Are gloves covered by the dress code?

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Transgender Rights Lose One Round to Religious Rights

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Religious liberty and transgender rights are two of the signature civil-rights issues of our era. So it was only a matter of time before these competing ideals of freedom and equality came into direct conflict -- and now a federal district court has held that religious-liberty laws can trump the laws that prohibit sex-based discrimination. The decision is an indication that the courts need to recognize bias against transgender people as a form of sex discrimination.

The case involves an employee of a Michigan funeral home who began transitioning from male to female. The funeral home has a gendered dress code that requires male funeral directors to wear suits with trousers and female directors to wear skirt suits. The employer refused to allow the transitioning employee to wear a skirt suit on the job, firing her when she refused to wear the men’s attire.

The Equal Employment Opportunity Commission sued the funeral home, alleging unlawful discrimination under Title VII, the law that prohibits employers from discriminating on the basis of sex.

A federal district court initially said that courts have not yet determined that the sex-bias laws prohibit discrimination against transgender people. But the court acknowledged that it’s unlawful to discriminate on the basis of gender stereotyping, which is what the dress code was. Firing an employee because of a refusal to wear what the employer considered gender-conforming clothing would therefore count as unlawful discrimination, the court said.

But the court didn’t stop there. Defending against the discrimination charge, the employer maintained that his Christian religious beliefs require people to remain the sex they were born -- and that he should therefore be exempt from the anti-discrimination laws because of the federal Religious Freedom Restoration Act.

Notably, the employer didn’t allege that gender conformity was a bona fide qualification for the job -- in essence, that customers would discriminate against the transgender person and that he was only discriminating to protect his business. Nor did he say that his business was inherently religious. To the contrary, the employer maintained that his religious-liberty rights were being violated in his capacity as the owner of the business.

To decide the case, the court applied the 2014 Burwell v. Hobby Lobby precedent. Because the U.S. Supreme Court held there that RFRA applies to a for-profit, closely held corporation, the law also applied to the funeral home.

The court then held that the funeral home employer’s sincere religious belief would be substantially burdened by an employee whom he considered male dressing as female.

There’s something a little doubtful about the idea that an employer’s religious beliefs are violated by the actions of another person who happens to be his employee. But the funeral home’s claim of a substantial religious burden isn’t much weaker than Hobby Lobby’s claim that its religious liberty would be violated by providing contraceptive care to employees -- which it had reportedly done voluntarily before the Affordable Care Act made it mandatory.

The fact that RFRA applies doesn’t automatically mean the employer wins. The government is still allowed to burden religion substantially when it has a compelling interest in doing so and adopts the least restrictive means necessary to achieve that interest.

The district court grudgingly accepted for the sake of argument that prohibiting discrimination on the basis of sex is a compelling state interest. The basis was a statement by the Supreme Court in the Hobby Lobby case that the “government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

That line, although not part of the holding in the Hobby Lobby case, is -- or should be -- all-important. Logically, the Supreme Court’s dictum applies to sex discrimination as much as race discrimination.  Thus, when future courts must balance the right of religious liberty against the rights to equal treatment on the basis of sex, they should hold that anti-discrimination wins.

Yet, imitating the Supreme Court’s holding in the Hobby Lobby case, the district court said that requiring the funeral home employer to allow the employee to wear women’s clothes was not the least restrictive means to achieve the goal of combating gender-stereotyping sex discrimination.

The court engaged in a highly specific analysis of whether the law was narrowly tailored as applied to this particular defendant. That’s what the Supreme Court in Hobby Lobby said it was doing. It reasoned that if the EEOC wanted to eliminate gender stereotyping in the workplace, it could have proposed a gender-neutral dress code for all employees. That, the court claimed, would have been a less restrictive means to combat discrimination than requiring the funeral home to allow a biological man to wear a skirt suit.

The court’s least restrictive means analysis is perversely clever. The idea of combating “gender stereotyping” does call into question the absurdity of the funeral home’s policy.  The policy is silly -- and the EEOC could have required its abandonment.

The underlying problem is that the court wasn’t analyzing the case from the standpoint of a transgender person’s own specified identity. The employee here apparently had no inherent objection to the politics of gender-conforming clothing, or to the idea of a gender binary. Once the dress code existed, she simply wanted to wear the gender-stereotyped clothing associated with her gender of identification.

The solution is for courts to recognize that discriminating against somebody for gender identification is itself a prohibited form of sex discrimination. The least restrictive means to achieve that goal is to let people choose their gender identification. That would have produced the right result in this case -- and in future ones as well.

  1. The district court seemed to deny this, but did not say why there should be a difference.

  2. One commentator says it “will almost certainly be overturned” because the court made up the least restrictive means analysis. I’m less certain -- because that is essentially what the majority did in the Hobby Lobby case.

  3. Of course, requiring a uniform dress code would arguably have made the EEOC do more, not less than it actually did. Restructuring the funeral home’s entire dress code to eliminate gender stereotyping is probably more intrusive than simply requiring the funeral home to let employees choose their own gender-stereotyped outfit. It’s also true that the funeral home could have adopted the policy itself. But technically, the least restrictive means is a requirement on the government, not the private actor.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net