One of the procedural maneuvers used by employers in such cases is to bring a "motion to dismiss," meaning that even if everything in the employee's complaint is believed, it does not fall within a valid legal cause of action. Harris Funeral Homes has asserted such a motion, and it is very interesting.
One of the most interesting statements in there is that the EEOC can’t make a gender discrimination claim under Title VII of the Civil Rights Act of 1964, because the law’s provision on discrimination only covers discrimination based on a person’s "biological, anatomical or physiological status," and not gender identity. That may have been true in 2003, but it's not true in 2014. That argument is foreclosed by direct recent precedents from 2004 and 2005 of the Circuit in which this case was brought. See Smith v. Salem and Barnes v. Cincinnati.
There is also this gem:
"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."Lambda Legal says that such marriages remain valid even when one partner transitions, citing a case it won in Florida case on this proposition. The employer is trying to make the point that since Ms. Stephens' expresses herself as a woman, but the employer doesn't believe she should, therefore they can fire her. They point to old documents that have an "M," arguing that she therefore can't express herself as a woman. I think they just dug themselves a very deep gender stereotyping hole. I won't make the obvious pun relating to the employer being a funeral home.
The brief then cites all the oldies-but-goodies, the cases from a million years ago that said that transgender people are not protected by Title VII. However, these are all undercut by the logic of the Supreme Court in the Price-Waterhouse v. Hopkins case, where the Court said that gender stereotyping is a prohibited form of sex discrimination. The Sixth Circuit, where this case is brought, explicitly said so in Smith v. Salem and Barnes v. Cincinnati. Maybe they're hoping to take this to the Supreme Court. This would be the perfect plaintiff to take to the Supreme Court -- for our side.
To try to avoid the fact that their argument has been ruled all wet by many courts, including the Sixth Circuit, they try to recast the argument as one about "gender identity disorder" being shoehorned into "sex discrimination." They hope to convince the Court that these are not the droids they are looking for, but Obi Won is not among them.
They argue that the EEOC has gone beyond its powers by ruling that gender stereotyping is sex discrimination, citing C.J.S., an old legal encyclopedia that few people use in the age of computers. You can see it here (the old books in the background):
They also use the magic phrase ultra vires, meaning "beyond the powers," which is reminiscent of both superheroes and Teddy Roosevelt and the Trust-Busters of 1901. It's not a phrase with much modern legal currency. To bolster this argument, they argue that ENDA has not yet been enacted, suggesting that proves that Congress doesn't want to protect gender identity. They do not address the obvious point that there could be many reasons why Congress does not enact a statute. Theirs is the theory of the "dog that didn't bark," which I examined in great detail in my 2009 law review article, being a devout Sherlock Holmes fan. See Transgender Identity, Textualism, and the Supreme Court: What is the 'Plain Meaning' of 'Sex' in Title VII of the Civil Rights Act of 1964?
(You can find my discussion of the dog on page 639.)
The other weird argument is that the Americans with Disabilities Act explicitly excludes gender identity disorders. They just destroyed their "dog that didn't bark" argument. The easy counterargument is that when Congress wants to exclude transgender people, they explicitly say so. Therefore, because Title VII doesn't explicitly exclude transgender people, they're not excluded.
The brief goes on to cite the case of Schroer v. Billington, the quintessential pro trans case, for the proposition that transgender people are not protected because they seek to conform to gender stereotypes, not break them. True enough, the Court said this -- but in 2006 -- in its initial ruling in the case. Did no one check to see whether the case was still good law? By 2008, the Schroer Court had reversed course 180 degrees, and said this:
"Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual....While I would therefore conclude that Schroer is entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping, I also conclude that she is entitled to judgment based on the language of the statute itself."This misquoting is practically a fraud on the Court. In legal parlance, it's called Shepardizing, and its purposes is to make sure the case you cite is still good law. It's one of the first things you learn in Legal Research 101 class. How did they miss this one? See my extended discussion of Judge Robertson's startling reversal from his 2006 to his 2008 decision. (See the section entitled "Legal Issues," about 15 paragraphs from the top).
Then they dig an even deeper hole.
"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."The easy counterargument is to say "you're so right!" and that's why discrimination based on gender identity disorder is sex discrimination per se -- because discrimination based on Supreme Court-approved Price-Waterhouse gender stereotyping/gender expression is the same as discrimination based on gender identity disorder. They are equal to each other.
So they have to get around the Sixth Circuit cases that clearly bind the Michigan court hearing this case. How do they distinguish Smith and Barnes? They argue there was no dress code in Smith's firehouse and Barnes' police department, because, common knowledge. (I beg to differ.) Since their funeral home has a dress code, therefore, they can discriminate against Ms. Stephens. Interestingly, when they do cite their dress code, they only cite what male funeral directors have to wear. They do not cite to anything about what female funeral directors have to wear. Regardless, they argue the Jespersen case, the 9th Circuit case that said that an employer can have a dress code that differentiates between males and females as long as the burden from each dress code is equal. (I will personally -- if asked -- submit an affidavit about the unequal burden of makeup and the incredibly high cost of it.) But Jespersen never addressed the question of a transgender employee and which dress code they have to follow. It simply said that you can have different dress codes. (There is a dress code case out there involving a transgender person. But I'm not telling.)
There's more paper to the motion, but it is more of a wearying sameness. Suffice it to say that the EEOC will blow this one out of the water, because if I can sit at my computer for a half-hour at the end of a long day and come up with a dozen problems, then those bright minds over there can come up with dozens more.
You can see the motion here: https://www.dropbox.com/s/uujnsmvmktyat4m/RG%20GR%20FUNERAL%20HOMES.pdf?dl=0
