In order to prevail, LGBT advocates must persuade at least one of the conservative Justices that firing someone based on LGBT status violates Title VII. Much of the media coverage of the oral arguments focused on Justice Neil Gorsuch's support of the textualist arguments advanced by LGBT advocates. A close reading of the transcript in Bostock, however, suggests that Gorsuch may have merely concluded that discrimination based on biological sex is unlawful even if the same action was also motivated by sexual orientation discrimination. In other words, sex discrimination and sexual orientation discrimination are distinct, and a decision motivated by sexual orientation discrimination is unlawful only if it is also motivated by sex discrimination. This statutory interpretation was reinforced by Pamela Karlan, who argued on behalf of the LGBT employees in Bostock.
An exchange between Gorsuch and Jeffrey Harris, who argued against sexual orientation coverage, focused on a hypothetical situation in which a gay man could establish sex discrimination if he was treated less favorably than a heterosexual woman. Under these circumstances, Gorsuch concluded that even if sexual orientation discrimination was one of the reasons for treating the man worse, he was also treated worse because of his sex in violation of Title VII. This example tells us nothing about whether a gay man treated worse than a heterosexual man could allege sex discrimination.
Although it is unclear whether Gorsuch would conclude that discrimination based solely on sexual orientation is covered, the exchange between Karlan and Justice Samuel Alito during her rebuttal argument clearly supports the conclusion that it is not. Alito asked whether it would violate Title VII if an employer did not know an applicant's sex and rejected that individual based solely on the knowledge that the applicant is homosexual. Karlan thought that such a case would be rare and equated it with the androgynous character Pat from the "Saturday Day Night Live" TV series. Karlan agreed that under such circumstances, the applicant would not have a sex discrimination claim:
If there was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex. But in the case where the person knows the sex of the person that they are firing or refusing to hire, and knows the sex of the people to whom that person is attracted, that is sex discrimination, pure and simple.Despite Karlan's characterization of this kind of situation as an outlier, it is the very one that had already been offered by Harris in arguing that sexual orientation discrimination is not sex discrimination:
If you get a resume that -- that has a name that could be male or female, and there's something on there suggesting that the person is gay and they're not hired for that reason, that would be sexual orientation discrimination that has absolutely nothing whatsoever to do with sex discrimination.Following Karlan's reasoning, it also would not be unlawful to adopt a blanket policy against hiring any gay men or lesbians. An employer might, for instance, implement an online application procedure that first asked someone's sexual orientation and then automatically rejected anyone who responded that he or she is homosexual. Under Karlan's analysis, this would not violate Title VII because applicants would be rejected without any employer knowledge of their sex.
And if there was any room for doubt, Karlan ended her rebuttal argument by explaining that discrimination against gay men is fundamentally different from discrimination against lesbians and that gay men are harassed in a different way than lesbians are harassed. Thus, discrimination against a gay man or lesbian is a violation of Title VII to the extent he or she is treated differently not only based on sexual orientation but also sex. If based solely on sexual orientation, as would necessarily be the case in the absence of any information about a victim's sex, there would be no basis for a Title VII claim.
In my view, Karlan made a significant blunder. In her initial argument, she explained that a policy requiring both men and women to comply with sex stereotypes would unlawfully discriminate based on sex, so I would think it should follow that a blanket policy of not hiring gay men or lesbians would be unlawful even if an employer did not know someone's sex before rejecting them. During an oral argument, advocates have little time to respond and must think quickly, so slip-ups are inevitable. Karlan's exchange with Alito, however, was lengthy and demonstrated her confusion about the very legal theories she was espousing. Any contention that LGBT advocates' arguments are a slam dunk was refuted by this exchange.
Despite the confusion and missteps during oral argument, Justice Gorsuch may very well conclude that sexual orientation discrimination by itself is necessarily sex discrimination. But he appears unlikely to do so if he believes it would lead to "social upheaval." Much as LGBT advocates tried to avoid the issue, Justices repeatedly pressed them about how to square a pro-LGBT decision with sex-specific dress codes and facilities. In response to a question by Justice Alito, David Cole, who represented Aimee Stephens, admitted that if Stephens had been fired for using the women's restroom instead of merely for being transgender, he believed it would have violated Title VII. Thus, even if transgender bathroom access is not specifically at issue in this case, a ruling for Stephens would also require, in Cole's view, that transgender individuals be permitted to use single-sex facilities consistent with their gender identity. Cole tried to downplay the impact, noting that transgender individuals are already using single-sex facilities consistent with their gender identities, but Gorsuch did not seem satisfied. Even Justice Sonia Sotomayor, who was generally supportive of Cole's and Karlan's arguments, was clearly concerned that some women would reasonably feel "intruded upon" if required to share facilities with a transgender woman who still had "male characteristics."
If LGBT advocates are to prevail in this case, the answer may lie in the analysis of the bathroom issue advanced by Chief Justice John Roberts. In an exchange with Cole, Roberts said he understood the argument as to why discrimination based on transgender status constitutes sex discrimination. He wondered, however, whether the same applies for sex-specific policies. If a transgender woman is denied access to the women's room, is the discrimination still based on the individual's biological sex, which everyone seemed to acknowledge is male? Cole responded that a sex-specific bathroom policy is obviously sex-based, so the only question is whether the person challenging the policy is harmed by it. He explained that since a transgender woman would be harmed by having to use the men's room, she would have a valid sex discrimination claim.
Here, I think Roberts hit the nail on the head. If a transgender woman alleges discrimination in being denied access to the women's bathroom, she has not challenged the employer's policy of segregating bathrooms based on whether someone is male or female but the policy of determining access based on biological sex rather than gender identity. Consider, for instance, that if an African American individual challenged race-segregated bathrooms, he would not be seeking access to the whites-only bathroom, but an end to segregated facilities. A transgender plaintiff therefore does not challenge the policy of segregating facilities but the policy of determining which segregated facility someone uses. Such a policy might give rise to a claim of gender identity discrimination because it favors biological sex over gender identity, but it would not give rise to a claim of discrimination based on a particular individual's biological sex (i.e., sex assigned at birth), which is all Title VII covers.
Even if Cole is correct that denying bathroom access based on gender identity constitutes discrimination based on an employee's biological sex, there's the separate question of whether it still might be lawful. In an exchange with John Bursch, who represented R.G. & G.R. Harris Funeral Homes, Justice Sotomayor rejected the "parade of horribles" contention that adopting Cole's arguments would eliminate all distinctions between men and women. To the contrary, as Sotomayor pointed out, a transgender woman is still a biological man, so if it's permissible to require that a position be filled by a biological woman, then the position could lawfully be denied to a cisgender man or a transgender woman. Under Title VII, it is lawful to exclude a man from a position if being a woman is a bona fide occupational qualification for the position. This would be the case, for instance, if an employer were hiring someone to work in a women's locker room while it is occupied. If it would be lawful to refuse to hire a transgender woman to work in a women's locker room, then it should follow that she could also be denied access to the women's locker room to use the toilet or change her clothes.
Although Bostock and R.G. & G.R. Harris Funeral Homes involve the interpretation of a statute enacted over half a century ago, the public will surely view these decisions through a political lens. If the Court rules for the employers, that will be widely perceived as the product of a conservative Court antagonistic to LGBT rights. On the other hand, if the Court rules for the LGBT employees and sticks with the issues before it without addressing the bathroom issue, as LGBT advocates have asked it to do, the Court will be faulted for having raised more questions than it answered and paved the way for "social upheaval." These objections can largely be avoided if the Court ultimately adopts a compromise approach. As suggested by Chief Justice Roberts, it's possible that firing someone based on LGBT status would violate Title VII even if designating bathroom access based on biological sex would not violate Title VII. If a majority of the Court agree, LGBT advocates will win on the discharge issue, but have to wait on Congress before achieving full equality.
Update (10/22/19) - After I published this post, I ran across a blog post by Paisley Currah and a Slate commentary by Alexander Chen that are both critical of advocates' decision to frame Aimee Stephens as biologically male. I thought these worth mentioning because they raise the same points I raised above about the limitations of merely arguing that Title VII prohibits discrimination based on biological sex. Currah and Chen both noted that Chief Justice Roberts immediately recognized that Cole's arguments meant that excluding Stephens from using the women's bathroom would not be based on "sex" as defined by Cole. Oddly, although Chen faulted Cole for framing Stephens as an insufficiently masculine man rather than an insufficiently feminine woman, he lamented the Justices' failure to "understand transgender people" and predicted that their "ignorance could lead to a legal catastrophe." Clearly, any catastrophe would be the fault of Stephens's own counsel.
Less clear is why Stephens's counsel chose not to argue that "sex" under Title VII encompasses anything more than biological sex. One possibility is that they did not recognize that the limited argument did not require employers to provide transgender bathroom access. Considering that Roberts and Sotomayor clearly saw the implications of treating Stephens as male for Title VII purposes, I'd think that the same would not have escaped LGBT advocates. Still, Cole seemed not to understand Roberts's question about bathroom access, which Roberts had to repeat several times. Moreover, the EEOC and lower courts (here and here) have mistakenly assumed that if it's unlawful to fire a transgender woman for being transgender, it must also be unlawful to bar her from using the women's bathroom.
Another possibility is that advocates believed that they could limit the focus of the case to the termination issue and that the Justices would be willing to leave the bathroom issue for another day. The more limited argument relies on the well-recognized definition of sex and is easily supported by statutory construction principles. As I've discussed previously, I don't think Title VII can be interpreted to require transgender bathroom access unless "sex" is interpreted as meaning not merely biological sex but also gender identity. This clearly would have been an uphill battle, but it might have been presented as a secondary argument that would convince the Justices that they don't need to reach the bathroom issue. They could hold that firing Stephens for being transgender unlawfully discriminated against her based on biological sex but then put off deciding whether "sex" also includes gender identity. If Title VII only prohibits biological sex, however, there would be no reason not to address the obvious implications, including bathroom access and Title VII's BFOQ exception.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.