Discrimination. Last october, the court heard oral arguments for two consolidated cases concerning employment and Sexual Orientation. This is an hour. We will hear in case 171618, bostic versus Clayton County in a consolidated case. Take you thank you. When an employer fires a male men, he for dating violates title vii. 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 of sex. Because the adverse employment malesis based on the employee to confirm about how men should behave that men should be attracted only to women and not to men. There is no analytic difference between this kind of discrimination and forms of discrimination that have been already recognized by every court to have addressed them. For example, discrimination against men who are effeminate rather than macho. That discrimination is because of nonconformity with an expectation of how men should behave. The attempt to carve out discrimination against men for being gay, from title vii, cannot be administered with either consistency or integrity. Resort tojudges to lexical deed county where epithets to determine whether or not discrimination is based on sex or Sexual Orientation. That attempt is futile because when a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave. Finally, the possibility that some employers, but not the employers here, may have policies of denying Employment Opportunities both to gay men and lesbians, does not change the unlawfulness of what was alleged by the employees here. Those policies under an umbrella like Sexual Orientation discrimination cannot hide the act that such an employer is double discriminator. It is criminal against men who does not conform to a male stereotype, and it discriminates against women who do not conform to an expectation about females. How do you answer the argument that back in the 1950s, this could not have been in congress. States, because in many male samesex relations was a criminal offense. The American Psychiatric association labeled homosexuality a mental illness. I think you read the words of the statute, and this court is recognized again and again forms of sex discrimination that were not in congress contemplation in 1964. 1964, those were the days of mad men. The idea that Sexual Harassment would have been reached, most courts do not find Sexual Harassment to be actual until this cordate. In Price Waterhouse, this court recognized discrimination against a woman who cursed like a sailor, walked like a man and did not wear makeup was reachable under title vii. If you asked what members of congress what they thought, they would not have been thinking about woman like and hopkins. Do you agree or disagree with the judges statement that the statute should be read to encompass sexual discrimination to avoid placing the entire updating and placing old statute on the legislative branch . I disagree. I dont think you have to do updating. You should read the words, which were understood, which is men and women. Title vii was intended to make sure men was not disadvantage relative to women, and women were not disadvantaged relative to men. Two employees who come in who married their partner bill last weekend, if you fire the male butoyee who married bill, give the female employee who married bill a couple of days off, that is discrimination of sex. Will if anyone doesnt have any questions, i will yield my time. [laughter] what do you do with the itnt that this is a applies to relationships between men and females between men and women. You emphasize that you need to know the sex of the individuals involved before you can determine whether or not there is a violation, and that brings it within title vii. But one about the response that you do not need to know the sex of the people involved . Whether there participants are women or men. If that is no difference at having a policy that everyone should comply with the stereotype applicable to their sex. If i could use an example from the courts of pryor cases, for policy said the you cannot gird someone of the opposite sex. A woman who seeks to guarded man is barred from that job. Barred, it instead of date and you get the same kind of thing where a man who wanted data man can do it and a woman who mustve date a woman cannot do it. There was a disparate impact. There are many more mail prisoners to guard than females. A disproportionate effect on women wanted to be guard because there were many more jobs guarding male prisoners and female prisoners. Ginsburg, there was apart that measured on disparate impacts on height and wait. Noted thate court there were more guard positions available to men, but it was not a disparate impact. It was a disparate treatment case. A male person wanted to guard someone at the prison for women in alabama could have a case he could have been discriminated based on sex. What do you do with the example that was brought up . Unlikeliest, there are certain are not onlythat permitted, maybe even required between mails and females, like physical fitness tests. I want to answer that question into parts. Aere is no question there is differential between men and women. Many women are treated differently. What is at issue is whether that differential treatment constitutes Unlawful Discrimination under title vii. For example, in johnson against transportation, paul johnson was tonight the job because of his sex, but because it was a permissible action, that was ok. Ms. Rawlinson was discriminated against of size, but if Congress Writes an exemption in the statute, that is one thing, but this court should not be writing in exemptions. Do you think we need exemptions for those . Not just by physical Fitness Standards just for sports . The big issue right now reading samesex is usage. How are those cases going to be dealt with absent a congressional exemption other than bfoq. If karlan everybody agrees you have mens and womens bathrooms, that is because of sex. It treats men and women different ways. In the question becomes, is that permissible to do . If i could begin with an example. The chief justice says, ms. Carlin, i am willing to bet that he says mr. Carlin, he is treating us differently because of sex. , the statute said says discriminated against is to cause an injury and requiring people to use separate bathrooms is not an injury. I am not sure is that how they would see it. To what extension we take that into account . Same thing with gender specific uniform requirements. How do you deal with those . There is no categorical rule. All of the men sitting at Council Table knew that they had to wear ties today and i did not have to did not cause an injury. To comeourt said women should wear examples. Talk absurd ms. Karlan they probably doesnt violate dress cody to to require men and women and business events for the women to wear skirts, but if you require a female telephone lineman to wear a skirt align that is not where i am getting at. Funeral home examples is not a bad case. That is more in the round of my question. Ms. Karlan when i am trying what im suggesting council are there male and female bathrooms and 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. Test do withyour that one way or the other . That is what im asking you to address. Ms. Karlan you treat the my test says you treat people differently because of sex. They get to what i said, which is you have to ask whether a reasonable person under the circumstances, would be injured by the imposition of a particular sexspecific align when i go to a align you are not, but another person might be. Im wondering how do you decide those cases . Ms. Karlan it is a syncretic preference a syncretic preference ms. Karlan im representing someone who was gay. Im truly am not trying to beg the question. How do we differentiate the two. This isthe legal test discrimination because of sex calling you one thing and your friend anothers discriminatory, but it is ok because there was no harm. What is the test we applied to say what it is harm and what it isnt . Discrimination consists that the law is prepared to recognize and ,enerally, across all statutes they said to minimus effects are exempted from statutes sumptively, so align forhite is the dress code hooters that requires women to scantily dressed discriminatory . Ms. Karlan yes it is. Is a discriminatory for the woman who doesnt want to wear it because it is demeaning . Ms. Karlan yes it is. Is a discriminatory for the restaurant not to hire a transgender man who want to wheres who wants to wear uniform . Ms. Karlan i do want to get to the Sexual Orientation. But what you are alluding, and i still have not heard the explanation, which is the question of how do we tell what is actionable or not . Discrimination begin . Ms. Karlan i will use an analogy from the race issue. For many years, there was an argument that separate, but equal was acceptable, and ultimately, this court concluded when it came to raise, 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 regardless of how you rule in either my case or the other case. Can you test if the person is injured . Is the preferred intro 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 the test for the person who might be injured . Use theeing allowed to bathroom of the other sex . It is highly unlikely you will see cases like that. The bathroom issue has been around since the beginning of title vii. Title vii has a special provision that says you isregate people the question whether that segregation denies an Employment Opportunity . It is hard to think how requiring men to use the mens room and women to use the womens room denies them Employment Opportunities. Respond tok you to what some people will say about this court, if we rule in your favor . Thathat they will say is whether title vii should prohibit discrimination on the basis of Sexual Orientation is a big, policy issue and it is a different policy issue from the one congress thought it was 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. Faileds has declined, or to act on these requests, and if the court takes this up, and interprets this 1964 statute two prohibit discrimination based on Sexual Orientation, we are going we will be acting exactly like the legislature. We might as well is the equality act and issue that is our opinion, and say, as judge posner says that the courts need to intervene on questions like this, when the legislative branch simply will not do so. How would we respond to that question . Ms. Karlan well, the fact that 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 inds because of sex, and 1964, what if those words mean . Treating men differently from women. Beif in 1964, it would discrimination to fire a woman, who wanted, woman who enjoyed sewing, and there is a famous case, the foundational case on Sexual Orientation where they fired a man. We would not be deciding a major policy question that was mind and iress think 64, and that congress has repeatedly to addresses then. Ms. Karlan 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. To language, you dealt with that very the parade of horribles, you dealt with that, and the third is the alito is bringing one up as it comes out of the briefs. As i read it, i would put it in these terms. Saysne a statute that policeman da da da must pay , damages. Past along time ago. That doesnt apply to german policemen. Is the same. German policemen are policeman, but the statute doesnt apply to that. How do we know . We know through a lot of history, ok . That is the box in which i put the argument that Justice Alito made. Timergument is that at the , congress would not have dreamt of this, and therefore, the meant to exclude the gaze and transgendr. The gays and transgender. What i need to hear is a clear answer to that question. Ms. Karlan i think the way to think about this is to ask about , which isic behavior a mandates a man. Then ask, how does that fit within the language . It fits. Ms. Karlan im about to explain why it fits. Is the idea people should not be denied jobs there qualified to do. Awardwinning advocates for Child Services like bill buffett should not be denied a job because they have done something that, if they were a woman, woman would not cause any 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. Now all you have to do is say, those words apply to a woman who has a wife at home. Ok. 23 states have been passing laws to address these issues. Dont know how many of them, but i think it is a big part of them, when they do extend the coverage against discrimination on the basis of sex to Sexual Orientation, they also include an exemption for religious organizations. If we are going to be extending the understanding of what sex encompasses any i know your argument, how do we address that concern . Then at least, i think almost every state legislature that is extended it has felt compelled to address . Ms. Karlan i would say three things about that. The first is, this court has already created an exemption for sincere religious beliefs for a large category of an employers through the ministerial exception. The second is that Congress Balanced these issues and rebalanced them several time in the coreligious exemption. 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 objections to hire someone who is gay, they are free to do that. The fourth is to make it clear, 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 would be immoral for them and have no problem hiring gays and lesbians were qualified to do a job. I could ask the court to do one thing, thinking back to 1964. Is to look at the two foundational opinions. It would be asked the court to look at foundational opinions on which everybody has played a game of telephone ever since. Where is the idea that homosexuality wasnt covered coming from . The case of a black gay man who said he was treated worse than gay white men. It wasnt even a sexual discrimination case per 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 you would realize it was not until hinesly that any court did in interpretation and since then a majority of judges have held Sexual Orientation is a subset of sex discrimination. Justice breyer characterize what i said earlier, is that conceding Sexual Orientation discrimination for the words of title vii, but that we should take a broader view of what congress had in mind, but that was not the premise of my argument. Have in their briefs, all of these comparisons, and they will make your heads spin if you try to figure them all out. Let me go to your core one, which you began with today. A man is attracted to other men, he is fired, lets say. 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 . Ms. Karlan yes. Ok. 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 wa if you add in two other cases, a man who is attracted to women, none fired. A woman who was attracted to woman is fired, you have a much better idea of the basis of the discrimination, and it is Sexual Orientation, not sex. Ms. Karlan but into cases before this court where the employer already hired these men, the supposition in your question doesnt apply. We know this is an employer that is willing to hire men. Had all menemployer as sky diving instructors, so when he fires a man who wants to date a woman a man want a data man, and does not fire a woman who 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. Im not trying to to change that at all. If you fire the man who loves sewing and you dont fire the woman who loves sewing, that is sex discrimination, pure and simple. Thank you. Thank 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 discrimination and private 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. The core error in the Second Circuits holding is similar to the error that led the court to reverse another case. In that case, the fifth circuit held samesex harassment claims were categorically excluded from title vii. This court correctly reversed and held that such claims may be recognizable as long as all requirements 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 intoaround the inquiry 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 or partners, a standalone allegation of Sexual Orientation discrimination cannot without more show discriminatory treatment. Can i understand your argument in context . Lets answer the question. 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, i am not hiring you. Are we going to be trying to somehow parse that there is some sort of substantial legal difference between a belief that you are too effeminate, or that a lesbian is too macho, whichever, you are attracted to the other sex . Mr. Harris i dont disagree there will be tough cases at the margin, but the problem is the Second Circuit glossed over those hard questions and said we are going to adopt arent you glossing over the bfoq . It seems like you are confusing three concepts. Title vii has causation and injury. 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. Being a man attracted to another man is a sexual trait. It is caused by those two things. Arent then we moving to the third question, which is, is there a reason independent of your religious belief, or your innate hatred and discrimination for why you are treating this person differently . And if there is, you have a bfoq. 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. I dont understand why those are hard cases, any harder than what the law applies for race discrimination, religious discrimination, and any other forms, National Origin discrimination. Mr. Harris as this court has emphasized in cases, the bfoq exception has been interpreted narrowly. Courtimportant, the emphasized strict requirements. If the employer said, i dont hire women to work on platforms. The only people i hire are men. Obviously well, that would have been discriminatory against the women seeking jobs. But it is not the woman who beingng, it is the male harassed by other men, and the employer says, you cant compare what i am doing to someone who discriminates on the basis of sex, because i dont hire women at all . Mr. Harris it is not a complete 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. To answer your question, 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 we treated ann hopkins, i understand from your argument that would not be sex discrimination. Mr. Harris i disagree with that. The best way to think about Price Waterhouse is when an employer has certain traits or characteristics in values in promotions, hiring and discharge decisions, there cannot be a list of criteria for men and a list for women. In the hypothetical your honor said, there would be two sets of criteria, so maybe a man who doesnt meet the womens criteria and woman who doesnt meet the mens criteria would have a claim. But, it would not excuse it to say there are different criteria for each sex. Suppose a catholic, 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. Why . If there is a claim there, why isnt there here . In the race context i didnt say race. I said religion. Religion is defined as the only one other than pregnancy that has expansive definition. Yes, it would be religious discrimination. Between a couple that is catholic and jewish and two 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. Mr. Harris except that it also introduces an independent characteristic that can be neutral. And doesnt i am not against catholics or jews, i am against intermarriage. Mr. Harris if that person exists, i think it is foreign. Exists . 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. Mr. Harris i do think that most people who would oppose any sort of interreligious marriage would do so for religious reasons. I think what all of these hypotheticals are about is that in many of our cases, what you find is what you said, independent characteristics. They are all over cases. If you take manhunt. It was all about an independent characteristic, life expectancy. But we did not say, we are going into a different sort of analysis where we dont just say the same thing that happened to you if the same thing would happen to you if you were a woman, because we had an independent characteristic, which was life expectancy. So the same thing here. All of these hypotheticals are really 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, is you say, would the same thing have happened if you are of a different sex . Ms. 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. I guess it seems to come out against you. Mr. Harris 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 be charged different rates even though they were totally similar 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 big 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 is 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 . Mr. Harris here is the problem with the test. In manhart, in newport news, in martin marietta, the employer test makes perfect sense because you know exactly what you are testing for. It helps you draw inferences from the evidence. The problem here is, unless the plaintiffs can point to something outside the comparator to tell us why that is irrelevant, they are assuming their conclusion. Their comparator would say, you would ask if a gay man has suffered sex discrimination by comparing him to a heterosexual woman, which that version of comparator cannot isolate if it is the sex or the Sexual Orientation. Unless they can point to something outside the comparator to justify putting Sexual Orientation offlimits the comparator doesnt answer , the ultimate question. It may not isolate the sole or proximate cause, but the argument on the others is the language of the statute is a more generous causation standard. Perhaps there are two causal factors at work here, but is one sex in thethem narrow sense of biological gender . What is your response to that . Mr. Harris in what i am arguing is that simply Sexual Orientation standing alone is not, without more, sex discrimination. And so, the sorry, remind me of the question one more time. Sure. So, your response to Justice Kagan was, i need to focus on Sexual Orientation, because that is the primary causal factor here for the firing. I think the response from the other side is that the statute has a more 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 . Mr. Harris yes. What you are referring to is the motivating factor language. What i referred to as the benchmark scenario sex would not , be a motivating factor if you look at mr. Bostocks complaint and strip out any reference to his being a man, 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 employer truth serum and what said what were your true reasons for this . Would one of them be the characteristic . As i recall, sex would not be. 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 . Mr. Harris in common parlance, we would call that a samesex attraction. If there is some reason to think some of the amicus briefs say much discrimination against gay and lesbian people is based on the animus against gay man 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 of because of sex, and if so, how are we supposed to think about ordinary meaning in this case . Mr. Harris i dont see a difference between the two. The last point, running out of time to go back to some of the questions about bathrooms. I want to be clear, under the test, if you apply the manhart test, i dont see any way the singlesex bathrooms or showers you have to have someone who is injured. In the response to 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. Mr. Harris yes, your honor. 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. Here is the problem 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 the womens shower, it is a woman who is using a mans shower, because otherwise you are not looking at similarly situated people. The last thing i would like to get into this court in espinoza discussed states and in espinoza and interpreting National Origin discrimination, this court said the state practice interpreting parallel laws is highly instructive. Or 23nk the fact that 22 more states have done this by legislation and zero have done it by judicial interpretation. It shows it is not redundancy that sex and Sexual Orientation in 1964 and today are different concepts that mean Different Things and common users of the language both today and in 1964 would have recognized that. Can they ever be . Judge lynch said that homophobic stereotypes are unrelated to Sexual Orientation. The very first case before us shows that that is just not true. That homoSexual Orientation is highly correlated to peoples stereotypes. If you are too macho a woman, you are a lesbian. Happens all the time. I find it somewhat difficult to unwind the two, if not difficult, nearly impossible. Mr. Harris it often is. It is a sad reality homophobic slurs are often directed at heterosexual or homosexual people. That is ok, under your theory. Mr. Harris it is absolutely not if that person can show discrimination because of sex. What the courts cannot do is what the Second Circuit did the opinion is instructive and tells juries if they find sexual discrimination, they have found sex discrimination. I dont disagree that 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. This is the very 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 . Mr. Harris that would not discrimination on the basis of sex. 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 viirelated statutes, since unanimous interpretation by the courts and executive branch that existed for decades. Congress has extended other statues that deal with Sexual Orientation but refused to do to so with respect to title vii. The employees position would nullify that choice. Justice gorsuch, if i could first address your question about my friend on the others arguing about the literal meaning of the statute. There are essentially 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 that mans sex is a butfor cause for his firing. But he is not injured. Mr. Francisco he is fired, your honor, in my hypothetical. I think counsel acknowledged all of that. Mr. Francisco the reason that is permitted to do that is because you are treating this is my second point you are treating him the same as a similarly situated woman, a woman who uses the mens room. That is always the critical analysis when you are trying to determine if somebody is being discriminated against. Let me give you a not hypothetical case. An airline hires only women as cabin attendants, but it fires them if they marry. The airlines 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. Mr. Francisco no, your honor, because the problem is that the prohibition on hiring male flight attendants would in and of itself title vii. But the mail is not complaining. It is the woman who was fired because she was married. The male complainant might have a very good case, but my case is the woman. Mr. Francisco my problem with 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, then 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 in violation of title vii because you are treating similarly situated people differently. To finish my answer that is an impossible idea to put into practice, by taking out the sex. May i continue with this . Is notothetical hypothetical. It was against united airlines, and it was given, not challenge that they didnt hire men as cabinet attendance. But they fired this woman because shemarried wouldnt be attracted 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 wasnt 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. Mr. Francisco your honor, i do think that the question is always, are you treating similarly situated men and women differently . There are times where 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 and males are complaining. Mr. Francisco 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 this court resolved that decision was it said all right that case never came to this court. I guess i am thinking of the wrong case. Your secondback to part of the Opening Statement . 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 ms. 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 soul 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 . Mr. Francisco because i think 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 precisely 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 sex . Mr. Francisco a couple of responses. First, i dont think one contributors to the cause of sex. As long as youre treating gay men and women exactly the same in regards to sex. Two, i think it reflects the fact that sex and Sexual Orientation are different traits. If you do the analysis the way my friends on the other side suggested, you completely eliminated the distinction between different traits and nullified congress careful decision in other statutes to protect Sexual Orientation and gender identities. Is there anything in this record showing that the employers would not employee lesbian women . Mr. Francisco your honor, 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. Does this the 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. Five minutes, 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, 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. Of course, you can do it, but all you need to do is show that sex played a role. If a woman 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 did they know the Sexual Orientation . Because somebody who interviews the candidates tells them that. So this is saturday night live, pat. There is a person named pat you cannot tell if pat is a man or a woman. Theoretically, that person may be out there, but here is the key, the cases that are brought are almost always brought by someone who says, my employer knew who i was and 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. It is important to understand and this goes back to something that Justice 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 brief, they would tell you that if you looked in the dictionary, there is no phrase, Sexual Orientation. That is a modern way of combining two forms of discrimination. Discrimination against gay men, which goes back to leviticus and the common law and discrimination 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. The case is submitted. The Supreme Court oral argument took place last october. Earlier today the High Court Ruled that if an employer fires an employee for being gay or transgender, it violates the Civil Rights Act, which protects people from employer discrimination. The decision was 63. With the federal government at work in d. C. And throughout the country, use the congressional directory for Contact Information for members of congress, governors, and federal agencies. Order your copy online today at cspan. Org. Today the Senate Continues work on a public lands package that would provide permanent funding for the land and Water Conservation fund. It will also establish a fund for parks and other public lands. And this week, executive judicial nominations. Off the floor, negotiations continue on a motion to meet with the house on fisa reauthorization and Police Reform legislation. Follow the senate live on cspan two. And the house is not in session, but members continue work off the floor on Police Reform legislation. The house returns june 25. You can watch the house live on cspan. Federal reserve chair Jerome Powell will testify on Monetary Policy and the economy before the senate banking, housing, and urban affairs committee. Live coverage begins tuesday on cspan. What do you think we can do about that . With Police Reform, protests, and coronavirus continuing to affect the country, watch our live unfiltered coverage of the government response, with briefings from the white house, congress, governors, and mayors from around the country, and from the campaign 2020 trail. Join the conversation every day on washington journal and if you miss any live coverage, watch anytime on demand at cspan. Org or listen on the go with the free cspan radio app. Earlier today, Congressional Black Caucus chair karen bass discussed legislation to address Police Violence and racial profiling after the death of george floyd. Speaking at an event hosted by the Washington Post, this runs half an hour. Good afternoon. Welcome to Washington Post live. Congresswoman karen bass of california is the chair of the Congressional Black Caucus and in thate,