• We The People Podcast

Can Employees be Fired for Being LGTBQ?

October 17, 2019

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of… sex.” Last week, a trio of cases that raise the question of whether Title VII also prohibits discrimination because of sexual orientation and/or gender identity were argued before the Supreme Court. Two of these cases – Bostock v. Clayton County Georgia and Zarda v. Altitude Express, Inc. – are lawsuits brought by employees who claim they were fired for being gay, and are suing their employers. The third case – R.G. and G.R. Harris Funeral Homes Inc. v. EEOC – centers around Aimee Stephens, a transgender woman who says she was fired from her job at a funeral home because of her gender identity. On this episode, Karen Loewy, Senior Counsel for LGBTQ legal advocacy organization Lambda Legal, and Professor David Upham of the University of Dallas – who both wrote briefs in these cases – explain the arguments on both sides, analyze the Justices’ reactions at oral argument, and predict the potential social and legal consequences of these cases.



Karen L. Loewy is Senior Counsel and Senior Strategist for Lambda Legal, the oldest and largest national legal organization committed to the civil rights of gay and transgender people and those with HIV. She leads Lambda Legal’s impact litigation and is counsel of Record for Lambda’s amicus brief in the Harris Funeral Homes case in support of Aimee Stephens. She was also involved with Lambda’s submission of a cert petition in Evans v. Georgia Regional Hospital, the 11th Circuit precedent that was the basis for the Circuit Court decision in Bostock.

David Upham is Politics Department Chair, Director of Legal Studies & Associate Professor at the University of Dallas. He was counsel of record on an amicus brief by the American Public Philosophy Institute in support of the employers in these cases. David’s research focuses on constitutional law and history, and political and legal theory.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich, Bridget Golob, Sarah Byrne, and Jackie McDermott.

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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen:[00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.

On today's episode, we will focus on a trio of Title VII cases argued before the Supreme Court during its first week. Uh, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of sex. And these three cases asked whether discrimination because of sexual orientation or because of gender identity is also prohibited under Title VII. Uh, two of the cases Bostock against Clayton County and Zarda against Altitude Express are brought by employees who say they were fired for being gay and are suing their employers. The third case RG & GR Harris Funeral Homes versus EEOC centers around Aimee Stephens, a transgender woman who says she was fired from her job at the funeral home because of her gender identity.

Joining us to discuss these fascinating and important cases are Loewy:. Karen is a senior counsel and senior strategist for Lambda Legal, the oldest and largest national organization committed to the civil rights of gay and transgender people and those with HIV. She leads Lambda Legal's impact litigation and his counsel of record for Lambda's amicus brief in the Harris Funeral Homes case in supportive Aimee Stephens. She was also involved with Lambda submission of a cert petition and evidence against Georgia Regional Hospital, the 11th Circuit precedent that was the basis for the Circuit Court decision in Bostoc. Karen, thank you so much for joining.

Karen L. Loewy: [00:01:49] My pleasure. Thanks so much for having me.

Rosen:[00:01:52] And David Upham is Politics Department Chair, Director of Legal Studies and Associate Professor at the University of Dallas. He was Counsel of record on an amicus brief by the American Public Philosophy Institute in support of the employers in this case, and his research focuses on constitutional law and history and political, and legal theory.

David, it's wonderful to have you on the show.

David Upham: [00:02:12] Thank you very much. It's a pleasure.

Rosen:[00:02:14] Well, let's jump right in to, uh, Bostockand Zarda, the first two cases that were argued. And let's begin with the basic statutory question. Uh, Is it discrimination because of sex to fire someone because they're gay? Karen, what did Pam Karlan the attorney for the people who were fired, argued on this point?

Loewy: [00:02:39] Sure. I mean, there are basically three arguments, um, for why discriminating against someone based on sexual orientation is discrimination because of sex. Um, the first is a straightforward argument that had Jerry Bostockbeen, Gerald Lynn Bostoc, his attraction to men would not have been problematic and he would not have been fired. It's a very straightforward had he been a woman, he would not have been fired, and therefore that is discrimination because of sex.

The second reason is that is really flipping, flipping it, had Jerry Bostock been attracted to women, he would not have been fired, but because he is attracted to men, he is fired and it is the sex in re-, of his intended romantic partner in relation to his own. That is because of sex. And that's a direct parallel to the cases that have recognized that discrimination against employees in interracial relationships or associated with folks of a different race or the same race, um, that that is a form of race discrimination. And so by parallel that is, that is discrimination.

The, the third argument is that, um, in essence, Jerry Bostockand Dan Zarda defy an essential stereotype that is based on sex. Um, and under the Supreme Court's jurisprudence, um, in the Pricewaterhouse versus Hopkins case, um, sex stereotyping, um, as the basis of adverse employment actions is also actionable under Title VII. And here the stereotype is that men should be exclusively attracted to women, and therefore, gay, lesbian, and bisexual workers defy that inherent sex based stereotype. And because they defy that stereotype actions taken by employers against them, um, that are adverse, um, is a form of sex stereotyping that is prohibited under Title VII. So those are the three basic arguments for why Title VII prohibits discrimination based on sexual orientation as a form of discrimination because of sex.

Rosen:[00:04:55] Thank you so much for presenting those, uh, three arguments. Uh, you've said that had Gerald Bostockbeen a woman, had he been attracted to women, or had he conformed to the, uh, stereotype that men should be attracted to women, he wouldn't have been fired. And for those three reasons, uh, this is discrimination because of sex.

Uh, David, what is the counter argument on behalf of the employers and what did their lawyers argue on the textual question before the Supreme Court?

Upham: [00:05:21] Um, I think the, the strongest argument, um, they have arises not from the text, but from the original expectations or intent of the, of the drafters. Um, and so that, the idea that this was, uh, completely outside the expectations of the, uh, of the drafters, I would say it's not so much original text, but original expectation was the, was the one they focused on.

The, the, the, the second would be that there was, um, uh, the precedent up until those 21st century, for the first 40 years or so that the federal courts generally sided against these type of claims. But on the textual argument, in particularly in their briefing, um, they indicated that they thought that the word discriminate, uh, might have, uh, two meanings and one of which would be favorable to the, to the plaintiffs, namely, that any distinction you make, you make note of someone's sex, and that is a, a but-for cause of an adverse employment, um, effect, that that is sex discrimination.

But there's another sort of dictionary definition of discrimination, which would be, um, to treat someone disfavorably as member of a group, and so in the case of sex discrimination, it would be to harm, uh, women, uh, not men or vice versa. Uh, but it's, it does not require that there be a kind of absolute sort of sex blindness and that sex, sex distinctions could not be noted or be the basis for any employment decisions. But it really must be something that's adverse to, to one sex or the other, um.

And so that the textual argument that they made, um, sided dictionaries that, that, that indicate that the word to discriminate may, uh, mean something, uh, more of a kind of, uh, that doesn't, isn't simply making a distinction, but effectively harming women as women, or men as men, and those that does not seem to be at issue here.

Rosen:[00:07:16] Karen indeed, that question of the meaning of discrimination came up in the oral argument and also in Judge Lynch's opinion on the Second Circuit ruling against, uh, the plaintiffs. Uh, tell us about, uh, your response to the argument that discrimination means not simply making distinctions, but adversely harming, uh, members of, uh, one sex or the other. And if that doesn't occur when someone is fired for being gay?

Loewy: [00:07:45] Um, so the question really was about, about whether, you know, discrimination is required to be group based and, and adversely affecting women as opposed to men, um, and sort of what the, the original understandings were of how the statute would apply. Um, and the response to that, we heard a lot about it oral argument, which is that Title VII asks, um, whether an adverse employment action against a specific employee, um, is because of sex. It is an individualized inquiry. It is not a group based inquiry. Dan Zarda was fired because he himself, had he been a woman, he would not have been fired. It is because he is a man attracted to men that he was fired.

Um, and that is something that the text of the statute speaks to directly. With regard to, um, you know, what, what Congress u- understood the statute to apply to writ large Justice Scalia is unanimous opinion in Oncale versus Sundowner, um, really addresses this directly and makes it clear that it's the text of the statute that controls its application and not what Congress understood it would apply to at the time that it was enacted.

So whether or not Congress had been thinking about, um, the application of this statute to LGBTQ people at the time is, is rather irrelevant. The question is whether what LGBTQ employees are facing in the workplace is because of sex under the straightforward application of the text of the statute.

Rosen:[00:09:11] David, one textual Justice who seemed, uh, to some unexpectedly sympathetic to the plaintiffs was Justice Gorsuch. And in the oral argument. He said several, uh, times that the, the textualist arguments were closed, that the statute, uh, requires, uh, a discrimination because of sex to be one factor, not the only factor. And here, it was one factor. And then he talked about the potentially disruptive social consequences and asked about them. Were you, what did you make of Justice Gorsuch's, uh, questions and what's your response to them?

Upham: [00:09:49] I think they're very good questions. Um, I am, I, I, I'm favorable to I don't know if I would call myself a textualist when I'm very favorable to Justice Scalia's, um, putting the primacy on the text and the text should, should bind even, uh, even outside some of its, um, originally expected applications. Uh, and I think that, um, Justice Gorsuch's was responding to that much like, um, Judge James Ho had an opinion here in the Fifth Circuit in which he identified the, uh, the textual issue to be something of a close question, but it's nonetheless decided on the conservative side of things.

And, uh, if, if, um, what Gorsuch would say, I think, or what he'd suggested, was that the textualist claim is close, but then other considerations like originally expected applications precedent, and in his, his case, uh, the effects of, uh, deciding, uh, Title VII in a more progressive way, uh, would, would resolve in some sense the, uh, the indecision left by the indecision in the text. Um, I, my own opinion on it is I don't, I don't really think the text is actually as indecisive as, as he indicates. I'm, I am, uh, in some sense far more conservative than Gorsuch and, and Judge Ho on this because I think the word sex discrimination already had an acquired legal meaning. Uh, for decades, American Law had various prohibitions on sex discrimination in schools, in voting places, and increasingly in employment, um, and also International Law, and decades of experience under that indicated by deafening silence that no one thought it would affect things like, uh, sex, very sex specific terms of address, sex specific, um, restrooms, sex specific co- dress codes, and a very and universally accepted sex specific definition of marriage.

So in that respect, I think the text, um, the text itself, without looking at originally expected applications already had a legal meaning, and that that should be decisive in the case. I should mention that no one in the, [laughs] in the oral argument, um, indicated that they had, uh, read that particular brief of mine and, [laughs] took it very seriously, but it won't be the first time I'd be disappointed in that respect. [laughs]

Rosen:[00:11:54] Well, I'm sure that after they hear about it on the podcast, then they will go, go back and learn much from it. Then- [laughs]

Upham: [00:11:59] Yes, yes. Read my brief judges, come on.

Rosen:[00:12:03] So absolutely, um,

Loewy: [00:12:04] Perpetual amicus's lament.

Upham: [00:12:06] [laughs]

Rosen:[00:12:08] And of course We the People listeners should read both of their briefs file by our discussions today. But let's focus, take one more beat on this textualist argument. Karen, as David says, uh, because of sex, did in the case law have, uh, a certain meaning before these cases were argued, lower courts had disagreed about whether it included sexual orientation, although they did not disagree about whether it included discrimination against transgender individuals. Uh, what did the lower courts that held that because of sex did not include sexual orientation hold previously, and why did the justices seem less sympathetic to their arguments last week?

Loewy: [00:12:49] So by 2006, every numbered circuit had held or stated in some way largely inducted that Title VII did not prescribe sexual orientation discrimination. Most of those courts had some variation on, on, uh, exactly this theme that Congress couldn't have anticipated it or that the words sexual orientation are not present in the text of Title VII. But what we know in looking at these cases is that these courts did not actually ask the question required by the statute. The question required by the statute is, did this worker experience discrimination because of sex? And these courts did not undertake the analysis or, or really address any of the arguments that I laid out for why, um, when lesbian, gay or bisexual employees or workers, um, are denied jobs, were fired from jobs or face other kinds of adverse employment actions, that that is discrimination because of sex.

And when we look at the legal landscape on, um, LGBT people, um, at the time, the fact that they treated those questions as facetious is, is rather unsurprising because we were looking at a time when the constitutional landscape with regard to LGBT people was terrible, right? If you look back under the law of Bowers versus Hardwick, in which the Supreme Court ruled that there was nothing wrong with, with criminalizing same sex intimacy, um, you know, that that courts would say, “Sure, there's no problem with discriminating against lesbian, gay and bisexual people because they're criminals. Why should we look at this? Why should we actually engage in this analysis?” They weren't doing it, they were just rejecting out of hand the idea that people being discriminated based on sexual orientation could ever come within the protection of the law.

But when the jurisprudence on a, at a constitutional level started to change, when Lawrence versus Texas came down in 2003, and the Supreme Court made clear that people's, intimate, private, same sex relationships receive the same constitutional protection as everybody else's private, intimate sexual conduct. That, that's a sea change when it was made clear that you could no longer treat lesbian, gay and bisexual people as criminals. The court started looking at the question differently. They started actually asking the question that Title VII requires them to ask whether the discrimination was because of sex, that this individual worker experienced. And after the Windsor and Obergefell rulings where it became clear that that same sex relationships receive constitutional protection and that sexual orientation is, is an aspect of people's identity that is inherent in our constitutional premises of liberty and equality. That changed the landscape tremendously.

And as courts in this sort of post liberty and equality context really started doing the statutory analysis. You have, for example, the Seventh Circuit's ruling in, in Hively versus Ivy Tech Community College, actually asking the questions and concluding that the discrimination that came Hively experienced after she was, no longer had a job because she was seeing kissing her girlfriend in a parking lot. That, that is discrimination because of sex and courts, that's exactly what the Second Circuit Court of Appeals did as well on en banc on this other case,

Rosen:[00:16:43] All right. As you say, the Seventh Circuit opinion, uh, was important and came up in the oral argument, Chief Justice Roberts asked, “Do you agree or disagree with Judge Posner's statement that the statute should be read to encompass sexual orientation discrimination, to avoid placing the entire burden of updating old statutes on the legislative branch.”

David, to what degree do you think that the lower courts, and the Supreme Court should be responsive to the Obergefell and Windsor decisions, which, uh, embraced to change the recognition of this constitutional status of sexual orientation? And what's the relevance of that in interpreting the language because of sex?

Upham: [00:17:20] Well, the, the idea that the, um, that things have changed since 1964. Um, and therefore, we need to change our understanding of Title VII. His intention with the, the principal argument relied upon which is the textualist originalist argument. And, and that's why, um, Pamela Karlan, uh, attorney for Harris [inaudible 00:17:45] for Stevens, is that correct? She was the attorney for one of the sides or maybe both, uh, the employees. But she, she, she said, uh, “He's a loose cannon.” Judge Posner is a loose cannon. [laughs]

Now, from the conservative standpoint, we'd say that Judge Posner is a very smart guy who's being recklessly candid about what happened in the case, that although, um, superficially it's a textualist, we're just reading Title VII according to its plain terms. In fact, it's an example of, um, judicial activism, uh, where the judges will redefine the statutes, Um, in the same way that, um, Justice Kennedy in Obergefell explicitly said that it's the job of the judges to update the meaning of liberty and, and including just by a five, four vote. Uh, if this is Obergefell 2.0, that is to say Title VII is going to be reinterpreted according to what, uh, five ju- votes on the court, uh, want discrimination to mean today, even though it didn't mean in Title VII?

It's likely that, uh, if that's the question before the court, it's likely that they won't get the five votes as they did in Obergefell. And that's why I think wisely, uh, the plaintiffs in the case have not made the progressive, uh, progressive Posner, judges need to fix the law because the legislature is too slow mode, but rather to say that, “No, it's just a matter of fidelity to the original text.” Uh, and that's why Judge Posner was kind of thrown under the bus there at oral argument. Um, “Shut up judge Pos.” [laughs] His kind of the response.

Um, I'm overstating it, but, uh, I noticed on Twitter, some people were saying, uh, “Posner what do you think of that? They just called and said you were a loose cannon.” So, [laughs] But that's how that's that's playing out right now. I think.

Rosen:[00:19:26] Uh, Karen, uh, David is descriptively right, I think, that if the case turns on whether the court should update the statute, the conservative justices might be less inclined to do so. And indeed, Justice Alito, uh, said so at the oral argument, he said, “Congress has been asked repeatedly in the year since 1964, to address this question. The Equality Act is before Congress right now. That's the act that would prohibit discrimination on the basis of sexual orientation explicitly, Congress has declined or failed to act on these requests. And if the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation. We will be acting exactly like a legislature.” Uh, what, uh, is your response to that concern of the conservative justices?

Loewy: [00:20:12] Sure. Well, so, so one thing I do want to just say about Judge Posner there, that there are many lovely things in his opinion, [laughs] but at a very non-conceptual or non-doctrinal basis. But, but let's be clear that he had to write separately because the en banc majority of the Seventh Circuit, um, engaged in precisely the kind of textualist doctrinal analysis, um, that the statute requires. Uh, so so I think it's easy to hold up Judge Posner's, uh, opinion as, as, um, as somehow the epitome of judicial activism. But, but let's be clear, that's not actually what the Seventh Circuit on en banc held.

You know, I think that, that, you know, I raised the constitutional cases for, for a reason, but, but now because it suggests that there's a changing meaning of Title VII per se. Um, you know, the constitutional principles of liberty and equality. I agree with Justice Kennedy, tho- those principles, our understanding of those principles can evolve. Um, but the arguments being made in this case, uh, with regard to the meaning of Title VII, um, is actually not that that text has changed or that the meaning of 'because of sex' has changed. It's simply a recognition that the application of those terms, um, sometimes will encompass things that Congress did not originally anticipate.

And again, this goes back to, to, you know, Justice Scalia's unanimous decision in Oncale, um, what the prohibition of discrimination because of sex may encompass or apply to has expanded, um, and the Supreme Court's Title VII jurisprudence has, has made that abundantly clear, um, you know, even with, with the recognition of sex stereotyping is a form of sex discrimination and sexual harassment as a form of sex discrimination. Those were not things Congress anticipated in 1964. And Nonetheless, the Supreme Court has squarely held those to be prohibited sex discrimination within the meaning of the statute.

As far as the Equality Act goes, um, you know, there are, there are many reasons why, why, you know, as a, as a broader, um, political approach, um, the Equality Act is important and necessary, but, but frankly, the Equality Act will be, be necessary even, even if the Supreme Court applies Title VII to the discrimination that LGBTQ people already are experiencing. Um, the Equality Act would make explicit, um, these protections and, and even beyond employment and housing. Um, they would address public accommodations laws, they would address, you know, a broadening understanding of, of what kinds of conduct, um, are prohibited under federal law. Um, but, but that's that's a separate issue from whether or not again what, what Dan Zarda and Jerry Bostockand Aimee Stephens experienced was discrimination because of sex within the existing meaning of Title VII.

Rosen:[00:23:27] Let's turn now to RG & GR Harris Funeral Homes about the case involving the transgender, uh, woman, Aimee Stephens. And, uh, David, I want to ask whether the statutory or textualist argument, uh, about transgender discrimination is, uh, different than that, for discrimination against, uh, people based on their sexual orientation. Before the oral argument, it had been conventional wisdom that the case involving transgender individuals might be easier to win for the plaintiffs as a textualist matter in the case involving discrimination on the basis of sexual orientation, do you agree or not? And how did that play out of the oral argument?

Upham: [00:24:07] You know, it's interesting, I, I was not familiar with that distinction. I, I thought that the transgender status, um, in one respect would be stronger because, um, uh, Stephens's claim can be more closely analogized to, um, the sex stereotyping issue involved in PricewaterhouseCooper. And there, uh, according to the facts, um, um, stipulated facts in the case, um, in there, the, the Alice Hopkins I believe, was the name of the employee, she was denied, uh, some employment benefit because it was said she, she walked and talked too much like a man. And, uh, the Court, uh, unanimously assumed that, that was obviously a form of sex discrimination because they imposed a kind of standard of conduct on a woman, that was not imposed on a man etc.

And the similar type of argument could be made. I believe, um, it was transgender status that was found by federal courts to be covered in 15 years ago. And, um, Karen can correct me if I'm wrong, but I think it was transgender status that came first, uh, that I'd say the first federal courts to agree. So in terms of precedent, I would say that, um, the transgender argument, uh, might be a little bit stronger because the precedent is older and the, the idea of sex stereotyping being based on mode of dress, uh, seems to be similar to mode of, mode of speech, uh, which was involved in the PricewaterhouseCooper.

Um, on the other hand, uh, there's reason to believe that, uh, the court might side with the [inaudible 00:25:42], if, if there's reason to believe there's a chance that the court would split the difference the other way. Uh, because, um, saying the transgender status, uh, is covered under sex, uh, sex and sex discrimination would involve more immediate cost to employers and employees in terms of challenging possibly things like separate restrooms, separate tracks, modes of address, so separate or the sex, sex distinct dress codes etc whereas sexual orientation is largely something that is done off the job.

So in Bostoc's case, um, according to the, you know, stated facts, um, Bostockbelongs to you know, a softball league game and softball league in Atlanta, and you know, how does that affect what anyone else is doing on the job? So it seems it would be easy, uh, less costly, uh, seemingly to say, you know, “The text is ambiguous, but we'll decide that sexual orientation, um, that one won't impose much cost, textualism there is cheap.” Whereas transgenderism involves opens up a whole can of worms of costs on employers and fellow employees, you know, restroom issues, etc. that we don't want to handle. So stated briefly, precedent on one hand would probably side, would, would give a stronger case I think for the transgender claims, uh, but costs, burdens, uh, would see to give, uh, a stronger case for the sexual orientation plaintiffs.

Rosen:[00:27:04] Karen, David makes a crisp argument saying that precedent may favor treating transgender discrimination as a formo- clearly as a form of sex discrimination than sexual orientation discrimination in particular because of the Pricewaterhouse precedent, which says that you can't discriminate against someone for failing to walk and talk more femininely as David called the lawyer for Aimee Stephens said in the oral argument. On the other hand, uh, David says that textualism is cheaper in the sexual orientation and the transgender cases because the social effects will be far more disruptive. What's your response to both of those arguments?

Loewy: [00:27:47] So there are a couple of ways that I would respond. First is I think it's important to actually look at what the question presented was, um, in, in the Harris Funeral Homes versus EEOC and Aimee Stephens case, that the question, which actually got reformulated, um, from the, the cert petition put forth by the Alliance Defending Freedom, which represents Harris Funeral Homes, um, to, to really zero in on whether Title VII prohibits discrimination against transgender people based on either their status as transgender or a form of sex stereotyping under Pricewaterhouse. So there, the court has recognized or has asked to the question of whether each of these routes independently gets us to coverage under Title VII for transgender workers.

And, and yes, as a precedential matter, um, Courts of Appeals for the First, Sixth, Seventh, Ninth and 11th circuits have all held that discrimination against transgender workers is a form of sex discrimination. Some of them have gotten there under the Pricewaterhouse sex stereotyping theory. Others have gotten there, um, by recognizing that, um, that, that if, you know, that what was really going on for Aimee Stephens, um, here is that, is that the employer could not get past, that she was assigned to the sex of male at birth. And because of that was the reason that, um, she was fired from her job, that that inherently is a form of discrimination because of sex, um, whether you're using the, the definition of sex, as in, in terms of biology, that, that the employer here, and that the Department of Justice here has put forth or whether you're looking at it in terms of what the sex was assigned at birth. Either way, what's going on here is clearly rooted in sex discrimination.

Um, you know, the, the question of, of, you know, the, the impacts in the workplace, uh, in many ways, I think, is a distraction. That's not actually what the statute is asking you to look at. What the statute is asking you to look at, is whether Aimee Stephens was fired because of sex. And, you know, the, the ramifications of what that looks like in different workplaces and what it means to ensure that employees are not being discriminated against because of sex, are almost, are almost secondary here.

Um, and frankly, you know, as we saw during argument, uh, you know, this, this question of, you know, the, the parade-of-horribles that would would flow from ensuring that transgender workers are able to have equal employment opportunity. You know, it really, it really is, in many ways a distraction, um, from what the statute requires to be asked under these circumstances, and, and whether, you know, as Justice Kagan really zeroed in on there's a very simple test and that the Supreme Court laid out in 1978 to determine whether sex discrimination has occurred. And that question is whether the evidence shows that treatment of a person in a manner, which but for that person sex, would be different. And that's clearly what, what Aimee Stephens experienced.

Rosen:[00:31:06] So, David, what's your response first to that textualist argument, uh, which David Cole made at the very beginning of his oral argument on behalf of Aimee Stephens. He said, “Harris Homes fired Aimee Stephens for identifying as a woman only because she was assigned a male sex at birth. Uh, that is disp- disparate treatment on the basis of sex and Harris Homes fired her for changing her sex. That's discrimination in the same way that firing someone for changing their religion would be religious discrimination.” So the response to that textualist argument and then to Karen's claim that the parade-of-horribles is overstated. What were some of those, you know, horribles or rather dramatic consequences that, uh, might flow from recognizing transgender discrimination on the basis, uh, as contributing Title VII?

Upham: [00:31:52] Um, let me, let me begin with, uh, the parade-of-horribles. If the textualist argument is no one may be subject to an adverse discrimination where his sex or her sex is the but-for cause. This, the law necessarily will apply to anyone who challenges a sex specific restroom or sex specific dress code or term of address. There isn't a transgender exception set forth. All persons regardless of sexual orientation, regardless of transgender status, enjoy the benefits of Title VII by its obvious terms, freedom from race discrimination, sex discrimination, religious, color and national origin. I think I got them all there, under Title VII. And so what you'd have is like marrying a textualist argument that says, “Words mean what they mean,” and then saying, “Well, we actually mean is we're only trying to carve this out for benefit of persons who identify as transgender.” Um, that would draw violence to the text of the, of the, of the statute. I get fired for using the wrong restroom. Um, I have an adverse effect. I have a cause of action under Title VII and I don't have to prove non transgender or transgender status to get that, um, if in fact the, the naked and I think, I think persuasive, at least superficially put, persuasive textualist argument should prevail.

Um, I should mention something else, uh, that is, uh, really an elephant in the room. And I promise I mean this in a very non-partisan way. Um, this whole case about reading Title VII in, in terms of either its original purposes versus its naked text. Um, everyone in that courtroom and I suspect everyone in this call, uh, knows that they've heard this song before, and they heard it in the context of affirmative action and race discrimination under Title VII.

In fact, Jeffrey, I had to laugh this weekend, I was looking up just to do a quick refresher on, um, employment, United Steelworkers vs. Weber and colorblind constitutional is my Google Doodle research. And on the first page of my results is an article by someone named Jeffrey Rosen from 1996. [laughs] On, on the colorblind constitution, and here's why it's the elephant in the room. The sort of text is text and discrimination is discrimination was the argument made by the, uh, conservative dissenters in that case, uh, Justice, Chief Justice Burger and rather, rather forcefully by Justice Rehnquist. Everybody in the court knows this case. His successor Chief Justice Roberts knows it. They know that Rehnquist's was, uh, was very emphatic that an affirmative action program that plainly made a distinction because of race. And, suff-, a white employee suffered an adverse consequence as a result. He said there should be no exception whereby them meanwhile, the majority says, “Look, we need to interpret this statute with some flexibility in terms of its original expectation and purpose.”

So the naked textualist argument was the old conservative argument was the all conservative argument for colorblind Title VII. Um, and a little flexibility, a lot of it was necessary for affirmative action. On this question, right now, there's something of a ceasefire on the court or politically, but it's not really been settled. And the flip side of it is to progressives know this too. And so there's a, there's a certain difficulty with no, virtually no brief cited that case, which is the most relevant, uh, to this, this, this was deep argument about naked textualism versus original expectation.

But our listeners, um, particularly our younger listeners who don't remember the 20th century, um, need to know that this was, is still is a very big, big issue that, um, involves, um, not a lot of blood, but at least a lot of ink and a lot of passion, um, across several decades, and it's still not entirely settled, the conservatives on the court tend to say, “We should have no discrimination and that means no discrimination.” Um, text is text and the progressives tend to say, “Well, you have to make exceptions because the real purpose of Title VII and should be equal employment opportunity as since the name of the Commission.”

Again, I'm not saying this is a partisan matter, but it is the deafening silence on that was very telling, because the both the progressive and the conservative Coalition's know these arguments already, but the fact is that they cut exactly the opposite way in terms of the conservatives and the progressives. Um, I'm happy to also continue, but I've talked enough right now.

Rosen:[00:36:04] Uh, thank you so much for that. Thanks for recalling that piece, the colorblind court I had to Google it because I didn't remember it. And of course, uh, ever since I joined the National Constitution Center, I have no opinions whatsoever.

Upham: [00:36:18] [laughs]

Rosen:[00:36:18] But as you said, there was a vigorous debate in the 1990s about whether, uh, the text of the, the, the, the federal statute should be interpreted to ban affirmative action or not. And Karen to respond to the challenge that David poses, to what degree or conservative and liberal justices being asked to switch their usual positions on textualism, uh, uh, traditionally conservatives have said, “Let's just look at the text and not look at legislative history and not make any exceptions,” and liberals have said, “We should look at the text in the context of legislative history and make exceptions.” But that does not seem to be leading to traditionally conservative or liberal positions in these cases.

Upham: [00:37:01] You know, I actually think that, that it is the conservative textualist argument here, here absolutely, that, that does carry the day. You know, we did hear a lot during argument about, you know, whether these cases would affect, you know, the existence of dress codes and single sex facilities like restrooms and, you know, there, there are a couple of things that really stood out from that entire conversation. You know, one is tied to Justice Gorsuch's pondering whether, you know, we're ruling in favor of LGBTQ workers would cause, you know, massive upheaval, as he said, and, you know, to the extent there, there was a question about what the text actually implied. He, he raised some concerns about that, but, but, you know, I think David Cole arguing for, for Aimee Stephens really responded correctly and quickly by, by really pointing to the reality check that, um, you know, as I said, there, there have been five courts of appeals, that already rule that Title VII does protect transgender workers, and we have not seen any of that massive upheaval.

And you know, these protections have been recognized by federal courts for for decades at this point and we haven't seen any upheaval. And the same thing is true in the states that do you have explicit protections based on sexual orientation or gender identity? So, so to the extent there are issues that have to get worked out with regard to access to single sex facilities or sex segregated facilities, um, dress codes, things you know, that, that, you know, I know that David's amicus brief really focused on A, those are actually a question for another day because that is not what Aimee Stephens experienced. What Amy Stevens experienced is that she announced she was going to be identifying and living as the woman she is, and she was fired period at the end.

It was not about access to bathrooms. She said she was happy to wear the dress code that Harris Funeral Homes had set for women. Um, so really the sole issue is she came out as transgender, and she was fired. And the only question in front of the court is whether what Aimee experienced was discrimination because of sex. Um, and so, so there is again, all of this discussion of dress codes and, and sex segregated facilities are really not before the court right now. And to the extent the court is concerned about them, the track record, um, in the jurisdictions where these protections have been recognized have, has really made clear, um, that all of those concerns about upheaval are, are a little bit overblown.

Rosen:[00:39:40] David, just one final note on what the consequences might be, uh, Justice Gorsuch worried openly about them, if the court recognizes, uh, discrimination on the basis of sexual orientation as well as discrimination on the basis of gender identity as sex discrimination covered by Title VII. What in your view… what would be some of the more extreme social and legal consequences?

Upham: [00:40:07] Well, I mean, the most obvious, as I've already indicated, I'll be restating it. It's just that the, um, the interpretation of Title VII, it's naked textualist, has no discrimination whatsoever because of sex. And if any sex specific policy leads indirectly to an adverse employment effect, saying, “I'm not wearing a tie, women don't have to wear ties.” And I get fired. I've got a cause of action. And what we have to do, which is suggested in the oral argument is don't worry, the lower courts will carve out all the exceptions.

But the Supreme Court is really not just hearing, Aimee Stephens case, the Supreme Court's setting up a rule, a precedent, going to set up a precedent that will have to be followed in countless cases, um, and then give rise to an enormous, um, burden on the Judiciary to do something that the statute does not permit and that is to start distinguishing between people based upon how transgender they are, whether they're going to get this protection or not. If in fact this Title VII requires sex blindness, it requires sex blindness all the way down. Um, and Congress would have to amend this statute, uh, according to the my opinion of plaintiffs account.

Um, the sexual orientation would have less obvious effects because sexual orientation largely is not employment related. Um, and so persons for example, Bostocknot getting fired because of what he, the associations he has off the job, uh, would be something that would be easy to, um, to adopt, easy to enforce and would not impose a lot of burdens. Um, just ignore the fact that he got whatever he does under, you know, for joining this baseball league or whatever.

Um, the, one of the ways that would have kind of a deeper effect would be the elaboration of a hostile work environment theory. Now under that, um, employers are, are required to maintain, um, a workforce where you're not going to hear a lot of racial epithets. In fact, fire employees for using racial epithets. Now, if racial epithets are the same thing as uttering a conservative belief such as, “You know what? I just don't think that's marriage. I think that marriage is a union of a man and woman.” Um, the application of the racial, the hostile work environment would mean that there would be effectively, uh, a requirement that employers refrain from saying such things, uh, and that they make their employees refrain from saying such things.

And as long as there's a significant minority of Americans who still believe that marriage is the union of man and woman for life whose principal God, principal object is the, is the conception and education of children and therefore necessarily male or female. Um, it's going to be, uh, that's going to have a kind of a negative effect on, uh, on conservative Americans. It won't be as widespread, it won't be as immediately felt and it won't, it won't involve sort of necessarily daily problems. Uh, unlike in the context of challenging sex specific, you know, restrooms, dress codes, etc.

Rosen:[00:42:58] Karen in your piece, sex in the Supreme Court, it's not just about LGBT workers, you and Jennifer Pitzer, uh, envision not a parade-of-horribles, but a parade-of-wonderfuls, a series of salutary legal, uh, impacts in your view that could follow from recognizing sexual orientation and, and gender identity discrimination has discrimination because of sex. Uh, and you said that those would range from cases involving protections in federal laws covering housing, health care, credit, and education, all of which could build on these employment litigation victories. Tell us more about what some of those salutary effects in your opinion might be?

Loewy: [00:43:39] Sure, um, if it's okay, I'd actually like to back up to address just one small piece of what David was just saying about the hostile work environment cases.

Rosen:[00:43:48] Sure.

Loewy: [00:43:48] Um, so, so, I, I find it so interesting that, that, that's the piece that, that, um, somehow, um, that, that supports this idea that, that somehow it would be problematic to, to be, um, ensuring Title VII's application to LGBTQ people in the workplace that, that would make it somehow problematic because the hostile work environment jurisprudence from the Supreme Court actually is inherently about what goes on in the workplace. And, and despite the fact that it was going to really in many ways, um, create a sea change about what was expected of both employers and supervisors and co-employees about conduct in the workplace, the Supreme Court squarely has held that harassment, um, and hostile work environment is prohibited by, by Title VII.

And so to the extent that in the transgender context, um, the concern is that, that a ruling for Aimee Stephens here would have such dramatic effects in the workplace. That's not actually a restraint on how the Supreme Court has, has applied Title VII. And the other piece of that is that, you know, it's one thing for people to have beliefs or even make simple statements, you always have to remember that the test under hostile work environment is whether or not the conduct in the workplace is severe, sufficiently severe or pervasive so as to deprive a worker of equal employment opportunity, because of one of the protected traits. Um, so so the courts have an established framework for assessing whether something runs afoul of Title VII in that context or not.

So going back to the question, you [laughs] actually just asked me, Jeff, about sort of the implications, um, for other federal, uh, sex discrimination protections. Um, you know, it's absolutely the case that in many ways, case law that has come down in the Title VII in the employment context, um, has been looked to by other courts, um, in the, a- assessing the scope or application of other federal anti discrimination laws, including the Fair Housing Act, including, um, the Equal, um, Equal Credit Opportunity Act, including title nine, um, and section 1557, of the Affordable Care Act.

So there's no doubt that whatever the Supreme Court rules in this case will, will be clearly instructive, um, in these other contexts, I do think it's really important to recognize that there are actually textual differences among the different [laughs] statutes. So it may not be the case that they are interpreted 100% in lockstep as courts really examine what those, what those textual differences are, um, much of which goes to sort of the, the role of the protected trait, um, and, and in whatever the relevant decision making has been, whether it's in the housing context or any of the other contexts. So I'm not saying you know, my colleague Jenny Pitzer, and I are not, are not suggesting that, that whatever happens here is binding for all time in every other federal sex discrimination law, but it will definitely be instructive.

Rosen:[00:47:11] Well, it is time for closing arguments in this absolutely fascinating and illuminating discussion. And, uh, David, the first one is to you, uh, perhaps you could sum up for our listeners why you believe that discrimination on the basis of sexual orientation and on the basis of gender identity should not be recognized as discrimination because of sex under Title VII.

Upham: [00:47:33] This is my argument, which is chiefly textual, which I haven't presented, the text was written in 1964. And it prohibits discrimination because of sex. The word discrimination had and still has in a dictionary, has two meanings, one of which is to make any distinction whatsoever, which favors the plaintiffs. The second, which is to make a discrimination that is adverse to individual because of membership in a group. The second one seems to be consistent with what they intended to [inaudible 00:48:01] with respect to sex. We can see this in two ways.

First, the meaning of sex discrimination has already lived under, for decades of experience under state and various other laws that had in different contexts. For 100 years in Kansas, you have a state constitution that says, “No sex distinction in the public schools.” That therefore indicates that there's already a legal meaning, which is in fact part of the naked statutory meaning.

Um, the second is that, um, that, that what's prohibited is a to make a discrimination. Now, as Justice Ginsburg then Ruth Bader Ginsburg, indicated in her brief to the Supreme Court in Reed versus Reed, “To say that sex discrimination is like race discrimination is a li-, uh, a seminar on 1971 Supreme Court case on sex discrimination. She said, “There are two forms of distinctions that obviously are going to be permitted. First, those based on biology, such as distinguishing between maternity and paternity. And Second, those that related to basic customs and interests,” and I'm quoting from her, “shared by members of both sexes and personal privacy. And those things, justify them even require separation of the sexes in restroom sleeping quarters, etc. Where you have those two things, things that biology made or things that, uh, deep custom of society that was made by and for the interests of both sexes.

Those are not discriminations made by employers. Employers are simply accepting the world as it is made by nature and made by deep custom that was not meant, meant to make one sex superior over another.” You have those sorts of things she indicates in that brief, that's not going to be covered by a robust anti sex discrimination jurisprudence. And in fact, she calls it a canard in that brief, kind of a joke to even suggest it. What was a joke at that time, in 1971, is now being treated as if it's obviously the meaning of the text. Something's wrong with the plaintiffs textualist argument. Thank you very much. [laughs]

Rosen:[00:49:58] And thank you very much, uh, for that closing argument, and Karen, the last argument is to you. Uh, please tell our We the People listeners why you believe that discrimination on the basis of sexual orientation and of gender identity should be actionable as discrimination because of sex under Title VII?

Loewy: [00:50:19] Thanks, Jeffrey. So, so Title VII by its explicit terms states that it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation terms, conditions or privileges of employment, because of such individuals in this instance, sex. That's what the statute prohibits.

And in these cases, the issue before the court is whether the employment discrimination against these individual, LGBTQ workers, um, was because of sex? That's the question before the court. The arguments that I articulated earlier about how each individual worker's sex was clearly at the root of their each of their being fired, um, really make clear that what they experienced is squarely prohibited by that text of that statute. All of the discussions around whether Congress could have anticipated protecting LGBT workers under this statute in 1964 are entirely beside the point. Covering the discrimination that LGBTQ workers face under Title VII sex discrimination, prohibition is grounded in and follow from the long settled precedent handed down by the Supreme Court, the Title VII does not allow one hiring policy for women and another for men. It does not allow treatment of a person in a manner that, but for their sex would have been different.

All of the jurisprudence around sex stereotyping and sexual harassment. This really boils down to what, what Justice Ginsburg pointed to during argument that Title VII strikes at the entire spectrum of disparate treatment resulting from sex stereotypes. Um, that was it from the Manhart case? It it's very clear that recognizing the discrimination that these LGBT employees faced, as a form of sex discrimination stands directly in line with all of this jurisprudence and, um, is squarely prohibited by the text that, that Congress actually enacted.

Rosen:[00:52:55] Thank you so much, Karen Loewy and David Upham for, uh, illuminating sophisticated and extremely educational discussion of these crucially important cases before the Supreme Court. We the People listeners to learn more, please make sure to read the briefs, uh, filed by Karen and David, Karen on behalf of Lambda Legal Defense and Education Fund and David on behalf of the American Public Philosophy Institute.

Karen, David, thank you so much for joining.

Upham: [00:53:27] Thank you all very much.

Loewy: [00:53:29] Thanks so much for having me.

Rosen:[00:53:34] Today's show was engineered by Greg Scheckler was produced by Jackie McDermott. research was provided by Lana Ulrich and the constitutional content team. We the People friends you can find us on Apple Podcast or wherever you get your podcasts and we're also now linked on the Constitution Center and Atlantic website. The battles for the Constitution, it's a wonderful new project, brings together leading voices from across the thought spectrum to discuss constitutional issues in the news. Check it out at the Atlantic and let me know what you think.

And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, passion and engagement of people from across the country who are inspired by our non-partisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work, including this podcast, theconstitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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