Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Supreme Court heard oral argument yesterday morning in three cases concerning whether the provision in Title VII of the Civil Rights Act of 1964 making it unlawful for a covered employer to “discriminate against” an employee “because of such individual’s . . . sex” prohibits such an employer from firing an employee because he’s a gay man or because she's a transgender woman. Here's the transcript of argument in Nos. 17-1618 and 17-1623, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda (the cases involving discharges of gay men) and here's the transcript of the argument in No. 18-107, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (the case involving the discharge of a transgender woman). Many observers have reasonably assumed that the Court's decisions turn on the votes of one or more of the Chief Justice and Justices Gorsuch and Kavanaugh. My strong impression at the oral argument--confirmed by many others in the Courtroom to whom I spoke--was that all three of those Justices (as well as some others) were very careful not to tip their hands on what they're inclined to do. Therefore it'd be foolhardy to rely upon the oral argument to make any predictions about how the Court will decide the cases. So instead of offering any such predictions, in this post I'll simply offer some thoughts on three issues the Justices and defendants' advocates raised, apart from those I discussed in my post here last month. (On a fourth matter--a question Justice Alito asked about a hypothetical employer who refuses to hire an applicant because he's told the applicant is attracted to persons of the same sex but doesn't know whether the applicant is a man or a woman--see Andy Koppelman's post below.) "Massive Social Upheaval"?: The Justices' Concerns about Restroom Policies (and Dress Codes) Not surprisingly, a significant percentage of the Justices' questions yesterday, in both cases, concerned what a ruling for the employees might mean for sex-segregated restrooms in the workplace (and, to a far lesser extent, employer dress codes and "uniforms"). Anticipating that the Court might be concerned about how to address such policies, Sam Bagenstos, Mike Dorf, Leah Litman, Margo Schlanger and I filed an amicus brief on just that topic in the transgender case. As we explain in our brief, most such sex-based dress, grooming and restroom rules survive Title VII scrutiny not because they're sex-neutral—of course they aren't; they're expressly dependent upon employees' sex—and not because (as the government argues) they impose harms equally on male and female employees in the aggregate (which is sometimes, but not always, the case), but instead because they don’t impose any appreciable harm on most or all employees in the first place. As the Court has explained in cases such as Burlington Northern & Santa Fe Railroad Co. v. White and Oncale v. Sundowner Offshore Services, Inc., even where an employer treats employees differently because of their sex or other protected characteristics, such a sex-based distinction doesn’t violate Title VII as applied to a particular employee with respect to whom it has only an "innocuous" effect (Oncale). As the Court wrote in Burlington Northern,"it is important to separate significant from trivial harms." Most such rules and policies are therefore facially lawful (i.e., permissible with respect to the vast majority of employees in a workplace), and an employer may retain them. Nevertheless, it might not be permissible for the employer to apply its express sex-based rules to some or all transgender employees. "Context matters" (Burlington Northern)--including the particularities of the employee in question. Whether an otherwise permissible workplace norm can be applied to an employee depends upon that employee's own circumstances. For example, as the Court wrote in Burlington Northern, "[a] schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children"--in which case there may be Title VII liability with respect to the latter but not the former. So, too, insisting that Aimee Stephens conform to certain sex-based dress, grooming and presentment rules (express or implied) that the Harris Funeral Homes insisted upon for "male" employees because of the reproductive physiology with which she was born--a criterion everyone in the case agrees is sex-based--would impose profoundly greater harms upon her than it does upon other employees born with male genitalia (for reasons we describe in greater detail in the brief). Accordingly, Title VII prohibits Harris Homes from applying to Stephens its otherwise facially valid sex-based norms for men. That does not mean, however, that an employer such as Harris Homes has to abandon such workplace norms altogether, or in the mine run of cases. Justice Gorsuch expressed concerns, however, that even if Title VII merely requires employers to make such exemptions to its sex-based rules for transgender employees, rather than to scrap their restroom and dress policies altogether, that would be a "drastic change" in this country, affecting "every place of employment"--a "massive social upheaval." As David Cole stressed at the argument, however, there's no reason to think any such "upheaval" would occur if transgender women are allowed to use women's restrooms--and good reason to believe the impact would be insignificant, at most. After all, for many years transgender people have already been using restrooms associated with their gender identities--including those in the Supreme Court itself--and that practice hasn't been disruptive in the least (or even much noticed, for that matter). Three of my co-amici and I offered some reasons for why that's so in another amicus brief we filed recently in a case (Gloucester County School Board v. G.G. ex rel. Grimm, No. 16-273) dealing with a different civil rights law, Title IX of the Education Amendments of 1972, which provides that in a school district receiving federal financial assistance, “[n]o person in the United States shall, on the basis of sex, . . . be subjected to discrimination.” In the final part of that brief, we argued that a school district lacks any compelling reason to exclude transgender students from using restrooms designated for persons of their gender identity. The principal concern some schools raise in defense of applying their sex-specific restroom policies to transgender students is that “[a]n individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex” (quoting from Judge Niemeyer's opinion in the court of appeals in that case). Protecting such privacy concerns is certainly an important institutional interest, we explained, especially when it comes to adolescents. Even so, it doesn't follow that it's necessary to exclude transgender students from restrooms in order to advance that interest, for at least two reasons. First, it's not clear why this privacy interest is more frequently implicated when it comes to the presence of transgender students in particular, compared to other students who present as the same sex as those transgender students. "After all," we wrote, "most students prefer to avoid such exposure of their bodies to any peers, and that concern is not obviously correlated with whether the peers in question have one or another set of external reproductive organs." Second, as we wrote, "architecture (rather than law) has effectively eliminated any potential problem associated with this privacy-related interest in restrooms: There is hardly a school restroom in the nation where any student must expose 'his or her nude or partially nude body, genitalia, and other private parts' to anyone. Indeed, it is fair to assume that future developments in bathroom design will provide even greater such privacy protection—which helps explain why unisex restrooms are becoming increasingly common, and uncontroversial, in other nations and at many U.S. colleges and universities." Moreover, as David Cole noted, even in settings, such as the Court itself, that have not yet transitioned to unisex restrooms, the architecture of the restrooms themselves, together with common social practices, has guaranteed that the presence of transgender persons has had virtually no impact on anyone's privacy. That's why Justice Gorsuch's feared "massive social upheaval" hasn't, and won't, come to pass.
One other point is important to flag here, too: Even if there were some reason to think that the presence of transgender women in women's restrooms were cause for concern, that would hardly be grounds for construing Title VII to permit any and all forms of allegedly "separate but equal" sex-based segregation of employees in the workplace: Subsection 703(a)(2) specifically prohibits “segregat[ing]” employees on the basis of their protected characteristics, including sex, where it “deprives or tends to deprive” an employee “of employment opportunities or otherwise adversely affect [his or her] status as an employee.” Sex-specific restrooms is therefore one of the only contexts in which such segregation is generally lawful--but the permissibility of such a policy doesn't affect the broader prohibition on most forms of sex-based segregation.
Likewise, as Mike Dorf explains in a post yesterday, even if (contrary to the evidence and experience) the presence of transgender women in restrooms implicated serious privacy concerns, that wouldn't be a basis for construing Title VII to categorically permit discrimination in the workplace against such persons on the basis of their reproductive physiology at birth. "After all," Mike writes, "the law allows sex-segregated restrooms as a general matter as applied to cis folks; yet no one thinks it follows from the general permissibility of sex-segregated restrooms that sex discrimination in other contexts is generally permissible." Congress can specifically address any restroom concerns if need be, but those concerns are not a basis for allowing unbridled employment discrimination on the basis of transgender individuals' sex (defined to include their reproductive physiology at birth, which is "sex" under definitions that all the parties accept). "[T]he fact that there might be circumstances in which the law should permit distinctions between cisgender and transgender women does not mean that gender identity discrimination should generally be permissible."
Isn't Discharge Itself a Significant Injury?
As explained above and in our amicus brief, and as Pam Karlan and David Cole stressed in their arguments, whether an express sex-based rule or norm, such as a restroom policy or a dress requirement, violates Title VII as applied to a particular individual depends upon whether it has more than an innocuous or trivial effect upon that individual, in light of his or her particular circumstances.
During the Bostock/Zarda argument, the employers' attorney Jeffrey Smith and the Solicitor General appeared to suggest that this test can't be right because the harm threshold would always be satisfied--even in the case of a cisgender man who insisted upon using the women's restroom--if the employer then fired the employee for violating the rule, given that discharge obviously imposes a significant harm. For example:
SG FRANCISCO: [U]nder [plaintiffs'] interpretation, you actually couldn't fire a man for using the woman's restroom because in some metaphysical sense, that man's sex is a but-for cause for his firing.
JUSTICE GINSBURG: But he's not injured.
GENERAL FRANCISCO: Well, he's fired, Your Honor, in my hypothetical.
This idea rests upon a misunderstanding of the proper inquiry, as we explained in our Stephens amicus brief:
It is true, of course, that even in a case in which a dress, grooming, or presentation rule does not itself cause more than innocuous harm to an employee, an employer might fire an employee who violates it. And discharge itself is obviously a harsh sanction. See Witmer v. Phillips 66 Co., 915 F.3d 328, 337 (5th Cir. 2019) (Ho, J., concurring). That does not affect the analysis, however. The employer would typically impose that or another serious sanction pursuant to a sex-neutral rule that generally, and reasonably, requires employees to comply with all workplace requirements or that forbids insubordination across-the-board.
In a case where an employee refused to abide by a work rule that
did not harm her in any appreciable way, there should be no basis
for using the harshness of the neutral sanction as a “bootstrap” to
trigger liability. Of course, Title VII would require the employer
to apply that insubordination rule neutrally, without regard to
employees’ sex and without using it as a pretext for sex discrimination.
In other words, the proper question is whether the choice to which the employer puts the employee--e.g., "use only the men's restroom or be fired"--imposes a nontrivial burden. Such a choice is not at all onerous as applied to virtually all men in the workplace, because one of the two available options--not using the women's restrooms--imposes no harm. By contrast, telling a transgender woman that she must use men's restrooms as a condition of employment imposes a profound harm upon her, just as effectively requiring an employee to cease being gay or lesbian as a condition of employment obviously imposes a harm that’s anything but innocuous. Congress's Expectations, and "Elephants in Mouseholes" The Solicitor General, the attorneys for the defendants and some of the Justices repeatedly remarked how unimaginable it would have been to members of Congress in 1964 that Title VII would prohibit employers from discriminating against employees because they're gay or transgender. In Justice Alito's words, that's "a major policy question that was not in Congress's mind in 1964." Or as SG Francisco put the point: "Congress never thought that by prohibiting discrimination based on sex, they would also be prohibiting discrimination based on two very different traits, sexual orientation and gender identity." I won't belabor here the responses to this "beyond congressional expectations" argument that Pam Karlan and David Cole offered in their briefs and in their arguments yesterday, except to say that they emphasized Justice Scalia's point, writing for the Court in Oncale,that "statutory prohibitions often go beyond the principal evil [that Congress contemplated] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." For example, as Justice Ginsburg reminded the Solicitor General, "[n]o one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in '64. It wasn't until a book was written [by Catherine MacKinnon in 1979] bringing that out" that the Court began to hold--without dissent--that it was, indeed, unlawful. I would only add one other thing that ought to give the Justices at least some pause before relying too heavily on the expectations of the 1964 Congress--namely, that whatever those legislative expectations were or would have been in 1964, they obviously don't categorically preclude reading Title VII to cover discrimination against gay and transgender employees, because all the parties in these cases agree that Title VII does prohibit many such cases of discrimination in which the employees' sexual orientation or gender identity isa "but for" cause of the employer's action. The cases I have in mind are those in which an employer discriminates against a gay man because he's gay and doesn't likewise disadvantage lesbian employees. As I explained in my earlier post, this actually describes most of the relevant Title VII cases that are litigated, including the two before the Court: There is, at best, no evidence that the employer would have treated a similarly situated lesbian as it treated a particular gay man (no policy, for instance, of employing "only heterosexuals"), and often either evidence that lesbians were not treated as poorly, or a denial by the employer that it would have discriminated against other gay and lesbian employees (such as in the Zarda case, where such discrimination would violate New York law and therefore Altitude Express insists it would never do such a thing). The SG concedes, as it must (seehis brief atpp.19, 29) that treating gay men worse than lesbians (or vice-versa) would be a violation of Title VII's prohibition on discrimination because of sex. AccordClayton County Br. at 28. Yet presumably most or all of the members of Congress in 1964 would have been surprised to learn that Title VII prohibited employers from firing gay men. After all, employers in 1964 often refused to hire, or fired, male employees they knew or perceived to be gay without paying much mind to whether any of their female employees were lesbians--and surely few, if any, members of Congress anticipated that the law they had just enacted would proscribe that common practice. Yet it does. So, too, the Solicitor General acknowledges that Title VII prohibits an employer from firing a gay man because he's viewed as too effeminate--and that if the employer also fired a similarly situated lesbian because she's perceived to be too masculine, that would amount to two Title VII violations, not none. This demonstrates that there’s nothing unthinkable or embarrassing about concluding that Title VII bars at least some forms of discrimination against gay people in ways that would have been impossible to anticipate, perhaps even shocking, to legislators in 1964. And that'll continue to be so regardless of how the Court resolves these cases: We crossed that bridge a long time ago. Put another way, and in response to the Solicitor General's closing about how the Court should not find "elephants in [statutory] mouseholes": The language of Title VII is not a "mousehole"; it's written very broadly, and the Court has construed that broad language to cover employer practices that were ubiquitous in 1964 and that Congress not only didn't contemplate prohibiting but that legislators would have been surprised to discover they had enjoined. Moreover, even if one views discrimination against gays and lesbians as an "elephant," well, the elephant's trunk and at least a couple of its feet are already in the door: Everyone agrees that Title VII prohibits most cases of discrimination against gay and lesbian employees, and the only real issue is whether the Court should also extend that understanding to the relatively rare case (the elephant's tail, if you will) in which an employer categorically prefers heterosexual employees, without regard to whether the disfavored individuals are gay men or lesbians.