to go through the process but does it does any of that really matter i mean couldn't the company say i'm not saying that she's a bad person or that she's a liar but there's a there's a mix up here and we don't want to fool with that we've got other candidates and so we're just without having to we don't want to research this and figure it out we're just going to move on and is that was that not a does it why does it matter whether she did it whether it's component there there was not anyone else that was hired for this position so if we before look in the willis case you have to infer that someone else was that there was a comparative or there  that there was another non transgender individual that was given more favorable treatment well that doesn't exist here there was not anyone else there is no comparative or that was put into that position that's what we need to look to the progeny of josh ian and even teamsters just to look at this reason was reason enough was a good enough reason this this this mistake by this hiring company now the burden because the burden is shifted and if this is there the gentleman quote unquote non reason for not hiring her now we've got a look at the nuts and bolts of this reason is this really the reason in the context of the problem of face analysis we've got the first three problems the fourth one would not be missing if we look at this under the joshi standard  teamster standard which looks to look at what actually happened here no one else was hired the position was eliminated the record does not reflect one way or the other why that position was not filled or if it was t well is that really a good enough reason mind you we've got we've got an e mail on september tenth that goes from whitmer to the company director saying you all transgender and understood as a september second that they were that comment came only afterwards in response to their to the to the decision that strikes me as being very material pesky procedural questions for you did you raise the pretext argument at the district court and if so where it was and i'm not i would like to brief that later without spending the next four minutes pinpoint exactly where we are but then i did see the footnote where they are unsure of whether or not we raised that it's my contention today that we did raise the issue of pretext as well but you can't say oh it was in this know but if we're looking at it we have to look new we want to find that there was a fact issue on pretext separate and apart from all of this other these other types of things we have to say well did you raise a fact issue on pretext in the district court just as just in a garden variety case i mean that's a question we have to ask we did and i'm happy to brief that further after we leave here but what we're looking at a fact questions after not being hired the position remains open and that they continue to seek applications and i thought you said the position was closed  think help me on the law and that at some point it was likely cause now i don't know as i sit here today who got hired into that function if anyone at all that hired in that function in mark wrong that you have to show that the position remained open in order to raise of least the fact issue and proceed with your case that's exactly what it says after such objection the position remains open so how long that position remains open it may still be open today if it wasn't filled if it wasn't filled that we agree that there has to be some evidence in the record that the position remained open under the joshi standard absolutely we also now we look at the teamsters that is that looks at it slightly differently if we look at teamsters we raise an inference of discrimination without even having to look at the just the standard as to whether or not the position of being open or not but as far as as far as we kno that position remained open if it was never filled the remained open and that functionality doesn't obviously doesn't go away if it was posted and it was offered to someone to begin with but i think we need to look at the teamsters and that component i see that i'm almost out of time and i would like to still lead in to my colleagues presentation we're talking about and this is a general but courts or for congress to make that's a call for this circuit to be able to make today that transgender individuals are protected under title so let me give you a hypothetical employer who  hires fifty percent men fifty percent women which predict literally identical number of men and women but of the millions of employees half of whom are women and half of whom are women not a single one is trying gender categorize or generalize it's not that stringent some you know man or woman but it really is how you self identify yourself identify is what you are i think what i'm saying is that the employer has literally hired equal numbers of individuals half of whom self identify as men in the traditional sense and half as women and i thought what the employers not and not hired a single transgender employer specifically not wanting to hire transgendered what i'm asking you is would we refer to that employer as sexist were transferred if we were for that employer and i said i'm out of time but i would like like to answer this question that employee cannot make any adverse employment action decision towards that individual based on the fact that they are transgender regardless of anything else of an adverse employment action is taken because of some sex tale type or how someone should look for someone should behave whether or not someone has the right to have nevins i think that we have not certainly not intentionally we gave the e e o c the time that it requested was this five minutes the please don't start his time yet we gave them five minutes requested and then you substituted in graciously for the e e o c at the last minute but we had given the meet the other meaty ten minutes we certainly were not intending to slight you in any way and we will give you ten minutes and you can use whatever portion thereof you seek so that you have equal time to the other and i very much appreciate that your honor and it's specially helpful because of the way i have to structure my argument and i'll start with i want to thank the court for allowing me to be here today my first appearance for this court and i'm very grateful for that i represent the groups that were mickey curious and i want to raise basically two major points here les first how this court should approach the coverage question and then if it does does does need to reach and how it should resolve it but first i'd like to talk about approaching it because the media was when judge rosenthal's opinion came out was it was to was for them and therefore was not we did not actually reach that issue and if you and of course we'll be hearing from sixty six counsel shortly and if you didn't i would submit to this court that if you do decide to rule in favor of philip sixty six for any of the reasons that are are offered by that you should not say things that are negative about coverage for transgender individual employees under title seven and the reason for that is that as i understand pretty sure that this is true that if you if you were to rule in favor of the employer on the other grounds that are being raised of course they're not raising the coverage issue and you would say things that made me very happy about title seventh's coverage that that would constitute  a and it would be it would be this court it's a three learned jurist thoughts about the coverage question but it actually wouldn't be a binding holding a lot in our court we make alternative holdings and they can be both binding so i can imagine a scenario and i'm certainly not foreshadowing who would win right or not but the fact that you're all timid holding doesn't mean you don't make holdings along the way assuming argument that this and that the other holding but i've also encountered several cases where if the statements that were the were in that lead to a different result or that lead to a different thing and still sixty six said that it's considered an assumption but not an actual holding so i if that is the case then i'd certainly would ask that doesn't have to be written that way and i'm not foreshadowing any particular but we have precedent that has that and there and to that point specifically ron and i what i'd like to say is that when it comes to of judicial restraint when it comes to talking about that this court has certainly walks the walk on it and so sixty six of page twenty three their brief talked about take instances where the court ruled on other issues and specifically said that they weren't going to reach certain things that were covered i might say repeatedly in recently in both published and unpublished decisions this court has has has when it comes to title seventh's coverage of bt discrimination has noted that the  fiercely contested by the parties but because it moved to the employer on other grounds it didn't it was not going to make a pronouncement as times as it's not just here today are you asking us to do that here not that the fifth circuit does to reach it and said this is an important area that we should have an opinion in just as other circuits to that's not the position you're taking here i believe this court i believe this court should wait for a did a certain i certainly believe that it if i'm facing a heads we lose tails we really don't win situation which i came in assuming this i absolutely i'm asking that for this court if your if your honor is telling me that if you say title seven does cover transgender  yes kind of interesting that we have perhaps some and no offense to other lawyers in the world but we do have lawyers who are particularly adapted arguing these issues who have briefed them in other cases around the country it would you would you agree with that and so to to to rule when it's teed up i'm not saying we have to but we have done the work to do it if we were so inclined c pass instead of what it didn't pass later but let me ask let me point out a few what i can say but i believe to be analytically legal flaws first off the idea that nobody would treat a convert worse than a long time it hinted he basically he  have to treat the worst and there is definitely there definitely cases in which that is has happened indeed the u s supreme court actually ruled in one nine hundred eighty eight and first of all i should say some of these things because i'm just his briefs filed less than two weeks ago some of these cases are not before the court and i would be i would welcome the opportunity to present statement that is to work tara could respond to if the court was so so inclined i think i'm inclined to make a tip to move the court for that and that if the court decides that it wants to address the issue and accept the statement and get much more terry chance to reply i think that would be fair some of these things you know literally we got the the brief right after christmas we could all use the west and the court will make a determination when it reviews th that said because we find that e b b failed to initiate any effort to recently comedy heller's religious practice of attending the ceremony in which is wife and children were converted to judaism we reversed that judgment for the employer so there have been times in which religious converts were treated worse and that's the inquiry and it had a separate you don't have to have bias against the you don't have to be anti converts you only have to treat them worse and if you if you if an employee employer could say well with that doesn't mean that they're they didn't violate title seven what i would say to you is that martin marietta back in ninety seven one had one of the best track records for hiring women of a very large employer in the company but they said that women who had small children had couldn't hypothetical august hypothetical was a generally good employer and you could be that's the me stipulate further to my apathetic will there is no such policy along the lines of we're saying every single woman would agree we're treated exactly the same way as every single comes to another point is raised the catch twenty two point the catch twenty two point suggests that it's not it's not a problem under title seven unless the trait that that is prompting the discrimination is something that state for in the other gender this court's in brothers dispute removes that argument from that from that given your limited time if i may can i ask you to address the bathroom hypothetical under your theory that title seven forbids employers for even thinking about a person sex not just sex discrimination but any consideration of sex without also be true of a bathroom policy in iran and what i would say in response to that is that will be don't know what the supreme court has never blast outside the  qualification any of these different differential treatment on the basis of gender what what what the what mr terra suggests is that there are instances in which they would and certainly in this court and others have blessed certain kinds of things i think mail fires the person because they decide they want to use the female bathroom and the employer has a policy both are a threat to their employees and customers we want only be true what you might call the traditional approach to bathrooms employer decides to fire that person is that a tunnel some violation after all a woman would not have been fired for using women's bathroom it or i and i believe it is the reason that the u s c set for it it isn't  race did not include discrimination on the basis of interracial relationships but the question is whether or not it specifically agreed with the employer but no of course the statutes words the  mean we're not arguing for a broader definition of sex than man or woman what we're saying is that you can discriminate on the basis of sex because you discriminate against a transgender neutral the same way that you race doesn't mean a person of one race married to another one but you are discriminating on the basis of race if you engage in that and that's what the court decided in the deafened by williams ok it's not there that mean that you doubt i'm troubled and it's about the the federal hate crimes act and the violence against women act and several other funding provisions of federal law uses it adds the term gender identity whereas title seven doesn't tell me why that doesn't matter because i think the most important time if you're going to first off i don't think looking at subsequent subsequent in action by congress is a good way of doing things i mean i don't think there's an obligation for congress to update all the laws just because they chose to use better terminology in a later statute the question is still what the nine hundred sixty four statute covers and i would submit to you that in one nine hundred ninety right after pricewaterhouse the americans with disabilities act was passed and congress put in a specific exclusion stereotyping holding but they did actually change the the standard for liability under title seven in a way that space opera bull to them is witness claimed because it said if if sex race color know you mentioned marriage earlier and i'm curious what you make of the fact that there's a very similar argument was made oh well this notion that traditional marriage laws are by definition sex conscious right and  have helped us did opposing counsel raise pre text in the district court or not more but do they really open the decision because they sent a big us snow that that says we will we will not consider that but then said we will let you know one way or the other but i mean they're not saying sure we don't run afoul of any rules our company policy and so we need but need to relook at this and make sure that this is the right you know you understand your few deal in the employment law you know what i mean and schools and bathrooms and changing and that is where this is all headed and at at the point where you can judge an argument by the company this but quarter past is doing way too much more work and i have one hypothetical of a you know you you cite us to what you perceive others perceive to be eloquent but their descendants you're not winning this no not you personally but this argument is not winning in the other circuits if it's so clear and so absurd on the other side why is it not winning you know it's interesting you're saying i don't think i am winning i'm winning with job sites although i wasn't there to argue that when i didn't mean you marriage cases which are all absolutely at the bottom about white supremacy these pancreas is all going to be about not somebody who almost as if they're from another planet says i'm just really don't like people who change their lives as opposed to i don't like people who change from my religion to go to a different one or i don't like people who go to religion i don't like all of which would be actionable which is discrimination the sasquatch legend in my read is all about this person that no every counter who just really doesn't like  says that holds something that holds that sexual orientation discrimination is not covered by title seven in that was it's an old case but it holds that so unless there's been an intervening supreme court decision or the statute is changed in that regard then we have to follow that and it would bind us to the extent that sexual orientation discrimination is not substantive different in some way that no one is arguing here today than sexual the trans sexual discrimination against trans transgender people gender people which i was and i'm proud of that i had said that wrong homosexuality or sexual preference so if identification is a gender identification issue which would be distinct this court could if it again the parties of interest are not debating whether or not this is an issue beyond what judge rosenthal has already put in her water but i think maybe you should stick to what you say i think you're miki might not say it's a preference and or at the end that so but i you know i'm not and i don't think the court's going to rule time i think argument has been we are thank you for your time thank you counsel and i appreciate your patience with the court and with each other so that we could get the questions answered and give everybody a fair opportunity to be  today thank you so much and this case is submitted in the court will stand in recess until tomorrow morning thank