G. R. Funeral homes versus the equal Employment Opportunity commission. Mr. Cole . Mr. Chief justice, may it please the court, Aimee Stephens is a transgender woman, a valued employee 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 in firing her for failing to conform to its owners explicitly stated stereotypes about how men and women should behave, it discriminated against her in the same way that Price Waterhouse discriminated against ann hopkins for failing to walk and talk more femininely. It cant be that ann hopkins would lose her case on the same facts were she transgender. Second, Harris Holmes fired her for identifying as a woman only because she was assigned a male sex at birth. In doing so, it fired her for controvening only people assigned a male sex at birth namely that they live as a male their entire lives. Second, fired for her its owners words, changing her sex. Thats the discrimination the same way for someone changing their religion would be religious discrimination. That Harris Holmes would fire both transgender men for being insufficiency feminine and transgender men for being insufficiently masculine, thats two acts, not a defense. One of these arguments asks the court to redefine or in the judges words update sex. They assume that sex means at a minimum, sex assigned at birth based on visible anatomy or biological sex. I understand thats the argument and i believe its the same as in the prior case, but does that argument hold up when you get to specific work requirements . In other words, if the objection of a transgender man transitioning to woman is that he should be allowed to use, he or she should be allowed to use the womens bathroom, now, how do you analyze that . I understand how you analyze status, as it were, and maybe thats hiring and firing on the basis, treating it just on the basis of sex, but when you get to specific policies, does that hold true . So, first of all, your honor, how you answer this case will not resolve how you answer that case. Whether you rule against us or for us, the next case will arrive in the following sense. A dress code that distinguishes on the basis of sex obviously is because of sex. The request he then is, does it impose a discriminatory term and condition. To discriminate is not only to differentiate, but. I think youre missing my point maybe because it wasnt carefully expressed. But its can the claim be i understand when you say youre dealing with transgender status and you cant discriminate on that basis with, on the basis of status, but when you get to the actual policy do you analyze it as discrimination on basis of sex, carrying forward your reasoning for at the outset . Or on the basis of transgender status . So if the objection of the transgender individual is that i want to use a bathroom consistent with my gender identity rather than biological sex, do you analyze it as affecting based on the transgender status for do you analyze it based on the basis of biological sex . So, i think our argument rests on biological sex or what we more accurately refer to as assigned at birth. This case asks whether when someone fires someone because theyre transgender or failed to conform to sex based stereotypes. Obviously, a sex specific restaurant policy is because of sex. So we are mae not answering that question. Its because of sex. And then the question if i could interrupt so i can follow, is it because of sex . If you analyze it because of sex, then, i think as has been pointed out theres no disadvantage whether youre 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 biologically male. When its analyzed on the basis of sex theres no problem, but when its on transgender status its a different case. Would a reasonable person in the place position experience a significant or trivial harm . Thats the question i posed earlier. Right. We went around the treat of it but ultimately came to i believe a submission that reasonable person in the transgender position would be harmed if he or she were fired for failing to follow the bathroom roles or some sort of dress code thats not otherwise objectionable, along the lines of present in the facts in this case were men and women had rather traditional options available to them. So is that your answer as well . That is my answer and here is why. Lets say we had a sex specific dress code and you require me or you to follow the mail dress code. Most instances thats not really a significant harbor thats going to be a trivial harm as the court talked about in burlington and, therefore, its not discrimination. If you ask you or me to dress as a woman, we would consider that a significant harm. When you ask a transgender person to dress in a way that is contrary to their sense of gender identity, you have imposed a significant harm, and the heart is because of based on biological sex as chief Justice Roberts said. Mr. Cole, lets not avoid the difficult issue, okay . You have a transgender person who rightly is a defined as a woman and wants to use the womens bedroom, rightly, wrongly, not a moral choice but this is what they identify with. Their need is genuine. Im accepting all of that and what to use the womens bathroom but there are other women who are made uncomfortable, and not merely uncomfortable, what it would feel intruded upon it some of you still had male characteristics walked into the bathroom. Thats why we have different bathrooms pics of the hard question is how do we deal with that . And what in the law will guide judges in balancing those things . Thats really what i think the question is about. That is a question, justice sotomayor. It is not the question in this case because mr. Cole, that, yes, once we decide the case in your favor, then that question is inevitable. No, i think even if and it may not be income if there singlesex bathrooms, there might be one answer, meaning what harm with the other women, reasonable women feel if a man is using a singlesex bathroom, might be another one answer, mean what harm with the other men and women, girls and boys and two walks in it something cant control. The recent side in this case will not decide that case is because, even if you will against us, that case can arise because it is a sex specific rule and 81 was affected by sex specific rule can argue that discriminate against them because of reasonable person in their shoes would experience significant harm. I i understood you to say, maybe i didnt understand you correctly, that if your client had been fired for using the womans bathroom, that would be a violation of title vii. What i said was, yes, in our view, where we litigating that case here, which we are not, they admitted the restroom was a hypothetical issue and not a reason why she was fired, but were we litigating the 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. The question would be, does imposing the restroom policy which is because of sex impose a discriminatory injury on an individual. If you require me to go to the womens restroom, thats a serious issue. What youre saying is were stuck with a question regardless of how we decide this case. Was the rule for or against us. But the difference is part of the argument is that the term sex includes Sexual Orientation. If that is the case, if we analyze the bathroom case purely on a basis of dialogical sex, maybe of one answer. But if you analyze it in terms of transgender status, you hae different answer because men and women who identify with their biological sex are not disadvantaged whether they use the mens room, you know, the each can use their own restroom. But the issue is quite different if you did with a transgender individual wants to use the restroom of their gender identity, contrary to the biological sex. The question is, how do you analyze that . You say in each case its on the basis of sex. You analyze it on the basis of biological sex or on a different basis because they present different issues . For purposes of this case on the argument is title viis reference to sex at least includes what youre calling biological sex, what we call speedy you can go for the love that. For purposes of next case all that includes a biological sex as well. All you are saying is yes, because of sex means because of biological sex, regardless of whether the transgender person or whether a nontransgendered person brings this claim about the restroom. That its an easy case, right, because of its just biological sex, theres a problem because theres the disadvantage. But if youre looking at transgender status, theres a huge problem because its not biological discrimination or the claim is going to be different. A transgendered individual can bring the claim under title vii that it discriminates on the basis of sex but if the claim is it discriminate against me because im a transgender individual, thats not the claim . The claim here is you are treating, the harris homes is treating Aimee Stephens stiffly because of her sex assigned at birth. Each at a funeral sex assigned at birth she would not be fired because she had a male sex assigned at birth, she is five. That is discrimination because of sex. That doesnt decide the bathroom question because the bathroom question, no doubt, a separate sex bathrooms are because of sex. Because of biological sex. Because of biological sex,s you use. The question then is doesnt imposing de minimis burden as the corset and Burlington Northern or does that it was a significant burden. The court said the same role can oppose us and it can to some people and a tree to burn as to others. A schedule change might be trivial a worker with no kids, but it worked with kids it would be significant. I imagine you would say that excluding a transgender woman from the womans bathroom would be far more than a tremendous burden on that on the person be move out of that. Exactly. Let me move the on the bathroom to another example, and the stuffy force but it will be, one. A transgender woman is not permitted to compete on a Womens College sports team. Set discrimination on the basis of sex in violation of title ix . Hartline is different statute with regulations that explicitly permit sex segregated teams when competitive skill or Contact Sports are involved. This is a question of someone who has transitioned from male to female and wants to play on the female team. Shes not questioning separate female male teams. But she was born a man. She has transitioned. She wants to play on the female team. Does it violate title ix which prohibits genderbased discrimination . Right. I think the question again would not be affected even by the way that the court decided this case because the question would be, is it permissible to have sex segregated teams . Yes, where they involve competitive skill or Contact Sports. And then 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 in Contact Sports, that its permissible. It may be its not permissible. This case just asks, when you fire somebody based, because he is going to represent himself as a man, because she was using the name amy and thats the permissible because hes a mentor is at sex discrimination . Yes. Rather, women have a policy that permits sex segregation, how that applies to transgender people is just a different question. It is not answered one way or the other by this case. You would select ask is it fair to keep that person off the team just like its fair to keep a man off of that team . The stereotypes in this case are very bit as strong as they were in Price Waterhouse. In fact, they are stronger because in Price Waterhouse you had to infer from statements that nondecisionmakers were making about why ann hopkins was fired. Here, mr. Rost has made it sex stereotypes absolutely clear and the government and petitioner concedes that transgender people are not excluded from the statute. Its not like the German Police officer. They concede, transgender people can bring sex discrimination claims. She has brought a sex discrimination claim because she was fired for failing to conform to sexbased stereotypes, explicitly stated by her employer. That cant be. Ann hopkins would lose her case where she transgender. Its not okay to employ sex stereotypes against an employee until that employee becomes transgender. At the end of the day the objection to someone for being transgender is the ultimate sex stereotype. It is saying, i object you because you failed to conform to this stereotype. The stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man. That is a true generalization for most of us but it is not true for 1. 5 million transgender americans. To say were going to fire you because you fail to accord to a generalization about how people who are assigned a particular sex based on visible anatomy at birth have to live their lives for the rest of their lives is sex discrimination. Its also sex discrimination because she was clearly treated differently because of her sex assigned at birth. Imagine an employer who had six aimees and you invited all six aimees in and you said, i just want to know what you sex assigned at birth was. Five of them say i was assigned email at birth. And once as i was assigned male at birth. Then he fires the when he says i was assigned male at birth. That person is five because of her sex assigned at birth. As we saw from the prior argument at need not be the only justification. It neednt be only one justification. The notion somewhat discriminated against them because they are transgender is not discrimination, discriminating against them because of their sex i think falls apart because to say im discriminating against you because you are transgender is say i am treating you differently from other people who have the same gender identity, because of your sex assigned at birth. Were not asking that you update the statute. Were not asking that you redefine sex. We are accepting the narrowest, for purposes of this case, the narrowest definition of sex and arguing you cant understand what harris homes did hear without it treating her differently because of her sex assigned at birth. There seems to be this dispute among the parties as to what the basis of the firing was, whether the basis was the violation of a dress code, particularly, or whether it was broader than that, was being transgender. What should we make of that dispute . The sixth circuit expressly said that the reasons for firing her extended beyond the dress code. Counsel for harris homes conceded at oral argument in the Second Circuit that she would have been fired if she showed up as a woman, even if she were following the dress code. Thats in petitioners appendix 66 a a from the sixth circuit decision. He fired her after he got the letter saying i am coming out as a woman and im going heretofore be called aimee without any discussion of the dress code whatsoever. This is a case your argument though doesnt turn on that. As i understand again if it had been sold with employer claims, basis of the dress code only result would be the same. I guess im just like you have a chance to respond to judge lynch in his thoughtful dissent in which he lamented everything you have before us, but suggested something as drastic as a change in this country as bathrooms in every place of employment and dress codes in every place of employment that otherwise genderneutral would be changed, that thats an essentially legislative decision. Judge lynch is a very thoughtful judge and wrote a very thoughtful opinion that i think he probably regretted having to write. What do you say to him . I say that recognizing that transgender people have a right to exist in the workplace and not be turned away because of who they are does not and dress codes or restrooms. There are transgender lawyers in this courtroom of course there are thats not the question. The question is a matter of the judicial role and marcy interpreting statutes that are old. Thats the question he posed. Right. Nobody is questioning, and he certainly did not, the legitimacy of the claims and the importance of them. The question is about judicial interpretation. If you wish to address it. Two answers. First on the question of judicial interpretation, we are not asking you to plug any meaning of sex other than the one that everybody agrees on as of 1954, which is which is sex assigned at birth or as he put it, biological sex. We are not asking to rewrite it. I agree with that. The question though again, and im sorry to post it, im going to give you one more shot. When a case is really close, really close, a potential evidence, and isil for the moment, im with you on potential evidence. Its close, okay . Were not talking about extra textual stuff. At the end of the day should he or she take into consideration the massive social upheaval that would be entailed in such a decision and the possibility that congress didnt think about it and that, that is more effective, appropriate legislative rather than a judicial function . Its a question of judicial modesty. First of all, federal courts of appeals of the recognizing discrimination against transgender people sex discrimination for 20 years. There are transgender male lawyers in this courtroom following the male dress code and going to the mens room, and the courts dress code and sex segregated restrooms have not fallen. The notion some of this is going to be issued a people, we havent seen that for 20 years. Those no reason you would see that. Transgender people follow the rules at the socially with her gender identity. Its not disruptive. As to whether this is a question of interpretation, it is absolutely question of interpretation. How when the world can the court interpreted title vii to say that ann hopkins cant be fired for being insufficiently feminine, but my client can be fired for being insufficiently masculine . There is no textual basis for drawing that distinction whatsoever. Thats because our argument rests on text meeting, at a minimum, sex assigned at birth or biological sex, and everybody agrees did you want to address judge lynch his arguments were or no . I thought it was. Number one, its not disruptive that transgender people exist in this world. Number two, its not asking you to address a policy question that would be more appropriate to congress but asking you to interpret the statute as it is written and is everybody agrees that applies to sex assigned at birth. Thank you. Thank you, counsel. Mr. Bursch. Thank you, mr. Chief justice, and may it please the court. Treating women and men equally does that mean employers have to treat men as women. That is because sex and transgender status are independent concepts. In the concept of this case, title vii gets tom rost even to consider how enforcement of a sex specific dress code would impact all his employees and greeting clients. The sixth circuit imposed a new restriction and its holding destroys all sex specific policies and even bfoqs while undermining the protections that title vii provides. If you accept at face value the concession that sex means biological males and females, then the funeral home wins. My friend mr. Cole redefine sex to include transgender status in two respects. First, his but for tests would mean a womans overnight shelter must hire a man identifies as a woman to serve as a counselor to win the event rate, traffic ad abuse and also share restroom, shall unlock from sofas with them. That is because but for the man fix it be allowed to hold that job and use the facilities. The simple test does not get to the ultimate inquiry of whether men are being treated less favorably than similar situate a women because of sex. That does not reflect the original public and legal meaning of the statute promoting womens equality. Second, under his stereotypy logic it is always illegal stereotyping to apply sex specific policies based on biological sex. Thats why hes wrong to say this case isnt about showers and overnight facilities and sports. Every single one of those is impacted if youre talking about a sex specific policy. What title vii says is that sexbased differentiation is not the same as sex discrimination. Thats why ms. Carlin agreed his court sex specific dress policy doesnt violate title vii. Though congress has added classifications to cover transgender status in other statutes, it is rejected more than a dozen proposals here. The first part, youve made the argument which i call the parade of horrible arguments, but youve heard as i have for the last court half, the response, which is that is in this case, that many of the things that you worried about would be taken care of by bona fide occupational qualification, that other of those things would be taken care of by the need to show harm as well as to show the difference, and that there could be, that we havent done it and im not advocating it yes or no, the possibility of bringing into such cases compared up arms. All those things are open. If you say the lower court decided them, this is not the lower court. I take it that we are deciding simply whether it falls within the words sex discrimination and, if it does, we are not saying that there hasnt been harm, whether there has been a bfoq, whether there is comparative harm, et cetera. Thats what ive heard. Now, what do you say to that . Justice breyer, that is incorrect because when a biological male is refused access to the womens restroom, the male would say that was in injury. There is no bfoq. The other side would say im sorry but their serious injuries on the other side. And, therefore, it is a bfoq. Okay . This is not that case. We do not have to decide it and i dont see why or how you can assume the answer and then build your argument on an answer that i certainly havent given. Its their answer, and heres why. If stevens is right you cannot apply a sitespecific policy to those identified as the opposite sex, and you cannot apply the policy to anyone because that itself would be sex discrimination. Just on the off chance i i t we do not have to decide that matter in this case, have you other arguments that would favor your side . I know you do and i would just at some point want to read them. Certainly. They are compared as a man violating the dress code with a woman who follows the dress code. That is wrong. Our compared to his native islands the dress code with a woman who violate the dress code. Code. The reason we know theres is wrong because if youre climbing transgender status discrimination, you would compare a transgender any nontransgender employee which is exactly what they do which proves theyre adding a different classification classification into the statute that congress has not added. And what they say is the reason we know you are wrong, not saying this, nor am i sending any other person thinks this, im just saying that this is what i hear, that if you are right, then miscegenation does not fall within the statute, that jews marrying catholics does not fall within the statute, that in instance what people say are many instances where they say i fired this man because he wasnt i fired the one because its a mans job, its okay as long as sometimes you would fire a man because its a womens job. You see the point. I do. What is your answer to that . There is no nonracist reasons why you would fire the employee in the interracial marriage. There is no speedy there isnt . I happen to know people. I wont say who they are but there are people in my life i have heard say being jewish is fine, being catholic is fine, just dont get married. But thats a religious reason. Right. I mean, does that mean it falls outside the statute that forbids discrimination because of religion . Yes. Because title vii allows you to recognize that our differences between women and men and that an applicable switching back to the first case, to terminate a samesex couple or an employee who is married to a samesex partner may be because their catholic and believe marriage is only between one man and one woman, and sex does that anything to do with it. Theres a ministerial exception that already exist. No. I ministerial exception if the importance of church but not if the employer is a christian businessman like mr. Ross. But there are still religious exceptions that the court has ready to a lot of statutes. Putting that aside, your example, very powerful, women in the shelter who you say, if we accept this argument, will have to be guarded by or counseled a transgendered woman, but isnt that exactly like the hard dont hard . You cant have sex specific guarding of prisoners unless you have bfoq dothard. There they found that it was a bfoq to make only men guard men and women only god women. Im not quite sure i understand your parade of portables. Because under his three bfoqs have to go, too. So if you have bfoq that says but its such a quicker they wish it away but go ahead. If you have a bfoq that says only a man can apply for this position, he would say that a woman who is transgender is a man and, therefore, is eligible for the position, and no bfoq in the world would be able to keep them out of that position. The problem is there adequate transgender classification classification to a statute where congress has never acted. No. What theyre doing is saying if there is an independent reason why a man whose transgendered can have a job that he woman has, then that reason is good enough, you have to hire them. But if there is no reason why your gender should marry in the work you are doing, why should you not be hired . Thats a very different proposition. Lets go back to the womens overnight shelter. I assume that the employer had a bfoq that only women counselors would be able to counsel and stay overnight with women who have been abused. How does that fit with bfoq . Bfoq is a very narrow category. I agree but they are applying a broadly and then using the example, assume there is a bfoq for that and someone would allow that. Their position is its stereotyping not to treat the man identifies as a woman as a woman. They are arguing that but for the fact the report as an and they could take that womens position. So theres no bfoq, no religious requirement that would stop and draw the line at the argument they are making. All of the distinctions between men and women are gone forever and thats the plaintext of the statute. Do you wish to address judge flaums argument joined by judge revel which again is a very thoughtful position that there may be dual causes here but the fact that sex is under consideration even as narrowly construed is not to draw us within the statute . I think that line drawing increase happen all the time intel towson and is entirely appropriate for judge to instruct the find of fact to draw that line. The line it has to be drawn based on title vii language is whether women are being treated less favorably than similarly situated in because of sex. Sometimes it will fall on the line, sometimes it wont. Thats not quite right. Women should be treated less differently than men. Youre making title vii into a statute about groups but title vii is not a a statute about groups. Thats helpful but it also carries what you have to say, mr. Bursch. Lets put both of those together, individual and that constant. Say that you have the woman who identifies as a man and their working at an employer and they get pregnant. They would be entitled to the same pregnancy benefits as any of the women at work because if it didnt get it that would be sexist. If the import of what is sex dress code or sex specific showers and restrooms, that would not be a statutory violation because of their biological differences. Men and women are not similarly situated and no one is being treated this advantageously compared to someone else. You could have an employee who might have a commission claim but they cant bring a a claim because of the transgender status. You might have some who doesnt. Those are the things we let juries work out. Theres nothing unusual about that in the context of title vii. I think maybe you answered Justice Gorsuchs question now. You didnt answer my. Okay. Title vii is a statute about individuals and whether individuals are being treated differently because of his or her sex. Its not a statute about, in the aggregate, does this act disadvantage of men versus women or women versus men . Its a statute that uses the word individual twice and says is a particular person being treated differently because of her sex . And here miss stevens was being treated differently because of her sex and this was judge flaums point in that opinion, he said its as simple as looking at the language of the statute, applying it to particular individual, which title vii is his that you do, and coming up with the obvious answer. Yes, if she had not been assigned at birth the sex that she was assigned at birth, she wouldve been treated differently. We agree with the individual treatment. Thats why in oncale this court said basically in the context of a male only workforce that the plaintiff had a cause of action because youve been treated differently than a woman in his position would have been. A hypothetical comparator come o get back to some of Justice Ginsburgs questions. Even if there are no women on psyche so that hypothetical comparator. If you say that tom rost cant do that, then there is speed is are you pinning her aunts on the fact of a dress code . Widget and to be the same if the word no dress code and ms. Stephens had just been fired for being transgender . Because all of your arguments in your brief, you keep talking in your brief as you do hear about a dress code, and the arguments that you make our arguments that would allow the employer to fire ms. Stevens for being transgender, irrespective of whether the was a dress code. Heres the reason why, justice kagan, the identifying both situations. If theres a dress code or not a dress code . If this court allows a sex specific dress code because it acknowledges the differences between men and women, its no different if an employer imposes same policy on an informal basis. It doesnt change the fact women are not being treated worse than men, as ms. Collins it. It doesnt treat her or doesnt treatment worse than women that we were a time this court him and the women did not. Sex specific policies and are differences. Whether the sex specific dress code is a place or not, employers have that latitude. Some jurisdictions like the District Of Columbia have taken that latitude of title vii is away from employers. It says you cannot treat somebody really based on the personal appearances but otherwise when it comes to dress codes, grinning codes, opposite sex assumed and all those types of things everyone wouldve understood title vii as those things being equal treatment and not disfavoring either six over the other, whether on a group basis point individual basis. It doesnt make any difference. The problem here is under their three, the federal agency that brought this claim and that an unelected panel in the six circuit change the law. They added a transgender classification, applied to a business retroactively. The sixth circuit said that sex itself is still tight. Mr. Cole agrees with that 100 . Everything you said, sex itself is a stereotype it you can never treat a man identifies as woman differently because to do that is a sex discrimination. You do that there is a sex discrimination standard under title vii anymore. Its been completely blown up. One of the point of the restroom senate. Gender identity is a broad concept that you could have an male employee identifies as a woman but doesnt dress as a woman, looks like a mantra showing up in the shower and a locker room and again the employee would be able to do anything about that because under his three, but for the fact he was a man he could be there. And its still typing save men cannot be in the womens bathroom. Thank you. Thank you, counsel. General francisco. Thank you, mr. Chief justice, and may it please the court. I dont like to make three basic points aimed at basically addressing Justice Gorsuchs comment that this is a close textual case. I would like to respectfully argue that it dont think its that close for three reasons. Oh, neither side ever thinks the case is closed. [laughing] judges always do, dont think . And the first, youre on a compass what i was talking about earlier, that sex and the gender identity are different traits. They are defined, their different definitions, as my friend just said. He agrees that are different traits. Theres a reason why when Congress Wants to prohibit discrimination based on the traits of Sexual Orientation and gender identity, it lists them separately. It doesnt define sex as including these traits. Its because congress has recognized there are different traits. As long as you treat treatmentf women with the same different trait exactly the same regardless of their sex, you were not discriminate against them because of their sex. The second and related textual issue is that the standard for determining whether or not you are discriminate against somebody because hes a man or because shes a woman is that you are treating that person differently than a similarly situated person of the opposite sex and taking an adverse employment action against them as a result. The threshold question is always are the two people youre comparing actually similarly situated . My friends on the other side assert a transgender man is, in fact, similar situated to a cisgender man just like the assert that i gave woman is similar situated to a straight man. That is manifestly not true because, with respect to the transgender issue, the difference between a transgender man and a cisgender man is the one identifies with his biological sex and other identifies with the opposite of his biological sex. That is a very meaningful difference that is not granted on stereotypes. Its grounded on the given splitter transgender man and a cisgender man. Likewise with Sexual Orientation. The difference between a a gayn and a straight woman is the Sexual Orientation. That is nothing to do with stereotypes. It has nothing to do with whether one is better or worse than the other. Its a different type of relationship. A great deal of the arguments here could be cast as stereotypes though, right . That the plaintiff in this case are that case doesnt conform to male or female stereotypes. As i understand your brief, you accept that argument and that those are good claims without respect to comparators of opposite sex. If thats the case, whats the real difference you between the sides . I accept there some delta, but it seems smaller than might first appear. What i would say the difference is at what stage of the analysis you are doing it . The place stereotypes come up are when your figure out whether two people are facsimile situated. Take Price Waterhouse, and aggressive and is similarly situated to an aggressive woman. They have the exact same trait, aggressiveness, and the only difference is that stereotypical view that women shouldnt be aggressive. But a transgender man and a cisgender man do not ever share the same trait in the first place because one identifies with his biological sex and other identifies with the opposite of his biological sex. That is a different trait that is not grounded in any kind of star type. And a game it is not similar situated to a straight woman for exactly the same reason. One could argue the opposite, that there is now the trait in Price Waterhouse, and the trait is conformity to traditional gender roles. Your argument would suggest, though, we should look at the aggressive woman and the aggressive. We should instead say no, theres this other thing which is conformity to gender roles. We should really look at whether the employer treats the same the aggressive woman and the docile man, the docile effeminate men. If the employer treats the aggressive woman in the same way that the employer treats the effeminate man, they are both fired, then the employer is off the hook. You yourself say thats not right. That, in fact, thats doubled his commendation and the employer is on the hook twice. It seems the exact same analysis applies because there is this independent trait which is just a little bit different from the independent trait here. Here the independent trait, socalled, that you say is transgender identity. There, the independent trait was the refusal to conform to traditional gender roles. Right, and the reason i disagree with that analysis is because i dont think that Price Waterhouse creates some kind of freestanding startup clean. Whitey prohibits is stereotypes that show your treating sibley situated men and women differently. I thought you add to the question that Price Waterhouse would not have prevailed it and that treated men who were not sufficiently macho in the same way that the treated women who are not sufficiently feminine. No, your honor. I believe we set the opposite of that in our brief. That would be okay . Yeah, we said the opposite of that in our brief. They could rely on the stereotype if the woman doesnt fit, they can rely on the stereotype if the man didnt fit, although the cases have said that the object of title vii was to get at the entire spectrum of sex stereotypes. As we read Price Waterhouse, which i have no quarrel with in the slightest, if you treat an aggressive woman worse than aggressive man, you are violating title vii because you are treating similarly situated people tivoli. Applying that here, if you treat a transgender man exactly the same as you treat a transgender woman regardless of their sex, you are likewise not discriminate against them because of their sex since theyre similar situated. I want to know on a totally separate argument, its only my characterization, not anybody elses, but but i do charactere one set of arguments that you have been through as trying to work with the language of the statute. On the one hand, you have these are individuals and individuals four times, and on the other hand, the arguments that were made here, and on the other hand, argument on other side. Im putting that to the side. Then there are the horribles. Weve discussed that at length. Im putting that to the side. Then i say there seems to be a third set in some of these briefs, that regardless of the first two, congress, the 20 think the dissenting judge was talking about, and judge posner had a good point. Im not saying its a winning. [laughing] which is what i want to know. That congress would not adrift of this when it passed the statute. I heard you say, i think, we are not relying on that. Is that so . The government is not relying on that . No, we are relying on it in this sense. One, we think it fortifies are other arguments that i know of course it does. I know you dont want me to push on that. We are relying on it to the sense to the extent theres any attitude here we think it is strongly dispelled by the history of the statute. I want to address that updating issue because its a very important question. By updating it in the way that my friends on the other side which have you update it, they are undermining the manner which congress has traditionally considered updating it. If you look at enda, for nearly a decade when congress a look and consider expanding the scope of the liability provision, it is acknowledged that are religious liberty issues at stake and it wants to be able to take those into account. If you look at the state, they often come to bury similar compromise is where the timepiece amongst otherwise groups a very different views. If you resolve this issue judicially you are essentially delivering, and hate to use these types of terms, but he complete victory to one set of fight and nothing to the other side of the fight. Youre upsetting that legislative balance. I think that is an argument in your favor. Moreover, i think this whole category is elephant in the room and on the other side of which are seeing is the following, which is abstract but no more so. In the 60s we were only ten years away from where people who were real slaves and discriminate against discriminated against update a degree of freedom. The statutes were all part of the Civil Rights Movement that was designed to give, include in our society, people who would been truly discriminated against for the worst of reasons. At that time this civil rights statute, when it was passed, would it put in the category gave people, transgender people, a people who are suffering terrible discrimination. And over time this court has moved away from that view finding it unconstitutional. Doesnt that fact, which is an overwhelming fact to me about the nature of the country under law, argue that thats a change. Thats a change that both explains why they didnt put in initially and explains why we should, other things being equal, interpret it to include gave people and transgender people now . No, your honor, for a coupe of reasons. I would argue against that. Im going to put the text to the one side, the why do think that is our strongest argument. I find it troubling for courts to take that approach because i think it deprives the people of the ability to struggle with these issues democratically. I think its important when we have these big changes, that we convince one another this is the right thing to do. No one ever and when court no one ever thought sexualharassment was encompassed by discoloration on the basis of sex back in 1964. It wasnt until a book was written in the middle 70s bringing that out. And that we say of course, harassing someone, suggesting her two terms and conditions of employment she should not encor if she were a man, that is sex discrimination but it wasnt recognized to be such in the beginning. I think thats a straightforward application of title viis text. With respect to what i was talking about Justice Breyer are we putting the text aside, i think its a portal of the 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 interest in all side. In obergefell this court made very clear there were good and decent people who are different views with respect to gay marriage and they should be respected. The legislative process is the process that allows those views to be respected as well as the very powerful views of my friends and other side. May i 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 that title vii, the civil rights act, all of our acts were born from the desire to ensure that we treated people equally and not on the basis of invidious reasons. We cant deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly, not because they cant do whatever is required of opposition, but merely because they are a suspect class to some people. They may have about in some regions, but they are still being beaten. They are still being ostracized from certain things. At what point does a court say, congress spoke about this, the Regional Congress who wrote this statute told us what they meant. They used clear words. Regardless of what others may have thought over time, its very clear that whats happening fits of those words. At what point do we say we had to step in . I guess my answer, your honor, would be at the point when Congress Actually addresses the issue. The main argument youre making and have been making from beginning to end is that congress has not resolve this issue because sex, gender identity, sex, Sexual Orientation are different traits. These are some thoughtful responses yet given to the set of questions. In responding to Justice Breyer, you said if we thought there was a clear application of the statute. So i will just ask you, if you thought this was a clear application of the statute in the same way that sexualharassment was a clear application of the statute, even though nobody recognized it at the time, if you thought this was a clear application of the statute, would have to come out against you . Yes, your honor if the statute is unambiguous or against me you have to rule against me. I think the statute is unambiguously in my favor for the reasons i was given in the third reason which is one Justice Breyer alluded to, Justice Scalia is reliant about how we dont hide elephants in mouthfuls. Everybody here agrees that Congress Never thought that by prohibiting dissemination based on sex, they would also be prohibiting discrimination based on two very different traits, Sexual Orientation and gender identity. My friends would have this Court Essentially reaching that same result indirectly. I think all of the textual arguments cut in our favor straight away, but to the extent theres any doubt, there is no to find that elephant in this mouse hole. Thank you your honor. Thank you, counsel. Five minutes, mr. Cole. Thank you. Interpreting a a statute is not depriving the democratic process. It is doing what the court is supposed to do within the democratic process and, of course, if the democratic process disagrees with the courts interpretation, it can change it. There is no deprivation of the democratic process here. Secondly, the purpose of title vii as this court defined it was to make sex irrelevant to peoples ability to succeed at work, to make sex irrelevant to peoples ability to succeed at work. When harris homes 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 our ability to succeed at work. It made it determinative. If harris homes fired a man because he was a man that would be sex discrimination. If it fired an employee because he was insufficiently masculine, that would clearly be sex discrimination. In this case, harris homes fired Aimee Stephens because he thought she is a man who was insufficiently masculine. That too must be sex discrimination. She is not seeking any special protection. She is seeking at all transgender people are seeking the same protection that everybody else gets under the law. This court 30 years ago set in Price Waterhouse, we are beyond the day with an employer could evaluate employees by insisting that they match the stereotypes associated with their group. We are certainly beyond that day today as well, and what harris homes did was to insist that she match the stereotypes associated with her group. Thats impermissible under this courts precedents, its impermissible under the literal terms of the statute and this court should rule for Aimee Stephens. Thank you. Thank you, counsel. The case is submitted. For 40 years cspan has been providing american unfiltered coverage of congress, the white house, the Supreme Court and Public Policy events from washington, d. C. And around the country so you can make up your own mind. Created by cable in 1979 cspan is brought to you by your local cable or satellite provider. Cspan, your unfiltered view of the government. Brett mcgurk, former special president ial envoy for the Global Coalition to defeat isis will talk about president trumps decision to withdraw u. S. Troops from syria. That is live from the foundation for defense of democracies today at noon eastern here on cspan2. On cspan3 center chris murphy will discuss Foreign Policy and National Security issues at an event hosted by the Hudson Institute and that is live at noon eastern. A quick reminder you can watch all of our coverage online at cspan. Org and listened with the free cspan radio app. Tonight on the communicative texas representative Eddie Bernice johnson chair of the site space and Technology Committee on increasing the number of women and minorities in technology fields. We want to be in a position to furnish our own brainpower. The only way to record ever be able to do that is to educate women and minorities in the s. T. E. M. Fields, and that comes in many categories. Weve even coined a phrase were recently called bluecollar s. T. E. M. Where no amount of phds or graduate degrees might even be necessary to have those skills to be very innovative and to be a good workforce that is producing some of the innovation. Tonight at 8 p. M. Eastern on cspan2. Next, a , a conversation on cybersecurity threats to the supply chain. Will her from the Pentagon Deputy chief principal cyber advisor at this for posted by billington cybersecurity