)(1)……….…………………………………………..4
RULES Fed. R. App. P. 29(a)(2)………………………………….………………….1 Fed. R. App. P. 29(a)(4)(E)…………………………………………………1
OTHER AUTHORITIES William N. Eskridge, Jr. and John Farejohn, Super Statutes, 50 Duke L.J. 1215, 1237 (2001)…..……………………………………………………….3 Matthew W. Green, Jr., Same-Sex Sex and Immutable Traits: Why Obergefell v. Hodges Clears a Path to Protecting Gay and Lesbian Employees from Workplace Discrimination Under Title VII, 20 J. Gender Race & Justice 1, 19-20 (2017)……………………………………………..7 Jillian Todd Weiss, Transgender Identity, Textualism, and the Supreme Court: What Is the “Plain Meaning” of “Sex” in Title VII of the Civil Rights Act of 1964?, 18 Temp. Pol & Civ. Rts. L. Rev. 573, 589 (2009)…………..5
vii

“What Does Gender Mean?” American Psychological Association, http://www.apa.org/topics/lgbt/transgender.aspx............................................5 “What Is the Difference Between Sex and Gender?” American Psychological Association, http://www.apa.org/topics/lgbt/transgender.aspx............................................8
viii

INTEREST OF AMICUS CURIAE1
Equality Ohio is a non-profit organization seeking to achieve fair treatment and equal opportunity for all Ohioans, regardless of their sexual orientation or gender identity or expression.
A proud member of the Equality Federation, which supports state members nation-wide (including Michigan), Equality Ohio works closely with legislators and local communities to ensure that policy and law in Ohio are fully inclusive of LGBTQ people. In particular, Equality Ohio seeks to guarantee the rights of transgender persons. For example, last year Equality Ohio worked closely with Cleveland City Council to pass Ordinance 1446, removing discriminatory language from Cleveland’s code and allowing transgender Clevelanders and visitors to have the dignity of using the restroom matching their gender identity. In addition, the organization is currently working with a bi-partisan group of Ohio legislators to pass a bill ending discrimination in employment on the basis of gender identity.
1 Pursuant to Federal Rule of Appellate Procedure 29(a)(2), counsel for amicus curiae certifies that all parties have consented to the filing of this brief. Pursuant to Rule 29(a)(4)(E), counsel certifies that no party’s counsel have authored this brief in whole or in part; that no party or party’s counsel contributed money that was intended to fund preparing or submitting this brief; and that no person — other than the amicus curiae, its members, or its counsel — has contributed money that was intended to fund preparing or submitting this brief.
1

Equality Ohio has a clear interest in this matter. Should the district court opinion stand, transgender persons in Ohio would be negatively affected in several ways. In particular, the legal assertion that an employer can fire a person based solely on their gender identity — and do so with impunity, despite the clear language of Title VII — is offensive and damaging to many a transgender Ohioans.
SUMMARY OF THE ARGUMENT Title VII’s plain language bars discharge of “any individual” — whether transgender or not — “because of such individual’s . . . sex.” It applies whenever employers take gender into account in making employment decisions. It is undisputed that the employer in this case based his decision to terminate Ms. Stephens solely on sex-based considerations. To be sure, he could have terminated Ms. Stephens for a wide array of reasons — tardiness, failure to perform, disciplinary issues — or for no reason at all. Under those circumstances, such termination — even of a transgender person — would not be “because of such individual’s sex.” But that is not the case here. Here, the only reasons provided by the employer were all related, directly and unequivocally, to Ms. Stephen’s sex. Accordingly, Title VII applies, and the discharge should be held unlawful.
2

This argument proceeds in three parts. First, we assert that Title VII directly applies in this matter. More specifically, we explain why discrimination against Ms. Stephens, solely because of her transsexual identity, is discrimination “based on sex” and is therefore unlawful under Title VII.
Second, and consequently, we explain why the district court erred in its analysis of this issue. We review the assertions made by the district court, according to which transgender persons are not protected under Title VII, and show why they were made in error according to Sixth Circuit law.
Finally, we explain why the result we reached is desirable in terms of policy. We explain that recognizing “sex discrimination” in the transgender context is a natural, reasonable interpretation of Title VII. We review both the statute’s legislative history and subsequent legal developments pertaining to sexual minorities and conclude that the result sought here — the protection of transgender persons at work — is both desired and inevitable.
Equality Ohio limits its argument here to the Title VII issues. It does not consider RFRA. With that, Equality Ohio is of the opinion that Title VII is a “super statute,” as noted by Professor Eskridge. 2 Accordingly, no
2 William N. Eskridge, Jr. and John Farejohn, Super Statutes, 50 Duke L.J. 1215, 1237 (2001) (“the Civil Rights Act is a proven super-statute because it embodies a great principle (antidiscrimination), was adopted after
3

employer — whether sued by the Federal Government or otherwise — should
be able to overcome its formidable apparatus simply by invoking RFRA. Title
VII, now over half a century in age, was not designed to be overturned each
time an employer’s religious beliefs (genuine or newly-found) are brought to
the fore.
ARGUMENT
I. Title VII Applies in This Matter Since the Employer Discriminated Against Stephens “Because of . . . Sex.”
A. Title VII Prohibits Employers from Relying on Sex-Based Considerations to Make Employment Decisions, Except Where Doing so Constitutes a Bona Fide Occupational Qualification.
Title VII provides that “it shall be an unlawful employment practice for
an employer to . . . discharge [or otherwise discriminate against] any
individual . . . because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-
2(a)(1). The word any is important here because it means that Title VII’s anti-
discrimination mandate covers any individual, including a transgender person,
an intense political struggle and normative debate and has over the years entrenched its norm into American public life, and has pervasively affected federal statutes and constitutional law. . . . Title VII's principle has been debated, honed, and strengthened through an ongoing give-and-take among the legislative, executive, and judicial branches. . . . [T]he Civil Rights Act's evolution has repeatedly been influenced by social movement ideas and popular pressure on the political process.”).
4

as long that person has been the victim of discrimination because of his or her
sex. See Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) (“[A] label,
such as “transsexual,” is not fatal to a sex discrimination claim where the
victim has suffered discrimination because of his or her gender non-
conformity.”).3
This Court has long recognized that Title VII requires that sex must be
an “irrelevant factor[] in employment opportunity.” Jacobs v. Martin Sweets,
3 The terms “transgender” and “transsexual” are used interchangeably throughout this brief as the former term encompasses the latter. According to the American Psychological Association, the term transgender is an “umbrella term” and may include a variety of individuals whose gender identity or expression transgress binary conceptions of gender. See “What Does Gender Mean?” American Psychological Association, http://www.apa.org/topics/lgbt/transgender.aspx; see also Jillian Todd Weiss, Transgender Identity, Textualism, and the Supreme Court: What Is the “Plain Meaning” of “Sex” in Title VII of the Civil Rights Act of 1964?, 18 Temp. Pol & Civ. Rts. L. Rev. 573, 589 (2009) (explaining that “transgender” may “denote transsexuals, transvestites, crossdressers, and anyone else whose gender identity or gender expression varies from the dimorphic norm”).
The term “transsexual” refers specifically “to people whose gender identity is different from their assigned sex [and who] [o]ften . . . alter or wish to alter their bodies through hormones, surgery, and other means to make their bodies as congruent as possible with their gender identities.” “What Does Gender Mean?,” American Psychological Association, http://www.apa.org/topics/lgbt/transgender.aspx.
Ms. Stephens was diagnosed with Gender Identity Disorder and “was diagnosed as a transsexual,” Opinion & Order, R.76, PageID#2188-10, meaning, according to the authorities cited, that she is also considered to be transgender.
5

Co., 550 F.2d 364, 370 (6th Cir. 1977); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1987) (“In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.”).4 Accordingly, Title VII prohibits employers from relying on sex-based considerations in making employment decisions. See Price Waterhouse, 490 U.S. at 241 (explaining that by using the phrase “because of sex” in Title VII, “Congress meant [only] to obligate . . . [plaintiffs] to prove that the employer relied upon sex-based considerations in coming to its [employment-related] decision”). In this matter, the record is unmistakably clear that the employer’s decision to fire Ms. Stephens because she is transgender included sex-based consideration and runs afoul of Title VII.
B. Discrimination Because of an Individual’s Gender Identity Is Actionable Under Title VII Because It Is Motivated by SexBased Considerations. 1. The meaning of “because of sex” has evolved over time.
It is unclear exactly what Congress intended the term “sex” to mean under Title VII. Legislative history on the matter is sparse. See Meritor Sav.
4 The Court recognized “the special context of affirmative action” and the statutory defense of bona fide occupational qualification as exceptions to the rule. See Price Waterhouse, 490 U.S. at 239 & n.3, 244.
6

Bank, FSB v. Vinson, 477 U.S. 57, 63-64 (1986) (noting that there is “little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on “sex”). The prohibition against sex discrimination was added one day before Congress voted on Title VII, and it is commonly understood that the amendment was a last-ditch effort to scuttle the bill. See, e.g., Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 519 (D. Conn. 2016) (discussing the history of the “sex” amendment to Title VII as well as early judicial treatment of Title VII and transgender identity); see also Matthew W. Green, Jr., Same-Sex and Immutable Traits: Why Obergefell v. Hodges Clears a Path to Protecting Gay and Lesbian Employees from Workplace Discrimination Under Title VII, 20 J. Gender, Race & Justice 1, 19-20 (2017) (discussing legislative history of “sex” amendment).
Courts have long debated what Congress intended by including “sex” among Title VII’s protected traits, particularly when addressing claims by transgender employees. For instance, as this Court explained in Smith, 378 F.3d 566, ostensibly relying on the plain language of the term “sex” and Congressional intent, some early courts rejected claims by transgender plaintiffs, contending that by including sex in Title VII Congress intended only to bar discrimination based on an individual’s anatomical or biological sex. See id. at 573; see also Ulane v. Eastern Airlines, Inc., 742 F.2d 1081,
7

1086 (7th Cir. 1984) (holding that “sex” as used in Title VII means “no more than biological male or biological female”). Some early courts considered transgender discrimination as relating more to an individual’s gender than to his or her sex and thus outside of Title VII’s protection. See Smith, 378 F.3d at 572-73.5
As this Court has recognized, the law in this area significantly shifted after Price Waterhouse v. Hopkins, which held that sex and gender must be treated the same for purposes of Title VII. Smith, 378 F.3d at 573. Thus, discrimination because of the failure to act consistent with certain gender norms associated with one’s sex is actionable discrimination under the statute. Moreover, sex-stereotyping on the basis of an individual’s gender nonconforming behavior is unlawful under Title VII, regardless of whether the basis for that behavior is the individual’s transsexualism. See id. at 574-75.
5 The American Psychological Association distinguishes sex from gender. See “What Is the Difference Between Sex and Gender?,” American Psychological Association, http://www.apa.org/topics/lgbt/transgender.aspx (“Sex is assigned at birth, refers to one’s biological status as either male or female, and is associated primarily with physical attributes such as external and internal anatomy. Gender refers to the socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for boys and men or girls and women.”).
8

2. Discrimination against Ms. Stephens because of her transsexual identity is unlawful under Title VII.
Transsexual persons like Ms. Stephens are not limited to proving sex discrimination by way of gender nonconformity. Rather, sex stereotyping aside, discrimination because an individual is transsexual is necessarily discrimination because of that individual’s sex because it is grounded in sexbased considerations.
As explained, an individual is considered transgender because of the mismatch between gender identity and anatomy. Accordingly, when discrimination occurs because an individual is transgender, that discrimination is not only grounded in the failure of the individual to conform to gender norms concerning how men and women should dress, behave or identify, but is motivated in part by the sex of the individual. The Ninth Circuit recognized the inextricable link between transsexualism and sex in Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000). In Schwenk, a transgender inmate alleged a violation of the Gender Motivated Violence Act (GMVA) after being sexually assaulted by a prison guard. See id. at 1193-95. The court was faced with the issue of whether gender was a motivating factor in the attack, and it looked to Title VII case law to define the term “gender.” See id. at 1201. Consistent with the discussion set forth earlier in this brief, the court explained that early courts addressing the issue considered sex and
9

gender to be distinct concepts, with Title VII barring discrimination because of the former but not on the latter. See id.
Price Waterhouse, of course, collapsed these concepts for purposes of Title VII. The Ninth Circuit went on to explain that “[w]hat matters, for purposes of . . . Price Waterhouse analysis, is that in the mind of the perpetrator the discrimination is related to the sex of the victim: here for example, the perpetrator's [discriminatory] actions stem from [a belief] that . . . the [transsexual] victim was a man who ‘failed to act like’ one.” Id. at 1202. Thus, discrimination against a transsexual individual is motivated by both sex and gender. Title VII requires only that sex be a motivating factor in an adverse employment action. 42 U.S.C. § 2000e-2(m). It does not have to be the sole or exclusive factor. Accordingly, there is no need to rely on gender discrimination or sex stereotyping where an individual shows that sex-based considerations underlay the adverse action. In the instant case, for instance, Aimee Stephens informed the employer that she had been diagnosed with Gender Identity Disorder and was transsexual. Opinion & Order, R.76, PageID#2188-10. Discrimination against her on that basis would be motivated at least in part because of her sex.
Moreover, the employer also impermissibly relied on sex-based considerations when he terminated Ms. Stephens because she notified him that
10

as part of her transition from male to female, she would begin to dress for work consistent with the sex with which she identifies: female. The employer admitted as much when he argued before the district court that RFRA provides a defense to this lawsuit. Describing the employer’s religious beliefs concerning sex, the district court explained that
[the employer] believes “that the Bible teachers that God creates people male or female” . . . [and] . . . “that people should not deny or attempt to change their sex.” [The employer] believes that he “would be violating God’s commands if [he] were to permit one of the [Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the Funeral Home] . . . [and] “that it is wrong from a biological male to deny his sex by dressing as a woman.” Opinion & Order, R.76, PageID#2194-16 through 17 (citations omitted). The aforementioned shows an inextricable link between Ms. Stephens’s sex and the employer’s decision to fire her. In the employer’s own words, he believes that Aimee Stephens’s sex is “immutable” and that because of that immutable sex (which the employer perceived to be male), she was supposed to dress, behave and identify consistent with the anatomy with which she was born. To permit Ms. Stephens to do otherwise, according to the employer, would signify that he agrees with the idea that Ms. Stephens’s “sex is a changeable social construct rather than an immutable God-given gift.” Id. at 17. To be sure, the employer’s views implicate stereotypical notions of how “real men” should identify or present themselves in the workplace. However,
11

by the employer’s admission, Ms. Stephens’s sex necessarily factored into his decision to fire her.
The employer claims that he would not have terminated Ms. Stephens had she dressed in female attire only when not at work. This claim does not change the sex-based considerations underlying her discharge. The employer considered Ms. Stephens to be male, a factor he admits he took into account in terminating her employment. Accordingly, her sex motivated his adverse action. Title VII requires no more. See Price Waterhouse, 490 U.S. at 240 (explaining that by using the phrase because of sex in Title VII, “Congress meant [only] to obligate . . . [plaintiffs] to prove that the employer relied upon sex-based considerations in coming to its [employment-related] decision); Jacobs, 550 F.2d at 370 (explaining that Title VII requires that sex be irrelevant with regard to “employment opportunity”). Whether because of her transsexual identity or the employer’s views regarding how Ms. Stephens should dress because of her anatomy at birth, sex-considerations motivated her discharge.
12

II. The District Court Erred in Holding That Title VII Protection Does Not Apply when the Decision to Terminate Is Based on Transgender Status or Gender Identity. A. The District Court Erred in Failing to Find That Ms. Stephens Was a Member of a Protected Class for Purposes of the Claim of Transgender Status Discrimination. The EEOC’s main argument in this matter was that the Funeral Home’s
decision to terminate Stephens “because Stephens is a transgender” was “motivated by sex-based considerations” and therefore “an unlawful employment practice” under Title VII. Compl. ¶ 15, R.1, PageID#4. The district court denied that argument:6 “like sexual orientation, transgender or transsexual status is currently not a protected class under Title VII.” Order Denying MTD, R.13, PageID#188; see also Opinion & Order, R.76, PageID#2180 (“This Court previously rejected the EEOC’s position that it stated a Title VII claim by virtue of alleging that Stephens’s termination was due to transgender status or gender identity — because those are not protected classes.”).
But this assertion is in error. This Court has held, at least twice, that transgender persons are protected under Title VII.
6 The district court did accept, however, the EEOC’s alternative claim regarding gender non-conforming behavior. We agree with this result, as well with other Briefs’ analyses supporting it.
13

First, in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), this Court reviewed the case of a male firefighter who worked for seven years for the City without an incident. Then, after being diagnosed with a Gender Identity Disorder (GID), he began “‘expressing a more feminine appearance on a fulltime basis.’” Id. at 568. He was fired and brought claim under Title VII. The district court dismissed his claim. This Court reversed, noting:
Smith is a member of a protected class. His complaint asserts that he is a male with Gender Identity Disorder, and Title VII prohibition of discrimination “because of . . . sex” protects men as well as women. The complaint also alleges both that Smith was qualified for the position in question – he would have been a lieutenant in the Fire Department for seven years without any negative incidents – and that he would not have been treated differently, on account of his non-masculine behavior and GID, had he been a woman instead of a man. Id. at 570 (emphasis added; citation omitted). The resemblance to this case is striking. Here, too, Stephens worked for nearly six years, Opinion & Order, R.76, PageID#2187, without any negative incidents. Here, too, Stephens had a Gender Identity Disorder Id., PageID# 2188. Here, too, she was treated differently solely on the account of her GID and her intention — expressed in a letter, never to be carried out — to express herself, by “liv[ing] and work[ing] full-time,” as a woman. Id. Surely, Stephens — like Smith — is a member of a protected class.
14

A year following Smith, in Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), this Court again confirmed that transgender persons are protected under Title VII. In Barnes, this Court examined the case of a police officer who “was living as a pre-operative male-to-female transsexual.” Id. at 733. Hired in 1981 as a man, Barnes successfully passed a promotional test for sergeant seven years later. Id. Still, he was denied the promotion, among other things, “for lack of ‘command presence.’” Id. at 734. Barnes filed a Title VII claim against the City, and the jury awarded him more than $800,000, including compensatory damages, front pay, back pay, and attorneys fees. The City appealed to this Court. This Court affirmed.
Much like the district court here, the City in that case claimed that Barnes “was not a member of protected class.” Id. at 736. This Court denied that claim:
Smith . . . instructs that the City’s claim that Barnes was not a member of a protected class lacks merit. In Smith, this court held that the district court erred in granting a motion to dismiss by holding that transsexuals, as a class, are not entitled to Title VII protection, stating: . . . “a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.” Id. at 737 (citation omitted).
15

Again, the resemblance to this case is uncanny. Here, it is clear that the
district court — relying on a gender-orientation case rather than a transgender
case7 — erred in his analysis.
B. The District Court Erred by Posing the Wrong Question.
In addition to being wrong on the protection granted to transgender
persons in this Circuit, the district court was also wrong in the question it
posed for review.
The district court dismissed the EEOC’s claim that the termination of
Ms. Stephens’s employment was motivated by sex-based characteristics.
Relying on questionable precedent,8 the lower court held that “transgender or
7 The district court relied on Vickers v. Fairfield Med. Cir., 453 F.3d 757 (6th Cir. 2006) (“sexual orientation is not a prohibited basis for discrimination acts under Title VII”). First, Vickers is not a transgender case, and this Court has direct law on the issue. There was, therefore, no need to invoke Vickers in the first place. Second, Vickers is more than a decade old, and perhaps should be re-evaluated in light of recent cases. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (same-sex couples have a constitutional right to marry); and Hively v. Ivy Tech Cmty College of Indiana, No. 115-1720, 2017 U.S. App. LEXIS 5839 (7th Cir. Apr. 4, 2017) (en banc) (Title VII applies to sexual orientation).
8 The district court cited a case from this Court involving a claim of sexual orientation discrimination, Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006), and a transsexual discrimination case from the Tenth Circuit, Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007). Obviously, Vickers dealt with a different issue. Etsitty relies on a line of cases including Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984), which have been undercut by Price Waterhouse. See Schwenk v. Hartford, 204 F.3d 1187,
16

transsexual status is currently not a protected class under Title VII.” Opinion, R.13, PageID#188-89. In framing the issue that way, the district court effectively carved transgender persons out from the protections of Title VII, something that this Court has already criticized in both Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), and Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). As those cases clearly state, transgender individuals are entitled to Title VII’s protection against sex discrimination.
The analysis should begin with the language of the statute itself. Schroer v. Billington, 577 F. Supp. 2d 293, 306 (D.D.C. 2008). Here, the plain language of the statute does not permit the interpretation given it by the Etsitty line of cases. Section 703 of Title VII prohibits an employer from discriminating against “any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). There is no exemption or exception anywhere in the statute for transgender individuals. Like all other individuals, they are protected from discrimination
1201 (9th Cir. 2000); Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 526 (D. Conn. 2016).
17

because of the listed base, including sex — whether male or female. It is hard to imagine a court holding that a transgender person is not protected from discrimination because of race or religion, yet ironically some courts deny such individuals protection from the type of discrimination of which they are most likely to be victims.
Those courts that have focused on whether transsexuals are a protected class “have allowed their focus on the label ‘transsexual’ to blind them to the statutory language itself.” Bd. of Educ. v. U.S. Dep't of Educ., No. 2:16-CV524, 2016 U.S. Dist. LEXIS 131474, *45 (S.D. Ohio Sept. 26, 2016) (quoting Schroer v. Billington, 577 F. Supp. 2d 293, 306-07 (D.D.C. 2008)). While criticizing transgender plaintiffs seeking relief for allegedly trying to create a new class of protected individuals, they have actually gone out of their way to create a new class of unprotected individuals: “the exclusion of discrimination on the basis of transgender identity from the protective scope of Title VII would be to take a certain class of gender nonconformity and reclassify it as a nonprotected status solely in order to exclude it . . . .” Fabian, 172 F. Supp. 3d at 523, relying on this Court’s decision in Smith. This carve-out of transgender persons from the protections of Title VII “is no longer a tenable approach to statutory construction in general,” Schroer, 577 F. Supp. 2d at
18

307, nor can it be reconciled with Price Waterhouse, Schwenk, 204 F.3d at 1201.
The question that should be asked in such cases is not whether transsexuals persons are covered by Title VII, but — as in every other Title VII case — whether the employer has taken “gender into account.” Price Waterhouse v. Hopkins, 490 U.S. at 239 (“Congress’ intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute.”) (plurality opinion). If so, the adverse employment action of the employer was “because of sex” and violated Title VII. III. As a Matter of Public Policy and the Logical Continuation of
Developing Case Law, This Court Should Hold That Discrimination Because an Individual Is Transsexual Is Discrimination Because of Sex. The result we advocate for here — a holding that when a transgender person is terminated “because of [her] . . . sex” she is protected under Title VII — is correct as a matter of positive law; it is correct because the district court erred in its analysis; it is also correct as a matter of policy. To that we arrive now.
19

A. While Discrimination Against Transgender Persons Is Not the Primary Evil Congress Meant to Address in Title VII, Its Language Clearly Includes It.
We begin by conceding that discrimination against transgender persons
may not have been the primary evil Congress intended to eradicate in 1964,
when it enacted Title VII. That, however, should not deter this Court from
arriving at the desired result. The law itself should provide protection against
such discrimination so long as it is covered by its text. As the Supreme Court
has noted, regarding another evil now protected by Title VII:
As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principled evil to cover reasonably comparable evils, and it ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirement.
Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 79-80 (1998)
(emphasis added).
The same is true in the case at bar. There is no doubt that when
an employer decides to terminate a person solely “because of” the
gender that person chose to adopt, the employer’s decision is “because
20

of . . . sex.” In fact, it would be very hard to explain the decision in any other terms: what was it based on, other than “sex” considerations?
Throughout his testimony, the employer in this case referred to Ms. Stephens’s sex. He has done so while referring to Ms. Stephens’s alleged violation of the dress code, because of her sex. Opinion & Order, R.76, PageID#2192-14. He has done so when asserting that “the Bible teaches that a person’s sex is an immutable God-given gift.” Id., PageID#2194 (citing employer’s affidavit). Either way, the reasons that led the employer in this matter to terminate Ms. Stephens were directly, and inexorably, linked to her sex. And this is a quintessential example of sex-based discrimination.
B. The Understanding of the Term “Sex” in Title VII Has Evolved Considerably Since 1964.
The Seventh Circuit, sitting en-banc, has recently authored a comprehensive opinion regarding Title VII and sexual orientation. See Hively v. Ivy Tech Cmty College of Indiana, No. 115-1720, 2017 U.S. App. LEXIS 5839 (7th Cir. Apr. 4, 2017).
In Hively, the court held — in a decision described by its own members as “momentous,” Id. at *50 (Sykes, J., dissenting) — that “discrimination on the basis of sexual orientation is a form of sex discrimination” and therefore covered by Title VII. Id. at *2.
21

Hively discussed in length the evolving understanding of the term “sex”
in Title VII. Although the case involved sexual orientation discrimination,
Judge Posner noted that such evolution applies to transgender persons as well:
discrimination on grounds of “sex” in Title VII received today a new, a broader, meaning. Nothing has changed more in the decades since the enactment of the statutes than attitude towards sex. 1964 was more than a decade before Richard Raskind underwent male-to-female reassignment surgery and took the name Renée Richards, becoming the first transgender celebrity; now of course transgender persons are common.
Id. at *34-35 (Posner, J., concurring).
Moreover, the Hively court observed that “it would require considerable
calisthenics to remove the ‘sex’ from ‘sexual orientation.’” Id. at *24. We
agree, and observe that it would take a Herculean effort to remove “sex” from
“sexual identity.” Thus, to say that to discriminate based on someone’s sexual
identity is not to discriminate based on sex truly makes no sense.
C. The Employer Cannot Deny Ms. Stephens Her Identity as a Woman.
A third, and perhaps most important, policy consideration in this case
relates to the treatment (or mistreatment) of Ms. Stephens by her employer.
The essence of the argument is this: at no point in this case did the employer
bother to recognize the fact that his employee — here, Ms. Stephens — was
undergoing a sex transition. He simply ignored the fact that she advised him of
that change and continued to treat her as a male. For him, Ms. Stephens was
22

simply a man who wished to violate the workplace dress code by dressing like a woman. See Opinion & Order, R.76, PageID#2192 (citing deposition) (“Q: “What was the specific reason that you terminated Stephens? A: Well because he – he was no longer going to represent himself as a man. He wanted to dress as a woman . . . we have a dress code that is very specific that men will dress as men . . . and that women will conform to their dress code that we specify.”) (emphasis in the original). He denied Ms. Stephens the recognition she deserves, as a human being and as a woman.
Indeed, Ms. Stephens no longer considered herself to be a man. If the employer would have bothered to ask which “sex” she identified with, the answer would have been clear: female. See id., PageID#2188 (citing Stephens’s letter) (“I have felt imprisoned in my body that does not match my mind . . . . The first step I must take is to live and work full-time as a woman for one year.”) (emphasis in the original). Ms. Stephens’s sexual identity is at the core of who she is; simply calling her a “man,” besides completely ignoring reality, also denies her the ability to choose her sex. Under Title VII, terminating her for these precise reasons constitutes illegal employment discrimination.
23

CONCLUSION This case is not difficult. We respectfully ask this Court to do no more than recognize that discrimination against an individual because that person is transsexual is by definition discrimination because of sex and is, therefore, prohibited by Title VII.
Respectfully Submitted,
/s/ Doron M. Kalir Doron M. Kalir Kenneth J. Kowalski Civil Litigation Clinic* Cleveland-Marshall College of Law 1801 Euclid Ave. Cleveland, OH 44115 (216) 687-2300 d.kalir@csuohio.edu Counsel for Amicus Curiae Equality Ohio
Dated: April 26, 2017
*Professor Matthew W. Green, an expert on employment discrimination, as well as Ms. Lorraine Catalusci and Mr. Russell Gates, students with the Clinic, contributed to the preparation of this Amicus Brief.
24

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 5,387 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2010 in 14 point Times New Roman.
/s/ Doron M. Kalir Doron M. Kalir Counsel for Amicus Curiae Equality Ohio
25

CERTIFICATE OF SERVICE I hereby certify that on April 26, 2017, I electronically filed the forgoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Doron M. Kalir Doron M. Kalir Counsel for Amicus Curiae Equality Ohio
26

DESIGNATION OF RELEVANT DISTRICT COURTT DOCUMENTS

E.D. Mich. Case No. 14-13710

Record.

1

Complaint

Description

13

Amended Order Denying Motion to Dismiss

76

Order & Opinion Re: Summary Judgment Motions

Page ID# Range 4
188-89
2180, 2187-88, 2192, 2194.

27

 
 No. 16-2424
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
and
AIMEE STEPHENS,
Intervenor, v. R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
Defendant-Appellee.

On Appeal from the United States District Court for the Eastern District of Michigan, Hon. Sean F. Cox, No. 14-13710
BRIEF OF AMICUS CURIAE PRIVATE RIGHTS / PUBLIC CONSCIENCE PROJECT IN SUPPORT OF APPELLANTS

Elizabeth Reiner Platt Katherine Franke PRIVATE RIGHTS / PUBLIC CONSCIENCE PROJECT Columbia Law School 435 West 116th Street Suite 625 New York, NY 10027 212-854-8079

Mary Jane Eaton Wesley R. Powell Sameer Advani WILLKIE FARR & GALLAGHER, LLP 787 Seventh Avenue New York, NY 10019 212-728-8000

Counsel for Amicus Curiae

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations and Financial Interest

Sixth Circuit Case Number: -1--6'---2"4'"2-=4-'-=---'-----

Case Name: EEOC v. R.G. & G.R. Harris Funeral H

Name of counsel: Mary Jane Eaton, Willkie Farr & Gallagher LLP

Pursuant to 6th Cir. R. 26.1, Public Rights I Private Conscience Project (Amicus Curiae)
Name of Pa rty
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:
No.

CERTIFICATE OF SERVICE

I certify that on

April, 24, 2017

the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not,

by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.

s/ Mary Jane Eaton

This statement is filed twice : when the appeal is initially opened and later, in the principal briefs , immediately preceding the table of contents . See 6th Cir. R. 26 .1 on page 2 of this form .

6CA-1 8108

Page 1 of 2

TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE ..........................................................................1 SUMMARY OF ARGUMENT .................................................................................2 ARGUMENT .............................................................................................................3 I. RFRA MUST BE CONSTRUED IN ACCORDANCE WITH
CONSTITUTIONAL BOUNDARIES............................................................3 II. THE DISTRICT COURT’S OVERBROAD READING OF RFRA
VIOLATES THE ESTABLISHMENT CLAUSE BECAUSE IT FORCES STEPHENS TO BEAR THE SIGNIFICANT COST OF HER EMPLOYER’S RELIGIOUS BELIEFS. ...............................................5 A. Religious Accommodations Cannot Impose Substantial
Burdens On Third Parties......................................................................5 B. Exempting the Funeral Home From Its Obligations Under Title
VII Imposes Significant Harms On Ms. Stephens In Violation Of The Establishment Clause..............................................................15 III. THE DISTRICT COURT’S OVERLY-BROAD INTERPRETATION OF RFRA RENDERS THE STATE A PARTNER IN THE DENIAL OF WORKPLACE EQUALITY. ..................................................................18 A. The Government Has A Compelling Interest In Prohibiting, Not Enabling, Discrimination. ...................................................................18 B. The Government Cannot Facilitate Sex Discrimination, Even In The Interests Of Protecting Religious Pluralism.................................25 CONCLUSION ........................................................................................................26
ii

TABLE OF AUTHORITIES

Cases

Page(s)

Ams. United For Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538 (6th Cir. 1992) .......................................................................14

Barber v. Bryant, 193 F. Supp. 3d 677 (S.D. Miss. 2016) ........................................................21

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994).....................................................................................6, 7

Bob Jones Univ. v. United States, 461 U.S. 574 (1983).......................................................................................20

Bowers v. Hardwick, 478 U.S. 186 (1986).......................................................................................17

Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014).................................................................2, 3, 4, 12, 20

City of Boerne v. Flores, 521 U.S. 507 (1997).....................................................................................3, 4

Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987).............................................................................6, 16, 25

Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989).......................................................................................17

Cummins v. Parker Seal Co., 516 F.2d 544 (6th Cir. 1975) .........................................................................14

iii

Cutter v. Wilkinson, 544 U.S. 709 (2005).........................................................................................8
E.E.O.C. v. Pac. Press, 676 F.2d 1272 (9th Cir. 1982) .......................................................................19
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).......................................................................................25
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988).........................................................................................5
Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)...............................................................................21
Emp’t Div. Dep’t of Human Res. of Or. v. Caldor, 494 U.S. 872 (1990).....................................................................................3, 4
Estate of Thorton v. Caldor, 472 U.S. 703 (1985)...........................................................................6, 8, 9, 16
Gibbs v. Johnson, 73 F.3d 361 (6th Cir. 1995) ...........................................................................15
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).......................................................................................13
Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014) .........................................................................15
Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U.S. 136 (1987).........................................................................................6
Holt v. Hobbs, 135 S. Ct. 853 (2015).....................................................................................13
iv

Hosanna-Tabor Evangelical Lutheran Church and Sch. v. E.E.O.C., 565 U.S. 171 (2012).........................................................................................9
Hunter v. Erickson, 393 U.S. 385 (1969).......................................................................................22
Lee v. Weismann, 505 U.S. 577 (1992).....................................................................................5, 6
Newman v. Piggie Park Enters., Inc., 390 U.S. 400 (1968).......................................................................................21
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)...................................................................................17
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).......................................................................................16
Reitman v. Mulkey, 387 U.S. 369 (1967).................................................................................22, 24
Romer v. Evans, 517 U.S. 620 (1996).................................................................................23, 24
Sherbert v. Verner, 374 U.S. 398 (1963).......................................................................4, 10, 11, 17
S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203 (6th Cir. 1990) .......................................................................14
Texas Monthly v. Bullock, 489 U.S. 1 (1989).........................................................................................6, 9
v

Tony and Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290 (1985).......................................................................................10
United States v. Lee, 455 U.S. 252 (1982).......................................................................9, 10, 14, 15
United States v. Seeger, 380 U.S. 163 (1965).........................................................................................7
Walz v. Tax Comm’n of the City of New York, 397 U.S. 664 (1970).........................................................................................7
Wisconsin v. Yoder, 406 U.S. 205 (1972)...................................................................................4, 11

Statutes & Rules

Page(s)

42 U.S.C. § 2000bb....................................................................................................3

42 U.S.C. § 2000bb-1 ................................................................................................2

Other Authorities

Page(s)

Frederick Mark Gedicks & Rebecca Van Tassell, RFRA Exemptions from the Contraceptive Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343 (2014) ..............................................................7, 17, 18

James M. Olseke, Jr., “State Inaction,” Equal Protection, and Religious Resistance to LGBT Rights, 87 Univ. of Colorado L. Rev. 1 (2016) ................23, 24

Micah Schwartzman, Richard Schragger & Nelson Tebbe, Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter, Balkinization (Dec. 9, 2013) ......................................................................................................................7

vi

President George H.W. Bush, Statement on Signing the Civil Rights Act of 1991 (Nov. 21, 1991) ........................................................................................................19 President Lyndon B. Johnson, Public Papers of the Presidents of the United States, 1963-64, Volume II, entry 446, Washington, D.C.: Government Printing Office, 1965..............................................................................................................18, 19, 21 Terri R. Day & Danielle Weatherby, LGBT Rights and the Mini RFRA: A Return to Separate But Equal, 65 DePaul L. Rev. 907 (2016)............................................23
vii

INTEREST OF AMICUS CURIAE Amicus Curiae The Public Rights / Private Conscience Project (“PRPCP”)1 is a legal academic policy institute whose mission is to examine—through legal research and scholarship, public policy interventions, advocacy support, and academic and media publications—the myriad contexts in which religious liberty conflicts with or undermines other fundamental rights, such as equality. The PRPCP respects the importance of religious liberty, but recognizes that this right exists within a framework of other competing fundamental rights. PRPCP believes that overly broad religious accommodations or exemptions can unsettle the proper balance of competing fundamental rights and impose impermissible burdens on third parties. Staffed by scholars of constitutional law, the PRPCP has an interest in ensuring that the law develops in a manner that strikes the proper balance between religious liberty and other fundamental rights. Amicus Curiae believe that the decision in the court below disrupted this balance by improperly privileging the right to free exercise claimed by Appellee R.G. & G.R. Harris Funeral Home, Inc. (“Funeral Home”) over IntervenorAppellant Aimee Stephens’s workplace equality rights and freedom from religious
1 No party or counsel for a party authored this brief in whole or part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than the Amicus Curiae or its counsel made a monetary contribution to its preparation or submission. All parties consent to the filing of this brief.
1

coercion. The district court’s expansive, and unprecedented, interpretation of the Religious Freedom Restoration Act (“RFRA”) as a defense in a Title VII sex discrimination suit requires the intended beneficiaries of Title VII—employees who have been discriminated against—to bear the costs of an employer’s religious beliefs in violation of the Establishment Clause of the First Amendment. Further, the district court’s holding impermissibly implicates the government in private discrimination rather than furthering the government’s compelling interest in combating such discrimination. PRPCP respectfully submits this brief to underscore the ramifications of the decision below on those important issues of religious liberty and workplace equality.
SUMMARY OF ARGUMENT Congress enacted RFRA to create a statutory exemption from a federal law—including one of general applicability—when that law “substantially burden[s] a person’s exercise of religion” and is not the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000bb-1. While RFRA is intended to provide ample protections to religious liberty, it does not— and indeed could not—privilege the free exercise of religion over other fundamental rights and values. Rather, RFRA leaves unaltered the critical balance between religious liberty and other fundamental rights and freedoms, such as equality, that is vital to our free society. See Burwell v. Hobby Lobby Stores Inc.,
2

134 S. Ct. 2751, 2787 (2014) (Kennedy, J., concurring) (“Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons . . . in protecting their own interests.”).
This brief argues that the district court’s expansive interpretation of RFRA upsets this balance in two fundamental respects. Part I argues that if employers are permitted exemptions to their Title VII obligations under RFRA, as the district court permitted here, this would improperly impose a significant burden onto their employees in violation of the Establishment Clause. Part II argues that permitting the application of RFRA as a defense to a sex discrimination claim against Appellee would eviscerate the government’s compelling interest in preventing discrimination and impermissibly implicate the government in private discrimination.
ARGUMENT I. RFRA MUST BE CONSTRUED IN ACCORDANCE WITH
CONSTITUTIONAL BOUNDARIES. Congress enacted RFRA in “direct response” to the Supreme Court’s decision in Employment Division Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which marked a departure from the Court’s Free Exercise jurisprudence of the preceding decades. See City of Boerne v. Flores, 521 U.S. 507, 514 (1997); 42 U.S.C. § 2000bb. In several pre-Smith Free Exercise
3

cases, the Court employed a strict scrutiny test that asked whether a challenged law served a compelling government interest and was the least restrictive means of serving that interest. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Thomas v. Review Bd. of the Ind. Emp’t Div., 450 U.S. 707 (1981). Smith changed that calculus. Rather than applying the compelling interest test, the Smith Court held that a government regulation does not violate the First Amendment when “prohibiting the exercise of religion is . . . merely the incidental effect of a generally applicable and otherwise valid provision.” Smith, 494 U.S. at 878. Congress responded by adopting RFRA, which was intended to replicate via statute the compelling interest test set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). See 42 U.S.C. § 2000bb.
Although RFRA was intended to “ensure broad protection for religious liberty,” Hobby Lobby, 134 S. Ct. at 2761, it did not, and could not, alter or impinge upon the protections otherwise guaranteed by the Constitution. Indeed, it is axiomatic that a federal statute may not be interpreted or applied in a manner that conflicts with constitutional limits. See City of Boerne, 521 U.S. at 536 (“Congress’ discretion is not unlimited . . . and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution.”).
4

Recognizing the fundamental supremacy of constitutional limits on Congress’s legislative authority, the Supreme Court has developed “a rule of statutory construction” that “where an otherwise acceptable construction of a statute would plainly raise serious constitutional problems, the Court will construe the statute to avoid such problems.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575 (1988) (“The courts will [] not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.”). Thus, courts interpreting RFRA must avoid construing the statute in a manner that violates Constitutional guarantees. As demonstrated below, the district court’s application of RFRA as a defense to a Title VII discrimination claim runs afoul of this rule of statutory construction, resulting in a violation of the Establishment Clause, and should be reversed.
II. THE DISTRICT COURT’S OVERBROAD READING OF RFRA VIOLATES THE ESTABLISHMENT CLAUSE BECAUSE IT FORCES STEPHENS TO BEAR THE SIGNIFICANT COST OF HER EMPLOYER’S RELIGIOUS BELIEFS.
A. Religious Accommodations Cannot Impose Substantial Burdens On Third Parties.
“The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.” Lee v. Weismann, 505 U.S. 577, 587 (1992). Among
5

those “fundamental limitations” is that the “government may not coerce anyone to
support or participate in religion.” Id.; see also Estate of Thornton v. Caldor, 472
U.S. 703, 708 (1985) (the government “must take pains not to compel people to act
in the name of any religion”); Texas Monthly v. Bullock, 489 U.S. 1, 15 (1989) (the
government “may not place its prestige, coercive authority, or resources behind a
single religious faith or behind religious belief in general, compelling nonadherants
to support [religious] practices”). Although the “Court has long recognized that
the government may . . . accommodate religious practices . . . without violating the
Establishment Clause,” Hobbie v. Unemployment Appeals Comm’n of Florida, 480
U.S. 136, 144-5 (1987), it has also warned that “[a]t some point accommodation
may devolve into an unlawful fostering of religion.” Corp. of Presiding Bishop of
Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334-35 (1987).
A religious accommodation, whether claimed under the First Amendment or
a federal statute, exceeds these constitutional limits when it imposes a significant
burden on an identifiable third party.2 See Bd. of Educ. of Kiryas Joel Vill. Sch.
2 There are two narrow exceptions to the rule that religious exemptions cannot burden third parties and neither is relevant here. First, the Supreme Court has upheld an exemption for church-affiliated nonprofits from Title VII’s prohibition against religious discrimination. See Amos, 483 U.S. at 334-35 (upholding an exemption under Title VII that prohibited a discrimination suit against a nonprofit gymnasium run by the Mormon Church after it fired a janitor who failed to qualify as a member of the Church). The Court held that the exemption had the “permissible legislative purpose [of] alleviat[ing] significant governmental interference with the ability of religious organizations
6

Dist. v. Grumet, 512 U.S. 687, 722 (1994) (Kennedy, J., concurring) (“[A]
religious accommodation demands careful scrutiny to ensure that it does not so
burden nonadherents or discriminate against other religions as to become an
establishment.”); see also Micah Schwartzman, Richard Schragger & Nelson
Tebbe, Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos
and Cutter, Balkinization (Dec. 9, 2013), https://balkin.blogspot.com/2013/12/
hobby-lobby-and-establishment-clause_9.html (“When the government provides a
religious exemption that imposes substantial burdens directly on third parties, it
effectively compels them to pay for another’s religious observance.”); Frederick
Mark Gedicks & Rebecca Van Tassell, RFRA Exemptions from the Contraceptive
Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L.
Rev. 343, 357-63 (2014).
to define and carry out their religious missions.” Id. at 335. This exception was narrowly drawn and is not applicable here, where the party seeking an exemption from the Title VII prohibition against sex discrimination is a forprofit organization that is not affiliated with any church. Opinion, R.76, PageID #2185.
The second exception involves religious accommodations that impose small and diffuse burdens on a very large group of people or the country as a whole. See, e.g., Walz v. Tax Comm’n of The City of New York, 397 U.S. 664, 672 (1970) (providing tax exemptions for non-profit organizations, including religious organizations, does not violate the Establishment Clause); United States v. Seeger, 380 U.S. 163 (1965) (extending a legislative exemption from the military draft for religious pacifists to apply to those with philosophical objections to war). These cases, which involve de minimis harm to the general population, provide no support for the religious accommodation at issue here which has caused Ms. Stephens significant harm. See infra at Part II.B.
7

The Supreme Court affirmed this principle recently in Cutter v. Wilkinson, 544 U.S. 709 (2005), where it considered whether the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a statute nearly identical to RFRA— violated the Establishment Clause. The Court explained that, to avoid violating the Establishment Clause, a religious accommodation must strike the proper balance between the right of free exercise and other competing interests. Id. at 722 (“Our decisions indicate that an accommodation must be measured so that it does not override other significant interests.”). Although the Court rejected a facial challenge to RLUIPA because it had “no cause to believe that [the law] would not be applied in an appropriately balanced way,” the Court noted that “as-applied challenges would be in order” if accommodations requested under the statute “become excessive [or] impose unjustified burdens on other[s].” Id. at 726.
Similarly, in Caldor, the Court struck down a Connecticut law providing a Sabbath observer an unqualified right not to work on his Sabbath. See 472 U.S. at 708. The Court held that the law was invalid under the Establishment Clause because of its “unyielding weighting in favor of Sabbath observers over all other interests.” Id. at 710 (emphasis added); see also id. (explaining that the statute impermissibly failed to account for whether it imposed “substantial economic burdens or . . . would require the imposition of significant burdens . . . on other employees required to work in place of the Sabbath observers”). By requiring
8

third parties to “conform their business practices to the particular religious
practices of [an] employee,” the act crossed over from an acceptable
accommodation of religion to an improper establishment of religion. Id. at 709;
see also Texas Monthly, 489 U.S. at 15 (striking down a sales tax exemption for
religious periodicals because it “burden[ed] nonbeneficiaries markedly” and
“convey[ed] a message of endorsement to slighted members of the community”)
(internal quotations omitted).
In addition to striking down religious accommodations that impose material
third-party harms under the Establishment Clause, the Supreme Court has
repeatedly held that the Free Exercise Clause does not provide a right to such
accommodations.3 For example, in United States v. Lee, 455 U.S. 252, 261
(1982),4 the Court held that exempting an Amish employer from social security
3 As with its Establishment Clause jurisprudence, the Court’s Free Exercise cases have carved out a narrow exception for religious institutions and permitted exemptions from discrimination laws despite the fact that these exemptions clearly impose costs on third parties. See, e.g., Hosanna-Tabor Evangelical Lutheran Church and Sch. v. E.E.O.C., 565 U.S. 171, 188 (2012) (shielding a parochial school from liability for discharging a minister in violation of the Americans with Disabilities Act on the grounds that penalizing a church for firing an unwanted minister “interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs”). Because this case does not involve a religious organization or affiliated non-profit, this exception is not relevant to this action.
4 Although Lee, and other cases discussed herein, were decided under the Free Exercise Clause, RFRA—as demonstrated above, see supra, at Part I.—is subject to the same constitutional limitations.
9

taxes would impermissibly “impose the employer’s religious faith on [his] employees.” In so holding, the Court distinguished the requested exemption from an existing exemption for self-employed Amish, which would not affect persons outside the religious community. Id. Similarly, in Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), the Court held that the Free Exercise Clause did not provide a non-profit religious organization with an exemption from compliance with the minimum wage requirement of the Fair Labor Standards Act in part because the requested exemption would harm workers generally. Importantly, the Court reached that result notwithstanding the fact that the employees in this case claimed to support the exemption. Id. at 302 (“If an exception to the Act were carved out for employees willing to testify that they performed work ‘voluntarily,’ employers might be able to use superior bargaining power to coerce employees to make such assertions, or to waive their protections under the Act.”) (internal citations omitted).
Even where the Supreme Court has upheld religious accommodations under the Free Exercise Clause, it has done so only after being assured that third parties would not be harmed. Indeed, in both Sherbert and Yoder, the impact of the challenged accommodations was central to the Court’s analysis. For instance, in Sherbert, the Court held that the requested exemption did not amount to an establishment of religion because, among other reasons, it did not “serve to abridge
10

any other person's religious liberties.” Sherbert, 374 U.S. at 409. Similarly, in Yoder, the Court held that Amish parents were entitled to an exemption from a mandatory education law that violated their religious beliefs. The Court distinguished prior cases in which it had rejected religious exemptions from child protection laws, explaining that this case was “not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.” Yoder, 406 U.S. at 230. To the contrary, the Court found that “[t]he record strongly indicate[d] that accommodating the religious objections of the Amish . . . [would] not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship.” Id. at 234. Moreover, because “there [was] no suggestion whatever in the record that the religious beliefs of the children here concerned differ[ed] in any way from those of their parents,” id. at 237 (Stewart, J., concurring), the case did not implicate the religious coercion concerns that arise when the burdens of an accommodation are placed on non-adherents. See also id. at 231 (“[It was never argued] that respondents were preventing their children from attending school against their expressed desires, and indeed the record is to the contrary.”).
Finally, as with its Free Exercise jurisprudence, the Supreme Court has carefully considered the impact that statutory-based religious accommodations
11

may have on third parties who do not share those religious beliefs and/or find their own rights and interests negatively impacted by the requested religious accommodation. Indeed, since RFRA’s enactment, the Court has upheld accommodations only where they have not imposed material burdens on third parties. Most recently, in Hobby Lobby, the Court upheld the application of exemptions to the Affordable Care Act’s contraceptive coverage mandate to closely-held, for-profit companies. All of the justices, writing in three separate opinions, endorsed the principle that religious accommodations may not burden third parties. Writing for the majority, Justice Alito acknowledged that “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Hobby Lobby, 134 S. Ct. at 2781 n.37 (emphasis added). The four dissenting justices reiterated this limitation, finding no support in the law for “a religion-based exemption when the accommodation would be harmful to others.” Id. at 2801 (Ginsburg, J., dissenting); see also id. at 2786 (Kennedy, J., concurring). Indeed, central to the Court’s decision upholding the accommodation were its findings that neither Hobby Lobby’s employees nor their insurance companies would be forced to bear the burden of Hobby Lobby’s religious beliefs. See id. at 2759 (finding that Hobby Lobby employees would have “precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such
12

coverage,” and that the accommodation scheme “imposes no net economic burden on the insurance companies that are required to provide or secure the coverage”).5 Thus, Hobby Lobby affirms the notion that statutory religious liberty rights claimed under RFRA reach their limit when third parties are asked to subsidize an employer’s exercise of religion. See also Holt v. Hobbs, 135 S. Ct. 853 (2015) (holding that RLUIPA required an accommodation permitting a Muslim inmate to wear a half-inch beard because this would not harm or undermine overarching prison safety interests); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 427 (2006) (holding that a RFRA exemption from criminal penalties for a religious group that used a hallucinogenic drug would not harm or undermine overarching drug policy).
Like the Supreme Court, this Court’s Establishment Clause, Free Exercise Clause, and statutory exemption jurisprudence has recognized that accommodation of religious belief breaches constitutional limits when the requested accommodation creates material third-party harms. In the employment context this includes harms or costs shifted from the person claiming the exemption to the
5 The Court strenuously objected to the dissents’ charge that the majority holding would give for-profit companies “free rein to take steps that impose disadvantages . . . on others.” Id. at 2760 (“[W]e certainly do not hold or suggest that RFRA demands accommodation of a for-profit corporation's religious beliefs no matter the impact that accommodation may have on . . . thousands of women employed by Hobby Lobby.”) (internal quotations omitted).
13

employer, to other coworkers, to other non-believers, or in some cases to the public. For example, in Cummins v. Parker Seal Co., 516 F.2d 544 (6th Cir. 1975), vacated on other grounds, 433 U.S. 903 (1977), this Court upheld a provision of Title VII that required employers to reasonably accommodate the religious practices of their employees. In so holding, this Court found that the statute “require[d] only a reasonable accommodation of an employees' religious practices, and only if that can be accomplished without undue hardship on the employer's business.” Id. at 554 (alteration in original) (emphasis added). And, in Ams. United For Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1549 (6th Cir. 1992), this Court upheld a city’s authorization of a private religious display on public property only after finding that it “neither creates a realistic danger of oppressing non-believers, nor has a meaningful and practical detrimental impact on the lives of those who will see [it].”
South Ridge Baptist Church v. Industrial Commission of Ohio, 911 F.2d 1203 (6th Cir. 1990), is to the same effect. There, this Court held that the Free Exercise Clause did not mandate an accommodation from the state workers’ compensation program because such an accommodation “clash[ed] with important state interests in the welfare of others.” Id. at 1211. In contrast, the Court noted that an existing exemption that applied only to “ministers” (employees who by definition shared their employers’ religious beliefs) did not “operate[] to impose
14

the employer’s religious belief on the employee[].” Id. at 1209 (quoting U.S. v. Lee, 455 U.S. at 253). See also Gibbs v. Johnson, 73 F.3d 361 (6th Cir. 1995) (holding that RFRA did not permit an inmate to keep a metal crucifix that could be used as a weapon); Haight v. Thompson, 763 F.3d 554, 564 (6th Cir. 2014) (denying summary judgment for the prison in a RLUIPA case involving inmates’ access to a Native American sweat lodge where the claimants agreed “the timing and number of ceremonies could be flexible; and whatever safety and security procedures the prison wanted, the inmates would follow”).
In sum, neither the Free Exercise Clause nor RFRA permit a religious accommodation that imposes material costs on third parties or interferes with the exercise of rights held by others.
B. Exempting the Funeral Home From Its Obligations Under Title VII Imposes Significant Harms On Ms. Stephens In Violation Of The Establishment Clause.
That the district court’s acceptance of the Funeral Home’s RFRA defense imposed a significant harm on Ms. Stephens cannot be seriously disputed. The district court found “direct evidence to support a claim of employment discrimination.” Opinion, R.76, PageID #2199. The district court’s acceptance of RFRA as a defense to liability under Title VII therefore deprives Ms. Stephens of the statutory remedies available to her, including but not limited to back pay and
15

front pay, compensation for pecuniary (e.g., job search expenses) and nonpecuniary (e.g., emotional pain and suffering) harms, and injunctive relief.
But the harm caused by the accommodation of the Funeral Home’s religious beliefs is not limited to the denial of those statutory remedies. By denying relief for the workplace sex discrimination that Ms. Stephens indisputably endured, the district court effectively granted its imprimatur on Appellee’s religious beliefs over and against Intervenor-Appellant’s individual right of conscience. Cf. Amos, 483 U.S. at 340-41 (Brennan, J., concurring) (“An exemption says that a person may be put to the choice of either conforming to certain religious tenets or losing a job opportunity, a promotion, or, as in these cases, employment itself. The potential for coercion created by such a provision is in serious tension with our commitment to individual freedom of conscience in matters of religious belief.”). The harm suffered by Ms. Stephens, like that imposed on non-Sabbatarians in Caldor, conveys a clear and impermissible message: “The message conveyed is one of endorsement of a particular religious belief, to the detriment of those who do not share it.” Caldor, 472 U.S. at 711 (O’Connor, J., concurring).
If permitted to stand, the district court’s decision would eviscerate the statutory protections of Title VII—one of the most important antidiscrimination laws in U.S. history—which are intended to protect workers from discrimination and animus in the workplace and safeguard them from dignitary harms. See, e.g.,
16

Price Waterhouse v. Hopkins, 490 U.S. 228, 265 (1989) (O’Connor, J., concurring) (“While the main concern of [Title VII] was with employment opportunity, Congress was certainly not blind to the stigmatic harm which comes from [discrimination].”); cf. Obergefell v. Hodges, 135 S. Ct. 2584, 2606 (2015) (acknowledging the lasting “dignitary wounds” caused by its decision in Bowers v. Hardwick, 478 U.S. 186 (1986)).
By recognizing a broad RFRA exemption to Title VII, the government would force employees to submit to their employers’ otherwise discriminatory religious beliefs or risk losing their jobs. Such a Hobson’s choice violates a core guarantee of the Establishment Clause—that the government may not “further the interests of religion through the coercive power of the government.” Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 660 (1989) (Kennedy, J., concurring in part and dissenting in part); see also Sherbert, 374 U.S. at 402 (the government may not “compel affirmation of a repugnant [religious] belief”). Nor is there any basis in the district court’s decision to conclude that its broad reading of RFRA is limited to the sex stereotyping context; rather, the district court’s reasoning could also require a employee to wear secular headwear rather than a yarmulke or tagiyah in order to accommodate his employer’s religious opposition to hiring Jews or Muslims. Thus, the third-party harm limitation on religious accommodations is essential not only to ensure that religion
17

is not improperly elevated above other rights, but also as an essential protection for religious freedom itself. See Gedicks & Van Tassell, supra, at 383 (arguing that religious exemptions that impose material harm on third parties are a “violation of ‘religious liberty’—the liberty long protected by the Establishment Clause, to live one’s life free of the religious commitments of others”).
This Court should, therefore, reverse the district court’s grant of summary judgment in favor of the Funeral Home, because RFRA—as-applied as a defense to a Title VII sex discrimination claim against a for-profit corporation—violates the Establishment Clause.
III. THE DISTRICT COURT’S OVERLY-BROAD INTERPRETATION OF RFRA RENDERS THE STATE A PARTNER IN THE DENIAL OF WORKPLACE EQUALITY. A. The Government Has A Compelling Interest In Prohibiting, Not Enabling, Discrimination. When Congress passed and the President signed the Civil Rights Act of
1964, they codified the fundamental principle that the government has an historical, overarching, and enduring moral and legal responsibility to prohibit discrimination, including in the workplace. As President Lyndon Johnson expressed it on July 2, 1964 when he signed the Civil Rights Act into law: “My fellow citizens, we have come now to a time of testing. We must not fail. Let us close the springs of racial poison. Let us pray for wise and understanding hearts.
18

Let us lay aside irrelevant differences and make our nation whole.” President Lyndon B. Johnson, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1963-64, Volume II, entry 446, pp. 842-844, Washington, D.C.: Government Printing Office, 1965. President George H.W. Bush re-affirmed this compelling public responsibility when he signed the Civil Rights Act of 1991, strengthening, among other things, the law’s protections against workplace discrimination: “Since the Civil Rights Act was enacted in 1964, our Nation has made great progress toward the elimination of employment discrimination. I hope and expect that this legislation will carry that progress further. Even if such discrimination were totally eliminated, however, we would not have done enough to advance the American dream of equal opportunity for all.” President George H.W. Bush, Statement on Signing the Civil Rights Act of 1991 (Nov. 21, 1991), http://www.presidency.uscb.edu/ws/?pid=20258.
In numerous decisions and in varied contexts, courts have affirmed that the state’s interest in prohibiting discrimination is compelling and of the highest order. See, e.g., E.E.O.C. v. Pac. Press, 676 F.2d 1272, 1280 (9th Cir. 1982) (“By enacting Title VII, Congress clearly targeted the elimination of all forms of discrimination as a ‘highest priority’. . . . Congress’ purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.”). This of course
19

includes circumstances where the right of religious liberty has been asserted as an overriding interest. The Supreme Court, however, has repeatedly and expressly declined to endorse religious liberty as a justification for discrimination. In Bob Jones University v. United States, 461 U.S. 574 (1983), the Court held that the Internal Revenue Service did not violate the Free Exercise Clause by denying tax exempt status to universities that engaged in racial segregation on account of their religious opposition to interracial relationships. The “Government’s fundamental, overriding interest in eradicating racial discrimination in education,” the Court held, “substantially outweighs whatever burden denial of tax benefits places on [the schools’] exercise of their religious beliefs.” Id. at 2020-21.
Most recently, in Hobby Lobby, the Supreme Court explicitly held that a statutory commitment to the protection of religious exercise could not justify discrimination on the basis of race. The Court wrote that, despite the dissent’s concern that racial discrimination “might be cloaked as religious practice to escape legal sanction,” RFRA provided “no such shield” precisely because “the Government has a compelling interest in providing an equal opportunity to participate in the workforce.” Hobby Lobby, 134 S. Ct. at 2783.
Courts have consistently affirmed the compelling nature of the state’s interest in prohibiting discrimination in the workplace, in public accommodations, and in other contexts even where—indeed, especially where—religious beliefs
20

have been raised as a justification for an exception to the prohibitions contained in the Civil Rights Act. The overarching goal furthered by this and similar equality enhancing legislation was “to eliminate the last vestiges of injustice in our beloved country.” President Lyndon B. Johnson, Public Papers, supra, at 842-44. Such a claim was considered so “patently frivolous” that it was summarily dismissed in a footnote in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402n.5 (1968), when the owner of a restaurant claimed that desegregating his private, for-profit business would violate his religious beliefs. More recently, when courts have been asked to balance the free exercise rights of some citizens against the equality rights of others, they have affirmed the principle that “[i]n a constitutional form of government, personal, religious, and moral beliefs, when acted upon to the detriment of someone else’s rights, have constitutional limits.” Elane Photography, LLC v. Willock, 309 P.3d 53, 78 (N.M. 2013) (Bosson, J. concurring); see also Barber v. Bryant, 193 F. Supp. 3d 677, 710 (S.D. Miss. 2016).
By contrast, Appellee’s argument in this case, endorsed by the court below, represents a remarkable and radical departure from this well-established rule. Not only does it undermine the state’s compelling interest in the eradication of workplace discrimination, but it creates a perverse scenario where the state serves as a guardian of the interests of parties who seek to violate the Civil Rights Act.
21

The Supreme Court has consistently repudiated statutory measures that use the power of the state to undermine the fundamental public purpose of preventing discrimination. In Reitman v. Mulkey, 387 U.S. 369, 371 (1967), for instance, the Supreme Court struck down an amendment to the California constitution adopted in the wake of the passage of certain fair housing laws. The California amendment provided property owners “absolute discretion” in refusing to sell or rent property to any person for any reason. It forbade the state from intervening even where a private party declined to rent or sell for discriminatory reasons. The Court found that the amendment “would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.” Id. at 376. By granting private citizens a right to refuse to sell or rent housing for any reason, “[t]hose practicing racial discriminations [would] need no longer rely solely on their personal choice [but] could now invoke express constitutional authority, free from censure or interference of any kind from official sources.” Id. at 377. Thus, the Court held that the amendment, which both protected and encouraged discrimination, violated the Equal Protection Clause.
Similarly, in Hunter v. Erickson, 393 U.S. 385 (1969), the Court struck down an amendment to the Akron, Ohio city charter that prohibited the city from implementing any ordinances restricting discrimination in housing. The Court held that the amendment “wield[ed] state power” to further “discrimina[tion] against
22

minorities, and constitute[d] a real, substantial, and invidious denial of the equal protection of the laws.” Id. at 389, 393.
In Romer v. Evans, 517 U.S. 620, 624 (1996), the Supreme Court struck down a Colorado constitutional amendment that overturned municipal sexual orientation antidiscrimination protections and barred all levels of government from taking any action to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” The Court held that “[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense,” id. at 633, and rejected the law’s primary rationale of protecting other citizens’ rights, including “the liberties of landlords or employers who [have] . . . religious objections to homosexuality.” Id. at 635.
If upheld, the district court’s recognition of RFRA as a defense to Ms. Stephens’s Title VII claim against the Funeral Home likewise would result in governmental facilitation of private discrimination in a way that impermissibly subordinates, if not surrenders outright, the state’s compelling interest in eradicating inequality in the workplace. See Terri R. Day & Danielle Weatherby, LGBT Rights and the Mini RFRA: A Return to Separate But Equal, 65 DePaul L. Rev. 907, 938 (2016) (“The application of RFRA as a ‘defense’ to discrimination
23

would implicate legal rules and give rise to state action.”); see also James M. Olseke, Jr., “State Inaction,” Equal Protection, and Religious Resistance to LGBT Rights, 87 Univ. of Colorado L. Rev. 1 (2016). Interpreted in this manner, RFRA would allow employers to discriminate “free from censure or interference of any kind from official sources” provided such discrimination was grounded on a religious principle. Reitman, 387 U.S. at 377. Further, this expansive application of RFRA would necessarily make it “more difficult for one group of citizens”— namely, employees who do not conform their behavior to their employers’ religious beliefs—“than for all others to seek aid from the government” under Title VII and other fundamental anti-discrimination laws. Romer, 517 U.S. at 633.
Moreover, if permitted to stand, the district court’s decision would force the EEOC to take an active role, and hopelessly intertwine it, in private discrimination. Invocation of RFRA defenses by employers under EEOC investigation would effectively require the EEOC to sanction discrimination of private employers whenever that discrimination is motivated by a religious belief. This would require far more from the EEOC than passive acquiescence in private discrimination; rather, as demonstrated in the decision below, it would require the EEOC to actively explore the contours of an employer’s religious beliefs and design accommodations, notwithstanding their discriminatory impact on an employee. The district court opinion states that, to appropriately respond to the Funeral
24

Home’s RFRA defense, the EEOC should have negotiated with the Funeral Home as to the exact sex stereotypes to which Ms. Stephens must adhere in order to avoid termination. See, e.g., Opinion, R.76, PageID #2216 (“the EEOC’s briefs do not contain any discussion to indicate that the EEOC has ever . . . explored the possibility of any solutions or potential accommodations”); id. at PageID #2219 (“couldn’t the EEOC propose a gender neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation”). Such “overt, significant participation of the government” in private discrimination would run directly contrary to the spirit of Title VII by too closely entwining the state in the discriminatory actions of a private party. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620, 622 (1991).6
B. The Government Cannot Facilitate Sex Discrimination, Even In The Interests Of Protecting Religious Pluralism.
The government’s interest in protecting religious pluralism, as embodied in RFRA, does not justify its facilitation of private discrimination. Although religious liberty can be a legitimate government interest when the accommodation
6 While Edmonson was a case that specifically addressed state action in the context of discrimination under the Equal Protection Clause, the state action doctrine imposes a more exacting standard than what we are urging herein: that the trial court’s broad application of RFRA not only runs afoul of the Establishment Clause but does so while contravening the state’s compelling interest in combatting, not enabling, private discrimination in the workplace.
25

is narrowly tailored, see, e.g., Amos, 483 U.S. at 335 (1987) (“It is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.”), the government’s interest in protecting religious practice cannot support discriminatory treatment in violation of equal protection norms.
Because interpreting RFRA to provide a defense to a sex discrimination claim under Title VII would improperly implicate the government in the facilitation of private sex discrimination—in direct opposition to the state’s compelling interest in combating workplace discrimination—the district court’s decision must be reversed.
CONCLUSION The district court’s application of RFRA as a defense to a sex discrimination claim under Title VII oversteps the bounds of both the Establishment Clause and the right to equal opportunity in the workplace by imposing burdens on third parties and impermissibly involving the government in private discrimination. For these reasons, the judgment of the district court must be reversed.
26

Dated: April 24, 2017
/s/ Elizabeth Reiner Platt* Elizabeth Reiner Platt Katherine Franke PRIVATE RIGHTS / PUBLIC CONSCIENCE PROJECT Columbia Law School 435 West 116th Street Suite 625 New York, NY 10027 212-854-8079

Respectfully submitted,
/s/ Mary Jane Eaton Mary Jane Eaton Wesley R. Powell Sameer Advani WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 212-728-8000

*electronic signature used with consent
Counsel for Amicus Curiae

27

CERTIFICATE OF COMPLIANCE REGARDING LENGTH OF BRIEF Pursuant to Rules 29(a)(4)(G) and 32(g)(1) of the Federal Rules of Appellate
Procedure (“Fed. R. App. P.”), the undersigned hereby certifies that this document complies with Fed. R. App. P. 29(a)(5) and is no more than one-half of the typevolume limitations for a principal brief set forth in Fed. R. App. P. 32(a)(7)(B).
This document has been prepared in proportionally spaced typeface using Microsoft Word in 14 point Times New Roman font. Exclusive of the exempted portions of the brief set forth in Fed. R. App. P. 32(f), and in accordance with the letter from the Clerk of this Court to counsel for the parties, dated March 30, 2017 (ECF No. 32), the undersigned hereby certifies that this document contains 6,180 words, as determined by a word processing system used to prepare this brief.
/s/ Mary Jane Eaton Mary Jane Eaton
28

CERTIFICATE OF SERVICE I hereby certify that on this 24th day of April, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit using the appellate CM/ECF system. Counsel for all parties to the case are registered CM/ECF users and will be served by the appellate CM/ECF system.
/s/ Mary Jane Eaton Mary Jane Eaton
29

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS E.D. Mich. Case No. 14-cv-13710

Record 76

Description Summary Judgment Opinion

Page ID Range 2179-2234

 
 No. 16-2424 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, and AIMEE STEPHENS, Intervenor, vs.
R.G. & G.R. HARRIS FUNERAL HOMES, INC., Defendant/Appellee.

Appeal from the United States District Court for the Eastern District of Michigan, The Honorable Sean F. Cox No. 14-13710

BRIEF FOR AMICI CURIAE LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., HUMAN RIGHTS CAMPAIGN, INC. AND
SERVICE EMPLOYEES INTERNATIONAL UNION IN SUPPORT OF PLAINTIFF/APPELLANT EEOC AND
INTERVENOR AIMEE STEPHENS

Jennifer C. Pizer Nancy C. Marcus Lambda Legal Defense and Education Fund, Inc. 4221 Wilshire Blvd., Suite 280 Los Angeles, CA 90010 Telephone: (213) 382-7600 jpizer@lambdalegal.org nmarcus@lambdalegal.org

Gregory R. Nevins Lambda Legal Defense and Education Fund, Inc. 730 Peachtree Street, NE. Suite 640 Atlanta, GA 30308 Telephone: (404) 897-1880 gnevins@lambdalegal.org

Counsel for Amici Curiae

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations and Financial Interest

Sixth Circuit Case Number: 16-2424

Case Name: EEOC v. G.R. & R.G. Harris Funeral

Name of counsel: Gregory R. Nevins

Pursuant to 6th Cir. R. 26.1, Lambda Legal Defense and Education Fund, Inc.
Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:
No.

CERTIFICATE OF SERVICE
I certify that on _____________A_p_r_i_l _2_7_, _2_0_1_7_____________ the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Gregory R. Nevins

This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

6CA-1 8/08

Page 1 of 2

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations and Financial Interest

Sixth Circuit Case Number: 16-2424

Case Name: EEOC v. G.R. & R.G. Harris Funeral

Name of counsel: Gregory R. Nevins

Pursuant to 6th Cir. R. 26.1, Human Rights Campaign, Inc.
Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:
No.

CERTIFICATE OF SERVICE
I certify that on _____________A_p_r_i_l _2_7_, _2_0_1_7_____________ the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Gregory R. Nevins

This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

6CA-1 8/08

Page 1 of 2

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations and Financial Interest

Sixth Circuit Case Number: 16-2424

Case Name: EEOC v. G.R. & R.G. Harris Funeral

Name of counsel: Gregory R. Nevins

Pursuant to 6th Cir. R. 26.1, Service Employees International Union
Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:
No.

CERTIFICATE OF SERVICE
I certify that on _____________A_p_r_i_l _2_7_, _2_0_1_7_____________ the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Gregory R. Nevins

This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

6CA-1 8/08

Page 1 of 2

TABLE OF CONTENTS

Page

TABLE OF CONTENTS........................................................................................... i

TABLE OF AUTHORITIES .................................................................................... ii

IDENTITY AND INTERESTS OF AMICI CURIAE ...............................................1

SUMMARY OF ARGUMENT .................................................................................3

ARGUMENT .............................................................................................................6
I. TITLE VII PROTECTS TRANSGENDER EMPLOYEES FROM DISCRIMINATION BASED ON THE FACT OF A GENDER TRANSITION AS WELL AS ON NONCONFORMING GENDER-EXPRESSIVE CONDUCT. ..............................................................6
A. The District Court Erred in Focusing Solely on Clothing. ...........................8
B. The District Court’s Approach Is Contrary to This Court’s Case Law and Case Law of Other Circuits..................................................................11
II. TITLE VII SERVES COMPELLING INTERESTS BY PROTECTING TRANSGENDER EMPLOYEES FROM SEX DISCRIMINATION BASED ON BOTH THEIR GENDER IDENTITY AND THEIR GENDER EXPRESSION..................................................................................19
III. THE “LEAST RESTRICTIVE MEANS” OF REMEDYING SEX DISCRIMINATION IN THIS CASE WAS NOT TO FORBID ALL GENDER DISTINCTIONS IN CLOTHING BUT RATHER TO FORBID ADVERSE TREATMENT OF MS. STEPHENS BASED ON HER FEMALE GENDER IDENTITY AND EXPRESSION ..........................24

IV. CONCLUSION .................................................................................................27

CERTIFICATE OF COMPLIANCE.......................................................................29

CERTIFICATE OF SERVICE ................................................................................30

i

Cases

TABLE OF AUTHORITIES

Page

Barker v. Taft Broadcasting Company, 549 F.2d 400 (6th Cir.1977) .......................................................................... 25, 26

De’lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013) ..................................................................................9

Dodds v. United States Department of Education, 845 F.3d 217 (6th Cir. 2016) ......................................................................... 15, 16

EEOC v. Preferred Management Corporation 216 F. Supp. 2d 763 (S.D. Ind. 2002) ........................................................... 23, 26

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837 (E.D. Mich. 2016) ....................................................... passim

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594 (E.D. Mich. 2015) ....................................................... passim

EEOC v. Scott Medical Health Center, P.C., No. CV 16-225, 2016 WL 6569233 (W.D. Pa. Nov. 4, 2016)...............................2

G.G. ex rel. Grimm v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016) ................................................................................16

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) .................................................................... passim

Glenn v. Brumby, 724 F. Supp. 2d 1284 (N.D. Ga. 2010) ................................................................17

Gloucester County. School Board v. G.G. ex rel. Grimm, 137 S. Ct. 369 (2016) ...........................................................................................16

ii

Gloucester County. School Board v. G.G. ex rel. Grimm, No. 16-273, 2017 WL 855755 (U.S. Mar. 6. 2017) .............................................16
Hively v. Ivy Tech Community College of Indiana, No. 15-1720, 2017 WL 1230393 (7th Cir. Apr. 4, 2017) ............................ passim
Kosilek v. Spencer, 774 F.3d 63 (1st. Cir. 2014) ...................................................................................9
Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008)....................................................................2
Mitchell v. Axcan Scandipharm, Inc., No. 05-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006) ......................................2
Myers v. Cuyahoga County, 182 F. App’x 510 (6th Cir. 2006).................................................................. 13, 14
Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) ...............................................................................................21
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ................................................................................ 11, 18, 25
Ravenwood v. Daines, No. 06-CV-6355-CJS, 2009 WL 2163105 (W.D.N.Y. July 17, 2009)................10
Redhead v. Conference of Seventh-Day Adventists, 440 F. Supp. 2d 211 (E.D.N.Y. 2006)..................................................................27
Redhead v. Conference of Seventh-Day Adventists, 566 F. Supp. 2d 125 (E.D.N.Y. 2008)..................................................................27
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) .......................................................... 7, 12, 17
Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) .....................................................................17
iii

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ........................................................................ passim
TerVeer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014)..........................................................................2
University of Pennsylvania v. EEOC, 493 U.S. 182 (1990) .............................................................................................23
Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006) ......................................................................... 14, 15
Werft v. Desert Southwest Annual Conference of United Methodist Church, 377 F.3d 1099 (9th Cir. 2004) ....................................................................... 23, 26
Young v. Northern Illinois Conference of United Methodist Church, 21 F.3d 184 (7th Cir.) ...........................................................................................23
Statutes
42 U.S.C. § 2000bb .......................................................................................... passim
42 U.S.C. § 2000bb-1(b)..........................................................................................19
42 U.S.C. § 2000e ............................................................................................ passim
Other Authorities
American Medical Association, Resolution: Removing Financial Barriers to Care for Transgender Patients (2008) http://www.tgender.net/taw/ama_resolutions.pdf ..................................................9
American Psychiatric Association, Position Statement on Access to Care for Transgender and Gender Variant Individuals (2012) https://www.psychiatry.org/file%20library/about-apa/organization-documentspolicies/policies/position-2012-transgender-gender-variant-access-care.pdf ........9
iv

American Psychological Association, Policy on Transgender, Gender Identity & Gender Expression Non-Discrimination (2008) http://www.apa.org/about/policy/transgender.aspx................................................9
Flores, Andrew R., et al., How Many Adults Identify as Transgender in the United States, The Williams Institute (June 2016) https://williamsinstitute.law. ucla.edu/wp-content/uploads/How-Many-AdultsIdentify-as-Transgender-in-the-United-States.pdf .................................................7
Human Rights Campaign, Definitions to Help Understand Gender and Sexual Orientation for Educators and Parents/Guardians http://hrc-assets.s3-website-us-east-1.amazonaws.com//welcoming-schools/ documents/WS_Gender_Sexual_Orientation_Definitions_Adults.pdf .................8
James, Sandy E., et al., 2015 U.S. Transgender Survey, National Center for Transgender Equality (Dec. 2016) http://www.transequality.org/sites/default/files/docs /usts/USTS%20Full%20Report%20-%20FINAL%201.6.17.pdf ........................19
National Center for Transgender Equality, Frequently Asked Questions about Transgender People (July 9, 2016) http://www.transequality.org/sites/default/files/docs/resources/UnderstandingTrans-Full-July-2016_0.pdf....................................................................................8
Sears, Brad & Christy Mallory, Documented Evidence of Unemployment Discrimination & Its Effects on LGBT People, The Williams Institute (July 2011), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-MalloryDiscrimination-July-20111.pdf ............................................................................20
World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, (7th ver. 2012) http://www.wpath.org/site_page.cfm?pk_association_webpage_menu= 1351&pk_association_webpage=3926 ................................................................... 9
v

IDENTITY AND INTERESTS OF AMICI CURIAE Amici curiae are Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”), the Human Rights Campaign, and the Service Employees International Union (“SEIU”). Amici respectfully submit this brief in support of Plaintiff/Appellant EEOC and Intervenor Aimee Stephens.1 Founded in 1973, Lambda Legal is the nation’s oldest and largest nonprofit legal organization working to secure the civil rights of lesbian, gay, bisexual, and transgender (“LGBT”) people and everyone living with HIV through impact litigation, policy advocacy and public education. Lambda Legal prioritizes matters of employment discrimination, as requests for legal help in this area consistently are among the most numerous received. Many are from transgender employees experiencing workplace discrimination due to others’ disapproval of their transgender identity and gender expression. Lambda Legal has extensive experience in the scope of Title VII coverage of discrimination against LGBT employees, including as counsel of record in the first federal appellate court ruling recognizing coverage of sexual orientation discrimination as a form of sex discrimination, Hively v. Ivy Tech Community
1 All parties have consented to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amici, their members, or their counsel made a monetary contribution to its preparation or submission.
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College of Indiana, No. 15-1720, 2017 WL 1230393 (7th Cir. Apr. 4, 2017) (en banc), and a federal appellate court ruling finding the employer liable for sex discrimination for firing an employee about to begin her gender transition at work, Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (decided under Equal Protection Clause but applying Title VII analysis). See also EEOC v. Scott Med. Health Ctr., P.C., No. 16-225, 2016 WL 6569233 at *5 (W.D. Pa. Nov. 4, 2016) (holding sexual orientation discrimination is prohibited sex discrimination under Title VII) (amicus); TerVeer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (same) (amicus); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008) (approving transgender woman’s Title VII claim based on sex stereotyping) (party counsel); Mitchell v. Axcan Scandipharm, Inc., No. 05243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006) (same) (amicus).
The Human Rights Campaign, Inc. (“HRC”), the largest national lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) advocacy organization, envisions an America where LGBTQ people are ensured of their basic equal rights, and can be open, honest and safe at home, at work and in the community. Equal treatment on the job—including in hiring, consideration for promotions, and termination—is among these basic rights.
The Service Employees International Union (“SEIU”) is an organization of more than 2 million men and women who work in the public sector, in healthcare,
2

and in property services and who are united by their belief in the dignity and worth of all workers and the services they provide. SEIU’s membership is among the most diverse in the labor movement and includes workers of every gender, gender expression, and sexual orientation. SEIU’s commitment to equal treatment and justice for all, including transgender individuals, is reflected in its mission statement, which affirms that “we must not be divided by forces of discrimination based on gender, race, ethnicity, religion, age, physical ability, sexual orientation or immigration status.”
SUMMARY OF ARGUMENT Amici respectfully submit that the District Court erred in two important respects, and that these errors can be remedied by a careful review of the filings below and straightforward application of this Court’s considerable jurisprudence addressing coverage of discrimination against transgender employees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Correction is necessary both to retain consistency with this Court’s precedents and to allow plaintiff Aimee Stephens the day in court to which Title VII entitles her. The first error lies in the ruling on the motion to dismiss that purports to immunize sex discrimination against an employee due to the employee undergoing a gender transition if the adverse treatment is characterized as based on “transgender or transsexual status,” which the lower court distinguished as “not a
3

protected class under Title VII.” EEOC v. RG & GR Funeral Homes, Inc., 100 F. Supp. 3d 594, 598 (E.D. Mich. 2015) (“MTD Status Ruling”).2 The MTD Status Ruling has no analysis of why discrimination based on transgender status or gender identity is not discrimination because of an individual’s sex, nor of why such bias is not simply another name for, or a manifestation of, gender stereotyping. The District Court’s error appears to flow at least in part from its too-narrow focus throughout the case on the dress code issues, overlooking the name and pronoun changes and other changes Ms. Stephens said she needed to make in her gender transition, all of which were unacceptable to defendant R.G. & G.R. Harris Funeral Homes, Inc. and its owner Thomas Rost (“the Funeral Home” or “Rost”). Although Rost’s opposition to those changes certainly can be challenged as wrongful gender stereotyping, his opposition to the whole set of gender-related changes through which Ms. Stephens would begin her transition also should be actionable as wrongful transgender status discrimination.
By focusing too narrowly, the MTD Status Ruling committed the error the EEOC identified in Macy v. Holder, No. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012)—an improper limiting of the ways a transgender person may
2 Amici use the shorthand “MTD Status Ruling” to refer to the part of the Motion to Dismiss ruling that mistakenly distinguishes discrimination based on transgender status or a non-conforming gender identity from other forms of sex discrimination. Amici have no quarrel with the District Court’s recognition that sex stereotyping discrimination also is sex discrimination.
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establish sex discrimination just to gender-stereotype framings, when a prima facie case of such discrimination actually may be demonstrated “through any number of different formulations,” including with evidence of “intentional discrimination against a transgender individual because that person is transgender [which] is, by definition, discrimination ‘based on … sex.’” Id. at *11.
The EEOC presented these cogent arguments below and the District Court did not identify any errors in the reasoning. Accordingly, this Court should consider them and then confirm that discrimination against a transgender employee based on the employee’s non-stereotypical gender identity, gender transition, or transgender status is sex discrimination under Title VII because of the targeted gender identity or expression, not despite it.
Amici further submit that the District Court’s summary judgment ruling accepting the Funeral Home’s defense under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., also focused too narrowly, resulting in misapplication of RFRA’s strict scrutiny test. First, although it has been well established in case law that Title VII’s ban on sex discrimination serves compelling government interests, the court below assumed without deciding the point, thereby suggesting that Title VII actually might serve lesser interests in this context. There is no basis for such a distinction and Amici ask this Court to confirm as much.
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Second, the District Court’s “least restrictive means” analysis is erroneous because it improperly required the EEOC clairvoyantly to hypothesize employer policy changes to avoid conflict after an employee already had been fired for gender-based reasons. In addition, the gender-neutral solution the Court decided the EEOC should have imposed misunderstands transgender identity and that erasing gender differentiation in this case would maintain rather than remedy the kind of discrimination that required this transgender employee to continue to hide her female gender identity or be fired.
Correction of these points on appeal is necessary to allow Ms. Stephens a fair opportunity to pursue her Title VII remedies with all of her record evidence, and also to eliminate the seeds of confusion sown by the District Court’s analysis, which otherwise will invite further discrimination and harm to transgender workers and will impose additional demands on judicial resources to redress those injuries.
ARGUMENT I. TITLE VII PROTECTS TRANSGENDER EMPLOYEES FROM
DISCRIMINATION BASED ON THE FACT OF A GENDER TRANSITION AS WELL AS ON NONCONFORMING GENDER-EXPRESSIVE CONDUCT.
Ruling on the motions to dismiss and for summary judgment, the District Court maintained a distinction no longer warranted in Title VII sex discrimination jurisprudence between transgender status and stereotype-defying conduct. See EEOC v. R.G. & G.R. Funeral Homes, Inc., 100 F. Supp. 3d 594, 598 (E.D. Mich.
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2015) (as noted above, referred to as the “MTD Status Ruling”); EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837, 840 (E.D. Mich. 2016) (“MSJ Ruling”).3 Other courts have recognized that this distinction is artificial. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2001) (noting that “There is … a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.”); Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008) (holding that “the Library's refusal to hire Schroer after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination ‘because of ... sex.’”).
In maintaining that legal distinction and then focusing primarily on clothing, the lower court took an artificially myopic view of what it is to be transgender and to undergo a gender transition. Its misguided approach has significant problematic implications because approximately 0.6% of adults in the United States, or 1.4 million individuals, identify as transgender. Nearly 33,000 of them live in Michigan. Andrew R. Flores, et al., How Many Adults Identify as Transgender in the United States 2-3 (June 2016), https://williamsinstitute.law.ucla.edu/wp-
3 See, e.g., MSJ Ruling, 201 F. Supp. 3d at 861 (“Significantly, neither transgender status nor gender identity are protected classes under Title VII.”).
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content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-UnitedStates.pdf.
A. The District Court Erred in Focusing Solely on Clothing. Although the specifics of a gender transition are shaped by each individual’s background, several aspects are common. The social transition is the starting place—an outward representation of the otherwise internalized identity. See Human Rights Campaign, Definitions to Help Understand Gender and Sexual Orientation for Educators and Parents/Guardians, http://hrc-assets.s3-website-useast-1.amazonaws.com//welcoming-schools/documents/WS_Gender_Sexual_ Orientation_Definitions_Adults.pdf. For many transgender people, wearing gender-appropriate clothing, accessories, and hair styles is an important initial step. Id. Doing so provides a tangible sign to others and can be an essential element of the “coming out” process, marking when they begin to live openly and authentically. Many individuals also begin using a name and pronouns that align with their gender identity, and many also pursue a legal name change, affecting all identification documents. See id.; National Center for Transgender Equality, Frequently Asked Questions about Transgender People (July 9, 2016), http://www.transequality.org/sites/default/files/docs/resources/ UnderstandingTrans-Full-July-2016_0.pdf.
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The internationally-recognized WPATH standards of care confirm the
importance for many individuals who suffer from gender dysphoria of living and
working full-time consistently with their true gender identity, and that doing so
usually involves “[c]hanges in gender expression and role” far beyond the mere
donning of different attire. World Professional Association for Transgender
Health, Standards of Care for the Health of Transsexual, Transgender, and
Gender-Nonconforming People, at 9-10 (7th ver. 2012), http://www.wpath.org/si
te_page.cfm?pk_association_webpage_menu=1351&pk_association_webpage=39
26.4
These changes all defy the gender norms associated with one’s birth-
assigned sex; however, they also are inextricably tied to the individual’s
transgender status and are the concrete manifestations of that identity. For a
4 The Standards of Care WPATH has developed for the treatment of gender dysphoria have been recognized as authoritative by every major medical and mental health association. See, e.g., American Medical Association, Resolution: Removing Financial Barriers to Care for Transgender Patients (2008), http://www.tgender.net/taw/ama_resolutions.pdf; American Psychiatric Association, Position Statement on Access to Care for Transgender and Gender Variant Individuals (2012), https://www.psychiatry.org/file%20library/aboutapa/organization-documents-policies/policies/position-2012-transgender-gendervariant-access-care.pdf; American Psychological Association, Policy on Transgender, Gender Identity & Gender Expression Non-Discrimination (2008), http://www.apa.org/about/policy/transgender.aspx. They have been recognized similarly by courts that have considered them. See, e.g., Kosilek v. Spencer, 774 F.3d 63, 70 n.3 (1st Cir. 2014); De’lonta v. Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013).
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transgender woman like Ms. Stephens, the choice to continue to use a male name and to wear the clothing required of male employees or face termination is no choice at all because such restrictions would block her social transition and ability to resolve her gender dysphoria.
In short, being transgender is about much more than clothing. And indeed, the court below itself noted that this Court’s seminal opinions regarding transitioning employees involved discrimination based on gender nonconformity other than attire. See MSJ Ruling, 201 F. Supp. 3d at 850 n.5 (citations omitted); see also Ravenwood v. Daines, No. 06-CV-6355-CJS, 2009 WL 2163105, at *1 (W.D.N.Y. July 17, 2009) (citing aspects of the transitioning process affecting appearance and demeanor but not attire, namely voice therapy and hormone treatment). Likewise, the evidence in the case made clear that the Funeral Home discriminated against Ms. Stephens because of her transgender identity, not just because of how she intended to dress: as the court noted, Rost said “the Bible teaches that God created people male or female”; “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex”; and that he “’would be violating God’s commands’ if he were to permit one of the Funeral Home’s funeral directors ‘to deny their sex while acting as a representative of [the Funeral Home].” MSJ Ruling, 201 F. Supp. 3d at 84748. This would violate God’s commands, he claimed, because, among other
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reasons, “[Rost] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Id.
Consequently, to characterize this as a dispute merely about clothing ignores the evidence of Rost’s blanket rejection of Ms. Stephens’ gender transition process, as if her change of name, pronouns and social role, and her struggle to understand and address her gender dysphoria—something “very difficult for [her] and taking all the courage [she] can muster,” id. at 844—all could be reduced to a banal announcement of intent to change wardrobes.
B. The District Court’s Approach Is Contrary to This Court’s Case Law and Case Law of Other Circuits.
While the District Court did properly reject the Funeral Home’s “dress code defense,” recognizing that, like Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), this case involves more sex stereotyping than simple imposition of a nonactionable gendered dress code, id. at 853,5 the court then took an unduly narrow view of that doctrine, causing the unjustified parsing of anti-transgender discrimination from the broader category of sex or gender discrimination.
In so doing, the court made a mistake analogous to that recently critiqued by the Seventh Circuit Court of Appeals in Hively, 2017 WL 1230393. Hively
5 As discussed in Section III, however, the Court then inexplicably reversed course and adopted a narrow, dress-code-specific approach in its RFRA least restrictive means analysis.
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involves a lesbian woman’s claim that she suffered discrimination because of her
sex in relation to the sex of her partner. The en banc court explained that the case
represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).
Id. at *5.
Moreover, pertinently, the Seventh Circuit recognized in dicta that sex
discrimination is that which takes into account the victim’s sex, “either as observed
at birth or as modified, in the case of transsexuals.” Id. at *14. The Court
continued, “[a]ny discomfort, disapproval, or job decision based on the fact that
the complainant—woman or man—dresses differently, speaks differently, or dates
or marries a same-sex partner, is a reaction purely and simply based on sex.” Id.
Hively thus debunks the false dichotomy some have drawn between sexual
orientation discrimination and sex discrimination; its dicta indicates, as does
common sense, that the same analysis applies to the false division between gender
identity discrimination and sex discrimination. Accord Glenn, 663 F.3d at 1316;
Schroer, 577 F. Supp. 2d at 293. Like Kim Hively, Aimee Stephens represents a
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particular type of failure to conform to a gender stereotype. Her employer’s insistence on seeing her as a man and his disapproval of her gender identity and expression, and her decision to act accordingly and transition, similarly traversed the “gossamer-thin” line between gender nonconformity discrimination and antitransgender discrimination.
As the EEOC points out, Smith v. City of Salem, 378 F.3d 566, 574 (6th Cir. 2004), condemns “discrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender.” EEOC Opening Brf. on Appeal at 25, quoting Smith, 378 F.3d at 575 (emphasis added). Smith broadly forbids “[s]ex stereotyping based on a person’s gender non-conforming behavior [as] impermissible discrimination” Id. A claim exists “where the victim has suffered discrimination because of his or her gender non-conformity.” Id. In other words, it is because a transgender person is transgender that her actions and identity are gender-non-conforming for Title VII purposes.
Smith’s progeny reflect this condemnation of sex discrimination against transgender employees. Although admittedly an unpublished case decided on other grounds, Myers v. Cuyahoga Cty., 182 F. App’x 510, 518-520 (6th Cir. 2006), illustrates the proper approach to assessing a transsexual’s sex discrimination claim—and demonstrates the error of immunizing “transgender status discrimination.” Susan Myers transitioned approximately eight years before
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she began working for Cuyahoga County, and thus “had always been female while she was employed by Cuyahoga County.” Id. at 513, 518. The opinion’s language is noteworthy: “The County was aware that Myers was a transsexual, however, because during the initial hiring process with the County, Myers had explained that her many-year absence from the workforce and her name change were due to her sex change,” suggesting that Ms. Myers’s only indicia of gender-nonconformity was her revelation of her transition to explain gaps in her resume. See id. This Court stressed that the only evidence of discrimination cited by Myers was “that Myers’s transsexualism was a topic of office gossip and . . . a private conversation between [Myers’s supervisors] . . . in which [one] referred to Myers as a “he/she.” Id. at 518-19. Despite an absence of evidence that Myers suffered discrimination because she was deemed insufficiently feminine,6 this Court considered her to have satisfied all aspects of a Title VII prima facie case, except for her failure to establish that the employer’s stated nondiscriminatory reason for firing her was pretextual. Id. at 519.
It is curious that in its motion to dismiss ruling, the District Court relied on Vickers v. Fairfield Medical Center, 453 F.3d 757, 762 (6th Cir. 2006), in holding
6 The offensive “he/she” insult might be an aspersion on Myers’s femininity or might be an insulting way of referring to the fact of her transition. Notably, this Court in Myers did not feel a need to resolve what type of insult was intended; either intent was sufficient to satisfy that aspect of the prima facie case of sex stereotyping discrimination.
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that it would have been permissible if “the Funeral Home [had] fired Stephens based solely upon Stephens’s status as a transgender person . . . because, like sexual orientation, transgender or transsexual status is currently not a protected class under Title VII.” MTD Status Ruling, 100 F. Supp. 3d at 598, citing Vickers, 453 F.3d at 762. Vickers specifically reaffirmed Smith’s holding that a “claim of sex stereotyping” discrimination is proper where an employee shows mistreatment because he “fails to act and/or identify with his or her gender.” Vickers, 453 F.3d at 764, quoting Smith, 378 F.3d at 575. And, as Hively more recently has clarified, Vickers took a broad view of what constitutes nonconformity with gender norms. Id. at 764 (“all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.”). Thus, Vickers condemns rather than supports the rulings below. It can hardly be disputed that one who previously always presented as a male at work contravenes norms for that gender by asking to be called “Aimee” and referred to with feminine pronouns.
Finally, any doubts about the error of the District Court’s rulings regarding transgender status discrimination should be removed by this Court’s ruling in Dodds v. United States Department of Education, 845 F.3d 217, 220-22 (6th Cir. 2016) (refusing to stay preliminary injunction ordering school to treat transgender girl as female and permit her to use girls’ restroom). This Court not only again affirmed Smith’s rebuke of discrimination based on one’s “fail[ure] to act and/or
15

identify with his or her gender” (emphasis added) but also cited two cases of note, both for their holdings and the specific propositions for which this Court cited them. Dodds, 845 F.3d at 221.
First, this Court cited Judge Davis’s concurring opinion in G.G. ex rel. Grimm v. Gloucester County. School Bd., 822 F.3d 709 (4th Cir. 2016), cert. granted in part, 137 S. Ct. 369, and vacated on other grounds and remanded, No. 16-273, 2017 WL 855755 (U.S. Mar. 6, 2017), for the proposition that “[t]he weight of authority establishes that discrimination based on transgender status is already prohibited by the language of federal civil rights statutes, as interpreted by the Supreme Court.” Dodds, 845 F.3d at 221, quoting G.G., 822 F.3d at 729 (Davis, J., concurring) (emphasis added). Second, this Court cited Glenn v. Brumby, 663 F.3d at 1316, for the proposition that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” Dodds, 845 F.3d at 221.
It is no accident that the language in Glenn refers to “behavior” generally, with no limitation as to style of dress or mannerism. Glenn relied not only on testimony exhibiting hostility to clothing choices, but also the decision-maker’s admission “that his decision to fire Glenn was based on ‘the sheer fact of the transition.’” Glenn, 663 F.3d at 1321.
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Applying these precedents, Aimee Stephens should be protected against all discrimination emanating from her letter informing Rost that she would be dressing as a woman and also would “live and work full time” as her “true [feminine] self.” MSJ Ruling, 201 F. Supp. 3d at 845. Considering that sequence of events, the present case also is similar to Schroer, 424 F. Supp. 2d 203, 206 (D.D.C. 2006), aff’d, 577 F. Supp. 2d 293 (D.D.C. 2008), in which Diane Schroer alerted her new employer that “Diane” would be reporting to work with the same bundle of qualifications as when she had interviewed as “David,” which had resulted in “the selection committee believ[ing] that Schroer’s skills and experience made her application far superior to those of the other candidates.”
Similarly, in Glenn v. Brumby, 724 F. Supp. 2d 1284, 1290 (N.D. Ga. 2010), aff’d, 663 F.3d 1312 (11th Cir. 2011), Vandy Beth Glenn had “informed her direct supervisor [] that she was transgender and was in the process of becoming a woman.” But it was not until a year later that she informed the supervisor “that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name raising the prospect of an eventual transition.” Id. at 1291.
There is nothing in Title VII that would limit protections for these women only if they had arrived at work as their true selves unannounced one day, instead of the careful, employer-conscious routes they chose. Whether the conduct is
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dressing like a woman, walking or talking like a woman, styling one’s hair like a woman, wearing makeup like a woman, or—a quintessential example of declaring “transgender status”—simply saying “I’m a woman,” any and all of these actions are contrary to gender norms for people who previously presented as men.
* * * * * In sum, to characterize the dispute in this case as being only about clothing is to adopt a mistakenly narrow view of the transition process and the assertions presented by the EEOC. A proper analysis would have recognized that from the day Ms. Stephens revealed her gender identity, the discrimination against her was not just about the feminine clothes she sought to wear, but about her gender identity as a whole. Her transgender status or gender identity claim is actionable under Price Waterhouse because being transgender necessarily means not conforming to conventional gender expectations. Accordingly, this Court should reverse the District Court’s flawed ruling that Title VII protects transgender employees from sex discrimination only when the discrimination is described in particular sex-stereotyping terms, and not when it was based on transgender status or identity. // //
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II. TITLE VII SERVES COMPELLING INTERESTS BY PROTECTING TRANSGENDER EMPLOYEES FROM SEX DISCRIMINATION BASED ON BOTH THEIR GENDER IDENTITY AND THEIR GENDER EXPRESSION.
Under RFRA, a federal law may be enforced even when it imposes a substantial burden on someone’s exercise of religion if it serves a compelling interest in the least restrictive manner. 42 U.S.C. § 2000bb-1(b). It is wellestablished that sex discrimination in employment is harmful and that the interest in eradicating it is compelling. Amici join the discussion of this issue at pages 5054 of the EEOC’s brief and at pages 20-26 of Ms. Stephens’ brief.
The District Court did not hold that the EEOC had conclusively established this element of its opposition to the Funeral Home’s RFRA defense. Instead, it merely assumed the point arguendo without deciding it (MSJ Ruling, 201 F. Supp. 3d at 857-59), as if the interest in protecting transgender employees from sex discrimination might be distinguishable in some way, and is lesser, than the interest recognized in cases involving non-transgender workers. Such a distinction would be unfounded legally and tremendously harmful. It should be rejected explicitly.
Moreover, workplace discrimination against transgender individuals already is pervasive and punishing. In a recent nationwide survey of 28,000 transgender people, one in six respondents who had been employed reported having lost a job because of their gender identity with almost a third of respondents who had held or
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applied for a job during that year reporting that they had been fired, denied a promotion, or not hired because of their transgender status. See Sandy E. James, et al., 2015 U.S. Transgender Survey, at p. 10, National Center for Transgender Equality (Dec. 2016), http://www.transequality.org/sites/default/files/docs/usts/ USTS%20 Full%20Report%20-%20FINAL%201.6.17.pdf. Nearly a quarter of respondents who had had a job in the past year reported having experienced harassment or mistreatment once on the job, and 15 percent reported having been attacked or assaulted at work. Id. at 10. Respondents also reported startlingly high unemployment rates, with transgender people of color in particular reporting an unemployment rate four times higher than the national average. Id. at 4.
This discrimination against transgender people results in devastatingly high rates of poverty—almost double that of the general population. Id. at 56. Transgender people also are far less likely to report owning a home and nearly a third have experienced homelessness. Id. at 3. This economic insecurity further marginalizes this vulnerable population and exacerbates already stark mental and physical health disparities, including increased risk for psychiatric disorders, psychological distress, depression and anxiety. See Brad Sears & Christy Mallory, Documented Evidence of Unemployment Discrimination & Its Effects on LGBT People, at p. 15, The Williams Institute (July 2011), https://williamsinstitute.law .ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdf.
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But instead of considering whether anything about workplace discrimination
against transgender people causes the government’s interest in stopping it to be any
differently compelling, the District Court explicitly avoided the question, choosing
instead to assume without deciding that the government had satisfied the
“compelling interest” test prong of RFRA in this case. MSJ Ruling, 201 F. Supp.
3d at 857-59. The lower court’s minimal compelling interest analysis thus failed to
acknowledge that Title VII serves the broad compelling governmental interest in
preventing sex discrimination in all its forms. Id. As one example, the compelling
interest in preventing and remedying sex discrimination does not diminish based
on whether sexual harassment is same-sex or different-sex in nature. Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998).7 Nor should the compelling
interest in preventing sex discrimination diminish where the discriminatory gender
stereotyping at issue is against a transgender woman whose identity or appearance
does not conform to her employer’s expectations. There is no legal basis for
7 In that case, it was argued that surely Congress in 1964 did not intend for that type of claim to be entertained. See id. at 79. The Oncale Court unanimously held that courts must entertain any Title VII claim “that meets the statutory requirements;” it is irrelevant that the particular manifestation of sex discrimination “was assuredly not the principal evil Congress was concerned with when it enacted Title VII” because it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79-80. Thus, it is wrong for courts to search for a specific authorization from Congress beyond its broad condemnation of all discrimination that occurs because of an individual’s sex.
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deeming the interest in ending some forms of sex discrimination less compelling than others.
But instead of recognizing the government’s compelling interest in preventing sex discrimination in all its forms, the District Court framed its RFRA compelling interest analysis too narrowly, repeating its myopic focus on the dress code and describing the sole relevant interest as “removing or eliminating gender stereotypes in the workplace in terms of clothing.” MSJ Ruling, 201 F. Supp. 3d at 841 (emphasis supplied); see also id. at 861-862 (“If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code . . .”) (emphasis supplied).
The court left no doubt about how this framing affected the judgment: “Understanding the narrow context of the discrimination claim stated in this case is important.” Id. at 861. “The only reason that the EEOC can pursue a Title VII claim on behalf of Stephens in this case is under the theory that the Funeral Home discriminated against Stephens because Stephens failed to conform to the ‘masculine gender stereotypes that Rost expected’ in terms of the clothing Stephens would wear at work.” Id. (emphasis added).
This too-narrow approach ignores the many cases in which Title VII has been recognized as serving a broad compelling government interest in combatting
22

discrimination generally. See, e.g., Werft v. Desert Southwest Annual Conference of United Methodist Church, 377 F.3d 1099, 1102 (9th Cir. 2004); EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763, 810 (S.D. Ind. 2002). As the court helpfully explained in Preferred Management, another Title VII case involving a RFRA defense, “even if the EEOC had substantially burdened [the defendant’s] religious beliefs or practices in prosecuting this matter, its conduct still comports with the RFRA’s mandates. There is a ‘compelling government interest’ in creating such a burden: the eradication of employment discrimination based on the criteria identified in Title VII.” 216 F. Supp. 2d at 810 (citing University of Pennsylvania v. EEOC, 493 U.S. 182, 202 (1990); Young v. Northern Illinois Conference of United Methodist Church, 21 F.3d 184, 185 (7th Cir.), cert denied, 513 U.S. 929 (1994)).
The District Court’s “compelling interest” RFRA analysis thus was flawed because Title VII protects against sex discrimination in all its forms, including the sex discrimination inherent in discrimination targeting a transgender employee’s gender identity or gender expression. // //
23

III. THE “LEAST RESTRICTIVE MEANS” OF REMEDYING SEX DISCRIMINATION IN THIS CASE WAS NOT TO FORBID ALL GENDER DISTINCTIONS IN CLOTHING BUT RATHER TO FORBID ADVERSE TREATMENT OF MS. STEPHENS BASED ON HER FEMALE GENDER IDENTITY AND EXPRESSION.
The second aspect of the District Court’s RFRA analysis with troubling implications for transgender employees is the court’s tunnel-visioned selection of a gender-neutral dress code as the mandatory resolution of the parties’ dispute about gender expression, with the EEOC’s purported failure to offer that “compromise” proving fatal to Ms. Stephens’ Title VII claim. The lower court’s approach missed the mark for at least five reasons.
First, the court’s narrow focus on the dress code appears to have been driven at least in part by a misperception of the parties’ arguments as being about “clothing alone,” MSJ Ruling, 201 F. Supp. 3d at 849 n.4. That characterization ignored the extensive argument and supporting evidence in the EEOC’s summary judgment papers that Rost’s bias against Ms. Stephens’ transition went well beyond what she would wear following her explanation that she was about to start presenting as her “true self,” “Aimee Australia Stephens,” and that she then would “live and work full-time” as a woman. See id. at 844-45.
Second, even if the focus on the dress code were appropriate, the court mistakenly concluded that the least restrictive means of eradicating sex discrimination in this case required the EEOC to propose a gender-neutral dress
24

code. But, the discrimination against Ms. Stephens could not have been alleviated by erasing gender differences because the Funeral Home’s refusal to allow her to express her true gender was at the core of the discrimination. Therefore, the wrongful insistence that she not express her female identity would not have been remedied by continuing that bar and also barring everyone else from genderdifferentiated expression.
Third, it seems odd at best to penalize the EEOC for its failure to challenge the gendered dress code given Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir.1977), which approved of gendered dress codes and apparently had not been explicitly questioned or criticized within the Sixth Circuit until the District Court implicitly did so on summary judgment. MSJ Ruling, 201 F. Supp. 3d at 853 (observing that “the Sixth Circuit has not provided any guidance on how to reconcile that previous line of authority with the more recent sex/genderstereotyping theory of sex discrimination.”).
Fourth, although Amici agree that the District Court correctly analyzed Price Waterhouse and Smith to determine that the gendered dress code was not a defense to liability, the lower court’s subsequent faulting of the EEOC essentially for a lack of clairvoyance is deeply problematic. It is unprecedented in an analysis of an asserted RFRA defense against an employment discrimination claim for a court to require the EEOC—after the allegedly discriminatory firing has occurred—to
25

hypothesize and pursue in conciliation ways the conflict might have been avoided in the first place.
The court’s odd approach of faulting the EEOC for not challenging the “sexspecific dress code” (MSJ Ruling, 201 F. Supp. 3d at 841) is stranger still in that it distinguished Barker’s validation of such codes because plaintiff Barker did challenge the dress code under Title VII (and lost), while the EEOC did not do so, consistently with Barker’s holding. See id. at 851.
This leaves a distressing impression that the EEOC was put in a “no win” position: the fact that it did not suggest a gender-neutral dress code was integral to its defeat of the Funeral Home’s dress-code defense, but then the fact that it did not do so was deemed fatal against the RFRA defense. The court’s approach on this point is unprecedented, and incorrect.
Fifth and in conclusion, Title VII itself is the least restrictive means of achieving the compelling interest of preventing discrimination. See, e.g., Werft, 377 F.3d at 1102; Preferred Mgmt. Corp., 216 F.Supp. 2d at 810. As one court has explained,
“[T]here is a compelling interest in ensuring that Title VII remains enforceable as to employment relationships that do not implicate concerns under the Free Exercise and Establishment Clauses of the First Amendment. The analysis the court has performed to eliminate excessive entanglement concerns ensures that the Title VII framework is the least restrictive means of furthering this compelling interest. Title VII as applied in this case qualifies as an exception to the RFRA
26

under subsection (b), and defendant may not invoke the RFRA as a defense. Redhead v. Conference of Seventh-Day Adventists, 440 F. Supp. 2d 211, 221–22 (E.D.N.Y. 2006), adhered to on reconsideration, 566 F. Supp. 2d 125 (E.D.N.Y. 2008) (emphasis added) (denying defendants’ RFRA-based summary judgment motion against pregnancy discrimination claim by teacher fired by Seventh Day Adventists-associated school). In sum, the proper inquiry for the “least restrictive means” element of a RFRA defense against a Title VII claim, as in past such cases, is simply whether the federal rule in question—Title VII—forbids conduct other than discriminatory conduct. It does not. There was no call here for inquiry into whether the EEOC could and should have hypothesized and ordered a gender-neutral compromise, thereby protecting the Funeral Home from any liability for violating the statute’s sex discrimination ban. Such a “solution” was requested by neither employee nor employer; and, indeed, it was contrary to Aimee Stephens’ interest in continuing to do her job, but as herself, without adverse treatment due to her transgender status and expression of her true gender. IV. CONCLUSION Amici ask this Court to confirm that Title VII bars all sex discrimination against employees based on any of their characteristics that contravene stereotypical gender norms, including transgender status, a nonconforming gender
27

identity, name, dress, appearance, or demeanor. In addition, the doctrine should be

clear that, for purposes of RFRA defenses asserted against Title VII claims, that

statutory discrimination ban serves equally compelling interests when workers are

transgender and when they are not. Likewise, because Title VII’s protections

forbid only harmful conduct, they are the least restrictive means of serving those

compelling interests regardless of a worker’s gender identity and the gender-based

reason an employer has taken adverse action. Clarity on these points will help to

broaden understanding of this form of sex discrimination and what the law

requires, thereby serving workers, employers, the judiciary and the general public.

Dated: April 27, 2017
Jennifer C. Pizer Nancy C. Marcus Lambda Legal Defense and Education Fund, Inc. 4221 Wilshire Blvd., Suite 280 Los Angeles, CA 90010 Telephone: (213) 382-7600 jpizer@lambdalegal.org nmarcus@lambdalegal.org

Respectfully submitted,
/s/ Gregory R. Nevins Gregory R. Nevins Lambda Legal Defense and Education Fund, Inc. 730 Peachtree Street, NE. Suite 640 Atlanta, GA 30308 Telephone: (404) 897-1880 gnevins@lambdalegal.org

Counsel for Amici Curiae

28

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because the word counting feature of counsel’s word processing programs shows that this brief contains 6,431 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14 point Times New Roman font. DATED: April 27, 2017
/s/ Gregory R. Nevins
29

CERTIFICATE OF SERVICE I hereby certify that on April 27, 2017 I electronically filed the foregoing document through the court’s electronic filing system, and that it has been served on all counsel of record through the court’s electronic filing system. DATED: April 27, 2017
/s/ Gregory R. Nevins
30

 
 No. 16-2424 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff/Appellant,
and
AIMEE STEPHENS,
Intervenor
vs.
R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
Defendant/Appellee.
Appeal from the United States District Court for the Eastern District of Michigan, The Honorable Sean F. Cox No. 14-13710
BRIEF FOR AMICUS CURIAE UNITARIAN UNIVERSALIST ASSOCIATION IN SUPPORT OF PLAINTIFF/APPELLANT EEOC AND INTERVENOR AIMEE STEPHENS, SUPPORTING REVERSAL
Eric Alan Isaacson Law Office of Eric Alan Isaacson 6580 Avenida Mirola La Jolla, CA 92037-6231 Telephone: 858-263-9581 ericalanisaacson@icloud.com
Counsel for Amicus Curiae Unitarian Universalist Association

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations and Financial Interest

Sixth Circuit Case Number: 16-2424

Case Name: EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.

Name of counsel: Eric Alan Isaacson

Pursuant to 6th Cir. R. 26.1, Unitarian Universalist Association

makes the following disclosure:

Name of Party

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

The Unitarian Universalist Association is not a subsidiary or affiliate of any publicly owned corporation.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:
The Unitarian Universalist Assocation is not aware of any publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome.

CERTIFICATE OF SERVICE
I certify that on _____________A_p_r_i_l _2_4_, _2_0_1_7_____________ the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Eric Alan Isaacson Law Office of Eric Alan Isaacson
This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

6CA-1 8/08

Page 1 of 2

FRAP 26.1 DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST
The Unitarian Universalist Association of Congregations (UUA) is a religious denomination and not-for-profit corporation organized under the laws of the State of Massachusetts. The UUA has no parent corporation and is neither owned nor controlled by any publicly traded corporation. The UUA issues no stock.
FRAP 29(a)(4)(E) STATEMENT REGARDING AUTHORSHIP AND FUNDING
This amicus curiae brief was authored exclusively by counsel for the amicus curiae in consultation with the amicus curiae and its general counsel. No party or counsel for any party to the case made any monetary contribution to fund preparing or submitting the brief, and no party or counsel for any party to the case wrote any portion of the brief. No person—other than the amicus curiae, its members, or its counsel— contributed money that was intended to fund preparing or submitting the brief.
i

TABLE OF CONTENTS

Page

FRAP 26.1 DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST .......................................................... i!
FRAP 29(a)(4)(E) STATEMENT REGARDING AUTHORSHIP AND FUNDING ................................................................................. i!
TABLE OF CONTENTS.............................................................................ii!
TABLE OF AUTHORITIES ..................................................................................iii
I.! IDENTITY AND INTEREST OF AMICUS ......................................... 1!
II.! SUMMARY OF ARGUMENT ............................................................. 1!
III.! ARGUMENT....................................................................................... 3!
A.! Title VII is a Religiously Neutral Law of General Applicability that According to Hobby Lobby Satisfies RFRA’s Requirement that it be the Least Restrictive Means of Furthering a Compelling Governmental Interest ..................................................................................... 3!
B.! “Religious Liberty” has Long Been Cited to Rationalize Discrimination on the Basis of Race ....................................... 8!
1.! Loving v. Virginia............................................................. 12!
2.! Newman v. Piggie Park Enterprises ............................... 15!
3.! Bob Jones University ....................................................... 21!
C.! Employers have Offered Religious Rationalizations for Subordinating Women in the Workplace .............................. 23!
IV.! CONCLUSION ................................................................................. 27!

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TABLE OF AUTHORITIES

Page

CASES
Alexander v. Louisiana, 405 U.S. 625 (1972)……………………………………………..………24
Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)………………………………………….…5
Board of Directors of Rotary Internat’l v. Rotary Club of Duarte, 481 U.S. 537 (1987)……………………………………....................….6
Bob Jones University v. United States, 461 U.S. 574 (1983)………………………………………….....12, 21-23
Bowie v. Birmingham R.&E. Co., 125 Ala. 397, 27 So. 1016 (1899)……………………………………...15
Bradwell v. State, 83 U.S. (16 Wall.) 130 (1873)…………………………………………..24
Brown v. Board of Education, 347 U.S. 483 (1954)………………………………………….………….10
Berea College v. Commonwealth, 123 Ky. 209, 94 S.W. 623 (1906), aff’d sub nom. Berea College v. Kentucky, 211 U.S. 45 (1908)………………..…....15
Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014)…………………………………………......passim
City of Boerne v. Flores, 521 U.S. 507 (1997)…………………………………………………...….4
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990)………………………………………....26
EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980)………………………………………..6, 25
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Page
EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986)………………………………………....26
EEOC v. Pacific Press Publ. Ass’n, 676 F.2d 1272 (9th Cir. 1982)………………………………………..…6
EEOC v. Tree of Life Christian Schools, 751 F. Supp. 700 (S.D. Ohio 1990)…………………………….….….26
Employment Division v. Smith, 494 U.S. 872 (1990)………………………………….…….....…3, 20, 23
Frontiero v. Richardson, 411 U.S. 677 (1973)………………………………………………….….24
Glenn v. Brumby, 663 F. 3d 1312 (11th Cir. 2011)……………………………………..….5
Goesaert v. Cleary, 335 U.S. 464 (1948), overruled by Craig v. Boren, 429 U.S. 190, 210 n.23 (1976)…………………..….24
Harris v. City of Louisville, 165 Ky. 559, 177 S.W. 472 (1915), rev'd 245 U.S. 60 (1917)....….15
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)………………………………………………………7
Heckler v. Mathews, 465 U.S. 728 (1984)…………………….………………………………..7
Kinney v. Commonwealth, 71 Va. (30 Gratt) 858 (1878)……………………………………….….13
Loving v. Virginia, 388 U.S. 1 (1967)…………………………………………………….12-15
In re Minnesota ex rel. McClure, 370 N.W.2d 844 (Minn.1985)……………………………………….....24
NAACP v. Button, 371 U.S. 415 (1963)………………………………………………….….20
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Page
Naim v. Naim, 197 Va. 80, 87 S.E. 2d 749 (Va. 1955)…......…………………….…..14
New York State Club Ass’n v. City of New York, 487 U.S. 1 (1988)………………………………………………………….6
Newman v. Piggie Park Ent., Inc., 256 F.Supp. 941 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d in relevant part and modified on other grounds, 390 U.S. 400 (1968)……………………………….18
Newman v. Piggie Park Enterprises, Inc., 377 F.2d 433 (4th Cir. 1967) (en banc)……….…………………..….19
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968)………………………………………….….12, 15-21
Newman v. Piggie Park Enterprises, Supreme Court Transcript of Record…………………………….17-18
Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164 (4th Cir. 1985)……………………………………...….24
Roberts v. United States Jaycees, 468 U.S. 609 (1984)………………………………………………………6
Schroer v. Billington, 577 F.Supp.2d 308 (D.D.C. 2008)……………………………………..5
Sherbert v. Verner, 374 U.S. 398 (1963)……………………………………………………..20
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)…………………………………………….5
State v. Gibson, 36 Ind. 389 (1871)……………………………………………………….15
State ex. rel. Stoutmeyer v. Duffy, 7 Nev. 342 (1872)…………………………………………………….….15
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Page West Chester & Pa. RR v. Miles,
55 Pa. 209 (Pa. 1867)…………………………………………………...14 Wisconsin v. Yoder,
406 U.S. 205 (1972)………………………………………………….….20
STATUTES
42 U.S.C. §2000bb(b)(1)……………………………………………………….20 42 U.S.C. §2000bb-1(a)-(b)……………………………………………….….2, 4 42 U.S.C. §2000bb-1(b)………………………………………………………..23 42 U.S.C. §2000e-2……………………………………………………..……….3 42 U.S.C. §2000e-2(a)……………………………………………………..….6-7
ARTICLES AND BOOKS
RYAN T. ANDERSON, TRUTH OVERRULED: THE FUTURE OF MARRIAGE AND RELIGIOUS FREEDOM (Washington, D.C.: Regnery Publishing, 2015)………………………………………………………....9
1 JOSEPH HENRY BEALE, JR., A SELECTION OF CASES ON THE CONFLICT OF LAWS (Cambridge, Mass.: Harvard University Press, 1907)…………….13
MAURICE BESSINGER, DEFENDING MY HERITAGE: THE MAURICE BESSINGER STORY
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Page
(West Columbia, South Carolina: LMBONE-LEHONE Publishing Co., 2001)………………………………………………16, 19
AUSTIN EARLE BURGES, WHAT PRICE INTEGRATION? (Dallas, Texas: American Guild Press, 1956)…………………………………………………...10-11
ERNEST Q. CAMPBELL & THOMAS F. PETTIGREW, CHRISTIANS IN RACIAL CRISIS: A STUDY OF LITTLE ROCK’S MINISTRY (Washington, D.C.: Public Affairs Press, 1959)..….11, 12
DAVID L. CHAPPELL, A STONE OF HOPE: PROPHETIC RELIGION AND THE DEATH OF JIM CROW (Chapel Hill & London: University of North Carolina Press, 2004)…………………………………………..16
E. LUTHER COPELAND, THE SOUTHERN BAPTIST CONVENTION AND THE JUDGMENT OF HISTORY: THE TAINT OF AN ORIGINAL SIN (Lanham, Maryland: University Press of America, rev. ed. 2002)………………………….9
Michael Kent Curtis, A Unique Religious Exemption for Antidiscrimination Laws in the Case of Gays? Putting the Call for Exemptions for those Who Discriminate Against Married or Marrying Gays in Context, in THE RULE OF LAW AND THE RULE OF GOD 81 (Simeon O. Ilesanmi, Win-Chiat Lee & J. Wilson Parker, eds.; New York: Palgrave MacMillan, 2014)……………………………………….10, 13
ERIC DABNEY & MIKE COKER, HISTORIC SOUTH CAROLINA: AN ILLUSTRATED HISTORY (San Antonio, Texas: South Carolina Historical Society & Lammert Inc.’s Historical Publishing Network, 2006)……..….19
Jane Dailey, Sex, Segregation, and the Sacred after Brown, 91 J. AM. HIST. 119 (2004)……………………………………..….10, 11
CAREY DANIEL, GOD THE ORIGINAL SEGREGATIONIST AND SEVEN OTHER SEGREGATION SERMONS (Lawndale, Texas: published by the author, pastor of the First Baptist Church of West Dallas, Texas, n.d., ca. 1957)………………………………..…10
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Page
KATE TEST DAVIS, A CENTURY OF ACHIEVEMENT: THE FIRST BAPTIST CHURCH, ORANGEBURG, SOUTH CAROLINA (Orangeburg, South Carolina: First Baptist Church, 1960)……………………………….16
William N. Eskridge Jr., Noah’s Curse: How Religion Often Conflates Status, Belief, and Conduct to Resist Antidiscrimination Norms, 45 GA. L. REV. 657 (2011)………………………………………….10, 11
RICHARD FURMAN, EXPOSITION OF THE VIEWS OF THE BAPTISTS, RELATIVE TO THE COLOURED POPULATION OF THE UNITED STATES (Charleston, South Carolina: A.E. Miller, 1823)…………..……..…9
C.C. GOEN, BROKEN CHURCHES, BROKEN NATION: DENOMINATIONAL SCHISMS AND THE COMING OF THE CIVIL WAR (Macon, Georgia: Mercer University Press, 1985)……………….….9
STEPHEN R. HAYNES, NOAH’S CURSE: THE BIBLICAL JUSTIFICATION OF AMERICAN SLAVERY (New York: Oxford University Press, 2002)………….…..9
JOHN RICHTER JONES, SLAVERY SANCTIONED BY THE BIBLE (Philadelphia: J.B. Lippincott & Co., 1861)……………………………………………….....9
H. LEON MCBETH, THE BAPTIST HERITAGE (Nashville: Broadman Press, 1987)…..….9
NEIL R. MCMILLAN, THE CITIZENS’ COUNCIL: ORGANIZED RESISTANCE TO THE SECOND RECONSTRUCTION, 1954-1964 (Urbana: University of Illinois Press, 1971)………………………………………………….11
John Monk, Barbeque eatery owner, segregationist Maurice Bessinger dies at 83, THE STATE, February 24, 2014……………………….….16
WILLIAM MANLIUS NEVINS, SEGREGATION VERSUS INTEGRATION: AN EXHAUSTIVE STUDY OF THE RACIAL QUESTION, PRESENTING FACTS AND
- viii -

Page
IMPLICATIONS (Columbus, Georgia: The Georgia Tribune Press, n.d., ca. 1959)…………………………………………………….11
James M. Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, 50 Harv. C.R.-C.L. L. Rev. 99 (2015)……...10
PEGGY PASCOE, WHAT COMES NATURALLY: MISCEGENATION LAW AND THE MAKING OF RACE IN AMERICA 70 (New York: Oxford University Press, 2009)………………………………………...….13, 14
JOSIAH PRIEST, BIBLE DEFENSE OF SLAVERY (Glasgow, Kentucky: W.S. Brown, 1851)………………………………………………………..9
MARY BURNHAM PUTNAM, THE BAPTISTS AND SLAVERY 1840-1845 (Ann Arbor: George Wahr Publishers, 1913)……………………………………...…9
D.B. RED, A CORRUPT TREE BRINGETH FORTH EVIL FRUIT: A PLEA FOR RACIAL SEGREGATION BASED ON SCRIPTURE, HISTORY AND WORLD CONDITIONS (Hattiesburg, Miss.: self-published, ca. 1956)…………………………………………………………….…….10
REED SARRATT, THE ORDEAL OF DESEGREGATION: THE FIRST DECADE (New York & London: Harper & Row, 1966)…………………….….11
WERNER SOLLORS, INTERRACIALISM: BLACK-WHITE MARRIAGE IN AMERICAN HISTORY, LITERATURE, AND LAW 96 (New York: Oxford University Press, 2001)……………………………………………..….13
Southern Baptist Convention, Resolution on Racial Reconciliation on the 150th Anniversary of the Southern Baptist Convention, Atlanta, Georgia, 1995……………………………………………...…..9
Southern Baptist Convention, Resolution on the Place of Women in Christian Service, Portland, Oregon, 1973………….….26
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Page
GEOFFREY R. STONE, SEX AND THE CONSTITUTION: SEX, RELIGION, AND LAW FROM AMERICA’S ORIGINS TO THE TWENTY-FIRST CENTURY (New York & London: Liveright Publ. Co., 2017)…………………10
THOMAS D. STRINGFELLOW, SCRIPTURAL AND STATISTICAL VIEWS IN FAVOR OF SLAVERY (Richmond, Virginia: J.W. Randolph, 4th ed. 1856)………………..9
Laura S. Underkuffler, Odious Discrimination and the Religious Exemption Question, 32 Cardozo L. Rev. 2019 (2011)……………………………………....13
Robin Fretwell Wilson, Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context, in SAME SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS at 101 (Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds.; Rowman & Littlefield Publishers for The Becket Fund, 2008)…………………………………………………………….8-9
JOHN WITTE, JR. & JOEL A. NICHOLS, RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT (New York: Oxford University Press, 4th ed. 2016)…………..…..23
SCRIPTURE
1 Cor. 11:3 (NIV)…..............................................................................….25 Ephesians 5:22-24 (NIV)…..................................................................….25 1 Timothy 2:11-15 (NIV)……...................................................................25
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I. IDENTITY AND INTEREST OF AMICUS The Unitarian Universalist Association of Congregations (“UUA”)
is a religious denomination comprising more than 1,000 congregations nationwide, with deep roots in American history and culture.
The UUA thus has an abiding interest in advancing religious liberty and equal protection of the law for all persons, including racial and religious minorities, and LGBT people.
All parties have consented to the filing of this brief in support of Plaintiff/Appellant EEOC and Intervenor Aimee Stephens, supporting reversal of the judgment below.
II. SUMMARY OF ARGUMENT The district court properly found, as an initial matter, that the
Harris Funeral Homes violated Title VII’s proscription of sex discrimination when it fired Aimee Stephens for expressing her intention to present herself as woman and to wear women’s clothing. Yet it erred by holding that the Religious Freedom Restoration Act (“RFRA”) overrides Title VII when employers contend that their religious beliefs require them to discriminate.1 For RFRA clearly
1 Harris Funeral Homes dismissed Aimee Stephens based on its owner’s belief that “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex,” DE76:16 (quoting DE54-2.
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permits the government to substantially burden an exercise of religion
if the burden “is in furtherance of a compelling governmental interest”
and “is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. §2000bb-1(a)-(b).
Indeed, this case is controlled by the Supreme Court’s holding in
Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2783-84 (2014),
that RFRA thus provides “no shield” against enforcement of civil-rights
laws proscribing workplace discrimination, since those laws advance a
compelling governmental interest and already “are precisely tailored to
advance that critical goal.”
Hobby Lobby cited statutory proscriptions of race discrimination
to illustrate this point. Yet, several commentators have asserted that
while religious rationales cannot be offered to justify discrimination on
the basis of race, they can be for discrimination against LGBT people.
Those commentators are mistaken. As discussed below, a theology of
at ¶42), and that he therefore “would be violating God’s commands if [he] were to permit one of the [Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the Funeral Home]. This would violate God’s commands because, among other reasons, [he] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” DE76 (quoting DE54-2:¶43). The District Court wrote that enforcing Title VII’s ban on discrimination in employment would impermissibly burden its owner’s “sincere religious belief 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 one of his funeral homes because doing so would support the idea that sex is a changeable social construct rather than an immutable God-given gift.” DE76:31.
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racism undergirded both the American institution of slavery, and the era of Jim Crow segregation that followed it. Religious rationalizations have similarly been offered to keep women in their place. Any construction of RFRA’s application in Title VII cases must take account of these facts, which eliminate any basis for treating discrimination against transgender people differently than other forms of invidious discrimination that might be rationalized by religious belief.
By allowing religious excuses to override Title VII, the decision below improperly nullifies Aimee Stephens’s right to fundamental protection of the Civil Rights Act.
III. ARGUMENT A. Title VII is a Religiously Neutral Law of General Applicability that According to Hobby Lobby Satisfies RFRA’s Requirement that it be the Least Restrictive Means of Furthering a Compelling Governmental Interest Title VII is a facially neutral law of general applicability that was
not motivated by any desire to target religious exercise. See 42 U.S.C. §2000e-2. As such, under Employment Division v. Smith, 494 U.S. 872 (1990), any incidental burden that it places on an employer’s religious exercise can raise no substantial free-exercise problem under the First Amendment. See Hobby Lobby, 134 S.Ct. at 2751, 2761 (2014)(Smith “held that, under the First Amendment, ‘neutral, generally applicable
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laws may be applied to religious practices even when not supported by a compelling governmental interest.’”)(quoting City of Boerne v. Flores, 521 U.S. 507, 514 (1997)).
The District Court held below that the Harris Funeral Home’s discriminatory policy is nonetheless entitled to protection of the Religious Freedom Restoration Act (“RFRA”), which states that when enforcing a facially neutral “rule of general applicability,” like that sustained in Smith, the “[g]overnment may substantially burden a person’s exercise of religion” only if it shows that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §2000bb-1(a)-(b). According to the District Court, Title VII’s proscription of discrimination is not necessarily the least restrictive means of furthering the government’s goals.2
That the District Court erred is clear from the Supreme Court’s opinion in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2783 (2014), which in construing and applying RFRA’s provisions to the Affordable Care Act directly addressed contentions that they might also
2 The District Court reasoned that the EEOC failed to explore speculative possibilities that Harris Funeral Home agree to abandon its gender-stereotyped dress code in favor of a gender-neutral “unisex” dress code for all its employees, even though nothing in the record suggests that the Harris Funeral Home’s religious scruples, requiring employees to dress according to its owner’s perception of their “God-given” gender could even accept a unisex dress code.
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be applied to impair enforcement of antidiscrimination laws. The Court
flatly rejected any “possibility that discrimination in hiring, for example
on the basis of race, might be cloaked as religious practice to escape
legal sanction.” Id. Answering Justice Ginsburg’s dissenting
suggestion that enforcement of civil rights laws might be indeed
imperiled, the opinion of the Court firmly replied: “Our decision today
provides no such shield.” Id. at 2784. “The Government has a
compelling interest in providing an equal opportunity to participate in
the workforce without regard to race,” for example, “and prohibitions on
racial discrimination are precisely tailored to achieve that critical goal.”
Id.
That should have disposed of the Harris Funeral Home’s RFRA
defense in this case. This Court has soundly held that discrimination
on the basis of sex includes discrimination on account of gender
identification.3 And the government has a compelling interest in
3 See Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir.2005) (transgender plaintiff stated a Title VII claim for sex discrimination “by alleging discrimination . . . for his failure to conform to sex stereotypes”); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (Title VII and equal protection clause cover discrimination on the basis of gender identity); accord, e.g., Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (discrimination in government employment on the basis of gender identity held unconstitutional because “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender”); Schroer v. Billington, 577 F.Supp.2d 293, 308 (D.D.C. 2008) (refusal to hire (employer’s refusal to hire job applicant because she planned on “sex reassignment surgery was literally discrimination ‘because of . . . sex’”) (court’s emphasis).
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proscribing discrimination on account of employee’s sex, just as it does
on the basis of employees’ race.4 Title VII’s prohibition on
discrimination on account of either sex or race is, as Hobby Lobby
states, “precisely tailored to achieve th[e] critical goal” of equal
opportunity in the workplace, giving no room for less restrictive means
of furthering that governmental interest. Hobby Lobby, 134 S.Ct. at
2783. It is, after all, is the very same statutory prohibition that bars
both kinds of discrimination.5
4 See Board of Directors of Rotary Internat’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (sustaining “the State’s compelling interest in eliminating discrimination against women”); Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984) (sustaining “Minnesota’s compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the [anti-discrimination] statute to the Jaycees may have on the male members’ associational freedoms ”); see also New York State Club Ass’n v. City of New York, 487 U.S. 1, 7-8 & 14 n.5 (1988) (sustaining New York statute proscribing discrimination against women and reiterating “that the Court has recognized the State’s ‘compelling interest’ in combatting invidious discrimination”); EEOC v. Pacific Press Publ. Ass’n, 676 F.2d 1272, 1281 (9th Cir. 1982) (in case alleging sex discrimination, holding that “Title VII establishes a compelling governmental interest in eliminating employment discrimination”); EEOC v. Mississippi College, 626 F.2d 477, 488 (5th Cir. 1980) (“the government has a compelling interest in eradicating discrimination in all of its forms”).
5 Title VII provides:
(a) Employer practices It shall be an unlawful employment practice for an employer—
(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; or
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There is, moreover, no less restrictive means of furthering the government’s compelling interest than Title VII’s proscription of workplace discrimination. Invidious discrimination in and of itself works “a type of personal injury.” Heckler v. Mathews, 465 U.S. 728, 738 (1984). The Supreme Court has ““repeatedly emphasized [that] discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.” Id. at 739-40 (emphasis added; citation omitted); cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) (a black “tester” who applied for housing with no intention of actually renting an apartment suffered “a distinct and palpable injury” sufficient to sue for discriminatory treatment under the Fair Housing Act). Exceptions cannot be made with respect to particular
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. §2000e-2(a) (emphasis added).
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persons without compromising Title VII’s central compelling purpose of protecting employees from workplace discrimination.
B. “Religious Liberty” has Long Been Cited to Rationalize Discrimination on the Basis of Race
Any suggestion that Title VII’s protections of civil rights must yield to religious objections must consider the frequency and the facility with which religious rationales have historically been advanced for discrimination on the basis of characteristics such as race.
Those who today advocate “conscience exemptions” and “conscientious objector” status for people who cite their religion and morality as reasons to discriminate against LGBT people typically ignore the historical importance of religious rationales for white supremacy and segregation. Professor Robin Fretwell Wilson has suggested that discrimination against LGBT people is more defensible than discrimination on the basis of race because, she asserts, the kind of “religious and moral convictions” cited for discriminating against LGBT people “simply cannot be marshaled to justify racial discrimination.”6

6

Robin Fretwell Wilson, Matters of Conscience: Lessons for Same-Sex Marriage

from the Healthcare Context, in SAME SEX MARRIAGE AND RELIGIOUS LIBERTY:

EMERGING CONFLICTS at 101 (Douglas Laycock, Anthony R. Picarello, Jr., & Robin

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But Wilson is quite mistaken. Religious rationales for racial
discrimination have had remarkably wide currency in American
culture. They once were offered in earnest defense of slavery.7 With
Fretwell Wilson, eds.; Rowman & Littlefield Publishers for The Becket Fund, 2008). The Heritage Foundation’s Ryan T. Anderson quotes Fretwell as gospel truth on the point in his own recent book portraying same-sex couples’ right to marry under Obergefell as a grave threat to Christians’ religious liberty. RYAN T. ANDERSON, TRUTH OVERRULED: THE FUTURE OF MARRIAGE AND RELIGIOUS FREEDOM 133 (Washington, D.C.: Regnery Publishing, 2015) (quoting Wilson).
7 See e.g., JOHN RICHTER JONES, SLAVERY SANCTIONED BY THE BIBLE (Philadelphia: J.B. Lippincott & Co., 1861); THOMAS D. STRINGFELLOW, SCRIPTURAL AND STATISTICAL VIEWS IN FAVOR OF SLAVERY (Richmond, Virginia: J.W. Randolph, 4th ed. 1856); JOSIAH PRIEST, BIBLE DEFENSE OF SLAVERY (Glasgow, Kentucky: W.S. Brown, 1851); RICHARD FURMAN, EXPOSITION OF THE VIEWS OF THE BAPTISTS, RELATIVE TO THE COLOURED POPULATION OF THE UNITED STATES (Charleston: A.E. Miller, 1823); see generally STEPHEN R. HAYNES, NOAH’S CURSE: THE BIBLICAL JUSTIFICATION OF AMERICAN SLAVERY (New York: Oxford University Press, 2002); William N. Eskridge Jr., Noah’s Curse: How Religion Often Conflates Status, Belief, and Conduct to Resist Antidiscrimination Norms, 45 GA. L. REV. 657, 665-72 (2011). As it happens, what today is America’s largest Protestant denomination was organized at Augusta, Georgia, in May of 1845 to defend the religious liberty of Bible-believing Christians to hold other human beings (of African descent) as slaves. See generally MARY BURNHAM PUTNAM, THE BAPTISTS AND SLAVERY 18401845 at 46-92 (Ann Arbor: George Wahr Publishers, 1913); H. LEON MCBETH, THE BAPTIST HERITAGE 381-91 (Nashville: Broadman Press, 1987); C.C. GOEN, BROKEN CHURCHES, BROKEN NATION: DENOMINATIONAL SCHISMS AND THE COMING OF THE CIVIL WAR 90-98 (Macon, Georgia: Mercer University Press, 1985); E. LUTHER COPELAND, THE SOUTHERN BAPTIST CONVENTION AND THE JUDGMENT OF HISTORY: THE TAINT OF AN ORIGINAL SIN 7-8 (Lanham, Maryland: University Press of America, rev. ed. 2002). A resolution on the denomination’s one-hundred and fiftieth anniversary acknowledged and apologized for “the role that slavery played in the formation of the Southern Baptist Convention.” Resolution on Racial Reconciliation on the 150th Anniversary of the Southern Baptist Convention, Atlanta, Georgia, 1995, http://www.sbc.net/resolutions/899/resolution-on-racialreconciliation-on-the-150th-anniversary-of-the-southern-baptist-convention (last visited April 24, 2017).
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slavery abolished by the Civil War amendments, proponents of
segregation repurposed the white-supremacist theology of slavery,
revising it as needed to provide religious justifications for segregation
and Jim Crow. “Indeed, Christian theology was ‘deeply interwoven’ into
‘the segregationist ideology that supported the discriminatory world of
Jim Crow.’”8 After the Supreme Court’s landmark May 1954 decision
striking down racial segregation in public education,9 a rash of white
supremacist sermons and pamphlets cited scripture to justify
segregation as God’s own plan.10 In construing RFRA’s application to
8 GEOFFREY R. STONE, SEX AND THE CONSTITUTION: SEX, RELIGION, AND LAW FROM AMERICA’S ORIGINS TO THE TWENTY-FIRST CENTURY 145 n.* (New York & London: Liveright Publ. Co., 2017) (quoting Jane Dailey, Sex, Segregation, and the Sacred after Brown, 91 J. AM. HIST. 119, 121-22 (2004)); see also Eskridge, Noah’s Curse, supra note 7, at 665-78; Michael Kent Curtis, A Unique Religious Exemption for Antidiscrimination Laws in the Case of Gays? Putting the Call for Exemptions for those Who Discriminate Against Married or Marrying Gays in Context, in THE RULE OF LAW AND THE RULE OF GOD 81, 93-94 (Simeon O. Ilesanmi, Win-Chiat Lee & J. Wilson Parker, eds.; New York: Palgrave MacMillan, 2014); James M. Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, 50 Harv. C.R.-C.L. L. Rev. 99 (2015).
9 Brown v. Board of Education, 347 U.S. 483 (1954).
10 See, e.g., D.B. RED, A CORRUPT TREE BRINGETH FORTH EVIL FRUIT: A PLEA FOR RACIAL SEGREGATION BASED ON SCRIPTURE, HISTORY AND WORLD CONDITIONS (Hattiesburg, Miss.: self-published, ca. 1956); CAREY DANIEL, GOD THE ORIGINAL SEGREGATIONIST AND SEVEN OTHER SEGREGATION SERMONS (Lawndale, Texas: published by the author, pastor of the First Baptist Church of West Dallas, n.d., ca. 1957); AUSTIN EARLE BURGES, WHAT PRICE INTEGRATION? 99-100 (Dallas, Texas:
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Title VII, this Court should not overlook “the testimony of the many
who believed,” along with the pastor of Montgomery, Alabama’s
Highland Baptist Church, “that segregation was ‘the commandment
and law of God.’”11
When schools were eventually integrated, local white pastors
typically led the resistance – with the Rev. Wesley Pruden and other
local clergy, for example, organizing the battle against desegregation in
Arkansas at Little Rock’s Central High School.12 Researchers from
Harvard University’s Laboratory of Social Relations who interviewed
thirteen of Little Rock’s segregationist clergy, including Pruden himself,
American Guild Press, 1956) (quoting scripture and citing with approval Pastor Carey Daniel’s GOD THE ORIGINAL SEGREGATIONIST); WILLIAM MANLIUS NEVINS, SEGREGATION VERSUS INTEGRATION: AN EXHAUSTIVE STUDY OF THE RACIAL QUESTION, PRESENTING FACTS AND IMPLICATIONS 14 (Columbus, Georgia: The Georgia Tribune Press, n.d., ca. 1959).
11 Dailey, supra note 8, at 122 & n.6 (quoting the pastor of the Highland Baptist Church of Montgomery, as quoted in NEIL R. MCMILLAN, THE CITIZENS’ COUNCIL: ORGANIZED RESISTANCE TO THE SECOND RECONSTRUCTION, 1954-1964, at 174 (Urbana: University of Illinois Press, 1971)).
12 See ERNEST Q. CAMPBELL & THOMAS F. PETTIGREW, CHRISTIANS IN RACIAL CRISIS: A STUDY OF LITTLE ROCK’S MINISTRY 36, 38, 41 (Washington, D.C.: Public Affairs Press, 1959); REED SARRATT, THE ORDEAL OF DESEGREGATION: THE FIRST DECADE 269 (New York & London: Harper & Row, 1966) (“Pruden was affiliated with the Southern Baptist Convention; the others in his group were members of fundamentalist Baptist splinter sects.”).
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found that they were “armed with the firm conviction that God intends the races to be separate,” and were “prepared to quote the Bible chapter and verse to prove it.”13
Segregationist theology is, moreover, specifically referenced and rejected as a sufficient justification for race discrimination in at least three Supreme Court decisions: Loving v. Virginia, 388 U.S. 1, 3 (1967); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 403 n.5 (1968); and Bob Jones University v. United States, 461 U.S. 574 (1983).
1. Loving v. Virginia Patently religious justifications underlay Virginia’s law outlawing interracial marriage in Loving. When the Supreme Court unanimously struck the law down in 1967, it quoted from the court before whom Richard and Mildred Loving were convicted and sentenced, which had stated the rationale behind Virginia’s law banning mixed-race marriages:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for
13 CAMPBELL & PETTIGREW, supra note 12, at 50.
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such marriages. The fact that he separated the races shows that he did not intend for the races to mix.14
In 1878, Virginia’s Supreme Court had declared: “The purity of
public morals, the moral and physical development of both races, and
the highest advancement of our cherished southern civilization, under
which two distinct races are to work out and accomplish the destiny to
which the Almighty has assigned them on this continent – all require
that they should be kept distinct and separate, and that connections
and alliances so unnatural that God and nature seem to forbid them,
should be prohibited by positive law, and be subject to no evasion.”15 By
1955, Virginia’s Supreme Court was still holding that people of different
races could not marry because “the natural law which forbids their
14 Loving, 388 U.S. at 3 (quoting the Circuit Court of Caroline County). See Laura S. Underkuffler, Odious Discrimination and the Religious Exemption Question, 32 Cardozo L. Rev. 2019, 2073 (2011) (“religious justification for Virginia’s statute lurked in Loving”); Curtis, supra note 8, at 93. 15 Kinney v. Commonwealth, 71 Va. (30 Gratt) 858, 869 (1878); see PEGGY PASCOE, WHAT COMES NATURALLY: MISCEGENATION LAW AND THE MAKING OF RACE IN AMERICA 71 (New York: Oxford University Press, 2009) (quoting Kinney); WERNER SOLLORS, INTERRACIALISM: BLACK-WHITE MARRIAGE IN AMERICAN HISTORY, LITERATURE, AND LAW 96 (Oxford University Press, 2001) (quoting Kinney); 1 JOSEPH HENRY BEALE, JR., A SELECTION OF CASES ON THE CONFLICT OF LAWS 93, 98 (Cambridge, Massachusetts: Harvard University Press, 1907) (reprinting Kinney in relevant part).
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intermarriage and the social amalgamation which leads to a corruption of races is as clearly divine as that which imparted to them different natures.”16
Nor were Virginia’s courts alone in so holding. “After the Civil War, judges used interracial sex and marriage as a foundational example of the supposed links between the God-given ‘natural law’ and the ‘natural separation of the races’ both inside and outside miscegenation law.”17 Pennsylvania’s Supreme Court sustained segregation in railroad transportation as part of God’s divine plan to keep the races apart, for fear that social mixing could lead to intermarriage between the races: “God has made them dissimilar, with those natural instincts and feelings which He always imparts to His Creatures, when He intends that they shall not overstep the natural boundaries He has assigned to them.”18 Other states’ courts adopted the decision’s theological rationale for segregation, parroting its
16 Naim v. Naim, 197 Va. 80, 84, 87 S.E. 2d 749, 752 (Va. 1955). 17 PASCOE, supra note 15, at 71. 18 West Chester & Pa. RR v. Miles, 55 Pa. 209, 213 (Pa. 1867).
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warning that “[f]rom social amalgamation it is but a step to illicit intercourse, and but another to intermarriage.”19
Though Loving bluntly acknowledged the view that God condemns interracial marriages, the Supreme Court’s opinion never suggested that recognizing Richard and Mildred Loving’s right to marry might impinge upon legitimate religious-liberty interests of those who believed God disapproved of the union. The very suggestion would have been deemed preposterous. In fact, the Court derided the religious-liberty defense of discrimination as “patently frivolous” the following year in Newman v. Piggie Park Enterprises, Inc.20
2. Newman v. Piggie Park Enterprises Newman v. Piggie Park Enterprises arose under the Civil Rights Act of 1964’s provisions banning discrimination on account of race, color, religion or national origin, in restaurants and other public
19 See, e.g., Bowie v. Birmingham R.&E. Co., 125 Ala. 397, 409, 27 So. 1016, 1020 (1899); State v. Gibson, 36 Ind. 389, 405 (1871); Harris v. Louisville, 165 Ky. 559, 572 (1915), rev’d sub nom. Buchanan v. Warley, 245 U.S. 60 (1917); Berea College v. Commonwealth, 123 Ky. 209, 225, 94 S.W. 623, 628 (1906), aff’d sub nom. Berea College v. Kentucky, 211 U.S. 45 (1908); cf. State ex. rel. Stoutmeyer v. Duffy, 7 Nev. 342, 359 (1872)(Garber, J., dissenting). 20 390 U.S. 400, 402 n.5 (1968).
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accommodations.21 L. Maurice Bessinger, the owner of several
Charleston, South Carolina restaurants, was a devout Southern Baptist
who believed that social mixing of the races violated God’s law, and who
accordingly insisted on racial segregation by excluding black people
from the public dining areas of his restaurants.22 When three black
21 Id. at 400-01. For Bessinger’s own account of the case, see MAURICE BESSINGER, DEFENDING MY HERITAGE: THE MAURICE BESSINGER STORY (West Columbia, South Carolina: LMBONE-LEHONE Publishing Co., 2001).
22 Bessinger’s February 2014 obituary describes him as “a devout Baptist who supported missionaries abroad.” John Monk, Barbeque eatery owner, segregationist Maurice Bessinger dies at 83, THE STATE, February 24, 2014 (online at http://www.thestate.com/news/business/article13839323.html (last visited April 22, 2017) (noting that by 2001 Bessinger’s restaurants still were “distributing proslavery audiotapes and gave customers a discount if they bought his literature,” and that Bessinger claimed Antebellum “South Carolina had ‘biblical slavery,’ . . . which was kinder . . . than other forms of slavery.”). In 1952, Bessinger was “married in the First Baptist Church of Orangeburg,” BESSINGER, supra note 21, at 53, which is affiliated with the Southern Baptist Convention, and which developed its own record of supporting segregation. See DAVID L. CHAPPELL, A STONE OF HOPE: PROPHETIC RELIGION AND THE DEATH OF JIM CROW 134-35 & 248 n.7 (Chapel Hill & London: University of North Carolina Press, 2004) (describing correspondence in Southern Baptist Convention archives from “[t]he Rev. Fred Laughon of First Baptist Church, Orangeburg, S.C. (quoting or paraphrasing segregationist leaders in his congregation)”); KATE TEST DAVIS, A CENTURY OF ACHIEVEMENT: THE FIRST BAPTIST CHURCH, ORANGEBURG, SOUTH CAROLINA 26-27 (Orangeburg, South Carolina: First Baptist Church, 1960) (describing the Orangeburg Baptist Church’s June 3, 1957, adoption during Rev. Laughon’s pastorate of a pro-segregationist resolution expressing the view “that the best interests of both white and negro would be served by having separate schools and that the Kingdom of God will be best served by maintaining separate churches and institutions”). Bessinger’s funeral services were held at the First Baptist Church of West Columbia, South Carolina, also a member of the Southern Baptist Convention. See First Baptist Church of West Columbia: Our History, http://wcolumbiafirstbaptist.com/?page_id=20 (“The church is actively affiliated with and supports the work of the Lexington Baptist Association, South Carolina
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citizens filed suit seeking injunctive relief under Title II of the Civil Rights Act, Bessinger’s answer to their complaint declared:
Defendant Bessinger believes as a matter of faith that racial intermixing or any contribution thereto contravenes the will of God. As applied to this Defendant, the instant action and the Act under which it is brought constitute State inference with the free practice of his religion which interference violates The First Amendment of the United States Constitution.23 At trial, Bessinger testified that he was a Baptist, for whom racial
segregation “is very much part of my belief as a Christian.”24 Asked for
the Biblical basis for his segregationism, Bessinger testified that “in the
Old Testament God commanded the Hebrews not to mix with other
peoples and races.”25 Bessinger insisted that both Orthodox Jews and
Baptist Convention, and Southern Baptist Convention. To God Be the Glory!”) (posted Oct. 11th, 2012: last visited April 23, 2017).
23 Newman v. Piggie Park Enterprises, Supreme Court Transcript of Record, Appendix at 9a, ¶2 (reproducing Bessinger’s February 5, 1965, Answer to the Complaint). Bessinger reiterated his First Amendment defense in his First Amended Answer, filed August 23, 1965, and in a Second Amended Answer filed March 30, 1966. See, id., Appendix at 12a, ¶2 (reproducing Bessinger’s August 23, 1965, First Amended Answer); id at 12a, Sixth Defense (reproducing Second Amended Answer).
24 Id. at 124a, 126a (trial transcript at 226, 227).
25 Id. at 126a (trial transcript at 227).
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“the Black Moslem” shared his conviction that races must not mix when dining.26
The district court properly thought little of Bessinger’s freeexercise argument, “that the Act violates his freedom of religion under the First Amendment ‘since his religious beliefs compel him to oppose any integration of the races whatever.’”27 Acknowledging Bessinger’s “constitutional right to espouse the religious beliefs of his own choosing,” the district court “refuse[d] to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.”28
When Bessinger’s case reached the Supreme Court (mainly on issues relating to statutory attorneys’ fee awards) the eight justices participating in the case unanimously rejected Bessinger’s contention
26 Id. at 127a-128a (trial transcript at 228-29). 27 Newman v. Piggie Park Ent., Inc., 256 F.Supp. 941, 944 (D.S.C. 1966), aff'd in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d in relevant part and modified on other grounds, 390 U.S. 400 (1968); see Hobby Lobby, 134 S.Ct. at 2804 (Ginsburg, J., dissenting). 28 Newman, 256 F.Supp. at 945.
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that the Civil Rights Act, as applied to him, “‘contravenes the will of
God’ and constitutes an interference with the ‘free exercise of the
Defendant’s religion.’”29 Bessinger’s argument that his religious
scruples should exempt him from complying with the Civil Rights Act
was not just meritless, the Supreme Court found it “so patently
frivolous that a denial of counsel fees” to Bessinger’s opponents “would
be manifestly inequitable.”30
It is worth noting that the Supreme Court decided Newman only a
few years after it held in Sherbert v. Verner, 374 U.S. 398 (1963), that
South Carolina’s denial of unemployment benefits to a Seventh-day
29 Newman, 390 U.S. at 402 n.5 (quoting Newman v. Piggie Park Enterprises, Inc., 377 F.2d 433, 438 (4th Cir. 1967) (en banc) (Winter, J., concurring) (quoting Bessinger’s argument below)).
30 Newman, 390 U.S. at 402 n.5; see Elizabeth Sepper, Gays in the Moralized Marketplace, 7 ALA. C.R. & C.L. L. REV. 129, 129-30 (2015). For Bessinger’s account of the case, see MAURICE BESSINGER, DEFENDING MY HERITAGE: THE MAURICE BESSINGER STORY (West Columbia, South Carolina: LMBONE-LEHONE Publishing Co., 2001). Bessinger has actually been lionized in some quarters. See, e.g., ERIC DABNEY & MIKE COKER, HISTORIC SOUTH CAROLINA: AN ILLUSTRATED HISTORY 84 (San Antonio, Texas: South Carolina Historical Society & Lammert Inc.’s Historical Publishing Network, 2006) (“The life of Piggie Park Enterprises founder Maurice Bessinger would make a terrific movie. It would tell the story of a man of humble origins who worked hard all his life to build a multi-million dollar business, and then was willing to risk it all to stand for his principles. The movie might be called Defending My Heritage, the title of the book Bessinger wrote about his success in the barbeque restaurant business and to explain his defense of the Southern way of life.”).
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Adventist who refused to work on her Sabbath placed an “incidental burden on the free exercise of [her] religion” that could be justified only “by a ‘compelling state interest.’”31 Sherbert placed on the state the burden of demonstrating that “no alternative forms of regulation” was available to advance that compelling interest without burdening religious exercise.32 Thus, it was against the background of Sherbert’s standard for evaluating claimed burdens on free exercise that the Supreme Court dismissed Bessinger’s religious-liberty argument – as so utterly frivolous that it warranted shifting his opponents’ attorneys’ fees as a sanction for misconduct.33
Congress of course incorporated legislative findings in RFRA, declaring its purpose as restoring the law before Employment Division v. Smith, and thus “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free
31 Sherbert, 374 U.S. at 403 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)); see id. at 406-09 (finding no such “compelling state interest”). 32 Id. at 407. 33 Newman, 390 U.S. at 402 n.5
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exercise of religion is substantially burdened.” 42 U.S.C. §2000bb(b)(1). Decided in 1968, right between those two decisions, Newman must be understood as consistent with them – and thus as holding that their “compelling interest test,” now embodied in RFRA, cannot protect violations of the Civil Rights Act’s antidiscrimination provisions.

3. Bob Jones University A religious-liberty defense of discrimination failed again in 1983 when the Supreme Court held in Bob Jones University v. United States,34 that public policy fully supported denying tax-exempt status to schools discriminating on the basis of race. The Court acknowledged that Bob Jones University’s governing sponsors “genuinely believe that the Bible forbids interracial dating and marriage.”35 “Since its incorporation in 1983, Goldsboro Christian Schools,” the other educational institution before the Court, also had “maintained a racially discriminatory admissions policy based upon its interpretation of the Bible,”36 according to which

34 461 U.S. 574 (1983). 35 Id. at 580. 36 Id. at 583.

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race is determined by descendance from one of Noah's three sons — Ham, Shem, and Japheth. Based on this interpretation, Orientals and Negroes are Hamitic, Hebrews are Shemitic, and Caucasians are Japhethitic. Cultural or biological mixing of the races is regarded as a violation of God’s command.37
Though the Court accepted the sincerity of these institutions’ claimed religious motivations for racial discrimination, an eight-justice majority held that the compelling governmental interest in discouraging discrimination “substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs,” and that any countervailing interest in religious liberty “cannot be accommodated with that compelling government interest.”38 Only Justice Rehnquist dissented. Although he agreed that Congress could lawfully “deny tax-exempt status to educational institutions that promote racial discrimination,” he objected that it had not done so.39 Not a single justice suggested that denial of tax-exempt status burdened religious exercise in a way that could be accommodated without compromising a compelling governmental interest in discouraging discrimination.
37 Id. at 583 n.6. 38 Id. at 604. 39 Id. at 613 (Rehnquist, J., dissenting).
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Notably, “Bob Jones was decided in a strict scrutiny era, before Employment Division v. Smith (1990) rendered rational basis review the norm in free exercise cases; even so the university [and the Goldsboro Christian Schools] lost.”40 Thus, its holding is directly relevant to RFRA’s provisions restoring the pre-Smith regime of strict scrutiny to require a compelling government interest, and mandating that any burden on religious exercise be shown “the least restrictive means of furthering that compelling governmental interest,” 42 U.S.C. §2000bb-1(b).
Just like Bob Jones, this case involves a compelling governmental interest in discouraging discrimination and, just as in Bob Jones, the Harris Funeral Home’s religiously motivated desire to discriminate “cannot be accommodated with that compelling government interest.”41
C. Employers have Offered Religious Rationalizations for Subordinating Women in the Workplace
This brief so far has focused on religious rationalizations for racial discrimination. But religious rationalizations might also be offered
40 JOHN WITTE, JR. & JOEL A. NICHOLS, RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 242 (New York: Oxford University Press, 4th ed. 2016). 41 Bob Jones University, 461 U.S. at 604.
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grounds for sex discrimination in many ways besides what is
specifically at issue in this case.
Employers could, for example, all too easily assert a religious
conviction that women’s proper place is in the home, raising children
and obeying their husbands, rather than in the workplace.42 The
Supreme Court’s own Justice Bradley once insisted that states may
refuse to let women practice law because “‘[t]he paramount destiny and
mission of woman are to fulfill the noble and benign offices of wife and
mother. This is the law of the Creator.’”43 Even Justice Frankfurter
authored an opinion of the Court sustaining a Michigan law allowing
women to tend bar only in taverns owned by their own husbands or
fathers.44
42 See Hobby Lobby, 135 S.Ct. at 2804-05 (Ginsburg, J., dissenting) (citing In re Minnesota ex rel. McClure, 370 N.W.2d 844, 847 (Minn.1985) (owners of for-profit health clubs believed that the Bible proscribed employing anyone “living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” or any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)).
43 Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (quoting Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring)); see also Alexander v. Louisiana, 405 U.S. 625, 640 (1972)(conc. quoting Justice Bradley); cf. Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985) (dictum).
44 Goesaert v. Cleary, 335 U.S. 464, 466 (1948) (“Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature.”), overruled by Craig v. Boren, 429 U.S. 190, 210 n.23 (1976).
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Employers also might also offer scriptural excuses for refusing to
promote women to positions of authority over men in the workplace.
Paul’s First Epistle to Timothy, with its statement that “I do not permit
a woman to teach or to assume authority over a man,” might be cited as
a basis for keeping women subordinate to men in the workplace – or
even for denying them employment based on their status as women and
to keep them home raising children.45 Paul reportedly advised the
Corinthians “that the head of every man is Christ, and the head of the
woman is man,” 1 Cor. 11:3 (NIV), and to the Ephesians he wrote:
“Wives, submit yourselves to your own husbands as you do to the Lord.
For the husband is the head of the wife as Christ is the head of the
church, his body, of which he is the Savior. Now as the church submits
to Christ, so also wives should submit to their husbands in everything.”
45 Paul’s First Epistle to Timothy states:
A woman should learn in quietness and full submission. I do not permit a woman to teach or to assume authority over a man; she must be quiet. For Adam was formed first, then Eve. And Adam was not the one deceived; it was the woman who was deceived and became a sinner. But women will be saved through childbearing—if they continue in faith, love and holiness with propriety.
1 Timothy 2:11-15 (NIV). It appears that some colleges have restricted the courses that women may be employed to teach. See EEOC v. Mississippi College, 626 F.2d at 479, 487 & n.12 (noting that Mississippi College “hires only males to teach courses concerning the Bible,” and that its president “explained that the practice of not hiring women to teach religion courses was based upon Bible scriptures”).
- 25 -

Ephesians 5:22-24 (NIV). These passages carry considerable influence
in some circles, and particularly among certain Christians who believe
women should remain subordinate to men.46 They have, moreover, been
cited in the past to justify paying women less than men.47
Were Harris Funeral Homes to prevail in this case, it is simply too
easy to imagine employers invoking scriptural passages to assert a
religious belief that women must be subordinate to men in the
workplace, and to favor male employees over female employees. In light
of the compelling government purpose that Title VII serves, which is
46 Inspired by such passages America’s largest Protestant denomination, the Southern Baptist Convention, in 1973 formally resolved to “reaffirm God's order of authority for his church and the Christian home: (1) Christ the head of every man; (2) man the head of the woman; (3) children in subjection to their parents--in the Lord.” Southern Baptist Convention, Resolution on the Place of Women in Christian Service, Portland, Oregon, 1973 (available online: http://www.sbc.net/resolutions/1090/resolution-on-the-place-of-women-in-christianservice ).
47 See, e.g., Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (4th Cir. 1990) (independent Baptist elementary school paid women teachers less than married men because “[w]hen we turned to the Scriptures . . . we found that the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family . . . thinking our opportunity and responsibility of basing our practice on clear biblical teaching would not be a matter of question”); EEOC v. Fremont Christian Sch., 781 F.2d at 1364 (Assembly of God school cited belief “based on, inter alia, Ephesians 5:23, that in any marriage, the husband is the head of the household and is required to provide for that household” as reason for compensating “married male employees at a rate higher than similarly-situated female employees”); EEOC v. Tree of Life Christian Schools, 751 F. Supp. 700 (S.D. Ohio 1990) (religious beliefs given as basis for paying married men more than women).
- 26 -

narrowly tailored to that interest – proscribing discrimination – RFRA does not prescribe, and Hobby Lobby does not permit, that result.
IV. CONCLUSION The judgment below should be reversed. Title VII serves a
compelling governmental interest in proscribing discrimination. Religious objections offered by those who wish to discriminate cannot be accommodated without compromising that compelling governmental interest.

DATED: April 24,2017

Respectfully submitted

Eric Alan Isaacson
Law Office of Eric Alan Isaacson 6580 Avenida Mirola La Jolla, CA 92037-6231 Telephone: 858-263-9581 ericalanisaacson@icloud.com
Counsel for Amicus Curiae Unitarian Universalist Association
- 27 -

- 28 -

CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned counsel certifies that this brief: (i) complies with the type-volume limitations of Rules 29(a)(5) and 32(a)(7)(B) because according to the Microsoft Office Word 2011 program’s “word count” function, the brief contains 6,459 words, including footnotes and excluding the parts of the brief exempted by Rule 32(f); and (ii) complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office Word 2011 and is set in Century Schoolbook font in a size equivalent to 14 points or larger.
__________________________________ ERIC ALAN ISAACSON
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CERTIFICATE OF SERVICE I certify that on April 28, 2017, the foregoing brief was filed using the Court’s CM/ECF system. All participants in the case are registered CM/ ECF users and are being served electronically via that system.
__________________________________ ERIC ALAN ISAACSON
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DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

Document Description

Docket Entry (“DE”) PageID# Range

Affidavit of Thomas Rost

54-2

1325-1338

Summary Judgment Opinion 76

2179-2234

 
 No. 16-2424 IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EQUAL OPPORTUNITY EMPLOYMENT COMMISSION, Plaintiff-Appellant,
AIMEE STEPHENS, Intervenor, v.
R.G. & G.R. HARRIS FUNERAL HOMES, INC., Defendant-Appellee.
On Appeal from the United States District Court for the Eastern District of Michigan
Civil Case No. 2:14-cv-13710 (Honorable Sean F. Cox)
RESPONSIVE BRIEF OF APPELLEE R.G. & G.R. HARRIS FUNERAL HOMES, INC.
Douglas G. Wardlow Gary S. McCaleb ALLIANCE DEFENDING FREEDOM 15100 North 90th Street Scottsdale, Arizona 85260 (480) 444-0020 dwardlow@ADFlegal.org gmccaleb@ADFlegal.org

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations and Financial Interest

Sixth Circuit Case Number: 16-2424

Case Name: EEOC v RG & GR Harris Funeral Home

Name of counsel: Douglas G. Wardlow

Pursuant to 6th Cir. R. 26.1, R.G. & G.R. Harris Funeral Homes, Inc.
Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
No

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:
No

CERTIFICATE OF SERVICE
I certify that on _____________M__a_y_1__7_, _2_0_1_7_____________ the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Douglas G. Wardlow 15100 N. 90th Street Scottsdale, AZ 85260
This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

6CA-1 8/08

Page 1 of 2

TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................. iii STATEMENT OF ISSUES PRESENTED FOR REVIEW .......................................... 1 STATEMENT OF THE CASE .......................................................................................... 2
I. Summary of Facts..................................................................................................... 2
II. Relevant Procedural History and Rulings Presented for Review ....................... 7
SUMMARY OF THE ARGUMENT ................................................................................. 9 ARGUMENT ....................................................................................................................... 11
I. The District Court’s Grant of Summary Judgment on the Wrongful Termination Claim Should Be Upheld on the Basis That R.G. Did Not Engage in Impermissible Sex Stereotyping in Violation of Title VII. ............ 11
A. Because R.G.’s Sex-Specific Dress Code Imposes Equal Burdens on Men and Women, Its Enforcement Does Not Constitute Impermissible Sex Stereotyping in Violation of Title VII.................................................................. 12
B. Neither Price Waterhouse nor Smith Alter the Conclusion that the Enforcement of R.G.’s Sex-Specific Dress Code Against Stephens Did Not Violate Title VII. ........................................................................................................................... 15
C. Title VII Does Not Prohibit All Customary Distinctions between Male and Female Dress and Appearance. ............................................................................ 20
II. The District Court Correctly Held that “Sex” in Title VII Does Not Include Transgender or Transitioning Status................................................................... 24
III. The District Court Correctly Held that RFRA Entitles R.G. to an Exemption from the Enforcement of Title VII..................................................................... 34
A. RFRA May Provide an Exemption from the Enforcement of Title VII Based on the Facts of a Particular Case. ......................................................................... 34
B. The Enforcement of Title VII Substantially Burdens R.G.’s Exercise of Religion. ................................................................................................................... 37
C. The EEOC Failed to Meet Its Burden to Demonstrate that the Enforcement of Title VII Against R.G. Furthers a Compelling Government Interest. ....... 40
D. The EEOC Failed to Establish that Enforcing Title VII Against R.G. is the Least Restrictive Means of Achieving a Compelling Government Interest. .. 43
i

IV. The District Court’s Grant of Summary Judgment in Favor of R.G. on the Clothing Benefit Claim Should Be Affirmed. .................................................... 46
CONCLUSION ................................................................................................................... 50 CERTIFICATE OF COMPLIANCE .............................................................................. 51 CERTIFICATE OF SERVICE ......................................................................................... 52 ADDENDUM...................................................................................................................... 53
ii

TABLE OF AUTHORITIES
Cases
Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977).............................................................................passim
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) ........................................................................... 37, 39, 40, 44
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ..................................................................................... 32
EEOC v. Bailey Company, Inc., 563 F.2d 439 (6th Cir. 1977).............................................................................passim
EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975), cert. denied, 423 U.S. 994, 96 S. Ct. 420 (1976) .................................................... 47
EEOC v. Preferred Management Corp., 216 F.Supp.2d 763 (S.D. Ind. 2002) ....................................................................... 36
Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017)....................................................................17, 18, 32
Fagan v. National Cash Register Company, 481 F.2d 1115 (D.C. Cir. 1973) ......................................................................... 13, 14
Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000).................................................................................... 21
General Telephone Company of the Northwest, Inc. v. EEOC, 446 U.S.318 (1980)...................................................................................11, 46,47, 48
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)................................................................................................... 41
Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998)....................................................................13, 21, 22
Holt v. Hobbs, 135 S. Ct. 853 (2015) .......................................................................................... 39, 40
iii

Illinois Bell Telephone v. FCC, 911 F.2d 776 (D.C. Cir. 1990) ................................................................................. 35
Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006)...........................................................................passim
Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94 (1952)..................................................................................................... 35
Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978)................................................................................................... 16
McBride v. Delta Air Lines, Inc., 551 F.2d 113 (6th Cir. 1977).................................................................................... 47
Price Waterhouse v. Hopkins, 490 U.S. 229 (1989)............................................................................................passim
Redhead v. Conference of Seventh-Day Adventists, 440 F.Supp.2d 211 (E.D.N.Y 2006) ....................................................................... 35
Salmi v. Secretary of Health and Human Services, 774 F.2d 685 (6th Cir. 1985).............................................................................. 13, 32
Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014) ................................................................................................ 25
Schroer v. Billington, 577 F.Supp.2d 293 (D.C. Cir. 2008) ................................................................. 29, 30
Smith v. City of Salem, 369 F.3d 912 (6th Cir. 2004)........................................................................17, 18, 33
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).............................................................................passim
Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971).................................................................................. 16
Tavora v. New York Mercantile Exchange, 101 F.3d 907 (2nd Cir. 1996)................................................................................... 22
Thomas v. Review Board of the Indiana Employment Securities Division, 450 U.S. 707 (1981)................................................................................................... 40
iv

Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125 (6th Cir. 1971).................................................................................... 47
U.S. v. Smith, 731 F.3d 1414 (6th Cir. 1996)............................................................................ 13, 32
Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006).............................................................................. 32, 33
Rules and Statutes
EEOC Compliance Manual § 619.4(d) (June 2006)................................................... 21, 22 Federal Rules of Civil Procedure, Rule 23......................................................................... 47 18 U.S.C. § 249(a)(2)(A)....................................................................................................... 28 42 U.S.C. § 2000e-2(a).................................................................................................... 24, 28 42 U.S.C. § 2000bb-1(b) ................................................................................................ 40, 41 42 U.S.C. § 2000bb-3(a) ....................................................................................................... 37 42 U.S.C. 13925(b)(13)(A) ................................................................................................... 28 Other Authorities
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014), available at https://www.merriam-webster.com/dictionary/transgender (last visited May 11, 2017)........................................................................................ 26
NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010).................................................... 25 THE AMERICAN COLLEGE DICTIONARY 1109 (1970)...................................................... 25 THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
(1st ed. 1969) ............................................................................................................. 25 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2081 (1971) ........................... 25 Am. Psychological Ass’n, Answers to Your Questions About Transgender People, Gender
Identity, and Gender Expression 2 (3d ed. 2014), available at http://bit.ly/1mZQCsH (last visited May 8, 2017) ............................................. 27
v

U.S. National Library of Medicine, https://ghr.nlm.nih.gov/condition/5-alpha-reductase-deficiency (last visited May 8, 2017) .......................................................................................... 30
U.S. National Library of Medicine, https://ghr.nlm.nih.gov/condition/androgen-insensitivity-syndrome (last visited May 8, 2017) .......................................................................................... 30
U.S. National Library of Medicine, https://ghr.nlm.nih.gov/condition/klinefelter-syndrome (last visited May 8, 2017) .......................................................................................... 30
U.S. National Library of Medicine, https://medlineplus.gov/ency/article/000382.htm (last visited May 8, 2017).......................................................................................... 30
Religious Freedom Restoration Act of 1993, S. Rep. 103-111, 1993 U.S.C.C.A.N. 1892 ............................................................. 42
Jennifer Germon, Gender: A Genealogy of an Idea (2009).................................................... 26 Robert J. Stoller,
Sex and Gender: On the Development of Masculinity and Femininity (1968) ................. 27
vi

STATEMENT OF ISSUES PRESENTED FOR REVIEW 1. Whether the enforcement of R.G. and G.R. Harris Funeral Home, Inc.’s (“R.G.”) sex-specific dress code against Charging Party Stephens constitutes sex stereotyping in violation of Title VII when the dress code is evenly enforced and does not impose unequal burdens on the sexes. 2. Whether Title VII’s prohibition of discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a), encompasses discrimination based on transgender or gendertransitioning status. 3. Whether the Religious Freedom Restoration Act (“RFRA”) entitles R.G. to an exemption from the enforcement of Title VII under the specific facts and circumstances of this case.
1

STATEMENT OF THE CASE I. Summary of Facts
R.G. & G.R. Harris Funeral Homes, Inc. (“R.G.”) is a closely held corporation owned and operated by Thomas Rost that has been in business since 1910. R.G. Statement of Facts (“R.G. Facts”), R.55, PageID#1683, ¶¶ 1-2.1 Rost, the president and sole officer of R.G., owns 94.5% of the company.. Id., PageID#1684, ¶¶ 8-9.
Rost has been a Christian for over sixty-five years. Id., PageID#1685, ¶¶ 17-18. Rost operates R.G. according to his religious convictions; he “practice[s] [his] faith through [his] businesses.” T. Rost 30(b)(6) Dep., R.54-5, PageID#1368, 86:20-22, 87:324; T. Rost Aff., R.54-2, PageID#1327-28, ¶¶ 7, 10. R.G.’s mission statement, published on its website, reads: “R.G. … recognize[s] that its highest priority is to honor God in all that we do as a company and as individuals. With respect, dignity, and personal attention, our team of caring professionals strive to exceed expectations, offering options and assistance designed to facilitate healing and wholeness in serving the personal needs of family and friends as they experience a loss of life.” R.G. Facts, R.55, PageID#1686, ¶ 21. Throughout his funeral homes, Rost places Christian devotional booklets and “Jesus” cards featuring Bible verses. R.G. Facts, R.55, PageID#1686, ¶
1 All facts that are supported herein by citations to R.G.’s Statement Facts, R.55, were undisputed by the EEOC. See EEOC Counter-Statement of Disputed Facts, R.64, Page ID#2066-2088.
2

23. Rost also leads prayer at R.G. business meetings. Id., PageID#1686, ¶ 24. Employees acknowledge that R.G. is a Christian business. Id., PageID#1687, ¶¶ 26-27.
Rost operates R.G. as a ministry to serve grieving families. T. Rost 30(b)(6) Dep., R.54-5, PageID#1368, 86:2-19; T. Rost Aff., R.54-2, PageID#1327, ¶ 7. Rost describes R.G.’s ministry as one of healing. T. Rost 30(b)(6) Dep., R.54-5, PageID#1368, 86:219. He sincerely believes that God has called him to minister to grieving people; his religious faith compels him to do that important work. R.G. Facts, R.55, PageID#1688, ¶ 31. Accordingly, R.G. strives to meet clients’ needs by training staff in grief management and maintaining strict codes of conduct and decorum at all times so that family members and friends of the deceased may grieve in a place conducive to healing. T. Rost Aff., R.54-2, PageID#1327, ¶ 8.
Rost sincerely believes that the Bible teaches that a person’s sex (male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex. T. Rost Aff., R.54-2, PageID#1334, ¶ 42. He also sincerely believes that he would be violating God’s commands if he were to pay for or authorize one of R.G.’s funeral directors to wear the uniform for members of the opposite sex while on the job representing the company. T. Rost Aff., R.54-2, PageID#1334-35, ¶¶ 43-46.
Charging Party Stephens started at R.G. on October 1, 2007, as an apprentice and later moved to the position of funeral director and embalmer. R.G. Facts, R.55, PageID#1688, ¶¶ 35-36. As a funeral director, Stephens’s duties included, among other things, body removal, helping set up funeral arrangements, and conducting visitations
3

and funerals, requiring Stephens to interact with grieving families and friends. Id., PageID#1688-89, ¶¶ 37-38; Shaffer Dep., R.54-13, PageID#1435-37, 48:23-49:14, 53:4-54:16; T. Rost Aff., R.54-2, PageID#1328-32, ¶¶ 14-31; Cash Dep., R.54-9, PageID#1406, 27:13-28:22; EEOC T. Rost Aff., R.54-17, PageID#1467-68, ¶¶ 13-14; EEOC Kish Aff., R.54-18, PageID#1475, ¶ 15. Funeral directors are R.G.’s most prominent public representatives. EEOC T. Rost Aff., R.54-17, PageID#1467-68, ¶¶ 13-14; T. Rost Aff., R.54-2, PageID#1332, ¶ 32; EEOC Kish Aff., R.54-18, PageID#1475, ¶ 15.
To ensure that employees do not draw undue attention to themselves or cause grieving individuals unnecessary stress, R.G. maintains a conservative, industrystandard dress code. T. Rost 30(b)(6) Dep., R.54-5, PageID#1361-62, 57:20-58:6 and 59:13-60:5; T. Rost Dep., R.54-4, PageID#1351-52, 49:22-50:15; T. Rost Aff., R.54-2, PageID#1333, ¶ 34; Kish Dep., R.54-6, PageID#1387, 63:19-64:7. R.G.’s employee handbook outlines a general dress code for men requiring that they wear dark suits, white shirts, ties, and dark socks, shoes, and gloves. R.G. Facts, R.55, PageID#1691, ¶ 49. The handbook specifies that women must wear a “suit or plain conservative dress” in muted colors. Id., PageID#1691, ¶ 50. R.G. employees understand that male employees who interact with the public must wear suits and ties, while female employees who interact with the public must wear a skirt suit. Id., PageID#1691, ¶ 51. Funeral directors must wear company-provided suits. Kish Dep. R.54-6, PageID#1381, 17:8-22; Crawford Dep., R.54-7, PageID#1394, 18:3-11. Stephens agrees that R.G.’s
4

sex-specific dress code is industry standard. Stephens Dep., R.54-15, PageID# 145859, 1461, 90:7-25, 91:22-92:9, 102:19-103:14, 118:19-25. Employees have been disciplined for failing to abide by R.G.’s dress code. R.G. Facts, R.55, PageID#1693, ¶ 60. R.G. administers its sex-specific dress code based on its employees’ biological sex. T. Rost Aff., R.54-2, PageID#1333, ¶ 35.
Stephens was born male, so all of R.G.’s employment records for Stephens identify Stephens as male. R.G. Facts, R.55, PageID#1693-94, ¶¶ 61 and 63. For the entire term of Stephens’s employment, Stephens dressed in accordance with the dress code for male funeral directors, wearing uniform men’s suits purchased by R.G. Id., PageID#1694, ¶¶ 64 and 66.
On July 31, 2013, Stephens approached Rost and presented him with a letter that stated Stephens’s intent to transition from presenting as a man to presenting as a woman, including Stephens’s intent to wear female attire at work. Id., PageID#169495, ¶ 67; Stephens Letter, R.54-21, PageID#1494-95. Rost understood from the letter and conversation that Stephens refused to comply with the dress code for male funeral directors. T. Rost 30(b)(6) Dep., R.54-5, PageID#1372, 136:14-23. Approximately two weeks later, on August 15, 2013, Rost informed Stephens that Stephens could not violate R.G.’s dress code for male funeral directors and offered Stephens a severance package. T. Rost 30(b)(6) Dep., R.54-5, PageID#1371, 126:1-25; Stephens Dep., R.5415, PageID#1455-56, 74:13-75:24, 76:2-10, 79:22-80:10; Stephens subsequently filed a charge of discrimination with the EEOC alleging that Stephens was discharged because
5

of Stephens’s “sex and gender identity, female.” Charge of Discrimination, R.54-22, PageID#1497.
Rost would not have dismissed Stephens if Stephens had expressed an intent to dress as a woman only outside of work. T. Rost Aff., R.54-2, PageID#1336, ¶ 50; T. Rost 30(b)(6) Dep., R.54-5, PageID#1372, 137:11-15. Stephens’s intent to violate the dress code while at work was the decisive consideration in the employment decision. T. Rost Aff., R.54-2, PageID#1336, ¶¶ 50-51.
Based on Rost’s long professional experience in the funeral industry and interactions with Stephens at work, Rost believed that if Stephens violated the dress code by wearing a female uniform in the role of funeral director, it would have harmed R.G. clients by causing distraction and interfering with the grieving process, thus disrupting R.G.’s ministry of healing. T. Rost Aff., R.54-2, PageID#1333-34, ¶¶ 39-40; T. Rost 30(b)(6) Dep., R.54-5, PageID#1361-62, #1373-74, 54:8-17, 59:13-60:9, 61:218, 139:5-23, 142:23-143:12; EEOC T. Rost Aff., R.54-17, PageID#1470, ¶ 21. Allowing Stephens to contravene the dress code and wear a female uniform in the public-facing role of funeral director would have caused R.G. to convey a message in direct conflict with Rost’s religious belief that a person’s sex is an immutable, Godgiven gift, thus violating Rost’s religious convictions. T. Rost Aff., R.54-2, PageID#1334-35, ¶¶ 41-46; T. Rost 30(b)(6) Dep., R.54-5, PageID#1361, 54:8-17, 55:1-14. And because R.G. provides suits for all of its funeral directors regardless of their sex, if Rost would have agreed that Stephens could continue to work at R.G. while
6

dressing in the female uniform on the job, Rost would have been paying for a male to wear the female uniform, which would have violated his faith. T. Rost Aff., R.54-2, PageID#1335, ¶¶ 46-47.
If Rost were to be compelled to violate his sincerely held religious beliefs by paying for or authorizing one of his employees to dress inconsistently with his or her biological sex at work, he would feel significant pressure to sell the business and give up his life’s religious calling of ministering to grieving people as a funeral home director and owner. T. Rost Aff., R.54-2, PageID#1335, ¶ 48. II. Relevant Procedural History and Rulings Presented for Review
The EEOC conducted an investigation and subsequently issued a letter of determination finding cause to believe that Stephens’s discharge violated Title VII. Determination, R.63-4, PageID#1968. On September 25, 2014, the EEOC filed a complaint in district court alleging that R.G.’s discharge of Stephens constituted unlawful discrimination because of Stephens’s transgender status, because of Stephens’s “transition from male to female,” and because of sex stereotyping. Complaint, R.1, PageID#4-5, ¶ 15. The EEOC also alleged that R.G. violated Title VII by providing different clothing benefits to male and female employees, though that claim did not impact Stephens. Id., PageID#5, ¶ 17.
R.G. filed a motion to dismiss the wrongful termination claim for failure to state a claim on which relief can be granted. Motion, R.7, PageID#22-47. The district court ruled that Title VII’s prohibition of discrimination “because of . . . sex” does not include
7

discrimination based on transgender status. Amended Order, R.13, PageID#188-89. The district court’s ruling also implicitly recognizes that discrimination based on a person’s status as gender-transitioning is likewise not encompassed within Title VII’s prohibition of discrimination because of sex. The district court further held that the EEOC’s complaint stated a claim for relief for impermissible sex stereotyping in violation of Title VII. Amended Order, R.13, PageID#189-95.
The EEOC and R.G. filed cross-motions for summary judgment. EEOC Motion, R.51, PageID#591-640; R.G. Motion, R.54, PageID#1285-1321. The district court granted summary judgment for R.G. on the wrongful termination claim. Order, R.76, PageID#2233. The district court determined that the enforcement of R.G.’s sexspecific dress code was sex stereotyping in violation of Title VII. Id., PageID#21992204. But the district court held that RFRA exempted R.G. from the enforcement of Title VII. Id., PageID#2204-23. The court also granted summary judgment on the EEOC’s clothing benefit claim, dismissing it without prejudice on the grounds that the court lacked jurisdiction over the claim because (1) the alleged discrimination did not impact Stephens, and (2) the charge of wrongful termination could not have been reasonably expected to lead to an investigation of R.G.’s clothing benefits for male and female employees. Id., PageID#2223-33. The court concluded that proper procedure upon discovering evidence of purported clothing-benefit discrimination would have been to file a Commissioner’s charge. Id., PageID#2233.
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After the EEOC commenced this appeal, charging party Stephens successfully moved to intervene as an appellant. Order, Doc.28-2, PageID#1-3.
SUMMARY OF THE ARGUMENT This Court should reject the district court’s determination that the enforcement of R.G.’s sex-specific dress code violated Title VII and affirm the district court’s dismissal of the wrongful termination claim on the alternative ground that the enforcement of a sex-specific dress code does not violate Title VII when the dress code does not impose unequal burdens on men and women. No court has ever held that the enforcement of a sex-specific employee-appearance policy constitutes impermissible sex stereotyping in violation of Title VII simply because it imposes different requirements on men and women. The Court should not do so here. The even-handed enforcement of a sex-specific dress code that does not unequally burden the sexes does not constitute impermissible sex-stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), because the enforcement of such a policy does not demonstrate an intent to single out an employee for adverse treatment because of their sex. Alternatively, the Court should affirm the district court’s grant of summary judgment on the basis relied upon by the district court, namely, that RFRA entitles R.G. to an exemption from the enforcement of Title VII under the particular facts of this case. Contrary to the arguments of the EEOC and Stephens, R.G. has established that the enforcement of Title VII would substantially burden R.G.’s religious exercise. Compelling R.G. to allow a public-facing employee to wear the uniform for members
9

of the opposite sex while representing the company on the job would cause R.G.’s owner, Tom Rost, to violate his sincerely held religious belief that a person’s sex is an immutable, God-given gift. By causing disruption to the grieving process of mourners, it would also interfere with Rost’s religious calling and mission to serve those who grieve. Rost would be pressured to give up his business rather than violate his religious convictions. Consequently, Rost has established a substantial burden on his religious exercise. The burden thus shifts to the EEOC to establish that enforcing Title VII is the least restrictive means of furthering a compelling government interest. RFRA requires that the government show a compelling interest to enforce the statute with respect to the specific person asserting the religious objection. But the EEOC cannot demonstrate that it has a compelling interest to force Rost to allow an employee to wear the uniform for a member of the opposite sex while at work. Moreover, the EEOC has not demonstrated that other means exist to further its interest in opposing sex stereotypes. Indeed, the means advocated by the EEOC—compelling R.G. to allow an employee to dress and present according to female sex stereotypes in the workplace— undermines the goal of eliminating sex stereotypes from the workplace.
The Court should also affirm the district court’s holding on R.G.’s Rule 12(b)(6) motion that Title VII’s prohibition of discrimination “because of . . . sex” does not include discrimination based on transgender or gender-transitioning status. The common and ordinary meaning of “sex” in Title VII contemporaneous with the enactment of the statute does not include the concept of gender identity or transgender
10

status. The court should not use the sex stereotyping theory of Price Waterhouse to bootstrap protection for gender identity or transgender status into Title VII.
Finally, the Court should affirm the district court’s dismissal without prejudice of the EEOC’s clothing benefits claim. Under this Circuit’s holding in EEOC v. Bailey Co., Inc., 563 F.2d 439 (6th Cir. 1977), the district court lacked jurisdiction over the clothing benefits claim because Stephens’s charge of discrimination, which alleged only wrongful termination on the basis of sex or gender identity, cannot be reasonably expected to lead to an investigation concerning whether R.G. provided clothing benefits to men and not women. Bailey remains good law and does not contradict the Supreme Court’s narrow holding in General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980).
ARGUMENT I. The District Court’s Grant of Summary Judgment on the Wrongful
Termination Claim Should Be Upheld on the Basis That R.G. Did Not Engage in Impermissible Sex Stereotyping in Violation of Title VII. The district court determined that R.G.’s sex-specific dress code was not a defense to the EEOC’s Title VII sex-stereotyping claim., in essence holding that R.G.’s enforcement of its sex-specific dress code against Stephens constituted sex stereotyping in violation of Title VII. Order, R.76, PageID#2204. This is legal error: sex-specific dress codes that do not impose an unequal burden on one sex are permissible under Title VII. Because R.G. discharged Stephens for refusing to abide by R.G.’s sex-specific
11

dress code, and because R.G.’s dress code does not impose an unequal burden on one sex, R.G. did not engage in impermissible sex stereotyping under Title VII. This is an alternative basis for affirming the district court’s grant of summary judgment in favor of R.G. on the EEOC’s wrongful termination claim.
A. Because R.G.’s Sex-Specific Dress Code Imposes Equal Burdens on Men and Women, Its Enforcement Does Not Constitute Impermissible Sex Stereotyping in Violation of Title VII. It has long been held that sex-specific dress codes and other employee-
appearance policies that impose equal burdens on men and women do not violate Title VII.
In Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir. 1977), this Circuit held that a male employee who was discharged for failing to keep his hair short as required by his employer’s sex-specific grooming policy did not state a cause of action under Title VII for discrimination because of sex. The employer’s grooming policy “limited the manner in which the hair of the men could be cut and limited the manner in which the hair of women could be styled.” Id. In holding that the male plaintiff failed to make out a prima facie case of sex discrimination, the court observed that there was “no allegation that women employees who failed to comply with the code provisions relating to hair style were not discharged”; nor was there “any allegation that the employer refused to hire men who did not comply with the code, but did hire women who were not in compliance.” Id. That is, the dress code did not disparately impact women versus men.
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Barker remains binding law in this Circuit. See, e.g., U.S. v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996) (quoting Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”)). And while Barker did not consider Price Waterhouse, the Ninth Circuit recently did so en banc and upheld a sex-specific dress and grooming code. In Jespersen, the court held that Harrah’s Casino did not violate Title VII by requiring its female bartenders to wear makeup and nail polish and to tease, curl, or style their hair, while prohibiting male bartenders from wearing makeup or nail polish and requiring them to keep their hair cut above the collar. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1107 (9th Cir. 2006). The court noted that it has “long recognized that companies may differentiate between men and women in appearance and grooming policies.” Id. at 1110. “The material issue under our settled law is not whether the policies [for men and women] are different, but whether the policy imposed on the plaintiff creates an unequal burden for the plaintiff’s gender.” Id. (citation and quotation marks omitted). Because the female plaintiff failed to show that requiring women to wear makeup (and prohibiting men from doing so) imposed an unequal burden on women, the Ninth Circuit held that she could not establish her claim of sex discrimination. Id. at 1112; see also Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (upholding sex-specific grooming policy); Fagan v. Nat’l Cash Register
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Co., 481 F.2d 1115, 1117 n.3 (D.C. Cir. 1973) (explaining that when employers adopt policies that take account of “common differences in customary dress of male and female employees, it is not usually thought that there is unlawful discrimination ‘because of sex’’’).
R.G.’s basic dress code is outlined in the company’s employee handbook. See R.G. Employee Manual, R.54-20, PageID#1485-87. It is a sex-specific dress code that R.G. applies based on the biological sex of its employees. R.G. Facts, R.55, PageID#1692, ¶ 51. The dress code requires men who interact with the public to wear dark suits with nothing in the jacket pockets, white shirts, ties, dark socks, dark polished shoes, dark gloves, and only small pins. R.G. Employee Manual, R.54-20, PageID#1485-87. Women who interact with the public are generally required to wear a conservative business suit that consists of a skirt and business jacket. R.G. Facts, R.55, PageID#1691, ¶ 51; M. Rost Dep., R.54-11, PageID#1423, 14:16-19.
With respect to Stephens’s claim, the relevant requirements of the dress code are those that apply to Stephens’s funeral director position. See Jespersen, 444 F.3d at 110607 (focusing only on the dress code for the plaintiff’s position). The dress code requires funeral directors—whether male or female—to wear company-provided suits. See Kish Dep., R.54-6, PageID#1381, 17:8-22; Crawford Dep., R.54- 7, PageID#1394, 18:3-11.2
2 Although R.G. has not had an opportunity to employ a female funeral director since Rost’s grandmother stopped working for R.G. around 1950, see Stephens Dep., R.5415, PageID#1459, 102:4-14; T. Rost Aff., R.54-2, PageID#1336, ¶¶ 52-53, R.G. would provide female funeral directors with skirt suits in the same manner that it
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The burden of the dress code on male funeral directors and on female funeral directors is identical.
Moreover, R.G. does not discriminate in its enforcement of the dress code. R.G. has in fact disciplined employees for failing to comply with the dress code. R.G. Facts, R.55, PageID#1693, ¶ 60. If a female funeral director were to say that she planned to wear a men’s suit at work, that employee would be discharged just like Stephens was. T. Rost Aff., R.54-2, PageID#1337, ¶ 55.
Because R.G.’s dress code imposes equivalent burdens on male and female funeral directors, Barker and similar authority in other circuits instruct that the enforcement of R.G.’s dress code does not constitute impermissible sex stereotyping in violation of Title VII.
B. Neither Price Waterhouse nor Smith Alter the Conclusion that the Enforcement of R.G.’s Sex-Specific Dress Code Against Stephens Did Not Violate Title VII. The district court reasoned that in light of the Supreme Court’s decision in Price
Waterhouse and the Sixth Circuit’s holding in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), it “appears unlikely” that this Circuit would find the enforcement of R.G.’s sexspecific dress code permissible under Title VII. Order, R.76, PageID#2204. But a straightforward analysis of Price Waterhouse and Smith reveals that those cases do not alter the widely accepted rule acknowledged in Barker and Jespersen that sex-specific dress
provides pant suits to male funeral directors, and that those female employees would be required to wear those suits while on the job. R.54-2, PageID#1337, ¶ 54.
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and grooming codes are lawful under Title VII when they impose equivalent burdens on men and women.
Indeed, these cases are absolutely consistent with the Supreme Court’s statement that “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’” Price Waterhouse, 490 U.S. at 251 (quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 n. 13 (1978); Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)) (emphasis added). Stephens goes astray by focusing narrowly on “entire spectrum” without paying due regard to the necessary demonstration of “disparate treatment” between “men and women.”
It is a helpful exercise to think about Price Waterhouse and imagine that there was a dress code imposed which obligated Ms. Hopkins to wear a skirt while her male colleagues were obliged to wear pants. Had she simply been fired for wearing pants rather than a skirt, the case would have ended there—both sexes would have been equally burdened by the requirement to comply with their respective sex-specific standard. But what the firm could not do was fire her for being aggressive or macho when it was tolerating or rewarding the behavior among men—and when it did, it relied on a stereotype to treat her disparately from the men in the firm.
At bottom, Price Waterhouse revolves around the employer targeting employee behavior—acting feminine; being macho; getting aggressive—and in so doing, it relies upon the fixed, binary classification of a person’s sex as male or female as the referent
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for determining whether discrimination occurred. It does not create any categorical protection for the fluid continuum of gender identity. As Judge Pryor recently put it, the “doctrine of gender nonconformity is not an independent vehicle for relief; it is instead a proxy a plaintiff uses to help support her argument that an employer discriminated on the basis of the enumerated sex category by holding males and females to different standards of behavior.” Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1260 (11th Cir. 2017) (Pryor, J., concurring) (rejecting expansion of “sex” in Title VII to include sexual orientation).
Thus, Smith and Price Waterhouse are two of a kind, both involving behavior which the employer saw as stereotypical and thought inconsistent with the complainant’s sex. Ms. Hopkins was too masculine while Mr. Smith expressed himself with “less masculine, and more feminine mannerisms and appearance....” Smith, 378 F.3d at 572. In neither case did the plaintiffs refuse to comply with (or challenge) a sex-specific dress code or grooming policy that imposed equal burdens on the sexes.
Nor does Smith expand on Price Waterhouse to create a freestanding claim for discrimination grounded solely in transgender identity. Granted, the Smith panel initially opined that “[d]iscrimination based on transsexualism is rooted in the insistence that sex (organs) and gender (social classification of a person as belonging to one sex or the other) coincide,” which is “the very essence of sex stereotyping.” Smith v. City of Salem, 369 F.3d 912, 921-22 (6th Cir. 2004), amended and superseded, 378 F.3d 566, rehearing en banc denied (Oct. 18, 2004). Thus, the panel went on to state that “to the extent that
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Smith . . . alleges discrimination based solely on his identification as a transsexual, he has alleged a claim of sex stereotyping. . . .” Id. at 922. But just two months after publishing the opinion, the panel removed that passage in an amended opinion. See 378 F.3d 566.
Having corrected its opinion to reject a categorical protection for transgender status, the panel opinion summed it up this way: Price Waterhouse did “not make Title VII protection against sex stereotyping conditional or provide any reason to exclude Title VII coverage for non sex-stereotypical behavior simply because the person is a transsexual.” Id. at 574-575. In other words, transsexuals are not denied the protections of sex discrimination law under Title VII, nor are they precluded from using the “proxy” of sex stereotyping to “support [an] argument that an employer discriminated on the basis of the enumerated sex category. . . .” Evans, 850 F.3d at 1260 (Pryor, J., concurring). To establish discrimination “because of . . . sex,” they still have to prove that the employer’s sex stereotyping resulted in “disparate treatment of men and women.” Price Waterhouse, 490 U.S. at 251.
Smith therefore does not support bootstrapping Stephens’s claim into Title VII based on Stephens’s transgender status or efforts to transition. Instead, Stephens has to show that discrimination occurred because of Stephens’s sex (male), and more specifically, that a disparate burden fell upon Stephens based upon Stephens’s sex. But that is not Stephens’s case, and Smith and Price Waterhouse will not carry the day for Stephens.
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Indeed, unlike the employers in Price Waterhouse or Smith, R.G. never indicated that Stephens’s behavior was too feminine or not masculine enough—no sex stereotype factored into R.G.’s employment decision. To the contrary, R.G. consistently maintained that Stephens, like all other employees, male or female, must comply with the company’s professional sex-specific dress code to ensure that the bereaved receive the care that Rost is compelled by his faith to provide. Thus, the Appellants cannot establish what the plaintiff in Price Waterhouse could (and what the plaintiff in Smith alleged)—that R.G. treated Stephens differently from other employees because of Stephens’s sex.
This brings the present case squarely into the Jespersen analysis, where Jespersen invoked Price Waterhouse to invalidate a sex-specific dress and grooming policy that imposed equal burdens on the sexes. But the Ninth Circuit rejected her argument, concluding that “Jespersen’s claim . . . materially differs from [the plaintiff’s] claim in Price Waterhouse because Harrah’s grooming standards do not require Jespersen to conform to a stereotypical image that would objectively impede her ability to perform her job requirements as a bartender.” 444 F.3d at 1113. This case tracks that scenario precisely: “[t]he record contains nothing to suggest [that R.G.’s dress] standards would objectively inhibit” one sex’s “ability to do the job.” Id. at 1112. R.G.’s dress code does not require Stephens to conform to a sex stereotype that would impede Stephens’s ability to perform the duties of a funeral director. On the contrary, R.G. implemented its dress code to further its unique work as a funeral business catering to the needs of
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its customers. Thus, far from impeding Stephens’s ability to perform the requirements of the job, R.G.’s dress code would have enabled Stephens to perform the funeral director’s duties in the manner that R.G.’s decades of experience established as the right way to serve the bereaved.
The district court rejected the appellate court’s Jespersen analysis, concluding that it was not in line with this Circuit’s admonition in Smith that “[a]fter Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.” Smith, 378 F.3d at 574. See Order, R.76, PageID#2204. But the district court’s reasoning gave short shrift to the critical difference between Smith and the instant case: Smith alleged that his employer singled him out for adverse treatment because he “express[ed] less masculine, and more feminine mannerisms and appearance.” 378 F.3d at 572. In contrast—dispositive contrast—R.G. did not target Stephens for disparate treatment, but rather sought compliance with a policy which obligated every employee to conform to the even-handed, sex-specific dress code. No burden fell uniquely on Stephens because Stephens was male, and that makes Smith inapposite to this case.
C. Title VII Does Not Prohibit All Customary Distinctions between Male and Female Dress and Appearance. The district court reasoned from the premise that Title VII was violated because
R.G. insisted that Stephens dress in accord with “gender-based stereotypes,” which
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“stereotypes” had been codified into a “formal policy.” Order, R.76, PageID#2204. But that reasoning is in open conflict with the EEOC’s own policies on dress codes, as set forth in its Compliance Manual:
[A] dress code may require male employees to wear neckties at all times and female employees to wear skirts or dresses at all times. So long as these requirements are suitable and are equally enforced and so long as the requirements are equivalent for men and women with respect to the standard or burden that they impose, there is no violation of Title VII. EEOC Compliance Manual § 619.4(d) (June 2006). The EEOC thus recognizes that not every mannerism or custom associated with being a man or a woman is an impermissible sex stereotype under Title VII. And perhaps more importantly, the point of Price Waterhouse was to proscribe an employer from relying on his own stereotypes to effect sex discrimination—whereas Stephens would force Stephens’s own stereotypes on the employer as a means of affirming Stephens’s professed gender identity—thus in a sense establishing an employee-created dress code and insisting that Title VII obligates the employer to adopt it. This Court should not write such a standard into Title VII. In any event, many courts post-Price Waterhouse have permitted employers to distinguish between the sexes in their dress and grooming policies, refusing to denounce the harmless sex-based generalizations that underlie all sex-specific employeeappearance polices. See, e.g., Jespersen, 444 F.3d at 1110; Frank v. United Airlines, Inc., 216 F.3d 845, 854 (9th Cir. 2000) (“An appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment”); Harper, 139
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F.3d at 1387 (holding that an employee-appearance policy prohibiting men, but not women, from wearing long hair does not violate Title VII); Tavora v. N.Y. Mercantile Exch., 101 F.3d 907 (2nd Cir. 1996) (upholding a sex-specific grooming policy).
At bottom, then, the central question in this case is not whether R.G.’s dress code relies on distinctions between male and female dress: all sex-specific employeeappearance policies do that, and appellate courts have upheld the practice. Rather, the “material issue under our settled law is not whether the policies [for men and women] are different, but whether the policy imposed on the plaintiff creates an ‘unequal burden’ for the plaintiff’s gender.” Jespersen, 444 F.3d at 1110; see also Barker, 549 F.2d at 401 (holding that a plaintiff who failed to allege that his employer’s grooming policy imposed an unequal burden on one sex did not state a claim under Title VII); and EEOC Compliance Manual § 619.4(d) (“[S]o long as the [dress code] requirements are equivalent for men and women with respect to the standard or burden that they impose, there is no violation of Title VII.”).
The district court observed that the Sixth Circuit has not yet addressed “how to reconcile th[e] previous line of authority” in this Circuit holding that even-handed sexspecific dress codes do not violate Title VII “with the more recent sex/genderstereotyping theory of sex discrimination under Title VII.” Order, R.76, PageID#2203. That is true as far as it goes—the Sixth Circuit has not clearly delineated that Price Waterhouse and Smith deal with different fact patterns and analysis than Barker and Jespersen. But the two lines of cases are on separate analytical tracks that do not conflict.
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Price Waterhouse and Smith demonstrate how a case for discrimination because of sex
may be supported by reference to employer decisions based on sex stereotypes that
single out an employee for adverse treatment compared to members of the opposite
sex. In contrast, Barker and Jespersen teach that a sex-specific employee-appearance
policy, which may be enforced against an employee for reasons that have nothing to do
with sex stereotypes (e.g., a male funeral director might be discharged for refusing to
wear a coat and tie, or for wearing a kilt on the job), will not violate Title VII unless its
enforcement imposes an unequal burden on (thus disparately impacting) one of the two
sexes. The present case fits with Barker and Jespersen, not with Price Waterhouse and Smith.3
This two-track analysis is consistent with the fact that no federal court has held that an
employer whose dress code is sex-specific violates Title VII simply because men are
expected to wear different clothing than women. As longstanding precedent from many
circuits attests, Title VII does not reach so far.
3 The district court also observed that unlike Barker and Jespersen, the present case does not involve an employee challenging a sex-specific dress code. Order, R.76, PageID#2200. But that is a distinction without a difference. There is no dispute that Rost discharged Stephens because of Stephens’s stated intention to violate the dress code for male funeral directors. T. Rost 30(b)(6) Dep., R.54-5, PageID#1372, 136:22137:10; T. Rost Aff., R.54-2, PageID#1336, ¶ 50. Moreover, there is no dispute that Rost would not have discharged Stephens if Stephens had stated an intention to abide by the dress code at work and dress as a woman only outside of work, demonstrating that Rost’s motivation concerned only the work-appearance policy and not Stephens’s professed identity or appearance more generally. T. Rost 30(b)(6) Dep., R.54-5, PageID#1372, 137:11-15. Consequently, if the dress code is permissible under the standards enunciated in Barker, Jespersen, and similar cases (it is), then R.G. did not violate Title VII when R.G. enforced the dress code against Stephens.
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This Court should therefore affirm the district court’s grant of summary judgment in favor of R.G. on the EEOC’s wrongful termination claim on the alternative ground that, contrary to the determination of the district court, R.G. did not engage in impermissible sex stereotyping when it enforced its dress code and discharged Stephens.
II. The District Court Correctly Held that “Sex” in Title VII Does Not Include Transgender or Transitioning Status.
Ruling on R.G.’s motion to dismiss, the district court held that Title VII does not prohibit employment discrimination based on transgender or transitioning status. Amended Order, R.13, PageID#188. The EEOC and Stephens argue that the district court erred because the language “because of . . . sex” forbids discrimination based on transgender or transitioning status. EEOC Br., Doc.22, PageID#21-22; Stephens Br., Doc.60, PageID#18-19. But the EEOC’s and Stephens’s argument does not remotely meet the long-established test for statutory interpretation of terms.
In relevant part, Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). An individual’s transgender or transitioning status is not on the list of forbidden categories. To determine whether Title VII’s prohibition of discrimination “because of . . . sex” also bans discrimination because of transgender or gender-transitioning status, the court must begin with the statutory text. Specifically, the court should look to the meaning of the words of the
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statutory text at the time of its enactment. See, e.g., Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) (“It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning;”; looking to dictionaries from era of enactment).
The common and ordinary meaning of “sex” was the same in 1964 as it is now: “sex” refers to a person’s sex as determined according to physiology and reproductive role, either male or female. See, e.g., WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2081 (1971) (defining “sex” as “the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change”); THE AMERICAN COLLEGE DICTIONARY 1109 (1970) (defining “sex” as “the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished”); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1969) (defining “sex” as “[t]he property or quality by which organisms are classified according to their reproductive functions[;] [e]ither of two divisions, designated male and female, of this classification”); see also NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010) (defining “sex” as “either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions”).
The common and ordinary meaning of “sex” in 1964 did not refer to or include the concept of a person’s status as “transgender.” The term “transgender” refers to “a
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person whose gender identity differs from the sex the person had or was identified as having at birth,” something that is entirely different and distinct from a person’s sex as that term was understood in 1964. Transgender, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014), available at https://www.merriamwebster.com/dictionary/transgender (last visited May 11, 2017) (emphasis added). Indeed, when Title VII was enacted, the term and concept “gender identity” was almost completely unknown. The very first use of the term occurred at a psychoanalytic conference in Stockholm in 1963 and was understood to refer to something different than “sex,” namely, the “psychological phenomena related to the sexes but without direct biological connotations.” Jennifer Germon, Gender: A Genealogy of an Idea 65 (2009) (quotation marks and citation omitted). It is therefore implausible that the common and ordinary meaning of “sex” at the time of Title VII’s enactment included the concept of gender identity or transgender status.
Analyzing the contemporary definitions of “sex” reveals two important facts: in common and ordinary usage in both 1964 and today, “sex” (1) refers to a binary characteristic for which there are only two classifications, male and female, (2) which classification arises in a person based on their chromosomally driven physiology and reproductive function. As just explained, a person’s status as “transgender,” on the other hand, refers to a person’s self-assigned “gender identity.” See Transgender, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY, supra. But gender identity is not a binary characteristic. Rather, it refers to a spectrum of possible classifications, including
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male, female, asexual, non-binary, and others. See Am. Psychological Ass’n, Answers to Your Questions About Transgender People, Gender Identity, and Gender Expression 2 (3d ed. 2014), available at http://bit.ly/1mZQCsH (last visited May 8, 2017) (explaining that some “[g]enderqueer” people “identify their gender as falling outside the binary constructs of ‘male’ and ‘female,’” and indicating that other gender identities include “androgynous, multigendered, gender nonconforming, third gender, and two-spirit”). Moreover, gender identity has nothing to do with physiology or reproductive function. Indeed, Robert Stoller, the UCLA psychoanalyst who introduced the term “gender identity,” wrote in 1968 that gender had “psychological or cultural rather than biological connotations.” Robert J. Stoller, Sex and Gender: On the Development of Masculinity and Femininity 9 (1968).
Because gender identity is not a binary characteristic and has nothing to do with physiology or reproductive function, the common and ordinary meaning of “sex” in Title VII cannot possibly include the concept of gender identity. And it thus follows that “sex” in Title VII cannot include the concept of transgender status, either, because that term takes on meaning by relying on the concept of gender identity.
In short, discrimination because of sex cannot be reasonably understood to include discrimination based on transgender status, because transgender status is an entirely different and distinct trait. Consider it this way: one can imagine a class of persons who profess to be transgender. That class may include persons who are male as well as persons who are female per the common and ordinary meaning of sex.
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Similarly, a class of persons who are female (again, according to the common and ordinary meaning of sex) may include persons who are transgender and persons who are not transgender. It follows that the trait of “sex” is distinct from the concept of “transgender status.” Discrimination because of sex and discrimination based on transgender status are not synonymous; thus Title VII’s prohibition of discrimination in employment “because of . . . sex” does not prohibit transgender-status discrimination. 42 U.S.C. § 2000e-2(a). To hold otherwise would be to amend the statutory text—a job reserved for Congress, not the courts.
This conclusion is buttressed by the words that Congress employs when it chooses to enact legislation that does, in fact, prohibit discrimination against persons for professing a gender identity that differs from their actual sex. In such cases, Congress uses the phrase “gender identity.” For example, the Violence Against Women Act prohibits funded programs from discriminating on the basis of “race, color, religion, national origin, sex, gender identity, . . . or disability.” 42 U.S.C. 13925(b)(13)(A) (emphasis added). There would be no reason to include “gender identity” if the Act’s probation of discrimination on the basis of “sex” encompassed discrimination based on gender identity or transgender status. See also Hate Crimes Act, 18 U.S.C. § 249(a)(2)(A) (imposing a heightened penalty for causing or attempting to cause bodily injury “to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”) (emphasis added). This confirms
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that discrimination because of sex is distinct from discrimination based on the gender
identity that a person professes.4
For the same reasons, discrimination based on sex is distinct from discrimination
based on whether a person is “transitioning” from a gender identity that matches their
actual sex to one that does not. Again, the common and ordinary meaning of “sex”
contemporaneous to Title VII’s enactment refers to a person’s classification as either
male or female based on physiology and reproductive role. Regardless what a person
does to “transition” to or profess a different gender identity, their sex—according to
the common and ordinary meaning of that term in 1964—does not change. Accordingly,
a person’s sex describes a trait that is separate and distinct from the person’s status as
transitioning from one gender identity to another.
The EEOC and Stephens point to the D.C. Circuit’s decision in Schroer v.
Billington, 577 F.Supp.2d 293 (D.C. Cir. 2008), arguing that it supports the view that
discrimination based on transgender and gender-transitioning status constitutes
discrimination because of sex prohibited by Title VII. EEOC Br., Doc.22, PageID#36-
4 Appellants argue that the Supreme Court in Price Waterhouse made clear that Title VII’s prohibition on discrimination in employment because of sex means that “gender must be irrelevant to employment decisions.” Price Waterhouse, 490 U.S. at 240. See EEOC Br., Doc.22, PageID#30; Stephens Br., Doc.60, PageID#18. It is important to note that “sex” and “gender” are used interchangeably throughout the Price Waterhouse opinion. While Title VII means that gender (meaning sex) must not be taken (absent a BFOQ) into account in adverse employment decisions, it does not mean that gender identity must not be taken into account in adverse employment decisions. To do so would take what is a proxy for sex discrimination—a stereotype—and create by judicial order a wholly new protected class that is mutually exclusive from sex.
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37; Stephens Br., Doc.60, PageID#21. Specifically, the EEOC highlights the Schroer
court’s analogy to religious converts, reasoning that if an employee who converted from
Christianity to Judaism were fired not because of the employer’s animosity toward the
religion to which they adhere, but because of animosity toward changing religion, that
would nonetheless constitute discrimination “because of religion.” Schroer, 577
F.Supp.2d at 306-307. See EEOC Br., Doc.22, PageID#37. But this analogy is
structurally flawed: a person’s religion can be changed, but a person’s sex cannot. That
is because sex, as the term was understood at the time of Title VII’s enactment, is
immutable: a person has either “XX” or “XY” chromosomes, and that biological
foundation determines whether the person will fall within the male or female
classifications as defined according to reproductive function. 5 Thus, regardless of
whether a person surgically alters their appearance, a “gender transition” does not alter
5 The existence of “intersex” conditions or chromosomal aberrations do not alter this conclusion. Intersex conditions are rare. Two that are noted in the literature are 5 alpha reductase deficiency, which is so rare that its incidence level is unknown, and androgen insensitivity syndrome, which is known to affect 2-5 persons per 100,000 people. U.S. National Library of Medicine, https://ghr.nlm.nih.gov/condition/5-alpha-reductasedeficiency (last visited May 8, 2017); U.S. National Library of Medicine, https://ghr.nlm.nih.gov/condition/androgen-insensitivity-syndrome (last visited May 8, 2017). Both represent disorders of sexual development, not a different sex. And those who suffer from the most common but still very rare chromosomal disorder, Klinefelter’s (XXY) syndrome, are treated as and considered to be male. U.S. National Library of Medicine, https://ghr.nlm.nih.gov/condition/klinefelter-syndrome (last visited May 8, 2017); U.S. National Library of Medicine, https://medlineplus.gov/ ency/article/000382.htm (last visited May 8, 2017).
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one’s sex or make one the functional equivalent of the opposite sex. It merely alters some range of secondary characteristics associated with one’s actual sex.
And it fails for another reason: for religious discrimination to be unlawful, it must burden a person’s sincerely held religious belief. However, the act of converting is not itself a religion; it is rather a transition from one belief system to another. So while there are religious tenets to which one may adhere in the Catholic faith or Jewish faith, there are no tenets establishing a “conversion faith.” If a new convert has occasion to claim religious discrimination for being of, for example, the Jewish faith, he must point to his Jewish faith, not to the transition between one faith (or no faith) and the new one.
The EEOC further argues that a complaint alleging transgender-status or gendertransitioning discrimination states a claim for relief under Title VII because “such discrimination is inherently based on sex stereotypes.” EEOC Br., Doc.22, PageID#38. The EEOC is flatly wrong. As explained above, the fact that stereotypes may play into an employment situation does not create an independent claim for discrimination. Much to the contrary, the employer’s reliance on stereotypes must result in disparate treatment of employees because they are either male or female. Again, recall that the Smith panel redacted the one paragraph which could have been read as establishing categorical protection for those who profess transgender status, see Section I.B, supra. The EEOC’s proposition that Title VII prohibits transgender-status discrimination because such discrimination is inherently based on sex stereotypes has thus been directly rejected by a panel of this Court. And the holding of a panel of this Court may
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not be overruled by another panel. See, e.g., U.S. v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996) (quoting Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”)).
In addition, contrary to the EEOC’s contention, see EEOC Br., Doc.22, PageID#38, the district court properly relied on Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006) when it dismissed the EEOC’s transgender-status discrimination claim. One year after the Smith decision, the Vickers court held that harassment based on an employee’s “perceived homosexuality” does not state a sexstereotyping claim despite the fact that ideas about sexual orientation can be described as stereotypes about the way that men and women should (or, typically do) behave. See id. at 763-64. The court reasoned that to accept the proposition that discrimination based on the perception of a person’s sexual orientation constitutes impermissible sex stereotyping would improperly expand the scope of Title VII: “a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.” Id. at 764 (quoting Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005)); accord Evans, 850 F.3d 1248 (holding that sexual orientation is not a protected category under Title VII). Similarly here, this court should not use a sex stereotyping claim to bootstrap
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transgender status or gender-transitioning status into Title VII’s list of protected categories.
At a fundamental level, the Vickers decision and the amendment of the Smith decision stand for the same principle: not all characteristics typically associated with the behavior or appearance of men or of women constitute impermissible sex stereotypes under Title VII. It is only when the employer relies on a stereotype to disparately impact either men or women that the stereotype becomes relevant to Title VII discrimination. In Vickers, the court held that the set of sex stereotypes prohibited by Title VII does not include the idea that a male employee should have the sexual orientation toward women that is typical of men (in other words, the “stereotypical” sexual orientation of men). See 453 F.3d at 763-64. And the amendment of the initial opinion in Smith instructs that the set of sex stereotypes prohibited by Title VII does not include the idea that a biological male employee should profess a male gender identity (i.e., the “stereotypical” gender identity of men). Compare 369 F.3d at 921-22 and 378 F.3d at 574. If this were not so—if the EEOC’s and Stephens’ position were to be accepted—then Title VII would, in the realm of employment, abolish every difference between men and women of which society traditionally takes note. That is far beyond the plain-text meaning of Title VII’s prohibition of employment discrimination because of sex, and it is a policy determination suitable to legislative—not judicial—decision. Accordingly, this Court should uphold the district court’s ruling that transgender and gender-transitioning status are not protected classes under Title VII.
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III. The District Court Correctly Held that RFRA Entitles R.G. to an Exemption from the Enforcement of Title VII.
A. RFRA May Provide an Exemption from the Enforcement of Title VII Based on the Facts of a Particular Case.
As an initial matter, Stephens contends that as a result of Stephens’s successful intervention motion (which motion was filed after the commencement of this appeal by the EEOC), this matter should be remanded back to the district court, arguing that RFRA is not a defense to an action between private parties. Stephens Br., Doc.60, PageID#25. Stephens’s argument must be rejected. This Court’s order permitting Stephens’s intervention permitted Stephens to intervene “for briefing purposes only” Order, Doc.28-2, PageID#3. This Court also limited Stephens to argue existing issues only, stating that R.G. would “not be prejudiced [by Stephens’s intervention] given Stephens’s concession in her reply that she does not intend to raise new issues.” Order, Doc.28-2, PageID#2. The Court’s order granting intervention was thus premised upon Stephens’s assurance to this Court and the parties that Stephens would not raise new issues. Yet now Stephens is violating the Court’s order and breaking Stephens’s word by attempting to do just that. Whether RFRA is a defense to a Title VII action between private parties is a new and complicated issue that has never been a part of this case and has never been briefed by the parties. The district court’s mention of the issue in its summary judgment opinion is sua sponte dicta that predates Stephens’s motion to intervene. See Order, R.76, PageID#2222. To allow Stephens to raise the new issue now would immensely prejudice R.G. and undermine the Court’s reasons for allowing
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Stephens’s intervention in the first place. See Illinois Bell Tel. v. FCC, 911 F.2d 776, 786 (D.C. Cir. 1990) (intervenors on appeal are limited to matters “brought before the court by another party”).
Stephens also argues that “ample legal precedent” exists for the proposition that RFRA may not be applied to create an exception to the enforcement of Title VII. Stephens Br., Doc.60, PageID#26-30. Stephens is incorrect. Indeed, none of the cases that Stephens cites is factually similar to the present case, and only two of them involve RFRA at all—and those are both district court rulings from other circuits that are factually distinguishable.
Stephens’s reliance on Redhead v. Conference of Seventh-Day Adventists, 440 F.Supp.2d 211 (E.D.N.Y 2006) is misplaced because in that case, the defendant’s RFRA defense was rejected in favor of analyzing Title VII’s burden on the defendant religious organization’s hiring practices ground that the judicially created free-exercise doctrine of the “ministerial exception.” Id. at 220. But as the EEOC points out, EEOC Br., Doc.22, PageID#42-43, R.G. is not a religious organization in the sense of a church or religious school, and thus the ministerial exception has no application—there is no need to safeguard “matters of church government [or] those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N.A., 344 U.S. 94, 116 (1952). Accordingly, the interplay between the ministerial exception and RFRA in Redhead is of no moment here.
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Stephens’s reliance on EEOC v. Preferred Management Corp., 216 F.Supp.2d 763, 810-813 (S.D. Ind. 2002) is likewise misplaced. In Preferred Management, the EEOC brought a complaint alleging religious discrimination in violation of Title VII. Preferred brought objections, which the court treated as a motion to strike, arguing that certain of the EEOC’s religious-discrimination allegations should be stricken because they were the product of the EEOC’s “overly-aggressive and intrusive inquiry” into certain employees’ religious beliefs in violation of RFRA. Id. at 806. The court rejected the employer’s RFRA defense because there was no evidence that the EEOC’s investigation of Preferred’s alleged religious discrimination was a substantial burden on anyone’s religious exercise. Id. at 810. In the present case, the EEOC did not investigate a claim of religious discrimination, and R.G. has never argued that the EEOC’s investigation was a burden on the company’s religious exercise. Rather, the burden on R.G.’s religious exercise arises from the Title VII penalties that the EEOC seeks to impose on Rost—reinstatement or back pay and front pay—for operating R.G. according to his religious convictions. Accordingly, Preferred Management provides no guidance here.
There is no support for Stephens’s proposition that RFRA may not create an exception to Title VII’s enforcement. Rather, whether RFRA creates an exception to the enforcement of a statute depends on the application of RFRA’s substantial burden and compelling interest tests to the facts of the case at hand. Title VII actions are not exempted from RFRA’s reach: RFRA “applies to all Federal law, and the
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implementation of that law, whether statutory or otherwise, and whether adopted before or after” RFRA’s enactment. 42 U.S.C. § 2000bb-3(a).
B. The Enforcement of Title VII Substantially Burdens R.G.’s Exercise of Religion.
The EEOC argues that R.G. failed to show that its “religious exercise” was “substantially burdened” as required by RFRA. EEOC Br., Doc.22, PageID#48. Specifically, the EEOC contends that R.G. failed to “identif[y] how continuing to employ Stephens after, or during, her transition would interfere with any religious ‘action or practice.’” Id., PageID#51.
Contrary to the EEOC’s crabbed understanding, the Supreme Court in Hobby Lobby held that the “exercise of religion involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2770 (2014) (quotation marks and citation omitted). Thus, as the district court correctly observed, the “question that RFRA presents” is whether the law at issue “imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs.” Id. at 2778. And the relevant question in this case is “whether the law at issue here, Title VII and the body of sex-stereotyping case law that has developed under it, imposes a substantial burden on the ability of the
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Funeral Home to conduct business in accordance with its religious beliefs.” Order, R.76, PageID#2207.
The answer to that question is indisputably “yes.” The record shows that Rost’s “faith compels [him]” to “serve grieving people” as he does through R.G., see T. Rost Aff., R.54-2, PageID#1328, ¶ 10 (“I believe God has called me to serve grieving people . . . , and my faith compels me to do this important work.”). Rost’s life work of serving those who mourn the loss of their loved ones—that is, his very operation of R.G.—constitutes protected religious exercise. In other words, R.G. is the embodiment of Rost’s religious exercise. Requiring R.G. to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with—and thus impose a substantial burden on—R.G.’s ability to carry out Rost’s religious exercise of caring for the grieving. It would do this in two ways. First, allowing a funeral director to wear the uniform for members of the opposite sex would often create distractions for the deceased’s loved ones and thereby hinder their healing process (and R.G.’s ministry). T. Rost 30(b)(6) Dep., R.54-5, PageID#1361-62, 54:8-17, 59:13-60:9; T. Rost Aff., R.542, PageID#1333, ¶¶ 36-38. Second, by forcing R.G. to violate Rost’s faith, the application of Title VII would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people. T. Rost Aff., R.54-2, PageID#1335, ¶ 48.
Furthermore, R.G. operates consistently with Rost’s sincerely held religious beliefs that a person’s sex (whether male or female) is an immutable God-given gift and that people should not deny or attempt to change their sex. Id., PageID#1334, ¶ 42.
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Because of these convictions, R.G. will not purchase female attire for a male funeral director (or male attire for a female funeral director) or authorize funeral directors— the public face of R.G.—to wear the uniform for members of the opposite sex. See id., PageID#1334-35, ¶¶ 43-46. Supreme Court precedent confirms that this qualifies as religious exercise protected under RFRA. Just as Hobby Lobby’s religiously motivated practice of declining to pay for its employees’ abortion-inducing drugs is protected religious exercise under RFRA, see Hobby Lobby, 134 S. Ct. at 2766, 2775, so too is R.G.’s religiously motivated decision declining to apply a female dress code to male employees. Forcing R.G. to allow Stephens to wear the uniform for female funeral directors while representing the Company as a funeral director would require Rost “to engage in conduct that seriously violates [his] religious beliefs,” Holt v. Hobbs, 135 S. Ct. 853, 862 (2015), imposing a substantial burden on R.G.’s exercise of religion.
Thus, the EEOC is wrong to say that “merely employing” individuals who “engage in conduct their employers find religiously objectionable” is not a substantial burden. EEOC Br., Doc.22, PageID#56. To the contrary, the decisive factor in R.G.’s employment decision was Stephens’ intent to dress in female attire while representing R.G. and serving the bereaved. Rost made clear that what his funeral directors wear at work while interacting with funeral-home clients implicates his religious convictions and R.G.’s dress code is an extension of those convictions. T. Rost Aff., R.54-2, PageID#1336, ¶ 50. In contrast, the uncontested evidence establishes that Rost would not have discharged Stephens if Stephens had only presented as a woman on Stephens’
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own time while complying with R.G.’s dress code at work. Rost 30(b)(6) Dep., R.54-5, PageID#1372, 137:11-15; T. Rost Aff., R.54-2, PageID#1336, ¶¶ 50-51. Compelling R.G. to authorize Stephens to dress as a female while representing the Company on the job would pressure Rost to sell his business to avoid violating his religious convictions; if Rost refused to reemploy Stephens, ordering Rost to pay back and front pay to Stephens would amount to a monetary penalty for operating R.G. according to Rost’s religious convictions. As the district court properly determined, in either scenario, there is a substantial burden on Rost’s religious exercise. Order, R.76, PageID#2210. See Holt, 135 S. Ct. at 862 (substantial burden exists where the government requires a person “to engage in conduct that seriously violates [his] religious beliefs”); Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981) (substantial burden exists when the government “put[s] substantial pressure on an adherent . . . to violate his beliefs”).
C. The EEOC Failed to Meet Its Burden to Demonstrate that the Enforcement of Title VII Against R.G. Furthers a Compelling Government Interest.
Having established a substantial burden on religious exercise, the burden shifts to the government to satisfy strict scrutiny. 42 U.S.C. § 2000bb-1(b). RFRA requires that the government “demonstrat[e] that application of [a substantial] burden to the person . . . is the least restrictive means of furthering” a compelling government interest. Id. This is an “exceptionally demanding” standard, requiring the government to “show[] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties.” Hobby Lobby, 134 S. Ct. at
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2780. The district court assumed without deciding that the EEOC’s application of Title VII in this case furthers a compelling interest. But in fact the EEOC cannot demonstrate a compelling interest.
Appellants argue that the government has a compelling interest in the “elimination of workplace discrimination, including sex discrimination” that is of “paramount importance.” EEOC Br., Doc.22, PageID#59; see also Stephens Br., Doc.60, PageID#30-36. But it is not enough to cite a general, broadly formulated interest. Rather, RFRA’s strict-scrutiny test “look[s] beyond broadly formulated interests justifying the general applicability of government mandates.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006). The government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 420 (citing 42 U.S.C. § 2000bb–1(b)). Thus, the relevant government interest is not a generic interest in opposing discrimination (or even sex discrimination), but the specific interest in forcing R.G. to allow its male funeral directors to wear the uniform for female funeral directors while on the job. The EEOC has no compelling interest in mandating that—especially when its own compliance manual affirms the legitimacy of sex-specific dress codes.
The EEOC further argues that it has a compelling interest to apply Title VII to R.G. because the harm to Stephens of granting an exemption to R.G. is purportedly severe. EEOC Br., Doc.22, PageID#62. Specifically, the EEOC contends that applying
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RFRA in this case means denying “Stephens’ statutory right to be free from discrimination.” Id. at 62. As established above, Stephens has no statutory right to be free from discrimination on the basis of transgender or transitioning status, and no impermissible sex stereotyping has occurred. In addition, the constitutional guarantee of free exercise—effectuated here via RFRA’s rejection of Smith—is a higher-order right that necessarily supersedes a conflicting statutory right. Indeed, the legislative history makes clear that RFRA effectuates and enforces the First Amendment’s guarantee of free exercise. The Senate Judiciary Committee described the need for the legislation this way:
To assure that all Americans are free to follow their faiths free from governmental interference, the committee finds that legislation is needed to restore the compelling interest test. As Justice O'Connor stated in Smith, “[t]he compelling interest test reflects the First Amendment's mandate of preserving religious liberty to the fullest extent possible in pluralistic society. For the Court to deem this comment a ‘luxury,’ is to denigrate ‘[t]he very purpose of a Bill of Rights.’” Religious Freedom Restoration Act of 1993, S. Rep. 103-111, 8, 1993 U.S.C.C.A.N. 1892 (quoting Smith, 494 U.S. at 903 (O’Connor, J. concurring) (citation omitted)). Because RFRA effectuates Rost’s free-exercise rights by restoring the compelling interest test, its application creates an as-applied exemption to Title VII. This result is also contemplated by RFRA’s plain language, which provides that the statute “applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” 42 U.S.C. § 2000bb-3(a). Stephens attempts to bolster the EEOC’s compelling-interest argument by citing
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statistics about harassment, violence, and other difficulties faced by persons who profess a gender identity that differs from their biological sex. See Stephens Br., Doc.60, PageID#33-35. But these statistics do not speak to the specific interest in applying Title VII to force R.G. to allow a funeral director to wear the uniform for the opposite sex. Moreover, the present case does not involve discriminatory animus against any person or class of persons. R.G. dismissed Stephens because Stephens would no longer comply with the dress code. R.G. was not motivated by animus against people who profess to be transgender or people who dress as members of the opposite sex. Indeed, it is undisputed that R.G. would not discharge or otherwise discipline employees who dress as members of the opposite sex on their own time but comply with the dress code while on the job. T. Rost Aff., R.54-2, PageID#1336, ¶¶ 50-51; T. Rost 30(b)(6) Dep., R.545, PageID#1372, 137:11-15. R.G.’s dress code and its enforcement of its dress code against Stephens are based on R.G.’s legitimate interest and religious calling to ensure that mourners have a space free of disruptions to begin the healing process after the loss of a loved one. T. Rost 30(b)(6) Dep., R.54-5, PageID#1372, 139:5-23; T. Rost Aff., R.54-2, PageID#1333, ¶¶ 36-39. For all of these reasons, applying Title VII in this case does not further a compelling government interest.
D. The EEOC Failed to Establish that Enforcing Title VII Against R.G. is the Least Restrictive Means of Achieving a Compelling Government Interest.
As the district court correctly held, the EEOC failed to meet its “exceptionally demanding” burden to “sho[w] that it lacks other means of achieving” its compelling
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interest “without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, 134 S. Ct. at 2780. See Order, R.76, PageID#2215. But rather than attempt to demonstrate that there is no other way to achieve its desired goal, the EEOC asserts without support that “[n]o alternative short of this enforcement action—seeking Stephens’[s] reinstatement, back pay, and compensatory and punitive damages—would serve ‘equally well’ the government’s interest in this case in vindicating Stephens’[s] Title VII rights.” EEOC Br., Doc.22, PageID#64 (emphasis added). But that reasoning is circular. In any case where the question arises whether RFRA applies to carve out an exemption from the enforcement of a statute, if the government defines its interest as vindicating the full and regular enforcement of the statute in question, then it will always be true that no alternative short of the full and regular enforcement of the statute serves ‘equally well’ the government’s interest. In short, of course the only way to vindicate Stephens’s Title VII rights is to enforce Title VII. But that tells the court nothing at all, let alone anything about the relevant question here, which is whether alternatives exist that may achieve the government’s compelling interest equally well—here, the purported interest in eradicating harmful sex stereotypes from the workplace.
Because the burden to demonstrate that the lack of any alternative means falls on the government, the existence of a single alternative method compels the conclusion that RFRA applies. Here, the government could permit businesses to allow the enforcement of sex-specific dress codes for employees who are public-facing
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representatives of their employer, so long as the dress code imposes equal burdens on the sexes and does not affect employee dress outside of work. Contrary to the EEOC’s contentions, this would achieve the purported compelling government interest in preventing adverse employment actions based on sex stereotypes equally well: as discussed above, see Section I.C, supra, the government has no interest in eliminating benign sex stereotypes such as traditional differences between male and female dress.
Finally, it is important to note that throughout this litigation, the EEOC has taken the position that Stephens must be allowed to wear a skirt-suit and otherwise express Stephens’s female gender identity through dress and appearance. But, as the district court points out, this amounts to forcing R.G. to authorize Stephens to insist upon sex stereotypes concerning female dress and appearance in the workplace. And that would certainly not serve the government’s interest in opposing sex stereotypes. In short, not only has the government failed to show that it lacks other means to achieve its purported interest; the means for which the EEOC argues here undermines the government’s purported interest in eliminating sex stereotypes from the workplace.
Because the EEOC has failed to demonstrate a specific compelling interest, and because the EEOC has failed to meet its burden to demonstrate that enforcing Title VII against R.G. is the least restrictive means of achieving its purported compelling interest, the Court should affirm the district court’s grant of summary judgment in favor of R.G. on the basis that RFRA provides R.G. an exemption from the enforcement of Title VII under the specific facts and circumstances of this case.
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IV. The District Court’s Grant of Summary Judgment in Favor of R.G. on the Clothing Benefit Claim Should Be Affirmed.
Relying on this court’s decision in Bailey, 563 F.2d 439, the district court held that the EEOC could not pursue the clothing benefit claim because (1) the alleged clothingbenefit discrimination is of a kind not raised by the charging party, and (2) the alleged clothing-benefit discrimination does not affect Stephens. Order, R.76, PageID#222334. The EEOC asserts that the district court erred, arguing that Bailey is no longer good law, and that Bailey is in any event factually distinguishable. EEOC Br., Doc.22, PageID#70. The EEOC is incorrect.
First, Bailey remains good law. Contrary to the EEOC’s contention, Bailey does not conflict with the Supreme Court’s holding in General Telephone, 446 U.S. 318. In Bailey, the court held that a Caucasian female employee filed a charge of discrimination with the EEOC alleging sex discrimination against women and race discrimination against black women. 563 F.2d at 441, 445. After conducting an investigation, the EEOC issued a reasonable cause determination finding cause as to racial discrimination in addition to religious discrimination—a kind of discrimination not alleged in the initial charge—and subsequently initiated a lawsuit. Id. at 442. This Circuit held that the court lacked jurisdiction over the claim of religious discrimination because “[t]he portion of the EEOC’s complaint incorporating allegations of religious discrimination exceeded the scope of the EEOC investigation of [the employer] reasonably expected to grow out of [the employee’s] charge of discrimination,” thus affirming the “clearly stated rule
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in this Circuit . . . that the EEOC’s complaint is limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.” Id. at 446 (citing Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1363 (6th Cir. 1975), cert. denied, 423 U.S. 994, 96 S. Ct. 420 (1976); McBride v. Delta Air Lines, Inc., 551 F.2d 113, 115 (6th Cir. 1977)).
The rule affirmed in Bailey does not conflict with the holding in General Telephone, 446 U.S. 318. In General Telephone, four employees filed charges with the EEOC alleging sex discrimination. Id. at 320. After conducting an investigation, the EEOC commenced litigation against General Telephone and its subsidiary alleging sex discrimination against female employees, seeking relief including injunctive relief and backpay for the women affected by the discriminatory practices alleged. Id. Defendants moved to dismiss the class action aspects of the case, arguing that the EEOC had failed to comply with the requirements of Federal Rule of Civil Procedure 23. Id. at 322-23. Defendants’ motion was denied, the denial was certified for interlocutory appeal, and the Ninth Circuit affirmed the district court’s ruling. Id. at 323. The Supreme Court held that “the EEOC may maintain . . . civil actions for the enforcement of Title VII and may seek specific relief for a group of aggrieved individuals without first obtaining class certification pursuant to Federal Rule of Civil Procedure 23.” Id. at 333-34.
In the course of reaching that conclusion, the Supreme Court reasoned that a consideration of the Rule 23 requirements of numerosity, commonality, typicality, and
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adequacy of representation indicates that the Rule was not designed to apply to civil suits brought by the EEOC in its own name. Id. at 330. The court observed that the typicality requirement, which “limit[s] the class claims to those fairly encompassed by the named plaintiff’s claims,” seems inconsistent with the holdings of “the Courts of Appeals . . . that EEOC enforcement actions are not limited to the claims presented by the charging parties.” Id. at 330-31. The court then added that “[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable.” Id. But these two sentences describing the holdings in two cases from the Courts of Appeals are mere dicta—the question at issue in General Telephone had nothing to do with whether the discriminatory acts alleged in the EEOC’s complaint were “ascertain[ed] in the course of a reasonable investigation of the charging party’s complaint.” Id. Indeed, the Supreme Court emphasized the narrow scope of its ruling: “We hold only that the nature of the EEOC’s enforcement action is such that it is not properly characterized as a ‘class action’ subject to the procedural requirements of Rule 23.” Id. at 334 n. 16. Bailey’s holding—that the EEOC’s complaint must only include allegations that fall within the scope of the investigation reasonably expected to grow out of the charge of discrimination—does not conflict with the narrow holding in General Telephone and remains good law.
The EEOC further argues that Bailey is distinguishable from the present case, observing that the EEOC’s complaint in Bailey added a claim for a type of discrimination (sex discrimination) not encompassed in the original charge, whereas
48

here “the EEOC’s clothing allowance claim, like the termination claim, alleged sex discrimination.” EEOC Br., Doc.22, PageID#78. This argument also fails. The EEOC’s clothing-allowance claim alleges that R.G. discriminated against unidentified female employees by providing male employees but not female employees work clothing. This differs significantly from the discrimination charged by Stephens, who alleged in the charge of discrimination only wrongful termination on account of Stephens’s sex and gender identity. See Charge of Discrimination, R.54-22, PageID#1497. In Bailey, this Circuit held that it was unreasonable to expect that a charge of sex and race discrimination would reasonably lead to an investigation of religious discrimination. See Bailey, 563 F.2d at 446. Similarly here, it is unreasonable to expect that the charge filed by Stephens—a biological male—alleging wrongful termination on account of sex or gender identity (which charge did not even mention R.G.’s dress code) would lead to an investigation of whether R.G. failed to provide its male and female employees with equivalent clothing benefits.
Finally, the EEOC contends that the present case is distinguishable from Bailey because here, the EEOC argues, the clothing allowance claim is related to the charging party. EEOC Br., Doc.22, PageID#79. The EEOC is again incorrect. In Bailey, the religious discrimination alleged by the EEOC did not affect the charging party. 563 F.2d at 447 (“[I]n the present case, the EEOC investigation into [the charging party’s] charge revealed that . . . there was no unlawful discrimination of any kind against [her]. . . . The EEOC’s reasonable cause determination, conciliation efforts, and lawsuit made
49

allegations of religious discrimination based on evidence wholly apart from [the charging party’s] experience.”) Similarly here, the purported denial of clothing benefits to female employees did not in any way impact Stephens. Stephens was provided with company suits at all relevant times and was discharged before attempting to dress as a woman on the job. Accordingly, Stephens is not a member of the class of female employees against whom R.G. allegedly engaged in clothing-benefit discrimination.
In sum, Bailey remains good law and is squarely on point. The district court’s ruling that it lacked jurisdiction over the clothing benefits claim should be affirmed.
CONCLUSION For all of the foregoing reasons, R.G. respectfully urges the Court to affirm the judgment of the district court dismissing all claims against R.G. Dated this 17th day of May, 2017.
Respectfully submitted, s/ Douglas G. Wardlow Douglas G. Wardlow, AZ 032028 Gary S. McCaleb, AZ 018848 ALLIANCE DEFENDING FREEDOM 15100 North 90th Street Scottsdale, Arizona 85260 (480) 444-0020 dwardlow@ADFlegal.org gmccaleb@ADFlegal.org Counsel for Defendant-Appellee, R.G. & G.R. Harris Funeral Homes, Inc.
50

CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 12,964 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirement of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in Garamond 14 point.
s/ Douglas G. Wardlow Douglas G. Wardlow Counsel for Defendant-Appellee
51

CERTIFICATE OF SERVICE I hereby certify that on May 17, 2017, I filed the foregoing document, entitled Responsive Brief of Appellee R.G. & G.R. Harris Funeral Homes, Inc., through the Court’s ECF system, which will effectuate service on all parties.
s/ Douglas G. Wardlow Douglas G. Wardlow Counsel for Defendant-Appellee
52

ADDENDUM DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS
E.D. Mich. Case No. 2:14-cv-13710

Record 7 13 51 54 54-2 54-4 54-5 54-6 54-7 54-9 54-11 54-13 54-15 54-17 54-18 54-20 54-21 54-22

Description

Page ID Range

Motion to Dismiss
Amended Opinion and Order on Motion to Dismiss
EEOC Motion for Summary Judgment

21-47 182-198 591-640

R.G. Motion for Summary Judgment

1285-1321

Thomas Rost Affidavit

1325-1338

Thomas Rost Deposition (excerpts)

1344-1353

Thomas Rost 30(b)(6) Deposition (excerpts) 1354-1378

Kish Deposition (excerpts)

1379-1389

Crawford Deposition (excerpts)

1390-1396

Cash Deposition (excerpts)

1401-1410

Matthew Rost Deposition (excerpts)

1421-1427

Shaffer Deposition (excerpts)

1433-1438

Stephens Deposition (excerpts)

1446-1462

EEOC Thomas Rost Affidavit

1465-1471

EEOC Kish Affidavit

1472-1478

R.G. Employee Manual

1484-1492

Stephens Letter

1493-1495

EEOC Charge of Discrimination

1496-1497

53

55

R.G. Statement of Material Facts

1683-1702

63-4

EEOC Determination Letter

1968-1969

64

EEOC Counter-Statement of Disputed Facts 2066-2088

76

Summary Judgment Opinion and Order

2179-2234

54

 
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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: March 07, 2018
Mr. Sameer Advani Willkie Farr & Gallagher 787 Seventh Avenue New York, NY 10019-0000
Ms. Mary Eaton Willkie Farr & Gallagher 787 Seventh Avenue New York, NY 10019-0000
Katherine M. Franke Columbia University School of Law 435 W. 116th Street Mail Code E-9 New York, NY 10027
Mr. Eric Alan Isaacson Law Office 6580 Avenida Mirola La Jolla, CA 92037-6231
Mr. Doron M. Kalir Cleveland-Marshall College of Law 1801 Euclid Avenue Suite LB 138 Cleveland, OH 44115
Mr. Jay D. Kaplan American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. Richard Brian Katskee Americans United for Separation of Church and State 1310 L Street, N.W., Suite 200 Washington, DC 20005

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Mr. John Anthony Knight Roger Baldwin Foundation of ACLU, Inc. 150 N. Michigan Avenue Suite 600 Chicago, IL 60601
Mr. Daniel S. Korobkin American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. Jordan W. Lorence Alliance Defending Freedom 440 First Street, N.W. Suite 600 Washington, DC 20001
Ms. Nancy C. Marcus Lambda Legal Defense and Education Fund, 4221 Wilshire Boulevard Suite 280 Los Angeles, CA 90010
Mr. Gary McCaleb Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260
Mr. Gregory R. Nevins Lambda Legal Defense and Education Fund Southern Regional Office 730 Peachtree Street, N.E. Suite 1070 Atlanta, GA 30308-1210
Ms. Anne Noel Occhialino U.S. Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E. 5SW20L Washington, DC 20507
Mr. William Jeffrey Olson 370 Maple Avenue, W., Suite 4 Vienna, VA 22180-5615

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Ms. Jennifer C. Pizer Lambda Legal Defense and Education Fund, 4221 Wilshire Boulevard Suite 280 Los Angeles, CA 90010
Ms. Elizabeth Reiner Platt Morningside Heights Legel Services, Inc. Columbia University School of Law 435 W. 116th Street Mail Code E-9 New York, NY 10027
Mr. Wesley Railey Powell Willkie Farr & Gallagher 787 Seventh Avenue New York, NY 10019-0000
Mr. Douglas G. Wardlow 14033 Commerce Avenue, N.E. Suites 300-310 Prior Lake, MN 55372
Re: Case No. 16-2424, EEOC v. R.G. &. G.R. Harris Funeral Originating Case No. : 2:14-cv-13710
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,

Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0045p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

┐

Plaintiff-Appellant, │ │

AIMEE STEPHENS,

│ │

Intervenor, ││>

v.

│

│

R.G. &. G.R. HARRIS FUNERAL HOMES, INC.,

│

Defendant-Appellee.

│ │

┘

No. 16-2424

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:14-cv-13710—Sean F. Cox, District Judge.
Argued: October 4, 2017

Decided and Filed: March 7, 2018 Before: MOORE, WHITE, and DONALD, Circuit Judges.

_________________

COUNSEL
ARGUED: Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. John A. Knight, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Chicago, Illinois, for Intervenor. Douglas G. Wardlow, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellee. ON BRIEF: Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. John A. Knight, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Chicago, Illinois, Jay D. Kaplan, Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Intervenor. Douglas G. Wardlow, Gary S. McCaleb, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellee. Jennifer C. Pizer, Nancy C. Marcus, LAMBDA LEGAL DEFENSE AND

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No. 16-2424

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Page 2

EDUCATION FUND, INC., Los Angeles, California, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, Georgia, Richard B. Katskee, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., Doron M. Kalir, CLEVELAND-MARSHALL COLLEGE OF LAW, Cleveland, Ohio, Elizabeth Reiner Platt, Katherine Franke, PRIVATE RIGHTS / PUBLIC CONSCIENCE PROJECT, New York, New York, Mary Jane Eaton, Wesley R. Powell, Sameer Advani, WILLKIE FARR & GALLAGHER, LLP, New York, New York, Eric Alan Isaacson, LAW OFFICE OF ERIC ALAN ISAACSON, La Jolla, California, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Curiae.
_________________
OPINION _________________
KAREN NELSON MOORE, Circuit Judge. Aimee Stephens (formerly known as Anthony Stephens) was born biologically male.1 While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. (“the Funeral Home”), a closely held for-profit corporation that operates three funeral homes in Michigan. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work. Stephens filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), which investigated Stephens’s allegations that she had been terminated as a result of unlawful sex discrimination. During the course of its investigation, the EEOC learned that the Funeral Home provided its male public-facing employees with clothing that complied with the company’s dress code while female publicfacing employees received no such allowance. The EEOC subsequently brought suit against the Funeral Home in which the EEOC charged the Funeral Home with violating Title VII of the Civil Rights Act of 1964 (“Title VII”) by (1) terminating Stephens’s employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes; and (2) administering a discriminatory-clothing-allowance policy.

1We refer to Stephens using female pronouns, in accordance with the preference she has expressed through her briefing to this court.

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The parties submitted dueling motions for summary judgment. The EEOC argued that it was entitled to judgment as a matter of law on both of its claims. For its part, the Funeral Home argued that it did not violate Title VII by requiring Stephens to comply with a sex-specific dress code that it asserts equally burdens male and female employees, and, in the alternative, that Title VII should not be enforced against the Funeral Home because requiring the Funeral Home to employ Stephens while she dresses and represents herself as a woman would constitute an unjustified substantial burden upon Rost’s (and thereby the Funeral Home’s) sincerely held religious beliefs, in violation of the Religious Freedom Restoration Act (“RFRA”). As to the EEOC’s discriminatory-clothing-allowance claim, the Funeral Home argued that Sixth Circuit case law precludes the EEOC from bringing this claim in a complaint that arose out of Stephens’s original charge of discrimination because the Funeral Home could not reasonably expect a clothing-allowance claim to emerge from an investigation into Stephens’s termination.
The district court granted summary judgment in favor of the Funeral Home on both claims. For the reasons set forth below, we hold that (1) the Funeral Home engaged in unlawful discrimination against Stephens on the basis of her sex; (2) the Funeral Home has not established that applying Title VII’s proscriptions against sex discrimination to the Funeral Home would substantially burden Rost’s religious exercise, and therefore the Funeral Home is not entitled to a defense under RFRA; (3) even if Rost’s religious exercise were substantially burdened, the EEOC has established that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Stephens; and (4) the EEOC may bring a discriminatory-clothing-allowance claim in this case because such an investigation into the Funeral Home’s clothing-allowance policy was reasonably expected to grow out of the original charge of sex discrimination that Stephens submitted to the EEOC. Accordingly, we REVERSE the district court’s grant of summary judgment on both the unlawful-termination and discriminatory-clothing-allowance claims, GRANT summary judgment to the EEOC on its unlawful-termination claim, and REMAND the case to the district court for further proceedings consistent with this opinion.

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I. BACKGROUND
Aimee Stephens, a transgender woman who was “assigned male at birth,” joined the Funeral Home as an apprentice on October 1, 2007 and served as a Funeral Director/Embalmer at the Funeral Home from April 2008 until August 2013. R. 51-18 (Stephens Dep. at 49–51) (Page ID #817); R. 61 (Def.’s Counter Statement of Disputed Facts ¶ 10) (Page ID #1828). During the course of her employment at the Funeral Home, Stephens presented as a man and used her then-legal name, William Anthony Beasley Stephens. R. 51-18 (Stephens Dep. at 47) (Page ID #816); R. 61 (Def.’s Counter Statement of Disputed Facts ¶ 15) (Page ID #1829).
The Funeral Home is a closely held for-profit corporation. R. 55 (Def.’s Statement of Facts ¶ 1) (Page ID #1683).2 Thomas Rost (“Rost”), who has been a Christian for over sixty-five years, owns 95.4% of the company and operates its three funeral home locations. Id. ¶¶ 4, 8, 17 (Page ID #1684–85); R. 54-2 (Rost Aff. ¶ 2) (Page ID #1326). Rost proclaims “that God has called him to serve grieving people” and “that his purpose in life is to minister to the grieving.” R. 55 (Def.’s Statement of Facts ¶ 31) (Page ID #1688). To that end, the Funeral Home’s website contains a mission statement that states that the Funeral Home’s “highest priority is to honor God in all that we do as a company and as individuals” and includes a verse of scripture on the bottom of the mission statement webpage. Id. ¶¶ 21–22 (Page ID #1686). The Funeral Home itself, however, is not affiliated with a church; it does not claim to have a religious purpose in its articles of incorporation; it is open every day, including Christian holidays; and it serves clients of all faiths. R. 61 (Def.’s Counter Statement of Facts ¶¶ 25–27; 29–30) (Page ID #1832–34). “Employees have worn Jewish head coverings when holding a Jewish funeral service.” Id. ¶ 31 (Page ID #1834). Although the Funeral Home places the Bible, “Daily Bread” devotionals, and “Jesus Cards” in public places within the funeral homes, the Funeral Home does not decorate its rooms with “visible religious figures . . . to avoid offending people of different religions.” Id. ¶¶ 33–34 (Page ID #1834). Rost hires employees belonging to any faith or no faith to work at the Funeral Home, and he “does not endorse or consider himself to endorse his employees’ beliefs or non-employment-related activities.” Id. ¶¶ 37–38 (Page ID #1835).
2All facts drawn from Def.’s Statement of Facts (R. 55) are undisputed. See R. 64 (Pl.’s Counter Statement of Disputed Facts) (Page ID #2066–88).

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The Funeral Home requires its public-facing male employees to wear suits and ties and its public-facing female employees to wear skirts and business jackets. R. 55 (Def.’s Statement of Facts at ¶ 51) (Page ID #1691). The Funeral Home provides all male employees who interact with clients, including funeral directors, with free suits and ties, and the Funeral Home replaces suits as needed. R. 61 (Def.’s Counter Statement of Disputed Facts ¶¶ 42, 48) (Page ID #1836– 37). All told, the Funeral Home spends approximately $470 per full-time employee per year and $235 per part-time employee per year on clothing for male employees. Id. ¶ 55 (Page ID #1839).
Until October 2014—after the EEOC filed this suit—the Funeral Home did not provide its female employees with any sort of clothing or clothing allowance. Id. ¶ 54 (Page ID #1838– 39). Beginning in October 2014, the Funeral Home began providing its public-facing female employees with an annual clothing stipend ranging from $75 for part-time employees to $150 for full-time employees. Id. ¶ 54 (Page ID #1838–39). Rost contends that the Funeral Home would provide suits to all funeral directors, regardless of their sex, id., but it has not employed a female funeral director since Rost’s grandmother ceased working for the organization around 1950, R. 54-2 (Rost Aff. ¶¶ 52, 54) (Page ID #1336–37). According to Rost, the Funeral Home has received only one application from a woman for a funeral director position in the thirty-five years that Rost has operated the Funeral Home, and the female applicant was deemed not qualified. Id. ¶¶ 2, 53 (Page ID #1326, 1336).
On July 31, 2013, Stephens provided Rost with a letter stating that she has struggled with “a gender identity disorder” her “entire life,” and informing Rost that she has “decided to become the person that [her] mind already is.” R. 51-2 (Stephens Letter at 1) (Page ID #643). The letter stated that Stephens “intend[ed] to have sex reassignment surgery,” and explained that “[t]he first step [she] must take is to live and work full-time as a woman for one year.” Id. To that end, Stephens stated that she would return from her vacation on August 26, 2013, “as [her] true self, Amiee [sic] Australia Stephens, in appropriate business attire.” Id. After presenting the letter to Rost, Stephens postponed her vacation and continued to work for the next two weeks. R. 68 (Reply to Def.’s Counter Statement of Material Facts Not in Dispute at 1) (Page ID #2122). Then, just before Stephens left for her intended vacation, Rost fired her. R. 61 (Def.’s Counter Statement of Disputed Facts ¶¶ 10–11) (Page ID #1828). Rost said, “this is not going to

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work out,” and offered Stephens a severance agreement if she “agreed not to say anything or do anything.” R. 54-15 (Stephens Dep. at 75–76) Page ID #1455; R. 63-5 (Rost Dep. at 126–27) Page ID #1974. Stephens refused. Id. Rost testified that he fired Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.” R. 51-3 (Rost 30(b)(6) Dep. at 135–36) (Page ID #667).
Rost avers that he “sincerely believe[s] that the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if [he] were to permit one of [the Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the] organization” or if he were to “permit one of [the Funeral Home’s] male funeral directors to wear the uniform for female funeral directors while at work.” R. 54-2 (Rost Aff. ¶¶ 42–43, 45) (Page ID #1334–35). In particular, Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Id. ¶¶ 43, 45 (Page ID #1334–35).
After her employment was terminated, Stephens filed a sex-discrimination charge with the EEOC, alleging that “[t]he only explanation” she received from “management” for her termination was that “the public would [not] be accepting of [her] transition.” R. 63-2 (Charge of Discrimination at 1) (Page ID #1952). She further noted that throughout her “entire employment” at the Funeral Home, there were “no other female Funeral Director/Embalmers.” Id. During the course of investigating Stephens’s allegations, the EEOC learned from another employee that the Funeral Home did not provide its public-facing female employees with suits or a clothing stipend. R. 54-24 (Memo for File at 9) (Page ID #1513).
The EEOC issued a letter of determination on June 5, 2014, in which the EEOC stated that there was reasonable cause to believe that the Funeral Home “discharged [Stephens] due to her sex and gender identity, female, in violation of Title VII” and “discriminated against its female employees by providing male employees with a clothing benefit which was denied to females, in violation of Title VII.” R. 63-4 (Determination at 1) (Page ID #1968). The EEOC and the Funeral Home were unable to resolve this dispute through an informal conciliation

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process, and the EEOC filed a complaint against the Funeral Home in the district court on September 25, 2014. R. 1 (Complaint) (Page ID #1–9).
The Funeral Home moved to dismiss the EEOC’s action for failure to state a claim. The district court denied the Funeral Home’s motion, but it narrowed the basis upon which the EEOC could pursue its unlawful-termination claim. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594, 599, 603 (E.D. Mich. 2015). In particular, the district court agreed with the Funeral Home that transgender status is not a protected trait under Title VII, and therefore held that the EEOC could not sue for alleged discrimination against Stephens based solely on her transgender and/or transitioning status. See id. at 598–99. Nevertheless, the district court determined that the EEOC had adequately stated a claim for discrimination against Stephens based on the claim that she was fired because of her failure to conform to the Funeral Home’s “sex- or gender-based preferences, expectations, or stereotypes.” Id. at 599 (quoting R. 1 (Compl. ¶ 15) (Page ID #4–5)).
The parties then cross-moved for summary judgment. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837, 840 (E.D. Mich. 2016). With regard to the Funeral Home’s decision to terminate Stephens’s employment, the district court determined that there was “direct evidence to support a claim of employment discrimination” against Stephens on the basis of her sex, in violation of Title VII. Id. at 850. However, the court nevertheless found in the Funeral Home’s favor because it concluded that the Religious Freedom Restoration Act (“RFRA”) precludes the EEOC from enforcing Title VII against the Funeral Home, as doing so would substantially burden Rost and the Funeral Home’s religious exercise and the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive way to achieve its presumably compelling interest “in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral home.” Id. at 862–63. Based on its narrow conception of the EEOC’s compelling interest in bringing the claim, the district court concluded that the EEOC could have achieved its goals by proposing that the Funeral Home impose a gender-neutral dress code. Id. The EEOC’s failure to consider such an accommodation was, according to the district court, fatal to its case. Id. at 863. Separately, the district court held that it lacked jurisdiction to consider the EEOC’s discriminatory-clothing-

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allowance claim because, under longstanding Sixth Circuit precedent, the EEOC may pursue in a Title VII lawsuit only claims that are reasonably expected to grow out of the complaining party’s—in this case, Stephens’s—original charge. Id. at 864–70. The district court entered final judgment on all counts in the Funeral Home’s favor on August 18, 2016, R. 77 (J.) (Page ID #2235), and the EEOC filed a timely notice of appeal shortly thereafter, see R. 78 (Notice of Appeal) (Page ID #2236–37).
Stephens moved to intervene in this appeal on January 26, 2017, after expressing concern that changes in policy priorities within the U.S. government might prevent the EEOC from fully representing Stephens’s interests in this case. See D.E. 19 (Mot. to Intervene as PlaintiffAppellant at 5–7). The Funeral Home opposed Stephens’s motion on the grounds that the motion was untimely and Stephens had failed to show that the EEOC would not represent her interests adequately. D.E. 21 (Mem. in Opp’n at 2–11). We determined that Stephens’s request was timely given that she previously “had no reason to question whether the EEOC would continue to adequately represent her interests” and granted Stephens’s motion to intervene on March 27, 2017. D.E. 28-2 (Order at 2). We further determined that Stephens’s intervention would not prejudice the Funeral Home because Stephens stated in her briefing that she did not intend to raise new issues. Id. Six groups of amici curiae also submitted briefing in this case.
II. DISCUSSION
A. Standard of Review
“We review a district court’s grant of summary judgment de novo.” Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 390 (6th Cir. 2009) (quoting CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008)). Summary judgment is warranted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In reviewing a grant of summary judgment, “we view all facts and any inferences in the light most favorable to the nonmoving party.” Risch, 581 F.3d at 390 (citation omitted). We also review all “legal conclusions supporting [the district court’s] grant of summary judgment de novo.” Doe v. Salvation Army in U.S., 531 F.3d 355, 357 (6th Cir. 2008) (citation omitted).

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B. Unlawful Termination Claim
Title VII prohibits employers from “discriminat[ing] 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.” 42 U.S.C. § 2000e-2(a)(1). “[A] plaintiff can establish a prima facie case [of unlawful discrimination] by presenting direct evidence of discriminatory intent.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion)). “[A] facially discriminatory employment policy or a corporate decision maker’s express statement of a desire to remove employees in the protected group is direct evidence of discriminatory intent.” Id. (citation omitted). Once a plaintiff establishes that “the prohibited classification played a motivating part in the [adverse] employment decision,” the employer then bears the burden of proving that it would have terminated the plaintiff “even if it had not been motivated by impermissible discrimination.” Id. (citing, inter alia, Price Waterhouse, 490 U.S. at 244–45).
Here, the district court correctly determined that Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d at 850 (“[W]hile this Court does not often see cases where there is direct evidence to support a claim of employment discrimination, it appears to exist here.”). The district court erred, however, in finding that Stephens could not alternatively pursue a claim that she was discriminated against on the basis of her transgender and transitioning status. Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the Funeral Home violated Title VII by firing Stephens because she is transgender and transitioning from male to female.
1. Discrimination on the Basis of Sex Stereotypes
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a plurality of the Supreme Court explained that Title VII’s proscription of discrimination “‘because of . . . sex’ . . . mean[s] that gender must be irrelevant to employment decisions.” Id. at 240 (emphasis in original).

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In enacting Title VII, the plurality reasoned, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 251 (quoting Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). The Price Waterhouse plurality, along with two concurring Justices, therefore determined that a female employee who faced an adverse employment decision because she failed to “walk . . . femininely, talk . . . femininely, dress . . . femininely, wear make-up, have her hair styled, [or] wear jewelry,” could properly state a claim for sex discrimination under Title VII—even though she was not discriminated against for being a woman per se, but instead for failing to be womanly enough. See id. at 235 (plurality opinion) (quoting Hopkins v. Price Waterhouse, 618 F. Supp. 1109, 1117 (D.D.C. 1985)); id. at 259 (White, J., concurring); id. at 272 (O’Connor, J., concurring).
Based on Price Waterhouse, we determined that “discrimination based on a failure to conform to stereotypical gender norms” was no less prohibited under Title VII than discrimination based on “the biological differences between men and women.” Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004). And we found no “reason to exclude Title VII coverage for non sex-stereotypical behavior simply because the person is a transsexual.” Id. at 575. Thus, in Smith, we held that a transgender plaintiff (born male) who suffered adverse employment consequences after “he began to express a more feminine appearance and manner on a regular basis” could file an employment discrimination suit under Title VII, id. at 572, because such “discrimination would not [have] occur[red] but for the victim’s sex,” id. at 574. As we reasoned in Smith, Title VII proscribes discrimination both against women who “do not wear dresses or makeup” and men who do. Id. Under any circumstances, “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” Id. at 575.
Here, Rost’s decision to fire Stephens because Stephens was “no longer going to represent himself as a man” and “wanted to dress as a woman,” see R. 51-3 (Rost 30(b)(6) Dep. at 135–36) (Page ID #667), falls squarely within the ambit of sex-based discrimination that Price Waterhouse and Smith forbid. For its part, the Funeral Home has failed to establish a nondiscriminatory basis for Stephens’s termination, and Rost admitted that he did not fire Stephens

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for any performance-related issues. See R. 51-3 (Rost 30(b)(6) Dep. at 109, 136) (Page ID #663, 667). We therefore agree with the district court that the Funeral Home discriminated against Stephens on the basis of her sex, in violation of Title VII.
The Funeral Home nevertheless argues that it has not violated Title VII because sex stereotyping is barred only when “the employer’s reliance on stereotypes . . . result[s] in disparate treatment of employees because they are either male or female.” Appellee Br. at 31. According to the Funeral Home, an employer does not engage in impermissible sex stereotyping when it requires its employees to conform to a sex-specific dress code—as it purportedly did here by requiring Stephens to abide by the dress code designated for the Funeral Home’s male employees—because such a policy “impose[s] equal burdens on men and women,” and thus does not single out an employee for disparate treatment based on that employee’s sex. Id. at 12. In support of its position, the Funeral Home relies principally on Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc), and Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977). Jespersen held that a sex-specific grooming code that imposed different but equally burdensome requirements on male and female employees would not violate Title VII. See 444 F.3d at 1109–11 (holding that the plaintiff failed to demonstrate how a grooming code that required women to wear makeup and banned men from wearing makeup was a violation of Title VII because the plaintiff failed to produce evidence showing that this sex-specific makeup policy was “more burdensome for women than for men”). Barker, for its part, held that a sexspecific grooming code that was enforced equally as to male and female employees would not violate Title VII. See 549 F.2d at 401 (holding that a grooming code that established different hair-length limits for male and female employees did not violate Title VII because failure to comply with the code resulted in the same consequences for men and women). For three reasons, the Funeral Home’s reliance on these cases is misplaced.
First, the central issue in Jespersen and Barker—whether certain sex-specific appearance requirements violate Title VII—is not before this court. We are not considering, in this case, whether the Funeral Home violated Title VII by requiring men to wear pant suits and women to wear skirt suits. Our question is instead whether the Funeral Home could legally terminate Stephens, notwithstanding that she fully intended to comply with the company’s sex-specific

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dress code, simply because she refused to conform to the Funeral Home’s notion of her sex. When the Funeral Home’s actions are viewed in the proper context, no reasonable jury could believe that Stephens was not “target[ed] . . . for disparate treatment” and that “no sex stereotype factored into [the Funeral Home’s] employment decision.” See Appellee Br. at 19–20.
Second, even if we would permit certain sex-specific dress codes in a case where the issue was properly raised, we would not rely on either Jespersen or Barker to do so. Barker was decided before Price Waterhouse, and it in no way anticipated the Court’s recognition that Title VII “strike[s] at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Price Waterhouse, 490 U.S. at 251 (plurality) (quoting Manhart, 435 U.S. at 707 n.13). Rather, according to Barker, “[w]hen Congress makes it unlawful for an employer to ‘discriminate . . . on the basis of . . . sex . . .’, without further explanation of its meaning, we should not readily infer that it meant something different than what the concept of discrimination has traditionally meant.” 549 F.2d at 401–02 (quoting Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 145 (1976), superseded by statute, Pregnancy Discrimination Act of 1978, Pub. L. 95-555, 92 Stat. 2076, 52 U.S.C. § 2000e(k), as recognized in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 89 (1983)). Of course, this is precisely the sentiment that Price Waterhouse “eviscerated” when it recognized that “Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.” Smith, 378 F.3d at 573 (citing Price Waterhouse, 490 U.S. at 251). Indeed, Barker’s incompatibility with Price Waterhouse may explain why this court has not cited Barker since Price Waterhouse was decided.
As for Jespersen, that Ninth Circuit case is irreconcilable with our decision in Smith. Critical to Jespersen’s holding was the notion that the employer’s “grooming standards,” which required all female bartenders to wear makeup (and prohibited males from doing so), did not on their face violate Title VII because they did “not require [the plaintiff] to conform to a stereotypical image that would objectively impede her ability to perform her job.” 444 F.3d at 1113. We reached the exact opposite conclusion in Smith, as we explained that requiring women to wear makeup does, in fact, constitute improper sex stereotyping. 378 F.3d at 574 (“After Price Waterhouse, an employer who discriminates against women because, for instance, they do

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not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.”). And more broadly, our decision in Smith forecloses the Jespersen court’s suggestion that sex stereotyping is permissible so long as the required conformity does not “impede [an employee’s] ability to perform her job,” Jespersen, 444 F.3d at 1113, as the Smith plaintiff did not and was not required to allege that being expected to adopt a more masculine appearance and manner interfered with his job performance. Jespersen’s incompatibility with Smith may explain why it has never been endorsed (or even cited) by this circuit—and why it should not be followed now.
Finally, the Funeral Home misreads binding precedent when it suggests that sex stereotyping violates Title VII only when “the employer’s sex stereotyping resulted in ‘disparate treatment of men and women.’” Appellee Br. at 18 (quoting Price Waterhouse, 490 U.S. at 251).3 This interpretation of Title VII cannot be squared with our holding in Smith. There, we did not ask whether transgender persons transitioning from male to female were treated differently than transgender persons transitioning from female to male. Rather, we considered whether a transgender person was being discriminated against based on “his failure to conform to sex stereotypes concerning how a man should look and behave.” Smith, 378 F.3d at 572. It is apparent from both Price Waterhouse and Smith that an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave. See Zarda v. Altitude Express, Inc., –– F.3d ––, No. 15-3775, slip op. at 47 (2d Cir. Feb. 26, 2018) (en banc) (plurality) (“[T]he employer in Price Waterhouse could not have defended itself by claiming that it fired a gender-nonconforming man as well as a gender-non-conforming woman any more than it could persuasively argue that two wrongs make a right.”).

3See also Appellee Br. at 16 (“It is a helpful exercise to think about Price Waterhouse and imagine that
there was a dress code imposed which obligated Ms. Hopkins to wear a skirt while her male colleagues were obliged to wear pants. Had she simply been fired for wearing pants rather than a skirt, the case would have ended there— both sexes would have been equally burdened by the requirement to comply with their respective sex-specific standard. But what the firm could not do was fire her for being aggressive or macho when it was tolerating or rewarding the behavior among men—and when it did, it relied on a stereotype to treat her disparately from the men in the firm.”).

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In short, the Funeral Home’s sex-specific dress code does not preclude liability under Title VII. Even if the Funeral Home’s dress code does not itself violate Title VII—an issue that is not before this court—the Funeral Home may not rely on its policy to combat the charge that it engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts the Funeral Home’s perception of how she should appear or behave based on her sex. Because the EEOC has presented unrefuted evidence that unlawful sex stereotyping was “at least a motivating factor in the [Funeral Home’s] actions,” see White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 238 (6th Cir. 2005) (quoting Jacklyn v. ScheringPlough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)), and because we reject the Funeral Home’s affirmative defenses (see Section II.B.3, infra), we GRANT summary judgment to the EEOC on its sex discrimination claim.
2. Discrimination on the Basis of Transgender/Transitioning Status
We also hold that discrimination on the basis of transgender and transitioning status violates Title VII. The district court rejected this theory of liability at the motion-to-dismiss stage, holding that “transgender or transsexual status is currently not a protected class under Title VII.” R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d at 598. The EEOC and Stephens argue that the district court’s determination was erroneous because Title VII protects against sex stereotyping and “transgender discrimination is based on the non-conformance of an individual’s gender identity and appearance with sex-based norms or expectations”; therefore, “discrimination because of an individual’s transgender status is always based on genderstereotypes: the stereotype that individuals will conform their appearance and behavior— whether their dress, the name they use, or other ways they present themselves—to the sex assigned them at birth.” Appellant Br. at 24; see also Intervenor Br. at 10–15. The Funeral Home, in turn, argues that Title VII does not prohibit discrimination based on a person’s transgender or transitioning status because “sex,” for the purposes of Title VII, “refers to a binary characteristic for which there are only two classifications, male and female,” and “which classification arises in a person based on their chromosomally driven physiology and reproductive function.” Appellee Br. at 26. According to the Funeral Home, transgender status

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refers to “a person’s self-assigned ‘gender identity’” rather than a person’s sex, and therefore such a status is not protected under Title VII. Id. at 26–27.
For two reasons, the EEOC and Stephens have the better argument. First, 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 Seventh Circuit’s method of “isolat[ing] the significance of the plaintiff’s sex to the employer’s decision” to determine whether Title VII has been triggered illustrates this point. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 345 (7th Cir. 2017). In Hively, the Seventh Circuit determined that Title VII prohibits discrimination on the basis of sexual orientation—a different question than the issue before this court—by asking whether the plaintiff, a self-described lesbian, would have been fired “if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same.” Id. If the answer to that question is no, then the plaintiff has stated a “paradigmatic sex discrimination” claim. See id. Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens’s sex impermissibly affected Rost’s decision to fire Stephens.
The court’s analysis in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), provides another useful way of framing the inquiry. There, the court noted that an employer who fires an employee because the employee converted from Christianity to Judaism has discriminated against the employee “because of religion,” regardless of whether the employer feels any animus against either Christianity or Judaism, because “[d]iscrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.’” Id. at 306 (emphasis in original). By the same token, discrimination “because of sex” inherently includes discrimination against employees because of a change in their sex. See id. at 307–08.4
4Moreover, discrimination because of a person’s transgender, intersex, or sexually indeterminate status is no less actionable than discrimination because of a person’s identification with two religions, an unorthodox religion, or no religion at all. And “religious identity” can be just as fluid, variable, and difficult to define as “gender identity”; after all, both have “a deeply personal, internal genesis that lacks a fixed external referent.” Sue Landsittel, Strange Bedfellows? Sex, Religion, and Transgender Identity Under Title VII, 104 NW. U. L. REV. 1147, 1172 (2010) (advocating for “[t]he application of tests for religious identity to the problem of gender identity [because it] produces a more realistic, and therefore more appropriate, authentication framework than the current reliance on medical diagnoses and conformity with the gender binary”).

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Here, there is evidence that Rost at least partially based his employment decision on Stephens’s desire to change her sex: Rost justified firing Stephens by explaining that Rost “sincerely believes that ‘the Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex,’” and “the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman.”5 R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d at 848 (quoting R. 55 (Def.’s Statement of Facts ¶ 28) (Page ID #1687); R. 53-3 (Rost 30(b)(6) Dep. ¶ 44) (Page ID #936)). As amici point out in their briefing, such statements demonstrate that “Ms. Stephens’s sex necessarily factored into the decision to fire her.” Equality Ohio Br. at 12; cf. Hively, 853 F.3d at 359 (Flaum, J., concurring) (arguing discrimination against a female employee because she is a lesbian is necessarily “motivated, in part, by . . . the employee’s sex” because the employer is discriminating against the employee “because she is (A) a woman who is (B) sexually attracted to women”).
The Funeral Home argues that Schroer’s analogy is “structurally flawed” because, unlike religion, a person’s sex cannot be changed; it is, instead, a biologically immutable trait. Appellee Br. at 30. We need not decide that issue; even if true, the Funeral Home’s point is immaterial. As noted above, the Supreme Court made clear in Price Waterhouse that Title VII requires “gender [to] be irrelevant to employment decisions.” 490 U.S. at 240. Gender (or sex) is not being treated as “irrelevant to employment decisions” if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.
Second, discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping. As we recognized in Smith, a transgender person is someone who “fails to act and/or identify with his or her gender”—i.e., someone who is inherently “gender non-conforming.” 378 F.3d at 575; see also id. at 568 (explaining that

5On the other hand, there is also evidence that Stephens was fired only because of her nonconforming
appearance and behavior at work, and not because of her transgender identity. See R. 53-6 (Rost Dep. at 136–37) (Page ID #974) (At his deposition, when asked whether “the reason you fired [Stephens], was it because [Stephens] claimed that he was really a woman; is that why you fired [Stephens] or was it because he claimed – or that he would no longer dress as a man,” Rost answered: “That he would no longer dress as a man,” and when asked, “if Stephens had told you that he believed that he was a woman, but would only present as a woman outside of work, would you have terminated him,” Rost answered: “No.”).

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transgender status is characterized by the American Psychiatric Association as “a disjunction between an individual’s sexual organs and sexual identity”). Thus, an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.
We did not expressly hold in Smith that discrimination on the basis of transgender status is unlawful, though the opinion has been read to say as much—both by this circuit and others. In G.G. v. Gloucester County School Board, 654 F. App’x 606 (4th Cir. 2016), for instance, the Fourth Circuit described Smith as holding “that discrimination against a transgender individual based on that person’s transgender status is discrimination because of sex under federal civil rights statutes.” Id. at 607. And in Dodds v. United States Department of Education, 845 F.3d 217 (6th Cir. 2016), we refused to stay “a preliminary injunction ordering the school district to treat an eleven-year old transgender girl as a female and permit her to use the girls’ restroom” because, among other things, the school district failed to show that it would likely succeed on the merits. Id. at 220–21. In so holding, we cited Smith as evidence that this circuit’s “settled law” prohibits “[s]ex stereotyping based on a person’s gender non-conforming behavior,” id. at 221 (second quote quoting Smith, 378 F.3d at 575), and then pointed to out-of-circuit cases for the propositions that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes,” id. (citing Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011)), and “[t]he weight of authority establishes that discrimination based on transgender status is already prohibited by the language of federal civil rights statutes,” id. (quoting G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 729 (4th Cir.) (Davis, J., concurring), cert. granted in part, 137 S. Ct. 369 (2016), and vacated and remanded, 137 S. Ct. 1239 (2017).6 Such references support what we now directly hold: Title VII protects

6We acknowledge that Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), read Smith as focusing
on “look and behav[ior].” Id. at 737 (“By alleging that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind defendant’s actions, Smith stated a claim for relief pursuant to Title VII’s prohibition of sex discrimination.”). That is not surprising, however, given that only “look and behavior,” not status, were at issue in Barnes.

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transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.
The Funeral Home raises several arguments against this interpretation of Title VII, none of which we find persuasive. First, the Funeral Home contends that the Congress enacting Title VII understood “sex” to refer only to a person’s “physiology and reproductive role,” and not a person’s “self-assigned ‘gender identity.’” Appellee Br. at 25–26. But the drafters’ failure to anticipate that Title VII would cover transgender status is of little interpretive value, because “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998); see also Zarda, slip op. at 24–29 (majority opinion) (rejecting the argument that Title VII was not originally intended to protect employees against discrimination on the basis of sexual orientation, in part because the same argument “could also be said of multiple forms of discrimination that are [now] indisputably prohibited by Title VII . . . [but] were initially believed to fall outside the scope of Title VII’s prohibition,” such as “sexual harassment and hostile work environment claims”). And in any event, Smith and Price Waterhouse preclude an interpretation of Title VII that reads “sex” to mean only individuals’ “chromosomally driven physiology and reproductive function.” See Appellee Br. at 26. Indeed, we criticized the district court in Smith for “relying on a series of pre-Price Waterhouse cases from other federal appellate courts holding that transsexuals, as a class, are not entitled to Title VII protection because ‘Congress had a narrow view of sex in mind’ and ‘never considered nor intended that [Title VII] apply to anything other than the traditional concept of sex.’” 378 F.3d at 572 (quoting Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)) (alteration in original). According to Smith, such a limited view of Title VII’s protections had been “eviscerated by Price Waterhouse.” Id. at 573. The Funeral Home’s attempt to resurrect the reasoning of these earlier cases thus runs directly counter to Smith’s holding.
In a related argument, the Funeral Home notes that both biologically male and biologically female persons may consider themselves transgender, such that transgender status is not unique to one biological sex. Appellee Br. at 27–28. It is true, of course, that an individual’s

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biological sex does not dictate her transgender status; the two traits are not coterminous. But a trait need not be exclusive to one sex to nevertheless be a function of sex. As the Second Circuit explained in Zarda,
Title VII does not ask whether a particular sex is discriminated against; it asks whether a particular “individual” is discriminated against “because of such individual’s . . . sex.” Taking individuals as the unit of analysis, the question is not whether discrimination is borne only by men or only by women or even by both men and women; instead, the question is whether an individual is discriminated against because of his or her sex.
Slip op. at 46 n.23 (plurality opinion) (emphasis in original) (quoting 42 U.S.C. § 2000e-2(a)(1)). Because an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex—no matter what sex the employee was born or wishes to be. By the same token, an employer need not discriminate based on a trait common to all men or women to violate Title VII. After all, a subset of both women and men decline to wear dresses or makeup, but discrimination against any woman on this basis would constitute sex discrimination under Price Waterhouse. See Hively, 853 F.3d at 346 n.3 (“[T]he Supreme Court has made it clear that a policy need not affect every woman [or every man] to constitute sex discrimination. . . . A failure to discriminate against all women does not mean that an employer has not discriminated against one woman on the basis of sex.”).
Nor can much be gleaned from the fact that later statutes, such as the Violence Against Women Act, expressly prohibit discrimination on the basis of “gender identity,” while Title VII does not, see Appellee Br. at 28, because “Congress may certainly choose to use both a belt and suspenders to achieve its objectives,” Hively, 853 F.3d at 344; see also Yates v. United States, 135 S. Ct. 1074, 1096 (2015) (Kagan, J., dissenting) (noting presence of two overlapping provisions in a statute “may have reflected belt-and-suspenders caution”). We have, in fact, already read Title VII to provide redundant statutory protections in a different context. In In re Rodriguez, 487 F.3d 1001 (6th Cir. 2007), for instance, we recognized that claims alleging discrimination on the basis of ethnicity may fall within Title VII’s prohibition on discrimination on the basis of national origin, see id. at 1006 n.1, even though at least one other federal statute treats “national origin” and “ethnicity” as separate traits, see 20 U.S.C. § 1092(f)(1)(F)(ii).

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Moreover, Congress’s failure to modify Title VII to include expressly gender identity “lacks ‘persuasive significance’ because ‘several equally tenable inferences’ may be drawn from such inaction, ‘including the inference that the existing legislation already incorporated the offered change.’” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (quoting United States v. Wise, 370 U.S. 405, 411 (1962)). In short, nothing precludes discrimination based on transgender status from being viewed both as discrimination based on “gender identity” for certain statutes and, for the purposes of Title VII, discrimination on the basis of sex.
The Funeral Home places great emphasis on the fact that our published decision in Smith superseded an earlier decision that stated explicitly, as opposed to obliquely, that a plaintiff who “alleges discrimination based solely on his identification as a transsexual . . . has alleged a claim of sex stereotyping pursuant to Title VII.” Smith v. City of Salem, 369 F.3d 912, 922 (6th Cir.), opinion amended and superseded, 378 F.3d 566 (6th Cir. 2004). But such an amendment does not mean, as the Funeral Home contends, that the now-binding Smith opinion “directly rejected” the notion that Title VII prohibits discrimination on the basis of transgender status. See Appellee Br. at 31. The elimination of the language, which was not necessary to the decision, simply means that Smith did not expressly recognize Title VII protections for transgender persons based on identity. But Smith’s reasoning still leads us to the same conclusion.
We are also unpersuaded that our decision in Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006), precludes the holding we issue today. We held in Vickers that a plaintiff cannot pursue a claim for impermissible sex stereotyping on the ground that his perceived sexual orientation fails to conform to gender norms unless he alleges that he was discriminated against for failing to “conform to traditional gender stereotypes in any observable way at work.” Id. at 764. Vickers thus rejected the notion that “the act of identification with a particular group, in itself, is sufficiently gender non-conforming such that an employee who so identifies would, by this very identification, engage in conduct that would enable him to assert a successful sex stereotyping claim.” Id. The Vickers court reasoned that recognizing such a claim would impermissibly “bootstrap protection for sexual orientation into Title VII.” Id. (quoting Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005)). The Funeral Home insists that, under Vickers, Stephens’s sex-stereotyping claim survives only to the extent that it

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concerns her “appearance or mannerisms on the job,” see id. at 763, but not as it pertains to her underlying status as a transgender person.
The Funeral Home is wrong. First, Vickers does not control this case because Vickers concerned a different legal question. As the EEOC and amici Equality Ohio note, Vickers “addressed only whether Title VII forbids sexual orientation discrimination, not discrimination against a transgender individual.” Appellant Br. at 30; see also Equality Ohio Br. at 16 n.7. While it is indisputable that “[a] panel of this Court cannot overrule the decision of another panel” when the “prior decision [constitutes] controlling authority,” Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001) (quoting Salmi v. Sec’y of Health & Human Servs., 744 F.2d 685, 689 (6th Cir. 1985)), one case is not “controlling authority” over another if the two address substantially different legal issues, cf. Int’l Ins. Co. v. Stonewall Ins. Co., 86 F.3d 601, 608 (6th Cir. 1996) (noting two panel decisions that “on the surface may appear contradictory” were reconcilable because “the result [in both cases wa]s heavily fact driven”). After all, we do not overrule a case by distinguishing it.
Second, we are not bound by Vickers to the extent that it contravenes Smith. See Darrah, 255 F.3d at 310 (“[W]hen a later decision of this court conflicts with one of our prior published decisions, we are still bound by the holding of the earlier case.”). As noted above, Vickers indicated that a sex-stereotyping claim is viable under Title VII only if a plaintiff alleges that he was discriminated against for failing to “conform to traditional gender stereotypes in any observable way at work.” 453 F.3d at 764 (emphasis added). The Vickers court’s new “observable-at-work” requirement is at odds with the holding in Smith, which did not limit sexstereotyping claims to traits that are observable in the workplace. The “observable-at-work” requirement also contravenes our reasoning in Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)—a binding decision that predated Vickers by more than a year—in which we held that a reasonable jury could conclude that a transgender plaintiff was discriminated against on the basis of his sex when, among other factors, his “ambiguous sexuality and his practice of dressing as a woman outside of work were well-known within the [workplace].” Id. at 738 (emphasis

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added).7 From Smith and Barnes, it is clear that a plaintiff may state a claim under Title VII for discrimination based on gender nonconformance that is expressed outside of work. The Vickers court’s efforts to develop a narrower rule are therefore not binding in this circuit.
Therefore, for the reasons set forth above, we hold that the EEOC could pursue a claim under Title VII on the ground that the Funeral Home discriminated against Stephens on the basis of her transgender status and transitioning identity. The EEOC should have had the opportunity, either through a motion for summary judgment or at trial, to establish that the Funeral Home violated Title VII’s prohibition on discrimination on the basis of sex by firing Stephens because she was transgender and transitioning from male to female.
3. Defenses to Title VII Liability
Having determined that the Funeral Home violated Title VII’s prohibition on sex discrimination, we must now consider whether any defenses preclude enforcement of Title VII in this case. As noted above, the district court held that the EEOC’s enforcement efforts must give way to the Religious Freedom Restoration Act (“RFRA”), which prohibits the government from enforcing a religiously neutral law against an individual if that law substantially burdens the individual’s religious exercise and is not the least restrictive way to further a compelling government interest. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d at 857–64. The EEOC seeks reversal of this decision; the Funeral Home urges affirmance. In addition, certain amici ask us to affirm the district court’s grant of summary judgment on different grounds— namely that Stephens falls within the “ministerial exception” to Title VII and is therefore not protected under the Act. See Public Advocate Br. at 20–24.

7Oddly, the Vickers court appears to have recognized that its new “observable-at-work” requirement cannot
be squared with earlier precedent. Immediately after announcing this new requirement, the Vickers court cited Smith for the proposition that “a plaintiff hoping to succeed on a claim of sex stereotyping [must] show that he ‘fails to act and/or identify with his or her gender’”—a proposition that is necessarily broader than the narrow rule Vickers sought to announce. 453 F.3d at 764 (citing Smith, 378 F.3d at 575) (emphasis added). The Vickers court also seemingly recognized Barnes as binding authority, see id. (citing Barnes), but portrayed the decision as “affirming [the] district court’s denial of defendant’s motion for summary judgment as a matter of law on discrimination claim where pre-operative male-to-female transsexual was demoted based on his ‘ambiguous sexuality and his practice of dressing as a woman’ and his co-workers’ assertions that he was ‘not sufficiently masculine.’” Id. This summary is accurate as far as it goes, but it entirely omits the discussion in Barnes of discrimination against the plaintiff based on “his practice of dressing as a woman outside of work.” 401 F.3d at 738 (emphasis added).

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We hold that the Funeral Home does not qualify for the ministerial exception to Title VII; the Funeral Home’s religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes; the EEOC has established that it has a compelling interest in ensuring the Funeral Home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive way to achieve that compelling interest. We therefore REVERSE the district court’s grant of summary judgment in the Funeral Home’s favor and GRANT summary judgment to the EEOC on the unlawfultermination claim.
a. Ministerial Exception
We turn first to the “ministerial exception” to Title VII, which is rooted in the First Amendment’s religious protections, and which “preclude[s] application of [employment discrimination laws such as Title VII] to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188 (2012). “[I]n order for the ministerial exception to bar an employment discrimination claim, the employer must be a religious institution and the employee must have been a ministerial employee.” Conlon v. InterVarsity Christian Fellowship/USA, 777 F.3d 829, 833 (6th Cir. 2015) (quoting Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007)). “The ministerial exception is a highly circumscribed doctrine. It grew out of the special considerations raised by the employment claims of clergy, which ‘concern[] internal church discipline, faith, and organization, all of which are governed by ecclesiastical rule, custom, and law.’” Gen. Conf. Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402, 409 (6th Cir. 2010) (quoting Hutchison v. Thomas, 789 F.2d 392, 396 (6th Cir. 1986)) (alteration in original).
Public Advocate of the United States and its fellow amici argue that the ministerial exception applies in this case because (1) the exception applies both to religious and nonreligious entities, and (2) Stephens is a ministerial employee. Public Advocate Br. at 20–24. Tellingly, however, the Funeral Home contends that the Funeral Home “is not a religious organization” and therefore, “the ministerial exception has no application” to this case. Appellee Br. at 35. Although the Funeral Home has not waived the ministerial-exception defense by failing to raise it, see Conlon, 777 F.3d at 836 (holding that private parties may not “waive

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the First Amendment’s ministerial exception” because “[t]his constitutional protection is . . . structural”), we agree with the Funeral Home that the exception is inapplicable here.
As we made clear in Conlon, the ministerial exception applies only to “religious institution[s].” Id. at 833. While an institution need not be “a church, diocese, or synagogue, or an entity operated by a traditional religious organization,” id. at 834 (quoting Hollins, 474 F.3d at 225), to qualify for the exception, the institution must be “marked by clear or obvious religious characteristics,” id. at 834 (quoting Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 310 (4th Cir. 2004)). In accordance with these principles, we have previously determined that the InterVarsity Christian Fellowship/USA (“IVCF”), “an evangelical campus mission,” constituted a religious organization for the purposes of the ministerial exception. See id. at 831, 833. IVCF described itself on its website as “faith-based religious organization” whose “purpose ‘is to establish and advance at colleges and universities witnessing communities of students and faculty who follow Jesus as Savior and Lord.’” Id. at 831 (citation omitted). In addition, IVCF’s website notified potential employees that it has the right to “hir[e] staff based on their religious beliefs so that all staff share the same religious commitment.” Id. (citation omitted). Finally, IVCF required all employees “annually [to] reaffirm their agreement with IVCF’s Purpose Statement and Doctrinal Basis.” Id.
The Funeral Home, by comparison, has virtually no “religious characteristics.” Unlike the campus mission in Conlon, the Funeral Home does not purport or seek to “establish and advance” Christian values. See id. As the EEOC notes, the Funeral Home “is not affiliated with any church; its articles of incorporation do not avow any religious purpose; its employees are not required to hold any particular religious views; and it employs and serves individuals of all religions.” Appellant Reply Br. at 33–34 (citing R. 61 (Def.’s Counter Statement of Disputed Facts ¶¶ 25–27, 30, 37) (Page ID #1832–35)). Though the Funeral Home’s mission statement declares that “its highest priority is to honor God in all that we do as a company and as individuals,” R. 55 (Def.’s Statement of Facts ¶ 21) (Page ID #1686), the Funeral Home’s sole public displays of faith, according to Rost, amount to placing “Daily Bread” devotionals and “Jesus Cards” with scriptural references in public places in the funeral homes, which clients may pick up if they wish, see R. 51-3 (Rost 30(b)(6) Dep. at 39–40) (Page ID #652). The Funeral

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Home does not decorate its rooms with “religious figures” because it does not want to “offend[] people of different religions.” R. 61 (Def.’s Counter Statement of Disputed Facts ¶ 33) (Page ID # 1834). The Funeral Home is open every day, including on Christian holidays. Id. at 88–89 (Page ID #659–60). And while the employees are paid for federally recognized holidays, Easter is not a paid holiday. Id. at 89 (Page ID #660).
Nor is Stephens a “ministerial employee” under Hosanna-Tabor. Following HosannaTabor, we have identified four factors to assist courts in assessing whether an employee is a minister covered by the exception: (1) whether the employee’s title “conveys a religious—as opposed to secular—meaning”; (2) whether the title reflects “a significant degree of religious training” that sets the employee “apart from laypersons”; (3) whether the employee serves “as an ambassador of the faith” and serves a “leadership role within [the] church, school, and community”; and (4) whether the employee performs “important religious functions . . . for the religious organization.” Conlon, 777 F.3d at 834–35. Stephens’s title—“Funeral Director”— conveys a purely secular function. The record does not reflect that Stephens has any religious training. Though Stephens has a public-facing role within the funeral home, she was not an “ambassador of [any] faith,” and she did not perform “important religious functions,” see id. at 835; rather, Rost’s description of funeral directors’ work identifies mostly secular tasks—making initial contact with the deceased’s families, handling the removal of the remains to the funeral home, introducing other staff to the families, coaching the families through the first viewing, greeting the guests, and coordinating the families’ “final farewell,” R. 53-3 (Rost Aff. ¶¶ 14–33) (Page ID #930–35). The only responsibilities assigned to Stephens that could be construed as religious in nature were, “on limited occasions,” to “facilitate” a family’s clergy selection, “facilitate the first meeting of clergy and family members,” and “play a role in building the family’s confidence around the role the clergy will play, clarifying what type of religious message is desired, and integrating the clergy into the experience.” Id. ¶ 20 (Page ID #932–33). Such responsibilities are a far cry from the duties ascribed to the employee in Conlon, which “included assisting others to cultivate ‘intimacy with God and growth in Christ-like character through personal and corporate spiritual disciplines.’” 777 F.3d at 832. In short, Stephens was not a ministerial employee and the Funeral Home is not a religious institution, and therefore the ministerial exception plays no role in this case.

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b. Religious Freedom Restoration Act
Congress enacted RFRA in 1993 to resurrect and broaden the Free Exercise Clause jurisprudence that existed before the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), which overruled the approach to analyzing Free Exercise Clause claims set forth by Sherbert v. Verner, 374 U.S. 398 (1963). See City of Boerne v. Flores, 521 U.S. 507, 511–15 (1997). To that end, RFRA precludes the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb–1. RFRA thus contemplates a two-step burden-shifting analysis: First, a claimant must demonstrate that complying with a generally applicable law would substantially burden his religious exercise. Upon such a showing, the government must then establish that applying the law to the burdened individual is the least restrictive means of furthering a compelling government interest.
The questions now before us are whether (1) we ought to remand this case and preclude the Funeral Home from asserting a RFRA-based defense in the proceedings below because Stephens, a non-governmental party, joined this action as an intervenor on appeal; (2) if not, whether the Funeral Home adequately demonstrated that it would be substantially burdened by the application of Title VII in this case; (3) if so, whether the EEOC nevertheless demonstrated that application of a such a burden to the Funeral Home furthers a compelling governmental interest; and (4) if so, whether the application of such a burden constitutes the least restrictive means of furthering that compelling interest. We address each inquiry in turn.
i. Applicability of the Religious Freedom Restoration Act
We have previously made clear that “Congress intended RFRA to apply only to suits in which the government is a party.” Seventh-Day Adventists, 617 F.3d at 410. Thus, if Stephens had initiated a private lawsuit against the Funeral Home to vindicate her rights under Title VII, the Funeral Home would be unable to invoke RFRA as a defense because the government would not have been party to the suit. See id. Now that Stephens has intervened in this suit, she argues

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that the case should be remanded to the district court with instructions barring the Funeral Home from asserting a RFRA defense to her individual claims. Intervenor Br. at 15. The EEOC supports Stephens’s argument. EEOC Reply Br. at 31.
The Funeral Home, in turn, argues that the question of RFRA’s applicability to Title VII suits between private parties “is a new and complicated issue that has never been a part of this case and has never been briefed by the parties.” Appellee Br. at 34. Because Stephens’s intervention on appeal was granted, in part, on her assurances that she “seeks only to raise arguments already within the scope of this appeal,” D.E. 23 (Stephens Reply in Support of Mot. to Intervene at 8); see also D.E. 28-2 (March 27, 2017 Order at 2), the Funeral Home insists that permitting Stephens to argue now in favor of remand “would immensely prejudice the Funeral Home and undermine the Court’s reasons for allowing Stephens’s intervention in the first place,” Appellee Br. at 34–35 (citing Illinois Bell Tel. v. FCC, 911 F.2d 776, 786 (D.C. Cir. 1990)).
The Funeral Home is correct. Stephens’s reply brief in support of her motion to intervene insists that “no party to an appeal may broaden the scope of litigation beyond the issues raised before the district court.” D.E. 23 (Stephens Reply in Support of Mot. to Intervene at 8) (citing Thomas v. Arn, 474 U.S. 140, 148 (1985)). Though the district court noted in a footnote that “the Funeral Home could not assert a RFRA defense if Stephens had filed a Title VII suit on Stephens’s own behalf,” R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d at 864 n.23, this argument was not briefed by the parties at the district-court level. Thus, in accordance with Stephens’s own brief, she should not be permitted to argue for remand before this court.
Stephens nevertheless insists that “intervenors . . . are permitted to present different arguments related to the principal parties’ claims.” Intervenor Reply Br. at 14 (citing Grutter v. Bollinger, 188 F.3d 394, 400–01 (6th Cir. 1999)). But in Grutter, this court determined that proposed intervenors ought to be able to present particular “defenses of affirmative action” that the principal party to the case (a university) might be disinclined to raise because of “internal and external institutional pressures.” 188 F.3d at 400. Allowing intervenors to present particular defenses on the merits to judiciable claims is different than allowing intervenors to change the procedural course of litigation by virtue of their intervention.

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Moreover, we typically will not consider issues raised for the first time on appeal unless they are “presented with sufficient clarity and completeness and [their] resolution will materially advance the process of th[e] . . . litigation.” Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988) (citation omitted). The merits of a remand have been addressed only in passing by the parties, and thus have not been discussed with “sufficient clarity and completeness” to enable us to entertain Stephens’s claim.8
ii. Prima Facie Case Under RFRA
To assert a viable defense under RFRA, a religious claimant must demonstrate that the government action at issue “would (1) substantially burden (2) a sincere (3) religious exercise.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 428 (2006). In reviewing such a claim, courts must not evaluate whether asserted “religious beliefs are mistaken or insubstantial.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014). Rather, courts must assess “whether the line drawn reflects ‘an honest conviction.’” Id. (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981)). In addition, RFRA, as amended by the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A).
The EEOC argues that the Funeral Home’s RFRA defense must fail because “RFRA protects religious exercise, not religious beliefs,” Appellant Br. at 41, and the Funeral Home has failed to “identif[y] how continuing to employ Stephens after, or during, her transition would interfere with any religious ‘action or practice,’” id. at 43 (quoting Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008)). The Funeral Home, in turn, contends that the “very operation of [the Funeral Home] constitutes protected religious exercise” because Rost feels
8For a similar reason, we decline to consider the argument raised by several amici that reading RFRA to “permit a religious accommodation that imposes material costs on third parties or interferes with the exercise of rights held by others” would violate the Establishment Clause of the First Amendment. See Private Rights/Public Conscience Br. at 15; see also id. at 5–15; Americans United Br. at 6–15. Amici may not raise “issues or arguments [that] . . . ‘exceed those properly raised by the parties.’” Shoemaker v. City of Howell, 795 F.3d 553, 562 (6th Cir. 2015) (quoting Cellnet Commc’ns, Inc. v. FCC, 149 F.3d 429, 433 (6th Cir. 1998)). Although Stephens notes that the Establishment Clause “requires the government and courts to account for the harms a religious exemption to Title VII would impose on employees,” Intervenor Br. at 26, no party to this action presses the broad constitutional argument that amici seek to present. We therefore will not address the merits of amici’s position.

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compelled by his faith to “serve grieving people” through the funeral home, and thus “[r]equiring [the Funeral Home] to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with—and thus impose a substantial burden on—[the Funeral Home’s] ability to carry out Rost’s religious exercise of caring for the grieving.” Appellee Br. at 38.
If we take Rost’s assertions regarding his religious beliefs as sincere, which all parties urge us to do, then we must treat Rost’s running of the funeral home as a religious exercise— even though Rost does not suggest that ministering to grieving mourners by operating a funeral home is a tenet of his religion, more broadly. See United States v. Sterling, 75 M.J. 407, 415 (C.A.A.F. 2016) (noting that conduct that “was claimed to be religiously motivated at least in part . . . falls within RFRA’s expansive definition of ‘religious exercise’”), cert. denied, 137 S. Ct. 2212 (2017). The question then becomes whether the Funeral Home has identified any way in which continuing to employ Stephens would substantially burden Rost’s ability to serve mourners. The Funeral Home purports to identify two burdens. “First, allowing a funeral director to wear the uniform for members of the opposite sex would often create distractions for the deceased’s loved ones and thereby hinder their healing process (and [the Funeral Home’s] ministry),” and second, “forcing [the Funeral Home] to violate Rost’s faith . . . would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.” Appellee Br. at 38. Neither alleged burden is “substantial” within the meaning of RFRA.
The Funeral Home’s first alleged burden—that Stephens will present a distraction that will obstruct Rost’s ability to serve grieving families—is premised on presumed biases. As the EEOC observes, the Funeral Home’s argument is based on “a view that Stephens is a ‘man’ and would be perceived as such even after her gender transition,” as well as on the “assumption that a transgender funeral director would so disturb clients as to ‘hinder healing.’” Appellant Reply Br. at 19. The factual premises underlying this purported burden are wholly unsupported in the record. Rost testified that he has never seen Stephens in anything other than a suit and tie and does not know how Stephens would have looked when presenting as a woman. R. 54-5 (Rost 30(b)(6) Dep. at 60–61) (Page ID #1362). Rost’s assertion that he believes his clients would be disturbed by Stephens’s appearance during and after her transition to the point that their healing

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from their loved ones’ deaths would be hindered, see R. 55 (Def.’s Statement of Facts ¶ 78) (Page ID #1697), at the very least raises a material question of fact as to whether his clients would actually be distracted, which cannot be resolved in the Funeral Home’s favor at the summary-judgment stage. See Tree of Life Christian Sch. v. City of Upper Arlington, 823 F.3d 365, 371–72 (6th Cir. 2016) (holding that this court “cannot assume . . . a fact” at the summary judgment stage); see also Guess? Inc. v. United States, 944 F.2d 855, 858 (Fed. Cir. 1991) (in case where manufacturer’s eligibility for certain statutory refund on import tariffs turned on whether foreign customers preferred U.S.-made jeans more than foreign-made jeans, court held that the manufacturer’s averred belief regarding foreign customers’ preferences was not conclusive; instead, there remained a genuine dispute of material fact as to foreign customers’ actual preferences). Thus, even if we were to find the Funeral Home’s argument legally cognizable, we would not affirm a finding of substantial burden based on a contested and unsupported assertion of fact.
But more to the point, we hold as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA. Though we have seemingly not had occasion to address the issue, other circuits have considered whether and when to account for customer biases in justifying discriminatory employment practices. In particular, courts asked to determine whether customers’ biases may render sex a “bona fide occupational qualification” under Title VII have held that “it would be totally anomalous . . . to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid.” Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971); see also Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795, 799 (8th Cir. 1993) (holding grooming policy for pizza deliverymen that had disparate impact on African-American employees was not justified by customer preferences for clean-shaven deliverymen because “[t]he existence of a beard on the face of a delivery man does not affect in any manner Domino’s ability to make or deliver pizzas to their customers”); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981) (rejecting claim that promoting a female employee would “‘destroy the essence’ of [the defendant’s] business”—a theory based on the premise that South American clients would not want to work with a female vice-president—because biased customer preferences did not make being a man a “bona fide occupational qualification” for the position at

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issue). District courts within this circuit have endorsed these out-of-circuit opinions. See, e.g., Local 567 Am. Fed’n of State, Cty., & Mun. Emps. v. Mich. Council 25, Am. Fed’n of State, Cty., & Mun. Emps., 635 F. Supp. 1010, 1012 (E.D. Mich. 1986) (citing Diaz, 442 F.2d 385, and Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969), for the proposition that “[a]ssertions of sex-based employee classification cannot be made on the basis of stereotypes or customer preferences”).
Of course, cases like Diaz, Fernandez, and Bradley concern a different situation than the one at hand. We could agree that courts should not credit customers’ prejudicial notions of what men and women can do when considering whether sex constitutes a “bona fide occupational qualification” for a given position while nonetheless recognizing that those same prejudices have practical effects that would substantially burden Rost’s religious practice (i.e., the operation of his business) in this case. But the Ninth Circuit rejected similar reasoning in Fernandez, and we reject it here. In Fernandez, the Ninth Circuit held that customer preferences could not transform a person’s gender into a relevant consideration for a particular position even if the record supported the idea that the employer’s business would suffer from promoting a woman because a large swath of clients would refuse to work with a female vice-president. See 653 F.2d at 1276–77. Just as the Fernandez court refused to treat discriminatory promotion practices as critical to an employer’s business, notwithstanding any evidence to that effect in the record, so too we refuse to treat discriminatory policies as essential to Rost’s business—or, by association, his religious exercise.
The Funeral Home’s second alleged burden also fails. Under Holt v. Hobbs, 135 S. Ct. 853 (2015), a government action that “puts [a religious practitioner] to th[e] choice” of “‘engag[ing] in conduct that seriously violates [his] religious beliefs’ [or] . . . fac[ing] serious” consequences constitutes a substantial burden for the purposes of RFRA. See id. at 862 (quoting Hobby Lobby, 134 S. Ct. at 2775). Here, Rost contends that he is being put to such a choice, as he either must “purchase female attire” for Stephens or authorize her “to dress in female attire while representing [the Funeral Home] and serving the bereaved,” which purportedly violates Rost’s religious beliefs, or else face “significant[] pressure . . . to leave the funeral industry and

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end his ministry to grieving people.” Appellee Br. at 38–39 (emphasis in original). Neither of these purported choices can be considered a “substantial burden” under RFRA.
First, though Rost currently provides his male employees with suits and his female employees with stipends to pay for clothing, this benefit is not legally required and Rost does not suggest that the benefit is religiously compelled. See Appellant Br. at 49 (“[T]he EEOC’s suit would require only that if Rost provides a clothing benefit to his male employees, he provide a comparable benefit (which could be in-kind, or in cash) to his female employees.”); R. 54-2 (Rost Aff.) (Page ID 1326–37) (no suggestion that clothing benefit is religiously motivated). In this regard, Rost is unlike the employers in Hobby Lobby, who rejected the idea that they could simply refuse to provide health care altogether and pay the associated penalty (which would allow them to avoid providing access to contraceptives in violation of their beliefs) because they felt religiously compelled to provide their employees with health insurance. See 134 S. Ct. at 2776. And while “it is predictable that the companies [in Hobby Lobby] would face a competitive disadvantage in retaining and attracting skilled workers” if they failed to provide health insurance, id. at 2777, the record here does not indicate that the Funeral Home’s clothing benefit is necessary to attract workers; in fact, until the EEOC commenced the present action, the Funeral Home did not provide any sort of clothing benefit to its female employees. Thus, Rost is not being forced to choose between providing Stephens with clothing or else leaving the business; this is a predicament of Rost’s own making.
Second, simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA. We presume that the “line [Rost] draw[s]”—namely, that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” R. 54-2 (Rost Aff. ¶¶ 43, 45) (Page ID #1334–35)—constitutes “an honest conviction.” See Hobby Lobby, 134 S. Ct. at 2779 (quoting Thomas, 450 U.S. at 716). But we hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.

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Most circuits, including this one, have recognized that a party can sincerely believe that he is being coerced into engaging in conduct that violates his religious convictions without actually, as a matter of law, being so engaged. Courts have recently confronted this issue when non-profit organizations whose religious beliefs prohibit them “from paying for, providing, or facilitating the distribution of contraceptives,” or in any way “be[ing] complicit in the provision of contraception” argued that the Affordable Care Act’s opt-out procedure—which enables organizations with religious objections to the contraceptive mandate to avoid providing such coverage by either filling out a form certifying that they have a religious objection to providing contraceptive coverage or directly notifying the Department of Health and Human Services of the religious objection—substantially burdens their religious practice. See Eternal Word Television Network, Inc. v. Sec’y of U.S. Dep’t of Health & Human Servs., 818 F.3d 1122, 1132– 33, 1143 (11th Cir. 2016).
Eight of the nine circuits to review the issue, including this court, have determined that the opt-out process does not constitute a substantial burden. See id. at 1141 (collecting cases); see also Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015), cert. granted, judgment vacated sub nom. Mich. Catholic Conf. v. Burwell, 136 S. Ct. 2450 (2016).9 The courts reached this conclusion by examining the Affordable Care Act’s provisions and determining that it was the statute—and not the employer’s act of opting out—that “entitle[d] plan participants and beneficiaries to contraceptive coverage.” See, e.g., Eternal Word, 818 F.3d at 1148–49. As a result, the employers’ engagement with the opt-out process, though legally significant in that it leads the government to provide the organizations’ employees with access to contraceptive coverage through an alternative route, does not mean the employers are facilitating the provision of contraceptives in a way that violates their religious practice. See id.
We view the Funeral Home’s compliance with antidiscrimination laws in much the same light. Rost may sincerely believe that, by retaining Stephens as an employee, he is supporting and endorsing Stephens’s views regarding the mutability of sex. But as a matter of law, bare
9Though a number of these decisions have been vacated on grounds that are not relevant to this case, their reasoning remains useful here.

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compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to an endorsement of Stephens’s views. As much is clear from the Supreme Court’s Free Speech jurisprudence, in which the Court has held that a statute requiring law schools to provide military and nonmilitary recruiters an equal opportunity to recruit students on campus was not improperly compelling schools to endorse the military’s policies because “[n]othing about recruiting suggests that law schools agree with any speech by recruiters,” and “students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 65 (2006) (citing Bd. of Ed. of Westside Cmty. Schs. (Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion)); see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 841–42 (1995) (being required to provide funds on an equal basis to religious as well as secular student publications does not constitute state university’s support for students’ religious messages). Similarly, here, requiring the Funeral Home to refrain from firing an employee with different religious views from Rost does not, as a matter of law, mean that Rost is endorsing or supporting those views. Indeed, Rost’s own behavior suggests that he sees the difference between employment and endorsement, as he employs individuals of any or no faith, “permits employees to wear Jewish head coverings for Jewish services,” and “even testified that he is not endorsing his employee’s religious beliefs by employing them.” Appellant Reply Br. at 18–19 (citing R. 61 (Def.’s Counter Statement of Disputed Facts ¶¶ 31, 37, 38) (Page ID #1834–36); R. 51-3 (Rost Dep. at 41–42) (Page ID #653)).10
At bottom, the fact that Rost sincerely believes that he is being compelled to make such an endorsement does not make it so. Cf. Eternal Word, 818 F.3d at 1145 (“We reject a framework that takes away from courts the responsibility to decide what action the government requires and leaves that answer entirely to the religious adherent. Such a framework improperly

10Even ignoring any adverse inferences that might be drawn from the incongruity between Rost’s earlier
deposition testimony and the Funeral Home’s current litigation position, as we must do when considering whether summary judgment is appropriate in the EEOC’s favor, we conclude as a matter of law that Rost does not express “support[] [for] the idea that sex is a changeable social construct rather than an immutable God-given gift” by continuing to hire Stephens, see R. 54-2 (Rost Aff. ¶¶ 43, 45) (Page ID #1334–35)—even if Rost sincerely believes otherwise.

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substitutes religious belief for legal analysis regarding the operation of federal law.”). Accordingly, requiring Rost to comply with Title VII’s proscriptions on discrimination does not substantially burden his religious practice. The district court therefore erred in granting summary judgment to the Funeral Home on the basis of its RFRA defense, and we REVERSE the district court’s decision on this ground. As Rost’s purported burdens are insufficient as a matter of law, we GRANT summary judgment to the EEOC with respect to the Funeral Home’s RFRA defense.
iii. Strict Scrutiny Test
Because the Funeral Home has not established that Rost’s religious exercise would be substantially burdened by requiring the Funeral Home to comply with Title VII, we do not need to consider whether the EEOC has adequately demonstrated that enforcing Title VII in this case is the least restrictive means of furthering a compelling government interest. However, in the interest of completeness, we reach this issue and conclude that the EEOC has satisfied its burden. We therefore GRANT summary judgment to the EEOC with regard to the Funeral Home’s RFRA defense on the alternative grounds that the EEOC’s enforcement action in this case survives strict scrutiny.
(a) Compelling Government Interest
Under the “to the person” test, the EEOC must demonstrate that its compelling interest “is satisfied through application of the challenged law [to] . . . the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales, 546 U.S. at 430–31 (citing 42 U.S.C. § 2000bb–1(b)). This requires “look[ing] beyond broadly formulated interests justifying the general applicability of government mandates and scrutiniz[ing] the asserted harm of granting specific exemptions to particular religious claimants.” Id. at 431.
As an initial matter, the Funeral Home does not seem to dispute that the EEOC “has a compelling interest in the ‘elimination of workplace discrimination, including sex

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discrimination.’” Appellee Br. at 41 (quoting Appellant Br. at 51).11 However, the Funeral Home criticizes the EEOC for “cit[ing] a general, broadly formulated interest” to support enforcing Title VII in this case. Id. According to the Funeral Home, the relevant inquiry is whether the EEOC has a “specific interest in forcing [the Funeral Home] to allow its male funeral directors to wear the uniform for female funeral directors while on the job.” Id. The EEOC instead asks whether its interest in “eradicating employment discrimination” is furthered by ensuring that Stephens does not suffer discrimination (either on the basis of sex-stereotyping or her transgender status), lose her livelihood, or face the emotional pain and suffering of being effectively told “that as a transgender woman she is not valued or able to make workplace contributions.” Appellant Br. at 52, 54 (citing Lusardi v. McHugh, EEOC DOC 0120133395, 2015 WL 1607756, at *1 (E.E.O.C. Apr. 1, 2015)). Stephens similarly argues that “Title VII serves a compelling interest in eradicating all the forms of invidious employment discrimination proscribed by the statute,” and points to studies demonstrating that transgender people have experienced particularly high rates of “bodily harm, violence, and discrimination because of their transgender status.” Intervenor Br. at 21, 23–25.
The Funeral Home’s construction of the compelling-interest test is off-base. Rather than focusing on the EEOC’s claim—that the Funeral Home terminated Stephens because of her proposed gender nonconforming behavior—the Funeral Home’s test focuses instead on its defense (discussed above) that the Funeral Home merely wishes to enforce an appropriate workplace uniform. But the Funeral Home has not identified any cases where the government’s compelling interest was framed as its interest in disturbing a company’s workplace policies. For instance, in Hobby Lobby, the issue, which the Court ultimately declined to adjudicate, was whether the government’s “interest in guaranteeing cost-free access to the four challenged contraceptive methods” was compelling—not whether the government had a compelling interest in requiring closely held organizations to act in a way that conflicted with their religious practice. See 134 S. Ct. at 2780.

11While the district court did not hold that the EEOC had conclusively established the “compelling
interest” element of its opposition to the Funeral Home’s RFRA defense, it assumed so arguendo. See R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d at 857–59.

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The Supreme Court’s analysis in cases like Wisconsin v. Yoder, 406 U.S. 205 (1972), and Holt guides our approach. In those cases, the Court ultimately determined that the interests generally served by a given government policy or statute would not be “compromised” by granting an exemption to a particular individual or group. See Holt, 135 S. Ct. at 863. Thus, in Yoder, the Court held that the interests furthered by the government’s requirement of compulsory education for children through the age of sixteen (i.e., “to prepare citizens to participate effectively and intelligently in our open political system” and to “prepare[] individuals to be selfreliant and self-sufficient participants in society”) were not harmed by granting an exemption to the Amish, who do not need to be prepared “for life in modern society” and whose own traditions adequately ensure self-sufficiency. 406 U.S. at 221–22. Similarly, in Holt, the Court recognized that the Department of Corrections has a compelling interest in preventing prisoners from hiding contraband on their persons, which is generally effectuated by requiring prisoners to adhere to a strict grooming policy, but the Court failed to see how the Department’s “compelling interest in staunching the flow of contraband into and within its facilities . . . would be seriously compromised by allowing an inmate to grow a ½-inch beard.” 135 S. Ct. at 863.
Here, the same framework leads to the opposite conclusion. Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person—Stephens— to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce. See, e.g., United States v. Burke, 504 U.S. 229, 238 (1992) (“[I]t is beyond question that discrimination in employment on the basis of sex . . . is, as . . . this Court consistently has held, an invidious practice that causes grave harm to its victims.”).12 In this regard, this case is analogous to Eternal Word, in which the Eleventh Circuit determined that the government had a compelling interest in requiring a particular nonprofit
12Courts have repeatedly acknowledged that Title VII serves a compelling interest in eradicating all forms of invidious employment discrimination proscribed by the statute. See, e.g., EEOC v. Miss. Coll., 626 F.2d 477, 488–89 (5th Cir. 1980). As the Supreme Court stated, the “stigmatizing injury” of discrimination, “and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race.” Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984); see also EEOC v. Pac. Press Publ’g Ass’n, 676 F.2d 1272, 1280 (9th Cir. 1982) (“By enacting Title VII, Congress clearly targeted the elimination of all forms of discrimination as a ‘highest priority.’ Congress’ purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.”), abrogation on other grounds recognized by Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir. 1991).

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organization with religious objections to the Affordable Care Act’s contraceptive mandate to follow the procedures associated with obtaining an accommodation to the Act because
applying the accommodation procedure to the plaintiffs in these cases furthers [the government’s] interests because the accommodation ensures that the plaintiffs’ female plan participants and beneficiaries—who may or may not share the same religious beliefs as their employer—have access to contraception without cost sharing or additional administrative burdens as the ACA requires.
818 F.3d at 1155 (emphasis added). The Eternal Word court reasoned that “[u]nlike the exception made in Yoder for Amish children,” who would be adequately prepared for adulthood even without compulsory education, the “poor health outcomes related to unintended or poorly timed pregnancies apply to the plaintiffs’ female plan participants or beneficiaries and their children just as they do to the general population.” Id. Similarly, here, the EEOC’s compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.
It is true, of course, that the specific harms the EEOC identifies in this case, such as depriving Stephens of her livelihood and harming her sense of self-worth, are simply permutations of the generic harm that is always suffered in employment discrimination cases. But O Centro’s “to the person” test does not mean that the government has a compelling interest in enforcing the laws only when the failure to enforce would lead to uniquely harmful consequences. Rather, the question is whether “the asserted harm of granting specific exemptions to particular religious claimants” is sufficiently great to require compliance with the law. O Centro, 546 U.S. at 431. Here, for the reasons stated above, the EEOC has adequately demonstrated that Stephens has and would suffer substantial harm if we exempted the Funeral Home from Title VII’s requirements.
Finally, we reject the Funeral Home’s claim that it should receive an exemption, notwithstanding any harm to Stephens or the EEOC’s interest in eradicating discrimination, because “the constitutional guarantee of free exercise[,] effectuated here via RFRA . . . [,] is a higher-order right that necessarily supersedes a conflicting statutory right,” Appellee Br. at 42. This point warrants little discussion. The Supreme Court has already determined that RFRA does not, in fact, “effectuate . . . the First Amendment’s guarantee of free exercise,” id., because

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it sweeps more broadly than the Constitution demands. See Boerne, 521 U.S. at 532. And in any event, the Supreme Court has expressly recognized that compelling interests can, at times, override religious beliefs—even those that are squarely protected by the Free Exercise Clause. See Cutter v. Wilkinson, 544 U.S. 709, 722 (2005) (“We do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests.”). We therefore decline to hoist automatically Rost’s religious interests above other compelling governmental concerns. The undisputed record demonstrates that Stephens has been and would be harmed by the Funeral Home’s discriminatory practices in this case, and the EEOC has a compelling interest in eradicating and remedying such discrimination.
(b) Least Restrictive Means
The final inquiry under RFRA is whether there exist “other means of achieving [the government’s] desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, 134 S. Ct. at 2780 (citing 42 U.S.C. §§ 2000bb-1(a), (b)). “The least-restrictive-means standard is exceptionally demanding,” id. (citing Boerne, 521 U.S. at 532), and the EEOC bears the burden of showing that burdening the Funeral Home’s religious exercise constitutes the least restrictive means of furthering its compelling interests, see id. at 2779. Where an alternative option exists that furthers the government’s interest “equally well,” see id. at 2782, the government “must use it,” Holt, 135 S. Ct. at 864 (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815 (2000)). In conducting the least-restrictivealternative analysis, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Hobby Lobby, 134 S. Ct. at 2781 n.37 (quoting Cutter, 544 U.S. at 720). Cost to the government may also be “an important factor in the least-restrictive-means analysis.” Id. at 2781.
The district court found that requiring the Funeral Home to adopt a gender-neutral dress code would constitute a less restrictive alternative to enforcing Title VII in this case, and granted the Funeral Home summary judgment on this ground. According to the district court, the Funeral Home engaged in illegal sex stereotyping only with respect to “the clothing Stephens

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[c]ould wear at work,” and therefore a gender-neutral dress code would resolve the case because Stephens would not be forced to dress in a way that conforms to Rost’s conception of Stephens’s sex and Rost would not be compelled to authorize Stephens to dress in a way that violates Rost’s religious beliefs. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d at 861, 863.
Neither party endorses the district court’s proposed alternative, and for good reason. The district court’s suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire. Though Rost does repeatedly say that he terminated Stephens because she “wanted to dress as a woman” and “would no longer dress as a man,” see R. 54-5 (Rost 30(b)(6) Dep. at 136–37) (Page ID #1372) (emphasis added), the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation. For instance, Rost stated that he fired Stephens because Stephens “was no longer going to represent himself as a man,” id. at 136 (Page ID #1372) (emphasis added), and Rost insisted that Stephens presenting as a female would disrupt clients’ healing process because female clients would have to “share a bathroom with a man dressed up as a woman,” id. at 74, 138–39 (Page ID #1365, 1373). The record thus compels the finding that Rost’s concerns extended beyond Stephens’s attire and reached Stephens’s appearance and behavior more generally.
At the summary-judgment stage, where a court may not “make credibility determinations, weigh the evidence, or draw [adverse] inferences from the facts,” Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, (1986)), the district court was required to account for the evidence of Rost’s non-clothing-based sex stereotyping in determining whether a proposed less restrictive alternative furthered the government’s “stated interests equally [as] well,” Hobby Lobby, 134 S. Ct. at 2782. Here, as the evidence above shows, merely altering the Funeral Home’s dress code would not address the discrimination Stephens faced because of her broader desire “to represent [her]self as a [wo]man.” R. 54-5 (Rost 30(b)(6) Dep. at 136) (Page ID #1372). Indeed, the Funeral Home’s counsel conceded at oral argument that Rost would have objected to Stephens’s coming “to work presenting clearly as a woman and acting as a woman,” regardless of whether

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Stephens wore a man’s suit, because that “would contradict [Rost’s] sincerely held religious beliefs.” See Oral Arg. at 46:50–47:46.
The Funeral Home’s proposed alternative—to “permit businesses to allow the enforcement of sex-specific dress codes for employees who are public-facing representatives of their employer, so long as the dress code imposes equal burdens on the sexes and does not affect employee dress outside of work,” Appellee Br. at 44–45—is equally flawed. The Funeral Home’s suggestion would do nothing to advance the government’s compelling interest in preventing and remedying discrimination against Stephens based on her refusal to conform at work to stereotypical notions of how biologically male persons should dress, appear, behave, and identify. Regardless of whether the EEOC has a compelling interest in combating sex-specific dress codes—a point that is not at issue in this case—the EEOC does have a compelling interest in ensuring that the Funeral Home does not discriminate against its employees on the basis of their sex. The Funeral Home’s proposed alternative sidelines this interest entirely.13
The EEOC, Stephens, and several amici argue that searching for an alternative to Title VII is futile because enforcing Title VII is itself the least restrictive way to further EEOC’s interest in eradicating discrimination based on sex stereotypes from the workplace. See, e.g., Appellant Br. at 55–61; Intervenor Br. at 27–33. We agree.
To start, the Supreme Court has previously acknowledged that “there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA.” O Centro, 546 U.S. at 436. The Court highlighted Braunfeld v. Brown, 366 U.S. 599 (1961), as an example of a case where the “need for uniformity” trumped “claims for religious exemptions.” O Centro, 546 U.S. at 435. In Braunfeld, the plurality “denied a claimed

13In its district court briefing, the Funeral Home proposed three additional purportedly less restrictive
alternatives: the government could hire Stephens; the government could pay Stephens a full salary and benefits until she secures comparable employment; or the government could provide incentives to other employers to hire Stephens and allow her to dress as she pleases. R. 67 (Def.’s Reply Mem. of Law in Support of Def.’s Mot. for Summ. J. at 17–18) (Page ID #2117–18). Not only do these proposals fail to further the EEOC’s interest enabling Stephens to work for the Funeral Home without facing discrimination, but they also fail to consider the cost to the government, which is “an important factor in the least-restrictive-means analysis.” Hobby Lobby, 134 S. Ct. at 2781. We agree with the EEOC that the Funeral Home’s suggestions—which it no longer pushes on appeal—are not viable alternatives to enforcing Title VII in this case, as they do not serve the EEOC’s interest in eradicating discrimination “equally well.” See id. at 2782.

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exception to Sunday closing laws, in part because . . . [t]he whole point of a ‘uniform day of rest for all workers’ would have been defeated by exceptions.” O Centro, 546 U.S. at 435 (quoting Sherbert, 374 U.S. at 408 (discussing Braunfeld)). Braunfeld thus serves as a particularly apt case to consider here, as it too concerned an attempt by an employer to seek an exemption that would elevate its religious practices above a government policy designed to benefit employees. If the government’s interest in a “uniform day of rest for all workers” is sufficiently weighty to preclude exemptions, see O Centro, 546 U.S. at 435, then surely the government’s interest in uniformly eradicating discrimination against employees exerts just as much force.
The Court seemingly recognized Title VII’s ability to override RFRA in Hobby Lobby, as the majority opinion stated that its decision should not be read as providing a “shield” to those who seek to “cloak[] as religious practice” their efforts to engage in “discrimination in hiring, for example on the basis of race.” 134 S. Ct. at 2783. As the Hobby Lobby Court explained, “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” Id. We understand this to mean that enforcement actions brought under Title VII, which aims to “provid[e] an equal opportunity to participate in the workforce without regard to race” and an array of other protected traits, see id., will necessarily defeat RFRA defenses to discrimination made illegal by Title VII. The district court reached the opposite conclusion, reasoning that Hobby Lobby did not suggest that “a RFRA defense can never prevail as a defense to Title VII” because “[i]f that were the case, the majority would presumably have said so.” R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d at 857. But the majority did say that anti-discrimination laws are “precisely tailored” to achieving the government’s “compelling interest in providing an equal opportunity to participate in the workforce” without facing discrimination. Hobby Lobby, 134 S. Ct. at 2783.
As Stephens notes, at least two district-level federal courts have also concluded that Title VII constitutes the least restrictive means for eradicating discrimination in the workforce. See Redhead v. Conf. of Seventh-Day Adventists, 440 F. Supp. 2d 211, 222 (E.D.N.Y. 2006) (holding that “the Title VII framework is the least restrictive means of furthering” the government’s interest in avoiding discrimination against non-ministerial employees of religious organization),

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adhered to on reconsideration, 566 F. Supp. 2d 125 (E.D.N.Y. 2008); EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763, 810–11 (S.D. Ind. 2002) (“[I]n addition to finding that the EEOC’s intrusion into [the defendant’s] religious practices is pursuant to a compelling government interest,”—i.e., “the eradication of employment discrimination based on the criteria identified in Title VII”—“we also find that the intrusion is the least restrictive means that Congress could have used to effectuate its purpose.”).
We also find meaningful Congress’s decision not to include exemptions within Title VII to the prohibition on sex-based discrimination. As both the Supreme Court and other circuits have recognized, “[t]he very existence of a government-sanctioned exception to a regulatory scheme that is purported to be the least restrictive means can, in fact, demonstrate that other, less-restrictive alternatives could exist.” McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 475 (5th Cir. 2014) (citing Hobby Lobby, 134 S. Ct. at 2781–82); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (“It is established in our strict scrutiny jurisprudence that ‘a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.’” (omission in original) (quoting Fla. Star v. B.J.F., 491 U.S. 524, 541–42 (1989) (Scalia, J., concurring))). Indeed, a driving force in the Hobby Lobby Court’s determination that the government had failed the least-restrictive-means test was the fact that the Affordable Care Act, which the government sought to enforce in that case against a closely held organization, “already established an accommodation for nonprofit organizations with religious objections.” See 134 S. Ct. at 2782. Title VII, by contrast, does not contemplate any exemptions for discrimination on the basis of sex. Sex may be taken into account only if a person’s sex “is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise,” 42 U.S.C. § 2000e-2(e)(1)—and in that case, the preference is no longer discriminatory in a malicious sense. Where the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme’s objectives is through its enforcement.

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State courts’ treatment of RFRA-like challenges to their own antidiscrimination laws is also telling. In several instances, state courts have concluded that their respective antidiscrimination laws survive strict scrutiny, such that religious claimants are not entitled to exemptions to enforcement of the state prohibitions on discrimination with regard to housing, employment, medical care, and education. See State v. Arlene’s Flowers, Inc., 389 P.3d 543, 565–66 (Wash. 2017) (collecting cases), petition for cert. filed Arlene’s Flowers, Inc. v. Washington, 86 U.S.L.W. 3047 (U.S. July 14, 2017) (No. 17-108). These holdings support the notion that antidiscrimination laws allow for fewer exceptions than other generally applicable laws.
As a final point, we reject the Funeral Home’s suggestion that enforcing Title VII in this case would undermine, rather than advance, the EEOC’s interest in combating sex stereotypes. According to the Funeral Home, the EEOC’s requested relief reinforces sex stereotypes because the agency essentially asks that Stephens “be able to dress in a stereotypical feminine manner.” R.G. & G.R. Funeral Homes, Inc., 201 F. Supp. 3d at 863 (emphasis omitted). This argument misses the mark. Nothing in Title VII or this court’s jurisprudence requires employees to reject their employer’s stereotypical notions of masculinity or femininity; rather, employees simply may not be discriminated against for a failure to conform. See Smith, 378 F.3d at 572 (holding that a plaintiff makes out a prima facie case for discrimination under Title VII when he pleads that “his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind” an adverse employment action (emphasis added)). Title VII protects both the right of male employees “to c[o]me to work with makeup or lipstick on [their] face[s],” Barnes, 401 F.3d at 734, and the right of female employees to refuse to “wear dresses or makeup,” Smith, 378 F.3d at 574, without any internal contradiction.
In short, the district court erred in finding that EEOC had failed to adopt the least restrictive means of furthering its compelling interest in eradicating discrimination in the workplace. Thus, even if we agreed with the Funeral Home that Rost’s religious exercise would be substantially burdened by enforcing Title VII in this case, we would nevertheless REVERSE the district court’s grant of summary judgment to the Funeral Home and hold instead that requiring the Funeral Home to comply with Title VII constitutes the least restrictive means of

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furthering the government’s compelling interest in eradicating discrimination against Stephens on the basis of sex. Thus, even assuming Rost’s religious exercise is substantially burdened by the EEOC’s enforcement action in this case, we GRANT summary judgment to the EEOC on the Funeral Home’s RFRA defense on this alternative ground.
C. Clothing-Benefit Discrimination Claim
The district court erred in granting summary judgment in favor of the Funeral Home on the EEOC’s discriminatory clothing-allowance claim. We long ago held that the scope of the complaint the EEOC may file in federal court in its efforts to enforce Title VII is “limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.” EEOC v. Bailey Co., 563 F.2d 439, 446 (6th Cir. 1977) (quoting inter alia, Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971)), disapproved of on other grounds by Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)). The EEOC now urges us to hold that Bailey is incompatible with subsequent Supreme Court precedent and therefore no longer binding on this court. Because we believe that the EEOC may properly bring a clothing-allowance claim under Bailey, we need not decide whether Bailey has been rendered obsolete.
In Bailey, a white female employee charged that her employer failed to promote her on account of her sex, generally failed to promote women because of their sex, failed to pay equally qualified women as well as men, and failed to recruit and hire black women because of their race. Id. at 442. While investigating these claims, the EEOC found there was no evidence to support the complainant’s charges of sex discrimination, but there was reasonable cause to believe the company had racially discriminatory hiring and promotion practices. In addition, the EEOC learned that the employer had seemingly refused to hire one applicant on the basis of his religion. After failed efforts at conciliation, the EEOC initiated a lawsuit against the employer alleging both racial and religious discrimination. We held that the EEOC lacked authority to bring an enforcement action regarding alleged religious discrimination because “[t]he portion of the EEOC’s complaint incorporating allegations of religious discrimination exceeded the scope of the EEOC investigation of [the defendant employer] reasonably expected to grow out of [the original] charge of sex and race discrimination.” Id. at 446. We determined, however, that the

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EEOC was authorized to bring race discrimination claims against the employer because the original charge alleged racial discrimination against black applicants and employees and the charging party—a white woman—had standing under Title VII to file such a charge with the EEOC because she “may have suffered from the loss of benefits from the lack of association with racial minorities at work.” Id. at 452 (citations omitted).
As we explained in Bailey, the EEOC may sue for matters beyond those raised directly in the EEOC’s administrative charge for two reasons. First, limiting the EEOC complaint to the precise grounds listed in the charge of discrimination would undercut Title VII’s “effective functioning” because laypersons “who are unfamiliar with the niceties of pleading and are acting without the assistance of counsel” submit the original charge. Id. at 446 (quoting Tipler, 443 F.2d at 131). Second, an initial charge of discrimination does not trigger a lawsuit; it instead triggers an EEOC investigation. The matter evolves into a lawsuit only if the EEOC is unable “to obtain voluntary compliance with the law. . . . Thus it is obvious that the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation.” Id. at 447 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)).
At the same time, however, we concluded in Bailey that allowing the EEOC to sue for matters beyond those reasonably expected to arise from the original charge would undermine Title VII’s enforcement process. In particular, we understood that an original charge provided an employer with “notice of the allegation, an opportunity to participate in a complete investigation of such allegation, and an opportunity to participate in meaningful conciliation discussions should reasonable cause be found following the EEOC investigation.” Id. at 448. We believed that the full investigatory process would be short-circuited, and the conciliation process thereby threatened, if the EEOC did not file a separate charge and undertake a separate investigation when facts are learned suggesting an employer may have engaged in “discrimination of a type other than that raised by the individual party’s charge and unrelated to the individual party.” Id.
The EEOC now insists that Bailey is no longer good law after the Supreme Court’s decision in General Telephone Company of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980). In General Telephone, the Supreme Court held that Rule 23 of the Federal Rules of Civil

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Procedure, which governs class actions, does not apply to enforcement actions initiated by the EEOC. Id. at 331. As part of its reasoning, the Court found that various requirements of Rule 23—such as the requirement that “the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class,” FED. R. CIV. P. 23(a)(3)—are incompatible with the EEOC’s enforcement responsibilities under Title VII:
The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiff’s claims. If Rule 23 were applicable to EEOC enforcement actions, it would seem that the Title VII counterpart to the Rule 23 named plaintiff would be the charging party, with the EEOC serving in the charging party’s stead as the representative of the class. Yet the Courts of Appeals have held that EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable. The latter approach is far more consistent with the EEOC’s role in the enforcement of Title VII than is imposing the strictures of Rule 23, which would limit the EEOC action to claims typified by those of the charging party.
Gen. Tel., 446 U.S. at 330–31 (internal citations omitted). The EEOC argues that this passage directly contradicts the holding in Bailey, in which we rejected the EEOC’s argument that it “can investigate evidence of any other discrimination called to its attention during the course of an investigation.” See 563 F.2d at 446.
Though there may be merit to the EEOC’s argument, see EEOC v. Kronos Inc., 620 F.3d 287, 297 (3d Cir. 2010) (citing General Telephone for the proposition that “[o]nce the EEOC begins an investigation, it is not required to ignore facts that support additional claims of discrimination if it uncovers such evidence during the course of a reasonable investigation of the charge” (citing Gen. Tel., 446 U.S. at 331)), we need not resolve Bailey’s compatibility with General Telephone at this time because our holding in Bailey does not preclude the EEOC from bringing a clothing-allowance-discrimination claim in this case.
First, the present case is factually distinguishable from Bailey. In Bailey, the court determined that allegations of religious discrimination were outside the scope of an investigation “reasonably related” to the original charge of sex and race discrimination because, in part, “[t]he evidence presented at trial by the EEOC to support its allegations of religious discrimination did not involve practices affecting [the original charger].” 563 F.2d at 447. Here, by contrast,

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Stephens would have been directly affected by the Funeral Home’s allegedly discriminatory clothing-allowance policy had she not been terminated, as the Funeral Home’s current practice indicates that she would have received either no clothing allowance or a less valuable clothing allowance once she began working at the Funeral Home as a woman.14 And, unlike the EEOC’s investigation of religious discrimination in Bailey, the EEOC’s investigation into the Funeral Home’s discriminatory clothing-allowance policy concerns precisely the same type of discrimination—discrimination on the basis of sex—that Stephens raised in her initial charge.
Second, we have developed a broad conception of the sorts of claims that can be “reasonably expected to grow out of the initial charge of discrimination.” See Bailey, 563 F.2d at 446. As we explained in Davis v. Sodexho, 157 F.3d 460 (6th Cir. 1998), “where facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim.” Id. at 463. And we have also cautioned that “EEOC charges must be liberally construed to determine whether . . . there was information given in the charge that reasonably should have prompted an EEOC investigation of [a] separate type of discrimination.” Leigh v. Bur. of State Lottery, 1989 WL 62509, at *3 (6th Cir. June 13, 1989) (Table) (citing Bailey, 563 F.2d at 447). Here, Stephens alleged that she was fired after she shared her intention to present and dress as a woman because the Funeral Home “management [told her that it] did not believe the public would be accepting of [her] transition” from male to female. R. 63-2 (Charge of Discrimination at 1) (Page ID #1952). It was reasonable to expect, in light of this allegation, that the EEOC would investigate the Funeral Home’s employee-appearance requirements and expectations, would learn about the Funeral Home’s sex-specific dress code, and would thereby uncover the Funeral Home’s seemingly discriminatory clothing-allowance policy. As much is clear from our decision in Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir. 1981), in which “we held that the plaintiffs could bring equal pay claims alleging that their union discriminated in negotiating pay scales for different job designations, despite the fact that the plaintiffs’ EEOC charge alleged only that the union failed to represent them in securing the higher paying job designations.”
14The Funeral Home insists that it would provide female funeral directors with a company-issued suit if it had any female Funeral Directors. See R. 53-3 (Rost Aff. ¶ 54) (Page ID #939). This is a factual claim that we cannot credit at the summary-judgment stage.

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Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380 (6th Cir. 2002) (citing Farmer, 660 F.2d at 1105). As we recognized then, underlying the Farmer plaintiffs’ claim was an implicit allegation that the plaintiffs were as qualified and responsible as the higher-paid employees, and this fact “could reasonably be expected to lead the EEOC to investigate why different job designations that required the same qualifications and responsibilities used disparate pay scales.” Id. By the same token, Stephens’s claim that she was fired because of her planned change in appearance and presentation contains an implicit allegation that the Funeral Home requires its male and female employees to look a particular way, and this fact could (and did) reasonably prompt the EEOC to investigate whether these appearance requirements imposed unequal burdens—in this case, fiscal burdens—on its male and female employees.
We therefore REVERSE the district court’s grant of summary judgment to the Funeral Home on the EEOC’s discriminatory-clothing-allowance claim and REMAND with instructions to consider the merits of the EEOC’s claim.
III. CONCLUSION
Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim. RFRA provides the Funeral Home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden Rost’s religious exercise, and even if it did, the EEOC has shown that enforcing Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination. We therefore REVERSE the district court’s grant of summary judgment in favor of the Funeral Home and GRANT summary judgment to the EEOC on its unlawfultermination claim. We also REVERSE the district court’s grant of summary judgment on the EEOC’s discriminatory-clothing-allowance claim, as the district court erred in failing to consider the EEOC’s claim on the merits. We REMAND this case to the district court for further proceedings consistent with this opinion.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 16-2424

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant,
AIMEE STEPHENS, Intervenor,
v.
R.G. &. G.R. HARRIS FUNERAL HOMES, INC., Defendant - Appellee.

FILED
Mar 07, 2018
DEBORAH S. HUNT, Clerk

Before: MOORE, WHITE, and DONALD, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the district court’s grant of summary judgment in favor of R.G. & G.R. Harris Funeral Homes, Inc. is REVERSED, and summary judgment to the Equal Employment Opportunity Commission on its unlawful-termination claim is GRANTED. IT IS FURTHER ORDERED that the district court’s grant of summary judgment on the Equal Employment Opportunity Commission’s discriminatory-clothing-allowance claim is REVERSED. The case is REMANDED to the district court for further proceedings consistent with the opinion of this court.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 NO. _______
IN THE
Supreme Court of the United States
R.G. & G.R. HARRIS FUNERAL HOMES, INC., Petitioner,
v. EQUAL OPPORTUNITY EMPLOYMENT COMMISSION,
Respondent, and
AIMEE STEPHENS, Respondent-Intervenor.
On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI

JOHN J. BURSCH BURSCH LAW PLLC 9339 Cherry Valley
Avenue SE, #78 Caledonia, MI 49316 (616) 450-4235 jbursch@burschlaw.com

KRISTEN K. WAGGONER DAVID A. CORTMAN GARY S. MCCALEB JAMES A. CAMPBELL
Counsel of Record JEANA HALLOCK ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 jcampbell@ADFlegal.org

Counsel for Petitioner

i
QUESTIONS PRESENTED
1. Whether the word “sex” in Title VII’s prohibition on discrimination “because of . . . sex,” 42 U.S.C. 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964.
2. Whether Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

ii
PARTIES TO THE PROCEEDING All parties to the proceeding are listed in the caption. The petitioner is R.G. &. G.R. Harris Funeral Homes, Inc., a closely held, for-profit corporation. The respondents are the Equal Employment Opportunity Commission and Intervenor Aimee Stephens.
CORPORATE DISCLOSURE STATEMENT The petitioner has no parent corporation or
publicly held company that owns 10% or more of its stock.

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TABLE OF CONTENTS QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING........................... ii CORPORATE DISCLOSURE STATEMENT ........... ii TABLE OF AUTHORITIES ..................................... vi OPINIONS BELOW................................................... 1
JURISDICTION ......................................................... 1 STATUTORY PROVISIONS INVOLVED ................ 1 INTRODUCTION ...................................................... 2 STATEMENT ............................................................. 3
A. Petitioner Harris Homes............................... 3 B. Respondent Stephens .................................... 4 C. Title VII ......................................................... 5 D. District Court Proceedings............................ 8 E. Sixth Circuit Ruling .................................... 10
REASONS FOR GRANTING THE PETITION ...... 13 I. The circuits are irreconcilably split on
whether “sex” in Title VII means “gender identity” and includes “transgender status.” ............................................................... 15
II. The Sixth Circuit’s decision misreads Price Waterhouse and adds to a confusing and inconsistent body of lower-court case law. ..................................................................... 21
III. The Sixth Circuit’s decision conflicts with this Court’s directives on statutory construction........................................................ 25

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IV. Interpreting “sex” to mean “gender identity”—as the Sixth Circuit did—will have far-reaching consequences........................ 30
V. This case is an ideal vehicle for addressing the important questions presented. .................. 34
CONCLUSION ......................................................... 36
APPENDIX TABLE OF CONTENTS
Sixth Circuit Court of Appeals Opinion (March 7, 2018) ........................................................1a
District Court Opinion and Order Resolving Summary Judgment Motions (August 18, 2016) .......................................................................82a
District Court Amended Opinion & Order Denying R.G. & G.R. Harris Funeral Homes’ Motion to Dismiss (April 23, 2015)......................162a
Excerpts from Title VII of the Civil Rights Act of 1964, 42 U.S.C. 42 2000e-2(a)(1)–(2) ........ 188a
Rule 28(j) Notice of Supplemental Authority that R.G. & G.R. Harris Funeral Homes filed with the Sixth Circuit on October 6, 2017, attaching an October 4, 2017 Memorandum from the Attorney General (ECF No. 85) ............ 189a
Excerpts from Affidavit of Thomas Rost in Support of R.G. & G.R. Harris Funeral Homes’ Motion for Summary Judgment (Exhibit 1 to R.G. & G.R. Harris Funeral Homes’ Motion for Summary Judgment) (ECF No. 54-2)......................................................195a

v
Excerpts from Deposition of Aimee A. Stephens dated December 16, 2015 (Exhibit 14 to R.G. & G.R. Harris Funeral Homes’ Motion for Summary Judgment (ECF No. 5415) and Exhibit 35 to R.G. & G.R. Harris Funeral Homes’ Opposition to the EEOC’s Motion for Summary Judgment (ECF No. 60-2)) .............................................................. 200a
Excerpts from the 30(b)(6) Deposition of Thomas Rost dated November 12, 2015 (Exhibit B to the EEOC’s Motion for Summary Judgment) (ECF No. 51-3).................. 203a
Excerpts from the EEOC’s Response to R.G. & G.R. Harris Funeral Homes’ First Set of Interrogatories (Exhibit 25 to R.G. & G.R. Harris Funeral Homes’ Motion for Summary Judgment) (ECF No. 54-26).................................204a

vi

Cases:

TABLE OF AUTHORITIES

Boumediene v. Bush, 553 U.S. 723 (2008)............................................28
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)..................................25–26, 28
Dodds v. United States Department of Education, 845 F.3d 217 (6th Cir. 2016) .......................31, 32
Doe by & through Doe v. Boyertown Area School District, 893 F.3d 179 (3d Cir. 2018) .........................19, 25
Duncan v. Walker, 533 U.S. 167 (2001)............................................28
Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018)........................................28
Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007)..............15, 16, 25
Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017)..........................24
Flood v. Kuhn, 407 U.S. 258 (1972)............................................28
Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016) ...............33
Frontiero v. Richardson, 411 U.S. 677 (1973)............................................30
G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016) .................19, 26, 31

vii
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)..........................18
Gloucester County School Board v. G.G., 137 S. Ct. 369 (2016)..........................................31
Gloucester County School Board v. G.G., 137 S. Ct. 1239 (2017)..................................19, 31
Griggs v. Duke Power Co., 401 U.S. 424 (1971)............................................33
Grimm v. Gloucester County School Board, 302 F. Supp. 3d 730 (E.D. Va. 2018) ...........19, 25
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)............................................28
Gustafson v. Alloyd Co., 513 U.S. 561 (1995)............................................28
Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058 (7th Cir. 2003) ...........................23
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017)..........................................2
Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) .................22, 24, 26
Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) ............. 6, 18, 20, 29
Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006) ...........................25
Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978)..........................21, 22, 24, 27

viii
M.A.B. v. Board of Education of Talbot County, 286 F. Supp. 3d 704 (D. Md. 2018)..............19, 25
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353 (1982)............................................29
Nguyen v. INS, 533 U.S. 53 (2001)..............................................24
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)........................................12, 27
Perrin v. United States, 444 U.S. 37 (1979)..............................................26
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).................................... passim
Sandifer v. United States Steel Corp., 571 U.S. 220 (2014)............................................26
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) .....................18, 20
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) .........................9, 11
Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982) ...................6, 16, 33
Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015)........................................29
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) ........... 6, 16, 17, 29
United States v. Virginia, 518 U.S. 515 (1996)............................................32

ix
Viacom Inc. v. Ingram Enterprises, Inc., 141 F.3d 886 (8th Cir. 1998) .............................26
Whitaker By Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) .....................17, 25
Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) ...................27, 29, 33
Statutes:
18 U.S.C. 249(a)(2) ...............................................8, 28 20 U.S.C. 1681(a) .....................................................17 28 U.S.C. 1254(1) .......................................................1 34 U.S.C. 12291(b)(13)(A) ..............................8, 12, 28 34 U.S.C. 12361........................................................18 34 U.S.C. 30503(a)(1)(C) ......................................8, 28 42 U.S.C. 2000bb........................................................9 42 U.S.C. 2000e-2(a)(1) ........................ 2, 6, 26, 27, 33 42 U.S.C. 12211(b)(1) .................................................7 42 U.S.C. 18116(a) ...................................................33 Conn. Gen. Stat. § 46a-60(b)(1) .................................7 Del. Code Ann. tit. 19, § 711(a)(1)–(2) .......................7 D.C. Code § 2-1402.11(a)............................................7 775 Ill. Comp. Stat. 5/5-103(B) ................................33 N.M. Stat. Ann. § 28-1-9(E) .....................................32 Wis. Stat. § 106.52(3)(b)–(c).....................................33

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Legislative Materials:
Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Congress (2007) ......................7
To Prohibit Employment Discrimination Based on Gender Identity, H.R. 3686, 110th Congress (2007) ......................7
Employment Non-Discrimination Act of 2009, H.R. 2981, 111th Congress (2009) ......................7
Employment Non-Discrimination Act of 2009, H.R. 3017, 111th Congress (2009) ......................7
Employment Non-Discrimination Act of 2009, S. 1584, 111th Congress (2009)...........................7
Employment Non-Discrimination Act of 2011, H.R. 1397, 112th Congress (2011) ..................7–8
Employment Non-Discrimination Act of 2011, S. 811, 112th Congress (2011).............................8
Employment Non-Discrimination Act of 2013, H.R. 1755, 113th Congress (2013) ......................8
Employment Non-Discrimination Act of 2013, S. 815, 113th Congress (2013).............................8
Equality Act, H.R. 3185, 114th Congress (2015) ......8
Equality Act, S. 1858, 114th Congress (2015) ..........8
Equality Act, H.R. 2282, 115th Congress (2017) ......8
Equality Act, S. 1006, 115th Congress (2017) ..........8

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Administrative Rulings:
Casoni v. United States Postal Service, EEOC DOC 01840104 (Sept. 28, 1984), 1984 WL 485399 ..........................................20, 29
Macy v. Holder, EEOC DOC 0120120821 (Apr. 20, 2012), 2012 WL 1435995 ..............................................20
Miscellaneous:
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) .............................................6, 7, 30
David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives of Sexual Behavior 87 (2004) ............................7, 26
New York City Commission on Human Rights, Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression (June 28, 2016) .............34
The American College Dictionary (1970) ..................6
The American Heritage Dictionary (5th ed. 2011) .......................................................6

1
OPINIONS BELOW The court of appeals’ opinion, App. 1a–81a, is reported at 884 F.3d 560. The district court’s opinion and order granting in part petitioner’s motion for summary judgment, App. 82a–161a, is reported at 201 F. Supp. 3d 837. The district court’s amended opinion and order denying petitioner’s motion to dismiss, App. 162a–187a, is reported at 100 F. Supp. 3d 594.
JURISDICTION The judgment of the court of appeals was entered on March 7, 2018. On May 16, this Court extended the time to file this petition until August 3. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED Pertinent statutory provisions are set forth in the appendix to this petition. App. 188a.

2
INTRODUCTION
The “proper role of the judiciary” is “to apply, not amend, the work of the People’s representatives.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1726 (2017). The Sixth Circuit departed from that role by judicially amending the word “sex” in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1), to mean “gender identity.” In so doing, the Sixth Circuit usurped the role of Congress, which has repeatedly considered and rejected making such a change to Title VII.
Redefining “sex” to mean “gender identity” is no trivial matter. Doing so shifts what it means to be male or female from a biological reality based in anatomy and physiology to a subjective perception evidenced by what people profess they feel. Farreaching consequences follow from that. For example, federal law in some parts of the country now mandates that employers, governments, and schools must administer dress codes and assign living facilities, locker rooms, and restrooms based on the “sex” that a person professes.
As for Petitioner R.G. &. G.R. Harris Funeral Homes, Inc. (Harris Homes), the Sixth Circuit ordered it to allow a male funeral director to dress and present as a woman at work. Harris Homes must do that even though its owner reasonably determined that the employee’s actions would violate the company’s sex-specific dress code and disrupt the healing process of grieving families. The language of Title VII does not mandate that result. This Court should grant review and reverse.

3
STATEMENT
A. Petitioner Harris Homes
Harris Homes is a small, family-owned funeral business that has helped its clients mourn the loss of loved ones since 1910. App. 90a. Thomas Rost is its current president and owner. Ibid.
As a devout Christian, Rost “sincerely believes that his ‘purpose in life is to minister to the grieving, and his religious faith compels him to do that important work.’” App. 103a; accord id. at 6a. Harris Homes’ mission statement, announced on its website, says that the company’s “highest priority is to honor God in all that we do.” Id. at 6a, 102a.
Funerals are somber and solemn events that address transcendent matters, hold deep spiritual significance, and mark some of the most difficult times in life. App. 196a–97a. They often are traumatic and painful experiences, and family and friends need to be able to focus on each other and their grief. Id. at 196a. Because of this, Rost requires his employees to conduct and present themselves in a professional manner and to avoid disrupting or distracting clients as they process their grief. Id. at 196a, 198a.
Harris Homes’ dress code for employees who interact with clients is integral to ensuring that the company meets the high standards it sets. App. 91a– 93a, 140a. It is a sex-specific dress code that prescribes certain requirements for male employees (e.g., they must wear suits) and others for female employees (e.g., they must wear dresses or skirts). Id. at 91a–93a. The protocol for funeral directors is

4
that men wear pant suits and women wear skirt suits. Id. at 106a. Respondents do not challenge the dress code as improper under Title VII. Id. at 112a; see also id. at 18a, 21a, 66a–67a, 86a, 111a, 138a.
Harris Homes’ funeral directors are “prominent public representatives” of the company. App. 103a. They regularly interact with clients and guests while moving the deceased’s body from the place of death “to the funeral home,” helping “integrat[e] the clergy” into the funeral, “greeting the guests,” and coordinating the family’s “final farewell” to their loved one. Id. at 41a.
B. Respondent Stephens
Rost hired Respondent Stephens as a funeral director in 2007. App. 93a–94a. During Stephens’s six years of employment, it is undisputed that Stephens “presented as a man.” Id. at 6a. All relevant employment records—“including driver’s license, tax records, and mortuary science license— identif[ied] Stephens as a male.” Id. at 93a–94a. Nothing during Stephens’s employment with Harris Homes, as Stephens testified, would have suggested to anyone at work that Stephens was “anything other than a man.” Id. at 200a.
In a July 2013 letter, Stephens first told Rost that Stephens identifies as female. App. 8a, 94a–95a. “Stephens ‘intend[ed] to have sex reassignment surgery,’ and explained that ‘[t]he first step . . . is to live and work full-time as a woman for one year.’” Id. at 8a. Stephens’s plan was to present as a woman and wear female attire at work. Id. at 95a.

5
A few weeks later, after seeking legal counsel, Rost told Stephens that the situation was “not going to work out.” App. 9a, 96a. Because Rost wanted to reach “a fair agreement,” he offered Stephens a severance package. Id. at 203a. Stephens declined it.
It is undisputed why Rost let Stephens go. He determined that acquiescing in Stephens’s proposal would have violated Harris Homes’ dress code, App. 9a, 100a–01a, and “disrupted the[] grieving and healing process” of “clients mourning the loss of their loved ones,” id. at 198a. Rost was also concerned that female clients and staff would be forced to share restroom facilities with Stephens. Id. at 65a. Notably, Rost would not have reached the same decision had Stephens professed a female gender identity but “continued to conform to the dress code for male funeral directors while at work.” Id. at 104a–05a; see also id. at 138a.
Also, because Rost interprets the Bible as teaching that sex is immutable, he believed that he “would be violating God’s commands” if a male representative of Harris Homes presented himself as a woman while representing the company. App. 104a. Were he forced to violate his faith that way, Rost “would feel significant pressure to sell [the] business and give up [his] life’s calling of ministering to grieving people as a funeral home director and owner.” Ibid. The EEOC “does not contest [Rost’s] religious sincerity.” Id. at 124a.
C. Title VII
Congress enacted Title VII in 1964. The Act deems it “an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge

6
any individual, or otherwise to discriminate . . . , because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 2000e-2(a)(1). When enacting Title VII, Congress’s “major concern” was ending “race discrimination.” Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977).
The word “sex” “was added as a floor amendment one day before the House approved Title VII, without prior hearing or debate.” Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 243 n.9 (1989) (plurality) (sex “was included in an attempt to defeat the bill”). The problem Congress sought to address by adding “sex” was the lack of “equal opportunities for women” in employment. Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (per curiam). So Congress chose language “ensur[ing] that men and women are treated equally.” Holloway, 566 F.2d at 663.
Both at the time of Title VII’s enactment and today, the word “sex” refers to a person’s status as male or female as objectively determined by anatomical and physiological factors, particularly those involved in reproduction.1 In contrast, gender identity is an altogether different construct. It refers
1 E.g., The American College Dictionary 1109 (1970) (defining “sex” as “the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished”); The American Heritage Dictionary 1605 (5th ed. 2011) (classifying male and female “on the basis of their reproductive organs and functions”); American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013) (DSM–5) (“‘[S]ex’ . . . refer[s] to the biological indicators of male and female”).

7
to an “inner sense of being male or female,” App. 204a, or “some category other than male or female,” DSM–5 451 (emphasis added). The term first emerged in 1963 at a medical conference in Europe. David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives of Sexual Behavior 87, 93 (2004).
It was not until 1990 that the concept of gender identity appeared in federal law. That occurred with the passage of the Americans with Disabilities Act, which excluded protection for “gender identity disorders.” 42 U.S.C. 12211(b)(1). A year later, when Congress reenacted Title VII, it did not amend the word “sex” to mean “gender identity.” Civil Rights Act of 1991, Pub. Law 102–166.
Since then, dozens of state and local legislatures have added “gender identity” to nondiscrimination laws that already include “sex.”2 But Congress has considered and rejected at least a dozen proposals to similarly add “gender identity” to Title VII,3 even
2 E.g., Conn. Gen. Stat. § 46a-60(b)(1) (forbidding employment discrimination based on “sex” and “gender identity or expression”); Del. Code Ann. tit. 19, § 711(a)(1)–(2) (including “sex” and “gender identity”); D.C. Code § 2-1402.11(a) (including “sex” and “gender identity or expression”).
3 E.g., Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007); To Prohibit Employment Discrimination Based on Gender Identity, H.R. 3686, 110th Cong. (2007); Employment Non-Discrimination Act of 2009, H.R. 2981, 111th Cong. (2009); Employment Non-Discrimination Act of 2009, H.R. 3017, 111th Cong. (2009); Employment NonDiscrimination Act of 2009, S. 1584, 111th Cong. (2009); Employment Non-Discrimination Act of 2011, H.R. 1397, 112th

8
while enacting other nondiscrimination provisions listing either “sex” or “gender” alongside “gender identity.”4
D. District Court Proceedings
Stephens filed a charge of discrimination with the EEOC in September 2013, alleging an unlawful discharge based on “sex and gender identity” in violation of Title VII. App. 97a. After investigating, the EEOC filed suit against Harris Homes, claiming that the company violated Title VII by discharging Stephens allegedly (1) “because Stephens is transgender” and sought to “transition from male to female” and (2) “because Stephens did not conform to [Harris Homes’] sex- or gender-based preferences, expectations, or stereotypes.” Id. at 166a. The EEOC sought to enjoin Harris Homes from “discriminat[ing] against an employee or applicant because of
Cong. (2011); Employment Non-Discrimination Act of 2011, S. 811, 112th Cong. (2011); Employment Non-Discrimination Act of 2013, H.R. 1755, 113th Cong. (2013); Employment NonDiscrimination Act of 2013, S. 815, 113th Cong. (2013); Equality Act, H.R. 3185, 114th Cong. (2015); Equality Act, S. 1858, 114th Cong. (2015); Equality Act, H.R. 2282, 115th Cong. (2017); Equality Act, S. 1006, 115th Cong. (2017).
4 E.g., 34 U.S.C. 12291(b)(13)(A) (prohibiting discrimination based on “sex” and “gender identity”) (language added via the Violence Against Women Reauthorization Act of 2013, Pub. Law 113–4); 18 U.S.C. 249(a)(2) (prohibiting crimes committed because of “gender” or “gender identity”) (language added via the National Defense Authorization Act for Fiscal Year 2010, Pub. Law 111–84); 34 U.S.C. 30503(a)(1)(C) (authorizing the Attorney General to assist in prosecuting crimes motivated by “gender” or “gender identity”) (language added via the National Defense Authorization Act for Fiscal Year 2010).

9
their sex, including on the basis of gender identity.” Id. at 168a.5
Harris Homes moved to dismiss. The district court agreed that “[t]here is no Sixth Circuit or Supreme Court authority to support the EEOC’s position that transgender status is a protected class under Title VII.” App. 173a. But the court found Sixth Circuit support for the EEOC’s alternative theory—“a sex-stereotyping gender-discrimination claim” based on this Court’s plurality opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). App. 183a. The court declined to dismiss that claim. Id. at 187a.
After discovery and cross-motions for summary judgment, the district court ruled for Harris Homes. The court reiterated that the EEOC could not prevail on its claim “that Stephens’s termination was due to transgender status or gender identity—because those are not protected classes.” App. 83a. But the EEOC raised a viable sex-stereotyping claim because the Sixth Circuit in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), had expanded those claims “further than other courts”—going so far as to create Title VII protection for “men who wear dresses.” Id. at 108a, 117a–118a.
Despite this, the district court ruled for Harris Homes because the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb, prohibits the EEOC
5 The EEOC also claimed that Harris Homes violated Title VII by providing a more valuable “clothing allowance” to its male employees. App. 167a. Neither the district court nor the court of appeals has addressed the merits of that claim, and it is not the subject of this petition.

10
from applying “Title VII, and the body of sexstereotyping case law that has developed under it, under the facts and circumstances of this unique case.” App. 142a. Since Rost cannot in good conscience “support the idea that sex is a changeable social construct,” forcing him to allow a male funeral director to present as a woman while representing Harris Homes “would impose a substantial burden” on Rost’s ability “to conduct his business in accordance with his sincerely-held religious beliefs.” Id. at 125a.
E. Sixth Circuit Ruling
The Sixth Circuit allowed Stephens to intervene on appeal because of a “concern that changes in policy priorities within the U.S. government might prevent the EEOC from fully representing Stephens’s interests.” App. 12a–13a. The court then reversed and ordered judgment for the EEOC. Id. at 81a.
The Sixth Circuit held that, under Price Waterhouse, employers engage in unlawful sex stereotyping when they administer sex-specific policies according to their employees’ sex instead of their gender identity. App. 15a–18a. Because the EEOC did not challenge Harris Homes’ dress code, the alleged stereotype was not “requiring men to wear pant suits and women to wear skirt suits,” but declining to treat a male employee who professes a female gender identity as a woman. Id. at 18a. Although classifying all employees consistently with their sex does not disparately affect men or women, the court rejected Price Waterhouse’s requirement that a plaintiff prove “disparate treatment of men

11
and women,” id. at 15a, because it could not “be squared with” the Sixth Circuit’s prior decision in Smith, id. at 20a–21a.
The Sixth Circuit then judicially amended the word “sex” in Title VII to mean “gender identity” and held that “discrimination on the basis of transgender . . . status violates Title VII.” App. 22a. As the court acknowledged, this went beyond what the Sixth Circuit previously held in Smith, id. at 27a, which did not “recognize Title VII protections for transgender persons based on identity,” id. at 32a.
The court gave two reasons for rewriting Title VII. For one, employers that apply sex-specific policies based on their employees’ sex instead of their gender identity “necessarily” rely on “stereotypical notions of how sexual organs and gender identity ought to align.” App. 26a–27a. The Sixth Circuit thus treated the very idea of sex— which determines a person’s status as male or female based on reproductive anatomy and physiology—as an illicit stereotype.
In addition, the court said that “it is analytically impossible” to apply sex-specific policies to an employee who asserts a gender identity that differs from his sex “without being motivated, at least in part, by the employee’s sex.” App. 23a. The mere fact that the employer “consider[s] that employee’s biological sex . . . necessarily entails discrimination on the basis of sex.” Id. at 30a.
The court also held that Title VII protects “transitioning status,” App. 22a, and in so doing, left no doubt that it replaced “sex” with “gender identity,” see id. at 24a–26a. Its opinion did not say

12
that “a person’s sex can[] be changed”; in fact, it said that it “need not decide that issue.” Id. at 26a. Rather, it emphasized that “gender identity” changes—it is “fluid, variable, and difficult to define”—because it has an “internal genesis that lacks a fixed external referent,” and much like religion, should be “authenticat[ed]” through professions of identity rather than “medical diagnoses.” Id. at 24a–25a n.4.
The Sixth Circuit then dismissed the statutoryconstruction principles on which Harris Homes relied. It said that the word “sex” includes “gender identity” because “statutory prohibitions often go beyond the principal evil” that Congress sought to remedy. App. 28a (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)). It also found nothing probative in other federal statutes, like the Violence Against Women Act, 34 U.S.C. 12291(b)(13)(A), that expressly “prohibit discrimination on the basis of [both] ‘gender identity’” and “sex” because “Congress may certainly choose to use both a belt and suspender to achieve its objectives.” App. 31a. Nor was there any “significance,” the court said, in Congress’s long-running rejection of bills seeking “to modify Title VII to include . . . gender identity.” Id. at 31a–32a.
Finished judicially altering Title VII, the Sixth Circuit found that RFRA was not a defense. App. 41a–73a. Forcing Rost to violate his religious beliefs and pressuring him to give up his ministry to the grieving does not “substantially burden” his religious exercise. Id. at 46a–56a. Accordingly, the Sixth Circuit granted “summary judgment to the EEOC on its unlawful-termination claim.” Id. at 81a.

13
REASONS FOR GRANTING THE PETITION
The Court should grant this petition for four reasons. First, the circuits are split into three camps on whether “sex” in Title VII means “gender identity” and includes “transgender status.” One group says it does not. Another takes the same position, but subsequent case law casts doubt on that. And in the final category is the Sixth Circuit’s decision judicially amending “sex” to mean “gender identity.”
Second, the Sixth Circuit’s opinion conflicts with—and substantially distorts—this Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Price Waterhouse plurality recognized that impermissible sex discrimination occurs when an employer treats one sex better than the other, and it identified an employer’s reliance on sex stereotypes as one way of evidencing such discrimination. See id. at 250–51. But the Sixth Circuit departed from Price Waterhouse’s guidance by treating sex as if it were itself a stereotype and by rejecting the plurality’s recognition that any action challenged on sex-stereotyping grounds must result in “disparate treatment” favoring one sex over the other. Id. at 251. That decision adds to an incomprehensible mishmash of circuit-court cases attempting to apply Price Waterhouse—a jumble that has been decades in the making. The need for clarity is long overdue.
Resolution of these circuit conflicts is urgently needed. The issues presented do not warrant further percolation because each new decision only breeds more division and confusion. Employers, employees,

14
governments, schools, lower courts, and attorneys need clarification now. It is untenable that courts are resolving claims differently depending entirely on the circuit where they arose. If Harris Homes’ arguments are correct, courts are subjecting employers in some states to liability that federal law does not impose. And if the EEOC is right, courts in other states are rejecting claims that should be allowed to proceed. Either way, this Court’s immediate intervention is required.
Third, the decision below defies this Court’s principles of statutory construction. The court of appeals does not ground its analysis in the statutory term “sex” as understood in 1964, opting to read Title VII as if Congress used the term “gender identity” instead. Nor does the decision give sufficient weight to related federal statutes, Congress’s repeated rejection of bills attempting to add “gender identity” to Title VII, or the judicial and administrative consensus that Congress ratified when it reenacted Title VII in 1991.
Finally, the Sixth Circuit’s startling decision to change what it means to be male and female will have widespread consequences. It threatens to drive out sex-specific policies—ranging from living facilities and dress codes to locker rooms and restrooms—in employment and public education. It undermines critical efforts to advance women’s employment and educational opportunities. And it imperils freedom of conscience. The sweeping implications of the Sixth Circuit’s ruling counsel strongly in favor of this Court’s granting review.

15
I. The circuits are irreconcilably split on whether “sex” in Title VII means “gender identity” and includes “transgender status.”
Three undisputed facts in this case put squarely before this Court the question whether “sex” in Title VII means “gender identity.” First, Stephens’s sex while employed at Harris Homes was male. App. 6a, 93a-94a. Second, Rost let Stephens go because Stephens’s plan to wear female clothing at work violated the company’s sex-specific dress code. Id. at 9a, 100a–01a. Third, that “dress code policy has not been challenged by the EEOC in this action.” Id. at 112a; see also id. at 18a (“We are not considering . . . whether the Funeral Home violated Title VII by requiring men to wear pant suits and women to wear skirt suits.”); id. at 21a, 66a–67a, 86a, 111a, 138a. Title VII allows Harris Homes’ straightforward enforcement of its unchallenged dress code unless the statute requires Rost to consider Stephens a woman. Such an obligation exists only if “sex” is rewritten to mean “gender identity” and include “transgender status.” On that question, the circuits are hopelessly split among three camps.
1. The circuits in the first group—the Eighth and Tenth—have held that Title VII does not include “gender identity” or “transgender status.” In 2007, the Tenth Circuit “agree[d] with . . . the vast majority of federal courts to have addressed this issue and conclude[d] [that] discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII.” Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir. 2007). The “plain

16
meaning of ‘sex’” refers to the “binary conception” of “male and female,” and employers violate Title VII’s ban on sex discrimination only when employees “are discriminated against because they are male or because they are female.” Id. at 1222.
The Eighth Circuit has likewise concluded that “discrimination based on one’s transsexualism does not fall within the protective purview of [Title VII].” Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (per curiam). Expressing “agreement with the district court,” ibid., the Eighth Circuit quoted its rationale:
[T]he Court does not believe that Congress intended by its laws prohibiting sex discrimination to require the courts to ignore anatomical classification and determine a person’s sex according to the psychological makeup of that individual. The problems of such an approach are limitless. One example is the simple practical problem that arose here—which restroom should plaintiff use? [Id. at 749.]
2. The circuits in the second camp—the Seventh and Ninth—have previously determined that “sex” in Title VII does not include “gender identity” or “transgender status.” But subsequent case law construing other nondiscrimination laws has essentially said otherwise. In Ulane v. Eastern Airlines, Inc., the Seventh Circuit held that “Title VII is not so expansive in scope as to prohibit discrimination against transsexuals.” 742 F.2d 1081, 1087 (7th Cir. 1984). That ruling overturned the district court’s conclusion that the term “sex”

17
includes “sexual identity.” Id. at 1084. Refusing to rewrite Title VII, the Seventh Circuit recognized its proper role when construing statutes:
[T]o include transsexuals within the reach of Title VII far exceeds mere statutory interpretation. Congress had a narrow view of sex in mind when it passed the Civil Rights Act, and it has rejected subsequent attempts to broaden the scope of its original interpretation. For us to now hold that Title VII protects transsexuals would take us out of the realm of interpreting and reviewing and into the realm of legislating. [Id. at 1086.]
Yet recently, the Seventh Circuit distinguished Ulane and reached the opposite conclusion when construing the word “sex” in Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a). Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047 (7th Cir. 2017). The court announced that people who assert a gender identity in conflict with their sex now have categorical protection under Price Waterhouse because they, “[b]y definition,” do not “conform to the sex-based stereotypes of the[ir] sex” Id. at 1047–48. From that premise, the Seventh Circuit told public schools that they must regulate access to sex-specific facilities like locker rooms and restrooms based on gender identity instead of sex. Id. at 1049–50. It is hard to say that Ulane remains good law after Whitaker.

18
The Ninth Circuit’s story is similar. In Holloway v. Arthur Andersen & Co., it interpreted “sex” in Title VII according to “its plain meaning” and held that the statute does not include “transsexuals as a class” or “decision[s] to undergo sex change surgery.” 566 F.2d 659, 662, 664 (9th Cir. 1977). The court thus denied the claim of a plaintiff who alleged discriminatory treatment not “because she is male or female, but rather because she is a transsexual who chose to change her sex.” Id. at 664.
Years later, though, when interpreting the word “gender” in the Gender Motivated Violence Act, 34 U.S.C. 12361, the Ninth Circuit said that it was overruling Holloway. See Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000). The late Judge Reinhardt wrote that “Holloway has been overruled by the logic and language of Price Waterhouse,” and that “sex” under Title VII refers to more than “the biological differences between men and women.” Ibid. That decision dramatically altered the Ninth Circuit’s sex-discrimination jurisprudence.
3. In the third group is the Sixth Circuit, which has now definitively interpreted “sex” in Title VII to mean “gender identity” and include “transgender status.” App. 14a–15a, 22a, 28a, 30a, 35a–36a. Other circuits have similarly redefined “sex” in related nondiscrimination contexts. The Eleventh Circuit, for instance, used Price Waterhouse to hold that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination” that violates the Equal Protection Clause of the Fourteenth Amendment. Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011). In a Title IX case, the Third Circuit “concluded that discriminating

19
against transgender individuals constitutes sex discrimination.” Doe by & through Doe v. Boyertown Area Sch. Dist., 893 F.3d 179, 199 (3d Cir. 2018). And the Fourth Circuit, applying Auer deference principles, reached a similar conclusion in a nowvacated decision, see G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 720–23 (4th Cir. 2016), vacated by 137 S. Ct. 1239 (2017), which lower courts in the circuit—including the district court in that very case—continue to treat as “binding law,” e.g., Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 743 n.6 (E.D. Va. 2018); M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 712 n.5 (D. Md. 2018).
4. Even the federal government is divided. On the one hand is the Department of Justice. In an October 4, 2017 Memorandum, the Attorney General announced that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” App. 193a. “‘Sex’ is ordinarily defined to mean biologically male or female,” the Attorney General explained, and “Congress has confirmed this ordinary meaning by expressly prohibiting, in several other statutes, ‘gender identity’ discrimination, which Congress lists in addition to, rather than within, prohibitions on discrimination based on ‘sex’ or ‘gender.’” Id. at 192a–93a. The Attorney General also declared that Title VII does not “proscribe[] employment practices (such as sex-specific bathrooms) that take account of the sex of employees but do not impose different burdens on similarly situated members of each sex.” Id. at 193a.

20
On the other hand is the EEOC. In 2012, it said that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.” Macy v. Holder, EEOC DOC 0120120821 (Apr. 20, 2012), 2012 WL 1435995, at *1. That decision “expressly overturn[ed]” the EEOC’s prior position, in place since at least 1984. Id. at *11 n.16; see, e.g., Casoni v. U.S. Postal Serv., EEOC DOC 01840104 (Sept. 28, 1984), 1984 WL 485399, at *3 (“allegation of sex discrimination on account of being a male to female preoperative transsexual” was not a “cognizable claim[] under the provisions of Title VII”). This lawsuit is an effort to write the EEOC’s new view into law.
This split of authority has had more than enough time to percolate. Federal courts have been addressing these questions since the late 1970s. See Holloway, 566 F.2d at 662–64. The circuit-court confusion emerged decades ago when courts began to misread Price Waterhouse. See Schwenk, 204 F.3d at 1201–02. And at least five circuits have decided the Title VII issue directly, while many others have addressed similar issues in related contexts. No more development in the lower courts is necessary.
Awaiting additional cases is particularly ill advised because the status quo forces employers, governments, and schools to apply core policies— such as access to living facilities, locker rooms, and restrooms, not to mention compliance with dress codes—differently based on where they find themselves. It is unsustainable that employers’ responsibilities under Title VII, governments’ obligations under the Equal Protection Clause, and schools’ duties under Title IX shift so dramatically

21
depending on the circuit in which they are located. Only this Court can resolve the cacophony of inconsistent pronouncements on the meaning of sex discrimination in federal law. It should do so now.
II. The Sixth Circuit’s decision misreads Price Waterhouse and adds to a confusing and inconsistent body of lower-court case law.
Price Waterhouse resolved a circuit split over— and the plurality’s holding addressed only—the burden that each party bears in Title VII mixedmotives cases. 490 U.S. at 232, 258. In its opinion, the plurality observed that the plaintiff there—a female employee seeking a promotion—proved sex discrimination through evidence that her employer made employment decisions based on stereotypes about women. Id. at 250–52, 255–58. Foremost among those stereotypes was “insisting” that women “must not be” “aggressive” in the workplace. Id. at 250–51; see also id. at 234–35, 256.
Title VII, the plurality said, forbids “disparate treatment of men and women resulting from sex stereotypes.” 490 U.S. at 251 (quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)) (emphasis added). Disparate treatment was obvious there because aggressive men were promoted and praised, while aggressive women were passed over and pushed down. Ibid. Such stereotyping placed female employees in an “impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.” Ibid.
The dissenting opinion “stress[ed] that Title VII creates no independent cause of action for sex stereotyping.” 490 U.S. at 294 (Kennedy, J.,

22
dissenting). Instead, “[e]vidence of use by decisionmakers of sex stereotypes is” a means of demonstrating “discriminatory intent” and disparate treatment. Ibid. Also, the two Justices who “concurred in the judgment only . . . said nothing about sex stereotyping as a ‘theory’ of sex discrimination.” Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 369 (7th Cir. 2017) (en banc) (Sykes, J., dissenting).
1. The Sixth Circuit’s application of Price Waterhouse conflicts with and distorts that case in two fundamental ways.
a. First, the Sixth Circuit rejected what the Price Waterhouse plurality said about disparate treatment favoring one sex over the other. The plurality condemned not all sex stereotypes in the workplace, but only the “disparate treatment of men and women resulting from sex stereotypes.” 490 U.S. at 251 (quoting Manhart, 435 U.S. at 707 n.13). Yet the Sixth Circuit rejected the requirement that plaintiffs prove “disparate treatment” advantaging one sex because it could not “be squared with” that court’s own precedent. App. 20a–21a.
By erasing that requirement, the Sixth Circuit unmoored Price Waterhouse from Title VII’s text, which prohibits “discriminat[ion] . . . because of . . . sex,” and it perpetuated the notion that sex stereotyping is an independent cause of action. Cf. Price Waterhouse, 490 U.S. at 294 (Kennedy, J., dissenting) (“Title VII creates no independent cause of action for sex stereotyping.”); Hively, 853 F.3d at 369 (Sykes, J., dissenting) (same). That, in turn, led the court of appeals to announce a federal right for

23
men to “wear dresses” at work. App. 16a; cf. Hamm v. Weyauwega Milk Prod., Inc., 332 F.3d 1058, 1067 (7th Cir. 2003) (Posner, J., concurring) (rejecting “a subtype of sexual discrimination called ‘sex stereotyping’” that creates a “federally protected right for male workers to wear nail polish and dresses”). This Court should grant review and clarify that Price Waterhouse did not establish a freestanding claim of sex stereotyping that treats as irrelevant whether one sex is favored over the other.
b. Second, the Sixth Circuit’s decision adopted a bewildering view of sex stereotyping. It denounced as stereotyping all sex-specific policies administered according to sex instead of gender identity. See App. 26a–27a (decrying “stereotypical notions of how sexual organs and gender identity ought to align”). The court thus deemed the very idea of sex—which determines a person’s status as male or female based on reproductive anatomy and physiology—as itself a stereotype.
But denouncing “sex as a stereotype” is not the same as identifying “a sex stereotype.” Declaring the former undoes Title VII, while rooting out the latter when it burdens one sex more than the other furthers the statute’s purpose. The Sixth Circuit’s view effectively condemns Congress for stereotyping by even including “sex” in Title VII.
Nothing in Price Waterhouse suggests that sex itself is a stereotype. To the contrary, this Court’s cases firmly reject that it is. Sex-based “stereotype[s]” consist of “fictional difference[s] between men and women,” such as the “assumption[]” that women cannot “perform certain kinds of work.”

24
Manhart, 435 U.S. at 707. In contrast, this Court has squarely held that “[p]hysical differences between men and women” relating to reproduction— the very features that determine sex—are not “gender-based stereotype[s].” Nguyen v. INS, 533 U.S. 53, 68 (2001).
Nor does Price Waterhouse insinuate that Title VII requires employers to treat their employees according to their professed gender identity rather than their biological sex. The plurality said that its “specific references to gender throughout th[e] opinion, and the principles [it] announce[d], apply with equal force to discrimination based on race.” 490 U.S. at 243 n.9. No one would suppose that the plurality ordered employers to agree that a white employee who identifies as black is actually African American. Insisting on the equivalent in the sex context shows how far the Sixth Circuit departed from what the Price Waterhouse plurality actually said.
2. The Sixth Circuit’s opinion adds to “a confusing hodgepodge” of Price Waterhouse decisions that have resulted from “an unfortunate tendency to read [the plurality’s opinion] for more than it’s worth.” Hively, 853 F.3d at 371 (Sykes, J., dissenting); see, e.g., Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1262 (11th Cir. 2017) (Rosenbaum, J., dissenting) (“Price Waterhouse rocked the world of Title VII litigation.”). Some circuits have used Price Waterhouse the same way that the Sixth Circuit did. The Third and Seventh Circuits, for example, recently interpreted Price Waterhouse to compel schools to administer sex-specific locker-room and restroom policies according to gender identity

25
instead of sex. Whitaker, 858 F.3d at 1047–50; Boyertown Area Sch. Dist., 893 F.3d at 198–99. And district courts in the Fourth Circuit have done likewise. Grimm, 302 F. Supp. 3d at 744–47; M.A.B., 286 F. Supp. 3d at 715–17.
Other circuits have properly recognized Price Waterhouse’s limits. “However far Price Waterhouse reaches,” the Tenth Circuit concluded, it does not “require[] employers to allow biological males to use women’s restrooms. Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.” Etsitty, 502 F.3d at 1224. The Tenth Circuit thus affirmed that employers may administer sex-specific policies according to their employees’ sex rather than their gender identity. And the Ninth Circuit—in a decision that the Sixth Circuit labeled “irreconcilable” with its own cases, App. 19a–20a—held that sex-specific dress and grooming policies that impose equal burdens on the sexes do not violate Price Waterhouse. Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104, 1111–13 (9th Cir. 2006) (en banc).
This Court’s review is needed to address these conflicting circuit decisions and bring clarity to the muddled mess that has become Price Waterhouse’s legacy.
III. The Sixth Circuit’s decision conflicts with this Court’s directives on statutory construction.
When construing Title VII, as with all statutes, “the starting point” for interpretation “is the statutory text.” Desert Palace, Inc. v. Costa, 539 U.S.

26
90, 98 (2003). “It is a ‘fundamental canon of statutory construction’ that, ‘unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning’” when they were enacted. Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). To illustrate, the fact that the word “blockbuster” meant a large bomb in the early 20th century and refers to a hit movie today, see Viacom Inc. v. Ingram Enters., Inc., 141 F.3d 886, 891–92 (8th Cir. 1998), does not mean that a 1930s ban on citizen possession of “blockbusters” now prohibits possession of DVDs.
1. Title VII forbids discrimination “because of . . . sex.” 42 U.S.C. 2000e-2(a)(1). “In common, ordinary usage in 1964—and now, for that matter— the word ‘sex’ means biologically male or female,” Hively, 853 F.3d at 362 (Sykes, J., dissenting), as objectively determined by anatomical and physiological factors, particularly those involved in “reproductive functions,” G.G., 822 F.3d at 736 (Niemeyer, J., dissenting) (collecting dictionaries); see also note 1, supra (collecting sources).
The Sixth Circuit ignored this undisputed definition. Instead, it assumed that “sex,” as understood in 1964, meant “gender identity.” That is impossible. Not only is gender identity—defined by the EEOC as the “inner sense of being male or female,” App. 204a—very different from sex, see p. 30, infra, it was a nascent concept when Congress enacted Title VII, see Haig, supra, at 93 (“gender identity” was first introduced at a European medical conference in 1963). It is only through “judicial interpretive updating,” Hively, 853 F.3d at 353

27
(Posner, J., concurring)—not faithful statutory construction—that courts have begun recasting “sex” to mean “gender identity.”
The Sixth Circuit rejected this Court’s text-based method of statutory construction because “statutory prohibitions often go beyond the principal evil” that Congress sought to address. App. 28a (quoting Oncale, 523 U.S. at 79). True enough. But that is no excuse for ignoring the text. As this Court explained in Oncale, Title VII’s language is the ultimate guide when construing that statute. 523 U.S. at 79.
Attempting a textual argument, the Sixth Circuit insisted that Harris Homes “discriminate[d] . . . because of . . . sex,” 42 U.S.C. 2000e-2(a)(1), since it had to “consider[] [Stephens’s] biological sex” when applying its dress code. App. 30a; accord id. at 23a– 24a. But “it is not the case that any employment practice that can only be applied by identifying an employee’s sex is prohibited.” Zarda v. Altitude Express, Inc., 883 F.3d 100, 151 (2d Cir. 2018) (en banc) (Lynch, J., dissenting). That would carry in “ramifications that are sweeping and unpredictable,” including the effective invalidation of sex-specific living facilities, locker rooms, and restrooms. Id. at 134 (Jacobs, J., concurring). The proper application of Title VII, instead, is that employers only “discriminate . . . because of . . . sex” when they treat one sex better than the other. Manhart, 435 U.S. at 707 n.13 (requiring “disparate treatment [between] men and women”); Price Waterhouse, 490 U.S. at 251 (plurality) (same); Oncale, 523 U.S. at 78 (same).

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2. “When interpreting a statute, [this Court] examine[s] related provisions in other parts of the U.S. Code.” Boumediene v. Bush, 553 U.S. 723, 776 (2008). For statutes that address discrimination, the analysis often considers other nondiscrimination provisions. E.g., Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174–75 (2009) (considering Title VII when interpreting the Age Discrimination in Employment Act); Desert Palace, 539 U.S. at 99 (considering other provisions in Title 42 when construing Title VII).
Congress has enacted multiple nondiscrimination laws listing either “sex” or “gender” alongside “gender identity.” E.g., 34 U.S.C. 12291(b)(13)(A); 18 U.S.C. 249(a)(2); 34 U.S.C. 30503(a)(1)(C). When Congress wants to prohibit discrimination based on gender identity, “it knows exactly how to do so.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1626 (2018). And when Congress uses the term “sex,” it does not mean “gender identity,” lest federal nondiscrimination law be imbued with “surplusage,” Duncan v. Walker, 533 U.S. 167, 174 (2001), and “redundan[cy],” Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995). The Sixth Circuit ignored the established rule against reading redundancy into statutes, choosing instead to adopt the contradictory and heretofore unknown interpretive canon of “belt-andsuspenders [legislative] caution.” App. 31a.
3. This Court has recognized that Congress’s uniform rejection of “numerous and persistent” legislative proposals sheds some light on the meaning of existing statutes. E.g., Flood v. Kuhn, 407 U.S. 258, 281–84 (1972) (“Congress, by its positive inaction, . . . clearly evinced a desire” not to change the law). Even the Price Waterhouse plurality

29
cited, as support for its statutory interpretation, Congress’s decision not to adopt “an amendment” to Title VII. 490 U.S. at 241 n.7. But the Sixth Circuit found no “significance” in Congress’s repeated rejection of bills seeking to add “gender identity” to Title VII. App. 31a–32a; see note 3, supra (collecting bills). Though the failure to enact those proposals is not dispositive, it surely “means something,” Zarda, 883 F.3d at 155 (Lynch, J., dissenting), and bolsters the case against interpreting the word “sex” to mean “gender identity.”
4. Finally, “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 382 n.66 (1982); accord Texas Dep’t of Hous. and Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2520 (2015) (“If a word or phrase has been given a uniform interpretation by inferior courts, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.”) (cleaned up).
Congress reenacted Title VII in 1991. Civil Rights Act of 1991, Pub. Law 102–166. At that time, the unbroken consensus of the circuits—as well as the EEOC—was that “sex” in Title VII did not include gender-identity-based classifications like “transgender status.” Holloway, 566 F.2d at 662–64; Sommers, 667 F.2d at 749–50; Ulane, 742 F.2d at 1086–87; Casoni, 1984 WL 485399 at *3. While the 1991 amendment altered Title VII in myriad ways, it did not amend “sex” to mean “gender identity” or include “transgender status.” Congress is thus

30
presumed to have adopted the uniform judicial and administrative interpretation prevailing at the time. The Sixth Circuit erred in construing “sex” as though Congress had instead amended the statute.
IV. Interpreting “sex” to mean “gender identity”—as the Sixth Circuit did—will have far-reaching consequences.
By replacing “sex” with “gender identity” and denouncing sex as a stereotype, the Sixth Circuit brought about a seismic shift in the law. While “sex” views the status of male and female as an objective fact based in reproductive anatomy and physiology, “gender identity” treats it as a subjective belief determined by internal perceptions without “a fixed external referent.” App. 24a–25a n.4. Gender identity is, as the Sixth Circuit acknowledged, “fluid, variable,” “difficult to define,” and “authenticat[ed]” by simple professions of belief instead of “medical diagnoses.” Ibid.; cf. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (sex “is an immutable characteristic determined solely by the accident of birth”). It is not limited to the binary choice between male and female, but includes other categories like gender-fluid, genderless, and many others. DSM–5 451. Trading “gender identity” for “sex” is a sea change in the law.
1. One immediate impact of that change is that federal law now forbids employers and public schools from administering sex-specific policies like dress codes, living facilities, locker rooms, and restrooms

31
based on sex.6 Just two years ago, this Court granted review in a similar case where the Fourth Circuit prohibited a school board from regulating access to restrooms based on sex. Gloucester Cty. Sch. Bd. v. G.G., 137 S. Ct. 369 (2016). While changed circumstances there prompted a remand before this Court reached the merits, see 137 S. Ct. 1239 (2017), granting review here would raise similar issues about the meaning of “sex” in federal nondiscrimination law.
The Sixth Circuit’s mandate that organizations enforce their sex-specific policies based on gender identity raises a host of problems. For one, it fosters inconsistency and opens the door to manipulation. Anyone—not just those with “medical diagnoses”— can profess a gender identity that conflicts with their sex. App. 24a–25a n.4. And as Stephens admitted during deposition, if an employer allows a male employee “to present as a woman,” it must permit him to “go[] back to present[ing] as a man later on.” Id. at 200a.
Stephens’s testimony also demonstrates that where gender identity is the prevailing construct, “sex” becomes a mere collection of stereotypes, and employers are forced to engage in stereotyping. Stephens testified that while Harris Homes ordinarily must permit “a male funeral director . . .
6 The decision here, resolved under Title VII, affects public schools under Title IX because the lower courts regularly consult Title VII case law when applying Title IX. E.g., Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016) (per curiam) (citing Title VII cases in the Title IX context); G.G., 822 F.3d at 718 (“We look to case law interpreting Title VII . . . for guidance in evaluating a claim brought under Title IX.”).

32
to present as [a] woman at work,” it need not allow that if he is “bald” with a “neatly trimmed beard and mustache.” App. 200a–01a. Stephens justified this disparity because that employee’s appearance “doesn’t meet the expectations” of what a female “[t]ypically” looks like. Id. at 201a. When asked “[w]hat meets th[ose] expectations,” Stephens replied: “Your guess is as good as mine.” Ibid.
According to Stephens, then, if employees fail to “adhere to the part [they are] professing to play,” their employer may decline to recognize their gender identity. App. 202a. In other words, employers like Harris Homes must consider Stephens a woman because Stephens planned to conform to enough female stereotypes, but they could treat differently another employee who did not. Administering policies under that regime requires decisionmaking based on sex stereotypes. It will entrench rather than eradicate them.
The specific implications of the Sixth Circuit’s ruling for sex-specific living facilities, locker rooms, and restrooms raise fundamental privacy concerns. See United States v. Virginia, 518 U.S. 515, 550 n.19 (1996) (discussing “alterations necessary” in living facilities “to afford members of each sex privacy from the other sex”). For employers and public-school officials that want to protect privacy interests, the decision “will require novel changes to . . . restrooms and locker rooms.” Dodds, 845 F.3d at 224 (Sutton, J., dissenting). By short-circuiting the legislative process, the court of appeals kept Congress from addressing those sensitive issues before they arose. See, e.g., N.M. Stat. Ann. § 28-1-9(E) (exempting sexspecific “sleeping quarters,” “showers,” and

33
“restrooms” from the state’s nondiscrimination law); Wis. Stat. § 106.52(3)(b)–(c) (same); 775 Ill. Comp. Stat. 5/5-103(B) (similar).
2. Equally important, the Sixth Circuit’s decision undermines the primary purpose for banning discrimination based on sex—to ensure “equal opportunities” for women, Sommers, 667 F.2d at 750, and “eliminate workplace inequalities that [have] held women back from advancing,” Zarda, 883 F.3d at 145 (Lynch, J., dissenting); see also Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971) (“The objective of Congress . . . was to achieve equality of employment opportunities”). Employment reserved for women—like playing in the WNBA or working at a shelter for battered women, see 42 U.S.C. 2000e-2(e)(1) (authorizing sex as a bona fide occupational qualification)—now must be opened to males who identify as women. The same is true of sports and educational opportunities under Title IX. The Sixth Circuit’s ruling impedes women’s advancement.
3. Substituting “gender identity” for “sex” in nondiscrimination laws also threatens freedom of conscience. Statutes interpreted that way have the effect, for instance, of forcing doctors to participate in—or employers to pay for—surgical efforts to alter sex in violation of their deeply held beliefs. See Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660, 691–93 (N.D. Tex. 2016) (concluding that a regulation likely violated RFRA by announcing that “sex” in the Patient Protection and Affordable Care Act’s nondiscrimination provision, 42 U.S.C. 18116(a), means “gender identity”).

34
And some governments have used those laws to mandate that employers, teachers, students, and others speak pronouns and similar sex-identifying terminology that conflicts with their conscience. E.g., N.Y.C. Comm’n on Human Rights, Legal Enf’t Guidance on Discrimination on the Basis of Gender Identity or Expression (June 28, 2016), available at https://on.nyc.gov/2KRC7e8 (requiring “employers and covered entities to use an individual’s preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individual’s sex assigned at birth, anatomy, . . . or the sex indicated on the individual’s identification”).
This very case involves freedom-of-conscience concerns. As the district court explained, accepting the EEOC’s claim compels Rost—a devout man of faith—to violate his sincere religious beliefs about the immutability of sex. App. 121a–26a.
In sum, the Sixth Circuit ushered in a profound change in federal law accompanied by widespread legal and social ramifications. The stakes are too great—and the impacts on third parties too substantial—for this Court to let that decision go unreviewed.
V. This case is an ideal vehicle for addressing the important questions presented.
This case raises pure questions of law, and no material facts are disputed, not even the reason why Rost parted ways with Stephens. The Court should use this case as the vehicle for bringing clarity to sex-discrimination jurisprudence.

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Two petitions for a writ of certiorari pending before this Court raise a similar (but different) question: whether “sex” in Title VII encompasses “sexual orientation.” See Altitude Express, Inc. v. Zarda, Pet. for a Writ of Cert. at i (No. 17–1623) (May 29, 2018), and Bostock v. Clayton Cty., Pet. for a Writ of Cert. at i (No. 17–1618) (May 25, 2018). While the questions presented in all three of these cases are important, the issues raised in this one are particularly pressing. The sexual-orientation cases seek to expand what is included in the term “sex,” whereas this case attempts to transform what “sex” means by replacing it with “gender identity.” The fallout of that redefinition threatens far-reaching consequences, which should not be imposed without this Court’s approval. See section IV, supra. Accordingly, the Court should grant review here even if it takes up one of the sexual-orientation cases.

36
CONCLUSION The petition for a writ of certiorari should be granted.

Respectfully submitted,

KRISTEN K. WAGGONER DAVID A. CORTMAN GARY S. MCCALEB JAMES A. CAMPBELL
Counsel of Record JEANA HALLOCK ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 jcampbell@ADFlegal.org

JOHN J. BURSCH BURSCH LAW PLLC 9339 Cherry Valley
Avenue SE, #78 Caledonia, MI 49316 (616) 450-4235 jbursch@burschlaw.com

July 2018

Counsel for Petitioner

 
 No. 18-107
In the Supreme Court of the United States
R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
PETITIONER
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION
NOEL J. FRANCISCO Solicitor General Counsel of Record
JOSEPH H. HUNT Assistant Attorney General
JOHN M. GORE Acting Assistant Attorney General
ERIC TREENE Special Counsel
CHARLES W. SCARBOROUGH STEPHANIE R. MARCUS
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTIONS PRESENTED
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., makes it an “unlawful employment practice for an employer * * * 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,” inter alia, “such individual’s * * * sex.” 42 U.S.C. 2000e-2(a)(1). Petitioner operates private funeral homes that maintain a sex-specific dress code for employees who interact with the public. Petitioner terminated an employee, who was biologically male, after the employee informed petitioner that the employee intended to transition from male to female and to dress as a female. The court of appeals held that petitioner had thereby discriminated against the employee because of the employee’s sex in violation of Title VII by applying its dress code based on the employee’s biological sex rather than the employee’s gender identity. The court additionally held that discrimination based on an individual’s gender identity “is necessarily discrimination on the basis of sex” that always violates Title VII. Pet. App. 15a. The questions presented are as follows:
1. Whether the court of appeals erred in concluding that petitioner discriminated against the employee “because of ” the employee’s “sex” by applying its sexspecific dress code based on the employee’s biological sex rather than the employee’s gender identity.
2. Whether discrimination against an individual because of the individual’s gender identity constitutes discrimination “because of such individual’s * * * sex,” 42 U.S.C. 2000e-2(a)(1), in violation of Title VII.
(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statement ...................................................................................... 2 Argument..................................................................................... 11 Conclusion ................................................................................... 25

TABLE OF AUTHORITIES

Cases:
Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001), cert. denied, 534 U.S. 1155 (2002) ..................................... 13
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) ........ 13 City of L.A. Dep’t of Water & Power v. Manhart,
435 U.S. 702 (1978).............................................................. 18 DeSantis v. Pacific Tel. & Tel. Co.,
608 F.2d 327 (9th Cir. 1979), abrogated on other grounds, Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001) ............................................... 13 Doe ex rel. Doe v. Boyertown Area Sch. Dist.:
893 F.3d 179 (3d Cir.), vacated on reh’g, 897 F.3d 515 (3d Cir.), and superseded by 897 F.3d 518 (3d Cir. 2018) ...... 24
897 F.3d 518 (3d Cir. 2018) ............................................. 24 Etsitty v. Utah Transit Auth.,
502 F.3d 1215 (10th Cir. 2007) ........................................... 23 Evans v. Georgia Reg’l Hosp.,
850 F.3d 1248 (11th Cir.), cert. denied, 138 S. Ct. 557 (2017) ..................................... 14

(III)

IV

Cases—Continued:

Page

G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239 (2017)................. 24
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) .............. 24
Gloucester Cnty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 1239 (2017) ......................................................... 24
Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058 (7th Cir. 2003), overruled by, Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (2017) ............................................................. 13
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) ............................................... 13
Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) ............................... 9, 14, 15, 17
Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) ............................................... 23
Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006).......................................8, 18
Medina v. Income Support Div., 413 F.3d 1131 (10th Cir. 2005) ........................................... 14
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ........................................... 10, 18, 21, 22
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ........................................... 6, 12, 18, 20
Sandifer v. United States Steel Corp., 571 U.S. 220 (2014).............................................................. 17
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) .......... 24
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), overruled by, Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), petition for cert. pending, No. 17-1623 (filed May 29, 2018) ............................................................ 13
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ........ 7

V

Cases—Continued:

Page

Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982) ............................................... 23
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) ..................................... 23
Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006), cert. denied, 551 U.S. 1104 (2007) ..................................... 13
Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), cert. dismissed, 138 S. Ct. 1260 (2018).............................. 24
Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989), cert. denied, 493 U.S. 1089 (1990) ..................................... 13
Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138 (4th Cir. 1996) ................................................. 13
Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), petition for cert. pending, No. 17-1623 (filed May 29, 2018) ........................................ 10, 14, 15, 17

Constitution and statutes:

U.S. Const. Amend. XIV (Equal Protection Clause)....... 24 Civil Rights Act of 1964, Tit. VII,
42 U.S.C. 2000e et seq. ............................................ passim 42 U.S.C. 2000e ................................................................ 16 42 U.S.C. 2000e-2(a)(1) ..............................5, 11, 13, 16, 19
Civil Rights Remedies for Gender-Motivated Violence Act, 34 U.S.C. 12361 (Supp. V 2017) (formerly 42 U.S.C. 13981) ................................................ 24
Education Amendments of 1972, Tit. IX, 20 U.S.C. 1681 et seq. ...................................................... 24

VI

Statutes—Continued:

Page

Religious Freedom Restoration Act of 1993, (42 U.S.C. 2000bb et seq.)..................................................... 6
18 U.S.C. 249(a)(2)(A)........................................................ 17 18 U.S.C. 249(c)(4) ............................................................. 17 34 U.S.C. 12291(b)(13)(A) (Supp. V 2017) ........................ 17

Miscellaneous:
Webster’s New International Dictionary (2d ed. 1958)......................................................................... 17

In the Supreme Court of the United States
No. 18-107 R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
PETITIONER
v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-81a) is reported at 884 F.3d 560. The opinion and order of the district court granting summary judgment to petitioner (Pet. App. 82a-161a) is reported at 201 F. Supp. 3d 837. The amended opinion and order of the district court denying petitioner’s motion to dismiss (Pet. App. 162a-187a) is reported at 100 F. Supp. 3d 594.
JURISDICTION
The judgment of the court of appeals was entered on March 7, 2018. On May 16, 2018, Justice Kagan extended the time within which to file a petition for a writ of certiorari to and including August 3, 2018, and the petition was filed on July 20, 2018. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
(1)

2
STATEMENT
1. a. Petitioner is a family-owned, for-profit corporation that operates funeral homes at several locations in Michigan. Pet. App. 90a. The principal owner, Thomas Rost, is a Christian who believes “ ‘that God has called him to serve grieving people’ and ‘that his purpose in life is to minister to the grieving.’ ” Id. at 6a (citation omitted). Petitioner’s website includes a mission statement providing that its “highest priority is to honor God in all that we do as a company and as individuals,” but petitioner, which is not affiliated with a specific church, hires employees and serves clients of all faiths. Ibid. (citation omitted); see id. at 6a-7a.
Petitioner has adopted a sex-specific dress code for its employees who interact with the public. Pet. App. 7a. The dress code requires male employees to wear suits and ties and female employees to wear skirts and business jackets. Ibid. In petitioner’s view, “[m]aintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.” Id. at 198a; see id. at 91a, 140a, 196a; Pet. 3-4. Petitioner provides suits and ties for male employees and currently provides a clothing stipend to female employees. Pet. App. 7a-8a.1
Petitioner “administers its dress code based on [its] employees’ biological sex, not based on their subjective gender identity.” Pet. App. 198a. Rost, the principal owner, “ ‘sincerely believes that the Bible teaches that a person’s sex is an immutable God-given gift,’ and that he would be ‘violating God’s commands if he were to
1 At the time this suit was filed in September 2014, petitioner did not provide clothing or a clothing stipend to female employees. Pet. App. 7a. In October 2014, petitioner began providing female employees a clothing stipend. See id. at 7a-8a.

3
permit one of the Funeral Home’s funeral directors to deny their sex while acting as a representative of the organization.’ ” Id. at 9a (brackets and citation omitted). In Rost’s view, “authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit ‘in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.’ ” Ibid. (citation omitted).
b. Respondent Stephens was employed by petitioner from 2007 to 2013, first as an apprentice and later as a funeral director and embalmer. Pet. App. 5a. Stephens “was born biologically male,” with the name William Anthony Beasley Stephens, and Stephens presented as a male when Stephens began working at petitioner’s funeral home and for more than five years thereafter. Id. at 3a; see id. at 5a-6a. Stephens now identifies as a transgender woman and uses the name Aimee Stephens. Id. at 3a, 5a, 8a.
In 2013, Stephens submitted a letter to petitioner stating that Stephens had “struggled with ‘a gender identity disorder’ her ‘entire life,’ ” “ha[d] ‘decided to become the person that her mind already is,’ ” and “ ‘intend[ed] to have sex reassignment surgery.’ ” Pet. App. 8a (brackets and citations omitted); see id. at 94a. Stephens further stated that “the first step [Stephens] must take [wa]s to live and work full-time as a woman for one year, ” and that, following a planned vacation, Stephens “w[ould] return to work as [Stephens’s] true self, Amiee [sic] Australia Stephens, in appropriate business attire.” Id. at 95a (citation and emphasis omitted). Stephens intended to comply with petitioner’s dress code applicable to female employees, requiring a skirt and suit jacket. See ibid.

4
Several weeks later, before Stephens departed for the planned vacation, Rost terminated Stephens’s employment. Pet. App. 9a; see id. at 95a-96a. Rost told Stephens that “this is not going to work out,” id. at 9a (citation omitted), and “Stephens’s understanding from” the conversation with Rost “was that ‘coming to work dressed as a woman was not going to be acceptable,’ ” id. at 96a (citation omitted). According to petitioner, Rost was concerned that permitting Stephens to dress as a female in violation of petitioner’s dress code would have “ ‘disrupted the grieving and healing process’ of ‘clients mourning the loss of their loved ones,’ ” and also “that female clients and staff would be forced to share restroom facilities with Stephens.” Pet. 5 (quoting Pet. App. 198a) (brackets omitted). Rost averred that he “would not have dismissed Stephens if Stephens had expressed to Rost a belief that [Stephens] is a woman and an intent to dress or otherwise present as a woman outside of work, so long as [Stephens] would have continued to conform to the dress code” at work, and that “[i]t was Stephens’s refusal to wear the prescribed uniform and intent to violate the dress code while at work that was the decisive consideration in [Rost’s] employment decision.” Pet. App. 104a-105a (brackets and citations omitted). Petitioner offered Stephens a severance package, which Stephens declined. Id. at 9a.
2. a. Stephens filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC), stating that Stephens believed the firing was due to Stephens’s “sex and gender identity, female.” Pet. App. 97a (citation omitted). After investigating, the EEOC issued a letter of determination finding reasonable cause to believe that petitioner had discharged Stephens based on sex and gender identity in violation of

5
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. See Pet. App. 10a. As relevant here, Title VII makes it an “unlawful employment practice for an employer * * * 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 * * * sex.” 42 U.S.C. 2000e-2(a)(1); see Pet. App. 10a.2
After efforts to resolve the matter through informal conciliation proved unsuccessful, the EEOC brought this suit against petitioner, alleging (as relevant) that petitioner’s termination of Stephens violated Title VII. Pet. App. 10a, 87a-88a, 162a-163a. The EEOC alleged that petitioner “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [petitioner’s] sex- or gender-based preferences, expectations, or stereotypes.” Id. at 87a-88a (quoting Am. Compl. ¶ 15).
b. Petitioner moved to dismiss the complaint for failure to state a claim under Title VII. Pet. App. 170a. The district court denied the motion, but it narrowed the scope of the claim on which the suit could proceed. See id. at 171a-184a. The court determined that the EEOC’s Title VII claim could not proceed on a theory that petitioner had terminated Stephens “based solely upon Stephens’s status as a transgender person.” Id. at 172a.
2 The EEOC’s complaint also alleged that petitioner had discriminated against female employees by providing a clothing benefit to male but not female employees. Pet. App. 163a. That claim is not at issue in this Court.

6
The court reasoned that, “like sexual orientation, transgender or transsexual status is currently not a protected class under Title VII.” Ibid.
The district court further determined, however, that the EEOC’s suit could proceed on a theory that petitioner had engaged in improper sex stereotyping. See Pet. App. 172a-184a. The court reasoned that, under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Sixth Circuit precedent, “a transgender person—just like anyone else—can bring a sex-stereotyping genderdiscrimination claim under Title VII.” Pet. App. 183a. The court concluded that, because the EEOC’s complaint also “alleged that Stephens’s failure to conform to sex stereotypes was the driving force behind [petitioner’s] decision to fire Stephens, the EEOC ha[d] sufficiently pleaded a sex-stereotyping gender-discrimination claim under Title VII.” Id. at 184a; see id. at 172a-173a, 183a-184a.
c. Following discovery, the parties filed cross-motions for summary judgment. Pet. App. 11a, 88a. The district court granted summary judgment for petitioner. Id. at 82a-161a. The court determined (as relevant) that the EEOC had presented “direct evidence to support a claim of employment discrimination,” and the court rejected petitioner’s contention “that its enforcement of its sexspecific dress code c[ould] not constitute impermissible sex stereotyping.” Id. at 110a-111a; see id. at 107a-118a. The court concluded, however, that petitioner was entitled to an “exemption from Title VII” based on the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq., “under the facts and circumstances of this unique case.” Pet. App. 87a; see id. at 118a-144a.

7
3. The EEOC appealed. Pet. App. 12a. On October 4, 2017, while the appeal was pending, the Attorney General issued a memorandum stating that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se,” and “Title VII is not properly construed to proscribe employment practices (such as sex-specific bathrooms) that take account of the sex of employees but do not impose different burdens on similarly situated members of each sex.” Id. at 193a; see id. at 191a-194a. The memorandum stated that “the Department of Justice will take that position in all pending and future matters.” Id. at 193a.
4. The court of appeals reversed. Pet. App. 1a-81a. a. The court of appeals held that “the district court correctly determined that Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII.” Pet. App. 14a; see id. at 15a-22a. The court of appeals explained that, under Price Waterhouse and circuit precedent, “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” Id. at 16a (quoting Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004)) (brackets omitted). The court determined that petitioner’s “decision to fire Stephens because Stephens was ‘no longer going to represent himself as a man’ and ‘wanted to dress as a woman’ falls squarely within the ambit of sex-based discrimination that Price Waterhouse and Smith forbid.” Ibid. (citation omitted). The court of appeals rejected petitioner’s contentions that “an employer does not engage in impermissible sex stereotyping when it requires its employees to conform to a sex-specific dress code” that “ ‘imposes equal burdens on men and women,’ ” and that “sex stereotyping

8
violates Title VII only when ‘the employer’s sex stereotyping resulted in disparate treatment of men and women.’ ” Pet. App. 17a, 20a (brackets, citations, and internal quotation marks omitted). The court stated that “[i]t is apparent from both Price Waterhouse and Smith that an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave.” Id. at 21a. The court held that “[petitioner’s] sex-specific dress code does not preclude liability under Title VII,” because—“[e]ven if [petitioner’s] dress code does not itself violate Title VII,” a question that was “not before” the court—petitioner could “not rely on its policy to combat the charge that it engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts [petitioner’s] perception of how she should appear or behave based on her sex.” Id. at 21a-22a.
The court distinguished the Ninth Circuit’s decision in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (2006) (en banc), which had rejected a Title VII claim challenging “a sex-specific grooming code that imposed different but equally burdensome requirements on male and female employees.” Pet. App. 17a. Although the court of appeals expressed disagreement with Jespersen’s reasoning on that issue, see id. at 19a-20a, the court stated that “the central issue in Jespersen * * * — whether certain sex-specific appearance requirements violate Title VII—[wa]s not before th[e] court,” and that it “[was] not considering, in this case, whether [petitioner] violated Title VII by requiring men to wear pant suits and women to wear skirt suits.” Id. at 18a. The court stated that here it was deciding instead “whether

9
[petitioner] could legally terminate Stephens, notwithstanding that she fully intended to comply with the company’s sex-specific dress code” corresponding to Stephens’s gender identity, “simply because she refused to conform to [petitioner’s] notion of her sex.” Ibid.
b. The court of appeals additionally concluded that the district court had erred in precluding the EEOC from pursuing its alternative theory that petitioner violated Title VII by “discriminat[ing] against” Stephens “on the basis of her transgender and transitioning status.” Pet. App. 14a; see id. at 22a-36a. The court of appeals stated that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex,” and therefore “the EEOC should have had the opportunity to prove that [petitioner] violated Title VII by firing Stephens because she is transgender and transitioning from male to female.” Id. at 14a-15a. The court stated that it reached this conclusion “[f ]or two reasons.” Id. at 23a.
First, the court of appeals stated that “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.” Pet. App. 23a; see id. at 23a-26a. Citing the Seventh Circuit’s decision in Hively v. Ivy Tech Community College, 853 F.3d 339 (2017) (en banc), the court explained that the relevant question is “whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code.” Pet. App. 24a. The court stated that “[t]he answer quite obviously is no,” and that fact, “in and of itself, confirm[ed] that Stephens’s sex impermissibly affected Rost’s decision to fire Stephens.” Ibid.

10
Second, the court of appeals stated that “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping.” Pet. App. 26a; see id. at 26a-31a. The court explained that “a transgender person is someone who ‘fails to act and/or identify with his or her gender,’ ” and therefore “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Id. at 26a-27a (citation omitted).
The court of appeals rejected petitioner’s argument that “the Congress enacting Title VII understood ‘sex’ to refer only to a person’s ‘physiology and reproductive role,’ and not a person’s ‘self-assigned gender identity.’ ” Pet. App. 28a (citation and internal quotation marks omitted). The court stated that “the drafters’ failure to anticipate that Title VII would cover transgender status is of little interpretive value, because ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.’ ” Id. at 28a-29a (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998), and citing Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc), petition for cert. pending, No. 17-1623 (filed May 29, 2018)). The court further observed that Price Waterhouse “preclude[s] an interpretation of Title VII that reads ‘sex’ to mean only individuals’ ‘chromosomally driven physiology and reproductive function.’ ” Id. at 29a (citation omitted).
c. The court of appeals further concluded that the district court had erred in finding that petitioner was entitled to an exemption from Title VII’s requirements in these circumstances under RFRA. Pet. App. 41a-73a. In this Court, petitioner has not sought review of that determination. See Pet. i, 13-35.

11
ARGUMENT
Petitioner contends (Pet. 21-25) that the court of appeals erred in concluding that petitioner discriminated against Stephens because of sex by applying its sex-specific dress code based on Stephens’s biological sex, rather than Stephens’s gender identity. Petitioner additionally contends (Pet. 15-21, 25-34) that the court erred in concluding that the EEOC should have been permitted to pursue its alternative theory that discrimination based on an individual’s gender identity necessarily constitutes discrimination “because of such individual’s * * * sex,” 42 U.S.C. 2000e-2(a)(1), and that its conclusion conflicts with decisions of other circuits.
Two other petitions for writs of certiorari that are pending before the Court and that have been fully briefed present a related question on which a deep and entrenched circuit conflict exists: whether discrimination because of an individual’s sexual orientation constitutes discrimination “because of such individual’s * * * sex,” 42 U.S.C. 2000e-2(a)(1), in violation of Title VII. See Pet. for Cert. at i, 9-31, Altitude Express, Inc. v. Zarda, No. 17-1623 (filed May 29, 2018); Pet. for Cert. at i, 12-32, Bostock v. Clayton Cnty., No. 17-1618 (filed May 25, 2018). If the Court grants plenary review in Zarda, Bostock, or both to address that question, its decision on the merits may bear on the proper analysis of the issues petitioner raises. The court of appeals here relied on the reasoning of decisions (including Zarda) holding that Title VII’s prohibition on sex discrimination extends to sexual-orientation discrimination. Accordingly, the Court should hold the petition in this case pending its disposition of the petitions in Zarda and Bostock and, if certiorari is granted in either or both of those cases, pending the Court’s decision on the merits.

12
If the Court denies review in Zarda and Bostock, the petition in this case should also be denied. To be sure, the United States disagrees with the court of appeals’ decision. As relevant here, the court’s analysis of whether petitioner engaged in improper sex stereotyping reflects a misreading of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court’s further conclusion that gender-identity discrimination necessarily constitutes discrimination because of sex in violation of Title VII—although it was unnecessary to the ultimate result the court reached in this case—is also inconsistent with the statute’s text and this Court’s precedent. Both of those questions are recurring and important.
If, however, the Court elects not to review the sexualorientation question presented in Zarda and Bostock, the gender-identity questions presented here would not appear to warrant this Court’s review at this time. The question presented in Zarda and Bostock implicates a much deeper and more entrenched circuit conflict on a similarly important and recurring question that nearly every circuit has addressed, and two courts of appeals sitting en banc have recently rejected the long-prevailing consensus view on that question. Fewer circuits have addressed the questions presented in this case, and the panel decision here appears to be the first court of appeals decision to conclude in a Title VII case that genderidentity discrimination categorically constitutes discrimination because of sex under that statute. If the Court determines that the question raised in Zarda and Bostock does not warrant plenary review at this time, the questions presented here would likewise not appear to warrant review at this juncture.

13
1. Both questions presented in the petition (Pet. i) concern the scope of Title VII’s prohibition on discrimination against an individual “because of such individual’s * * * sex.” 42 U.S.C. 2000e-2(a)(1). In particular, both questions center on whether and to what extent that prohibition encompasses discrimination based on an attribute other than an individual’s biological sex: the individual’s gender identity. The petitions for writs of certiorari that are pending before the Court in Zarda and Bostock, which have been fully briefed, present a similar question on which courts of appeals are deeply divided: whether treating employees differently because of another non-biological-sex attribute—an individual’s sexual orientation—constitutes sex discrimination in violation of Title VII. See Pet. for Cert. at i, 9-31, Zarda, supra (No. 17-1623); Pet. for Cert. at i, 12-32, Bostock, supra (No. 17-1618).
Until 2017, all eleven courts of appeals to consider the question had concluded that Title VII does not apply to sexual-orientation discrimination. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001), cert. denied, 534 U.S. 1155 (2002); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (per curiam); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006), cert. denied, 551 U.S. 1104 (2007); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1062 (7th Cir. 2003); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam), cert. denied, 493 U.S. 1089 (1990); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-330 (9th Cir. 1979), abrogated on other grounds,

14
Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-875 (9th Cir. 2001); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir.), cert. denied, 138 S. Ct. 557 (2017).
Since April 2017, however, two of those courts—the Second and Seventh Circuits, both sitting en banc— have overruled their prior decisions and held that discrimination on the basis of sexual orientation does constitute discrimination because of sex in violation of Title VII. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 112-115, 124-131 (2d Cir. 2018) (en banc), petition for cert. pending, No. 17-1623 (filed May 29, 2018); id. at 115-124 (plurality opinion); Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 343-352 (7th Cir. 2017) (en banc). On the other hand, the Eleventh Circuit denied rehearing en banc of the panel’s decision in Evans, supra. This series of recent rulings makes it very unlikely that the circuit conflict will resolve itself, and the issue otherwise warrants this Court’s review.
If the Court were to grant the petitions in Zarda, Bostock, or both to resolve that conflict, its decision may bear on the questions petitioner raises concerning genderidentity discrimination and thus may bear on the proper disposition of the petition in this case. The question presented in those cases is distinct from the issues petitioner raises here, but analysis of the issues may overlap. The court of appeals here relied on the reasoning of the en banc Second Circuit’s decision in Zarda and the en banc Seventh Circuit’s decision in Hively in addressing whether Title VII applies to gender-identity discrimination. See Pet. App. 21a, 23a-24a, 29a, 31a. And both reasons the court of appeals gave for concluding that “discrimination on the basis of transgender and

15
transitioning status violates Title VII,” id. at 22a; see id. at 23a-28a, parallel rationales that were relied upon in Zarda and Hively. First, the court stated that “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.” Id. at 23a. Second, the court stated that “an employer cannot discriminate on the basis of transgender status without” engaging in “sex stereotyping,” by “imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Id. at 26a-27a. Both rationales or slight variants were adopted by the majority or plurality opinions in Zarda and Hively. See Zarda, 883 F.3d at 113-115; id. at 116-123 (plurality opinion); Hively, 853 F.3d at 345-346.
If this Court were to grant review in Zarda or Bostock, its decision on the merits thus might bear on the soundness of the court of appeals’ decision here, and in turn on the appropriate disposition of the petition in this case. The Court accordingly should hold the petition in this case pending its disposition of the petitions in Zarda and Bostock and, if review is granted in either or both of those cases, pending its decision on the merits.
2. If the Court denies review in Zarda and Bostock, the petition for a writ of certiorari in this case should also be denied. To be sure, the court of appeals’ decision is erroneous, and this is an important and recurring issue that may require this Court’s review in an appropriate case. But if this Court denies certiorari in Zarda and Bostock—which implicate a more widespread and deeply entrenched circuit conflict—certiorari would likewise not appear to be appropriate in this case at this time.
a. Title VII makes it an “unlawful employment practice for an employer * * * to fail or refuse to hire or to

16
discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of,” inter alia, “such individual’s * * * sex.” 42 U.S.C. 2000e-2(a)(1). The court of appeals concluded that petitioner violated that provision by applying a sex-specific dress code—which itself was not challenged in this case— to an employee, Stephens, based on Stephens’s biological sex rather than Stephens’s gender identity. Pet. App. 15a-22a. The court further concluded that the EEOC should have been allowed to pursue an alternative theory in support of the same wrongful-termination claim: that gender-identity discrimination necessarily constitutes sex discrimination and therefore always violates Title VII. Id. at 22a-36a.
As the Attorney General’s October 4, 2017, memorandum explained, the Department of Justice “must and will continue to affirm the dignity of all people, including transgender individuals,” and the Department does not “condone mistreatment on the basis of gender identity.” Pet. App. 194a. The Department also “has vigorously enforced,” and “will continue to” enforce, Title VII and other laws that “protect[ ] against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals,” as well as laws that specifically prohibit gender-identity discrimination. Ibid. But “the Department of Justice must interpret Title VII as written by Congress,” id. at 192a, and the court of appeals misread the statute and this Court’s decisions in concluding that Title VII encompasses discrimination on the basis of gender identity.
i. Title VII does not define the term “sex,” see generally 42 U.S.C. 2000e, so the term should “be interpreted

17
as taking [its] ordinary, contemporary, common meaning.” Sandifer v. United States Steel Corp., 571 U.S. 220, 227 (2014) (citation omitted). When Title VII was enacted in 1964, “sex” meant biological sex; it “refer[red] to [the] physiological distinction[ ]” between “male and female.” Webster’s New International Dictionary 2296 (2d ed. 1958); see ibid. (“One of the two divisions of organisms formed on the distinction of male and female; males or females collectively”; “The sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female, or of pertaining to the distinctive function of the male or female in reproduction”; “SEX refers to physiological distinctions; GENDER, to distinctions in grammar.”); see also, e.g., Hively, 853 F.3d at 362-363 (Sykes, J., dissenting) (collecting dictionaries); Zarda, 883 F.3d at 145 (Lynch, J., dissenting).
Title VII thus does not apply to discrimination against an individual based on his or her gender identity. Notably, Congress has specifically prohibited discrimination based on “gender identity” in other statutes, as a separate protected category in addition to “sex” or “gender.” See, e.g., 18 U.S.C. 249(a)(2)(A) and (c)(4) (prohibiting acts or attempts to cause bodily injury to any person “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person,” and defining “gender identity” as “actual or perceived gender-related characteristics” (emphasis added)); 34 U.S.C. 12291(b)(13)(A) (Supp. V 2017) (prohibiting discrimination in certain federally funded programs “on the basis of actual or perceived race, color, religion, national origin, sex, gender identity (as defined in paragraph 249(c)(4) of Title 18), sexual orientation, or disability” (emphases added)). It has not

18
included similar language in Title VII as originally enacted in 1964 or in any amendment in the 54 years since.
In addition, as this Court has explained, by its terms “Title VII * * * is directed only at ‘discrimination . . . because of . . . sex.’ ” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (brackets omitted). “The critical issue” in determining whether an employer has engaged in discrimination, as “Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Ibid. (citation omitted). To be sure, the plurality in Price Waterhouse concluded that, “in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Price Waterhouse, 490 U.S. at 251 (plurality opinion) (quoting City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)) (brackets omitted). Thus, under that principle, an employer that treats a male or female employee disadvantageously based on a “sex stereotype[ ]” may violate Title VII, and evidence that an employer engaged in “sex stereotyping” may indicate that sex “played a motivating part in an employment decision.” Id. at 250-251. But the statute is not properly construed to proscribe employment practices that take account of the sex of employees but do not impose different burdens on similarly situated members of each sex—such as the sex-specific dress code at issue in this case, cf., e.g., Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1109-1110 (9th Cir. 2006) (en banc), or sex-specific restrooms.

19
ii. The court of appeals erred in concluding that petitioner violated Title VII’s prohibition on “discriminat[ing]” against an individual “because of such individual’s * * * sex,” 42 U.S.C. 2000e-2(a)(1), by terminating Stephens after learning that Stephens would no longer comply with petitioner’s dress code corresponding to Stephens’s biological sex. See Pet. App. 15a-22a. If petitioner’s sex-specific dress code resulted in disparate, disadvantageous treatment of male or female employees, petitioner’s termination of Stephens for not complying with the dress code applicable to Stephens’s biological sex could arguably violate Title VII, regardless of Stephens’s gender identity. But petitioner’s dress code itself was not challenged in this case, see id. at 112a, and the court of appeals stated expressly that it was not adjudicating whether the dress code complies with Title VII, see id. at 18a (“[W]hether certain sex-specific appearance requirements violate Title VII * * * is not before this court. We are not considering, in this case, whether [petitioner] violated Title VII by requiring men to wear pant suits and women to wear skirt suits.”); id. at 21a (stating that whether petitioner’s dress code violates Title VII is “an issue that is not before this court”).
The court of appeals nevertheless concluded that petitioner violated Title VII by requiring Stephens to comply with the provisions of the dress code applicable to Stephens’s biological sex (male) rather than the provisions corresponding to Stephens’s gender identity (female). See Pet. App. 16a-22a. But the court did not identify any way in which applying the dress code—to Stephens or to any other employee—based on an employee’s biological sex results in disparate treatment of similarly situated male or female employees. Instead, it concluded that no

20
such disparate treatment based on biological sex was necessary, stating that “[i]t is apparent from * * * Price Waterhouse * * * that an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave.” Id. at 21a. That is incorrect.
Neither the plurality nor concurring opinions in Price Waterhouse adopted such a rule. The question presented in that case concerned the burden and standard of proving that an employment decision was (or was not) motivated by an employee’s sex. 490 U.S. at 232 (plurality opinion); see id. at 237-258; id. at 258-261 (White, J., concurring in the judgment); id. at 261-279 (O’Connor, J., concurring in the judgment). The portion of the plurality opinion that addressed sex stereotyping did not call into question that a Title VII plaintiff must show that the employer treated employees disparately because of sex. See id. at 250-252 (plurality opinion); id. at 251 (“[I]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” (citation omitted)). Indeed, that discussion addressed how sex-based stereotyping can constitute evidence that disparate treatment of an employee was motivated by sex. See id. at 250 (“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”).
In any event, the Court’s subsequent decision in Oncale erases any doubt that “[t]he critical issue” in determining whether an employer has engaged in sexbased “discrimination” is “ ‘whether members of one sex are exposed to disadvantageous terms or conditions of

21
employment to which members of the other sex are not exposed.’ ” 523 U.S. at 80 (brackets and citation omitted). The court of appeals’ contrary view “that an employer engages in unlawful discrimination [where] it expects both biologically male and female employees to conform to certain notions of how each should behave,” even in the absence of terms or conditions that disadvantage members of one sex, Pet. App. 21a; see id. at 20a-21a, cannot be squared with Oncale.
iii. The court of appeals also erred in holding that the EEOC should have been able to pursue the alternative theory that discrimination based on gender identity “is necessarily discrimination on the basis of sex,” Pet. App. 15a, and therefore “discrimination on the basis of transgender and transitioning status violates Title VII,” id. at 22a; see id. at 22a-36a. As an initial matter, having concluded (albeit erroneously) that the EEOC was entitled to summary judgment on its case-specific theory of sexual stereotyping in support of its claim that petitioner’s termination of Stephens violated Title VII, the court had no apparent reason to go further and conclude that the EEOC should have been permitted to advance a different, much broader theory in support of that same claim of wrongful termination.
In any event, the court of appeals’ conclusion that gender-identity discrimination categorically constitutes sex discrimination under Title VII is incorrect. As discussed above, the ordinary meaning of “sex” does not refer to gender identity. See pp. 16-18, supra. The court’s position effectively broadens the scope of that term beyond its ordinary meaning. Its conclusion should be rejected for that reason alone. Moreover, each reason the court gave for its conclusion fails on its own terms.

22
First, the court of appeals stated that “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.” Pet. App. 23a; see id. at 23a-26a. In the court’s view, the fact that applying the dress code depended in part on Stephens’s sex proved that petitioner had discriminated based on sex. See id. at 23a-24a. The court reasoned that “Stephens’s sex impermissibly affected Rost’s decision to fire Stephens” because Stephens “obviously” would not “have been fired if Stephens had been a woman who sought to comply with the women’s dress code.” Id. at 24a. That is incorrect. The application of any sex-specific policy, by definition, turns in part on the employee’s sex. But that does not constitute “discrimination” unless, as a result of the policy’s application, “ ‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Oncale, 523 U.S. at 80 (brackets and citation omitted). Otherwise, every sex-specific policy—from dress codes for certain occupations to sex-specific employee restrooms— would automatically violate Title VII.
Second, the court of appeals stated that “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping.” Pet. App. 26a; see id. at 26a-31a. The court explained that “a transgender person is someone who ‘fails to act and/or identify with his or her gender,’ ” and therefore “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Id. at 26a-27a (citation omitted). It is highly doubtful that enforcement of a sex-specific dress code

23
by itself constitutes discrimination on the basis of gender identity, given that the code applies equally to employees based on their sex regardless of their gender identity. See id. at 91a-93a; see also id. at 104a-105a. But even assuming arguendo that it does, and even further assuming that the court of appeals’ definition of “transgender” is correct, that rationale merely repeats in more generalized terms the court of appeals’ reasoning that applying a sex-specific dress code to Stephens based on Stephens’s biological sex inherently constituted improper sex stereotyping under Price Waterhouse. As explained above, that reasoning is mistaken. See pp. 19-21, supra.
b. The questions presented in the petition are important and recurring, and they implicate tension among the circuits. In addressing the sex-stereotyping claim against petitioner, the Sixth Circuit panel observed that its existing precedent (on which it relied here) is inconsistent with the Ninth Circuit’s decision in Jespersen, supra. See Pet. App. 19a-20a. The court of appeals’ broader conclusion that gender-identity discrimination categorically constitutes sex discrimination is inconsistent with decisions of other circuits that have rejected that view. See Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1220-1221 (10th Cir. 2007); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084-1087 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (per curiam); see also Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661-663 (9th Cir. 1977), abrogation recognized by

24
Schwenk v. Hartford, 204 F.3d 1187, 1201-1202 (9th Cir. 2000).3
Nevertheless, if the Court denies review of the question presented in Zarda and Bostock, review would appear to be unwarranted in this case as well. The question in Zarda and Bostock implicates a much deeper and more widespread circuit conflict on a similarly important and recurring question that nearly every court of appeals has addressed. That conflict is now entrenched by en banc decisions of both of the courts of appeals that have recently adopted the minority position, and a third court
3 Petitioner cites (Pet. 17-19) several additional decisions, but none arose in a case under Title VII. Those cases concerned gender-identity discrimination under other statutes or constitutional provisions— such as Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., or the Equal Protection Clause of the Fourteenth Amendment—and discussed Title VII only in the context of addressing those other laws. See Doe ex rel. Doe v. Boyertown Area Sch. Dist., 893 F.3d 179 (3d Cir.), slip op. 23-31 (Title IX), vacated on reh’g, 897 F.3d 515 (3d Cir.), and superseded by 897 F.3d 518 (3d Cir. 2018); Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046-1054 (7th Cir. 2017) (Title IX and Equal Protection Clause), cert. dismissed, 138 S. Ct. 1260 (2018); G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 720-723 (4th Cir. 2016) (Title IX and implementing regulations), vacated and remanded, 137 S. Ct. 1239 (2017); Glenn v. Brumby, 663 F.3d 1312, 1315-1321 (11th Cir. 2011) (Equal Protection Clause); Schwenk, 204 F.3d at 1198-1203 (Civil Rights Remedies for GenderMotivated Violence Act, 34 U.S.C. 12361 (Supp. V 2017) (formerly 42 U.S.C. 13981)). In addition, two of those decisions have been vacated in relevant part. See Gloucester Cnty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 1239 (2017) (vacating court of appeals’ decision in light of agency guidance); Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 533-536 (3d Cir. 2018) (superseding opinion omitting portion of original opinion discussed in the petition, which was vacated on rehearing); cf. Doe, 893 F.3d 179, slip op. 23-31 (vacated opinion); Pet. 18-19.

25

of appeals has declined to address the issue en banc. See pp. 13-14, supra. Fewer courts have addressed the issues presented here. To date, it appears that only the panel in this case has concluded in a Title VII case that genderidentity discrimination categorically constitutes discrimination because of sex. And the Sixth Circuit has not yet considered that question en banc (which petitioner did not seek here). If the Court determines that the question presented in Zarda and Bostock does not warrant plenary review at this time, it thus would be appropriate to deny review of the questions presented in this case at this juncture.
CONCLUSION
The petition for a writ of certiorari should be held pending the disposition of the petitions in Zarda and Bostock. If the Court grants plenary review in Zarda, Bostock, or both, the petition for a writ of certiorari in this case should be held pending the Court’s decision on the merits, and then disposed of as appropriate in light of that decision. If the Court denies review in Zarda and Bostock, the petition for a writ of certiorari in this case should be denied.
Respectfully submitted.

OCTOBER 2018

NOEL J. FRANCISCO Solicitor General
JOSEPH H. HUNT Assistant Attorney General
JOHN M. GORE Acting Assistant Attorney General
ERIC TREENE Special Counsel
CHARLES W. SCARBOROUGH STEPHANIE R. MARCUS
Attorneys

 
 dNo. 18-107 IN THE
Supreme Court of the United States

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

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

John 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

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 is an individual and citizen of Michigan.
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 Respondent Aimee Stephens respectfully
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 . . . .
(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices
Except as otherwise provided in this 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
Even if Title VII’s reference to “sex” 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 GenderDysphoric/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.
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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”).
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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.
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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.”
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“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).
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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.
Harris Homes purchased suits for male 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
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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
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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. 12a–13a.
A panel of the Sixth Circuit unanimously reversed. Pet. App. 80a–81a. It ruled for Ms. Stephens and the EEOC on two independent sex discrimination theories. First, it agreed with the district court that Harris Homes violated Title VII by firing Ms. Stephens because she did not conform to Mr. Rost’s sex stereotypes about how men and women should appear and behave. Pet. App. 15a– 22a. Relying on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the court “found no reason to exclude Title VII coverage for non sex-stereotypical behavior simply because the person is a transsexual.” Pet. App. 16a (internal quotation marks omitted).
Second, the Sixth Circuit separately held that discrimination because Ms. Stephens is transgender is inherently a form of sex discrimination that
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violates Title VII. Pet. App. 22a–36a. The court reasoned that “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.” Pet. App. 23a. As part of this holding, the court also concluded that “Rost at least partially based his employment decision on Stephens’s desire to change her sex.” Pet. App. 25a. Noting that it is “immaterial” whether it is actually possible to change one’s sex, the court held that “[g]ender (or sex) is not being treated as ‘irrelevant to employment decisions’ if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.” Pet. App. 26a (quoting Price Waterhouse, 490 U.S. at 240).
The Sixth Circuit rejected Harris Homes’s argument that its purported reliance on a sex-specific dress code provided a defense to liability under Title VII. The court held that Harris Homes fired Ms. Stephens for her sex-related identity, appearance and behavior well beyond the dress code, and further concluded that Harris Homes could “not rely on its [dress code] policy to combat the charge that it engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts [Harris Homes’s] perception of how she should appear or behave based on her sex.” Pet. App. 21a–22a. Finally, the Sixth Circuit rejected Harris Homes’s RFRA defense to Title VII liability and reversed the district court’s ruling on the compensation claim. Pet. App. 36a–73a.
Harris Homes petitioned this Court for certiorari, seeking review only of the question whether Harris Homes had discriminated against Ms. Stephens in violation of Title VII. Harris Homes
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did not seek review of the Sixth Circuit’s rejection of its RFRA defense. In response to the petition, the United States, representing the EEOC, filed a brief that opposed certiorari while objecting to the reasoning and outcome of the Sixth Circuit’s ruling that the EEOC had secured.
After granting certiorari, the Court directed that Ms. Stephens comply with the briefing rules for petitioners, and that Harris Homes comply with the briefing rules for respondents. See Order, May 13, 2019. Despite the fact that the EEOC initially brought this case against Harris Homes for firing Ms. Stephens because of her sex, the United States is supporting Harris Homes, and is therefore complying with the briefing rules for respondents.
SUMMARY OF ARGUMENT
I. Title VII was designed to make “sex” and other protected characteristics irrelevant to employment decisions, ensuring that individuals are judged on their own merits, not their sex. It prohibits firing “any individual because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). A discharge is “because of sex” where but for the employee’s sex, the employee would not have been fired. Sex need not be the sole cause, as long as it is a cause, for the decision.
Sex was a but-for cause of Ms. Stephens’s firing, even assuming arguendo the narrow definition of “sex” offered by Harris Homes and the United States. Ms. Stephens satisfies the “simple test” for discrimination laid out by this Court in Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978), for three related reasons. First, she has shown that Harris Homes would not have fired her
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for living openly as a woman if she had been assigned a female sex at birth. Second, Harris Homes’s owner, Thomas Rost, repeatedly explained that he fired Ms. Stephens because, in his view, she “was a man.” If he had viewed her as a woman, he would not have fired her. And third, just as firing an employee for intending to change her religion is religious discrimination, so Mr. Rost’s objection to Ms. Stephens “attempting to change” her sex is sex discrimination. Accordingly, even assuming arguendo that gender identity is not encompassed within the term “sex” in Title VII, and that Ms. Stephens’s female gender identity was an additional but-for cause of her firing, her male assigned sex at birth was a but-for cause of her discharge and that is sufficient to establish liability under Title VII.
II. Harris Homes also violated Title VII by firing Ms. Stephens for failing to conform to its sexbased stereotypes about how men and women should identify, appear, and behave.
In the same way that Ann Hopkins was denied partnership because she did not comply with Price Waterhouse’s sex stereotypes about how women should walk, talk, dress, and groom, so too was Ms. Stephens fired for failing to fulfill Harris Homes’s stereotypes about how men and women should appear and behave. Harris Homes insisted that any “male” employee “should look like a man,” and any “female” employee “should look like a woman.” Had Harris Homes fired a non-transgender woman for looking, in his view, too much like a man, it would have violated Title VII. Firing a transgender woman for looking, according to her employer, too masculine for a woman and too feminine for a man is no less prohibited.
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More broadly, discrimination against someone because they are transgender necessarily enforces a sex-based stereotype: that someone assigned a particular sex at birth will identify, look, and act in ways conventionally associated with that sex for the rest of their lives. While that generalization may hold true for many people, it is false for all transgender people. Firing workers because they are transgender is always based on their departure from this sex-based stereotype and therefore inherently violates Title VII’s ban on sex discrimination.
Allowing discrimination against transgender persons for failing to comport with sex stereotypes, but disallowing such discrimination against nontransgender individuals, would not only be unjustified by the statute’s text, but would require impossible line-drawing by lower courts. It would risk undermining Title VII’s longstanding prohibition on discrimination based on sex stereotypes.
III. Harris Homes and the United States effectively ask this Court to write an exclusion into Title VII to deny transgender people the protection from sex discrimination that the statute provides to all employees. The text and structure of Title VII preclude such an exclusion, and speculation that in 1964 Congress would not have anticipated the application of Title VII to transgender workers affords no basis for failing to enforce the plain terms of the statute.
The text of Title VII unambiguously bars discrimination against any “individual” because of such individual’s sex, and an employer may not avoid liability under the statute for discrimination against a transgender woman by claiming that it also would
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have discriminated against a transgender man. Ms. Stephens has shown that she has suffered disparate treatment as an individual because of her sex.
The fact that Title VII recognizes an exception to its ban on sex discrimination—where sex is a bona fide occupational qualification (BFOQ)—reinforces the impropriety of carving out transgender employees as a class from Title VII. Congress considered whether and what sort of exceptions to craft from the ban on disparate treatment, but did not exclude transgender employees, or indeed any other group of people, from the statute’s protections. Harris Homes has never raised a BFOQ defense here, and speculation about customer preference provides no justification for Ms. Stephens’s firing.
The meaning of a statute is determined by its text, not by the applications that were specifically anticipated at the time it was passed. This Court has repeatedly found violations of Title VII in circumstances that neither Congress nor the general public would likely have anticipated at the time the law was passed.
Neither Congress’s passage of unrelated bills subsequent to the passage of Title VII, nor its failure to pass bills related to the scope of federal civil rights protections, provide any justification for excluding transgender people from Title VII’s prohibition on discrimination because of sex. Moreover, even if congressional action or inaction provided a basis for limiting the meaning of sex to the definitions proposed by Harris Homes and the United States, Ms. Stephens’s firing would still violate Title VII, as demonstrated in Points I and II.
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IV. Harris Homes and the United States have claimed that this case requires the Court to assess the general lawfulness of sex-specific policies, such as dress codes, and the application of such policies to transgender employees. But it does not. As the Sixth Circuit properly held, Harris Homes did not fire Ms. Stephens solely for an anticipated violation of the dress code, but because she is transgender and her name, identification, appearance, and behavior failed to comply with the company’s stereotypes regarding how men and women should identify, appear, and behave.
Accordingly, resolution of the question presented here—whether Ms. Stephens’s firing was “because of sex”—does not require this Court to assess the validity or application of sex-specific policies. The only question here is whether Ms. Stephens’s discharge was “because of sex.” There is no dispute that if it is, her discharge is prohibited by Title VII. By contrast, sex-specific dress codes and restrooms present a distinct question. Such policies are indisputably sex-based. The question in cases challenging the lawfulness or application of sexspecific policies is whether such policies “discriminate” in the “terms [or] conditions” of an individual’s employment—a question not presented here.
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ARGUMENT

I. WHEN HARRIS HOMES FIRED MS.

STEPHENS

BECAUSE

SHE

IS

TRANSGENDER, IT DID SO BECAUSE OF

HER SEX IN VIOLATION OF TITLE VII.

“In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse, 490 U.S. at 240. Congress created this statutory framework to ensure that employers evaluate employees as individuals irrespective of sex. Accordingly, Title VII makes it unlawful to fire “any individual because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The “simple test” for sex discrimination under Title VII is “whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different.” Manhart, 435 U.S. at 711 (internal quotation marks omitted). “Sex” need not be the sole cause of the disparate treatment, so long as it is a cause.

Even if an individual’s “sex” for purposes of Title VII is limited to one’s sex assigned at birth, as Harris Homes claims, Ms. Stephens was fired because of her sex in violation of the statute. Harris Homes fired her for (1) having a male sex assigned at birth and (2) living openly as a woman. Because it would not have fired Ms. Stephens for identifying and living openly as a woman if she were assigned a female sex at birth, she has met Manhart’s “simple test.” And because the statute requires only that sex be a cause, rather than the sole cause, of an adverse action, the Court need not decide whether “gender identity” is part of “sex” for purposes of Title VII.

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No one disputes that “sex” under Title VII includes a person’s birth-assigned sex. And because Ms. Stephens’s male sex assigned at birth was a but-for cause of her discharge, the court of appeals was correct to hold that she prevails under Title VII.
A. When Sex Is a But-For Cause of an Adverse Employment Decision, the Decision Violates Title VII.
Title VII prohibits employers from making adverse employment decisions “because of” sex. 42 U.S.C. § 2000e-2(a)(1). Any time the same decision would not have been made had the employee’s sex been different, an employer discriminates “because of sex.” See Manhart, 435 U.S. at 711. This Court has explained that “‘because of' appears frequently in antidiscrimination law” and generally requires “butfor causation.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015); see also Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (“because of” signals but-for causation for Title VII’s anti-retaliation prohibition); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176-78 (2009) (“because of” signals but-for causation in the Age Discrimination in Employment Act). Title VII also creates liability where sex is a “motivating factor” behind the employment decision, even if sex is not a but-for cause. 42 U.S.C. § 2000e-2(m). But in such cases, an employee's relief may be limited if the employer can show that it would have made the same decision anyway.8 By contrast, an employee who satisfies the
8 As amended in 1991, if an employee shows that a protected characteristic was a motivating factor in an employment decision, Title VII affords the employer the opportunity to show that it would have made the same decision absent consideration of the protected characteristic, i.e., that even though an
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“simple test” of but-for causation is entitled to the full range of remedies. 42 U.S.C. § 2000e-5(g)(2).
Under either causation standard, sex need not be the sole cause of an adverse employment decision to trigger liability under Title VII. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam); 42 U.S.C. § 2000e-2(m) (prohibiting employment practices where sex “was a motivating factor . . . , even though other factors also motivated the practice”). This principle was established in the Court’s very first Title VII decision, Phillips v. Martin Marietta Corp., 400 U.S. 542. There, an employer claimed that its refusal to hire women with pre-school age children was not sex discrimination because it was willing to hire women without preschool age children. Phillips v. Martin Marietta Corp., 411 F.2d 1, 2 (5th Cir. 1969), vacated, 400 U.S. 542 (1971). The court of appeals agreed, reasoning that “when another criterion of employment is added to one of the characteristics listed in the act,” the decision was not “because of” that characteristic. Id. at 3–4. But this Court reversed, holding that Ms. Phillips was discriminated against “because of” sex even though she was also discriminated against because she had young children. Phillips, 400 U.S. at 544. Under Title VII’s “simple test,” had Ms. Phillips’s sex been different, she would have been treated differently. Id.; see also Price Waterhouse, 490 U.S. at 241 (plurality) (“[W]e know that the words ‘because of’ do not mean ‘solely because of’”);
individual employee’s sex, for example, was a motivating factor, it was not a “but-for” cause of the employment decision. Where the employer makes this showing, the plaintiff still prevails, but is ineligible for certain forms of relief, including compensatory damages and reinstatement. 42 U.S.C. § 2000e-5(g)(2).
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id. at 259 (White, J., concurring); id. at 279 (O’Connor, J., concurring); id. at 284 (Kennedy, J., dissenting) (“[S]ex is a cause for the employment decision whenever, either by itself or in combination with other factors, it made a difference to the decision”); cf. Burrage v. United States, 571 U.S. 204, 211–12 (2014) (noting that but-for causation does not preclude the existence of “other necessary causes”).9
Thus, to establish that a termination is “because of” sex under Title VII, it suffices for an employee to show that had the employee’s sex been different, the employee would have been treated differently. That is precisely the case here.
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.
Harris Homes fired Ms. Stephens for being a transgender woman—that is, for having a male sex assigned at birth and living openly as a woman. It would not have fired her for living openly as a woman if she had been assigned the female sex at birth. Therefore, when Harris Homes fired Ms. Stephens it violated Title VII because her male sex assigned at birth was a but-for cause of its decision.
9 Notably, “[t]he 1964 Congress specifically rejected an amendment that would have placed the word ‘solely’ before ‘because of [the complainant’s] race, color, religion, sex, or national origin.’ See 110 Cong. Rec. 2728, 13837–38 (1964). Senator Case, a prime sponsor of Title VII, commented that a ‘sole cause’ standard would render the Act ‘totally nugatory.’ Id. at 13837.” Nassar, 570 U.S. at 385. (Ginsburg, J., dissenting).
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In its petition for certiorari, Harris Homes argued that Title VII does not prohibit discrimination against transgender people because it is “impossible” that “sex” in 1964 could have meant “gender identity.” Pet. 26. But this case does not require the Court to decide whether the term “sex” in 1964 included gender identity. Ms. Stephens prevails even if “sex” is limited to the definitions proposed by Harris Homes and the United States, namely “a person’s status as male or female as objectively determined by anatomical and physiological factors, particularly those involved in reproduction,” Pet. 6 (internal quotations and citations omitted), or “‘[the] physiological distinction[]’ between ‘male and female,’” Fed. Resp’t Br. Opp’n at 17 (quoting Webster’s New International Dictionary 2296 (2d ed. 1958).10 See Br. for Kenneth B. Mehlman et al. as Amici Curiae in Support of the Employees (Part I.A).
That Ms. Stephens’s sex was a but-for cause of her termination is illustrated in three interrelated ways. First, when Harris Homes fired her for being
10 As shorthand for Harris Homes’s and the United States’s definitions of “sex,” Respondent uses “sex assigned at birth.” One’s sex assigned at birth refers to the designation of male or female that an infant is given at birth typically based on external reproductive anatomy. The anatomical features that generally dictate an infant’s sex assigned at birth are the same as those identified by Harris Homes and the United States as determinative of a person’s sex (i.e, reproductive anatomy visible at birth). Some courts have used the term “biological sex” to refer to a person’s sex assigned at birth. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1314 (11th Cir. 2011) (describing transgender female plaintiff as someone who was “born a biological male”); Smith v. City of Salem, Ohio, 378 F.3d 566, 568 (6th Cir. 2004) (describing transgender female plaintiff as “biologically and by birth a male”).
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transgender, it necessarily did so for two reasons: (1) she was assigned a male sex at birth; and (2) she intended to live openly as a woman. Her sex assigned at birth is a necessary cause of the discrimination even if it is not the only cause. Ms. Stephens therefore meets the “simple test” set forth in Manhart because she would not have been fired for living openly as a woman if she had been assigned the sex of female at birth. Manhart, 435 U.S. at 711. That Harris Homes also fired her for an additional cause does not defeat liability, because her birthassigned sex was one of the but-for causes. Much as Ms. Phillips was discriminated against for being a woman and for having young children, see Phillips, 400 U.S. at 544, so Ms. Stephens was fired for having a male sex assigned at birth and for living openly as a woman. That is sex discrimination, even accepting arguendo Harris Homes’s contention that gender identity is not included in “sex” for purposes of Title VII. In fact, it is impossible to discriminate against a person for being transgender without their sex assigned at birth being a cause of the decision.
Second, Harris Homes’s owner’s repeated explanation that he fired Ms. Stephens because he viewed her as “a man” makes explicit that he fired her “because of sex.” While the assertion is not accurate—Ms. Stephens is a transgender woman—it is Harris Homes’s reason for firing Ms. Stephens, not her actual sex, that is outcome determinative. See Abercrombie, 135 S. Ct. at 2032–33 (Title VII’s intentional discrimination prohibition “does not impose a knowledge requirement.” The provision “prohibits certain motives, regardless of the state of the actor’s knowledge.” (emphasis in original)). Here, had Harris Homes thought of Ms. Stephens as a
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woman, it would have treated her differently. Every time Mr. Rost explained why he fired Ms. Stephens, he reaffirmed that it was because he thought of her as a man. He said that “it is wrong for a biological male to deny his sex,” J.A. 131, and that he was uncomfortable with Ms. Stephens using the name Aimee “because he’s a man,” Resp. App. 61a. He objected to the fact that Ms. Stephens was “no longer going to represent himself as a man,” precisely because she was, in his understanding, a “biological male.” J.A. 54, 131. When Harris Homes fired her because it thought she was a man, it discriminated against her because of her sex. See Manhart, 435 U.S. at 711.
Third, Harris Homes’s express concern that Ms. Stephens was “attempt[ing] to change” sex further demonstrates that the firing was “because of sex.” J.A. 131. One cannot object to a perceived change of sex without basing the objection, at least in part, on a person’s sex assigned at birth. As the Sixth Circuit reasoned, it is immaterial whether one can “actually” change one’s sex, because “[g]ender (or sex) is not being treated as ‘irrelevant to employment decisions’ if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.” Pet. App. 26a (quoting Price Waterhouse, 490 U.S. at 240).
Just as firing someone for wanting to change religion is religious discrimination, so too firing a person for wanting to change sex is sex discrimination. In either case, the protected characteristic is a but-for cause of the employment decision. Consider a Protestant employer who fired employees who were born into a Protestant denomination but converted to Catholicism. Even if
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the employer hired both Catholics and Protestants, it would still be discrimination “because of such individual’s . . . religion” if the employer fired an employee because the employee intended to convert to Catholicism. The same is true for discrimination against people who state that they plan to change their sex. See Schroer v. Billington, 577 F. Supp. 2d 293, 306 (D.D.C. 2008) (Even if the employer “harbors no bias toward either Christians or Jews but only ‘converts[,]’ . . . [n]o court would take seriously the notion that ‘converts’ are not [protected].”); Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 (D. Conn. 2016) (“Because Christianity and Judaism are understood as examples of religions rather than the definition of religion itself, discrimination against converts, or against those who practice either religion the ‘wrong’ way, is obviously discrimination ‘because of religion.’”); cf. Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144 (1987) (declining to treat converts less favorably than others for purposes of First Amendment).
Harris Homes would not have fired Ms. Stephens for living openly as a woman if it had not perceived her to be, in its words, a “biological male” because she was assigned male at birth. In discharging Ms. Stephens for being transgender, Harris Homes contravened Title VII’s core premise: that employees should be judged on their merit, not on their sex.
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II.

HARRIS HOMES VIOLATED TITLE VII

BY FIRING MS. STEPHENS FOR

DEPARTING

FROM

SEX-BASED

STEREOTYPES ABOUT MEN AND

WOMEN.

Harris Homes also violated Title VII by firing Ms. Stephens for failing to conform to sex-based stereotypes.

This Court has long recognized that taking adverse action against an employee based on stereotypes about how men or women should look and act violates Title VII. Price Waterhouse, 490 U.S. at 256 (“[I]f an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.”); see also Manhart, 435 at 707–09 (even “unquestionably true” generalizations about women and men as classes cannot be used to discriminate against “individuals”); Phillips, 400 U.S. at 545 (Marshall, J., concurring) (Title VII prevents “employers from refusing ‘to hire an individual based on stereotyped characterizations of the sexes’” (quoting EEOC, Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.1(a)(i)(ii)). This protection applies to transgender employees just as it does to everyone else. Glenn, 663 F.3d at 1318 (“All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.”).

Harris Homes’s discharge of Ms. Stephens impermissibly rests on sex-based stereotypes for two independent reasons, either of which is sufficient to affirm the decision below. First, Mr. Rost expressly

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admitted that he fired Ms. Stephens because she was not going to conform to his particular views about how men and women must identify, appear and behave. Second, and more broadly, discrimination against an employee for being transgender inherently enforces the specific sex-based stereotype that persons assigned a particular sex at birth will identify, appear, and behave in ways seen as typical of that sex throughout their entire lives, and therefore always violates Title VII.
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.
Sex discrimination includes not merely adverse action taken against an employee for being a woman, but also action taken for failing to conform to sex-based stereotypes about how women should look and act. In Price Waterhouse, this Court held that Price Waterhouse violated Title VII when it denied Ann Hopkins a partnership because she failed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Price Waterhouse, 490 U.S. at 235 (plurality); id. at 272 (O’Connor, J., concurring). The Court made clear that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Id. at 251 (plurality). Just as Ms. Hopkins was denied partnership because she failed to meet her employer’s stereotypes about how women should walk, talk, groom and dress, so too was Ms. Stephens fired because she failed to meet her employer’s
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expectations of how men and women should look and behave.
Harris Homes’s owner, Mr. Rost, openly admitted that he fired Ms. Stephens because she departed from his particular stereotypes about men. Mr. Rost objected to Ms. Stephens using the name Aimee because in his view men should not use names associated with women. J.A. 72. He said that “a male should look . . . like a man.” Resp. App. 62a–63a. In its petition for certiorari, Harris Homes admitted that it fired Ms. Stephens based on its owner’s objection to “a male representative of Harris Homes present[ing] himself as a woman while representing the company.” Pet. 5. As Judge William Pryor explained about another employee fired for being a transgender woman, “Glenn ‘present[ed]’ and ‘dressed as a woman’ at work . . . . Because Glenn ‘was born a biological male,’ Glenn’s employer believed these choices were ‘unsettling,’ ‘unnatural,’ and ‘not appropriate.’ Title VII would have protected any biological male under those facts.” Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1260 (11th Cir.) (Pryor, J., concurring) (first alteration in original) (internal citation omitted), cert. denied, 138 S. Ct. 557 (2017).
At the same time, Harris Homes also fired Ms. Stephens for not complying with its sex stereotypes about women. Resp. App. 62a–63a (“a woman should look like a woman”). Mr. Rost objected that Ms. Stephens’s appearance and assigned sex at birth made her too masculine for a woman. Though Mr. Rost had never seen Ms. Stephens dressed in a skirt suit or outwardly presenting 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
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man dressed up as a woman” and therefore “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. Just as Price Waterhouse discriminated against Ms. Hopkins because it deemed her insufficiently feminine for a woman, so Harris Homes fired Ms. Stephens because it considered her insufficiently feminine for a woman. See J.A. 130.
In short, Ms. Stephens was fired because she transgressed Mr. Rost’s sex-based stereotypes about gender roles: she was both too masculine for his expectations of appropriate womanhood and too feminine for his notions of appropriate manhood. As one court observed in a similar case, “[u]ltimately, . . . it [does not] matter[] for purposes of Title VII liability whether the [employer] withdrew its offer of employment because it perceived [plaintiff] to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gendernonconforming transsexual.” Schroer, 577 F. Supp. 2d at 305. All such discrimination is because of an employee’s sex.
There is no basis for denying Ms. Stephens the protections against discrimination based on sexbased stereotypes that Ms. Hopkins enjoyed. If Harris Homes fired a non-transgender male employee for failing to look and act sufficiently masculine, that employee would have a Title VII claim. If it fired a non-transgender female employee for failing to look sufficiently feminine, she, too, would have a Title VII claim. Ms. Stephens is entitled to the same protection from being fired for failing to conform to her employer’s stereotypes about how men and women should look and behave. See,
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e.g., Glenn, 663 F.3d at 1316; Smith, 378 F.3d at 568; Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000).
B. Discrimination Against Employees for Being Transgender Is Inherently Based on Sex Stereotypes.
Although the judgment below can be affirmed based on Harris Homes’s enforcement of its owner’s specific stereotypes about men and women, the Sixth Circuit also correctly recognized that firing an individual for being transgender is inherently predicated on the stereotype that individuals will identify, appear, and behave throughout life consistently with their assigned sex at birth. Pet. App. 21a–22a. The notion that someone assigned a male sex at birth will identify, look, and behave “as a man” is undeniably a sex-based stereotype. Though this generalization is true for many people, the assumption that everyone will have an identity, appearance, and behavior consistent with expectations for the sex they were assigned at birth is objectively false for at least 1.55 million transgender people in the United States.11
Where adverse employment decisions are based on an individual’s failure to conform to sexbased generalizations, they are prohibited, regardless of whether those generalizations are accurate. Thus, in Manhart, the Court held that requiring women to pay more for pension benefits based on accurate generalizations about the differing life expectancies of men and women was
11 Amici Curiae Br. of Scholars Who Study Transgender Population in Support of Respondent Aimee Stephens, (Background. B).
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impermissible sex discrimination under Title VII. “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.” Manhart, 435 U.S. at 702, 708. Indeed, discrimination is prohibited by Title VII because “[p]ractices that classify in terms of . . . sex tend to preserve traditional assumptions about groups rather than thoughtful scrutiny of individuals.” Id. at 709. A sexbased generalization that is true about most men or women does not justify discrimination against those who fall “outside the average description.” United States v. Virginia, 518 U.S. 515, 550 (1996).12
At bottom, an objection to someone for being transgender is an objection to the fact that they have departed from the sex-based generalization that persons assigned a particular sex at birth will identify, act, dress, and appear as that sex throughout their entire lives. “A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” Glenn, 663 F.3d at 1316. Indeed, “[t]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate
12 Although liability under Title VII does not require any showing that women or men as a group were disadvantaged by the enforcement of a sex-based generalization, laws and practices driven by sex stereotypes about how men and women should appear and behave often operate to the detriment of women, in general. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (sex discrimination often “rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage”); see also Br. of Women CEOs and Other C-Suite Executives as Amici Curiae in Support of Petitioner Bostock and Respondents Zarda, Moore, and Stephens, (Part II).
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appearance and behavior.” Id. (internal quotation marks omitted). It does not matter that most men and women are not transgender. The command of Title VII is that “individuals” are protected from discrimination based on generalizations about classes. See Manhart, 435 U.S. at 708 (“If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.”).
Accordingly, firing someone for being transgender by definition involves enforcement of a sex-based stereotype, and is therefore prohibited by Title VII.
C. Permitting Employers to Discriminate Against Transgender People for Not Matching Sex-Based Generalizations Would Undermine Title VII Protections for All Workers.
Decades of this Court’s precedent would be thrown into doubt if sex-based generalizations were deemed acceptable reasons for firing some employees. See, e.g., Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 211 (1991) (invalidating exclusion of women from certain positions based on assumptions about the importance of their reproductive role in comparison to their economic role); Manhart, 435 U.S. at 708 (invalidating requirement that women pay more for pensions plans than men because women on average live longer than men); Phillips, 400 U.S. at 545 (Marshall, J., concurring) (invalidating refusal to employ women with pre-school age children based on stereotypes about women’s role in raising children).
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Excluding transgender people from Title VII’s protections against the imposition of sex stereotypes would also lead to inconsistent and unworkable results. Under such a framework, an employer would be permitted to fire a person it perceived as an excessively feminine man if that person were a transgender woman, but not if that person were a non-transgender man. Compare Smith, 378 F.3d at 574–75 (finding that transgender woman experiencing discrimination in her workplace because her “appearance and mannerisms” were considered “inappropriate” for her “perceived sex” of male had stated a claim under Title VII), with Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864, 874 (9th Cir. 2001) (finding that male employee subjected to “systematic abuse” because of belief he “did not act as a man should act” and had “feminine mannerisms” had stated a claim under Title VII). Similarly, an employer could lawfully refuse to hire or promote someone it perceived as an insufficiently feminine woman if the person were a transgender man, but not if that employee was a non-transgender woman, like Ann Hopkins. Compare Price Waterhouse, 490 U.S. at 272, with EEOC v. A & E Tire, Inc., 325 F. Supp. 3d 1129, 1135 (D. Colo. 2018) (finding transgender man had stated a claim for discriminatory failure to hire because he “did not conform to the sex-based expectations of a person born a woman”). Under such a rule, courts would have to police the line between the acceptable gender non-conformity of non-transgender workers and the unacceptable gender non-conformity of transgender workers, which would ultimately weaken Title VII’s protections for all workers.
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Permitting employers to discriminate against transgender employees for not matching sex-based generalizations would not only eradicate Title VII’s protections for the more than 1.5 million transgender people in the United States but would also compromise protections for the far greater number of workers who, like Ann Hopkins, identify with their sex assigned at birth but do not (or might not sufficiently in the eyes of their employer) present or behave in full conformity with expectations of appearance and behavior for that sex.
III. THERE IS NO BASIS FOR EXCLUDING TRANSGENDER INDIVIDUALS FROM TITLE VII’S PROHIBITION ON DISCRIMINATION BECAUSE OF SEX.
Harris Homes and the United States seek to exclude transgender people from Title VII’s ban on discrimination because of sex, but there is no basis in the statute or precedent for doing so. The Court need not look further than the statutory text itself, which unambiguously protects all “individuals” from discrimination, and does not carve out transgender employees. Neither speculation about what the 1964 Congress might have assumed about the statute’s applications nor subsequent congressional action or inaction supports Harris Homes’s invitation to depart from the statute’s plain text.
A. Nothing in Title VII’s Text or Structure Supports an Exclusion of Transgender Individuals.
Title VII protects all “individuals” from sex discrimination in employment. It makes no exception for any category of employees. Where “the words of a statute are unambiguous, then . . . ‘judicial inquiry is
36

complete.’” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 461–62 (2002) (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254 (1992)). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Looking at the statute as a whole, there is simply “no justification in the statutory language or the Court’s precedents for a categorical rule excluding” transgender people from coverage under Title VII. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).
1. Title VII’s Plain Language Protects “Individuals” from Discrimination, Not Groups.
Harris Homes argues that its discharge of Ms. Stephens was justified because Title VII is limited to contexts where “employers . . . treat one sex better than the other.” Pet. 27. Presumably because it would fire both a transgender man for not appearing or acting sufficiently feminine, as well as a transgender woman for not appearing or acting sufficiently masculine, Harris Homes contends that firing Ms. Stephens did not violate Title VII because neither men nor women, as a group, faced discrimination. See Pet. 22; J.A. 131. But this approach contravenes the plain language of Title VII and has been rejected by the Court from Phillips onward. Where an individual employee has faced disparate treatment because of her sex, that discrimination is not cured by a second act of disparate treatment in which employees of a different sex also face discrimination.
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Title VII creates an “unambiguous” focus on discrimination faced by each individual employee. Manhart, 435 U.S. at 708 (“[Title VII] precludes treatment of individuals as simply components of a racial, religious, sexual, or national class.”). The statute provides “[i]t shall be an unlawful employment practice for an employer 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.” 42 U.S.C. § 2000e2(a)(1) (emphasis added). Under the statute’s plain terms, the question is not whether one group was treated better than another, but rather whether an employer denied employment opportunities to a particular employee because of that employee’s sex. Manhart, 435 U.S. at 709 (“Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes.”).
Title VII applies to any “individual” who experiences discrimination “because of sex,” even where the discrimination does not affect all men or all women. 42 U.S.C. § 2000e-2(a)(1). While classwide disparate treatment on the basis of sex is sufficient to show a violation of the statute, it is not necessary; disparate treatment of an individual because of sex is enough to establish liability. See Price Waterhouse, 490 U.S. at 235, 257–58 (finding discrimination against a woman perceived as “macho” but not against all women, violates Title VII); Phillips, 400 U.S. at 544 (finding discrimination against women with young children, but not against all, or even most, women, is discrimination because
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of sex); see also Br. for Kenneth B. Mehlman et al. as Amici Curiae in Support of the Employees (Part I.C). “Title VII does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her . . . sex were [not injured].” Connecticut v. Teal, 457 U.S. 440, 455 (1982).
An employer who discriminates against a female employee because of her sex cannot insulate itself from liability by also discriminating against a male employee because of his sex. Price Waterhouse could not have avoided liability by also denying partnership to men who it perceived to act insufficiently masculine. Neither can Harris Homes escape liability for discriminating against Ms. Stephens by maintaining that it would have also fired a transgender man for failing to conform to sexbased stereotypes about how persons assigned a female sex at birth should act. See Dothard v. Rawlinson, 433 U.S. 321, 332 & n.16 (1977) (Alabama Board of Corrections policy requiring officers in certain posts to be of the same sex as prisoners in the prison “explicitly discriminate[d]” “on the basis of . . . sex” even though it applied to both men and women); cf. Flowers v. Mississippi, No. 17-9572, slip. op. at 14 (U.S. June 21, 2019) (noting that “the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all ‘equally’ subject to race-based discrimination” because “[d]iscrimination against one defendant or juror on account of race is not remedied or cured by discrimination against other defendants or jurors on account of race.”).
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In short, two wrongs do not make a right. Discrimination against transgender women for being perceived as insufficiently masculine is not somehow “cured” by additional acts of discrimination against transgender men for being perceived as insufficiently feminine. Nor is it a defense for Harris Homes to claim that it is not subjecting men or women to disparate treatment, but only those who seek to “change” their sex. An employer who fired an employee for converting from Christianity to Judaism would not be able to escape liability by showing that it fired all converts, including those who converted from Judaism to Christianity, or from Hinduism to atheism. In each individual instance, it would be subjecting the individual to disparate treatment “because of religion.” Likewise here, Harris Homes’s termination subjected Ms. Stephens to disparate treatment because of her sex assigned at birth.
2. There is Only One Statutory Exception to the Ban on Discrimination Because of Sex and it Does Not Reference Transgender Employees.
The text of Title VII recognizes only one exception to its ban on disparate treatment claims of sex discrimination—for bona fide occupational qualifications (BFOQ)—and that provision says nothing about transgender employees. That Congress considered and created a single statutory exception to permit disparate treatment because of sex in some circumstances precludes this Court from reading into the statute an additional unwritten exception for transgender employees. The BFOQ exception provides that “it shall not be an unlawful
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employment practice” to make an employment decision “on the basis of . . . sex,” “where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e). That Congress crafted this “extremely narrow” exception, Dothard, 433 U.S. at 334, confirms that there is no basis for finding an additional unwritten exception through judicial fiat.
Notably, Harris Homes has never asserted a BFOQ defense. It has merely alluded to concerns that a transgender employee might hypothetically make customers uncomfortable. Pet. 3; Pet. App. 47a–48a; see also Resp. App. at 42a–47a. But absent a legitimate BFOQ defense, concerns about customer preference provide no grounds for discrimination because of an employee’s sex. “[I]t would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid.” Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971), cert denied, 404 U.S. 950 (1971). “Indeed, it was, to a large extent, these very prejudices the [Civil Rights] Act was meant to overcome.” Id.
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.
Harris Homes rests much of its argument on the contention that lawmakers or the general public in 1964 would not have anticipated Title VII’s application to transgender people. But as this Court has repeatedly reaffirmed, under Title VII and other laws, a statute’s plain text is not limited by
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speculation about which particular applications of the law Congress or the public may have had in mind at the time of enactment. There is no dispute that Title VII reaches circumstances where a person is treated in a manner which, but for that person’s sex, would be different, Manhart, 435 U.S. at 708, and situations where a person is subjected to adverse treatment because of sex stereotypes, Price Waterhouse, 490 U.S. at 250–51. Harris Homes’s discharge of Ms. Stephens violates both of these longstanding principles, and speculation about whether Congress imagined in 1964 that Title VII would apply to transgender workers does not change the outcome.
“The fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning.” Union Bank v. Wolas, 502 U.S. 151, 158 (1991). Indeed, as this Court has made clear in the Title VII context specifically, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79; see also Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 212 (1998) (finding it “irrelevant” “that Congress did not envisio[n] that the ADA would be applied to state prisoners” (internal quotation marks omitted)); Competitive Enter. Inst. v. U.S. Dep’t of Transp., 863 F.3d 911, 921 (D.C. Cir. 2017) (Kavanaugh, J., concurring) (relying on plain language of statute to apply smoking prohibition to e-cigarettes even though “those who drafted or read the statute in 1987 would not have understood the term ‘smoking’ to encompass e-cigarettes because e-cigarettes did not exist at that time”); see generally Wis. Cent. Ltd. v. United States,
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138 S. Ct. 2067, 2074 (2018) (“While every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world.”); accord West v. Gibson, 527 U.S. 212, 217 (1999) (finding that EEOC had power to grant compensatory damages, even though not contemplated when Title VII was enacted, because “[r]ead literally, the language of the statutes is consistent with a grant of that authority.”). “It is not for [this Court] to rewrite the statute so that it covers only what [it] think[s] is necessary to achieve what [it] think[s] Congress really intended.” Lewis v. City of Chicago, 560 U.S. 205, 215 (2010).
In accordance with these principles, this Court has found violations of Title VII in circumstances that neither Congress nor the general public likely anticipated at the time the statute was passed. For example, this Court has interpreted Title VII to prohibit different-sex and same-sex sexual harassment though neither were anticipated applications of the statute at the time of passage. When this Court held in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), that different-sex sexual harassment violated Title VII, the conduct at issue was an accepted, unremarkable part of the American workplace and lower courts were reluctant to recognize such harassment as discrimination “because of sex.” See, e.g., Miller v. Bank of Am., 418 F. Supp. 233, 236 (N.D. Cal. 1976) (declining to find sexual harassment to be discrimination because of sex because “[t]he attraction of males to female and females to males is a natural sex phenomenon”). Similarly, in Oncale v. Sundowner Offshore Services., Inc., 523 U.S. 75 (1998), this Court held that samesex sexual harassment was prohibited under the
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plain terms of Title VII. In that case, the employer argued that “even if plaintiff was . . . harassed ‘because’ he was a male, that harassment was not because of gender consistent with the underlying concerns of Congress in enacting Title VII.” Br. for Resp’ts at 15, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (No. 96-568), 1997 WL 634147, at *15 (internal quotation marks omitted). Yet as Justice Scalia wrote for a unanimous Court, there is “no justification . . . [for] excluding same-sex harassment claims from the coverage of Title VII,” even though it was “not the principal evil Congress was concerned with when it enacted Title VII.” Oncale, 523 U.S. at 79.
Likewise, in Newport News, this Court held that an employment policy that provided more limited pregnancy-related benefits to male employees’ spouses than to female employees violated Title VII. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 675 (1983). While “congressional discussion focused on the needs of female members of the work force rather than spouses of male employees,” that did not “create a ‘negative inference’ limiting the scope of the act to the specific problem that motivated its enactment.” Id. at 679. This Court held that the “simple test of Title VII discrimination” articulated in Manhart governed even if the application was not foreseen at the time of enactment. Id. at 683. The policy violated Title VII because “it would treat a male employee with dependents ‘in a manner which but for that person’s sex would be different.’” Id. at 682–83 (quoting Manhart, 435 U.S. at 711).
In all these cases, the plain text of Title VII and not the “principal concerns of our legislators”
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governed. Oncale, 523 U.S. at 79. To exclude Ms. Stephens’s firing from the ambit of Title VII’s protections would require doing what this Court has repeatedly refused to do: to rewrite the statute to include a limitation that does not exist on its face.
C. Neither Subsequent Legislative Action nor Inaction Has Changed the Relevant Text of Title VII.
Subsequent congressional action and inaction also afford no basis for excluding transgender employees from Title VII’s protection. Other laws, enacted long after Title VII, provide no guide to the meaning of Title VII. And while Congress has failed to enact laws that would have expressly included protection for discrimination based on transgender status, it has also failed to enact laws that would have expressly precluded protection for transgender individuals. Neither bears on whether transgender people are excluded from Title VII’s prohibition on discrimination because of sex.
Harris Homes argued below that sex discrimination against transgender people is implicitly excluded from Title VII because Congress passed unrelated statutes in 2009 and 2013 that separately enumerated the terms “gender identity” and “sex.” But “[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011). Congress’s use of the term “gender identity” in 2009 and 2013 says nothing about what the terms “because of such individual’s . . . sex” mean in Title VII as enacted. It is perfectly natural for Congress to use a belt-andsuspenders approach to ensure that a situation is
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covered. That another statute defines a particular term to cover only a subset of its possible meaning “proves only that Congress can use the” term in that manner, “not that it did so in [a] particular statute.” Robinson, 519 U.S. at 341–42 (emphasis in original) (explaining that the fact that other statutes expressly state that they cover “former employees” does not mean that the term “employees” as used in the anti-retaliation provision of Title VII does not also include former employees); see also Br. of Members of Congress as Amici Curiae in Support of the Employees (Part II.B).
Failed legislative proposals are even less probative. “[N]on-action by Congress affords the most dubious foundation for drawing positive inferences.” United States v. Price, 361 U.S. 304, 310–11 (1960). The failure of later Congresses to pass a federal civil rights law explicitly adding the term “gender identity” provides no basis for categorically excluding transgender people from Title VII’s scope. See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 170 (2001) (“A bill can be proposed for any number of reasons, and it can be rejected for just as many others.”). One “reasonable interpretation of that legislative non-history is that some Members of Congress believe that . . . the statute requires, not amendment, but only correct interpretation.” Schroer, 577 F. Supp. 2d at 308.
Inferences from inaction are doubly inappropriate here, as Congress has also failed to act on bills that attempted to expressly exclude transgender individuals from existing federal statutory protections, including Title VII. See, e.g., Civil Rights Uniformity Act of 2017, H.R. 2796, 115th Cong. § 3(b) (2017) (proposing that “[n]o
46

Federal civil rights law shall be interpreted to treat gender identity or transgender status as a protected class, unless such law expressly designates ‘gender identity’ or ‘transgender status’ as a protected class”).
In any event, even if these subsequent legislative actions and inactions mean that the term “sex” in Title VII is limited in the way Harris Homes and the United States suggest, Ms. Stephens’s firing would still violate Title VII, as explained in Points I and II above.
IV. THIS CASE DOES NOT TURN ON THE LAWFULNESS OF SEX-SPECIFIC EMPLOYMENT RULES GENERALLY OR THE APPLICATION OF SUCH RULES TO TRANSGENDER EMPLOYEES.
Though Harris Homes contends in its petition that it would not have fired Ms. Stephens had she stated she would follow the dress code for men, Pet. 5, the Sixth Circuit held, and the record establishes, otherwise. Pet. App. 16a–17a. Harris Homes fired Ms. Stephens not solely for her anticipated failure to abide by the dress code as it sought to enforce it, but more generally because she is transgender and her name, identification, behavior, and appearance did not comport with its expectations for men and women.
Given this record, the Court need not address the lawfulness of sex-specific employment rules generally or how such rules apply to transgender people. Resolution of those issues is not required here, is not contemplated in the questions for which this Court granted certiorari, and would not affect the outcome. Cf. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995) (declining to
47

address question not decided by the lower courts and not the question on which the Court granted review).
A. Ms. Stephens Was Fired for Being Transgender, Not Solely for How She Was Going to Comply with Harris Homes’s Dress Code.
The record shows that Harris Homes fired Ms. Stephens for being transgender and for failing to comport with Mr. Rost’s expectations of how men and women should identify, look, and behave, and not exclusively because of concerns about the dress code.
In its petition, Harris Homes made clear that its firing of Ms. Stephens was based on its owner’s objection to “a male representative of Harris Homes present[ing] himself as a woman while representing the company.” Pet. 5. By Mr. Rost’s own testimony, his concern was not limited to the company’s dress code. He objected to Ms. Stephens even calling herself “Aimee” because, in Mr. Rost’s view, “he’s a man.” Resp. App. 61a. Mr. Rost objected to having a woman working for him who would not “look like a woman.” Resp. App. 62a–63a. He believed that “[t]here is no way that . . . the person . . . [he] knew as . . . Stephens would be able to present in such a way that it would not be obvious that it was [a man].” Resp. App. 45a. Mr. Rost’s concern over how Ms. Stephens presented herself extended beyond the workplace, where the dress code does not apply. He admitted that if a customer saw Ms. Stephens dressed as a woman outside of work and complained, he “probably would have” considered that a factor in how to address her “situation” and “perhaps, yes” would have fired her on that basis. J.A. 78–79.
48

Indeed, Mr. Rost never even discussed the dress code with Ms. Stephens. J.A. 44–45, 49, 93–95.
As this evidence makes clear, and as the court below found, it was not the dress code alone, but a collection of sex-based traits and stereotypes that caused Harris Homes to fire her. As the Sixth Circuit correctly explained,
[Harris Homes]’s sex-specific dress code does not preclude liability under Title VII. Even if [Harris Homes]’s dress code does not itself violate Title VII—an issue that is not before this court— [Harris Homes] may not rely on its policy to combat the charge that it engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts [Harris Homes]’s perception of how she should appear or behave based on her sex.
Pet. App. 21a–22a.
The record fully supports the Sixth Circuit’s holding. Given the scope of Mr. Rost’s stereotypes about how men and women should identify, look, and act, it is not plausible that Harris Homes would have retained Ms. Stephens if she appeared at work using her new, traditionally feminine name, wearing makeup, styling her hair in a traditionally feminine way, and displaying traditionally feminine mannerisms, even if she strictly complied with the dress code for men. J.A. 119–20. Harris Homes fired Ms. Stephens because she intended to express herself as a woman even though she was assigned the male sex at birth, and would therefore never meet Mr.
49

Rost’s expectations of how men and women should look and behave. And although counsel for Harris Homes raised concerns about restrooms in its petition for certiorari, Pet. 5, Mr. Rost testified that any concern about restroom use was “hypothetical,” J.A. 37.
B. The Question of Whether Sex-Specific Policies Are Permissible or How They Apply to Transgender Workers Is Not Presented.
Because Ms. Stephens was fired simply for being transgender, and not exclusively due to concerns regarding dress codes or restrooms, questions regarding sex-specific policies need not, and should not, be resolved here. Moreover, resolution of questions about such policies would turn on the meaning of different statutory terms. Here, there is no question that Ms. Stephens’s firing is a harm that qualifies as “discrimination” under Title VII; the focus of the dispute is whether Harris Homes fired Ms. Stephens because of her sex. In cases involving sex-specific policies, by contrast, there is no question that such policies are sex-based. The determinative question would instead be whether they fall within the scope of the discriminatory employment practices that Title VII forbids.
Where a policy imposes different rules for men and women, it facially classifies employees because of such employees’ sex. The question of liability under Title VII then turns on whether such policies “discriminate” with respect to the “terms” or “conditions” of an individual’s employment. 42 U.S.C. § 2000e-2(a)(1). This is true regardless of whether
50

the employee is transgender. Some lower courts have upheld sex-specific policies on the grounds that, if they do not “unreasonably burden” the employee based on sex, they are not discriminatory. See, e.g., Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1110 (9th Cir. 2006) (en banc) (upholding a sexspecific dress code). This case is not an appropriate vehicle for determining whether those opinions are rightly decided, or how sex-specific policies, if permissible, would apply to transgender people. Such review may require further consideration of the meaning of the terms “discriminate” and “terms [or] conditions” under Title VII, but are beyond the scope of this case. The same is true for questions about single-sex restroom usage by transgender employees, a concern that Mr. Rost admitted was “hypothetical,” that Harris Homes failed to raise or litigate below, and that neither court below decided.
In its petition, Harris Homes suggests that forbidding employers from discharging employees because they are transgender would somehow automatically invalidate all sex-specific rules. Pet. 27. But that is not true. First, no party challenged any sex-specific policy in this case. Second, regardless of the outcome of this case, questions about such sex-specific policies would still have to be resolved, and the analysis used for those questions would not change. The existence of separate restrooms for men and women, for example, would violate Title VII only if an individual employee could show that the restrooms adversely affected a term or condition of the employee’s employment. 42 U.S.C. § 2000e-2(a)(1). Ultimately, questions about the lawfulness and application of sex-specific policies will remain regardless of this Court’s determination
51

of whether Harris Homes fired Ms. Stephens because of her sex in violation of Title VII.

CONCLUSION

For the foregoing reasons, this Court should affirm the judgment of the court of appeals.

Respectfully Submitted,

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

John 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

Counsel for Respondent Aimee Stephens

Date: June 26, 2019

52

CERTIFICATE OF COMPLIANCE
Case No.18-107 Caption: R.G. and G.R. Harris Funeral Homes v. EEOC and Aimee Stephens
As required by Supreme Court Rule 33.l(h), I certify that the document contains 13,488 words, excluding the parts of the document that are exempted by Supreme Court Rule 33.l(d).
I declare under penalty of perjury that the foregoing is true and correct.
Executed on June 26, 2019.
al~ Alessandra Kane Record Press, Inc.
Sworn to before me on June 26, 2019
RAMIRO A. HONEYWELL Notary Public, State of New York
No 1H06118731 Quali d in Kings County
xpires November 15, 2020

Record Press Inc., 229 West 36th Street, New York, N.Y. 10018• Tel: (212) 619-4949• Fax No. (212] 608-3141

STATE OF NEW YORK,

SS:

79043

COUNTY OF NEW YORK

AFFIDAVIT OF SERVICE

Edward Gutowski being duly sworn, deposes and says that deponent is not party to the action, and is over 18 years of age.
That on the 26th day of June 2019 deponent served 3 copies of the within

BRIEF FOR RESPONDENT AIMEE STEPHENS

upon the attorneys at the addresses below, and by the following method:

BY FEDERAL EXPRESS NEXT BUSINESS DAY DELIVERY ANO ELECTRONIC MAIL

James A. Campbell Alliance Defending Freedom 151 00 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 jcampbell@ADFlegal.org
Counsel ofRecord for Petitioner RG. 8 G.R Harris Funeral Homes. Inc

Noel J. Francisco
Solicitor General United States Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 (202) 514-2217 SupremeCtBriefs@USDOJ.gov
CounselofRecord for Respondent Equal OpportunityEmployment Commission

I, Edward Gutowski, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, executed on June 26, 2019, pursuant to Supreme Court Rule 29.5[c]. All parties required to be served, have been served.

Sworn to me this
June 26, 2019
RAMIRO A HONEYWELL Notary Pubhc, State of New Yor k
No. 01H0 611 8 7 3 1

Case Name: A.G. & G.R. Harris Funeral Homes v. EEOC
Docket No.: 18· 107

 
 NO. 18-107
IN THE
Supreme Court of the United States

R.G. & G.R. HARRIS FUNERAL HOMES, INC., Petitioner,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent,
and
AIMEE STEPHENS, Respondent-Intervenor.

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

BRIEF FOR THE PETITIONER

JOEL J. KIRKPATRICK JOEL J. KIRKPATRICK, P.C. 843 Penniman Ave., Suite 201 Plymouth, MI 48170 (734) 404-5710

KRISTEN K. WAGGONER DAVID A. CORTMAN JOHN J. BURSCH Counsel of Record JAMES A. CAMPBELL KATHERINE L. ANDERSON JEANA J. HALLOCK ALLIANCE DEFENDING FREEDOM 440 First Street, N.W. Suite 600 Washington, D.C. 20001 (616) 450-4235 jbursch@ADFlegal.org

Counsel for Petitioner

i
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).

ii
PARTIES TO THE PROCEEDING
There are no parties to the proceeding other than those listed in the caption. Petitioner is R.G. & G.R. Harris Funeral Homes, Inc., a closely held, for-profit corporation. Respondents are the Equal Employment Opportunity Commission (EEOC) and Intervenor Aimee Stephens.
CORPORATE DISCLOSURE STATEMENT
Petitioner has no parent corporation or publicly held company that owns 10% or more of its stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.................................... i

PARTIES TO THE PROCEEDING ..................... ii

CORPORATE DISCLOSURE STATEMENT ..... ii

TABLE OF AUTHORITIES................................. v

INTRODUCTION................................................. 1

STATEMENT OF THE CASE ............................. 5

A. Harris Funeral Homes ............................ 5

B. Stephens .................................................. 8

C. Title VII ................................................. 10

D. Proceedings below ................................. 12

SUMMARY OF THE ARGUMENT ................... 14

ARGUMENT ...................................................... 16

I. Stephens’s transgender-status claim falls outside Title VII's prohibition on sex discrimination. ............................................. 17

A. Title VII’s original public meaning prohibits employers from treating one sex worse than the other because of sex. ..................................................... 17

B. Stephens does not allege that Harris disfavored one sex over the other. ........ 25

II. Stephens has no claim for sex stereotyping.................................................. 31

A. This case does not fit within Price Waterhouse............................................. 31

B. Stephens’s stereotyping arguments do not establish sex discrimination. .......... 38

iv
TABLE OF CONTENTS—Continued
III. This Court’s holdings in Oncale and Newport News—which correctly focus on Title VII’s meaning rather than Congress’s subjective intent—do not support judicially creating a new Title VII classification.......................... 40
IV. Stephens’s remaining theories of statutory construction are backwards......................... 42
V. Redefining sex discrimination will cause problems and create harms. ........................ 45
CONCLUSION ................................................... 57

v
TABLE OF AUTHORITIES Page(s)
Cases
Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991) ..............................................47
Bob Jones University v. United States, 461 U.S. 574 (1983)..............................................22
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)................................................18
Burrage v. United States, 571 U.S. 204 (2014) ..............................................53
Casoni v. U.S. Postal Service, EEOC DOC 01840104, 1984 WL 485399 (Sept. 28, 1984)........................................22
Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012)................................................23
Dillon v. Frank, No. 90-2290, 1992 WL 5436 (6th Cir. Jan. 15, 1992) .......................................................29
Dothard v. Rawlinson, 433 U.S. 321 (1977) ........................................44, 47
Duncan v. Walker, 533 U.S. 167 (2001) ..............................................21
EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015)..........................................30
Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973)....................................15, 29, 43

vi
TABLE OF AUTHORITIES—Continued Page(s)
Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007)............................18
Farmer v. Brennan, 511 U.S. 825 (1994) ................................................8
Flood v. Kuhn, 407 U.S. 258 (1972) ..............................................22
Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016) .................50
Franklin v. Gwinnett County Public School, 503 U.S. 60 (1992)................................................50
Frontiero v. Richardson, 411 U.S. 677 (1973) ........................................25, 28
General Electric Co. v. Gilbert, 429 U.S. 125 (1976) ..............................................23
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) ..............................................19
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)..........................................11, 17
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017)....................................16, 53
Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) ........................ passim
Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977)..........................11, 22
INS v. Chadha, 462 U.S. 919 (1983) ..............................................16

vii
TABLE OF AUTHORITIES—Continued Page(s)
Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006)..............................18
Landgraf v. USI Film Products, 511 U.S. 244 (1994) ..............................................22
Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978) ..............................3, 11, 25, 33
New Prime, Inc. v. Oliveira, 139 S. Ct. 532 (2019)......................................16, 53
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) ........................................40, 41
Nguyen v. INS, 533 U.S. 53 (2001)..........................................14, 35
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) ........................ 11, 17, 25, 40, 41
Paroline v. United States, 572 U.S. 434 (2014) ..............................................17
Paul E. v. Courtney F., 439 P.3d 1169 (Ariz. 2019)...................................55
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) ..............................................31
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...................................... passim
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ..............................................34

viii
TABLE OF AUTHORITIES—Continued Page(s)
Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014) ..............................................53
Solid Waste Agency of Northern Cook County v. U.S. Army Corp. of Engineers, 531 U.S. 159 (2001) ..............................................22
Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982)..........................11, 22
Staub v. Proctor Hospital, 562 U.S. 411 (2011) ..............................................30
Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015)....................................23, 52
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977)................................................26
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984)..................11, 22, 24
United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) ..............................................26
United States v. Davis, 139 S. Ct. 2319 (2019)..........................................21
United States v. Virginia, 518 U.S. 515 (1996)..................................18, 25, 45
University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) ........................................30, 31
Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ..............................................11

ix
TABLE OF AUTHORITIES—Continued Page(s)
Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001) ..............................................24
Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067 (2018)....................................42, 56
Wittmer v. Phillips 66 Co., 915 F.3d 328 (5th Cir. 2019)................................24
Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) .....................36, 37, 53
Statutes 8 U.S.C. 1401–1409 ...................................................29 18 U.S.C. 249 .............................................................21 20 U.S.C. 1681 ...........................................................50 34 U.S.C. 12291 .........................................................21 42 U.S.C. 12211 ...................................................20, 24 42 U.S.C. 18116 .........................................................50 42 U.S.C. 2000bb .......................................................12 42 U.S.C. 2000e .........................................................28 42 U.S.C. 2000e-1 ......................................................50 42 U.S.C. 2000e-2 .............................................. passim 42 U.S.C. 3604 ...........................................................52 775 Ill. Comp. Stat. 5/5-103 ......................................46 Civil Rights Act of 1991, Public Law No.
102-166, 105 Stat. 1071 .......................................21

x
TABLE OF AUTHORITIES—Continued Page(s)
Conn. Gen. Stat. 46a-60 ............................................21
Iowa Code 216.6 ........................................................21
N.M. Stat. Ann. 28-1-9 ..............................................46
Wis. Stat. 106.52 .......................................................46
Other Authorities
American Psychological Association, Answers to Your Questions about Transgender People, Gender Identity, and Gender Expression ......................................................20, 47
Annelou L.C. de Vries et al., Puberty Suppression in Adolescents with Gender Identity Disorder: A Prospective FollowUp Study, 8 Journal Sexual Medicine 2276 (2011) ...........................................................55
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012) ................................................23
Black’s Law Dictionary (11th ed. 2019)....................24
Cecilia Dhejne et al., Long-term follow-up of transsexual persons undergoing sex reassignment surgery (Feb. 22, 2011)..................54
Civil Rights and Women’s Equity in Employment Act of 1991, H.R. 1, 102d Congress ...............................................................30
Congregation for Catholic Education, “Male and Female He Created Them” (June 2019)...........................................................49

xi
TABLE OF AUTHORITIES—Continued Page(s)
David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945-2001, 33 Archives of Sexual Behavior 87 (2004) ....20, 24
DSM-5 (5th ed. 2013) ....................................19, 20, 47
Kenneth J. Zucker, The myth of persistence, 19 International Journal of Transgenderism 231 (2018) .............................55
Letter from Rep. Ilhan Omar to USA Powerlifting (Jan. 31, 2019) ................................52
McKinnon is first transgender woman to win world title, Cycling News (Nov. 1, 2018) .....................................................................51
New York City Commission on Human Rights, Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression .............................49
Peggy T. Cohen-Kettenis et al., The Treatment of Adolescent Transsexuals: Changing Insights, 5 J. Sexual Med. 1892, 1893 (2008) .................................................54
Random House Dictionary of the English Language (1966).............................................17, 18
S. Rep. No. 95-331 (1977)..........................................23
Taryn Knox et al., Transwomen in elite sport: scientific and ethical considerations, 45 Journal of Medical Ethics 395 (June 2019).........52

xii
TABLE OF AUTHORITIES—Continued Page(s)
Teacher fired for refusing to use transgender student’s pronouns, NBC News (Dec. 10, 2018)............................................48
The American Heritage Dictionary of the English Language (1st ed. 1969) .........................19
Todd S. Perdum, An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 (2014) .....................................11
Webster’s New World Dictionary of the American Language (College ed. 1962)...............19
Webster’s Third New International Dictionary of the English Language Unabridged (1964) ...............................................17
Weightlifter Hubbard becomes lightning rod for criticism of transgender policy, Reuters (July 29, 2019)........................................51
Regulations
34 C.F.R. Part 106.....................................................50

1
INTRODUCTION
Federal courts should not usurp Congress’s authority by judicially amending the word “sex” in federal nondiscrimination law to include “transgender status.” Redefining sex discrimination will cause problems in employment law, reduce bodily-privacy protections for everyone, and erode equal opportunities for women and girls, among many other consequences. Congress, not the courts, is the institution best positioned to balance those considerations.
R.G. & G.R. Harris Funeral Homes is a fifthgeneration family business that has helped grieving families heal for more than 100 years. To that end— and to ensure clients focus on processing grief, not on the funeral home and its staff—Harris’s employees agree to follow a professional, sex-specific dress code, consistent with industry standards and as federal law allows. In 2007, Harris hired funeral director Anthony Stephens. There were ups and downs in Stephens’s tenure, and in early 2013, a manager wanted to end Stephens’s employment. But Tom Rost, Harris’s owner, intervened to save Stephens’s job.
Six months later, Stephens handed Tom a letter. The letter was the first Tom learned that Stephens experienced gender dysphoria, and it announced that Stephens had decided to start presenting and dressing as a woman at work. Tom took two weeks to carefully consider this. He weighed the impact of his decision on Stephens and Stephens’s wife. He also thought about his female employees and clients who would be sharing a single-sex restroom with Stephens. Finally, he considered the impact on his clients’ grieving process. In the end, Tom could not agree to Stephens’s plan to violate the dress code, so he offered Stephens a severance. The EEOC then sued.

2
The federal government now agrees that Tom’s decision to respectfully decline Stephens’s demand was not sex discrimination. But Stephens urges this Court to hold Harris liable by redefining the meaning of sex discrimination. So the Court must decide the public meaning of sex discrimination in 1964, the year Congress enacted Title VII.
In 1964, as today, sex discrimination meant differential treatment based on a person’s biological sex, something fixed and objectively ascertained based on chromosomes and reproductive anatomy. It occurs when employers favor men over women, or vice versa, because of their sex. That is what Title VII forbids.
While purportedly agreeing on the appropriate interpretive methodology and the meaning of “sex” in 1964, Stephens Br. 24 n.10, Stephens nonetheless argues that sex discrimination does not require disparate treatment of one sex over the other, opening the door to discrimination claims based on transgender status. But Stephens’s view drastically expands the meaning of sex discrimination and rewrites Title VII to add protected categories that Congress never included, all without advance notice to employers.
It is not sex discrimination for an employer to apply a sex-specific dress code or provide sex-specific changing and restroom facilities based on biological sex rather than one’s internal sense of gender. Here, Harris Funeral Homes would have responded to a female employee who insisted on dressing as a man while working with grieving families the same way it responded to Stephens. Because it does not disfavor one sex compared to the other, Harris does not discriminate based on sex.

3
It is also wrong to say that the proper comparator for Stephens is a biological female who wants to dress as a female. Stephens is a transgendered biological male, so the proper comparator is a transgendered biological female. Changing the comparator’s sex and transgender status fails to demonstrate that Harris treats male employees differently than similarly situated female employees. It is a shell game—not a tool for statutory construction.
Similarly, it is not illegal “stereotyping” for an employer to apply a sex-specific dress code based on biological sex. To begin, this Court has never construed Title VII as providing an independent cause of action for sex stereotyping. The plurality in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held only that stereotyping could be used as evidence to show “disparate treatment of men and women.” Id. at 251 (quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).
Stephens is not trying to show that stereotyping evidence helps prove that Harris treated Stephens less favorably than a female employee who desired to dress according to the male dress code. What Stephens argues is that “sex” itself is a stereotype. Congress did not share that position, which would require eliminating sex-specific policies altogether, including sex-specific overnight facilities or showers. At the same time, Stephens asks the Court to force employers to stereotype by, for example, only allowing a male employee to dress as a female if the employee “meet[s] the expectations” of what a female should look like. J.A. 113–14. These are impossible rules for employers to enforce.

4
Stephens also advances various policy arguments for why this Court should circumvent Congress and judicially amend the law. These ignore the practical consequences of the legal change Stephens seeks.
First, redefining sex discrimination in Title VII will prohibit employers from maintaining sex-specific privacy in overnight facilities, showers, restrooms, and locker rooms. It will prevent employers from protecting privacy through bona fide occupational qualifications, such as allowing only females to work as a women’s sexual-abuse counselor. And it will substantially infringe employers’ and employees’ rights to free speech and religious freedom.
Second, judicially rewriting sex discrimination in Title VII will spill over into other federal laws that prohibit sex discrimination. It will deny women and girls fair opportunities to compete in sports, to ascend to the winner’s podium, and to receive critical scholarships. It will also require domestic-abuse shelters to allow men to sleep in the same room as female survivors of rape and violence. And it may dictate that doctors and hospitals provide transition services even in violation of their religious beliefs.
Finally, redefining sex discrimination by judicial fiat will have broader impacts, including damage to the constitutional separation of powers, potential harm to individuals experiencing gender dysphoria, and new strains on parent-child relationships.
In sum, elected legislative- and executive-branch officials should carefully consider everyone’s interests when changing nondiscrimination legislation. Courts are the branch least equipped to do so. This Court should reverse the Sixth Circuit’s reimagining of Title VII and direct that judgment be entered for Harris.

5
STATEMENT OF THE CASE
A. Harris Funeral Homes
Tom Rost owns Harris Funeral Homes, a fifthgeneration family business serving families mourning the loss of loved ones since 1910. Pet. App. 90a. The business was founded by Tom’s grandfather and grandmother—one of the first licensed female funeral directors in Michigan. Tom’s grandparents lived above the funeral home at Harris’s original location in downtown Detroit. Tom is a past president of Preferred Funeral Directors International, and his location in Livonia has been recognized as the city’s funeral home of the year. J.A. 123.
As a devout Christian for more than 65 years, a former member of the deacon board at Highland Park Baptist Church, and a prayer leader at corporate events, Resp. App. 76a–77a, Tom believes his life’s purpose “is to minister to the grieving.” Pet. App. 103a. Indeed, “his religious faith compels him to do that important work.” Ibid.; J.A. 124. Harris’s mission statement—posted prominently on its website— confirms that the company’s “highest priority is to honor God in all that [they] do.” J.A. 176; Resp. App. 77a.
Tom takes that mission seriously. Funerals are solemn events that address transcendent matters, hold deep spiritual significance, and mark difficult times of life. J.A. 123–24. They are often painful experiences, and attendees must be able to focus on each other and their grief. Ibid. From placing a rose on the bed when removing the remains of a loved one, to ensuring that all staff are trained in grief counseling, to teaching clients about the stages of grieving, Harris’s goal is to “set the tone for a healing transformational experience.” Id. at 123–25.

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Harris follows professional codes of conduct and dress so that clients can focus on processing their grief, not on the funeral home or its employees. J.A. 123–24. As Tom explains, there’s an “expectation” for funeral-home representatives, “how they’re going to dress and how they’re going to look.” Id. at 28–29.
Harris’s dress code for employees interacting with clients is integral to meeting this goal. J.A. 77, 119– 21, 129. The dress code—standard for the industry and consistent with federal law—is sex-specific; Harris provides funeral directors with matching suits to wear while working with grieving families: pant suits for male funeral director and skirt suits for female funeral directors. Id. at 119–21, 103–05, 133– 34; EEOC Compliance Manual 619.4(d) (“[A] dress code may require male employees to wear neckties at all times and female employees to wear skirts or dresses at all times.”) (available at Reply App. 1a).1 Harris also provides suits and ties to other male employees who interact with clients. J.A. 137–39. Tom would have preferred to provide a women’s suit to all other female employees who interact with clients as well. But Harris’s female employees could not agree on the cut, color, or shape of such outfits. Id. at 74–75, 139–40, 173–74. That is what caused Tom to kid that “women are a strange breed.” Resp. App. 11a. Accordingly, Tom provides female employees an annual allowance that is equivalent to the value of the suits after accounting for the multiple years a suit will be used before replacement is necessary. J.A. 67–68.
1 Female employees who do not interact with the public may wear pants. J.A. 160.

7
Harris maintains its dress code because funeral directors are “prominent public representatives” of the company. J.A. 129. Stephens, for example, would “often” be the first Harris staff person to make faceto-face contact with a family. Id. at 125. Funeral directors regularly interact with clients and guests. Id. at 124–29. They arrive immediately after a loved one has passed and have the delicate task of removing the deceased’s body from the home or hospital. Id. at 124–25. They also help “integrat[e] the clergy” into services, greet guests, and coordinate the family’s “final farewell” to their loved one. Id. at 127–29.
During Tom’s first 35 years at the helm, only one female applied for a funeral director position, but that applicant was not qualified. J.A. 133. That recently changed, and one of Harris’s current directors is a woman. Contra Stephens Br. 11.
At all times, Harris has administered its dress code based on biological sex, not gender identity. Stephens does not challenge the dress code itself. Stephens Br. 50–51. Instead, Stephens says that it constitutes sex discrimination to apply a dress code based on biological sex rather than an employee’s internal sense of gender. Before this case, neither Tom nor Harris had been accused of workplace discrimination of any kind. Dep. of Tom Rost dated Nov. 12, 2015 at 4, ECF No. 54-4.2
2 Stephens accuses Tom of distinguishing between his “key people” and his “lady attendants.” Stephens Br. 11. That is inaccurate. One of Tom’s most indispensable “key” people, his business manager, is a woman. J.A. 206.

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B. Stephens
Tom hired Anthony Stephens, a biological male, as a funeral director apprentice in 2007. J.A. 84–85, 88–89. It is a substantial understatement to say—as Stephens does—that at the time of hire, Stephens merely conformed dress and appearance to Stephens’s “sex assigned at birth.” Stephens Br. 5–6. Every pertinent employment record—including Stephens’s driver’s and mortuary-science licenses—identified Stephens as male. J.A. 70, 152; Resp. App. 14a-15a.3
No one contests that for nearly six years, Stephens wore the suit and tie that Harris provided without questioning the funeral home’s sex-specific dress code. J.A. 100, 105, 107, 152. As Stephens admits, nothing would have suggested to anyone at Harris that Stephens was “anything other than a man.” Id. at 110.
As an employee, Stephens had “ups and downs.” Resp. App. 10a. Early 2013 brought “attitude” issues, including refusing to help stack chairs for Dolly, an 80-year-old female coworker. Ibid. Tom’s manager wanted to fire Stephens. Ibid. But because of Tom’s concern for Stephens—the same concern he has for all his employees—he talked to Stephens and attempted to solve the problem. Ibid.; EEOC Aff. of George Crawford at 4-5, ECF No. 54-19.
3 Stephens’s counsel indicates it is proper to refer to Stephens as “she” and “a woman.” Stephens Br. 9 n.6. Out of respect for Stephens and following this Court’s lead in Farmer v. Brennan, 511 U.S. 825 (1994), Harris tries to avoid use of pronouns and sex-specific terms when referring to Stephens. When such terms must be used, Harris uses sex-based language consistent with Title VII’s meaning.

9
Six months later, Stephens gave Tom a letter informing Tom that Stephens identifies as female. In the letter, Stephens insisted on dressing and presenting as a woman while working with the grieving families that Harris serves. Resp. App. 1a-2a. The letter was signed by both “Anthony Stephens” and “Aimee A. Stephens.” Id. at 2a. Rather than approach Tom confidentially, Stephens had shown the letter to nearly “everybody else” that worked for Harris before giving it to Tom. J.A. 92.
Tom took two weeks to carefully consider the demand, J.A. 45, which Stephens anticipated was “sure” to be “distressing” to Tom and co-workers. Resp. App. 2a. Tom’s first thoughts were for Stephens and Stephens’s wife, and he intuited that this situation was difficult for Stephens. Tom also thought about the issues created by Stephens using the singlesex restroom with other female employees. J.A. 34–37, 57; Pet. App. 65a.4 (The Garden City location where Stephens worked had only single-sex restrooms. J.A. 37.) The same issues would have arisen with female clients and guests. Finally, Tom carefully considered the needs of his clients processing their grief. See id. at 176 (“The bereaved families and friends we serve are always our primary consideration.”).
4 It is inaccurate to say that sex-specific restrooms are not at issue under these facts specifically or when interpreting Title VII generally. Contra Stephens Br. 50. Restroom use was “hypothetical” because Tom made his decision based on Stephens’s demand to violate the sex-specific dress code. J.A. 36– 37. But Tom did consider the restroom issue when processing his decision. E.g., id. at 57; Pet. App. 65a.

10
In the end, Tom said that Stephens’s demand was “not going to work out.” J.A. 49–50. Because Tom wanted to reach “a fair agreement,” he offered Stephens a severance package, but Stephens declined it. Id. at 48.
Stephens says that Harris’s decision was motivated by Stephens’s self-identification as transgender. But the decisive consideration was Stephens’s insistence on violating the sex-specific dress code at work. J.A. 54–55, 132–33, 196–97. Tom would not have reached the same decision had Stephens “continued to conform to the dress code for male funeral directors while at work.” Id. at 55, 132–33.5 And Tom would have reached the same decision if a female funeral director had told him that she would not comply with the sex-specific dress code requirements. J.A. 134.6
C. Title VII
Congress enacted Title VII in 1964 to prohibit discrimination in employment based on an individual’s “race, color, religion, sex, or national origin.”
5 Stephens tries to create an immaterial fact dispute by citing Tom’s ambiguous personal deposition testimony to suggest that Tom would have considered Stephens’s non-work dress in making employment decisions. Stephens Br. 10; cf. J.A. 78–79. But as Tom unambiguously testified in his 30(b)(6) deposition and declaration, he would not consider outside dress a factor. J.A. 55, 132–33.
6 Stephens wrongly accuses Tom of insisting that all men should look like men and all women like women. E.g., Stephens Br. 11. Tom is not policing the masculinity and femininity of his employees. Tom made the comment Stephens quotes in a deposition when asked to explain why he has a sex-specific dress code. Resp. App. 62a–63a. The testimony had nothing to do with Tom’s decision to decline Stephens’s demand.

11
42 U.S.C. 2000e-2(a)(1). Congress’s “major concern” was ending “race discrimination.” Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977). But one day before the House approved the legislation, the word “sex” was added as a floor amendment. Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984).
At that time, only two states prohibited sex discrimination in employment, and many states continued to “protect” women from workplace rigors. Todd S. Perdum, An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 196 (2014). The sex-discrimination prohibition was understood by all to address the lack of “equal opportunities for women” in employment, Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (per curiam), to “ensure that men and women are treated equally,” Holloway, 566 F.2d at 663.
In a disparate treatment case like this one, an employee must prove an employer’s “discriminatory intent or motive.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988). This requires proof that an employer “disadvantage[d]” one sex compared to the other. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)) (“‘The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’”). Title VII’s sex-discrimination ban requires plaintiffs to show “disparate treatment of men and women.” Price Waterhouse, 490 U.S. at 251 (plurality) (quoting Manhart, 435 U.S. at 707 n.13).

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D. Proceedings below
After Stephens filed an EEOC charge against Harris, the EEOC sued, alleging that Harris had violated Title VII by discharging Stephens (1) “because Stephens is transgender” and sought to “transition from male to female,” and (2) “because Stephens did not conform to [Harris’s] sex- or genderbased preferences, expectations, or stereotypes.” Pet. App. 166a. The EEOC sought to enjoin Harris from “discriminat[ing] against an employee or applicant because of their sex, including on the basis of gender identity.” Id. at 168a (emphasis added).
The district court dismissed the transgenderstatus claim because “transgender or transsexual status is currently not a protected class under Title VII.” Pet. App. 172a (citations omitted). The court held that the EEOC could proceed with a sexstereotyping claim but nonetheless granted Harris summary judgment under the Religious Freedom Restoration Act, 42 U.S.C. 2000bb. Pet. App. 142a.
On appeal, after the Sixth Circuit allowed Stephens to intervene, Pet. App. 12a–13a, the court reversed and ordered judgment for the EEOC on both the transgender-status and sex-stereotyping claims. The Sixth Circuit first held that under Price Waterhouse employers always engage in unlawful sex stereotyping when they administer sex-specific policies according to biological sex instead of transgender status. Id. at 15a–18a. Thus, while federal law allows an employer to maintain a sexspecific dress code, shower and locker-room policy, bona fide occupational qualification, fitness requirement, and medical coverage, the Sixth Circuit will not allow the employer to administer any of those policies based on biological sex. So an employer must allow a

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man who identifies as female to dress as a woman, shower with female coworkers, apply for jobs reserved for women (e.g., as a women’s sexual-abuse counselor), do fewer pushups than the employer requires of men, and enroll in a health plan that covers drugs for women.
Next, the Sixth Circuit judicially amended the word “sex” in Title VII to include “gender identity,” holding that “discrimination on the basis of transgender . . . status violates Title VII.” Pet. App. 22a. As the Sixth Circuit explained, the very idea of “sex”—which determines a person’s status as male or female based on reproductive anatomy and physiology—is an illicit stereotype about “how sexual organs and gender identity ought to align.” Id. at 26a– 27a. Moreover, said the court, “it is analytically impossible” to apply sex-specific policies to an employee who asserts a gender identity that differs from the employee’s sex “without being motivated, at least in part, by the employee’s sex.” Id. at 23a.
The Sixth Circuit also said that Title VII protects “transitioning status,” Pet. App. 22a, and in so doing, left no doubt that the court read “gender identity” into the statute. See id. at 24a–26a. Dismissing as “immaterial” whether “a person’s sex can[ ] be changed,” id. at 26a, the court emphasized that “gender identity” is “fluid” and “variable.” Id. at 24a n.4. Gender identity is also “difficult to define,” because it has an “internal genesis that lacks a fixed external referent.” Ibid. Judges should “authenticat[e]” sex through professions of identity rather than “medical diagnoses.” Id. at 24a–25a n.4.
Finished judicially altering Title VII, the Sixth Circuit held that RFRA was not a defense. Pet. App. 41a–73a. Forcing Tom to violate his religious beliefs

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or to give up his ministry to the grieving did not “substantially burden” his religious exercise. Id. at 46a–56a. The Sixth Circuit granted the EEOC summary judgment. Id. at 81a.
SUMMARY OF THE ARGUMENT
The original public meaning of Title VII’s ban on sex discrimination prohibited employers from treating one sex less favorably than the other because of sex. Here, Stephens does not allege that Harris favored one sex over the other or treated Stephens differently than a similarly situated female employee. Accordingly, Stephens’s transgender-status claim is not within Title VII’s prohibition on sex discrimination.
Stephens has no claim for sex stereotyping, either. The plurality in Price Waterhouse did not judicially amend Title VII to create an independent cause of action for sex stereotyping, and the Court should not do so now. Moreover, the Sixth Circuit was wrong to treat sex itself as a stereotype because the “[p]hysical differences between men and women” relating to reproduction—the very factors that determine sex— are not “gender-based stereotype[s].” Nguyen v. INS, 533 U.S. 53, 68 (2001). And Stephens’s stereotyping arguments do not establish sex discrimination because, unlike the facts in Price Waterhouse, they do not show unfavorable treatment of one sex compared to the other. Without such favoritism, there is no actionable claim of sex discrimination under Title VII.
This Court’s holdings in Oncale and Newport do not change things. Both cases hold that courts must interpret Title VII consistent with its public meaning in 1964, not the intent of any individual member of Congress. And neither case judicially amended Title

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VII to create a new classification. The Court should decline Stephens’s invitation to do so here.
Harris is asking the Court not to rewrite Title VII by adding a classification that Title VII’s text omits; Harris is not asking the Court to exclude transgender individuals from Title VII. They are protected from sex discrimination just the same as everyone else. The Court made this exact point in declining to add alienage as a Title VII classification in Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 95 (1973).
Finally, Stephens is wrong to say that applying the plain, public meaning of Title VII will undermine the statute. A ruling for Harris will mean that Title VII continues to protect against the same discriminatory employment practices that the statute has outlawed for half a century. Conversely, judicially amending Title VII’s sex-discrimination prohibition to include transgender status has many consequences in employment law and other contexts. These consequences show how crucial it is for the courts to defer to the legislative branch when it comes to important policy questions.
Accordingly, the Court should reverse the Sixth Circuit and direct that judgment be entered for Harris as a matter of law.

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ARGUMENT
As this Court recently and unanimously reaffirmed, it is a “fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary meaning at the time Congress enacted the statute,” i.e., their original public meaning. New Prime, Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (cleaned up). “After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the ‘single, finely wrought and exhaustively considered, procedure’ the Constitution commands.” Ibid. (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)). Accordingly, this Court will not rewrite a statute “under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017) (citation omitted).
The Sixth Circuit here did not faithfully apply Title VII’s ban on sex discrimination. Instead, the court judicially updated the law to reflect the court’s preferred policy choice. That decision was wrong as a matter of original public meaning. And redefining the meaning of sex discrimination creates innumerable problems in federal law. This Court should reverse.

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I. Stephens’s transgender-status claim falls outside Title VII’s prohibition on sex discrimination.
A. Title VII’s original public meaning prohibits employers from treating one sex worse than the other because of sex.
Title VII’s operative words prohibit discrimination because of sex. The public meaning of the phrase in 1964 is not difficult to discern.
1. Start with the term “discriminate.”7 It means to make a difference in treatment or favor on a class or group basis. Discriminate, Random House Dictionary of the English Language 411 (1966) (“to make a distinction in favor of or against a person or thing on the basis of the group, class, or category to which the person or thing belongs”); Discriminate, Webster’s Third New Int’l Dictionary of the English Language Unabridged 648 (1964) (“to make a difference in treatment or favor on a class or categorical basis”).
It is this kind of discrimination—less favorable treatment of people of certain classes—that Title VII targets. Oncale, 523 U.S. at 80 (quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)) (“‘The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’”).
7 Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge . . . or otherwise to discriminate against any individual.” 42 U.S.C. 2000e-2(a)(1). The phrase “otherwise to discriminate against” is “most naturally understood as a summary of the type[s]” of adverse actions covered. Paroline v. United States, 572 U.S. 434, 447 (2014).

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“Discriminate” can also mean merely discerning or noticing differences, such as to discriminate the individual voices in the choir. Discriminate, Random House Dictionary of the English Language 411 (1966) (“to note or observe a difference; distinguish accurately”). But “discriminate” in Title VII is followed by the word “against,” which makes clear that this meaning does not apply here. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (“No one doubts that the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.”).
If it did, sex-specific showers, restrooms, and locker rooms would be unlawful, as would sex-specific dress codes, because they all require an employer to notice differences in an employee’s sex. Contra United States v. Virginia, 518 U.S. 515, 556–58 (1996) (recognizing the need to continue separating sex-specific privacy facilities when integrating women into the Virginia Military Institute); Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104, 1108–13 (9th Cir. 2006) (en banc) (upholding sex-specific dress and appearance policy because it did not treat one sex worse than the other and did not constitute impermissible sex stereotyping); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1225 (10th Cir. 2007) (“Because an employer’s requirement that employees use restrooms matching their biological sex does not expose biological males to disadvantageous terms and does not discriminate against employees who fail to conform to gender stereotypes, [the employer’s] proffered reason of concern over restroom usage is not discriminatory on the basis of sex.”).

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2. Next, the prohibited discrimination must be “because of” a protected classification. The phrase “because of” identifies a “reason” for something. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (collecting definitions).8 This at a minimum requires an employer to act based on one of the forbidden forms of bias. If an employer treats an employee less favorably because of a different characteristic, such as eye color, that is not unlawful.
3. The protected classification at issue here is “sex.” Stephens concedes for purposes of argument that the word “sex” in 1964 meant biological sex, not transgender status. Stephens Br. 24 n.10.9 And that is the only way the public would have understood the term at the time of Title VII’s enactment.
a. In common, ordinary usage in 1964, the word “sex” meant biologically male or female, based on reproductive organs. Sex, Webster’s New World Dictionary of the American Language (College ed. 1962) (“either of the two divisions of organisms distinguished as male or female”); Sex, The American Heritage Dictionary of the English Language (1st ed. 1969) (“[t]he property or quality by which organisms are classified according to their reproductive functions”). Even the American Psychiatric Association’s most recent diagnostic manual, the DSM-5, affirms that “sex” “refer[s] to the biological indicators of male and female.” DSM-5 451 (5th ed. 2013).
8 The import of the “motivating factor” language in 42 U.S.C. 2000e-2(m) is discussed below.
9 Stephens uses the phrase “sex assigned at birth” as a synonym for “biological sex.” Stephens Br. 24 n.10. But Title VII does not reduce sex to something arbitrarily “assigned” at birth, and surely no one would have thought that in 1964.

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b. In contrast, Stephens wants Title VII to cover “transgender status” and “gender identity.” Stephens uses “transgender” as “an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth.” Am. Psychological Ass’n, Answers to Your Questions about Transgender People, Gender Identity, and Gender Expression, https://bit.ly/2BPd9FS (hereinafter “APA, Answers”) (emphasis omitted). And “gender identity” is meant to refer to a person’s “internal, deeply held sense of gender,” Stephens Br. 5, which might be “some category other than male or female” entirely. DSM-5 451 (emphasis added). As the Sixth Circuit explained, transgender status and gender identity are (1) “fluid” and “variable,” (2) non-binary (i.e., not confined to male and female), and (3) “authenticat[ed]” through professions of identity rather than “medical diagnoses.” Pet. App. 24a–25a n.4; DSM-5 451. Individuals who claim a gender identity that differs from their sex may live as a woman, as a man, as both, or as neither. See Amici Br. Nat’l Medical and Policy Groups that Study Sex and Gender Identity (Part I) (distinguishing sex from gender identity).
The concept of “gender identity” was not part of the American lexicon in 1964. It first emerged in 1963 at a European medical conference. David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945-2001, 33 Archives of Sexual Behav. 87, 93 (2004). And no semblance of it appeared in federal law until 1990, when Congress enacted the Americans with Disabilities Act and excluded protection for “gender identity disorders.” 42 U.S.C. 12211(b)(1).

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One year later, when amending Title VII, Congress did not revise the word “sex” to include “gender identity.” Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071. It was not until well into this century that Congress first enacted a law creating a category known as “gender identity,” which it broadly and vaguely defined to mean “actual or perceived gender-related characteristics.” 18 U.S.C. 249(c)(4).
c. Other congressional actions confirm that “sex” as a classification is distinct from “transgender status” or “gender identity.” Congress has rejected at least a dozen proposals to add “gender identity” to— and thus include transgender status within—Title VII, even while enacting multiple federal laws listing either “sex” or “gender” alongside “gender identity.” Pet. 7–8 n.4; 34 U.S.C. 12291(b)(13)(A); 18 U.S.C. 249(a)(2).10 Ignoring these other statutes and reading transgender status into Title VII not only disregards the “presum[ption] that the same language in related statutes carries a consistent meaning,” United States v. Davis, 139 S. Ct. 2319, 2329 (2019), it also brings surplusage and redundancy into federal law, Duncan v. Walker, 533 U.S. 167, 174 (2001). Stephens calls the other federal statutes “unrelated.” Stephens Br. 45. But like Title VII, those laws prohibit discrimination, bias, and certain motives; thus, the related-statutes canon applies.
10 State legislatures have similarly recognized “sex” and “gender identity” as distinct concepts. E.g., Conn. Gen. Stat. 46a-60(b)(1) (forbidding employment discrimination based on “sex” and “gender identity or expression”); Iowa Code 216.6(1)(a) (forbidding employment discrimination based on “sex, sexual orientation, [or] gender identity”); see also Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 364 (7th Cir. 2017) (Sykes, J., dissenting) (canvassing state laws).

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d. Congress’s failure to act on proposed amendments to protect transgender status as a protected Title VII classification—and its use of “sex” and “gender identity” as independent concepts in other federal statutes—is significant. Contra Stephens Br. 45–47. In some cases this Court has not placed great weight on post-enactment legislative activity. See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corp. of Eng’rs, 531 U.S. 159, 170 (2001). But in other cases—such as where (as here) Congress has declined to enact more than a dozen bills during a prolonged period—this Court finds such legislative inaction “significant.” E.g., Bob Jones Univ. v. United States, 461 U.S. 574, 600–01 (1983) (it was “significant” that Congress declined to enact “no fewer than 13 bills” during a 12-year period while Congress “enacted numerous other amendments” to the statute); Flood v. Kuhn, 407 U.S. 258, 281–84 (1972) (Congress “clearly evinced a desire” to maintain the status quo by rejecting “numerous and persistent” legislative proposals).
Indeed, if the public meaning of sex discrimination included transgender status, it is inexplicable that Congress would fail to clarify that point in response to decades of EEOC and circuit consensus saying that it is not included. Holloway, 566 F.2d at 662–64; Sommers, 667 F.2d at 749–50; Ulane, 742 F.2d at 1086–87; Casoni v. U.S. Postal Serv., EEOC DOC 01840104, 1984 WL 485399, at *3 (Sept. 28, 1984).
e. Title VII’s 1991 amendments are also instructive. Through the 1991 Act, Congress repudiated many judicial decisions construing Title VII. Landgraf v. USI Film Prod., 511 U.S. 244, 250–51 (1994). It is telling that Congress did nothing to reject

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the then-prevailing circuit and administrative consensus on transgender status. By “perpetuating the [relevant] wording” on sex discrimination, Congress “is presumed to carry forward” that “uniform interpretation.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2520 (2015); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 324 (2012) (this rule applies to “uniform holdings of lower courts” and “well-established agency interpretations”) (citing cases).
f. Moreover, Congress and many members of this Court have recognized that sex in Title VII refers to the status of male or female as determined by reproductive biology. When amending Title VII through the Pregnancy Discrimination Act in 1978, Congress said that “it is the capacity to become pregnant which primarily differentiates the female from the male.” S. Rep. No. 95-331, at 2–3 (1977) (quoting Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976) (Stevens, J., dissenting)). And many members of this Court have echoed that same view. E.g., Coleman v. Court of Appeals of Md., 566 U.S. 30, 55 (2012) (Ginsburg, J., dissenting) (joined by three Justices) (repeating that quote).
g. Even in this very case, the EEOC recognized that sex and transgender status are different concepts, determining there was reasonable cause to believe Stephens was discharged due to “sex and gender identity.” Pet. App. 98a (emphasis added). So did Stephens: “I have been discharged due to my sex and gender identity, female, in violation of Title VII.” Resp. App. 6a. If sex and transgender status were

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transposable, the EEOC and Stephens would not have used them as distinct bases for liability.11
h. Finally, reading transgender status into Title VII’s ban on sex discrimination would bring about a monumental legal change that, among other things, would forbid employers from administering sexspecific policies according to sex. Congress does not hide “elephants in mouseholes” when fundamentally changing the law. Wittmer v. Phillips 66 Co., 915 F.3d 328, 336 (5th Cir. 2019) (Ho, J., concurring) (quoting Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001)). It is inconceivable that Congress would have acted so cryptically in effectuating the paradigm shift that Stephens seeks. Ulane, 742 F.2d at 1085–86 (canvassing Title VII’s legislative record).
4. Putting the statutory words together, Title VII’s prohibition on discrimination because of sex had a public meaning in 1964 that an employer could not treat one sex more favorably than the other because of sex. This is the “simple test” to which this Court referred in Manhart. Stephens Br. 15, 20. Manhart involved a class of 2,000 female employees required to contribute more money into a pension fund than
11 One of Stephens’s amici contends that both Congress and the public would have “understood the term ‘sex’ to implicate transgender identity” in 1964. Amici Br. Law & History Professors 10. Not so. The concept of gender identity did not emerge until 1963, Haig, supra, at 93; and it did not appear in federal law until 1990, 42 U.S.C. 12211(b)(1). Another amici argues that “sex” cannot be binary because of the “existence of intersex people.” Amici Br. interACT 6. But “intersex” is not a third sex. It is a rare medical condition where an individual’s “reproductive system has characteristics of both males and females.” Intersex, Black’s Law Dictionary (11th ed. 2019). See Amici Br. Scholars of Family and Sexuality (Part II) (discussing intersex). Nothing suggests that the public meaning of sex in 1964 was non-binary.

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10,000 similarly situated male employees. The Court rightly said that such male favoritism violates Title VII, because the statute “precludes treatment of individuals as simply components of a . . . sexual [i.e., female or male] . . . class.” Manhart, 435 U.S. at 708.
In sum, Title VII’s prohibition on sex discrimination prohibits employers from treating one sex more favorably than the other and doing so because of sex. Manhart, 435 U.S. at 707 n.13; Price Waterhouse, 490 U.S. at 251 (plurality); Oncale, 523 U.S. at 78 (Title VII prohibits “disparate treatment of men and women in employment”) (quotation omitted); see also Virginia, 518 U.S. at 534 (sex “classifications may not be used . . . to create or perpetuate the legal, social, and economic inferiority of women”); Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (constitutional equal-protection violation to accord “differential treatment to male and female members of the uniformed services”). To prevail here, Stephens must show that Harris treated Stephens less favorably than someone of a different sex, and that Harris did so because of sex. Absent an amendment to Title VII creating new protected classifications, Stephens’s transgender status is legally irrelevant.
B. Stephens does not allege that Harris disfavored one sex over the other.
Once the meaning of the relevant statutory language is understood, it is readily apparent that Stephens’s primary Title VII claim is meritless.
1. There is no evidence showing that Harris acted with the intent of treating Stephens worse than a similarly situated female employee because Stephens is male. Rather, Harris acted because Stephens refused to follow the company’s sex-specific dress code

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for men, just as it would have done had a female employee refused to follow the requirements for women. J.A. 134. Harris did not discriminate based on sex. Contra Stephens Br. 20–27.
Despite purportedly accepting that sex in Title VII means biological sex, Stephens Br. 24 n.10, Stephens’s argument rests on membership in a class determined by one’s self-declared internal sense of gender. The sleight of hand is immediately apparent. Stephens is not comparing a male with a similarly situated female, nor is Stephens alleging that Harris treated males worse than females because they are men. The allegation is that Harris intended to treat men who break the dress code differently than women who follow the dress code. This is not sex discrimination.
2. Seeking a way around this deficiency, Stephens claims worse treatment than a female employee who identifies as a woman. Stephens Br. 23–27. That is the wrong comparator. The proper comparator is not someone who exhibits a different gender identity, but someone of the opposite sex who has all other characteristics in common with Stephens, i.e., someone who is similarly situated. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (Title VII requires proof that an employer “differentiates between similarly situated males and females on the basis of sex”); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71 (1977) (“[S]imilarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin.”).
It is only when a court is “scrupulous about holding everything constant except the plaintiff’s sex” that the comparator analysis can “do its job of ruling in sex discrimination as the actual reason for the

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employer’s decision.” Hively, 853 F.3d at 366 (Sykes, J., dissenting). A women who identifies as a woman not only has a different sex (female) than Stephens, but also a different transgender status (nontransgender). Such a comparison cannot show sex discrimination.
The proper comparison puts Stephens, a man who identifies as the opposite sex, alongside a woman who identifies as the opposite sex. Both Stephens and that comparator share the same transgender status (transgender), and only their sex is different. That framing shows that sex discrimination is not at work here because Harris will treat a woman who refuses to comply with the female dress code the same way that it treated Stephens, a man who refused to comply with the male dress code.
Stephens’s version of the comparator analysis exhibits another fundamental flaw. It takes an analytical tool “for uncovering the employer’s real motive” or “for ferreting out a prohibited discriminatory motive” “as a factual matter” and transforms it into an interpretative guide for changing the meaning of the statute. Hively, 853 F.3d at 365–66 (Sykes, J., dissenting). In Judge Sykes’s words, Stephens’s approach is “artifice, not [statutory] interpretation.” Id. at 367.
Stephens says that the claim here meets the “simple test” set forth in Manhart because Stephens “would not have been fired for living openly as a woman if . . . assigned the sex of female at birth.” Stephens Br. 25. But considering the proper comparator dispels this argument. Harris acted as it did because Stephens refused to comply with the company’s sex-specific dress code for men. The result would have been the same if a female employee declined to

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comply with the company’s sex-specific dress code for women. Nowhere does Stephens point to evidence showing that Harris favored one sex over the other. There is not even an allegation of such favoritism.
3. Stephens then pivots and analogizes the circumstances here to those of an employer who fires employees for changing their religion. Stephens Br. 26–27. That analogy is inapt under Title VII’s plain text. The Act defines religion broadly to “include[ ] all aspects of religious observance and practice.” 42 U.S.C. 2000e(j). Because religious observance and practice can change, Title VII covers changes in religion by definition. But there is nothing in Title VII indicating that sex can change or, even if it could, that a change in sex is protected. See Frontiero, 411 U.S. at 686 (“[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”); Amici Br. United States Conference of Catholic Bishops (Part I.B.) (debunking the analogy to employees who change their religion).
4. Stephens also chides Harris for “perceiv[ing] [Stephens] to be, in its words, a ‘biological male’ because [Stephens] was assigned male at birth.” Stephens Br. 27. So after initially conceding that the public meaning of sex discrimination in 1964 is discrimination based on an employee’s biological sex, Stephens Br. 24 n.10, Stephens later rejects the notion that Stephens’s biological sex is relevant to the Title VII analysis. But there is no textual basis for that contention. And there is zero evidence that Harris treated Stephens worse than similarly situated females who desired to violate the company’s sex-specific dress code. Accordingly, Harris is entitled to judgment as a matter of law on Stephens’s theory that Harris engaged in unlawful sex discrimination.

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5. Three additional points warrant brief response.
a. First, Stephens essentially argues that because transgender status is related to sex, a prohibition on sex discrimination must include discrimination based on transgender status. Stephens Br. 23–25. But this Court has already rejected that kind of reasoning when interpreting Title VII.
In Espinoza, the plaintiff, reminiscent of Stephens, argued that Title VII’s prohibition on national origin discrimination includes discrimination based on alienage status, since alienage is so closely linked to national origin. After all, the primary determiner of alienage is the nation in which a person is born. 8 U.S.C. 1401–1409 (determining citizenship based on where a person is born); Espinoza, 414 U.S. at 96 (Douglas, J., dissenting) (“Alienage results from one condition only: being born outside the United States.”). The Court rejected that argument because citizenship and national origin, while related, are distinct classifications. 414 U.S. at 95. The same is true of sex and transgender status. Congress chose to ban discrimination based on the former but not the latter. And courts should not conflate the two to rewrite the statute.
Expanding Title VII’s protection to any status determined by reference to sex has no statutory tether. Title VII does not prohibit discrimination based on any “classification that references sex,” but only based on “sex.” Even the Sixth Circuit used to recognize the distinction. Dillon v. Frank, No. 902290, 1992 WL 5436, at *4 (6th Cir. Jan. 15, 1992) (declining “to define ‘because of sex’ to mean ‘because of anything relating to being male or female, sexual roles, or to sexual behavior’”) (footnote omitted).

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Also, unmooring Title VII claims from the statutory text would go much further than simply adding transgender status. Stephens’s arguments must equally insist that the same logic applies to Title VII’s race, color, religion, and national origin classifications, necessitating that this Court overrule Espinoza.
b. Second, Stephens asserts in passing that Title VII “creates liability where sex is a ‘motivating factor’ behind the employment decision, even if sex is not a but-for cause.” Stephens Br. 21 (citing 42 U.S.C. 2000e-2(m).) This argument does not help Stephens because the motivating-factor provision does not modify the meaning of sex discrimination in 42 U.S.C. 2000e-2(a)(1). Indeed, this Court has said that the motivating-factor provision is not “a substantive bar on discrimination” but is simply “the causation standard for proving a violation defined elsewhere in Title VII.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 355 (2013). That provision does not eliminate the requirement that one sex be treated better than the other.
In addition, this Court has already established that “motivating factor” means more than a simple “causal factor,” Staub v. Proctor Hosp., 562 U.S. 411, 418–19 (2011), or a “contributing factor,” which is the statutory language that Congress considered and rejected, Civil Rights and Women’s Equity in Employment Act of 1991, H.R. 1, 102d Cong. § 5(a). While an employer that acts based on transgender status notices the employee’s biological sex, that mere noticing of sex does not motivate the employer to act— much less does it motivate the employer to prefer one sex over the other. See EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (“Motive and

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knowledge are separate concepts.”); Nassar, 570 U.S. at 343 (“one of the employer’s motives” must be “the motive to discriminate” based on the protected trait). Under Stephens’s broad reading of “motivating factor,” employers would violate Title VII whenever they notice their employees’ sex while enforcing sexspecific employment policies.
c. Finally, Stephens relies on Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), to argue that sex “need not be the sole cause of an adverse employment decision.” Stephens Br. 22. But Phillips did not address causation. Rather, it established that Title VII forbids discrimination against a subclass of women (women with pre-schoolaged children) who are treated differently than a similarly situated subgroup of men (men with preschool-aged children). 400 U.S. at 544. Yet, as explained above, Harris did not treat Stephens (a man who insisted on violating the sex-specific dress code) worse than a similarly situated woman (a woman who insisted on violating the sex-specific dress code).
II. Stephens has no claim for sex stereotyping.
A. This case does not fit within Price Waterhouse.
In Price Waterhouse, this Court resolved a circuit conflict over the burden each party bears in a Title VII mixed-motive case. 490 U.S. at 232, 258. In addressing that issue, the plurality observed that the plaintiff (a female employee seeking a promotion at a global accounting firm) proved sex discrimination— favoritism of men over women because they are men— through evidence that the employer made employment decisions based on stereotypes about women. Id. at 250–52, 255–58. Those ugly stereotypes focused on

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“insisting” that women “must not be” “aggressive” in the workplace. Id. at 250–51; see also id. at 234–35, 256.
Stephens says that Price Waterhouse forbids Harris from applying its sex-specific dress code based on sex. Stephens Br. 28–34. But this argument does not fit within Price Waterhouse for three reasons. First, Price Waterhouse did not create an independent claim of sex stereotyping, and this Court should not create one now. Second, nothing in Price Waterhouse suggests that sex itself is a stereotype. That is why it was baseless for the Sixth Circuit to treat sex as a stereotype. Third, Price Waterhouse dealt with a sexspecific stereotype used to disfavor one sex. Yet Harris does not rely on any sex-specific stereotype to favor members of one sex over the other.
1. The Price Waterhouse plurality did not create an independent cause of action for sex stereotyping. See Amici Br. Institute for Faith and Freedom (Part I.A.–I.B.). The plurality held only that sex stereotyping by an employer can be “evidence” of sex discrimination; to prevail, the plaintiff must always prove that “the employer actually relied on [sex] in making its decision.” 490 U.S. at 251 (second emphasis added). Two concurring Justices also said reliance on sex stereotypes could be evidence of discriminatory intent because of sex. Id. at 258–61 (White, J., concurring); id. at 261–79 (O’Connor, J., concurring). And three dissenting Justices explained that while “use by decisionmakers of sex stereotypes is . . . relevant to the question of discriminatory intent,” “Title VII creates no independent cause of action for sex stereotyping.” Id. at 294 (Kennedy, J., dissenting).

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After Price Waterhouse, a plaintiff must still show one sex is treated better than the other. As the plurality put it, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 250–51 (emphasis added) (quoting Manhart, 435 U.S. at 707 n.13).
Stephens’s argument assumes Price Waterhouse judicially amended Title VII to create a new standalone sex-stereotyping claim, one not dependent on employer favoritism for men or women. Stephens Br. 28 (“Harris Homes also violated Title VII by firing [ ] Stephens for failing to conform to sex-based stereotypes.”). Price Waterhouse did not do that; the plurality’s opinion “does not even gesture in that direction.” Hively, 853 F.3d at 371 (Sykes, J., dissenting).
Stephens makes no effort to explain why the Court should adopt a standalone theory of stereotyping liability. There are many reasons why the Court should not. To begin, creating an independent cause of action for sex stereotyping divorces employment claims from Title VII’s text. After all, the statute forbids discrimination “because of sex,” not “because of sex stereotypes.” Since the legal ban is on sex discrimination, it is not enough to prove sex stereotyping; an employee must prove disparate treatment favoring one sex over the other.
In addition, an independent cause of action for sex stereotyping cannot be cabined. Such a claim could only turn on proof that an employee does not satisfy some generalized and undefined stereotype about what a “man” or “woman” is or should be. It would create legal chaos for employers. Employees, male and female alike, could assert such a claim following termination, alleging that they were terminated

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because their voice was too high (or too low), hair was too long (or too short), arms were too muscular (or not muscular enough), gait was too confident (or not enough), and so on. Because sex stereotypes are nebulous and undefined, every employee could claim that they were unlawfully stereotyped based on a characteristic that is arguably different between men and women. Employees could sue their employers over almost every perceived employment grievance.
Moreover, in the specific context of transgender employees, Stephens and supporting amici are inviting employers to stereotype. Their position is that because males do not stereotypically wear dresses, those who do must be viewed by their employers as women so long as they otherwise “meet the expectations of a female.” J.A. 113–14. As Stephens puts it, “if you’re going to present in that fashion, you have to basically adhere to the part you’re professing to play.” J.A. 114–15. On the flip side, because stereotypes suggest that girls are not risk-takers, a girl who likes to climb trees or play on roofs must be considered a boy. The Court should reject any interpretation of Title VII that requires employers to engage in the very stereotyping that Price Waterhouse condemned. See Roberts v. U.S. Jaycees, 468 U.S. 609, 628 (1984) (declining “to indulge in the sexual stereotyping” that underlies “legal decisionmaking” premised on “generalizations about the relative interests and perspectives of men and women”).
2. While the employer in Price Waterhouse acted based on a stereotype about people of one sex, the decision challenged here—Harris’s choice to apply a sex-specific policy based on sex instead of gender identity—rests solely on the category of sex itself. The Sixth Circuit wrongly denounced as stereotyping all

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sex-specific policies administered according to sex. Pet. App. 26a–27a (decrying “stereotypical notions of how sexual organs and gender identity ought to align”). In so doing, the court deemed the very idea of sex in Title VII—which determines a person’s status as male or female based on reproductive biology—as itself a stereotype.
But denouncing “sex as a stereotype” is not the same as identifying “a sex stereotype.” Declaring sex as a stereotype undoes Title VII, while rooting out a sex stereotype when it favors one sex over the other furthers the statute’s purpose. The Sixth Circuit’s view effectively condemns Congress for stereotyping by even including sex in Title VII.
Yet this Court has already said that sex is not a stereotype. “Physical differences between men and women” relating to reproduction—the very features that determine sex—are not “gender-based stereotype[s].” Nguyen, 533 U.S. at 68. As noted above, the Sixth Circuit’s view that sex is a stereotype will forbid employers from applying any sex-specific policies based on sex. Because that is the only way sex-specific policies make sense, adopting that construction will nullify those polices everywhere.
3. Although Price Waterhouse involved a sexspecific stereotype used to favor employees of one sex over the other, this case does not. In Price Waterhouse, the employer discriminated against women who showed aggressiveness but not against men who showed the same trait. Reliance on that stereotype disfavored women, thus constituting the type of “sexspecific stereotype” that is actionable under Title VII. Hively, 853 F.3d at 370 (Sykes, J., dissenting).

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In contrast, an employer’s belief about transgender status is not sex-specific. It is a belief that applies equally to all men and women. Stephens effectively admits this by focusing on the alleged stereotype that all “individuals will identify, appear, and behave . . . consistently with their assigned sex at birth.” Stephens Br. 32. If a hypothetical employer were to act based on transgender status, that employer is not in fact favoring one sex over the other. Nor is the employer motivated to discriminate against women or men as a class. Whereas a sex-specific stereotype that women should not be aggressive harms women because they are women, beliefs about transgender status impact both sexes equally.
Judge Lynch helpfully explained in an analogous case what is meant by “sex stereotyping” that “violates Title VII.” Zarda v. Altitude Express, Inc., 883 F.3d 100, 156 (2d Cir. 2018) (Lynch, J., dissenting). Refusing to hire or promote someone based on assumptions about what members of a certain sex should not do “is not a separate form of sex . . . discrimination, but is precisely discrimination in hiring or promotion based on sex.” Id. at 156–57. Doing so “treats applicants or employees not as individuals but as members of a class that is disfavored for purposes of the employment decision by reason of a trait stereotypically assigned to members of that group as a whole.” Id. at 157. When law firms decline to hire women because they think women do not have the necessary disposition to be lawyers, that is sex discrimination. Full stop.
Stephens’s theory is quite different. Harris did not terminate Stephens because Harris believes that most men have a trait that renders them unsuitable for a funeral home. Instead, Harris chose to part ways with

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an employee who declined to follow the (legal and unchallenged) sex-specific dress code that Harris applied to all its employees based on biological sex. Harris would react the exact same way to a female employee who refuses to follow the female dress code. J.A. 134. The absence of disparate treatment between similarly situated male and female employees means that Stephens has no claim for sex discrimination.
As Judge Lynch further explains, there are also stereotypes about how members of one sex “should be.” Zarda, 883 F.3d at 157 (Lynch, J., dissenting). This was the situation in Price Waterhouse. But again, the “key element” in such a case “is that one sex is . . . disadvantaged in a particular workplace.” Id. at 158. Only where sex-specific stereotypes disadvantage one sex versus the other is it possible to say that “sexual stereotyping is sex discrimination.” Ibid.
An employer like Harris that applies a sex-specific dress code based on biological sex rather than an employee’s internal sense of gender is, in Judge Lynch’s words, “not deploying a stereotype about men or about women to the disadvantage of either sex.” Ibid.; accord Hively, 853 F.3d at 370 (Sykes, J., dissenting). Rather, Harris is evenhandedly applying a sex-specific policy to both men and women. Such an employment practice is “different from sex discrimination, and therefore something that is not prohibited by Title VII.” Zarda, 883 F.3d at 158 (Lynch, J., dissenting).
One final point illustrates that the Price Waterhouse plurality did not view things the way Stephens does. The plurality announced that its “specific references to gender throughout th[e] opinion, and the principles [it] announce[d], apply with equal force to discrimination based on race.” 490 U.S. at 243 n.9. Yet

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no one would say that Stephens’ position applies with equal force to race. This shows how far removed Stephens’s arguments are from what the Price Waterhouse plurality actually said.
B. Stephens’s stereotyping arguments do not establish sex discrimination.
Given how this Court has treated sex stereotyping, Stephens’s stereotyping arguments do not work. That is because they fail to satisfy the requirements for proving sex discrimination.
1. Stephens’s first theory is fact-based, setting out a number of alleged stereotypes that purportedly motivated Harris’s employment decision. Stephens Br. 29–32. But these new facts—such as Harris’s objection to Stephens’s filing the EEOC claim under a different name, id. at 30—either are pulled out of context or had nothing to do with Harris’s decision to parts ways with Stephens. Tellingly, the Sixth Circuit did not mention any of them in its opinion. In its analysis, the Sixth Circuit identified only one stereotype it viewed as problematic: that Harris denied Stephens’s demand because Stephens “was ‘no longer going to represent himself as a man’ and ‘wanted to dress as a woman.’” Pet. App. 16a. Even Stephens testified that the reason for Harris’s decision was that Stephens “coming to work dressed as a woman was not going to be acceptable.” J.A. 98– 99. Thus, the stereotype analysis should focus—as the Sixth Circuit did—on Harris’s decision to apply its sex-specific dress code based on sex.
On the merits, it is not possible to say that any alleged stereotyping resulted in unfavorable treatment of one sex. When employees classify themselves based on an internal sense of gender, and the

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employer continues to treat the employees based on sex for purposes of applying a sex-specific policy, the employer is neither favoring men nor women.
Stephens nevertheless argues that a male employee always has a Title VII claim if terminated for “failing to look and act sufficiently masculine,” and a female if terminated “for failing to look sufficiently feminine.” Stephens Br. 31. But whether a claim is cognizable under Title VII depends on whether the employer acted with the intent to treat employees of one sex less favorably than those of the other sex. There is no such claim in Stephens’s allegations here.
2. Stephens’s second theory is categorical, insisting that all “discrimination against employees for being transgender is inherently based on sex stereotypes” and thus violates Title VII. Stephens Br. 32–34. Per Stephens, all such discrimination rests on the alleged “stereotype that individuals will identify, appear, and behave . . . consistently with their assigned sex at birth.” Id. at 32. This theory asserts that Price Waterhouse wrote transgender status into Title VII, even though for decades, no one thought this was true because it would be contrary to the public understanding in 1964 and ever since.
This argument lacks merit. For starters, this Court should not read Price Waterhouse to contradict Title VII’s plain language. In addition, Stephens’s categorical theory exhibits many of the shortcomings discussed in the prior section: it rests on the faulty assumption that Price Waterhouse established an independent claim of sex stereotyping; and unlike the facts of Price Waterhouse, the theory here does not involve a sex-specific stereotype used to treat one sex better than the other. Without that favoritism, there is no actionable claim of sex discrimination.

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III. This Court’s holdings in Oncale and Newport News—which correctly focus on Title VII’s meaning rather than Congress’s subjective intent—do not support judicially creating a new Title VII classification.
Stephens asserts that interpreting Title VII’s prohibition on sex discrimination does not depend on what Congress or the general public understood in 1964. Stephens Br. 41–45. Stephens points to Oncale, for example, where this Court held that same-sex sexual harassment was prohibited under the plain terms of Title VII, even though same-sex harassment was “not the principal evil Congress was concerned with when it enacted Title VII.” 523 U.S. at 79. Accord Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 675 (1983) (policy that treated a male employee with dependents less favorably than a similarly situated female employee with dependents was a Title VII violation, even if such application of the statute was not foreseen at the time of enactment).
But there’s something significant missing in Stephens’s theory. Whether in the context of same-sex harassment or dependent benefits, an employee must still show that an employer is treating an employee of one sex less favorably than a similarly situated employee of the opposite sex, and that it is doing so because of that employee’s sex. In Oncale, for example, the Court reaffirmed that in all sexdiscrimination claims—including those based on sexual harassment or even same-sex sexual harassment—“[t]he critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” 523 U.S. at 80 (cleaned up).

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Explaining itself, the Court indicated that in an opposite-sex harassment case involving “explicit or implicit proposals of sexual activity,” an inference of sex discrimination can be easily drawn because “it is reasonable to assume those proposals would not have been made to someone of the same sex.” Ibid. The same is not true in a case involving same-sex harassment unless the plaintiff proved the harasser was homosexual; then it would be reasonable to infer the victim was targeted because of sex. (Note that the Court’s focus was on the sexual orientation of the harasser, not the victim.) “In short, in authorizing claims of same-sex harassment as a theoretical matter, the Court carefully tethered all sexualharassment claims to the statutory requirement that the plaintiff prove discrimination ‘because of sex.’” Hively, 853 F.3d at 372 (Sykes, J., dissenting).
Newport News also required favoritism of one sex over the other. That case involved an employer health plan that provided female employees with hospitalization benefits for pregnancy-related conditions to the same extent as other medical conditions but provided fewer benefits for spouses of male employees. The Court ruled in favor of the EEOC, which was representing the interests of the male employees, even though Congress may not have contemplated such a claim at the time it enacted the Pregnancy Discrimination Act. That was because the “plan unlawfully g[ave] married male employees a benefit package for their dependents that [wa]s less inclusive than the dependency coverages provided to married female employees. 462 U.S. at 683–84. This disparate treatment fulfilled Title VII’s purpose to prohibit “discrimination on the basis of an employee’s sex.” Id. at 685.

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Here, Stephens alleges no employer conduct that treats an employee of one sex less favorably than employees of the other sex and that does so because of sex. Instead, Stephens is trying to add a new classification altogether—transgender status—which Stephens argues is determined in part by sex. Stephens Br. 23. But that legislative addition is something only Congress can do.
Oncale and Newport News teach two things. First, courts must focus on a statute’s original public meaning, rather than on the subjective intent of legislators. And second, “[w]hile every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018). Neither Oncale nor Newport News (nor any other case) suggests that courts are free to expand Title VII to new classifications or to jettison the requirement that one sex be treated better than the other. The Court should reject Stephens’s invitation to judicially rewrite the statute.
IV. Stephens’s remaining theories of statutory construction are backwards.
Having misconstrued Title VII’s plain text as extending well beyond the meaning and requirements of sex discrimination, Stephens offers a number of passing interpretive arguments. Stephens Br. 36–47. Harris addresses these seriatim.
1. Harris is not urging the Court to create an “exclusion of transgender individuals” from Title VII. Contra Stephens Br. 36–37. Harris is urging the Court not to add a classification that Title VII’s plain text omits. In Espinoza, this Court made that exact point in declining to add alienage as a Title VII

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classification. The Court’s holding did not mean that aliens were “excluded” from Title VII protection:
Certainly it would be unlawful for an employer to discriminate against aliens because of race, color, religion, sex, or national origin . . . . Aliens are protected from illegal discrimination under the Act, but nothing in the Act makes it illegal to discriminate on the basis of citizenship or alienage.” [Espinoza, 414 U.S. at 95 (emphasis added).]
The same logic applies here. Title VII does not apply to claims based on transgender status. But it is still unlawful for any employer to discriminate against a transgender employee because of the employee’s sex, race, color, religion, or national origin.
2. Harris agrees that Title VII protects “individuals” within certain groups—not the groups themselves—from discrimination. Stephens Br. 37– 40. Harris also agrees that an “employer who discriminates against a female employee because of her sex cannot insulate itself from liability by also discriminating against a male employee because of his sex.” Stephens Br. 39. But the key is the phrase “because of sex.” In the first example, a female is treated less favorably because she is a female. In the second example, a male is treated less favorably because he is a male. Contrast that with the situation here, where Harris did not treat Stephens less favorably than a female who refused to comply with the dress code for women. The individual-group distinction does not help Stephens here.
3. Harris is not asking the Court to create a statutory exception to the ban on discrimination because of sex. Contra Stephens Br. 40–41. Harris’s

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point is that its decision to part ways with Stephens was not discrimination because of sex in the first instance. It is Stephens asking for a judicial expansion of the statute, not Harris asking for an exemption confining it.
Under Stephens’s view, bona fide occupational qualifications will be turned on their head. See generally Stephens Br. 40. If an employer decides that one’s status as a male is “a bona fide occupational qualification for [a] job” in a “male maximum-security penitentiary,” e.g., Dothard v. Rawlinson, 433 U.S. 321, 336–37 (1977) (upholding such a qualification), a female applicant can elide that qualification by declaring that she identifies as a male. Again, it is not Harris requesting an exemption, it is Stephens demanding a statutory rewrite.
In sum, Title VII will continue to fully protect individuals, as it always has, from unlawful discrimination based on the protected classifications listed in the statute—regardless of an individual’s race, sex, sexual orientation, or gender identity. Contra, e.g., Amici Briefs of Service Employees Int’l Union, Muslim Bar Assoc. of New York, and Lawyers’ Committee for Civil Rights Under Law. As in Espinoza, the Court should leave it to Congress to add new protected classifications.

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V. Redefining sex discrimination will cause problems and create harms.
Stephens says that Price Waterhouse must be read to expand Title VII beyond its statutory text or else this Court’s ruling will undermine legal protection for all workers. Stephens Br. 34–36. Not so. Harris is not asking the Court to throw out “sex-based generalizations” as acceptable evidence of discrimination because of sex. Contra Stephens Br. 34. Rather, Harris is asking the Court to enforce Congress’s prohibition on sex discrimination without judicially amending the statute to add other classifications that Congress omitted. Doing so leaves Price Waterhouse and its progeny fully in place, allowing any employee to use evidence of sex-specific stereotypes to prove that, because of their sex, they have been treated less favorably than members of the opposite sex.
Conversely, accepting Stephens’s invitation to judicially amend Title VII would have many adverse consequences. These include impacts in the employment context, in the context of other federal laws, and outside those laws altogether.
1. Redefining sex discrimination in Title VII would adversely affect employers. Contra Stephens Br. 50–52. See Amici Br. Bus. Orgs. Supporting Employers (Part II) (detailing these effects). For example, it would prohibit organizations from maintaining sex-specific sleeping facilities, showers, restrooms, and locker rooms, all of which “afford members of each sex privacy from the other sex.” Virginia, 518 U.S. at 550 n.19. If an employer declines to allow a male employee who identifies as female to use the locker room with women, the male employee would have a claim of transgender-status discrimination.

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And if the employer allows the male employee to use the locker room with female employees, the women would certainly bring their own claim of sex discrimination based on a hostile work environment. That situation not only is unfair to employers, but also sacrifices the privacy rights of employees based on others’ views about their own gender. By shortcircuiting the legislative process, the Sixth Circuit prevented Congress from addressing these sensitive concerns and balancing the interests. E.g., N.M. Stat. Ann. 28-1-9(E) (exempting sex-specific “sleeping quarters,” “showers,” and “restrooms” from the state’s nondiscrimination law); Wis. Stat. 106.52(3)(b)–(c) (same); 775 Ill. Comp. Stat. 5/5-103(B) (similar).
Stephens’s view of stereotyping heightens the concerns for employers. When asked if Harris was required “to allow a male funeral director who was . . . bald and [had a] neatly trimmed beard and mustache” to “wear a professional[ ] female dress and high heels while meeting with a bereaved family or officiating at a funeral,” Stephens said “no.” J.A. 113. Why not? Because, as Stephens testified, the male employee “doesn’t meet the expectations of a female.” J.A. 114. Yet when asked what “meets the expectations of a female,” Stephens candidly conceded, “[y]our guess is as good as mine.” Ibid. If the Court adopts Stephens’s approach, every employer’s guess when separating permissible from impermissible stereotyping is an invitation for litigation. Employers should not be forced to navigate this vague morass.
Judicially adding transgender status as a Title VII classification would also expand Title VII’s coverage in ways that Stephens does not acknowledge. According to the medical community, a transgender individual is not limited to someone diagnosed with

47
gender dysphoria. As explained above, “transgender” is an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with their biological sex. APA, Answers. So if this Court were to judicially rewrite “sex” to include “transgender status,” it would create an entirely new panoply of claims for biological men who identify, express, or behave as women, atypical men, non-binary (both male and female), or genderqueer (neither male nor female). And because “gender identity” is “fluid,” “internal,” and authenticated only by self-profession, Pet. App. 24a–25a n.4, an employee’s claimed transgender status could change. DSM-5 451 (defining “transgender” to include “individuals who transiently” identify one way). See Amicus Br. Free Speech Advocates (Part II.B.–II.C.) (discussing the mutability of gender identity and the difficulty of managing its non-binary nature).
Stephens’s position would also undermine the critical privacy and safety interests protected by Title VII’s bona-fide-occupational-qualification provision. E.g., Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 206 n.4 (1991) (acknowledging that sex might “constitute a BFOQ when privacy interests are implicated,” such as for an obstetrics nurse that “provide[s] sensitive care for patient’s intimate” concerns); id. at 219 n.8 (White, J., concurring) (“The lower federal courts . . . have consistently recognized that privacy interests may justify sex-based requirements for certain jobs”—such as a restroom attendant—and Title VII’s legislative history recognized some examples, including “a female nurse hired to care for an elderly woman” and “a masseur”); Dothard, 433 U.S. at 336–37 (holding that sex is a BFOQ for a guard position at a men’s maximumsecurity prison). Under Stephens’s logic, men who

48
identify as women must be allowed to oversee the overnight facilities at a battered women’s shelter. See Amici Br. Defend My Privacy (Part I) (discussing the effects on women’s shelters).
For similar reasons, adopting Stephens’s position would harm the equal opportunities of women in the workplace. Jobs reserved for women that satisfy the bona-fide-occupational-qualification standard, such as playing in the Women’s National Basketball Association, would be open to men who identify as women. And scarce jobs requiring fitness tests, such as police and fire positions, will tend to exclude women as they are forced to compete against men who identify as female.
Amending Title VII as Stephens requests will also result in substantial infringements of free speech and religious freedom in the workplace. Recently, a high school in Virginia fired a teacher because his religious beliefs forbid him from using male pronouns when referring to a female student who identifies as male. Although the teacher offered to use the student’s first name and to avoid female pronouns, the school rejected that solution, claiming that it would “create[e] a hostile learning environment.”12 A university in Ohio likewise punished a professor under similar circumstances.13 And the former chair of the University of Louisville’s Division of Child and

12 Teacher fired for refusing to use transgender student’s

pronouns,

NBC

News

(Dec.

10,

2018),

https://nbcnews.to/2QFvQEL.

13 Pl.’s V. Compl., Meriwether v. The Trustees of Shawnee State Univ., No. 1:18-cv-00753 (S.D. Ohio Nov. 5, 2018), https://bit.ly/2Ms8yQb.

49
Adolescent Psychiatry and Psychology—after three years of perfect scores on his annual reviews—was demoted, harassed, and then terminated for benign comments advising caution on certain treatment approaches for youth experiencing gender dysphoria.14 See Amicus Br. Center for Arizona Policy (discussing these and similar cases).
Although this compelled-speech problem has already surfaced, it will grow exponentially if the Court judicially amends Title VII as Stephens requests. No matter how accommodating employers and coworkers may be in terms of using a person’s legal name or avoiding pronouns, the government will compel them to use sex-identifying terminology that they object to using.15 What’s more, if employers or employees express any religious doubts at work about whether people can or should change their sex, see generally Congregation for Catholic Education, “Male and Female He Created Them” (June 2019), https://bit.ly/2WuJZDw, those doubts could elicit lawsuits and punishment under a hostile work environment theory.16
14 Pl.’s V. Compl., Josephson v. Bendapudi, No. 3:19-mc-99999 (W.D. Ky. Mar. 28, 2019), https://bit.ly/2Kht0QR.
15 N.Y.C. Comm’n on Human Rights, Legal Enf’t Guidance on Discrimination on the Basis of Gender Identity or Expression, https://on.nyc.gov/2KRC7e8.
16 Although no religious liberty claims remain in this case, it is notable that Tom Rost interprets the Bible as teaching that sex is immutable and believes he “would be violating God’s commands” if he acceded to Stephens’s demands on how to dress in the workplace. J.A. 131. If forced to violate his faith, Tom “would feel significant pressure to sell [the] business and give up [his] life’s calling of ministering to grieving people.” Id. at 132.

50
The concerns will even extend to religious organizations directly. Faith-based groups and doctors at religious hospitals will be pressured to violate their beliefs by paying for and participating in medical efforts to alter sex. See Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660, 691–93 (N.D. Tex. 2016) (a regulation redefining “sex” in the Affordable Care Act’s nondiscrimination provision, 42 U.S.C. 18116(a), to include “gender identity” likely violated RFRA). This risk arises because Title VII covers employment benefits, see 42 U.S.C. 2000e-2(a)(1) (applying to employee “compensation”); and it is not clear that the statute’s existing religious exemptions will provide a safe harbor. See 42 U.S.C. 2000e-1(a) (allowing a “religious corporation” to limit employment to “individuals of a particular religion”); Amici Br. United States Conference of Catholic Bishops (Part IV.B.) (raising concerns about the limitations of the existing statutory protections). While Congress can consider these religious-liberty concerns and balance competing interests, the same is not true of a decision of Article III courts judicially amending Title VII.
2. Adopting Stephens’s reasoning will also impact analogous laws that similarly forbid sex discrimination. A prime example is Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, which requires equal opportunities for women and girls in high school and college athletics. 34 C.F.R. Part 106. See Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 75 (1992) (relying on sex-discrimination principles announced in a Title VII case when interpreting Title IX). If sex discrimination includes transgender-status discrimination, female athletes will be forced to compete against males who identify as female, which will deny women and girls the opportunities, awards, and

51
scholarships that are rightfully theirs. See Amici Br. Independent Women’s Forum (discussing the effects on female athletes).
Indeed, schools and leagues that allow boys who identify as girls to compete in girls’ sports have already seen this inequity. In Connecticut, two boys who identify as girls have recently won 15 girls’ state track-and-field titles (titles held in 2016 by nine different girls). The same two boys have taken from female athletes more than 40 opportunities to participate in higher level competitions.17
The circumstances in Connecticut are hardly unique. A male athlete who used to compete for New Zealand in men’s weightlifting but now identifies as a woman took two gold medals and a silver in the women’s division at the recent Pacific Games.18 And a male cyclist who identifies as a woman took first place in a women’s bracket of the International Masters Track Cycling World Championships.19
Some argue that any “direct competitive advantage” enjoyed by male athletes who identify as and compete against females is a “myth” that “is not
17 Title IX Discrimination Complaint on behalf of Selina Soule and additional anonymous complainants (June 17, 2019), https://bit.ly/2Yg0S6A. 18 Weightlifter Hubbard becomes lightning rod for criticism of transgender policy, Reuters (July 29, 2019), https://reut.rs/2SVN6nN. 19 McKinnon is first transgender woman to win world title, Cycling News (Nov. 1, 2018), https://bit.ly/2PPFGQI.

52
supported by medical science.”20 But that claim is difficult to reconcile with actual science, which concludes that the competitive advantage is an “intolerable unfairness.”21 And it is also difficult to harmonize with real-world outcomes, such as the recent results in Connecticut.22
Changing the meaning of sex discrimination will also threaten to change fair housing law. See Inclusive Communities Project, 135 S. Ct. at 2525 (looking to Title VII case law when interpreting the Fair Housing Act). The Fair Housing Act makes it illegal to “discriminate” in the sale or rental of a dwelling “because of . . . sex.” 42 U.S.C. 3604(b). Under Stephens’s rule, if a property owner created affordable group housing for abused women, the owner would be required to lease to a male tenant who identified as a woman.
This is not hypothetical. In Anchorage, Alaska, a federal court had to enjoin the city from using a gender-identity nondiscrimination law to insist that a women’s shelter allow a man who identifies as a woman to sleep in a common room mere feet away from women, many of whom have been trafficked,
20 Letter from Rep. Ilhan Omar to USA Powerlifting (Jan. 31, 2019), https://bit.ly/2Z7O3Pi. 21 Taryn Knox et al., Transwomen in elite sport: scientific and ethical considerations, 45 J. of Med. Ethics 395, 395 (June 2019), https://bit.ly/332avbN. 22 Adopting Stephens’s view of sex discrimination will have ramifications in education far beyond athletics. See Amicus Br. Women’s Liberation Front (Part III) (discussing effects on living facilities and academic scholarships).

53
abused, or sexually assaulted by men.23 And under the Sixth Circuit’s rewriting of Title VII, that same shelter would similarly be forced to hire a male who identified as female for a position requiring the applicant to stay in a common sleeping area with the women, or to counsel women who have been traumatized by sexual abuse and domestic violence.
3. Redefining sex discrimination by judicial fiat will also have broader impacts. It will directly undermine the separation of powers. See Amici Br. Members of Congress in Support of Employers (Part I.A.). This Court has repeatedly instructed that it is the role of the judiciary “to apply the statute as it is written.” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 231 (2014) (quoting Burrage v. United States, 571 U.S. 204, 218 (2014)). And the Court has steadfastly rejected efforts to judicially “amend” statutes. When the passage of time causes some to disagree over whether the law should be changed, this Court admonishes that “the proper role of the judiciary” is to “apply, not amend, the work of the People’s representatives.” Henson, 137 S. Ct. at 1726.
“When interpreting an act of Congress, [the courts] need to respect the choices made by Congress about which social problems to address, and how to address them.” Zarda, 883 F.3d at 166 (Lynch, J., dissenting). Any other approach fails “to take account of legislative compromises essential to a law’s passage” and to “respect the limits up to which Congress was prepared to go.” New Prime, 139 S. Ct. at 543 (cleaned up).
23 Order, The Downtown Soup Kitchen d/b/a Downtown Hope Center v. Municipality of Anchorage, No. 3:18-cv-00190-SLG (D. Alaska Aug. 9, 2019), https://bit.ly/2KO2miL.

54
As to the specific gender-identity issues at stake here, it is not at all clear that judicially amending Title VII as the Sixth Circuit did will have the ameliorative effects that some assume. The science regarding gender identity is far from settled, and there are deep disagreements over whether otherwise healthy bodies should be physically modified to align with the mind. See Amici Br. Nat’l Medical and Policy Groups that Study Sex and Gender Identity (Part II) (discussing these disagreements). The opposite approach—aligning one’s mind with the body—has traditionally been the preferred method for treating other dysphorias, such as anorexia and xenomelia (believing that one or more limbs do not belong). See Amicus Br. Dr. Paul R. McHugh, M.D. (Part. II.A.1.).
Raising additional reason for caution, one of the most comprehensive scientific studies tracking individuals who underwent sex-reassignment surgery revealed that postoperative outcomes were surprisingly negative.24 And some doctors question whether it is best to encourage gender-dysphoric children to adopt an opposite-sex identity, given that 80-95% of pre-pubertal children will naturally resolve their gender dysphoria if they are not encouraged to embrace it,25 while nearly 100% of children who are affirmed in their dysphoria will continue to experience
24 Cecilia Dhejne et al., Long-term follow-up of transsexual persons undergoing sex reassignment surgery (Feb. 22, 2011), http://bit.ly/2KnhuoE. 25 Peggy T. Cohen-Kettenis et al., The Treatment of Adolescent Transsexuals: Changing Insights, 5 J. Sexual Med. 1892, 1893 (2008).

55
it.26 In light of the uncertainty, these are precisely the circumstances where legislative inquiry and study would be most helpful when making policy choices.
Finally, putting the force of this Court behind the Sixth Circuit’s views about gender identity risks placing greater strains on parents whose children are experiencing gender dysphoria. Courts have already begun to limit parental rights and even to remove children from custody if parents will not consent to hormone treatments or encourage children to embrace an opposite-sex identity.27 Upholding the Sixth Circuit’s pronouncement that sex itself is a stereotype and that gender identity (rather than sex) determines whether a person is a man or a woman will only
26 See, e.g., Annelou L.C. de Vries et al., Puberty Suppression in Adolescents with Gender Identity Disorder: A Prospective FollowUp Study, 8 J. Sexual Med. 2276, 2276–83 (2011), https://bit.ly/2T5ZFNA (70 of 70 children ages 12-16 given hormone blockers continued puberty suppression and moved on to taking cross-sex hormones); see also Kenneth J. Zucker, The myth of persistence, 19 Int’l J. of Transgenderism 231, 237 (2018), https://bit.ly/31cs72S (arguing that even mere social transition is a “psychosocial treatment that will increase the odds of longterm persistence” of gender dysphoria).
27 E.g., Paul E. v. Courtney F., 439 P.3d 1169, 1173, 1178 (Ariz. 2019) (overturning an order that prohibited a father from “promot[ing] or discourag[ing] a specific view of gender identification” with his child, but permitting the family court to force the father to “retain a gender expert” and “allow [his child] to gender explore”); Order, In re JNS, No. F17-334 X (Hamilton County Juvenile Court Feb. 16, 2018) (awarding custody to a child’s grandparents after the parents “object[ed] to the administration of hormone therapy” but “continued to financially support the ongoing therapy sessions for the child” because the court said that the child had “a legitimate right to pursue life with a different gender identity than the one assigned at birth”).

56
increase government intrusion on parents trying to determine what is best for their children.
In sum, courts are the governmental branch least equipped to deal with these many competing interests, let alone to strike a balance that will allow people with highly divergent views about gender identity to live together harmoniously. “Congress alone has the institutional competence” to evaluate all these issues. Wis. Cent., 138 S. Ct. at 2074.
This Court should reaffirm the longstanding meaning of sex discrimination in Title VII, direct that judgment be entered in favor of Harris as a matter of law, and leave it to Congress to decide whether and how to make changes in federal nondiscrimination laws.

57

CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted,
KRISTEN K. WAGGONER DAVID A. CORTMAN JOHN J. BURSCH Counsel of Record JAMES A. CAMPBELL KATHERINE L. ANDERSON JEANA J. HALLOCK ALLIANCE DEFENDING FREEDOM 440 First Street, N.W. Suite 600 Washington, D.C. 20001 (616) 450-4235 jbursch@ADFlegal.org

AUGUST 2019

JOEL J. KIRKPATRICK JOEL J. KIRKPATRICK, P.C. 843 Penniman Ave., Suite 201 Plymouth, MI 48170 (734) 404-5710
Counsel for Petitioner

 
 No. 18-107
In the Supreme Court of the United States
R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT SUPPORTING REVERSAL
NOEL J. FRANCISCO Solicitor General Counsel of Record
JOSEPH H. HUNT ERIC S. DREIBAND
Assistant Attorneys General JEFFREY B. WALL
Deputy Solicitor General HASHIM M. MOOPPAN
Deputy Assistant Attorney General
JONATHAN C. BOND Assistant to the Solicitor General
ERIC TREENE Special Counsel
CHARLES W. SCARBOROUGH STEPHANIE R. MARCUS
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Whether Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., 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)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statutory provisions involved...................................................... 2 Statement ...................................................................................... 2 Summary of argument ............................................................... 12 Argument:
Title VII does not prohibit discrimination against transgender individuals as such ........................................... 14 A. Title VII does not prohibit discrimination against
transgender persons based on their transgender status ............................................................................... 16 1. Title VII’s prohibition on discrimination
because of “sex” does not extend to transgender status .................................................. 16 2. Discrimination based on transgender status does not inherently entail discrimination because of sex .......................................................... 30 B. Discrimination against transgender persons does not constitute sex stereotyping prohibited by Title VII ................................................................................... 44 1. Sex stereotyping by itself is not a Title VII violation .................................................................... 45 2. Discrimination based on transgender status does not constitute sex stereotyping prohibited by Title VII, but a transgender plaintiff may use sex-stereotyping evidence to prove a sexdiscrimination claim ................................................ 50 Conclusion ................................................................................... 54 Appendix — Statutory provisions........................................... 1a

(III)

IV

TABLE OF AUTHORITIES

Cases:

Page

Balmes v. Daley, EEOC Doc. 01A05006, 2000 WL 34329672 (Aug. 25, 2000).................................... 28
Bauer v. Lynch, 812 F.3d 340 (4th Cir.), cert. denied, 137 S. Ct. 372 (2016) ..................................... 37
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ............................................................... 31
Chavez v. Credit Nation Auto Sales, LLC, 641 Fed. Appx. 883 (11th Cir. 2016) .................................. 28
Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199 (10th Cir. 1997) ........................................... 41
Department of Homeland Sec. v. MacLean, 135 S. Ct. 913 (2015) ........................................................... 23
Doe ex rel. Doe v. Boyer town Area Sch. Dist., 893 F.3d 179 (3d Cir.), vacated on reh’g, 897 F.3d 515 (3d Cir.), superseded by 897 F.3d 518 (3d Cir. 2018), cert. denied, 139 S. Ct. 2636 (2019) ................................... 27
Dothard v. Rawlinson, 433 U.S. 321 (1977) ........................ 43
Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) ........................................... 27
Faulkner v. Mineta, EEOC Doc. 01A54932, 2005 WL 3526016 (Dec. 19, 2005) ...................................... 28
For t Bend Cnty. v. Davis, 139 S. Ct. 1843 (2019)................. 2
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) ........ 31
G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239 (2017)................. 27
General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004).............................................................. 29
General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) ................. 3
General Motors Corp. v. Tracy, 519 U.S. 278 (1997) ......... 32

V

Cases—Continued:

Page

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) .............. 27 Harris v. Forklif t Sys., Inc., 510 U.S. 17 (1993) ................ 32
Har ris Tr ust & Sav. Bank v. Salomon Smith Bar ney Inc., 530 U.S. 238 (2000) ...................................... 16
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) ......................................................... 30
Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) ......................................... 18, 39
Holloway v. Ar thur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) ............................................... 25
Holman v. Indiana, 211 F.3d 399 (7th Cir.), cert. denied, 531 U.S. 880 (2000) ..................................... 42
International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187 (1991) .................................... 41
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005).............................................................. 31
Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006) ....................................... 36, 52
Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 Fed. Appx. 492 (9th Cir. 2009).................................... 28
LaBate v. USPS, EEOC Doc. 01851097, 1987 WL 774785 (Feb. 11, 1987)........................................ 25
Loran v. O’Neill, EEOC Doc. 01A13538, 2001 WL 966123 (Aug. 17, 2001)........................................ 28
Lorillard v. Pons, 434 U.S. 575 (1978) ................................ 25 Los Angeles Dep’t of Water & Power v. Manhart,
435 U.S. 702 (1978)........................................................ 39, 40
Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (Apr. 20, 2012) ...................................... 29
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).............................................................. 33
Merck & Co. v. Reynolds, 559 U.S. 633 (2010).................... 25

VI

Cases—Continued:

Page

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) ........................................................... 2, 19
Michael M. v. Superior Court, 450 U.S. 464 (1981) ..... 36, 37
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).............................................................. 47
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) ............................................. 41
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) .................................................... passim
Phillips v. Mar tin Marietta Corp., 400 U.S. 542 (1971).............................................................. 41
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .... passim Ricci v. DeStefano, 557 U.S. 557 (2009) .............................. 26 Ross v. Blake, 136 S. Ct. 1850 (2016) ................................... 16
Sandifer v. United States Steel Corp., 571 U.S. 220 (2014).............................................................. 17
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) .......... 25
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ....................................... 8, 9, 28
Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982) ............................................... 25
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).............................................................. 33
Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) ......... 26
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) ............................................................... 32
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) ..................................... 24
United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977).................................................. 32, 33, 34

VII

Cases—Continued:

Page

United States v. Virginia, 518 U.S. 515 (1996)............. 37, 38
University of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) .......................................................... 27
Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), cert. dismissed, 138 S. Ct. 1260 (2018).............................. 27
Wittmer v. Phillips 66 Co., 915 F.3d 328 (5th Cir. 2019) ................................... 23, 36, 38
Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015) ......................................................... 32
Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), cert. granted, 139 S. Ct. 1599 (2019) (oral argument scheduled for Oct. 8, 2019) ........... passim

Constitution and statutes:

U.S. Const. Amend. XIV (Equal Protection Clause)....... 27 Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII,
78 Stat. 253 (42 U.S.C. 2000e et seq.) ....................... passim § 703(a)(1), 78 Stat. 255 (42 U.S.C. 2000e-2(a)(1) (1964)) .................................... 2 42 U.S.C. 2000e ...................................................... 2, 17, 6a 42 U.S.C. 2000e( j)...................................................... 44, 6a 42 U.S.C. 2000e(k) ..................................................... 44, 6a 42 U.S.C. 2000e-2(a)(1) .....................................passim, 7a 42 U.S.C. 2000e-2(m)....................................27, 42, 47, 11a 42 U.S.C. 2000e-3(a) ........................................................ 31 42 U.S.C. 2000e-5(g)(2) ..................................... 27, 47, 12a 42 U.S.C. 2000e-5(g)(2)(B)...................................... 42, 12a

VIII

Statutes—Continued:

Page

Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 .................................................................. 2, 25 §§ 105-107, 105 Stat. 1074-1076...................................... 24
Civil Rights Remedies for Gender-Motivated Violence Act, 34 U.S.C. 12361...................................... 25, 3a 34 U.S.C. 12361(d) ..................................................... 25, 4a
Education Amendments of 1972, Tit. IX, 20 U.S.C. 1681 et seq........................................................... 27
Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, §§ 10-13, 86 Stat. 111-113 ................... 2
Fair Housing Act, 42 U.S.C. 3601 et seq. ............................ 26 Matthew Shepard and James Byrd, Jr.
Hate Crime Prevention Act, Pub. L. No. 111-84, Div. E, § 4703(a), 123 Stat. 2836 (28 U.S.C. 994 note) ........................... 22, 14a Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (42 U.S.C. 2000e(k)) ............................. 2, 3, 23 Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq. ....................................................... 7 Violent Crime and Law Enforcement Act of 1994, Pub. L. No. 103-322, Tit. XXVIII, § 280003(a), 108 Stat. 2096 ......................................... 22, 13a 18 U.S.C. 249(a)(2)(A) ..................................................... 22, 1a 18 U.S.C. 249(c)(4) ........................................................... 22, 2a 34 U.S.C. 12291(b)(13)(A) ............................................... 22, 2a 34 U.S.C. 30503(a)(1)(C) ................................................. 22, 6a Cal. Gov’t Code § 12940(a) (West Supp. 2019).................... 24 Conn. Gen. Stat. Ann. § 46a-60(b)(1) (West 2018).............. 24 D.C. Code § 2-1402.11(a)(1) (LexisNexis Supp. 2019) ....... 24 Del. Code Ann. tit. 19, § 711(a)(1) (Supp. 2018) .................. 24 Haw. Rev. Stat. Ann. § 378-2(a)(1)(A) (LexisNexis 2016) ............................................................... 24

IX

Statutes—Continued:

Page

Iowa Code Ann. § 216.6(1)(a) (West Supp. 2018) ............... 24 Mass. Ann. Laws ch. 151B, § 4(1)
(LexisNexis Supp. 2019) .................................................... 24 Md. Code Ann., State Gov’t § 20-606(a)(1)(i)
(LexisNexis 2014) ............................................................... 24 N.H. Rev. Stat. Ann. § 354-A:7(1)
(LexisNexis Supp. 2018) .................................................... 24 N.J. Stat. Ann. § 10:5-4 (West Supp. 2019) ......................... 24 N.M. Stat. Ann. § 28-1-7(A) (2012)....................................... 24 N.Y. Exec. Law § 296(1)(a) (McKinney 2018) .................... 24 Nev. Rev. Stat. Ann. § 613.330(1)(a)
(LexisNexis Supp. 2018) .................................................... 24 R.I. Gen. Laws § 28-5-7(1)(i) (Supp. 2018) .......................... 24 Utah Code Ann. § 34A-5-106(1)(a)(i)
(LexisNexis Supp. 2018) .................................................... 24 Vt. Stat. Ann. tit. 21, § 495(a)(1) (Supp. 2018) .................... 24

Miscellaneous:
Black’s Law Dictionary (4th ed. 1951) ............................... 18 EEOC Compl. Man. (CCH 2008) ......................................... 36 William N. Eskridge, Jr., Title VII’s Statutory
History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 332 (2017) ..................................................... 21 2 Funk & Wagnalls New Practical Standard Dictionary of the English Language (1955).......................18 H.R. 2015, 110th Cong., 1st Sess. (2007) ............................. 29 H.R. 3017, 111th Cong., 1st Sess. (2009) ............................. 29 H.R. 1397, 112th Cong., 1st Sess. (2011) ............................. 29 H.R. 1755, 113th Cong., 1st Sess. (2013) ............................. 29 H.R. 3185, 114th Cong., 1st Sess. (2015) ............................. 29 H.R. 2282, 115th Cong., 1st Sess. (2017) ............................. 29

X

Miscellaneous—Continued:

Page

H.R. 5, 116th Cong., 1st Sess. (2019) ................................... 29 Memorandum from Hon. Eric H. Holder, Jr., U.S.
Att’y Gen., to United States Attorneys and Heads of Dep’t Components (Dec. 15, 2014), https://www.justice.gov/file/188671/download ................... 8 The American College Dictionary (1959) ........................... 18 The American Heritage Dictionary of the English Language (1st ed. 1969) ..................................................... 18 IX The Oxford English Dictionary (1961) ......................... 21 The Random House Dictionary of the English Language (unabridged ed. 1966) ................................ 20, 21 Webster’s New International Dictionary of the English Language:
(2d ed. 1958)....................................................... 17, 18, 31 (2d ed. 1961).................................................................. 21 Webster’s Seventh New Collegiate Dictionary (1963) ....... 18

In the Supreme Court of the United States
No. 18-107 R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER
v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT SUPPORTING REVERSAL
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-81a) is reported at 884 F.3d 560. The opinion and order of the district court granting summary judgment to petitioner (Pet. App. 82a-161a) is reported at 201 F. Supp. 3d 837. The amended opinion and order of the district court denying petitioner’s motion to dismiss (Pet. App. 162a-187a) is reported at 100 F. Supp. 3d 594.
JURISDICTION
The judgment of the court of appeals was entered on March 7, 2018. On May 16, 2018, Justice Kagan extended the time within which to file a petition for a writ of certiorari to and including August 3, 2018, and the petition was filed on July 20, 2018. The petition was granted on April 22, 2019. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
(1)

2
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are reprinted in the appendix to this brief. App., infra, 1a-14a.
STATEMENT
1. Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII, 78 Stat. 253 (42 U.S.C. 2000e et seq.), prohibits employers from discriminating against individuals based on certain enumerated grounds. Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846 (2019). As originally enacted, Title VII made it “an unlawful employment practice for an employer” covered by the statute “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.” § 703(a)(1), 78 Stat. 255 (42 U.S.C. 2000e-2(a)(1) (1964)). Congress has amended Title VII in various respects in the 55 years since, see, e.g., Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071; Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076; Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, §§ 10-13, 86 Stat. 111-113, but the text of that core prohibition remains the same today. 42 U.S.C. 2000e-2(a)(1).
Congress has enacted definitions of a number of terms used in the statute, but it has never enacted a Title VII-specific definition of “sex.” See 42 U.S.C. 2000e. Indeed, “[t]he prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986). In 1976, this Court held that the prohibition on “discriminat[ion] * * * because of * * * sex” did not cover an employer’s exclusion of pregnancy from coverage under

3
a disability-benefits plan. General Elec. Co. v. Gilbert, 429 U.S. 125, 133 (citation omitted); see id. at 135-140. Two years later, Congress added a provision stating that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” Pregnancy Discrimination Act, 92 Stat. 2076 (42 U.S.C. 2000e(k)). Congress has otherwise left “sex” undefined.
2. a. Petitioner Harris Funeral Homes, Inc. (Harris Homes) is a family-owned, for-profit corporation that operates funeral homes at several locations in Michigan. Pet. App. 90a. The principal owner, Thomas Rost, is a Christian who believes “ ‘that God has called him to serve grieving people’ and ‘that his purpose in life is to minister to the grieving.’ ” Id. at 6a (citation omitted).
Harris Homes has adopted a written, sex-specific dress code for its employees who interact with the public. Pet. App. 7a; J.A. 119-121. The dress code requires male employees to wear suits and ties and female employees to wear skirts and business jackets. Ibid.; see J.A. 81, 135-138, 151, 158, 165-166, 172-173, 208-209. In Harris Homes’ view, “[m]aintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.” J.A. 129; see J.A. 28-29, 77; Pet. 3-4. Harris Homes provides suits and ties for male employees and currently provides a clothing stipend to female employees. Pet. App. 7a-8a.1
1 When this suit was f iled in September 2014, Harris Homes did not provide clothing or a clothing stipend to female employees. Pet. App. 7a. In October 2014, petitioner began providing female employees a clothing stipend. See id. at 7a-8a.

4
Harris Homes “administers its dress code based on [its] employees’ biological sex, not based on their subjective gender identity.” J.A. 129. Rost has stated that he “believe[s] that the Bible teaches that a person’s sex is an immutable God-given gift,” and he would “violat[e] God’s commands” by “permit[ting] one of [Harris Homes’] funeral directors to deny their sex while acting as a representative of [the] organization” or by permitting a funeral director of either sex to “wear the uniform for” funeral directors of the opposite sex “at work.” J.A. 131.
b. Respondent Stephens was employed by Harris Homes from 2007 to 2013—first as an apprentice, and later as a funeral director and embalmer. Pet. App. 5a. Stephens “was born biologically male,” with the name William Anthony Beasley Stephens, and Stephens presented as a male when Stephens began working for Harris Homes and for more than five years thereafter. Id. at 3a; see id. at 5a-6a. Stephens now identifies as a transgender woman and uses the name Aimee Stephens. Id. at 3a, 5a, 8a.
In 2013, Stephens submitted a letter to Harris Homes stating that Stephens had “struggled with ‘a gender identity disorder’ her ‘entire life,’ ” “ha[d] ‘decided to become the person that her mind already is,’ ” and “ ‘intended to have sex reassignment surgery.’ ” Pet. App. 8a (brackets and citations omitted); see id. at 94a-95a. Stephens stated that “[t]he first step [Stephens] must take [wa]s to live and work full-time as a woman for one year, ” and, following a planned vacation, Stephens “w[ould] return to work as [Stephens’s] true self,” Aimee Stephens, “in appropriate business attire.” Stephens Br. in Opp. App. 2a. Stephens intended to comply with Harris Homes’ dress code for female employees, requiring a skirt and suit jacket. See Pet. App. 8a.

5
Several weeks later, before Stephens’s planned vacation, Rost terminated Stephens’s employment. Pet. App. 9a; see id. at 95a-96a. Rost told Stephens that “this is not going to work out.” id. at 9a (citation omitted). “Stephens’s understanding from” the conversation with Rost “was that ‘coming to work dressed as a woman was not going to be acceptable.’ ” Id. at 96a (citation omitted). In this litigation, Rost stated his “belie[f ] that Stephens wearing a female uniform in the role of funeral director would have been distracting to [Rost’s] clients mourning the loss of their loved ones, would have disrupted their grieving and healing process, and would have harmed [Rost’s] clients and [his] business and business relationships.” J.A. 130. Rost further stated that he “believe[d] that allowing one of [his] male funeral directors to wear the uniform for female funeral directors would have driven away many of [Rost’s] prospective clients because allowing that would have fallen short of those clients’ basic expectations for their funeral experience.” Ibid. Rost averred, however, that he “would not have dismissed Stephens if Stephens had expressed to [him] a belief that [Stephens] is a woman and an intent to dress or otherwise present as a woman outside of work, so long as [Stephens] would have continued to conform to the dress code for male funeral directors while at work.” J.A. 132-133. Rost stated that “[i]t was Stephens’s refusal to wear the prescribed uniform and intent to violate the dress code while at work that was the decisive consideration in [Rost’s] employment decision.” J.A. 133. Harris Homes offered Stephens a severance package, which Stephens declined. Pet. App. 9a.
3. a. Stephens filed a charge of sex discrimination with the Equal Employment Opportunity Commission

6
(EEOC or Commission), alleging that the firing was due to Stephens’s “sex and gender identity, female.” Stephens Br. in Opp. App. 6a. After investigating, the EEOC’s Detroit Field Office issued a letter of determination finding reasonable cause to believe that Harris Homes had discharged Stephens based on sex and gender identity in violation of Title VII. J.A. 202-204.
After informal conciliation efforts proved unsuccessful, the EEOC brought this Title VII suit against Harris Homes. Pet. App. 10a, 87a-88a, 162a-163a; see J.A. 12-18. The EEOC’s operative complaint alleged that Harris Homes had “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [Harris Homes’] sex- or gender-based preferences, expectations, or stereotypes.” J.A. 15. The EEOC’s complaint did not allege that the dress code itself violated Title VII. See J.A. 12-18; see also Pet. App. 112a.2 The EEOC sought backpay for Stephens as well as injunctive and other relief against Harris Homes. J.A. 16-17.
b. Harris Homes moved to dismiss the complaint. Pet. App. 170a. The district court denied the motion, but it narrowed the scope of the claim on which the suit could proceed. See id. at 171a-184a. The court held that the EEOC’s claim could not proceed on a theory that Harris Homes had terminated Stephens “based solely upon Stephens’s status as a transgender person.” Id. at
2 The EEOC’s complaint did allege that Harris Homes had discriminated against female employees by providing a clothing benef it to male but not female employees. J.A. 15-16. Harris Homes subsequently began providing female employees a clothing benef it, p. 3 n.1, supra, and the EEOC’s claim based on the clothing benef it is not at issue here.

7
172a. The court reasoned that, “like sexual orientation, transgender or transsexual status is currently not a protected class under Title VII.” Ibid.
The district court further held, however, that the EEOC’s Title VII suit could proceed on a theory that Harris Homes had engaged in improper “sex-stereotyping.” Pet. App. 183a; see id. at 173a-184a. The court held that “a transgender person—just like anyone else—can bring a sex-stereotyping gender-discrimination claim under Title VII.” Id. at 183a. It concluded that, because the EEOC’s complaint also “alleged that Stephens’s failure to conform to sex stereotypes was the driving force behind [Harris Homes’] decision to fire Stephens, the EEOC ha[d] sufficiently pleaded a sex-stereotyping gender-discrimination claim under Title VII.” Id. at 184a; see id. at 172a-173a, 183a-184a.
c. Following discovery, the district court granted summary judgment for Harris Homes. Pet. App. 82a-161a. The court determined (as relevant) that the EEOC had presented “direct evidence to support a claim of employment discrimination,” and the court rejected Harris Homes’ contention “that its enforcement of its sex-specific dress code d[id] not constitute impermissible sex stereotyping.” Id. at 110a; see id. at 107a-118a. The court concluded, however, that Harris Homes was entitled to an “exemption from Title VII” based on the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq., “under the facts and circumstances of this unique case.” Pet. App. 87a; see id. at 118a-144a.
4. The EEOC appealed, Pet. App. 12a, and Stephens intervened in the appeal, id. at 12a-13a.

8
a. On October 4, 2017, while the EEOC’s appeal was pending, Attorney General Sessions issued a memorandum to United States Attorneys and heads of Department of Justice components stating that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se.” Pet. App. 193a. The memorandum further stated that “Title VII is not properly construed to proscribe employment practices (such as sex-specific bathrooms) that take account of the sex of employees but do not impose different burdens on similarly situated members of each sex.” Ibid.; see id. at 191a-194a. It explained that “the Department of Justice will take that position in all pending and future matters.” Id. at 193a. Attorney General Sessions’s 2017 memorandum “withdr[ew]” a previous memorandum issued by Attorney General Holder in December 2014, shortly after this litigation began, that had taken a contrary position. Ibid.3
b. The court of appeals reversed. Pet. App. 1a-81a. i. The court of appeals agreed with the district court “that Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII.” Pet. App. 14a; see id. at 15a-22a. According to the court of appeals, under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Sixth Circuit precedent construing it, “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” Pet. App. 16a (quoting Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004)) (brackets omitted).
3 See Memorandum from Hon. Eric H. Holder, Jr., U.S. Att’y Gen., to United States Attorneys and Heads of Dep’t Components (Dec. 15, 2014), https://www.justice.gov/file/188671/download.

9
Price Waterhouse involved the burden of proof in a Title VII suit where the employer’s action was purportedly motivated by both prohibited sex-based bias and other, lawful considerations. See 490 U.S. at 237-238 (plurality opinion). In addressing that issue, the plurality observed that evidence that an employer engaged in “sex stereotyping” can be probative of whether the employer was motivated by an employee’s sex. Id. at 250; see id. at 250-252. In Smith, the Sixth Circuit construed Price Waterhouse to mean “that a transgender plaintiff (born male) who suffered adverse employment consequences after ‘he began to express a more feminine appearance and manner on a regular basis’ ” can bring a Title VII claim “because such ‘discrimination would not have occurred but for the victim’s sex.’ ” Pet. App. 16a (quoting Smith, 378 F.3d at 572, 574) (brackets omitted).
In this case, the court of appeals further extended its interpretation of Price Waterhouse. It held that, “[u]nder any circumstances, ‘sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.’ ” Pet. App. 16a (emphasis added; brackets and citation omitted). Applying that bright-line rule, the court concluded that Harris Homes’ “decision to fire Stephens because Stephens was ‘no longer going to represent himself as a man’ and ‘wanted to dress as a woman’ ” constituted sex stereotyping in violation of Title VII. Ibid. (citation omitted).
The court of appeals rejected Harris Homes’ contention that it could not be held liable on a sex-stereotyping theory because it had not treated male or female employees less favorably than similarly situated members of the opposite sex. Pet. App. 17a-20a. The court did not identify any way in which Harris Homes had treated Stephens less favorably than similarly situated

10
female employees. Instead, the court of appeals disagreed with Harris Homes’ premise that “sex stereotyping violates Title VII only when the employer’s sex stereotyping resulted in disparate treatment of men and women.” Id. at 20a (citation and internal quotation marks omitted). The court said that it was “not considering, in this case,” either “whether certain sex-specific appearance requirements violate Title VII” in general, or “whether [Harris Homes] violated Title VII by requiring men to wear pant suits and women to wear skirt suits” in particular. Id. at 18a. But despite disclaiming any ruling about Harris Homes’ dress code, the court concluded “that an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave.” Id. at 21a.
ii. The court of appeals additionally held that the district court had erred in precluding the EEOC from pursuing its broader theory that gender-identity discrimination categorically violates Title VII. Pet. App. 14a; see id. at 22a-36a. The court held, without qualification, “that discrimination on the basis of transgender and transitioning status violates Title VII.” Id. at 22a.
The court of appeals rejected Harris Homes’ contention that “the Congress enacting Title VII understood ‘sex’ to refer only to a person’s ‘physiology and reproductive role,’ and not a person’s ‘self-assigned “gender identity.” ’ ” Pet. App. 28a (citation omitted). The court did not identify any evidence that the ordinary meaning of “sex” in 1964 encompassed gender identity or transgender status. Instead, the court stated that “the drafters’ failure to anticipate that Title VII would cover transgender status is of little interpretive value, be-

11
cause ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.’ ” Id. at 28a (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)). The court further stated that “Smith and Price Waterhouse preclude an interpretation of Title VII that reads ‘sex’ to mean only individuals’ ‘chromosomally driven physiology and reproductive function.’ ” Id. at 29a (citation omitted).
The court of appeals concluded that “discrimination on the basis of transgender status” per se violates Title VII because it “necessarily entails discrimination on the basis of sex,” for “two reasons.” Pet. App. 23a, 30a. First, the court reasoned that “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.” Id. at 23a; see id. at 23a-26a. The court concluded that Stephens would not “have been f ired if Stephens had been a woman who sought to comply with the women’s dress code.” Id. at 24a. Second, the court reasoned that “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping,” stating that “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Id. at 26a-27a; see id. at 26a-31a.4
4 The court of appeals further concluded that the district court had erred in finding that petitioner was entitled to an exemption
 
from Title VII’s requirements in these circumstances under RFRA. Pet. App. 41a-73a. In this Court, petitioner has not sought review of that determination. See Pet. i, 13-35.

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SUMMARY OF ARGUMENT
A. Title VII’s prohibition on “discriminat[ion] * * * because of * * * sex,” 42 U.S.C. 2000e-2(a)(1), does not bar discrimination because of transgender status.
1. In 1964, the ordinary public meaning of “sex” was biological sex. It did not encompass transgender status, which Stephens and the Sixth Circuit describe as a disconnect between an individual’s biological sex and gender identity. In the particular context of Title VII— legislation originally designed to eliminate employment discrimination against racial and other minorities—it was especially clear that the prohibition on discrimination because of “sex” referred to unequal treatment of men and women in the workplace.
Congress’s actions since 1964 confirm this understanding. It has specifically addressed gender-identity discrimination in multiple other statutes, listing “gender identity” separately from and in addition to “sex” or “gender.” Many States have done the same. Yet in the face of (until recently) uniform circuit precedent construing “sex” in Title VII not to encompass transgender status, Congress has consistently declined similarly to expand that statute—even while amending Title VII in other respects.
2. Stephens argues, and the court of appeals held, that transgender-status discrimination constitutes discrimination on the basis of sex because it necessarily entails considering sex. Even assuming their premise, the conclusion does not follow. Under this Court’s precedent, proving discrimination because of sex under Title VII requires showing that an employer treated members of one sex less favorably than similarly situated members of the other sex. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Treating

13
all transgender persons less favorably than nontransgender persons does not violate that rule. The Sixth Circuit’s approach, which equates considering sex with discriminating because of sex, would invalidate all sex-specific policies, from restrooms to dress codes.
Stephens contends that sex was a but-for cause of Stephens’s termination because Harris Homes would not have fired a female funeral director who (like Stephens) sought to dress as a female. That comparison fails because it does not compare Stephens to a similarly situated individual of the opposite sex. It compares Stephens to a biological female who, unlike Stephens, seeks to dress according to the dress code for her own sex. Neither Stephens nor the Sixth Circuit has identified evidence that Harris Homes would have treated a female who sought to dress as a male any differently from the way it treated Stephens. None of the decisions of this Court that Stephens cites supports a contrary conclusion.
B. 1. Stephens and the court of appeals alternatively reason that transgender-status discrimination inherently constitutes sex stereotyping, which they argue is prohibited under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). But again assuming their premise, Stephens’s and the Sixth Circuit’s conclusion does not follow because Price Waterhouse did not interpret Title VII to bar sex stereotyping per se. The plurality in that case merely recognized that evidence of sex stereotyping can be relevant in proving a plaintiff ’s claim that an employment action was motivated by sex. Price Waterhouse casts no doubt on the rule, later reaffirmed in Oncale, that proving discrimination because of sex requires showing disadvantageous treatment of members of one sex relative to similarly situated members of the other.

14
2. A transgender plaintiff therefore cannot prevail in a Title VII suit simply by showing that an employer relied on sex stereotypes. The plaintiff must show that the employer treated similarly situated members of the opposite sex more favorably. Like any other plaintiff, a transgender person may use evidence of sex stereotyping in making that showing. But the individual’s transgender status does not alter the legal standard.
Here, Harris Homes did not discriminate against Stephens based on sex stereotypes in violation of Title VII. It terminated Stephens for refusing to comply with Harris Homes’ sex-specific dress code. Since the court of appeals did not address and Stephens does not challenge that dress code in this Court, it must be assumed that the dress code burdens men and women equally. As a result, neither Stephens nor the Sixth Circuit has identified evidence that Harris Homes treated Stephens, a biological male, less favorably than similarly situated females. That does not mean transgender individuals are excluded from Title VII’s protections. It means only that they must make the same showing as any other plaintiff.
ARGUMENT
TITLE VII DOES NOT PROHIBIT DISCRIMINATION
AGAINST TRANSGENDER INDIVIDUALS AS SUCH
Title VII makes it an unlawful employment practice for a covered employer to fire, refuse to hire, or “otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s * * * sex.” 42 U.S.C. 2000e-2(a)(1). The question on which this Court granted review is whether that prohibition extends to “discrimination against transgender people” as such. 139 S. Ct. 1599 (2019). It does not. The statutory text

15
and this Court’s decisions make clear that Section 2000e-2(a)(1)’s prohibition on sex-based disparate treatment bars only employment practices that treat women less favorably than similarly situated men because they are women, or vice versa. Treating a transgender person less favorably than a non-transgender person because he or she is transgender does not fall within that bar.
The court of appeals nevertheless concluded, and Stephens contends in this Court, that discrimination against transgender individuals categorically does violate Title VII’s prohibition on sex discrimination. Pet. App. 22a-36a; Stephens Br. 20-36. They advance a variety of arguments for that position, but ultimately all fail for the same fundamental reason. Section 2000e-2(a)(1) bars only “discriminat[ion] * * * because of * * * sex.” 42 U.S.C. 2000e-2(a)(1). It does not bar every workplace practice that considers sex without placing unequal burdens on similarly situated men and women. Neither the Sixth Circuit nor Stephens has shown that discriminating based on transgender status results in treating males or females less favorably than similarly situated members of the opposite sex.
To be clear, the question in this case is not whether employers ought to be prohibited from discriminating against individuals who are transgender. It is whether Title VII as written currently bars such discrimination. The court of appeals’ discomfort with construing a landmark civil-rights law to allow what the court viewed as inappropriate bias implicates policy questions about whether Title VII should reflect societal changes that Congress in 1964 could not have envisioned. Fundamentally, however, that is a question for Congress, not the courts. Congress has specifically prohibited genderidentity discrimination in multiple other statutes that the

16
Department of Justice will continue to enforce vigorously. But Congress has not taken that step in Title VII. Unless and until it does so, the proper role of the Executive, and of this Court, is faithfully to enforce the law as written.
A. Title VII Does Not Prohibit Discrimination Against
Transgender Persons Based On Their Transgender Status
Title VII’s relevant provision, 42 U.S.C. 2000e-2(a)(1), prohibits “discriminat[ion] * * * because of ” certain enumerated traits. Ibid. Transgender status is not among the traits enumerated. Section 2000e-2(a)(1) does bar discrimination “because of * * * sex,” ibid., but when Title VII was enacted in 1964, the ordinary public meaning of “sex” was biological sex, not transgender status. Subsequent action by Congress confirms that it has never understood or intended Title VII to cover transgender individuals as a protected class. Stephens’s and the Sixth Circuit’s core contention—that discrimination based on transgender status necessarily entails sex discrimination—would transform Title VII into a blanket prohibition on all sex-specific workplace practices. That statute would bear no resemblance to how Title VII has been understood by Congress or the public from 1964 to the present.
1. Title VII’s prohibition on discrimination because of
“sex” does not extend to transgender status
a. Text. “Statutory interpretation * * * begins with the text.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). “And where the statutory language provides a clear answer” to a particular question, the inquiry “ends there as well.” Harris Trust & Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 254 (2000) (citation omitted). The

17
text of Title VII’s relevant provision does not bar discrimination based on transgender status.
i. The EEOC’s operative complaint alleged that Harris Homes violated 42 U.S.C. 2000e-2(a)(1). J.A. 15. That provision states that it is an “unlawful employment practice for an employer * * * 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.” 42 U.S.C. 2000e-2(a)(1). Section 2000e-2(a)(1) nowhere mentions transgender status. See ibid. And the provision’s prohibition on discrimination because of “sex” cannot fairly be read to encompass transgender status.
Title VII includes statute-specific definitions of various terms, but not “sex.” See 42 U.S.C. 2000e (defining “because of sex” and “on the basis of sex” to include pregnancy-related issues but not defining “sex”). The term “sex” thus should “be interpreted as taking [its] ordinary, contemporary, common meaning.” Sandifer v. United States Steel Corp., 571 U.S. 220, 227 (2014) (citation omitted). When Title VII was enacted in 1964, “sex” meant biological sex. The term “refer[red] to [the] physiological distinction[ ]” between “male and female.” Webster’s New International Dictionary of the English Language 2296 (2d ed. 1958) (Webster’s Second ). For example, Webster’s Second defined “sex” in relevant part as “[o]ne of the two divisions of organisms formed on the distinction of male and female; males or females collectively,” or “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female, or of pertaining to the distinctive function of the male or female in reproduction.” Ibid.; see

18
ibid. (distinguishing “sex,” which “refers to physiological distinctions,” from “gender,” which refers “to distinctions in grammar” (capitalization omitted)). Other contemporaneous dictionaries were in accord.5
Historical context confirms that Title VII employs the ordinary meaning of “sex.” As Judge Lynch observed in his dissent in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc), cert. granted, 139 S. Ct. 1599 (2019) (oral argument scheduled for Oct. 8, 2019)— addressing whether Title VII prohibits sexual-orientation discrimination—the “central public meaning” of “sex” in the specific context of Title VII shows that it was understood to afford equal opportunity to women and men. Pet. App. at 88, Altitude Express, Inc. v. Zarda,
5 See, e.g., The American Heritage Dictionary of the English Language 1187 (1st ed. 1969) (‘‘The property or quality by which organisms are classif ied according to their reproductive functions”; “[e]ither of two divisions, designated male and female, of this classif ication”; “[m]ales or females, collectively” (emphasis omitted) ), quoted in Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 362-363 (7th Cir. 2017) (en banc) (Sykes, J., dissenting); Webster’s Seventh New Collegiate Dictionary 795 (1963) (“either of two divisions of organisms distinguished respectively as male or female”; “the sum of the structural, functional, and behavioral peculiarities of living beings that subserve reproduction by two interacting parents and distinguish males and females”); The American College Dictionary 1109-1110 (1959) (“the character of being either male or female: persons of different sexes”; “the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished, or the phenomena depending on these differences” (emphasis omitted)); 2 Funk & Wagnalls New Practical Standard Dictionary of the English Language 1197 (1955) (“The biological distinction between male and female”; “the character of being male or female”; “Males or females of a group, collectively; especially, men or women”); Black’s Law Dictionary 1541 (4th ed. 1951) (“The sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female.”).

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No. 17-1623 (May 29, 2018) (17-1623 Pet. App.); see id. at 87-90. Title VII represented “historic legislation to address bigotry against African-Americans on the basis of race” and was principally designed “to protect African Americans and other racial, national, and religious minorities from similar discrimination.” Id. at 89-90. Just before Title VII’s passage, Congress added “sex” to the list of prohibited grounds of discrimination. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986). Against that backdrop, “members of Congress” voting on Title VII and “any politically engaged citizen” would have “understood” the inclusion of “sex” as similarly “secur[ing] the rights of women to equal protection in employment” by “eliminat[ing] workplace inequalities that held women back from advancing in the economy” in the same way as other protected classes. 17-1623 Pet. App. at 89 (Lynch, J., dissenting).
To be sure, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). Subjective expectations of Members of Congress as to which particular practices Title VII would prohibit therefore do not control. But the historical context makes clear that, in using the term “sex,” Congress was referring to discrimination based on biological sex—i.e., unequal treatment of men and women—consistent with the term’s ordinary meaning. Neither the court of appeals nor Stephens has pointed to any evidence that, when Congress used the term “sex” in 1964, it called upon a meaning other than biological sex.
The ordinary public meaning of “sex” in 1964 is dispositive here. Biological sex indisputably is not synon-

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ymous with transgender status. Definitions of “transgender” vary, but the court of appeals, Stephens, and the EEOC all have generally understood the term to refer to a disconnect between a person’s biological sex at birth and the person’s “sexual” or “gender identity.” See Pet. App. 26a (“[T]ransgender status is characterized by the American Psychiatric Association as ‘a disjunction between an individual’s sexual organs and sexual identity’ ”); Stephens Br. 5 (describing as “transgender” a person whose “gender identity” does not “match[ ] their sex assigned at birth”); EEOC C.A. Br. 21 n.3 (“The term ‘transgender’ is defined as relating to ‘a person whose gender identity differs from the sex the person had or was identified as having at birth.’ ” (citation omitted)). Stephens defines “gender identity,” in turn, as “ ‘one’s internal, deeply held sense of gender.’ ” Stephens Br. 5 (citation omitted). However the Court defines “transgender,” it is not the same as biological sex. To the contrary, in Stephens’s view, “transgender” denotes a discrepancy between biological sex and gender identity. Neither the Sixth Circuit nor Stephens has attempted to show that the ordinary meaning of “sex” referred to or encompassed such a discrepancy.
ii. Several amici attempt to bridge that gap, arguing that “sex” did not refer exclusively to biological sex in 1964. But none has come close to showing that the wellaccepted, ordinary, public meaning of the term referred to such a disconnect. Amici Historians cite dictionaries that defined sex to include “the sum of structural and functional differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences,” Br. 6 (quoting The Random House Dictionary of the English Language 1307 (unabridged ed. 1966)), or the “class of phenomena with

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which [the differences between male and female] are concerned,” id. at 7 (quoting IX The Oxford English Dictionary 578 (1961)) (brackets in original). But those definitions by their terms merely encompass attributes that are traceable to biological sex.
Other amici cite a law-review article that in turn cites tertiary definitions of sex in Webster’s Second as including “[t]he sphere of behavior dominated by the relations between male and female,” and (in the context of “[p]sychoanalysis”) “the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct.” William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 332, 338 & n.62 (2017) (quoting Webster’s New International Dictionary of the English Language 2296 (2d ed. 1961)), cited in Dellinger Amici Br. 12. Those definitions, however, unmistakably refer to sexual behavior. They shed no light on the meaning of “sex” as a classification of persons rather than as a reference to sexual conduct.
Amici Corpus-Linguistics Scholars assert (Br. 16-18)—based on a “pseudorandom sample” of fewer than 100 usages of “sex” “in the 1960s”—that the term “sex” was not always clearly used to denote a “binary classification” between male and female. They further posit that, “in the 1960s, the word ‘sex’ could have encompassed what we now call gender.” Id. at 24 (capitalization altered). But even on its own terms, the analysis does not purport to show that “sex” was ordinarily understood to refer to a disconnect between one’s biological sex and one’s perception of one’s gender, nor that Congress adopted any uncommon meaning of “sex” in Title VII.

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b. History. Congress’s actions in the ensuing 55 years forcefully confirm that “sex” in Section 2000e-2(a)(1) does not encompass transgender status. In other statutory contexts, Congress has acted affirmatively to address gender-identity discrimination as a distinct category separate from sex discrimination. But it has consistently declined to do the same in Title VII.
i. In multiple statutes enacted after Title VII, Congress has expressly prohibited or otherwise specifically addressed discrimination based on “gender identity,” in addition to discrimination based on “sex” or “gender.” See, e.g., 18 U.S.C. 249(a)(2)(A) and (c)(4) (prohibiting acts or attempts to cause bodily injury to any person “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person,” and defining “ ‘gender identity’ ” as “actual or perceived gender-related characteristics” (emphasis added)); 34 U.S.C. 12291(b)(13)(A) (Supp. V 2017) (prohibiting discrimination in certain federally funded programs “on the basis of actual or perceived race, color, religion, national origin, sex, gender identity (as defined in [18 U.S.C. 249(c)(4)]), sexual orientation, or disability” (emphases added)); 34 U.S.C. 30503(a)(1)(C) (federal assistance to state, local, or tribal investigations of crimes “motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim” (emphasis added)). And in 2009, Congress amended an existing statute, which already defined “hate crime[s]” to include crimes motivated by “gender,” by adding “gender identity.” Pub. L. No. 111-84, Div. E, § 4703(a), 123 Stat. 2836 (28 U.S.C. 994 note) (amending Pub. L. No. 103-322, Tit. XXVIII, § 280003(a), 108 Stat. 2096).

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Those statutes are significant for two reasons. First, they demonstrate that Congress “kn[ows] how” to prohibit discrimination based on gender identity when it wishes to do so. Department of Homeland Sec. v. MacLean, 135 S. Ct. 913, 921 (2015). “If Congress had meant to prohibit * * * transgender discrimination” in Title VII, “surely the most straightforward way to do so would have been to say so—to add * * * ‘transgender status’ or ‘gender identity’ to the list of classifications protected under Title VII.” Wittmer v. Phillips 66 Co., 915 F.3d 328, 338 (5th Cir. 2019) (Ho, J., concurring). But Congress has never done so.
Second, the above statutes enumerate “gender identity” as a separate prohibited basis of discrimination, distinct from “sex” or “gender” simpliciter. See p. 22, supra. That approach reflects Congress’s continued understanding that “sex” and “gender” do not mean transgender status or gender identity. If Congress had viewed “sex” as including gender identity, and had merely meant to clarify that understanding, it could easily have said so. For example, when Congress amended Title VII in 1978 to supersede a decision of this Court that had held that discrimination “because of sex” did not encompass pregnancy-related issues, Congress did so by specifying that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” Pregnancy Discrimination Act, 92 Stat. 2076 (42 U.S.C. 2000e(k)) (emphasis added); see pp. 2-3, supra. Instead, in the statutes above, Congress separately prohibited discrimination

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based on gender identity, reflecting Congress’s recognition that the meaning of “sex” as biological sex has endured.6
ii. In contrast, Congress has consistently declined to extend Title VII to bar discrimination based on transgender status. It has amended Title VII in various respects in the five decades since its original enactment. But Congress has left undisturbed the longstanding (and until recently uniform) view of the circuits that “sex” in Title VII does not encompass transgender status.
Most significantly, in the Civil Rights Act of 1991, Congress amended Title VII in multiple respects— including to specify methods and burdens of proof for certain sex-discrimination claims. See §§ 105-107, 105 Stat. 1074-1076. At that time, all three courts of appeals to address the issue had concluded that Title VII does not prohibit discrimination based on transgender status. See Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085
6 Similarly, a number of States have enacted prohibitions on employment discrimination based on gender identity, and nearly all proscribe gender-identity discrimination in addition to discrimination based on “sex” or “gender.” See Cal. Gov’t Code § 12940(a) (West Supp. 2019); Conn. Gen. Stat. Ann. § 46a-60(b)(1) (West 2018); D.C. Code § 2-1402.11(a)(1) (LexisNexis Supp. 2019); Del. Code Ann. tit. 19, § 711(a)(1) (Supp. 2018); Iowa Code Ann. § 216.6(1)(a) (West Supp. 2018); Mass. Ann. Laws ch. 151B, § 4(1) (LexisNexis Supp. 2019); Md. Code Ann., State Gov’t § 20-606(a)(1)(i) (LexisNexis 2014); N.H. Rev. Stat. Ann. § 354-A:7(1) (LexisNexis Supp. 2018); N.J. Stat. Ann. § 10:5-4 (West Supp. 2019); N.M. Stat. Ann. § 28-1-7(A) (2012); N.Y. Exec. Law § 296(1)(a) (McKinney 2018); Nev. Rev. Stat. Ann. § 613.330(1)(a) (LexisNexis Supp. 2018); R.I. Gen. Laws § 28-5-7(1)(i) (Supp. 2018); Utah Code Ann. § 34A-5-106(1)(a)(i) (LexisNexis Supp. 2018); Vt. Stat. Ann. tit. 21, § 495(a)(1) (Supp. 2018); but see Haw. Rev. Stat. Ann. § 378-2(a)(1)(A) (LexisNexis 2016) (prohibiting discrimination based on “sex including gender identity or expression”).

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(7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (per curiam); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661-663 (9th Cir. 1977).7 The EEOC had also taken that position. See LaBate v. USPS, EEOC Doc. 01851097, 1987 WL 774785, at *2 (Feb. 11, 1987) (“It is settled law that transsexualism is not recognized as a protected basis under Title VII.”). In the 1991 amendments, Congress left that consensus undisturbed.
In doing so, Congress effectively ratified that settled view. This Court “normally assume[s] that, when Congress enacts statutes, it is aware of relevant judicial precedent.” Merck & Co. v. Reynolds, 559 U.S. 633, 648 (2010); see, e.g., Lorillard v. Pons, 434 U.S. 575, 580-581
7 Nine years after the Civil Rights Act of 1991 was enacted, the Ninth Circuit stated that the “judicial approach taken in cases such as Holloway has been overruled by the logic and language of ” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Schwenk v. Hartford, 204 F.3d 1187, 1201-1202 (9th Cir. 2000). Schwenk did not involve Title VII; it addressed whether a state prison guard was entitled to qualif ied immunity in a suit alleging that the guard had attempted to rape a transsexual prisoner in violation of the Civil Rights Remedies for Gender-Motivated Violence Act (GMVA), 34 U.S.C. 12361. See Schwenk, 204 F.3d at 1198-1203. The GMVA is a differently worded statute enacted 30 years after Title VII that provides a remedy for “crime[s] of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” 34 U.S.C. 12361(d). As discussed below, Schwenk’s characterization of Price Waterhouse is incorrect. See pp. 45-49, infra. In any event, the Ninth Circuit’s statements in 2000 about the vitality of its previous decision shed no light on the legal landscape in 1991. Indeed, Schwenk “presume[d] that Congress, in drafting the GMVA, was aware of the interpretation given by the pre-Price Waterhouse federal courts to the terms ‘sex’ and ‘gender’ under Title VII and acted intentionally to incorporate the broader concept of ‘gender.’ ” 204 F.3d at 1201 n.12.

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(1978). And when Congress, aware of judicial decisions that have construed a statute consistently, amends the statute in other respects but leaves that settled understanding undisturbed, Congress is ordinarily understood to have accepted that construction. See Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2520 (2015). For example, in Inclusive Communities Project, the Court observed that, when Congress amended the Fair Housing Act (FHA), 42 U.S.C. 3601 et seq., in 1988, Congress “was aware of th[e] unanimous precedent” of multiple circuits holding that the Act authorized disparate-impact claims and “made a considered judgment to retain the relevant statutory text.” 135 S. Ct. at 2519. The Court held that, “[a]gainst this background understanding in the legal and regulatory system, Congress’ decision in 1988 to amend the FHA while still adhering to the operative language * * * is convincing support for the conclusion that Congress accepted and ratified” that understanding. Id. at 2520.
The same analysis applies here. Indeed, it is especially likely that Congress in 1991 was attuned to the uniform construction of “sex” in Title VII because several of the changes Congress made to the statute in the 1991 amendments responded to judicial decisions with which Congress disagreed. See Ricci v. DeStefano, 557 U.S. 557, 624 (2009) (Ginsburg, J., dissenting) (noting that 1991 amendments responded to decisions that Congress believed had “sharply cut back on the scope and effectiveness” of Title VII (citation omitted)). For instance, Congress abrogated this Court’s decision addressing the standard and burden of proof for mixed-motive cases in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), on which Stephens and the Sixth Circuit also rely for their sex-stereotyping argument. Stephens Br. 28-36; Pet. App. 15a-16a; see

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42 U.S.C. 2000e-2(m), 2000e-5(g)(2); University of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 348-350 (2013). Yet Congress chose not to overturn the consensus among the circuits and the EEOC that “sex” does not encompass transgender status.
iii. Until this case, that judicial consensus persisted, and Congress has continued to leave it intact. In 2007, the Tenth Circuit joined the Seventh, Eighth, and Ninth in concluding that Title VII does not prohibit genderidentity discrimination. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1220-1221. Before the panel decision in this case, no court of appeals appears to have held that Title VII categorically prohibits such discrimination. Some courts of appeals had held that other statutes or constitutional provisions encompassed gender-identity discrimination and discussed Title VII in doing so.8 And in some cases courts held that transgender plaintiffs
8 See Doe ex rel. Doe v. Boyertown Area Sch. Dist., 893 F.3d 179 (3d Cir.), slip op. 23-31 (Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq.), vacated on reh’g, 897 F.3d 515 (3d Cir.), and superseded by 897 F.3d 518, 533-536 (3d Cir. 2018), cert. denied, 139 S. Ct. 2636 (2019); Whitaker ex rel. Whitaker v. Kenosha Unif ied Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046-1054 (7th Cir. 2017) (Title IX and Equal Protection Clause), cert. dismissed, 138 S. Ct. 1260 (2018); G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 720-723 (4th Cir. 2016) (Title IX and implementing regulations), vacated and remanded, 137 S. Ct. 1239 (2017); Glenn v. Brumby, 663 F.3d 1312, 1315-1321 (11th Cir. 2011) (Equal Protection Clause).

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had presented cognizable allegations or factual showings of sex stereotyping.9 But until 2018, no court of appeals appears to have concluded, as the Sixth Circuit panel did here, that discrimination based on transgender status necessarily violates Title VII.
Likewise, long after this Court’s decisions in Price Waterhouse and Oncale, the EEOC adhered to its established view that Title VII’s prohibition on discrimination because of sex did not extend to transgender status. See, e.g., Faulkner v. Mineta, EEOC Doc. 01A54932, 2005 WL 3526016, at *1 (Dec. 19, 2005); Loran v. O’Neill, EEOC Doc. 01A13538, 2001 WL 966123, at *1 (Aug. 17, 2001); Balmes v. Daley, EEOC Doc. 01A05006, 2000 WL 34329672, at *2 (Aug. 25, 2000). The Department of Justice advanced the same position in litigation. See D. Ct. Doc. 51, at 6-8, Michaels v. Akal Sec., Inc., No. 09-1300 (D. Colo. Nov. 25, 2009); D. Ct. Doc. 69, at 2-8, Schroer v. Billington, No. 05-1090 (D.D.C. Aug. 29, 2008).
Only in recent years did the EEOC and the Department of Justice depart from that position. In 2012, the Commission “expressly overturn[ed]” its “contrary ear-
9 See Chavez v. Credit Nation Auto Sales, LLC, 641 Fed. Appx. 883, 883, 887-892 (11th Cir. 2016) (per curiam) (triable issue of fact existed as to transgender plaintiff ’s claim that “gender bias” based on “gender nonconformity” was a motivating factor for her termination); Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 Fed. Appx. 492, 493 (9th Cir. 2009) (transsexual plaintiff “state[d] a prima facie case of gender discrimination under Title VII on the theory that impermissible gender stereotypes were a motivating factor in [her employer’s] actions against her,” but employer rebutted the prima facie case and plaintiff “did not put forward sufficient evidence demonstrating that [employer] was motivated by [plaintiff ’s] gender”); Smith v. City of Salem, 378 F.3d 566, 570-575 (6th Cir. 2004) (transgender plaintiff “properly alleged a claim of sex stereotyping”).

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lier decisions” and concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex’ ” in violation of Title VII. Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995, at *11 & n.16 (Apr. 20, 2012); see id. at *4-*11; id. at *11 n.16 (noting that EEOC advanced that new position in 2011 district-court amicus brief). In 2014, the Department of Justice embraced the same view. See p. 8 & n.3, supra; cf. D. Ct. Doc. 85, at 3-9, Burnett v. City of PhiladelphiaFree Library, No. 09-4348 (E.D. Pa. Apr. 4, 2014) (supporting transgender plaintiff ’s sex-stereotyping claim). Until those changes of position, the EEOC, Department of Justice, and circuits were in accord.
That consensus has prompted numerous proposals in Congress in recent years to expand Title VII to prohibit discrimination based on gender identity. Bills to that effect have been introduced, but not enacted, in every Congress since 2007.10 That history further “supports adherence to the traditional view” that discrimination because of sex does not encompass discrimination because of gender identity. General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 593-594 (2004). Given Title VII’s text and the longstanding circuit consensus that “sex” does not mean transgender status, Congress could not plausibly have rejected every proposal it received to prohibit gender-identity discrimination based on an (erroneous) assumption that it is already prohibited by Title VII. Cf. 17-1623 Pet. App. at 110
10 See, e.g., H.R. 2015, 110th Cong., 1st Sess. (2007); H.R. 3017, 111th Cong., 1st Sess. (2009); H.R. 1397, 112th Cong., 1st Sess. (2011); H.R. 1755, 113th Cong., 1st Sess. (2013); H.R. 3185, 114th Cong., 1st Sess. (2015); H.R. 2282, 115th Cong., 1st Sess. (2017); H.R. 5, 116th Cong., 1st Sess. (2019).

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(Lynch, J., dissenting) (“It is hardly reasonable, in light of  the EEOC and judicial consensus that sex discrimination did not encompass sexual orientation discrimination, to conclude that Congress rejected the proposed amendments because senators and representatives believed that Title VII ‘already incorporated the offered change.’ ” (citation omitted)).
Congress of course remains free to revisit the issue at any time. The 55 years since Title VII’s original enactment have witnessed societal and cultural change in this area. Congress could eventually conclude that changes since 1964 warrant expanding the statute’s scope to reach beyond sex to encompass transgender status. But that is exclusively a question for Congress. New developments “might invite reasonable disagreements on whether Congress should reenter the field and alter the judgments it made in the past,” but “the proper role of the judiciary [is] to apply, not amend, the work of the People’s representatives.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725-1726 (2017). That principle applies with particular force here. Reinterpreting Title VII’s text to include a new protected class that Congress has repeatedly declined to create in this statute would thwart the judgment that Congress has made to date and thrust courts into the role of resolving policy disputes reserved by the Constitution to our Nation’s elected representatives.
2. Discrimination based on transgender status does not
inherently entail discrimination because of sex
Neither the Sixth Circuit nor Stephens has attempted to show that Title VII prohibits discrimination based on transgender status as such. Instead, they contend that an employer who discriminates based on transgender status necessarily also discriminates based on “sex,”

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because “sex” factors into the employer’s decision. That contention is incorrect and reflects a misunderstanding of Title VII’s text and this Court’s precedent.
a. Section 2000e-2(a)(1) makes it unlawful to “discriminate against an[ ] individual * * * because of [the] individual’s * * * sex.” 42 U.S.C. 2000e-2(a)(1); see ibid. (making it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual” (emphasis added)). Discrimination based on transgender status falls outside that bar.
i. The “ ‘normal definition of discrimination’ is ‘differential treatment’ ” or, more specifically, “ ‘less favorable’ treatment.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005) (citations omitted). The particular phrase Title VII uses—“discriminate against,” 42 U.S.C. 2000e-2(a)(1) (emphasis added)—even more clearly carries that meaning. See Webster’s Second 745 (defining “discriminate,” inter alia, as “[t]o make a difference in treatment or favor (of one as compared with others); as, to discriminate in favor of one’s friends; to discriminate against a special class” (emphases omitted)). “[T]he term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. 2000e-3(a)).
Thus, in the paradigmatic Title VII “ ‘disparate treatment’ ” suit, “[t]he central focus of the inquiry” is whether the employer has treated “ ‘some people less favorably than others because of their * * * sex.’ ” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 569, 577 (1978) (citations omitted). An individual alleging a disparate-treatment claim must establish that “an employer intentionally treated [the individual] less favorably than employees

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with the complainant’s qualifications but outside the complainant’s protected class.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1345 (2015) (emphasis added; citation and internal quotation marks omitted). Likewise, in a sexual-harassment suit, “[t]he critical issue,” as “Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)); see Harris, 510 U.S. at 21 (plaintiff asserting hostile-work-environment claim under Section 2000e-2(a)(1) must show that work environment was “discriminatorily hostile or abusive”).
The Court also has long recognized that to “ ‘discriminate against’ ” members of a protected class “because of ” membership in the class means treating an individual in the class less favorably than a “similarly situated” individual outside the class. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71 (1977) (citation omitted); cf. General Motors Corp. v. Tracy, 519 U.S. 278, 298 (1997) (“[A]ny notion of discrimination assumes a comparison of substantially similar entities.” (footnote omitted)). “The emphasis of both the language” of Section 2000e-2(a)(1) “and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin.” Hardison, 432 U.S. at 71. An employer that treats individuals differently who are not similarly situated does not discriminate based on a prohibited ground. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 557-558 (1977).

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In Evans, for example, the plaintiff was a female airline employee who alleged that her employer had discriminated against her because of sex by granting her less seniority credit than certain male employees. 431 U.S. at 554-556. The Court upheld the dismissal of the  claim because the plaintiff had “failed to allege” that the employer’s conduct “differentiate[d] between similarly situated males and females on the basis of sex.” Id. at 558; see id. at 557-558. The plaintiff and other female employees had received less seniority credit because of a policy the employer had in place years earlier—outside the then-applicable limitations period for a Title VII suit, and that it had since abandoned— that forced married female employees to resign. See id. at 557-558. The plaintiff undisputedly could no longer challenge the employer’s prior policy. See id. at 557. And the plaintiff did not allege that, during the limitations period, the employer had treated male and female employees with the same length of service differently. See id. at 557-558. Although “some male employees with less total service than [the plaintiff] ha[d] more seniority,” that “disparity [wa]s not a consequence of their sex, or of her sex.” Id. at 557. It was the result of independent differences between the plaintiff and those male employees that caused them not to be “similarly situated.” Id. at 558; see Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981) (under burdenshifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), “it is the plaintiff ’s task to demonstrate that similarly situated employees were not treated equally”).
ii. Discrimination based on transgender status does not meet that settled understanding of discrimination because of sex. An employer that treats transgender

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individuals less favorably based on their transgender status does not expose “ ‘members of one sex * * * to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Oncale, 523 U.S. at 80 (citation omitted). The employer treats transgender individuals less favorably than nontransgender individuals. But so long as the employer treats transgender individuals of both sexes equally, it has not discriminated against either males or females. Put differently, if an employer discriminates against a transgender individual, the less favorable treatment is not the “consequence” of that individual’s sex. Evans, 431 U.S. at 557. It is instead the result of the employer’s policy concerning a different trait—transgender status— that Title VII does not protect.
iii. In this case, Harris Homes did not discriminate against Stephens because of “sex” by terminating Stephens (a biological male) based on Stephens’s stated intention to dress as a member of the opposite sex (female). To be sure, Harris Homes treated Stephens less favorably than male employees who dressed as males at work. But neither Stephens nor the Sixth Circuit has identified evidence in the record that Harris Homes did or would treat more favorably a female employee who is otherwise similarly situated to Stephens, i.e., who intended to dress as a member of the opposite sex.
Moreover, Harris Homes’ principal owner averred that his religious objection to employing a funeral director who would dress according to the dress code of the opposite sex applies equally to females as to males. Rost stated under oath that he “believe[s] that the Bible teaches 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” and that Rost “would

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be violating God’s commands if [he] were to permit one of [Harris Homes’] male funeral directors to wear the uniform for female funeral directors while at work, or if [he] were to permit one of [Harris Homes’] female funeral directors to wear the uniform for male funeral directors while at work.” J.A. 131. Rost made clear that, “[i]f a female funeral director were to tell [Rost] that she would not comply with the uniform requirement for female funeral directors while at work, [Rost] would discharge her for refusing to comply with [Harris Homes’] dress code.” J.A. 134. Harris Homes did not discriminate because of sex by treating a biologically male employee who refused to abide by the dress code the same way it would have treated a similarly situated biologically female employee who refused to abide by the dress code.
b. The court of appeals incorrectly held that discrimination because of transgender status “necessarily entails discrimination on the basis of sex” because one cannot treat a transgender person differently “without considering that employee’s biological sex.” Pet. App. 30a (emphasis added). It is not evident that it is impossible to engage in transgender-status discrimination without considering sex, but even assuming the Sixth Circuit’s premise were correct, its conclusion would not follow.
As Judge Lynch observed in his dissent in Zarda, “it is not the case that any employment practice that can only be applied by identifying an employee’s sex is prohibited.” 17-1623 Pet. App. at 102. Section 2000e-2(a)(1) prohibits “ ‘discrimination . . . because of . . . sex,’ ” which requires showing that “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80 (brackets and citation

36
omitted). Employment practices that depend in part on sex do not violate Section 2000e-2(a)(1) unless they result in less favorable treatment of members of one sex than similarly situated members of the other sex. Here, Harris Homes did not violate Title VII because it did not treat employees of Stephens’s sex (male) less favorably than similarly situated employees of the opposite sex (female). See pp. 34-35, supra.
Indeed, many commonplace practices that distinguish between the sexes do not violate Section 2000e-2(a)(1) because they account for real physiological differences between the sexes without treating either sex less favorably. Sex-specific restrooms, for example, “are prevalent not because they favor one sex over another, but because they protect the privacy of both sexes.” Wittmer, 915 F.3d at 334 (Ho, J., concurring). Although “separate bathrooms are obviously not blind to sex,” they do not discriminate because of sex within the meaning of Title VII so long as they do not treat men or women disadvantageously compared to the opposite sex. Ibid.; see 17-1623 Pet. App. at 102-103 (Lynch, J., dissenting). The same is true of dress codes and other policies that do not impose unequal burdens on men or women. See Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1109-1110 (9th Cir. 2006) (en banc) (collecting cases); EEOC Compl. Man. § 619.4(d), at 3607 (CCH 2008) (Pet. Cert. Reply App. 1a-2a).
Moreover, “the sexes are not similarly situated in certain circumstances,” Michael M. v. Superior Court, 450 U.S. 464, 469 (1981) (plurality opinion), and some practices that might appear to impose unequal burdens may comply with Title VII if they reflect relevant differences between the sexes. Unlike racial classifications— which are almost invariably invidious because race rarely

37
if ever reflects a relevant distinction—classifications based on sex sometimes are permissible because “[t]he two sexes are not fungible,” and certain “differences between men and women” are “enduring.” United States v. Virginia, 518 U.S. 515, 533 (1996); cf. Michael M., 450 U.S. at 478 (Stewart, J., concurring) (“[S]o far as the Constitution is concerned, people of different races are always similarly situated,” whereas “there are differences between males and females that the Constitution necessarily recognizes.” (citations omitted)). Those differences may in some contexts justify sex-based distinctions.
For example, in Bauer v. Lynch, 812 F.3d 340 (4th Cir.), cert. denied, 137 S. Ct. 372 (2016), a male trainee in the Federal Bureau of Investigations (FBI) Academy who did not meet the FBI’s sex-specific physical-fitness standards brought suit under Title VII. Id. at 342. The district court granted summary judgment to the plaintiff because the standards were different for men than women. See id. at 346. The Fourth Circuit vacated that ruling, holding that “[m]en and women simply are not physiologically the same for the purposes of physical fitness programs,” and “an employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each.” Id. at 350-351; see id. at 347-352. Sex-specific dress codes may be similarly permissible. For example, the fact that a swimming-pool operator requires male and female lifeguards to wear different styles of swimsuits, by itself, would not violate Section 2000e-2(a)(1); indeed, requiring the same style swimsuit for both sexes might violate Title VII. 17-1623

38
Pet. App. at 101 (Lynch, J., dissenting) (“[A] pool that required both male and female lifeguards to wear a uniform consisting only of trunks would violate Title VII.”).
In contrast, the court of appeals’ approach would render unlawful every practice that takes account of or turns on sex—from workplace dress codes, to sex-specific restrooms, to different male and female fitness standards. See 17-1623 Pet. App. at 100-103 (Lynch, J., dissenting) (collecting examples). That would transform Title VII from a law “prohibit[ing] favoritism toward men or women” into one “requir[ing] employers to be entirely blind to a person’s sex.” Wittmer, 915 F.3d at 334 (Ho, J., concurring). Indeed, in some circumstances it might put employers to an impossible choice between applying a sex-specific policy and causing a prohibited disparate impact. See 17-1623 Pet. App. at 102 (Lynch, J., dissenting) (“[A] failure to impose distinct fitness requirements for men and women may be found to violate Title VII, if it has a disparate impact on one sex and the employer cannot justify the requirement as a business necessity.”); cf. Virginia, 518 U.S. at 550 n.19 (admitting women to previously all-male military academy “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs”). Title VII cannot plausibly be construed to compel that extreme result.
c. Stephens’s argument (Br. 20-27) that sex was “a but-for cause” of Harris Homes’ decision to fire Stephens fails for similar reasons. Stephens argues (Br. 20) that Harris Homes would not have fired Stephens if Stephens were biologically female and sought to dress as a female, and therefore Stephens was “fired because of [Stephens’s] sex.” That analysis, which the court of

39
appeals also embraced, Pet. App. 23a, is fundamentally flawed because it compares Stephens to a female who is not similarly situated. Stephens is biologically male and sought to dress according to the dress code for the opposite sex. In contrast, the hypothetical woman Stephens posits would be dressing according to the dress code for her own sex. In other words, the hypothetical woman is not similarly situated to Stephens because the woman differs from Stephens in an additional way beyond sex: the woman (unlike Stephens) is not presenting as transgender.
Because Stephens’s hypothetical changes more than just the employee’s sex, it does not show Harris Homes treated Stephens differently because of sex. It shows that Harris Homes treated Stephens differently because Stephens intended to dress as a member of the opposite sex, or at most because of Stephens’s transgender status. See Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 366 (7th Cir. 2017) (en banc) (Sykes, J., dissenting) (“[C]omparison can’t do its job of ruling in sex discrimination as the actual reason for the employer’s decision (by ruling out other possible motivations) if we’re not scrupulous about holding everything constant except the plaintiff ’s sex.”). And discrimination based on transgender status itself is not discrimination because of sex. See pp. 16-30, supra.
To show that sex was a but-for cause of Harris Homes’ treatment of Stephens, Stephens would have to show that changing only Stephens’s sex would have changed the result. That was the situation in Stephens’s lead case, Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978). The employer in Manhart required all women to contribute more towards their pension benefits than men, based on

40
women’s longer average life expectancy, regardless of the life expectancy of a particular woman. Id. at 705-708. A female employee thus had to pay more than a similarly situated male with an identical life expectancy merely because of her sex. Here, in contrast, neither Stephens nor the Sixth Circuit has identified evidence that Harris Homes did or would treat more favorably a female employee who is similarly situated to Stephens—i.e., a female who intended to dress as a male. And Harris Homes’ owner averred under oath that he would have fired a female funeral director who refused to dress as a female. See pp. 34-35, supra.
Of course, a “but-for” analysis, even correctly applied, addresses only one part of the inquiry: causation. An employer violates Section 2000e-2(a)(1) by “discriminat[ing]” based on sex—treating members of one sex “disadvantageous[ly]” compared to similarly situated members of the other sex—not merely by treating the sexes differently. Oncale, 523 U.S. at 80. That is one reason why, as noted above, many longestablished practices such as sex-specific restrooms do not violate Title VII, even though their application depends in a but-for sense on an individual’s sex. See pp. 35-36, supra. In addition to conducting but-for analysis rigorously and properly, courts should not deem but-for causation of differential treatment as sufficient alone to establish discrimination because of sex. That would jeopardize all sex-specific practices.
d. Stephens’s remaining arguments lack merit. Stephens argues (Br. 25) that a Title VII plaintiff need not show that sex was “the only cause” of an employer’s decision, and the fact that Harris Homes fired Stephens based on transgender status “does not defeat liability” so long as sex was also “one of the but-for causes.” As

41
explained above, Stephens has not shown that sex was even a but-for cause of Harris Homes’ decision, because there is no evidence that Harris Homes would have treated a transgender person of the opposite sex any differently. See pp. 38-40, supra.
Stephens cites (Br. 22, 25) Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), but it holds only that an employer discriminates because of sex if it treats a subset of one sex less favorably than the corresponding subset of the other sex. Phillips involved an employer’s policy against hiring women (but not men) with “pre-school-age children.” Id. at 543; see id. at 543-544. Although the challenged policy applied a special rule only to women with children under a certain age, it discriminated against those women by treating them less favorably than similarly situated men, i.e., men with preschool-age children. Id. at 544; see Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1203 (10th Cir. 1997). The same is true of International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Johnson Controls, Inc., 499 U.S. 187 (1991), which Stephens also cites (Br. 34). The Court held there that an employer’s “fetalprotection policy” was facially discriminatory because it excluded fertile women (but not fertile men) from certain jobs that would expose them to lead. 499 U.S. at 197; see id. at 190-192, 197-200; see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983) (employer’s benefit plan discriminated because of sex by affording “less inclusive” benefits for dependents of male employees than dependents of female employees). Phillips, Johnson Controls, and Newport News thus forbid an employer from discriminating against only male (or only female) transgender employees. Harris

42
Homes did not do so. It did not treat transgender employees of one sex less favorably than transgender employees of the opposite sex.11
Stephens also suggests (Br. 39) that whether Harris Homes would treat female transgender employees the same way that it treats male transgender employees is irrelevant because an employer cannot escape Title VII liability by discriminating against both sexes. But subjecting both sexes to the same undesirable treatment does not constitute discrimination against either sex. See Holman v. Indiana, 211 F.3d 399, 403 (7th Cir.) (“[B]ecause Title VII is premised on eliminating discrimination, inappropriate conduct that is inflicted on both sexes, or is inflicted regardless of sex, is outside the statute’s ambit.”), cert. denied, 531 U.S. 880 (2000); id. at 402-405 (a supervisor who harasses members of both sexes “is not discriminating on the basis of sex” because the supervisor “is not treating one sex better (or worse) than the other; he is treating both sexes the same (albeit badly)” (emphasis omitted)). Here, Harris Homes did
11 Stephens’s reliance (Br. 22) on 42 U.S.C. 2000e-2(m) is similarly misplaced. Section 2000e-2(m) states that, with certain exceptions, “an unlawful employment practice is established when the complaining party demonstrates that * * * sex * * * was a motivating factor for any employment practice, even though other factors also motivated the practice.” Ibid.; see 42 U.S.C. 2000e-5(g)(2)(B) (court may not order damages, reinstatement, or backpay if plaintiff proves violation under Section 2000e-2(m) but employer shows that it would have taken the same action irrespective of sex). Section 2000e-2(m) is irrelevant here because, as explained in the text, Stephens fails to show that sex was even a motivating factor. Harris Homes terminated Stephens, a male, for a reason that Rost explained would apply equally to females: dressing at work according to the dress code for the opposite sex. See pp. 34-35, supra.

43
not discriminate against either sex because it would apply the same policy to employees of both sexes.
Stephens rejoins (Br. 39) that an employment practice can violate Section 2000e-2(a)(1) even if it applies to both sexes, citing Dothard v. Rawlinson, 433 U.S. 321 (1977). Stephens misreads that decision. There, a female applicant for employment at a prison challenged both a statute that imposed height and weight requirements for prison employees and a regulation that required employees who had regular contact with prisoners in single-sex prisons to be of the same sex as the inmates. See id. at 323-329. In the passage Stephens cites (Br. 39), the Court held that the regulation “explicitly discriminate[d] against women on the basis of their sex” by barring women (but not men) from contact positions in male prisons. 433 U.S. at 332. The regulation facially discriminated on the basis of sex because it allowed men who met the statutory height and weight requirements (and other job prerequisites) to hold contact positions, but not women who met those same requirements. And in operation, “[t]he [r]egulation exclude[d] women from consideration for approximately 75% of the available correctional counselor jobs in the [State’s] prison system.” Id. at 332 n.16. The fact that the regulation also barred men from jobs in female prisons did not excuse that “overt” discrimination against women. Id. at 332.
Finally, Stephens argues (Br. 26-27) that even an employer who discriminates against transgender employees of both sexes still is motivated by sex because the employer’s action is based on the employees’ desire to change their sex. Stephens offers (ibid.) an analogy to a “Protestant employer who fire[s] employees who were born into a Protestant denomination but converted to Catholicism.” That analogy fails

44
because, in the hypothetical scenario Stephens describes, it appears that the Protestant employer does discriminate against a particular religion (Catholicism) by treating only individuals who convert to that religion less favorably.
To the extent Stephens instead envisions an employer who discriminates against all religious converts—i.e., who would fire any employee who converted from one religion to another—that comparison only undermines Stephens’s argument. Title VII would prohibit discrimination against all religious conversion, but for a reason that does not apply to transgender status. Title VII defines “religion” to “include[ ] all aspects of religious observance and practice, as well as belief.” 42 U.S.C. 2000e( j). That broad, express definition of religion encompasses conversion from one religion to another, which involves “religious observance and practice” and “belief.” Ibid. An employer who fires any employee who converts thus would be discriminating based on religion. Title VII does not contain a similarly capacious definition of “sex”; apart from its limited-purpose definition of “because of sex” and “on the basis of sex” concerning pregnancy and related issues, 42 U.S.C. 2000e(k), it does not define sex at all. The ordinary meaning of sex therefore controls, and in ordinary usage sex refers to whether a person is male or female, not to a desire to change from one sex to the other.
B. Discrimination Against Transgender Persons Does Not
Constitute Sex Stereotyping Prohibited By Title VII
In the alternative, Stephens argues (Br. 28-36), and the court of appeals held, that discrimination based on transgender status inherently constitutes sex stereotyping, which they contend independently violates Title VII as construed in Price Waterhouse, supra. Pet. App. 26a.

45
But again, even assuming the premise—that transgenderstatus discrimination necessarily relies on sex stereotyping in some sense—that alternative rationale still fails to establish prohibited sex discrimination.
1. Sex stereotyping by itself is not a Title VII violation
Stephens’s and the Sixth Circuit’s sex-stereotyping argument rests on the incorrect premise that Price Waterhouse construed Title VII to prohibit sex stereotypes per se. Stephens Br. 28-29; Pet. App. 21a. But that case, which produced no majority opinion, merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex under the ordinary Title VII rubric. It did not recognize sex stereotyping as a novel, freestanding category of Title VII liability.
a. The question presented in Price Waterhouse “concern[ed] the respective burdens of proof of a defendant and plaintiff in a suit under Title VII when it has been shown that an employment decision resulted from a mixture of legitimate and illegitimate motives.” 490 U.S. at 232 (plurality opinion). The plaintiff was a female employee of an accounting firm who was proposed as a candidate for partnership. Id. at 233. Despite a sterling record and praise from colleagues and clients, she was passed over for promotion. See id. at 233-235. What “doomed [the plaintiff ’s] bid for partnership” were “perceived shortcomings” in her “ ‘interpersonal skills’ ” and interactions with others, especially her “relations with staff members.” Id. at 234-235 (plurality opinion). She was viewed as exhibiting “aggressiveness” that “apparently spilled over into abrasiveness” and “brusqueness,” and “[b]oth ‘supporters and opponents of her candidacy * * * indicated that she was sometimes overly

46
aggressive, unduly harsh, difficult to work with and impatient with staff.’ ” Id. at 234-235 (brackets and citation omitted). Although such traits could be problematic in any employee regardless of sex, “[t]here were clear signs” that the perception of the plaintiff was at least partly sex-based and “that some of the partners reacted negatively to [her] personality because she was a woman.” Id. at 235; see ibid. (describing evidence).
As the case came to this Court, the question was precisely how much weight impermissible, sex-based considerations must carry in an employment decision to violate Title VII when lawful factors also were considered. The accounting firm argued that “an employer violates Title VII only if it gives decisive consideration to an employee’s gender, race, national origin, or religion in making a decision that affects that employee,” and even if an employer relies in part on one of those grounds, the employee must “show that the decision would have been different” had the employer “not discriminated.” Price Waterhouse, 490 U.S. at 237-238 (plurality opinion). The plaintiff, in contrast, argued that a Title VII violation occurs “whenever [an employer] allows one of th[o]se attributes to play any part in an employment decision.” Id. at 238.
Writing for a four-Justice plurality, Justice Brennan adopted a middle ground. The plurality reasoned that the plaintiff need only “show[ ] that an impermissible motive played a motivating part in an adverse employment decision,” not that it was the sole cause. Price Waterhouse, 490 U.S. at 250; see id. at 239-242. The plurality further concluded, however, that “an employer shall not be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision regarding a particular person.” Id. at 242; see id. at

47
242-247. The plurality allocated the parties’ burdens accordingly, stating that, once a plaintiff proves that an impermissible consideration was a motivating factor, the burden shifts to the defendant “to show that it would have made the same decision in the absence of the unlawful motive.” Id. at 250; see id. at 258.12
The opinions of the other Justices whose votes supported the judgment similarly addressed the standard and burden for proving causation. Justice White, concurring only in the judgment, would have applied the standard set forth in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). Price Waterhouse, 490 U.S. at 258-261. In his view, “[i]t [wa]s not necessary to get into semantic discussions on whether the Mt. Healthy approach is ‘but-for’ causation in another guise or creates an affirmative defense on the part of the employer.” Id. at 259. Justice O’Connor, also concurring only in the judgment, agreed with the plurality that the burden should have shifted to the employer to show that it would have reached the same decision irrespective of the plaintiff ’s sex, but she disagreed with the plurality’s characterization of the “causation” standard and “broad statements” about the parties’ burdens. Id. at 261; see id. at 261-279.
The plurality in Price Waterhouse briefly discussed sex stereotyping in the context of addressing how an employer’s improper motivation can be proved. It explained that, in requiring a plaintiff to show that sex “play ed a motivating part in an employment decision,” the plurality “mean[t] that, if we asked the employer at the moment of the decision what its reasons were
12 Two years after Price Waterhouse, Congress amended Title VII to modify the framework for proving mixed-motive claims. See 42 U.S.C. 2000e-2(m), 2000e-5(g)(2); see p. 26-27, supra.

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* * * , one of those reasons would be that the applicant or employee was a woman.” 490 U.S. at 250; see id. at 250-252. The plurality noted that an employer’s use of “sex stereotyp[ing]” can be “evidence that gender played a part” in the employer’s decision. Id. at 251.
Using the specific stereotype at issue in Price Waterhouse as an example, the plurality stated that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” 490 U.S. at 250. The plurality explained that “[a]n employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.” Id. at 251. The plurality cautioned, however, that “[r]emarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision.” Ibid. “The plaintiff must show that the employer actually relied on her gender in making its decision.” Ibid.; see id. at 255-257 (discussing particular evidence of sex stereotypes the plaintiff had presented); id. at 272 (O’Connor, J., concurring in the judgment) (same).
b. Price Waterhouse thus did not purport to recognize sex stereotyping as a freestanding theory of Title VII liability or an independent category of prohibited conduct. That question was not presented; the case concerned the parties’ respective burdens. The plurality’s discussion merely addressed how evidence of sex stereotyping may, but will not always, tend to show that an employer was motivated by an individual’s sex in taking a particular action. See 490 U.S. at 251. Nor does anything in Price Waterhouse cast doubt on the core requirement of a Title VII disparate-treatment claim

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based on sex: that the employer has treated members of one sex less favorably than similarly situated members of the opposite sex. Indeed, the plurality underscored that requirement in describing “Congress[’s] inten[t] to strike at the entire spectrum of disparate treatment of men and women.” 490 U.S. at 251 (citation omitted). As Judge Ho observed in Wittmer, “Price Waterhouse doesn’t make sex stereotyping per se unlawful under Title VII.” 915 F.3d at 339 (concurring opinion). Instead, “under Price Waterhouse, sex stereotyping is actionable only to the extent it provides evidence of favoritism of one sex over the other.” Ibid.
However one interprets the plurality and concurring opinions in Price Waterhouse, the subsequent holding of the unanimous Court in Oncale put any lingering doubt to rest. In Oncale, the Court rejected concerns that construing Title VII to preclude same-sex harassment would “transform Title VII into a general civility code.” 523 U.S. at 80. As the Court explained, that dire prediction was addressed by “careful attention to the requirements of the statute.” Ibid. “Title VII,” the Court observed, “does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination . . . because of . . . sex.’ ” Ibid. (brackets omitted). The Court noted that it “ha[d] never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.” Ibid. Instead, “[t]he critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Ibid. (citation omitted).

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Whatever probative value evidence of sex stereotyping might have in a particular case, a plaintiff ’s reliance on such evidence does not change the ultimate inquiry. Such evidence may be relevant in demonstrating that an employer was motivated by sex in taking the challenged employment action. But it does not excuse the plaintiff from the fundamental requirement of proving that the defendant treated members of one sex less favorably than similarly situated members of the opposite sex. Otherwise, countless sex-specific policies would be per se unlawful as based on sex stereotypes. A dress code that required men to wear neckties, for example, would be susceptible to challenge as predicated on sex stereotypes. The same would be true of sex-specific physicalfitness standards, and even sex-specific restrooms. Lower courts have repeatedly upheld such policies, see pp. 36-38, supra, but deeming sex stereotypes themselves invalid would place all such policies in jeopardy.
2. Discrimination based on transgender status does not
constitute sex stereotyping prohibited by Title VII,
but a transgender plaintiff may use sex-stereotyping
evidence to prove a sex-discrimination claim
a. These principles apply in the same way to plaintiffs who are transgender as to those who are not. Treating transgender persons disadvantageously based on failure to conform to sex stereotypes, without more, does not violate Section 2000e-2(a)(1) because that provision does not prohibit sex stereotypes in and of themselves. To prevail, like any other plaintiff suing under that provision, a transgender plaintiff must plead and prove that the employer did or would treat members of the plaintiff ’s sex less favorably than similarly situated members of the other sex. See pp. 31-33, supra. Showing that the employer treated all transgender individuals of both

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sexes less favorably than non-transgender persons, whatever the employer’s motivation, does not suffice.
Like any other plaintiff, however, a transgender plaintiff may use evidence of sex stereotypes in proving a Title VII claim under the ordinarily applicable standards. The “critical issue” under Section 2000e-2(a)(1) is always “whether members of one sex are exposed to disadvantageous terms or conditions of employment” compared to similarly situated members of the opposite sex. Oncale, 523 U.S. at 80 (citation omitted). A plaintiff alleging that an employer discriminated because of sex by using sex stereotypes thus must show that the employer did or would treat the plaintiff less favorably than members of the opposite sex who exhibit the particular trait the stereotype targets. For example, in Price Waterhouse, the employer denied the plaintiff a promotion based largely on her perceived “aggressiveness.” 490 U.S. at 234 (plurality opinion). An employer might penalize that trait in all employees for reasons unrelated to sex, and doing so would not give rise to a Title VII disparate-treatment claim. But in Price Waterhouse, there was evidence that the employer penalized the plaintiff ’s aggressiveness because she was a woman, and that her firing was based in part on “stereotypical notions about women’s proper deportment.” Id. at 256; see id. at 235.
If the female plaintiff in Price Waterhouse had been transgender, the same claim would have been available and would be analyzed in the same way. The employer would violate Title VII by penalizing aggressiveness in female employees, regardless of their gender identity, if it would not penalize that trait in similarly situated males. And if the employer penalized aggressiveness or another trait only in females who are transgender but

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not in males who are transgender, it would violate Title VII by treating that subset of females less favorably than the corresponding subset of males. See pp. 41-42, supra.
The same is true of workplace dress codes. An employer violates Section 2000e-2(a)(1) by imposing a dress code that treats women less favorably than similarly situated men, or vice versa. For example, as Judge Lynch observed in his dissent in Zarda, a dress code “requiring female employees to wear ‘Hooters’-style outfits but male employees doing the same work to wear suit and tie would not stand scrutiny.” 17-1623 Pet. App. at 101; see Jespersen, 444 F.3d at 1112 (contrasting hotel dress code that required women to wear “ ‘revealing’ ” attire that was “intended to be sexually provocative, and tending to stereotype women as sex objects,” which another court had held unlawful, with challenged sex-specific policy requiring employees to wear “a unisex uniform that covered [the] entire body,” which court upheld (citation omitted)). Such a policy would discriminate on the basis of sex by subjecting women to a disadvantageous condition of employment— wearing revealing attire—not imposed on men. That would be true whether or not the plaintiff is transgender.
In short, Title VII’s protections apply fully to transgender individuals, but the fact that a plaintiff is transgender does not change the legal standard or analysis. A transgender plaintiff is not exempt from the requirement to show that an employer treated members of one sex less favorably than similarly situated members of the other sex. Indeed, if an individual’s transgender status removed the requirement of showing that the employer treated one sex less favorably

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than the other, an employer could not apply to transgender individuals a sex-specific dress code or other policy that it may lawfully apply to everyone else. Nothing in Title VII’s text or this Court’s precedent supports that result.
b. In this case, the district court and court of appeals each determined that Harris Homes fired Stephens for failing to conform to stereotypes about how males should dress in the workplace. See Pet. App. 15a-22a, 107a-118a. But even assuming that Harris Homes relied on sex stereotypes, that alone does not establish sex discrimination in violation of Section 2000e-2(a)(1). If it had been pleaded and proven that Harris Homes’ sex-specific dress code treated men or women less favorably than the opposite sex, then the dress code could violate Title VII. But Harris Homes’ dress code, in force for more than 20 years, J.A. 119-121, is not at issue. The EEOC’s complaint did not challenge the dress code itself. J.A. 12-18; Pet. App. 112a. And the court of appeals made clear that it was not passing on the dress code. Pet. App. 18a. Accordingly, for purposes of this litigation, it must be assumed that Harris Homes’ dress code is equally burdensome to men and women. As a result, neither Stephens nor the Sixth Circuit has identified evidence that Harris Homes treated some or all biologically male employees less favorably than similarly situated biologically female employees.
* * * * * This case does not concern whether, as a matter of policy, Title VII should forbid discriminating on the basis of transgender status. Congress has made that policy choice in other statutes, expressly addressing gender-identity discrimination separately from sex. It has yet to make a similar decision with respect to Title

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VII, either in 1964 or at any point since. As it stands, Title VII prohibits treating an individual less favorably than similarly situated individuals of the opposite sex. It simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex. That does not mean transgender individuals are somehow “exclude[d]” from Title VII’s protections. Stephens Br. 36. It means that transgender employees, like all other employees, may not be treated less favorably on any of the grounds Title VII covers. But transgender status is not among them, and restyling a claim of gender-identity discrimination as one based on consideration of sex or sex stereotyping does not change that result.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.

AUGUST 2019

NOEL J. FRANCISCO Solicitor General
JOSEPH H. HUNT ERIC S. DREIBAND
Assistant Attorneys General
JEFFREY B. WALL Deputy Solicitor General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
JONATHAN C. BOND Assistant to the Solicitor General
ERIC TREENE Special Counsel
CHARLES W. SCARBOROUGH STEPHANIE R. MARCUS
Attorneys

APPENDIX
1. 18 U.S.C. 249 provides in pertinent part:
Hate crime acts
(a) IN GENERAL.—
* * * * *
(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY.—
(A) IN GENERAL.—Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—
(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—
(I) death results from the offense; or
(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
(1a)

2a
* * * * * (c) DEFINITIONS.—In this section—
* * * * * (4) the term “gender identity” means actual or perceived gender-related characteristics; and
* * * * *
2. 34 U.S.C. 12291(b)(13)(A) (Supp. V 2017) provides:
Definitions and grant provisions
(b) Grant conditions
(13) Civil rights
(A) Nondiscrimination
No person in the United States shall, on the basis of actual or perceived race, color, religion, national origin, sex, gender identity (as defined in paragraph 249(c)(4) of title 18), sexual orientation, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under the Violence Against Women Act of 1994 (title IV of Public Law 103-322; 108 Stat. 1902), the Violence Against Women Act of 2000 (division B of Public Law 106-386; 114 Stat. 1491), the Violence Against Women and Department of Justice Reauthorization Act of 2005 (title IX of Pub-

3a
lic Law 109-162; 119 Stat. 3080),2 the Violence Against Women Reauthorization Act of 2013, and any other program or activity funded in whole or in part with funds appropriated for grants, cooperative agreements, and other assistance administered by the Office on Violence Against Women.
3. 34 U.S.C. 12361 (Supp. V 2017) provides:
Civil rights
(a) Purpose Pursuant to the affirmative power of Congress to
enact this part under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I of the Constitution, it is the purpose of this part to protect the civil rights of victims of gender motivated violence and to promote public safety, health, and activities affecting interstate commerce by establishing a Federal civil rights cause of action for victims of crimes of violence motivated by gender.
(b) Right to be free from crimes of violence All persons within the United States shall have
the right to be free from crimes of violence motivated by gender (as defined in subsection (d)).
(c) Cause of action A person (including a person who acts under col-
or of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence
2 See References in Text note below.

4a
motivated by gender and thus deprives another of the right declared in subsection (b) shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.
(d) Definitions
For purposes of this section—
(1) the term “crime of violence motivated by gender” means a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender; and
(2) the term “crime of violence” means—1
(A) an act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States; and
(B) includes an act or series of acts that would constitute a felony described in subparagraph (A) but for the relationship between the
1 So in original. The word “means” probably should appear after “(A)” below.

5a
person who takes such action and the individual against whom such action is taken.
(e) Limitation and procedures
(1) LIMITATION
Nothing in this section entitles a person to a cause of action under subsection (c) for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender (within the meaning of subsection (d)).
(2) No prior criminal action
Nothing in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action under subsection (c).
(3) Concurrent jurisdiction
The Federal and State courts shall have concurrent jurisdiction over actions brought pursuant to this part.
(4) Supplemental jurisdiction
Neither section 1367 of title 28 nor subsection (c) of this section shall be construed, by reason of a claim arising under such subsection, to confer on the courts of the United States jurisdiction over any State law claim seeking the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree.

6a
4. 34 U.S.C. 30503(a)(1) (Supp. V 2017) provides:
Support for criminal investigations and prosecutions by State, local, and tribal law enforcement officials
(a) Assistance other than financial assistance
(1) In general
At the request of a State, local, or tribal law enforcement agency, the Attorney General may provide technical, forensic, prosecutorial, or any other form of assistance in the criminal investigation or prosecution of any crime that—
(A) constitutes a crime of violence;
(B) constitutes a felony under the State, local, or tribal laws; and
(C) is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of the State, local, or tribal hate crime laws.
5. 42 U.S.C. 2000e provides in pertinent part:
Definitions
For the purposes of this subchapter—
* * * * *
( j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice

7a
without undue hardship on the conduct of the employer’s business.
(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
* * * * *
6. 42 U.S.C. 2000e-2 provides in pertinent part:
Unlawful employment practices
(a) Employer practices
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any

8a
individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, 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 hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, 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, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institu-

9a
tion of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.
* * * * *
(k) Burden of proof in disparate impact cases
(1)(A) An unlawful employment practice based on disparate impact is established under this subchapter only if—
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
(B)(i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except

10a
that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.
(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.
(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.
(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.
(3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.

11a
(l) Prohibition of discriminatory use of test scores
It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.
(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices
Except as otherwise provided in this 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.
* * * * *
7. 42 U.S.C. 2000e-5(g) provides:
Enforcement provisions
(g) Injunctions; appropriate affirmative action; equitable relief; accrual of back pay; reduction of back pay; limitations on judicial orders
(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement

12a
or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.
(2)(A) No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title.
(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and

13a
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
8. Pub. L. No. 103-322, Tit. XXVIII, § 280003, 108 Stat. 2096 provides:
DIRECTION TO UNITED STATES SENTENCING COMMISSION REGARDING SENTENCING ENHANCEMENTS FOR HATE CRIMES.
(a) DEFINITION.—In this section, “hate crime” means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.
(b) SENTENCING ENHANCEMENT.—Pursuant to section 994 of title 28, United States Code, the United States Sentencing Commission shall promulgate guidelines or amend existing guidelines to provide sentencing enhancements of not less than 3 offense levels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hate crimes. In carrying out this section, the United States Sentencing Commission shall ensure that there is reasonable consistency with other guidelines, avoid duplicative punishments for substantially the same offense, and take into account any mitigating circumstances that might justify exceptions.

14a
9. Pub. L. No. 111-84, § 4703(a), 123 Stat. 2836 provides:
DEFINITIONS.
(a) AMENDMENT.—Section 280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322; 108 Stat. 2096) is amended by inserting “gender identity,” after “gender,”.
(b) THIS DIVISION.—In this division—
(1) the term “crime of violence” has the meaning given that term in section 16 of title 18, United States Code;
(2) the term “hate crime” has the meaning given that term in section 280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322; 108 Stat. 2096), as amended by this Act;
(3) the term “local” means a county, city, town, township, parish, village, or other general purpose political subdivision of a State; and
(4) the term “State” includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.

 
 No. 18-107
dIN THE
Supreme Court of the United States

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

— v.—

Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT AIMEE STEPHENS

David D. Cole AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 915 15th Street, NW Washington, DC 20005
Jay D. Kaplan Daniel S. Korobkin Michael J. Steinberg AMERICAN CIVIL LIBERTIES
UNION FUND OF MICHIGAN 2966 Woodward Avenue Detroit, MI 48201

John 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
Gabriel Arkles James D. Esseks Louise Melling AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004

Counsel for Respondent Aimee Stephens

QUESTIONS PRESENTED 1. Given that Respondents prevailed below on an independent sex stereotyping ground accepted by every court of appeals, is this case the wrong vehicle for addressing the question whether discrimination on the basis of transgender status is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, since a ruling on that question would not change the judgment below? 2. Is this case the wrong vehicle for deciding how sex-specific policies may be applied to transgender employees, given that the courts below found that the employee was terminated based on sex stereotypes about aspects of appearance and behavior other than Petitioner’s dress code, the courts below did not adjudicate the legality of the dress code, and no other sex-specific policies were at issue?
i

TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................ i TABLE OF AUTHORITIES ....................................... v INTRODUCTION ....................................................... 1 STATEMENT OF THE CASE.................................... 3 REASONS FOR DENYING THE WRIT.................. 10 I. THIS CASE IS A POOR VEHICLE
FOR ADDRESSING PETITIONER’S FIRST QUESTION BECAUSE DECIDING IT WOULD NOT AFFECT THE JUDGMENT .......................... 10 A. The Courts Below Held That
Petitioner Fired Ms. Stephens Because of Its Sex Stereotypes About Her Appearance and Behavior ................................................. 12 B. The Circuits Are Uniform in Recognizing That Everyone Who Experiences Discrimination Motivated by Sex Stereotypes Related to Appearance and Behavior May Assert a Claim of Sex Discrimination, Including Transgender People............... 14 C. The Split Petitioner Identifies Is About a Legal Question That Is Not Necessary to the Judgment Below and in Any Event Merits Further Percolation......... 18
ii

II. PETITIONER’S SECOND QUESTION— WHETHER PRICE WATERHOUSE PROHIBITS EMPLOYERS FROM ENFORCING SEX-SPECIFIC POLICIES ACCORDING TO THE EMPLOYERS’ VIEW OF THEIR EMPLOYEES’ SEX—WAS NOT ADJUDICATED BELOW AND IS NOT PROPERLY PRESENTED HERE ................ 21 A. The Sixth Circuit Held That Mr. Rost Fired Ms. Stephens Based on Multiple Sex Stereotypes, Not Only Those Related to the Dress Code ..................... 22 B. The Court of Appeals Expressly Did Not Address the Lawfulness of Sex-Specific Dress Codes ....................... 25 C. Sex-Specific Restroom Policies Are Not at Issue in this Case........................ 26
III. THE SIXTH CIRCUIT’S HOLDING DOES NOT CONFLICT WITH PRICE WATERHOUSE OR ANY COURT OF APPEALS ....................................................... 27
CONCLUSION.......................................................... 31 APPENDIX................................................................ 1a
Letter from Aimee Stephens to Friends and Co-Workers (July 31, 2013)................................. 1a
EEOC Charge of Discrimination by Aimee Stephens (Sept. 9, 2013)...................................... 4a
EEOC Affidavit of Thomas Rost (n.d) ...................................................................... 7a
iii

Response of R.G. & G.R. Harris Funeral Home, Inc., to EEOC Charge of Discrimination by Aimee Stephens (Sept. 31, 2013).................................. 13a
Deposition of Aimee A. Stephens (Dec. 16, 2015) ................................................... 23a
30(b)(6) Deposition of Thomas Rost (Nov. 12, 2015) ................................................... 37a
Deposition of Thomas Rost (Nov. 12, 2015) ................................................... 52a
Deposition of David Cash (Jan. 22, 2016) ................................................... 68a
Defendant R.G. & G.R. Harris Funeral Homes, Inc.’s Statement Of Materials Facts Not In Dispute (April 7, 2016) ...................................... 74a
iv

TABLE OF AUTHORITIES
CASES Arizona Governing Comm. for Tax Deferred Annuity
& Deferred Comp. Plans v. Norris, 463 U.S. 1073 (1983) ............................................. 30 Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) ........................... 13, 16 Barr v. Matteo, 355 U.S. 171 (1957) ............................................... 27 Brandon v. Sage Corp., 808 F.3d 266 (5th Cir. 2015) ................................. 17 City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978)............... 28, 29, 30 Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3d Cir. 2018)............................... 1, 19 Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997), vacated on other grounds, 118 S. Ct. 1183 (1998) ..................................................................... 15 EEOC v. Boh Bros. Const. Co., 731 F.3d 444 (5th Cir. 2013) ................................. 15 Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) ......................passim Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir. 1981) ............................... 14 Finkle v. Howard Cty., 12 F. Supp. 3d 780 (D. Md. 2014) ......................... 18 G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), vacated and remanded, Gloucester Cty. Sch. Bd. v. G.G., 137 S. Ct. 1239 (2017) ....... 19
v

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ....................... 16, 19
Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) ................................. 20
Hunter v. United Parcel Serv., Inc., 697 F.3d 697 (8th Cir. 2012) ................................. 17
J.E.B. v. Alabama, 511 U.S. 127 (1994) ......................................... 29, 30
Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006) ......................... 26, 28
Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) ............................................... 11
Lewis v. Heartland Inns of Am., LLC., 591 F.3d 1033 (8th Cir. 2010) ......................... 13, 15
Mitchell v. Axcan Scandipharm, Inc., No. Civ.A. 05-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006) ....................................... 18
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983)................................... 15
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ............................... 10, 11, 15, 29
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) ............................................... 29
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ........................................passim
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009)................................... 15
Rosa v. Park W. Bank & Tr. Co., 214 F.3d 213 (1st Cir. 2000).................................. 17
vi

Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) ....................... 18
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) ................... 16, 19, 20
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ........................... 16, 17
Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982) ................................. 17
Sommerville v. United States, 376 U.S. 909 (1964) ............................................... 11
Tovar v. Essentia Health, 857 F.3d 771 (8th Cir. 2017) ................................. 17
Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003) ..................................... 18
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) ......................... 19, 20
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ........ 29 Wengler v. Druggists Mut. Ins. Co.,
446 U.S. 142 (1980) ............................................... 29 Whitaker v. Kenosha Unified Sch. Dist. No. 1
Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), cert. dismissed, 138 S. Ct. 1260 (2018) ................................................... 17, 19, 20, 21 Yee v. City of Escondido, 503 U.S. 519 (1992) ............................................... 27
STATUTES Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a)(1) ...............................passim
vii

RULES Supreme Court Rule 14.1 ................................... 27, 28 OTHER AUTHORITIES Brief of Amici Curiae American Academy of
Pediatrics, American Psychiatric Association, American College of Physicians, and 17 Additional Medical and Mental Health Organizations in Support of Respondent, Gloucester Cty. Sch. Bd. v. G.G., No. 16-273, 2017 WL 1057281 (Mar. 2, 2017) .......................................................... 1 Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ................................................. 11, 19
viii

INTRODUCTION
Aimee Stephens was fired from her position as funeral director and embalmer because of her employer’s stereotypes about how women and men should appear and behave. Ms. Stephens was assigned a male gender at birth and initially presented in a stereotypically masculine way at work, although she has known that she is female for most of her life.1 After close to six years of working for Petitioner Harris Funeral Homes, Ms. Stephens told her employer that she would begin living and working openly as a woman. Two weeks later, Petitioner’s owner, Thomas Rost, fired her because her appearance and behavior would no longer conform to his sex stereotypes.
Title VII protects employees from discrimination “because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The court of appeals held that Petitioner’s termination of Ms. Stephens was sex discrimination on two independent grounds. First, it concluded that it was sex discrimination because Mr. Rost fired Ms. Stephens based on his belief that her appearance and behavior would no longer match his stereotypes about how women and men should look and act. Second, it held in the alternative that it was
1 To be transgender is to have a gender identity different from one’s assigned sex at birth. See Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 522 (3d Cir. 2018); Brief of Amici Curiae American Academy of Pediatrics, American Psychiatric Association, American College of Physicians, and 17 Additional Medical and Mental Health Organizations in Support of Respondent, Gloucester Cty. Sch. Bd. v. G.G., No. 16-273, 2017 WL 1057281, at *5 (Mar. 2, 2017).
1

sex discrimination to fire her based on her transgender status.
Petitioner asks this Court to review two questions:
First, Petitioner asks this Court to decide whether discrimination based on transgender status is a form of sex discrimination under Title VII. But there is no reason to do so in this case because the court of appeals ruled for Respondents on the independent ground that Petitioner fired Ms. Stephens because her appearance and behavior failed to conform to its sex stereotypes. That type of sex discrimination claim, recognized in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), is available to all employees and requires no determination of whether discrimination based on transgender status itself constitutes sex discrimination under Title VII. Moreover, there is no circuit split on whether transgender people, like everyone else, may bring sex discrimination claims where the discrimination is based on stereotypes about their sex-related appearance and behavior. Since that holding is sufficient to support the judgment below, resolving the first question presented would not affect the outcome of the case.
Second, Petitioner asks this Court to decide whether Title VII prohibits an employer from enforcing a sex-specific policy—such as Petitioner’s dress code—based on the employer’s perception of an employee’s sex. But this case does not properly present that question either. The court below found that Petitioner fired Ms. Stephens not merely for noncompliance with the dress code as the employer sought to enforce it, but based on a range of
2

appearance and behavior-related sex stereotypes that go well beyond the dress code. The court of appeals expressly did not rule on the legality of the dress code.
Finally, Petitioner asserts that the court of appeals erred in failing to limit the applicability of Title VII to situations where women or men are disadvantaged as a group, and where an employer’s stereotypes are “fictional.” Neither of these points is included in the questions presented, and neither identifies a conflict between the court of appeals and this Court’s opinions.
In short, this case is not the right vehicle for addressing either of Petitioner’s questions because the judgment below stands regardless of how the Court decides those questions.
STATEMENT OF THE CASE
A. Factual Background.
Aimee Stephens worked for nearly six years as a licensed funeral director and embalmer for Petitioner R.G. & G.R. Harris Funeral Homes, Inc., until the primary owner of the funeral home, Thomas Rost, fired her in August 2013.2 Pet. App. 5a-6a, 9a. Resp. App. 27a-31a. Ms. Stephens had worked in the funeral services industry for nearly thirty years at the time of her termination. Id. at 34a.
Ms. Stephens’s duties for Petitioner included “embalming, cosmetizing, casketing, [and] dressing”
2 Thomas Rost owns 95.4% of the company; his children own the rest. Resp. App. 75a.
3

the bodies of the decedents, facilitating the family and public viewings, and taking the bodies from the families into Petitioner’s custody. Resp. App. 81a. Mr. Rost testified that Ms. Stephens was “able to perform the jobs of funeral director and embalmer,” and “showed sensitivity and compassion to the clients who came in.” Id. at 50a. In “dealing with families,” Ms. “Stephens had been solicitous of their feelings,” “had blended in well,” and “had . . . been courteous and compassionate.” Id. at 46a. She was a “very good embalmer,” Id. at 72a, and “[f]amilies seemed very pleased” with her work. Id. It is undisputed that her termination was unrelated to her job performance. Pet. App. 100a.
Petitioner had a sex-specific dress code that required men to wear dark suits, white shirts, a tie, and dark socks and shoes, while women had to wear a conservative skirt suit or dress. Id. at 91a-93a. Mr. Rost required women to wear skirts even though it was not an industry standard. Resp. App. 65a-66a. He said that he was “just old-fashioned” and believes that “a male should look like a . . . man, and a woman should look like a woman.” Id. at 62a, 63a. Petitioner purchased suits for men, but did not purchase any clothing for women. Resp. App. 65a, 58a-59a. When explaining the difference, Mr. Rost told an EEOC investigator, “You women are a strange breed.” Resp. App. 11a. He also distinguished his “key employees” from his “lady attendants.” Resp. App. 7a. After the EEOC sued, Petitioner began to offer women a small stipend toward the cost of their clothing, but paid less to women than it spent on the clothing it provided its male employees. Pet. App. 7a8a.
4

Although she was assigned male at birth, Ms. Stephens has known from a young age that she is female. Resp. App. 1a. Four years prior to her termination by Petitioner, Ms. Stephens sought professional help from a counselor to address the “great despair” and “suffering” she had lived with. Id. After four years of counseling, she wrote a letter to her “Friends and Co-Workers” at Petitioner, and on July 31, 2013, provided that letter to Mr. Rost. Pet. App. 94a-95a.
In her letter, she explained:
I have known many of you for some time now, and I count you 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 [sic] Australia Stephens, in appropriate business attire.
* * *
I realize that some of you may have trouble understanding this. In truth, I
5

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 Homes doing what I have always done, which is my best!
Resp. App. 1a-2a.
On August 15, 2013, two weeks after Ms. Stephens informed Mr. Rost that she would come to work as her “true self,” “liv[ing] and work[ing] fulltime as a woman,” id., Mr. Rost told her “this is not going to work out,” making clear that her “services would no longer be needed here,” Pet. App. 96a. When asked “the specific reason that you terminated Stephens,” Mr. Rost responded “because he . . . was no longer going to represent himself as a man.” Id. at 109a.3 Mr. Rost also testified that he objected to Ms. Stephens’s use of the name “Aimee,” saying that this made him “uncomfortable . . . because he’s a man.” Id. at 61a.
While Mr. Rost had never seen Ms. Stephens dressed in a skirt suit, he believed that “there is no way that . . . the person [I] knew . . . would be able to
3 Mr. Rost consistently referred to Ms. Stephens as “he” and “a man,” refusing to respect her gender identity. We quote Mr. Rost’s actual words, but note that as a matter of accuracy and respect, Ms. Stephens is properly referred to as “she” and “a woman.”
6

present in such a way that it would not be obvious that it was [a man].” Resp. App. 45a. He expressed concerns regarding customers and his business, stating that families who patronized his business “don’t need some type of a distraction . . . . And [Ms. Stephens’s] continued employment would negate that.” Id. at 43a. Mr. Rost believed that Ms. Stephens’s feminine appearance and behavior “would have harmed [Petitioner’s] clients and its business.” Id. at 88a.

B. Proceedings Below.

Ms. Stephens filed a charge of discrimination with the EEOC soon after her firing. Resp. App. 3a. On September 25, 2014, the EEOC filed a complaint alleging that Petitioner violated Title VII by firing Ms. Stephens because she is transgender, because of her “transition from male to female, and/or because [she] did not conform to [Petitioner’s] sex- or genderbased preferences, expectations, or stereotypes.” Pet. App. 166a.

Petitioner moved to dismiss, arguing that Title

VII does not protect transgender people from

discrimination. The district court granted that

motion

in

part,

reasoning

that

“transgender . . . status is currently not a protected

class under Title VII.” Id. at 172a.

The district court denied the rest of Petitioner’s motion to dismiss, ruling that the EEOC had stated a claim that Ms. Stephens was fired in violation of Title VII because Petitioner objected that her appearance and behavior departed from its sex stereotypes. Id. at 173a-184a, 187a. The district court reasoned that “any person—without regard to

7

labels such as transgender—can assert a sexstereotyping gender-discrimination claim under Title VII, under a Price Waterhouse theory, if that person’s failure to conform to sex stereotypes was the driving force behind the termination.” Id. at 164a; see also id. at 183a (“[A] transgender person—just like anyone else—can bring a sex-stereotyping genderdiscrimination claim under Title VII under a Price Waterhouse theory.”).
Following discovery, both the EEOC and Petitioner moved for summary judgment. The district court held that Mr. Rost’s testimony that he fired Ms. Stephens because she “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.” Id. at 109a110a. But the district court concluded that the Religious Freedom Restoration Act (RFRA) provided Petitioner an “exemption from Title VII . . . under the facts and circumstances of this unique case,” and therefore granted Petitioner summary judgment. Id. at 142a.
The EEOC appealed. Id. at 12a. Ms. Stephens 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 court of appeals granted that motion and she participated in briefing and argument of the case. Id. at 12a-13a.
The court of appeals unanimously reversed. It first agreed with the district court that Petitioner violated Title VII by firing Ms. Stephens because of Mr. Rost’s sex stereotypes about her appearance and conduct. Id. at 15a-22a. It then went on to rule for
8

Respondents on an independent ground, finding that discrimination because of Ms. Stephens’s transgender status is inherently a form of sex discrimination that violates Title VII. Id. at 22a-36a.
In concluding that firing Ms. Stephens for nonconformity with sex stereotypes violated Title VII, the court of appeals rejected Petitioner’s argument that its purported reliance on a sex-specific dress code provided it a defense. The court found that Petitioner fired Ms. Stephens for her appearance and behavior well beyond the dress code, and concluded that Petitioner could “not rely on its [dress code] policy to combat the charge that it engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts the Funeral Home’s perception of how she should appear or behave based on her sex.” Pet. App. 21a-22a. As the court noted, “Rost’s concerns extended beyond Stephens’s attire and reached Stephens’s appearance and behavior more generally.” Id. at 65a. As a result, it expressly noted that it was “not considering . . . whether the Funeral Home violated Title VII by requiring men to wear pant suits and women to wear skirt suits.” Id. at 18a.
Finally, the court of appeals rejected Petitioner’s RFRA defense to Title VII liability. Id. at 36a-73a.4
4 The court of appeals also rejected an argument that Title VII’s ministerial exception applied. Petitioner does not seek review of these rulings.
9

REASONS FOR DENYING THE WRIT
I. THIS CASE IS A POOR VEHICLE FOR ADDRESSING PETITIONER’S FIRST QUESTION BECAUSE DECIDING IT WOULD NOT AFFECT THE JUDGMENT.
Since Price Waterhouse, the circuit courts have uniformly agreed that all people, including those who are transgender, may bring sex discrimination claims under Title VII if their employers discriminate against them because of sex stereotypes related to behavior and appearance. Applying that principle here, the court below first held that the funeral home discriminated against Ms. Stephens on the basis of sex when it fired her for failing to conform to her employer’s expectations of how men and women should look and behave. It then held in the alternative that discrimination based on a person’s transgender status is sex discrimination.
Petitioner’s first question presented addresses only the court of appeals’ alternative ground— whether discrimination based on transgender status, standing alone, is “discrimination ‘because of . . . sex’” under Title VII.5 Pet. i. But this case is an
5 Petitioners pose the question as whether the word “sex” in Title VII means “gender identity.” Pet. i. In fact, the courts that have concluded that discrimination based on transgender status violates Title VII have not done so on this ground. Rather, they have reasoned that discrimination based on transgender status is a form of “discrimination because of sex” because transgender status is an intrinsically sex-based characteristic. That reasoning does not depend on whether Congress was specifically contemplating “gender identity” when it enacted Title VII, any more than this Court’s reasoning in Oncale relied on whether
10

inappropriate vehicle for reaching that question, because the judgment below rests on the independent holding that Petitioner fired Ms. Stephens because her appearance and behavior departed from sex stereotypes. That type of sex discrimination claim, accepted uniformly by the circuit courts, does not require the Court to decide whether discrimination based on transgender status is sex discrimination. This Court has made clear that Title VII encompasses disparate treatment motivated by sex stereotypes about an employee’s appearance and behavior. Thus, even if this Court were to resolve the asserted circuit split regarding status-based claims in Petitioner’s favor, the result in this case would not change. The Court should not grant certiorari to decide a question that will not affect the judgment below. See Klehr v. A.O. Smith Corp., 521 U.S. 179, 192 (1997) (declining to resolve split among circuits where doing so would not affect the outcome of the case); Stephen M. Shapiro et al., Supreme Court Practice 249 (10th ed. 2013) (citing Sommerville v. United States, 376 U.S. 909 (1964)) (certiorari denied where the resolution of a circuit conflict could not change the result reached below).
Congress had specifically contemplated same-sex sexual harassment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
11

A. The Courts Below Held That Petitioner Fired Ms. Stephens Because of Its Sex Stereotypes About Her Appearance and Behavior.
Both the district court and the court of appeals squarely held that Petitioner subjected Ms. Stephens to sex discrimination under Price Waterhouse when it fired her because her appearance and behavior departed from Mr. Rost’s sex stereotypes. Pet. App. 21a-22a (agreeing with the district court that Petitioner had “engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts the [Petitioner’s] perception of how she should appear or behave based on her sex”). Because that independent holding is in accord with all courts of appeals to address the issue, and not challenged by either of Petitioner’s questions presented, this case is not a proper vehicle for reaching Petitioner’s first question presented, which asks something else: whether discrimination on the basis of transgender status is discrimination because of sex under Title VII.
In Price Waterhouse, this Court concluded that Title VII’s prohibition on sex discrimination “mean[s] that gender must be irrelevant to employment decisions.” 490 U.S. at 240 (plurality opinion); see also id. at 258-61 (White, J., concurring); id. at 27273 (O’Connor, J., concurring). Price Waterhouse engaged in sex discrimination when it denied a partnership to Ann Hopkins in part because she did not “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235.
12

The district court and court of appeals both held that Petitioner fired Ms. Stephens because of its sex-stereotyped concerns about her appearance and behavior. The district court held that Mr. Rost’s testimony that he fired Ms. Stephens because she “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, in that it showed that Petitioner “fired Stephens ‘because of [Stephens’s] failure to conform to sex stereotypes[.]’” Id. at 109a (quoting Barnes v. City of Cincinnati, 401 F.3d 729, 738 (6th Cir. 2005)). The court of appeals agreed, finding that “Rost’s decision to fire Stephens because Stephens was ‘no longer going to represent himself as a man’ and ‘wanted to dress as a woman’ . . . falls squarely within the ambit of sex-based discrimination that Price Waterhouse . . . forbid[s].” Pet. App. 16a. Petitioner “engaged in improper stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts the [Petitioner’s] perception of how she should appear or behave based on her sex.” Id. at 22a.
The lower courts’ holdings are amply supported by the record. Mr. Rost made clear his discomfort with Ms. Stephens’s appearance as a woman, declaring that he had “yet to see a man dressed up as a woman that I didn’t know was not a man dressed up as a woman.” Resp. App. 44a; cf. Lewis v. Heartland Inns of Am., LLC, 591 F.3d 1033, 1039 (8th Cir. 2010) (finding that terminating a front desk employee for having a masculine appearance rather than a “pretty” “Midwestern girl look” was sufficient to show wrongful sex stereotyping). And Mr. Rost felt that Ms. Stephens “present[ing]” herself
13

and “dressing” as a woman while some aspects of her appearance or behavior would be perceived as masculine would have been a “distraction to people.” Resp. App. 42a-45a.6

Thus, the courts below properly found that Mr. Rost himself admitted that his decision to fire Ms. Stephens was based on her departure from sex stereotypes about appearance and behavior. Notably, Petitioner does not challenge these findings.

B. The Circuits Are Uniform in

Recognizing That Everyone Who

Experiences

Discrimination

Motivated by Sex Stereotypes

Related to Appearance and

Behavior May Assert a Claim of Sex

Discrimination,

Including

Transgender People.

The courts of appeals have developed extensive case law applying this Court’s sex discrimination decisions to anyone penalized for departing from sex stereotypes in appearance or behavior. The courts agree that federal laws banning sex discrimination provide persons who are transgender the same protection from discrimination based on sex stereotypes as anyone else.

6 Customer preference is not a defense here any more than it would be in other contexts. See Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981) (rejecting defense that promoting a female employee would hurt business based on assumption that South American clients would not want to work with a female vice-president, since biased customer preferences did not make being a man a bona fide occupational qualification).

14

The courts are unanimous in holding that Title VII protects everyone from sex discrimination in employment. That includes men, see Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 681 (1983) (men are protected from discrimination related to pregnancy benefits, since “Congress had always intended to protect all individuals from sex discrimination in employment”), victims of same-sex sexual harassment, see Oncale, 523 U.S. at 80-81, and people of any gender or sexual orientation who are perceived as gender nonconforming, see Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291-92 (3d Cir. 2009) (gay man with a “high voice” who “walk[ed] in an effeminate manner” and whose behavior was otherwise perceived as feminine could bring a claim of sex stereotyping); EEOC v. Boh Bros. Const. Co., 731 F.3d 444, 453-62 (5th Cir. 2013) (en banc) (upholding jury verdict under Title VII for a man who was taunted because he was perceived as effeminate); Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1997), vacated on other grounds, 118 S. Ct. 1183 (1998) (employee who faced harassment “in whole or in part because he wore an earring” could sue under Title VII for discrimination due to his nonconformity with sex stereotypes); Lewis, 591 F.3d at 1041 (ruling in favor of employee who was fired because she was perceived as “tomboyish”).
Every circuit court to address whether transgender people may state claims for discrimination based on gender non-conforming appearance and behavior after Price Waterhouse has agreed that they may—not only under Title VII, but also under other provisions of federal law that similarly prohibit sex discrimination.
15

Long before this case, the Sixth Circuit had concluded that a transgender fire department lieutenant who was fired for “expressing a more feminine appearance” could sue for sex discrimination under Title VII. Smith v. City of Salem, Ohio, 378 F.3d 566, 568 (6th Cir. 2004). If “[a]n employer who discriminates against women because . . . they do not wear dresses or makeup, is engaging in sex discrimination” then “[i]t follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination.” Id. at 574. See also Barnes, 401 F.3d at 738 (affirming jury verdict in favor of a transgender woman based on evidence that her employer demoted her because her behavior and appearance failed to conform to its stereotypes of how males should look and act, including evidence that her “practice of dressing as a woman outside of work [was] wellknown” among her co-workers and that “[o]ne of [her] supervisors told [her she] was not sufficiently masculine”).
There is no circuit split on this question. In Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), the Eleventh Circuit concluded it was sex discrimination where a transgender woman was fired after being told that “her appearance [was] not appropriate ‘[b]ecause he was a man dressed as a woman and made up as a woman,’” “‘it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,’ and that a male in women’s clothing is ‘unnatural.’” Id. at 1314. In Schwenk v. Hartford, the Ninth Circuit recognized that violence against a transgender prisoner because the perpetrator “believed . . . the victim was a man
16

who ‘failed to act like’ one” constituted sex discrimination prohibited by the Gender Motivated Violence Act. 204 F.3d 1187, 1202 (9th Cir. 2000). And in Rosa v. Park West Bank & Trust Co., the First Circuit held that a transgender person could allege a claim of sex discrimination under the Equal Credit Opportunity Act after being turned away by a loan officer “because she thought that Rosa’s [feminine] attire did not accord with his male gender[.]” 214 F.3d 213, 215-16 (1st Cir. 2000). The Seventh Circuit found that a transgender student could bring a sexstereotyping claim under Title IX. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047-49 (7th Cir. 2017), cert. dismissed, 138 S. Ct. 1260 (2018).
The Tenth Circuit cited to Smith and assumed that Title VII permits transgender people to bring a claim based on “failure to conform to sex stereotypes” about how they “act and look.” Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1223-24 (10th Cir. 2007). The Fifth and Eighth Circuits have also assumed that transgender people could bring sex discrimination claims. See Tovar v. Essentia Health, 857 F.3d 771, 775 (8th Cir. 2017); Hunter v. United Parcel Serv., Inc., 697 F.3d 697, 704 (8th Cir. 2012)7; Brandon v. Sage Corp., 808 F.3d 266, 270-71 & n.2
7 The Eighth Circuit’s decision that transgender people are not protected from discrimination under Title VII, Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982), has not been revisited since this Court’s decision in Price Waterhouse, although the Eighth Circuit has, since Price Waterhouse, assumed that Title VII includes protection for transgender people from discrimination based on sex-stereotyped concerns about appearance and behavior. See Hunter, 697 F.3d at 704.
17

(5th Cir. 2015).
District courts in the circuits that have not directly considered the question (the Second, Third, Fourth, and District of Columbia Circuits) have uniformly taken the same position: that transgender people may bring Title VII claims based on evidence of sex stereotyping about their appearance and behavior. See, e.g., Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL 22757935, at *4 (W.D.N.Y. Sept. 26, 2003); Mitchell v. Axcan Scandipharm, Inc., No. Civ.A. 05-243, 2006 WL 456173, at *2 (W.D. Pa. Feb. 17, 2006); Finkle v. Howard Cty., 12 F. Supp. 3d 780, 787-90 (D. Md. 2014); Schroer v. Billington, 577 F. Supp. 2d 293, 305 (D.D.C. 2008).
Thus, since Price Waterhouse, there has been no conflict among the courts of appeals over whether transgender people, like all others, can assert a Title VII claim when, like Ms. Stephens, they are subjected to adverse action because their employer objects that their appearance or behavior does not conform to sex stereotypes.
C. The Split Petitioner Identifies Is About a Legal Question That Is Not Necessary to the Judgment Below and in Any Event Merits Further Percolation.
Petitioner asks the Court to resolve a split among the courts of appeals about whether discrimination based on transgender status is sex discrimination. But because the court of appeals decision rests independently on a finding that Petitioner discriminated against Ms. Stephens based
18

on its sex-stereotyped concerns about her appearance and behavior, no resolution of this alleged split could alter the judgment below, making this a poor vehicle for addressing that issue. Shapiro et al., supra at 249. The split is also not nearly as extensive, mature, or complex as Petitioner suggests, and better opportunities will arise to address it.
The Seventh, Ninth, and Eleventh Circuits agree with the Sixth Circuit’s alternative holding for Respondents that when a decision maker discriminates against someone for being transgender, that discrimination is inherently based on sex. See Pet. App. 22a-23a; Whitaker, 858 F.3d at 1049; Schwenk, 204 F.3d at 1201-02; Glenn, 663 F.3d at 1316.
Only the Tenth Circuit has ruled otherwise, finding that discrimination on the basis of transgender status is not a violation of Title VII. Etsitty, 502 F.3d at 1224. That court distinguished between claims based on sex stereotypes about appearance and behavior, which it assumed were available to transgender employees, and claims based on status alone. Id.
The other cases that Petitioner claims establish a circuit split show no such thing. On rehearing en banc, the Third Circuit removed the portion of the Boyertown decision that Petitioner cites. See Boyertown Area Sch. Dist., 897 F.3d at 533. The ruling in G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), was vacated by this Court and the case is still being litigated in the lower courts on remand. Gloucester Cty. Sch. Bd. v. G.G., 137 S. Ct. 1239 (2017). Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), and
19

Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662, 664 (9th Cir. 1977), two pre-Price Waterhouse decisions cited by Petitioner, have both already been overruled. See Whitaker, 858 F.3d at 1047 (acknowledging reasoning of Ulane cannot foreclose claim under Price Waterhouse); Schwenk, 204 F.3d at 1201 (“The initial judicial approach taken in cases such as Holloway has been overruled by the logic and language of Price Waterhouse.”).
While resolving Petitioner’s first question would have no effect on the judgment in this case, it might be dispositive in other cases. For example, Petitioner’s first question might arise in cases that lack evidence that an employer was driven by sexbased concerns related to behavior and appearance. Such a case might involve an employer’s failure even to consider an applicant whose job application or background check reveals that she is transgender, where there is no other evidence of the employer’s sex-based appearance and behavior-related objections to employing her. In the absence of such evidence, a court might be required to decide a broader question about whether discrimination against transgender people because of their transgender status is a form of discrimination based on sex.
Thus far, it is only in the context of disputes over the use of sex-specific facilities where a decision about whether discrimination based on transgender status is a form of sex discrimination appears to have affected the outcome of a case. When the Tenth Circuit in Etsitty distinguished claims based on transgender status from those based on sex stereotypes about how a transgender person looks
20

and acts, it concluded that the use of sex-specific facilities fell on the status side of the line, and the plaintiff had no sex discrimination claim. In contrast, the Seventh Circuit held in Whitaker that discrimination against someone based on their transgender status by denying the use of sex-specific restrooms was a form of discrimination on the basis of sex. 858 F.3d at 1049. In contrast to Whitaker and Etsitty, however, this case does not present any issue regarding sex-specific facilities. See infra Section II.C.
Because the judgment below will not be affected by deciding whether discrimination on the basis of transgender status alone violates Title VII, this Court should deny review here.
II. PETITIONER’S SECOND QUESTION— WHETHER PRICE WATERHOUSE PROHIBITS EMPLOYERS FROM ENFORCING SEX-SPECIFIC POLICIES ACCORDING TO THE EMPLOYERS’ VIEW OF THEIR EMPLOYEES’ SEX— WAS NOT ADJUDICATED BELOW AND IS NOT PROPERLY PRESENTED HERE.
The second question on which Petitioner seeks review is whether Price Waterhouse “prohibits employers from applying sex-specific policies according to their employee’s sex rather than their gender identity.” Pet. i. But that question is also not properly presented, both because it was not decided below and because Petitioner admitted that Mr. Rost fired Ms. Stephens for far more than her intention not to follow Petitioner’s dress code as interpreted by Mr. Rost. Thus, even if the dress code by itself were a
21

legitimate basis for firing Ms. Stephens, the outcome of this case would not change.
A. The Sixth Circuit Held That Mr. Rost Fired Ms. Stephens Based on Multiple Sex Stereotypes, Not Only Those Related to the Dress Code.
The Sixth Circuit held that Petitioner fired Ms. Stephens because of a range of sex stereotypes that go well beyond the dress code. It ruled that the evidence did not permit a conclusion that the only sex stereotype that motivated the termination concerned clothing:
Though Rost does repeatedly say that he terminated Stephens because she ‘wanted to dress as a woman’ and ‘would no longer dress as a man’, the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation. . . . The record . . . compels the finding that Rost’s concerns extended beyond Stephens’s attire and reached Stephens’s appearance and behavior more generally.
Pet. App. 65a (citations omitted).8
8 While the district court characterized the sex stereotyping as based only on clothing, the Sixth Circuit explicitly rejected that interpretation of the record. Because the case was resolved on
22

The record supports this conclusion. Mr. Rost’s concern was not about which dress code Ms. Stephens would follow, but about having a woman working for him who would not “look like a woman.” Resp. App. 62a-63a. He objected not only to Ms. Stephens dressing in a traditionally feminine way, but also to her using a traditionally feminine name or otherwise looking or acting in any way he believed only women should. Mr. Rost described himself as “just old-fashioned.” Id. at 62a. He believed that “a male should look like a . . . man, and a woman should look like a woman.” Id. at 62a-63a. He stated that he fired Ms. Stephens because she “was no longer going to represent himself as a man.” Pet. App. 109a. He objected to Ms. Stephens calling herself “Aimee” because “he’s a man.” Resp. App. 61a. Petitioner went so far as to argue that the EEOC charge of discrimination should be dismissed because “Aimee” Stephens never worked there. Id. at 13a.
Mr. Rost was concerned that Ms. Stephens’s appearance and behavior would be perceived as unacceptably masculine for a woman, regardless of how she dressed. He anticipated that if Ms. Stephens wore traditionally feminine clothing, she would still be perceived as masculine, and that would be “distracting to my clients.” Pet. App. 198a. He testified that “[t]here is no way that . . . the person [I] knew as . . . Stephens would be able to present in such a way that it would not be obvious that it was [a man].” Resp. App. 45a.
cross motions for summary judgment, the district court made no factual findings entitled to deference on appeal.
23

Petitioner notes that Mr. Rost stated that if Ms. Stephens “would only present as a woman outside of work,” he would not have terminated her. Pet. App. 110a; see also id. at 104a-05a. But even if true, that statement is fully consistent with the court of appeals’ statement that Mr. Rost was concerned with multiple aspects of Ms. Stephens’s appearance and behavior because of sex.9 Given the extent of Mr. Rost’s stereotypes about how men and women should look and act, it is not plausible that Petitioner would have retained Ms. Stephens if she appeared at work using her new, traditionally feminine name, wearing makeup, styling her hair in a traditionally feminine way, and displaying traditionally feminine mannerisms, even if she complied completely with the dress code for men.
Thus, even if enforcing a sex-specific dress code against a transgender employee according to the employer’s view of the employee’s sex were lawful under Title VII, the judgment below would still stand because Mr. Rost fired Ms. Stephens for departing from sex stereotypes that extended well beyond Petitioner’s dress code. This case therefore does not present the question about sex-specific policies that Petitioner wants the Court to decide.
9 This is not in fact an accurate statement regarding the record below, since Mr. Rost testified that, “if a customer had seen Stephens . . . as female outside of work” and “that person had said that they were not going to come back,” then “perhaps, yes,” that “could have been reason to let Stephens go.” Resp. App. 66a.
24

B. The Court of Appeals Expressly Did Not Address the Lawfulness of SexSpecific Dress Codes.
The legality of Petitioner’s dress code was never adjudicated below. For that reason, prudential considerations weigh against addressing the question Petitioner poses.
Ms. Stephens had no personal objection to the dress code and planned to comply with it as a woman. Pet. App. 95a. As the district court noted, “the dress code is only being injected because the Funeral Home is using its dress code as a defense to the Title VII sex-stereotyping claim.” Id. at 112a. And as the Sixth Circuit repeatedly emphasized, “[W]e are not considering, in this case, whether the Funeral Home violated Title VII by requiring men to wear pant suits and women to wear skirt suits.” Id. at 18a. Ultimately, the Sixth Circuit concluded only that:
[T]he Funeral Home’s sex-specific dress code does not preclude liability under Title VII. Even if the Funeral Home’s dress code does not itself violate Title VII—an issue that is not before this court—the Funeral Home may not rely on its policy to combat the charge that it engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts the Funeral Home’s perception of how she should appear or behave based on her sex.
25

Id. at 21a-22a (emphasis added).10
It makes little sense to determine how a sexspecific dress code may be enforced as to transgender people when the Court has yet to consider whether sex-specific dress codes may be enforced as to anyone. The question Petitioner proposes might be better presented, for example, in a case that has addressed the threshold question of whether employers may force women to wear skirts and men to wear pants absent any bona fide occupational qualification.
C. Sex-Specific Restroom Policies Are Not at Issue in this Case.
Petitioner invokes concerns about the implications of this case for transgender people’s use of sex-specific restrooms. Pet. 2, 5, 14, 17, 19-20, 2425, 27, 30-33. But that issue was not argued, developed, or decided below, and, by Petitioner’s own admission, played no part in Ms. Stephens’s termination.
While questions regarding restroom use came up briefly during depositions, it is undisputed that the issue played no role in Petitioner’s firing of Ms. Stephens. Mr. Rost himself testified that “there was no discussion of bathrooms with Stephens . . . [t]hat never came up at all.” Resp. App. 47a. He also said:
10 The court’s statement that “even if we would permit certain sex-specific dress codes in a case where the issue was properly raised, we would not rely on either Jesperson or Barker to do so” and its subsequent discussion of those cases are dicta.
26

Q: So the bathroom thing is really hypothetical, I mean, because you never even got to that point?
A: That’s true.
Id.
Petitioner did not raise the issue of restrooms before the court of appeals. Neither the district court nor the Sixth Circuit expressed any opinion, even in dicta, about whether Ms. Stephens should have been permitted to use the women’s restrooms if she had continued to be employed. The Sixth Circuit mentioned restrooms once briefly as simply one more piece of evidence that Mr. Rost was not comfortable with any aspect of employing Ms. Stephens as a woman. See Pet. App. 65a.
III. THE SIXTH CIRCUIT’S HOLDING DOES NOT CONFLICT WITH PRICE WATERHOUSE OR ANY COURT OF APPEALS.
Petitioner does not identify as a question presented whether firing a transgender employee for failing to conform to sex stereotypes related to appearance and behavior violates Title VII. Yet it argues, in its “reasons for granting certiorari,” that the Sixth Circuit’s ruling conflicted with this Court’s decision in Price Waterhouse. Pet. 21-25. That argument is not within the proper scope of the petition because it is not fairly included in either of the questions presented. See Barr v. Matteo, 355 U.S. 171, 172 (1957); Yee v. City of Escondido., 503 U.S. 519, 535 (1992) (declining to consider question not raised in petition for certiorari), Supreme Court Rule
27

14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court.”). In any event, Petitioner points to no actual conflicting decision, and cites almost exclusively dissenting opinions when asserting a conflict.11 In fact, the court of appeals properly applied Price Waterhouse.
Petitioner first argues that Price Waterhouse finds sex discrimination only where employers advantaged one sex over another, and that the court of appeals eliminated that requirement. Pet. 22. But just as Price Waterhouse objected to promoting Ann Hopkins because it perceived her as too masculine, an objection it leveled against her only because it saw her as a woman, so Petitioner objected to retaining Ms. Stephens because it perceived her as too feminine, an objection it leveled against her only because it saw her as a man. In both cases, the employer penalized its employee for behavior that would have been acceptable if the employee’s perceived sex were different. So the same differential treatment that existed in Price Waterhouse is present here.
Moreover, Title VII makes it unlawful “to discriminate against any individual with respect to his . . . sex,” City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 708 (1978), and has
11 Petitioner cites Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104, 1111-13 (9th Cir. 2006) (en banc) and Etsitty, but these cases involve issues not present in this case—whether a sex-specific appearance code violates Title VII and whether Title VII protects transgender women’s use of women’s restrooms, respectively. See supra Section I.C and Section II.B.
28

never been limited to cases where women, as a class, or men, as a class, are harmed. Id. The Price Waterhouse Court did not require Ms. Hopkins to show that her employer disadvantaged women as a group—only that sex stereotypes were a motivating factor in the way it treated her. Price Waterhouse, 490 U.S. at 251 (employer may not “assum[e] or insist[ ] that [women] match[ ] the stereotype associated with their group”). An interpretation of “because of sex” that limits it to situations where women as a group are treated worse than men or men worse than women would contradict the plain language of the statute and deny relief to many people who face discrimination because of sex. See, e.g., Oncale, 523 U.S. at 80-81 (ruling that man harassed by other men in an all-male work environment could state claim for sex discrimination if that harassment was motivated by sex); Phillips v. Martin Marietta Corp., 400 U.S. 542, 543 (1971) (holding that policy of not hiring women with preschool age children violated Title VII even though most employees were women and “hence no question of bias against women as such was presented”).12
12 In the equal protection context, the Court has often declared unconstitutional rules that harm both women and men, but that reinforce sex stereotypes, such as laws providing different benefits to widows and widowers based on stereotypes about women’s dependence on men. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Califano v. Goldfarb, 430 U.S. 199 (1977); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980). These laws, the Court recognized, harmed both the surviving widower and his deceased spouse because of sex. The fact that the laws simultaneously harmed men and women did not mean that they were not discrimination on the basis of sex. See also J.E.B. v. Alabama, 511 U.S. 127 (1994) (rejecting
29

Second, Petitioner claims that Title VII prohibits discrimination based on sex stereotypes only when they are “fictional.” Pet. 23-24. But Manhart’s discussion of stereotypes, relied on by Petitioner, condemns not only fictional differences but also “generalization[s] that the parties accept as unquestionably true[.]” Manhart, 435 U.S. at 707. This Court stated unequivocally that “[e]ven a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.” Id. at 708 (emphasis added); see also Arizona Governing Comm. for Tax Deferred Annuity & Deferred Comp. Plans v. Norris, 463 U.S. 1073, 1083 (1983) (“Title VII requires employers to treat their employees as individuals, not ‘as simply components of a racial, religious, sexual, or national class.’”) (quoting Manhart, 435 U.S. at 708).
In short, the court of appeals faithfully applied Price Waterhouse consistently with this Court’s other precedents. For good reason, Petitioner did not ask the Court to review whether the court of appeals properly held that Ms. Stephens, a transgender employee, could assert a Title VII claim where her employer expressly fired her based on its sex stereotypes about her appearance and behavior.13
gender-based peremptory jury strikes without requiring that a strike be shown to disadvantage women or men as a class).
13 If the Court grants certiorari in Altitude Express, Inc. v. Zarda, No. 17-1623, or Bostock v. Clayton County, No. 17-1618, the Court should not hold this case pending the issuance of a decision in those cases. While Zarda and Bostock also concern the scope of sex discrimination under Title VII, in neither case
30

CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be denied.
Respectfully submitted,

David D. Cole AMERICAN CIVIL
LIBERTIES UNION FOUNDATION 915 15th Street, NW Washington, DC 20005
Jay D. Kaplan Daniel S. Korobkin Michael J. Steinberg AMERICAN CIVIL
LIBERTIES UNION FUND OF MICHIGAN 2966 Woodward Avenue Detroit, MI 48201

John 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
Gabriel Arkles James D. Esseks Louise Melling AMERICAN CIVIL
LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

Dated: October 24, 2018

Counsel for Respondent Aimee Stephens

did the court of appeals base its holding on a separate claim of sex discrimination based on sex stereotypes about appearance and behavior, as the Sixth Circuit did in this case. The Court should deny review in this case because resolution of the petitions in Zarda or Bostock would not affect the type of sex discrimination claim under which Ms. Stephens prevailed.

31

APPENDIX

EXHIBIT A
Dear Friends and Co-Workers:
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 am writing this both to inform you of a significant change in my life and to ask for your patience, understanding, and support, which I would treasure greatly.
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. It all started when I was about five years old. I knew something was different about me, but I could not have told you what it was then. When I was about ten years old, I started to ask my Mom questions. Mom related to me that all the signs pointed out that she was going to have a baby girl. Mom was so sure that I was going to be a girl that everything she bought was for a girl. So for the first few months of my life I was dressed in girl clothes, because they could not afford to go and buy all new clothes. Perhaps the signs were not wrong after all.
I know this has nothing to do with my condition. It is a birth defect that needs to be fixed. I have been in therapy for nearly four years now and have been diagnosed as a transsexual. I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness. With the support of my loving wife, I have decided to become the person that my mind already is. I cannot begin to describe the shame and suffering that I have
11aa

lived with. 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. I have tried hard all my life, to please everyone around me, to do the right thing and not rock the boat. 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. Through it all, I have learned that life is an adventure, and I would like to believe that the best is yet to come. I hope we can enjoy it together. It is my wish that I can continue my work at R.G. & G.R. Harris Funeral Homes doing what I have always done, which is my best!
Sincerely, /s/ Anthony Stephens
Anthony Stephens
/s/ Amiee A. Stephens Amiee A. Stephens
If you should have questions or need guidance in this, please contact my therapist, Cecelia Hanchon. She has indicated that she would gladly offer assistance to anyone who has questions and can answer questions much better than I. I have enclosed her business card.
22aa

Thanks 33aa

1a

CHARGE OF DISCRIMINATION
This form is affected by the Privacy Act of 1974. See enclosed Privacy Act Statement and other information before completing this
form.

Charge Presented To:  FEPA  EEOC
Agency(ies) Charge No(s): 471-2013-03381

Michigan Department Of Civil Rights

and EEOC

State or local Agency, if any

Name (indicate Mr., Ms., Mrs.)
Aimee Stephens

Home Phone (Incl. Area Code)
(586) 8386623

Date of Birth
12-07-1960

Street Address City, State and ZIP Code

17730 Lennane, Redford, Ml 48240

Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others. (If more than two, list under PARTICULARS below.)

Name
R.G. & G. R. HARRIS FUNERAL

No. Employees, Members
15 - 100

Phone No. (Include Area Code)
(734) 4259200

Street Address City, State and ZIP Code

31551 Ford Rd., Garden City, MI 48135

4a

Name

2a
No. Employees, Members Phone No. (include Area Code)

Street Address

City, State and ZIP Code

DISCRIMINATION BASED ON (Check appropriate box(es).)

DATE(S) DISCRIMINATION TOOK PLACE

 RACE

Earliest

 COLOR

07-31-2013

 SEX

Latest

 RELIGION

08-15-2013

 NATIONAL ORIGIN

 CONTINUING ACTION

 RETALIATION

 AGE

 DISABILITY

 GENETIC INFORMATION

 OTHER (Specify)

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

I began working for the above-named employer on 01 October 2007; I was last employed as a Funeral Director/Embalmer.

On or about 31 July 2013, I notified management that I would be undergoing gender transitioning and that on 26 August 2013, I would return to work as my true self, a female. On 15 August 2013, my employment was terminated. The only explanation I was given was that management did not believe the public would be accepting of my transition.

5a

3a

Moreover, during my entire employment I know there are no other female Funeral Director/Embalmers.

I can only conclude that I have been discharged due to my sex and gender identity, female, in violation of Title VII of the Civil Rights Act of 1964, as amended.

I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address or phone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures.

NOTARY - When necessary for State and Local Agency Requirements

I declare under penalty of perjury that the above is true and correct.
Sep 09, 2013
Date
X Aimee Stephens [SIGNATURE]
Charging Party Signature

I swear or affirm that I have read the above charge and that it is true to the best of my knowledge information and belief.
SIGNATURE OF COMPLAINANT
X Aimee Stephens [SIGNATURE]
SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (month, day, year)

[SIGNATURE]

09 Sept 2013

EEOC002748

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SIGNATURE OF EEOC REPRESENTATIVE

PAGE

OF

PRJVACY ACT STATEMENT: (This form is covered by the Privacy Act of 1974. Pub1ic Law 9J-S79. Authority for requesting and uses of the personal data arc given below.)

I. FORM NUl,IBERITITLE/UATE: El!.OC FORM IJJ, EEOC AFflDAVIT, Dcccmbcr 1993.
2. AUTHORITY: 42 USC 2000e(9), 29 USC 201, 29 use 621, 42 u.s.c. 12117.

EEOC002760

J. PRrNCIPAL PURPOSES. Provides a standardized format for obtaining sworn statements of information relevanl to a charge of discrimination.

4. ROUTINE USES. These affidavits arc used to: ( I) make an official detcnnination regarding lhc validity of the charge ofdiscrimination; (2) guide the Commission's investigatory activity;

and (3) in Commission litigation, to impeach or substantiate a witne§s testimony.

.

.

.

S. WIIETIIER D1S0..OSURE IS MANDATORY OR VOLUNTARY AND EFFECT ON INDIVIDUAL FOR NOT PROVIDING INFORMAT!ON: Yolunlary. Foll~ to provnle an affidavu has no effect upon the jurisdiction of the Commission to process n charge. However, sworn statements submitted by the parties, are, ofcourse, relied upon more heavily than unswom statements in making a detennination as to the existence of unlawful discrimination.

REVEllSf OF EEOC FOAM 133 [fast 10/94)

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PRIVACY ACT STATEMENT: (This form is covered by the Privacy Act of 1974, Public Law 93.579_ Authority for requesting and uses of the personal data are given below.)

I. FORM NUMBER/TITLE/DATE: !!BOC FORM IJJ, EEOC AFFIDAVIT, Doccmbcr 1993.

2. AUTHORITY: 42 USC 2000<(9), 29 USC 201, 29 USC62I, 42 U.S.C. 12117.

EEOC002761

3. PRfNCIPAL PURPOSES. Provides a standardized format for obtaining sworn statements of information relevant to a charge ofdiscrimination.

4. ROUTINE USES. These affidavits arc wed to: (1) make an official determination regarding the validity of the charge ofdiscrimination; (2) guide the Commission's invcstigalOry activity; and (3) in Commission litigation, to impeach or subslantiate a wibless's testimony.

5. WHETHER DISCWSlllU! IS MANDATORY OR VOLUNTARY AND EFFECT ON INDIVIDUAL FOR NOT PROVIDING INFORMATION: Volwilary. Failure to provide an affidavit has no effect upon the jurisdiction of the Commission to process a charge. However, sworn statements submitted by the patties, are, of course, relied upon more heavily than unswom statements in making a determination as to the existence of unlawful discrimination.

REVERSE OF EEOC FOOM 133 (fest 1-1

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PRIVACY ACT STATEMENT: (Th1.s fonn.lscoveredbythe Privacy Act of 1974, Public Law93-579. Authorily for requesting and uses of the personal data are given below.)

I. FORM NUMBER/TITLE/DATE: EEOC FORM IJJ. EEOC AFFIDAVIT, December 1993.

2. AUTHORITY: 42 USC 2000e(9), 29 USC 201, 29 USC 62J, 42 U:S:C. 12117. t ts ofinfonnation relevant to a charge of discrimination.

EEOC002763

3. PRrNCIPAL PURPOSES. Provides a standardized fonnat for obta1mng sworn s_ta emen .

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REVERSE OF EEOC FORM 133 {T..t 1<1'941

11a

C 0 2:14-cv-13710-SFC-DRG Doc # 54-17 Filed 04/07/16 Pg 7 of 7 Pg ID 1471

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NAME

I EEOC AFFIDAVIT

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. A t if1974 See Privacy Act Statement on reverse before completing this orm.

(This form is affected by the Privacy c o

.

TELEPHONE NUMBER (Give area code)

HOME:

WORK:

ADDRESS (Numb,r, .,....,, city, state, zip)

NAME AND TELEPHONE NUMBER : ADDRESS (Numb,r, stru~ city, Slat-. zip)

THE FOLLOWING PERSON CAN ALWAYS CONTACT ME
.

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D

I STATUS OF EMPLOYMENT

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EEOC002764

~oc Form 133 (Test 10'94)

~
12a

KIRKPATRICK LAW OFFICES, P.C. Joel J. Kirkpatrick Attorney at Law
Admitted to practice in Michigan & Ohio
AIMEE STEPHENS v. R. G. & G. R. HARRIS FUNERAL HOME, INC. EEOC CHARGE NO. 471-2013-03381
RESPONSE OF R. G. & G. R. HARRIS FUNERAL HOME. INC.
In response to the Charge of Discrimination filed by “Aimee Stephens,” R. G. & G. R. Harris Funeral Home, Inc. (hereinafter “Funeral Home”), by and through its attorney Joel J. Kirkpatrick, states as follows:
Identification of R. G. & G. R. Harris Funeral Home: R. G. & G. R. Harris Funeral Home, Inc. is a Michigan corporation in the business of providing embalming, funeral, burial, and related services as allowed under Michigan law. The Funeral Home has been in business since 1932. The Funeral Horne is a closely-held family owned business.
Identification of Complainant: The Complainant is identified as “Aimee Stephens.”
1. The Funeral Home has never employed anyone by the name of “Aimee Stephens.” Therefore, the Complaint must be dismissed on the basis that the named Complainant has never been employed by the Funeral Home.
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2. The Funeral Home has employed an employee by the name of “Wm. Anthony B. Stephens.” If this is the person who filed the Complaint under the name “Aimee Stephens,” then the Complaint must be dismissed as not having been filed under the Complainant’ s legal name. If the real Complainant is Wm. Anthony B. Stephens, then the name “Aimee Stephens” is a fictitious name concealing the Complainant’s true and legal identity. It is hornbook law that complaining parties are required to file complaints under their legal names so as to clearly identify who the parties are and so as to avoid fraud and confusion. See, for example, Doe v. Frank, 951 F.2d 320 (11th Cir. 1992) quoting Southern Methodist University Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979) (basic fairness dictates that party plaintiffs must participate in suits under their real names); Doe v. State of Alaska, 122 F.3d 1070 (9th Cir. 1997) (a plaintiff must file a complaint in his own name).
Statement of Nonwaiver of Defenses: Without waiving its defense that the Complainant’s Charge of Discrimination must be dismissed because either (1) the Funeral Home has never employed anyone by the name of “Aimee Stephens” or (2) if the real name of the Complainant is “Wm. Anthony Stephens” then Mr. Stephens has attempted to bring a claim under an erroneous and fictitious name rather than his true and legal name, the Funeral Home responds to the Charge of Discrimination as follows:
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Facts The Funeral Home has never employed at any time or in any capacity anyone by the name of “Aimee Stephens.” Therefore, the Funeral Home denies in their entirety all facts and claims asserted by any such person. The Funeral Home did employ a “Wm. Anthony B. Stephens” – a male – from September 2007 until August 2013. Mr. Stephens was an at will employee employed as a funeral director. In the summer of 2013, Mr. Stephens advised the Funeral Home in no uncertain terms that he would no longer comply with the Funeral Home’s Dress Code, which requires men to wear suits and ties. Due to Mr. Stephens’ refusal to abide by the Funeral Home’s Dress Code, the Funeral Home terminated Mr. Stephens’ employment.
Claims The Complainant claims he was discharged “due to my sex and gender identity, female, in violation of Title VII the Civil Rights Act of 1964.”
I. Gender Identity Claim A. Gender Identity is Not a Protected Class Under Title VII.
Title VII provides: (a) Employer practices: It shall be an unlawful employment practice for an employer: (1) To fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against
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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; or

(2) To limit, segregate, or classify his employees or applicants for employment in any way which would deprive, or tend to deprive, any individual of employment opportunities or otherwise adversely affect his status as an employee, on the basis of such individual’s race, color, religion, sex or national origin.

42 U.S.C. Sec. 2000e-2.

Due to the fact that Title VII does not list

“gender identity” as one of the its protected classes, it

is clear from the face of the statute that “gender

identity” is not a protected class. If that were not

clear enough, Congressional history demonstrates

that Congress did not intend to include “gender

identity” as a protected class under Title VII. That is

evidenced by the fact that the “Employment Non-

Discrimination Act”(ENDA) – which would make

“sexual orientation” and “gender identity” protected

classes under Title VII – has been introduced in

Congress every year since 1994 (except the 109th

Congress) and has been rejected every year. If

“gender identity” was already a protected class under

Title VII there would be no reason for sexual

orientation and gender identity advocates to

introduce ENDA every year. And if Congress

intended to include “gender identity’’ as a protected

class it would not have repeatedly rejected the

enactment of ENDA for nearly 20 years. (It is also

relevant to note that Congress specifically excluded

“transvestism,

transexualism,

pedophilia,

176aa

exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” (our emphasis) from the definition of what constitutes a disability under the Americans With Disabilities Act. 42 U.S.C. Sec. 12211(b)(l).)
Case law supports this position. See Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007) (the court agrees with the vast majority of federal courts to have addressed this issue and concludes that discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII). See also Vickers v. Fairfield Medical Center. et al., 453 F.3d 757 (6th Cir. 2006) (because sexual orientation is not one of the listed protected classes under Title VII, sexual orientation is not a prohibited basis for discriminatory acts under Title VII).
Therefore, since “gender identity” is not a protected class under Title VII, the Complainant’s gender identity claim must fail.
To the extent the Complainant’ s claim is that he was discriminated against due to gender stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that claim must fail as well. Price Waterhouse neither confronted nor addressed the issue of whether a person suffering from gender identity confusion and expressing that confusion in the workplace states a claim under Title VII. Price Waterhouse involved a woman, identifying herself as a woman, whose fellow employees recognized as a woman but who felt was not behaving in a sufficiently feminine manner – not a woman who was claiming to be a man and purporting to change
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and express herself accordingly. The two situations are so different that any attempt to stretch the Price Waterhouse holding to encompass transgender claimants is untenable.
Therefore, to the extent the Complainant is asserting a gender stereotyping claim under Price Waterhouse, that claim must fail as well.
B. The EEOC has no Authority to Pursue the Complainant’s Claim and, in Doing So, is Acting Ultra Vires.
Since “gender identity” is not a protected class under Title VII and because there is no reasoned basis to apply the gender stereotyping theory of Price Waterhouse to transgender claims, the EEOC has no authority to recognize either, and the EEOC sanctions in doing so are ultra vires, without legal authority, and therefore null and void.
Therefore, the Complainant’s “gender identity” claims must be denied.
C. The Employee’s Employment Was Not Terminated On Account of the Employee’s Male Sex or Unlawful Gender Stereotyping, but Rather on Account of the Employee’s Refusal to Comply with the Funeral Home’s Dress Code.
The Complainant’s claims must also fail because the complained of employment termination was not based on the employee’s male sex or on unlawful gender stereotyping. As
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do most if not all funeral homes, the Funeral Home here has a dress code. The Funeral Home’s Dress Code is in writing and is provided to all Funeral Home staff.
The Funeral Home’s Dress Code – a copy of which is attached hereto – provides that “To create and maintain our reputation as “Detroit’s Finest”, it is fundamentally important and imperative that every member of our staff shall always be distinctively attired and impeccably groomed, whenever they are contacting the public as representatives of The Harris Funeral Home. Special attention should be given to the following consideration [sic], on all funerals, all viewings, all calls, or on any other funeral work.”
The Dress Code then goes on to distinguish between what men are required to wear and what women are required to wear.
Men are required to wear suits and ties. The suits must be black, gray, or dark blue. Shirts must be white with regular medium length collars. Ties must be Funeral Home issued or similar. Only black or dark blue socks and black or dark blue shoes may be worn. To assist men in complying with the Dress Code, the Funeral Home provides men with Dress Code compliant suits and ties.
It is clear that reasonable regulations requiring male and female employees to conform to different dress and grooming standards do not violate Title VII. Etsitty v. Utah Transit Authority, supra, at 1224-1225. See also Nichols
1109aa

v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) and Creed v. Family Express Corp., 2009 WL 35237 (N.D. Ind. 2009).
If Anthony Stephens is the true identity of the Complainant in this case, he is a man. He is a male biologically, anatomically, and legally. He was a man when he was hired and a man when he was terminated. All the documentation in the Funeral Home’s possession – including Mr. Stephens’ Certificate from the Conference of Funeral Service Examining Board of the United States, his Associate of Applied Science in Funeral Service degree from Fayetteville Technical Community College, his cover letter and resume, his Funeral Service License issued by the State of Michigan, his employment tax records, his driver’s license issued by the State of Michigan, his 08/2912013 Unemployment Insurance Claim, all identify Mr. Stephens as a man. In addition, Mr. Stephens is currently married to a woman, which would not be legally possible under the laws of Michigan was Mr. Stephens a woman. Indeed, despite referring to himself on occasion as “female,” nowhere does Mr. Stephens ever claim he is not biologically, anatomically, and legally a male.
Therefore, the Funeral Home is entitled to treat Mr. Stephens as a man for purposes of the Funeral Home’s Dress Code.
Despite being a man, however, Mr. Stephens made it clear to the Funeral Home that he no longer intended to comply with the Dress Code’s attire requirements for men.
1210aa

The Funeral Home did not care why one of its employees was refusing to comply with the Funeral Home’s Dress Code. It only cared that he did refuse. Any male employee of the Funeral Home who refused to comply with the Dress Code’s attire requirements for men would be treated the same as Mr. Stephens was treated. The Dress Code is a perfectly appropriate employment requirement – particularly in the funeral services profession – and was applied consistently and nondiscriminatorily. All men were treated the same. Any man’s refusal to comply with the Man’s Dress Code is grounds for termination.
Therefore, Mr. Stephens’ refusal to comply with the Funeral Home’s Dress Code – not Mr. Stephens’ gender identity or unlawful gender stereotyping – was the reason for his termination. That being the case, if Anthony Stephens is the true identity of the Complainant, Mr. Stephens’ claim must fail.
II. Sex Discrimination Claim
The Complainant also claims he was discriminated against on the basis of his “female” sex – evidently apart from his gender identity.
Assuming the Complainant is “Wm. Anthony B. Stephens,” his sex discrimination claim must fail. His claim is that he was the subject of sex discrimination in that his employment was terminated because he is a “female.” This claim is made clear by virtue of the Complainant’s statement in the Charge of Discrimination, to wit: “Moreover, during my entire employment I know there are no
1221aa

other female Funeral Directors/Embalmers” (our emphasis). Thus Mr. Stephens is stating, for purposes of his sex discrimination claim, that he was terminated because he is a female.
But Mr. Stephens is not a female. He is biologically, anatomically and legally a male. He may claim he is a female. He may intend to undergo therapy and surgery that would to some extent change his physical appearance to resemble a female. But doing so would not make him a female and, in any event, he has not done so yet. And the Funeral Home is not aware of any change in Mr. Stephens’ legal status as a male.
Since it is an undisputable fact that Mr. Stephens is a male – not a female – he cannot claim his employment was terminated on account of his being female.
To the extent Mr. Stephens is claiming his employment was terminated not because he is a female (something he cannot factually claim), but rather because of his present or anticipated female appearance, his “sex discrimination” claim is not any different than his “gender identity discrimination” claim – which is discussed and refuted above.
Therefore, the Complainant’s sex discrimination claim must fail.
Please contact me if you have any questions
1232aa

P1

1. UNITED STATES DISTRICT COURT

2 EASTERN DISTRICT OF MICHIGAN

3

SOUTHERN DIVISION

4

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

5

Plaintiff,

6

-vs-

No. 2:14-cv-

13740

7

R.G. & G.R. HARRIS FUNERAL

8 HOMES INC.,

9

Defendants.

10

11 ---------------------------------------------------------

12

13 The Deposition of AIMEE A.

STEPHENS

14 Taken at 39111 Six Mile Road,

15 Livonia, Michigan,

16 Commencing at 9:28 a.m.,

17 Wednesday, December 16, 2015,

18 Before Deborah A. Culver

19

20

21

22

23

24

25

1243aa

P2

1. APPEARANCES:

2

3 DALE R. PRICE, JR.

4 MILES E. SHULTZ

5 KATIE N. LINEHAN

6 Equal Employment Opportunity

Commission

7 477 Michigan Avenue, Room 865

8 Detroit, Michigan 48226

9 (313) 226-7808

10 Dale.price@eeoc.gov

11

Appearing on behalf of the Plaintiff.

12

13 JOEL J. KIRKPATRICK

14 Kirkpatrick Law Offices, P.C.

15 843 Penniman Avenue

16 Suite 201

17 Plymouth, Michigan 48170

18 (734) 404-5710

19 Joel@joelkirkpatrick.com

20

Appearing on behalf of the

Defendant.

21

22

23

24

25

P3 1. BRADLEY ABRAMSON 2 Alliance Defending Freedom 3 15100 N. 90th Street 4 Scottsdale, Arizona 85260

1254aa

5 (480) 444-0020

6

Appearing on behalf of the

Defendant.

7

8 JEFF T. SCHRAMECK

9 Schrameck Law, P.L.L.C.

10 843 Penniman Avenue

11 Plymouth, Michigan 48170

12 (734) 454-5400

13

Appearing on behalf of the

Defendant.

14

15 Also Present:

16 Thomas F. Rost

17

18

19

20

21

22

23

24

25

P4

1.

TABLE OF CONTENTS

2 WITNESS
4 AIMEE A. STEPHENS
5 6 EXAMINATION 7 BY MR. KIRKPATRICK: 8 EXAMINATION 9 BY MR. PRICE:

1265aa

10 RE-EXAMINATION

11 BY MR. KIRKPATRICK:

12

13

EXHIBITS

14

15 EXHIBIT

16 (Exhibits attached to transcript.)

17

18 D E P O S I T I O N EXHIBIT 1

19 (Resumé)

20 D E P O S I T I O N EXHIBIT 2

21 (Employee Manual)

22 D E P O S I T I O N EXHIBIT 3

23 (Letter)

24 D E P O S I T I O N EXHIBIT 4

25 (Plaintiff's Witness List)

P49 1. A. Yes.
2 Q. Was that always your name legally when you were
3 employed by R.G. & G.R. Funeral Homes?
4 A. Yes. 5 Q. Were you born a male?
6 MR. PRICE: Objection. I think this is 7 getting to the part of the Protective
Order here.
8 MR. KIRKPATRICK: It's not the Protective
9 Order. I'm asking were you born a male or female.
10 I'm not asking about any transition, I'm just asking

1276aa

11 about sex assigned at birth. Does that assist?
12 MR. PRICE: You can go ahead and answer.
13 A. I was assigned male at birth. 14 BY MR. KIRKPATRICK: 15 Q. What does that mean to be assigned
male at birth, or 16 any sex at birth? 17 When I say that, what your
understanding 18 is. 19 MR. PRICE: I really think we're getting 20 into the transition phase. I'm going to
object. I 21 mean I really think this is relating to the
transition 22 from male to female, and I think we are --
it really 23 does fall within the Protective Order. 24 MR. KIRKPATRICK: I don't believe it
does 25 fall in the Protective Order.
P50 1. Why don't we go off the record for a
minute 2 and maybe the attorneys can have a
conversation. 3 MR. PRICE: Okay. 4 (Off the record at 10:31 a.m.) 5 (Back on the record at 10:37 a.m.) 6 MR. KIRKPATRICK: Back on the record. 7 BY MR. KIRKPATRICK:
1287aa

8 Q. So as we fast forward or actually go back to August of
9 2007, you testified already that you worked at
10 R.G. & G.R. Funeral Home; right? 11 A. As of October 1st. 12 Q. I'm sorry. 13 A. 2007. 14 Q. You're right. October 1st, 2007. What
was your 15 position? 16 A. When I first started, I would basically
have been an 17 apprentice. 18 Q. So your job title was apprentice. Was
that similar to 19 the job title you had in the very first
funeral home 20 you worked at back in North Carolina? 21 A. Yes. 22 Q. And was it your understanding that at
some point you'd 23 get another job title such as funeral
director? 24 A. Yes. 25 Q. And how long did you work in that
role as apprentice?
P51 1. A. Six months. 2 Q. And after six months, were you then
promoted to 3 funeral director? 4 A. More or less, yes, because I got my
1298aa

license.

5 Q. Let's step back and talk about

the hiring process for

6 R.G. & G.R. Did you submit a resumé?

How did you go

7 about getting the position at R.G. & G.R.

Funeral

8 Home?

9 A. Yes, resumé was submitted.

10

MARKED FOR

IDENTIFICATION

11

D E P O S I T I O N

EXHIBIT 1

12

(Resumé)

13

10:39 a.m.

14 BY MR. KIRKPATRICK:

15 Q. Take a look at what's been marked

Exhibit 1.

16 Did you have a chance to review that?

17 A. Yes.

18 Q. Do you recognize that?

19 A. Yes.

20 Q. Would this be the resumé and cover

letter you

21 submitted to get the job at R.G. & G.R.

Funeral Homes?

22 A. Yes.

23 Q. You see the first page down there, it

says Anthony B.

24 Stephens. Is that your signature?

25 A. Yes.

P52 1. Q. And this resumé, you prepared

2209aa

this, I take it, to get 2 a job at a funeral home? 3 A. Yes. 4 Q. So you submitted a resumé. And what
happened next 5 that got you into a position to get
the job with 6 R.G. & G.R. Funeral Home? 7 A. Well, when I first dropped it off in
person, I was 8 told that there was nothing available. 9 Q. Okay. When you say you dropped it
off, who did you 10 drop it off to? 11 A. I dropped it off at the Livonia location. 12 Q. Do you recall who you gave your
resumé to? 13 A. Actually it went to Sue. 14 Q. Okay. Do you know if -15 A. I think she was the only one there at
the time. 16 Q. Do you know if this Sue is still
employed? 17 A. I have no idea. 18 Q. And then what happened next? 19 A. Mr. Rost called and said he'd like to
talk to me, that 20 he had a unique situation, that his son
Matt was going 21 to be going to California to participate in
some kind 22 of reality TV show. 23 Q. Just for the record, who is Mr. Rost? 24 A. He's sitting at the end of the table
2310aa

down there. 25 Q. Would that be Tom Rost?
P53 1. A. Yes. 2 Q. Is he the owner, as far as you know? 3 A. As far as I know. 4 Q. Of R.G. & G.R. Funeral Homes? 5 A. As far as I know. 6 Q. Do you know if he himself is a funeral
director? 7 A. Yes, he is. 8 Q. So he called you and said I need
somebody to work 9 here? 10 A. Yes. 11 Q. And then what was the next step,
what happened? 12 A. I went in and talked to him and to his
son Matt. Then 13 a few days later, I was called by Mr.
Cash and went 14 back and talked to him. 15 Q. Mr. Cash is who? 16 A. The manager at Livonia. 17 Q. So you had an interview with these
people, Mr. Cash? 18 A. Well, I would call it an interview with
him and Mr. 19 Rost. 20 Q. Mr. Rost too. I'm sorry. 21 And obviously you were hired? 22 A. Yes. 23 Q. And what do you recall of that
2321aa

conversation, what did 24 they tell you your job duties would be or
anything 25 like that?
P54 1. MR. PRICE: Objection. Which they
are you 2 referring to? Vague. 3 MR. KIRKPATRICK: That's fair enough. 4 BY MR. KIRKPATRICK: 5 Q. At this meeting -- you were
hired at some point; 6 correct? 7 A. Yes. 8 Q. At this interview or meeting, whatever
it was, did 9 they, being Mr. Rost and Mr. Cash,
discuss with you 10 what your job responsibilities were to be? 11 A. I don't recall, actually. 12 Q. Is it safe to assume, for lack of a better
term, that 13 you were going to be a funeral director? 14 A. Basically, yes. 15 Q. And they were comfortable enough
knowing that you 16 previously worked in the funeral
business? 17 A. That is -18 Q. You shook your head. It happens. So
yes? 19 A. Yes. 20 Q. And when did you start working
2332aa

there? How long after 21 this interview? 22 A. I actually started on October the 1st. 23 Q. And were you working in the Livonia
office? 24 A. For the majority of the time, yes,
because that's 25 where Matt was at.
P55 1. Q. And when you started working
there, what were your job 2 duties? Is it similar to what we've been
talking 3 about at all your funeral locations? 4 A. Yes. 5 Q. So you were doing the job as an
apprentice, which was 6 kind of everything you've already
described as a 7 funeral director. I take it you were
assisting in 8 embalmings? 9 A. Yes. 10 Q. You were assisting in casketing? 11 A. Yes. 12 Q. And removals? 13 A. Yes. 14 Q. And all the other duties you've already
previously 15 described? 16 A. Yes. 17 Q. Did they give you an employee
handbook or anything
2343aa

18 like that?

19 A. No.

20 Q. They never gave you an employee

handbook?

21 A. No, sir.

22

MARKED FOR

IDENTIFICATION:

23

D E P O S I T I O N

EXHIBIT 2

24

(Employee Manual)

25

10:44 a.m.

P90 1. Q. Is it fair to say you've been
involved with the
2 funeral business for nearly 30 years? 3 A. Yes. 4 Q. And I think you've testified at every
place there's 5 been some sort of dress code? 6 A. Yes. 7 Q. Why is there a need or why does the
funeral business, 8 why is there a dress code, if you know? 9 A. Well, I wouldn't think you'd want
somebody showing up 10 in shorts. 11 Q. Okay. 12 A. And a t-shirt for a funeral. 13 Q. Why not? 14 A. Doesn't look professional. 15 Q. Okay. So in your experience, the
industry standard is 16 to have professional clothing?

2354aa

17 A. Yes. 18 Q. Have you ever been in a situation
where they, they, 19 being a funeral home, have not followed
any kind of 20 professional clothing dress code? 21 A. Other than the ones I've mentioned,
no, but it was 22 still perceived. 23 Q. So there's an understanding of
presenting yourself, if 24 you work in the industry, in a
professional -25 A. Manner, yes.
P91 1. Q. Would the term conservative
clothing mean something in 2 the industry? If you understand what
I'm saying. I 3 could explain that if you need me to. 4 A. Please do. 5 Q. Well, I have what I would
consider more of a 6 conservative suit on, it's a dark suit,
you know, not 7 a very loud tie, at least I don't think it's
loud, and 8 shirt, whereas you may see people
where wild colors. 9 I say wild colors, they could be orange,
whatever, 10 things that might be offensive that still
might be a
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11 business suit. Does that make sense? 12 A. I suppose it does. But I put that in
non-professional 13 wear to begin with. 14 Q. I just want to make sure we're kind
of on the same 15 page with professional business attire. 16 So you wouldn't think that somebody
would 17 show up -- I could give you all kinds of
examples, but 18 I don't know if you'd even know what
I'm talking about 19 -- but crazy orange-colored tuxedo as an
appropriate 20 funeral business attire? 21 A. I wouldn't think so. 22 Q. Well, I just want to know if there's a
standard. 23 Now, did you get any training on that
or 24 classes on that or instruction during
your mortuary 25 science curriculum?
2376aa

P1 1. IN THE UNITED STATES DISTRICT
COURT
2 EASTERN DISTRICT OF MICHIGAN

3

SOUTHERN DIVISION

4 5 EQUAL EMPLOYMENT OPPORTUNITY
) 6 COMMISSION, ) 7 COMMISSION, ) 8 vs. ) Case No. 14-13710 9 R.G. & G.R. HARRIS FUNERAL ) Hon.
Sean F. Cox 10 HOMES, INC., ) United States 11 Defendants. ) District Court Judge 12 _____________________________) 13 14 30(B)(6) DEPOSITION OF THOMAS
ROST 15 PLYMOUTH, MICHIGAN 16 THURSDAY, NOVEMBER 12, 2015 17 18 19 20 21 22 23 24 REPORTED BY: QUENTINA R.
SNOWDEN, CSR NO. 5519 25 JOB NO.: 276003-A

2387aa

P2 1. 30(B)(6) DEPOSITION OF
THOMAS ROST, taken at 2 the offices of Joel J. Kirkpatrick, PC,
located 3 at 843 Penniman Avenue, Suite 201,
Plymouth, 4 Michigan on Thursday, November 12,
2015, at 9:30 5 a.m., before Quentina R. Snowden,
Certified Court 6 Reporter, in and for the State of Michigan. 7 8 APPEARANCES: 9 For the Plaintiff: 10 EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 11 BY: DALE R. PRICE, JR., ESQ. 12 MILES E. SHULTZ, ESQ. 13 477 Michigan Avenue 14 Room 865 15 Detroit, Michigan 48226-2552 16 (313) 226-7808 17 E-mail: dale.price@eeoc.gov 18 miles.shultz@eeoc.gov 19 20 21 22 23 24 25
2398aa

P3 1. APPEARANCES CONTINUED: 2 For the Defendant: 3 JOEL J. KIRKPATRICK, PC 4 BY: JOEL JAMES KIRKPATRICK, ESQ. 5 843 Penniman Avenue 6 Suite 201 7 Plymouth, Michigan 48170-1770 8 (734) 404-5710 9 E-mail: joel@joelkirkpatrick.com 10 11 For the Defendant: 12 SCHRAMECK LAW, PLLC 13 BY: JEFFREY T. SCHRAMECK, ESQ. 14 843 Penniman Avenue 15 Plymouth, Michigan 48170-1757 16 (734) 454-5400 17 E-mail: jeff@schramecklaw.com 18 19 ALLIANCE DEFENDING FREEDOM 20 BY: BRADLEY ABRAMSON, ESQ. 21 15100 North 90th Street 22 Scottsdale, Arizona 85260 23 (480) 444-0020 24 E-mail: babramson@adflegal.com 25

1. I N D E X 2 WITNESS: THOMAS ROST 3 EXAMINATION 4 BY: Mr. Price 5 EXAMINATION 6 BY: Mr. Kirkpatrick

P4
PAGE 05 132

3309aa

7 RE-EXAMINATION

8 BY: Mr. Price

140

9 (No further examination.)

10 E X H I B I T S

11 NUMBER

DESCRIPTION

PAGE

12 EX. NO. 1

DEFENDANT'S

12

ANSWERS TO

13

PLAINTIFF'S

AMENDED

COMPLAINT

14 EX. NO. 2

CHARGE OF

18

DISCRIMINATION

15 EX. NO. 3

RESPONSE TO

22

CHARGE OF

16

DISCRIMINATION

17 EX. NO. 4

ARTICLES OF

78

INCORPORATION

18 EX. NO. 5

MISSION

81

STATEMENT

19 EX. NO. 6

EMPLOYEE

103

MANUAL

20 EX. NO. 7

LETTER

109

21 (Exhibits attached.)

22

23

24

25

P5 1. PLYMOUTH, MICHIGAN;
THURSDAY, NOVEMBER 12, 2015
2 9:40 A.M. 3 -oOo4 Whereupon --

3410aa

5 THOMAS ROST, 6 having been first duly sworn to testify to
the 7 truth, the whole truth, and nothing but
the 8 truth, was examined and testified as
follows: 9 EXAMINATION 10 BY MR. PRICE: 11 Q Good morning. 12 A Good morning to you. 13 Q Yeah, my name is Dale Price, I'm an
attorney 14 with the Equal Employment Opportunity 15 Commission here in Detroit and we have
two 16 purposes here today. We'll do them in
order. 17 One, we're going to take your 18 30(b)(6) deposition, what's known as. We
sent 19 out a Notice with respect to that
designating 20 certain subjects upon which we wish to
have a 21 company representative brought forward
to 22 testify to. 23 And then secondly, we'll be doing a 24 deposition of you in your personal
capacity. 25 Hopefully there won't be a whole lot of
3421aa

P59

1. your concerns about continuing to

employ

2

Stephens. You have a deep belief in

that --

3

A Yes.

4

Q -- stemming presumably from

Genesis, correct?

5

A Yes.

6

Q Male and female, he created them?

7

A Yes.

8

Q Okay. So, men and women should

dress

9

accordingly in your opinion, right, men

should

10 dress as men and women should dress

as women;

11 is that one of your concerns with

Stephens?

12 A For employment at the funeral home,

yes.

13 Q Okay. Now, you indicated also that

one of the

14 concerns you had was that people be

protected

15 and safe in the grieving process, I

believe so.

16 How would continuing to employ

Stephens affect

17 that?

18 A Well, his employment there would be

looked upon

19 as -- well, a -- let me back up.

20 Let's see. Families come to us

3432aa

21 because they want an environment where they can
22 begin the grieving process and the healing
23 process and begin the experience of healing.
24 We’re there to meet their emotional, relational
25 and spiritual needs. They’re there with their

P60 1. family and friends in an environment
that they

2

don’t need some type of a distraction

that is

3

not appropriate for them and their

family that

4

they want to be involved in. And his

continued

5

employment would negate that.

6

Q So it’s your belief that continuing

employment

7

would have posed that kind of

distraction to

8

people who are coming to use your

services?

9

A Absolutely.

10 Q Okay. You never saw Stephens in

anything other

11 than a suit and tie, correct?

12 A That is correct.

13 Q Okay. So, you can’t speak as to how

Stephens

3443aa

14 would have presented – you never saw Stephens
15 present in female attire, correct? 16 A Correct. 17 Q Okay. So you don’t know how they
would have -18 how Stephens would have looked,
correct? 19 A I don’t know how he would have
looked, no. 20 Q Okay. So, but nevertheless, despite
that it 21 was your belief that it would have been
a 22 distraction? 23 A Yes. 24 Q Why would it be distracting for
Stephens to so 25 present?

P61

1.

A If he was dressed as a woman?

2

Q Yes.

3

A Well, just because I think common

sense is

4

going to tell you that most people

identify men

5

dressed a certain way in a funeral

home and

6

women as a certain way and I’ve yet to

see a

7

man dressed up as a woman that I

didn’t know

8

was not a man dressed up as a woman,

3454aa

so that

9

it’s very obvious.

10 Q So it’s your belief that there is no

way that

11 Anthony Stephens would be able to

present --

12 the person you knew as Anthony

Stephens would

13 be able to present in such a way that it

would

14 not be obvious that it was --

15 A That is correct.

16 Q Okay. And that’s based on your

personal

17 experience?

18 A Yes.

19 Q What – you said it would be kind of a

20 distraction, it would be disruptive for

the

21 process. How would you know that

someone who

22 is transgender and presenting would be

a

23 distraction or interruption –

24 MR. KIRKPATRICK: Objection, 25 foundation on what transgender is.

P75

1. [Text omitted.]

2

[Text omitted.]

3

[Text omitted.]

4

[Text omitted.]

5

·Q· ·Certainly nothing about

Stephens' manner of

3465aa

6

·dealing with families before you

received this

7

·letter raised any concern with you,

correct?

8

A· ·Correct.

9

·Q· ·Okay.· Stephens had been

solicitous of their

10 feelings. Stephens had blended in

well.

11 Stephens had, you know, been

courteous and

12 compassionate to the people, the

clients who

13 ·came into your facility, correct?

14 ·A· ·I would say so, yes.

15 ·Q· ·Do you have any reason to

believe that this

16 would have changed just because of

the outward

17 presentation in female clothing?

18 A· ·Don't know.

19 ·Q· ·Okay.·You don't know of

anything that would

20 have -- you can't speculate as to

whether

21 anything would have changed?

22 A· ·I don't know.

23 ·Q· ·Okay.·But certainly before that,

his manner

24 was completely appropriate and in --

25 A· ·It seemed to be, yes.

P76 1. Q It conformed with what your

3476aa

expectations --

2

A Yes.

3

Q – and hopes were for this what you

call a

4

ministry?

5

A Yes.

6

Q All right. Now, you’re talking

about

7

granddaughters and sisters and that

sort of

8

thing, are you talking about your

family

9

members coming in --

10 A No, I’m talking about families --

11 Q Oh, extended family members

coming in for

12 funerals?

13 A Yes.

14 Q Okay.

15 A Uh-huh. But specifically the

female part.

16 Q But you never got around to even –

there was

17 no discussion of bathrooms with

Stephens,

18 correct?

19 A No.

20 Q That never came up at all?

21 A No.

22 Q So the bathroom thing is really

hypothetical, I

23 mean, because you never even got to

that point?

24 A That’s true.

3487aa

25 Q Are there employee bathrooms as well as --
P107 1. [Text omitted.] 2 [Text omitted.] 3 [Text omitted.] 4 [Text omitted.] 5 Now, were -- you were involved in 6 the hiring of Stephens, correct? 7 A I was. 8 Q What role did you play? 9 A I believe, if I remember, he -- he just
came in 10 looking for a job. I don't think he came
in 11 from an advertisement. I don't
remember the 12 circumstances. But, I believe I was the 13 initial one that interviewed him. 14 Q Okay. And what job was this for? 15 A For a funeral director/embalmer, I
guess. 16 Q Did you check-out the resume and
references? 17 A Don't know. 18 Q Did you ever have any reason to
believe that 19 Stephens did not have the
certifications or 20 background to do the job? 21 A No. 22 Q In fact Stephens was able to perform
the jobs
3498aa

23 of a funeral director and embalmer, correct?
24 A He was. Uh-huh. 25 Q All right. Now, was there somebody
already
P108 1. working as a funeral director and
embalmer at 2 that time? 3 A Don't know. 4 (Mr. Schrameck exited the 5 conference room at 12:19 p.m.) 6 BY MR. PRICE: 7 Q Okay. What location was this? 8 A This is at the Garden City location. 9 (Jeffrey Schrameck entered the 10 conference room at 12:19 p.m.) 11 BY MR. PRICE: 12 Q All right. Do you recall whether or
not 13 Stephens replaced somebody at that
location? 14 A I don't recall. I don't know. 15 Q Is it possible? 16 A Oh sure, it's possible. 17 Q Okay. During your interview with
Mrs. 18 Dickinson, I believe you said that
Stephens 19 could do the job, correct? 20 A Yes. 21 Q All right. We've already talked
earlier about,
4409aa

22 you know, that Stephens showed sensitivity and
23 compassion to the clients who came in, correct?
24 A Yes. 25 Q Okay. And that there were no – is it
safe to
P109 1. say then that there were no
performance-related 2 reasons for termination of
employment? 3 A Not at that time, but we did have
some issues 4 beforehand. 5 Q But they didn't motivate the
decision to 6 terminate the employment, correct? 7 A No. No. 8 Q So performance was not the basis for
discharge? 9 A That's right. 10 [Text omitted.] 11 [Text omitted.] 12 [Text omitted.] 13 [Text omitted.] 14 [Text omitted.] 15 [Text omitted.] 16 [Text omitted.] 17 [Text omitted.] 18 [Text omitted.] 19 [Text omitted.] 20 [Text omitted.]
4510aa

21 [Text omitted.] 22 [Text omitted.] 23 [Text omitted.] 24 [Text omitted.] 25 [Text omitted.]
4521aa

P1

1. IN THE UNITED STATES DISTRICT

COURT

2 EASTERN DISTRICT OF MICHIGAN

3

SOUTHERN DIVISION

4

5 EQUAL EMPLOYMENT

OPPORTUNITY )

6 COMMISSION, ) 7 Plaintiff, ) 8 vs. ) Case No. 14-13710 9 R.G. & G.R. HARRIS FUNERAL ) Hon.
Sean F. Cox 10 HOMES, INC., ) United States 11 Defendants. ) District Court Judge 12 _____________________________) 13 14 DEPOSITION OF THOMAS ROST

15

PLYMOUTH, MICHIGAN

16 THURSDAY, NOVEMBER 12, 2015 17 18 19 20 21 22 23 24 REPORTED BY: QUENTINA R.
SNOWDEN, CSR NO. 5519 25 JOB NO.: 276003-B

4532aa

P2 1. DEPOSITION OF THOMAS ROST,
taken at the 2 offices of Joel J. Kirkpatrick, PC, located
at 3 843 Penniman Avenue, Suite 201,
Plymouth, 4 Michigan on Thursday, November 12,
2015, at 2:14 5 p.m., before Quentina R. Snowden,
Certified Court 6 Reporter, in and for the State of Michigan. 7 8 APPEARANCES: 9 For the Plaintiff: 10 EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 11 BY: DALE R. PRICE, JR., ESQ. 12 MILES E. SHULTZ, ESQ. 13 477 Michigan Avenue 14 Room 865 15 Detroit, Michigan 48226-2552 16 (313) 226-7808 17 E-mail: dale.price@eeoc.gov 18 miles.shultz@eeoc.gov 19 20 21 22 23 24 25
4543aa

P3 1. APPEARANCES CONTINUED: 2 For the Defendant: 3 JOEL J. KIRKPATRICK, PC 4 BY: JOEL JAMES KIRKPATRICK, ESQ. 5 843 Penniman Avenue 6 Suite 201 7 Plymouth, Michigan 48170-1770 8 (734) 404-5710 9 E-mail: joel@joelkirkpatrick.com 10 11 SCHRAMECK LAW, PLLC 12 BY: JEFFREY T. SCHRAMECK, ESQ. 13 843 Penniman Avenue 14 Plymouth, Michigan 48170-1757 15 (734) 454-5400 16 E-mail: jeff@schramecklaw.com 17 18 ALLIANCE DEFENDING FREEDOM 19 BY: BRADLEY ABRAMSON, ESQ. 20 15100 North 90th Street 21 Scottsdale, Arizona 85260 22 (480) 444-0020 23 E-mail: babramson@adflegal.com 24 25

1. I N D E X 2 WITNESS: THOMAS ROST 3 EXAMINATION 4 BY: Mr. Price 5 EXAMINATION 6 BY: Mr. Kirkpatrick

P4
PAGE 05 46

4554aa

7 RE-EXAMINATION

8 BY: Mr. Price

9 (No further examination.)

10 E X H I B I T S

11 NUMBER DESCRIPTION

12 EX. NO. 8 EMPLOYEE

CLOTHING

ALLOWANCE

13

LIST

14 EX. NO. 9 2012-2014

FINANCIAL

DATA

15 (Exhibits attached.)

16

17

18

19

20

21

22

23

24

25

50 PAGE 17
36

P13 1. Do you know who updated it the
last
2 time it was done? 3 A Do not know. 4 Q Okay. Now, with respect to -- we
talked about 5 a dress code and I'll get back to
that in a 6 little bit, but there is a clothing

4565aa

allowance 7 policy at R.G. G.R. Harris, correct? 8 A Well, not for men. No, because we
give them 9 the suits. 10 Q Okay. 11 A They don't buy -- we by the suits. We
tell 12 them what to wear. 13 Q Okay. So the men are told what to
wear? 14 A And we give it to them, we provide it. 15 Q Okay. Where do you get this -- what
are the 16 men given? 17 A This is what they're given right here. 18 Q So it's a blue -19 A It's a blue striped shirt and they get a
tie. 20 Q Blue striped suit and tie? 21 A Yeah. 22 Q Where do you get the suits from? 23 A A place on 12 Mile and Middlebelt
called Sam 24 Michael's. 25 Q And how often are suits issued to the
male
P14 1. employees? 2 A Well, it's different for -- let's say -- I get 3 suits, we'll say, like every three or four 4 years because I'm not very hard, but I
have
4576aa

5 some people that are -- they're like animals,
6 you know, they're -7 Q They wear their suits out? 8 A They wear their suits out, so they
require -9 Q Okay. So you get -- how many suits are
issued 10 at hire? 11 A Well, for a full-time person, he gets
two. For 12 a part-time person he gets one. 13 Q So a full-time male employee gets one -
- or two 14 suits? 15 A Right. 16 Q And two ties? 17 A And two ties. 18 Q Okay. And the part-time gets one? 19 A One, right. 20 Q And then as they wear out they're
replaced, is 21 that correct? 22 A Well, it's like every couple years
normally. 23 Q Every two years? 24 A Yeah. But sometimes people have an
emergency 25 or something.
P15 1. Q But generally speaking every
two years? 2 A Two or three years, yeah.
4587aa

3 Q Okay. Now, how much does a suit cost you?
4 A I'm going to say about 225. 5 Q And how much does a tie cost? 6 A Ten bucks. 7 Q Do you get the ties from the same
place? 8 A Yep. 9 Q Are they ordered all at once or just
kind of -10 A No. 11 Q Just periodically? 12 A No. We used to do that, but we don't
anymore, 13 no. 14 Q When did that cease to happen? 15 A Oh, probably 20 years ago. 16 Q Okay. With respect to female
employees, what 17 do they get? 18 A They get a little allowance. 19 Q Okay. And how is the allowance, how
is it 20 doled out? 21 A They get a check. 22 Q Annually? 23 A They get it annually. 24 Q Okay. How much -- how is it
determined how 25 much a female employee will get?
P16 1. A A female gets 150 bucks --
dollars, and a
4598aa

2 part-time gets 75. 3 Q So full-time gets 150 and part-time 75? 4 A Right. 5 Q And who -- how is that
calculated; who sets how 6 much the men and woman are going to be
getting? 7 Let's go back to the women. Who
determines -8 how is it set that women would get 150 if 9 they're full-time and 75 for part-time? 10 A I guess I set it. Yeah. 11 Q Okay. How long has that been the
case? 12 A A few years. 13 Q Do you know how -- was it stretching
back 14 before Stephens was employed? 15 A Just about the same time. 16 (Mr. Schrameck entered the 17 conference room at 2:28 p.m.) 18 BY MR. PRICE: 19 Q Okay. That's when women would get
150 and 75? 20 A Yeah. 21 Q All right. Was it different before then? 22 A No, they -- they didn't get anything
before. 23 MR. PRICE: Okay. Now we were 24 given -- have the following marked as
Exhibit 8 25 here. Am I correct on that?
5509aa

P22 1. Q Let's double check. 2 MR. KIRKPATRICK: Here it is. 3 THE WITNESS: Okay. So he signs 4 both names. Okay. 5 BY MR. PRICE: 6 Q Okay. So, was there any confusion on
your end 7 as to who was bringing this charge? 8 A Either Anthony or Aimee Stephens. 9 Q It would have been the same person,
though -10 A Would be the same person. 11 Q -- the person you knew as Anthony
Stephens was 12 filing it, right? 13 A Yes. 14 Q There's no question as to that? 15 A That's true. 16 Q Now, did you -- okay, I apologize. Did
you see 17 it before it went out or not? 18 A Did I see? 19 Q The position statement? 20 A Yes. 21 Q Okay. 22 A Correct. 23 Q Did you recommend any changes to it,
that you 24 can remember? 25 I don't believe so.
P23 1. Q Okay. Does it fairly reflect your
5610aa

views as to 2 the case and the position of the company? 3 A Yes. Yes. Uh-huh. 4 Q Were you uncomfortable with the fact
that the 5 name Aimee Stephens was being
used in the 6 charge? 7 A I'm uncomfortable with the name
because he's a 8 man. 9 Q Okay. And you wanted to keep
referring to 10 Stephens as Anthony Stephens, correct? 11 A That's who the employee was. 12 Q I'm sorry, the employee? 13 A Yeah. He was the employee. 14 Q Okay. And we have already talked a
little bit 15 about the fact it doesn't talk about
religious 16 freedom or free exercises and it was that
-- it 17 was your belief that you didn't have to
raise 18 this at this point? 19 A Yes. 20 Q Okay. Have you ever disciplined
anyone for a 21 violation of the dress code? 22 A No. I wouldn't say discipline, no. 23 Q Okay. Have you ever counseled
somebody that 24 they're -- they weren't adhering to the
5621aa

dress 25 code?
P24 1. A We have done that. 2 Q Okay. How recently? 3 A It hasn't been very recent. 4 Q Okay. What was the issue? 5 A Hard to say. It might be a
woman, possibly, on 6 her dress, or -- pretty hard for a man
since we 7 dress them. 8 Q Okay. What is the woman's dress code,
what do 9 they have to wear? 10 A Well, they wear a skirt and usually a
jacket. 11 Q Okay. 12 A A professional-looking suit. 13 Q Okay. What about pants, no pants? 14 A No pants. 15 Q Why is that? 16 A I guess I'm just old-fashioned and I
believe 17 this is a funeral home and there's a
certain 18 tradition that we want to keep there. We 19 want -- and I think the consumer out
there, 20 families believe that they -- a male
should 21 look like a particular individual, like a
man,
5632aa

22 and a woman should look like a woman. And
23 dress accordingly. 24 Q And you think so as well? 25 A And I think so as well.
P49 1. Q Okay. Thanks. Now, Mr. Price
asked you about 2 what would happen and the speculation
of 3 perhaps a customer may have seen
Stephens after 4 work, let's say, outside of the funeral
home 5 wearing a dress or presenting as a
woman and 6 they might be upset what you might do,
correct, 7 do you remember that? 8 A Yes. 9 Q I think you said you would be
uncomfortable, 10 right? 11 A I would be uncomfortable. 12 Q Would you fire him for that? 13 A Probably not, but I would ask him
some 14 questions. 15 Q Okay. How about if a customer maybe
saw 16 another employee outside of the funeral
home on 17 their own time carrying a -- several
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18 pornographic videotapes, would that make you
19 uncomfortable? 20 A Make me uncomfortable, but I wouldn't
fire 21 them. 22 Q Okay. Why do you have a dress code? 23 A Well, we have a dress code because it
allows us 24 to make sure that our staff is -- is dressed
in 25 a professional manner that's acceptable
to the
P50 1. families that we serve, and that is
understood 2 by the community at-large what these 3 individuals would look like. 4 Q Is that based on the specific profession
that 5 you're in? 6 A It is. 7 Q And again, tell us why it fits into the 8 specific profession that you're in that you 9 have a dress code? 10 A Well, it's just the funeral profession in 11 general, if you went to all funeral homes, 12 would have pretty much the same look.
Men 13 would be in a dark suit, white shirt and a
tie 14 and women would be appropriately
attired in a
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15 professional manner. 16 Q And why do you provide suits to your
funeral 17 directors? 18 A Well, because we want them all
dressed exactly 19 the same. We want them to look the
same. 20 Q Is it to comply with the dress code? 21 A It is to comply with the dress code, yes. 22 MR. KIRKPATRICK: That's it, guys. 23 MR. PRICE: Okay. 24 RE-EXAMINATION 25 BY MR. PRICE:
P51 1. Q It's not just the funeral directors
that gets 2 suits, though, it's the funeral director 3 assistants, correct? 4 A That's what -- yes, the men's, yes. 5 Q Okay. 6 A Yeah, because they're -- to the
consumer they 7 think they're funeral directors, I mean,
any 8 male person. 9 Q Okay. Now, have you been to funeral
homes 10 where there have been women wearing 11 businesslike pants before? 12 A I believe I have. 13 Q Okay. So, the fact that you require
women to
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14 wear skirts is something that you prefer, it's
15 not necessarily an industry requirement? 16 A That's correct. 17 Q Okay. But women could look
businesslike and 18 appropriate in pants, correct? 19 A They could. 20 Q Okay. Now you were asked about what
if a 21 customer had seen Stephens in this
hypothetical 22 about, you know, Stephens only
presented as 23 female outside of work, if that person had
said 24 that they were not going to come back --
they 25 were not going to use the services of the
P52 1. Harris Funeral Homes what would
you have done? 2 A Don't know. 3 Q Okay. But that would have been a
factor to 4 consider in how you addressed Stephens' 5 situation in that case, correct? 6 A It probably would have been. 7 Q And it could have been reason to let
Stephens 8 go if -9 A Perhaps, yes. 10 Q Okay. Now, you were asked about 3
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and it's 11 true this was -- letter was drafted by Mr. 12 Kirkpatrick, but you hired him to
represent 13 you? 14 A That is true. 15 Q You hired him to represent Harris in
defense 16 against this charge? 17 A Yes. 18 Q Okay. And if you had any questions
about what 19 was in the letter, you certainly were 20 encouraged to ask questions; is that the
case? 21 A Yes. 22 Q Did you choose to ask any questions? 23 A Do not know. 24 Q You do not recall? 25 A I do not recall.
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P1 1. IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT
OF MICHIGAN

2

SOUTHERN DIVISION

3

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

4

Plaintiff,

5

-vs-

No. 2:14-cv-

13740

6

R.G. & G.R. HARRIS FUNERAL

7 HOMES INC., 8
Defendants.
9 DEPOSITION OF 10 WITNESS: DAVID CASH

11 LOCATION: Joel Kirkpatrick, PC

12 843 Penniman Avenue, Suite 201

Plymouth, Michigan 48170

13 DATE: Friday, January 22, 2016

14

9:29 a.m.

15 APPEARANCES:

16 FOR PLAINTIFF: EQUAL

EMPLOYMENT OPPORTUNITY

COMMISSION

17 477 Michigan Avenue, Room 865

Detroit, Michigan 48226

18 313.226.7808

dale.price@eeoc.gov

19 miles.shultz@eeoc.gov

5698aa

BY: DALE R. PRICE, JR. (P55578) 20 MILES E. SHULTZ (P73555)
KATIE LINEHAN (P77974) 21 FOR DEFENDANT: JOEL J.
KIRKPATRICK, PC 22 843 Penniman Avenue, Suite 201
Plymouth, Michigan 48170 23 734.404.5170
joel@joelkirkpatrick.com 24 BY: JOEL J. KIRKPATRICK (P62851) 25 REPORTED BY: Laurel A. Jacoby, CSR-
5059, RPR Job no. 285887-A

P2

1.

INDEX

2 Witness: David Cash

PAGE NO.

3 Examination by Mr. Price 3

4 Examination by Mr.

54

Kirkpatrick

5 Re-examination by

57

Mr. Price

6

7

8

9

10

11

12

INDEX EXHIBIT

13 EXHIBIT NO. DESCRIPTION PAGE

NO.

14

15

16

(No exhibits were marked.)

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17

- - -

18

19

20

21

22

23

24

25

P3

1. Plymouth, Michigan

2 January 22, 2016

3 9:29 a.m.

4

- - -

5 - DAVID CASH-

6 called as a witness, being first duly sworn,

was

7 examined and testified as follows:

8

EXAMINATION

9 BY MR. PRICE:

10 Q. Gooding morning, Mr. Cash.

11 A. Good morning.

12 Q. My name is Dale Price. We just

introduced

13 ourselves a minute ago. I'm an attorney

with the

14 Equal Opportunity Employment

Commission in

15 Detroit, and we're here today for your

16 deposition.

17 Have you ever given testimony before?

18 A. Never.

19 Q. Okay. What's going to happen is I'm

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going to ask 20 you a series of questions about what you
do or do 21 not know about the circumstances
underlying this 22 lawsuit. 23 If you understand my answers -- excuse 24 me -- if you do not understand my
question, 25 please ask me and I'll try to rephrase. I'm
the
P31 1. ·with funerals at Livonia? 2 A.· · He would help in the parking lot
lining up cars. 3 He would help in the dismissal of the
funeral, 4 opening doors, generally whatever
needed to be 5 ·done as we do working a funeral. 6 ·Q.· · Can you think about anything else
specifically 7 besides helping out in the parking lot and 8 dismissals of the families and friends? 9 ·A.· · No. 10 ·Q.· · Now, you would come over to -- you
said you would 11 come over to Garden City.· You would be
helping 12 with funerals there? 13 ·A.· · Well, as a manager, all of us
managers cover for 14 ·each other on our days off.· So if the
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manager at 15 Garden City was off I would come there
and make 16 ·funeral arrangements or direct a
funeral.
17 ·Q.· · Do you recall how often you would be covering at
18 ·Garden City while Stephens was employed?
19 ·A.· · Once or twice a week. 20 ·Q.· · So you would have fairly regular
contact with 21 ·Stephens, then; is it safe to say? 22 ·A.· · Yes.
23 ·Q.· · What did you ever see -- obviously, then you
24 would have a chance to see Stephens work as an
25 ·embalmer and director, correct?

Line

P32

1.

A.· · Yes.

2

Q.· · How would you describe Stephens'

performance in

3

·that role that you observed?

4

·A.· · He was a very good embalmer.·

He was very, very

5

·thorough.· Had obviously had a

lot of practice

6

·prior to coming to the Harris Funeral

Home.

7

·Families seemed very pleased with his

work.· He

8

did a good job.

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9

(A pause was had in the proceedings.)

10 ·BY MR. PRICE:

11 ·Q.· · All right.· Back on.· At some point

did you

12 ·become aware of Stephens

communicating to people

13 ·at R.G. & G.R. that she had intended

to present

14 · ·as female and not as a male?

15 ·A.· · I did hear rumors, yes.

16 ·Q.· · Okay.· Now, was this before

Stephens was fired?

17 ·A.· · Yes.

18 Q.· · Okay.· What did you hear?

19 ·A.· · I had heard that he was

beginning the process of

20 changing, whatever that includes,

hormones or

21 ·whatever.

22 ·Q.· · Whatever is involved in that

process?

23 ·A.· · Whatever is included.

24 ·Q.· · Sure.

25 ·A.· · Right.

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Equal Employment Opportunity Commission,
Plaintiff,
v.
R.G. & G.R. Harris Funeral Homes, Inc.,
Defendant.

Civil Action No. 2:14-cv-14-13710
Hon. Sean F. Cox

DEFENDANT R.G. & G.R. HARRIS FUNERAL HOMES, INC.’S STATEMENT OF MATERIALS
FACTS NOT IN DISPUTE
Defendant R.G. & G.R. Harris Funeral Homes, Inc. (hereinafter “R.G.”) asserts that the following material facts are not in dispute in this case and support its Motion for Summary Judgment.
R.G.’s History and General Operations
1. R.G. is a closely held for-profit corporation owned and operated by Thomas Rost (hereinafter “Rost”). (T. Rost 30(b)(6) Dep. 28:10-15 (Ex. 4)).
2. R.G. has been in business since 1910. (T. Rost 30(b)(6) Dep. 79:19-80:9 (Ex. 4)).

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3. Tom Harris, Rost’s uncle, was the previous president of R.G. (T. Rost 30(b)(6) Dep. 78:10-13 (Ex. 4)).

4. R.G. has three locations: Detroit, Livonia, and Garden City. (Kish Dep. 33:24-34:3 (Ex. 5)).

5. The company averages around thirty funerals a month. (T. Rost Dep. 43:3-16 (Ex. 3)).

6. Preferred

Funeral

Directors

International gave R.G. the Parker award in 2011 for

demonstrating exemplary service. (T. Rost Aff. ¶ 5

(Ex. 1)).

7. R.G.’s Livonia location was recognized as best hometown funeral home of the year in 2016 by Livonia residents in a survey by Friday Musings newspaper. (T. Rost Aff. ¶ 6 (Ex. 1)).

Rost’s Experience and Role at R.G.
8. Rost owns 94.5% of R.G., and the remaining 5.5% is split between his two children. (T. Rost 30(b)(6) Dep. 26:20-28:25 (Ex. 4)).
9. Rost has been the owner of R.G. for over thirty years. (T. Rost 30(b)(6) Dep. 28:10-15 (Ex. 4); T. Rost Aff. ¶ 2 (Ex. 1)).
10. Rost has been the president of R.G. for thirty-five years and is the sole officer of the corporation. (T. Rost 30(b)(6) Dep. 78:2-9 (Ex. 4)).
11. Rost received a mortuary science degree from Wayne State in 1967, and a Bachelor of Science in Business from Wayne State in 1968. (T. Rost Dep. 7:9-23 (Ex. 3)).

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12. Rost has served thousands of grieving families and arranged thousands of funerals during the time that he has operated R.G. (T. Rost Aff. ¶ 3 (Ex. 1)).
13. Rost served as the President of Preferred Funeral Directors International in 1992. (T. Rost Aff. ¶ 4 (Ex. 1)).
14. Rost or his location-managers handle the hiring for R.G. (T. Rost 30(b)(6) Dep. 53:19-20 (Ex. 4)). Rost personally oversees the hiring and discipline of funeral director embalmers. (Crawford Dep. 11:11-23 (Ex. 6)).
15. R.G. has never before been subject to a charge by the EEOC or Michigan Department of Civil Rights. (T. Rost 30(b)(6) Dep. 19:11-18 (Ex. 4)).
16. Rost has never previously been subject to allegations of discrimination in the workplace. (T. Rost Dep. 11:24-12:1 (Ex. 3)).
R.G.’s and Rost’s Religious Beliefs 17. Rost has been a Christian for over sixtyfive years. (T. Rost 30(b)(6) Dep. 30:13-22 (Ex. 4)). He attends both Highland Park Baptist Church and Oak Pointe Church. (T. Rost 30(b)(6) Dep. 29:20-30:3 (Ex. 4)). 18. For a time, Rost was on the deacon board at Highland Park Baptist Church. (T. Rost Dep. 10:2-11 (Ex. 3)). 19. Rost is on the board of the Detroit Salvation Army, a Christian nonprofit ministry, and has been for 15 years; he was the former Chair of the advisory board. (T. Rost Dep. 8:21-9:17 (Ex. 3)).
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20. Rost’s faith informs the way he operates his business, and he “practice[s] [his] faith through [his] businesses.” (T. Rost 30(b)(6) Dep. 86:20-22, 87:3-24 (Ex. 4); T. Rost Aff. ¶¶ 7, 10 (Ex. 1)).
21. R.G.’s mission statement is published on its website (T. Rost 30(b)(6) Dep. 80:20-81:3 (Ex. 4)), which reads: “R.G. & G.R. Harris Funeral Homes recognize that its highest priority is to honor God in all that we do as a company and as individuals. With respect, dignity, and personal attention, our team of caring professionals strive to exceed expectations, offering options and assistance designed to facilitate healing and wholeness in serving the personal needs of family and friends as they experience a loss of life.” (R.G. Webpage (Ex. 15)).
22. The R.G. website also contains a Scripture verse at the bottom of the mission statement page. (R.G. Webpage (Ex. 15)).
23. Rost ensures that all R.G.’s customers have access to spiritual guidance by placing throughout his funeral homes Christian devotional booklets called “Our Daily Bread” and small cards with Bible verses on them called “Jesus Cards,” and by making a Bible available to visitors at all of his funeral homes. (T. Rost 30(b)(6) Dep. 39:23-40:17 (Ex. 4); Nemeth Dep. 27:13-28:2 (Ex. 7); Cash Dep. 47:17-24 (Ex. 8); Kowalewski Dep. 31:17-32:21, 33:522 (Ex. 9); M. Rost Dep. 28:20-29:19 (Ex. 10); Peterson Dep. 28:18-30:12 (Ex. 11)).
24. Rost leads prayer at R.G. business meetings and corporate events. (Kowalewski Dep. 60:13-61:18 (Ex. 9); M. Rost Dep. 27:6-15 (Ex. 10)).
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25. Funerals are events of deep spiritual significance for many people. (T. Rost Aff. ¶¶ 10, 20, 26, 30 (Ex. 1); EEOC Deliberative After Action Memo at EEOC002785 (Ex. 23); EEOC T. Rost Aff. ¶ 11 (Ex. 16); T. Rost 30(b)(6) Dep. 32:3-13 (Ex. 4)).
26. Having worked at R.G. for over twentyfive years, Livonia location-manager David Cash believes it is a Christian business based on the mission statement, the Bible verse on the website, and his knowledge that Rost has been “affiliated with the church over the years.” (Cash Dep. 8:25-9:25, 46:5-18 (Ex. 8); Kish Dep. 35:14-15 (Ex. 5)).
27. Garden City location-manager David Kowalewski considers R.G. to be a Christian business. (Kowalewski Dep. 29:8-10 (Ex. 9); Kish Dep. 35:14-18 (Ex. 5)).
28. Rost sincerely believes that the Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex. (T. Rost Aff. ¶¶ 41-42, 44 (Ex. 1)).
29. Rost sincerely believes that he would be violating God’s commands if he were to pay for or otherwise permit one of R.G.’s funeral directors to wear the uniform for members of the opposite sex while at work. (T. Rost Aff. ¶¶ 43-46 (Ex. 1)).
R.G.’s Ministry to the Grieving 30. Rost operates R.G. as a ministry to serve grieving families while they endure some of the most difficult and trying times in their lives. (T. Rost 30(b)(6) Dep. 86:2-19 (Ex. 4); T. Rost Aff. ¶ 7 (Ex. 1)).
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31. Rost sincerely believes that God has called him to serve grieving people. He sincerely believes that his purpose in life is to minister to the grieving, and his religious faith compels him to do that important work. (T. Rost Aff. ¶ 10 (Ex. 1); T. Rost 30(b)(6) Dep. 86:2-19 (Ex. 4)).
32. Rost describes R.G.’s ministry as one of healing—to help families on the “worst day of their lives” by “meet[ing] their emotional, relational and spiritual needs . . . in a religious way.” (T. Rost 30(b)(6) Dep. 86:2-19 (Ex. 4)).
33. R.G. strives to meet clients’ emotional, relational, and spiritual needs by training staff in grief management and maintaining strict codes of conduct and decorum at all times so that grieving clients have a place free of distractions to grieve and heal. (T. Rost Aff. ¶ 8 (Ex. 1)).
34. Part of R.G.’s ministry is performing religious rites, customs, and rituals for families. (T. Rost 30(b)(6) Dep. 32:3-13 (Ex. 4)).
Charging Party Stephens’s Employment at R.G.
35. Charging Party Stephens (hereinafter “Stephens”) started at R.G. on October 1, 2007 as an apprentice. (Stephens Dep. 50:8-17 (Ex. 14)).
36. After completing the apprenticeship, Stephens was hired as funeral director embalmer. (Stephens Dep. 50:18-51:4 (Ex. 14); Crawford Dep. 16:1-3 (Ex. 6)).
37. Funeral director embalmers’ duties include body removal; embalming; dressing, cosmetizing, and casketing bodies; and conducting visitations and funerals. (Stephens Dep. 22:14-24:14
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(Ex. 14); Kowalewski Dep. 69:20-70:11, 70:21-24 (Ex. 9); T. Rost Aff. ¶¶ 14-15, 24-31 (Ex. 1)).
38. Funeral director embalmers often meet and interact with grieving families. (Shaffer Dep. 48:23-49:14, 53:4-54:16 (Ex. 12); T. Rost Aff. ¶¶ 14-31 (Ex. 1); EEOC T. Rost Aff. ¶¶13-14 (Ex. 16); EEOC Kish Aff. ¶ 15 (Ex. 17)).
39. Funeral director embalmers are sometimes responsible for meeting with families to set up funeral arrangements (Cash Dep. 27:13-28:9 (Ex. 8); T. Rost Aff. ¶¶ 16-17, 24-25 (Ex. 1)), and for directing funeral ceremonies. (Cash Dep. 28:10-22 (Ex. 8); T. Rost Aff. ¶¶ 28-31 (Ex. 1)).
40. Funeral arrangements involve “meeting with the family, gathering information necessary for death certificates, newspaper notices, making arrangements for services, be it in the funeral home or the church of the family’s choice, arranging for visitations if that’s something the family has chosen.” (Crawford Dep. 14:8-18 (Ex. 6)).
41. Funeral directors are R.G.’s most prominent public representatives. (EEOC T. Rost Aff. ¶¶ 13-14, EEOC 002761 (Ex. 16); T. Rost Aff. ¶ 32 (Ex. 1); EEOC Kish Aff. ¶ 15 (Ex. 17)). They are the face that R.G. presents to the world. (T. Rost Aff. ¶ 32 (Ex. 1)).
42. “A funeral director is one whose profession is assisting surviving families and friends with the planning and carrying out of all aspects of caring for a decedent and the decedent’s family, including removal of remains, embalming and cremation, making funeral and memorial arrangements, making sure funerals and memorial
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services are carried out in accordance with the decedents’ and survivors’ desires, and assisting survivors through the emotional distress that accompanies the loss of a loved one.” (Def.’s Resp. to Pl.’s First Set of Discovery at Interrogatory No. 6 (Ex. 27)).
43. R.G. requires that “Funeral Directors— in both appearance and behavior—must perform their professional duties without drawing undue attention to themselves or causing the survivors any more stress than absolutely necessary. Indeed, the Funeral Director’s job is, to the extent possible, to lessen and protect the survivors from unnecessary stress.” (Def.’s Resp. to Pl.’s First Set of Discovery at Interrogatory No. 6 (Ex. 27)).
44. Stephens’s duties at R.G. included “embalming, cosmetizing, casketing, [and] dressing” the bodies of the decedents, facilitating the family and public viewings, and taking the bodies from the families into R.G.’s custody. (Stephens Dep. 66:4-17 (Ex. 14); T. Rost Aff. ¶¶ 14-31 (Ex. 1)).
45. Stephens’s duties included contact and interaction with the decedents’ family members (Stephens Dep. 66:18-20 (Ex. 14); T. Rost Aff. ¶¶ 1431 (Ex. 1)), and at times involved meeting with families to set up funeral arrangements and directing funeral ceremonies. (Cash Dep. 27:13-28:22 (Ex. 8); T. Rost Aff. ¶¶ 16-31 (Ex. 1)).
46. When hired at R.G., Stephens’s immediate supervisor was David Cash. Rost would make rounds to the different locations every day, but was not at Stephens’s location full time. (Stephens Dep. 56:14-57:6 (Ex. 14)).
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47. David Cash was Stephens’s supervisor only for six months before Stephens moved to the Garden City location where George Crawford was the manager. (Stephens Dep. 58:3-17 (Ex. 14)).
48. Within six months prior to Stephens’s final day at R.G., Stephens had been reprimanded for job performance issues such as a bad attitude and insubordination. The situation had become so bad that Stephens’s immediate supervisor asked Rost to fire Stephens. Rost talked with Stephens about the issue. (EEOC T. Rost Aff. ¶ 18, EEOC002762 (Ex. 16); EEOC Crawford Aff. ¶¶ 23, 25, EEOC002772-74 (Ex. 18)).
R.G.’s Dress Code 49. R.G.’s handbook outlines a general dress code for men requiring that they wear dark suits with nothing in the jacket pockets, white shirts, ties, dark socks, dark polished shoes, dark gloves, and only small pins. (R.G. & G.R. Harris Funeral Home Employee Manual, EEOC002717-19 (Ex. 19)). 50. R.G.’s handbook outlines a general dress code for women requiring “a suit or a plain conservative dress” in muted colors. (R.G. & G.R. Harris Funeral Home Employee Manual, EEOC002717-19 (Ex. 19)). 51. Apart from the handbook, R.G. employees understand that men who interact with the public are to wear suits and ties, and that women who interact with the public are to wear skirts and business jackets. (Peterson Dep. 30:24-31:25, 32:3-8 (Ex. 11); Kish Dep. 17:8-16, 58:5-11 (Ex. 5); Shaffer Dep. 52:12-22 (Ex. 12); Cash Dep. 23:1-4 (Ex. 8);
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Kowalewski Dep. 22:10-15 (Ex. 9); McKie Dep. 22:2225 (Ex. 13); M. Rost Dep. 14:9-19 (Ex. 10)).
52. R.G. administers its dress code based on its employees’ biological sex. (T. Rost Aff. ¶ 35 (Ex. 1)).
53. R.G.’s employees understand that the dress code for funeral directors is to wear companyprovided suits. (Kish Dep. 17:8-22 (Ex. 5); Crawford Dep. 18:3-11 (Ex. 6)).
54. R.G.’s dress code is consistent with the standard for the industry. (T. Rost 30(b)(6) Dep. 57:20-58:6 (Ex. 4) (stating that R.G.’s “dress code conforms to what is acceptable attire in a professional manner for the services that [R.G.] provide[s]”); T. Rost Dep. 49:22-50:15 (Ex. 3) (stating that the dress code ensures that R.G.’s “staff is . . . dressed in a professional manner that’s acceptable to the families that [R.G.] serve[s]”)).
55. Maintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process. (T. Rost Aff. ¶ 34 (Ex. 1); T. Rost Dep. 49:22-50:21 (Ex. 3); T. Rost 30(b)(6) Dep. 59:1360:5 (Ex. 4); Kish Dep. 63:19-64:7 (Ex. 5)).
56. R.G.’s dress code ensures that R.G. does not violate Rost’s religious belief that a person’s sex (whether male or female) is an immutable God-given gift or his religious belief that R.G. cannot pay for or otherwise permit one of its funeral directors to wear the uniform for members of the opposite sex while at work. (T. Rost Aff. ¶¶ 41-46 (Ex. 1); T. Rost 30(b)(6) Dep. 57:20-59:12, 69:12-24 (Ex. 4)).
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57. Stephens has been involved in the funeral industry for nearly 30 years, and every place Stephens has worked has had a dress code. (Stephens Dep. 90:1-6 (Ex. 14)).
58. Stephens agrees that the industry standard is to dress professionally because of the grieving process. (Stephens Dep. 90:7-25, 91:22-92:9 (Ex. 14)).
59. Stephens agrees that R.G. is entitled under industry standards to require a sex-specific dress code for its employees. (Stephens Dep. 90:7-25, 91:22-92:9, 102:19-103:14, 118:19-25 (Ex. 14)).
60. Employees have been disciplined in the past for failing to abide by R.G.’s dress code. (Kish Dep. 54:1-16, 68:22-69:8 (Ex. 5); M. Rost Dep. 37:2239:6 (Ex. 10)).
Stephens’s Sex 61. Stephens’s assigned sex at birth was male. Stephens’s legal name was William Anthony Beasley Stephens from the time of birth throughout Stephens’s employment at R.G. (Stephens Dep. 49:513, 79:22-80:10 (Ex. 14); Order and Petition for Name Change, EEOC002816-17 (Ex. 24)). 62. Stephens was married to a woman, Donna, while employed by R.G. (Stephens Dep. 41:14-21 (Ex. 14)). 63. All R.G.’s employment records regarding Stephens—including driver’s license, insurance policy, tax records, unemployment insurance claim, and mortuary-science license—identify “Anthony Stephens” as a male. (T. Rost Dep. 21:1-25 (Ex. 3);
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Def.’s Resp. to Charge at 5, EEOC002744-45 (Ex. 22); Kish Dep. 67:9-68:21 (Ex. 5)).
64. Stephens dressed in accordance with the male uniform for funeral directors during Stephens’s employment at R.G. (Kowalewski Dep. 57:18-20, 68:11-13 (Ex. 9); Pl.’s First Supp. Resp. to Def.’s First Set of Discovery at Interrogatory No. 10 (Ex. 26)).
65. One of Stephens’s supervisors George Crawford always understood Stephens to be a man, and Stephens never indicated to Crawford that Stephens was not a man. (Crawford Dep. 42:1-4 (Ex. 6)).
66. R.G. purchased men’s suits for Stephens to wear, and Stephens wore them. (Stephens Dep. 59:14-60:1 (Ex. 14); Pl.’s Resp. to Def.’s First Set of Discovery at Request for Admission No. 2 (Ex. 25) (stating that at “all times during Stephens’s employment with [R.G.] Stephens . . . received professional male clothing” from R.G.)).
Stephens’s Refusal to Comply with the Dress Code
67. On July 31, 2013, Stephens approached Rost in the Chapel at R.G.’s Garden City location and presented Rost with a letter (hereinafter “the letter”) that stated Stephens’s intent to transition from presenting as a man to presenting as a woman, including Stephens’s intent (starting a few weeks later on August 26, 2013) to wear female attire at work. (T. Rost 30(b)(6) Dep. 110:3-111:15 (Ex. 4); Stephens Dep. 67:3-68:17 (Ex. 14); Stephens’s Letter, EEOC000040-41 (Ex. 20)).
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68. Before receiving the letter, Rost had no indication that Stephens wanted to dress as a woman. (T. Rost 30(b)(6) Dep. 109:10-19 (Ex. 4); Stephens Dep. 103:16-104:24, 107:20-25 (Ex. 14)).
69. After Stephens gave Rost the letter, Rost told Stephens that he would get back to Stephens about the letter before Stephens’s planned vacation. (T. Rost 30(b)(6) Dep. 111:11-112:10 (Ex. 4)).
70. Rost understood from the letter and conversation that Stephens refused to comply with the dress code for male funeral directors. (T. Rost 30(b)(6) Dep. 136:14-23 (Ex. 4)).
71. After considering Stephens’s proposal, Rost told Stephens approximately two weeks later, on August 15, 2013, that Stephens could not violate R.G.’s dress code for male funeral directors, and Rost offered Stephens a severance package. (T. Rost 30(b)(6) Dep. 126:1-25 (Ex. 4); Stephens Dep. 74:1375:24, 76:2-10, 79:22-80:10 (Ex. 14); Charge of Discrimination, EEOC002748 (Ex. 21)).
72. Stephens did not offer to continue to comply with the dress code for male funeral directors, and Stephens planned to return to work in two weeks “wearing . . . female attire.” (Stephens Dep. 81:9-16 (Ex. 14)).
73. Stephens rejected the severance package, expressed sorrow “that it wasn’t going to work out,” and indicated a tentative plan to contact an attorney. Rost replied, “[Y]ou do whatever you feel you have to do.” Then the conversation ended, and Stephens left the facility. (T. Rost 30(b)(6) Dep. 127:5-12 (Ex. 4); Stephens Dep. 76:3-12 (Ex. 14)).
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74. Stephens was at an attorney’s office days later and subsequently filed the EEOC claim that resulted in this suit. (Stephens Dep. 79:12-21 (Ex. 14)).
Reasons for R.G.’s Decision to Dismiss Stephens
75. The specific reasons that Rost dismissed Stephens were (1) that Stephens “refus[ed] to comply with [R.G.’s] male dress/grooming policy” and (2) that allowing Stephens to wear the uniform for female funeral directors would have “violated . . . [Rost’s] sincerely held religious beliefs.” (Def.’s Resp. to Pl.’s First Set of Discovery at Interrogatory No. 3 (Ex. 27); T. Rost 30(b)(6) Dep. 54:1-17, 55:1-14, 135:24-136:3 (Ex. 4)).
76. Stephens testified that the reason R.G. dismissed Stephens “was that me coming to work dressed as a woman was not going to be acceptable.” (Stephens Dep. 80:11-19 (Ex. 14)).
77. Rost would not have dismissed Stephens if Stephens had expressed a belief in being a woman and an intent to dress or otherwise present as a woman outside of work. (T. Rost Aff. ¶ 50 (Ex. 1); T. Rost 30(b)(6) Dep. 137:11-15 (Ex. 4)). It was Stephens’s refusal to wear the prescribed uniform and intent to violate the dress code while at work that was the decisive consideration in the employment decision. (T. Rost Aff. ¶¶ 50-51 (Ex. 1)).
78. Based on Rost’s lengthy professional experience in the funeral industry and his many years interacting with Stephens at work, Rost believed that if Stephens violated the dress code by
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wearing a female uniform in the role of funeral director, it would have been distracting to R.G.’s clients mourning the loss of their loved ones, would have disrupted their grieving and healing process, and would have harmed R.G.’s clients and its business. (T. Rost Aff. ¶¶ 39-40 (Ex. 1); T. Rost 30(b)(6) Dep. 54:8-17, 59:13-60:9, 61:2-18, 139:5-23, 142:23-143:12 (Ex. 4); EEOC T. Rost Aff. ¶ 21, EEOC002763 (Ex. 16)).
79. Allowing Stephens to contravene the dress code by wearing a female uniform in the role of funeral director would have violated Rost’s religious belief that a person’s sex (whether male or female) is an immutable God-given gift and his religious belief that R.G. cannot pay for or otherwise permit one of its representatives to wear the uniform of the opposite sex while at work. (T. Rost Aff. ¶¶ 41-46 (Ex. 1); T. Rost 30(b)(6) Dep. 54:8-17, 55:1-14 (Ex. 4)).
80. Because R.G. provides suits for all its funeral directors, if Rost would have agreed that Stephens could continue to work at R.G. while dressing in the female uniform, Rost would have been paying for Stephens to wear the female uniform, which would have violated his faith. (T. Rost Aff. ¶¶ 46-47 (Ex. 1)).
81. If Rost were to be compelled as the owner of R.G. to violate his sincerely held religious beliefs by paying for or otherwise permitting one of his employees to dress inconsistently with his or her biological sex at work, he would feel significant pressure to sell the business and give up his life’s calling of ministering to grieving people as a funeral home director and owner. (T. Rost Aff. ¶ 48 (Ex. 1)).
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82. Rost was also concerned about requiring female customers, grieving family members, and employees to share restroom facilities with a biological male dressed as a woman. (T. Rost 30(b)(6) Dep. 73:17-74:20 (Ex. 4)).
83. Two of R.G.’s three funeral homes have only sex-specific restrooms. They do not have separate employee restrooms. Stephens worked at all three facilities. (T. Rost 30(b)(6) Dep. 76:25-77:14 (Ex. 4); McKie Dep. 13:21-14:22 (Ex. 13); Cash Dep. 30:11-31:5 (Ex. 8)).
R.G.’s Provision of Clothing for Funeral Directors
84. R.G. provides dress-code-conforming suits for all funeral directors, whether male or female (T. Rost Dep. 13:4-14, 47:23-48:11 (Ex. 3); Kish Dep. 64:12-24 (Ex. 5); Def.’s Resp. to Pl.’s Second Set of Discovery at Interrogatory No. 14 (Ex. 28); McKie Dep. 38:19-23 (Ex. 13)).
85. R.G. also provides ties for its male funeral directors. (T. Rost Dep. 13:15-24 (Ex. 3)).
86. R.G. initially provides full-time funeral directors with two suits and two ties and part-time funeral directors with one suit and one tie. These are replaced by R.G. as they wear out, which generally occurs every one to four years for full-time funeral directors (T. Rost Dep. 14:9-15:2, 18:10-19:8 (Ex. 3); Crawford Dep. 19:1-3 (Ex. 6); Kowalewski Dep. 22:21-23:1 (Ex. 9)), and much less frequently (approximately once every five to ten years) for parttime funeral directors. (T. Rost Dep. 18:10-24 (Ex. 3)).
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87. R.G. has not employed a female funeral director since 1950. (T. Rost Aff. ¶ 52 (Ex. 1); Def.’s Resp. to Pl.’s First Set of Discovery at Request for Admission No. 5 (Ex. 27); EEOC Kish Aff. ¶ 19, EEOC002768 (Ex. 17); Stephens Dep. 102:4-14) (Ex. 14)).
88. Throughout all Rost’s years owning and operating R.G., he has never had a qualified female apply for an open funeral director position. (T. Rost Aff. ¶ 53 (Ex. 1)). During that time, he has had only one female applicant apply for an open funeral director position, but she was not qualified. (T. Rost Aff. ¶ 53 (Ex. 1)).
89. If R.G. one day has the opportunity to hire female funeral directors, R.G. will provide them with skirt suits in the same manner that it provides pant suits to male funeral directors. (T. Rost Aff. ¶ 54 (Ex. 1)).
R.G.’s Clothing Allowance for Other Employees 90. R.G. gives an annual clothing allowance
to female employees who interact with the public in positions other than funeral director. The allowance is $150 per year for full-time employees and $75 per year for part-time employees. (T. Rost Dep. 15:1616:4 (Ex. 3); Nemeth Dep. 13:5-23 (Ex. 7); Kish Dep. 20:16-25 (Ex. 5)).
91. The annual allowance provided to female employees who interact with the public in positions other than funeral director is sufficient to purchase clothing that conforms to R.G.’s dress code for those positions. (Kish Aff. ¶ 5 (Ex. 2)).
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92. An outfit that one of these female employees purchases with the clothing allowance typically lasts at least one year. (Kish Aff. ¶ 6 (Ex. 2)).
93. R.G. provides a suit similar to the funeral director suit for male employees who interact with the public in positions other than funeral director. (T. Rost Aff. ¶ 56 (Ex. 1)).
94. All current male employees, other than funeral directors, who interact with the public are part-time and receive one suit that is replaced by R.G. when it is no longer serviceable. (T. Rost Aff. ¶ 57 (Ex. 1)).
95. R.G. does not provide a clothing allowance or suit to employees who are not expected to have client contact such as maintenance personnel (whether male or female). (Kish Dep. 56:14-58:4, 65:17-66:18 (Ex. 5)).

Dated: April 7, 2016

Respectfully submitted, /s/ James A. Campbell

James A. Campbell (AZ Bar 026737) Douglas G. Wardlow (AZ Bar 032028) Joseph P. Infranco (NY Bar 1268739) Bradley S. Abramson (AZ Bar 029470) ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street Scottsdale, AZ 85260
(480) 444-0020 (480) 444-0028 Fax

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jcampbell@ADFlegal.org dwardlow@ADFlegal.org jinfranco@ADFlegal.org babramson@ADFlegal.org Joel J. Kirkpatrick (P62851) JOEL J. KIRKPATRICK, P.C. 843 Penniman Ave., Suite 201
Plymouth, MI 48170 (734) 404-5710
(866) 241-4152 Fax joel@joelkirkpatrick.com Attorneys for Defendant
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 (Slip Opinion)

OCTOBER TERM, 2019

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
BOSTOCK v. CLAYTON COUNTY, GEORGIA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 17–1618. Argued October 8, 2019—Decided June 15, 2020*
In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.
Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33. (a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord
—————— * Together with No. 17–1623, Altitude Express, Inc., et al. v. Zarda
et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and No. 18– 107, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit.

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Syllabus
with their ordinary public meaning at the time of their enactment resolves these cases. Pp. 4–12.
(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.
(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12.
(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups.

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Syllabus

And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.
The lessons these cases hold are instructive here. First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15.
(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33.
(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference

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Syllabus
that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.
(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33.
No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.

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1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 17–1618, 17–1623 and 18–107

_________________

GERALD LYNN BOSTOCK, PETITIONER

17–1618

v.

CLAYTON COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS

17–1623

v.

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF THE ESTATE OF

DONALD ZARDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

PETITIONER

18–107

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 15, 2020]

JUSTICE GORSUCH delivered the opinion of the Court.

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Opinion of the Court
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
I
Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the

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Opinion of the Court
county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee.
Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.
Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “ live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.”
While these cases began the same way, they ended differently. Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U. S. C. §2000e–2(a)(1). In Mr. Bostock’s case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and so his suit could be dismissed as a matter of law. 723 Fed. Appx. 964 (2018). Meanwhile, in Mr. Zarda’s case, the Second Circuit concluded that sexual orientation discrimination does violate Title VII and allowed his case to proceed. 883 F. 3d 100 (2018). Ms. Stephens’s case has a more complex procedural history, but in the end the Sixth Circuit reached a decision along the same lines as the Second Circuit’s, holding that Title VII bars employers from firing employees because of

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Opinion of the Court
their transgender status. 884 F. 3d 560 (2018). During the course of the proceedings in these long-running disputes, both Mr. Zarda and Ms. Stephens have passed away. But their estates continue to press their causes for the benefit of their heirs. And we granted certiorari in these matters to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons. 587 U. S. ___ (2019).
II
This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. See New Prime Inc. v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7).
With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer 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.” §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents.

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Opinion of the Court
A
The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.
Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of ’ or ‘on account of.’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350 (2013) (citing Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009); quotation altered). In the language of law, this means that Title VII’s “because of ” test incorporates the “ ‘simple’ ” and “traditional” standard of but-for causation. Nassar, 570 U. S., at 346, 360. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. See Gross, 557 U. S., at 176. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident

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Opinion of the Court
occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. Cf. Burrage v. United States, 571 U. S. 204, 211–212 (2014). When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. See ibid.; Nassar, 570 U. S., at 350.
No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added “solely” to indicate that actions taken “because of ” the confluence of multiple factors do not violate the law. Cf. 11 U. S. C. §525; 16 U. S. C. §511. Or it could have written “primarily because of ” to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. Cf. 22 U. S. C. §2688. But none of this is the law we have. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a “motivating factor” in a defendant’s challenged employment practice. Civil Rights Act of 1991, §107, 105 Stat. 1075, codified at 42 U. S. C. §2000e–2(m). Under this more forgiving standard, liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision. Still, because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII. §2000e–2(a)(1).
As sweeping as even the but-for causation standard can be, Title VII does not concern itself with everything that happens “because of ” sex. The statute imposes liability on

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Opinion of the Court
employers only when they “fail or refuse to hire,” “discharge,” “or otherwise . . . discriminate against” someone because of a statutorily protected characteristic like sex. Ibid. The employers acknowledge that they discharged the plaintiffs in today’s cases, but assert that the statute’s list of verbs is qualified by the last item on it: “otherwise . . . discriminate against.” By virtue of the word otherwise, the employers suggest, Title VII concerns itself not with every discharge, only with those discharges that involve discrimination.
Accepting this point, too, for argument’s sake, the question becomes: What did “discriminate” mean in 1964? As it turns out, it meant then roughly what it means today: “To make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745 (2d ed. 1954). To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated. See Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 59 (2006). In so-called “disparate treatment” cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988). So, taken together, an employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.
At first glance, another interpretation might seem possible. Discrimination sometimes involves “the act, practice, or an instance of discriminating categorically rather than individually.” Webster’s New Collegiate Dictionary 326 (1975); see also post, at 27–28, n. 22 (ALITO, J., dissenting). On that understanding, the statute would require us to consider the employer’s treatment of groups rather than individuals, to see how a policy affects one sex as a whole versus the other as a whole. That idea holds some intuitive appeal

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too. Maybe the law concerns itself simply with ensuring that employers don’t treat women generally less favorably than they do men. So how can we tell which sense, individual or group, “discriminate” carries in Title VII?
The statute answers that question directly. It tells us three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups: Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” §2000e–2(a)(1) (emphasis added). And the meaning of “individual” was as uncontroversial in 1964 as it is today: “A particular being as distinguished from a class, species, or collection.” Webster’s New International Dictionary, at 1267. Here, again, Congress could have written the law differently. It might have said that “it shall be an unlawful employment practice to prefer one sex to the other in hiring, firing, or the terms or conditions of employment.” It might have said that there should be no “sex discrimination,” perhaps implying a focus on differential treatment between the two sexes as groups. More narrowly still, it could have forbidden only “sexist policies” against women as a class. But, once again, that is not the law we have.
The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so

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equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.
B
From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).
The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the

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male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.
Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here.

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When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.
Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers from liability. Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees. There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.
An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is

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not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII. So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.” 883 F. 3d, at 135 (Cabranes, J., concurring in judgment).
C
If more support for our conclusion were required, there’s no need to look far. All that the statute’s plain terms suggest, this Court’s cases have already confirmed. Consider three of our leading precedents.
In Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), a company allegedly refused to hire women with young children, but did hire men with children the same age. Because its discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination “because of ” sex. The company maintained, too, that it hadn’t violated the law because, as a whole, it tended to favor hiring women over men. Unsurprisingly by now,

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these submissions did not sway the Court. That an employer discriminates intentionally against an individual only in part because of sex supplies no defense to Title VII. Nor does the fact an employer may happen to favor women as a class.
In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978), an employer required women to make larger pension fund contributions than men. The employer sought to justify its disparate treatment on the ground that women tend to live longer than men, and thus are likely to receive more from the pension fund over time. By everyone’s admission, the employer was not guilty of animosity against women or a “purely habitual assumptio[n] about a woman’s inability to perform certain kinds of work”; instead, it relied on what appeared to be a statistically accurate statement about life expectancy. Id., at 707–708. Even so, the Court recognized, a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals. True, women as a class may live longer than men as a class. But “[t]he statute’s focus on the individual is unambiguous,” and any individual woman might make the larger pension contributions and still die as early as a man. Id., at 708. Likewise, the Court dismissed as irrelevant the employer’s insistence that its actions were motivated by a wish to achieve classwide equality between the sexes: An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention (or motivation), even one as prosaic as seeking to account for actuarial tables. Ibid. The employer violated Title VII because, when its policy worked exactly as planned, it could not “pass the simple test” asking whether an individual female employee would have been treated the same regardless of her sex. Id., at 711.
In Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The Court

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held it was immaterial that members of the same sex as the victim committed the alleged discrimination. Nor did the Court concern itself with whether men as a group were subject to discrimination or whether something in addition to sex contributed to the discrimination, like the plaintiff ’s conduct or personal attributes. “[A]ssuredly,” the case didn’t involve “the principal evil Congress was concerned with when it enacted Title VII.” Id., at 79. But, the Court unanimously explained, it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Ibid. Because the plaintiff alleged that the harassment would not have taken place but for his sex—that is, the plaintiff would not have suffered similar treatment if he were female—a triable Title VII claim existed.
The lessons these cases hold for ours are by now familiar. First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer called its rule requiring women to pay more into the pension fund a “life expectancy” adjustment necessary to achieve sex equality. In Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” In much the same way, today’s employers might describe their actions as motivated by their employees’ homosexuality or transgender status. But just as labels and additional intentions or motivations didn’t make a difference in Manhart or Phillips, they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability. Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the defendant easily could have pointed to some other, nonprotected trait and insisted it was the

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more important factor in the adverse employment outcome. So, too, it has no significance here if another factor—such as the sex the plaintiff is attracted to or presents as—might also be at work, or even play a more important role in the employer’s decision.
Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. As Manhart teaches, an employer is liable for intentionally requiring an individual female employee to pay more into a pension plan than a male counterpart even if the scheme promotes equality at the group level. Likewise, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.
III
What do the employers have to say in reply? For present purposes, they do not dispute that they fired the plaintiffs for being homosexual or transgender. Sorting out the true reasons for an adverse employment decision is often a hard business, but none of that is at issue here. Rather, the employers submit that even intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII.
The employers’ argument proceeds in two stages. Seeking footing in the statutory text, they begin by advancing a number of reasons why discrimination on the basis of homosexuality or transgender status doesn’t involve discrimination because of sex. But each of these arguments turns out only to repackage errors we’ve already seen and this Court’s precedents have already rejected. In the end, the employers are left to retreat beyond the statute’s text, where they fault us for ignoring the legislature’s purposes

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in enacting Title VII or certain expectations about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is.
A
Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation. If asked by a friend (rather than a judge) why they were fired, even today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex. According to the employers, that conversational answer, not the statute’s strict terms, should guide our thinking and suffice to defeat any suggestion that the employees now before us were fired because of sex. Cf. post, at 3 (ALITO, J., dissenting); post, at 8–13 (KAVANAUGH, J., dissenting).
But this submission rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just been fired is likely to identify the primary or most direct cause rather than list literally every but-for cause. To do otherwise would be tiring at best. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause. In Phillips, for example, a woman who was not hired under the employer’s policy might have told her friends that her application was rejected because she was a mother, or because she had young children. Given that many women could be hired under the policy, it’s unlikely she would say she was not hired because she was a woman. But the Court did not hesitate to recognize that the employer in Phillips discriminated against the plaintiff because of her sex. Sex

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wasn’t the only factor, or maybe even the main factor, but it was one but-for cause—and that was enough. You can call the statute’s but-for causation test what you will—expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law.
Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires. See post, at 9–12 (ALITO, J., dissenting); post, at 12–13 (KAVANAUGH, J., dissenting). But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women.
What, then, do the employers mean when they insist intentional discrimination based on homosexuality or transgender status isn’t intentional discrimination based on sex? Maybe the employers mean they don’t intend to harm one sex or the other as a class. But as should be clear by now, the statute focuses on discrimination against individuals, not groups. Alternatively, the employers may mean that they don’t perceive themselves as motivated by a desire to discriminate based on sex. But nothing in Title VII turns on the employer’s labels or any further intentions (or motivations) for its conduct beyond sex discrimination. In Manhart, the employer intentionally required women to make higher pension contributions only to fulfill the further purpose of making things more equitable between men and women as groups. In Phillips, the employer may have perceived itself as discriminating based on motherhood, not sex, given that its hiring policies as a whole favored women. But in both cases, the Court set all this aside as irrelevant. The employers’ policies involved intentional discrimination

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because of sex, and Title VII liability necessarily followed. Aren’t these cases different, the employers ask, given
that an employer could refuse to hire a gay or transgender individual without ever learning the applicant’s sex? Suppose an employer asked homosexual or transgender applicants to tick a box on its application form. The employer then had someone else redact any information that could be used to discern sex. The resulting applications would disclose which individuals are homosexual or transgender without revealing whether they also happen to be men or women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons cannot be sex discrimination?
No, it doesn’t. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.
The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex. By discriminating against homosexuals, the employer intentionally penalizes

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men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.
Next, the employers turn to Title VII’s list of protected characteristics—race, color, religion, sex, and national origin. Because homosexuality and transgender status can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. Put another way, if Congress had wanted to address these matters in Title VII, it would have referenced them specifically. Cf. post, at 7–8 (ALITO, J., dissenting); post, at 13–15 (KAVANAUGH, J., dissenting).
But that much does not follow. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however

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they may manifest themselves or whatever other labels might attach to them.
The employers try the same point another way. Since 1964, they observe, Congress has considered several proposals to add sexual orientation to Title VII’s list of protected characteristics, but no such amendment has become law. Meanwhile, Congress has enacted other statutes addressing other topics that do discuss sexual orientation. This postenactment legislative history, they urge, should tell us something. Cf. post, at 2, 42–43 (ALITO, J., dissenting); post, at 4, 15–16 (KAVANAUGH, J., dissenting).
But what? There’s no authoritative evidence explaining why later Congresses adopted other laws referencing sexual orientation but didn’t amend this one. Maybe some in the later legislatures understood the impact Title VII’s broad language already promised for cases like ours and didn’t think a revision needed. Maybe others knew about its impact but hoped no one else would notice. Maybe still others, occupied by other concerns, didn’t consider the issue at all. All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a “particularly dangerous” basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt. Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990); see also United States v. Wells, 519 U. S. 482, 496 (1997); Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring) (“Arguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote”).
That leaves the employers to seek a different sort of exception. Maybe the traditional and simple but-for causation test should apply in all other Title VII cases, but it just doesn’t work when it comes to cases involving homosexual and transgender employees. The test is too blunt to capture the nuances here. The employers illustrate their concern with an example. When we apply the simple test to Mr.

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Bostock—asking whether Mr. Bostock, a man attracted to other men, would have been fired had he been a woman— we don’t just change his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no Title VII violation has occurred.
While the explanation is new, the mistakes are the same. The employers might be onto something if Title VII only ensured equal treatment between groups of men and women or if the statute applied only when sex is the sole or primary reason for an employer’s challenged adverse employment action. But both of these premises are mistaken. Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability. Just cast a glance back to Manhart, where it was no defense that the employer sought to equalize pension contributions based on life expectancy. Nor does the statute care if other factors besides sex contribute to an employer’s discharge decision. Mr. Bostock’s employer might have decided to fire him only because of the confluence of two factors, his sex and the sex to which he is attracted. But exactly the same might have been said in Phillips, where motherhood was the added variable.
Still, the employers insist, something seems different here. Unlike certain other employment policies this Court has addressed that harmed only women or only men, the employers’ policies in the cases before us have the same adverse consequences for men and women. How could sex be

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necessary to the result if a member of the opposite sex might face the same outcome from the same policy?
What the employers see as unique isn’t even unusual. Often in life and law two but-for factors combine to yield a result that could have also occurred in some other way. Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside. In either case, no one would deny that the window is open “because of ” the outside temperature. Our cases are much the same. So, for example, when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to get them fired. The fact that female sex and attraction to women can also get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. In either case, though, sex plays an essential but-for role.
At bottom, the employers’ argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow. And, as we’ve seen, that suggestion is at odds with everything we know about the statute. Consider an employer eager to revive the workplace gender roles of the 1950s. He enforces a policy that he will hire only men as mechanics and only women as secretaries. When a qualified woman applies for a mechanic position and is denied, the “simple test” immediately spots the discrimination: A qualified man would have been given the job, so sex was a but-for cause of the employer’s refusal to hire. But like the employers before us today, this employer would say not so fast. By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly

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changed two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles. The “simple test” thus overlooks that it is really the applicant’s bucking of 1950s gender roles, not her sex, doing the work. So we need to hold that second trait constant: Instead of comparing the disappointed female applicant to a man who applied for the same position, the employer would say, we should compare her to a man who applied to be a secretary. And because that jobseeker would be refused too, this must not be sex discrimination.
No one thinks that, so the employers must scramble to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or transgender status. Such a rule would create a curious discontinuity in our case law, to put it mildly. Employer hires based on sexual stereotypes? Simple test. Employer sets pension contributions based on sex? Simple test. Employer fires men who do not behave in a sufficiently masculine way around the office? Simple test. But when that same employer discriminates against women who are attracted to women, or persons identified at birth as women who later identify as men, we suddenly roll out a new and more rigorous standard? Why are these reasons for taking sex into account different from all the rest? Title VII’s text can offer no answer.
B
Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy. Most pointedly, they contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. And whatever the text and our precedent indicate, they say, shouldn’t this fact cause us to pause before recognizing liability?
It might be tempting to reject this argument out of hand.

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This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration. See, e.g., Carcieri v. Salazar, 555 U. S. 379, 387 (2009); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992); Rubin v. United States, 449 U. S. 424, 430 (1981). Of course, some Members of this Court have consulted legislative history when interpreting ambiguous statutory language. Cf. post, at 40 (ALITO, J., dissenting). But that has no bearing here. “Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.” Milner v. Department of Navy, 562 U. S. 562, 574 (2011). And as we have seen, no ambiguity exists about how Title VII’s terms apply to the facts before us. To be sure, the statute’s application in these cases reaches “beyond the principal evil” legislators may have intended or expected to address. Oncale, 523 U. S., at 79. But “ ‘the fact that [a statute] has been applied in situations not expressly anticipated by Congress’ ” does not demonstrate ambiguity; instead, it simply “ ‘demonstrates [the] breadth’ ” of a legislative command. Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985). And “it is ultimately the provisions of ” those legislative commands “rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U. S., at 79; see also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012) (noting that unexpected applications of broad language reflect only Congress’s “presumed point [to] produce general coverage— not to leave room for courts to recognize ad hoc exceptions”).
Still, while legislative history can never defeat unambiguous statutory text, historical sources can be useful for a different purpose: Because the law’s ordinary meaning at the time of enactment usually governs, we must be sensitive to the possibility a statutory term that means one thing

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today or in one context might have meant something else at the time of its adoption or might mean something different in another context. And we must be attuned to the possibility that a statutory phrase ordinarily bears a different meaning than the terms do when viewed individually or literally. To ferret out such shifts in linguistic usage or subtle distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters as some (not always conclusive) evidence. For example, in the context of the National Motor Vehicle Theft Act, this Court admitted that the term “vehicle” in 1931 could literally mean “a conveyance working on land, water or air.” McBoyle v. United States, 283 U. S. 25, 26 (1931). But given contextual clues and “everyday speech” at the time of the Act’s adoption in 1919, this Court concluded that “vehicles” in that statute included only things “moving on land,” not airplanes too. Ibid. Similarly, in New Prime, we held that, while the term “contracts of employment” today might seem to encompass only contracts with employees, at the time of the statute’s adoption the phrase was ordinarily understood to cover contracts with independent contractors as well. 586 U. S., at ___–___ (slip op., at 6–9). Cf. post, at 7–8 (KAVANAUGH, J., dissenting) (providing additional examples).
The employers, however, advocate nothing like that here. They do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms, whether viewed individually or as a whole, ordinarily carried some message we have missed. To the contrary, as we have seen, the employers agree with our understanding of all the statutory language—“discriminate against any individual . . . because of such individual’s . . . sex.” Nor do the competing dissents offer an alternative account about what these terms mean either when viewed individually or in the ag-

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gregate. Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.
That is exactly the sort of reasoning this Court has long rejected. Admittedly, the employers take pains to couch their argument in terms of seeking to honor the statute’s “expected applications” rather than vindicate its “legislative intent.” But the concepts are closely related. One could easily contend that legislators only intended expected applications or that a statute’s purpose is limited to achieving applications foreseen at the time of enactment. However framed, the employer’s logic impermissibly seeks to displace the plain meaning of the law in favor of something lying beyond it.
If anything, the employers’ new framing may only add new problems. The employers assert that “no one” in 1964 or for some time after would have anticipated today’s result. But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application. See, e.g., Smith v. Liberty Mut. Ins. Co., 395 F. Supp. 1098, 1099 (ND Ga. 1975) (addressing claim from 1969); Holloway v. Arthur Andersen & Co., 566 F. 2d 659, 661 (CA9 1977) (addressing claim from 1974). And less than a decade after Title VII’s passage, during debates over the Equal Rights Amendment, others counseled that its language—which was strikingly similar to Title VII’s— might also protect homosexuals from discrimination. See, e.g., Note, The Legality of Homosexual Marriage, 82 Yale L. J. 573, 583–584 (1973).

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Why isn’t that enough to demonstrate that today’s result isn’t totally unexpected? How many people have to foresee the application for it to qualify as “expected”? Do we look only at the moment the statute was enacted, or do we allow some time for the implications of a new statute to be worked out? Should we consider the expectations of those who had no reason to give a particular application any thought or only those with reason to think about the question? How do we account for those who change their minds over time, after learning new facts or hearing a new argument? How specifically or generally should we frame the “application” at issue? None of these questions have obvious answers, and the employers don’t propose any.
One could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group. Take this Court’s encounter with the Americans with Disabilities Act’s directive that no “ ‘public entity’ ” can discriminate against any “ ‘qualified individual with a disability.’ ” Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 208 (1998). Congress, of course, didn’t list every public entity the statute would apply to. And no one batted an eye at its application to, say, post offices. But when the statute was applied to prisons, curiously, some demanded a closer look: Pennsylvania argued that “Congress did not ‘envisio[n] that the ADA would be applied to state prisoners.’ ” Id., at 211–212. This Court emphatically rejected that view, explaining that, “in the context of an unambiguous statutory text,” whether a specific application was anticipated by Congress “is irrelevant.” Id., at 212. As Yeskey and today’s cases exemplify, applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees

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in the 1960s—often may be seen as unexpected. But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms. Cf. post, at 28–35 (ALITO, J., dissenting); post, at 21–22 (KAVANAUGH, J., dissenting).
The employer’s position also proves too much. If we applied Title VII’s plain text only to applications some (yet-tobe-determined) group expected in 1964, we’d have more than a little law to overturn. Start with Oncale. How many people in 1964 could have expected that the law would turn out to protect male employees? Let alone to protect them from harassment by other male employees? As we acknowledged at the time, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” 523 U. S., at 79. Yet the Court did not hesitate to recognize that Title VII’s plain terms forbade it. Under the employer’s logic, it would seem this was a mistake.
That’s just the beginning of the law we would have to unravel. As one Equal Employment Opportunity Commission (EEOC) Commissioner observed shortly after the law’s passage, the words of “ ‘the sex provision of Title VII [are] difficult to . . . control.’ ” Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307, 1338 (2012) (quoting Federal Mediation Service To Play Role in Implementing Title VII, [1965–1968 Transfer Binder] CCH Employment Practices ¶8046, p. 6074). The “difficult[y]” may owe something to the initial proponent of the sex discrimination rule in Title VII, Representative Howard Smith. On some accounts, the congressman may have wanted (or at least was indifferent to the possibility

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of ) broad language with wide-ranging effect. Not necessarily because he was interested in rooting out sex discrimination in all its forms, but because he may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poison pill. See C. Whalen & B. Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act 115–118 (1985). Certainly nothing in the meager legislative history of this provision suggests it was meant to be read narrowly.
Whatever his reasons, thanks to the broad language Representative Smith introduced, many, maybe most, applications of Title VII’s sex provision were “unanticipated” at the time of the law’s adoption. In fact, many now-obvious applications met with heated opposition early on, even among those tasked with enforcing the law. In the years immediately following Title VII’s passage, the EEOC officially opined that listing men’s positions and women’s positions separately in job postings was simply helpful rather than discriminatory. Franklin, 125 Harv. L. Rev., at 1340 (citing Press Release, EEOC (Sept. 22, 1965)). Some courts held that Title VII did not prevent an employer from firing an employee for refusing his sexual advances. See, e.g., Barnes v. Train, 1974 WL 10628, *1 (D DC, Aug. 9, 1974). And courts held that a policy against hiring mothers but not fathers of young children wasn’t discrimination because of sex. See Phillips v. Martin Marietta Corp., 411 F. 2d 1 (CA5 1969), rev’d, 400 U. S. 542 (1971) (per curiam).
Over time, though, the breadth of the statutory language proved too difficult to deny. By the end of the 1960s, the EEOC reversed its stance on sex-segregated job advertising. See Franklin, 125 Harv. L. Rev., at 1345. In 1971, this Court held that treating women with children differently from men with children violated Title VII. Phillips, 400 U. S., at 544. And by the late 1970s, courts began to recognize that sexual harassment can sometimes amount to sex discrimination. See, e.g., Barnes v. Costle, 561 F. 2d 983,

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990 (CADC 1977). While to the modern eye each of these examples may seem “plainly [to] constitut[e] discrimination because of biological sex,” post, at 38 (ALITO, J., dissenting), all were hotly contested for years following Title VII’s enactment. And as with the discrimination we consider today, many federal judges long accepted interpretations of Title VII that excluded these situations. Cf. post, at 21–22 (KAVANAUGH, J., dissenting) (highlighting that certain lower courts have rejected Title VII claims based on homosexuality and transgender status). Would the employers have us undo every one of these unexpected applications too?
The weighty implications of the employers’ argument from expectations also reveal why they cannot hide behind the no-elephants-in-mouseholes canon. That canon recognizes that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). But it has no relevance here. We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries— virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.
With that, the employers are left to abandon their concern for expected applications and fall back to the last line

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of defense for all failing statutory interpretation arguments: naked policy appeals. If we were to apply the statute’s plain language, they complain, any number of undesirable policy consequences would follow. Cf. post, at 44–54 (ALITO, J., dissenting). Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. But that’s an invitation no court should ever take up. The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.
What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “ ‘discriminate against’ ” refers to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S. F. R., 548 U. S., at 59. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices

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might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3.
But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now

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before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
*
Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.
But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

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ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 17–1618, 17–1623 and 18–107
_________________

GERALD LYNN BOSTOCK, PETITIONER

17–1618

v.

CLAYTON COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS

17–1623

v.

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF THE ESTATE OF

DONALD ZARDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

PETITIONER

18–107

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 15, 2020]

JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting.
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

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ALITO, J., dissenting
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses.
Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of

—————— 1 E.g., H. R. 166, 94th Cong., 1st Sess., §6 (1975); H. R. 451, 95th Cong.,
1st Sess., §6 (1977); S. 2081, 96th Cong., 1st Sess. (1979); S. 1708, 97th Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th Cong., 1st Sess., §5 (1985); S. 464, 100th Cong., 1st Sess., §5 (1987); H. R. 655, 101st Cong., 1st Sess., §2 (1989); S. 574, 102d Cong., 1st Sess., §5 (1991); H. R. 423, 103d Cong., 1st Sess., §2 (1993); S. 932, 104th Cong., 1st Sess. (1995); H. R. 365, 105th Cong., 1st Sess., §2 (1997); H. R. 311, 106th Cong., 1st Sess., §2 (1999); H. R. 217, 107th Cong., 1st Sess., §2 (2001); S. 16, 108th Cong., 1st Sess., §§701–704 (2003); H. R. 288, 109th Cong., 1st Sess., §2 (2005).
2 See, e.g., H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R. 1755, 113th Cong., 1st Sess. (2013); H. R. 3185, 114th Cong., 1st Sess., §7 (2015); H. R. 2282, 115th Cong., 1st Sess., §7 (2017); H. R. 5, 116th Cong., 1st Sess. (2019).
3 H. R. 5331, 116th Cong., 1st Sess., §§4(b), (c) (2019).

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discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.4 A more brazen abuse of our authority to interpret statutes is hard to recall.
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22

—————— 4 Section 7(b) of H. R. 5 strikes the term “sex” in 42 U. S. C. §2000e–2
and inserts: “SEX (INCLUDING SEXUAL ORIENTATION AND GENDER IDENTITY).”

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(1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.5
Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
It indisputably did not.
I A
Title VII, as noted, prohibits discrimination “because of . . . sex,” §2000e–2(a)(1), and in 1964, it was as clear as clear could be that this meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.”6 Ante, at 2. (Appendix A, infra, to

—————— 5 That is what Judge Posner did in the Seventh Circuit case holding
that Title VII prohibits discrimination because of sexual orientation. See Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339 (2017) (en banc). Judge Posner agreed with that result but wrote:
“I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-centuryold statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” Id., at 357 (concurring opinion) (emphasis added).
6 The Court does not define what it means by “transgender status,” but the American Psychological Association describes “transgender” as “[a]n umbrella term encompassing those whose gender identities or gender roles differ from those typically associated with the sex they were assigned at birth.” A Glossary: Defining Transgender Terms, 49 Monitor on Psychology 32 (Sept. 2018), https://www.apa.org/monitor/2018/09/cecorner-glossary. It defines “gender identity” as “[a]n internal sense of being male, female or something else, which may or may not correspond

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this opinion includes the full definitions of “sex” in the unabridged dictionaries in use in the 1960s.)
In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 2296 (def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.” See also American Heritage Dictionary 1187 (def. 1(a)) (1969) (“The property or quality by which organisms are classified according to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. 1) (1966) (Random House Dictionary) (“the fact or character of being either male or female”); 9 Oxford English Dictionary 577 (def. 1) (1933) (“Either of the two divisions of organic beings distinguished as male and female respectively”).
The Court does not dispute that this is what “sex” means in Title VII, although it coyly suggests that there is at least some support for a different and potentially relevant definition. Ante, at 5. (I address alternative definitions below. See Part I–B–3, infra.) But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.” Ante, at 5.
If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.
How then does the Court claim to avoid that conclusion?
—————— to an individual’s sex assigned at birth or sex characteristics.” Ibid. Under these definitions, there is no apparent difference between discrimination because of transgender status and discrimination because of gender identity.

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ALITO, J., dissenting
The Court tries to cloud the issue by spending many pages discussing matters that are beside the point. The Court observes that a Title VII plaintiff need not show that “sex” was the sole or primary motive for a challenged employment decision or its sole or primary cause; that Title VII is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc.); and that Title VII protects individual rights, not group rights. See ante, at 5– 9, 11.
All that is true, but so what? In cases like those before us, a plaintiff must show that sex was a “motivating factor” in the challenged employment action, 42 U. S. C. §2000e– 2(m), so the question we must decide comes down to this: if an individual employee or applicant for employment shows that his or her sexual orientation or gender identity was a “motivating factor” in a hiring or discharge decision, for example, is that enough to establish that the employer discriminated “because of . . . sex”? Or, to put the same question in different terms, if an employer takes an employment action solely because of the sexual orientation or gender identity of an employee or applicant, has that employer necessarily discriminated because of biological sex?
The answers to those questions must be no, unless discrimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The Court attempts to prove that point, and it argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way. According to the Court, the text is unambiguous. See ante, at 24, 27, 30.
The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted. See Part III–B, infra. But the Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means.

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Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339, 357 (CA7 2017) (Posner, J., concurring). The Court seemingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex. See Part III–C, infra. And for good measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law.7 Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of . . . sex” unambiguously means. See Part III–C, infra.
The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. Ante, at 19 (“homosexuality and transgender status are distinct concepts from sex”). And neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes. See ante, at 10 (recognizing that “discrimination on these bases” does not have “some disparate impact on one sex or another”). Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes.8 And individuals who are born with
—————— 7 The EEOC first held that “discrimination against a transgender indi-
vidual because that person is transgender” violates Title VII in 2012 in Macy v. Holder, 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ibid., n. 16. It did not hold that discrimination on the basis of sexual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).
8 “Sexual orientation refers to a person’s erotic response tendency or sexual attractions, be they directed toward individuals of the same sex (homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1 B.

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the genes and organs of either biological sex may identify with a different gender.9
Using slightly different terms, the Court asserts again and again that discrimination because of sexual orientation or gender identity inherently or necessarily entails discrimination because of sex. See ante, at 2 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the decision”); ante, at 9 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”); ante, at 11 (“[W]hen an employer discriminates against homosexual or transgender employees, [the] employer . . . inescapably intends to rely on sex in its decisionmaking”); ante, at 12 (“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex”); ante, at 14 (“When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex”); ante, at 19 (“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex”). But repetition of an assertion does not make it so, and the Court’s repeated assertion is demonstrably untrue.
Contrary to the Court’s contention, discrimination because of sexual orientation or gender identity does not in
—————— Sadock, V. Sadock, & P. Ruiz, Comprehensive Textbook of Psychiatry 2061 (9th ed. 2009); see also American Heritage Dictionary 1607 (5th ed. 2011) (defining “sexual orientation” as “[t]he direction of a person’s sexual interest, as toward people of the opposite sex, the same sex, or both sexes”); Webster’s New College Dictionary 1036 (3d ed. 2008) (defining “sexual orientation” as “[t]he direction of one’s sexual interest toward members of the same, opposite, or both sexes”).
9 See n. 6, supra; see also Sadock, supra, at 2063 (“transgender” refers to “any individual who identifies with and adopts the gender role of a member of the other biological sex”).

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and of itself entail discrimination because of sex. We can see this because it is quite possible for an employer to discriminate on those grounds without taking the sex of an individual applicant or employee into account. An employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” And an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. In fact, at the time of the enactment of Title VII, the United States military had a blanket policy of refusing to enlist gays or lesbians, and under this policy for years thereafter, applicants for enlistment were required to complete a form that asked whether they were “homosexual.” Appendix D, infra, at 88, 101.
At oral argument, the attorney representing the employees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimination.10 And she was right.
The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex. Contra, ante, at 19. An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge. And if an employer does not violate Title VII by discriminating on the basis of
—————— 10 See Tr. of Oral Arg. in Nos. 17–1618, 17–1623, pp. 69–70 (“If there
was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex”); see also id., at 69 (“Somebody who comes in and says I’m not going to tell you what my sex is, but, believe me, I was fired for my sexual orientation, that person will lose”).

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sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same policy even if it knows the sex of these individuals. If an employer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the employee’s sex. As explained, a disparate treatment case requires proof of intent—i.e., that the employee’s sex motivated the firing. In short, what this example shows is that discrimination because of sexual orientation or gender identity does not inherently or necessarily entail discrimination because of sex, and for that reason, the Court’s chief argument collapses.
Trying to escape the consequences of the attorney’s concession, the Court offers its own hypothetical:
“Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not.” Ante, at 18.
How this hypothetical proves the Court’s point is a mystery. A person who checked that box would presumably be black, Catholic, or both, and refusing to hire an applicant because of race or religion is prohibited by Title VII. Rejecting applicants who checked a box indicating that they are homosexual is entirely different because it is impossible to tell from that answer whether an applicant is male or female.
The Court follows this strange hypothetical with an even stranger argument. The Court argues that an applicant

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could not answer the question whether he or she is homosexual without knowing something about sex. If the applicant was unfamiliar with the term “homosexual,” the applicant would have to look it up or ask what the term means. And because this applicant would have to take into account his or her sex and that of the persons to whom he or she is sexually attracted to answer the question, it follows, the Court reasons, that an employer could not reject this applicant without taking the applicant’s sex into account. See ante, at 18–19.
This is illogical. Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot reject an applicant based on homosexuality without knowing the applicant’s sex.
While the Court’s imagined application form proves nothing, another hypothetical case offered by the Court is telling. But what it proves is not what the Court thinks. The Court posits:
“Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.” Ante, at 11.
This example disproves the Court’s argument because it is perfectly clear that the employer’s motivation in firing the female employee had nothing to do with that employee’s sex. The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex

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against her, rated her a “model employee.” At the party, the employer learned something new, her sexual orientation, and it was this new information that motivated her discharge. So this is another example showing that discrimination because of sexual orientation does not inherently involve discrimination because of sex.
In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. The first of these is essentially that sexual orientation and gender identity are closely related to sex. The Court argues that sexual orientation and gender identity are “inextricably bound up with sex,” ante, at 10, and that discrimination on the basis of sexual orientation or gender identity involves the application of “sex-based rules,” ante, at 17. This is a variant of an argument found in many of the briefs filed in support of the employees and in the lower court decisions that agreed with the Court’s interpretation. All these variants stress that sex, sexual orientation, and gender identity are related concepts. The Seventh Circuit observed that “[i]t would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation.’ ” Hively, 853 F. 3d, at 350.11 The Second Circuit wrote that sex is necessarily “a factor in sexual orientation” and further concluded that “sexual orientation is a function of sex.” 883 F. 3d 100, 112–113 (CA2 2018) (en banc). Bostock’s brief and those of amici supporting his position contend that sexual orientation is “a sexbased consideration.”12 Other briefs state that sexual orientation is “a function of sex”13 or is “intrinsically related to

—————— 11 See also Brief for William N. Eskridge Jr. et al. as Amici Curiae 2
(“[T]here is no reasonable way to disentangle sex from same-sex attraction or transgender status”).
12 Brief for Petitioner in No. 17–1618, at 14; see also Brief for Southern Poverty Law Center et al. as Amici Curiae 7–8.
13 Brief for Scholars Who Study the LGB Population as Amici Curiae in Nos. 17–1618, 17–1623, p. 10.

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sex.”14 Similarly, Stephens argues that sex and gender identity are necessarily intertwined: “By definition, a transgender person is someone who lives and identifies with a sex different than the sex assigned to the person at birth.”15
It is curious to see this argument in an opinion that purports to apply the purest and highest form of textualism because the argument effectively amends the statutory text. Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, “sex.” Many things are related to sex. Think of all the nouns other than “orientation” that are commonly modified by the adjective “sexual.” Some examples yielded by a quick computer search are “sexual harassment,” “sexual assault, “sexual violence,” “sexual intercourse,” and “sexual content.”
Does the Court really think that Title VII prohibits discrimination on all these grounds? Is it unlawful for an employer to refuse to hire an employee with a record of sexual harassment in prior jobs? Or a record of sexual assault or violence?
To be fair, the Court does not claim that Title VII prohibits discrimination because of everything that is related to sex. The Court draws a distinction between things that are “inextricably” related and those that are related in “some vague sense.” Ante, at 10. Apparently the Court would graft onto Title VII some arbitrary line separating the things that are related closely enough and those that are not.16 And it would do this in the name of high textualism.
—————— 14 Brief for American Psychological Association et al. as Amici Curiae
11. 15 Reply Brief for Respondent Aimee Stephens in No. 18–107, p. 5. 16 Notably, Title VII itself already suggests a line, which the Court ig-
nores. The statute specifies that the terms “because of sex” and “on the basis of sex” cover certain conditions that are biologically tied to sex,

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An additional argument made in passing also fights the text of Title VII and the policy it reflects. The Court proclaims that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” Ante, at 9. That is the policy view of many people in 2020, and perhaps Congress would have amended Title VII to implement it if this Court had not intervened. But that is not the policy embodied in Title VII in its current form. Title VII prohibits discrimination based on five specified grounds, and neither sexual orientation nor gender identity is on the list. As long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are “relevant to [its] employment decisions.” Ibid. By proclaiming that sexual orientation and gender identity are “not relevant to employment decisions,” the Court updates Title VII to reflect what it regards as 2020 values.
The Court’s remaining argument is based on a hypothetical that the Court finds instructive. In this hypothetical, an employer has two employees who are “attracted to men,” and “to the employer’s mind” the two employees are “materially identical” except that one is a man and the other is a woman. Ante, at 9 (emphasis added). The Court reasons that if the employer fires the man but not the woman, the employer is necessarily motivated by the man’s biological sex. Ante, at 9–10. After all, if two employees are identical in every respect but sex, and the employer fires only one, what other reason could there be?
The problem with this argument is that the Court loads the dice. That is so because in the mind of an employer who does not want to employ individuals who are attracted to
—————— namely, “pregnancy, childbirth, [and] related medical conditions.” 42 U. S. C. §2000e(k). This definition should inform the meaning of “because of sex” in Title VII more generally. Unlike pregnancy, neither sexual orientation nor gender identity is biologically linked to women or men.

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members of the same sex, these two employees are not materially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. And until Title VII is amended to add sexual orientation as a prohibited ground, this is a view that an employer is permitted to implement. As noted, other than prohibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even idiosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. And until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals.
Once this is recognized, what we have in the Court’s hypothetical case are two employees who differ in two ways–– sex and sexual orientation––and if the employer fires one and keeps the other, all that can be inferred is that the employer was motivated either entirely by sexual orientation, entirely by sex, or in part by both. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex. The Court harps on the fact that under Title VII a prohibited ground need not be the sole motivation for an adverse employment action, see ante, at 10–11, 14–15, 21, but its example does not show that sex necessarily played any part in the employer’s thinking.
The Court tries to avoid this inescapable conclusion by arguing that sex is really the only difference between the two employees. This is so, the Court maintains, because both employees “are attracted to men.” Ante, at 9–10. Of course, the employer would couch its objection to the man differently. It would say that its objection was his sexual orientation. So this may appear to leave us with a battle of

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labels. If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex.
The Court insists that its label is the right one, and that presumably is why it makes such a point of arguing that an employer cannot escape liability under Title VII by giving sex discrimination some other name. See ante, at 14, 17. That is certainly true, but so is the opposite. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court cannot prove its point simply by labeling the employer’s objection as “attract[ion] to men.” Ante, at 9–10. Rather, the Court needs to show that its label is the correct one.
And a labeling standoff would not help the Court because that would mean that the bare text of Title VII does not unambiguously show that its interpretation is right. The Court would have no justification for its stubborn refusal to look any further.
As it turns out, however, there is no standoff. It can easily be shown that the employer’s real objection is not “attract[ion] to men” but homosexual orientation.
In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the discharged employees crossed out:

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Man attracted to men Woman attracted to men Woman attracted to women Man attracted to women
The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the employer’s real motive.
In sum, the Court’s textual arguments fail on their own terms. The Court tries to prove that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” ante, at 9, but as has been shown, it is entirely possible for an employer to do just that. “[H]omosexuality and transgender status are distinct concepts from sex,” ante, at 19, and discrimination because of sexual orientation or transgender status does not inherently or necessarily constitute discrimination because of sex. The Court’s arguments are squarely contrary to the statutory text.
But even if the words of Title VII did not definitively refute the Court’s interpretation, that would not justify the Court’s refusal to consider alternative interpretations. The Court’s excuse for ignoring everything other than the bare statutory text is that the text is unambiguous and therefore no one can reasonably interpret the text in any way other than the Court does. Unless the Court has met that high standard, it has no justification for its blinkered approach. And to say that the Court’s interpretation is the only possible reading is indefensible.
B
Although the Court relies solely on the arguments discussed above, several other arguments figure prominently in the decisions of the lower courts and in briefs submitted

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by or in support of the employees. The Court apparently finds these arguments unpersuasive, and so do I, but for the sake of completeness, I will address them briefly.
1
One argument, which relies on our decision in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) (plurality opinion), is that discrimination because of sexual orientation or gender identity violates Title VII because it constitutes prohibited discrimination on the basis of sex stereotypes. See 883 F. 3d, at 119–123; Hively, 853 F. 3d, at 346; 884 F. 3d 560, 576–577 (CA6 2018). The argument goes like this. Title VII prohibits discrimination based on stereotypes about the way men and women should behave; the belief that a person should be attracted only to persons of the opposite sex and the belief that a person should identify with his or her biological sex are examples of such stereotypes; therefore, discrimination on either of these grounds is unlawful.
This argument fails because it is based on a faulty premise, namely, that Title VII forbids discrimination based on sex stereotypes. It does not. It prohibits discrimination because of “sex,” and the two concepts are not the same. See Price Waterhouse, 490 U. S., at 251. That does not mean, however, that an employee or applicant for employment cannot prevail by showing that a challenged decision was based on a sex stereotype. Such evidence is relevant to prove discrimination because of sex, and it may be convincing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex. See ibid.
Much of the plaintiff ’s evidence in Price Waterhouse was of this nature. The plaintiff was a woman who was passed over for partnership at an accounting firm, and some of the adverse comments about her work appeared to criticize her for being forceful and insufficiently “feminin[e].” Id., at 235–236.

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The main issue in Price Waterhouse––the proper allocation of the burdens of proof in a so-called mixed motives Title VII case—is not relevant here, but the plurality opinion, endorsed by four Justices, commented on the issue of sex stereotypes. The plurality observed that “sex stereotypes do not inevitably prove that gender played a part in a particular employment decision” but “can certainly be evidence that gender played a part.” Id., at 251.17 And the plurality made it clear that “[t]he plaintiff must show that the employer actually relied on her gender in making its decision.” Ibid.
Plaintiffs who allege that they were treated unfavorably because of their sexual orientation or gender identity are not in the same position as the plaintiff in Price Waterhouse. In cases involving discrimination based on sexual orientation or gender identity, the grounds for the employer’s decision—that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women. “[H]eterosexuality is not a female stereotype; it not a male stereotype; it is not a sexspecific stereotype at all.” Hively, 853 F. 3d, at 370 (Sykes, J., dissenting).
To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a
—————— 17 Two other Justices concurred in the judgment but did not comment
on the issue of stereotypes. See id., at 258–261 (opinion of White, J.); id., at 261–279 (opinion of O’Connor, J.). And Justice Kennedy reiterated on behalf of the three Justices in dissent that “Title VII creates no independent cause of action for sex stereotyping,” but he added that “[e]vidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent.” Id., at 294.

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different matter.
2
A second prominent argument made in support of the result that the Court now reaches analogizes discrimination against gays and lesbians to discrimination against a person who is married to or has an intimate relationship with a person of a different race. Several lower court cases have held that discrimination on this ground violates Title VII. See, e.g., Holcomb v. Iona College, 521 F. 3d 130 (CA2 2008); Parr v. Woodmen of World Life Ins. Co., 791 F. 2d 888 (CA11 1986). And the logic of these decisions, it is argued, applies equally where an employee or applicant is treated unfavorably because he or she is married to, or has an intimate relationship with, a person of the same sex.
This argument totally ignores the historically rooted reason why discrimination on the basis of an interracial relationship constitutes race discrimination. And without taking history into account, it is not easy to see how the decisions in question fit the terms of Title VII.
Recall that Title VII makes it unlawful for an employer to discriminate against an individual “because of such individual’s race.” 42 U. S. C. §2000e–2(a) (emphasis added). So if an employer is happy to employ whites and blacks but will not employ any employee in an interracial relationship, how can it be said that the employer is discriminating against either whites or blacks “because of such individual’s race”? This employer would be applying the same rule to all its employees regardless of their race.
The answer is that this employer is discriminating on a ground that history tells us is a core form of race discrimination.18 “It would require absolute blindness to the history

—————— 18 Notably, Title VII recognizes that in light of history distinctions on
the basis of race are always disadvantageous, but it permits certain dis-

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of racial discrimination in this country not to understand what is at stake in such cases . . . . A prohibition on ‘racemixing’ was . . . grounded in bigotry against a particular race and was an integral part of preserving the rigid hierarchical distinction that denominated members of the black race as inferior to whites.” 883 F. 3d, at 158–159 (Lynch, J., dissenting).
Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women. An employer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. See Wittmer v. Phillips 66 Co., 915 F. 3d 328, 338 (CA5 2019) (Ho, J., concurring).
3
The opinion of the Court intimates that the term “sex” was not universally understood in 1964 to refer just to the categories of male and female, see ante, at 5, and while the Court does not take up any alternative definition as a ground for its decision, I will say a word on this subject.
As previously noted, the definitions of “sex” in the unabridged dictionaries in use in the 1960s are reproduced in Appendix A, infra. Anyone who examines those definitions can see that the primary definition in every one of them refers to the division of living things into two groups, male and female, based on biology, and most of the definitions further down the list are the same or very similar. In addition, some definitions refer to heterosexual sex acts. See

—————— tinctions based on sex. Title 42 U. S. C. §2000e–2(e)(1) allows for “instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” Race is wholly absent from this list.

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Random House Dictionary 1307 (“coitus,” “sexual intercourse” (defs. 5–6)); American Heritage Dictionary, at 1187 (“sexual intercourse” (def. 5)).19
Aside from these, what is there? One definition, “to neck passionately,” Random House Dictionary 1307 (def. 8), refers to sexual conduct that is not necessarily heterosexual. But can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against employees, whether heterosexual or homosexual, who engage in necking? And even if Title VII had that effect, that is not what is at issue in cases like those before us.
That brings us to the two remaining subsidiary definitions, both of which refer to sexual urges or instincts and their manifestations. See the fourth definition in the American Heritage Dictionary, at 1187 (“the sexual urge or instinct as it manifests itself in behavior”), and the fourth definition in both Webster’s Second and Third (“[p]henomena of sexual instincts and their manifestations,” Webster’s New International Dictionary, at 2296 (2d ed.); Webster’s Third New International Dictionary 2081 (1966)). Since both of these come after three prior definitions that refer to men and women, they are most naturally read to have the same association, and in any event, is it plausible that Title VII prohibits discrimination based on any sexual urge or instinct and its manifestations? The urge to rape?
Viewing all these definitions, the overwhelming impact is that discrimination because of “sex” was understood during the era when Title VII was enacted to refer to men and women. (The same is true of current definitions, which are reproduced in Appendix B, infra.) This no doubt explains why neither this Court nor any of the lower courts have tried to make much of the dictionary definitions of sex just
—————— 19 See American Heritage Dictionary 1188 (1969) (defining “sexual in-
tercourse”); Webster’s Third New International Dictionary 2082 (1966) (same); Random House Dictionary of the English Language 1308 (1966) (same).

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discussed.
II A
So far, I have not looked beyond dictionary definitions of “sex,” but textualists like Justice Scalia do not confine their inquiry to the scrutiny of dictionaries. See Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 109 (2001). Dictionary definitions are valuable because they are evidence of what people at the time of a statute’s enactment would have understood its words to mean. Ibid. But they are not the only source of relevant evidence, and what matters in the end is the answer to the question that the evidence is gathered to resolve: How would the terms of a statute have been understood by ordinary people at the time of enactment?
Justice Scalia was perfectly clear on this point. The words of a law, he insisted, “mean what they conveyed to reasonable people at the time.” Reading Law, at 16 (emphasis added).20
Leading proponents of Justice Scalia’s school of textualism have expounded on this principle and explained that it is grounded on an understanding of the way language works. As Dean John F. Manning explains, “the meaning of language depends on the way a linguistic community uses words and phrases in context.” What Divides Textualists From Purposivists? 106 Colum. L. Rev. 70, 78 (2006). “[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic context,” id., at 79–80, and this is no less true of statutes than any other verbal communications. “[S]tatutes convey meaning only because members of a relevant linguistic
—————— 20 See also Chisom v. Roemer, 501 U. S. 380, 405 (1991) (Scalia, J., dis-
senting) (“We are to read the words of [a statutory] text as any ordinary Member of Congress would have read them . . . and apply the meaning so determined”).

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community apply shared background conventions for understanding how particular words are used in particular contexts.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2457 (2003). Therefore, judges should ascribe to the words of a statute “what a reasonable person conversant with applicable social conventions would have understood them to be adopting.” Manning, 106 Colum. L. Rev., at 77. Or, to put the point in slightly different terms, a judge interpreting a statute should ask “ ‘what one would ordinarily be understood as saying, given the circumstances in which one said it.’ ” Manning, 116 Harv. L. Rev., at 2397– 2398.
Judge Frank Easterbrook has made the same points:
“Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding. . . . Language in general, and legislation in particular, is a social enterprise to which both speakers and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance.” Herrmann v. Cencom Cable Assocs., Inc., 978 F. 2d 978, 982 (CA7 1992).
Consequently, “[s]licing a statute into phrases while ignoring . . . the setting of the enactment . . . is a formula for disaster.” Ibid.; see also Continental Can Co. v. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund, 916 F. 2d 1154, 1157 (CA7 1990) (“You don’t have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities”).
Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a

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distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.
For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average Americans decided to read the text of the bill with the aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity?
B
The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. The possibility that discrimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed their minds.
1
In 1964, the concept of prohibiting discrimination “because of sex” was no novelty. It was a familiar and wellunderstood concept, and what it meant was equal treatment for men and women.

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Long before Title VII was adopted, many pioneering state and federal laws had used language substantively indistinguishable from Title VII’s critical phrase, “discrimination because of sex.” For example, the California Constitution of 1879 stipulated that no one, “on account of sex, [could] be disqualified from entering upon or pursuing any lawful business, vocation, or profession.” Art. XX, §18 (emphasis added). It also prohibited a student’s exclusion from any state university department “on account of sex.” Art. IX, §9; accord, Mont. Const., Art. XI, §9 (1889).
Wyoming’s first Constitution proclaimed broadly that “[b]oth male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges,” Art. VI, §1 (1890), and then provided specifically that “[i]n none of the public schools . . . shall distinction or discrimination be made on account of sex,” Art. VII, §10 (emphasis added); see also §16 (the “university shall be equally open to students of both sexes”). Washington’s Constitution likewise required “ample provision for the education of all children . . . without distinction or preference on account of . . . sex.” Art. IX, §1 (1889) (emphasis added).
The Constitution of Utah, adopted in 1895, provided that the right to vote and hold public office “shall not be denied or abridged on account of sex.” Art. IV, §1 (emphasis added). And in the next sentence it made clear what “on account of sex” meant, stating that “[b]oth male and female citizens . . . shall enjoy equally all civil, political and religious rights and privileges.” Ibid.
The most prominent example of a provision using this language was the Nineteenth Amendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” U. S. Const., Amdt. 19. Similar language appeared in the proposal of the National Woman’s Party for an Equal Rights Amendment. As framed in 1921, this proposal forbade all “political, civil or legal disabilities or inequalities on account of sex, [o]r on account of marriage.”

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Women Lawyers Meet: Representatives of 20 States Endorse Proposed Equal Rights Amendment, N. Y. Times, Sept. 16, 1921, p. 10.
Similar terms were used in the precursor to the Equal Pay Act. Introduced in 1944 by Congresswoman Winifred C. Stanley, it proclaimed that “[d]iscrimination against employees, in rates of compensation paid, on account of sex” was “contrary to the public interest.” H. R. 5056, 78th Cong., 2d Sess.
In 1952, the new Constitution for Puerto Rico, which was approved by Congress, 66 Stat. 327, prohibited all “discrimination . . . on account of . . . sex,” Art. II, Bill of Rights §1 (emphasis added), and in the landmark Immigration and Nationality Act of 1952, Congress outlawed discrimination in naturalization “because of . . . sex.” 8 U. S. C. §1422 (emphasis added).
In 1958, the International Labour Organisation, a United Nations agency of which the United States is a member, recommended that nations bar employment discrimination “made on the basis of . . . sex.” Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation, Art. 1(a), June 25, 1958, 362 U. N. T. S. 32 (emphasis added).
In 1961, President Kennedy ordered the Civil Service Commission to review and modify personnel policies “to assure that selection for any career position is hereinafter made solely on the basis of individual merit and fitness, without regard to sex.”21 He concurrently established a “Commission on the Status of Women” and directed it to recommend policies “for overcoming discriminations in government and private employment on the basis of sex.” Exec. Order No. 10980, 3 CFR 138 (1961 Supp.) (emphasis
—————— 21 J. Kennedy, Statement by the President on the Establishment of
the President’s Commission on the Status of Women 3 (Dec. 14, 1961) (emphasis added), https://www.jfklibrary.org/asset-viewer/archives/ JFKPOF/093/JFKPOF-093-004.

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added). In short, the concept of discrimination “because of,” “on
account of,” or “on the basis of ” sex was well understood. It was part of the campaign for equality that had been waged by women’s rights advocates for more than a century, and what it meant was equal treatment for men and women.22
2
Discrimination “because of sex” was not understood as having anything to do with discrimination because of sexual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day.
For most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time. And the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment.

—————— 22 Analysis of the way Title VII’s key language was used in books and
articles during the relevant time period supports this conclusion. A study searched a vast database of documents from that time to determine how the phrase “discriminate against . . . because of [some trait]” was used. Phillips, The Overlooked Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality (manuscript, at 3) (May 11, 2020) (brackets in original), https://ssrn.com/ abstract=3585940. The study found that the phrase was used to denote discrimination against “someone . . . motivated by prejudice, or biased ideas or attitudes . . . directed at people with that trait in particular.” Id., at 7 (emphasis deleted). In other words, “discriminate against” was “associated with negative treatment directed at members of a discrete group.” Id., at 5. Thus, as used in 1964, “discrimination because of sex” would have been understood to mean discrimination against a woman or a man based on “unfair beliefs or attitudes” about members of that particular sex. Id., at 7.

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In its then-most recent Diagnostic and Statistical Manual of Mental Disorders (1952) (DSM–I), the American Psychiatric Association (APA) classified same-sex attraction as a “sexual deviation,” a particular type of “sociopathic personality disturbance,” id., at 38–39, and the next edition, issued in 1968, similarly classified homosexuality as a “sexual deviatio[n],” Diagnostic and Statistical Manual of Mental Disorders 44 (2d ed.) (DSM–II). It was not until the sixth printing of the DSM–II in 1973 that this was changed.23
Society’s treatment of homosexuality and homosexual conduct was consistent with this understanding. Sodomy was a crime in every State but Illinois, see W. Eskridge, Dishonorable Passions 387–407 (2008), and in the District of Columbia, a law enacted by Congress made sodomy a felony punishable by imprisonment for up to 10 years and permitted the indefinite civil commitment of “sexual psychopath[s],” Act of June 9, 1948, §§104, 201–207, 62 Stat. 347– 349.24

—————— 23 APA, Homosexuality and Sexual Orientation Disturbance: Proposed
Change in DSM–II, 6th Printing, p. 44 (APA Doc. Ref. No. 730008, 1973) (reclassifying “homosexuality” as a “[s]exual orientation disturbance,” a category “for individuals whose sexual interests are directed primarily toward people of the same sex and who are either disturbed by . . . or wish to change their sexual orientation,” and explaining that “homosexuality . . . by itself does not constitute a psychiatric disorder”); see also APA, Diagnostic and Statistical Manual of Mental Disorders 281–282 (3d ed. 1980) (DSM–III) (similarly creating category of “Ego-dystonic Homosexuality” for “homosexuals for whom changing sexual orientation is a persistent concern,” while observing that “homosexuality itself is not considered a mental disorder”); Obergefell v. Hodges, 576 U. S. 644, 661 (2015).
24 In 1981, after achieving home rule, the District attempted to decriminalize sodomy, see D. C. Act No. 4–69, but the House of Representatives vetoed the bill, H. Res. 208, 97th Cong., 1st Sess. (1981); 127 Cong. Rec. 22764–22779 (1981). Sodomy was not decriminalized in the District until 1995. See Anti-Sexual Abuse Act of 1994, §501(b), 41 D. C. Reg. 53 (1995), enacted as D. C. Law 10–257.

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This view of homosexuality was reflected in the rules governing the federal work force. In 1964, federal “[a]gencies could deny homosexual men and women employment because of their sexual orientation,” and this practice continued until 1975. GAO, D. Heivilin, Security Clearances: Consideration of Sexual Orientation in the Clearance Process 2 (GAO/NSIAD–95–21, 1995). See, e.g., Anonymous v. Macy, 398 F. 2d 317, 318 (CA5 1968) (affirming dismissal of postal employee for homosexual acts).
In 1964, individuals who were known to be homosexual could not obtain security clearances, and any who possessed clearances were likely to lose them if their orientation was discovered. A 1953 Executive Order provided that background investigations should look for evidence of “sexual perversion,” as well as “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.” Exec. Order No. 10450, §8(a)(1)(iii), 3 CFR 938 (1949–1953 Comp.). “Until about 1991, when agencies began to change their security policies and practices regarding sexual orientation, there were a number of documented cases where defense civilian or contractor employees’ security clearances were denied or revoked because of their sexual orientation.” GAO, Security Clearances, at 2. See, e.g., Adams v. Laird, 420 F. 2d 230, 240 (CADC 1969) (upholding denial of security clearance to defense contractor employee because he had “engaged in repeated homosexual acts”); see also Webster v. Doe, 486 U. S. 592, 595, 601 (1988) (concluding that decision to fire a particular individual because he was homosexual fell within the “discretion” of the Director of Central Intelligence under the National Security Act of 1947 and thus was unreviewable under the APA).
The picture in state employment was similar. In 1964, it was common for States to bar homosexuals from serving as teachers. An article summarizing the situation 15 years after Title VII became law reported that “[a]ll states have statutes that permit the revocation of teaching certificates

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(or credentials) for immorality, moral turpitude, or unprofessionalism,” and, the survey added, “[h]omosexuality is considered to fall within all three categories.”25
The situation in California is illustrative. California laws prohibited individuals who engaged in “immoral conduct” (which was construed to include homosexual behavior), as well as those convicted of “sex offenses” (like sodomy), from employment as teachers. Cal. Educ. Code Ann. §§13202, 13207, 13209, 13218, 13255 (West 1960). The teaching certificates of individuals convicted of engaging in homosexual acts were revoked. See, e.g., Sarac v. State Bd. of Ed., 249 Cal. App. 2d 58, 62–64, 57 Cal. Rptr. 69, 72–73 (1967) (upholding revocation of secondary teaching credential from teacher who was convicted of engaging in homosexual conduct on public beach), overruled in part, Morrison v. State Bd. of Ed., 1 Cal. 3d 214, 461 P. 2d 375 (1969).
In Florida, the legislature enacted laws authorizing the revocation of teaching certificates for “misconduct involving moral turpitude,” Fla. Stat. Ann. §229.08(16) (1961), and this law was used to target homosexual conduct. In 1964, a legislative committee was wrapping up a 6-year campaign to remove homosexual teachers from public schools and state universities. As a result of these efforts, the state board of education apparently revoked at least 71 teachers’ certificates and removed at least 14 university professors. Eskridge, Dishonorable Passions, at 103.
Individuals who engaged in homosexual acts also faced the loss of other occupational licenses, such as those needed to work as a “lawyer, doctor, mortician, [or] beautician.”26 See, e.g., Florida Bar v. Kay, 232 So. 2d 378 (Fla. 1970) (attorney disbarred after conviction for homosexual conduct in
—————— 25 Rivera, Our Straight-Laced Judges: The Legal Position of Homosex-
ual Persons in the United States, 30 Hastings L. J. 799, 861 (1979). 26 Eskridge, Challenging the Apartheid of the Closet: Establishing
Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961–1981, 25 Hofstra L. Rev. 817, 819 (1997).

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public bathroom). In 1964 and for many years thereafter, homosexuals were
barred from the military. See, e.g., Army Reg. 635–89, §I(2) (a) (July 15, 1966) (“Personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted to serve in the Army in any capacity, and their prompt separation is mandatory”); Army Reg. 600–443, §I(2) (April 10, 1953) (similar). Prohibitions against homosexual conduct by members of the military were not eliminated until 2010. See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515 (repealing 10 U. S. C. §654, which required members of the Armed Forces to be separated for engaging in homosexual conduct).
Homosexuals were also excluded from entry into the United States. The Immigration and Nationality Act of 1952 (INA) excluded aliens “afflicted with psychopathic personality.” 8 U. S. C. §1182(a)(4) (1964 ed.). In Boutilier v. INS, 387 U. S. 118, 120–123 (1967), this Court, relying on the INA’s legislative history, interpreted that term to encompass homosexuals and upheld an alien’s deportation on that ground. Three Justices disagreed with the majority’s interpretation of the phrase “psychopathic personality.”27 But it apparently did not occur to anyone to argue that the Court’s interpretation was inconsistent with the INA’s express prohibition of discrimination “because of sex.” That was how our society—and this Court—saw things a half century ago. Discrimination because of sex and discrimination because of sexual orientation were viewed as two entirely different concepts.
To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our
—————— 27 Justices Douglas and Fortas thought that a homosexual is merely
“one, who by some freak, is the product of an arrested development.” Boutilier, 387 U. S., at 127 (Douglas, J., dissenting); see also id., at 125 (Brennan, J., dissenting) (based on lower court dissent).

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duty is to understand what the terms of Title VII were understood to mean when enacted, and in doing so, we must take into account the societal norms of that time. We must therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that represented the official policy of the Federal Government with respect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment.
The questions answer themselves. Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were understood to mean at that time. To paraphrase something Justice Scalia once wrote, “our job is not to scavenge the world of English usage to discover whether there is any possible meaning” of discrimination because of sex that might be broad enough to encompass discrimination because of sexual orientation or gender identity. Chisom v. Roemer, 501 U. S. 380, 410 (1991) (dissenting opinion). Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the “ordinary meaning” of the statute. Ibid. And in 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity.
The Court makes a tiny effort to suggest that at least some people in 1964 might have seen what Title VII really means. Ante, at 26. What evidence does it adduce? One complaint filed in 1969, another filed in 1974, and arguments made in the mid-1970s about the meaning of the Equal Rights Amendment. Ibid. To call this evidence

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merely feeble would be generous.
C
While Americans in 1964 would have been shocked to learn that Congress had enacted a law prohibiting sexual orientation discrimination, they would have been bewildered to hear that this law also forbids discrimination on the basis of “transgender status” or “gender identity,” terms that would have left people at the time scratching their heads. The term “transgender” is said to have been coined “ ‘in the early 1970s,’ ”28 and the term “gender identity,” now understood to mean “[a]n internal sense of being male, female or something else,”29 apparently first appeared in an academic article in 1964.30 Certainly, neither term was in common parlance; indeed, dictionaries of the time still primarily defined the word “gender” by reference to grammatical classifications. See, e.g., American Heritage Dictionary, at 548 (def. 1(a)) (“Any set of two or more categories, such as masculine, feminine, and neuter, into which words are divided . . . and that determine agreement with or the

—————— 28 Drescher, Transsexualism, Gender Identity Disorder and the DSM,
14 J. Gay & Lesbian Mental Health 109, 110 (2010). 29 American Psychological Association, 49 Monitor on Psychology, at
32. 30 Green, Robert Stoller’s Sex and Gender: 40 Years On, 39 Archives
Sexual Behav. 1457 (2010); see Stoller, A Contribution to the Study of Gender Identity, 45 Int’l J. Psychoanalysis 220 (1964). The term appears to have been coined a year or two earlier. See Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 93 (2004) (suggesting the term was first introduced at 23rd International Psycho-Analytical Congress in Stockholm in 1963); J. Meyerowitz, How Sex Changed 213 (2002) (referring to founding of “Gender Identity Research Clinic” at UCLA in 1962). In his book, Sex and Gender, published in 1968, Robert Stoller referred to “gender identity” as “a working term” “associated with” his research team but noted that they were not “fixed on copyrighting the term or on defending the concept as one of the splendors of the scientific world.” Sex and Gender, p. viii.

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selection of modifiers, referents, or grammatical forms”). While it is likely true that there have always been indi-
viduals who experience what is now termed “gender dysphoria,” i.e., “[d]iscomfort or distress related to an incongruence between an individual’s gender identity and the gender assigned at birth,”31 the current understanding of the concept postdates the enactment of Title VII. Nothing resembling what is now called gender dysphoria appeared in either DSM–I (1952) or DSM–II (1968). It was not until 1980 that the APA, in DSM–III, recognized two main psychiatric diagnoses related to this condition, “Gender Identity Disorder of Childhood” and “Transsexualism” in adolescents and adults.32 DSM–III, at 261–266.
The first widely publicized sex reassignment surgeries in the United States were not performed until 1966,33 and the great majority of physicians surveyed in 1969 thought that an individual who sought sex reassignment surgery was either “ ‘severely neurotic’ ” or “ ‘psychotic.’ ”34
It defies belief to suggest that the public meaning of discrimination because of sex in 1964 encompassed discrimination on the basis of a concept that was essentially unknown to the public at that time.
D 1
The Court’s main excuse for entirely ignoring the social context in which Title VII was enacted is that the meaning of Title VII’s prohibition of discrimination because of sex is
—————— 31 American Psychological Association, 49 Monitor on Psychology, at
32. 32 See Drescher, supra, at 112. 33 Buckley, A Changing of Sex by Surgery Begun at Johns Hopkins,
N. Y. Times, Nov. 21, 1966, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed 218–220 (2002).
34 Drescher, supra, at 112 (quoting Green, Attitudes Toward Transsexualism and Sex-Reassignment Procedures, in Transsexualism and Sex Reassignment 241–242 (R. Green & J. Money eds. 1969)).

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clear, and therefore it simply does not matter whether people in 1964 were “smart enough to realize” what its language means. Hively, 853 F. 3d, at 357 (Posner, J., concurring). According to the Court, an argument that looks to the societal norms of those times represents an impermissible attempt to displace the statutory language. Ante, at 25–26.
The Court’s argument rests on a false premise. As already explained at length, the text of Title VII does not prohibit discrimination because of sexual orientation or gender identity. And what the public thought about those issues in 1964 is relevant and important, not because it provides a ground for departing from the statutory text, but because it helps to explain what the text was understood to mean when adopted.
In arguing that we must put out of our minds what we know about the time when Title VII was enacted, the Court relies on Justice Scalia’s opinion for the Court in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998). But Oncale is nothing like these cases, and no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project.
The Court’s unanimous decision in Oncale was thoroughly unremarkable. The Court held that a male employee who alleged that he had been sexually harassed at work by other men stated a claim under Title VII. Although the impetus for Title VII’s prohibition of sex discrimination was to protect women, anybody reading its terms would immediately appreciate that it applies equally to both sexes, and by the time Oncale reached the Court, our precedent already established that sexual harassment may constitute sex discrimination within the meaning of Title VII. See Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986). Given these premises, syllogistic reasoning dictated the holding.

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What today’s decision latches onto are Oncale’s comments about whether “ ‘male-on-male sexual harassment’ ” was on Congress’s mind when it enacted Title VII. Ante, at 28 (quoting 523 U. S., at 79). The Court in Oncale observed that this specific type of behavior “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but it found that immaterial because “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U. S., at 79 (emphasis added).
It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implications for the interpretation of legal rules. These comments are better understood as stating mundane and uncontroversial truths. Who would argue that a statute applies only to the “principal evils” and not lesser evils that fall within the plain scope of its terms? Would even the most ardent “purposivists” and fans of legislative history contend that congressional intent is restricted to Congress’s “principal concerns”?
Properly understood, Oncale does not provide the slightest support for what the Court has done today. For one thing, it would be a wild understatement to say that discrimination because of sexual orientation and transgender status was not the “principal evil” on Congress’s mind in 1964. Whether we like to admit it now or not, in the thinking of Congress and the public at that time, such discrimination would not have been evil at all.
But the more important difference between these cases and Oncale is that here the interpretation that the Court adopts does not fall within the ordinary meaning of the statutory text as it would have been understood in 1964. To

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decide for the defendants in Oncale, it would have been necessary to carve out an exception to the statutory text. Here, no such surgery is at issue. Even if we totally disregard the societal norms of 1964, the text of Title VII does not support the Court’s holding. And the reasoning of Oncale does not preclude or counsel against our taking those norms into account. They are relevant, not for the purpose of creating an exception to the terms of the statute, but for the purpose of better appreciating how those terms would have been understood at the time.
2
The Court argues that two other decisions––Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), and Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978)––buttress its decision, but those cases merely held that Title VII prohibits employer conduct that plainly constitutes discrimination because of biological sex. In Philips, the employer treated women with young children less favorably than men with young children. In Manhart, the employer required women to make larger pension contributions than men. It is hard to see how these holdings assist the Court.
The Court extracts three “lessons” from Phillips, Manhart, and Oncale, but none sheds any light on the question before us. The first lesson is that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Ante, at 14. This lesson is obviously true but proves nothing. As to the label attached to a practice, has anyone ever thought that the application of a law to a person’s conduct depends on how it is labeled? Could a bank robber escape conviction by saying he was engaged in asset enhancement? So if an employer discriminates because of sex, the employer is liable no matter what it calls its conduct, but if the employer’s

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conduct is not sex discrimination, the statute does not apply. Thus, this lesson simply takes us back to the question whether discrimination because of sexual orientation or gender identity is a form of discrimination because of biological sex. For reasons already discussed, see Part I–A, supra, it is not.
It likewise proves nothing of relevance here to note that an employer cannot escape liability by showing that discrimination on a prohibited ground was not its sole motivation. So long as a prohibited ground was a motivating factor, the existence of other motivating factors does not defeat liability.
The Court makes much of the argument that “[i]n Phillips, the employer could have accurately spoken of its policy as one based on ‘motherhood.’ ” Ante, at 14; see also ante, at 16. But motherhood, by definition, is a condition that can be experienced only by women, so a policy that distinguishes between motherhood and parenthood is necessarily a policy that draws a sex-based distinction. There was sex discrimination in Phillips, because women with children were treated disadvantageously compared to men with children.
Lesson number two—“the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action,” ante, at 14—is similarly unhelpful. The standard of causation in these cases is whether sex is necessarily a “motivating factor” when an employer discriminates on the basis of sexual orientation or gender identity. 42 U. S. C. §2000e– 2(m). But the essential question—whether discrimination because of sexual orientation or gender identity constitutes sex discrimination—would be the same no matter what causation standard applied. The Court’s extensive discussion of causation standards is so much smoke.
Lesson number three––“an employer cannot escape liability by demonstrating that it treats males and females comparably as groups,” ante, at 15, is also irrelevant. There

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is no dispute that discrimination against an individual employee based on that person’s sex cannot be justified on the ground that the employer’s treatment of the average employee of that sex is at least as favorable as its treatment of the average employee of the opposite sex. Nor does it matter if an employer discriminates against only a subset of men or women, where the same subset of the opposite sex is treated differently, as in Phillips. That is not the issue here. An employer who discriminates equally on the basis of sexual orientation or gender identity applies the same criterion to every affected individual regardless of sex. See Part I–A, supra.
III A
Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on textualist grounds. But even if the Court’s textualist argument were stronger, that would not explain today’s decision. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory interpretation that is limited to the analysis of statutory text. Instead, when there is ambiguity in the terms of a statute, they have found it appropriate to look to other evidence of “congressional intent,” including legislative history.
So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? Any assessment of congressional intent or legislative history seriously undermines the Court’s interpretation.
B
As the Court explained in General Elec. Co. v. Gilbert, 429 U. S. 125, 143 (1976), the legislative history of Title VII’s prohibition of sex discrimination is brief, but it is nevertheless revealing. The prohibition of sex discrimination was “added to Title VII at the last minute on the floor of the

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House of Representatives,” Meritor Savings Bank, 477 U. S., at 63, by Representative Howard Smith, the Chairman of the Rules Committee. See 110 Cong. Rec. 2577 (1964). Representative Smith had been an ardent opponent of the civil rights bill, and it has been suggested that he added the prohibition against discrimination on the basis of “sex” as a poison pill. See, e.g., Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1085 (CA7 1984). On this theory, Representative Smith thought that prohibiting employment discrimination against women would be unacceptable to Members who might have otherwise voted in favor of the bill and that the addition of this prohibition might bring about the bill’s defeat.35 But if Representative Smith had been looking for a poison pill, prohibiting discrimination on the basis of sexual orientation or gender identity would have been far more potent. However, neither Representative Smith nor any other Member said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned discrimination on the basis of biological sex.36 See 110 Cong. Rec. 2577–2584.
Representative Smith’s motivations are contested, 883 F. 3d, at 139–140 (Lynch, J., dissenting), but whatever they

—————— 35 See Osterman, Origins of a Myth: Why Courts, Scholars, and the
Public Think Title VII’s Ban on Sex Discrimination Was an Accident, 20 Yale J. L. & Feminism 409, 409–410 (2009).
36 Recent scholarship has linked the adoption of the Smith Amendment to the broader campaign for women’s rights that was underway at the time. E.g., Osterman, supra; Freeman, How Sex Got Into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 L. & Ineq. 163 (1991); Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Provision, 28 Yale J. L. & Feminism 55 (2016); Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for the Issue of Comparable Worth, 19 Duquesne L. Rev. 453 (1981). None of these studies has unearthed evidence that the amendment was understood to apply to discrimination because of sexual orientation or gender identity.

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were, the meaning of the adoption of the prohibition of sex discrimination is clear. It was no accident. It grew out of “a long history of women’s rights advocacy that had increasingly been gaining mainstream recognition and acceptance,” and it marked a landmark achievement in the path toward fully equal rights for women. Id., at 140. “Discrimination against gay women and men, by contrast, was not on the table for public debate . . . [i]n those dark, preStonewall days.” Ibid.
For those who regard congressional intent as the touchstone of statutory interpretation, the message of Title VII’s legislative history cannot be missed.
C
Post-enactment events only clarify what was apparent when Title VII was enacted. As noted, bills to add “sexual orientation” to Title VII’s list of prohibited grounds were introduced in every Congress beginning in 1975, see supra, at 2, and two such bills were before Congress in 199137 when it made major changes in Title VII. At that time, the three Courts of Appeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orientation,38 two other Circuits had endorsed that interpretation in dicta,39 and no Court of Appeals had held otherwise. Similarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument

—————— 37 H. R. 1430, 102d Cong., 1st Sess., §2(d) (as introduced in the House
on Mar. 13, 1991); S. 574, 102d Cong., 1st Sess., §5 (as introduced in the Senate on Mar. 6, 1991).
38 See Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA8 1989) (per curiam), cert. denied, 493 U. S. 1089 (1990); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam).
39 Ruth v. Children’s Med. Ctr., 1991 WL 151158, *5 (CA6, Aug. 8, 1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084– 1085 (CA7 1984), cert. denied, 471 U. S. 1017 (1985).

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that it covered discrimination on this basis.40 These were also the positions of the EEOC.41 In enacting substantial changes to Title VII, the 1991 Congress abrogated numerous judicial decisions with which it disagreed. If it also disagreed with the decisions regarding sexual orientation and transgender discrimination, it could have easily overruled those as well, but it did not do so.42
After 1991, six other Courts of Appeals reached the issue of sexual orientation discrimination, and until 2017, every single Court of Appeals decision understood Title VII’s prohibition of “discrimination because of sex” to mean discrimination because of biological sex. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001), cert. denied, 534 U. S. 1155 (2002); Wrightson v. Pizza Hut of Am., Inc., 99 F. 3d 138, 143 (CA4 1996); Hamm v. Weyauwega Milk Products, Inc., 332 F. 3d 1058, 1062 (CA7 2003); Medina v. Income Support Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005); Evans v. Georgia Regional Hospital, 850 F. 3d 1248, 1255 (CA11), cert. denied, 583 U. S. ___ (2017). Similarly, the other Circuit to formally address whether Title VII applies to claims of discrimination based on transgender status had also rejected the argument, creating unanimous consensus prior to the Sixth Circuit’s decision below. See Etsitty v. Utah Transit Authority, 502 F. 3d 1215, 1220–1221 (CA10
—————— 40 See Ulane, 742 F. 2d, at 1084–1085; Sommers v. Budget Mktg., Inc.,
667 F. 2d 748, 750 (CA8 1982) (per curiam); Holloway v. Arthur Andersen & Co., 566 F. 2d 659, 661–663 (CA9 1977).
41 Dillon v. Frank, 1990 WL 1111074, *3–*4 (EEOC, Feb. 14, 1990); LaBate v. USPS, 1987 WL 774785, *2 (EEOC, Feb. 11, 1987).
42 In more recent legislation, when Congress has wanted to reach acts committed because of sexual orientation or gender identity, it has referred to those grounds by name. See, e.g., 18 U. S. C. §249(a)(2)(A) (hate crimes) (enacted 2009); 34 U. S. C. §12291(b)(13)(A) (certain federally funded programs) (enacted 2013).

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2007). The Court observes that “[t]he people are entitled to rely
on the law as written, without fearing that courts might disregard its plain terms,” ante, at 24, but it has no qualms about disregarding over 50 years of uniform judicial interpretation of Title VII’s plain text. Rather, the Court makes the jaw-dropping statement that its decision exemplifies “judicial humility.” Ante, at 31. Is it humble to maintain, not only that Congress did not understand the terms it enacted in 1964, but that all the Circuit Judges on all the pre2017 cases could not see what the phrase discrimination “because of sex” really means? If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold.
IV
What the Court has done today––interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity––is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex. See Appendix C, infra; e.g., 20 U. S. C. §1681(a) (Title IX); 42 U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1) (Equal Credit Opportunity Act). The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. As to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” Ante, at 31. And it declines to say anything about other statutes whose terms mirror Title VII’s.
The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible. If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least

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some of them. In addition, Congress might have crafted special rules for some of the relevant statutes. But by intervening and proclaiming categorically that employment discrimination based on sexual orientation or gender identity is simply a form of discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution. Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead.
As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.
I will briefly note some of the potential consequences of the Court’s decision, but I do not claim to provide a comprehensive survey or to suggest how any of these issues should necessarily play out under the Court’s reasoning.43
“[B]athrooms, locker rooms, [and other things] of [that] kind.” The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.44
Under the Court’s decision, however, transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the
—————— 43 Contrary to the implication in the Court’s opinion, I do not label
these potential consequences “undesirable.” Ante, at 31. I mention them only as possible implications of the Court’s reasoning.
44 Brief for Defend My Privacy et al. as Amici Curiae 7–10.

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sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, individuals whose gender identity is mixed or changes over time.45 Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.
A similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance.46 In 2016, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination,47 and some lower court decisions have agreed. See Whitaker v. Kenosha Unified School Dist. No. 1 Bd. of Ed., 858 F. 3d 1034, 1049 (CA7 2017); G. G. v. Gloucester Cty. School Bd., 822 F. 3d 709, 715 (CA4 2016), vacated and remanded, 580 U. S. ___ (2017); Adams v. School Bd. of St. Johns Cty., 318 F. Supp. 3d 1293, 1325 (MD Fla. 2018); cf. Doe v. Boyertown Area

—————— 45 See 1 Sadock, Comprehensive Textbook of Psychiatry, at 2063 (ex-
plaining that “gender is now often regarded as more fluid” and “[t]hus, gender identity may be described as masculine, feminine, or somewhere in between”).
46 Title IX makes it unlawful to discriminate on the basis of sex in education: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U. S. C. §1681(a).
47 See Dept. of Justice & Dept. of Education, Dear Colleague Letter on Transgender Students, May 13, 2016 (Dear Colleague Letter), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-titleix-transgender.pdf.

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School Dist., 897 F. 3d 518, 533 (CA3 2018), cert. denied, 587 U. S. ___ (2019).
Women’s sports. Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex.48 This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male. See, e.g., Complaint in Soule v. Connecticut Assn. of Schools, No. 3:20–cv– 00201 (D Conn., Apr. 17, 2020) (challenging Connecticut policy allowing transgender students to compete in girls’ high school sports); Complaint in Hecox v. Little, No. 1:20– cv–00184 (D Idaho, Apr. 15, 2020) (challenging state law that bars transgender students from participating in school sports in accordance with gender identity). Students in these latter categories have found success in athletic competitions reserved for females.49

—————— 48 A regulation allows single-sex teams, 34 CFR §106.41(b) (2019), but
the statute itself would of course take precedence. 49 “[S]ince 2017, two biological males [in Connecticut] have collectively
won 15 women’s state championship titles (previously held by ten different Connecticut girls) against biologically female track athletes.” Brief for Independent Women’s Forum et al. as Amici Curiae in No. 18–107, pp. 14–15.
At the college level, a transgendered woman (biological male) switched from competing on the men’s Division II track team to the women’s Division II track team at Franklin Pierce University in New Hampshire after taking a year of testosterone suppressants. While this student had placed “eighth out of nine male athletes in the 400 meter hurdles the

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The logic of the Court’s decision could even affect professional sports. Under the Court’s holding that Title VII prohibits employment discrimination because of transgender status, an athlete who has the physique of a man but identifies as a woman could claim the right to play on a women’s professional sports team. The owners of the team might try to claim that biological sex is a bona fide occupational qualification (BFOQ) under 42 U. S. C. §2000e–2(e), but the BFOQ exception has been read very narrowly. See Dothard v. Rawlinson, 433 U. S. 321, 334 (1977).
Housing. The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. A provision of Title IX, 20 U. S. C. §1686, allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies.50 Similar claims may be brought under the Fair Housing Act. See 42 U. S. C. §3604.
Employment by religious organizations. Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court “will trigger open conflict with faith-

—————— year before, the student won the women’s competition by over a second and a half––a time that had garnered tenth place in the men’s conference meet just three years before.” Id., at 15.
A transgender male—i.e., a biological female who was in the process of transitioning to male and actively taking testosterone injections––won the Texas girls’ state championship in high school wrestling in 2017. Babb, Transgender Issue Hits Mat in Texas, Washington Post, Feb. 26, 2017, p. A1, col. 1.
50 Indeed, the 2016 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4.

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based employment practices of numerous churches, synagogues, mosques, and other religious institutions.”51 They argue that “[r]eligious organizations need employees who actually live the faith,”52 and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.
This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching.”53 Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.
At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be “ministers.”54 But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for

—————— 51 Brief for National Association of Evangelicals et al. as Amici Curiae
3; see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, pp. 8–18.
52 Brief for National Association of Evangelicals et al. as Amici Curiae 7.
53 McConnell, Academic Freedom in Religious Colleges and Universities, 53 Law & Contemp. Prob. 303, 322 (1990).
54 See Our Lady of Guadalupe School v. Morrissey-Berru, No. 19–267; St. James School v. Biel, No. 19–348.

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the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.55
Healthcare. Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.56 Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.57
—————— 55 See, e.g., EEOC v. Kamehameha Schools/Bishop Estate, 990 F. 2d
458, 460 (CA9 1993); EEOC v. Fremont Christian School, 781 F. 2d 1362, 1365–1367 (CA9 1986); Rayburn v. General Conference of Seventh-day Adventists, 772 F. 2d 1164, 1166 (CA4 1985); EEOC v. Mississippi College, 626 F. 2d 477, 484–486 (CA5 1980); see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, at 30, n. 28 (discussing disputed scope). In addition, 42 U. S. C. §2000e– 2(e)(1) provides that religion may be a BFOQ, and allows religious schools to hire religious employees, but as noted, the BFOQ exception has been read narrowly. See supra, at 48.
56 See, e.g., Amended Complaint in Toomey v. Arizona, No. 4:19–cv– 00035 (D Ariz., Mar. 2, 2020). At least one District Court has already held that a state health insurance policy that does not provide coverage for sex reassignment surgery violates Title VII. Fletcher v. Alaska, ___ F. Supp. 3d ___, ___, 2020 WL 2487060, *5 (D Alaska, Mar. 6, 2020).
57 See, e.g., Complaint in Conforti v. St. Joseph’s Healthcare System, No. 2:17–cv–00050 (D NJ, Jan. 5, 2017) (transgender man claims discrimination under the ACA because a Catholic hospital refused to allow a surgeon to perform a hysterectomy). And multiple District Courts have already concluded that the ACA requires health insurance coverage for sex reassignment surgery and treatment. Kadel v. Folwell, ___ F. Supp. 3d ___, ___, 2020 WL 1169271, *12 (MDNC, Mar. 11, 2020) (allowing

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Such claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs.
Freedom of speech. The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under established English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories.58 Some jurisdictions, such as
—————— claims of discrimination under ACA, Title IX, and Equal Protection Clause); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 952–954 (D Minn. 2018) (allowing ACA claim).
Section 1557 of the ACA, 42 U. S. C. §18116, provides: “Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U. S. C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U. S. C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U. S. C. 6101 et seq.), or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this subsection.” (Footnote omitted.) 58 See, e.g., University of Wisconsin Milwaukee Lesbian, Gay, Bisexual, Transgender, Queer Plus (LGBTQ+) Resource Center, Gender Pronouns (2020), https://uwm.edu/lgbtrc/support/gender-pronouns/ (listing six new categories of pronouns: (f )ae, (f )aer, (f )aers; e/ey, em, eir, eirs; per, pers;

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New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense,59 and some colleges have similar rules.60 After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination. See Prescott v. Rady Children’s Hospital San Diego, 265 F. Supp. 3d 1090, 1098–1100 (SD Cal. 2017) (hospital staff ’s refusal to use preferred pronoun violates ACA).61
The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear
—————— ve, ver, vis; xe, xem, xyr, xyrs; ze/zie, hir, hirs).
59 See 47 N. Y. C. R. R. §2–06(a) (2020) (stating that a “deliberate refusal to use an individual’s self-identified name, pronoun and gendered title” is a violation of N. Y. C. Admin. Code §8–107 “where the refusal is motivated by the individual’s gender”); see also N. Y. C. Admin. Code §§8–107(1), (4), (5) (2020) (making it unlawful to discriminate on the basis of “gender” in employment, housing, and public accommodations); cf. D. C. Mun. Regs., tit. 4, §801.1 (2020) (making it “unlawful . . . to discriminate . . . on the basis of . . . actual or perceived gender identity or expression” in “employment, housing, public accommodations, or educational institutions” and further proscribing “engaging in verbal . . . harassment”).
60 See University of Minn., Equity and Access: Gender Identity, Gender Expression, Names, and Pronouns, Administrative Policy (Dec. 11, 2019), https://policy.umn.edu/operations/genderequity (“University members and units are expected to use the names, gender identities, and pronouns specified to them by other University members, except as legally required”); Meriwether v. Trustees of Shawnee State Univ., 2020 WL 704615, *1 (SD Ohio, Feb. 12, 2020) (rejecting First Amendment challenge to university’s nondiscrimination policy brought by evangelical Christian professor who was subjected to disciplinary actions for failing to use student’s preferred pronouns).
61 Cf. Notice of Removal in Vlaming v. West Point School Board, No. 3:19–cv–00773 (ED Va., Oct. 22, 2019) (contending that high school teacher’s firing for failure to use student’s preferred pronouns was based on nondiscrimination policy adopted pursuant to Title IX).

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that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.
Constitutional claims. Finally, despite the important differences between the Fourteenth Amendment and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases. Under our precedents, the Equal Protection Clause prohibits sex-based discrimination unless a “heightened” standard of review is met. Sessions v. Morales-Santana, 582 U. S. ___, ___ (2017) (slip op., at 8); United States v. Virginia, 518 U. S. 515, 532–534 (1996). By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review.
Under this logic, today’s decision may have effects that extend well beyond the domain of federal antidiscrimination statutes. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. See, e.g., Complaint in Hecox, No. 1: 20–CV–00184 (state law prohibiting transgender students from competing in school sports in accordance with their gender identity); Second Amended Complaint in Karnoski v. Trump, No. 2:17–cv–01297 (WD Wash., July 31, 2019) (military’s ban on transgender members); Kadel v. Folwell, ___ F. Supp. 3d ___, ___–___, 2020 WL 1169271, *10–*11 (MDNC, Mar. 11, 2020) (state health plan’s exclusion of coverage for sex reassignment procedures); Complaint in Gore v. Lee, No. 3:19–cv–00328 (MD Tenn., Mar. 3, 2020) (change of gender on birth certificates); Brief for Appellee in Grimm v. Gloucester Cty. School Bd., No. 19–1952 (CA4, Nov. 18, 2019) (transgender student forced to use gender neutral bathrooms at school); Complaint in Corbitt v. Taylor, No. 2:18–cv–00091 (MD Ala.,

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July 25, 2018) (change of gender on driver’s licenses); Whitaker, 858 F. 3d, at 1054 (school policy requiring students to use the bathroom that corresponds to the sex on birth certificate); Keohane v. Florida Dept. of Corrections Secretary, 952 F. 3d 1257, 1262–1265 (CA11 2020) (transgender prisoner denied hormone therapy and ability to dress and groom as a female); Edmo v. Corizon, Inc., 935 F. 3d 757, 767 (CA9 2019) (transgender prisoner requested sex reassignment surgery); cf. Glenn v. Brumby, 663 F. 3d 1312, 1320 (CA11 2011) (transgender individual fired for gender non-conformity).
Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.
* * *
The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is.
The Court itself recognizes this:
“The place to make new legislation . . . lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.” Ante, at 31.
It is easy to utter such words. If only the Court would live by them.
I respectfully dissent.

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APPENDIXES A

Webster’s New International Dictionary 2296 (2d ed. 1953):
sex (sĕks), n. [F. sexe, fr. L. sexus; prob. orig., division, and akin to L. secare to cut. See SECTION.] 1. One of the two divisions of organisms formed on the distinction of male and female; males or females collectively. 2. The sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female, or of pertaining to the distinctive function of the male or female in reproduction. Conjugation, or fertilization (union of germplasm of two individuals), a process evidently of great but not readily explainable importance in the perpetuation of most organisms, seems to be the function of differentiation of sex, which occurs in nearly all organisms at least at some stage in their life history. Sex is manifested in the conjugating cells by the larger size, abundant food material, and immobility of the female gamete (egg, egg cell, or ovum), and the small size and the locomotive power of the male gamete (spermatozoon or spermatozoid), and in the adult organisms often by many structural, physiological, and (in higher forms) psychological characters, aside from the necessary modification of the reproductive apparatus. Cf. , HERMAPHRODITE 1. In botany the term sex is often extended to the distinguishing peculiarities of staminate and pistillate flowers, and hence in dioecious plants to the individuals bearing them. In many animals and plants the body and germ cells have been shown to contain one or more chromosomes of a special kind (called sex chromosomes; idiochromosomes; accessory chromosomes) in addition to the ordinary paired autosomes. These special chromosomes serve to

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determine sex. In the simplest case, the male germ cells are of two types, one with and one without a single extra chromosome (X chromosome, or monosome). The egg cells in this case all possess an X chromosome, and on fertilization by the two types of sperm, male and female zygotes result, of respective constitution X, and XX. In many other animals and plants (probably including man) the male organism produces two types of gametes, one possessing an X chromosome, the other a Y chromosome, these being visibly different members of a pair of chromosomes present in the diploid state. In this case also, the female organism is XX, the eggs X, and the zygotes respectively male (XY) and female (XX). In another type of sex determination, as in certain moths and possibly in the fowl, the female produces two kinds of eggs, the male only one kind of sperm. Each type of egg contains one member of a pair of differentiated chromosomes, called respectively Z chromosomes and W chromosomes, while all the sperm cells contain a Z chromosome. In fertilization, union of a Z with a W gives rise to a female, while union of two Z chromosomes produces a male. Cf. SECONDARY SEX CHARACTER. 3. a The sphere of behavior dominated by the relations between male and female. b Psychoanalysis. By extension, the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct. 4. Phenomena of sexual instincts and their manifestations. 5. Sect;—a confused use. Syn.—SEX, GENDER. SEX refers to physiological distinctions; GENDER, to distinctions in grammar. —the sex. The female sex; women, in general. sex, adj. Based on or appealing to sex. sex, v. t. To determine the sex of, as skeletal remains.

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Webster’s Third New International Dictionary 2081 (1966):

1sex \‘seks\ n –ES often attrib [ME, fr. L sexus; prob. akin
to L secare to cut–more at SAW] 1: one of the two divisions of organic esp. human beings respectively designated
male or female <a member of the opposite ~> 2: the sum of the morphological, physiological, and behavioral pecu-
liarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change,
that in its typical dichotomous occurrence is usu. genetically controlled and associated with special sex chromo-
somes, and that is typically manifested as maleness and femaleness with one or the other of these being present in most higher animals though both may occur in the
same individual in many plants and some invertebrates and though no such distinction can be made in many
lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are replaced by mating types or because the participants in
sexual reproduction are indistinguishable—compare HETEROTHALLIC, HOMOTHALLIC; FERTILIZATION, MEIOSIS, MENDEL’S LAW; FREEMARTIN, HERMAPHRODITE,
INTERSEX 3: the sphere of interpersonal behavior esp. between male and female most directly associated with,
leading up to, substituting for, or resulting from genital union <agree that the Christian’s attitude toward ~
should not be considered apart from love, marriage, family—M. M. Forney> 4: the phenomena of sexual instincts and their manifestations <with his customary combina-
tion of philosophy, insight, good will toward the world, and entertaining interest in ~—Allen Drury> <studying
and assembling what modern scientists have discovered about ~—Time>; specif: SEXUAL INTERCOURSE <an old law imposing death for ~ outside marriage—William

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Empson> 2sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic
being) <it is difficult to ~ the animals at a distance—E. A. Hooton>—compare AUTOSEXING 2 a: to increase the sexual appeal or attraction of—usu. used with up <titles must be ~ed up to attract 56 million customers—Time> b: to arouse the sexual instincts or desires of—usu. used with up <watching you ~ing up that bar kitten—Oakley Hall>

9 Oxford English Dictionary 577–578 (1933):

Sex (seks), sb. Also 6–7 sexe, (6 seex, 7 pl. sexe, 8 poss. sexe’s). [ad. L. sexus (u-stem), whence also F. sexe (12th c.), Sp., Pg. sexo, It. sesso. Latin had also a form secus neut. (indeclinable).]
1. Either of the two divisions of organic beings distinguished as male and female respectively; the males or the females (of a species, etc., esp. of the human race) viewed collectively.
1382 WYCLIF Gen. vi. 19 Of alle thingis hauynge sowle of ony flehs, two thow shalt brynge
into the ark, that maal sex and femaal lyuen with thee. 1532 MORE Confut. Tindale II. 152, I
had as leue he bare them both a bare cheryte, as wyth the frayle feminyne sexe fall to far in
loue. 1559 ALYMER Harborowe E 4 b, Neither of them debarred the heires female .. as though
it had ben .. vnnatural for that sexe to gouern. 1576 GASCOIGNE Philomene xcviii, I speake
against my sex. a 1586 SIDNEY Arcadia II. (1912) 158 The sexe of womankind of all other is
most bound to have regardfull eie to mens judgements. 1600 NASHE Summer’s Last Will F 3
b, A woman they imagine her to be, Because that sexe keepes nothing close they heare. 1615
CROOKE Body of Man 274 If wee respect the .. conformation of both the Sexes, the Male is
sooner perfected .. in the wombe. 1634 SIR T. HERBERT Trav. 19 Both sexe goe naked. 1667
MILTON P. L. IX, 822 To add what wants In Femal Sex. 1671—Samson 774 It was a weakness
In me, but incident to all our sex. 1679 DRYDEN Troilus & Cr. I. ii, A strange dissembling sex
we women are. 1711 ADDISON Spect. No. 10 ¶ 6 Their Amusements .. are more adapted to the
Sex than to the Species. 1730 SWIFT Let. to Mrs. Whiteway 28 Dec., You have neither the
scrawl nor the spelling of your sex. 1742 GRAY Propertius II. 73 She .. Condemns her fickle
Sexe’s fond Mistake. 1763 G. WILLIAMS in Jesse Selwyn & Contemp. (1843) I. 265 It would

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astonish you to see the mixture of sexes at this place. 1780 BENTHAM Princ. Legisl. VI. §35 The sensibility of the female sex appears .. to be greater than that of the male. 1814 SCOTT Ld. of Isles VI. iii, Her sex’s dress regain’d. 1836 THIRLWALL Greece xi. II. 51 Solon also made regulations for the government of the other sex. 1846 Ecclesiologist Feb. 41 The propriety and necessity of dividing the sexes during the publick offices of the Church. 1848 THACKERAY Van. Fair xxv, She was by no means so far superior to her sex as to be above jealousy. 1865 DICKENS Mut. Fr. II. i, It was a school for both sexes. 1886 MABEL COLLINS Prettiest Woman ii, Zadwiga had not yet given any serious attention to the other sex.
b. collect. followed by plural verb. rare.
1768 GOLDSM. Good. n. Man IV. (Globe) 632/2 Our sex are like poor tradesmen. 1839 MALCOM Trav. (1840) 40/I Neither sex tattoo any part of their bodies.
c. The fair(er), gentle(r), soft(er), weak(er) sex; the devout sex; the second sex; † the woman sex: the female sex, women. The † better, sterner sex: the male sex, men.
[1583 STUBBES Anat. Abus. E vij b, Ye magnificency & liberalitie of that gentle sex. 1613 PURCHAS Pilgrimage (1614) 38 Strong Sampson and wise Solomon are witnesses, that the strong men are slaine by this weaker sexe.]
1641 BROME Jovial Crew III. (1652) H 4, I am bound by a strong vow to kisse all of the woman sex I meet this morning. 1648 J. BEAUMONT Psyche XIV. I, The softer sex, attending Him And his still-growing woes. 1665 SIR T. HERBERT Trav. (1677) 22 Whiles the better sex seek prey abroad, the women (therein like themselves) keep home and spin. 1665 BOYLE Occas. Refl. v. ix. 176 Persons of the fairer Sex. a 1700 EVELYN Diary 12 Nov. an. 1644, The Pillar .. at which the devout sex are always rubbing their chaplets. 1701 STANHOPE St. Aug. Medit. I. xxxv. (1704) 82, I may .. not suffer my self to be outdone by the weaker Sex. 1732 [see FAIR a. I b]. 1753 HOGARTH Anal. Beauty x. 65 An elegant degree of plumpness peculiar to the skin of the softer sex. 1820 BYRON Juan IV. cviii, Benign Ceruleans of the second sex! Who advertise new poems by your looks. 1838 Murray’s Hand-bk. N. Germ. 430 It is much frequented by the fair sex. 1894 C. D. TYLER in Geog. Jrnl. III. 479 They are beardless, and usually wear a shock of unkempt hair, which is somewhat finer in the gentler sex.
¶d. Used occas. with extended notion. The third sex: eunuchs. Also sarcastically (see quot. 1873).
1820 BYRON Juan IV. lxxxvi, From all the Pope makes yearly, ‘twould perplex To find three perfect pipes of the third sex. Ibid. V. xxvi, A black old neutral personage Of the third sex stept up. [1873 LD. HOUGHTON Monogr. 280 Sydney Smith .. often spoke with much bitterness of the growing belief in three Sexes of Humanity—Men, Women, and Clergymen.]
e. The sex: the female sex. [F. le sexe.] Now rare.

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1589 PUTTENHAM Eng. Poesie III. xix. (Arb.) 235 As he that had tolde a long tale before certaine noble women, of a matter somewhat in honour touching the Sex. 1608 D. T[UVILL] Ess. Pol. & Mor. 101 b, Not yet weighing with himselfe, the weaknesse and imbecillitie of the sex. 1631 MASSINGER Emperor East I. ii, I am called The Squire of Dames, or Servant of the Sex. 1697 VANBRUGH Prov. Wife II. ii, He has a strange penchant to grow fond of me, in spite of his aversion to the sex. 1760-2 GOLDSM. Cit. W. xcix, The men of Asia behave with more deference to the sex than you seem to imagine. 1792 A. YOUNG Trav. France I. 220 The sex of Venice are undoubtedly of a distinguished beauty. 1823 BYRON Juan XIII. lxxix, We give the sex the pas. 1863 R. F. BURTON W. Africa I. 22 Going ‘up stairs’, as the sex says, at 5 a.m. on the day after arrival, I cast the first glance at Funchal.
f. Without the, in predicative quasi-adj. use=feminine. rare.
a 1700 DRYDEN Cymon & Iph. 368 She hugg’d th’ Offender, and forgave th’ Offence, Sex to the last!
2. Quality in respect of being male or female. a. With regard to persons or animals.
1526 Pilgr. Perf. (W. de. W. 1531) 282 b, Ye bee, whiche neuer gendreth with ony make of his kynde, nor yet hath ony distinct sex. 1577 T. KENDALL Flowers of Epigr. 71 b, If by corps supposd may be her seex, then sure a virgin she. 1616 T. SCOTT Philomythie I. (ed. 2) A 3 Euen as Hares change shape and sex, some say Once euery yeare. 1658 SIR T. BROWNE Hydriot. iii. 18 A critical view of bones makes a good distinction of sexes. a 1665 DIGBY Chym. Secrets (1682) II. 225 Persons of all Ages and Sexes. 1667 MILTON P. L. I. 424 For Spirits when they please can either Sex assume, or both. 1710-11 SWIFT Jrnl. to Stella 7 Mar., I find I was mistaken in the sex, ‘tis a boy. 1757 SMOLLETT Reprisal IV. v, As for me, my sex protects me. 1825 SCOTT Betrothed xiii, I am but a poor and neglected woman, feeble both from sex and age. 1841 ELPHINSTONE Hist. India I. 349 When persons of different sexes walk together, the woman always follows the man. 1882 TENSION-WOODS Fish N. S. Wales 116 Oysters are of distinct sexes.
b. with regard to plants (see FEMALE a. 2, MALE a. 2).
1567 MAPLET Gr. Forest 28 Some seeme to haue both sexes and kindes: as the Oke, the Lawrell and such others. 1631 WIDDOWES Nat. Philos. (ed. 2) 49 There be sexes of hearbes .. namely, the Male or Female. 1720 P. BLAIR Bot. Ess. iv. 237 These being very evident Proofs of a necessity of two Sexes in Plants as well as in Animals. 1790 SMELLIE Philos. Nat. Hist. I. 245 There is not a notion more generally adopted, that that vegetables have the distinction of sexes. 1848 LINDLEY Introd. Bot. (ed. 4) II. 80 Change of Sex under the influence of external causes.

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Appendix A to opinion of ALITO, J.
3. The distinction between male and female in general. In recent use often with more explicit notion: The sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female, and of the other physiological differences consequent on these; the class of phenomena with which these differences are concerned.
Organs of sex: the reproductive organs in sexed animals or plants.
a 1631 DONNE Songs & Sonn., The Printrose Poems 1912 I. 61 Should she Be more then
woman, she would get above All thought of sexe, and think to move My heart to study her,
and not to love. a 1643 CARTWRIGHT Siedge III. vi, My Soul’s As Male as yours; there’s no Sex
in the mind. 1748 MELMOTH Fitzosborne Lett. lxii. (1749) II. 119 There may be a kind of sex
in the very soul. 1751 HARRIS Hermes Wks. (1841) 129 Besides number, another characteris-
tic, visible in substances, is that of sex. 1878 GLADSTONE Prim. Homer 68 Athenè .. has noth-
ing of sex except the gender, nothing of the woman except the form. 1887 K. PEARSON Eth.
Freethought xv. (1888) 429 What is the true type of social (moral) action in matters of sex?
1895 CRACKANTHORPE in 19th Cent. Apr. 607 (art.) Sex in modern literature. Ibid. 614 The
writers and readers who have strenuously refused to allow to sex its place in creative art.
1912 H. G. WELLS Marriage ii. § 6. 72 The young need .. to be told .. all we know of three
fundamental things; the first of which is God, .. and the third Sex.
¶ 4. Used, by confusion, in senses of SECT (q. v. I, 4 b, 7, and cf. I d note).
1575-85 ABP. SANDYS Serm. xx. 358 So are all sexes and sorts of people called vpon. 1583
MELBANCKE Philotimus L iij b, Whether thinkest thou better sporte & more absurd, to see an
Asse play on an harpe contrary to his sex, or heare [etc.]. 1586 J. HOOKER Hist. Irel. 180/2 in
Holinshed, The whole sex of the Oconhours. 1586 T. B. La Primaud. Fr. Acad. I. 359 O de-
testable furie, not to be found in most cruell beasts, which spare the blood of their sexe. a
1704 T BROWN Dial. Dead, Friendship Wks. 1711 IV. 56 We have had enough of these Chris-
tians, and sure there can be no worse among the other Sex of Mankind [i.e. Jews and Turks]?
1707 ATTERBURY Large Vind. Doctr. 47 Much less can I imagine, why a Jewish Sex (whether
of Pharisees or Saducees) should be represented, as [etc.].
5. attrib. and Comb., as sex-distinction, function, etc.; sexabusing, transforming adjs.; sex-cell, a reproductive cell, with either male or female function; a sperm-cell or an eggcell.
1642 H. MORE Song of Soul I. III. lxxi, Mad-making waters, sex trans-forming springs.

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1781 COWPER Expost. 415 Sin, that in old time Brought fire from heav’n, the sex-abusing crime. 1876 HARDY Ethelberta xxxvii, You cannot have celebrity and sex-privilege both. 1887 Jrnl. Educ. No. 210. 29 If this examination craze is to prevail, and the sex-abolitionists are to have their way. 1889 GEDDES & THOMSON Evol. Sex 91 Very commonly the sex-cells originate in the ectoderm and ripen there. 1894 H. DRUMMOND Ascent of Man 317 The sex-distinction slowly gathers definition. 1897 J. HUTCHINSON in Arch. Surg. VIII. 230 Loss of Sex Function.
Sex (seks), v. [f. SEX sb.] trans. To determine the sex of, by anatomical examination; to label as male or female.
1884 GURNEY Diurnal Birds Prey 173 The specimen is not sexed, neither is the sex noted on the drawing. 1888 A. NEWTON in Zoologist Ser. 111. XII. 101 The .. barbarous phrase of ‘collecting a specimen’ and then of ‘sexing’ it.

Concise Oxford Dictionary of Current English 1164 (5th ed. 1964):

sĕx, n. Being male or female or hermaphrodite (what is its ~?; ~ does not matter; without distinction of age or ~),
whence ~’LESS a., ~’lėssNESS n., ~’Y2 a., immoderately concerned with ~; males or females collectively (all ranks &
both ~es; the fair, gentle, softer, weaker, ~, & joc. the ~, women; the sterner ~, men; is the fairest of her ~); (attrib.)
arising from difference, or consciousness, of ~ (~ antagonism, ~ instinct, ~ urge); ~ appeal, attractiveness arising
from difference of ~. [f. L sexus –ūs; partly thr. F]

Random House Dictionary of the English Language 1307 (1966):

sex (seks), n. 1. The fact or character of being either male or female: persons of different sex. 2. either of the two
groups of persons exhibiting this character: the stronger sex; the gentle sex. 3. the sum of the structural and func-
tional differences by which the male and female are distinguished, or the phenomena or behavior dependent on
these differences. 4. the instinct or attraction drawing one sex toward another, or its manifestation in life and

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63

Appendix B to opinion of ALITO, J.
conduct. 5. coitus. 6. to have sex, Informal. to engage in sexual intercourse. –v.t. 7. to ascertain the sex of, esp. of newly hatched chicks. 8. sex it up, Slang. to neck passionately: They were really sexing it up last night. 9. sex up, Informal. a. to arouse sexually: She certainly knows how to sex up the men. b. to increase the appeal of; to make more interesting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes. [ME < L sex(us), akin to secus, deriv. of secāre to cut, divide; see SECTION]

American Heritage Dictionary 1187 (1969):

sex (sĕks) n. 1. a. The property or quality by which organ-
isms are classified according to their reproductive functions. b. Either of two divisions, designated male and female, of this classification. 2. Males or females collec-
tively. 3. The condition or character of being male or female; the physiological, functional, and psychological
differences that distinguish the male and the female. 4. The sexual urge or instinct as it manifests itself in behav-
ior. 5. Sexual intercourse. –tr.v. sexed, sexing, sexes. To determine the sex of (young chickens). [Middle Eng-
lish, from Old French sexe, from Latin sexus†.]

B
Webster’s Third New International Dictionary 2081 (2002):
1sex \‘seks\ n –ES often attrib [ME, fr. L sexus; prob. akin to L secare to cut—more at SAW] 1: one of the two divisions of organic esp. human beings respectively designated male or female <a member of the opposite ~> 2: the sum of the morphological, physiological, and behavioral

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Appendix B to opinion of ALITO, J.
peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu. genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness with one or the other of these being present in most higher animals though both may occur in the same individual in many plants and some invertebrates and though no such distinction can be made in many lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are replaced by mating types or because the participants in sexual reproduction are indistinguishable—compare HETEROTHALLIC, HOMOTHALLIC; FERTILIZATION, MEIOSIS, MENDEL’S LAW; FREEMARTIN, HERMAPHRODITE, INTERSEX 3: the sphere of interpersonal behavior esp. between male and female most directly associated with, leading up to, substituting for, or resulting from genital union <agree that the Christian’s attitude toward ~ should not be considered apart from love, marriage, family—M. M. Forney> 4: the phenomena of sexual instincts and their manifestations <with his customary combination of philosophy, insight, good will toward the world, and entertaining interest in ~—Allen Drury> <studying and assembling what modern scientists have discovered about ~—Time>; specif: SEXUAL INTERCOURSE <an old law imposing death for ~ outside marriage—William Empson> 2sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic being) <it is difficult to ~ the animals at a distance—E. A. Hooton>—compare AUTOSEXING 2 a: to increase the sexual appeal or attraction of—usu. used with up <titles must be ~ed up to attract 56 million customers—Time> b: to arouse the sexual instincts or desires of—usu. used with up <watching you ~ing up that bar kitten—Oakley Hall>

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Appendix B to opinion of ALITO, J.
Random House Webster’s Unabridged Dictionary 1754 (2d ed. 2001):

Sex (seks), n. 1. either the male or female division of a spe-
cies, esp. as differentiated with reference to the reproductive functions. 2. the sum of the structural and functional
differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences. 3. the instinct or attraction drawing
one sex toward another, or its manifestation in life and conduct. 4. coitus. 5. genitalia. 6. to have sex, to engage
in sexual intercourse. – v.t. 7. to ascertain the sex of, esp. of newly-hatched chicks. 8. sex up, Informal. a. to arouse
sexually: The only intent of that show was to sex up the audience. b. to increase the appeal of; to make more in-
teresting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes. [1350–1400; ME < L
Sexus, perh. akin to secāre to divide (see SECTION)]

American Heritage Dictionary 1605 (5th ed. 2011):

Sex (seks) n. 1a. Sexual activity, especially sexual inter-
course: hasn’t had sex in months. b. The sexual urge or instinct as it manifests itself in behavior: motivated by sex.
2a. Either of the two divisions, designated female and male, by which most organisms are classified on the basis of their
reproductive organs and functions: How do you determine the sex of a lobster? b. The fact or condition of existing in
these two divisions, especially the collection of characteristics that distinguish female and male: the evolution of sex
in plants; a study that takes sex into account. See Usage Note at gender. 3. Females or males considered as a group:
dormitories that house only one sex. 4. One’s identity as ei-
ther female or male. 5. The genitals. ⸭ tr.v. sexed, sex-ing, sex-es 1. To determine the sex of (an organism). 2. Slang a. To arouse sexually. Often used with up. b. To increase the

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Appendix C to opinion of ALITO, J.
appeal or attractiveness of. Often used with up [Middle English < Latin sexus.]

C
Statutes Prohibiting Sex Discrimination
 2 U. S. C. §658a(2) (Congressional Budget and Fiscal Operations; Federal Mandates)
 2 U. S. C. §1311(a)(1) (Congressional Accountability; Extension of Rights and Protections)
 2 U. S. C. §1503(2) (Unfunded Mandates Reform)
 3 U. S. C. §411(a)(1) (Presidential Offices; Employment Discrimination)
 5 U. S. C. §2301(b)(2) (Merit System Principles)  5 U. S. C. §2302(b)(1) (Prohibited Personnel
Practices)  5 U. S. C. §7103(a)(4)(A) (Labor-Management
Relations; Definitions)  5 U. S. C. §7116(b)(4) (Labor-Management Re-
lations; Unfair Labor Practices)  5 U. S. C. §7201(b) (Antidiscrimination Policy;
Minority Recruitment Program)

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Appendix C to opinion of ALITO, J.
 5 U. S. C. §7204(b) (Antidiscrimination; Other Prohibitions)

 6 U. S. C. §488f(b) (Secure Handling of Ammonium Nitrate; Protection From Civil Liability)

 7 U. S. C. §2020(c)(1) (Supplemental Nutrition Assistance Program)

 8 U. S. C. §1152(a)(1)(A) (Immigration; Numerical Limitations on Individual Foreign States)

 8 U. S. C. §1187(c)(6) (Visa Waiver Program for Certain Visitors)

 8 U. S. C. §1522(a)(5) (Authorization for Programs for Domestic Resettlement of and Assistance to Refugees)

 10 U. S. C. §932(b)(4) (Uniform Code of Military Justice; Article 132 Retaliation)

 10 U. S. C. §1034(j)(3) (Protected Communications; Prohibition of Retaliatory Personnel Actions)

 12 U. S. C. §302 (Directors of Federal Reserve Banks; Number of Members; Classes)

 12 U. S. C. §1735f–5(a) (Prohibition Against Discrimination on Account of Sex in Extension of Mortgage Assistance)

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 12 U. S. C. §1821(d)(13)(E)(iv) (Federal Deposit Insurance Corporation; Insurance Funds)

 12 U. S. C. §1823(d)(3)(D)(iv) (Federal Deposit Insurance Corporation; Corporation Moneys)

 12 U. S. C. §2277a–10c(b)(13)(E)(iv) (Farm Credit System Insurance Corporation; Corporation as Conservator or Receiver; Certain Other Powers)

 12 U. S. C. §3015(a)(4) (National Consumer Cooperative Bank; Eligibility of Cooperatives)

 12 U. S. C. §§3106a(1)(B) and (2)(B) (Foreign Bank Participation in Domestic Markets)

 12 U. S. C. §4545(1) (Fair Housing)

 12 U. S. C. §5390(a)(9)(E)(v) (Wall Street Reform and Consumer Protection; Powers and Duties of the Corporation)

 15 U. S. C. §631(h) (Aid to Small Business)

 15 U. S. C. §633(b)(1) (Small Business Administration)

 15 U. S. C. §719 (Alaska Natural Gas Transportation; Civil Rights)

 15 U. S. C. §775 (Federal Energy Administration; Sex Discrimination; Enforcement; Other Legal Remedies)

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Appendix C to opinion of ALITO, J.
 15 U. S. C. §1691(a)(1) (Equal Credit Opportunity Act)

 15 U. S. C. §1691d(a) (Equal Credit Opportunity Act)

 15 U. S. C. §3151(a) (Full Employment and Balanced Growth; Nondiscrimination)

 18 U. S. C. §246 (Deprivation of Relief Benefits)

 18 U. S. C. §3593(f ) (Special Hearing To Determine Whether a Sentence of Death Is Justified)

 20 U. S. C. §1011(a) (Higher Education Resources and Student Assistance; Antidiscrimination)

 20 U. S. C. §1011f(h)(5)(D) (Disclosures of Foreign Gifts)

 20 U. S. C. §1066c(d) (Historically Black College and University Capital Financing; Limitations on Federal Insurance Bonds Issued by Designated Bonding Authority)

 20 U. S. C. §1071(a)(2) (Federal Family Education Loan Program)

 20 U. S. C. §1078(c)(2)(F) (Federal Payments To Reduce Student Interest Costs)

 20 U. S. C. §1087–1(e) (Federal Family Education Loan Program; Special Allowances)

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 20 U. S. C. §1087–2(e) (Student Loan Marketing Association)

 20 U. S. C. §1087–4 (Discrimination in Secondary Markets Prohibited)

 20 U. S. C. §1087tt(c) (Discretion of Student Financial Aid Administrators)

 20 U. S. C. §1231e(b)(2) (Education Programs; Use of Funds Withheld)

 20 U. S. C. §1681 (Title IX of the Education Amendments of 1972)

 20 U. S. C. §1701(a)(1) (Equal Educational Opportunities; Congressional Declaration of Policy)

 20 U. S. C. §1702(a)(1) (Equal Educational Opportunities; Congressional Findings)

 20 U. S. C. §1703 (Denial of Equal Educational Opportunity Prohibited)

 20 U. S. C. §1705 (Assignment on Neighborhood Basis Not a Denial of Equal Educational Opportunity)

 20 U. S. C. §1715 (District Lines)

 20 U. S. C. §1720 (Equal Educational Opportunities; Definitions)

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Appendix C to opinion of ALITO, J.
 20 U. S. C. §1756 (Remedies With Respect to School District Lines)

 20 U. S. C. §2396 (Career and Technical Education; Federal Laws Guaranteeing Civil Rights)

 20 U. S. C. §3401(2) (Department of Education; Congressional Findings)

 20 U. S. C. §7231d(b)(2)(C) (Magnet Schools Assistance; Applications and Requirements)

 20 U. S. C. §7914 (Strengthening and Improvement of Elementary and Secondary Schools; Civil Rights)

 22 U. S. C. §262p–4n (Foreign Relations and Intercourse; Equal Employment Opportunities)

 22 U. S. C. §2304(a)(1) (Human Rights and Security Assistance)

 22 U. S. C. §2314(g) (Furnishing of Defense Articles or Related Training or Other Defense Service on Grant Basis)

 22 U. S. C. §2426 (Discrimination Against United States Personnel)

 22 U. S. C. §2504(a) (Peace Corps Volunteers)

 22 U. S. C. §2661a (Foreign Contracts or Arrangements; Discrimination)

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 22 U. S. C. §2755 (Discrimination Prohibited if Based on Race, Religion, National Origin, or Sex)

 22 U. S. C. §3901(b)(2) (Foreign Service; Congressional Findings and Objectives)

 22 U. S. C. §3905(b)(1) (Foreign Service; Personnel Actions)

 22 U. S. C. §4102(11)(A) (Foreign Service; Definitions)

 22 U. S. C. §4115(b)(4) (Foreign Service; Unfair Labor Practices)

 22 U. S. C. §6401(a)(3) (International Religious Freedom; Findings; Policy)

 22 U. S. C. §8303(c)(2) (Office of Volunteers for Prosperity)

 23 U. S. C. §140(a) (Federal-Aid Highways; Nondiscrimination)

 23 U. S. C. §324 (Highways; Prohibition of Discrimination on the Basis of Sex)

 25 U. S. C. §4223(d)(2) (Housing Assistance for Native Hawaiians)

 26 U. S. C. §7471(a)(6)(A) (Tax Court; Employees)

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Appendix C to opinion of ALITO, J.
 28 U. S. C. §994(d) (Duties of the United States Sentencing Commission)

 28 U. S. C. §1862 (Trial by Jury; Discrimination Prohibited)

 28 U. S. C. §1867(e) (Trial by Jury; Challenging Compliance With Selection Procedures)

 29 U. S. C. §206(d)(1) (Equal Pay Act of 1963)

 29 U. S. C. §§2601(a)(6) and (b)(4) (Family and Medical Leave; Findings and Purposes)

 29 U. S. C. §2651(a) (Family and Medical Leave; Effect on Other Laws)

 29 U. S. C. §3248 (Workforce Development Opportunities; Nondiscrimination)

 30 U. S. C. §1222(c) (Research Funds to Institutes)

 31 U. S. C. §732(f ) (Government Accountability Office; Personnel Management System)

 31 U. S. C. §6711 (Federal Payments; Prohibited Discrimination)

 31 U. S. C. §6720(a)(8) (Federal Payments; Definitions, Application, and Administration)

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Appendix C to opinion of ALITO, J.
 34 U. S. C. §10228(c) (Prohibition of Federal Control Over State and Local Criminal Justice Agencies; Prohibition of Discrimination)

 34 U. S. C. §11133(a)(16) (Juvenile Justice and Delinquency Prevention; State Plans)

 34 U. S. C. §12161(g) (Community Schools Youth Services and Supervision Grant Program)

 34 U. S. C. §12361 (Violent Crime Control and Law Enforcement; Civil Rights for Women)

 34 U. S. C. §20110(e) (Crime Victims Fund; Administration Provisions)

 34 U. S. C. §50104(a) (Emergency Federal Law Enforcement Assistance)

 36 U. S. C. §20204(b) (Air Force Sergeants Association; Membership)

 36 U. S. C. §20205(c) (Air Force Sergeants Association; Governing Body)

 36 U. S. C. §21003(a)(4) (American GI Forum of the United States; Purposes)

 36 U. S. C. §21004(b) (American GI Forum of the United States; Membership)

 36 U. S. C. §21005(c) (American GI Forum of the United States; Governing Body)

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Appendix C to opinion of ALITO, J.
 36 U. S. C. §21704A (The American Legion)

 36 U. S. C. §22703(c) (Amvets; Membership)

 36 U. S. C. §22704(d) (Amvets; Governing Body)

 36 U. S. C. §60104(b) (82nd Airborne Division Association, Incorporated; Membership)

 36 U. S. C. §60105(c) (82nd Airborne Division Association, Incorporated; Governing Body)

 36 U. S. C. §70104(b) (Fleet Reserve Association; Membership)

 36 U. S. C. §70105(c) (Fleet Reserve Association; Governing Body)

 36 U. S. C. §140704(b) (Military Order of the World Wars; Membership)

 36 U. S. C. §140705(c) (Military Order of the World Wars; Governing Body)

 36 U. S. C. §154704(b) (Non Commissioned Officers Association of the United States of America, Incorporated; Membership)

 36 U. S. C. §154705(c) (Non Commissioned Officers Association of the United States of America, Incorporated; Governing Body)

 36 U. S. C. §190304(b) (Retired Enlisted Association, Incorporated; Membership)

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 36 U. S. C. §190305(c) (Retired Enlisted Association, Incorporated; Governing Body)

 36 U. S. C. §220522(a)(8) and (9) (United States Olympic Committee; Eligibility Requirements)

 36 U. S. C. §230504(b) (Vietnam Veterans of America, Inc.; Membership)

 36 U. S. C. §230505(c) (Vietnam Veterans of America, Inc.; Governing Body)

 40 U. S. C. §122(a) (Federal Property and Administrative Services; Prohibition on Sex Discrimination)

 40 U. S. C. §14702 (Appalachian Regional Development; Nondiscrimination)

 42 U. S. C. §213(f ) (Military Benefits)

 42 U. S. C. §290cc–33(a) (Projects for Assistance in Transition From Homelessness)

 42 U. S. C. §290ff–1(e)(2)(C) (Children With Serious Emotional Disturbances; Requirements With Respect to Carrying Out Purpose of Grants)

 42 U. S. C. §295m (Public Health Service; Prohibition Against Discrimination on Basis of Sex)

Cite as: 590 U. S. ____ (2020)

77

Appendix C to opinion of ALITO, J.
 42 U. S. C. §296g (Public Health Service; Prohibition Against Discrimination by Schools on Basis of Sex)

 42 U. S. C. §300w–7(a)(2) (Preventive Health and Health Services Block Grants; Nondiscrimination Provisions)

 42 U. S. C. §300x–57(a)(2) (Block Grants Regarding Mental Health and Substance Abuse; Nondiscrimination)

 42 U. S. C. §603(a)(5)(I)(iii) (Block Grants to States for Temporary Assistance for Needy Families)

 42 U. S. C. §708(a)(2) (Maternal and Child Health Services Block Grant; Nondiscrimination Provisions)

 42 U. S. C. §1975a(a) (Duties of Civil Rights Commission)

 42 U. S. C. §2000c(b) (Civil Rights; Public Education; Definitions)

 42 U. S. C. §2000c–6(a)(2) (Civil Rights; Public Education; Civil Actions by the Attorney General)

 42 U. S. C. §2000e–2 (Equal Employment Opportunities; Unlawful Employment Practices)

78

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 42 U. S. C. §2000e–3(b) (Equal Employment Opportunities; Other Unlawful Employment Practices)

 42 U. S. C. §2000e–16(a) (Employment by Federal Government)

 42 U. S. C. §2000e–16a(b) (Government Employee Rights Act of 1991)

 42 U. S. C. §2000e–16b(a)(1) (Discriminatory Practices Prohibited)

 42 U. S. C. §2000h–2 (Intervention by Attorney General; Denial of Equal Protection on Account of Race, Color, Religion, Sex or National Origin)

 42 U. S. C. §3123 (Discrimination on Basis of Sex Prohibited in Federally Assisted Programs)

 42 U. S. C. §3604 (Fair Housing Act; Discrimination in the Sale or Rental of Housing and Other Prohibited Practices)

 42 U. S. C. §3605 (Fair Housing Act; Discrimination in Residential Real Estate-Related Transactions)

 42 U. S. C. §3606 (Fair Housing Act; Discrimination in the Provision of Brokerage Services)

 42 U. S. C. §3631 (Fair Housing Act; Violations; Penalties)

Cite as: 590 U. S. ____ (2020)

79

Appendix C to opinion of ALITO, J.
 42 U. S. C. §4701 (Intergovernmental Personnel Program; Congressional Findings and Declaration of Policy)

 42 U. S. C. §5057(a)(1) (Domestic Volunteer Services; Nondiscrimination Provisions)

 42 U. S. C. §5151(a) (Nondiscrimination in Disaster Assistance)

 42 U. S. C. §5309(a) (Community Development; Nondiscrimination in Programs and Activities)

 42 U. S. C. §5891 (Development of Energy Sources; Sex Discrimination Prohibited)

 42 U. S. C. §6709 (Public Works Employment; Sex Discrimination; Prohibition; Enforcement)

 42 U. S. C. §6727(a)(1) (Public Works Employment; Nondiscrimination)

 42 U. S. C. §6870(a) (Weatherization Assistance for Low-Income Persons)

 42 U. S. C. §8625(a) (Low-Income Home Energy Assistance; Nondiscrimination Provisions)

 42 U. S. C. §9821 (Community Economic Development; Nondiscrimination Provisions)

 42 U. S. C. §9849 (Head Start Programs; Nondiscrimination Provisions)

80

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 42 U. S. C. §9918(c)(1) (Community Services Block Grant Program; Limitations on Use of Funds)

 42 U. S. C. §10406(c)(2)(B)(i) (Family Violence Prevention and Services; Formula Grants to States)

 42 U. S. C. §11504(b) (Enterprise Zone Development; Waiver of Modification of Housing and Community Development Rules in Enterprise Zones)

 42 U. S. C. §12635(a)(1) (National and Community Service State Grant Program; Nondiscrimination)

 42 U. S. C. §12832 (Investment in Affordable Housing; Nondiscrimination)

 43 U. S. C. §1747(10) (Loans to States and Political Subdivisions; Discrimination Prohibited)

 43 U. S. C. §1863 (Outer Continental Shelf Resource Management; Unlawful Employment Practices; Regulations)

 47 U. S. C. §151 (Federal Communications Commission)

 47 U. S. C. §398(b)(1) (Public Broadcasting; Equal Opportunity Employment)

Cite as: 590 U. S. ____ (2020)

81

Appendix C to opinion of ALITO, J.
 47 U. S. C. §§554(b) and (c) (Cable Communications; Equal Employment Opportunity)

 47 U. S. C. §555a(c) (Cable Communications; Limitation of Franchising Authority Liability)

 48 U. S. C. §1542(a) (Virgin Islands; Voting Franchise; Discrimination Prohibited)

 48 U. S. C. §1708 (Discrimination Prohibited in Rights of Access to, and Benefits From, Conveyed Lands)

 49 U. S. C. §306(b) (Duties of the Secretary of Transportation; Prohibited Discrimination)

 49 U. S. C. §5332(b) (Public Transportation; Nondiscrimination)

 49 U. S. C. §40127 (Air Commerce and Safety; Prohibitions on Discrimination)

 49 U. S. C. §47123(a) (Airport Improvement; Nondiscrimination)

 50 U. S. C. §3809(b)(3) (Selective Service System)

 50 U. S. C. §4842(a)(1)(B) (Anti-Boycott Act of 2018)

82

APPLICA T ION FOR ENL ISTMENT - ARMED FORCES OF THE UNITED STATES

I Fo...,, App,ou1d O.iUD1/2-R 0331.

DAlA REOU1RED BV THE PR'JVACV.ACT OF 1974

AUT-flORITV:

Title 10, United! States Code, Sections 604, 505, 508, lllld 510', aud Executive Otder 9397 .

PRINCl?A IL PURPOSE: To detemiin .e your eligibility for <!nlistmcnt.

ROUT,IIIIE uses:
DISCLOSURE:

ll you are enli5ted, this form becomes the principal SOlllCe document for, and a part of, yow w..ilital'y persollJlel recotd.s which

:'.INused to make decisions related to yoUI ttainin ,g, ptomotion, reassignment, .and other ~rsotlllel mao3iemec.t ,actio0s.

Voluntary; failure eoanswer all questions on tbis form except 12, 26, 32,. and 35 may result in denial of yoW' enlislmea ,t

I

'WARNING
Wormation. provjded by you on ebis form is FOR OFFICIAL USE 01','L Y and will be maintained and wietl in strict compliance 'Witb Federal law and r@gualtion. The information provide d by you becomes the p:roperty of the United States Govemmcot ~nd it may be consulted throughout your m ilit :lrJ' service career, particulady whenever cither favorab le or adverse administra•
tive or di,cipl:inary actions related to you are involved.

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.
D

YOU CAN BE PUNISHED B.YFINE, IM1'RISONMENTOR BOTH lF YOU ARE fOUND CUJ!LTY OF MAKING A KNOWING AND WILLFUL FALSE STATEMENT ON THIS APPLICATION.

INSTRUCTION S (Read carefully BEFORE filling out this form)

1. Type or print LEGIBLY al.Ianswers ; if the answer is ''None" or "Not Applicable.'' so state. 2. Questions 12, 26, and 32 are optional and may be left blank. Question 35 may be auswered orall1.
3. lf additio nal snace is needed for anyanswer, continue it in ftem 37, "REMARKS."

'11e soc ,4 t. $ECUFIITV ACC •OUNT NVMBE A

SECTION 1- PERSOIIIAL DATA 12, N/\M~ fl,o,l • Pf,,fl , t,(fddlt t• j\fal,l, ~,- ll •n7 J. Jr ,• 11., · c.lc./

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16, STAT&

r VMHfl DRIVER ' S LICf .NSE INFORMA TIO N IEXPIFll!S

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

DO NOT WRITE IN THIS SECTION ;';'·

SECTION I I - EXAMINATIONAND ENUSTMENTDAT,S.PROCESSING CODES

(Go o,a '" ! fem .22)

-

- ---

11.

- FOR OFF/CB US!: ONLY-
.-..INTA L TlftT L'EII$ 1JI..TS

4 T"EST 10

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83

84

LAST NAME

S~SN·;·

Ill. VERIF ICATION OF PERSONAL DATA
23. If Preferred Enlistment Name (name given in block 11 is not the same as on your birth certificate ond has oat been changed by legal pr ocedure prescr ibed by state law , complete the following :

a. NAME AS SHOWN ON BIRTH CERTIFICATE

I hereby state tha t I have not changed my name through any court proc edure; and that I prefer to use the nome by wh ich I am k nown
in the community as a matter of convenience and wjth no cr;minal or frauduren1 intent. I further stat e tha t I am th e same person as
the one whose name is st,own in block 1 .

b. WITNESS (Name, grade, 3nd signatureI

c. SIGNATURE OF APPLICANT

24. EDUCATION

YEAR&M ONT H

FROM

TO

NAME AND LOCA TION OF SCHOOL

GRADUATE YES NO

DEGREE RECEI VED

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

25 . CITIZENSHIP VERIFICATION {To be completed In presence of your recruiter! .

a. PLACE OF Bl RTH (City , State and (i f not in USA ! Country)

b. BIRTH CERTIFICATE ISSUED BY (County and State)

c:. BIRTH CERTIFICATE FILE NUMBER

Id. IF NATURA LIZ ED, cERTI FICATE NO.

f . IF DERIVED , PARENTS' CE RT IF ICATE NO (SJ. OAT E, PLACE ANO COURT

f . IF ALIEN.ALIEN REGISTRATION NUMBER

g. NATIVECOUNTRY

,h. DATEANDPORTOFENTRY

- .... - .-..---·"·-

26. Ml LITARY SERVICE
a. Ar e you now or have ever been in 1he Regular. Reserve or National Guard of th e United State s? D No D Yes. If "yes", comple te the follow ing:

b . PAY GRADE AND c. SERVICE AND

SERVICE NUMBER

COMPONENT

d . DA TE OF ENTRY

e. DA TE OF DISCH

f . TYPE DISCH/ REL

g. TIME LOST (NO . OF DA VS)

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

n. If you nra now a member of a US Re•erve or National Guard orgoni ,atlo n, fill in or93nl2atlon name and unit address:

27a. PREVIOUSMILITARYSERVICE

I Years I Months I

DO NOT WRITE

Total Active Military Service I

I

I

IN THIS BLOCK

I Tota l Inactive Military Service

I

I

IV. OTHER BACKGROUND DATA

28a. RELATIVES

b . DA TE AND PLACE OF Bl RTH

.FATl:i.ER

Days b. PESO c. PRESENT ADDRESS

MOTHER (Maidf!fl•na"12!

SPOUSE (Maiden-namel

CHI LO REN fShow Relationship)

_,,_.,.,._,,,.~

c. AOSD
d. CITIZENS HIP

~~~";!5 00

196612 REPLACES DD FOAM 1966 , 1 JUN 75, WHICH WI LL BE USED

1

PAGE 2

85

86

LAST NAME :_______________

_ _____

_ ___,N :__________

_

29. COMMERCIAL LI FE INSURANCE POLICIES YOU OINN ON YOUA t.ll=E - Omional entry: u5ed to assist your survivors in filing claims should you die WYhileon active duty.

&1. NAME Of=COMPANY ISSUING POLICY

b. POL.ICY NlJMBER

30. FIELATIV 1ES AND ALIEN FR I ENDS LIVING IN FOREIGN COUNTRIES in e fcweign co untry.

a. NAME ANO RELATIONSHIP

b. AGE c. OCCUPATI ION

Ust at1yone w,ith whom you had or have a c!ose re!ati onsi'lip , who lil,es

d. ADDRESS

~. CIT FZENSHIP

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

31, RESID:ENCE:S-List all from 10th birthday.

YEAR & MONTH

FIIOM

TO

NUMBER AND STREET
..

CITY

I

32. EMPLOYMENT-Show every employment you have· t-.adand all periods of unemplovrnen t.

a.YEAR & MONT I-I b. Company n~me a_!ll~a~ (~~e~ f .!.rt..fil9te.J[)VipCode)

c. JOB T"ITLE

FROM

TO

STATE ZIP CODE
I
I
d. SUPERVISOR NAME

I

e. HAVE YOU EVER WORKED FOA A FOREIGN GOVERNMENT? □ NO □ YES (If "yu" yo u wo~ked fn,, 10,·ariori and noti,r .~ of yo1 u d11tif I}

;:,ivt dat<-s of cmplo ,i· mrnr . .(iu ,·r,·11111,·111

33. ME M BE RSHIP I N YOUT H PRO GR AMS-O ptio nal en1ry; you ma y b• eligible fOf o highff paygrode, based on membership and par r,eipa tion ,n

0 No me mbershi p

t he y o ut h pr ogram s listed below .

ORGANIZA TIO N

MEMBERSHIP HEL D

FROM

TO

CO NDU CTE D BY (SPONSO RI

L OCAT ION (SCHOOL A ND A D D RESS !

Y EARS COMPLE T EO O R LE VE L REA CHED

ROT C

IYEARSI

JRO TC

!YEA RS)

CAP

A I R FORC E

(L EVEL)

SEA CA DET OT HER ISpecifvl

NAV Y

IL EVE LI

34 . FORE IGN TRAV EL- Other t hon os a direct result of mi litary servtC.a.

YEAR &MO NT H

~RO M

,a

COU N TRY VISI TED

PURPOSE O F T RA VEL

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

3 5. DECLAR ATIO NS-E xpla in "Y es" enswers in it em 4 1.

a. HAVE YOIJ EVER BEo N REJECTED FOR ENLISTMENT. REENUSTMENT .

d. A.RE YOU N OW ORA.1.NtNG. OR 00 YOU HAVE AN APPLI CAT ION PEND ING

QA I NO ucr 10 N INTO AN Y BRANCH OF THE ARMEOFO RCES0 ~ THE UNITED STAT ES?

0 NO

DY ES

OR APPROVAL FOR. RETIRED PAY, O•SABILIT Y ALLOWANCE.OR SEVERANCE PA Y OR A PENSION F"ROMTHE COVERN MEM T OF THE

b. ARE YOU A CONSC I ENT IOUS OBJE CTOR ?

UNITEOSTATES1

0 NO 0 YES O NO 0 YES

< A RE YOU N OW OR HAVE YOU EV ER BEEN A DESERTER FROM ANY BRANCH e. ARE YO U T HE ONLY L IVI NG CHI L D OF YOU R PARENTS!

OF THs ARMs O FORCESOF THS ur, Ir e oS TATESl

0 NO 0 VCS 0 NO 0 YES

..36. UNDERSTANDINGS. I understand that if I am rejected for enlis1ment bscause of a disqualificati on I haiJeconcealed. I may not be p, ovided return tu nspon ation fron, the placeof exami~t tOn to my home.
b . (For male applicants o nly }. I un d ersrand that if I have no t reached my 261h b ir1hday 1hata n o,igi nal enlistment obl igates me to serve in the Armed F0<c es fo r a peri o d of si>c (8:Jyears lact il/e-and reserve) unlesssooner d ischarged.

IIN I TIALS I (INI TI ALS )

DD FOAM 1 AUO 'J~

1966/ 3

FIE P1-AC'E S OD F O AM 1966 , 1 J UN 7 5, WHICH ·WILL ee: us eo

PA CE 3

87

88

BOSTOCK v. CLAYTON COUNTY

AppendAixLIDTOt,oJo.,pdinisisoennotifnAgLITO, J.

LAST NAME :____________

__ ______

SSN :_ _____

__ _____________

_ _

:··:p ,:•·p. :IARACTER AND SOCIA L ADJUS TM ENT: Read and consider the fo llowing instructions caref ully BEFORE answering questions a through I.

1. If your answer to every question is truthfu lly · 'NO ' ", please indicate in the appro pr iate space.

2 . If your answe r to any quest ions in th is item is ..YES.., or you have reservatio ns abou t answering questions of th is nature. you are not

requi red to answ er, or explain any cl · th ese questions i n wr iti ng . Instead, you may request a personal interview in which you may provide

the requ i red informatio n for each quest ion orally .

;;

·

.

3 . If you choose the personal interview, the inf ormati on you give moy b3 inves tigated; however, any written record of the in terview itself wi ll not be retained mo re th an six mon ths after entry upon active duty , and it will not become a pan of your permanent m il itary personnel service record .

4 . If you enlist , th is information may be requested fro m you again at some future date and may become a part of your secur ity investigative file at that time . This coul d occur as a resu lt of your being conside red fer duties invo lving access to classified info rmation or other types of duty requ iring a personnel security i nvestigation .

5. A "YES" ' answe r wi ll net necessarily disqual ify you for e.nlistmcnt . It wi ll depend on the ci rcums tances surrounding the situat ion involved .

INITIAL HERE IF YOU PREFER A PERSONAL INTERVIEW:

I □ □ APPLICANT HAS BEEN INTERVIEWED AND IS

DATE OF INTERVIEW

NAME, ORGANIZATION & TITLE

ELIGIBLE FOR ENLISTMENT,

IN ELIGIBLE FOR ENLISTMENT

., SIGNATUREOF INTERVIEWER

EXPLAIN "YES ' · ANSWERS IN ITEM 41 :
a. HAVE YOU EVER TAKEN ANY NARCOTIC SUBSTANCE. SEDATIVE, ST IMULANT, OR TRANQUI LIZER DRUGS EXCEPT AS PRESCRIBED BY A LICENSED PHYSICIAN ?
b . HAVE YOU EVER INTENT IONALLY SNIFFED GLUE, PAINT, HA IRSPRAY. OR OTHER CHEMICAL FUMES?
c. HAVE YOU EVER BEEN INVOLVED IN THE USE, PURCHASE, POSSESSION OR SALE OF MARI J UANA, LSD, OR ANY HARMFUL OR HA BIT-FORM ING DRUGS AND / OR CHEMICALS EXCEPT AS PRESCRIBED BY A LICENSED PHYSICIAN?

d . HAS YOUR USE OF ALCOHOLI C BEVERAGES (SUCH AS LIQUOR, BEER, WIN£') EVER RESULTED IN THE LOSS OF A JOB, ARREST BY POLICE, or TREATMENT FOR ALCOHOLISM?

e. HAVE YOU EVER BEEN A PATIENT (WHETHE,'? OR NOT FORMALLY COMMIITED) IN ANY INST ITUTION PRIMAR ILY DEVOTED TO THE TREATMENT OF MENTAL , NERVOUS, EMOT IONA L, PSYCHOLOGICAL. OR PERSONALITY DISORDERS?

t HAVE YOU EVER ENGAGED IN HOM OSEXUAL ACTIVITY (SEXUAL RElATIONS W ITH ANOTHER PERSON OF THE

SAME SEX)?

-

NO YES
. --

--

·-

38. MAR ITAL STATUS AND DEPENDENCY

a. ARE YOU NOW, OR HAVE YOU EVER BEEN MARR IED?

b . IF YOU HAVE BEEN MARRIED. ARE YOU NOW LIVING WITH YOUR SPOUSE?

c. HAVE YOU EVER BEEN DIVORCED? (If yes, enter date, place and court wh ich granted divorce or legal separation)

d . IS ANY COUR T ORDER OR J UDGEMENT DIRECTING SUPPORT FOR CHILDREN OF ALIMON Y IN EFFECD (Enter date, place, and coun which granted alimony decree, or suppon as the resul t of a paternity suit)

NO YES

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

e. IS A NYON E OTHER THAN YOUR SPOUSE ANO/O R CHllOREN SOLELY OR PART IALLY DEPENDENT UPON YOU? (list name & address)

39. Do you now have. or w ithi n the past ten years, have you had know ing members hip wit h the specitic intent of furthe ring the aims of. or adherence to and active participation in any foreign or domestic organizations, association, movement, group, or combinat ion of persons (hereinafter referred to as organiza ti ons) w hich unlawfully advocates or pract ices the comm ission of acts of force or vio lence to preven.t others from exercising their rig hts under the Constitu tion or laws of the United States or of any Stale, or whic h seeks to overthrow the Governmen t of tho Un ited States or any Slate or subd ivision thereof by unlawful mea ns?
If you answered "yes", give the names of the organizations and inclusive dates (month and year) of your membership; descri be the nature of your activit ies as a member of the organ ization(s) in the " Remarks" section, Item 41 .

INO i YES

40 . INVOLVEMENT WITH POLICE OR JUDIC IAL AUTHORI TIES

YOUR ANSWERS TO THE FOU OWING QUESTIONS Will BE VERIFIED WITH THE FEDERAL BUREAU OF INVESTIGATION (fBI), AND OTHER A GENCIES TO D5TERMINI: A NY PREVIOUS RECORDS OF ARRESTOR CONVICTIONS OR JUVENILE COURT ADJUDICAT IONS. IF YOU CON· CEAL SUCH R~CORDS AT THIS TIME, YOU MAY , UPON ENLISTMENT, BE SUBJECT TO DISCIPLINARY ACTION UND ER THE UNIFORM CODE OF MI Lli ARY JUSTICEA ND/ OR OISCHARG!: FROM THE M ILITARY SERVICE WITH OTHER THAN AN HONORABLE DISCHARG E.
NO YES

a. Have you ever been arrested , charged . cited , or held by Federal. Slate, or other law enforcement or juven ile authori ties regard less of whether the citation or charg e was dropped or d ismissed or you we re fou nd not g uilty?
b. As a result of being arr ested , Charged. cited, or held by law enforcement or juvenile author,ues, nave you ever been convicted , lined by or forfe ited bond to a Federal, State, or oth~r judicia l author ity or adjudicated a yout hful offender or j uveni le dclinouent lreoardless of whe ther the reco rd in vour case has been "sea led" or other w ise stricken from the court record)?

c . Have you ever been detained, held in, or served time in. any jail or prison, or reform or industrial school or any j uveni le faci lity or institut ion under the ju risdictio n of any City , County . State, Feder.al or foreign country?

d . Have you ever been awarded, or are yo u now under suspende d sentence. parole , or pro bation o r awai1ing any action on

charges agains1 you?

•

• ·DD ·t ~~~M 751966/ 4 · ~!~;,Atc;il.o;}/~~~c~9!~e:

~C~i-:HICH 10J8u5

wtl.l. ,BE USE~ A N.D o .D .f.ORf?I 373 , 1 J,1AR 74 : o o FORM

PA GE 4

89

90

LAST NAME·

SSN.·..

40. Continued

NO

e. HAVE YOU BEEN RELEASED FROM PAROLE, PROBATION , JUVE NI LE SUPERVISION, OR GI VEN A SUSPENDED SENTENCE

OR RELIEVED OF CHARGES PENDING ON CONDITION THAT YOU APPLY FOR OR ENLIST ' IN THE US ARMED FORCES?

f . ARE YOU NOW INVOLVED IN OR A PARTY TO OR CONNECTED WITH ANY COURT ACTION OR CIV IL SUIT? (EXPLAIN "YES" ANSWER IN ITEM 411

g. EXPLAIN BELOW " YES" ANSWERS IN "a" THROUGH "e", BE CAREFUL TO INCLUDE All INCIDENTS WITH LAW ENFORCEMENT AUTHORITIES THAT YOU DISCUSSED WITH YOUR RECRUITER .

OFFENSE

DATE/PLACE

AGE

DISPOSITION

COURT

YES

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

41. REMARKS

I I
I am interested in the following opti ,ons or prog, .ams:

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

V. CERTIF ICATION

42, BY APPLICANT : I UINOERSTAN IO THAT THE ARMED FORCES REPReSENTATIVE WHO WILL ACCEPT MY ENLISTMENT DOES SO IIN

RELIA NCE ON THE INifOAMATION PROVIDED BY ME IN THIIS DOCUMENT; .THATIF ANY OF Tf-tE INFORMATION IS KNOWING L Y FALSE

OR 'INCOAREC T, I MAY BE PROSECuno , UNDER FEDERAL CIVILIAN OR Ml LITA AV LAW OR SUBJECT T 01 ADMIN ISTRATIVE SIEPARATIION

PROCEEDINGS ANO, IN EITHER INSTANCE, I MAY 'RECEIVE A LESS THAN HONORABLE DISCHARGE WHICH COULD AFFECT MY FUTURE

EMPLOYMENT OPPORTUNITIES. I CERTIFY THAT THE 1,NFOAMATION GIVEN BY ME IIN THIS DOCUMENT IS TRUE, COMPL ET1E, AND

I CORRECT TO THE 6ESi OF MY KNOWLEDG E ANO BEL.IEF,

a. ,r.:1.0.,:i;-

b. ~~vDStOQlm,tt,I,.-

Ic. SIGNATURE OF APPLICANT

,o 43. DATA VE RI FlrCATI ON : To be ,comple ·ted by the recrui ter who enters a description of the actua'I documerrts re\licvved by him/her

/AGE I NAME

CITIZENS HI p

verify:

EOUCA.TION

IPA.I.ORJIIULITAAYSERVICE

OTHER (Specifyl

75 00 \ ~~~ 1966/5 REIP~CSS OD FORM 1966 ., 1 JUN 75 , WHICH WILL e re, USl::Cl1

PAG ,E 5

91

92

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

LAST NAME: __ _

_ ___

______

____

__ _ SSN :_ _,.,,_____________________

_

I 44, RECRUITER: I certify that I have w itnessed applicant's sigmnure above and further certify that I have verified the data In Sections I, 111,

and IV of this documen t, and the documents l1sited above as proscribed by my directives . I understand my liability to tr ia! by co,uru-martial

under the Uniform Code of MHitary Justice should I effect or cause to be effected the enl istment of anyone known by me to be ine ligible

for enlistment. a.. DATE

rb. NAME, GRADE, SSN, .AND RECRUITER ID NO . ffype or Print)

,c . SIGNATURE OF RECRUITER

VI. PARENTAL/GUARDIAN CONSENT FOIRE:NLISTMENT

1 45. I/we cert ify that the applicant named here in hz~ no other legal guardian than rne/us and I/we consent (O his/her

enlistment in the

.

.

.

subject to all the requliements and lawfu l

commands of th e officers who ,may, from t ime to ti'me., be placed o,ver him/her; and I/we certif 'y that no premise ·of any kind has

be1in made to m,;/us concerning assignment to duty, or promot ion dur ing his/he r enli:stment ,as an indu cement to me/us: to

iig n th is consent . I/we hereby authorized the Arme<ilForces representat ives concerned to administer med ical examinations ,

I

mental ond/or aptitude test ing, and conduct rec,ords checks to determine applicant's enlistment eligibil ity. I/we relinquish all

cla im to his-/lilerservice and to any wage or compensat ion i ,or such service .

46. For enlistment in a Reserve Componenr: I/we understand that as a member of a, Reserve Component, he (she muSt serve m inimum periods of active duty unless ex-cuse<b:Iy compe te nt authority . In ·the evant he/she fails to fulfiU the obligations of hls/ her Reserve commitment, he/she may be reca lled to active duty as prescribed by law.
I/we further understand that wh ile the -applicant is in the •Ready Reser11,e, he/she may be ordered to extended act ive duty in time of war or national emergency declared by the Cong ress or the President or when otherwi5e :authoriied by law.

47. I/we cert ify thot the applicant's birth date is: NAM E1 AND SIGNATURE OF WITNESSl ·NG OFFICIAL

SIGNATURE OF PARENT 0A LEGAL GUARDIAN

NAME AND SIGNATURE OF WITNESSING OFFICIAL

S IGNATURE OF PAREN T OR LE.GAL GUARD IAN

,I

VER IF ICATION OF S INGLE SIGNATURE CONSENT

VII. ENLISTMENITOPTIONS - Completed by guidance counsellor. career counsellor, recruiter, AFEES Liaison NCO,

etc., as specified by sponsoring service. ENL. COMP. IGRADE/RA TE.I0A TE OF RAI\JK 'TERM ENL. 1T-EMOS/AFS IPMOSl'AFS

j 'WAIVER INFO,0PT ANAL PROG ENL FOR

- .. .. . -· .. --·- ---

SPECIF IC OPTIONS ENLISTED FOR

I c,ertify that I ha"e re'liewed all information contained in t.hft document and, to the beit of my judgment and be'lief', applicant fulfills all leg.al and poltcy req u irements for enlistment . I acc,ept. his/her enl istment on behalf of the I furrher certify that service regulations governing such enlislment ha'le been strictly complied with and 111nwyaivers required to eHec t applicant's enlistment have been secured and .are attached to this doc:umem.

DATE

NAME, GR.ADE,ANO SSN, ORGANIZATION OR RECRUITERID I SIGN ATlJAE
rrvpe or pr,r,f)

~ECEATIFICATION

BY APPLICANT, AND CORRcCTION OF ·DATA AT TIME OF ENLISTMENT

11 HAVE REVIEWED ALL INFORMATION CONTAI N ED IN TH IS DOCUMENT; THAT 'INFORMATION IS STILL CORRECT AND TRUE TO
THE BEST OF MY KNOWLEDGE ANO BELIEF. IF CHANGES WERE REQU I RED. THE OR IGINAL ENT IAY l!-IASBEEN MARKED . "SEE VIII " AND THE CORRECTED I NFORMATION IS PROVIDED BELOW. KEYE □ TO THE APPROPR IATE QUESTION.

QUESTION

CHANGE REOU IFIED

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

!

I

DATE

NAME , GRADE. SSN ANO SIGNAi llRE OF WIITNESS

SIGNATURE OF. APPLICANT

171"ypoer Prind
I

- DD .............1966/ ,6

-

-

_ _,__ ....

·- · -

-.

1 AUG , 75

93

94

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

Cite as: 590 U. S. ____ (2020)

95

Appendix D to opinion of ALITO, J.

I

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t

I

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96

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

DD Form 1966 RECORDOF MILITARY PROCESSING ARMEDFORCESOF THE UNITED STATES

&Y,JHQ!W:

Prlv•t:Ar.ctSt•t•m•nt
'Title 10, Unit4'd St atts coo. SKIIOM so, , 505, SOI, 510. and :s2,o. •.nd Titl• 50 use Apr:,and11451 ,no fOll-•t19 ~ l• Ofl.

mNCJrA'!t\11?9$:1 IIOUTIIUNSE:S

·····- -- - - TOdftflmi ... your el igibility for mil,uiry Mf\l lH . -

1W1 fOfffl IN<O'Mi the princip,,I t0urc. documen t fo, , ~ INI" of , vovr m lUta,y

Pt~

,·tco,Clf w hi ch art uMCIto mak• dac.,lion, rel1Wd to -,o.,r v,in,110 , PtOfflObon.

nt.1gnmenu•,nd ot her panonrvl m•~ment ffl •on••- . _ ·-

QS~IU! : - - ·· · • Voh,1nta"1; ._., . l11lu•• ,~ --

ail ~uinltoM on th 11 farm, e■ciept • optoon.1 •

,cano) -, - • ·· ~ter11.1""~ rwult ln d.n ial of ~r • ~l nm~ . :_ 7 __ _ .•

· ·- -

-~ fSrlrfllwe Sffltl~ - DitdUll,IT'f oi ,.q\Jffl<M in'fon,11'1ionIf ffllndl\o,y ltMCtPt • OO\ICINll 0 itffill, dillCJQIUl'W

Rlt{lllll.-l'tb)J

of wN<h ,, 'IOlt,1nwy , . -

•• •- - - ·-. -

~

WARNING
_ lnfo'!"ation provided by you on th is farm is FOR OFFICIAi. US£ O"IL't 411\dwill b• mainQinm and ust'd in strict ,campliane4 with Fedtrel l•W$and ~ulations. The into,matlon provid~ by you b•comat th• t,roperty of tht United States Governm~nt , •nd it m•y bt cont.Yli.d throughout your milltlry servlct ar~er. part icularly wl:'ttne-nr either fi1110ralbe or a~~rw ~~in isuatl.,. or dlkiplinary actions relat~ to yo'-!are involved.

·-· _· - YOU CAN 8£ PUNISM8(VOFINE.IMPRISONMENTOR BOTH IF YOUARE FOUN·p

tiUJlT'{OF MAKING A KNOWING AND WILLFUL FALSE STATEMENTON TH!SOOCUMENT.

-- ---------- ·--- ···- ·---- -

·- - · ··

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

INSTRUC110N1
this~-> (ltffd(A,.fully ,t,ORt fillittgOllf

.1.R•.•d P:!jvacyAct S~t•'!'~nt ~bov~.befo~t c:ompletln~ form..

2. Type or print LEGIBLYall answt~ ; If the answer is •Nane• or ·Not Applicable,• $0 statt .

•o'P'TIONAL • questions may be left blonk.

•

-

··· 3. list all responses requlrit'lg d•tes (schools, •mployment/residences) in c:hronological order '

bt11inning with present or the most recent 1nd work backwards. Show all (employers/

reJ,dtnCfl) ior tht last five yon or since 13th birthdo1y. Give inclusil1t d•tt1 for Heh ptriod of

residence/ employmentlschool. If ~d•t ional SP•" is nttdtd for any answer, continue it in Item

39, •R,marks. • ·

•

4. Unless otherwise specified , wr ltt all dat~ I\ 6 digiti (with no spaces or marlcs) in YYMMOO fash ion . Ftbruo1ry 13, 198Sis written 8S0213.

DO form 1"6/1R, AU(; 15

~v10w1 .Ohont, .,._ ~ft

'14,•iwot ,,.,. ,

97

98

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

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Cite as: 590 U. S. ____ (2020)

99

Appendix D to opinion of ALITO, J.

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100

~Aloi(

I SOCIAL SECURITY NUIIIIBER

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

H . •r• you now o, ~you~ Nationa t G_,.,d , fC.- __

tt,• -.n '" an, ,-.,ua., o, ,..,. , .. r,r•n ch ot '""• Af'~ed Jorce, o, ,n'"• A rmtt ~ • t1on.a1Gua rd or A,r

,,_ ~-,.,•

OOlo,lft }14 •- o, 00Form115 o,NGllo,m 12 to r n-• I

YES 1110

21. ., .y ou"°""°' ~you...,

.... nowo, ceo o, 199• 11r wcw, ,,. o., 14 · yEs .· lff\t. , tn ltlftt\ 19 .REMARKS .· tft • o•tt . OIA( f a na ((k,,jft

wn teft Qre,nN Otworce or ...,,_1WOilr•tlioift

I

<"'~•'" JO. tt •n,court o,o., o, ~ ,neffKt th.It 011.cu you to oro v,o• ,uooo,i ro,

o, a i1"'on,. , tf • VES"'ent• • ,n tt•m 39,

-.1..e ·R EMARKS.· the>

pt,ac:e, Mid <aurt wfh(ft 9,.tn t .o Attfflony or l1t,,tOPOt•'t"<1ua,n9 oro • r, , .,un 1n9 fro,., o •t• rruty 1u1ti

~.a., .. J1. .,• .,.. ,ou ..,. , ._.,. .,.,...., , •OPte"-"oeo . en., ~ . <•teid o• "•10by

State . "''"'•' Yor otn• r ••• •M orc•rn•n t o,

.......,.~.t•aat .,,,.'"., ,.,..n, .. •vtt'IOrft .. . ,...,.,...

of~

cou,u...m•rt1,1,1o,

, 'UW <flat.on wu cr oooeo or o ,1m,11ed or you ..-.,. touno "ot 9u 11tyl 1nc 1uo e a ll
m, 1,ary w rw,c• 1f • YES• • :"'I•t, oet• ••' '" "•"' 35

._,_...,ldw_ rd Jl . A.J• , et,utt ot tlletft9arN"Md .

<,..,.rtea . '" " or n« tCIbv f f'Of'' • '· ~"-' • · ,,.,uu ,y o, ouw , 1.aw•111ot,cement or ,uw•nu•

• uthOl'lt ... . ,.. .. J101~ 1 ...,, UlftWtC'led . t,iwa by Or'tor1•1t.a ttono to • .,..,. ,a 1 Sta t • or ot ,... , tlld•C• I a "'t"O"rt wo, •o •ud1c•t.C

• ,outhful otf-

or ,...,._ _,._

t•~•CI-

of "'" • '" • ' tll• ••co, CItn }'011•C... IIH -n • 1t• •ed• or OU>erwtM

n,.c_ttn trom 1,- CIDlll'1:,.,.... ); or MM ~ tliN'" , .... MCI hOffl o,arol• . Ot<>Nt •Of't. 11,1w9,n.,. ,uo.rw~on OI C•Jftf'I • 1usoencte<:1

M nt..-c e o, , .. _ •n t • • _,., .,._

ot
35

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,,,.,

yo.. • ooir to, o, enun ,n ,,,. Un11e<S1tatttl A1m.o fo« e1'

If ·YES:

Jl . Ha_.. "°".,.,~ . ~

.hatd "' • o, •~

t•m• tn • ny ,.,.. or o ri t,0n , ' • form or 1noun, .. 1 IChOO'. or • Juw«noe fe ulrty o,

,nn11ut__

,,_,un11t~of...,,aty

. 1t11te.~..,••• • o, to1e,9n co..nt,y> 11 •y [s .· •"•• • csei.11,,,, 11em 3S

" •yn: J&. ., • .,. ,.ou -• - • -rd . o, - ,ou - u-

cnm1MIICMl~....-,aw

f

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• 11110.noed,.,.,ence . p.,o,. , o, prooet111S111tem35

o• •"'•""'9 ar, y •cuo n 011

•II JS. I.AW YIOI.AnoltS. E--

..._ ·vts· __ ,. 9,...., '" ttems ) I ' "•OU9n3• •DOft (Inc l ude • II ,nctdenu w,tt, i.w ento, ce,.,..,,

__,._ •-

- tf - -

..- ......- wa cirOONGo, d11ffl1lMCI o, yo.. ..,.,. to..ftd not 91111')o', yo., 11•,re - told by rec111tt"'9

0.-

Ot -

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. .,,..,.._ • ...-... ""°°'°'...... 4

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IA CMCA\.I

.

.

JI. CNAIIAC'fla AIID ~ AIMUS1Mlllff : If "°" ' ·-to_,,.

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a •YES." ~ IO _, 11-. __

..,. -

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ft -

If

encl 9 1w cMU1b 11• 11.... H . •1t(MA IU(S." A "Y(S" •-r

wi ll ftOt

_,,,

•---"'Y ,-, far ■ 11~; It W\11daCl■ ncl 1111- CIR-ll"'IUftC■'I 14,1rt0Uncl111-CJ Situation

YU NO

• A.,,_..•-• '· 0-

(1) . (2) • ..., 01 N'- -

~

-wl!Clly. 11WwitllOII'- • -,,pt,on

of ,,..,.,.,..,, • . l\,lrtotlCl. LSDor ott1e r d.a"9■rous drugs .

•O> "-t11>--. on ,our -4191111,1ty1 10 ■nlort o r be a,,,,"'ISIIOMCI but 11_,n,. 1to accur•tit JOI>claUtfotlOI\ . Addrt- •

._,,..,...,.. _,,.,,...-..c ~ or officertta,n,nv KIIOOI

(1 1... ,,...,.._

.._. __

_LSOoroo,,., oa..a. rouutruos >

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

(2) H_ _,_....,.

• ..,.....,otnarcotlG . LSDor Ot"■ r oan~rous oruo1orffla r.1uana >

(] ) H __

_,,...,.....a1.,..,_ontl,eD8flto•"'°"""

'

t:b Ha• ,ow,,_ of llr"9I or -.oic --~

,,__otal,

IOI•?

IIUCfl at ltQIIO. f- •· w , r,e). ..,. , re14,11te,d,. ~• 1011of a ,ot, . arrett oy P04« . or

Are you a homosexual or a bisexual?("Homosexual" is defined as: sexualdesire or oenav1oar ireCleeal t a person(s) ot ones own

sex. "Bisexual"is definedas: a person sexually responsive to both sexes.)

,t: Do you intendto engage in homosexualacts (sexual relationswith another personof the same sex)?

·

.. An ,ou • ~ •• ....,,

T1'ifl• · Clo,ow- · or...,,,. ,ou .,,. , "80 . 1 t,,..,_fond , and s,ftff,. Ollf■CI'°" to pert1C11Nb0fl

on-•"'.,,,,_,,...,.,._....,..

of-• Nea,.. of 1'911910Utt1a ,n•nv or twllef '

I

'· H_ ,ou _.....,._.....,•••~,_,.___or

of,,,. ...ouniort by •l'tJo' ,anch o♦ -A,..,l'd fc,,w,

UM:ed Sta'"'

- ·or._,..._-... .•...,,.. g. An ,ou

frofll •"Y lltal'ICIoIf - Armae forcet of - unrtN Statn 1

'°"- ....o,•,,f.f.......,._-,~--_ .,.__ " Are ,ou - -

J'III - ...., , •_.,.,al

- Co,,,"'""il"'a'r,y or • ny (omfflwn11t or9ar, 1rat10n' Ar• you "°"'·o r ..., .. m-me nt . 9•0..11 or co"'o.,..,_ 01 ~,_, wh ich eowocatn -

--

of - ---•

..~ 10 ...., --

.,.._

.,...,.,_, ot- Ufl"9d \-..,

DD Fon,, 1""3, AUG as

ton'""'•'" t,o,w, of

or wh ,ch h•1 ..iool.O t n• P()4t<yo l •0-..1 ,ng the COfflffl •-

_t, •It•- - "'"" ..no.. - (o,,fl it 11t0n o t ,,.. ur11ttd Statn or Wllt(h

10

~- ..-.fa . unconfflWtlOna l m..... I ,,, "YES, · v,...···"' '",..,..Jt . ""fM,AIIICS .,

o1 am of lo,lft of

,&OE~

101

102

BOSTOCK v. CLAYTON COUNTY

/IIAME

I~Q(IA L SECVl\lfV NUMIUI

Tl OTHla t"'CIUJIIOUND DAta

• rq,v,,•.,•,..,.,. "'""'Nf ..... ,OU ... 1 b-led to , Of l'ftOdeclon, • I01•'9"

da~t

trav•II ~"91'"''"9ott,c111Ovt.- 1 (If • '1'£j, • -Olll•lh

tJ I

~ th• Vn'1.a ~t.tft

"'Mm jp , •11fM.61NC, "S)

Arll!«I ►- \1ncludl"9

..u ..0

I, , ,.,. .,..., _ anty 1......9 d\~d ot >'OIPi' f'"""'

-••nu- ( , Alt ,ou - d•-•nQ , ..,. Ila yau h• ... an .pp1 .... ,,o,, Nf1Gln9 , o• tDO•O•II far : iwtorad pay, DIUDdlty allaw•nc•.

IY1 ,

o, 1 ~ fl'O'!' fflt oo,,.,11mt1tt of,,_ uno1w ~t.'-"'

-,~----,a--"'"-" · °"" d, M.,.. ,- -

"''OIINonAOTC.IIINOI' ROTC.Su CNf~ "•OV••m, o, flaw -,ov
"llfM.61tl(S .,

a "'•"'"' qt.,._. C:,vo.l,, Pa~? (" "'l'H . •

M , UNOt•P,UU)IIIIG
•• I wncMntand that an on91n.al.nhnment 00119Jt.S ""• to WNe 1ntha ~nned Forc:n for II penod of eioht (81years (olCtlveanc, 1n.l('t1ve Ch,,ty1l 1rilt1U00l"ter di:tene,ved .

b. "'l'LICANn INITLAU,

Appendix D to opinion of ALITO, J.

SECTION IV • Allil•IIKS

Jt . 1(111.HIU (E-rhlftill ___

.l

Cite as: 590 U. S. ____ (2020)

103

Appendix D to opinion of ALITO, J.

~
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BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

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Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

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106

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

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Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

SIECTIOtiVl III• SU. T!MENT 0~ N,t.MI JOII OP,tQAI. MILJTAll'IU' COll:DS

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107

Cite as: 590 U. S. ____ (2020)

1

KAVANAUGH, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 17–1618, 17–1623 and 18–107
_________________

GERALD LYNN BOSTOCK, PETITIONER

17–1618

v.

CLAYTON COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS

17–1623

v.

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF THE ESTATE OF

DONALD ZARDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

PETITIONER

18–107

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 15, 2020]

JUSTICE KAVANAUGH, dissenting.
Like many cases in this Court, this case boils down to one fundamental question: Who decides? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of ” an individual’s “race, color, religion, sex, or national origin.” The question here is whether Title VII

2

BOSTOCK v. CLAYTON COUNTY

KAVANAUGH, J., dissenting
should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.
The political branches are well aware of this issue. In 2007, the U. S. House of Representatives voted 235 to 184 to prohibit employment discrimination on the basis of sexual orientation. In 2013, the U. S. Senate voted 64 to 32 in favor of a similar ban. In 2019, the House again voted 236 to 173 to outlaw employment discrimination on the basis of sexual orientation. Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law.
The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9).
But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989) (Kennedy, J., concurring). Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.1

—————— 1 Although this opinion does not separately analyze discrimination on
the basis of gender identity, this opinion’s legal analysis of discrimination on the basis of sexual orientation would apply in much the same way to discrimination on the basis of gender identity.

Cite as: 590 U. S. ____ (2020)

3

KAVANAUGH, J., dissenting
I
Title VII makes it unlawful for employers to discriminate because of “race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).2 As enacted in 1964, Title VII did not prohibit other forms of employment discrimination, such as age discrimination, disability discrimination, or sexual orientation discrimination.
Over time, Congress has enacted new employment discrimination laws. In 1967, Congress passed and President Johnson signed the Age Discrimination in Employment Act. 81 Stat. 602. In 1973, Congress passed and President Nixon signed the Rehabilitation Act, which in substance prohibited disability discrimination against federal and certain other employees. 87 Stat. 355. In 1990, Congress passed and President George H. W. Bush signed the comprehensive Americans with Disabilities Act. 104 Stat. 327.
To prohibit age discrimination and disability discrimination, this Court did not unilaterally rewrite or update the

—————— 2 In full, the statute provides: “It shall be an unlawful employment practice for an employer— “(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; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a) (emphasis added).
As the Court today recognizes, Title VII contains an important exemption for religious organizations. §2000e–1(a); see also §2000e–2(e). The First Amendment also safeguards the employment decisions of religious employers. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188–195 (2012). So too, the Religious Freedom Restoration Act of 1993 exempts employers from federal laws that substantially burden the exercise of religion, subject to limited exceptions. §2000bb–1.

4

BOSTOCK v. CLAYTON COUNTY

KAVANAUGH, J., dissenting
law. Rather, Congress and the President enacted new legislation, as prescribed by the Constitution’s separation of powers.
For several decades, Congress has considered numerous bills to prohibit employment discrimination based on sexual orientation. But as noted above, although Congress has come close, it has not yet shouldered a bill over the legislative finish line.
In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.
If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty. As James Madison stated: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator.” The Federalist No. 47, at 326 (citing Montesquieu). If judges could, for example, rewrite or update securities laws or healthcare laws or gun laws or environmental laws simply based on their own policy views, the Judiciary would become a democratically illegitimate super-legislature—unelected, and hijacking the important policy decisions reserved by the Constitution to the people’s elected representatives.
Because judges interpret the law as written, not as they might wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges

Cite as: 590 U. S. ____ (2020)

5

KAVANAUGH, J., dissenting
considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30.
But in the last few years, a new theory has emerged. To end-run the bedrock separation-of-powers principle that courts may not unilaterally rewrite statutes, the plaintiffs here (and, recently, two Courts of Appeals) have advanced a novel and creative argument. They contend that discrimination “because of sexual orientation” and discrimination “because of sex” are actually not separate categories of discrimination after all. Instead, the theory goes, discrimination because of sexual orientation always qualifies as discrimination because of sex: When a gay man is fired because he is gay, he is fired because he is attracted to men, even though a similarly situated woman would not be fired just because she is attracted to men. According to this theory, it follows that the man has been fired, at least as a literal matter, because of his sex.
Under this literalist approach, sexual orientation discrimination automatically qualifies as sex discrimination, and Title VII’s prohibition against sex discrimination therefore also prohibits sexual orientation discrimination—and actually has done so since 1964, unbeknownst to everyone. Surprisingly, the Court today buys into this approach. Ante, at 9–12.
For the sake of argument, I will assume that firing someone because of their sexual orientation may, as a very literal matter, entail making a distinction based on sex. But to prevail in this case with their literalist approach, the plaintiffs must also establish one of two other points. The plaintiffs must establish that courts, when interpreting a statute, adhere to literal meaning rather than ordinary meaning. Or alternatively, the plaintiffs must establish that the ordinary meaning of “discriminate because of sex”—not just the literal meaning—encompasses sexual orientation discrimination. The plaintiffs fall short on both counts.

6

BOSTOCK v. CLAYTON COUNTY

KAVANAUGH, J., dissenting
First, courts must follow ordinary meaning, not literal meaning. And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.
There is no serious debate about the foundational interpretive principle that courts adhere to ordinary meaning, not literal meaning, when interpreting statutes. As Justice Scalia explained, “the good textualist is not a literalist.” A. Scalia, A Matter of Interpretation 24 (1997). Or as Professor Eskridge stated: The “prime directive in statutory interpretation is to apply the meaning that a reasonable reader would derive from the text of the law,” so that “for hard cases as well as easy ones, the ordinary meaning (or the ‘everyday meaning’ or the ‘commonsense’ reading) of the relevant statutory text is the anchor for statutory interpretation.” W. Eskridge, Interpreting Law 33, 34–35 (2016) (footnote omitted). Or as Professor Manning put it, proper statutory interpretation asks “how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context. This approach recognizes that the literal or dictionary definitions of words will often fail to account for settled nuances or background conventions that qualify the literal meaning of language and, in particular, of legal language.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–2393 (2003). Or as Professor Nelson wrote: No “mainstream judge is interested solely in the literal definitions of a statute’s words.” Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 376 (2005). The ordinary meaning that counts is the ordinary public meaning at the time of enactment—although in this case, that temporal principle matters little because the ordinary meaning of “discriminate because of sex” was the same in 1964 as it is now.
Judges adhere to ordinary meaning for two main reasons: rule of law and democratic accountability. A society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to

Cite as: 590 U. S. ____ (2020)

7

KAVANAUGH, J., dissenting
ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact. Citizens and legislators must be able to ascertain the law by reading the words of the statute. Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.
Consider a simple example of how ordinary meaning differs from literal meaning. A statutory ban on “vehicles in the park” would literally encompass a baby stroller. But no good judge would interpret the statute that way because the word “vehicle,” in its ordinary meaning, does not encompass baby strollers.
The ordinary meaning principle is longstanding and well settled. Time and again, this Court has rejected literalism in favor of ordinary meaning. Take a few examples:
 The Court recognized that beans may be seeds “in the language of botany or natural history,” but concluded that beans are not seeds “in commerce” or “in common parlance.” Robertson v. Salomon, 130 U. S. 412, 414 (1889).
 The Court explained that tomatoes are literally “the fruit of a vine,” but “in the common language of the people,” tomatoes are vegetables. Nix v. Hedden, 149 U. S. 304, 307 (1893).
 The Court stated that the statutory term “vehicle” does not cover an aircraft: “No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air . . . . But in everyday speech ‘vehicle’ calls up the picture of a thing moving on land.” McBoyle v. United States, 283 U. S. 25, 26 (1931).
 The Court pointed out that “this Court’s interpretation of the three-judge-court statutes has frequently deviated from the path of literalism.” Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 96 (1974).

8

BOSTOCK v. CLAYTON COUNTY

KAVANAUGH, J., dissenting
 The Court refused a reading of “mineral deposits” that would include water, even if “water is a ‘mineral,’ in the broadest sense of that word,” because it would bring about a “major . . . alteration in established legal relationships based on nothing more than an overly literal reading of a statute, without any regard for its context or history.” Andrus v. Charlestone Stone Products Co., 436 U. S. 604, 610, 616 (1978).
 The Court declined to interpret “facilitating” a drug distribution crime in a way that would cover purchasing drugs, because the “literal sweep of ‘facilitate’ sits uncomfortably with common usage.” Abuelhawa v. United States, 556 U. S. 816, 820 (2009).
 The Court rebuffed a literal reading of “personnel rules” that would encompass any rules that personnel must follow (as opposed to human resources rules about personnel), and stated that no one “using ordinary language would describe” personnel rules “in this manner.” Milner v. Department of Navy, 562 U. S. 562, 578 (2011).
 The Court explained that, when construing statutory phrases such as “arising from,” it avoids “uncritical literalism leading to results that no sensible person could have intended.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 9–10) (internal quotation marks omitted).
Those cases exemplify a deeply rooted principle: When there is a divide between the literal meaning and the ordinary meaning, courts must follow the ordinary meaning.
Next is a critical point of emphasis in this case. The difference between literal and ordinary meaning becomes especially important when—as in this case—judges consider phrases in statutes. (Recall that the shorthand version of the phrase at issue here is “discriminate because of sex.”)3
—————— 3 The full phrasing of the statute is provided above in footnote 2. This

Cite as: 590 U. S. ____ (2020)

9

KAVANAUGH, J., dissenting
Courts must heed the ordinary meaning of the phrase as a whole, not just the meaning of the words in the phrase. That is because a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase. Examples abound. An “American flag” could literally encompass a flag made in America, but in common parlance it denotes the Stars and Stripes. A “three-pointer” could literally include a field goal in football, but in common parlance, it is a shot from behind the arc in basketball. A “cold war” could literally mean any wintertime war, but in common parlance it signifies a conflict short of open warfare. A “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes.
This Court has often emphasized the importance of sticking to the ordinary meaning of a phrase, rather than the meaning of words in the phrase. In FCC v. AT&T Inc., 562 U. S. 397 (2011), for example, the Court explained:
“AT&T’s argument treats the term ‘personal privacy’ as simply the sum of its two words: the privacy of a person. . . . But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. ‘Personal’ in the phrase ‘personal privacy’ conveys more than just ‘of a person.’ It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.” Id., at 406.

—————— opinion uses “discriminate because of sex” as shorthand for “discriminate . . . because of . . . sex.” Also, the plaintiffs do not dispute that the ordinary meaning of the statutory phrase “discriminate” because of sex is the same as the statutory phrase “to fail or refuse to hire or to discharge any individual” because of sex.

10

BOSTOCK v. CLAYTON COUNTY

KAVANAUGH, J., dissenting
Exactly right and exactly on point in this case. Justice Scalia explained the extraordinary importance of
hewing to the ordinary meaning of a phrase: “Adhering to the fair meaning of the text (the textualist’s touchstone) does not limit one to the hyperliteral meaning of each word in the text. In the words of Learned Hand: ‘a sterile literalism . . . loses sight of the forest for the trees.’ The full body of a text contains implications that can alter the literal meaning of individual words.” A. Scalia & B. Garner, Reading Law 356 (2012) (footnote omitted). Put another way, “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.” Helvering v. Gregory, 69 F. 2d 809, 810–811 (CA2 1934) (L. Hand, J.). Judges must take care to follow ordinary meaning “when two words combine to produce a meaning that is not the mechanical composition of the two words separately.” Eskridge, Interpreting Law, at 62. Dictionaries are not “always useful for determining the ordinary meaning of word clusters (like ‘driving a vehicle’) or phrases and clauses or entire sentences.” Id., at 44. And we must recognize that a phrase can cover a “dramatically smaller category than either component term.” Id., at 62.
If the usual evidence indicates that a statutory phrase bears an ordinary meaning different from the literal strung-together definitions of the individual words in the phrase, we may not ignore or gloss over that discrepancy. “Legislation cannot sensibly be interpreted by stringing together dictionary synonyms of each word and proclaiming that, if the right example of the meaning of each is selected, the ‘plain meaning’ of the statute leads to a particular result. No theory of interpretation, including textualism itself, is premised on such an approach.” 883 F. 3d 100, 144, n. 7 (CA2 2018) (Lynch, J., dissenting).4

—————— 4 Another longstanding canon of statutory interpretation—the absurd-
ity canon—similarly reflects the law’s focus on ordinary meaning rather

Cite as: 590 U. S. ____ (2020)

11

KAVANAUGH, J., dissenting
In other words, this Court’s precedents and longstanding principles of statutory interpretation teach a clear lesson: Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does. See ante, at 5–9. To reiterate Justice Scalia’s caution, that approach misses the forest for the trees.
A literalist approach to interpreting phrases disrespects ordinary meaning and deprives the citizenry of fair notice of what the law is. It destabilizes the rule of law and thwarts democratic accountability. For phrases as well as terms, the “linchpin of statutory interpretation is ordinary meaning, for that is going to be most accessible to the citizenry desirous of following the law and to the legislators and their staffs drafting the legal terms of the plans launched by statutes and to the administrators and judges implementing the statutory plan.” Eskridge, Interpreting Law, at 81; see Scalia, A Matter of Interpretation, at 17.
Bottom line: Statutory Interpretation 101 instructs courts to follow ordinary meaning, not literal meaning, and to adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.
Second, in light of the bedrock principle that we must adhere to the ordinary meaning of a phrase, the question in this case boils down to the ordinary meaning of the phrase “discriminate because of sex.” Does the ordinary meaning of that phrase encompass discrimination because of sexual orientation? The answer is plainly no.

—————— than literal meaning. That canon tells courts to avoid construing a statute in a way that would lead to absurd consequences. The absurdity canon, properly understood, is “an implementation of (rather than . . . an exception to) the ordinary meaning rule.” W. Eskridge, Interpreting Law 72 (2016). “What the rule of absurdity seeks to do is what all rules of interpretation seek to do: make sense of the text.” A. Scalia & B. Garner, Reading Law 235 (2012).

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KAVANAUGH, J., dissenting
On occasion, it can be difficult for judges to assess ordinary meaning. Not here. Both common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination—back in 1964 and still today.
As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The majority opinion acknowledges the common understanding, noting that the plaintiffs here probably did not tell their friends that they were fired because of their sex. Ante, at 16. That observation is clearly correct. In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.
Contrary to the majority opinion’s approach today, this Court has repeatedly emphasized that common parlance matters in assessing the ordinary meaning of a statute, because courts heed how “most people” “would have understood” the text of a statute when enacted. New Prime Inc. v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7); see Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 4) (using a conversation between friends to demonstrate ordinary meaning); see also Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___–___ (2018) (slip op., at 2–3) (similar); AT&T, 562 U. S., at 403– 404 (similar).
Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of

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the other—as the majority opinion does—misapprehends common language, human psychology, and real life. See Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339, 363 (CA7 2017) (Sykes, J., dissenting).
It also rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.
Importantly, an overwhelming body of federal law reflects and reinforces the ordinary meaning and demonstrates that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. Since enacting Title VII in 1964, Congress has never treated sexual orientation discrimination the same as, or as a form of, sex discrimination. Instead, Congress has consistently treated sex discrimination and sexual orientation discrimination as legally distinct categories of discrimination.
Many federal statutes prohibit sex discrimination, and many federal statutes also prohibit sexual orientation discrimination. But those sexual orientation statutes expressly prohibit sexual orientation discrimination in addition to expressly prohibiting sex discrimination. Every single one. To this day, Congress has never defined sex discrimination to encompass sexual orientation discrimination. Instead, when Congress wants to prohibit sexual orientation discrimination in addition to sex discrimination, Congress explicitly refers to sexual orientation discrimination.5
—————— 5 See 18 U. S. C. §249(a)(2)(A) (criminalizing violence because of “gen-
der, sexual orientation”); 20 U. S. C. §1092(f )(1)(F)(ii) (requiring funding recipients to collect statistics on crimes motivated by the victim’s “gender, . . . sexual orientation”); 34 U. S. C. §12291(b)(13)(A) (prohibiting discrimination on the basis of “sex, . . . sexual orientation”); §30501(1)

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That longstanding and widespread congressional practice matters. When interpreting statutes, as the Court has often said, we “usually presume differences in language” convey “differences in meaning.” Wisconsin Central, 585 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). When Congress chooses distinct phrases to accomplish distinct purposes, and does so over and over again for decades, we may not lightly toss aside all of Congress’s careful handiwork. As Justice Scalia explained for the Court, “it is not our function” to “treat alike subjects that different Congresses have chosen to treat differently.” West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 101 (1991); see id., at 92.
And the Court has likewise stressed that we may not read “a specific concept into general words when precise language in other statutes reveals that Congress knew how to identify that concept.” Eskridge, Interpreting Law, at 415; see University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 357 (2013); Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 297–298 (2006); Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341–342 (2005); Custis v. United States, 511 U. S. 485, 491–493 (1994); West Virginia Univ. Hospitals, 499 U. S., at 99.

—————— (identifying violence motivated by “gender, sexual orientation” as national problem); §30503(a)(1)(C) (authorizing Attorney General to assist state, local, and tribal investigations of crimes motivated by the victim’s “gender, sexual orientation”); §§41305(b)(1), (3) (requiring Attorney General to acquire data on crimes motivated by “gender . . . , sexual orientation,” but disclaiming any cause of action including one “based on discrimination due to sexual orientation”); 42 U. S. C. §294e–1(b)(2) (conditioning funding on institution’s inclusion of persons of “different genders and sexual orientations”); see also United States Sentencing Commission, Guidelines Manual §3A1.1(a) (Nov. 2018) (authorizing increased offense level if the crime was motivated by the victim’s “gender . . . or sexual orientation”); 2E Guide to Judiciary Policy §320 (2019) (prohibiting judicial discrimination because of “sex, . . . sexual orientation”).

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So it is here. As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination. So courts should not read that specific concept into the general words “discriminate because of sex.” We cannot close our eyes to the indisputable fact that Congress—for several decades in a large number of statutes—has identified sex discrimination and sexual orientation discrimination as two distinct categories.
Where possible, we also strive to interpret statutes so as not to create undue surplusage. It is not uncommon to find some scattered redundancies in statutes. But reading sex discrimination to encompass sexual orientation discrimination would cast aside as surplusage the numerous references to sexual orientation discrimination sprinkled throughout the U. S. Code in laws enacted over the last 25 years.
In short, an extensive body of federal law both reflects and reinforces the widespread understanding that sexual orientation discrimination is distinct from, and not a form of, sex discrimination.
The story is the same with bills proposed in Congress. Since the 1970s, Members of Congress have introduced many bills to prohibit sexual orientation discrimination in the workplace. Until very recently, all of those bills would have expressly established sexual orientation as a separately proscribed category of discrimination. The bills did not define sex discrimination to encompass sexual orientation discrimination.6
—————— 6 See, e.g., H. R. 14752, 93d Cong., 2d Sess., §§6, 11 (1974) (amending
Title VII “by adding after the word ‘sex’ ” the words “ ‘sexual orientation,’ ” defined as “choice of sexual partner according to gender”); H. R. 451, 95th Cong., 1st Sess., §§6, 11 (1977) (“adding after the word ‘sex,’ . . . ‘affectional or sexual preference,’ ” defined as “having or manifesting an emotional or physical attachment to another consenting person or persons of either gender, or having or manifesting a preference for such

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KAVANAUGH, J., dissenting
The proposed bills are telling not because they are relevant to congressional intent regarding Title VII. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 186–188 (1994). Rather, the proposed bills are telling because they, like the enacted laws, further demonstrate the widespread usage of the English language in the United States: Sexual orientation discrimination is distinct from, and not a form of, sex discrimination.
Presidential Executive Orders reflect that same common understanding. In 1967, President Johnson signed an Executive Order prohibiting sex discrimination in federal employment. In 1969, President Nixon issued a new order that did the same. Exec. Order No. 11375, 3 CFR 684 (1966– 1970 Comp.); Exec. Order No. 11478, id., at 803. In 1998, President Clinton charted a new path and signed an Executive Order prohibiting sexual orientation discrimination in federal employment. Exec. Order No. 13087, 3 CFR 191 (1999). The Nixon and Clinton Executive Orders remain in effect today.

—————— attachment”); S. 1708, 97th Cong., 1st Sess., §§1, 2 (1981) (“inserting after ‘sex’ . . . ‘sexual orientation,’ ” defined as “ ‘homosexuality, heterosexuality, and bisexuality’ ”); H. R. 230, 99th Cong., 1st Sess., §§4, 8 (1985) (“inserting after ‘sex,’ . . . ‘affectional or sexual orientation,’ ” defined as “homosexuality, heterosexuality, and bisexuality”); S. 47, 101st Cong., 1st Sess., §§5, 9 (1989) (“inserting after ‘sex,’ . . . ‘affectional or sexual orientation,’ ” defined as “homosexuality, heterosexuality, and bisexuality”); H. R. 431, 103d Cong., 1st Sess., §2 (1993) (prohibiting discrimination “on account of . . . sexual orientation” without definition); H. R. 1858, 105th Cong., 1st Sess., §§3, 4 (1997) (prohibiting discrimination “on the basis of sexual orientation,” defined as “homosexuality, bisexuality, or heterosexuality”); H. R. 2692, 107th Cong., 1st Sess., §§3, 4 (2001) (prohibiting discrimination “because of . . . sexual orientation,” defined as “homosexuality, bisexuality, or heterosexuality”); H. R. 2015, 110th Cong., 1st Sess., §§3, 4 (2007) (prohibiting discrimination “because of . . . sexual orientation,” defined as “homosexuality, heterosexuality, or bisexuality”); S. 811, 112th Cong., 1st Sess., §§3, 4 (2011) (same).

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Like the relevant federal statutes, the 1998 Clinton Executive Order expressly added sexual orientation as a new, separately prohibited form of discrimination. As Judge Lynch cogently spelled out, “the Clinton Administration did not argue that the prohibition of sex discrimination in” the prior 1969 Executive Order “already banned, or henceforth would be deemed to ban, sexual orientation discrimination.” 883 F. 3d, at 152, n. 22 (dissenting opinion). In short, President Clinton’s 1998 Executive Order indicates that the Executive Branch, like Congress, has long understood sexual orientation discrimination to be distinct from, and not a form of, sex discrimination.
Federal regulations likewise reflect that same understanding. The Office of Personnel Management is the federal agency that administers and enforces personnel rules across the Federal Government. OPM has issued regulations that “govern . . . the employment practices of the Federal Government generally, and of individual agencies.” 5 CFR §§300.101, 300.102 (2019). Like the federal statutes and the Presidential Executive Orders, those OPM regulations separately prohibit sex discrimination and sexual orientation discrimination.
The States have proceeded in the same fashion. A majority of States prohibit sexual orientation discrimination in

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employment, either by legislation applying to most workers,7 an executive order applying to public employees,8 or
—————— 7 See Cal. Govt. Code Ann. §12940(a) (West 2020 Cum. Supp.) (prohib-
iting discrimination because of “sex, . . . sexual orientation,” etc.); Colo. Rev. Stat. §24–34–402(1)(a) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Conn. Gen. Stat. §46a–81c (2017) (prohibiting discrimination because of “sexual orientation”); Del. Code Ann., Tit. 19, §711 (2018 Cum. Supp.) (prohibiting discrimination because of “sex (including pregnancy), sexual orientation,” etc.); D. C. Code §2– 1402.11(a)(1) (2019 Cum. Supp.) (prohibiting discrimination based on “sex, . . . sexual orientation,” etc.); Haw. Rev. Stat. §378–2(a)(1)(A) (2018 Cum. Supp.) (prohibiting discrimination because of “sex[,] . . . sexual orientation,” etc.); Ill. Comp. Stat., ch. 775, §§5/1–103(Q), 5/2–102(A) (West 2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Iowa Code §216.6(1)(a) (2018) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Me. Rev. Stat. Ann., Tit. 5, §4572(1)(A) (2013) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Md. State Govt. Code Ann. §20–606(a)(1)(i) (Supp. 2019) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Mass. Gen. Laws, ch. 151B, §4 (2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Minn. Stat. §363A.08(2) (2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Nev. Rev. Stat. §613.330(1) (2017) (prohibiting discrimination because of “sex, sexual orientation,” etc.); N. H. Rev. Stat. Ann. §354–A:7(I) (2018 Cum. Supp.) (prohibiting discrimination because of “sex,” “sexual orientation,” etc.); N. J. Stat. Ann. §10:5–12(a) (West Supp. 2019) (prohibiting discrimination because of “sexual orientation, . . . sex,” etc.); N. M. Stat. Ann. §28–1–7(A) (Supp. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); N. Y. Exec. Law Ann. §296(1)(a) (West Supp. 2020) (prohibiting discrimination because of “sexual orientation, . . . sex,” etc.); Ore. Rev. Stat. §659A.030(1) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); R. I. Gen. Laws §28–5– 7(1) (Supp. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Utah Code §34A–5–106(1) (2019) (prohibiting discrimination because of “sex; . . . sexual orientation,” etc.); Vt. Stat. Ann., Tit. 21, §495(a)(1) (2019 Cum. Supp.) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Wash. Rev. Code §49.60.180 (2008) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.).
8 See, e.g., Alaska Admin. Order No. 195 (2002) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Ariz. Exec. Order No. 2003–22 (2003) (prohibiting public-employment discrimination because of “sexual orientation”); Cal. Exec. Order No. B–

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both. Almost every state statute or executive order proscribing sexual orientation discrimination expressly prohibits sexual orientation discrimination separately from the State’s ban on sex discrimination.
—————— 54–79 (1979) (prohibiting public-employment discrimination because of “sexual preference”); Colo. Exec. Order (Dec. 10, 1990) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); Del. Exec. Order No. 8 (2009) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Ind. Governor’s Pol’y Statement (2018) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Kan. Exec. Order No. 19–02 (2019) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); Ky. Exec. Order No. 2008–473 (2008) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Mass. Exec. Order No. 526 (2011) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Minn. Exec. Order No. 86–14 (1986) (prohibiting publicemployment discrimination because of “sexual orientation”); Mo. Exec. Order No. 10–24 (2010) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Mont. Exec. Order No. 04– 2016 (2016) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); N. H. Exec. Order No. 2016–04 (2016) (prohibiting public-employment discrimination because of “sex, sexual orientation,” etc.); N. J. Exec. Order No. 39 (1991) (prohibiting publicemployment discrimination because of “sexual orientation”); N. C. Exec. Order No. 24 (2017) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Ohio Exec. Order No. 2019– 05D (2019) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Ore. Exec. Order No. 19–08 (2019) (prohibiting public-employment discrimination because of “sexual orientation”); Pa. Exec. Order No. 2016–04 (2016) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); R. I. Exec. Order No. 93–1 (1993) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Va. Exec. Order No. 1 (2018) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Wis. Exec. Order No. 1 (2019) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); cf. Wis. Stat. §§111.36(1)(d)(1), 111.321 (2016) (prohibiting employment discrimination because of sex, defined as including discrimination because of “sexual orientation”); Mich. Exec. Directive No. 2019– 9 (2019) (prohibiting public-employment discrimination because of “sex,” defined as including “sexual orientation”).

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That common usage in the States underscores that sexual orientation discrimination is commonly understood as a legal concept distinct from sex discrimination.
And it is the common understanding in this Court as well. Since 1971, the Court has employed rigorous or heightened constitutional scrutiny of laws that classify on the basis of sex. See United States v. Virginia, 518 U. S. 515, 531–533 (1996); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136– 137 (1994); Craig v. Boren, 429 U. S. 190, 197–199 (1976); Frontiero v. Richardson, 411 U. S. 677, 682–684 (1973) (plurality opinion); Reed v. Reed, 404 U. S. 71, 75–77 (1971). Over the last several decades, the Court has also decided many cases involving sexual orientation. But in those cases, the Court never suggested that sexual orientation discrimination is just a form of sex discrimination. All of the Court’s cases from Bowers to Romer to Lawrence to Windsor to Obergefell would have been far easier to analyze and decide if sexual orientation discrimination were just a form of sex discrimination and therefore received the same heightened scrutiny as sex discrimination under the Equal Protection Clause. See Bowers v. Hardwick, 478 U. S. 186 (1986); Romer v. Evans, 517 U. S. 620 (1996); Lawrence v. Texas, 539 U. S. 558 (2003); United States v. Windsor, 570 U. S. 744 (2013); Obergefell v. Hodges, 576 U. S. 644 (2015).
Did the Court in all of those sexual orientation cases just miss that obvious answer—and overlook the fact that sexual orientation discrimination is actually a form of sex discrimination? That seems implausible. Nineteen Justices have participated in those cases. Not a single Justice stated or even hinted that sexual orientation discrimination was just a form of sex discrimination and therefore entitled to the same heightened scrutiny under the Equal Protection Clause. The opinions in those five cases contain no trace of such reasoning. That is presumably because everyone on this Court, too, has long understood that sexual orientation

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discrimination is distinct from, and not a form of, sex discrimination.
In sum, all of the usual indicators of ordinary meaning— common parlance, common usage by Congress, the practice in the Executive Branch, the laws in the States, and the decisions of this Court—overwhelmingly establish that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The usage has been consistent across decades, in both the federal and state contexts.
Judge Sykes summarized the law and language this way: “To a fluent speaker of the English language—then and now—. . . discrimination ‘because of sex’ is not reasonably understood to include discrimination based on sexual orientation, a different immutable characteristic. Classifying people by sexual orientation is different than classifying them by sex. The two traits are categorically distinct and widely recognized as such. There is no ambiguity or vagueness here.” Hively, 853 F. 3d, at 363 (dissenting opinion).
To tie it all together, the plaintiffs have only two routes to succeed here. Either they can say that literal meaning overrides ordinary meaning when the two conflict. Or they can say that the ordinary meaning of the phrase “discriminate because of sex” encompasses sexual orientation discrimination. But the first flouts long-settled principles of statutory interpretation. And the second contradicts the widespread ordinary use of the English language in America.
II
Until the last few years, every U. S. Court of Appeals to address this question concluded that Title VII does not prohibit discrimination because of sexual orientation. As noted above, in the first 10 Courts of Appeals to consider the issue, all 30 federal judges agreed that Title VII does not prohibit sexual orientation discrimination. 30 out of 30

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judges.9 The unanimity of those 30 federal judges shows that the
question as a matter of law, as compared to as a matter of policy, was not deemed close. Those 30 judges realized a seemingly obvious point: Title VII is not a general grant of authority for judges to fashion an evolving common law of equal treatment in the workplace. Rather, Title VII identifies certain specific categories of prohibited discrimination. And under the separation of powers, Congress—not the courts—possesses the authority to amend or update the law, as Congress has done with age discrimination and disability discrimination, for example.
So what changed from the situation only a few years ago when 30 out of 30 federal judges had agreed on this question? Not the text of Title VII. The law has not changed. Rather, the judges’ decisions have evolved.
To be sure, the majority opinion today does not openly profess that it is judicially updating or amending Title VII. Cf. Hively, 853 F. 3d, at 357 (Posner, J., concurring). But the majority opinion achieves the same outcome by seizing on literal meaning and overlooking the ordinary meaning of the phrase “discriminate because of sex.” Although the majority opinion acknowledges that the meaning of a phrase and the meaning of a phrase’s individual words could differ, it dismisses phrasal meaning for purposes of this case. The majority opinion repeatedly seizes on the meaning of the
—————— 9 See Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 258–
259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001); Wrightson v. Pizza Hut of America, Inc., 99 F. 3d 138, 143 (CA4 1996); Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam); Ruth v. Children’s Medical Center, 1991 WL 151158, *5 (CA6, Aug. 8, 1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084–1085 (CA7 1984); Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA8 1989) (per curiam); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Medina v. Income Support Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005).

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statute’s individual terms, mechanically puts them back together, and generates an interpretation of the phrase “discriminate because of sex” that is literal. See ante, at 5–9, 17, 24–26. But to reiterate, that approach to statutory interpretation is fundamentally flawed. Bedrock principles of statutory interpretation dictate that we look to ordinary meaning, not literal meaning, and that we likewise adhere to the ordinary meaning of phrases, not just the meaning of words in a phrase. And the ordinary meaning of the phrase “discriminate because of sex” does not encompass sexual orientation discrimination.
The majority opinion deflects that critique by saying that courts should base their interpretation of statutes on the text as written, not on the legislators’ subjective intentions. Ante, at 20, 23–30. Of course that is true. No one disagrees. It is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998).
But in my respectful view, the majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. To briefly explain: In the early years after Title VII was enacted, some may have wondered whether Title VII’s prohibition on sex discrimination protected male employees. After all, covering male employees may not have been the intent of some who voted for the statute. Nonetheless, discrimination on the basis of sex against women and discrimination on the basis of sex against men are both understood as discrimination because of sex (back in 1964 and now) and are therefore encompassed within Title VII. Cf. id., at 78–79; see Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682–685 (1983). So too, regardless of what the intentions of the drafters might have been, the ordinary meaning of the law demonstrates that harassing an employee because of her sex is discriminating against the employee because of her sex with respect

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to the “terms, conditions, or privileges of employment,” as this Court rightly concluded. Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986) (internal quotation marks omitted).10
By contrast, this case involves sexual orientation discrimination, which has long and widely been understood as distinct from, and not a form of, sex discrimination. Until now, federal law has always reflected that common usage and recognized that distinction between sex discrimination and sexual orientation discrimination. To fire one employee because she is a woman and another employee because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions.

—————— 10 An amicus brief supporting the plaintiffs suggests that the plaintiffs’
interpretive approach is supported by the interpretive approach employed by the Court in its landmark decision in Brown v. Board of Education, 347 U. S. 483 (1954). See Brief for Anti-Discrimination Scholars as Amici Curiae 4. That suggestion is incorrect. Brown is a correct decision as a matter of original public meaning. There were two analytical components of Brown. One issue was the meaning of “equal protection.” The Court determined that black Americans—like all Americans—have an individual equal protection right against state discrimination on the basis of race. (That point is also directly made in Bolling v. Sharpe, 347 U. S. 497, 499–500 (1954).) Separate but equal is not equal. The other issue was whether that racial nondiscrimination principle applied to public schools, even though public schools did not exist in any comparable form in 1868. The answer was yes. The Court applied the equal protection principle to public schools in the same way that the Court applies, for example, the First Amendment to the Internet and the Fourth Amendment to cars.
This case raises the same kind of inquiry as the first question in Brown. There, the question was what equal protection meant. Here, the question is what “discriminate because of sex” means. If this case raised the question whether the sex discrimination principle in Title VII applied to some category of employers unknown in 1964, such as to social media companies, it might be a case in Brown’s second category, akin to the question whether the racial nondiscrimination principle applied to public schools. But that is not this case.

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KAVANAUGH, J., dissenting
To be sure, as Judge Lynch appropriately recognized, it is “understandable” that those seeking legal protection for gay people “search for innovative arguments to classify workplace bias against gays as a form of discrimination that is already prohibited by federal law. But the arguments advanced by the majority ignore the evident meaning of the language of Title VII, the social realities that distinguish between the kinds of biases that the statute sought to exclude from the workplace from those it did not, and the distinctive nature of anti-gay prejudice.” 883 F. 3d, at 162 (dissenting opinion).
The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written. But that assertion is tough to accept. Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes the two. This Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two. Psychology distinguishes the two. Sociology distinguishes the two. Human resources departments all over America distinguish the two. Sports leagues distinguish the two. Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two. Common sense distinguishes the two.
As a result, many Americans will not buy the novel interpretation unearthed and advanced by the Court today. Many will no doubt believe that the Court has unilaterally rewritten American vocabulary and American law—a “statutory amendment courtesy of unelected judges.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). Some will surmise that the Court succumbed to “the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others.”

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Furman v. Georgia, 408 U. S. 238, 467 (1972) (Rehnquist, J., dissenting).
I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.
* * *
In judicially rewriting Title VII, the Court today cashiers an ongoing legislative process, at a time when a new law to prohibit sexual orientation discrimination was probably close at hand. After all, even back in 2007—a veritable lifetime ago in American attitudes about sexual orientation— the House voted 235 to 184 to prohibit sexual orientation discrimination in employment. H. R. 3685, 110th Cong., 1st Sess. In 2013, the Senate overwhelmingly approved a similar bill, 64 to 32. S. 815, 113th Cong., 1st Sess. In 2019, the House voted 236 to 173 to amend Title VII to prohibit employment discrimination on the basis of sexual orientation. H. R. 5, 116th Cong., 1st Sess. It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.
It is true that meaningful legislative action takes time— often too much time, especially in the unwieldy morass on

Cite as: 590 U. S. ____ (2020)

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Capitol Hill. But the Constitution does not put the Legislative Branch in the “position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). The proper role of the Judiciary in statutory interpretation cases is “to apply, not amend, the work of the People’s representatives,” even when the judges might think that “Congress should reenter the field and alter the judgments it made in the past.” Henson, 582 U. S., at ___–___ (slip op., at 10–11).
Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way. The Court’s ruling “comes at a great cost to representative self-government.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.
Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the

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Court’s judgment.