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

MOTION TO DISMISS

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

attorney, JOEL J. KIRKPATRICK, P.C., moves this Court, pursuant to Fed.R.Civ.P. 12(b) 

(6), for entry of an order dismissing the complaint on grounds that Plaintiff has failed to state a 

claim on which relief can be granted. The grounds for this Motion are set forth more specifically 

in the attached supporting Brief.

Pursuant to Local Rule 7.1(a), on November 18, 2013, concurrence was sought on the 

subject matter of this motion, but such concurrence was not obtained.

JOEL J. KIRKPATRICK, P.C.

/s/ Joel J. Kirkpatrick

Joel J. Kirkpatrick

Attorney for Appellant

843 Penniman Ave. Suite 201

Plymouth, MI 48170

(734) 404 – 5710

(866) 241-4152 FAX

joel@joelkirkpatrick.com

Dated: November 19, 2014

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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.

___________________________________________________________________________/

BRIEF IN SUPPORT OF

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

DISMISS

ISSUE PRESENTED

WHETHER THE COMPLAINT SHOULD BE DISMISSED PURSUANT TO FEDERAL 

RULE OF CIVIL PROCEDURE 12(b)(6) BECAUSE PLAINTIFF’S COMPLAINT FAILS 

TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

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TABLE OF CONTENTS 

ISSUES PRESENTED 2

CONTROLLING AUTHORITIES 4

I. INTRODUCTION 6

II. FACTUAL/PROCEDURAL BACKGROUND 6

III. LEGAL STANDARD 8

IV. ARGUMENT 9

A. Because Gender Identity Disorder is not a Protected Class Under

 Title VII, the EEOC's claim must fail as a matter of Law. 9

B. Because the EEOC's Prosecution of Gender Identity Disorder Claims

Under Title VII's sex discrimination Provision is an Ultra Vires Act

and, therefore, an invalid exercise of it authority, The EEOC's claim

must fail as a matter of law. 11

C. The EEOC's Claim that Gender Identity Disorder is covered by 

sex discrimination Provisions of Title VII, Not Gender Identity,

Per Se, But as Gender Stereotyping Under Price Waterhouse, is 

without merit. 13

`` i. Employee dress and grooming Policies, even when sex specific

 do not violate Title VII's sex discrimination Provision. Therefore

 where, as here, the complaintant was terminated for refusing to

 comply with the employer's dress and grooming code, such claim

 must fail. 18

 ii. If the Smith principal were extended to Employer dress code cases,

 it would effectively invalidate all employer sex designated dress and

 grooming policies and deprive all employers of the ability to control

 the appearance of their employees. 20

D. The EEOC's claim of sex discrimination based upon the claim that

Anthony is a woman is without merit and must fail as a matter of law. 22

E. The EEOC’s Claims Are Incoherent and Result in the Failure to State a Claim 24

V. CONCLUSION 26

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CONTROLLING AUTHORITIES 

Cases

Advocacy Org. For Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 319 (6th Cir. 

1999) ........................................................................................................................................... 8

Belissimo v. Westinghouse Elec. Corp., 764 F.2d 175 (3d Cir. 1985) ......................................... 19

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hunter, 565 F.3d at 992.......................... 8

Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 48 (3d Cir. 1991).............................................. 9

Creed v. Family Express Corp., 2007 WL 2265630 (N.D. Ind. 2007 .......................................... 10

Dobre v. National R.R. Passenger Corp. (Amtrak), 850 F.Supp. 284 (E.D. Pa. 1993)................ 10

Dodd v. Septa, 2007 WL 1866754 (E.D.Pa. 2007)....................................................................... 19

Doe v. U.S. Postal Service, 1985 WL 9446 (D.D.C. 1985 ........................................................... 11

Etsitty v. Utah Transit Auth., 2005 WL 1505610 (D. Utah 2005) ................................................ 14

Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007................................................. 13

Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000)........................................................ 19

Grossman v. Bernards Tp. Bd. of Educ., 1975 WL 302 (D.N.J. 1975) ........................................ 10

Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998) ............................. 19

Harper v. Blockbuster, 139 F.3d 1385 (11th Cir. 1998) ............................................................... 19

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) .................................. 20

Holloway v. Arthur Anderson & Co., 566 F.2d 659 (9th Cir.) 1977)............................................ 10

In re Burnett Estate 834 N.W. 2dv 93, 99 (Mich. App.Ct. 2013).................................................. 23

In re the marriage of Simmons, 825 N.E 2d 303 (App.Ill. 2005).................................................. 23

In the Matter of the Estate of Gardiner, 42 P.3d 120 (Kansas 2002)........................................... 23

Jesperson v. Hararh’s Operating Co., Inc., 392 F.3d 1075 (9th Cir. 2004)................................. 19

Kantara v. Kantara 884 So.2d 155, 159 (App. Fla. 2004) ........................................................... 23

Kastl v. Maricopa County Community College Dist., 2006 WL 2460636 (D.Ariz. 2006) .......... 10

Kleinsorge v. Eyeland Crop., 2000 WL 124559 (E.D. Pa. 2000)................................................. 19

Littleton v. Prange, 9 S.W. 3d 223, 231 (App. Tex. 1999) ............................................................ 23

Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001).............................................. 20

Oiler v. Winn-Dixie La., Inc., 2002 WL 31098541 (E.D. La. 2002)............................................. 14

Powell v. Read’s, Inc., 436 F. Supp. 369 (D.Md. 1977); Oiler v. Winn-Dixie Louisiana, Inc., 

2002 WL 31098541 (E.D. La. 2002)........................................................................................ 10

Price Waterhouse................................................................................................................... passim

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)..................................................................... 14

Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) ............................................ 20

Schiavo v. Marina District Development Company, LLC,, 2013 WL 4105183 (N.J.Super. 2013)

................................................................................................................................................... 19

Schroer v. Billington, 424 F.Supp.2d 203 (D.C. 2006) ................................................................ 15

Schroer v. Billington, supra, at 208-209 ....................................................................................... 19

Smith v. City of Salem Ohio, 378 F.3d 566 (6th Cir. 2004)........................................................... 18

Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982)............................................... 10

Spearman v. Ford Motor Company, 231 F.3d 1080 (7th Cir. 2000, cert. denied, 532 U.S. 995 

(2001 ......................................................................................................................................... 11

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Sweet v. Mulberry Lutheran Home, 2003 WL 21525058 (S.D. Ind. 2003);................................. 10

Tavora v. New York Mercantile Exchange, 101 F.3d 907 (2nd Cir. 1996)................................... 19

Territory of Alaska v. American Can Company, 358 U.S. 224 (1959)......................................... 12

Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 19834)................................................... 10

United States v. Miami Univ., 294 F.3d 797, 807 (6th Cir. 2002)................................................. 12

United States v. Miami Univ., 91 F. Supp. 2d 1132, 1149 (S. D. Ohio 2000) aff'd, 294 F.3d 797 

(6th Cir. 2002) ........................................................................................................................... 12

Vickers v. Fairfield Medical Center, et al., 453 F.3d 757 (6th Cir. 2006).................................... 13

Vickers v. Fairfield Medical Center, supra................................................................................... 17

Voyles v. Ralph K. Davies Medical Center, 403 F.Supp. 456 (NB.D. Cal. 1975), aff’d without 

opinion, 570 F.2d 354 (9th Cir. 1978) ....................................................................................... 11

Statutes

42 U.S.C. Sec. 2000e-2................................................................................................................. 10

Americans With Disabilities Act. 42 U.S.C. Sec. 12211(b)(1) ................................................... 13

Federal Rule of Civil Procedure 56. ............................................................................................... 8

New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 

(6th Cir. 2003) ............................................................................................................................ 9

Rule 12(b)(6)............................................................................................................................... 8, 9

Title VII of the Civil Rights Act of 1964.......................................................................................... 9

Other Authorities

73 C.J.S., Public Administrative Law and Procedure, § 163 ....................................................... 12

Employment Non-Discrimination Act (“ENDA”)........................................................................ 12

Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Ca. L. Rev. 561, 563 (2007

................................................................................................................................................... 16

Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex 

and Sexual Orientation Equality, 101 Colum. L. Rev. 392, 392 (2001)................................... 16

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I.INTRODUCTION

Plaintiff Equal Employment Opportunity Commission (hereinafter “EEOC”), an agency 

of the United States of America, has brought this federal employment discrimination suit against 

defendant, R.G. & G.R. HARRIS FUNERAL HOMES, INC (hereinafter “Funeral Home”). 

The complaint alleges unlawful employment practices on the basis of sex discrimination

regarding former employee, William Anthony B. Stephens1 (hereinafter “Anthony”). The 

EEOC alleges that Anthony was terminated from his employment as a funeral 

director/embalmer for informing the Funeral Home that he was transgender. (Complaint ¶ 10, 

11) The EEOC further alleges that Anthony was subject to unlawful employment practices on 

the basis of sex. The Complaint should be dismissed, however, because the EEOC is without a 

statutory basis to bring this action and has failed to state a claim upon which relief can be granted. 

II. FACTUAL AND PROCEDURAL BACKGROUND

Anthony was employed with the Funeral Home from September 2007 until August 2013. 

Anthony was an at-will employee, employed as an embalmer and funeral director. 

As do all funeral homes, the Funeral Home 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

– 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 

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” and so will be referred to by his legal name 

throughout this Brief.

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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 male funeral directors are 

required to wear and what women funeral directors are required to wear. Male funeral directors

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 shoes may be worn. To assist funeral directors in 

complying with the Dress Code, the Funeral Home provides them with Dress Code compliant 

clothing.

In August of 2013, Anthony advised the Funeral Home that he had a “gender identity 

disorder” and that he intended to “live and work full-time as a woman,” including dressing as a 

woman. The Funeral Home terminated Anthony’s employment.

All the documentation in the Funeral Home's possession, most of which was provided by 

Anthony, including Anthony’s 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, and his 08/29/2013 Unemployment Insurance Claim, identify Anthony 

as male. In addition, Anthony is currently married to a woman, which would not be legally

possible under the laws of Michigan if Anthony were a woman. Indeed, despite referring to 

himself on occasion as “female,” nowhere does Anthony ever claim he is not biologically, 

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anatomically, and legally a male.

Upon his termination, Anthony filed an administrative complaint with the EEOC alleging 

unlawful employment practices. The EEOC brings this Complaint, alleging gender 

discrimination and unlawful employment practices. Specifically, the EEOC alleges in its 

complaint that Anthony was terminated on the basis of “sex” under Title VII. The Funeral 

Home brings this Motion to Dismiss on the ground that the EEOC has failed to state a claim 

upon which relief can be granted and lacks the statutory basis to bring its complaint under Title 

VII.

III. LEGAL STANDARD

A motion under Federal Rule of Civil Procedure 12(b) (6) seeks to have the complaint 

dismissed based upon the plaintiff’s failure to state a claim upon which relief can be granted. 

Hunter v. Secretary of U.S. Army, 565 F.3d 986, 992 (6th Cir. 2009). “To survive a motion to 

dismiss under Rule 12(b) (6), a complaint must contain either direct or inferential allegations 

respecting all the material elements to sustain a recovery under some viable legal theory.” 

Hunter, 565 F.3d at 992, quoting Advocacy Org. For Patients & Providers v. Auto Club Ins. 

Ass’n, 176 F.3d 315, 319 (6th Cir. 1999). The complaint’s “factual allegations must be enough 

to raise a right to relief above the speculative level on the assumption that all the allegations in 

the complaint are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hunter, 565 F.3d 

at 992.

Ordinarily, if matters outside the pleadings are presented to the court, a Rule 12(b)(6)

motion is treated as one for summary judgment under Federal Rule of Civil Procedure 56.

Fed.R.Civ.P. 12(c). Where a plaintiff, however, has actual notice of all the information in the 

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movant’s papers and has relied upon these documents in framing the complaint, the necessity of 

translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated. Cortec Indus. 

v. Sum Holding L.P., 949 F.2d 42, 48 (3d Cir. 1991). The Court also permits the consideration 

of materials beyond the complaint on a Rule 12(b)(6) motion challenging a limitation period, if

such materials are appropriate for taking judicial notice. New England Health Care Employees

Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003) (citations omitted).

The EEOC claims Anthony was discharged “due to my sex and gender identity, female, 

in violation of Title VII of the Civil Rights Act of 1964.”

IV. ARGUMENT

A. Because Gender Identity Disorder is Not a Protected Class Under Title VII, The 

EEOC’s Claim Must Fail As A Matter Of Law.

The Title VII provision under which the EEOC is bringing its claims against the Funeral 

Home 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

(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 

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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.

It is clear from the face of the statute that “gender identity disorder” is not a protected 

class under the statute, because within Congress’s exhaustive list of protected classes ‘gender 

identity’ is nowhere to be found. In fact, the EEOC acknowledges that Title VII does not protect 

“gender identity disorder” per se as a protected class. Instead, the EEOC alleges that the 

“unlawful employment practices” it is pursuing is “on the basis of sex,” not on the basis of 

transgender, transsexual, or gender identity disorder.

But, contrary to the EEOC’s position, a multitude of courts have recognized that Title 

VII’s “sex” discrimination provision applies only to discrimination based on a person’s 

biological, anatomical, or physiological status as male or female, not one’s so-called “gender 

identity” that is inconsistent with one’s biological sex. Grossman v. Bernards Tp. Bd. of Educ., 

1975 WL 302 (D.N.J. 1975), aff’d without opinion, 538 F.2d 319 (3d Cir. 1976); Dobre v. 

National R.R. Passenger Corp. (Amtrak), 850 F.Supp. 284 (E.D. Pa. 1993); Powell v. Read’s, 

Inc., 436 F. Supp. 369 (D.Md. 1977); Oiler v. Winn-Dixie Louisiana, Inc., 2002 WL 31098541 

(E.D. La. 2002); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 19834); Creed v. Family 

Express Corp., 2007 WL 2265630 (N.D. Ind. 2007); Sweet v. Mulberry Lutheran Home, 2003 

WL 21525058 (S.D. Ind. 2003); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 

1982); Holloway v. Arthur Anderson & Co., 566 F.2d 659 (9th Cir.) 1977); Kastl v. Maricopa 

County Community College Dist., 2006 WL 2460636 (D.Ariz. 2006), aff’d on other grounds,

325 Fed.Eppx. 492 (9th Cir. 2009); Voyles v. Ralph K. Davies Medical Center, 403 F.Supp. 456 

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(NB.D. Cal. 1975), aff’d without opinion, 570 F.2d 354 (9th Cir. 1978); Doe v. U.S. Postal 

Service, 1985 WL 9446 (D.D.C. 1985); Spearman v. Ford Motor Company, 231 F.3d 1080 (7th

Cir. 2000, cert. denied, 532 U.S. 995 (2001)..

By attempting to shoehorn “gender identity disorder” into Title VII as a species of “sex 

discrimination,” the EEOC is trying to unilaterally extend the reach of Title VII to a class it 

knows is not protected under Title VII. Such bureaucratic overreaching should be rejected as 

an attempt by the executive branch of government to unilaterally and wrongfully amend a 

federal statute. To the extent the EEOC’s claim is that Anthony was terminated due to his gender 

identity disorder, the claim must be dismissed.

B. Because The EEOC’s Prosecution of Gender Identity Disorder Claims Under Title 

VII’s Sex Discrimination Provision Is An Ultra Vires Act And, Therefore, An Invalid

Exercise Of Its Authority, The EEOC’s Claim Must Fail As A Matter Of Law.

Administrative agencies derive their powers from their enabling legislation. Their 

authority cannot exceed that granted by the legislature and they are legally bound to comply 

strictly with their enabling statutes. Agencies are bound by the terms of the statutes granting 

them their powers, and are required to act in accordance therewith and to keep within the limits 

of the powers and authority granted them. Even when an agency is pursuing the policy 

objectives underlying the statutory scheme the agency is charged with enforcing, the agency 

may not disregard or expand upon the terms of the statutes themselves. Agency actions beyond 

delegated authority are ultra vires and should be invalidated. An agency that exceeds the scope 

of its authority acts ultra vires and the act is void. Courts look to an agency’s enabling statute 

and to subsequent legislation to determine whether the agency has acted within the bounds of 

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its authority. 73 C.J.S., Public Administrative Law and Procedure, § 163. The Sixth Circuit 

Court of Appeals has recognized that "[a]n agency garners its authority to act from a 

congressional grant of such authority in the agency's enabling statute." United States v. Miami 

Univ., 294 F.3d 797, 807 (6th Cir. 2002). Consequently, [i]f Congress does not expressly granted 

or necessarily imply a particular power for an agency, and that power does not exist." Id. When

determining the extent of an administrative agency's authority, courts "must adhere to the plain 

language of the statute, unless a contrary congressional intent is clearly established in the 

legislative history." United States v. Miami Univ., 91 F. Supp. 2d 1132, 1149 (S. D. Ohio 2000) 

aff'd, 294 F.3d 797 (6th Cir. 2002).

As clearly noted above, it is obvious from both the face of Title VII and case law that

Title VII does not extend its protections to “gender identity disorder.”

Moreover, if the face of the statute is not clear enough, one need only note the actions of 

Congress, which make clear that Congress did not and does not intend to include “gender 

identity” as a protected class under Title VII. In particular, for 19 of the last 20 years, the 

Employment Non-Discrimination Act (“ENDA”) – the sole purpose of which is to make “sexual 

orientation” and, in some versions of ENDA, “gender identity,” protected classes under Title 

VII and other federal non-discrimination statutes – has been introduced in Congress, and every 

year ENDA has been introduced, Congress has rejected it. 

http://en.wikipedia.org/wiki/Employment_Non-Discrimination_Act. These are legislative facts 

of which this Court may take judicial notice. Territory of Alaska v. American Can Company, 

358 U.S. 224 (1959).

The history of ENDA makes two things very clear. First, it clarifies that even the 

proponents of ENDA acknowledge that “sexual orientation” and “gender identity” are not 

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currently protected classes under Title VII - because if they were there would be no need to 

enact ENDA to add them. And, second, the fact that Congress has rejected ENDA every year

that it has been introduced is a clear expression of Congressional intent that Congress does not 

intend Title VII to protect “sexual orientation” or “gender identity.”

(It is also relevant to note that Congress specifically excluded “transvestism, 

transexualism, pedophilia, 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)(1).) 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).

Since it is clear, both from the face of Title VII, as well as from Congress’s long and 

repeated history of expressly rejecting attempts to add “gender identity” to Title VII, that Title 

VII does not protect “gender identity” as a protected class, the EEOC has no authority to 

prosecute gender identity claims under Title VII. Any attempt to do so is clearly an ultra vires

act and void. Therefore, the EEOC’s gender identity claim here must fail as a matter of law. 

C. The EEOC’s Claim That Gender Identity Disorder Is Covered By The Sex 

Discrimination Provisions Of Title VII, Not as Gender Identity, Per Se, But As 

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Gender Stereotyping Under Price Waterhouse, Is Without Merit.

To the extent the EEOC’s claim on behalf of Anthony’s gender identity disorder is based 

upon the argument that Anthony was not discriminated against on account of his gender 

identity, per se, but rather was discriminated against due to gender stereotyping under Price 

Waterhouse v. Hopkins, 490 U.S. 228 (1989), that claim must fail as well.

First, it is important to note that 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 and expressing herself as a woman, but whose fellow employees felt was not 

behaving in a sufficiently feminine manner – not a woman claiming to be a man and expressing 

herself as a male. The two situations are so different that any attempt to stretch the Price 

Waterhouse holding to encompass transgender claimants is untenable. See, for example, Etsitty 

v. Utah Transit Auth., 2005 WL 1505610 (D. Utah 2005)(“There is a huge difference between a 

woman who does not behave as femininely as her employer thinks she should, and a man who 

is attempting to change his sex and appearance to be a woman”); Oiler v. Winn-Dixie La., Inc., 

2002 WL 31098541 (E.D. La. 2002)(“Plaintiff’s [cross-dressing] actions are not akin to the 

behavior of plaintiff in Price Waterhouse. The plaintiff in that case may not have behaved as 

the partners thought a woman should have, but she never pretended to be a man or adopted a 

masculine persona. This is not just a matter of an employee of one sex exhibiting characteristics 

associated with the opposite sex. This is a matter of a person of one sex assuming the role of a 

person of the opposite sex. . . While Title VII’s prohibition of discrimination on the basis of sex 

includes sexual stereotypes, the phrase ‘sex’ has not been interpreted to include sexual identity 

or gender identity disorders.”). 

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The United States District Court for the District of Columbia made this distinction clear 

in Schroer v. Billington, 424 F.Supp.2d 203 (D.C. 2006). In Billington the court found that the

Price Waterhouse holding “is considerably more narrow than its sweeping language suggests.” 

In particular, the court pointed out that the “sexual stereotyping” claim recognized in Price 

Waterhouse was limited to claims of a woman claiming she was a woman who was discriminated 

against in employment because she was not feminine enough (in other words, for being out of 

sync with her claimed sex) – or a man, claiming to be a man, who was discriminated against in 

employment because he was not masculine enough (again, being out of sync with his claimed 

sex). It was not applicable to a woman claiming to be a man being allegedly discriminated 

against for conforming to masculine stereotypes (in other words, for conforming to her claimed 

sex) or, as here, a man claiming to be a woman discriminated against for conforming to feminine

stereotypes (for conforming himself to stereotypes associated with his claimed sex). As the 

court stated:

“To the extent that Title VII after Price Waterhouse prohibits sex stereotyping alone, it 

does so to allow women such as Ms. Hopkins to express their individual female identities 

without being punished for being ‘macho,’ or for men to express their individual male

identities without reprisal for being perceived as effeminate. . . Protection against sex 

stereotyping is different, not in degree, but in kind, from protecting men, whether 

effeminate or not, who seek to present themselves as women, or women, whether 

masculine or not, who present themselves as men. The difference is illustrated in this 

case. Schroer is not seeking acceptance as a man with feminine traits. She seeks to 

express her female identity, not as an effeminate male, but as a woman. She does not

wish to go against the gender grain, but with it. She has embraced the cultural mores 

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dictating that ‘Diane’ is a female name and that women wear feminine attire. The problem 

she faces is not because she does not conform to the Library’s stereotypes about how men 

and women should look and behave – she adopts those norms.” (our emphasis). 

Billington, supra, at 210-211.

In other words, when, as here, a man suffering from gender identity disorder makes a 

claim of gender stereotyping, he is not, in fact, claiming that he is a man being discriminated 

against for expressing as a woman; rather, he is claiming that he is a woman being discriminated 

against for expressing as a woman. In such a case, he is not complaining that he is being punished 

for not conforming to his sex, but rather that he is being punished precisely because he is 

conforming to his true sex. Anthony is claiming he is a woman being discriminated against for 

conforming to gender stereotypes applicable to women. Therefore, in such a case, there is and 

can be no gender stereotyping discrimination as identified in Price Waterhouse.

Second, distinguishing between Anthony’s gender identity disorder and his expression of 

that disorder by the wearing of women’s clothing and by otherwise attempting to take on the 

appearance and mannerisms of a woman, is a distinction without a difference. Anthony’s 

adoption of a female name, donning women’s clothing, and exhibiting other outward expressions 

of being female, issimply the acting out of and one and the same with his gender identity disorder. 

See, for example, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Ca. L. Rev. 

561, 563 (2007)(“[T]he very acts that define transgender people as transgender are those that 

contradict stereotypes of gender-appropriate appearance and behavior.”); Transforming the 

Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual 

Orientation Equality, 101 Colum. L. Rev. 392, 392 (2001)(defining transgender persons as those 

whose “appearance, behavior, or other personal characteristics differ from traditional gender 

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norms”). So to make the distinction the EEOC is trying to make – that an employer can lawfully 

discriminate against an employee like Anthony on account of the employee’s gender identity 

disorder, per se, but not on account of his expression of that disorder, is nonsense. They are 

inseparable. Indeed the latter is synonymous with the former. So, because in the gender identity 

disorder context, the disorder and the expression of the disorder are synonymous, extending Title 

VII protection to the expression of the disorder effectively extends protection to the former, 

without exception, thereby undermining Congress’s clearly expressed intent that gender identity 

disorder not be protected under Title VII. That this is not a legally acceptable resolution of this 

matter is made clear by the 6th Circuit Court of Appeal’s decision in Vickers v. Fairfield Medical 

Center, supra. In Vickers, the court held that the sex stereotyping theory under Price Waterhouse

was not broad enough to encompass the plaintiff’s claim that he was discriminated against due to

his harassers’ perception that his sexual practices did not conform to traditional masculine sexual

roles. Recognizing that Title VII does not protect “sexual orientation,” the court warned that a 

gender stereotyping claim should not be used to bootstrap protection for sexual orientation into 

Title VII. As the court went on to say:

“Ultimately, recognition of Vickers’ claim would have the effect of de facto 

amending Title VII to encompass sexual orientation as a prohibited basis for 

discrimination. In all likelihood, any discrimination based on sexual orientation 

would be actionable under a sex stereotyping theory if the claim is allowed to 

stand, as all homosexuals, by definition, fail to conform to traditional gender 

norms in their sexual practices.” Vickers, supra, at 764.

The same, of course, must be said with respect to claims based in gender identity disorder 

– but to an even greater extent. The effect of recognizing the EEOC’s claims here would be to

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bootstrap all gender identity claims into Title VII because all employees suffering from gender 

identity disorder fail to conform to traditional gender norms. That is the essence of gender 

identity disorder.

That is not to say that some lower courts haven’t appeared to hold – on a cursory reading 

– that the Price Waterhouse holding goes further. But a close reading of those cases makes clear 

that they certainly do not stand for the proposition at issue here – that Title VII prohibits an 

employer from requiring that its male employees – even male employees suffering from gender 

identity disorder – comply with reasonable male-specific dress and appearance policies.

Take Smith v. City of Salem Ohio, 378 F.3d 566 (6th Cir. 2004), for example. In Smith, a

male fire department employee, suffering from gender identity disorder, brought a Title VII 

action against the city for sex discrimination based upon allegations that he was terminated for 

not conforming to male sexual stereotypes. Based upon Price Waterhouse, the court held that 

the fire fighter stated a claim for relief under Title VII’s sex discrimination provision because 

he had alleged that he had suffered adverse employment action due to the fact that his employer 

thought his appearance and mannerisms were too feminine for a male. But there was no 

evidence or allegation that his appearance violated the fire department’s dress code. Indeed, it 

is common knowledge that fire fighters wear uniforms while on duty and that there is no 

difference between the uniform of a male fire fighter and the uniform of a female fire fighter. 

So, since Smith did not address the issue before the Court here, Smith is not determinative in 

this case.

i. Employer Dress And Grooming Policies – Even When Sex Specific – Do Not 

Violate Title VII’s Sex Discrimination Provision. Therefore, Where, As 

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Here, the Complainant Was Terminated For Refusing To Comply With The 

Employer’s Dress and Grooming Code, Such Claim Must Fail.

EEOC's claim must fail for Anthony's refusal to comply with Defendant's dress and grooming 

code. “Courts before and after Price Waterhouse have found no Title VII violation in genderspecific dress and grooming codes, so long as the codes do not disparately impact one sex or 

impose an unequal burden.” Schroer v. Billington, supra, at 208-209, citing Jesperson v. 

Hararh’s Operating Co., Inc., 392 F.3d 1075 (9th Cir. 2004); Frank v. United Airlines, Inc., 

216 F.3d 845 (9th Cir. 2000); Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th

Cir. 1998); Tavora v. New York Mercantile Exchange, 101 F.3d 907 (2nd Cir. 1996). 

“Evenhanded and evenly applied grooming codes may be enforced even where the code is based 

on highly stereotypical notions of how men and women should appear.” Schroer v. Billington, 

supra, at 209. See also Schiavo v. Marina District Development Company, LLC,, 2013 WL 

4105183 (N.J.Super. 2013)(an employer’s dress and grooming requirements that women, but 

not men, wear custom fitted black skirts, bustier tops, small jackets, pantyhose, and black shoes 

did not constitute illegal gender stereotyping); Dodd v. Septa, 2007 WL 1866754 (E.D.Pa. 

2007), citing Belissimo v. Westinghouse Elec. Corp., 764 F.2d 175 (3d Cir. 1985)(dress codes 

are permissible under Title VII even though the specific requirements between men and women 

differ, and this remains true even where an employer does not have a written dress code or 

policy); Kleinsorge v. Eyeland Crop., 2000 WL 124559 (E.D. Pa. 2000)(a grooming policy 

allowing women but not men to wear earrings fell outside the purview of Title VII); Harper v. 

Blockbuster, 139 F.3d 1385 (11th Cir. 1998)(employer’s grooming policy allowing women, but 

not men, to wear long hair did not violate Title VII).

Indeed, a quick perusal of the cases the Smith court relied on for its decision reveals that 

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none of them involved the dress code issue [and only one of them even involves a gender 

identity disordered complainant and that was not even in an employment context]. Nichols v. 

Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001)(male employee harassed for carrying 

his tray “like a woman” and having “feminine mannerisms” but not for not complying with a 

dress or grooming code), Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 

1999)(homosexual employees claim of sex discrimination on account of harassment over his 

homosexuality – but not involving any claim of not conforming to a dress or grooming policy); 

and Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000)

ii. If The Smith Principle Were Extended To Employer Dress Code Cases , It 

Would Effectively Invalidate All Employer Sex-Designated Dress And 

Grooming Policies And Deprive All Employers Of The Ability To Control 

The Appearance Of Their Employees.

There is absolutely no support for the proposition that the Supreme Court in Price 

Waterhouse had any intention of depriving employers of the right to impose reasonable sexspecific dress and grooming policies on their employees. That is clear, first, because Price 

Waterhouse did not itself involve an employee who was presenting as a person of a sex opposite 

to her biological sex, or transgressing any employer-mandated dress or grooming policy. And, 

second, there is no Supreme Court or other case before or after Price Waterhouse that has

declared employer-mandated dress or grooming policies – including gender stereotypical dress 

or grooming policies – to constitute “sex discrimination” under Title VII. Indeed, the Ninth 

Circuit Court of Appeals recognized this very issue when it held an employer's grooming policy 

that required women, but not men, to wear makeup, did not constitute sex discrimination under 

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Title VII. In rejecting the claim that such gender specific grooming policies were illegal under 

Title VII, the court stated "if we were to do so [hold that a policy requiring women but not men 

to wear makeup constituted sex discrimination under Title VII], we would come perilously 

close to holy that every grooming, apparel, or appearance requirement that an individual finds 

personally offensive, or in conflict with his or her own self-image, can create a triable issue 

of sex discrimination." (Our emphasis) Jespersen, supra, at 1112.

Imagine the employment world if it were otherwise. Every employer has a legitimate 

business interest in presenting a certain “face” to the public – a face that reflects the employer’s 

brand; a face that attracts customers; literally the face of the business. Indeed, this is the very 

reason that sex-specific dress and grooming policies have never been considered a violation of 

Title VII’s sex discrimination provisions.

And this is particularly important in the funeral service industry, because funeral homes 

serve their clientele in the most serious and heart-rending contexts imaginable – the loss of 

loved ones. And funeral directors, such as Anthony, interact directly with these grieving 

families, both in making funeral arrangements and in appearing at funerals – interacting with 

the family, guiding attendees to their seats, closing caskets during funeral services, driving 

hearses, and appearing with the family and funeral attendees at cemeteries for burials. Indeed, 

this is precisely why the Funeral Home (1) requires its male funeral directors to wear men’s 

suits and ties and (2) pays for that clothing to make sure they comply. The Funeral Home wants 

to make sure that its funeral directors appear professional and that they do not detract or distract 

from the somber context in which the Funeral Home operates.

However, if the EEOC’s position prevails, neither this Funeral Home nor any business 

will be able to any longer control how its employees and agents appear to the public. Men will 

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be able to wear dresses, high heels, their hair long, and lip stick, and women will be able to

shave their heads, wear men’s suits and ties, and no make-up. Indeed, under the EEOC’s 

position, there would be nothing to prevent employees from mixing and matching their 

wardrobes. Men will be able to wear dresses, but with men’s shoes and facial hair. And women 

will be able to wear men’s suits and ties, but with high-heels, make-up and women’s hairstyles. 

Such a result would deprive business owners of the right to control their employees’ workrelated appearance and, therefore, the viability of their businesses.

Consequently, since no court – including any court in the 6th Circuit – has invalidated the 

historically recognized principle that employers may hold their employees to sex-specific dress

and grooming policies, and because there is no allegation by the EEOC that the Funeral Home’s 

dress and grooming policy in this case is unreasonable or otherwise unlawful, the Funeral 

Home’s holding Anthony to its dress and grooming policy in this case cannot, as a matter of 

law, constitute a violation of Title VII’s sex discrimination provision.

Now, the EEOC may argue that what is unlawful in this case is the Funeral Home’s 

holding of Anthony to its men’s dress and grooming policy because Anthony and the EEOC 

are claiming that – contrary to all objective evidence – Anthony is not a man, but rather a 

woman. But the facts of this case do not support that assertion. If the EEOC takes the position 

that Anthony is a woman, then the EEOC has effectively incorporated gender identity into Title 

VII, thereby committing an ultra vires act, as discussed above

D. The EEOC’s Claim Of Sex Discrimination Based Upon The Claim That Anthony Is A 

Woman Is Without Merit And Must Fail As A Matter Of Law

This brings us to the EEOC’s claim that Anthony was discriminated against on the basis 

of his “female” sex – evidently apart from his gender identity. For a variety of reasons, this 

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claim, too, must fail as a matter of law.

First, Anthony is not, in fact, a woman. As discussed above, he is biologically, 

anatomically and legally, a man. He may assert – against all objective evidence – that he is a 

woman, but there is no medical or legal authority that would support him in that assertion. He 

may intend to undergo therapy and surgery that might 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. There is no evidence that there has been any change in Anthony’s legal 

status as a male, and if there has been it was certainly not the case when Anthony’s employment 

was terminated. Since it is an undisputable fact that Anthony is a man – not a woman – he 

cannot claim his employment was terminated on account of his being female. See Kantara v. 

Kantara 884 So.2d 155, 159 (App. Fla. 2004) (a male to female post-operative transsexual does 

not fit the definition of a female); In re Burnett Estate 834 N.W. 2dv 93, 99 (Mich. App.Ct. 2013)

(a postoperative male to female transsexual is not a "woman"); In re the marriage of Simmons,

825 N.E 2d 303 (App.Ill. 2005) (a woman who undergoes some sex reassignment surgery and is 

issued a new birth certificate is not a man); In the Matter of the Estate of Gardiner, 42 P.3d 120 

(Kansas 2002) (a male to female postoperative transsexual does not fit the definition of a 

female); Littleton v. Prange, 9 S.W. 3d 223, 231 (App. Tex. 1999) (holding, as a matter of law, 

that a man who underwent sex reassignment surgery and changed his birth certificate to appear 

female, is still a male).

Second, as pointed out above, the law is clear that Title VII’s “sex” discrimination 

provision applies only to discrimination based on a person’s biological, anatomical, or 

physiological status as male or female, not one’s so-called “gender identity” that is inconsistent 

with one’s biological sex. That Anthony – a biological male – is claiming he is really a female 

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is the sort of claim that is clearly not covered by Title VII’s sex discrimination provision and 

must, therefore, fail as a matter of law.

Third, a claim that a man suffering from gender identity disorder has a claim for sex 

discrimination because such a man is really a woman is precisely the sort of bootstrapping that 

the court in Vickers rejected, for if such a claim were to be recognized, then all gender identity 

disorder claimants – by definition – would have a claim under the sex discrimination provision 

of Title VII, thereby resulting in a de facto amendment of Title VII. Since this position has 

already been definitely rejected, the EEOC’s position must fail as a matter of law.

Fourth, there is no case law that stands for the proposition that a male suffering from 

gender identity disorder has a claim for sex discrimination on the ground that he is really a 

female (or that a female suffering from gender identity disorder has a claim for sex 

discrimination on the ground that she is really a male). The only gender identity disorder claim

arguably recognized under Title VII is that the plaintiff was discriminated against for not 

conforming to gender stereotype expectations associated with the claimant’s biological sex. The

theory itself precludes a claim that the claimant is not, in fact, his or her biological sex. Indeed, 

the claim requires the recognition of the claimant’s biological sex because, absent that, there is 

no ground to complain that the claimant was discriminated against for not conforming to his or 

her biological sex.

Consequently, to the extent the EEOC is claiming that Anthony was illegally 

discriminated against because he is a woman, that claim must fail as a matter of law.

E. The EEOC’s Claims Are Incoherent and Result in the Failure to State a Claim.

A thoughtful and reasoned analysis of the EEOC’s positions clearly demonstrates their 

incoherence and their failure to state a claim. Here’s why –

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The EEOC must be contending either of the following propositions:

(1) Anthony is a man. But if Anthony is a man who wants to dress and present as a 

woman, including wearing women’s clothing, such is contrary to the Funeral Home’s 

legitimate dress and grooming policies. If this is the EEOC’s position, then the 

Funeral Home was merely requiring Anthony – a man – to comply with the Funeral 

Home’s male dress and grooming code, which is imposed equally on all male funeral 

directors. And if this is the case, then the Funeral Home was not illegally 

discriminating against Anthony when it terminated his employment for Anthony’s 

refusal to abide by the Funeral Home’s male dress code.

Or the EEOC is claiming that:

(2) Anthony is a woman. But, even apart from the fact that there is absolutely no 

evidence to support such a claim, if Anthony is a woman, then the Funeral Home did 

not terminate him for his failure to conform to stereotypical female dress and 

expression, because by dressing and presenting as a woman Anthony – a woman –

would not have been engaging in non-conforming gender stereotypical expression;

instead he would have been engaging in conforming gender stereotypical expression. 

In this case, if Anthony is a woman it is impossible to claim that the Funeral Home

illegally terminated Anthony for dressing and grooming contrary to feminine gender 

expectations since Anthony wanted to wear feminine attire. And, as pointed out 

above, there is no legal authority for the proposition that a gender identity disorder 

claimant has a sex discrimination claim under Title VII based upon the assertion that 

the claimant is a sex other than his biological sex. The only claim a gender identity 

disordered claimant has under Title VII is that he was discriminated against for not25

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conforming with his biological sex – a male. 

So, under either of the EEOC’s possible positions, the Funeral Home could not have 

illegally discriminated against Anthony on account of gender stereotyping and, therefore, the 

EEOC’s claims must fail as a matter of law.

I. 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

Plymouth, MI 48170

(734) 404 – 5710

(866) 241-4152 FAX

joel@joelkirkpatrick.com

Dated: November 19, 2014

CERTIFICATE OF SERVICE

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 I certify that on November 19 2014, a copy of the above Motion to Dismiss was filed 

electronically. 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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