Bench Memos

Law & the Courts

Mau-Mauing Justice Gorsuch on Title VII and Sex Discrimination

The oral arguments yesterday (transcripts here and here) by the employees’ lawyers in the Title VII SOGI cases and much of the commentary on the oral arguments stuck rather closely to the script set forth in the briefing:

1. Insist that a deeply defective claim about the meaning of Title VII—namely, that any employment practice that can be applied only by identifying an employee’s sex amount to discrimination because of sex—is a sound textualist argument.

2. Fail to reconcile that claim with the longstanding acceptance of sex-specific restrooms, locker rooms, shower facilities, and dress codes—all of which require taking account of an employee’s sex.

3. Accuse any conservative justice who doesn’t accept that defective claim of abandoning textualism and of being unprincipled.

Justice Gorsuch, whose questioning of both sides was very evenhanded, seems to be a particular target of the browbeating. I doubt very much that he’ll be influenced by it, but we’ll see.

Gorsuch asked some questions that explored whether sex was one of “two causal factors at work” when an employer discriminates on the basis of sexual orientation or transgender status. One answer to that (as another line of Gorsuch’s questioning recognized) is that, as the restroom and other examples illustrate, showing that an employment practice takes account of an employee’s sex is not enough to establish a violation of Title VII. A second answer, as Solicitor General Noel Francisco and others explained, is that the employer who, say, bars a male employee who identifies as female from using the women’s facilities is treating that male employee “the same as a similarly situated woman”—that is, a woman who is barred from using the men’s facilities—and is thus clearly not discriminating on the basis of sex.

Once the causal question is framed correctly—as a question about why the employer treats a man who identifies as a woman differently from other men—it’s clear that sex is not one factor among others. It simply plays no role at all.

The coherent textualist argument that defeats the Title VII claims is that Title VII’s ban on discrimination because of sex does not impose a regime of asexuality or androgyny. Rather, to borrow the words of Justice Ginsburg that the Court unanimously embraced 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.”

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