Meet Aimee. She’s Trans and Got Fired Because of It

(Bloomberg Businessweek) -- Until July 2013, Aimee Stephens’s boss had only ever known her as a man. That month she pulled him aside at R.G. & G.R. Harris Funeral Homes in Garden City, Mich., where she worked as a funeral director, and handed him a letter that explained everything: how she’d felt imprisoned in her body; how, with help from her wife and her therapist, she’d “decided to become the person that my mind already is”; and how she’d soon “return to work as my true self,” dressed “in appropriate business attire.”

Stephens offered to answer any questions her boss, Thomas Rost, might have and enclosed her therapist’s business card in case he wanted another perspective. She says he replied, “I’ll get back to you,” and walked away. A couple of weeks later, Rost fired Stephens. In a later deposition, he said he’d done so because Stephens “was no longer going to represent himself as a man” and “wanted to dress as a woman” instead.

The dismissal set events in motion that could define trans employees’ rights in the U.S. At issue is whether the Civil Rights Act of 1964, which bans discrimination on the basis of sex, prohibits companies from firing people because they’re trans. Under the Obama administration, both the Department of Justice and the U.S. Equal Employment Opportunity Commission said it does. “Someone is discriminated against because they changed genders—that’s discrimination on the basis of sex, basically by definition,” says David Lopez, a Rutgers Law School co-dean who served as general counsel of the EEOC under Obama. In recent years, trans workers have won unlawful-dismissal cases in district and circuit courts, including in the 6th U.S. Circuit Court of Appeals, which issued a precedent-setting ruling in Stephens’s favor in March 2018.

Harris Funeral Homes has asked the U.S. Supreme Court to overturn that ruling, saying that Rost felt he’d be “violating God’s commands” by allowing Stephens to come to work as a woman. Under President Trump, the Justice Department has reversed its position on protections for trans workers, and with conservatives holding a 5–4 majority on the nation’s highest court, LGBTQ advocates worry that the court will agree to take up the case and wipe out their lower-court victories. Stephens has no regrets. “I’d do it again,” she says. “If you’re part of the human race, you should have the same rights as everybody else.”

Stephens was 48 when she first acknowledged to her wife in 2009 that there was “something different” about her—something she’d felt since the age of 5. For a few years after that, she stayed closeted at work. “You can, up to a point, compartmentalize everything into its own little square hole, and everything works,” she says, “until you get to that point: ‘I can’t do this anymore.’ ”

Writing the letter to her boss took months, she says. The day she was fired, a Friday, Stephens called her local American Civil Liberties Union chapter in Detroit. By Monday she was meeting with an attorney there, Jay Kaplan, who helped her file a complaint with the EEOC. A district court sided with the funeral home, ruling that federal religious freedom law prevented the EEOC from forcing the company to rehire Stephens. But the 6th Circuit rejected that argument, ruling 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,” therefore making such action illegal.

The funeral home, which is represented by the right-wing group Alliance Defending Freedom, argued in its appeal that the judges “usurped the role of Congress, which has repeatedly considered and rejected” changing civil rights law to include explicit transgender protections. It said the company “reasonably determined” that letting Stephens come to work dressing and presenting as a woman would “disrupt the healing process of grieving families.” John Bursch, vice president for appellate advocacy at the ADF, says it’s healthier for people such as Stephens to try to “align their mind with their biological reality” rather than to “change their gender.” The funeral home wasn’t acting out of ill will, he says, but rather “out of love both for Stephens and for employees.”

Fewer than half of all states have laws explicitly shielding trans workers in the private sector. If the Supreme Court does grant the funeral home’s plea to take the case and overturns the circuit court ruling, it could leave employees in much of the U.S. without legal protection if they’re fired for being trans.

There is precedent to support the 6th Circuit’s decision. The judges cited Price Waterhouse v. Hopkins, a groundbreaking 1989 Supreme Court ruling establishing that the types of sex discrimination prohibited by the Civil Rights Act include punishing employees for not adhering to gender stereotypes, not just punishing them for being male or being female. There’s also the unanimous 1998 decision in Oncale v. Sundowner Offshore Services, Inc., written by Antonin Scalia, which held that the Civil Rights Act protects men from being sexually harassed by other men, thus extending its protections beyond what Congress may have had in mind.

If the Supreme Court doesn’t take up the funeral home’s appeal, Stephens will be entitled to seek damages. That wouldn’t protect trans workers in other courts’ jurisdictions, however. “At the state and local level and company level, we have this big patchwork of explicit protection,” says Harper Jean Tobin, policy director for the National Center for Transgender Equality. But “there is a lot of confusion—even more so when you have a president and a Department of Justice who basically, through their policies and their case briefs, are saying that this 20 years of case law is fake news.” The NCTE’s 2015 U.S. Transgender Survey found the unemployment rate among respondents was 15 percent, three times the overall rate at the time. Among nonwhite respondents, 20 percent were unemployed. “The discrimination against transgender people is pervasive,” Kaplan says. Most of the calls the Michigan ACLU’s LGBT Project receives these days come from trans people, he says.

Stephens herself has been out of work for five years, battling kidney failure. After the funeral home, she worked for about half a year as an autopsy technician at a private hospital in Detroit. She was known as Aimee from the day she arrived. “It was just a nice feeling to be able to go to work as myself,” she says. Now she goes to dialysis three times a week and tries not to think about the possibility that the Supreme Court will use her case to vacate trans workers’ protections. “If they do, it doesn’t mean we stop,” she says. “We keep going in different avenues until we can achieve our final goal.”

To contact the editor responsible for this story: Jillian Goodman at jgoodman74@bloomberg.net

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