Karen Moore – a federal judge who once ruled that judges have nearly absolute immunity from claims over their behavior, even when they are “petty, unethical and unworthy” – now has concluded that a funeral home must allow a male employee to dress in skirts, nylons and high heels.
The decision by Moore and two others on the Sixth U.S. Circuit Court of Appeals punished a Christian-owned Michigan funeral home for requiring that men dress as men, and women as women, when they deal with customers who are going through the trauma of the loss of a loved one.
Moore’s reputation was noted by Ballotpedia, which explained she protected the immunity of a judge who viciously removed a lawyer with whom he had a conflict, causing him to lose his job.
She wrote the opinion against R.G. & G.R. Harris Funeral Homes, which operate in Detroit, Garden City and Livonia.
The Alliance Defending Freedom, which is representing the business, said it was consulting with its clients about an appeal.
“American business owners, especially those serving the grieving and the vulnerable, should be free to live and work consistently with their faith,” said ADF Senior Counsel Gary McCaleb.
“The funeral home’s dress code is tailored to serve those mourning the loss of a loved one. Today’s decision misreads court precedents that have long protected businesses which properly differentiate between men and women in their dress and grooming code policies.”
Moore’s opinion referenced Anthony Stephens, the employee who complained about the funeral home’s practice, as “her.” She said his employment was terminated “on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes.”
Moore wrote, “We refer to Stephens using female pronouns, in accordance with the preference she has expressed through her briefing to this court.”
The three-judge appeals panel ruled in favor of the Equal Employment Opportunity Commission and returned the dispute to the lower courts for “further proceedings consistent with this opinion.”
Two years ago, a federal district court threw out the claims by Stephens, ruling the Religious Freedom Restoration Act protected the business and its sincerely held faith convictions.
But the Sixth Circuit ruling said its conclusions were no burden to the religious beliefs of the funeral home’s operator, so it was not protected.
Stephens “presented as a man” during the course of his employment at the home operated by Thomas Rost, a Christian for more than 65 years. His business has a mission statement saying the “highest priority is to honor God in all that we do as a company and as individuals.”
He does not discriminate in his hiring.
But a company dress code requires male employees to wear suits and ties, and females must wear skirts and business jackets.
For a time, he provided men with a small allowance to buy clothing, but not women, a policy he changed several years before the dispute arose.
Rost dismissed Stephens when he announced he would dress as a woman going forward.
The district court ruled only the unlawful termination claim was at issue, and that argument then was rejected, because transgenderism is not a protected class under Title VII.
But Moore discounted Rost’s explanation that “the Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex” and that “the Bible teaches it is wrong for a biological male to deny his sex by dressing as a woman.”
The judge adopted former President Obama’s belief that when Congress adopted the Title IX non-discrimination law in 1972, members intended it to include not only a persons’ “physiology” but also their “self-assigned ‘gender identity.'”
Obama issued an executive order to that effect for schools across the nation that was reversed by President Trump.
Further, Moore noted, “Permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden.”
ADF had told the judges not only would Rost be violating his religious beliefs if he were to pay for and otherwise authorize his funeral directors to dress as members of the opposite sex while at work, the dress code was designed to be sensitive to customers’ needs at an especially delicate time of their lives.
“Court opinions should interpret legal terms according to their plain meaning when Congress passed the law,” McCaleb added. “This opinion instead re-writes federal law and is directly contrary to decisions from other federal appellate courts. We are consulting with our client to consider their options for appeal.”
The lower court had found a man who wanted to dress as a woman while working as a funeral director cannot impose his lifestyle on his employer, because it would conflict with the religious standards the company advocates.
