Bostock: how a funeral home tried to fire a trans woman

Aimee Stephens worked as a funeral director at R.G. & G.R. Harris Funeral Homes in Michigan. In 2013, after years of living a life that did not match who she was, she handed her employer a letter. It explained that she was a transgender woman and that she would begin coming to work as herself.

She was fired. The funeral home's owner said he could not employ a woman who, in his view, was a man. For telling the truth about her own identity, Stephens lost her livelihood.

That firing ended at the Supreme Court. On June 15, 2020, the Court ruled 6-3 that firing someone for being gay or transgender violates Title VII of the Civil Rights Act of 1964, the federal law barring employment discrimination because of sex. Justice Neil Gorsuch wrote the majority opinion.

Stephens's case had been consolidated with two others. Gerald Bostock said he was fired from a Georgia county job for being gay. Donald Zarda said he was fired as a skydiving instructor in New York for the same reason. The lead name on the combined decision became Bostock v. Clayton County.

Gorsuch's reasoning was textual. Title VII prohibits discrimination because of sex, and he wrote that it is impossible to discriminate against a person for being gay or transgender without taking that person's sex into account. An employer who fires an individual for being homosexual or transgender, he wrote, fires that person for traits it would not have questioned in members of a different sex.

The logic is mechanical, and hard to escape. A funeral home fires Stephens for being a woman who was assigned male at birth. It would not fire a woman assigned female at birth for the same presentation. The sex it assigned her is doing the work. That is sex discrimination, even where the employer's deeper objection runs to transgender people.

Gorsuch is a conservative, appointed by President Trump, and a committed textualist. He wrote that the drafters of Title VII in 1964 likely did not anticipate this result, but that the words they chose control. Chief Justice John Roberts joined him, along with Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justices Alito, Thomas, and Kavanaugh dissented.

Aimee Stephens did not live to read the opinion. She died of kidney failure in May 2020, weeks before the decision came down. Donald Zarda had died in a skydiving accident in 2014. Of the three, only Gerald Bostock survived to see the case carrying his name decided in his favor.

The ruling means an employer in any state can no longer lawfully fire a worker for being gay or transgender. Before Bostock, that protection existed only in a patchwork of states. After it, the floor was federal.