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Sixth Circuit Considers Whether Funeral Home Must Allow Employee To Cross-Dress At Work


On Wednesday, a federal appellate court sitting in Cincinnati, Ohio heard oral arguments in a case critical to the future of religious liberties in the age of transgenderism. The case, EEOC v. R.G. & G.R. Harris Funeral Homes, dates back to August 2013, when the defendant, Harris Funeral Homes, fired Anthony Stevens because Stevens, a man suffering from gender dysphoria, informed his employer that he intended “to present” as a woman while working as the funeral home director.

The appeal to the Sixth Circuit came after a federal judge in the Eastern District of Michigan ruled in favor of the funeral home and against the EEOC, the federal agency charged with enforcing Title VII. The EEOC had filed suit against Harris Funeral Homes on Stevens’ behalf, claiming Title VII’s prohibition of “sex” discrimination in employment bars discrimination based on an individual’s gender identity or transgenderism. The EEOC also argued that Harris Funeral Homes discriminated against Stevens by engaging in sex-based stereotyping.

Religious Freedom Law Protects from Mangling of Title VII

The district court rejected the EEOC’s position that transgender status and gender identity qualify as “sex” under Title VII. But the lower court held that Stevens could state a claim for sex-stereotyping based on the Supreme Court’s decision in the Price Waterhouse v. Hopkins, which held that sex-stereotyping may establish illegal sex discrimination under Title VII. Nonetheless, the court ruled in favor of Harris Funeral Homes based on the federal Religious Freedom Restoration Act (“RFRA”). The court held that RFRA protected the funeral home from liability because allowing Stevens to dress as a female at work would “impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs.”

Stevens joined forces with the EEOC to argue for reversal before a three-judge panel. At oral argument, the parties and judges focused mainly on RFRA and the burden-shifting approach to resolving RFRA claims.

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.” Thus, under RFRA, a person seeking to avoid liability under a generally applicable law—such as Title VII—must first establish that a law substantially burdens his religious exercise. At that point, the person “is entitled to an exemption” from the law unless the government can show the legally imposed burden furthers “a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”

At Wednesday’s hearing, the EEOC immediately took issue with the district court’s conclusion that employing Stevens burdened the funeral home owner’s “exercise of religion.” The government posited that to qualify as an “exercise of religion,” the challenged law must violate a specific religious tenet or doctrine. The government then stressed that the owner of the Harris Funeral Homes had not identified any doctrine or tenet precluding him from hiring transgender workers.

The judges—Karen Nelson Moore, a Bill Clinton appointee, Helene N. White, whom Clinton initially nominated, but was only confirmed after George W. Bush reappointed her as part of a broader arrangement on judicial nominees, and Bernice Bouie Donald, a Barack Obama appointee—received this argument with skepticism. The EEOC then turned quickly to what it called the “easier” basis for reversal: its position that prohibiting the funeral home from firing Stevens was the least restrictive means of furthering the government’s compelling interest of banning sex discrimination in employment

It’s Government’s Job to End Sex Stereotypes?

Harris Funeral Homes countered that the government does not have a compelling interest in banning sex-stereotyping, as opposed to sex discrimination. The judges did not sound persuaded by this argument. The panel also seemed unpersuaded by the funeral home’s argument that a less restrictive means of protecting Stevens would be allowing him to present as a woman outside the workplace, just not in it.

In fact, from the various exchanges with counsel during the nearly hour-long hearing, the judges telegraphed pretty clearly their view that the government could force Harris Funeral Homes to allow Stevens to present as a woman at work. While there is no deadline for the court to issue a decision, typically opinions are released a few months after oral argument. At that point, the losing party—like Harris Funeral Homes—can ask the entire Sixth Circuit to hear the appeal, or seek Supreme Court review.

The Supreme Court has pending a motion for review from the Seventh Circuit’s decision in Kenosha Unified School District v. Whitaker, wherein the federal appellate court held that a transgender boy could sue under Title IX for “sex” discrimination based on the Price Waterhouse theory of sex-stereotyping. Should the Supreme Court agree to hear that case, the Sixth Circuit may well decide to hold its opinion until the Supreme Court decides whether transgender individuals may sue for “sex” discrimination.

That initial question will have a profound impact on religious liberties because the question for persons of faith is not one of sex-stereotyping, but of whether the government may force them to pretend a man is a woman or a woman is a man.