On October 8, the Supreme Court will hear oral argument in three cases concerning the scope of Title VII’s ban on employment practices that “discriminate” on the basis of “sex.” Two consolidated cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, present the question whether Title VII prohibits discrimination on the basis of sexual orientation, and the third, R.G & G.R. Harris Funeral Homes v. EEOC, asks whether it bars discrimination on the basis of gender identity.
I’m pleased to see that the Department of Justice has filed outstanding briefs in both cases. Here is its brief on behalf of the EEOC (opposing and reversing the position the EEOC took below) in Harris Funeral Homes. And here is its amicus brief in support of the employers in Zarda and Bostock.
As you’d expect, the core argument that DOJ presents in the two briefs is the same. I am going to outline here DOJ’s argument in Harris Funeral Homes:
1. Title VII does not prohibit discrimination against transgender persons based on their transgender status.
When Title VII was enacted in 1964, the ordinary public meaning of “sex” was biological sex, not transgender status. (Brief 16-20.) Congress’s actions in the ensuing 55 years forcefully confirm that “sex” in Title VII does not encompass transgender status. (Brief 22-27.)
2. Discrimination based on transgender status does not inherently entail discrimination because of sex.
a. To discriminate against a member of a protected class means treating an individual in the class less favorably than a similarly situated individual outside the class. An employer that treats individuals differently who are not similarly situated does not discriminated based on a prohibited ground. (Brief 31-33.)
An employer that treats transgender individuals less favorably based on their transgender status does not expose members of one sex to disadvantageous treatment to which members of the other sex are not exposed. So long as the employer treats transgender individuals of both sexes equally, it has not discriminated against either males or females. If an employer discriminates against an individual because that individual is transgender, the less favorable treatment is not because of that individual’s sex. (Brief 33-34.)
Harris Homes treated Stephens (a biological male) less favorably than male employees who dressed as males at work. But there is no evidence in the record that Harris Homes would have treated more favorably a female employee who intended to dress as a member of the opposite sex, and there is plenty of evidence to the contrary. (Brief 34-35.)
b. The court below was wrong to hold that discrimination because of transgender status necessarily entails discrimination on the basis of sex because one cannot treat a transgender person differently “without considering that employee’s biological sex.”
It is simply not the case that Title VII bars any employment practice that can be applied only by identifying an employee’s sex. Many commonplace practices that distinguish between the sexes do not violate Title VII because they account for real physiological differences between the sexes without treating either sex less favorably. Sex-specific restrooms, for example, and dress codes. [I’d add in sex-specific locker rooms in corporate gyms.] (Brief 35-38.)
[DOJ also cites with approval the Fourth Circuit’s allowance of “gender-normed” fitness standards by the FBI. I’m very doubtful that the Fourth Circuit’s opinion in Bauer v. Lynch is sound, as I think that the gender-normed fitness standards clearly treat men less favorably. But those on the Left who think that the opinion is sound and who think that Title VII prohibits discrimination based on transgender status have some additional explaining to do.]
3. Discrimination against transgender persons does not constitute sex stereotyping prohibited by Title VII.
Sex stereotyping by itself is not a Title VII violation. Price Waterhouse v. Hopkins (1989) merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex. But it did not recognize sex stereotyping as a freestanding category of Title VII liability. A plaintiff must still show that an employer treated members of one sex less favorably than similarly situated members of the opposite sex. Otherwise, countless sex-specific policies—e.g., sex-specific restrooms, or a requirement that men wear neckties—would be susceptible to challenge as predicated on sex stereotypes. (Like any other plaintiff, a transgender person may use evidence of sex stereotyping in proving discrimination on the basis of sex.) (Brief 45-50.)