A question for the court

Published 7:30 pm Tuesday, October 15, 2019

October holds many delights, but most of us don’t think of the opening of a new Supreme Court session as one of them. For someone like Thomas Rost, though, it’s been a long time coming. His case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, garnered big attention during the first week of oral arguments. 

Rost operates a funeral home business that’s been in his family for decades. Right now, he has three locations in the Detroit area. The facilities look pretty typical, if the picture I saw is any indication — painted brick, manicured grass and an American flag flying out front. But what happened to Harris Funeral Homes is anything but typical — at least, it used to not be typical.

It seems that Rost hired a funeral director a few years back by the name of Anthony Stephens. Things went along pretty good until Stephens, six years into his tenure, informed the boss (that would be Rost) that “she” was transgender and intended to come to work dressed as a woman.

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As in wearing a skirt suit or dress.

Rost, a Christian, said that wouldn’t work and let her go. Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC), which in turn sued Rost, citing anti-sex discrimination provisions in Title VII of the Civil Rights Act of 1964. Now it’s a case that’s made it all the way to the Supreme Court, one that will likely decide whether the term “sex” in Title VII actually means “gender identity.”   

All this started in 2013. According to Rost, he’s put any major business plans on hold for six years: “A business owners’ hands are tied while waiting on the outcome of litigation.”

On July 3, The Washington Post printed a guest opinion by Rost. He wrote that even though he followed the law in applying a dress code for his employees, the EEOC sued him, “using our family business as a pawn to achieve a larger political goal.” The goal, he said, is to redefine the meaning of the word “sex,” and that the potential effect of such a decision on small businesses could be enormous.

“In the past century, my family’s business has survived two world wars, the Great Depression and a decades-long economic downturn in the city our family has called home. Through it all, we’ve been ready to help. Can we continue to serve families in the future? Only time, and the Supreme Court, will tell,” he concluded.

The same paper a week earlier ran an opinion piece by Stephens, the fired employee. It included this portion of his “coming out” letter: 

“With the support of my loving wife, I have decided to become the person that my mind already is. I cannot begin to describe the shame and suffering that I have lived with . . . at the end of my vacation on Aug. 26, 2013, I will return to work as my true self, Aimee Australia Stephens, in appropriate business attire.”

The two hours of recent arguments before the Court were described as “lively.” So were the protests outside the courthouse. In her “Legal Docket” radio segment, commentator Mary Reichard noted that “the justices did not delve into questions about the rights of employers to decide what is best for their businesses. Nor did they question the premise that biological males and females who want to be called by counterintuitive pronouns may require everyone else to adjust.”

She also added an important point: Those weren’t legal questions before the court.

The question the justices must decide is whether gender identity is covered in anti-sex discrimination laws. And while the ruling isn’t expected to come down until 2020, the ramifications of it have the potential to affect us for decades to come.

Kim Henderson is a freelance writer. Contact her at kimhenderson319@gmail.com. Follow her on twitter at @kimhenderson319.