How much, er, discovery is allowed in a transgender lawsuit?

Well, this should be interesting.

As I've reported before, the Equal Employment Opportunity Commission has sued a funeral home chain in the Detroit area for terminating Aimee Stephens, a transgender woman, because she failed to conform to male sex stereotypes.

The defendants moved to dismiss the lawsuit, but their motion was denied in April.

After the court ruled that the case would go forward, the defendants filed an answer, alleging (among other things) that it was lawful for them to have a sex-specific dress code. (It is, after all, a funeral home.)

The defendants then served discovery on the EEOC, asking things like whether Ms. Stephens had biological children, whether she had been married to women and how many times, whether she was born a biological male, whether she still had male sex organs (and helpfully providing a few examples of what they meant by that, if you catch my drift), whether she'd had any gender reassignment surgery or hormone treatments, and whether she'd presented as a female before August 2013.

These strike me as somewhat intrusive and potentially embarrassing but probably discoverable questions in a case where the plaintiff claims transgender discrimination.

But the EEOC didn't think so. They filed a Motion for Protective Order, asking the judge to prohibit the defendants from asking about these things. According to the EEOC, the claim is for "stereotyping," and so Ms. Stephens's actual "gender" status is irrelevant.

The defendants, who are being represented by the Alliance Defending Freedom, have now fired back, saying essentially, "You raised this issue, EEOC, now live with it."

Isn't it fun living on the cutting edge?

(Thanks to Law360 for bringing this to our attention.)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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