Harris 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. First, firing her for failing to conform to explicitly stated stereotypes about how men and women should behave. It discriminated against her in the same way as Price Waterhouse discriminated against anne hopkins for failing to walk and talk more feminine. It cannot be that anne hopkins would lose her case on the same facts. Second, harris fired her for identifying as a woman only because she was assigned male sex at birth. In doing so, they fired her for contravening a sex specific expectation that applies only to people assigned male sex at birth. Namely, that they live and identify as a man for their entire lives. That is disparate treatment on the basis of sex. Third, harris homes fired her for, and its owner words changing her sex. , that is discrimination in the same way firing someone for changing their religion would be religious discrimination. That harris homes would fire both transgender men for being insufficiently feminine and transgender women for being insufficiently masculine, is as the government concedes, two acts of sex discrimination. None of these arguments asked the court to redefine or update sex. They assume argument sex means at a minimum, sex assigned at birth based on physical anatomy or biological sex. I understand that is the argument, and believe it is the same as in the prior case. Does that argument hold up when you get to specific work requirements . In other words, if the objection of a transgender man transitioning to a woman is that he should be allowed to use the womens bathroom, how do you analyze that . I understand how you analyze status and maybe that is hiring and firing on the bases, treating it on the basis of sex. When you get to specific policies, does that hold true . How you answer this case will not resolve how you answer that case. Whether you will against us or for us, the next case will arise. A dress code that distinguishes on the basis of sex obviously is because of sex. The question then, is, does it impose a discriminatory term and condition . To differentiate and he the way that injuries. Chief Justice Roberts i think you are missing my point because it was not carefully expressed. Can the claim be i understand you are dealing with transgender status and you cannot discriminate on the basis of status, but when you get to the actual policy, do you analyze it as discrimination on the basis of sex carrying forward your reasoning at the outset, or on the basis of transgender status . If the objection of the transgender individual is i want to use a bathroom consistent with my gender identity, you analyze it as the effecting based on the transgender status or on the basis of biological sex . Our argument rests on biological sex. What is more accurately referred to as sex assigned at birth. This case asks whether when someone fires someone because they are transgender or because they failed to conform to stereotypes, is that because of sex . Obviously, a sex specific restroom policy is because of sex. We are not answering that question. Chief Justice Roberts it is because of sex . If you analyze it because of sex, there is no disadvantage whether you are a man or a woman, but if you analyze it on the basis of transgender status, there is because you want to use the womens restroom, and you are biologically male. When it is analyzed on the basis of sex, there is no problem. When it is analyzed on the basis of transgender status, it presents a whole different case. Mr. Cole i do not think so. Anybody can challenge a sex specific rule. A transgender person can challenge a sex specific rule. A nontransgender person can challenge a sex specific rule. What this court said is, to decide whether something discriminates that refers to sex , you have to ask not just whether it differentiates, but whether it differentiates in a way that injures. U. S. , would a reasonable person in the plaintiffs position experience a significant or trivial harm . That is the question i posed earlier, and we went around the tree a bit, but ultimately came to a submission that a reasonable person in the transgender position would be harmed if he or she were fired for failing to follow the bathroom rules, or some dress code that is not otherwise objectionable along the lines that were present in the facts of this case were men and women had traditional options available to them. Is that your answer . That is my answer. Lets say we have a sex specific dress code, and you require me or you to follow the male dress code. In most instances, that will not be a significant harm. It will be a trivial harm. Therefore it is not discrimination, even though discriminates on the basis of sex. But if you ask you or me to dress as a woman, we would consider that a significant harm. When we ask a transgender person to dress in a way that is contrary to their gender identity, you have imposed a significant harm. The harm is because of sex. Ased on biological sex, chief roberts mr. Cole, lets not avoid the difficult issue. Ok . You have a transgender person who rightly is identifying as a woman and wants to use the womens bathroom. Not a moral choice. This is right this is what they identify with. Their need is genuine. I am accepting all of that. They want to use the womans bathroom, but there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That is why we have different bathrooms. So the hard question is, how do we deal with that . And what in the law will guide judges in balancing those things . That is really what i think the question is about. Mr. Cole that is not the question in this case. Justice sotomayor once we decide the case in your favor, then that question is inevitable. It may not be if there are singlesex bathrooms, there might be one answer, meaning, what harm would other women feel if a man is using a singlesex bathroom . It might be another if it is two locker rooms. Girls and boys. Who walks in is something you cannot control. That is what the question is. Mr. Cole the reason deciding this case will not decide that case even if you were against us, that case can arise because it is a sex specific rule, and anyone affected by a sex specific role can argue it is discriminates against them because a reasonable person in their shoes would experience significant harm. I understood you to say that if your client had been fired for using the womens bathroom, that would be a violation of title vii. Mr. Cole in our view, if we were litigating that case, which we are not, the restroom was a hypothetical and not a reason why she was fired, but were we litigating that case, the question would be not whether the policy was because of sex, which is the question here, because obviously the restroom is because of sex, does imposing that policy which is because of sex impose a discriminatory injury on the individual . If you require me to go to the womens restroom Justice Kagan you are saying if we are stuck with that question regardless. Chief Justice Roberts part of the argument is the term sex includes Sexual Orientation. And if that is the case, if we analyze the bathroom case on the basis of biological sex, maybe you have one answer, but if you analyze it in terms of transgender status, you have a different answer. Men and women who identify with their biological sex are not disadvantaged whether they use the men were the mens room, they can use their own restroom. The issue is different if you are dealing with transgender individual who wants to use the restroom of their gender identity, contrary to their biological sex. The question is, how do you analyze that . Do you analyze it on the basis of biological sex, or are you analyzing it on a different basis because they present different issues . Mr. Cole for purposes of this case, we are arguing that title viis references to sex includes what you are calling biological sex you can go further than that. For purposes of the next case. All that you are saying, yes, because of sex means biological sex. Regardless of whether the transgendered person or whether a nontransgendered person brings this claim about the restroom. Mr. Cole then it is an easy case because if it is biological sex, there is no problem because there is no disadvantage. If you are looking at transgender status, there is a huge problem because it is not biological discrimination. The claim will be different. Certainly, a transgender individual can bring a claim under title vii, but if the claim is discrimination against me because i a transgender a transgender individual, that is not your claim. The claim here is that harris homes is treating Aimee Stephens differently because of her sex assigned at birth. If she had a female sex assigned at birth, she would not be fired. That is discrimination because of sex. That does not decide the bathroom question because the bathroom question there is no doubt that a separate sex bathroom is because of sex. Because of biological sex. Because of biological sex. The question then is, does it impose a trivial burden as the court said, or a significant burden . Burlington northern said the ame rule can impose significant burden on some people and a trivial one to others. A schedule change might be trivial for a worker with no kids. I imagine you would say that excluding a transgender woman from the womens bathroom would be far more than a diminutive burden on that person. Let me move beyond bathroom to another example. It is not before us, but it will be coming. A transgender woman is not permitted to compete on a Womens College sports team. Is that discrimination on the basis of sex in violation of title ix . Mr. Cole title ix is a different statute that permits teams where competitive skill or Contact Sports are involved. Justice ginsburg this is a question of someone who transitioned from male to female and wants to play on the female team. She is not questioning separate malefemale teams, but she was born a man, she transitioned. She wants to play on the female team. Does it violate title ix, which prohibits genderbased discrimination . Mr. Cole i think the question would not be affected by the way the Court Decides this case because the question would be, is it permissible to have sex segregated teams, yes, where they involve competitive skill or Contact Sports. The question would be, how do you apply that permissible sex segregation to a transgender individual . It may be that because title ix recognizes concerns about competitive skill that it is permissible are not permissible, but this case just asks, when you fire somebody because you say he was going to represent himself as a man because she was using her name, amy, and that is not permissible because he is a man, is that sex discrimination . Yes, that is sex discrimination. Whether we have a policy that permits sex segregation, how that applies to transgender people is a different question. It is not answered one way or the other by this case. Youd still have to ask, is it fair to keep that person off the team just like it is fair to keep a man off the team . The stereotypes in this case are every bit as strong as they were in Price Waterhouse. In fact, they are stronger because in Price Waterhouse you had to infer from discussions nondecisionmakers were making about why anne hopkins was fired. And theabsolutely clear government concedes that transgender people are not excluded from the statute. It is not like the German Police officer. Transgendered people can bring a six discriminant sex discrimination claim. She was fired for failing to stairs sexbased stereotypes. Employ sexk to stereotypes against an employee ifil they become trip they become transgender. It is the ultimate stereotype. It is saying, i object to you because you failed to conform to this stereotype. If you are assigned a male sex at birth, you must live your entire life as a man. That is a true generalization for most of us. It is also true for 1. 5 million transgender americans. To say we will fire you because you fail to a generalization about how people who are assigned particular sex based on visible anatomy at birth have to live their lives is sex discrimination. She was clearly treated differently because of her sex assigned at birth. Imagine an employer had six amys and said, i want to know what your sex assigned at birth was . Five say i was female, and one says male, and he fires the one who says i was assigned male. Obviously that person is fired because of her sex assigned at birth. As we saw from the prior argument, it is not the only justification, is only one justification. The notion that somehow discriminating against someone because they are transgender is not discrimination because of their sex, it falls apart because to say i am discriminating against you because you are transgender is to say i am cheating you differently from other people who have the same gender identity because of your sex assigned at birth. We are not asking you to update the statute, or redefine sex, we accept the narrowest definition of sex, and arguing that you cannot understand what harris here without treating her differently because of her sex assigned at birth. There seems to be dispute as to what the basis of the firing was. Whether it was a violation of the dress code particularly, or whether it was broader than that, being transgender. What should we make of that dispute . Mr. Cole the fifth circuit expressly said reasons for firing her extended beyond the dress code. Counsel for harris homes conceded in the that she would Second Circuit have been fired if she showed up as a woman even if she was following the dress code. That is an appendix 66a. He fired her after he got a letter saying i am coming out as a woman and will heretofore be called amy. Without any discussion of the dress code whatsoever. Your argument does not turn on that. As i understand it, if the firing had been solely what the Employer Claims the basis on dress code only, the result is the same. I would like you to have a chance to respond to judge lynch and his thoughtful dissent in which he lamented everything you have for us, but suggested something as drastic a change in this country as bathrooms in every place of employment and dress codes in every place of employment that are otherwise genderneutral would be changed. That is essentially a legislative decision. Judge lynch is a thoughtful judge and wrote a thoughtful opinion that he probably regretted having to write. What do you say to him . Mr. Cole recognizing transgender people have a right to exist in the workplace and not be turned away because of who they are does not and dress end dress codes or restrooms. There are transgender lawyers Justice Gorsuch the question is a matter of the judicial role in modesty, in interpreting statutes that are old. That is the question he posed. Nobody is questioning, and he certainly did not the legitimacy of the claims. Nd the importance of them it is a matter of judicial interpretation. Mr. Cole two answers, on interpretation, we are not asking you to apply any meaning of sex other than the one everybody agrees on as of 1964, which is sex assigned at birth or biological sex. Justice gorsuch i will give you one more shot. When a case is close, really close, on evidence, and i assume for the moment it is close we are not talking the extra textual stuff, a judge finds it close. At the end of the day, should he or she take into consideration a massive social upheaval and the possibility that congress did not think about it . It is a question of judicial modesty. Mr. Cole federal courts of appeals have been recognizing discrimination and danced transgender people is sex discrimination for 20 years. There are transgender male lawyers following the dress code and going to the mens room, and the courts dress code and sex segregated dress code have not fallen. For 20 not seen that years, there is no reason to see that, transgender people follow the rules associated with their gender identity and it is not disruptive. As whether this was a question of interpretation, it is, how can a court interpret title vii to say ann hopkins cannot be fired, but my client can be fired for being insufficiently masculine . There is no textual basis for drawing that distinction, whatsoever. Our argument is on text meaning at a minimum, sex assigned at birth for biological sex, and everybody agreed. Justice gorsuch do you want to address judge lynchs comments or not . Segregated have sex dress codes. It is not asking you to address a policy question that would be more appropriate for congress, but asking you to interpret the statute as written, and as everybody agrees it applies to sex assigned at birth. Thank you. Chief Justice Roberts thank you, counsel. Thank you, mr. Chief justice. May it please the court. Treating women and men equally does not mean employers have to treat men as women. That is because sex and transgender status are independent concepts. In the context of this case, title vii gives john ross the ability to consider how a sex specific dress code would affect employees and clients. But the sixth circuit imposed , any restriction. Its holding destroys all , whiles and even bfoqs undermining the protections that title vii provides. If you accept it at face value, the funeral home wins. My friend includes transgender status and two status. The butfor test would mean a womens overnight shelter must hire a man who identifies as a woman to serve as a counselor to women who have been raped, trafficked, and abused, and also share restroom, shower and locker room facilities with them. That is because, the man would be allowed to hold that job and use those facilities. That is because, the man would be allowed to hold that job and use those facilities. The simple test does not get to the ultimate inquiry whether men are being treated less favorably than women because of sex. That does not reflect the legal meaning of the statute promoting womens equality. Under my friends stereotyping logic it is illegal stereotyping to apply sex specific policies based on biological sex, and that is why he is wrong to say this is not about showers and sports. Every one of those is impacted if you are talking about a sex specific policy. Title vii says sexbased ifferentiation is not the same as sex discrimination. That is why this court policy does not violate title vii. Congress has added classification to cover transgender status in other statutes, it has rejected a dozen proposals here. You made the parade of horribles argument. What you have heard as i have the response, that is not this case. Many things you are worried about would be taking care of by qualifications. They would be taking care of by the need to show harm and difference. And that there could be, i am not advocating it yes or no, the possibility of bringing into ases imperative harms. All of the things are open. If you say the lower court, this is not the lower court. We are deciding simply whether it falls under the words sex discrimination, and if it does, we are not saying there has been harm, whether there is omparative harm. That is what i have heard. What do you say to that . Mr. Bursch that is incorrect, because a biological male is refused there are serious injuries on the outside, this is not the case. We do not have to decide it, and i do not see why or how you can assume the answer and then build your argument on an answer that have not given. Mr. Bursch if stevens is right that you cant apply sex specific policy to those who identify for the opposite sex, you cannot apply the policy to anyone because that is self would be sex discrimination. In the off chance i feel we do not have to decide that atter in this case, have you other arguments that would favor your side . I know you do and we will hear hem. Mr. Bursch certainly. A man violating the dress code with a woman who follows the dress code is wrong. A man who violates the dress code with a woman we know this is wrong because if you were claiming transgender status discrimination rather than sex determination, you would compare eight transgender and nontransgender employee, which is what they do, which proves they are adding a different classification into the statute which congress has not added. I am just saying this is what i hear, if you are right, it does not fall within this statute. Any instance where people say, or many instances where they say i fathered this man because the woman because it is a mans job, it is ok as long as sometimes you fire a man because it is a womans job. What is your answer to that . Mr. Bursch there is no nonracist reason why you would fire an individual in an interracial marriage. I happen to know people, there are people in my life, i have heard say being jewish or catholic is fine, just do not get married. Mr. Bursch that is a religious reason. Does that mean it falls outside the statute . Mr. Bursch title vii allows you to recognize there are differences between women and men, and an employer switching back to the first case could terminate a samesex couple or employee married to a samesex partner because they are catholic and believe marriage is between one man and one woman, and sex does not have anything to do with it. Not if the employer is a christian. Justice sotomayor there are still religious exceptions written into a lot of statutes. Your example, women in a shelter who you say if we accept this argument will have to be guarded by transgender women. Isnt that where you cannot have sex specific guarding of prisoners unless they found it was. Should make men only guard men nd women only guard women. I am not sure i understand your parade of horribles. R. Bursch bfoq Justice Sotomayor they cannot wish it away. Mr. Bursch if you have a bfoq saying only a man can apply for this position, he would say a woman transgender is a man, and is eligible for that position, and no bfoq can keep them out of that position. Justice sotomayor they are saying if there is an independent reason why a man who is transgender cannot have a job hat a woman has, then that reason is good enough, you do not have to hire. If there is no reason why your gender should matter in the work you are doing, why should you ot be hired . That is a different proposition. Mr. Bursch assume for a moment the employer had a bfoq, and only winning counselors can stay overnight with abused women. Justice ginsburg bfoq is a very narrow category. Mr. Bursch their position is it a stereotyping not to treat a man who identifies as a woman as a woman. They are arguing but for the fact they were born as a man, they could take that womans position. There is no bfoq or religious requirement that would draw the line at the argument they are making. All distinctions are gone forever. There may be dual clauses, but sex under consideration narrowly construed is enough for the statute. Mr. Bursch it is entirely appropriate for a judge to draw that line, and the line that has to be drawn based on title vii. Justice kagan it is not quite right that women should be treated less deadly than men. It you are making title vii into a statute about groups. Title vii is not about groups. Mr. Bursch lets put those together. Say you have a woman who identifies as a man, working at an employer and get pregnant. They would be entitled to the pregnancy benefits as any other women at work because if they did not get it, that would be sexist. If a sex specific dress code, showers, restrooms, that would not be a violation because of their biological differences. No one is being treated differently. You can have an employee who might have a sex discrimination claim. Justice kagan maybe you answered mr. Gorsuchs question but you did not answer mine. Title vii is about individuals and whether individuals are being treated differently because of his or her sex. It is not a statute about the aggregate. Does this disadvantage, the statute uses the word individual twice and says there is a particular person being treated differently because of her sex. Here ms. Stevens was being treated to because of her sex. This was the judges point in that opinion. Saying it is as simple as looking at the statute, applying it to a particular individual which title vii insists you do and coming up with the obvious answer. If she had not been assigned at birth the sex that she was assigned at birth, she would have been treated differently. Mr. Bursch we agree with the ndividual treatment. Based on a male only workforce, he was being treated differently than a woman in his position would have been. If there are no women on the site, you do not have that comparison. All the employer does enforcing a dress code applied mutually to everyone recognizes there are differences between men and women. Justice kagan you pinning your answer on a dress code, would it be the same if there were no dress code . All your arguments in your brief, you keep talking in your brief as you do hear about the dress code, but the arguments that you make our arguments that would allow the employer to fire ms. Stevens for being transgender irrespective of whether there was a dress code. Mr. Bursch the arguments apply in both situations. If this court allows a sex specific dress code because it acknowledges differences between men and women, it is no different if the same policy is imposed on an informal basis. Women are not being treated worse than men. It does not treat her it does not treat men worse than women. Sex specific policies ignore there are differences. A sex specific dress code in place are not, some jurisdictions have taken the latitude that title vii gives away from employers. You cannot treat someone differently based on their personal appearance. When it comes to dress codes, opposite sex facilities, everyone would understand title vii at the time of its enactment as those things being equal treatment. The problem is under the theory, the federal agency that brought this claim changed the law and added a transgender classification, applied it to a business retroactively. Everything he said this morning, sex itself is a stereotype. You can never treat a man who identifies as a one differently. To do that is sex iscrimination. On the restroom scenario, general identity is a broad concept. You could have a man who looks like a man showing up in the locker room, and the employer could not do anything about it. But for the fact he was a man, he could be there. Chief Justice Roberts thank you, counsel. Mr. Chief justice, may it please the court. I would like to make three points aimed at easily addressing Justice Gorsuchs comment. I would like to respectfully argue that i think it is not that closed. Chief Justice Roberts neither side ever thinks that. The first is the one i was talking about earlier, sex and gender identity are different raits. They are defined with different definitions as my friend said, he agrees they are different traits, and there is a reason why when Congress Wants to prohibit discrimination based on the traits of Sexual Orientation and gender identity it lists them separately. Congress has recognized there are different traits you treat men and women with the different raits exactly the same regardless of their sex, you are not discriminating against them because of their sex. The related textual issue is that the standard for determining why youre discriminating against someone because she is a woman is that you are treating a person differently from a similar person of the opposite sex and taking adverse employment action against them as a result. The threshold question is are they actually similarly situated. My friends on the other side assert a transgender man is similarly situated just like they assert a gay woman is similar to a straight man. That is manifestly not true, ecause with respect to the transgender issue, the difference between a transgender man is that one identifies with his biological sex and the other identifies with the opposite biological sex. That is a meaningful difference not grounded in stereotypes but n the difference between a transgender man. Likewise with Sexual Orientation, the difference between a gay man and a straight woman is Sexual Orientation, that has nothing to do with area types or whether one is better or worse. The arguments here could be cast as stereotypes, right . That case does not conform to male or female stereotypes. You accept that argument. Those are good claims. If that is the case, what is the difference between the sides . It seems smaller the than at my first appear. Mr. Francisco the place that stereotypes come up whether two people are similarly situated, and an aggressive man is similarly situated as an aggressive woman. They have the same trait, aggressiveness, and only difference is the stereo typical view that women should not be aggressive. But a transgender man does not same the same trait in the first place because one identifies with his biological sex, and other identifies with the opposite of biological sex. That is not grounded in any stereotype, and a gay man is not similarly situated as a straight woman. Justice kagan one could argue there is another trait in Price Waterhouse, and that is conformity to traditional gender roles. Your argument suggests we should not look at the aggressive woman and aggressive man, we should instead say there is another thing that is conforming to generals, we should look at whether employers treat the same be aggressive woman and docile effeminate man. And if the employer treats the aggressive woman in the same way that the employer treats the effeminate man, they are both fired and the employer is off the hook. You say that is not right, that is double disc termination, and the employer is on the hook twice. It seems to me the same analysis applies, because there is an independent trait that is a little different from the independent trait here. Here the independent trait socalled that you say is the transgender identity, there it was to conform to gender roles. Mr. Francisco the reason i disagree with that analysis is because i do nothing Price Waterhouse created some what it prohibits is stereotypes that show you are treating similarly situated men and women differ lead. Justice ginsburg i feel like you answer the question that Price Waterhouse would not have prevailed if it had treated women who were not sufficiently macho as women who are feminine. Mr. Francisco i believe we set the opposite of that in our brief. Justice ginsburg that would be ok. Both cases rely on a stereotype. That the woman did not fit, that the man did not fit. Both cases say the object of title vii is to get to the entire spectrum of stereotypes. Mr. Francisco as we read Price Waterhouse which i have no quarrel with, if you treat an aggressive woman worse than and aggressive man, you are violating title vii because you are treating different people differently. Applying that here, if you treat a transgender man the same as you treat a transgender woman regardless of their sex, you are likewise not discriminating against them because of their sex. I do characterize one set of your arguments as trying to work with the language of the statute. On one hand, these are individuals, on the other the arguments that were made here. I am putting that to the ide. Then there are the horribles, and we discussed that at length. I am putting that to the side. Then there seems to be a third set in these briefs. Regardless of the first two, congress would not have dreamt of this when it passed the statute. I heard you say we are not relying on that. Is that so . Government is not relying on that . Mr. Francisco we are relying on that, if fortified our argument. We think it is strongly dispelled by the history of these statutes, and i want to ddress that. Here by updating it in the way my friends on the other side would have you updated, they are undermining the way in which congress has considered updating it. If you look at the employment nondiscrimination act, for early a decade, congress has considered expanding the scope of the liability provisions, it hasnt knowledged there are religious liberty issues at stake, and it wants to take those into account. They have come to similar compromises where they found peace among groups with different views. If you resolve this judicially, you are delivering and i hate to use these terms a complete victory to one side of the fight. You are upsetting that legislative balance. On the other side of what you are saying is the following, which is abstract. N the 60s, we were 10 years away from people who were discriminate against obtaining a degree of freedom. These statutes were all part of the Civil Rights Movement that was designed to give, include people who had been fully discredited against for the worst of reasons. At that time, this civil rights statute when it was passed would have put in the category gay people, transgender people, people who were suffering terrible discrimination. Over time this court has moved away from that view. Finding it unconstitutional. Doesnt argue that is a change, that is a change that both explains why they did not put it initially and explains why we should, other things being equal. Interpreted to include gay people and transgender people now. Mr. Francisco for a couple of reasons i would argue against that. I find it troubling for courts to take that approach. I think it deprives the people with the ability to struggle with those issues democratically. I think it is important when we have these kind of big changes that we actually convince one another that i think this is the right thing to do. No one ever thought Sexual Harassment was encompassed by this commission on the basis of sex back in 1964. It was not till book was written until the middle 1970 spring that out. And now we say, of course, harassing someone, subjecting to terms of conditions of implement she ould not encounter if she were a male, that is sexist disco nation. But it was not recognized as such in the beginning. And your honor, i think that is a straight forward application of title viis text. Respect to what i was talking about with Justice Breyer, where we were putting the text aside, i think it is important to allow that democratic processes to resolve these issues so we have a stable resolution of the issue. And one that takes into account what everybody would agree are legitimate interests on all sides. In obergafeld this court made clear that there were people had different views in respect to gay marriage print the legislator process is the process that allows those use to be respected, as well as very powerful views of my friend on he other side. Matt just ask, at what point does a court continue to permit invidious discrimination against groups that where we have a difference of opinion, we believe the language of the statute is clear. I think Justice Breyer was right, the title vii and the Civil Rights Act all of our acts were born from the desire to ensure we treated people equally and not on the basis of invidious reasons. We cannot tonight that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs oorly. Not because they cannot do whatever is required of a position. But merely because they are a suspect class to some eople. They may have power in some regions. But there still being beaten, they are still being ostracized from a certain things. At what point does the court say, congress spoke about this. The original congress who wrote this statute told us what they meant. They use clear words. And regardless of what others may have thought over time, it is very clear that what is happening fits those words. At what point we say, we have to step in. I guess my answer, your honor, would be at the point where Congress Addresses the issue. And the main argument we are making and have been making from beginning to end, is that congress has not resolved this issue because sex, gender identity, sex, Sexual Orientation are separate traits. These arent thoughtful responses youve given to the set of questions but in responding to Justice Breyer you said if we thought there was a clear application of the statute. I would ask you, if you thought this was a clear application of the statute, and the same way that Sexual Harassment was a clear application of the statute, even though nobody recognized it at the time, if you thought that this was a clear application of the statute, would we have to come out against you . Yes, your honor. If the statute is on a vegas leah against me, you have to rule against me. I think that the statute is anime grizzly in my favor. Unambiguously in my favor. For the reason that Justice Breyer alluded to, Justice Scalias light that we do not hide elephants and mouse halls. Everyone here agrees that Congress Never thought that by prohibiting this termination based on sex they would also be for having disco nation based on two different trait, Sexual Orientation and gender dentity. My friends would have this court reach the same result ndirectly. I think all of the textual arguments cut in our favor straightaway, but to the extent there is any doubt, theres no way to find that elephant in this mouse hole. Thank you, your honor. Thank you, counsel. Five minutes sir. Thank you. Interpreting a statute is not depriving the democratic process. It is doing what the court is supposed to do within the democratic process. Of course, if the democratic process disagrees with the courts interpretation of the statute, it can change. So theres note deprivation of the democratic process here. Secondly, the purpose of title vii, as this court to find it, was to make sex irrelevant to peoples ability to succeed at work. To make sex irrelevant to peoples ability to to succeed at work. When harris hopes fired Aimee Stephens because it learned about her sex assigned at birth being different from her gender identity, it did not make sex irrelevant to her ability to succeed at work. It made it determinative. Think about it this way, if Harris Holmes hired a man, because he was a man, that will be sex determination. If it fired and a plate because he was insufficiently and fired an employee because he was insufficient he masculine, that would clearly be sex determination. In this case Harris Holmes fired Aimee Stephens because he thought she is a man who was insufficient masculine. That, too, must be sex determination. She is not seeking any special protection. She is seeking an and all transgender people are seeking the same protection that everybody else gets under the law. This court 30 years ago said in Price Waterhouse, we are beyond the day when an employer could evaluate employees, by insisting that they match the stereotypes associated with their group. We are certainly beyond that date today as well. And what Harris Holmes did, was to insist that she match the stereotypes associated with her group. That is impermissible under this courts precedents. It is impermissible under the literal of the statute. Thank you council, the case s submitted. Cspans washington journal. Every day were taking your calls live on the air and the news of the day and we will discuss policy issues that impact you. Coming up tuesday morning, a Supreme Court reporter on the ling that lgbq workers are protected from job discrimination and the ongoing impact of the pandemic on the economy and u. S. Markets and Richard Blumenthal talks about stopping the spread of disinformation on social media nd former republican congressman bob barr discusses police and criminal justice reform. Watch live at 7 00 eastern tuesday morning. Be sure to join the discussion with your phone calls, facebook comments, Text Messages and tweets. Live tuesday on the cspan networks. Jerome powell testifies on Monetary Policy at a Senate Hearing at 10 00 a. M. On cspan. Use 30 a hearing on police of force. Guest include melvin carterened the chiefs of police of houston in durham North Carolina and buffalo grove. The Senate Returns for work to and de funding for parks public lands. A Senate Appropriations subcommittee hears from federal Communications Chair on the spectrum Options Program and at noon, a house armed services