UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Plaintiff, Civil Action No. 2:14-cv-14-13710

Hon. SEAN F. COX

v.

R.G. & G.R. HARRIS FUNERAL 

HOMES, INC.,

Defendant.

___________________________________________________________________________/

DEFENDANT R.G. & G.R. HARRIS FUNERAL HOMES, INC.’S REPLY 

TO PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO

DISMISS

Defendant R.G. & G.R. HARRIS FUNERAL HOMES, INC., by and through its

attorney, JOEL J. KIRKPATRICK, P.C., for its Reply to the Plaintiff’s Response to 

Defendant’s Motion To Dismiss states as follows:

INTRODUCTION

Plaintiff Equal Employment Opportunity Commission (hereinafter “EEOC”) has alleged 

that the defendant, R.G. & G.R. Harris Funeral Homes, Inc. (hereinafter “Funeral Home”)

violated Title VII’s prohibition on “sex” discrimination when the Funeral Home fired its 

employee – William Anthony B. Stephens1 (hereinafter “Anthony”) – after Anthony advised the 

Funeral Home that he was suffering from Gender Identity Disorder and was going to start 

1 The Complaint identifies the employee as “Aimee Stephens.” However, the Funeral Home has never employed anyone by the 

name of “Aimee Stephens.” Anthony Stephens’s name was, at the time he was hired and at all times during his employment with 

the Funeral Home, “William Anthony Beasley Stephens,” and to the best of the Funeral Home’s knowledge, information, and 

belief, Anthony Stephens’ legal name is still “William Anthony Beasley Stephens” hence this designation has been used throughout 

these pleadings. 

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dressing as a woman at work, thereby violating the Funeral Home’s dress code requirements.

The Funeral Home filed a Motion to Dismiss the EEOC’s Complaint on the grounds that 

the EEOC’s Complaint fails to state a claim upon which relief may be granted. The EEOC’s

argument that its Complaint should not be dismissed is based on three contentions, namely: (1) 

discrimination against an employee because she is transgender is, by definition, sex 

discrimination; (2) discrimination against an employee because she is transitioning from male 

to female is, by definition, sex discrimination; and (3) adverse employment actions motivated 

by sex stereotyping are prohibited by Title VII.

The EEOC is in error. 

ARGUMENT

I. Adverse Employment Action Against An Employee Because The Employee Is 

Transgender Is Not Sex Discrimination Under Title VII.

The EEOC contends that “Discrimination against an employee because she is transgender 

is . . . by definition, discrimination because of sex.” This remarkable ipse dixit - "sex" means 

whatever the EEOC wanted to mean - violates the applicable statute, and any sensible 

application. 

In fact, the vast majority of federal courts to have addressed the issue have concluded the 

opposite – that discrimination against a transsexual based on the person’s status as a transsexual 

is not discrimination because of sex under Title VII. And that is the case even after Price 

Waterhouse v. Hopkins, 490 U.S. 228 (1989). See, for example, 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 

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on the person’s status as a transsexual is not discrimination because of sex under Title VII).

This fact defeats the EEOC’s repeated assertions that Title VII’s “sex” discrimination 

provision already includes protection against transgender discrimination. The language of Title 

VII is contrary to the EEOC’s position. The fact that Congress has repeatedly refused to enact 

ENDA so as to add transgender protection to VII is contrary to the EEOC’s position. And the

consistent decisions of a multitude of post-Price Waterhouse federal courts are contrary to the 

EEOC’s position. The EEOC’s position to the contrary is simply and clearly unsupportable. 

Therefore, the EEOC’s claim that the Funeral Home violated Title VII by terminating 

Anthony’s employment because Anthony claims to be transgender (see page 8 of the EEOC’s 

Response where the EEOC states that “Thus, the EEOC’s complaint states a claim of sex 

discrimination under Title VII because Stephens is transgender and RGGR fired her for that

reason”)(our emphasis), fails to state a claim upon which relief can be granted.

II. Adverse Employment Action Against An Employee Because The Employee 

Is Transitioning From Male To Female Is Not Sex Discrimination Under Title VII.

The EEOC also contends that an employer’s adverse employment action against a

transgendered employee – because the employee is purportedly transitioning from male to 

female – constitutes illegal “sex” discrimination under Title VII. But that contention must also 

fail.

It must fail because referring to a transgendered person as “transitioning from male to 

female” can only mean an individual is transgendered; there is no articulable difference between 

perceived "identity" and where a person is in the process of acting upon their perception. Simply 

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put, transitioning from male to female or from female to male is inseparable from being 

transgendered.

Notably the EEOC does not define what “transitioning from male to female” means. Does 

it mean just wearing female clothing? Does it mean wearing female clothing and makeup? Does 

it necessitate hormone treatments? Does it mean surgery – and, if so, to what degree? As

previously argued in this Motion – claiming an employer may lawfully discriminate against an 

employee on account of the employee’s gender identity disorder, per se, but not on account of

the expression of that disorder is, literally, nonsense. "Gender identity" and the expression of the 

disorder are synonymous, and the EEOC grassed that smoke when it attempts some distinction.

Indeed, the EEOC admits as much when it states, on page 7 of its Response, that “’[a] 

person is identified as transgender precisely because of the perception that his or her behavior 

transgresses gender stereotypes.” Therefore, arguing that being a transgendered person is not 

protected under Title VII, but that expressing that identity is protected, is a contradiction in terms. 

The self-contradiction is easily demonstrated: In what factual circumstance could an employer 

demonstrate that an employee was terminated for being transgender, without reference to the 

transgendered employee’s physical presentation of being transgendered? The answer, of course, 

is that one cannot conceive of any such circumstance – at least in the real world.

The EEOC relies heavily upon the case of Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 

2011). However, Glenn v. Brumby is easily distinguished from the case at bar because Brumby

was brought pursuant to 42 U.S.C. §1983 (2006) for alleged violations of the Equal Protection 

Clause of the Fourteenth Amendment to the United States Constitution, and not Title 

VII. Consequently, Glenn v. Brumby did not and could not have authoritatively addressed 

whether adverse employment action taken against a transgendered employee constituted 

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discrimination based on sex under Title VII. Indeed, this very distinction was recognized in Equal 

Employment Opportunity Commission v. The McPherson Companies, Inc., 914 F.Supp.2d 1234, 

1243 (N.D. Ga. 2012) where the court distinguished Brumby from the Title VII sex discrimination 

case before it on the ground that, among other things, Brumby was not brought under Title VII, 

but rather “. . . under an entirely different federal statute with different essential 

elements.”). Therefore, the Brumby case is inapplicable to the case here.

The EEOC’s claim that an adverse employment action against an employee may be 

maintained under this authority finds no support; indeed, any action claiming that transitioning 

from male to female is sex discrimination under Title VII must fail. 

III. Adverse Actions Motivated By Sex Stereotyping In The Transgender 

Context Are Not Prohibited by Title VII.

The Funeral Home does not contest that Price Waterhouse held that sexual stereotyping 

can constitute a form of “sex” discrimination under Title VII. That is not in dispute. The EEOC's 

overreach and consequent error is distorting “sexual stereotyping” into whatever it wishes that 

term to mean, and applying it to "gender identity" with all the predictable contradictions from 

that forced engineering. 

Even the EEOC must concede that Price Waterhouse was not a gender identity case. It 

was, rather, a case of a woman, claiming to be a woman, and presenting herself as a woman, who 

was terminated on account of her employer’s opinion that – as a woman – she was not complying 

with sexual stereotypes as to how women should dress and behave. Nor did Price Waterhouse

involve any allegation that – as is the case here – the employee was not complying with the 

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employer’s reasonable sex-specific dress code. Price Waterhouse would be analogous to this 

case only if – the Price Waterhouse employee was a woman, claiming to be a man and presenting 

herself as a man, refusing to comply with the employer’s female dress code. This is a critical 

distinction, and consistent with what Congress intended to include (or not include) in protected 

classes under Title VII. 

And that is where those courts that have applied Price Waterhouse to the transgender 

context have gone astray. They have applied the Price Waterhouse holding to a factual context

significantly different from the factual context of the Price Waterhouse case; for which the Price 

Waterhouse principle was never intended; and in which the application leads to absurd results, as 

it does if applied here.

The EEOC claims that Anthony’s discharge was “due to my [Anthony’s] sex and gender 

identity, female, in violation of Title VII of the Civil Rights Act of 1964” (our emphasis). The

EEOC consistently asserts throughout its pleadings that Anthony is a woman, while at the same 

time asserting, as the basis of its sexual stereotyping claim, that Anthony - existentially a woman

- was fired for presenting as a woman. But if Anthony is existentially a woman, then Anthony 

could not have been illegally discriminated against for having comported with sexual 

stereotypes attributed to women, because the sexual stereotyping theory only applies to a 

member of one sex not complying with the stereotypes associated with that sex. 

So, here, Anthony – who, according to the EEOC’s own pleadings, is a woman – could 

only, under a sexual stereotyping theory, have been illegally discriminated against if Anthony 

was discriminated against for not comporting with female sexual stereotypes. But the EEOC 

claims that Anthony was illegally discriminated against – not for having failed to comport with 

female stereotypes, but rather – for having comported with female stereotypes. This absurd 

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outcome and obvious dilemma for the EEOC cannot be what the Supreme Court had in mind 

when it decided Price Waterhouse. It also demonstrates why the EEOC’s Complaint fails to 

state a claim upon which relief can be granted.

The EEOC does not provide any evidence (nor can it) that transgender persons are a 

protected class under Title VII. Plaintiff would have this court believe that the lack of 

congressional intent and specific statutory language somehow creates a cause of action to exist 

out of thin air. And the insinuation that Congress may have failed to enact ENDA these past few 

decades because it knew transgender protections already existed under "sex" needs no further

refutation beyond stating the argument. It is well-publicized and the topic of frequent political 

debate that Congress has specifically refused to "add" sexual orientation or gender identity, per 

se, as protected classes under Title VII. Despite extraordinary effort, Plaintiff cannot conjure up 

statutory protection that has never existed.

In a case just decided since defendant filed its motion to dismiss, a United States 

District Court for the Western district of Texas came to a similar conclusion. In Eure v. Sage 

Corp., 2014 US Dist. Lexis 16151 (Attached), the court expressly rejected plaintiff's transgender 

claim as a sex discrimination claim under Title VII.

CONCLUSION

For the foregoing reasons, Defendant R.G. & G.R. Harris Funeral Homes, Inc.

respectfully requests that the Court grant its Motion to Dismiss, and dismiss the Complaint with 

prejudice.

JOEL J. KIRKPATRICK, P.C.

/s/ Joel J. Kirkpatrick

Joel J. Kirkpatrick

Attorney for Appellant

843 Penniman Ave. Suite 201

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Plymouth, MI 48170

(734) 404 – 5710

(866) 241-4152 FAX

joel@joelkirkpatrick.com

Dated: December 23, 2014

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CERTIFICATE OF SERVICE

I certify that on December 23, 2014, a copy of the above Defendant R.G.&G.R. Harris 

Funeral Homes, Inc.’s Reply To Plaintiff’s Response To Defendant’s Motion To Dismiss was filed 

electronically via the ECF filing system. Notice of this filing will be sent to all parties by operation 

of the Court’s electronic filing system. Parties may access this filing through the Court’s system.

/s/ Joel J. Kirkpatrick

 JOEL J. KIRKPATRICK

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