Anti-transgender discrimination is being defended in a couple of legal actions.

A federal judge in Detroit hears arguments today in the case of transgender funeral director Aimee Stevens against Harris Funeral Homes brought by the EEOC.

Attorney Doug Wardlow says "Stephens violated the company’s sex-specific dress code and that employees are simply asked to dress 'in a manner sensitive to grieving family members and friends.'"

Wardlow claims the funeral home did not break any laws because discriminating against transgender people is not a thing.

What the EEC [sic] is trying to do here is ask the court to rule in a way that no other court has ever ruled in this country. And basically that there should be a transgender exception to the rule of law that says sex-specific dress codes can be applied and that they don’t violate Title VII” — which is the federal law that prohibits sex discrimination in employment.

--Wardlow

Wardlow said Title VII does not protect against discrimination based on transgender status and that the federal government is trying to expand the scope of sex discrimination laws to cover transgender people. That’s a move that he opposes.

The government should respect the freedom of those who are serving the grieving and vulnerable. The funeral home’s dress policy is legitimate, understandable, and legal. Numerous courts have recognized that companies may differentiate between men and women in their dress and grooming policies without violating Title VII.

--Wardlow

In another federal court, nurse Josef Robinson is suing San Francisco-based hospital chain Dignity Health for refusing to cover gender reassignment-related care of its employees.

Dignity Health is arguing that civil rights law does not requirw its self-insured employer health plan to cover such care, that Title IX does not cover transgender status as a protected class and that the HHS rule barring categorical exclusion of such coverage does not take effect until January 1, 2017.

Federal law does not require an employer to provide health coverage for “sex transformation” treatment.

In addition, the new federal anti-bias rule does not bar self-insured employer health plans from excluding benefits for services that are not medically necessary,. The medical efficacy of sex transformation surgery remains the subject of debate.

--Dignity court filing

But lawyers for the American Civil Liberties Union who are representing nurse Josef Robinson say both Title VII and the new HHS rule interpreting Section 1557 of the Affordable Care Act clearly require employers and health plans to cover treatment related to gender dysphoria. That's the name for the condition where people feel they are not the gender they were assigned at birth.

Robinson was assigned the gender of female at birth but identifies as a man. He claims the self-insured health plan operated by Chandler (Ariz.) Regional Medical Center, the Dignity-owned hospital where Robinson works, denied him coverage for double mastectomy and phalloplasty operations, and he had to pay thousands of dollars for the mastectomy and hasn't been able to afford the phalloplasty.

The Phoenix office of the federal Equal Employment Opportunity Commission found that the denial of coverage by Chandler Regional's plan was a Title VII violation and granted Robinson a notice of right to sue.

Dignity is making an argument that's been rejected over and over and is flatly inconsistent with controlling law in the 9th Circuit.

--Josh Block, ACLU

There is a similar federal case pending in Minnesota involving a nurse practitioner, Brittany Tovar, who claims that her employer, Essentia Health, and its third-party administrator improperly denied coverage for gender reassignment-related care to her teenage son during his transition from female to male. A judge granted the defendants' motion to dismiss based on lack of standing, and the plaintiff is appealing, according to Tovar's attorney, Lisa Gaulding of Minneapolis.

The extra twist in the Robinson case is a question about whether Dignity Health denied coverage at least partly because it was following the Ethical and Religious Directives of the U.S. Conference of Catholic Bishops, which prohibit sterilization.

Robinson's complaint cited an email exchange last November between his fiancé and Dignity's chief human resources officer, in which the executive wrote that Dignity officials considered “our ethical & religious directives” along with other factors in finding that the denial of coverage was not discriminatory. But neither the complaint nor Dignity's motion for dismissal otherwise raise the religious objection issue. That issue could be raised later if the judge doesn't grant Dignity's motion at a scheduled hearing next month.

The complaint also notes that Dignity filed a statement in the case asserting that exclusion of coverage for gender dysphoria was not discriminatory because “health benefits under the Dignity plan are not provided for any personality disorders, including sexual-gender identity disorders.”

A Dignity Health spokeswoman said her organization's original statement inaccurately described the basis for the categorical coverage exclusion in Robinson's case, which was gender dysphoria, not personality disorder.