by Katie Eyer, Associate Professor at Rutgers Law School
*Professor Eyer’s Issue Brief on this subject, Sex Discrimination Law and LGBT Equality is available on the ACS website. A separate blog post by Professor Eyer addresses the Sixth Circuit’s analysis of the RFRA defense raised by the employer in this case, and is available here.
Almost 15 years ago, the Sixth Circuit became the first Circuit Court in the country to find that discrimination against a transgender employee was sex discrimination in violation of Title VII. In remarkably straightforward reasoning for its time, the Court observed that:
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 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 v. City of Salem, Ohio, 378 F.3d 566, 574 (6th Cir. 2004)
On Wednesday of this week, in the case of EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit again showed itself to be a leader in the area of LGBT employment rights. Rejecting arguments that Smith should be narrowly confined—and that anti-transgender discrimination was not itself sex discrimination—the Court concluded that, to the contrary “discrimination on the basis of transgender and transitioning status” is, categorically, sex discrimination. Noting 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” the Court found that “[t]his in and of itself” confirms that discrimination based on transgender status is a form of sex discrimination. The Court also observed that the same result would be required by analogy to Title VII’s prohibition on religious conversion discrimination (so too discrimination based on a “change in….sex” is prohibited), as well as by Title VII’s gender stereotyping proscriptions (since “transgender or transitioning status constitutes an inherently gender non-conforming trait”).
Remarkably, the Court in Funeral Homes not only solidified its protections for transgender employees, but also laid the groundwork for the abandonment of the Sixth Circuit’s case-law rejecting the claims of gay employees for protections under Title VII. Unlike the Sixth Circuit’s early recognition that anti-transgender discrimination was a form of sex discrimination, the Circuit’s initial response to the sex discrimination claims of gay employees was to reject such claims as simply attempts to “bootstrap” protections for gay employees into Title VII. See Vickers v. Fairfield Medical Center, 435 F.3d 757 (6th Cir. 2006). Funeral Homes, responding to arguments of the employer that Vickers should be applied to limit the scope of Smith, noted that, under circuit precedent, Vickers need not be followed if it was inconsistent with the earlier decision in Smith (and another similar gender identity case decided before Vickers, Barnes v. City of Cincinnati). Concluding that Vickers was inconsistent with these earlier precedents, the Court held expressly in Funeral Homes that “[t]he Vickers court’s efforts to develop a narrower rule are…not binding in this circuit”—essentially inviting the overruling of Vickers, without the need for en banc proceedings.
Funeral Homes is important in its own right, for the progress it brings to LGBT employment equality in the Sixth Circuit. But perhaps what is most significant and striking about R.G. & G.R. Harris Funeral Homes is just how different the legal landscape looks today as compared to when the Sixth Circuit broke new ground in Smith v. City of Salem in 2004. In the last year alone, there have been four major circuit decisions, two of them en banc, finding sexual orientation and gender identity to be categorically a form of sex discrimination prohibited by the federal civil rights laws. See here, here, here, and here; see also Franchina v. City of Providence, 881 F.3d 32, 54 n.19 (1st Cir. 2018) (acknowledging that the “tide may be turning” with respect to sex discrimination protections for LGBT employees). There have been no circuit decisions reaching the opposite conclusion based on reasoned analysis—rather, the only circuit decisions to come out the other way have simply found themselves bound by circuit precedent (and two of the three were later overturned en banc).
The moment that we stand at vis-à-vis employment rights for the LGBT community has thus begun to look quite a lot like the tipping point for marriage equality in the years leading up to Obergefell v. Hodges. As the “common sense” assumptions of the correctness of LGBT inequality have been stripped away, the logic of LGBT legal claims to equality have made the outcomes of such cases increasingly inexorable. It has always been impossible to discriminate based on sexual orientation or gender identity without also discriminating based on sex. In an era when Courts can no longer dismiss such sex discrimination arguments out of hand, it is unsurprising that the legal recognition of this obvious truth has increasingly come to seem inevitable.