me stevens is a transgender woman she was a valued employee of harris funeral homes for six years until she told her boss that she was going to live and identify as a woman when harris holmes responded by firing her it discriminate against her because of her sex for three reasons st and firing her for failing to conform to its owner's explicitly stated stereotypes about how men and women should behave it discriminated against her in the same way that pricewaterhouse discriminated against and hopkins for failing to walk and talk more family it can't be that and hopkins would lose her case on the same facts were she transgender second paris holmes fired her for identifying as a woman only because she was assigned a male sex at birth in doing so it fired her for contravening a sex specific expectation that applies only to people assigned male sex at birth namely that they live and identify as a man for their entire lives that is disparate treatment on the basis of sex rd harris homes fire her for its owners words changing her sex that's discrimination in the same way the firing someone for changing their religion would be religious discrimination that harris holmes would fire both transgender men for being insufficiently famine and transgender women for being insufficiently masculine is as the government concedes to acts of sex discrimination not a defense none of these arguments ask this court to redefine or in judge posner words update sex they assume argue end of that sex means at a minimum sex assigned to birth based on visible anatomy or biological sex i under i understand that is the argument i believe it's the same as in the prior case but it doesn't argument hold up when you get to specific work requirements in other words if the objection of a transgender man transitioning to woman  that he should be allowed to use he or she should be allowed to use the women's math room now how do you analyze that i understand how you analyze the status as it were and maybe that's hiring and firing on the basis treating it as just on the basis of sex but when you get to specific policies is that its hold true so st of all your honor how one how you answer this case will not resolve how you answer that case whether you rule against us or for us the next case will arise in the following sense a dress code that distinguishes on the basis of sex obviously is because of sex the question then is doesn't impose a discriminatory term and condition and is this court s burlington northern to discriminate is not just to differentiate but to differentiate in a way that injures and i think you're i think you're missing my my point maybe because it wasn't carefully expressed but it's can the claim be i mean i understand you say you're dealing with transgender status and you can't discriminate on that basis with on the basis of standards but when you get to the actual policy do you analyze it as discrimination on the basis of sex carrying forward your reasoning at the outset or on the basis of transgender status so if the objection of the transgender individual is that i want to use a bathroom consistent with my gender identity rather than biological sex do analyze it as the affecting based on the transgender status or do you analyze it on the basis of biological sex so the i think our argument rests on biological sex or what we saw i think is more accurately referred to as sex assigned to birth but here's here's the thing with if there is a this this case asks whether when someone fires someone because they're transgender or because they fail to conform to sex based era types is that because of sex that's what this case us obviously a sex specific restroom policy is because of sex that so you're not we're not answering that question it's because of sex then the question i just if i could interrupt so i can follow it's because of sex a cause of  analyze it because of sex then i think it's been pointed out there's no disadvantage whether you're a man or a woman but if you analyze it on the basis of transgender status there is because you want to use the women's restroom be biologically male so when it's analyzed on the basis of sex there's no problem but when it's analyzed on the basis of transgender status it presents a whole different case so i don't think so you are i think anybody can challenge a sex specific rule a transgender person can challenge the sex of a cool down transgender person can challenge a sextus if it will what this court said in burlington northern and on call is that to decide whether something discriminates that refers to sex is you have to ask whether or not just whether a different the friendships and weather differentiates in a way that injuries and you answer that question by asking would a reasonable person in the plaintiff's  that reasonable person in the transgender plaintiff's position would be harmed if he or she were fired for failing to follow the the bathroom rules  or some sort of dress code that's not otherwise objectionable or along the lines of yes there were present the facts of this case where men and women had rather traditional options available to them but  so is that your answer as well that is that is my answer and here's why let's say we have a sex specific dress code and you require me or you to follow the male dress code most instances that's not going to be a significant harm that's an going to be a trivial harm as the court talked about in burlington northern therefore it's not discrimination even though it differentiates on the basis of sex but if you ask you or me to dress as a woman we w consider that a significant one and when you ask a transgender person to dress in a way that is contrary to their sense of gender identity you have imposed a significant harm and the harm is because of sex based on no logical justice roberts mr coe let's not avoid the difficult issue ok you have a transgender person who rightly is identifying as a woman and wants to use the woman spectrum rightly or wrongly not a moral choice but this is what they identify with their need is genuine i'm accepting all of that and they want to use the women's bathroom but there are other women who are made uncomfortable and not merely uncomfortable but who would feel intruded upon if someone who still had male characteristics walked into their bathroom that's why we have different bathrooms so the hard question is how do we deal with that and what in the long will guide judges in balancing those things favor then that question is in evidence well i think even employed now you say your answer is it may not be in if they're single sex bathrooms there might be one answer meaning what harm would the other women reasonable women feel if a man's using a single sex bathroom might be another if it's to locker rooms men with girls and boys and who walks in that is something you can't control role and anyone who is affected by a sex specific will can argue that it discriminates against them because a reasonable person in their shoes would experience a significant harm i understood you i interested you to say maybe i didn't understand you correctly that if your client had been fired for using a woman's bathroom that would be a violation of title so i what i said was yes that that i'll review it were we litigated in that case here which we aren't  they admitted that the restroom was a was a hypothetical issue and not a reason why she was fired but were we litigate in that case i think the question would be not whether the policy was because of sex which is the question here because obviously the restroom is because of sex the question would be does imposing that restroom policy which is obviously because of sex impose a discriminatory injury on an individual and that if you require me to go to the women's restroom that's and so what you're saying is that we're stuck with that question regardless of how we decide whether they rule for or against us this well but the difference is that part of the argument at least is that the term sex includes sexual orientation and and  if that is the case if we analyze the bathroom case and purely on the basis of biological sex maybe you have one answer but if you analyze it in terms of transgender status you have a different answer because men and women  identify with their biological sex aren't disadvantaged whether they're used to men's room you know that they each can use their own restroom but the issue seems is quite different if you're dealing with a transgender individual who wants to use the restroom of their gender identity contrary to their biological sex and the question is how do you analyze that you say meet case it's been the basis of sex do you analyze it on the basis of biological sex are you analyzing it on the a different basis because they present different issues that you know are for this for purposes of this case all we are arguing is that title seven your reference to sex at least includes what you're calling biological sex what we call sex is miserable you can go further than that for purposes of the next case or it in class exactly by logical sex as well all that you are saying is yes that book because of sex means because of biological sense regardless of whether the transgendered person or whether a non transgendered person brings this claim about the restroom and strangers then it's then it's an easy case right because if it's just biological sex there's no problem because there's no disadvantage but if you're looking at transgender status there's a huge problem because it's not biological discrimination where the claim is going to be different certainly a transgender individual can bring the claim under title seven that it discriminates on the basis of sex right but if the claim is it discriminates against me because i'm a transgender individual that's not your claim but that's not the the claim here is that you are treating that harris holmes is treating amy stevens differently because of her sex assigned birth if she had a female sexes on birth she would not be fired because she had a male sex society birth she is fired that is discrimination because of sex what about all that and then doesn't this decide the bathroom question because the bathroom the court said in burlington earlier does impose a significant burden in burlington northern the court said the same rule could impose a significant burden as to some people and a trivial burden as to others a schedule change might be trivial for a worker with no beyond the bathroom to another example before us but it will be coming so a transgender woman is not permitted to compete on a woman's college sports team is that discrimination on the basis of sex and violation of title minor so title nine is a different statute with regulations that explicitly permit sex segregated teams when competitive skill or or contact sports are involved so again this is a question from one who has friends from male to female right and want to play on the female team she is not questioning separate right and i think the question again would not be affected even by the way that the court decides this case because the question would be is it permissible to have sex segregated teams yes where they involve competitive skill or or  contacts boards and then the question would be how do you apply that permissible sex segregation to a transgender individual and it may be that because title nine recognizes concerns about competitive skill in contact sports that it's permissible it may be that it's not permissible but this question this case just asks when you fire somebody because you say she wished he was going to represent himself as a man because she was using the name and that's not permissible because discrimination yes that is sex discrimination whether when you have a policy that permits sex segregation how that applies to transgender people is just a different question it is not answer one way or the other by this case you would still have to ask is it fair to keep that person off of the team just like it's fair to keep a man off of the team the the stereotypes in this case are every bit as strong as they were in pricewaterhouse what mr in fact they're stronger because in pricewaterhouse you had to infer from statements that non decision makers were making about why and hopkins was fired here mr ro has made his sex stereotypes absolutely clear and the government and petitioner concede the transgender people are not excluded from the statute it's not like the german police officer they can see transgender people can bring sex discrimination claims she has brought a sex discrimination claim because she was fired for failing to conform to sex based stereotypes explicitly stated by her employer that it can't be again and hopkins would lose her case we're see transgender that says that it's not ok to employ sex stereotypes against an employee until that employee becomes transgender and at the end of the day the objection to someone for being transgender is the ultimate sex stereotype it is saying i object to you because you fail to conform to this stereotype the stereotype that if you are assigned a male sex at birth you must live and identify for your entire life as a man that is a true generalization for most of us but it is not true for one million five hundred thousand transgender americans and so to say we're going to fire you because you failed to  to a generalization about how people who are assigned a particular sex based on visible anatomy at birth have to live their lives for the rest their lives is sex discrimination it's also sex discrimination because she was clearly treated differently because of her sex assigned to birth imagine an employer had six and a maze and he invited all six amy's in and he said you know i just want to know what your sex a sign of birth was and five of them say well i was  signed female birth and one says i was assigned male birth and then he fires the one who says i was assigned male birth obviously that person was fired because of her sex a sign of birth and as we saw from the prior argument it need not be the only justification need be only one justification and i and the notion that somehow discriminating against someone because they're transgender is not discrimination discriminate against them because of their sex i think falls apart because to say i'm discriminating against you because you are transgender is to say i am treating you differently from other people who have the same gender identity because of your sex assigned at birth again we're not asking me to update the statute we're not asking the in redefining sex we're accepting the narrowest for purposes of this case the narrowest definition of sex and arguing that you can't understand what harris holmes did here without it treating her differently because of her sex on earth that there seems to mr cote to be this dispute among the parties in this case as to what the basis of the firing was  at the basis of the firing was the the violation of the dress code particularly or whether it was broader than that was being transgender what should we make of that dispute well i think the music circuit expressly said that the reasons for firing her extended beyond the dress code counsel for harris holmes conceded at oral argument in the nd circuit that she would have been fired if she showed up as a woman even if she were following the dress code and that's in petitioners appendix sixty six as a from the th circuit decision and he fired her after he got the letter saying i am coming out as a woman i'm going  to heretofore be called amy without any discussion of the dress code whatsoever so this is a case of recall though your argument though doesn't turn on that i mean it is i understand again that if the firing had been soley what the employer claims the basis of the dress code only result be to say and i guess i'd just like you to have a chance to respond to judge lynch and his thoughtful dissent in which he lamented everything you have for us but suggested that something as drastic a change in this country as bathrooms in every place of employment and dress codes in every you probably regretted having to write what you said to him i say that recognizing that transgender people have a right to exist in the workplace and not be turned away because of who they are does not statutes that are old and that's the question he posed right nobody is questioning and he certainly did not the legitimacy of the claims and the importance of them so so i think which is a matter of judicial interpretation there's two if you wish i assume for the moment i'm not i'm with you on the textual evidence is close ok we're not talking about extra textual stuff or time of the text it's close a judge finds a very close at the end of the day should he or she take into consideration the massive social upheaval that would be entailed in such a decision and the possibility that that congress didn't think so and that that is a more effective more appropriate a legislative rather than a traditional function but that's it is a question so st of all federal courts of appeals have been recognizing that discrimination is transgender people is sexist commission for twenty years there's been no up people as i was saying there are transgender male lawyers in this courtroom following the male dress code and going to the men's room and the the court stress code and sex segregated restrooms have not fallen so the notion that somehow this is going to be huge are people we haven't seen that up people for twenty years there's no reason to you would see that of people transgender people follow the rule that's associated with their gender identity it's not disruptive and as to whether this is a question of interpretation it is absolutely a question of interpretation how in the world can the court interpret title seven to say that an hopkins can't be fired for being insufficiently feminine but my client can be fired for being insufficiently masculine there is no textual basis for drawing that distinction whatsoever and that's because our argument rests on text meaning at a minimum sex assigned to birth or biological sex and everybody agrees you want to address judge lynch's arguments or not i thought i was number one it won't it's not disruptive that transgender people exist in this world and we still have sex segregated dress codes and number two it's not asking you to address a policy question that would be more appropriate to congress but asking you to interpret the statute as it is written and as everybody agrees it applies to sex assigned to birth thank you thank you counsel please the court treating women and men equally does not mean employers have to treat men as women that is because sex and transgender status are independent concepts now in the context of this case title seven gives tom ross the ability to consider how enforcement of a sex specific dress code would impact all his employees and grieving clients but the six circuit imposed in new restriction and its holding destroys all sex specific policies and even b f o undermining the protections that title seven provides if you accept at face value stevens concession that sex means biological males and females then the funeral home wins so my friend mr cole redefined sex to include transgender status in two respects st my friends but for test would mean that a woman's overnight shelter must hire a man who identifies as a woman to serve as a counselor to women who have been raped trafficked and abused and also share restroom shower and locker room facilities with them that is because but for the man sex he would be allowed to hold that job and to use those facilities the part of really simple test does not get to the ultimate inquiry of whether men are being treated less than similarly situated women because of sex that does not reflect the original public and legal meaning of a statute promoting women's equality nd under my friend's stereotyping logic it is always illegal stereotyping to apply sex specific policies based on biological sex and that's why he's wrong to say this case isn't about showers and overnight facilities and sports everything single one of those is impacted if you're talking about a sex specific policy what title seven says is that sex based differentiation is not the same as sex discrimination and that's why mr carlin agreed that this court's sex specific dress policy doesn't violate title seven and though congress has added classifications to cover transgender status in other statutes it has rejected more than a dozen proposals here i don't have an arg you've made the argument which i called the parade of horribles organ if you've heard as i have for the last hour and a half the response which is that isn't this case that many of the things that you are worried about would be taken care of by bona fide occupiers through qualification that other of those things would be taken care of by the need to show harm as well as to show difference and that there could be no we haven't done that i'm not advocating it yes or no the possibility of bringing into such cases comparative harms and all those things are open and if you say that the lower court decided them this is not the lower court i take it that we are deciding simply whether it falls within the words sex discrimination and on the of the saud and therefore it is a b f o q ok and so this is not that case we do not have to decide and i don't see why or how you can assume the answer and then build your argument on an answer that i certainly haven't given it their answer and here is why if stevens is right that you cannot apply a sex specific policy to those who identify as the opposite sex then you cannot apply that policy to anyone because that itself would be sex discrimination right there just on a like off chance that i feel we do not have to decide that matter in this case have you other argument that would favor your saud i know you do and i'm just in some point here that certainly there compared or is a man violating the dress code with a woman who follows the dress code that is wrong are compared or is a man who violates the dress code with a woman who violates the dress code now the reason we know there is wrong because if you were claiming transgender status discrimination rather than sex discrimination you would compare a transgender anyone transgender employee which is exactly what they do which proves that they're adding a different classification into the statute that congress has not added and what they say is the reason we know you're wrong i'm not saying this nor my assuming any other person thinks this i'm just saying that this is what i hear that if you are right then miseducation does not fall within the statute the jews marrying catholics does not fall within this statute but any instance where people say or many instances where they say i fired this man because he wasn't a woman i fired the woman because it's a man's job it's ok as long as sometimes you fire a man because it's a woman's job but you see the point i do just now the idea what is your answer to that there is no non racist reason why you would fire the employee in the interracial marriage there is no now there is i happen to know p i won't say who they are but there are people in my life i have heard say being jewish is f being catholic is far i just don't get married but that's a religious reason now in this case it is a does that mean it falls outside the statute that that that for bids discrimination because of religion yes because title seven allows you to recognize that there are differences between women and men and that an employer switching back to the st case could terminate i see sex couple are an employee who's married to a same sex partner maybe because they are catholic and they believe that marriage is only between one man and one woman and sex doesn't have anything to do with it let me give you an example here a ministerial exception that already know exists at ministerial exception if the employer is a church but not if the employee is a christian because member there survived but they're still religious exceptions that the court has read into a lot of statutes putting that aside your example very powerful woman in women in a shelter who you say if we accept this argument will have to be guarded by or counseled by a transmission injured woman but isn't that exactly like the heart and there we say you can have you can't have sex pacific guarding of prisoners unless you have a p f o p u and there they found that it was a cue to make only men guard could they can't wish i could as well but go ahead if you have a b f o q that says only a man can apply for this position he would say that a woman who is transgender is a man and therefore is eligible for that position and no b f o q in the world would be able to keep them out of that position the problem is they're adding transgender classification to a statute where congress has never added it know what they're doing is saying if there is an independent reason why a man who's transgender can't have a job that a woman has then that reason is good enough you don't have to hire them but if there is no reason women counselors would be able to counsel and stay overnight with the women who have been abused very narrow category i agree but they're applying it broadly and i'm using just a sort of yours example assume that there's a b f a q for that and that someone would allow that their position is that it's stereotyping not to treat the man who identifies as a woman as a woman they're arguing that but for the fact that they were born as a male and they could take that women's position so there is no p f o q there is no religious requirement that we stop and draw the line at the argument that they're making all of the  men and women are gone forever and that's the plain to the statue wish to address try to fly argument to a triple which again is is a very thoughtful position to that that there may be dual causes here but the fact that sex is under consideration even as narrowly construed as enough to draw us within the statute i think that line drawing inquiries happen all the time in title seven and it's entirely appropriate for a judge to instruct the finder of fact to draw that line and the line that has to be drawn based on title seven's language is whether women are being treated less favorably than similarly situated men because of sex and sometimes it will fall on the line sometimes it won't consider that that's not quite right that women should be treated less differently than men you're making title seven into a statute about groups but title seven is not a statute about groups that's helpful where you have to s burke let's put both of those together individual and that concept say that you have a woman who identifies as a man and they're working at an employer and they get pregnant they would be entitled to the same pregnancy benefits as any of the women at  work because that if they didn't get it that would be sexist but if the employer applied a sex specific dress code or sex pacific showers and restrooms that would not be a statutory violation because of their biological differences men and women are not similarly situated and there no one is being treated disadvantageous lee compared to someone else so you could have an employee who might have a sex discrimination claim but they can't bring a claim because of their transgender status you might have someone who doesn't those are the things that we let juries work out and there's nothing unusual about that in the context of title seven and i think mr birch maybe you answered does discourse such as question now you didn't answer mine ok total seven is this is a  statute about individuals and whether individuals are being treated because of his or her sex it's not a statute about well in the aggregate does this act disadvantage men vers women or women versus men it's a statute that uses the word individual twice and says is a particular person being treated differently because of her sex and here miss stevens was being treated differently because of her and this was judge flops point in in that opinion is that it's as simple as looking at the language of the statute applying it to a particular individual which title seven insists that you do and coming up with the obvious answer yes if she had not been if she had not been assigned at birth the sex that she was assigned at birth she would have been treated differently we agree with the individual treatment that's why and i'm callup this court said basically in the context of a male only workforce that the plaintiff had a cause of action because he was being treated differently than a woman in his position would a hypothetical compared to get back to some of justice ginsburg's questions even if there are no women on the site you still have that hypothetical compare here it's individual too but all the employer does in enforcing a sex specific dress code applied neutrally to everyone recognizes that there's differences between men and women and if you say that tom ross can't do that and there are you know in your answer on the fact of a dress code would your answer be the same if there were no dress code and ms stevens had just been fired for being chan's gender because all your arguments in your brief i mean you keep talking in your brief as you do here about the dress code but the arguments that you make are arguments that would allow the employer to fire  dress code because it acknowledges the differences between men and women it's no different if an employer without a dress code impact or imposes the same policy on an informal basis it doesn't change the fact that women are not being treated worse than men and as ms carlin said it doesn't treat her worse than or doesn't treat men worse than women that we wear a tie in this courtroom and that women do not think policies acknowledge that there are differences so whether the sex or the sex specific dress code is in place or not employers have that latitude now some jurisdictions like the district of columbia have taken that latitude that title seven gives away from employers it says that you cannot for example treat someone differently based on their personal appearance but otherwise when it comes to dress codes grooming codes opposite sex facilities and all those types of things everyone would have understood title seven at the time of it's inaccurate as as those things being equal treatment and not disfavoring either sex over the other whether on a group basis or an individual basis it doesn't make any difference that the problem here is a stereotype and mr cole agrees with that one hundred percent everything that he said this morning sex itself is a stereotype you can never treat a man who identifies as a woman differently because to do that is sex discrimination when you do that there is no sex discrimination standard in the title seven anymore it's been completely blown up one other point on the restroom scenario gender identity is a broad concept you could have a male employee who identifies as a woman but doesn't dress as a woman looks like a man showing up in the shower in the locker room and again the employer wouldn't be able to do anything about that because under mr cole's theory but for the fact he was a man he could be there and it's stereotyping to say men cannot be in the women's bathroom general francisco mr chief justice and may it please the court i like to make three basic points aimed at basically addressing a justice course which is comment that that's what this is a close textual case and i would like to respectfully argue that i don't think it's that close for three result neither side ever thinks a case judges always do don't they and the st your honor is the one that i was talking about earlier that sex and gender identity like section sexual orientation are different traits they're defined they have different definitions as my friend just said he agrees that there are different traits and there's a reason why when congress wants to prohibit discrimination based on the traits of sexual orientation and gender identity it lists them separately it doesn't define sexes including these traits it's because congress has recognized there are different traits so as long as you treat men and women with the same different treat exactly the same regardless of their sex you're not discriminating against them because of their sex the nd and related textual issues is that the standard for dissent determining whether or not you're discriminating against somebody because he's a man or because she's a woman is that you're treating that person differently than a similarly situated person of the opposite sex and taking an advent adverse employment action against them as a result so the threshold question is always are the two people that you're comparing actually similarly situated now my friends on the other side assert that a transgender man is is in fact similarly situated to assist gender man just like they assert that a gay woman is similarly situated to eight straight men but that is manifestly not true because with respect to the transgender issue the difference between a transgender man and he says her man is that one identifies with his biological sex and the other identifies with the opposite his biological sex and that is a very meaningful difference that is not grounded on stereotypes and simply grounded on the difference between a chair and standard man and his sister gender men likewise with sexual orientation the difference between a gay man and a straight woman is that is their sexual orientation and that has nothing to do with stereotypes it has nothing to do with one whether one is better or worse than the other agrees get a little different type of relationship a great deal of of the arguments here could be cast stereotypes all right that the plaintiff in this case for that case doesn't conform to male or female stereotypes that is and as i understand your brief you accept that argument and that those are good claims without respect to compared years of opposite sex and if that's the case what's the real difference here between the two sides i mean we've right i accept there are some delta but it seems smaller than might st appear sure and not what i would see the differences at what stage of the analysis you're doing it the way the place that stereotypes come up or when you're figuring out whether similarly situated whether two people are in fact similarly situated and aggressive man take pricewaterhouse an aggressive man is similarly situated to an aggressive woman they have the exact same tree aggressiveness and the only difference is stereotypical view that women shouldn't be aggressive but a transgender man and he says gender man do not ever share the same trait in the st place because one identifies with his biological sex the other identifies with the opposite of what his biological sex and that is simply a different trait that is not grounded in any kind of stereotype and a gay man is not similarly situated generally straight woman for exactly the same and i think one could argue just the opposite that there is another trait in pricewaterhouse  trait is conformity to traditional gender roles so your argument would suggest no we shouldn't look at the aggressive woman in the aggressive man we should instead say no there is this other in which is conformity to gender roles right we should really look at whether the employer treats the same the aggressive woman and the docile man the docile feminine man and if the employer treats the aggressive woman in the same way that the employer treats the a feminine  n they're both fired then the employer was off the hook now you yourself say that that's not right that in fact that's double discrimination and the employer is on the hook twice but it seems to me that the exact same analysis applies because there is this independent trade which is just a little bit different from the independent trade here here the independent trade so called that you say is the transgender identity they're the independent trade was the refusal to conform to traditional gender roles right now and i disagree with the reason i disagree with that analysis of your honor's because i don't think that pricewaterhouse create some kind of free standing stereotype claim what it prohibits is  and stereotypes and so as we read pricewaterhouse which i have no quarrel with in the slightest if you treat an aggressive woman worse than an aggressive man you are violating title seven because you're treating similarly situated people differently applying that here if you treated transgender men exactly the same as you treat a transgender woman regardless of their sex you're likewise not discriminate against them because of their sex and i'll assume you got it i want to know on a totally separate argument that's one it's only my characterization not anybody else but i do characterize one set of arguments that you've been through as trying to work with the language of the statute and on the one hand you have these are individuals individuals four times and on the other hand you have and the arguments that were made here and on the other hand arguments on the other side i'm regardless of the st to congress and that's what i think the setting judge was talking about in judge posner a good point i'm not saying it's a winning point which is what i want to know  congress wouldn't have dreamt of this when it passed the statute all right i heard you say i think we're not relying on that is that so the government is not relying on that you know we are relying on  your this sense of want one we think it fortifies or other arguments but i know of course you know you don't want me to push on that so i'm not going to push on that we're lying it on the sense that to the extent there is any ambiguity here we think it i s strongly dispelled by the history of these statutes and i want to address that updating issue because it's a very important yes question and here by updating it in the way that my friends on the other side would have you updated they're actually undermining the manner in which congress has traditionally considered updating if you look at endo which i think were put st at the moment nondiscrimination act for nearly a decade now when congress has looked and considered expanding the scope of the liability provisions it has acknowledged that there are religious liberty issues at stake and it wants to be able to take those into account too if you look at the states they've often come to very similar compromises where they found peace amongst otherwise very groups of very different views but if you resolve this issue judicially york sensually didn't delivering and i hate to use these types of terms but a complete victory to one side of the fight and nothing to the other side that i got are admirable setting that legislative and i think that is an argument yeah favor were over i think this whole category is the elephant in the room and i think it is a crucial point i was going to make i think it is but then on the other side of what you're saying is the following which is abstract but no more so in the sixty's we are only ten years away from where people who were real slaves and discriminated against obtained a degree of freedom and these statutes were all part of a civil rights movement that was designed to give including in our society people who had been truly discriminated against for the worst of reasons  that time this civil rights statute when it was passed would have put in the category of gay people transgender people of people who are suffering terrible discrimination and over time this court has moved away from that view finding it unconstitutional and now doesn't that fact which is an overwhelming fact to me about the nature of the country under law argue that that's a change that change that both explains it why they didn't put it initially and explains why we should other things being equal interpret it to include gay people and transgender people now no your honor for a couple of reasons i would argue against that and again i'm going to put the text to the one side but though i do think that that is our strongest argument i actually find  troubling for courts to take that approach because i actually think it deprives the people of the ability to struggle with these issues democratically and i think it is very important when we have these kinds of big changes that we actually convince one and your honor i think that that is a straightforward act location of title seven's tax with respect to what i was talking about with justice brier where we're putting the text aside i think it is important to allow the democratic processes to resolve these issues so we have a stable resolution of the issue and one that takes into account what everybody would agree are legitimate interests on all sides and oberg of fell this court made very clear that there were good and decent people who had different views with respect to gay marriage and they should be respected the legislative process is the process that allows those views to respect be respected as well as the very powerful views of my friends on the other side manolo should be  point does a court continue to permit invidious discrimination against groups that where we have a difference of opinion we believe the language of the statute is clear i think justice pryor was right that title seven in the civil rights act all of our acts were born from that desire to ensure that we treated people equally and not on the basis of invidious reasons and we can't deny that homosexuals are being fired merely for being who they are and not because of religious reasons not because they're performing their jobs poorly not because they can't do whatever is required of a position but merely because they're a suspect class to something that may have our in some regions but they're still being beaten they're still being chess ostracized from certain things at what point does a court say congress spoke about this the original congress who wrote this statute told us what they meant they use clear words and regardless of what others may have  over time it's very clear that what is happening fits those words at what point do we say we have to step in i guess my answer your honor would be at the point when congress actually addresses the issue and the main argument that we are making him have been making from beginning to and is that congress has not resolved this issue because sex gender identity sex sexual orientation for these are certain traits some thoughtful responses that you've given to this set of questions but in responding to justice prior you said if we thought that there was a clear application of the statute so i would just ask you if you thought that this was a clear application of the statute in the same way that sexual harassment was a clear application of the statute even though nobody recognized it at the time if you thought that this was a clear application of the statute would we have to come out against you yes  the statute is on ambiguously against you you have to rule against me i actually think that the statute is an ambiguous leap in my favor for the reasons i was given in the rd reason which is the one that justice breyer alluded to justice lee is a great line about how we don't holes everybody here agrees that 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 my friends would have this court essentially reached that same result in directly i think all of the textual arguments caught in our favor straight away but to the extent there's any doubt there's no way to find that elephant in this thank you interpretive statute is not depriving the democratic process it is doing what the court is supposed to do within the democratic process and of course if the democratic process disagrees with the court's interpretation of the statute it can change it so there's no deprivation of the democratic process here secondly the purpose of title seven as this court defined it was to make sex irrelevant to people's ability to succeed at work to make sex irrelevant to people's ability to succeed at work when harris holmes fired amy stevens because it learned about her sex assigned at birth being different from her gender identity it did not make sex irrelevant to her ability to succeed at work it made it determinative think about it this way if how if harris holmes fired a man because he was a man that would be  fired an employee because he was insufficiently masculine that would clearly be sexist collation in this case harris holmes fired any stevens because he thought she is a man who is insufficiently mas that too must be sex discrimination she's not seeking any special protection she you speaking and all transgender people are seeking the same protection that everybody else gets  this court thirty years ago said in pricewaterhouse we are beyond the day when an employer could evaluate employees by insisting that they match the stereotypes associated with their group we are certainly beyond that day today as well and what harris holmes did was to insist that she match the stereotypes associated with her group that's him permissible under this court's precedents as impermissible under the little terms of the statute and this court should rule for amy stevens thank you thank you counsel the case is submitted