Rights law protects against Sexual Orientation employment discrimination. This is about hour. The employer has discriminated against the man because he treats that man worse than women who want to do the same thing. That discrimination is because those words, because the adverse employment action is based on the male employees failure to conform to a particular expectation about how men should behave, that men should be only attracted to women and not to men. Analytic difference between this kind of discrimination and forms of discrimination that have been already recognized by every court to have oppressed them. For example, discrimination of men who are effeminate rather than macho. Discrimination here, that discrimination is because of nonconformity with an expectation of how men should behave. Ofnnot in the words that attempt is futile because win a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation on how men should behave. The possibility of some employers, but not the employers here, may have policies of denying Employment Opportunities to both gay men and lesbians and does not change the unlawfulness of what was alleged by employees here. Under anthose policies umbrella freeze like Sexual Orientation discrimination cannot hide the fact that such an employer is a double discriminator. It discriminates against men who do not conform to a male stereotype and discriminates against women who do not conform to an expectation about females. How do you answer the argument that back in 1954, this congresshave been in mind, because in many states, male samesex relations was a criminal offense. The American Psychiatric association labeled homosexuality a mental illness. Well, i think you read the words of the statute. This court has recognized again and again forms of sex discrimination that were not in congress contemplation in 1964. In 1964, those were the days of mad men, and most courts didnt find Sexual Harassment to be actionable until this court did. In Price Waterhouse, this court recognized that discrimination aainst a woman who swore like sailor, walked like a man, and didnt wear makeup was reachable under title vii. They would not have been thinking about women like an hopkins. Do you agree or disagree with the statement that the statute should be read to encompass Sexual Orientation discrimination to avoid placing the entire burden of updating old statutes on the legislative branch . I disagree with judge pozener. I dont think you need to do any updating here. I think you should read the words as they were understood then, which is men and women. Title vii was intended to make sure men were not disadvantaged relative to women and women were not disadvantaged relative to and men. To mentoring and when you tell two employees who come in, both of whom tell you that they married their partner bill last weekend, when you fire the male that married bill and you give the female employee who married bill a couple of days off so she can celebrate the joyous event, that is discrimination because of sex. Well, if if no one has further questions, i will reserve the remainder of my time. [laughter] i think we will have further questions. [laughter] what do you do with the argument this is a nondiscriminatory policy because it applies equally to relationships between women and relationships between men . In other words, you emphasize that you need to know the sex of the individuals involved before you can determine whether there is a violation, and that brings it within title vii. But what about the response that you do not need to know the sex of people involved, you can just have a policy against samesex, so you dont care whether the participants are women or men, if they are the same, it is covered by the policy . That is no different than having a policy that everyone should comply with the stereotype applicable to their sex. If i can use an example from the courts prior cases, a policy on its face said you cannot guard someone of the opposite sex. So a woman who seeks to guard a man is barred from that job, a man who seeks to guard a woman is barred from that job. Just instead of the word guard, put in the word date. You get the same kind of thing amanda man who wants to date a man cant do it but a woman can, and a woman who wants to date a woman cant, but a man can. There is quite a difference. In that case, it was the disparate impact. There are many more male prisoners to guard than females, so that policy, even though it applies to men guarding women, it had a disproportionate effect on women who wanted to be guards because there were many more jobs guarding male prisoners than female prisoners. Justice ginsburg, that part that rested on disparate impacts was the height and weight requirements. The requirement about guarding the opposite sex was not a disparate impact. At most, the court noted in a footnote along the way that there were more guard positions available to men, but it was not a disparate impact. It was a disparate treatment case. So a male prison who wanted to guard someone at the prison for women in alabama would have to claim that he had been discriminated against because of sex. He would have lost that claim, but on bfoq grounds, not on sex grounds. Justice ginsburg what do you do with the example that was brought up that unlike race, there are certain distinctions that are maybe even required between males and females, like physical fitness tests . So i want to answer that question in two parts. The first is, there is no question there is a differential between men and women, that is men and women being treated differently. What is at issue there is whether that differential treatment constitutes Unlawful Discrimination under title vii. So for example, in johnson against Santa Clara County transportation agency, paul johnson was denied the job because of his sex, but because it was a permissible affirmative action program, that was ok. The court said miss rawlinson was discriminated against because of sex, but there was a bfoq, so if Congress Writes an exemption into the statute, but this court shouldnt write in a exemption for those purposes. Do you think we need exemptions for those bfoqs . It is not physical Fitness Standards for different sports, but a big issue in the country is bathroom usage, samesex bathroom usage. How are those cases going to be dealt with absent they the congressional exemption other than bfoq . Everyone agrees you have mens bathrooms and womens bathrooms because of sex. This bathroom treats men one way, this bathroom treats women another way. The question becomes, is that permissible to do . If i could again with an example, i will show why. When i got up, the chief justice says to me, miss karlan. And i would bet any amount of money that when mr. Harris gets up, he will say, mr. Harris. He has treated us differently because of sex, but that is not discriminatory because neither of us has been subjected to a disadvantage. Said, what the statute means when it says discriminated against is to cause an injury. Requiring people generally to use separate bathrooms is not an injury. Im not sure that may be how they would see it, and to what extent should we take that into account . Same thing with a gender specific uniform requirement. How would you deal with those, given that at least those affected might think they are suffering harm . So there is no categorical rule about these. The fact that all the men sitting at the Council Table knew they had to wear ties today and i was free not to did not cause an injury. On the other hand, even the dissenters in the Second Circuit said if the court said women who come to argue should argue in an outfit in the men should wear ties. We can talk absurd examples or realworld examples. You a real world example. It probably doesnt cause injury for a female to wear a skirt. But if you required a female telephone lineman to wear a skirt i8 or stand, and that is not what i am getting at. You know what i am getting that. The case we are taking up is more in the realm of my question. You could offer me help, if you want to. I am trying to offer you help. What im suggesting, counsel, is that there are male and female bathrooms, there are dress codes that are otherwise innocuous, that most people would find them innocuous, but affected communities will not, and they will find harm. And how does your test deal with that one way or the other . Thats what im asking you to address if you would like to. Yes. My test says that you have treated the people differently because of sex, which is what you are asking we are asking you to hold here when you treat a gay man who wants to date a man differently than a woman who wants to date a man, that is discrimination. Then you get what i said, which is, you have to ask whether a reasonable person under these circumstances would be injured by the imposition of the particular sex specificity. When the chief justice calls me miss, i am not injured. You are not, but another person might be. Are they reasonable or not . And im wondering how you decide those cases . An idiosyncratic preference does not void an otherwise valid bathroom rule or a uniform. I apologize is it idiosyncratic for a transgender prefer a bathroom that is different from the one of their biological sex . Is it idiosyncratic for a transsexual person to wish to dress in a different style of dress than his or her biological sex . No. Ok. So the answer to your question is, at the end of the day, if i understand it, is those are acts of discrimination under title vii as you understand . Yes, but it would be better advised to ask the question of someone who is representing someone who is transgender. Im representing someone who is gay. Egging just as begging just as gorsuch chs question, how do we differentiate the two . What is the legal test that you propose to say, this is discrimination because of sex, as you said, calling me one thing and your friend another is discriminatory, but it is ok because there is no harm. What is the test we apply to say when it is harm and when it isnt . Let me try to be clear. It is not discrimination to call and mr. Harris mr. Harris. It is because of sex that we were treated differently, but as this court has made clear several times, discrimination consists with an injury the law is prepared to recognize. Generally, across all statutes this is not only title seven, and this is why i am not begging the question here, the court said diminutive effects are exempted from statutes presumptively. So if this court thinks or another court why is a dress code for hooters that requires all women to wear a scant dress, is that discriminatory . Yes, it is. Is it discriminatory for the woman who just doesnt want to wear it, because it is demeaning . Yes, it is. So how about, is it discriminatory for the restaurant not to hire a transgender man who wants to wear the uniform . I want to get to the question of Sexual Orientation here. What you are alluding is, and i havent heard the explanation, which is the question of, how do we tell what is actionable and not . And when does that discrimination begin . I will give you an analogy from the race area that may be helpful for the court. For many years there was an argument that separate but equal was acceptable, and this court ultimately concluded that when it came to race, separate but equal was not permissible. I dont think the court has held anything like that with regard to sex, but you are going to have to answer that question about dress codes, regardless of how you rule in either my case or miss stevens case. You say the test, is the Person Injured . Yes, it is a differential based on gender, but most people are not injured by having separate bathrooms. In fact, most people would prefer it. Are you saying we have to wait for the testing case for the person who might be injured not being allowed to use the bathroom of the other sex . I think it is highly unlikely you are going to see cases like that. The bathroom issue has been around since the beginning of title vii. Title vii has a special a2, that says703 when you segregate people, the question is whether that segregation denies them Employment Opportunities. And it is hard to see how requiring men to use a mens room and women to use a womens room denies them Employment Opportunity. May i ask you to respond to what some people will say about this court if we rule in your favor . And what they will say is that, whether title vii should prohibit discrimination based on Sexual Orientation is a big policy issue, and it is a different policy issue from the one congress thought it was addressing in 1964, and congress has been asked repeatedly in the years since 1964 to address this question. The equality act is before congress right now. Congress has declined or failed to act on these requests. And if the court takes this up and interprets this 1964 statute to prohibit discrimination based on Sexual Orientation, we are going to be acting exactly like a legislature. We might as will just take the equality act an issue that as our opinion and say, as judge ner says, that courts need to intervene on questions like this when the legislative branch simply will not do so. How would we respond to that question . The fact a loose cannon like judge posner says, do whatever you feel like, is not what we are asking for. We are saying, if you read the words, because of sex, and in 1964, what did those words mean . They meant treating men differently from women. So if in 1964 it would be discrimination to fire a woman who wanted to, woman who enjoyed sewing, and there is a famous case, the foundational case on Sexual Orientation, where they fired a man who said he loved to sew. We will not be deciding a major policy question that was not in congresss mind in 1964 and that congress has repeatedly failed to address since then. Fo address since then. No more than what you did in other cases, Price Waterhouse, newport. In my mind, there are three basic parts in this case on the other side. To language, you dealt with that. The parade of horribles, you have dealt with that. The third one is the one alito is bringing up in one form. As it is coming out of the briefs as i read it, i would put it in these terms. Imagine a statute that says, policeman da da da must pay damages. Passed a long time ago. That doesnt apply to german policemen. The meaning is the same. German policeman are policeman, but the statute doesnt apply to that. How do we know . We know through a lot of history. That is the box in which i put the argument that Justice Alito made. The argument is that at the time, congress would not have dreamt of this, and therefore, the words that they applied, they meant to exclude the gays and transgender. What i need to hear is a clear answer to that question. I think the way to think about this is to ask about the specific behavior that is at issue, which is that a man dates a man. Then ask, how does that fit within the language . The best example it fits. I am about to explain why it fits, which is, the idea was people should not be denied jobs they are qualified to do, awardwinning advocates for Child Services like joe buffett should not be denied a job because they have done something that if they were a woman, would cause no problems at all. The first sex discrimination the court had, a woman who has children at home should not be denied a job that a man who has children at home. All you have to do to say is to say, those words apply. Also, a woman who has a wife at home. 23 states have been passing laws to address these issues. I dont know how many, but i think it is a big part of them, when they do extend coverage against discrimination on the basis of sex to Sexual Orientation, they also include exemption for religious organizations. If we are going to be extending the understanding of what sex encompasses, and i know your argument is not doing that, how do we address that other concern, that at least, i think almost every state legislature that has extended it has felt compelled to address . I would say three things. The first, this court has already created an exemption for sincere religious beliefs for a large category of employees through the ministerial exception. The second is that Congress Balanced these issues and has rebalanced them several times in the coreligions and exception. The third thing is to understand this in context, which is 85 of american employers are not covered by title vii. So if those employers have religious exemptions to hire someone who is gay, they are free to continue doing that. And number four, the question is not whether people have religious objections to homosexuality, its where they have religious exceptions to hiring someone who is gay or lesbian. And there are Many Employers whose own religious beliefs would tell them this is immoral for them to have no problem hiring gays and lesbians who are required who are qualified to do a job. If the court could do one thing and thinking to 1964, it would it came from a case where a gay black man said he was being treated worse than a gay white man. A sexualt even discrimination case. The second was a straight man who was denied a job because he said his hobby was sewing, and the employer said, that is an effeminate hobby so i bet you are gay. If you look at the reasoning in these cases that any did any court did any reasoning. Since then a majority of judges , have held Sexual Orientation is a subset of sex discrimination. Justice breyer characterized what i said earlier as conceding Sexual Orientation discrimination fits the words of title vii, but that we should take a broader view of what congress had in mind. That was not the premise of my argument. The parties in their briefs have all these comparisons. They will make your head spin if you try to figure them all out. Let me just go to your core one which you began with today. A man is attracted to other men. He is fired. A woman is attracted to men. She is not fired. You say that is all you need to look at, that is discrimination on the basis of sex, right . Yes. That is not correct because there are two possible explanations. It could be based on sexual discrimination or could be because the employer does not want to hire men. If you add in two other cases, a man who is attracted to women, not fired, a woman attracted to women, is fired, then you have a much better idea of the basis of the discrimination, and it is Sexual Orientation, not sex. But in case like the two cases before this court where the employer had already hired these men, the supposition in your example doesnt apply. We know this is an employer that is willing to hire men. The employer had only men as skydiving instructors, so when he fires a man who wants to date a man and does not fire a woman who was the day a man but the point is that discrimination on the basis of sex understood by congress in 1964 is a different concept than Sexual Orientation. That is what you are fighting. You are trying to change the meaning of what congress understood sex to mean and what everybody understood sex to mean in 1964. I am not trying to change that at all. And amply saying if a man woman both wanted to sew, and you fire the woman and you fire the man and not the woman. Thank you. You, counsel. Counsel . [laughter] mr. Chief justice, and may it please the court, in 1982, wisconsin became the first state to pass a law banning discrimination because of sexual in privateion employment. It was celebrated as a landmark achievement for gay rights. According to the plaintiffs here, the wisconsin landmark law had little if any Practical Impact because Congress Already banned Sexual Orientation discrimination nationwide 18 years earlier in the Civil Rights Act of 1964. To quote judge lynchs dissent, congress did no such thing. Sex and Sexual Orientation are independent and distinct characteristics, and Sexual Orientation discrimination by itself does not constitute discrimination because of sex under title vii. That is just as true today as it was in 1964. The core error in the Second Circuit holding is similar to the ever that led the court to reverse another case. In that case, the circuit held samesex harassment claims were categorically excluded from title vii. This court correctly reversed and held that such claims may be cognizable as long as all claims of the statute are met, including what this court called the critical inquiry into whether members of one sex were treated worse than members of the other sex. This is a mirror image of the other case, whereas lower courts in that case adopted a categorical inclusion, the Second Circuit adopted a rule of inclusion in which plaintiffs alleging Sexual Orientation discrimination receive a free pass around the critical inquiry into whether men and women are treated differently because of their sex. The Second Circuit changed the question from sex to Sexual Orientation. But because both men and women may have samesex attractions, a standalone allegation of Sexual Orientation discrimination cannot without more show discriminatory treatment can i understand your argument in context . The employer looks at a man who says one of my hobbies is sewing, and the employer says, that is an effeminate hobby. You may be gay, so i am not hiring you. Is that a mixed motive case . And, are we going to be trying somehow to parse that there is some sort of substantial legal beliefnce between the that you are too effeminate or too macho fromis you are attracted to the other sex . I dont disagree there will be tough cases at the margin, but the problem with what the Second Circuit did is they glossed over those hard questions why arent you glossing over the foq . What it seems you are confusing is three concepts. Title vii has causation and injury. Not hiring, not firing, that is the injury. Now the question is what caused that . Being too effeminate is a sexual trait. If you are a man, being attracted to another man is a sexual trait. It is caused by those two things. Arent we then moving to the third question, which is, is there a reason independent of your religious belief or your discriminationnd for why you are treating this person differently . A bfoq. Is, you have you dont have to hire them, you can fire them. But if there isnt, they are doing their job and they are not bothering you, and they are not bringing their boyfriend or girlfriend, if it is the opposite sex, to a function, to your private home, because you dont want them there or whatever else is offensive to you, they are just working. So, i dont understand why those are hard cases. Any harder than what the law implies for race discrimination, religious discrimination, and any other forms, National Origin discrimination. Your honor, and this court has emphasized in cases such as johnson controls, the bfoq question has been interpreted narrowly. The court emphasized several times, the need to ensure strict compliance with all requirements of the statute including the discrimination element. Once you find discrimination, he gets very it gets very hard to make out the fo q. If the employer said, i dont hire women to work on platforms. The only people i higher are men. That would have been discriminatory against the women seeking jobs. But is not the woman who is suing. It is the male who is being harassed by other men, and the employer says, you cannot khmer cannot compare what i am doing to what i am doing on the to someone it is ruminates on the basis of sex someone who discriminates on the basis of sex because i dont hire women at all . It is not a defense to say, in cases like martin marietta, it was not a defense for that employer to say, because i have hired other women, it excuses this. The answer to your question is that would not be a defense. Martin marietta was different because the plus applied to women and did not apply to men. You had that distinction. Take Price Waterhouse. Suppose the employer said, i dont want any men who are not sufficiently macho, and i dont want women who are not sufficiently feminine. If Price Waterhouse said we will treat a man who is not sufficiently macho the same way hpokins ann h yours as i understand argument that would not be , discrimination. When employers have traits that it values, there cant be a list of criteria for men and a list for women. The solicitor general offered the hypothetical your honor said. In that situation, there would be two sets of criteria. A man who does not meet the womens criteria and a woman who does not meet the mens criteria would have a claim. It would not excuse it to say there are different criteria for each sex. Pose it. Suppose a catholic and a jew want to get married. The employer fires the catholic. Hes not against catholics. He is against intermarriage. And i can use the same example with race. I take it from your argument that there would be no claim. There would be a claim in both situations. If there is a claim there, why isnt there here . In the race context i didnt say race. I said religion. In the context of religion, which is the only one other than pregnancy that has expansive definition. It would be religious discrimination between a couple that is catholic and jewish into catholics, the only difference between the couples is their religion. And the only difference between the couples here is that one is a man rather than a woman. Except that it also introduces an independent characteristic that can be neutral. Catholics, igainst am not against jews i am against , intermarriage. If that person exists, i think it is foreign. I promise you there are many people in the religious context who are against intermarriage and are not against catholics or jews. That is not an unrealistic example. All i find in that example is an identical case to this one. Most people who would oppose any sort of with sort of interreligious marriage i think what all of these hypotheticals are about is that in many of these cases, what you find is independent characteristics. Manhart, it was all about an independent characteristic. It was about life expectancy. We are goingy, into a different sort of analysis where we do not just say with the same thing has happened to you if you were a man or if you were a woman because we had an independent characteristic, which was life expectancy. The same thing here. All of the hypotheticals are about the same thing, which is that manhart gave us a very simple test. Manhart said, what do you do when you look to see if there is discrimination under title vii, you say, with the same thing with the same thing have happened if you were of a different sex . Miss karlan went through all the ways in which obviously the same , thing would not have happened to you if you were a different sex, you being her client. That is the question. There are independent characteristics in all these cases. We insisted on this extremely simple test. If you apply that test. It seems to come out against you. Let me address manhart and the test generally. In manhart, this court noted that the policy wasnt just about longevity. The employer made no attempt to do any sort of bona fide underwriting or life expectancy, it simply charged the women more. If a woman and man each had a 75 year life expectancy, they would each be charged different rates. Even though they were totally similarly situated. Manhart was clear that women in the aggregate were going to be fine under this policy because women in the aggregate do have a higher life expectancy. I think actually manhart makes clear why another aspect of your argument is wrong, because you say we have to look at these big classes, but there is nothing wrong in manhart when you looked at the classes. What became wrong in manhart was when you looked at individuals. And when you look at individuals, which manhart insisted one should do, and when you apply the test that manhart insisted you apply, would this woman have been treated differently if she were a man . The answer was yes. Similarly, i will ask again, if you apply that test, dont you lose . And if you do lose, why should we not apply that test . The problem with the test, in manhart, in newport news, in martin marietta, the test makes sense because you know what you are testing for. The problem here is, unless the plaintiffs can point to something outside the comparison to tell us why that is irrelevant, they are assuming their conclusion. Their comparator would say, you ask if a gay man has suffered sex discrimination by comparing him to a heterosexual woman and that version of the comparator cannot isolate whether it is the sex or the Sexual Orientation. Unless they can point to something outside the comparator, the comparator doesnt answer the ultimate question. It may not isolate the proximate cause, but the argument on the others is the language of the statute is a causation standard. Perhaps there are two causal factors at work here, but is one of them sex in the narrow sense of biological gender . What is your response to that . What im arguing is simply that Sexual Orientation standing , without more, sex discrimination. Remind be of the question why my time. So, your response to Justice Kagan was, i need to focus on Sexual Orientation because that is the primary causal factor here are the here for the firing. I think the response from the other side is, the statute has a margin generous cap generous causal formulation so perhaps , you are right that at some level Sexual Orientation is in play here, but isnt sex also in play here because of the change of the first variable . And isnt that enough . The statute talks about a material causal factor, not the sole cause or proximate cause, but a cause. In what linguistic formulation would one say that sex, biological gender, has nothing to do with what happened in this case . You are referring to the motivating factor language. In what i referred to as the benchmark scenario, sex would not be a motivating factor. The complaint and strip the any reference to his being a man, it would still make perfect sense. If you stick to any reference to his Sexual Orientation, it would make little if any sense. In Price Waterhouse, the court gave guidance on how to do the motivating Factor Analysis and said, imagine you gave the said,er truth serum and what were your true reasons for this . Lets do truth serum. Wouldnt the employer maybe say it is because this person was a man who liked other men . And isnt that first part sex . Your honor, i think in common parlance, we would call that a samesex attraction. To thinkis some reason that employer and some of the amicus briefs say much discrimination against gay and lesbian people is based on the animus against gay men or lesbian women if there is some , reason to believe that in that scenario, that may be a motivating factor. But when you simply have an employee saying, i was fired because of my Sexual Orientation, that alone does not show what this court called the critical issue of distinguishing between men and women. Are you drawing a distinction between the literal meaning of because of sex and the ordinary meaning because of sex, and if so, how are we supposed to think about ordinary meaning in this case . Not see a difference between the two. Running out of time, to go back to some of the questions about bathrooms and Fitness Standards, under the test, a few apply the manhart test in the way they want to do it, i do not see any way that singlesex bathrooms or showering facilities you have to have someone who is injured. In the response to the bathrooms, who is the complaining plaintiff . To most people, they would not be complaining plaintiffs because they are not injured by the separate bathrooms. In fact, they like it. Yes, although if someone is fired, imagine a factory with Hazardous Materials where people shower after work and a man used the womens bathroom and is fired. That person would be injured. Under the test, they would say, just change the sex and that person would not have been fired. But that is not a similarly situated person. The proper analysis would say that a neutral policy such as use the showering facility that corresponds to your biological sex, the man using the womens shower, the comparator is not a woman who uses a womens shower, it is a woman who is using a using the mens shower because you are not looking at similarly situated people. This court in espinoza discussed states early on. In espinoza, and interpreting National Origin discrimination, this court said the state practice parallel laws interpretation is instructive. 23 states have done this by legislation. Zero have done it by judicial interpretation. This shows it is not redundancy that sex and Sexual Orientation both in 1964 and today are different concepts that mean Different Things and common users of language both today and in 1964 would have recognized that. Can they ever be . Judge lynch said homophobic stereotypes are unrelated to Sexual Orientation. The very first case before us shows that that is just not true. That, Sexual Orientation is highly court that homoSexual Orientation is highly cori elated is highly correlated to stereotypes. Happens all the time. I find it somewhat difficult to unwind the if not difficult, two. Nearly impossible. It is a sad reality homophobic slurs are often directed at heterosexual or homosexual people should or homosexual people. That is ok, under your theory. It is not if that person can show discrimination because of sex. Aboutnote is very candid this. The second certain is going to change the jury instructions to tell the juries if they find Sexual Orientation discrimination, they have found sex discrimination. I do not disagree there will be difficult cases at the margins, but the answer is not to change the ultimate inquiry and replace it with Something Congress could never have intended. If you have a minute, let me ask you this. Lets imagine the decisionmaker in a particular case is behind a veil of ignorance, and a subordinate who has reviewed candidates for a position says, i will tell you two things about this candidate, the best candidate for the job, and this candidate is attracted to members of the same sex. And the employer says, im not going to hire this person for that reason. Is that discrimination on the basis of sex, where the employer doesnt even know the sex of the individual involved . That was not discrimination on the basis of sex. That is exactly right. If you get a resume that has a name that could be male or female and something suggests the person is gay and they are not hired for that reason, that would be Sexual Orientation discrimination. That has nothing whatsoever to do with sex discrimination. Thank you, counsel. Mr. Chief justice, and may it please the court, the issue is not whether congress can or should prohibit employment discrimination because of Sexual Orientation, the issue is whether it did so when it prohibited discrimination because of sex. It did not, for two reasons. First, sex means whether you are male or female, not whether you are gay or straight. If you treat all gay men and women the same regardless of their sex, you are not discriminating against them because of their sex. Second, any doubt is removed by the history of title vii related statutes, since in the face of unanimous interpretation by courts of the executive branch, congress has extended other statues that deal with Sexual Orientation but refused to do to refused to do so with respect to title vii. The decision would nullify that choice should that choice. Justice gorsuch, if i could address the question about the literal meaning of the statute, there are two responses to that argument. They are related. The first is that, under that interpretation, you could not fire a man for using the womens restroom because in some metaphysical sense he is not injured. He is fired in my hypothetical. I think counsel acknowledged that. . The reason that is permitted and this is my second point, you are treating the theme is a similarly situated woman. That is a woman who uses the mens room. That is the critical analysis when youre trying to determine if someone has been discriminated against. Let me give you a not. Ypothetical case shou an airline hires only women as but it firesnts , them if they marry. The defense is whatever we are , doing, it is not sex discrimination against women, because we dont hire any men or all, married or unmarried. That case, i take it from your brief, you would say no violation of title vii. No, your honor, because the prohibition of hiring male flight attendants would in and of itself but the male is not the complainant, it is the woman who was fired because she was married. The male complainant might have a very good case, but my case is about a woman. My problem about the hypothetical is that the way it is constructed, there is presumably no men that have the job in the first place. If you say that in theory, men should be able to have the job, the question would be, would you also have fired men who were married . And if you only fired women who were married but not men who were married, that would be a violation of title vii because you are treating similarly situated people differently. That is an impossible idea to put in to practice by taking out the sex. May i continue with this . The hypothetical is not hypothetical. Against united airlines, and it was given, not that they didnt hire men as cabinet attendance. But they fired this woman because she married, when she married, she wouldnt be attractive to the male passengers. The court of appeals said title vii was meant to strike out the entire spectrum of sex stereotyping. So if this woman was fired because she would no longer be so attractive to men if she was married, that is sex discrimination. And we dont have to have a male involved. This is a woman who was treated in a very stereotypical way. She is no longer young and attractive when shes married. I think the question is always, are you treating similarly situated men and women differently . There are times when issues of proof are difficult. For example, in the Price Waterhouse case, anne was fired because she was aggressive. This was an actual case. It was given that no males are hiring. No mail is complaining. Ale is complaining. The way that case was resolved was because the woman had not brought her case in a timely fashion on the sex discrimination piece. The way the court resolved that decision was, it set all right that case never came to this court. Could i go back to Opening Statement and particularly to the second part . You talked about the history of title vii and some of the subsequent legislative history. What strikes me, i was struck in reading your briefs, is that the arguments you are making are not ones we typically would accept. For many years, the lodestar of this courts statutory interpretation has been the text of a statute, not the legislative history and certainly not subsequent legislative history. And the text of the statute appears to be pretty firmly in miss karlans corner. Did you discriminate against somebody, against her client, because of sex . Yes, you did, because you fired the person because this was a man who loved other men, and part of that, and it only has to be part, we have made very clear, there is no search for sole cause in title vii. Part of that is you fired the person because he was a man. If he were a woman, he would not have been fired. This is the usual way in which we interpret statutes now. We look to laws. We dont look to predictions, we dont look to desires, we dont look to wishes, we look to laws. Why doesnt that mean your argument failed . Because what our brief attempts to do is make a straightforward textual argument. The law distinguishes between sex and Sexual Orientation. Those are two different traits. That is why when Congress Wants to prohibit discrimination based on Sexual Orientation, it does not define sex as including Sexual Orientation. It lists it as a different trait. What is your response to the two comparator problem we have been discussing and the fact that at least one contributing cause appears to be six . A couple responses. I do not think that one contributing cause is sex. As long as you are treating gay men and women exactly the same regardless of sex, the teacher beating cause regardless of sex. It reflects the fact that sex Sexual Orientation are different traits. If you do the analysis the way those on the other side suggests, you eliminate the distinction between different traits and nullify congresss careful decisions and other statutes to protect Sexual Orientation and gender identities. Is there anything in this record showing that the employers would not employee lesbian women . In these cases, and this may have been better for my colleague, but in these cases, the employers, the Sexual Orientation cases, the employers have denied that they discriminate. Allegation is that the person was discharged when he announced he was gay. There is nothing in the record as far as i can see that there is a policy on the employers part of discharging lesbian women. I think the employer defense was, i did not fire him because he was gay, but if you think i did, title vii is not based on Sexual Orientation. If i can address lastly the point that the chief justice and Justice Alito raised, here, i think a judicial ruling would be pernicious because when Congress Seeks to expand the scope of title viis liability provisions, a couples that with an expansion of the religious employers exemption to title vii because issues of Sexual Orientation like gender identity raise different issues from a religious liberty perspective. The position would only do half of that work. It would expand the scope of liability without giving consideration to religious liberty interests. That is why this is the type of issue that is better left to congress and the courts. I want to make sure i fully address your textual consideration because i think it boils down to the fact that sex and Sexual Orientation are different traits. Can i finish my answer . Title vii prohibits human nation based on one of those traits as long as you treat men and women similarly situated to the other trait exactly the same, you are not discriminating within the meaning of title vii. Thank you, counsel. Ms. Harlan. , thank you. Let me start with the question just as jens berg Justin Ginsberg asked because it is illustrative of contemporary discrimination cases. Virtually none involve an employer. Neither of the cases before you does that claims to have an acrosstheboard of firing all gay men and all lesbians. What tends to happen is a man who does not conform with some other genderbased stereotypes get hired, which puts them in the position that Justice Sotomayor mentioned, which is hard to figure out what is going on here. The second point i want to leave the court with is the entire argument on the others depends on the idea that men who are gay and women who are lesbians are being treated the same. That is not so. If you look at what causes the problem, it is the man who says i married my partner, bill. If any woman had married bill, she would not have been fired. He is. The textual language tells you to look at such individual and not the overall class. Would you address the general statement . He goes back to compact the comparator should be a woman who a man who likes a man and a woman who likes a woman. You are trying to get to that. He is varying two things. He is varying the sex of the employee on the person to whom the employee is interested. Show us an example from the case that you cannot do that. It, buturse, you can do all you need to do is show that sex played a role. Had come in and said, i like today men, you would not have fired her. And amen says i like the date men, and you did, what if the decisionmaker makes the decision based on Sexual Orientation but does not know the biological sex of the person involved . There is no reported case that does that what if it happens . We have had a lot of hypotheticals of things that meant days that may or may not happen. Is that discrimination on the basis of sex where the decisionmaker does not know . And how the and how did they know the Sexual Orientation . Because somebody who interviews the candidates thousand that. So this is saturday night live, pat. There is a person named pat you cannot tell if it is a man or a woman. Theoretically, that person may be out there, but here is the brought cases that are are almost always brought by someone who says, my employer knew who i was in fired me because i was a man or a woman. Someone who comes in and says, im not going to tell you what my sex is, but believe me, i was fired from my Sexual Orientation, then that person will lose. If that is the case, i think your argument collapses because Sexual Orientation is a different thing from sex. Of course it is. No one has claimed Sexual Orientation is the same thing as sex. What we are saying your argument is discrimination based on Sexual Orientation necessarily entails discrimination based on sex. If there was the case where there would be no liability in a situation where the decisionmaker has no knowledge of sex, that cannot be true. If there was that case, it might be the rare case where Sexual Orientation discrimination is not a subset of sex. In the case where the person knows the sex of the person they are firing or refusing to hire and knows the sex of the people to whom that person is attracted , that is sex discrimination. Is important to understand and this goes back to something that just as ginsberg asked during the opening argument discrimination against gay men and lesbians is not one thing. In 1964, if you look at the members of congress is brief, they would tell you that if you looked in the dictionary, there is no phrase, Sexual Orientation. Men,imination against gay which goes back to leviticus and the common law, this committee nation of lesbians, which was not part of leviticus. In 1964, there were only 16 states that clearly forbid some act in which lesbians could engage. The idea that this is one large idea about Sexual Orientation without reference to sex simply barks the history and understanding. If you look at the harassment cases you see why this is true. , gay men are harassed differently than lesbians. Thank you, counsel. Case is submitted. Now, the Supreme Court oral argument in r. G. And gr, harris Funeral Homes versus the equal opportunity employment commission. Discrimination law prevents against employment termination. And gr case 18 107 harris, Funeral Homes versus the equal Employment Opportunity commission. Mr. Chief justice, and may please the court, Aimee Stephens is a transgender woman. She was a valued employee of harrys Funeral Homes for six years until she told her boss she was going to live and identify as a woman. When harris homes responded by firing her, it discriminated against her because of her sex for three reasons