but does not fire female employees who date men he violates title seven the employer has in the words of section seven and three discriminated against the man because he treats that man worse than women who want to do the same thing and that discrimination is because of sex again in the words of section seventy three eg because the adverse employment action is based on the male employees failure to conform to a particular expectation about how men should behave namely that men should be attracted only to women and not to men there is no analytic difference between this kind of discrimination and forms of discrimination that have been already recognized by every court to have addressed them for example discrimination against men who are a feminine rather than macho like the discrimination here that discrimination is because of nonconformity with an expectation about how men should behave the attempt to carve out discrimination against men for being gay from title seven cannot  administered with either consistency or integrity in the words of the on bank nd circuit it forces judges to result resort to lexical bean counting where they can up the frequency of epithets such as fag gay queer real man  determine whether or not discrimination is based on sex or sexual orientation that it tempt is futile because when a man is discriminated against for being gay he is discriminated against for not conforming to an expectation about how finally the possibility that some employers but not the employers here may have policies of denying employment opportunities both to gay men and lesbians does not change the unlawfulness of what was alleged by the employees here labeling those policies under an umbrella of phrases like sexual orientation discrimination cannot hide the fact that such an employer is a double discriminator it discriminates against men who do not conform to a male stereotype and it discriminates against women who do not conform to an expectation about females race car and how do you answer the argument that back in one thousand nine hundred and sixty four this could not have been in congress mind because in many states male same sex relations was a criminal offense the american psychiatric  homosexuality a mental illness well i think you read the words of the statute and this court has recognized again and again forms of sex discrimination that were not in congress discrimination against a woman who cursed like a sailor walked like a man and didn't wear make up was reachable under title seven if you would ask members of congress and what they have thought they would not have been thinking about women like and hopkins how do you do you agree or disagree with judge posner statement that the statute should be read to encompass sexual orientation discrimination to quote avoid placing the entire burden of updating old statutes on the legislative branch i  posner i don't think you need to do any updating here i think you should read the words as they were understood then which is men and women title seven was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men and when you tell two employees who come in both of whom tell you they married their partner bill last week and when you fire the male employee who married bill and you give the female employee who married bill a couple of days off so if you she can celebrate the joyous event that's well i think we'll have further questions what do you do with the argument that this is a non discriminatory policy because it applies equally to relationships between women and relationships between men in other words your friends on the or are you emphasise that you need to know the sex of the individuals involved before you can determine whether or not there's a violation and that that brings it within a title seven but what about the response that you do not need to know the sex of the people involved you just can't a policy against same sex so you don't care whether the participants are women or men if they're the same then that's covered by the policy i think that's no different than said you cannot guard someone of the opposite sex so one who seeks to guard a man is barred from that job a man who seeks to guard a woman is barred from that drop just put it in instead of the word guard date and you get the same kind of rule here which is a man who wants to more jobs guarding male business and female prison just as guns were the part of dr begins rawlinson that rested on do impact was the height and weight requirements the requirement about guarding the opposite sex was not a disparate impact at most the court noted in a footnote along the way that there were more guard positions available to men but it was not a disparate impact case it was a disparate treatment case and so a male person who had wanted to guard someone at the the example that was brought up that way there are certain distinctions not only permitted but maybe when we wired between male and female right physical fitness test so those i want to answer that question two parts the st is to notice that in those cases there is no question there is a differential be between men and women that is men and women are being treated differently what is at issue there is whether that differential treatment constitutes unlawful discrimination under title seven so for example in johnson against santa clara county transportation agency everyone recognized paul johnson was denied the job because of his sex but thing but this court really shouldn't be writing in an exemption for those purposes you think we need exemptions for the folk use it's not just the physical fitness standards for different sports but big issue well i think the way that they get dealt with this everybody agrees if you have men's bathrooms and women's bathrooms that's because of sex treats men one way it's going to this women another which is go to this bathroom then the question becomes is that permissible to do and if i could just begin with an example that i think i'll show why this is so when i got up the chief justice said to me ms carlin i am willing to bet any amount of money i have that when mr harris gets up he's going to say mr harris he has treated us differently because but that's not discriminatory because neither of us has been subjected to a disadvantage and as this court said in burlington white against north burlington northern against white what the statute means when it's as described against is to cause an injury mean people generally to use separate bathrooms is not an injury well i'm not sure that may be how they would see it and what if to what extent should we take that into account and same thing with a gender specific we can talk absurd example you know but i'm real world i'll give you a real world example which is it probably doesn't violate the dress code to require men and women and business events for the women to wear skirts but if you require the female telephone lineman to wear a skirt was most are i understand that that's not what i'm getting at you know what i'm getting at the funeral homes examples not a bad case that we're about to take up is more in the in the realm of my question o most people would find them in oculus but the affected communities will not and they will find and how does your test deal with that one way or the other that's what i'm you if you'd like to yes my test says that you have treated the people differently because of sex which is what we're asking you to hold here when you treat a gay man who wants to date a woman differently than i'm a woman who wants to date a woman that discrimination then you get to what i've said which is you have to ask whether a reasonable person under these circumstances would be injured by the imposition of the particular sex specific so when the chief justice calls me ms i am not injured when i go to a when i do or not but another person might be right and i say reasonable or not and i'm just i'm wondering how do you decide those cases in  so the answer your question is that the question at the end of the day if i understand it is that those are acts of discrimination under title seven as you understand yes although i think it would be better advised to ask the question to someone who is representing someone who is transgender legal test that you propose to say this is discrimination because of sex as you said calling you one thing and your friend another is discriminatory but it's ok cause there's no harm differently but as this court has made it clear several times discrimination consists in an injury that the law is prepared to recognize and generally across all statutes this is another title seven and this is why i'm really not women to wear a scantily scant dress is that discriminatory yes it is is it discriminatory for the woman who just doesn't want to wear it because it's demeaning yes it is when that discrimination you have an analogy from the race area that may be helpful to the core which is for many years there was an argument that separate but equal was acceptable and ultimately this court concluded that when it came to race separate but equal was not permissible i don't think the court has held anything like that with regard to saks but you're going to have to answer that question about dress codes regardless of how you rule in either my case or in miss stevens case because the test is is the person injured yes it's the differential gender but most people  injured by having separate bathrooms in fact most people would prefer so are you saying that we have to wait for the testing for the person who might be injured not being allowed to use you segregate people the question is whether that segregation denies them employment opportunities and it's hard to see quite honestly how requiring men to use a men's room and women to use a women's room denies them employment  just may i ask you to respond to what some people will say about this court if we will in your favor and what they will say is that whether title seven should prohibit discrimination on the basis of sexual orientation is a big policy issue and it is a different policy issue from the one that congress thought it was addressing in and sixty four and congress has been asked repeatedly in the years since one thousand nine hundred and sixty four to address this question the equality act is before congress right now congress has declined or failed to act on these requests and if the court takes this up and interprets this nine hundred and sixty four statute to prohibit discrimination based on sexual orientation we will be acting exactly like a legislature we might as well just take the quality act and issue that as our opinion and say as judge posner said that the courts need to intervene on questions like this when the legislative branch simply will not do so what would we how would we respond to that question well the fact that a loose cannon like judge posner says do whatever you feel like is not what we're here asking for we're saying if you read the words you know i woman who enjoyed sewing and there's a famous case it's the found day usual case on sexual orientation where they fired a man who said he wanted we would not be deciding a major policy question that was not in congress's mind in  that congress has repeatedly failed to address in the years since then no more than what you did and i'll call no more than what you get in pricewaterhouse no more than what you give your new because there is there in my mind there are three basic parts of this case on the of the side to language you've dealt with up the parade of horribles you've dealt with and the rd one is the one that alito is bringing up in one form as it comes out of the out of the briefs as i read it what german policeman the meaning is the same german policeman are policeman but the statute doesn't apply to them how do we know well we know through a lot of history backs the box in which i put the argument that justice alito made to serious legal argument and the argument is that at the time congress wouldn't have dreamt of this and therefore the words though they apply they meant to exclude the gays and transgender now what i need to hear is a clear answer to that question i think the way to think about this is to ask about the specific behavior that's at issue which is a man date a man and then ask how does child services like gerald bostic should not be denied a job because they are a man who does something that if they were a woman would cause no problems at all so just to give an example from the st sex discrimination case this court had which was the phelps against martin marietta case a woman who has children at home should not be denied a job that a man who has children at home now all you have to do is say those words apply also if it is a woman who has a wife at home several so i think twenty three states have been passing laws to address these issues and i don't know how many of them but i think it's a big part of them when they do extend the coverage against  e discrimination on the basis of sex to sexual orientation tranter they also include an exemption for religious organizations now if we're going to be extending the understanding of what sex and is and i know your argument then that's not true and how do we address that other concern that at least i think almost every state legislature that has extended it has felt compelled to address well i would say three things about that the st is this court has already created an exemption for sincere religious belief for a large category of employers through the ministerial exception the nd is that congress balanced these issues and has rebalanced them several times in the coreligionists exception the rd thing i would say is to understand this in context which is any five percent of american employers are not covered by title seven at all so as to those employers if they have religious objections to hiring someone who's gay they are free to continue doing that and the th is to make it very clear that the question is not whether people have religious objections to homosexuality it's whether they religious objections to hiring someone who is gay or lesbian and there are many employers just beliefs would tell them this would be immoral for them who have no problem hiring gays and lesbians who are qualified to do a job if i could just ask the court to do one thing in thinking back to one thousand nine hundred and sixty four it is to look at the two foundational opinions on which everybody has played a game of telephone ever since it's like your opinion last term in argus media where yes we are to the idea that homosexually wasn't covered come from it came from st a case where a gay black man said he was being treated worse than gay white men it wasn't even a sexual discrimination case the nd one came from a straight man who was fired because he was denied a job because he said his hobby was sewing and the employer said that's one of them in a hobby so i bet  evan but that we should take a broader view of what congress had in mind but it was not that was not the premise of my argument new york or the the the parties have in their briefs have all of these comparisons and they will make your head spin if you if you try to figure them all out but let me just go to your core one which you began with today a man is attracted to other men he's fired let's say a woman is attracted to men she is not fired you say that's all you need to look at that's discrimination on the basis of sex right yes ok that's not that's not correct because there are two possible explanations for what happened there could be based on sexual orientation or could just be based on the fact that the employer wants does not want to hire men and if you add in two other cases that a man who is attracted to women not fired a woman who's attracted to women is fired then you have a much better idea the basis for the discrimination and it's sexual orientation it's not sex but in a case like the two cases before this court where the employer had hired these men and they were already there supposition you made in your question doesn't apply which is we know this is an employer who's willing to hire men indeed the employer in general but i mean the employer dons are this case had only men skydiving instructors so when he fires a man who wants to date a woman and he does i mean a man who once a day to a man and he does not fire a woman who wants to date a man but the point is that discrimination on the basis of sex in the sense that congress understood it in one thousand nine hundred and sixty four is a different concept from discrimination and that's what you're fighting you're trying to change the meaning of what congress understood sex to mean and what everybody i'm not trying to change that that all i'm simply saying that if a man and a woman both wanted to sew and you fire the man who loves sewing and you don't fire the woman who loves sewing that's discrimination pure and simple sex discrimination if you fire it if you fire the man who looks thank you thank you couns orientation in private employment the proponents of that law celebrated its passage as a landmark achievement for gay rights according to the plaintiffs here however wisconsin's landmark law actually had little if any practical impact because congress had already banned sexual orientation discrimination nationwide eighteen years earlier in the civil rights act of one hundred and sixty four to quote judge lynch's dissent below congress did no such thing sex and sexual orientation are independent and distinct characteristics and sexual orientation discrimination by itself does not constitute discrimination because of sex under title seven that's just as true today as it was in one thousand nine hundred and sixty four the core error in the nd circuit's i'm holding is actually quite similar to error that led this court to reverse in on cal in on cal the th circuit had held that same sex harassment claims were categorically excluded from title seven this court correctly reversed and held that such claims may cognizable as long as the plaintiff meets all requirements of the statute especially what this court called the quote critical inquiry into whether members of one sex were being treated worse than members of the other sex this case is just  mirror image of on cal whereas the lower courts in un calla doc did a categorical exclusion the nd circuit adopted a rule of per se inclusion in which plaintiffs alleging sexual orientation discrimination receive a free pass around the critical inquiry into whether men and women are being treated differently because of their sex in short the nd circuit simply changed the ultimate question from sex to sexual orientation but because both men and women may have same sex attractions or partners a standalone allegation of sexual orientation discrimination cannot without more show discriminatory treatment making money understand your argument in context let's answer the question employer looks at a man or that a lesbian is too much or whichever from your attracted to the other sex how do you tease that out just to sort of i don't disagree that there will be tough cases at the margins but the problem title seven has causation and injury not hiring not firing that's the injury now the question is what caused that being to a feminine that's a sexual tr being attracted to if you're a man to another man that's a sexual trait it's caused by those two things are and then we moving to the rd question which is is there a reason independent of your religious belief or your innate hatred and then visit eous discrimination for why you're treating this person differently and if there is you have a b f o q you don't have to hire them you can fire them but if there isn't and they're doing their job and they're not bothering you and they're not bringing their boyfriend or girlfriend if it's the opposite sex to a function to your private home because you don't want them there or whatever else is offensive to you they're just working so i don't understand why th hard cases but will any harder than with the law are plies for race discrimination for religious discrimination for any of the other forms national origin discrimination so your honor as this court has emphasized in cases such as johnson controls the b f o q exception has been interpreted extremely narrowly and so i think it is important as this court emphasized in un cal the court emphasized several times the need to ensure strict compliance with all requirements of the statute including the discrimination element because once you find discrimination it gets very hard to make out the b f a q so i don't go out with come out differently if the employer said i don't mean to work on platforms only people i hire men well that obviously would have been discriminatory against the women seeking but it's just the woman who's doing what he may know who is being harassed by other men and the employers defense is you can't compare what i'm doing to someone who discriminates on the basis of sex between men and women but i don't hire w so it's of course it's not a complete defense or even our defense to say i treated in cases like martin and like martin marietta it was not a defense for that employer to say because i hired other women it excuses this so the answer to questions that would not be a the employer said i don't want any men who are not sufficiently macho and they go on any women who are not sufficiently  ginsburg the way i think the best way to think of pricewaterhouse is when an employer has certain traits or characteristics that it values in promotion and hiring and discharge decisions there can't be a list of criteria for men and a list of criteria for women so i think the solicitor general offered the hypothetical that you're on her side and in that situation there would be two sets of criteria and so maybe both a man who doesn't meet the women's criteria and women who doesn't meet the men's criteria would have a claim there  but but it wouldn't be it would not excuse it just to say that there are different criteria for each sex suppose suppose catholic do want to get married employer fires the catholics why he's not against catholics claim there why isn't there so in the race context the only difference between i didn't say race i said religion and the real in the context of religion was st of all religion is defined as is the only one other than pregnancy which has an expansive definition yes it would be religious discrimination because between a a couple that is catholic and jewish and two catholics the only difference between those couples is their religion and the only difference between the two couples here is that one is a man rather than the woman except it also introduces an independent characteristic which can be completely neutral so does it they are why i'm not against catholics i am not against jews i am against intermarriage if that person or actor exists i think it's foreign there are many people at least in the religious context who are against intermarriage and are not against catholics or jews that's not an unrealistic example and all i find in that example is an identical case to this one and i think that i do think that most of the in most people who would oppose any sort of interreligious marriage would do so for religious reasons and i would also note in me just as i think i think what all of these hypotheticals are about is that in many of our cases what you find is what you use said what to do say independent characteristics they're all over our cases if you take man heart which is the seminal case manhood was all about an independent characteristic it was about life expectancy but we didn't say oh we're going into some different sort of analysis where we don't just say what the same thing that happened to you if you were a man or what the same thing happened to you if you were a woman because we had an independent characteristic which was life expectancy and and so the same thing here so all of these hypotheticals are really about the same thing which is that man hart gave us a very simple test and man hart said what do you do when you look to see whether there is discrimination under title seven is you say what the same thing that happened to you if you were of a different sex and ms carlin made all of the you know went through all of the ways in which obviously this is the same thing when not have happened to you if you were a different sex you'd be in her client so i mean that's the question they're independent characteristics  that the policy wasn't just about longevity that the employer made no attempt to do any sort of bonafide underwriting or life expectancy estimates it simply charged the women more so even a woman and a man if they each had a seventy five year life expectancy they would be charged different rates even though they were poorly similarly situated with respects but man it was very clear that women in the aggregate were probably going to be fine under this policy because women in the aggregate do have a higher life expectancy i mean i think actually manhart makes clear why another aspect of your argument is it's wrong because you say well we have to look at these big classes but there's nothing wrong in man heart when you looked at big classes what became wrong and man heart was when you looked at individuals and when you look at individuals which men heart insisted one do one should do and when you apply the test that man heart insisted you apply would this woman have been treated differently if she were a man the answer was yes and similarly i guess i'm just going to ask you again if you applied that test don't you lose and if you do lose why should we not apply that test here's the problem with the test in man hard in newport news in martin marietta the comparative test makes perfect sense because you know exactly what you're testing for so the compared or helps you draw inferences from the evidence the problem here is unless the plaintiffs can point to something outside the to tell us why we need to hold sexual orientation to tell us why that's irrelevant they're just assuming their conclusion so they're comparing her would say you would ask if a gay man has suffered sex discrimination by comparing him to a heterosexual woman in which that version of the compared her can't isolate if it's the sex or the sexual orientation and so i do think unless they can point to something outside the comparative to justify putting sexual orientation off limits the comparative doesn't doesn't answer the ultimate question it certainly may not isolate the soul or proximate cause but i think the argument on the other side is the language of the station as a but for causation stand more generous causation standard so perhaps there are two causal factors at work here but isn't one of them sex in the narrow sense of of of biological gender what's what's your response to that yes so in the what i'm arguing is simply that sexual the your response to justice kagan was i need to focus on sexual orientation because that's the sole or primary causal factor here for the firing and i think the response from the other side is that the statue has more generous causal formulation a but for causal formulation so perhaps you're right that at some level sexual orientation is truly in in play here but isn't sex also in play here  because of the change of the st variable so i think and isn't that enough if you know the statute talks about a material causal factor some formulation like that not the sole cause not the proximate cause but would in what in what linguistic formulation wouldn't one say that sex biological gender has nothing to do was what happened in this case yes your honor so what you're referring to i believe is the motivating factor language and so in what i just referred to as the sort of benchmark scenario sex would not be a motivating factor there if you look at mr bos stocks complaint for example and you strip out any mention of his sex as being a man again we dispute the allegations of course but it would still make perfect sense but if you stripped out any reference to his sexual orientation it would make little if any sense in so in pricewaterhouse this court helped to give guidance about how to do the motivating factor analysis and said i magine you gave the employer truth serum and said what were your true reasons for doing this would one of them be the characteristic in what i would call that benchmark scenario all right let's sex would not be let let's do truce or ok wouldn't wouldn't the employer maybe say it's because this was this person was a man who liked other men and isn't that st part sex your honor i think in common parlance we would call that a same sex attraction and i want to be clear if there is some reason to think that employer and some of the amicus brief say that much discrimination against gay and lesbian people is based on that sort of a gay men or lesbian women if there is some reason to believe that in that scenario then that may well be a motivating factor but when you simply have an employee saying i was fired because of my sexual orientation that alone does not show that crittur what w called the critical day critical issue of distinguishing between men and women are you drawing a distinction between the literal meaning of because of sex and the ordinary meaning because of sex and if so how are we supposed to think about ordinary meaning in this case i don't see a difference between the two words and the last point and running out of time i think took to go back to some of the questions about bathrooms and fitness standards i want to be clear under the plaintiffs simple but for test if you truly simply apply the man heart test or in the way they want to do it i don't see any way that single sex bathrooms or showering facilities have to someone who's injured you injured but separate that in fact they like it yes your honor although of course if someone for example is fired i imagine a factory with hazardous materials where people shower after work and two to clean up and a man used the women's bathroom is fired that person would certainly be injured and i think under my friend's house they would say just change the sacks and that person would have a plate but here's the problem that's not a similarly situated person the proper analysis would say that a neutral policy such as you use the showering facility that corresponds to your biological sex the man who uses the women's shower at the comparative is not a woman who uses the woman's shower it's a woman who uses the men's shower because otherwise you're not otherwise you're you're loading the dice or you're not parallel laws is highly instructive and so i think the fact that twenty two or twenty three states have done this by legislation and zero have done it by judicial interpretation just shows that this isn't a belt and suspenders it's not just i'm sorry i can they never be just this just this judge lived below said that almost sobek stereotypes are unrelated to sexual orientation the very st case before a shows that that's just not true that homo sexual orientation is highly correlated to people's stereotypes if you're to offend a minute and then you're a homosexual if you're too much of a woman you're a lesbian happens all the time so i find it somewhat difficult on wind that it's not difficult nearly impossible it often is your own and it's  sad reality that homophobic slurs are often directed at heterosexual or homosexual people to and that is ok until you're thirty it is absolutely not your honor if that person can show discrimination because of sex but what  courts can't do is what the nd circuit did and the th circuit did in highly footnote eleven of those are the opinion is very candid about this where it talks about operationalizing its holding the nd circuit is just going to change the jury instructions to tell juries that if they find sexual orientation discrimination they've now found sex discrimination just a sort of where i don't disagree that there will be difficult cases at the margins but the answer is not to change the ultimate inquiry and replace it with something that congress never could have  well if you have a minute let me ask you this let's imagine that the decision maker in a particular case is behind the veil of ignorance and a subordinate who has reviewed the candidates for positions says i'm going to tell you two things about this candidate this is the very best candidate for the job and this candidate if it is attracted to members of the same sex and the employer says ok i'm going to hire this person for that reason is that discrimination on the basis of sex where the employer doesn't even know the sex of the individual involved may you please that would not be discrimination based of sex and i think that's exactly right if you get a resume 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 it has absolutely nothing whatsoever to do with sex discrimination thank you counsel general francisco mr chief justice and may it please the court the issue is not whether congress can or should prohibit employment discrimination because of sexual orientation the issue rather is whether it did so when it prohibited discrimination because of sex it did not for two reasons st sex means whether you're male or female not whether you're gay or straight so if you treat all gay men gay men and women exactly the same regardless of their sex you're not discriminating against them because of their sex nd any doubt is removed by the history of title seven related statutes since in the face of unanimous interpretation by the courts and the executive branch that persisted for decades congress has repeatedly extended other statutes to specifically cover sexual orientation it has refused to do so with respect to title seven the employee's position would know if i that conscious choice and justice course if i could st address your question about my friend on the other side's argument about the literal meaning of the statute while there are essentially two responses to that argument and the related the st is that under that interpretation you actually couldn't fire a man for using the woman's restroom because in some metaphysical sense that man sex is a but for cause for his firing enjoy he's fired your honor in my hypothetical and the reason why that is permitted i think counsel acknowledged that yeah and the reason why that's permitted though to do that is because you're treating and this is my nd point you're treating him that the seam as a similarly situated woman that is a woman who uses the men's room and that's always the critical analysis when you're trying to determine if somebody is being is a room in a tit against pigs is it and let me give you an hypothetical case an air lowering hires only women as a cabin attendant but it fires them if they marry the airlines defense is whatever we're doing it's not sex discrimination against women because we don't hire any men at all married or unmarried that case i take it well no your honor because i think the problem is that the prohibition on hiring any male flight attendants would in and of itself but get let the male is not complaining the complainant is the woman who was fired because he married ok so the real complaint might have a very good case but my case right and my woman and my problem with the hypotheticals that the way it's constructed there is you know presumably no men that have the job in the st place now if you say that in theory men should be able to have the job then the question would be would you also have fired men who were married and if you only fired women who were married but not men who were married that would plainly be but they fired this woman because she married because she didn't look like cheryl fly me right when she married she wouldn't be attracted to male passengers the court of appeals said silas seven was meant to strike out the entire spectrum of sex stereotyping so if this woman was fired because she wasn't she would no longer be so attractive to men in that that's se discrimination and we don't have to have a a male involved this is a woman who was treated in a very stereotypical way she is no longer a young of when she married your honor i do think that the question is always are you treating similarly situated men and women differently there are times where issues of proof are very difficult for example in the it general can i go back to your opening statement and particularly to the nd part of that you talked about the history of of of title seven and some of the subsequent legislative history and i guess what strikes was struck in reading your briefs too is that the arguments you're making and i would say are not ones we typically would accept for many years the low star of this court's statutory interpretation has been the text of a statute not the legislative history and certainly not the subsequent legislative history and the text of the statute appears to be pretty firmly in this carlin's corner did you discriminate against somebody against her client because of sex yes you did because you fired the person because this was a man who loved other men and part of that and it only has to be part we've made very clear there's no search for soul cause in title seven part of that is you fired the person because he was a man if he were a woman he wouldn't have been fired this is the usual kind of way in which we interpret statutes straightforward textual argument the law distinguishes between sex and sexual orientation those are two different traits and that's precisely why when congress wants to prohibit discrimination based on sexual orientation it doesn't cause appears to be sex well your honor a couple responses st i don't think that one contributing causes sex i think that as long as you're treating gay men and women exactly the same regardless of their sex the contributing cause and sexual orientation not sex and two i think it reflects the fact that sex and sexual orientation are different traits and if you do the analysis the way my friends on the other side suggested you've completely eliminated the distinction which i mean two very different tra that the employer would not employ lesbian women you know are your honor in these cases and this may have been a better question for my colleague but i think in the employees of discharging were not writing as being women i think that's right i think basically the employers defenses here were one i didn't fire him because he was gay but two if you think i did  title seven doesn't prohibit discrimination based on sexual orientation and if i could address lastly the point that the chief justice and justice alito were raising about so called legislative updating that judge posner suggested here i think that a judicial ruling would be particularly pernicious because when congress seeks to expand the scope of title seven is liability provisions it typically couples that itself with an expansion of the religious employers exemption to title seven precisely because issues of sexual orientation like issues of gender identity raise different issues from a religious liberty perspective the employee's position here would only do half of that work it would expand the scope of liability without giving any consideration to those religious liberty interests on the other side of the balance and that is precisely why this is the type of issue that is better left to congress and the courts just as courts as i want to make sure that i fully address your textual considerations though because i really do think it boils down to the fact that sex and sexual orientation are different traits and i finish my answer your title seven prohibits discrimination based on one of those traits is long as you treat men and women who are similarly situated with respect to the other trait exactly the same you're not quote unquote discriminating under within the meaning of title seven thank you counsel thank you i five minutes it was carl of firing both all gay men and all lesbians what tends to happen in this case is a lot of this is a man who also doesn't conform with some other gender based area types and who is gay gets fired which puts them in exactly the position that just or mention which is really devilishly hard to figure out what's going on here the nd point i just want to leave the court with is the entire argument on the other side depends on the idea that men who are gay and women who are lesbians are being treated the same and that's just not so because if you look at what actually causes the problem it's the man who says i married my partner bill if any woman who worked there had married bill he wouldn't she would not have been fired and he is and you have to look because the textu language tells you to at such individual and not at the overall class clown to address the general statement that the editor he he goes back to the comparative should be a woman who a man who likes abandon a woman who likes when you're trying to get to that yes i think he he is appearing in two things there one is varying the sex of the employee and nd he's varying the sex of the person to whom the employee is interested and said i like to date men you wouldn't of fire and when a man says i like to date men you did that's enough to show sextus what if the decision maker makes a decision based on sexual orientation but does not know the biological sex of the person involved well there is no reporting case that does that i'm right the court can't wrestle with it what if it happened we've had a lot of hope the thought of course of things that may or may not have happened what if that happens is that discrimination on the basis of sex where the decision maker doesn't even know the person sex and how do they know the person's sexual orientation because somebody who interviewed the candidates tells them and they were unable to tell anything about the person sells so this is saturday night live pat  as an example right well i'm not familiar with the person named pat you can never tell whether pat is a man or a woman i mean theoretically that person might be after but here is the key to radically what theoretically that person might be out there but here's the key cases that are brought are almost all brought by someone who says my employer knew who i was and fired me because i was a man or fired me because i was a woman somebody who comes in and says i'm not going to tell you what my sex is but believe me i was fired from a sexual interaction person will lose well if that's the case then i think your whole argument collapses because sexual orientation then is a different thing from sex of course it is no one has claimed that sexual orientation is the same thing as sex what we are saying is when somebody is fired i mean your argument is that sexual discrimination based on sexual orientation necessarily entails discrimination based on sex but if that's the case that there would be no why ability in the situation where the decision maker has no knowledge of sex then that can't possibly 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're 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 and it's important to understand that and this goes back to something that justice ginsburg asked during the opening argument that discrimination against gay men and discrimination against lesbians is not one thing and in one thousand nine hundred and sixty four if you look at the members of congress as brief they will tell you if you looked in the dictionary there was no  sexual orientation that is a modern way of combining two kinds of discrimination discrimination against gay men which goes back to leviticus and the common law and discrimination against lesbians which was not part of leviticus and was not part of the common l orientation discrimination in the abstract without reference to sex simply burks the history and burks the understanding and if you look at the harassment cases you will see why this is true gay men are harassed in a different way than lesbians