As an initial matter, Judge Cox rejected Harris Funeral Home's "defense" that a sex-specific grooming policy does not violate Title VII's prohibition against sex stereotyping as long as the policy does not impose unequal burdens on members of one sex. Judge Cox concluded that the leading decision upholding sex-specific grooming policies, Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc), conflicts with the Sixth Circuit's decision in Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004), which explained that requiring a woman to wear dresses or makeup violates Title VII.
Judge Cox further concluded, however, that requiring the funeral home's owner, Thomas Rost, to allow Stephens to wear traditionally female attire while at work would substantially burden Rost's religious beliefs:
Rost has a sincere religious belief that it would be violating God's commands if he were to permit an employee who was born a biological male to dress in a traditionally female skirt-suit at one of his funeral homes because doing so would support the idea that sex is a changeable social construct rather than an immutable God-given gift.Therefore, pursuant to the Religious Freedom Restoration Act, the defendant could not be held liable under Title VII unless applying Title VII to the defendant under these circumstances is in furtherance of a compelling governmental interest and is also the least restrictive means of furthering that compelling governmental interest.
It is at this point that the conflict between allowing sex-specific grooming policies and prohibiting LGBT discrimination really comes to the fore. In concluding that Harris Funeral Homes was entitled to an exemption under RFRA, Judge Cox explained:
Rather than challenge the sex-specific dress code, the EEOC takes the position that Stephens has the right, under Title VII, to "dress as a woman" or wear "female clothing" while working at the Funeral Home. That is, the EEOC wants Stephens to be permitted to dress in a stereotypical feminine manner (wearing a skirt-suit), in order to express Stephens's gender identity.
If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn't the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here? Both women and men wear professional-looking pants and pants-suits in the workplace in this country, and do so across virtually all professions.
. . .
But the EEOC has not even discussed the possibility of any such accommodation or less restrictive means as applied to this case. Rather, 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.Thus, in Judge Cox's view, the EEOC's contention that Stephen must be allowed to wear traditionally female attire belies the EEOC's contention that there is a compelling governmental interest in eradicating sex stereotypes. In other words, if you begin with the premiss that there is a compelling governmental interest in eradicating sex stereotypes, it is contradictory to then assert that an employer is thereby required to engage in sex stereotypes.
Given Judge Cox's reasoning, it is not clear to me why he felt it was necessary to address either the defendant's defense or RFRA. If the EEOC challenged merely the defendant's refusal to allow Stephens to dress in traditionally feminine attire, then the EEOC effectively conceded that sex-specific grooming policies do not violate Title VII in the absence of unequal burdens on the sexes. Consequently, there would not be a Title VII violation in merely requiring a transgender individual to wear sex-specific attire associated with a particular sex. There would only be a violation, as with non-transgender individuals, if the grooming policy imposes a greater burden on members of the transgender individual's sex.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.