Federal Judge: Religious Liberty Includes a Right to Fire LGBTQ Employees

August 18, 2016
Mark Joseph Stern

It finally happened.

On Thursday, U.S. District Judge Sean F. Cox found that Hobby Lobby’s broad guarantee of “religious freedom” to businesses exempts religious employers from the federal ban on workplace sex discrimination. Cox ruled that, under the federal Religious Freedom Restoration Act, for-profit corporations may claim a legal right to fire employees for being transgender. His decision marks the first time a court has used Hobby Lobby’s holding to abridge LGBTQ employees’ rights under nondiscrimination law—an extension of “religious liberty” that anti-LGBTQ advocatesinsisted would never occur.

The case arose when R.G. & G.R. Harris Funeral Homes’ funeral director, Amiee Stephens, announced plans to transition from male to female. Thomas Rost, her employer, promptly fired her, explaining that he could not tolerate her “dress[ing] as a woman” at work. On Stephens’ behalf, the Equal Employment Opportunity Commission sued the funeral home under Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex, including gender nonconformity. While courts have divided on whether anti-trans discrimination is always “sex discrimination,” it is widely accepted that Title VII forbids employers from firing workers for failing to conform to certain sex stereotypes. Moreover, the U.S. Court of Appeals for the 6thCircuit has explicitly held that sex discrimination encompasses anti-trans discrimination—a ruling that is binding precedent here.

Rost acknowledged that he fired Stephens for transitioning. Although his business is not religiously affiliated, Rost is a Christian. He believes “that the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift,” and that “people should not deny or attempt to change their sex.” As Rost explained in court filings, he believes that “the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman”—and that he would thus “be violating God’s commands” by continuing to employ Stephens.

With these facts and precedents, Rost should clearly lose this lawsuit. But in court he argued that he was protected by RFRA, which bars the government from substantially burdening a person’s exercise of religion, unless the burden furthers a compelling governmental interest and is the least restrictive means necessary. Congress passed RFRA to protect religious minorities, but in Hobby Lobby, the Supreme Court’s conservatives stretched it to protect for-profit corporations, as well. Rost insists that, under Hobby Lobby, employing a trans woman is a substantial burden on his religious exercise in violation of RFRA and that Stephens’ lawsuit thus violates his religious liberty.

Cox agreed. Rost, he wrote, has shown that enforcing Title VII “would impose a substantial burden on the ability of the Funeral Home to conduct business in accordance with its sincerely-held religious beliefs.” Moreover, Cox found that the EEOC’s solution, an employment discrimination lawsuit, is not the “least restrictive means” of furthering nondiscrimination in the workplace. Instead, Cox wrote that the EEOC and Rost should have attempted to work out a compromise—for instance, forcing Stephens to wear gender-neutral clothing at work to mask her transition.

Bizarrely, Cox also mused about whether the EEOC truly has a compelling interest in preventing workplace discrimination against trans employees, implying that it might not. And, in one sneering passage, he seemed to mock Stephens for wishing to dress like a woman:

The EEOC takes the position that Stephens must be allowed to wear a skirt-suit in order to express Stephens’s female gender identity. That is, the EEOC wants Stephens to be able to dress in a stereotypical feminine manner. If the compelling governmental interest is truly in removing or eliminating gender stereotypes in the workplace in terms of clothing (i.e., making gender “irrelevant”), the EEOC’s manner of enforcement in this action (insisting that Stephens be permitted to dress in a stereotypical feminine manner at work) does not accomplish that goal.

This strange aside points to a broader problem with Cox’s opinion: It is outwardly transphobic. Cox, a George W. Bush appointee, fundamentally misunderstands the concept of gender transition, declines to identify Stephens by her new name, and refuses to refer to her as a woman. Yet this prejudiced undercurrent is not actually the decision’s fatal flaw. The bigger problem is its application of the “least restrictive means” analysis to RFRA. Courts are not allowed to make up a less restrictive alternative in RFRA cases and scold the government for not complying with its fantasy solution. That’s doubly true in an employment discrimination case, where the universally accepted solution to unlawful termination is a Title VII suit.

Cox’s decision, then, will almost certainly be overturned. But it is still a useful reminder of Hobby Lobby’s power in the hands of anti-LGBTQ judges. There’s a reason states rushed to pass mini-RFRAs in Hobby Lobby’s wake: A right-leaning judiciary can always cite “religious liberty” to abridge others’ rights, and LGBTQ people are usually first on the chopping block. For years, conservative activists have sworn that the new campaign for religious freedom is not a Trojan horse designed to legalize anti-LGBTQ discrimination. Judge Cox just proved them wrong.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

 

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