Legal Docket: Redefining sex


MARY REICHARD, HOST: It’s Monday morning, the 14th of October, 2019. Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. In eight states, several university campuses, and more than 100 cities, it’s Indigenous People’s Day. For the rest of us, Columbus Day, a day off for federal workers and the U.S. Supreme Court. 

Tomorrow, the justices return for week two of oral arguments. 

On week one, they jumped right in with possibly the biggest controversies of the term: three significant LGBT cases. And Mary will review last week’s arguments in a moment.

Each case, of course, has a different set of facts, but the legal question is similar: Does the word “sex” in Title VII of the Civil Rights Act of 1964 include homosexual and transgendered persons?

Two cases deal with two men who claim they were fired because of their homosexuality. The court consolidated both of those cases into a single hour of argument. 

The third case deals with the Michigan funeral home director who was fired after announcing “he” would be transitioning to a “she.” 

These are the first LGBT-related disputes to reach the high court since Justice Anthony Kennedy retired. He’s the one who wrote the majority opinion in the 5-to-4 case called Obergefell vs. Hodges that redefined marriage in all 50 states to include same-sex unions.

The political and social ramifications brought out both sides of the debate on argument day last Tuesday outside the courthouse. Patrick Henry College student Danielle Bliven was outside the court and gathered this sound. She said the arguments were familiar, with LGBT activists contending that nothing less than human rights are at stake, and women’s rights groups sounding the alarm about biological females losing ground hard fought over the last 100 years.

CHAVEZ: I’m here because I’m motivated by two simple words: women matter. And that of course includes the most vulnerable women among us. This is what intersectionality is all about, right? Our opponents often throw that term around and yet they’ve chosen to sacrifice the most vulnerable women and girls in society on the altar of gender identity.

REICHARD: That’s what was going on outside the courthouse. 

Inside, two hours of argument. I’m going to simplify by combining all of them for the purpose of this report. Remember, the fact difference is two homosexual employees, and one transgender. Each claims job loss due to sex discrimination.

You’ll first hear Pamela Karlan, lawyer for the two gay men. She argued Title VII of the Civil Rights Act needs no “reinterpretation.” She says the law on its face already supports her clients’ argument that they were discriminated against on the basis of sex.

KARLAN: When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing.

Justice Ruth Bader Ginsburg asked a question about the original intent of Title VII.

GINSBURG: Ms. Karlan, how do you answer the argument that back in 1964, this could not have been in Congress’s mind because in—in many states, male same-sex relations was a criminal offense; the American Psychiatric Association labeled homosexuality a—a mental illness?

KARLAN: Well, I think you read the words of the statute. And this court has recognized again and again forms of sex discrimination that were not in Congress’s contemplation in 1964. In 1964, those were the days of Mad Men, so the idea that sexual harassment would have been reached, most courts didn’t find sexual harassment to be actionable until this court did. 

In Price Waterhouse, this court recognized that discrimination against a woman who cursed like a sailor, walked like a man, and didn’t wear makeup was reachable under Title VII.

Chief Justice Roberts brought up a matter that recurred during both hours of argument: Shouldn’t Congress decide whether a law it passed means what Karlan argues it ought to mean? That laws ought not be “updated” by the courts?

Karlan waved that aside.

KARLAN: I think you should read the words as they were understood then, which is “men” and “women.” Title VII was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men. 

And when you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex.

And then, an awkward silence, while Karlan still had more than 20 minutes remaining. The chief justice intervened.

KARLAN: Well, if no one has any further
 questions, I’ll reserve the remainder of my time 
for rebuttal. (Laughter.) 


ROBERTS: Well, I think 
we’ll have further questions. (Laughter.) 


Yes, quite a few. In the transgender employee case, Justice Neil Gorsuch seemed sympathetic to fired employees, and that the text of Title VII itself makes an argument for them. 

Still, he worried about something else.

GORSUCH: When a case is really close… on the textual evidence and I—assume for the moment I’m with you on the textual evidence. It’s close, okay?…A 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…

That worry was dismissed by ACLU lawyer David Cole who represented the transgender funeral director.

COLE: Federal courts of appeals have been recognizing that discrimination against transgender people as sex discrimination for 20 years. There’s been no upheaval.

As for the employers’ side of the transgender case, lawyer John Bursch distinguished between the meanings of “sex” and “transgender,” and that Title VII doesn’t apply to sexual orientation or gender identity.

He represents the funeral home owner, Tom Rost.

BURSCH: 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. 

The problem here is that under their theory, the federal agency that brought this claim and then an unelected panel in the 6th Circuit changed the law. They added a transgender classification, applied it to a business retroactively, and what’s more the 6th 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.

And then Bursch went in for the emotional kill. You’ll hear a very unfamiliar initialism, “BFOQ,” and it stands for “bona fide occupational qualification,” which Bursch will explain.

BURSCH: 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 of his employees and grieving clients. But the 6th Circuit imposed a new restriction: and its holding destroys all sex-specific policies and even BFOQ’s while undermining the protections that Title VII provides. 

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 counselor to women who have been raped, trafficked, and abused and also share restrooms, 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.

U.S. Solicitor General Noel Francisco, also arguing in support of the employers, underscored that religious liberty issues are at stake. He also warned about damage to the balance of powers for the courts to make a legislative move that’s for Congress to make.

FRANCISCO: 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.

But David Cole, lawyer for the transgender individual, disputed that idea, arguing interpreting a statute is part of the democratic process and Congress can change what it doesn’t like.

COLE: The purpose of Title VII as this court defined it was 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. 

And 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 also be sex discrimination.

Interestingly, the justices did not delve into questions about the rights of employers to decide what is best for their businesses. 

Nor did they question the premise that biological males and females who want to be called by counterintuitive pronouns may require everyone else to adjust. 

But those weren’t legal questions before the court.

And that’s this week’s Legal Docket.


(AP Photo/J. Scott Applewhite) In this June 20, 2019 file photo, The Supreme Court is seen under stormy skies in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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