SURPRISE: Funeral home wins after firing transgender employee; judge disputes EEOC finding of 'transgender' as a protected class

by Gregory Tomlin |

(REUTERS/Carlos Jasso)

DETROIT (Christian Examiner) – A federal judge on Thursday ruled that a Michigan funeral home owner was within his rights to fire an employee who refused to comply with the company's dress code after announcing he would "transition" from male to female.

In dismissing the case, U.S. District Judge Sean Cox also noted that the owner of the funeral home could consider his religious beliefs in terminating an employee because the Christian character of the service means it "operates as a ministry."

The case began in 2014 when the U.S. government's Equal Employment Opportunity Commission sued RG & GR Harris Funeral Homes, Inc., for dismissing "Aimee" Stephens – a male who had taken on a female persona and announced plans to live as a transgender. According to the EEOC, that action violated Title VII of the federal Civil Rights Act of 1964, which under the Barack Obama administration has been altered to include protections for transgenders.

The funeral home said Stephens would be a man dressing as a woman in very personal, sensitive scenarios with families who had lost loved ones and were being serviced by the Christian funeral home. That situation could cause additional stress on the families, owner Thomas Rost alleged in response to the suit.

Cox agreed and wrote in his opinion that the funeral home operated by Rost is "a ministry to serve grieving families while they endure some of the most difficult times in their lives."

The judge based his ruling on his understanding that transgenders were not a protected class under Title VII, and added that the government had failed also to meet two key tests in its claims: 1) the idea of "compelling interest" and 2) seeking the least burdensome means for imposing a law that contradicts someone's religious beliefs.

In other words, Cox said the government had no interest in deciding the employee dress of a private company, especially when the dress code is partly based on what the owner believes are religiously defined values – that men should dress like men and women like women, and that to reject one's gender is an affront to God.

"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," Cox said. "The Supreme Court has directed that it is not this Court's role to decide whether those 'religious beliefs are mistaken or insubstantial....' 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."

Cox was referencing the U.S. Supreme Court's ruling in Burwell v. Hobby Lobby, where the company's religious convictions were noted as the reason it refused to pay for government-mandated birth control pills (abortifacients) in its employee health plan.

Rost was represented by Alliance Defending Freedom. ADF legal counsel Doug Wardlow, who argued the case for Rost, said the federal government had attempted to "strong-arm private business owners into violating their religious beliefs, and the court has affirmed that here."

"The government must respect the freedom of those who are seeking to serve the grieving and vulnerable. They shouldn't be forced into violating their deepest convictions," Wardlow said in a statement.

The EEOC had little to say after the ruling – only that the government was "disappointed" and "reviewing next steps." That means the government will likely appeal the decision.

Jillian Weiss, executive director of the Transgender Legal Defense and Education Fund, said in a statement that the court got the ruling wrong. The decision, Weiss said, is a "major setback for transgender rights and sends chilling message about the implications of the Hobby Lobby case, which exempts closely-held companies from particular laws if they have a religious objection.

"In ruling that an employer can force its employee to wear 'gender neutral' clothing because of the employer's' religious beliefs, the federal court has ignored both Supreme Court and appeals court rulings that correctly understand gender discrimination to be an illegal form of sex discrimination," Weiss said.

Congress, however, never authorized the addition of "transgender" as a protected class in federal law. The interpretation that Title VII includes transgenders was made by the EEOC in 2012.