The amicus brief filed in the Title VII SOGI cases in the Supreme Court on behalf of Kenneth B. Mehlman and some three dozen other “Republicans, former Republicans, and political conservatives” of varying degrees of prominence suffers from the same defects as the amicus brief for some former SGs:
1. The brief asserts that “it is clear that discrimination on the basis of sexual orientation or transgender status necessarily constitutes action taken because of the individual’s sex,” (emphasis in original), for it “is impossible to cognize a person’s sexual orientation without first noting whether the person is male or female (or possesses the physical or behavioral characteristics usually associated with being male or female).”
But the brief fails to recognize that its supposed test for unlawful discrimination on the basis of sex would also doom practices that have long been accepted under Title VII, such as sex-specific restrooms, sex-specific shower facilities, and dress codes.
Assume a situation in which an employer has sex-specific restrooms and showers and a male employee (not someone who identifies as transgender) is disciplined or discharged for using the women’s restroom or showers. It is impossible to apply the employer’s policy “without first noting whether the person is male or female.” Under the simplistic logic of the amicus brief, that would mean that the employer’s policy violated Title VII. But Title VII has never been so understood, and the brief doesn’t even acknowledge the problem, much less try to address it.
2. Relatedly, the supposedly textualist brief never examines what “discriminate … because of … sex” means.
As Fifth Circuit judge James C. Ho has crisply explained, the traditional understanding of Title VII’s ban on discrimination “because of … sex” is that it adopts an anti-favoritism theory (employers can’t favor men over women, or vice versa) rather than the blindness theory (employers must be entirely blind to a person’s sex) that the brief imagines. But, again, the brief doesn’t recognize the issue, much less engage it.
3. From the fact that Title VII prohibits discrimination against individuals, the brief leaps to the mistaken conclusion that the plaintiff employee does not have an obligation to show that the employer disadvantages the plaintiff’s sex as a group. The brief somehow never acknowledges this passage from the Court’s unanimous opinion in Oncale v. Sundowner Offshore Services (1998):
“The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” [Quoting concurring opinion of Justice Ginsburg in Harris v. Forklift Systems (1993).]
Again, discrimination on the basis of sexual orientation or gender identity does not expose “members of one sex … to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale’s reading of Title VII thus defeats the brief’s claim.