John G. Roberts, Jr.: We'll hear argument first this morning in Case 17-1618, Bostock versus Clayton County, and the consolidated case. Ms. Karlan.
Pamela S. Karlan: Thank you, Mr. Chief Justice, and may it please the Court: When a employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), 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 703(a), because the adverse employment action is based on the male employee's 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 effeminate rather than macho. Like the discrimination here, that discrimination is because of non-conformity with an expectation about how men should behave. The attempt to carve out discrimination against men for being gay from Title VII cannot be administered with either consistency or integrity. In the words of the en banc Second Circuit, it forces judges to result -- resort to lexical bean counting where they count up the frequency of epithets, such as "fag," "gay," "queer," "real man," and "fem," to determine whether or not discrimination is based on sex or sexual orientation. That attempt is futile because when a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave. Finally, the possibility that some employers, but not the employers here, may have policies of denying employment opportunities both to gay men and to lesbians does not change the unlawfulness of what was alleged by the employees here. Labeling those policies under an umbrella phrase 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 female --
Ruth Bader Ginsburg: Ms. Karlan -- Ms. Karlan, how do you answer the argument that back in 1964, this could not have been in Congress's mind because in -- in many states male same-sex relations was a criminal offense; the American Psychiatric Association labeled homosexuality a -- a mental illness?
Pamela S. Karlan: 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's contemplation in 1964. In 1964, those were the days of Mad Men, so the idea that sexual harassment would have been reached, most courts didn't find sexual harassment to be actionable until this Court did. In Price Waterhouse, this Court recognized that discrimination against a woman who cursed like a sailor, walked like a man, and didn't wear makeup was reachable under Title VII. If you had asked members of Congress then what they had thought, they would not have been thinking about women like Ann Hopkins. They --
John G. Roberts, Jr.: How do you -- do you agree or disagree with Judge Posner's statement that the statute should be read to encompass sexual orientation discrimination to "avoid placing the entire burden of updating old statutes on the legislative branch"?
Pamela S. Karlan: I disagree with Judge 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 VII 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 weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that's discrimination because of sex. Well, if no one has any further questions, I'll reserve the remainder of my time for rebuttal. (Laughter.)
John G. Roberts, Jr.: Well, I think we'll have further questions. (Laughter.)
John G. Roberts, Jr.: 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 -- or you emphasize 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 Title VII. But what about the response that you do not need to know the sex of the people involved; you just can have 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.
Pamela S. Karlan: I think that's no different than having a policy that says everyone should comply with the stereotype applicable to their sex. And if I can use an example from the Court's prior cases, for example, in Dothard against Rawlinson, the policy on its face said you cannot guard someone of the opposite sex. So a woman who seeks to guard a man is barred from that job; a man who seeks to guard a woman is barred from that job. Just put in, instead of the word "guard," "date" and you get the same kind of rule here, which is a man who wants to date a man can't do it but a woman can, and a woman who wants to date a woman can't do it --
Ruth Bader Ginsburg: But there's, Ms. --
Pamela S. Karlan: -- but a man can. They are two forms of discrimination.
Ruth Bader Ginsburg: Ms. Karlan, there's quite a difference. In the Dothard case, it was the disparate impact. There are many more male prisoners to guard than females. So that policy, even though it applied to men guarding women, it had a disproportionate effect on women who wanted to be guards because there were many more jobs guarding male prisoners than female prisoners.
Pamela S. Karlan: Justice Ginsburg, the part of Dothard against Rawlinson that rested on disparate 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 Julia Tutwiler prison, the prison for women in Alabama, would have had a claim that he had been discriminated against because of sex. Now, he would have lost that claim but on BFOQ grounds, not on because of sex grounds.
Ruth Bader Ginsburg: What do you do with the -- the example that was brought up that, unlike race, there are certain distinctions that are not only permitted but maybe even required between males and females, like physical fitness tests?
Pamela S. Karlan: So those -- I want to answer that question in two parts. The first is to notice that in those cases, there is no question there's a differential 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 VII. So, for example, in Johnson against Santa Clara County Transportation Agency, everyone recognized Paul Johnson was denied the job because of his sex, but because it was a permissible affirmative action program, that was okay. In Dothard against Rawlinson, this Court said Ms. Rawlinson is discriminated against because of sex, but there's a BFOQ. So if Congress writes an exemption into the statute, that's one thing. But this Court really shouldn't be writing in an exemption for those purposes.
Sonia Sotomayor: Do you think we need exemptions for those BFOQs? It's not just the -- physical fitness standards for different sports, but big issue right now raging the country is bathroom usage. Same-sex bathroom usage. How are those cases going to be dealt with absent a congressional exemption other than
Pamela S. Karlan: Well, I think the way that they get dealt with is everybody agrees if you have men's bathrooms and women's bathrooms, that's because of sex. It treats men one way, it says go to this bathroom. It treats women another way, it says 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 will show why this is so. When I got up, the Chief Justice said to me, "Ms." Karlan, I am willing to bet any amount of money I have that when Mr. Harris gets up, he is going to say "Mr." Harris. He has treated us differently because of sex. 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 says "discriminate against" is to cause an injury and requiring people generally to use separate bathrooms is not an injury.
Neil Gorsuch: Well, I'm -- I'm not sure that maybe how they would see it. And to what -- to what extent should we take that into account? And same thing with a gender-specific uniform requirements.
Pamela S. Karlan: Sure.
Neil Gorsuch: How would you deal with those, given that -- that at least those affected might think that they're suffering a harm?
Pamela S. Karlan: So there's no categorical rule about these. For example, the fact that all of the men sitting at counsel table knew that they had to wear ties today and I was free not to didn't cause an injury. On the other hand, even the dissenters in the Second Circuit said, if the Court said women who come to argue should argue in Hooters outfits and the men should wear --
Neil Gorsuch: No --
Pamela S. Karlan: -- ties --
Neil Gorsuch: -- we're not -- we're not -- I mean --
Pamela S. Karlan: I know.
Neil Gorsuch: -- we can talk absurd examples --
Pamela S. Karlan: No, but I can --
Neil Gorsuch: -- or we can talk real world examples.
Pamela S. Karlan: I will give you a real world example, which is, it probably doesn't violate dress code to require men and women in business events for the women to wear skirts, but if you required a telephone lineman to wear a skirt --
Neil Gorsuch: No, no --
Pamela S. Karlan: -- while she's still --
Neil Gorsuch: I understand that. That's not what I'm getting at. And you know what I'm getting at. The funeral homes example's not a bad -- the case that we're about to take up is -- is -- is more in the -- in the realm of my question.
Pamela S. Karlan: Okay.
Neil Gorsuch: You can offer me help if you want to.
Pamela S. Karlan: Yes, yes. No, I'm trying to offer you help. What I'm trying to say --
Neil Gorsuch: All right. What I'm -- what I'm suggesting, counsel, is that there are male and female bathrooms, there are dress codes that are otherwise innocuous, right, most -- most people would find them innocuous. But the affected communities will not. And they will find harm. And how does your test deal with that one way or the other? That's what I'm asking you to address, if you'd like to.
Pamela S. Karlan: Yes. My test says that you have treated the people differently because of sex, which is what we are asking you to hold here. When you treat a gay man who wants to date a woman differently than a man -- woman who wants to date a woman, that -- that's 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 world. So when the Chief Justice calls me Ms., I am not injured. When I go to a -- when I --
Neil Gorsuch: You are not, but another --
Pamela S. Karlan: It -- it --
Neil Gorsuch: -- person might be.
Pamela S. Karlan: Right. And the question --
Neil Gorsuch: Are they reasonable or not? And -- and I'm -- I'm -- I'm just -- I'm wondering, how do you decide those cases?
Pamela S. Karlan: An idiosyncratic preference does not void an otherwise valid dress code or bathroom rule.
Neil Gorsuch: So is it --
Sonia Sotomayor: Ms. Karlan --
Neil Gorsuch: I'm sorry. I -- I -- I -- and I apologize.
Sonia Sotomayor: Go ahead and finish it.
Neil Gorsuch: Is it idiosyncratic for a transgender person to prefer a bathroom that's different than the -- the one of their biological sex? Is it idiosyncratic for a transsexual person to wish to dress in a different style of dress than his or her biological --
Pamela S. Karlan: No.
Neil Gorsuch: Sex? Okay. So the answer to your question is -- the question then, at the end of the day, if I understand it, is that those are acts of discrimination under Title VII as you understand it?
Pamela S. Karlan: Yes, although I think you'd -- you'd be better advised to ask the question to someone who -- who is representing someone who is transgender. I am representing someone who is gay.
Sonia Sotomayor: Ms. Karlan.
Pamela S. Karlan: And -- yeah.
Sonia Sotomayor: But you're begging Justice Gorsuch's question. We were following up on the same thing --
Pamela S. Karlan: I truly am not trying to --
Sonia Sotomayor: -- which is --
Pamela S. Karlan: -- beg the question.
Sonia Sotomayor: -- how do we differentiate the two? What is the 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 okay because there's no harm. So what's the test we apply to, say, when it is harm and when it isn't?
Pamela S. Karlan: Let -- let me try to be clear.
Sonia Sotomayor: Let's be --
Pamela S. Karlan: It's not discrimination to call me Ms. Karlan and to call Mr. Harris, Mr. Harris. It is -- it is because of sex that we were treated 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 isn't a Title VII, and this is why I'm really not begging the question here, the Court has said de minimis effects are exempted from statutes presumptively. So if this Court thinks or if another court --
Sonia Sotomayor: So why --
Pamela S. Karlan: -- thinks --
Sonia Sotomayor: -- is a dress code for Hooters that requires all women to wear a scantily -- a scant dress, is that discriminatory?
Pamela S. Karlan: Yes, it is.
Sonia Sotomayor: Is it discriminatory for the woman who just doesn't want to wear it because it's demeaning?
Pamela S. Karlan: Yes, it is.
Sonia Sotomayor: So how about, is it discriminatory for the restaurant not to hire a transgender man who wants to wear the uniform?
Pamela S. Karlan: Well, you're going to get --
Sonia Sotomayor: The scant uniform.
Pamela S. Karlan: I -- I mean, I do want to get to the question of sexual orientation --
Sonia Sotomayor: No, no, no --
Pamela S. Karlan: -- here, but I understand -- I understand.
Sonia Sotomayor: But I think what you're alluding is, and I still haven't heard --
Pamela S. Karlan: Yeah.
Sonia Sotomayor: -- the explanation, which is the question of how do we tell what's actionable and not?
Pamela S. Karlan: Well, if --
Sonia Sotomayor: At what -- when does that discrimination become an issue?
Pamela S. Karlan: I'll -- I'll give an analogy from the race area that may be helpful to the Court, 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 sex, but you're going to have to answer that question about dress codes regardless of how you rule in either my case or in Ms. Stephens' case because --
Samuel A. Alito, Jr.: Can I ask --
Ruth Bader Ginsburg: Would you say the test is is the person injured? Yes, it's a differential based on gender, but most people are not injured by having separate bathrooms. In fact, they -- most people would prefer it. So are you saying that we have to wait for the testing case for the person who might be injured by not being allowed to use the bathroom of the other sex?
Pamela S. Karlan: I think it highly unlikely you're going to see cases like that. The bathroom issue has been around since the beginning of Title VII. Title VII has a special provision in 703(a)(ii) that says, when you segregate people, the question is whether that segregation denies them employment opportunities. And it is 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 opportunities.
Samuel A. Alito, Jr.: May I ask you to --
John G. Roberts, Jr.: Are these -- Justice Alito.
Samuel A. Alito, Jr.: May I ask you to respond to what some people will say about this Court if we rule in your favor? And what they will say is that whether Title VII 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 1964. And Congress has been asked repeatedly in the years since 1964 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 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature. We might as well just take the Equality 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?
Pamela S. Karlan: Well, the fact that a loose cannon like Judge Posner says, "do whatever you feel like" is not what we're asking for. We're saying, if you read the words "because of sex" and you ask, in 1964, what did those words mean? They meant treating men differently from women. So if in 1964 it would be discrimination to fire a woman who wanted to -- you know, a woman who enjoyed sewing, and there's a famous case, it's the foundational case on sexual orientation where they fired a man who said --
Samuel A. Alito, Jr.: We will --
Pamela S. Karlan: -- his body was --
Samuel A. Alito, Jr.: We would not be deciding a major policy question that was not in Congress's mind in 1964, and then Congress has repeatedly failed to address in the years since then?
Pamela S. Karlan: No more than what you did in Oncale. No more than what you did in Price Waterhouse. No more than what you did in --
Stephen G. Breyer: All right.
Pamela S. Karlan: -- Newport News.
Stephen G. Breyer: Is there -- is there -- in my mind, there are three basic parts to this case on the other side, to language. You've dealt with that. The parade of horribles, you've dealt with that. And the third 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 in your opponent's brief. I would put it in these terms. Imagine a statute that says policemen, dah, dah, dah, must pay damages. Passed a long time ago. That doesn't apply to German policemen.
Pamela S. Karlan: Doesn't apply to what kind of --
Stephen G. Breyer: To German policemen. The meaning is the same. German policemen are policemen. But the statute doesn't apply to them. How do we know? Well, we know through a lot of history, dah, dah, dah. Okay? Now, that's the -- that's the box in which I put the argument that Justice Alito made. It's a 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.
Pamela S. Karlan: I think the way to think about this is to ask about the specific behavior that's at issue, which is a man dates a man, and then ask: How does that fit within the language? And the best example I can give --
Stephen G. Breyer: It fits.
Pamela S. Karlan: No, I'm --
Stephen G. Breyer: I give you it fits.
Pamela S. Karlan: I'm -- I'm about to explain why --
Stephen G. Breyer: Yeah.
Pamela S. Karlan: -- it fits. Which is the idea was that people should not be denied jobs that they're qualified to do, award-winning advocates for child services like Gerald Bostock 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 first sex discrimination case this Court had, which was the Phillips 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 --
John G. Roberts, Jr.: Counsel, I --
Pamela S. Karlan: -- rather than children.
John G. Roberts, Jr.: Several, I think about 23, states have been passing laws to address these -- 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 discrimination on the basis of sex to sexual orientation, transgender, they also include an exemption for religious organizations. Now, if we're going to be extending the -- the understanding of what sex encompasses, and I know your argument --
Pamela S. Karlan: Yeah.
John G. Roberts, Jr.: -- that that's not doing that, 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?
Pamela S. Karlan: Well, I -- I -- I would say three things about that: The first is this Court has already created an exemption for sincere religious belief for a large category of employers through the ministerial exception. The second is that Congress balanced these issues and has rebalanced them several times in the co-religionist exception. The third thing I would say is to understand this in context, which is 85 percent of American employers are not covered by Title VII at all. So as to those employers, if they have religious objections to hiring someone who is gay, they're free to continue doing that. And the fourth is to make it very clear that the question is not whether people have religious objections to homosexuality; it's whether they have religious objections to hiring someone who is gay or lesbian. And there are many employers whose own religious 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 1964, 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 you ask where did the idea that homosexuality wasn't covered come from? It came from first 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 second one came from a straight man who was fired because -- who was denied a job because he said his hobby was sewing. And the employer said: That's an effeminate hobby, so I bet you're gay. If you look at the reasoning in those cases, you will realize that it was not until Hively that any court did a careful reading of the statute using contemporaneous methods of textual interpretation --
Samuel A. Alito, Jr.: But you gave your --
Pamela S. Karlan: -- and since then a majority of justices -- I mean a majority of judges have held that sexual orientation is a subset of sex discrimination.
Samuel A. Alito, Jr.: Justice Breyer characterized what I said earlier as conceding that sexual orientation discrimination fits the words of Title VII, but that we should take a broader view of what Congress had in mind. But that was not -- that was not the premise of my argument. And your core -- 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?
Pamela S. Karlan: Yes.
Samuel A. Alito, Jr.: Okay. That's not -- that's not correct, because there are two possible explanations for what happened there. It could be based on sexual orientation, or it could just be based on the fact that the employer wants -- does not want to hire men. Now, 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.
Pamela S. Karlan: But in a case like the two cases before this Court where the employer had hired these men and they were already there, the 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 Gerald -- I mean the employer in Don Zarda's case had only men as skydiving instructors. So when he fires a man who wants to date a woman and he -- I mean a man who wants to date a man and he does not fire a woman who wants to date a man --
Samuel A. Alito, Jr.: The -- the point is that discrimination on the basis of sex in the sense that Congress understood it in 1964 is a different concept from discrimination on the basis of --
Pamela S. Karlan: Well, in --
Samuel A. Alito, Jr.: -- sexual orientation.
Pamela S. Karlan: -- in 19 --
Samuel A. Alito, Jr.: And that's what you're fighting. You're trying to change the meaning of what Congress understood sex to mean and what everybody understood --
Pamela S. Karlan: I -- I'm --
Samuel A. Alito, Jr.: -- sex to mean in 1964.
Pamela S. Karlan: -- not trying to change that at 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 a -- if you fire the man who -- thank you.
John G. Roberts, Jr.: Thank you, counsel. Counsel. (Laughter.)
John G. Roberts, Jr.: Sorry.
Jeffrey M. Harris: Mr. Chief Justice, and may it please the Court: (Laughter.)
John G. Roberts, Jr.: Touche.
Jeffrey M. Harris: In -- in 1982, Wisconsin became the first state in the country to pass a law banning discrimination because of sexual 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, 18 years earlier in the Civil Rights Act of 1964. 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 VII. That's just as true today as it was in 1964. The core error in the Second Circuit's holding is actually quite similar to the error that led this Court to reverse in Oncale. In Oncale, the Fifth Circuit had held that same-sex harassment claims were categorically excluded from Title VII. This Court correctly reversed and held that such claims may well be cognizable, as long as the plaintiff meets all requirements of the statute, especially what this Court called the "critical inquiry into whether members of one sex were being treated worse than members of the other sex." This case is just the mirror image of Oncale. Whereas the lower courts in Oncale adopted a categorical exclusion, the Second 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 Second 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 stand-alone allegation of sexual orientation discrimination cannot, without more, show discriminatory treatment --
Sonia Sotomayor: Excuse me. Can I understand your argument in context? Let's answer the question. Employer looks at a man who applies and says: One of my hobbies is sewing. And the employer says: That's an effeminate hobby. You may be gay. You're -- I'm not hiring you. So is that a mixed motive case? And -- and are we going to be trying somehow to parse that there's some sort of substantial legal difference between the belief that you're too effeminate or that a lesbian is too macho, whichever, from you're attracted to the other sex? How do you tease that out?
Jeffrey M. Harris: Justice Sotomayor, I don't disagree that there will be tough cases at the margins, but the problem with what the Second Circuit did is they glossed over those hard questions and said: We're just going to adopt --
Sonia Sotomayor: Well, aren't you -- MR. HARRIS -- a per se rule that if you --
Sonia Sotomayor: -- aren't you glossing over the BFOQ, meaning, what it seems like you're confusing is three concepts, Title VII has causation and injury. Not hiring, not firing, that's the injury. Now the question is what caused that? Being too effeminate, that's a sexual trait; being attracted to, if you're a man, to another man, that's a sexual trait. It's caused by those two things. Aren't then we moving to the third question, which is: Is there a reason independent of your religious belief or your innate hatred and invidious discrimination for why you're treating this person differently? And if there is, you have a BFOQ. You don't have to hire them. You can fire them. But if there isn't, they're doing their job, and they're not bothering you, and they are 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 those are hard cases.
Jeffrey M. Harris: Well --
Sonia Sotomayor: Any harder than what the law applies for race discrimination, for religious discrimination, for any of the other forms, national origin discrimination.
Jeffrey M. Harris: So, Your Honor, as this Court has emphasized in cases such as Johnson Controls, the BFOQ exception has been interpreted extremely narrowly, and so I think it -- it -- it is important as this Court emphasized in Oncale, 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 BFOQ.
Ruth Bader Ginsburg: Would Oncale --
Jeffrey M. Harris: So you don't --
Ruth Bader Ginsburg: Would Oncale have come out differently if the employer said, I don't hire women to work on platforms, the only people I hire are men?
Jeffrey M. Harris: Well, that -- that obviously would have been discriminatory against the women seeking --
Ruth Bader Ginsburg: But it's not --
Jeffrey M. Harris: -- the job.
Ruth Bader Ginsburg: -- the woman who is suing --
Jeffrey M. Harris: Right.
Ruth Bader Ginsburg: -- it's the male who is being harassed by other men. And the employer's defense is, you can't compare what I'm doing to someone who discriminates on the basis of sex between men and women because I don't hire women at all.
Jeffrey M. Harris: So it's, of course -- it's -- it's not a complete defense or even a defense to say, I treat it -- in cases like Martin -- 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 your question is that would not be a defense. But --
Ruth Bader Ginsburg: That -- that was -- Martin Marietta was different because it was the plus. The plus applied to women and didn't apply to men. So you had that distinction. Well, take Price Waterhouse. Suppose the employer said, I don't want any men who are not sufficiently macho, and I don't want any women who are not sufficiently feminine. If they -- the -- Price Waterhouse said we will treat a man who isn't sufficiently macho the same way we treated Ann Hopkins, there would be, as I understand your argument, no sex discrimination.
Jeffrey M. Harris: I -- I disagree with that, Justice Ginsburg. The way -- I think the best way to think of Price Waterhouse 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 the Solicitor General offered the hypothetical that Your Honor said. And -- 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 a woman 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 set.
Ruth Bader Ginsburg: Well --
Stephen G. Breyer: Suppose -- suppose a Catholic, Jew, want to get married. Employer fires the Catholic. Why? He's not against Catholics. He's against intermarriage. And obviously I can use the same example with race, which is famous. I take it from your argument that there would be no claim?
Jeffrey M. Harris: There would, in fact, be a claim, in both --
Stephen G. Breyer: Why?
Jeffrey M. Harris: -- situations.
Stephen G. Breyer: Why? Why? All right. If there is a claim there, why isn't there here?
Jeffrey M. Harris: So in the race context, the only difference between --
Stephen G. Breyer: I didn't say race. I said religion.
Jeffrey M. Harris: Right. In -- in the -- in the context of religion, which first of all religion is defined -- is the only one other than pregnancy which has an expansive definition.
Stephen G. Breyer: No --
Jeffrey M. Harris: Yes, it would be religious discrimination because between a couple that is Catholic and Jewish and two Catholics, the only difference between those couples is their religion.
Stephen G. Breyer: And the only difference between the two couples here is that one is a man rather than the woman.
Jeffrey M. Harris: Except that it also introduces an independent characteristic, which can be completely --
Stephen G. Breyer: All right.
Jeffrey M. Harris: -- neutral to men --
Stephen G. Breyer: So does it there -- why I'm not against Catholics, I am not against Jews, I am against inter-marriage?
Jeffrey M. Harris: I -- if -- if that person or actor exists, I think it's foreign to our --
Stephen G. Breyer: Oh, it exists.
Jeffrey M. Harris: -- case law.
Stephen G. Breyer: I promise you. There are many people, at least in the religious context, who are against inter-marriage 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.
Jeffrey M. Harris: And I -- I think that -- I do think that most of the -- most people who would oppose any sort of interreligious marriage would do so for religious reasons. And I would also note in the --
Elena Kagan: Mr. Harris, I think -- I think what all of these hypotheticals are about is that in many of our cases, what you find is what you said, what did you say, independent characteristics? They're all over our cases. If you take Manhart, which is the seminal case, Manhart 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 would the same thing have happened to you if you were a man or would the same thing have happened to you if you were a woman, because we had an independent characteristic, which was life expectancy.
Jeffrey M. Harris: Right.
Sonia Sotomayor: And -- and so the same thing here. So all of these hypotheticals are really about the same thing, which is that Manhart gave us a very simple test, and Manhart said, what you do when you look to see whether there is discrimination under Title VII is, you say, would the same thing have happened to you if you were of a different sex? And, Ms. Karlan made all the -- you know, went through all the ways in which, obviously, the -- the same thing would not have happened to you if you were a different sex, you being her client. So, I mean, that's the question. There are independent characteristics in all these cases. We have insisted on this extremely simple test. If you apply that test, I guess it seems to come out against you.
Jeffrey M. Harris: A couple things. First, let me address Manhart and then address -- address the test more generally. So in Manhart, this Court noted that the -- the policy wasn't just about longevity. That -- that employer made no attempt to do any sort of bona fide underwriting or life expectancy estimates. It simply charged the women more. So even a woman and a man, if they each had a 75-year life expectancy, they would be charged different rates, even though they were totally, similarly situated with respect to that.
Elena Kagan: Yes, but Manhart 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 -- is wrong, because you say, well, we have to look at these big classes. Well, there was nothing wrong in Manhart when you looked at big classes. What became wrong in Manhart was when you looked at individuals. And when you look at individuals, which Manhart insisted one do, one should do, and when you apply the test that Manhart 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?
Jeffrey M. Harris: Here's the problem with the test. In Manhart, in Newport News, in Martin Marietta, the comparator test makes perfect sense because you know exactly what you're testing for, so the comparator helps you draw inferences from the evidence. The problem here is, unless the Plaintiffs can point to something outside the comparator to tell us why we need to hold sexual orientation -- to -- to tell us why that is irrelevant, they're -- they're just assuming their conclusion. So their comparator would say, you would ask if a gay man has suffered sex discrimination by comparing him to a heterosexual woman, which that version of the comparator 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 comparator, to justify putting sexual orientation off limits --
Neil Gorsuch: Well --
Jeffrey M. Harris: -- the comparator doesn't -- doesn't answer the ultimate question.
Neil Gorsuch: Well, it certainly may not answer -- isolate the sole or proximate cause, but I -- I think the -- the argument on the other side is the language of the statute has a but-for causation standard, a 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?
Jeffrey M. Harris: Yeah. So in the -- what I'm arguing is simply that sexual orientation standing alone is not, without more, sex discrimination. And so the -- I'm sorry, remind me of the question one more time?
Neil Gorsuch: Sure. So the --
Jeffrey M. Harris: Right.
Neil Gorsuch: Your -- 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: But the statute has a more generous causal --
Jeffrey M. Harris: Okay.
Neil Gorsuch: -- formulation, a but-for causal formulation, so perhaps you're right that, at some level, sexual orientation is surely in -- in play here. But isn't sex also in play here because of the change of the first variable?
Jeffrey M. Harris: Right. So I think --
Neil Gorsuch: And isn't that enough? It -- you know, the statute talks about a material causal factor or some formulation like that, not the sole cause, not the proximate cause, but a cause. And one -- one would -- in what -- in what linguistic formulation would one -- would one say that sex, biological gender, has nothing to do with what happened in this case?
Jeffrey M. Harris: 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. Bostock's complaint, for example, and you strip out any mention of his sex as being a man, again, we -- 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. And so in Price Waterhouse, this Court helped give guidance about how to do the motivating factor analysis and said imagine you gave the employer truth serum and said what were your true reasons for doing this? Would one of them be the characteristic? And what I would call that -- that benchmark scenario --
Neil Gorsuch: All right, let's --
Jeffrey M. Harris: -- sex would not be --
Neil Gorsuch: Let's do truth serum, okay? 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 first part sex?
Jeffrey M. Harris: 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 briefs say that much discrimination against gay and lesbian people is -- is based on sort of animus against gay men or lesbian women. If there's 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 -- what -- what this Court called in Oncale the critical -- critical issue of distinguishing between men and women.
Brett M. Kavanaugh: Are you drawing a distinction between the literal meaning of "because of sex" and the ordinary meaning of "because of sex"? And, if so, how are we supposed to think about ordinary meaning in this case?
Jeffrey M. Harris: I don't see a difference between the two as far as -- and -- and the last point, running out of time, I think to go back to some of the questions about bathrooms and fitness standards, I want to be clear, under the Plaintiff's simple but-for test, if you truly simply apply the Manhart test or -- in the way they want to do it, I don't see any way that single-sex bathrooms or showering facilities --
Ruth Bader Ginsburg: You have to have someone who's injured. You have to have someone who's injured. And the response to the bathrooms is who is the complaining plaintiff? And for most people, they would not be complaining plaintiff. They would not be eligible because they're not injured by the separate bathrooms. In fact, they like it.
Jeffrey M. Harris: Yes, Your Honor, although, of course, if someone, for example, is fired, imagine a factory with hazardous materials where people shower after work and to -- to clean up, and a -- a man used the women's bathroom and is fired. That person would certainly be injured. And I think, under my friend's test, they would say just change the sex and that person wouldn't have been fired. But here's the problem: That's not a similarly situated person. The proper analysis would say that a neutral policy, such as use the showering facility that corresponds to your biological sex, the man who uses the women's shower, the -- the comparator 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 looking at similarly situated people. And the last thing I'd like to get into is this Court, in Espinoza, Footnote 2 -- I think there was some discussion of the states early on. In Espinoza, in interpreting national origin discrimination, this Court said the state practice interpreting parallel laws is highly instructive. And so I -- I think the fact that 22 or 23 states have done this by legislation and zero have done it by judicial interpretation, just shows that this isn't belt and suspenders. It's not redundancy, that sex and sexual orientation both in 1964 and today are different concepts that mean different things, and common users of -- of language both today and in 1964 would have recognized that.
Sonia Sotomayor: Can they ever be?
Jeffrey M. Harris: I'm sorry?
Sonia Sotomayor: I know -- can they ever be? Justice -- justice -- Judge Lynch below said that homophobic stereotypes are unrelated to sexual orientation. The very first case before us shows that that's just not true, that homosexual orientation is highly correlated to people's stereotypes. If you're too effeminate a man, you're a homosexual. If you're too macho a woman, you're a lesbian. Happens all the time. So I find it somewhat difficult to unwind the two. If not difficult, nearly impossible.
Jeffrey M. Harris: It often is, Your Honor, and it's a sad reality that homophobic slurs are often directed at heterosexual or homosexual people to -- to criticize --
Sonia Sotomayor: And that's okay under your theory?
Jeffrey M. Harris: It is absolutely not, Your Honor, if that person can show discrimination because of sex, but what -- what the courts can't do is what the Second Circuit did and the Seventh Circuit did in Hively. Footnote 11 of the Zarda opinion is very candid about this where it talks about operationalizing its holding. The Second 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. So, Justice Sotomayor, 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 intended.
Samuel A. Alito, Jr.: Well, if you have a minute, let me ask you this: Let's imagine that the decisionmaker in a particular case is behind the veil of ignorance and the subordinate who has reviewed the candidates for a position says: I'm going to tell you two things about this candidate. This is the very best candidate for the job, and this candidate is attracted to members of the same sex. And the employer says: Okay, I'm going -- I'm not 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?
Jeffrey M. Harris: May I?
John G. Roberts, Jr.: Please.
Jeffrey M. Harris: That would not be discrimination on the basis of sex. And I think that's exactly right. If you get a resume that -- that has a name that could be male or female, and there's something on there suggesting that the person is gay and they're not hired for that reason, that would be sexual orientation discrimination. That has absolutely nothing whatsoever to do with sex discrimination.
John G. Roberts, Jr.: Thank you, counsel. General Francisco.
Noel J. 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. First, sex means whether you're male or female, not whether you're gay or straight. So if you treat all gay and men -- gay men and women exactly the same regardless of their sex, you're not discriminating against them because of their sex. Second, any doubt is removed by the history of Title VII and 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, yet has refused to do so with respect to Title VII. The employee's position would nullify that conscious choice. And Justice Gorsuch, if I could first address your question about our -- my friend on the other side's argument about the literal meaning of the statute, well, there are essentially two responses to that argument. And they're related. The first 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's sex is a but-for cause for his firing.
Ruth Bader Ginsburg: But he's not --
Noel J. Francisco: The reason --
Ruth Bader Ginsburg: -- injured. He's not injured.
Noel J. Francisco: Well, he's fired, Your Honor, in my hypothetical. And the reason why that is permitted --
Neil Gorsuch: I think counsel acknowledged all of that.
Noel J. Francisco: Yeah. And the reason why that's permitted, though, to do that, is because you're treating -- and this is my second point -- you're treating him the -- the same 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 --
Ruth Bader Ginsburg: Is it --
Noel J. Francisco: -- discriminated against because --
Ruth Bader Ginsburg: Is it --
Noel J. Francisco: -- of their sex.
Ruth Bader Ginsburg: Is it -- let me give you a not-hypothetical case. An airline hires only women as cabin attendants, but it fires them if they marry. The airline's 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 from your brief, you would say there's no sex -- no violation of Title VII?
Noel J. Francisco: Well -- well, no, Your Honor, because I think the problem is that the prohibition on hiring any male flight attendants would in and of itself violate --
Ruth Bader Ginsburg: That -- but --
Noel J. Francisco: -- Title VII.
Ruth Bader Ginsburg: But the male is not complaining. The complainant is the woman who was fired because she married.
Noel J. Francisco: Okay. So then --
Ruth Bader Ginsburg: The male complainant might have a very good case, but my case --
Noel J. Francisco: Right, and my --
Ruth Bader Ginsburg: -- is the woman.
Noel J. Francisco: And my problem with the hypothetical is that the way it is constructed, there is, you know, presumably no men that have the job in the first 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 married, that would plainly be a violation of Title VII because you're treating similarly situated people differently. But to finish --
Sonia Sotomayor: General, that -- that's an --
Noel J. Francisco: -- my answer to Justice --
Sonia Sotomayor: -- an impossible idea to -- to put into practice by taking out the sex.
Ruth Bader Ginsburg: May I just continue with it?
Noel J. Francisco: Yes, Your Honor.
Ruth Bader Ginsburg: The hypothetical is not a hypothetical. Its Sprogis against United Airlines. And it was given, and not challenged, that they didn't hire men as cabin attendants.
Noel J. Francisco: Right.
Ruth Bader Ginsburg: But they fired this woman because she married, she didn't look like Cheryl "Fly Me."
Noel J. Francisco: Right.
Ruth Bader Ginsburg: Once she married, she wouldn't be attracted to the male passengers. The court of appeals said, Title VII 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 if she is married, that's sex discrimination. And we don't have to have a -- a -- a male involved. This is a woman who was treated in a very stereotypical way. She is no longer young and attractive when she married.
Noel J. Francisco: Your Honor, I -- I -- 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 Price Waterhouse case, Ann Hopkins was fired because she was aggressive --
Ruth Bader Ginsburg: But this was --
Noel J. Francisco: -- because she was rude to staff --
Ruth Bader Ginsburg: -- this was an actual case. This was an actual case and it was given that no males are hiring and no male is complaining.
Noel J. Francisco: But, Your Honor, the way that actual case was resolved was because the woman had not brought her claim in a timely fashion on the sex discrimination piece. And so the way this Court resolved that decision was it said, all right --
Ruth Bader Ginsburg: The -- no. This case --
Noel J. Francisco: -- she is being treated the same --
Ruth Bader Ginsburg: -- never came to this case, never came to this Court.
Noel J. Francisco: So I guess I'm thinking of the wrong case.
Ruth Bader Ginsburg: Sprogis against United Airlines, Seventh Circuit.
Elena Kagan: General, could I go back to your opening statement and particularly to the second part of it? You talked about the history of -- of Title VII and some of the subsequent legislative history, and I guess what strikes me, and I was struck in reading your briefs too, is that the arguments you're making, I would say, are not ones we typically would accept. For many years, the lodestar 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 Ms. Karlan'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 sole cause in Title VII -- 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 now. We look to laws. We don't look --
Noel J. Francisco: Right.
Elena Kagan: -- to predictions. We don't look to desires. We don't look to wishes. We look to laws. Why doesn't that mean your argument failed?
Noel J. Francisco: Because, Your Honor, I think that what our brief attempts to do, at least, is make a 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 define sex as including sexual orientation. It lists it as a different trait.
Neil Gorsuch: What -- what is --
Noel J. Francisco: And so under Title --
Neil Gorsuch: What is your response to the two-comparator problem we've been discussing and the fact that at least one contributing cause appears to be sex?
Noel J. Francisco: Well, Your Honor, a couple of responses. First, I don't think that one contributing cause is sex. I think that as long as you're treating gay men and women exactly the same regardless of their sex, the contributing cause is 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 between two very different traits and you've -- and you've essentially rendered -- you nullified Congress's careful -- very careful decisions in numerous other statutes to specifically protect sexual orientation and gender identities, we'll --
Sonia Sotomayor: Is there --
Ruth Bader Ginsburg: Is there anything --
Noel J. Francisco: -- get to in the next case.
Ruth Bader Ginsburg: -- in this record showing that the employers would not employ lesbian women?
Noel J. Francisco: You know, Your Honor, in these cases, and this may have been a better question for my colleague, but I think in these cases, the employers have -- in the cases -- the sexual orientation cases, the employers have generally denied that they discriminate based on --
Ruth Bader Ginsburg: But all we know on --
Noel J. Francisco: -- their sexual orientation.
Ruth Bader Ginsburg: Did this go -- the -- the -- the allegation is that the person was discharged when he announced that he was gay. There's nothing in the record as far as I can see that there was a policy on the employer's part of discharging or not --
Noel J. Francisco: Right.
Ruth Bader Ginsburg: -- discharging lesbian women.
Noel J. Francisco: I think that's right. I think basically the employer's defenses here were, one, I didn't fire him because he was gay, but, two, if you think I did, Title VII 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 VII's liability provisions, it typically couples that itself with an expansion of the religious employers exemption to Title VII, 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 than the courts. Justice Gorsuch, I want to make sure that I fully addressed your -- your textual considerations, though, because I really do think it boils down to the fact that sex and sexual orientation are different traits. May I finish my answer?
John G. Roberts, Jr.: Sure.
Noel J. Francisco: Title VII prohibits discrimination based on one of those traits, as long as you treat men and women who are similarly situated with respect to the other trait exactly the same, you're not "discriminating" under -- within the meaning of Title VII.
John G. Roberts, Jr.: Thank you, counsel.
Noel J. Francisco: Thank you.
John G. Roberts, Jr.: Five minutes, Ms. Karlan.
Pamela S. Karlan: Thank you. Let me start with the question that Justice Ginsburg asked because I think it's illustrative of contemporary sexual orientation discrimination cases. Virtually none of them involve an employer, and neither of the cases before you does, who claims to have an across-the-board policy of firing both all gay men and all lesbians. What tends to happen, and this case is illustrative of this, is a man who also doesn't conform with some other gender-based stereotypes and who is gay gets fired, which puts them in exactly the position that Justice Sotomayor mentioned, which is really devilishly hard to figure out what's going on here. The second 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 textual language tells you to, at such individual and not at the overall class.
Sonia Sotomayor: Ms. Karlan, would you address these -- General's statement at the end? He -- he goes back to the comparator should be a woman who -- a -- a man who likes a man and a woman who likes a woman. You're trying to get to that.
Pamela S. Karlan: Yes. I think he -- he is varying two things there. One, he is varying the sex of the employee and, second, he's varying the sex of the person to whom the employee is interested. And if two things that --
Sonia Sotomayor: So give us an example from a case how you can't do that.
Pamela S. Karlan: I'm not sure -- of course you can do it but you don't have to. Because all you need to do is show that sex played a role here. And if the answer is if a man had -- if a woman had come in and said, I like to date men, you wouldn't have fired her, and when a man says, I like to date men, you did, that's enough to show sex discrimination.
Samuel A. Alito, Jr.: But what if the decisionmaker makes a decision based on sexual orientation but does not know the biological sex of the person involved?
Pamela S. Karlan: Well, there is no reported case that does that. And I --
Samuel A. Alito, Jr.: All right.
Pamela S. Karlan: -- think the Court --
Samuel A. Alito, Jr.: But what if --
Pamela S. Karlan: -- can wrestle with --
Samuel A. Alito, Jr.: What if it happened? We have had a lot of hypotheticals of things that may or may not have happened. What if that happens? Is that discrimination on the basis of sex where the decisionmaker doesn't even know the person's sex?
Pamela S. Karlan: And -- and how do they know the person's sexual orientation?
Samuel A. Alito, Jr.: Because somebody who interviewed the candidates tells them that.
Pamela S. Karlan: And they are unable to tell anything about the person's sex?
Samuel A. Alito, Jr.: No.
Pamela S. Karlan: So this is Saturday Night Live Pat, as -- as an example, right? (Laughter.)
Samuel A. Alito, Jr.: Well, I'm not familiar with that.
Pamela S. Karlan: Okay.
Samuel A. Alito, Jr.: But --
Pamela S. Karlan: Which is the person named Pat, and you can never tell whether Pat is a man or a woman. I mean, theoretically that person might be out there. But here is the key --
Samuel A. Alito, Jr.: Theoretically what?
Pamela S. Karlan: Theoretically that person might be out there. But here is the key: The -- the cases that are brought are almost all brought by somebody 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 for my sexual orientation, that person will lose.
Samuel A. Alito, Jr.: Well, if that's the case, then I think your whole argument collapses because sexual orientation then is a different thing from sex.
Pamela S. Karlan: 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 --
Samuel A. Alito, Jr.: Well, let me amend it. Your argument is that sex -- discrimination based on sexual orientation necessarily entails discrimination based on sex. But if it's the case that there would be no liability in the situation where the decisionmaker has no knowledge of sex, then that can't possibly be true.
Pamela S. Karlan: 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 -- 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 1964, if you look at the members of Congress's brief, they will tell you if you looked in the dictionary there was no phrase "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 law. Indeed, in 1964, there were only 16 states in the United States that clearly forbid some act in which lesbians could engage. So the idea that this is one large idea about sexual orientation discrimination in the abstract, without reference to sex, simply burkes the history and burkes 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. Thank you.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Earl Warren: Number 75, United States of America, Petitioner, versus Schneer's Atlanta Incorporated. Mr. Blackshear.
M. H. Blackshear, Jr.: May it please the Court. The argument which the Government makes for reversal here may be summarized very briefly by a short sentence taken from the Government's brief. I quote that sentence." The decision below ignores the plain language of the savings provision of the Defense Production Act, erroneously interprets the general savings statute and defeats to manifest purpose of Congress." It should be my purpose to undertake to demonstrate that the decision of the Court of Appeals does none of these three things. The contention that the decision of the Court of Appeals ignores the plain language of the savings provision within the Act, rests first upon the proposition that similar jurisdictional provisions in the Emergency Price Control Act were held -- held by this Court to survive the termination of that Act in the case, Woods versus Hill. In Woods versus Hill, this Court held that the savings language which was contained Section 1 (b) of the Emergency Price Control Act saved jurisdiction of the Emergency Court of Appeals at the determination of the Act. Second, that the savings language of Section 705 (d) of the Defense Production Act, which is different in phraseology, is the same in meaning. We believe that there is a difference in meaning, and that this meaning is immediately apparent when we compare the words of two sections. Section 1 (b) of the Price Control Act in its pertinent part reads as follows. "The provisions of this Act and all regulations, orders, price schedules, and requirements shall terminate on June 30, 1947, except that as to offense is committed or rights or liabilities incurred, the provisions of this Act shall be treated as still remaining in force with the purpose of sustaining any proposition in the action of prosecution with respect to such rights, liabilities, or offenses." 706 (b) of the Defense Production Act in its pertinent part provides the termination or the authority granted in this Act or of any rule, regulation, or order issued thereunder, shall not operate to defeat any suit, action, or prosecution, whether theretofore thereafter commenced with respect to any right, liability or offense incurred or committed prior to the termination date of such title, of such rule, regulation, or order. We submit that it is --
Stanley Reed: What -- what was the first Section that you wrote?
M. H. Blackshear, Jr.: The first Section that I quoted was Section 1 (b) of the Emergency Price Control Act, which this Court construed in Woods versus Hill, in which the Government --
Stanley Reed: That's -- that's not printed in your brief.
M. H. Blackshear, Jr.: I do not believe --
Stanley Reed: Well, never mind then. I didn't understand you.
Speaker: It's printed in the Government's brief.
M. H. Blackshear, Jr.: It is printed in the Government's brief at --
William O. Douglas: Page 41?
M. H. Blackshear, Jr.: Page 22, I believe.
Stanley Reed: Thank you.
M. H. Blackshear, Jr.: We submit, if the Court please, that it if -- it is at once apparent for a problem, a comparison of this language that the two Sections do not make provision against the same contingency. The Emergency Price Control Act plainly provides what is to happen in the event of termination of the Act. But in the Defense Production Act, the contingency is not the termination of the Act but the termination of the authority granted in any section or type of any rule, regulation, or order issued thereunder. Now, authority under the Act could have been terminated by executive order, or by modification, or appeal of -- of only a portion of the Act. In fact, I believe that both rationing and price control authority of the price control agency during World War II were terminated by executive action in advance of the expiration or termination of the Emergency Price Control Act. Rules, regulations, or orders, which are mentioned in subsection 706 (b), could be revoked or changed by administrative action. 706 (b) makes it clear that none of these eventualities, that is the revocation or the modification of -- of orders, regulations or the expiration of authority contained in some Section of the Act would affect a defeat of a crude action, suits, or prosecution. The termination of temporary legislation would include -- would include of course, a termination of all authority granted in the legislation, but a termination of authority would not necessarily extend to an -- a termination or in expiration of the Act. The second material difference, the respondent contends is shown by comparison of the two section. It's of Section 706 (b) of the Defense Production Act, makes no expressed effort by the language employed to continue the Act in existence for any purpose. It is provided only that upon the happening of the main contingencies, the happening of those contingencies shall not operate to defeat any suit, action, or prosecution, but nothing as I said -- as we've said in the Emergency Price Control Act about the continuance of the Act in existence for certain purposes. Now, the Government would hardly contend thatt to permit the District Court in an enforcement action to consider a defense setting up the invalidity of the regulation, would operate to defeat the enforcement action in the sense of causing the Government to loose its suit. But in effect, it makes this same assertion by stating at page 5 of its brief, that by so allowing the District Court to pass on validity, permits the defeat of an enforcement action in a manner not theretofore partial. And by implying that so to permit the defeat of an enforcement action has the same meaning as to operate to defeat the enforcement action. We submit that this contention and construction is not warranted or justified by the language. The Government relies upon decisions of certain Courts of Appeals, including the Emergency Court of Appeals. Insofar as the decisions of the Emergency Court of Appeals, express the view that it's exclusive jurisdiction continues after the expiration of the Act. We submit that the only person who could have well raised a question is the very person who obtained leave to file proceeding in the Emergency Court and who has, by filing that proceeding, invoked the jurisdiction. I do not believe that any of the decisions referred to in the Government's brief upon this point, decisions by Emergency Court of Appeals or decisions by the Courts of Appeals from the various circuits, involve an actual adversary contest on the question of jurisdiction. If there is such a decision, then I believe it is that of United States against Dix Box in the Ninth Circuit. So far as United States against Dix Box, holds to the contrary of the position on which we insist, we submit that it is wrongly decided and should not be followed in the decision of the case at bar. One of the cases cited by the Government is that in the Haldeman Creamery Company against Kendall, decided in the Emergency Court of Appeals. In that case, we should point out that the Court of Appeals decided that termination of the Act did in one situation, had the result of defeating the action. The Haldeman Creamery case was a case in which proceeding had been started in the Emergency Court of Appeals to review the validity of a price control order, independent of any enforcement proceeding. The Emergency Court of Appeals held that its continued jurisdiction was only with respect to enforcement action, that there was no enforcement action pending or contemplated so far as the record shows in the Haldeman Creamery case and that therefore, its jurisdiction to consider matters of that type was at an end. Since there is such a material difference in the language in Section 1 (b) of the Price Control Act and 706 (b) of the Defense Production Act, we submit that this Court's decision in Woods versus Hill has no bearing on the case at bar and should not be followed. The Government also contends that the respondent has shown no reason why Congress should have decided to change its policy with respect to continued jurisdiction, exclusive jurisdiction in the Emergency Court of Appeals on questions of this type after the termination of the Act. We submit that these are different Acts passed by different Congressmen. The Government has failed, we believe, to put its finger upon any language in the latter Act which evinces an intention to follow the same policy followed in the Defense Production Act. And we say that there is no reason to assume that Congress have -- should have desired of -- of giving voice to the same sort of policy as embodied in the earlier Act. Certainly, it is not encumber upon respondent to show that there were some reason why Congress did not follow a prior legislation. In this connection, we believe that perhaps language used by this Court in the Insurance Company against Ritchie may be put in dealing with a similar situation. In Insurance Company versus Ritchie, the Court stated that perhaps the result that its interpretation gave to the Act on the construction was not what was intended by Congress but then stated and I quote, "But when terms are unambiguous we not -- may not speculate on probabilities or intentions." The Government in its brief has undertaken to show some legislative history, varying upon the question of contingent exclusive jurisdiction, but we believe that a reading of that legislative history will show that Congress did not give any expression as to its purpose or its intention in the -- in the history made in this legislation as to the problem that exist in the case at bar. The savings clause contained in the Defense Production Act, embodied in Section 706, is included in the same Section which makes a number of provisions with regard to procedure. It is the Section that contains the authority to institute injunction suit. It is the Section that contains special venue provision. It is the Section which contains authority in the price administrator to maintain action to recover treble damages. And we believe and urge that the fact that this Section contains these procedures and these grants of authority, makes it specially meaningful the language that the termination of authority shall not operate to defeat any suit, action, or prosecution. The Government has also relied upon the decision of this Court in Allen against Grand Central Aircraft Company. We submit that it is significant that Allen against Grand Central Aircraft Company is not rested upon the savings language contained in the Defense Production Act but is rested on the general savings statute. In the Grand Central Aircraft case, it was stated that there was no expressed or implied provision in the Defense Production Act, contrary to the general savings statute. Of course, the Court in dealing with that matter and so expressing its views was considering whether or not there was anything in the Defense Production Act which cut down and narrowed the scope of the general savings statute. But if there is no implied provision contrary to the general savings statute and no expressed provision contrary to the general savings statute, does that not mean that the Defense Production Act in its savings language is neither broader nor narrower than the general savings statute? So, we come to what we submit is the main question and the only real question in this case and that is whether or not the general savings statute saves the exclusive jurisdiction of the Emergency Court of Appeals and saves this limitation on the jurisdiction of the District Court to decide questions of validity of the statute. The Government contends that the decision in the De La Rama Steamship Company case is read by the respondent too narrowly. When we argue as we do at page 10 of our brief, the De La Rama stands only for the proposition that special procedures are saved when they're necessary to save substantive rights. As we read the Government's brief, the Government's contention as the De La Rama stands for the proposition that whenever -- whenever special procedures are contained in an Act, which confirms substantive right, that the expiration of that Act, be it a temporary Act or the repeal of that Act if it is permanent legislation, will lead in effect both to special procedure and the substantive rights. And this is a result of the general savings statute. We submit that De La Rama does not lay down so broader rule. In order to give De La Rama such a broad meaning, it would be necessary to not only repudiate the implied teachings of number of verdict cases which we have cited and relied upon in our brief, but in effect, to overrule sub silentio, the quick case of Great Northern Railway against United States, which was not even mentioned in the De La Rama decision nor in -- nor in the Allen against Grand Central Aircraft. The third argument that the Government makes for reversal is the decision of the court below that reached the manifested purpose of Congress. The argument is that Congress has established a policy of having all questions of price regulations passed upon by a single court. And that the reason it has done so is in order to have a court of special -- a court that has some special expert acquittance with the price control program, as well as to meet the problem of need for urgency in enforcement. The decision in the Yates case, I believe it is, points out that the principal need for having questions of validity of price regulations passed on by a special court is that if problems and questions of validity of regulation have passed on by a number District Courts and by a number of Circuit Courts of Appeals, during the periods of active enforcement. That then, different decisions by different insurgence will result in inequality of application of price regulation. We think that the language of Chief Justice Vinson in that case makes it clear that the great danger in such lack of uniformity is that scarce commodities are channeled to those areas where the Acts had been held to be invalid and that before the difference in decisions by Courts of Appeals can be reconciled in this Court. Irreparable damage has been done to the economy of the country and economic distortions of all sorts have reserved. We believe that the references that have been made to the special expertise of the Emergency Court of Appeals are not controlling reasons why that Court has been invested with the jurisdiction that he had passed -- exercised but that it is purely make way. Now, the period of active enforcement and active administration of price regulation has -- has ended under this Act. And as the Court of Appeals for the Fifth Circuit has pointed out, there will be no inconvenience to either party to allow matter to be settled in its more usual and more ordinary manner by allowing the District Court to pass on all issues in the case.
Earl Warren: Mr. Slade.
Samuel D. Slade: Mr. Chief Justice. In answer to certain questions raised by the Court yesterday as to the -- the real life of this issue, I had a check made from our statistical unit and I find that we have pending in our own general litigation section, 24 live cases involving alleged violations of OPS price regulations, that is the Korean War period. Now, those cases are all cases involving amounts over $2000, where the amount involved, it was less than $2000. The enforcement of OPS cases has been delegated directly to the U.S. attorneys and I have no way of checking the number. There are presumably quite a few of those. We also have pending in two Circuit Courts of Appeals, in the Seventh Circuit, the William Martin case, cases in which District Courts have held price regulations invalid in enforcement cases and in those cases pending in the Circuit Courts. We have advised the Courts of the pendency of this case. The outcome here will determine those cases. There's another curios thing as to the continuation of the exclusive jurisdiction in the Emergency Court of Appeals in the period after active control. There's no doubt following the World War II price control period, but the Emergency Court of Appeals continued to exercise exclusive jurisdiction. And there are still large numbers of cases pending in which that jurisdiction is and will be called upon, so that if the decision below were followed here, you'll have the curious result of having the Emergency Court of Appeals continuing to exercise exclusive jurisdiction over World War II price control matters, while not exercising that same jurisdiction over the -- the post control enforcement cases arising out of the Korean War period. And we think Congress did not intend any such diverted result, which brings me to the two things that Mr. Blackshear mentioned here this morning. The lower court cases that we rely on, of course, we point to -- only to illustrate what has happened both after World War II and after the termination of the Korean War. In both instances, the lower courts inquiring into this matter have determined that the exclusive jurisdiction of the Emergency Court of Appeals continued. Now, after World War II, Chief Judge Magruder and Judge Matz and the others inquired into their own jurisdiction. It wouldn't necessarily be a matter for controversy among litigants in the Emergency Court of Appeals because that court would of course be sensitive to the question whether its own jurisdiction in its vert peculiar respect continued. So that after World War II in two decisive cases, the Emergency Court of Appeals held that its exclusive jurisdiction continued for the purpose of enforcement cases after the active control period have terminated.
William O. Douglas: What were those cases?
Samuel D. Slade: The two cases are the 150 East 47th Street court reporter, set forth on page 21 of our brief, and the Standard Kosher Poultry case which is also cited in our brief. That's 163 F.2d 430. I was about to point, Mr. Justice Douglas, to page 22 of our brief for the reason given. The Emergency Court of Appeals after World War II said, “There is no suggestion in Section 1 (b),” that is the savings prevision in the 1942 legislation. “That this statutory plan,” that is the relationship of the Emergency Court to the whole question of price control, “was to be changed with respect to litigation pending after the Act's termination date and that the complex relationship between enforcement proceedings in other courts, and with review proceedings in this Court was then to be abandoned.” Now, after the Korean War terminated, the Emergency Court again inquired and it determined that the same policy and same congressional purpose existed, although there was a minor variation in the wording of Section 706 (b). Now, I should like to make clear that we have a -- a second line of defense which I, in my opinion is stronger. We don't rely squarely and we don't have to rely squarely on Section 706 (b) here. We say that the general savings statute clearly applies here and that this Court has so held in Allen against Grand Central, and that the only inquiry as to 706 (b), which needily made is this. Has Congress by that section or any other section in the 1950 Act evidenced any intention that the general savings statute not apply? General savings statute provides that on the expiration of a temporary statute, it shall apply, unless Congress expressly provides to the contrary. And we say taking at a very minimum, Section 706 (b) and the experience following the World War II period, putting all these things together, it cannot be said that the 1950 legislation contains any indication by Congress that the general savings statute do not apply. And if the general savings statute does apply by its terms, it preserves the statute for the purpose of sustaining an enforcement proceeding. Then, it's almost geometry, because if the statute is sustained, the statute provides for the exclusive jurisdiction in the Emergency Court of Appeals on validity questions and then we go on to show that isn't -- it's not a mere technical or superficial matter, but that this in fact carries out the congressional intent, uniform since 1941, running right on through the 1950 Act. That the Emergency Court of Appeals exclusively deal with questions of validity arising in connection not only with the outset of the program but with the fairness of enforcement, uniformity of enforcement, uniformity of result all through the different courts of the country. I might say that the 1950 legislation does contain a specific congressional affirmation of the policy, expressed so frequently during World War II. We set out at pages 24 and 25 of our brief the effort made in 1950 by the Senate to again raise the problem of giving concurrent jurisdiction to District Courts. This was defeated and the -- it was defeated after a very careful consideration. As a matter of fact, the Senate who has sponsored it reported with regret to the Senate that their efforts in that direction had not been successful, but both the House and Senate rejected the thought and reaffirmed the principle that the exclusive jurisdiction of the Emergency Court of Appeals was the only way of handing these matters. Now, in 1952, and we point this out on our brief at page 37. When the 1952 Congress relaxed the restriction on the power of the Emergency Court of Appeals to issue interlocutory injunctions because the immediate urgency was over, the program is well under way. In 1952, the Congress again said that the Emergency Court of Appeals is setup so that there will not be multiplicity of opinions and that again is an affirmation of the policy which we say run through the entire history of this thing, that there'll be a skilled court to give uniform expert opinions on matters of great complexity with expedition. And for all of these reasons, we think that the court below erred in various respects that their decision will cause concern now and in the future. We think it defeats rather than carries out the purpose of Congress in the Emergency Court of Appeals setup and we think they're in error in holding that the -- neither the general savings statute nor Section 706 (b) of the 1950 Act apply. We think they both apply and that the Emergency Court of Appeals exclusive jurisdiction continues in connection with post control enforcement cases.
Tom C. Clark: It's too late (Inaudible)
Samuel D. Slade: In this particular case, that -- that is so --
Tom C. Clark: 30 days?
Samuel D. Slade: Well, with 30 days, during which they failed to file, it's provided by Section 408 (d). It's statutory, the same as this Court's certiorari jurisdiction. So, when the complaint is filed in 30 days, that court had to dismiss for one of jurisdiction, as to Tax Court. It's the same thing.