Dozens of legal briefs supporting fired funeral director Aimee Stephens at the Supreme Court use “she” and “her” to refer to the transgender woman.
So does the appeals court ruling in favor of Stephens that held that workplace discrimination against transgender people is illegal under federal civil rights law.
But in more than 110 pages urging the Supreme Court to reverse that decision, the Trump administration and the Michigan funeral home where Stephens worked avoid gender pronouns, repeatedly using Stephens’ name.
Stephens’ case is one of two major fights over LGBT rights that will be argued at the high court Oct. 8. The other tests whether discrimination on the basis of sexual orientation also violates the provision of the landmark Civil Rights Act of 1964, known as Title 7, that prohibits employers from discriminating on the basis of sex. The cases are expected to be decided by next spring, during the presidential election campaign.
Decisions about gender pronouns may seem minor, but they appear to reflect the larger issues involved in this high-stakes battle.
John Bursch, the Alliance Defending Freedom lawyer who will argue on behalf of Harris Funeral Homes, wrote, “Out of respect for Stephens and following this Court’s lead in Farmer v. Brennan … Harris tries to avoid use of pronouns and sex-specific terms when referring to Stephens.” Farmer v. Brennan was a 1994 decision that did not use gender pronouns to describe a transsexual prison inmate who had been assaulted by other inmates.
The administration’s court filing arguing that Title 7 “does not prohibit discrimination against transgender persons based on their transgender status” offers no explanation for the absence of gender pronouns for Stephens. A Justice Department spokeswoman did not respond to an email seeking comment.
“It’s sad that neither the funeral home nor the Department of Justice can bring themselves to be minimally respectful of Aimee. But the real tragedy is that our government is urging the Supreme Court to rule that firing workers because they are transgender is perfectly legal,” said James Esseks, director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & HIV Project. The ACLU represents Stephens at the Supreme Court.
Many organizations, including The Associated Press, use the gender pronouns an individual prefers.
That was the case when the 6th U.S. Circuit Court of Appeals ruled in Stephens’ favor. “We refer to Stephens using female pronouns, in accordance with the preference she has expressed,” Judge Karen Moore wrote.
In a similar case that reached the Supreme Court just before the 2016 election, a Virginia county school board fought transgender high school student Gavin Grimm, initially identified only by his initials, over his desire to use the boys’ bathroom. The court eventually dismissed the case when President Donald Trump was elected and withdrew Obama administration policy that favored transgender students.
“This petition uses ‘he,’ ‘him,’ and ‘his’ to respect G.G.’s desire to be referred to with male pronouns. That choice does not concede anything on the legal question of what G.G.’s ‘sex’ is for purposes of Title IX and its implementing regulation,” conservative lawyer Kyle Duncan wrote in representing the school board at the Supreme Court. Duncan has since been named by Trump to the 5th U.S. Circuit Court of Appeals.