IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 18-107
R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.
_______________
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
MOTION OF THE FEDERAL RESPONDENT
FOR DIVIDED ARGUMENT
_______________
Pursuant to Rules 21 and 28.4 of the Rules of this Court, the
Solicitor

General,

on

behalf

of

the

federal

respondent,

respectfully moves for divided argument in this case.
scheduled for oral argument on October 8, 2019.
Funeral
argument

Homes,
and

Inc.

to

(Harris

dividing

its

Homes)

has

argument

Petitioner Harris

consented
time

The case is

to

equally

government, with 15 minutes allotted for each.

divided
with

the

Granting this

motion therefore would not require the Court to enlarge the overall
time for argument.

 2
1.

The question on which the Court granted review in this

case is whether Title VII of the Civil Rights Act of 1964,
42

U.S.C.

2000e

et

seq.,

“prohibits

discrimination

against

transgender people based on (1) their status as transgender or
(2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S.
228 (1989).”

139 S Ct. 1599 (2019).

Harris Homes operates funeral

homes at several locations in Michigan.

Pet. App. 90a.

Harris

Homes has adopted a written, sex-specific dress code for its
employees who interact with the public that requires male employees
to wear suits and ties and female employees to wear skirts and
business

jackets.

Id.

at

7a;

J.A.

119-121.

Harris

Homes

“administers its dress code based on [its] employees’ biological
sex, not based on their subjective gender identity.”

J.A. 129.

Respondent Stephens was employed by Harris Homes from 2007 to
2013, ultimately as a funeral director and embalmer.
5a.

Pet. App.

Stephens “was born biologically male,” with the name William

Anthony Beasley Stephens, and Stephens presented as a male when
Stephens began working for Harris Homes and for more than five
years thereafter.

Id. at 3a; see id. at 5a-6a.

Stephens now

identifies as a transgender woman and uses the name Aimee Stephens.
Id. at 3a, 5a, 8a.

In 2013, Stephens informed Harris Homes that

Stephens had “struggled with ‘a gender identity disorder’ her
‘entire life,’ ” “ ‘intended to have sex reassignment surgery,’ ” and
intended to dress at work according to the dress code for females

 3
rather than males.

Id. at 8a (brackets and citations omitted).

Harris Homes then terminated Stephens’s employment.
2.

Id. at 9a.

Stephens filed a charge of sex discrimination with the

Equal Employment Opportunity Commission (EEOC).

Pet. App. 9a-10a.

The EEOC found reasonable cause to believe that Harris Homes had
discharged Stephens based on sex and gender identity in violation
of Title VII.

Id. at 10a.

After informal conciliation efforts

failed, the EEOC brought this Title VII suit against Harris Homes,
alleging that Harris Homes “fired Stephens because Stephens is
transgender, because of Stephens’s transition from male to female,
and/or because Stephens did not conform to [Harris Homes’] sex- or
gender-based preferences, expectations, or stereotypes.”

J.A. 15.

The district court determined that the EEOC could not proceed
on a theory that Harris Homes discriminated against Stephens based
on transgender status, holding that “transgender or transsexual
status is currently not a protected class under Title VII.”
App. 172a.

Pet.

The court concluded, however, that Harris Homes had

discriminated against Stephens by engaging in sex stereotyping.
See id. at 107a-118a.

The court nevertheless granted summary

judgment to Harris Homes, holding that it was entitled to an
“exemption from Title VII” under the Religious Freedom Restoration
Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq.
id. at 118a-144a.

Pet. App. 87a; see

 4
The EEOC appealed, and Stephens intervened in the appeal.
Pet. App. 12a-13a.

In October 2017, while the appeal was pending,

the Attorney General issued a memorandum to United States Attorneys
and component heads of the Department of Justice stating that
“Title

VII’s

discrimination

prohibition
between

on

men

and

sex

discrimination

women

but

does

discrimination based on gender identity per se.”

encompasses

not

encompass

Id. at 193a.

The memorandum stated that “Title VII is not properly construed
to proscribe employment practices (such as sex-specific bathrooms)
that take account of the sex of employees but do not impose
different burdens on similarly situated members of each sex,” and
the Department “will take that position in all pending and future
matters.”

Ibid.

As relevant here, the court of appeals reversed.
1a-81a.

Pet. App.

It agreed with the district court “that Stephens was

fired because of her failure to conform to sex stereotypes, in
violation of Title VII.”

Id. at 14a; see id. at 15a-22a.

The

court of appeals further held that the district court had erred
by precluding the EEOC from proceeding on its broader theory
that

gender-identity

Title VII.

discrimination

See id. at 22a-36a.

categorically

violates

The court of appeals held “that

discrimination on the basis of transgender and transitioning
status violates Title VII” for “two reasons.”

Id. at 22a-23a.

First, the court held that “it is analytically impossible to fire

 5
an employee based on that employee’s status as a transgender
person

without

being

employee’s sex.”

motivated,

at

least

in

part,

Id. at 23a; see id. at 23a-26a.

by

the

Second, the

court reasoned that “discrimination against transgender persons
necessarily

implicates

stereotyping.”
3.

Title

VII’s

proscriptions

against

sex

Id. at 26a; see id. at 26a-28a.

At the certiorari stage, consistent with the Attorney

General’s

October

2017

memorandum,

the

government

took

the

position that the court of appeals’ decision is erroneous and that
Title VII’s prohibition on “discriminat[ion]
* * *

sex,”

42

U.S.C.

2000e-2(a)(1),

discrimination based on transgender status.
12, 15-23.

* * *

does

not

because of
encompass

See Gov’t Br. in Opp.

The Court granted certiorari limited to the question

“[w]hether Title VII prohibits discrimination against transgender
people

based

on

(1)

their

status

as

transgender

or

(2) sex

stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228
(1989).”

139 S Ct. 1599.

In its brief on the merits, the

government has argued (Br. 14-54) that Title VII does not bar
discrimination

against

transgender

persons

on

either

Petitioner Harris Homes has taken a similar position.

basis.

Br. 16-56.

Respondent Stephens, who intervened in the court of appeals, has
filed a brief defending the Sixth Circuit’s judgment and arguing
that

discrimination

based

on

transgender

status

constitutes

discrimination because of sex in violation of Title VII. Br. 20-47.

 6
4.

In

cases

in

which

the

government

as

a

respondent

supports the petitioner, the Court has repeatedly permitted the
government to divide argument time with the petitioner.

See

Smith v. Berryhill, 139 S. Ct. 1765 (2019); Lucia v. SEC,
138 S. Ct. 2044 (2018); McLane Co., Inc. v. EEOC, 137 S. Ct.
1159 (2017); Beckles v. United States, 137 S. Ct. 886 (2017);
Welch v. United States, 136 S. Ct. 1257 (2016); Mata v. Lynch,
135 S. Ct. 2150 (2015); Millbrook v. United States, 569 U.S. 50
(2013); Dorsey v. United States, 567 U.S. 260 (2012); Setser v.
United States, 566 U.S. 231 (2012).
The same course is appropriate here, including because the
United States has a substantial interest in the interpretation
and application of Title VII.

The federal government enforces

Title VII against private and public employers, see 42 U.S.C.
2000e-5(a), (b), and (f)(1), and Title VII also applies to the
federal government as an

employer, see

42

U.S.C. 2000e-16.

Accordingly, the United States has a substantial interest in the
statute’s proper interpretation.
The United States has participated in oral argument as amicus
curiae in prior cases involving the interpretation and application
of Title VII.

E.g., Fort Bend County, Texas v. Davis, 139 S. Ct.

1843 (2019); Young v. United Parcel Serv., Inc., 135 S. Ct. 1338
(2015); University of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338
(2013); Vance v. Ball State Univ., 570 U.S. 421 (2013); Thompson

 7
v.

North

Am.

Stainless,

LP,

562

U.S.

170

(2011);

Ricci

v.

DeStefano, 557 U.S. 557 (2009); AT&T Corp. v. Hulteen, 556 U.S.
701 (2009); Crawford v. Metropolitan Gov’t of Nashville & Davidson
County, 555 U.S. 271 (2009); Burlington N. & Santa Fe Ry. v. White,
548 U.S. 53 (2006); Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).
As in those cases, the United States’ participation at argument
here may be of material assistance to the Court.
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
AUGUST 2019