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Discrimination based on a person’s transgender status is discrimination based on sex and is prohibited under Title VII of the Civil Rights Act of 1964, the 6th U.S. Circuit Court of Appeals has ruled.

The decision in EEOC v R.G. & G.R. Harris Funeral Homes, Inc. reinstated a funeral director’s transgender bias claim against the Michigan funeral home that had fired her.

In its ruling, the 6th Circuit rejected the funeral home’s argument that it was protected by the Religious Freedom Restoration Act (RFRA). The funeral home’s owner claimed that employing the director, who was biologically male but was transitioning to female, went against his Christian beliefs.

Aimee Stephens, a funeral director at R.G. & G.R. Harris Funeral Homes, was born male. She was fired from her job after informing the funeral home’s owner that she intended to transition from male to female and intended to present as a female at work. 

After being discharged, Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC), asserting discrimination based on sexual orientation. The EEOC investigated and filed suit against the funeral home in the Eastern District of Michigan, alleging sex discrimination in violation of Title VII. The funeral home filed a motion to dismiss the EEOC’s lawsuit, arguing there was no valid sex discrimination claim. The funeral home maintained the RFRA precluded the enforcement of Title VII because doing so would “substantially burden” the funeral home owner’s exercise of his religious beliefs. 

The Eastern District of Michigan dismissed the EEOC’s complaint, holding that transgender status is not a protected trait under Title VII and that the EEOC could not file a discrimination claim based solely on the plaintiff’s transgender and/or transitioning status. In so ruling, the Eastern District accepted the funeral home’s argument that the RFRA applied.

On appeal, the 6th Circuit reversed. According to the Court, the Eastern District improperly held that a claim cannot be pursued under Title VII based on transgender/transitioning status.

“Stereotypical Notions”

In its decision, the 6th Circuit explained that sexual stereotyping and transgender discrimination are “based on the non-conformance of an individual’s gender identity and appearance with sex-based norms or expectations.” As a result, discrimination because of an individual’s transgender status “is always based on gender stereotypes: the stereotype that individuals will conform their appearance and behavior – whether their dress, the name they use, or other ways they present themselves – to the sex assigned them at birth,” the Court said.

According to the 6th Circuit, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The Court explained that an employer cannot discriminate based on transgender status without imposing its stereotypical notions of how “sexual organs and gender identity ought to align” and there is “no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity.”

Rejecting the funeral home’s claim that the RFRA precluded enforcement of Title VII, the 6th Circuit pointed out the RFRA prohibits the government from “substantially burdening” a person’s exercise of religion, unless the government demonstrates the burden is:

In this case, the 6th Circuit said the funeral home’s argument that the “burden” in connection with Stephens presenting as female – namely that it (1) would be a “distraction” for the deceased’s family members and (2) would force the funeral home to violate the owner’s faith – was not “substantial” within the meaning of RFRA. 

Addressing the “distraction” argument, the 6th Circuit said a religious claimant “cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.” Regarding the “faith” argument, the Court explained that allowing Stephens to wear attire that reflects a conception of gender that is at odds with the owner’s religious beliefs was not a substantial burden because “tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.” The Court added, “[T]he fact that [the funeral home owner] sincerely believes that he is being compelled to make such an endorsement does not make it so.” 

In conclusion, the 6th Circuit noted that even if a substantial burden was involved, enforcing Title VII was the least restrictive means of furthering the compelling interest of preventing workplace discrimination. “Where the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme’s objectives is through its enforcement,” the Court wrote.

It was unconstitutional to retroactively apply Michigan’s Sex Offender Registration Act (SORA) to a defendant who, at age 19, had pleaded guilty to a sex offense under a state diversionary statute, the Michigan Supreme Court has ruled.

In People v Temelkoski, the Michigan Supreme Court emphasized that, when prosecuting crimes, the state must adhere to the promises it makes to defendants who waive their right to a jury trial and plead guilty to a criminal offense under the Holmes Youthful Trainee Act (HYTA). 

Plea Deal Under Diversionary Statute

The defendant in the case pleaded guilty in 1994 to one count of second-degree criminal sexual conduct, in violation of MCL 750.520c(1)(a). Because he was 19 years old at the time, the defendant was subject to HYTA. Under HYTA, certain youth offenders may be assigned youthful trainee status and ultimately have their cases dismissed and their records sealed. At the time the defendant pleaded guilty, HYTA provided that the assignment of an individual to the status of youthful trainee was not a conviction.

The year following the defendant’s HYTA sentencing, SORA went into effect. Because SORA was retroactively applied, it defined the defendant’s youthful trainee adjudication as a “conviction” that required him to register as a sex offender for 25 years. When the defendant completed his HYTA youthful trainee program in 1997, his case was dismissed with prejudice and his record was sealed pursuant to HYTA. However, the defendant remained a registered sex offender under SORA.

Over the years, various amendments to SORA began imposing more restrictions on the defendant, including lifetime sex offender registration. Then in 2014, the Michigan Legislature amended SORA to exclude successfully discharged youthful trainees from sex offender registration requirements. However, that amendment was not made retroactive and, as a result, the defendant remained on the sex offender registry.

The defendant filed a motion in Wayne County Circuit Court to be removed from the sex offender registry. The trial court granted the defendant’s motion, finding that SORA constituted punishment and was an ex post facto law as applied to the defendant.

Court of Appeals: SORA Not ‘Punishment’

The Michigan Court of Appeals reversed (Docket No. 313670) the trial court’s decision, finding that SORA did not impose a punishment on the defendant.

“SORA has not been regarded in our history and traditions as punishment, it does not impose affirmative disabilities or restraints, it does not promote the traditional aims of punishment, and it has a rational connection to a nonpunitive purpose and is not excessive with respect to this purpose,” the Court of Appeals wrote.

“Defendant … has failed to show by ‘the clearest proof’ that SORA is ‘so punitive either in purpose or effect’ that it negates the Legislature’s intent to deem it civil,” the Court of Appeals said. “Accordingly, as applied to defendant, SORA does not violate the Ex Post Facto Clause or amount to cruel or unusual punishment because it does not impose punishment.”

Michigan Supreme Court: Due Process Violation

The Michigan Supreme Court reversed the Court of Appeals in a 5-2 Order (Docket No. 150643). According to the Court, the retroactive application of SORA to the defendant, who had pleaded guilty to a sex offense under HYTA, was a violation of due process under both the Michigan and U.S. Constitutions.

In making its ruling, the Court relied on the defendant’s reasonable expectations under his plea agreement. Citing Santobello v New York, 404 US 257 (1971), the Court explained that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” The justices observed that, pursuant to Santobello, the defendant reasonably relied on the HYTA adjudication and the “express promise” that when he successfully completed his youthful trainee requirements, he would not have a conviction on his record.

The Michigan Supreme Court also noted that the defendant pleaded guilty to the primary charge against him – and that he did so after being screened for HYTA eligibility. “Because defendant pleaded guilty on the basis of the inducement provided in HYTA as effective in 1994 (i.e., before SORA’s effective date), was assigned to HYTA training by the trial judge, and successfully completed his HYTA training, retroactive application of SORA deprived defendant of the benefits under HYTA to which he was entitled and therefore violated his constitutional right to due process,” the Court concluded.

The Michigan Supreme Court decided Temelkoski on due process grounds and, as a result, did not address the unconstitutional punishment argument. However, in dicta, the Court indicated how it might decide the issue when it said: “It is undisputed that registration under SORA constitutes a civil disability.”

Justice Kurtis T. Wilder dissented from the Court’s order, saying he would have remanded the matter for further factual development. According to Justice Wilder, two questions needed to be answered: (1) whether the defendant was promised benefits derived from his assignment to, and subsequent release from, youthful trainee status, and (2) whether the defendant was actually induced to plead guilty because of that promise.

“In my view, the record before us is insufficient to conclude, at this stage, that a violation of defendant’s due process rights has occurred,” Justice Wilder wrote, joined by Justice Brian K. Zahra. “While defendant acknowledges these multiple deficiencies, he asks this Court to assume that his plea was induced by his expectation of HYTA’s benefits. But to make this assumption based on the sequence of events and surviving documents – and, importantly, not an actual record – that (1) a promise was made to defendant and (2) that such a promise induced defendant’s plea runs contrary to this Court’s firmly established jurisprudence.”

Justice Wilder also expressed concern that extending Santobello to statutory provisions, like HYTA, contradicted longstanding jurisprudence. “Even if defendant had an expectation that he would receive the benefits of HYTA … and the subsequent enactment of the Sex Offender Registration Act (SORA) … imposed a new liability based on defendant’s past acts, he has failed to show that the enactment of SORA was a clear violation of his constitutional right to due process,” the justice wrote.

The three-year time limit for filing a paternity challenge under the Revocation of Paternity Act (RPA) does not apply when the presumed father raises the issue in a divorce action, the Michigan Court of Appeals has ruled.

In Taylor v Taylor (Docket No. 336193), a published decision, the Court of Appeals was asked to determine whether a paternity challenge always has to be brought within three years of the child’s birth pursuant to MCL 722.1441(2). That part of the RPA says:

“If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by the presumed father within 3 years after the child’s birth or if the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother.”

The parties in Taylor were married in 2000 and the youngest child was born in 2011 while the parties were separated. Both parties agreed, and DNA testing established, that the defendant is not the biological father of the youngest child. The plaintiff filed for divorce in 2016, when the youngest child was 5 years old. Thereafter, the defendant filed a motion for a paternity determination. The trial court denied the motion, finding it lacked jurisdiction because the defendant did not raise the paternity issue within three years of the child’s birth. In so ruling, the trial court interpreted §1441(2) as requiring a paternity issue be raised within three years of the child’s birth.

The defendant appealed, arguing the three-year limit did not apply if the paternity issue was raised in a divorce action. The Court of Appeals agreed.

In its analysis, the Court of Appeals noted that §1441(2) uses the disjunctive word “or” and that two alternatives for challenging paternity are provided:

The three-year limit only applies to the first option, and Taylor involves the second option, the Court of Appeals explained. Looking at the language of §1441(2), the appeals court said there was no “clear indication” the Legislature intended to use the word “and” rather than “or.”

According to the Court of Appeals, to rule otherwise would create the additional restriction that there must be a divorce or separate maintenance action in order to raise the issue. “[T]here is nothing in the statute which would suggest that this is what the Legislature intended,” the appeals court observed.

Thus, “we are left with only one rather unremarkable conclusion: the Legislature intended exactly what it said,” the Court of Appeals wrote. “The presumed father may raise the issue in a paternity action filed within three years of the child’s birth OR in a divorce action (without regard to how old the child is).”

The Texas Court of Appeals in El Paso issued an astounding but much deserved opinion in a criminal case, Morris v Texas,_ SW3d _(Feb. 28, 2018). In that case, a criminal defendant had been convicted of soliciting the sexual performance of a child. Apparently before the criminal trial, the trial judge had decided to make the defendant wear a stun belt. It appears that the defendant had also previously filed a lawsuit against that judge and also against his defense attorney.

During the course of the jury trial, the criminal defendant and trial judge entered into several “heated exchanges” where the defendant (not through his counsel) was objecting to the fact that he had to wear a stun belt. He also pointed out that he had mental health issues and that he was on 17 pills for his mental health disability and the use of the stun belt would exacerbate his medical condition. In fact, the defendant proclaimed “you’re torturing a MHMR client”. The judge did not like what the criminal defendant was saying and on three separate occasions, each time out of the presence of the jury, the trial judge ordered the bailiff to activate the stun belt because the defendant was not “behaving”.

The defendant objected strongly each time the judge administered the stun. Eventually the defendant was taken out of the courtroom and he refused to come back even though the court offered that he could rejoin the proceedings if he would behave himself.

The El Paso Court of Appeals focused on the fact that the judge used the electrocution of the defendant to control decorum in the courtroom (to make the defendant “behave”) and not for any security or safety measure. Even though the trial judge stated after the fact that he was concerned for the safety in the courtroom, the Court of Appeals did not find that credible based on the judge's previous comments at the preliminary examination and during the process of ordering the electrocution three times during the trial. “Because the trial transcript clearly shows that the trial judge, during a heated exchange with the defendant outside the presence of the jury, ordered his bailiff to electrocute the defendant three times with a stun belt—not for legitimate security purposes, but solely as a show of the court’s power as the defendant asked the court to stop “torturing” him—we harbor grave doubts as to whether Morris’ trial comported with basic constitutional mandates.  As such, we have no choice but to overturn Morris’ conviction and remand for a new trial.”

While this case is astounding, what perhaps is even more stunning, is that not one of the other judicial officers in the courtroom said anything when the trial judge was ordering these electrocutions to occur three separate times. The bailiff followed the instructions without question. The prosecutor did not seem to have a problem with it and remained silent. Most disappointingly, the defendant's own attorney raised no objection at all to the electrocution of his client. If that wasn't bad enough, the defense attorney’s comments to the jury during closing arguments were even worse. The defense attorney stated in closing: “You might not like me. You might hate Terry Morris. One of you asked why he was wearing jail clothes. He can’t behave. He smarted off at the judge. That's why he’s not in here. You might hate him. It’s a pretty despicable offense. But in the game of balls and strikes, your oath that you all swore to was not the consideration. Is the ball over the plate or not? . . . The evidence ought to be pretty strong if it’s beyond a reasonable doubt. That’s the standard. You may not like Terry Morris. I don’t like him. Kind of rude. Smells bad, you know. Is he guilty of this? He might be. The question is not the answer to any of those things.”

In addition to remaining silent while the judge electrocuted his client, the defense attorney also threw his client under the bus during closing.

A trial court erroneously used a “preponderance of the evidence” standard to determine it was in the child’s best interest to change the established custodial arrangement, the Michigan Court of Appeals has ruled in a 2-1 decision that may create more confusion as to how to apply the burden in custody cases.