I have written previously about the EEOC’s litigation on behalf of Aimee Stephens, whose employer—a Michigan funeral home—fired her when she announced that she was transitioning and would present as a woman at work in the future. At ZDB we have continued to follow this potentially groundbreaking federal litigation in the Eastern District of Michigan. In the most recent development, Magistrate Judge David R. Grand granted the EEOC’s motion for a protective order, seeking to prevent the defendant funeral home from violating Ms. Stephens’ privacy during the process of discovery in the case. While, given the nature of the discovery sought, this was patently the right outcome, the judge’s order could (and, in my view, should) have provided more assurance to future transgender litigants that they will be protected from attempts to use discovery as a tool to invade their privacy and humiliate them.
The discovery requests at issue sought detailed disclosures on numerous personal matters totally irrelevant to the ultimate issue in the case (which, following the court’s decision on the funeral home’s motion to dismiss, is whether the funeral home fired Ms. Stephens because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes). Among those matters was Ms. Stephens’ medical history: the funeral home sought her medical and counseling records as well as asking whether she “currently has male sexual organs, including but not limited to, a penis and testicles”; whether she has had “any surgery performed to remove or modify any male sexual organs”; and whether she has undergone hormone therapy. The funeral home also sought to pry into Ms. Stephens’ family life, asking for detailed information on any past marriages (including all pleadings from any prior divorce), her biological offspring, her communications with her family regarding her transition, her wife’s feelings about the transition, and the current state of her marriage.