Sex stereotyping

The Sixth Circuit found that Harris Funeral Homes’ firing of Stephens was unlawful for more than one reason, including both “transgender status” and legal precedent set by a previous SCOTUS decision: Price Waterhouse v. Hopkins. Doubling down on the existing prohibition against sex stereotyping established in Price Waterhouse and extending it to protect those who fancy themselves “transgender” or “transsexual” is far and away my preferred result for the Harris v. Stephens case. It avoids the uncertainty created by reasoning of “transgender status” and builds on existing protections for gender non-conforming people like Ann Hopkins. I agree with Justice Kagan’s comments during oral argument (in response to the EEOC’s lawyer) stating that the individual trait protected by Price Waterhouse is non-conformity to gender roles:

JUSTICE KAGAN: And I think one could argue just the opposite, that there is another trait in Price Waterhouse, and the trait is conformity to traditional gender roles. We should instead say, no, there’s this other thing, which is conformity to gender roles.

Under a gender non-conformity analysis, Aimee Stephens’ firing was clearly unlawful. Again, this reasoning requires that we hold Stephens’ biological sex as male in order to assess which gender roles he is expected to conform to and/or has deviated from. It also avoids creating an assumption that people with “transgender status” are more harmed or more burdened by the enforcement of gender roles than other people are, specifically those people who share the trait of gender-non conformity. During oral arguments there was some discussion of what constitutes a de minimis or trivial burden versus significant burden. A ruling that transgender people are more harmed by sex-based stereotypes and classifications than non-transgender people would be, in my opinion, both absurd and totally anti-feminist.

Conclusion

I believe that SCOTUS can and should rule without regard to “transgender status” and in favor of Stephens on the basis of his gender non-conformity and a prohibition against sex-based stereotyping. I hope for something roughly as follows: employment decisions made on the basis of the employer’s sex stereotyping expectation or the employee’s non-conformity to those sex-based expectations is unlawful under Title VII. An employer may have a “women’s” dress code and “man’s” dress code (binary), but employees must be allowed to choose which dress code they will adhere to without regard to the employee’s sex.

In my ideal world, SCOTUS would also demand that all employers offer only unisex or sex-neutral dress codes, but that would be to rule outside the questions they have agreed to answer. My suggestion in the paragraph above would protect both transgender and gender non-conforming people from employment terminations based on their adherence to the “wrong” dress code, including Stephens. Indeed, if I were to be employed in a position that required adherence to a binary sex-based dress code, I would likely choose to comply with the “men’s” rules rather than be expected to wear skirts and makeup. But just as I think it is unreasonable to expect SCOTUS’s Harris ruling to redefine sex under Title VII, I also think it unreasonable to expect the decision to restrict employer’s latitude to define dress codes any more than the justices find absolutely necessary. It might cause social upheaval, you know.

As of the date of publication, there are still two states that do not allow any post-issuance change of sex marker on birth certifications: Ohio and Tennessee.

See this color coded map of identity document laws: Movement Advancement Project. “Equality Maps: Identity Document Laws and Policies.” ().