Warren E. Burger: We will hear arguments next in Lakeside v. Oregon. Mr. Margolin, I think you may proceed whenever you are ready.
Phillip M. Margolin: Mr. Chief Justice and may it please the Court. Ensio Lakeside, the petitioner in this case was charged with a felony crime of escape of the second degree. Because he was indigent, an attorney was appointed to assist him in the preparation of his defense. At trial, he raised a defense of lack of criminal responsibility and put on witnesses, including an attorney and a psychiatrist to support his position and explain his position to the jury. Now, as part of his trial strategy, it was decided between the petitioner and his counsel that Mr. Lakeside would not take the stand and that no comment on this fact will be made by Mr. Lakeside’s counsel during the course of the trial. Just before instructing the jury, the trial judge told Mr. Lakeside’s counsel that he was going to read the following instruction and the instruction reads, “under the laws of this state, a defendant has the option to take the witness stand to testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant and this must not be considered by you in determining the question of guilt or innocence.” Mr. Lakeside’s attorney objected to the giving of this instruction on the grounds that giving the instruction would highlight the fact that Mr. Lakeside had not taken the stand and call the jury’s attention to this fact. The Court told counsel that he felt that it was best to give this instruction so as to protect the defendant’s rights. Now, the instruction was given to the jury. On appeal, we have two questions that we are presenting for the Court’s consideration. First we think that the judge’s action violated the Fifth Amendment to the constitution, United States Constitution that Fifth Amendment gives a defendant in a criminal case, the right to decide not to testify and this Court has held in Griffin v. California that if the defendant decides to exercise his right, the prosecutor and the judge should not make a comment on it to the jury. Now, it is our position that even though the judge was acting with the best of motives and even though the instruction was worded so as to be helpful to the defendant, nonetheless in this set of circumstances by reading that instruction the judge did more harm than good and in affect commented on the exercise of the constitutional right by the defendant. Additionally, we contend that the trial judge violated the Sixth Amendment to the United States constitution. Mr. Lakeside had a lawyer appointed to help him out and to figure out what his trial strategy should be. There was a decision made and the decision was that they were not going to comment on the fact that he was not going to take the stand and we feel that when the trial judge took it upon himself to interfere with this strategy that he was interfering with the assistance that Mr. Lakeside had been given by his --
Thurgood Marshall: Well, that goes to every time a judge overrules an objection?
Phillip M. Margolin: No.
Thurgood Marshall: Where would the line be?
Phillip M. Margolin: First of all it is obvious, if there is a legal basis for the judge’s decision, for instance, let us say in the course of the trial a lawyer tries to put on perjury testimony or tries to put on testimony which violates the heresy rule, in that case the judge would have to interfere with the trial strategy of the defendant because that trial strategy would be illegal. In this situation, our position is that there is no legal or ethical basis for the judge substituting his opinion of the proper way to conduct a defense for the decision of the --
Thurgood Marshall: And what case you have that is really close to that?
Phillip M. Margolin: In --
Thurgood Marshall: Any place?
Phillip M. Margolin: Well, I cited in my brief the Geders case and the Brooks v. Tennessee case --
Thurgood Marshall: I do not know anything in that case that said when you object on question that in effect of counsel?
Phillip M. Margolin: Okay. The reason I cited Brooks and the reason I cited Geders is virtually in both situations where this Court held that when a -- That the Court said --
Thurgood Marshall: That is your first point. I am telling that your second point, that was Fifth Amendment, was it not?
Phillip M. Margolin: No.
Thurgood Marshall: Which one do you have on the Sixth Amendment?
Phillip M. Margolin: Right. Brooks and Geders were both Sixth Amendment. Brooks was on the Fifth and Sixth Amendment and in the Geders case was Sixth Amendment and in both of the situations this Court said that the trial judge ordinarily has powers to do certain things. For instance in Brooks --
Thurgood Marshall: Your general language is that if a judge gives an instruction over the objection of the defendant’s counsel that is violation of the Sixth Amendment?
Phillip M. Margolin: That is correct.
William H. Rehnquist: Following up my brother Marshall's question, supposing the judge at the close of trial said, “I am going to give an instruction on reasonable doubt and that the defendant is entitled to the benefit of a presumption of innocence and his counsel objected to be giving a bad instruction,” would you be making the same point here?
Phillip M. Margolin: Well, I think my basic position is that I do not know if the two situations are analogous and --
William H. Rehnquist: If there are not analogous, why are they not?
Phillip M. Margolin: Our position is that the assistance that the attorney gave here was to advise the client on the exercise of another constitutional right, a constitutional right not to take the stand and that the trial attorney and the petitioner’s position in this should be honored by the Court unless there is some legal basis for the Court’s intervention and the reason I cited the Geders case and the Brooks case was because in those cases, the Court said in Brooks that ordinarily the judge does have a right to figure out what the order of proof will be and in Geders ordinarily a trial judge can decide when witnesses should be sequestered, but then the Court went ahead and said that if there is a conflict between these ordinary powers of the Court and the Sixth Amendment, that the Sixth Amendment should prevail and that the trial judge should not interfere with this assistance that the defendant is getting from his lawyer. Here, I think it is really a serious situation because the defense counsel advised Mr. Lakeside on the exercise of the Fifth Amendment right not to take the stand and from a practical viewpoint that is about the most important decision that a defendant in a criminal case can make. The defendant who does not take the stand, it causes a lot of problems as far as his defense goes and he makes that decision and then a trial strategy is devised so as to soften that blow with the jury, I think it is wrong for a trial judge to come in at the end of the trial and interfere with the assistance in the trial strategy that has been plotted out.
Thurgood Marshall: Mr. Margolin, let me put in another way. If we rule that it is a violation of Fifth amendment would he be satisfied?
Phillip M. Margolin: Oh! Sure, of course. Let me go --
Warren E. Burger: What would you say if the defense counsel had asked for precisely this instruction and the Court said, “Oh! No, I do not dare give that,” the Supreme Court does not like that sort of thing and then he is convicted and goes on appeal saying he had asked for the Court to instruct the jury on a constitutional right and what about that?
Phillip M. Margolin: Okay, you mean something like in Bruno except on constitutional grounds. Our position is with regard to the Fifth Amendment and this has been that, okay, there is further authority as to whether what the judge did here violates the Fifth Amendment and I think that the problem that courts that have ruled against our position have is it they cannot understand how instruction that supposedly worded to help a defendant, can ever hurt him. I think the most important thing I can put across to this Court is that every criminal case has a different set of facts. You do not have the same situation in each case and sometimes that instruction is very helpful, but sometimes it can hurt your client. I would like to give you two quick examples just to show you the realities of courtroom situation and how this identically worded instruction can be good in some cases and bad in some cases. Let us take a situation where its helpful. You have a murder case and the defendant as made the statement that he was never at the scene of the crime. Then the police find a fingerprint at the scene of the crime. As soon as the jury hears that they are going to be waiting to hear that defendant come up on the stand and tell them how the fingerprint got there and if your defendant cannot take the stand, you are going to want to have that instruction given in the hopes that the jury will follow it and not hold that against him that he did not get up on the stand. Also I can give you a different situation. You have a burglary --
Warren E. Burger: I am not sure all defense lawyers would agree with you on that proposition?
Phillip M. Margolin: Well, I am just saying that one point I think should make here also is that because every case has a different set of facts, I think that this Court should have faith in the attorney who lives with the case, who is prepared it for months and who conducts a voir dire and gets a chance to size up the jurors who are going to be sitting on the individual case and let him make the type of decision as to whether or not that in this particular case the instruction should be given or should not be given. I think the trial attorney has advantages over a trial judge who just gets the case on the day of trial and I note sometimes if you leave with a case for several months you get insights into it that a person who just comes on it for one or two days he never does. So I think its really important here to put faith in the trial attorney and let him make that decision and not give the Court the unfetted right, especially when we are dealing with the advice on something as important as the exercise the Fifth Amendment privilege, not to take the stand. Getting back to the second example, that I want to give the Court, if you have a burglary, a woman wakes up in the middle of the night and sees a man in her apartment. She subsequently identifies him in a line up and your client is arrested. He comes to you and he tells you he is completely innocent, but he has got a very bad criminal record, may be involving burglaries or sex crimes, something that would upset the jury. Additionally, you think he will make a very bad appearance on the stand. When you get to trial, you put on witnesses that demolish the eyewitness to show that she could not possibly have seen what she said she saw. She had been using narcotics that evening and was out of her mind. Additionally, you put on 25 alibi witnesses who say that the defendant was with them the whole time that this burglary occurred. In a situation like that, the jury probably is not even going to expect to hear from the defendant because his witnesses have given the jury all the information that they would need to arrive at a verdict in his favor and I think petitioner’s case fits into that second category. He had a medical defense, a psychiatric defense. He had put on witnesses who explained his position to the jury and probably had the judge not read the instruction, the jurors would not have been thinking too much about the fact that he did not take the stand. Now, I just want to check my notes because I think that basically our position. The only other thing I did want to go into is an argument that respondent raised in his brief and one of the arguments that was made in the brief is that you cannot have error in a situation like this because jurors will follow the instruction. So even if the judge should not have given that instruction, once the jurors heard the instruction, then they would follow it and there would not be any prejudice to the defendant’s position and I do not think that that is an appropriate argument for this case. The reason I say that is very simple. First of all there is debate for years whether or not jurors do follow instruction or do not, but if the trial judge had honored the request that was made by the defense counsel and had not given the instruction then you would have eliminated the possibility that the instruction would cause any harm and you would eliminate any possibility of guesswork or any need to make guesses as to what jurors do or do not do.
Speaker: Mr. Margolin, what does your constitutional rights talk. Suppose your man who did take the stand and testified, does he have a constitutional right to request the Court to instruct the jury that he did not have to take the stand?
Phillip M. Margolin: I think that he does. I know this Court in Bruno said that in situations where he allows, you are asking me a situation where he does in fact take the stand and then asks for it?
Speaker: That is a tough question?
Phillip M. Margolin: I do not know if in that situation whether it arrives to a constitutional level or not since he did exercise a constitutional right. I am not sure whether in that type of situation if it would get to the same level, but I do think it our in --
Speaker: It settles the law that he waives the right by taking the stand?
Phillip M. Margolin: Well, sometimes you would ask for the instruction anyway as means of --
Speaker: They ask for it, but have you not waived any constitutional right by not getting on the stand?
Phillip M. Margolin: By actually taking --
Speaker: By getting obviously?
Phillip M. Margolin: Well, I think you would waive the right, because you have not exercised here.
Speaker: It is sure he did not waive here though, he did not --
Phillip M. Margolin: That sometimes that you would ask for that instructions so as to bolster your client to show that he did not ask for it.
Speaker: But question whether you have a constitutional right to claim some benefit of the privilege not to testify when you are going ahead and testify?
Phillip M. Margolin: Yeah, in that situation I do not think it would get up to a constitutional level. I do not know whether you would have any right in that area, but in our case --
Speaker: You speak of Fifth Amendment providing that the defendant is not required to take the stand and I realize that Griffin in reached that conclusion under the facts in that case. The Fifth Amendment speaks in terms of compulsion. Where is the compulsion here? You have a neutral instruction.
Phillip M. Margolin: Okay the problem comes in that in the Griffin’s case this Court held that if the person chooses not to testify that it is improper to comment on that because that is like penalizing the fellow for exercising his right. Our position is that this instruction hurt my client because it drew attention to the fact that he had not taken the stand and it is the same thing as prosecutor getting up and saying hey look he did not take the stand, why did not he give his side of the story?
Speaker: In Griffin as I recall not only did the prosecutor make some reference to the bailiff to take the stand, but the judge himself told the jury that it could consider that fact?
Phillip M. Margolin: That is right.
Speaker: That was far from being neutral by the judge?
Phillip M. Margolin: That is right. Our position is that the wording of the instruction is not relevant.
Speaker: That it is just like -- your position is that there is compulsion either to mention or not mention that this constitutional right have a neutral air to mention may be?
Phillip M. Margolin: Well, the problem comes in --
Speaker: Compulsion?
Phillip M. Margolin: What it does is, it is a comment on the fact that he did not get up and give his side of the story and even though its worded nicely, it still creates the evil of drawing attention to that fact.
Speaker: That is not what the Fifth Amendment says. It speaks intent of compelling a witness to give evidence against themselves?
Phillip M. Margolin: Yes, but Griffin said that once that decision to not take the stand is made, the prosecutor or judge cannot comment on it. It does not really have anything to do with the basis for the Fifth Amendment. It is just talking in terms of not penalizing a person for exercising his constitutional right and it is our position that you are penalizing --
Speaker: Well, Mr. Margolin is that really the whole analysis in Griffin? Is it not the point that if a defendant before he makes the choice of whether or not to testify, knows in advance that this kind of comment will be made by the judge and the prosecutor, there is a form of compulsion that influences his choice and is it the same true here if he knows he does not have any choice on whether the instruction is made, he knows in advance that instruction he does not want here will be given, that has some influence on his choice and there is at least a modest form of compulsion --
Phillip M. Margolin: That --
Speaker: May be its not as strong as saying here is a subpoena to get on the stand?
Phillip M. Margolin: That may occur. It may also create a situation where the attorney has to try the case differently and the attorney may have to, for instance --
Speaker: Well, does it not influence the choice of whether or not to take a stand if you know what kind of instructions can we get?
Phillip M. Margolin: It may. I --
Speaker: One a judge might give one kind and another, another?
Phillip M. Margolin: I would agree with the Court, it may and that might cause other serious difficulties. If the Court has no further questions --
Speaker: Mr. Margolin, perhaps you have answered this, but you have raised a Sixth Amendment question too, have you not?
Phillip M. Margolin: That is correct.
Speaker: Was this raised below?
Phillip M. Margolin: I should point out to the Court that the first that the respondent raised any objections in any other courts that heard this argument hearing it was in its response to petition for certiorari. This Sixth Amendment argument was argued in front of the Court of Appeals and it was argued before the Supreme Court without any objection by the respondent. If you read the Court of Appeals’ decision out of Oregon, you will see that the trial strategy argument is basically was the foundation for their opinion and the respondent was informed prior to oral argument at the Court of Appeals that the Sixth Amendment argument would be raised in addition to the argument on the Fifth Amendment and I think that the courts in Oregon did consider this and it is appropriately before this Court.
Speaker: Certainly the Supreme Court did not mention it, did it?
Phillip M. Margolin: Supreme Court did not mention it and that is why I wrote the petition for rehearing which is in the appendix, but the arguments were made in front of the Oregon Supreme Court and I do not know if this Court gets as part of the record the taping of the oral argument, but that would contain the arguments. Additionally, Supreme Court when it granted review in this case, this is also in the petition for a hearing, the question that it asked was whether it was error for the judge to give the instruction over objection and then what the basis for such a rule was and it did limit the basis to the Fifth Amendment, so I do think the question is appropriately here.
Warren E. Burger: Mr. Denney.
Thomas H. Denney: Mr. Chief Justice and may it please the Court. Like Mr. Margolin, I think my argument will not be a lengthy one, but I would like to start it since Mr. Margolin spoke a little about the nature of the case. I would like to flush out the actual facts that came out on the trial and that were developed in the presence of the jury. I do this if for no other reason not because I am questioning Mr. Margolin’s specific trial strategy in this case, but to illustrate that reasonable men at least could differ as to whether or not an instruction not to draw an inference to take from the defendants failure to testify which is proper in this case and that in any case the judge’s action in doing so was not an arbitrary or capricious one. In addition, perhaps the facts themselves as they were developed in this case, and they are not in the any of the credit portions of the record that the Court has, but they are in the record which was transmitted. I might begin by saying that the defendant Lakeside does have quite a background of an unhappy family history. He was a heroin addict and an alcoholic. He had a prior conviction of attempted murder, dating from about 1972. He was sent to the Oregon State Penitentiary, paroled after about nine months, violated his parole and was returned --
Thurgood Marshall: Am I correct that the reason he did not take the stand was because he did not want all of this known?
Thomas H. Denney: Mr. Justice Marshall, that seems to be the argument, but the fact is it all came out.
Thurgood Marshall: But why are you just flaunting it around?
Thomas H. Denney: I am not flaunting at around improperly Mr. Justice Marshall I believe because my point is the jury heard all of this. All of this came in the testimony of the state psychiatrist, one Dr. Kolbeck who told the jury all of this.
Thurgood Marshall: Oh! I did not (Inaudible).
Thomas H. Denney: Yes, that is my point. He was then charged in about April 1975 with the convictions that led to his incarceration from which he escaped. There were charges of disorderly conduct, theft in the second degree, criminal mischief and harassment, all of them misdemeanors under Oregon Law. They rose out of three separate incidences and alcohol was involved in at least one of these cases. As a result of a plea bargain negotiated between the District Attorney and the public defender of Portland who was representing Mr. Lakeside at the time, the agreement was that Lakeside would plead guilty to three of these charges, the fourth one the harassment charge was dismissed. He would be placed in the Multnomah County Correctional Institution which is a minimum security place, primarily for work release people rather than being sent to the maximum facility for misdemeanance in Multnomah County, Oregon, that is the Rocky Butte jail. He expressed all and the other and this was the important part of the condition as far as Lakeside was concerned in his theory of the case was that he would be required to take anti-abuse for his alcohol problem while he was in the correctional institute. He was somewhat reluctant to do so as he told his counsel at the time because he had been made sick by having taken anti-abuse before, at least that was what he told his counsel. Anyway he was received in Multnomah County Correctional Institute on May 09, 1975. He started on anti-abuse on May 21. He received some five or six dosages of it, the last being on June 15. On June 16, he was given a sign out pass from 6.00 a.m. on June 16, to terminate at 10.00 p.m. on June 17 and he did not return from this sign out pass and under Oregon law failing to return from a release or from a temporary leave situation constitutes an escape. Efforts were made to locate him and on the June 23, the defendant’s mother called the police, they said, he was at home and the police went and found him passed out and very drunk and they returned him to the institution rather and that facts --
Warren E. Burger: I take if this is all in the record?
Thomas H. Denney: This is all in the record.
Warren E. Burger: As part of his defense?
Thomas H. Denney: No.
Warren E. Burger: Then part of his prosecution?
Thomas H. Denney: It was all brought up, all of that I have said so far was brought up in the prosecution’s case. The defense as I have said did go to a mental disease or defect also attempting to make some use of the fact that this was aggravated by the use of anti-abuse. And the real dispute of fact that occurs I think in the whole case was whether or not the anti-abuse really did indeed make him sick or whether it was a combination of alcohol and the anti-abuse which led to the condition that was observed. The two guards at least at the correctional institute said that he never complained to them about having any reaction from the anti-abuse, even though it was administered to him several times. His mother and his sister testified in his behalf that he complained to them constantly about the reactions he was having from the anti-abuse while taking his --
Warren E. Burger: And all this I take it leading up to the suggestion that it was an assistance and aid and help him to get this instruction?
Thomas H. Denney: Yes, Your Honor. I am not insisting on overriding trial strategy. I am saying that the trial court could reasonably have concluded the instruction was proper in this case. In the first place as Mr. Justice Marshall was asking and as I have tried to point out, his prior criminal record came out anyway so this is one of those cases in which you say he kept off to stand not to get the criminal record before the jury. There was an insanity defense in this and while reasonable minds can differ on this point too, it seems to me that in an insanity defense normally, you as defense counsel would want the jury to see your client and evaluate him, if there is any merit to the insanity defense at all.
Speaker: Mr. Denney I suppose the issue is who should make the decision, the defendant, his lawyer or the judge and suppose the judge concludes after hearing all the facts you have described that the defendant would really be much better off if he took the witness stand in order to explain all the things, he can make him it, can he?
Thomas H. Denney: No, of course he cannot make --
Speaker: In this area, it is up to the defendant to decide for himself whether to take the stand?
Thomas H. Denney: Whether or not to take the stand sir?
Speaker: Now, why should he not also decide from himself whether he wants his instruction or not? He may be wrong, he may be wrong about not getting on the stand too?
Thomas H. Denney: Yes, that is the argument that --
Speaker: That is the question in this case?
William H. Rehnquist: There is no doubt is there that the judge is charged was a correct statement of law?
Thomas H. Denney: Oh! Absolutely not.
William H. Rehnquist: And there is no doubt that in Oregon the judges have to be right in the obligation to charge juries as to the law governing their deliberations in a particular case?
Thomas H. Denney: Yes, those of the two countervailing factors I suppose on who actually makes the choice in this.
Speaker: The question is what the law is in this case? Must the judge or must he not give the instruction over the role of the defendant?
Thomas H. Denney: Yes, that is the question before this Court. We talked about two of the factors that are involved in making that decision. Another is the question I think at least, and these are the points that I have made in the brief, if this is as Mr. Justice Powell said a neutral instruction and we submit that it is, where is the possibility of the instruction having been given for reasons determined by the trial judge, where is the possibility of harm. One answer of this and I set it up as straw man in my argument of course, is to say that you have to assume that telling a jury not to do something means that they may just go ahead and do it and we submit that that is an argument that should not be spelled by this Court because it is not a good idea and it is contrary I think to our basic notion of what a jury system is all about to assume that the jurors are incapable of following such instruction.
Thurgood Marshall: Mr. Attorney General, how is the state hurt by a rule which says that the defendant does want this instruction, he should not have it, how is the state injured?
Thomas H. Denney: The state itself as prosecutor is not injured and I do not believe --
Thurgood Marshall: That is right and you do not think due process or the people or anything, do you?
Thomas H. Denney: I think --
Warren E. Burger: You do not think justice is injured, do you?
Thomas H. Denney: The only point I would make on that is that I think that it should remain as a matter of general policy and certainly as a matter of constitutional law, a matter that is the province of the judge rather than of the defense counsel. I would just prefer to see and it is simply and perhaps more a matter of philosophical views about which we may differ to see the matter.
Thurgood Marshall: It pretty well gets down to that?
Thomas H. Denney: Yes, it does. I am --
Thurgood Marshall: What he did was his constitutional right though. May be you should err on one side, if you are going to err?
Thomas H. Denney: That is a possibility too. It is just that we are of the position for the reasons that I am arguing here and for the reasons that I have stated in the brief that there is no possibility of erring in this matter. Mr. Justice Stevens spoke about the matter being knowing whether or not the instruction would be given or not would in some way directly or indirectly, well, more directly than indirectly, would be a matter of compulsion and would be a matter which would influence one way or the other the decision of the defendant to take the stand. There are two answers to that neither of which is -- one of which I know was not very good that is it may not be known in advance whether or not the judge in any particular case is going to give that. Presumably of course the defendant could inquire and would get an answer from the judge, but there may be judges that are cantankerous enough not to answer a question along those lines.
Thurgood Marshall: It would not be binding on them, would it?
Thomas H. Denney: No. That is true too. The other thing is it occurred to me as I thought about that though is I think that analysis might present some problems in the future because that could be said of almost any instruction which the trial court might give. That might again have some influence on the defendant. I appreciate the fact that this particular instruction here goes directly -- To more directly than most to the question of whether or not what is to be said about whether the defendant took -- Takes the stand or not. It may go directly to the, more directly to the issue of compulsion than some others, but to some extent I should think they all would.
Speaker: You have been asked what the state’s interest is? Does it not -- is it not primary interest of a fair trial?
Thomas H. Denney: I say yes. I --
Speaker: Do you have any question about that?
Thomas H. Denney: I think not, that is basically my position and --
Speaker: And does not the judge have responsibility for instructing a jury as to what the law of the state is?
Thomas H. Denney: As I think I answered Mr. Justice Marshall not as articulately and not as directly as that put it. Yes, I think that the power to do that and the right to do that remains with the judge and should remain with the judge in preference to defense counsel.
Speaker: Suppose the defendant questioned the judge to give no instructions whatever on his behalf?
Thomas H. Denney: Well, I wonder about that.
Speaker: Do you think the judge would be justified in sending a case to the jury with no instructions as to state law?
Thomas H. Denney: Well, I most certainly do not. Mr. Marlow would have -- Might have another view of it though I rather doubt it when you state the matter as bluntly as that.
Thurgood Marshall: Also did he not pleaded guilty, the judge would not have anything to do, but put him in jail, would it not (Voice Overlap), if he wanted to?
Thomas H. Denney: The judge might not accept the guilty plea for that matter. As a matter of fact this depends --
Thurgood Marshall: You mean the judge would not accept a guilty plea to the maximum crime?
Thomas H. Denney: Your Honor, is it after the jury, the first 12 jurors were chosen in this case and before --
Thurgood Marshall: Now I was not talking about jurors being chosen--
Thomas H. Denney: Well, the defendant offered to plea guilty. The defendant stated he wanted to plead guilty to this charge.
Thurgood Marshall: No, it was not mandatory.
Thomas H. Denney: No, sir it was to escape in the second degree.
Thurgood Marshall: Well, it is what he was charged with?
Thomas H. Denney: Which is worry he was charged with.
Thurgood Marshall: And he said he was not insane?
Thomas H. Denney: The judge refused to accept the instruction because of the guilty plea because the insanity defense had been raised in this case.
Thurgood Marshall: Yes.
Thomas H. Denney: Well, I am not sure what we are -- What are differences here sir.
Thurgood Marshall: Now, my point was you say that that before the justice, regardless of what the defendant says the judge can still do so. I am saying the general rule is that if a man was to plea guilty for the maximum of offense, it would be accepted?
Thomas H. Denney: It generally will be yes, sir.
Thurgood Marshall: Yes it.
Thomas H. Denney: Very well. Unless there are any more questions, I really have nothing further that oral argument will -- to add.
Warren E. Burger: Well, do you have anything further?
Phillip M. Margolin: Yes, two short things Your Honor. First of all I think that this Court can confine itself to the very narrow issue of whether in this particular case if there is a -- if you have a petitioner or defendant who gets advice concerning the exercise of the Fifth Amendment right whether in this type of situation a judge can give instructions over objection. I do not think you have to go ahead and ask yourselves how this would affect other situations where the righteous thing exercised is not a constitutional right. So I think different considerations might arise. I think the Court could confine itself to that very narrow issue. Secondly, I do not think the reason why a defendant in a particular case does not take the stand or whether the trial strategy is correct or incorrect is relevant. I think the interesting question is raised here as how far is a judge permitted to go in deciding how a defense will be run.
William H. Rehnquist: What if a judge in precisely the situation that as Circuit Court judge was here and presented with your client’s attorney’s objection to giving his instruction and said I know that there will be a claim of constitutional violation if I do not give the instruction, if I do give the instruction, the claim that you are now making here, I fear if I do not give it up your plan of incompetent assistance of counsel?
Phillip M. Margolin: Well, I think you waive that type of a defense or probably that type of a opposing claim or appeal if there is a specific request, you may not to give the instruction. I mean, if we are dealing with a waiver situation in those circumstances so I do not think that that is the real genuine problem that was.
Speaker: Well, certainly that would be in the hypothetical case put to you earlier in the argument by my brother Rehnquist. What if a defendant’s lawyer affirmatively requested the trial judge not to charge, not to instruct the jury on the presumption of innocence and the duty of the prosecution to prove guilty on a reasonable doubt and you have already said that please do not instruct the jury on that subject and the judge said, “Okay you are the lawyer, you are the boss.” So he did not, that would be, would that not be -- would that be a valid conviction?
Phillip M. Margolin: Okay, I think what happened is that either imposed conviction or an appeal the question would be -- what the question would be was the decision not to have those instructions given a knowing and voluntary decision that was made by the defendant.
Speaker: Yes, let us assume that the lawyer was a member of the bar and he was not a phony and he was validly representing this client and he thought for some strange reason that it would hurt his client to have that instruction given?
Phillip M. Margolin: I think that if the defendant knew what he was doing, I mean, I certainly would not advise it, but if he knew what he was doing and he voluntarily and intelligently made the decision to not have those instructions given.
Speaker: (Voice Overlap) difference between that case as you pointed just a strange reason could motivate that request, but the request involved here as a substantial number of State Supreme Court think its a very sensible request?
Phillip M. Margolin: Well--
Speaker: It is hard to say that that is malpractice, to give the examples Mr. Justice Stewart gives it is only a strange request? Unless away from malpractice, suppose that he were representing himself as this Court did its charitable approaches who said they have a right to do and he made this request?
Phillip M. Margolin: Okay, again I would refer to keep this on the very narrow issue of the situation where there is assistance of counsel because I think you can keep this in this area without going into other situations like what happens with different types of instructions or what happens with a person is representing himself.
Speaker: But you are going get away from any malpractice claim or any incompetency claim?
Phillip M. Margolin: In Feretta case the Court said that a person has a right to represent himself and if he does that and he forgoes the assistance of counsel and then he makes that type of a decision, he may just be in a situation where he has done himself a lot of injury, but if he is doing it voluntarily and knowingly and he understands the consequences he just, that might be the situation. But again I do not think that, that type of situation should effect the court’s decision here because here it is a defendant who is getting advice from an attorney who has supposedly have some training and some experience in these matters and it is being made through discussion and then is being presented to the Court as a particular way that the defendant wants to run his case. So I do not think it is running -- I do not think the decision to this case would affect that type of situation. There is nothing further.
Warren E. Burger: Thank you gentleman, The case is submitted.


John G. Roberts, Jr.: We'll hear argument next in Case 18-107, R.G. & G.R. Harris Funeral Homes versus the Equal Employment Opportunity Commission. Mr. Cole.
David D. Cole: Mr. Chief Justice, and may it please the Court: Aimee Stephens 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 Homes responded by firing her, it discriminated against her because of her sex for three reasons: First, in 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 Price Waterhouse discriminated against Ann Hopkins for failing to walk and talk more femininely. It can't be that Ann Hopkins would lose her case on the same facts were she transgender. Second, Harris Homes 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. Third, Harris Homes fired her for, in its owner's words, changing her sex. That's discrimination in the same way that firing someone for changing their religion would be religious discrimination. That Harris Homes would fire both transgender men for being insufficiently feminine and transgender women for being insufficiently masculine is, as the government concedes, two acts of sex discrimination, not a defense. None of these arguments ask this Court to redefine or, in Judge Posner's words, update sex. They assume, arguendo, that sex means at a minimum sex assigned at birth based on visible anatomy or biological sex.
John G. Roberts, Jr.: I understand -- I understand that as the argument, and I -- I believe it's the same as in -- in the prior case. But does that argument hold up when you get to specific work requirements? In other words, if the objection of a transgender man transitioning to woman is that he should be allowed to use, he or she, should be allowed to use the women's bathroom, now, how do you analyze that? I understand how you analyze --
David D. Cole: Yeah.
John G. Roberts, Jr.: -- status as it were, 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, does that hold true?
David D. Cole: So, first 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 -- in the following sense: A dress code that distinguishes on the basis of sex obviously is because of sex. The question, then, is does it impose a discriminatory term and condition? And as this Court said in Burlington Northern, to discriminate is not just to differentiate, but to differentiate in a way that injures.
John G. Roberts, Jr.: I think you're -- I think you're missing my -- my point, maybe because it wasn't carefully expressed, but it's -- it's can the claim be -- I mean, I understand when you say you're dealing with transgender status and you can't discriminate on that basis with -- on the basis of status. But when you get to the actual policy, do you analyze it as discrimination on the basis of sex carrying forward your reasoning from -- at the outset or on the basis of transgender status?
David D. Cole: So --
John G. Roberts, Jr.: 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 you analyze it as -- the affecting based on the transgender status or do you analyze it on the basis of biological sex?
David D. Cole: So the -- the -- I -- I think our argument rests on biological sex or what we think is more accurately referred to as sex assigned at birth. But here's -- here's the thing: 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 stereotypes, is that because of sex? That's what this case asks. Obviously, a sex-specific restroom policy is because of sex. That -- so you're -- we're not answering that question. It's because of sex. Then the question is --
John G. Roberts, Jr.: Just if I could interrupt so I can follow.
David D. Cole: Yeah.
John G. Roberts, Jr.: It's because of sex.
David D. Cole: Because of biological --
John G. Roberts, Jr.: And so -- but if you analyze it because of sex, then I think, as has been pointed out --
David D. Cole: Yeah.
John G. Roberts, Jr.: -- there's no disadvantage, whether you're a man or a woman. But if you analyzed it on the basis of transgender status, there is, because you want to use the women's restroom and 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.
David D. Cole: So I don't think so, Your Honor. I think -- look, anybody can challenge a sex-specific rule. A transgender person can challenge a sex-specific rule. A non-transgender person can challenge a sex-specific rule. What this Court said in Burlington Northern and in Oncale is that to decide whether something discriminates that refers to sex is you have to ask whether -- not just whether it differentiates, but whether it differentiates in a way that injures. And you answer that question by asking would a reasonable person in the plaintiff's position experience a significant or trivial harm?
Neil Gorsuch: Now --
David D. Cole: And in most instances --
Neil Gorsuch: And that -- that's the question I posed to Ms. Karlan earlier.
David D. Cole: Right.
Neil Gorsuch: And we went around the tree a bit, but ultimately came to, I believe, a submission that a 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, along the lines of --
David D. Cole: Yeah.
Neil Gorsuch: -- that were present in the facts of this case, where men and women had rather traditional options available to them. But -- so is that your answer as well?
David D. Cole: 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 a -- 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 would consider that a significant harm. 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 --
Sonia Sotomayor: Mr. Cole --
David D. Cole: -- based on biological sex as Justice -- as Chief Justice Roberts said.
Sonia Sotomayor: Mr. Cole, let's not avoid the difficult issue, okay? You have a transgender person who rightly is identifying as a woman and wants to use the women's bedroom, rightly, wrongly, not a moral choice, but this is what they identify with. Their need is genuine. I'm accepting all of that --
David D. Cole: Yeah.
Sonia Sotomayor: -- and -- 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?
David D. Cole: That --
Sonia Sotomayor: And what in the law will guide judges in balancing those things? That's really what I think the question is about.
David D. Cole: Well, that is -- that is -- that is a question, Justice Sotomayor. It is not the question in this case, because --
Sonia Sotomayor: Mr. Cole, that's -- yes --
David D. Cole: And -- and --
Sonia Sotomayor: -- because the -- once we decide the case in your favor, then that question is inevitable.
David D. Cole: No, I think even if --
Sonia Sotomayor: And it may not be--
David D. Cole: -- you decide the case against us --
Sonia Sotomayor: It may not be in -- if there's single-sex bathrooms, there might be one answer, meaning what harm would the other women -- reasonable woman feel if a man is using a single-sex bathroom, might be another if it is two locker rooms, men and women, girls and boys and who walks in is something you can't control. That's what the question is saying.
David D. Cole: But, Justice Sotomayor, the reason deciding this case will not decide that case is because --
Sonia Sotomayor: It won't decide that case.
David D. Cole: It won't decide -- but even if you rule against us, that case can arise, because it is a sex-specific rule, and anyone who is affected by a sex-specific rule can argue that it discriminates against them because a reasonable person in their shoes would experience a significant harm.
Samuel A. Alito, Jr.: Well, I understood you -- I understood you to say -- maybe I didn't understand you correctly -- that if your client had been fired for using the woman's bathroom, that would be a violation of Title VII.
David D. Cole: So I -- what I said was, yes, that -- that -- in our view, were we litigating that case here, which we aren't, they admitted that the -- the restroom was a -- was a hypothetical issue and not a -- a reason why she was fired, but were we litigating that case, I think the question would be not whether the -- 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.
Samuel A. Alito, Jr.: And --
David D. Cole: And if you require me to go to the women's restroom, that's a serious --
Elena Kagan: So what you're --
David D. Cole: -- issue.
Elena Kagan: -- saying is, we're stuck with that question regardless of how we decide this case.
David D. Cole: Whether you rule for or against us. This case --
John G. Roberts, Jr.: 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 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 who identify with their biological sex aren't disadvantaged whether they use the men's room, you know, they each can use their own restroom. But the issue seems -- is quite different if you are 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 in each case it's on the basis of sex. Do you analyze it on the basis of biological sex or are you analyzing it on the -- a different basis, because they present different issues?
David D. Cole: I -- Your Honor, for this -- for purposes of this case, all we are arguing is that Title -- Title VII's reference to sex at least includes what you're calling biological sex, what we call sex assigned --
Elena Kagan: Mr. Cole --
David D. Cole: -- at birth --
Elena Kagan: You can go further than that. For purposes of the next case, all it includes --
David D. Cole: Yes, exactly.
Elena Kagan: -- is biological sex as well. All that you're saying is, yes, that -- because of sex means because of biological sex, regardless of whether the transgendered person or whether a non-transgendered person brings this claim about the restroom. But you're --
John G. Roberts, Jr.: Then it's -- then it's an easy case, right?
David D. Cole: Yes.
John G. Roberts, Jr.: Because if it's just biological sex, there's no problem because there is no disadvantage. But if you're looking at transgender status, there is a huge problem because it is not biological discrimination --
David D. Cole: No.
John G. Roberts, Jr.: -- or the claim is going to be different. Certainly a transgender individual can bring the claim under Title VII that it discriminates on the basis of sex.
David D. Cole: Right.
John G. Roberts, Jr.: But if the claim is it discriminates because I am a transgender individual, that's not your claim?
David D. Cole: But that's not -- the -- the -- the claim here is that you are treating -- that Harris Homes is treating Aimee Stephens differently because of her sex assigned at birth. If she had a female sex assigned at birth, she would not be fired. Because she had a male sex assigned at birth, she is fired. That is discrimination because of sex. That's all that --
Samuel A. Alito, Jr.: What if they --
David D. Cole: And that doesn't decide the bathroom question because the bathroom question -- there's no doubt that a -- separate sex bathrooms are because of sex.
Elena Kagan: Because of biological sex.
David D. Cole: Because of biological sex, as you use it. The question then is, does it impose a de minimis burden, a trivial burden, as the Court said in Burlington Northern, or does it impose a significant burden. In Burlington Northern, the Court said the same rule can impose a significant burden as to some people and a trivial burden as to others. A schedule change might be trivial for a -- a -- a -- a worker with no kids --
Samuel A. Alito, Jr.: But I imagine --
David D. Cole: -- but a worker with kids it would be significant.
Samuel A. Alito, Jr.: I -- I imagine you would say that excluding a transgender woman from the woman's bathroom would be far more than a de minimis burden on that person, but let me move -- move out of that.
David D. Cole: Exactly.
Samuel A. Alito, Jr.: Let me move beyond the bathroom to another example. And it's not 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 in violation of Title IX?
David D. Cole: So Title IX is a different statute with regulations that explicitly permit sex-segregated teams when competitive skill or -- or contact sports are involved. So, again --
Ruth Bader Ginsburg: But this is not -- this is a question of someone who has transitioned from male to female --
David D. Cole: Right.
Ruth Bader Ginsburg: -- and wants to play on the female team. She's not questioning separate female/male teams. But she was born a man. She has transitioned. She wants to play on the female team. Does it violate Title IX which prohibits gender-based discrimination?
David D. Cole: 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 contact sports. 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 IX recognizes concerns about competitive skill in contact sports, that it's permissible. It may be that it's not permissible. But this -- this case just asks, when you fire somebody because you say she -- he was going to represent himself as a man, because she was using the name Aimee and that's not permissible because he's a man, is that sex discrimination? Yes, that is sex discrimination. Whether -- when you have a -- a -- a -- a policy that permits sex segregation, how that applies to transgender people is just a different question. It is not answered 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 -- a -- a -- a man off of that team? The -- the -- the -- the -- the stereotypes in this case are every bit as strong as they were in Price Waterhouse. What Mr. -- in fact, they're stronger because in Price Waterhouse, you had to infer from statements that non-decision-makers were making about why Ann Hopkins was fired. Here, Mr. Rost has made his sex stereotypes absolutely clear and the government and Petitioner concede that transgender people are not excluded from the statute. It's not like the German police officer. They concede, 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 can't be. Again, Ann Hopkins would lose her case were she transgender. It's -- it's not okay 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 1.5 million transgender Americans. And so to say we're going to fire you because you fail to -- to accord 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 of their lives is sex discrimination. It's also sex discrimination because she was clearly treated differently because of her sex assigned at birth. Imagine an employer who had six Aimees and invited all six Aimees in and he said: You know, I just want to know what your sex assigned at birth was. And five of them say, well, I was assigned female at birth. And one says, I was assigned male at birth. And then he fires the one who says I was assigned male at birth. Obviously, that person is fired because of her sex assigned at birth. And as we saw from the prior argument, it need not be the only justification. It needn't be only one justification. And -- and -- and -- and the notion that somehow discriminating against someone because they are transgender is not discrimination, discriminating 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. So, again, we're not asking that you update the statute. We're not asking that you redefine sex. We are accepting the narrowest -- for purposes of this case, the narrowest definition of sex and -- and arguing that you can't understand what Harris Homes did here without it treating her differently because of her sex assigned at birth.
Elena Kagan: There -- there seems, Mr. Cole, to be this dispute among the parties in this case as to what the basis of the firing was, whether 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 -- what should we make of that dispute?
David D. Cole: Well, I think, I mean, the Sixth Circuit expressly said that the reasons for firing her extended beyond the dress code. Counsel for Harris Homes conceded at oral argument in the Second 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 Petitioner's Appendix 66A from the Sixth Circuit decision. And he fired her after he got the letter saying I am coming out as a woman, and I'm going to heretofore be called Aimee, without any discussion of the dress code whatsoever. So this --
Neil Gorsuch: So -- so --
David D. Cole: -- is a case --
Neil Gorsuch: So, Mr. Cole, though, your argument, though, doesn't turn on that. I mean, it -- as I understand it, again, that if -- if the firing had been solely what the employer claims, the basis of the dress code only, the result would be the same. And I guess I -- I'd just like you to have a chance to respond to Judge Lynch in his thoughtful dissent in which he lamented everything you have before us, but suggested that something as drastic a change in this country as bathrooms in every place of employment and dress codes in every place of employment that are otherwise gender neutral would be changed, that that -- that that's an essentially legislative decision.
David D. Cole: Your Honor --
Neil Gorsuch: Judge Lynch is a very thoughtful judge and -- and wrote a very thoughtful opinion that I -- I think he probably regretted having to write. What do you say to -- to him?
David D. Cole: I -- 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 end dress codes or restrooms. There are transgender lawyers in this courtroom today.
Neil Gorsuch: Of -- of course, there are.
David D. Cole: And the --
Neil Gorsuch: That's not the question, Mr. Cole.
David D. Cole: And the -- no, but the -- this is --
Neil Gorsuch: Mr. Cole, the question is a matter of the judicial role and modesty in interpreting statutes that are old. And that's the question he posed.
David D. Cole: Right.
Neil Gorsuch: Nobody is questioning, and he certainly did not, the legitimacy of the claims and the importance of them.
David D. Cole: So -- so I think that two --
Neil Gorsuch: The question is about judicial interpretation.
David D. Cole: Yeah. There's two --
Neil Gorsuch: If you wish to address it.
David D. Cole: Two -- two -- two answers to that, Your Honor. First, on the question of judicial interpretation, we are not asking you to apply any meaning of sex other than the one that everybody agrees on as of 1964, which is sex assigned at birth or, as -- as they put it, biological sex. We're not asking you to rewrite it. Second --
Neil Gorsuch: I agree with that.
David D. Cole: Second --
Neil Gorsuch: The question, though, again, and I'm sorry to pose it --
David D. Cole: Yeah.
Neil Gorsuch: -- but I'm going to give you one more shot.
David D. Cole: Yeah.
Neil Gorsuch: Right? When a case is really close, really close, on the textual evidence, and I -- assume for the moment I'm --
David D. Cole: Yeah.
Neil Gorsuch: -- I'm with you on the textual evidence. It's close, okay? We're not talking about extra-textual stuff. We're -- we're talking about the text. It's close. The judge finds it 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 about it --
David D. Cole: So --
Neil Gorsuch: -- and that -- that is more effective -- more appropriate a legislative rather than a judicial function? That's it. It's a question of judicial modesty.
David D. Cole: So, first of all, federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years. There's been no upheaval. 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 -- the -- the Court's dress code and sex-segregated restrooms have not fallen. So the notion that somehow this is going to be a huge upheaval, we haven't seen that upheaval for 20 years, there's no reason you -- you would see that upheaval. 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 VII to say that Ann Hopkins can't be fired for being insufficiently feminine, but my client can be fired for being insufficiently masculine? There's no textual basis for drawing that distinction whatsoever. And that's because our argument rests on text meaning, at a minimum, sex assigned at birth or biological sex, and everybody agrees --
Neil Gorsuch: Did you want to address Judge Lynch's arguments or not?
David D. Cole: I -- I thought I was. Number 1, it won't -- it's not disruptive that transgender people exist in this world and we still have sex-segregated dress codes. And, Number 2, 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 at birth. Thank you.
John G. Roberts, Jr.: Thank you, counsel. Mr. Bursch.
John J. Bursch: Thank you, Mr. Chief Justice, and may it 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 VII gives Tom Rost the ability to consider how enforcement of a sex-specific dress code would impact all his employees and grieving clients. But the Sixth Circuit imposed a new restriction, and its holding destroys all sex-specific policies and even BFOQs while undermining the protections that Title VII provides. If you accept at face value Stephens' concession that sex means biological males and females, then the funeral home wins. So my friend, Mr. Cole, redefines sex to include transgender status in two respects. First, my friend's but-for test would mean that a women's overnight shelter must hire a man who identifies as a woman to serve as a counsellor 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's sex, he would be allowed to -- to hold that job and to use those facilities. The purportedly simple test does not get to the ultimate inquiry of whether men are being treated less favorably than similarly situated women because of sex. That does not reflect the original public and legal meaning of a statute promoting women's equality. Second, 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 case isn't about showers and overnight facilities and sports. Every single one of those is impacted if you're talking about a sex-specific policy. What Title VII says is that sex-based differentiation is not the same as sex discrimination. And that's why Ms. Karlan agreed that this Court's sex-specific dress policy doesn't violate Title VII. And though Congress has added classifications to cover transgender status in other statutes, it has rejected more than a dozen proposals here. Title VII --
Stephen G. Breyer: The first part, you've made the argument which I call the parade of horribles argument, but 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 occupational 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, though we haven't done it, and 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, if it does, we are not saying that there hasn't been harm, whether there has been a BFOQ, whether there is comparative harm, et cetera. That's what I've heard. Now, what do you say to that?
John J. Bursch: Justice Breyer, that is incorrect, because when a biological male is refused access to the women's restroom, the -- the male would say that was an injury.
Stephen G. Breyer: Yes, of course, he --
John J. Bursch: That they were hurt.
Stephen G. Breyer: -- he would say it's an injury.
John J. Bursch: And there is no BFOQ.
Stephen G. Breyer: And the other side would say: I'm sorry but there's serious injuries on the other side. And, therefore, it is a BFOQ. Okay? And so this is not that case. We do not have to decide it. 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.
John J. Bursch: It's their answer, and here's why: If Stephens 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.
Stephen G. Breyer: All right.
John J. Bursch: It would be --
Stephen G. Breyer: And just on the off chance that I feel we do not have to decide that matter in this case -- (Laughter.)
Stephen G. Breyer: -- have you other arguments that would favor your side? I know you do, and I'd just at some point to hear them.
John J. Bursch: Certainly. Their comparator is a man violating the dress code with a woman who follows the dress code. That is wrong. Our comparator is a man who violates the dress code with a woman who violates the dress code. Now, the reason we know theirs is wrong because if you were claiming transgender status discrimination, rather than sex discrimination, you would compare a transgender and a non-transgender employee, which is exactly what they do, which proves that they are adding a different classification into the statute that Congress has not added.
Stephen G. Breyer: And what they say is the reason we know you're wrong -- I'm not saying this -- nor am I assuming any other person thinks this, I'm just saying that this is what I hear -- that if you are right, then miscegenation does not fall within this statute, that Jews marrying Catholics does not fall within this statute, that 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 okay, as long as sometimes you'd fire a -- a -- a man because it's a woman's job. You see the point.
John J. Bursch: I do. Justice Breyer.
Stephen G. Breyer: Okay. Now the -- what is your answer to that?
John J. Bursch: There is no non-racist reason why you would fire the employee in the interracial marriage. There is no non-religious --
Stephen G. Breyer: There isn't? I happen to know people. I won't say who they are, but there are people -- (Laughter.)
Stephen G. Breyer: -- in my life I have heard say being Jewish is fine, being Catholic is fine, just don't get married.
John J. Bursch: But that's a religious reason. Now in this case --
Stephen G. Breyer: Right. I mean, does that mean it falls outside the statute that -- that -- that -- that forbids discrimination because of religion?
John J. Bursch: Yes. Because Title VII allows you to recognize that there are differences between women and men. And that an employer -- switching back to the first case -- could terminate a same-sex couple or an employee who is 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.
Sonia Sotomayor: That's a ministerial exception that already --
John J. Bursch: No.
Sonia Sotomayor: -- exists.
John J. Bursch: A ministerial exception if the employer is a church, but not if the employer is a Christian businessman --
Sonia Sotomayor: But there's still --
John J. Bursch: -- like Mr. Ross.
Sonia Sotomayor: But there are 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 his argument, will have to be guarded by or counseled by a transgendered woman, but isn't that exactly like Dothard? And there we said you can have -- you can't have sex-specific guarding of prisoners, unless you have a BFOQ. And there they found that it was a BFOQ to make only men guard men and women only guard women. So I'm not quite sure that I understand your parade of horribles.
John J. Bursch: Because under Mr. Cole's theory, BFOQs have to go too. So that if you have a BFOQ that says --
Sonia Sotomayor: But it's statutory.
John J. Bursch: It -- it is --
Sonia Sotomayor: They can't -- they can't --
John J. Bursch: If I could explain?
Sonia Sotomayor: -- wish it away. But go ahead.
John J. Bursch: If you have a BFOQ 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 BFOQ 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.
Sonia Sotomayor: No. What they're doing is saying if there is an independent reason why a man who's transgendered 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 why your gender should marry in the work you are doing, why should you not be hired?
John J. Bursch: Let -- let's go --
Sonia Sotomayor: That's a very different --
John J. Bursch: No.
Sonia Sotomayor: -- proposition.
John J. Bursch: But let's go back to the women's overnight shelter. Assume for a moment that the employer had a BFOQ that only women counselors would be able to counsel and stay overnight with the women who have been abused.
Ruth Bader Ginsburg: How does that fit with BFOQ? BFOQ is a very narrow category.
John J. Bursch: I -- I agree. But they're applying it broadly and I am using Justice Sotomayor's example. Assume that there is a BFOQ 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 are arguing that but for the fact that they were born as a man, they could take that women's position, so there is no BFOQ, there is no religious requirement that would stop and draw the line at the argument that they are making. All of the distinctions between men and women are gone forever. And that's the plain text of the statute.
Neil Gorsuch: Do you wish to --
John J. Bursch: But in --
Neil Gorsuch: -- address Judge Flaum's argument joined by Judge Ripple which, again is -- is a very thoughtful position too that there may be dual causes here, but the fact that sex is under consideration even as narrowly construed is enough to draw us within the statute?
John J. Bursch: I think that line drawing inquiries happen all the time in Title VII. And it is 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 VII's language is whether women are being treated less favorably than similarly situated men because of sex. And sometimes it'll fall on the line; sometimes it won't. Consider --
Elena Kagan: I think, Mr. Bursch, that that's not quite right, women should be treated less differently than men. You're making Title VII into a statute about groups but Title VII is not a statute about groups.
Neil Gorsuch: That -- that's helpful, but I'm also curious what you have to say, Mr. Bursch.
John J. Bursch: Yeah, 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 -- 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-specific showers and restrooms, that would not be a statutory violation because of their biological differences. Men and women are not similarly situated, and they're -- no one is being treated disadvantageously 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 VII.
Elena Kagan: I -- I -- I think, Mr. Bursch, maybe you answered Justice Gorsuch's question now. You didn't answer mine.
John J. Bursch: Okay.
Elena Kagan: Title VII is a -- is a -- is a statute about individuals --
John J. Bursch: Correct.
Elena Kagan: -- and whether individuals are being treated differently because of his or her sex. It's not a statute about, well, in the aggregate, does this -- does this act disadvantage men versus 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, Ms. Stephens, was being treated differently because of her sex. And this was Judge Flaum's 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 VII insists that you do, and coming up with the obvious answer. Yes, if she had not been a -- if she had not been assigned at birth the sex that she was assigned at birth, she would have been treated differently.
John J. Bursch: We agree with the individual treatment. That's why in Oncale, this Court said basically in the context of a male-only work force that the plaintiff had a cause of action because he was being treated differently than a woman in his position would have been. A hypothetical comparator, to get back to some of Justice Ginsburg's questions, even if there are no women on the site, you still have that hypothetical comparator. 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, then there is no --
Elena Kagan: Are you pinning your answer on the fact of a dress code? Would your answer be the same if there were no dress code and Ms. Stephens had just been fired for being transgender? 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 Ms. Stephens for being transgender, irrespective of whether there was a dress code.
John J. Bursch: Here's the reason why, Justice Kagan.
Elena Kagan: The why what? The -- that the arguments do go that far.
John J. Bursch: Well, that the arguments apply in both situations.
Elena Kagan: Yeah, if there's a dress code or if there's not a dress code?
John J. Bursch: Because if this Court allows a sex-specific dress code because it acknowledges the differences between men and women, it's no different if an employer without a dress code impact -- imposes the same policy on an informal basis. It doesn't change the fact that women are not being treated worse than men, as Ms. Karlan said. It doesn't treat her worse than -- or it doesn't treat men worse than women that we wear a tie in this courtroom and that women do not. Sex-specific policies acknowledge that there are differences, so whether the sex code 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 VII 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 VII at the time of its enactment 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. The -- the problem here is that under their theory, the -- the federal agency that brought this claim and -- and then an unelected panel in the Sixth Circuit, changed the law. They added a transgender classification, applied it to a business retroactively. And what's more, the Sixth Circuit said that sex itself is a stereotype. And Mr. Cole agrees with that 100 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 under Title VII 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 and 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. Thank you.
John G. Roberts, Jr.: Thank you, counsel. General Francisco.
Noel J. Francisco: Mr. Chief Justice, and may it please the Court: I'd like to make three basic points aimed at basically addressing Justice Gorsuch's comment that this was -- this is a close textual case. And I would like to respectfully argue that I don't think it's that close for three reasons.
Neil Gorsuch: Oh, neither side ever thinks a case is close. (Laughter.)
Neil Gorsuch: Judges always do, don't they?
Noel J. Francisco: And the first, Your Honor, is the one that I was talking about earlier, that sex and gender identity, like sex and sexual orientation, are different traits. They're defined, they have different definitions, as my friend just said. He agrees that they're 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 sex as 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 trait exactly the same regardless of their sex, you're not discriminating against them because of their sex. The second and related textual issue is that the standard for 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 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, in fact, similarly situated to cisgender man, just like they assert that a gay woman is similarly situated to a straight man. But that is manifestly not true because, with respect to the transgender issue, the difference between a transgender man and cisgender man is that one identifies with his biological sex and the other identifies with the opposite of his biological sex. And that is a very meaningful difference that is not grounded on stereotypes. It's simply grounded on a difference between a transgender man and a cisgender man. 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.
Neil Gorsuch: A great deal of --
Noel J. Francisco: It's a different type of relationship.
Neil Gorsuch: A great deal of -- of the arguments here could be cast as stereotypes, though, right? That the plaintiff in this case or that case doesn't conform to male or female stereotypes?
Noel J. Francisco: That is --
Neil Gorsuch: And -- and as I understand your brief, you accept that argument and that those are good claims without respect to comparators of opposite sex. And if -- if that's the case, what's the real difference here between the two sides? I mean, we've --
Noel J. Francisco: Right.
Neil Gorsuch: I -- I accept there's some delta, but it seems smaller than might first appear.
Noel J. Francisco: Sure. And I -- what I would say the difference is at what stage of the analysis you're doing it? The way -- the place that stereotypes come up are when you're figuring out whether similarly situated -- whether two people are, in fact, similarly situated. An aggressive man -- take Price Waterhouse: An aggressive man is similarly situated to an aggressive woman. They have the exact same trait, aggressiveness, and the only difference is that stereotypical view that women shouldn't be aggressive. But a transgender man and cisgender man do not ever share the same trait in the first place because one identifies with his biological sex, the other identifies with the opposite of 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 --
Elena Kagan: General --
Noel J. Francisco: -- to a straight woman for exactly the same reason.
Elena Kagan: And I think one could argue just the opposite, that there is another trait in Price Waterhouse, and the trait is conformity to traditional gender roles. So your argument would suggest, no, we shouldn't look at the aggressive woman and the aggressive man. We should instead say, no, there's this other thing, which is conformity to gender roles.
Noel J. Francisco: Right.
Elena Kagan: We should really look at whether the employer treats the same the aggressive woman and the docile man, the docile effeminate man. And if the employer treats the aggressive woman in the same way that the employer treats the effeminate man, they're both fired, then the employer is off the hook. Now, you yourself, say that that's not right, that, in fact --
Noel J. Francisco: Right.
Elena Kagan: -- 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 trait, which is just a little bit different from the independent trait here. Here the -- the -- the -- the -- the independent trait, so-called, that you say is the transgender identity. There, the independent trait was the refusal to conform to traditional gender roles.
Noel J. Francisco: Right. And -- and I -- the reason I disagree with that analysis, Your Honor, is because I don't think that Price Waterhouse creates some kind of freestanding stereotype claim. What it prohibits is stereotypes that show that you're treating similarly situated men and women differently.
Ruth Bader Ginsburg: But I thought you --
Noel J. Francisco: So in Price Waterhouse --
Ruth Bader Ginsburg: I thought you answered the question that -- that Price Waterhouse would not have prevailed if it had treated men who were not sufficiently macho in the same way that they treated women who were not sufficiently feminine.
Noel J. Francisco: No, Your Honor, I believe we said the opposite of that in our brief. And it was --
Ruth Bader Ginsburg: That that would be okay?
Noel J. Francisco: Yeah, we said the opposite of that in our brief.
Stephen G. Breyer: Then I could ask this --
Ruth Bader Ginsburg: And they could rely on the -- for both cases --
Noel J. Francisco: Yes.
Ruth Bader Ginsburg: -- they could rely on the stereotype that the woman doesn't fit, they can rely on the stereotype that the man didn't fit, although the cases have said that the object of Title VII was to get at the entire spectrum of sex stereotypes.
Noel J. Francisco: And so as we read Price Waterhouse, which I have no quarrel with in the slightest, if you treat an aggressive woman worse than an aggressive man, you are violating Title VII because you're treating similarly situated people differently. Applying that here, if you treat a transgender man exactly the same as you treat a transgender woman regardless of their sex, you're likewise not discriminating against them because of their sex --
Stephen G. Breyer: I -- I --
Noel J. Francisco: -- since they're similarly situated --
Stephen G. Breyer: I -- we got that. I -- I -- I want to know on a totally separate argument.
Noel J. Francisco: Yeah.
Stephen G. Breyer: See, one, it's only my characterization, not anybody else's, but I do characterize one set of arguments that you've been through as trying to work with the language of the statute. All right? And on the one hand, you have these are individuals, individuals four times --
Noel J. Francisco: Yeah.
Stephen G. Breyer: -- 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 putting that to the side.
Noel J. Francisco: Okay.
Stephen G. Breyer: Then there are the horribles. Okay? And we've discussed that at length. I'm putting that to the side.
Noel J. Francisco: Okay.
Stephen G. Breyer: Then I say, well, there seems to be a third set in some of these briefs, that regardless of the first two, Congress -- and that's what I think the dissenting judge was talking about, and Judge Posner, who had a good point. I'm not saying it's a winning point -- (Laughter.)
Stephen G. Breyer: -- which is what I want to know.
Noel J. Francisco: Yeah.
Stephen G. Breyer: That 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?
Noel J. Francisco: No, we are relying on it in this sense.
Stephen G. Breyer: Oh, you are.
Noel J. Francisco: One -- one, we think it fortifies our other arguments, but I know --
Stephen G. Breyer: Of course, it does.
Noel J. Francisco: -- you don't -- I know you don't want me to push on that, so I'm not going to push on that. We're relying on it to the sense that to the extent there is any ambiguity here, we think it is strongly dispelled by the history of these statutes. And I want to address that updating issue because it's a very important question.
Stephen G. Breyer: Yes.
Noel J. Francisco: And here, by updating it in the way that my friends on the other side would have you update it, they're actually undermining the manner in which Congress has traditionally considered updating it. If you look at ENDA, which I think --
Stephen G. Breyer: ENDA.
Noel J. Francisco: -- refers to the Employment Non-Discrimination 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 --
Stephen G. Breyer: Got it.
Noel J. Francisco: -- groups of very different views. But if you resolve this issue judicially, you are essentially delivering -- and I hate to use these types of terms --
Stephen G. Breyer: All right.
Noel J. Francisco: -- but a complete victory to one side of the fight and nothing to the other side --
Stephen G. Breyer: All right. I've got that point.
Noel J. Francisco: -- of the fight, you're upsetting that --
Stephen G. Breyer: Yeah.
Noel J. Francisco: -- legislative balance.
Stephen G. Breyer: I -- I think that is an argument in your favor.
Noel J. Francisco: Yeah.
Stephen G. Breyer: Moreover, I think this whole category is the elephant in the room and --
Noel J. Francisco: That -- that was actually the --
Stephen G. Breyer: -- I think it is --
Noel J. Francisco: -- third point point I was going to make to Justice Gorsuch.
Stephen G. Breyer: Well, all right, 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 '60s, we were only ten years away from where people who were real slaves and -- and discriminated against obtained a degree of freedom. And these statutes were all part of a civil rights movement that was designed to give, include in our society, people who had been truly discriminated against for the worst of reasons. And at that time, this civil rights statute, when it was passed, would have put in the category gay people, transgender people, of people who were 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's a change that both explains why they didn't put it in initially and explains why we should, other things being equal, interpret it to include gay people and transgender people now?
Noel J. Francisco: 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 -- I -- I -- I actually find it 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 another that this is the right thing to do.
Ruth Bader Ginsburg: No one ever --
Noel J. Francisco: And when courts --
Ruth Bader Ginsburg: No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in '64. It wasn't until a book was written in the middle '70s bringing that out. And now we say, of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination but it wasn't recognized --
Noel J. Francisco: And --
Ruth Bader Ginsburg: -- to be such in the beginning.
Noel J. Francisco: And, Your Honor, I think that that is a straightforward application of Title VII's text. With respect to what I was talking about with Justice Breyer where we were 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. In Obergefell, 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 --
Sonia Sotomayor: May I --
Elena Kagan: General Francisco --
Noel J. Francisco: -- which also should be respected.
Sonia Sotomayor: May -- may I just ask, at what 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 Breyer was right that Title VII, the Civil Rights Act, all of our acts were born from the 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 are 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 some people. They may have power in some regions, but they're still being beaten, they are still being 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 used clear words. And regardless of what others may have thought over time, it's very clear that what's happening fits those words. At what point do we say we have to step in?
Noel J. Francisco: 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 and have been making from beginning to end is that Congress has not resolved this issue because sex/gender identity, sex/sexual orientation --
Elena Kagan: General, these are some --
Noel J. Francisco: -- are different traits.
Elena Kagan: -- some thoughtful responses that you have given to this set of questions. But in responding to Justice Breyer, 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?
Noel J. Francisco: Yes, Your Honor, if the statute is unambiguously against me, you have to rule against me. I actually think that the statute is unambiguously in my favor for the reasons I was given and the third reason, which is the reason that Justice Breyer alluded to, Justice Scalia's great line about how we don't hide elephants in mouse 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 reach that same result indirectly. I think all of the textual arguments cut in our favor straight away, but to the extent there is any doubt, there is no way to find that elephant in this mouse hole. Thank you, Your Honor.
John G. Roberts, Jr.: Thank you, counsel. Five minutes, Mr. Cole.
David D. Cole: Thank you. Interpreting a 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 VII 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 Homes fired Aimee Stephens 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 Harris Homes fired a man because he was a man that would be sex discrimination. If it fired an employee because he was insufficiently masculine, that would clearly be sex discrimination. In this case, Harris Homes fired Aimee Stephens because he thought she is a man who is insufficiently masculine. That too must be sex discrimination. She's not seeking any special protection. She is seeking and all transgender people are seeking the same protection that everybody else gets under the law. This Court 30 years ago said in Price Waterhouse: "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 Homes did was to insist that she match the stereotypes associated with her group. That's impermissible under this Court's precedent, that's impermissible under the literal terms of the statute and this Court should rule for Aimee Stephens. Thank you.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.