Strict Scrutiny - Rick Perry and the German Policeman

Episode Date: October 21, 2019

On this special Title VII episode, Leah, Jaime, and Kate are joined by a special guest – Jay Austin, Senior Associate Dean of Enrollment and Financial Aid at Rutgers Law School. Together they recap the Title VII arguments (which means a lot of bathroom talk). Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back, everyone, to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Leah Littman. I'm Jamie Santos. And I'm Kate Shaw. And we have with us today a very special guest for a very special episode. So this episode is

going to be just limited to a recap of the Title VII arguments. There was so much to talk about with the arguments and the cases. We didn't want to give short shrift to it by just lumping it in together in a general recap episode. And so we also decided to have on with us an incredibly special guest, Jay Austin, Senior Associate Dean of Enrollment and Financial Aid at Rutgers Law School. Most recently, Jay was the inaugural Dean of Admissions at UCI Law. He has decades of experience as the chief admissions officer at several of the nation's top law schools. Jay, welcome to Strict Scrutiny. Thank you.

Thank you. So Jay has spent his entire adult life shepherding nearly two generations to law school, and that work has required recognizing and embracing the narrative of each individual. And at the same time, Jay also lives authentically as a black man of the trans experience. So as we were thinking about doing an episode on Title VII, I thought, who better to do this episode with than Jay Austin, who has spent decades shaping the community of law students and who I learned so much from at UCI when I had the opportunity to work on the admissions committee with him for two years. Jay's also willing to use his voice to speak on behalf of communities that have been

marginalized. And in particular, the hate crimes and the violence experienced by the trans community, especially Black trans women, in his view, has demanded that he use his platform to speak louder as a member of the trans community. So Jay, thank you again so much for being on the show. Delighted to be here, Leah, Jamie and Kate. So Kate and Jamie, you were at the argument. Well, Kate was in the room. I was in another room. So, you know, for people who have not been to an argument at the Supreme Court, the room is shockingly small and it just doesn't fit that many people. And this is,

of course, an argument that there was a tremendous amount of interest in. So folks were lining up. This was a Tuesday argument. Folks were lining up to try to get regular seats in the courtroom beginning on Saturday. So, you know, three, four days before. So when I go hear Supreme Court arguments these days, I'm a contributor with ABC. So I go and sit in the press section, which is when you're in the courtroom facing the justices off to the left of the courtroom, kind of behind the benches that you see. There are a whole bunch of seats for members of the press, but also tons of press interest in this case. So I was about four rows back behind thick curtains and metal grates. And so, you know, I couldn't see anything, not the

courtroom, not the justices. And I was surrounded by a bunch of other sort of folks with press credentials, some of whom were there for the first time. And so I actually couldn't see anything and didn't know the justices' voices. So I ended up doing a lot of like, people would be like, who's that? And I would say like, Gorsuch, Alito, during the argument. So I was like kind of distracted for a lot of the argument. But anyway, so I was in the courtroom and I did hear it, but I did not in fact see the advocates or the justices. So Kate, you and I probably had a somewhat similar perspective then. So I went and stood in the Supreme Court bar line.

And the way that works is if you're a member of the public, there's a public line. And usually I think somewhere between 50 and maybe 75 or 100 people from the public make it into the courtroom. And then for the Supreme Court bar line, typically we usually see about three dozen, maybe more, who make it into the courtroom. This time I showed up at 4.30 in the morning, which is earlier than I've ever had to show up. And I was only 25 people back and I did not make it in. They did not make a lot of space in the courtroom for members of the bar. There were a lot of people whose admissions were being moved. They were becoming a part of the Supreme Court bar that day. And it basically took up kind of all of the spots of the bar. And the part of that that was most disappointing to me, I mean, aside from not being in the room, is that most of

the members of the Supreme Court bar who were there standing there for a long time were members of the LGBT community. And so you have this, you know, massive group of folks who these cases will obviously affect, who weren't able to be in the room, but they do have a kind of overflow room called the lawyer's lounge, where you can hear the argument, you just can't see it. So that's, so I did get to hear it in real time. And I did get a lot of the excitement from that. And then, Kate, when you walked out afterwards, what were your thoughts? I had never been to one of these big high profile cases. You know, it was kind of a strange day, because there were a couple of suspicious packages that were located near the court, we didn't get a lot of details, but basically led to the clearing of the plaza outside of the Supreme Court before the argument. And that's typically where there's, you know, particularly

in a case like this, just, you know, rallying energy signs. And so all of that was moved down about half a block. So when I got to the court, it wasn't, it was a very different scene than I anticipated. And then I wasn't outside for a couple of hours after the argument. But it felt sort of similar to, I was at the court for the Obergefell argument. I mean, it's just, there were, there was just like a lot of energy. I think a lot of people, a lot of young folks, you know, folks who maybe hadn't been to Supreme Court arguments before or, you know, were invested in cases like this. So it had, you know, a sort of a celebratory feel, which I think was the case with the Obergefell argument as well. Obviously, nobody knows how the case is going to come out. But the fact that it was a moment of, you know, kind of

visibility and sort of community sort of resonated, I think, at least as far as I could tell after the argument. Yeah, I went down right in front of the courthouse right after the argument. And there were probably several thousand people there at that time, right in front. And there were protesters, there were people celebrating, it's kind of all sides of the spectrum. And also in the courthouse and in the courtroom, also, I think Laverne Cox was there, who's a famous trans actress and advocate. Sarah Ramirez, who is a queer actress from Grey's Anatomy. So that was kind of interesting as well, having some star power in the courtroom. So let's get to the cases themselves. Yes. All right. So let's just jump right in. So there were kind of three primary things the justices focused on and the advocates focused on. So the text of Title VII, the legislative history of Title VII, and the kind of pragmatic consequences that some thought might result from ruling in favor of the petitioners in these cases.

And I think let's start with the text because that is usually the very best place to start. Basically, the text of Title VII says it makes it an unlawful employment practice for an employer to fire, refuse to hire, or take adverse employment action against an employee because of the employee's sex, and then also race, national origin, some other things. And so the basic argument for the employees in both cases is that firing someone who is gay, lesbian, or trans is discrimination on the basis of sex. And so Leah, it doesn't say firing on the basis of sexual orientation. It doesn't say firing on the basis of sex. And so Leah, it doesn't say firing on the basis of sexual orientation. It doesn't say firing on the basis of gender identity. So how textually was the argument

made that this was firing on the basis of sex? Sure. So as the employees are saying, no matter how you describe the identity or characteristic that the employers are discriminating on the basis of here, all of the actions and decisions they are making are contingent on an assessment about the employee's sex. So, for example, if Katie is fired for being a woman who is attracted to other women, but the employer wouldn't have fired John, right, that is contingent on Katie's sex. So, two, if an employer is discriminating against a member of the trans community because of how that individual addresses or their gender identity, they would not be treating them the same way if they had a different sex assigned at birth. And so that two is discrimination on the

basis of sex. You can also argue that the employer's treatment of the employees is based on sex stereotyping, and we'll get into that a little bit later. But basically, if the employer is punishing the employee for failing to conform with the employer's notion about what it means to be a man or what it means to be a woman, well, that too amounts to discrimination on the basis of sex. And at times in the argument, Justice Gorsuch signaled that he was aware that this is discrimination on the basis of sex. So we're going to play one short clip of him here in which he is channeling this idea.

And in what linguistic formulation would one say that sex, biological gender, has nothing to do with what happened in this case. And just kind of as a little bit of background to add on with what you said, the employers in the case, particularly in this case, I think was from the first, the sexual orientation case, the employers had argued that this has nothing to do with sex, that it's solely due to sexual orientation, and that those two things are distinct. And the argument was basically basically as long as an employer would fire a gay man and a lesbian woman, then it's not discrimination on the basis of sex, it's discrimination on the basis of sexual orientation. And so here, I think you mentioned

Justice Gorsuch, you know, did kind of point out, took this kind of textualist approach, at least in part. And so I think one of the things we see when looking at what the court focused on is some playing against type, right? So, you know, stereotypically, the conservative-leaning justices focus more on text. The more liberal-leaning justices focus more on legislative history and purpose. But here you had Justice Gorsuch and the four liberal justices really focused in the entire time on the text of Title VII. And you saw some of the conservative justices focused more on Congress's intent, which is, you know, did Congress specifically have in mind the two concepts of sexual orientation and gender identity in 1964? And so, Kate, what did we see, you know, looking at legislative history? Okay, so to talk for a minute about legislative history, the sort of the history of Title VII, and in particular, its inclusion of the term sex in sort of list of prohibited categories in terms of employment action is actually pretty complicated. So, you know, the Civil Rights Act of 1964 is passed in response to the civil rights movement.

It is clearly and indisputably about race. It is about removing barriers to racial equality, eradicating discrimination in a number of spheres, right, but employment among them. But the passage is incredibly hard fought, requires breaking the longest filibuster in history. And very late in the process, a Southern Democrat, who was actually an opponent of the bill, introduces an amendment to add sex to the list of protected characteristics. Now, for a long time, the view of the history of Title VII was that this was clearly a poison pill that he was hoping to tank the bill and to keep it from passage by including this characteristic, thinking that maybe a majority of Congress might vote to prohibit discrimination on the basis of race and employment, but surely discrimination on the basis of sex would be a bridge too far.

And so the amendment ends up getting adopted by a combination of opponents of the bill writ large and proponents of sex equality, including most of the women who were in Congress at the time. So this is kind of a long backstory. But it actually, I think, because it's such a sort of strange and circuitous route to inclusion in the Civil Rights Act, in Title VII, people don't actually focus on the legislative history as such of Title VII. So you didn't hear much. If legislative history is just kind of, you know, the prehistory of a statute, what happened inside Congress as the bill was being amended and debated, that wasn't really in the argument, you know, as such. But certainly, as you said, Jamie, legislative intent, what Congress in 1964 might have intended was something that even some of the more liberal justices, right? Justice

Ginsburg posed, I mean, I think she knows what she thinks the answer to this question is, but she posed the question. So but what if, you but what if the 1964 Congress couldn't have imagined that sexual orientation discrimination would be encompassed within the term sex or sex discrimination? And I think that we'll talk a little bit more about the advocate's performance in a minute. But I think that in particular, Pam Carlin just had a great answer to that, which was in some ways, we've already crossed that bridge, right? So it is clearly the case. This court has recognized forms of discrimination as sex discrimination that couldn't possibly have been in the minds of the enacting Congress in 1964, like sexual harassment, right? So 64, these are the madmen days.

Sexual harassment was rampant in the workforce, and surely people who voted to amend Title VII this way didn't imagine they would be outlawing sexual harassment as such. And yet the court has conclusively found that sexual harassment violates Title VII. So the question of whether the terms of a statute and broad terms, right, as I think we think that sex is, can transcend the particular intentions of either the drafters of the statute or the you know, the average person alive at the time as they would have understood the meaning of that term. No, Justice Kagan had some thoughts on the use of legislative history. And primarily, I think, if you look at the Solicitor General's brief, it really was front-loading this legislative history point and something that we call kind of

negative legislative history. Basically, the idea that, look, Congress has considered adding sexual orientation and gender identity to Title VII a whole bunch of times and they've rejected it. So we shouldn't read that into the statute now. And so that was an argument that the SG's office made. And Justice Kagan had thoughts on the SG's arguments. You talked about the history of Title VII and some of the subsequent legislative history. And I guess what strikes me, and I was struck in reading your briefs too, is that the text of a statute, not the legislative history and certainly not the subsequent legislative history. And so basically, you know, in this part, you know, I think Justice Kagan's kind of saying we don't hear these arguments, not just generally, but we don't hear them from you very much. And I kind of felt like during the argument, the SG, you know, pivoted a little bit to talk less about legislative history than we saw in his briefs.

But was that kind of you all's observation as well? I totally agree. in the sexual orientation discrimination case did. You know, he started by saying states have outlawed discrimination specifically on the basis of sexual orientation. You know, our adversaries' argument suggests that it was unnecessary for them even to move to do that because the federal anti-discrimination law already prohibited it. So he's both talking about, you know, I think these unsuccessful attempts in the federal legislature to amend Title VII to explicitly include sexual

orientation and gender identity, and also the fact that lots of states and localities have independently passed anti-discrimination laws or ordinances that encompass sexual orientation and gender identity. And he's saying none of that would be necessary if they're right about what the statute already prohibits. Now, that's not totally right because Title VII doesn't cover every employer anyway. But I think those are sort of two variations on the same argument, which is that none of these efforts, state or federal or local, would be necessary if Title VII already meant what the plaintiffs in these cases suggest that it means. this idea about Congress's expectations later on, because this is going to be appearing in the argument again. But another point that the justices focused on is the consequences of this ruling that Jamie, you were alluding to previously. Yeah, there were, you know, two justices who I thought really focused on that the consequences. Justice Alito and Justice Gorsuch both made comments

about it. So the first one is a comment that Justice Alito made. And he said, you know, I want you to respond to this question I have. You know, what are people going to say if we rule in your favor? You know, and what people are going to say is that whether Title VII should prohibit discrimination based on sexual orientation is a policy issue. And so I was curious what you all thought of that. And Jay, I'd love to bring you in on this as well. The idea that the justice is thinking, what will people say if we rule in your favor? Is that something that we would typically see from a Supreme Court justice kind of making that affirmative argument? Let me jump in. I think this was an area that was

really troubling to me to hear about the thought that there might be social upheaval. Because although I'm very pleased that the trans visibility in the trans community is clearly the flavor of the month in terms of both the entertainment and fashion industry. But it's almost bittersweet and somewhat heart-wrenching to know that so many members in the community continue to be marginalized. And even in the states that have wonderful legislation protecting us in so many ways. But the truth of the matter is, regardless of how this ruling comes down, that there will always be members from the LGBT community and the non-gender-informing community who will continue to be fully participants in our society, in an employment area, our education areas. And so the court's ruling isn't

going to change that. But what I worry about is how the community is going to be supported either directly after this, the oral arguments, and then either be supported or vilified once a decision comes down. So, you know, some aspects I know many of my colleagues, we just feel like we're sitting on pins and needle for the next few months. I want to play that clip that Jay just referenced about Justice Gorsuch noting the possibility of massive social upheaval in the event that the court rules for the employees here. I'm with you on the textual evidence. It's close, okay? We're not talking about extra textual stuff. We're talking about the text.

It's close. 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 and the possibility that Congress didn't think about it and that that is more appropriate and legislative rather than a judicial function? That's it. It's a question of judicial modesty. I think this is another example of the kind of playing against type because what we see from Justice Gorsuch in argument after argument is him saying, listen, the text says what it says. If you don't like it, if you don't like how it's going to affect society, then there's a solution to that. It's called legislation. And here we hear him saying, well, the text does seem to support your argument, petitioners, but I'm really worried about how society will react. And I'm really curious to hear what you have to think about that, Leah, this notion of how will society react and should or shouldn't we consider that?

So it's, one, incredibly frustrating to me to have someone like Justice Gorsuch, who is proudly and avidly a formalist when it comes to interpretation, saying I'm a textualist or I'm an originalist. And usually he doesn't say I'm a textualist, except where it will make social conservatives mad, which seemed to be kind of a variation of the argument that he was making here, right? Like, I get that the text of the statute supports the employees. However, right, there's going to be massive social upheaval because people won't like that. Second is, I think that this gets back to something that Kate alluded to earlier, which is that a lot of Title VII itself was subject to, quote, massive social upheaval in the sense that people disagreed with the idea that employers should be prohibited from discriminating on the basis of race. And some of the court's rulings, which, among other things, prohibited employers from engaging in sex stereotyping or prohibited same

sex sexual harassment, you know, you could say so too there, right? There is some possibility that that's going to generate massive social upheaval. But that doesn't mean that the court was wrong to interpret the statute according to its words. And it certainly doesn't mean that we are wrong to try to, you know, prohibit employers from invidious discrimination and discrimination that is going to exclude people from various public spaces. If, right, like we think it's going to make some people mad, that's just not a kind of theory of interpretation that I think is super defensible. I had a slightly different reaction. I don't necessarily think it's insane to think of pragmatic consequences. I mean, we see that really often in the criminal context. You know, if I interpret the statute in the way that you want me to, we're going to have to let 32,000 people out of prison tomorrow. You know, let you mentioned, Leah, is what is this social upheaval we're talking about? What exactly does he think is going to happen? And I think key to my thoughts on this

is that there are already 20 states, two territories and the District of Columbia that by statute already forbid discrimination based on sexual orientation and gender identity. And there's two states in which sexual orientation and gender identity have already been kind of interpreted as part of sex, you know, discrimination on the basis of sex. That's half the country, and the country hasn't exploded. So just I'm concerned about the idea that this he really thinks this could lead to massive social upheaval, especially when Title VII only covers 20% of the nation's employers. Yeah, so I would say I actually kind of agree with both of you, which is that I agree with you, Jamie, that this kind of pragmatic consideration of consequences is fine when you're looking at

a statute, especially if it's a statute that is somewhat ambiguous. But I totally agree with your assessment of the consequences. And I think to your point, Leah, it's the hypocrisy that's frustrating here, right? It can't be that it's permissible to look at the consequences. And, you know, and I think to your point, Leah, it's the hypocrisy that's frustrating here, right? It can't be that it's permissible to look at the consequences only where you think the political sort of valence of the consequences is one that you are sympathetic to. And this is he hasn't, at least in his short time on the Supreme Court, he has not been particularly receptive to arguments about consequences to this point. So Jay, you had alluded to your concern about how the community will be supported or vilified

in the aftermath of the decision and then the aftermath of the argument. I guess from my perspective, I kind of want to know concretely what should, for example, someone on strict scrutiny or a listener of strict scrutiny be thinking about as things that they can do to be supportive of the

trans community, you know, after we are getting these oral arguments in which some of the justices are bandying about this possibility that there's going to be massive social upheaval and that they just like can't imagine living in a world in which, you know, members of the trans community are able to, you know, work in conformance with their gender identity or, you know, employers can't fire someone for, you know, being gay or lesbian or bi? Yeah, the answer seems really simple, but I know it's a really challenging one for most of society and individuals. But it's a question of how do you support a community that is already under siege and has been historically under siege? And we've seen that play out in other times in our

society. But I think particularly with there's a, it's a question of overcoming this level of fear that I think people have about either the bathrooms or the community at large, and recognizing that, you know, we are your neighbors, your friends, your family, your colleagues, and supporting them in the workplace, particularly. And that may mean something as simple as standing up, you know, and we talk about being bystanders and how important it is to not be silent as a bystander. Perhaps being an ally and recognizing either through your employer or through your academic institution or whatever space you occupy that there will be people who are along the gender continuum and are being more visible and vocal and supporting them in these really difficult times. I mean, sometimes it's as simple as giving someone a hug and recognizing that they need to have that level of support. And so if you have a platform and an opportunity to be vocal, you need to do it. But it is going to be, I think, the level of violence that is always perhaps part of the scenario and the landscape for a trans community is not going to go away.

And it's how are we able to function within that? Some of that is just completely education, and some of it is just having a level of empathy that I think that's also been lacking. Can I ask you a question, Jay? One thing I noticed in both arguments is that it seemed like all of the advocates and the justices looked at these two categories. So, you know, straight people and gay people, transgender people or trans, you know, members of the trans community and cisgender people, or as many members of the court called it, non-transgender people. And it was this very binary approach. But that's not actually how the world works, right? Like, for gender identity and for sexual orientation, there is generally a continuum. And some people might fit in one part of the continuum, you know, at one point, and later in their life or other parts of their life, they might fit on another part. And it was troubling to me that it was just so binary. And I think, especially when

looking at the transgender case, if you look at, you know, someone, you know, sex stereotyping, someone who's effeminate, you can't fire them from being effeminate. But the line from can't fire them for being effeminate to, you know, to being non-gender, gender non-conforming, to being trans, to identifying as trans seems like such kind of shades of difference. So I was curious about your thoughts on the kind of binary approach it seems like was kind of overwhelming the arguments. You know, I mean, we've all been socialized in this society and to think in terms of the binary. And I think it's challenging people to think beyond that. And you're absolutely right. I mean, 1 day, someone may identify as 1 point on the continuum and another day of something else. And I think that's particularly true being on college campuses and we're seeing the gender fluid fluidity being much more prevalent in terms of how younger people are seeing themselves.

Some of the language that the justices use was pretty interesting to me. I think on some level, it showed a level of information and understanding that I didn't anticipate. On the other extreme, I could see where also it may be cringe sometimes, And I thought, wow, they're not using the right words. And so part of that means, you know, understanding the language and understanding how people may request to be identified. And that, you know, going back to Leah's question about how do you support communities, just understanding the language and embracing the language

is one really forward-facing thing to do to help people understand where they are and where they are at that particular minute. And that's not necessarily just the use of the pronouns per se. That's great, Jay. And I think that's a perfect segue to something that we wanted to kind of drill down on a little bit deeper, which is, yeah, sort of the justices and the advocates' use of language in this argument. And in a case like this, you know, it's you always will kind of read closely the language the justices use, in part because it signals things about how they understand the players and the issues in the case, in part because the court has a role to play in shaping discourse, right, whether it wants to or not. And in part because this is the first time the court has discussed these issues, in particular of discrimination in the trans community.

It has had cases involving sexual orientation discrimination and statutes of the Constitution. But this was a new set of issues in many ways for the justices. So I think we were all watching very closely to see how they would kind of respond, to see what kind of language they would use. So I would say that in all, this argument was a mixed bag. So I think there was, Jay, as you were just alluding to, some genuine effort. There were some failures and some missteps. Let me start by just sort of flagging one thing and then others should jump in. So I actually was going to mention something that I thought that Noel Francisco, the lawyer for the federal government, actually did well in this argument. And I feel like we've been critical of Francisco on this podcast, and I think deservedly so, but I actually do want to give him credit for something, which is that he, you know, and I should also say stipulated,

he was arguing with the authority of the United States federal government in defense of the right of employers to fire LGBTQ workers without violating federal law. And so, you know, that is stipulated. The one thing I do want to say that I think that he did well was that he used the term cisgender, and he used it very comfortably, right? There weren't audible air quotes when he used it. And David Cole, who was the lawyer for the transgender plaintiff, didn't, right? He said, I think Jamie used this term before, but he said non-transgender.

Justice Kagan also said non-transgender. Not that I think it didn't, that didn't strike me as problematic, but cisgender is just, you know, kind of a powerful term, you know, and it's only been really widely used for, I think, about a decade, although there's some earlier academic work. But it's powerful because it gives a name to a category and an experience that has long been treated as so natural that it doesn't even need a name, right? Like for some people, for most people, sex assigned at birth and gender identity align. And that is one way of going through the world. And it has a name, which is cisgender. And for some people, there's a divergence. And lots of those folks identify as transgender. And that's another way of going through the world. And it has a name, which is cisgender. And for some people, there's a divergence. And lots of those folks identify as transgender. And that's another way of going through the world. And it just, it's like a nicely de-stigmatizing sort

of term. And I wanted to credit him for using it. I totally agree with that. I was very heartened by it as well. Yeah. And I don't think anybody else did in the argument. Okay. So that's just one thought on one of the advocates. What about the justices? Jamie, what did you think of the justices' use of language? How'd they do? petitioners called Sex Assigned at Birth. So the notion is, you know, if people have this idea that there's biological sex and then you change, you are different from your biological sex, it is stigmatizing itself versus sex assigned at birth based on, you know, visible physical characteristics. It kind of shows that we as a society actually assign a sex. It's not something that is necessarily inherent or necessary. It's a step that we take. And so the chief kind of said over and over, referred to biological sex, and then also referred to a transgender woman as a transgender man

transitioning to woman. And so let's play that clip really quickly. 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? So that was kind of a bummer to me. I just kind of wish that the chief had made a little bit more effort to kind of educate himself about terminology and vocabulary. There were two parts that I remember in the moment jotting down from Justice Kagan and Justice Sotomayor that I was really impressed with. The first I saw Justice Sotomayor, you know, took a pause for a second and made sure she was appropriately using the term transgender woman. And then similarly, Justice Kagan, in another part of the argument, after she had several times used the term biological, you know, biological sex, I think she noticed that David Cole from the ACLU kept

trying to gently correct that. And so there was this one part where she kind of awkwardly paused for a second and then correctly used the term sex assigned at birth. If she had not been assigned at birth the sex that she was assigned at birth, she would have been treated differently. So I like to see people struggling and making an intentional effort to use culturally appropriate terms. I think it's really useful. And so I appreciated seeing that from both of the justices. The use of the terms to me is a form of a micro affirmation as opposed to a micro aggression when you misuse the terminology. And so to see the justices to both stumble but also make the attempt was a really powerful statement. And that's actually the kind of statements that we as individuals and we as

a community continue to need to make towards a trans communion, gender nonconforming is recognizing that there's a level of affection that can be displayed towards the community by using the correct language and not always waiting to ask people how they want to be, what's the terms that they want, but taking it upon ourselves to educate ourselves and use the correct terminology. So to me, that was a really powerful moment, even though there were stumbles in it. I did want to add one thing about, because we said Noel did well on using the term cisgender, which I agree is good to introduce just to get the justices to understand

that we have just been assuming kind of one state of affairs is the natural one. And we now understand better that that is not the case. The other is that at some point in the argument, he starts talking about a hypothetical that had been used before. And he talks about the prospect of, quote, men using women's bathrooms and women using men's bathrooms. And that made me cringe a little bit, just because I thought that that was playing into a kind of fear mongering-ish, you know, akin to the massive social upheaval problem about what's going to happen if you allow, you know, members of the trans community to live consistent with their gender identity. And I wasn't exactly sure what he was referring to, but I didn't love that he used that as the description that he was alluding to.

Another thing that you mentioned, Jay, is, you know, the notion of certain terms being imposed upon people versus ones that they themselves have chosen. One thing I did notice is that Justice Sotomayor repeatedly used the term homosexual, which is not a particularly culturally sensitive word. It's not a slur necessarily, but, you know, it's a, and please correct me if I'm wrong, but I believe that the kind of derivation of that term is it's the term that was used to refer to gay and lesbian people back when being gay or lesbian was considered a mental illness. I think it was the term that was used in the DSM.

Is that accurate? That is actually another term that always struck me too, was there a couple of reference to women lesbians, right? And that was also, and I thought, okay, well, I guess that's another term that they quite didn't have an understanding of. So I know that Justice Unmeyer does really make an effort to use culturally appropriate language. So I hope maybe you reconsider using hope that's not the case. But if there's an effort to actually use the right language, show that you're becoming immersed in the issues, show that you're trying to treat people as full members of society, and on the legal issues you rule against them, at least there will be that kind of, you talked about microaffirmance, or at least folks will feel that there's this sense of at least procedural justice, even if not necessarily substantive justice.

You know, and I think under that umbrella, I would hope that it will inspire more members of the community to increase their visibility, right? I mean, not unlike some of the moments in prior years where, you know, we said, you know, everyone knows someone who is gay, lesbian, or as such in their family or in their community. And so this might be another moment where the trans community becomes highly visible and is just more vocal in demanding certain levels of responsibility and respect for the community. So we've already kind of alluded to this before, but maybe we kind of go on to our assessments about other moments in the argument that gave us pause and some of the other fixations of the justices. So the Supreme Court seems obsessed with bathrooms.

I would say nearly a quarter, if not more, of the arguments, both arguments focused on bathrooms and who can use bathrooms and will it make people uncomfortable in two cases that had nothing to do with bathrooms. And it did make me wonder how much time do the justices think trans members of the trans community spend in the bathroom. I think, you know, in the Harris case, the case about, you know, trans members of the trans community, it took the chief justice exactly one second, I think, to turn to bathrooms. His very first question was, but what about bathrooms? And he framed this as a question about work requirements, which kind of befuddled me. So let's play that clip. 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?

Kate, in the courtroom, did it seem like people were having any kind of reaction to the ongoing discussions of bathrooms? Or I know in the lawyer's lounge, people were kind of like, are you kidding me? Are we still talking about bathrooms? Yeah. I mean, especially when we were talking about the, I mean, neither case was remotely about bathrooms. But at least if we're talking about people using bathrooms consistent with their gender identity, you can at least see the kind of conceptual link in the transgender case. In the sexual orientation discrimination cases, it was completely bizarre that the justices kept asking about bathrooms. And it did sort of, you know, this is not something that necessarily comes out of the blue, right? Like bathrooms have been used as a reason to exclude marginalized groups from public space for decades. So there's this very ugly history, right, of the invocation of bathrooms in civil talk about bathrooms when we're talking about, you know, someone being transgender. But just as you kind of said, Kate, this was used during the civil rights movement to try to keep, you know, black people out of bathrooms because it would make white people uncomfortable. It was a reason that women in the military was opposed. Well, what will happen when they have to go to the bathroom? It was a reason why people opposed, you know, same sex rights. Well, what if we have gay people in the bathroom? So it does just seem like one of those continuations that, you know, has historically occurred. It's not unique to this case at all. And so with that ugly history, I thought it was extraordinarily frustrating that everyone talked about bathrooms so much. And I thought that, you know, David Cole in particular was effective, although, you know, the justice didn't necessarily respond, I think, appropriately,

but I thought he was very effective in saying, whatever you do in this case, there may be another case involving bathrooms. So you're not going to resolve that issue and you're not going to avoid that issue. So let's focus on the issues in these cases. But he had a hard time, I think, getting through to them. So just to kind of unpack that, because I think it's helpful for our listeners to understand that, the reason why whatever the court does in this case is not going to affect the fact that the court is going to have to answer this question about sex-segregated bathrooms is that no matter what the court says about whether Title VII also prohibits discrimination on the basis of sexual orientation or gender identity. Everyone agrees that sex-segregated bathrooms are differentiating people on the basis of sex. Like even under Noel Francisco's and the employer's theory,

you are differentiating people on the basis of what they call, you know, sex assigned at birth, or in their terms, biological sex, right? Women do one thing, they go to one place, men go to another place. And so the court is going to have to answer, right, why is that permissible? And the answer that both of the advocates gave is, right, because that doesn't alter the terms and conditions of employment for a lot of men and women. Now, as applied to members of the trans community, that does, right, alter the terms and conditions of their employment to the extent you force them to use bathrooms that are not consistent with their gender identity but again like that is going to have to be a separate question that the court answers because no matter how the court answers the question about discrimination on the basis of sexual orientation and gender identity sex

segregated bathrooms are discrimination on the basis of sex simple view about the bathroom thing because it's obviously something that you know has been problematic and questionable for you but you know if you grew up in a household where there were people who identified among multiple genders but she only had one bathroom the same bathroom right and so it didn't matter what your gender identity was it was a singles and that's what you use so come on folks we all have to pee and And what what are people doing? And I mean, I have never had reason to see or know or wonder about what the genitalia was of the people in the bathroom I was in. Or, you know, I just can't. I don't know. Maybe I maybe I am unusual, but I just

it has never, ever been something that would come to my mind as an issue. I don't hang out in the bathroom. I don't know. Well, so I don't know what kind of bathrooms the justices are envisioning, right? But architecture has largely eliminated this concern about privacy because when you go into the bathroom, everyone does not immediately strip naked and just start defecating and peeing everywhere, right? That's only on Seinfeld. That's only on Seinfeld.

That's not how bathrooms work. To the extent we can be helpful justices, I hope we clarified that. And then there were also, I think Justice Alito had some questions about, well, does this mean that, you know, when it comes to schools and the NCAA, will people be able to play on female sports teams and on the women's sports teams? And David Cole basically had this response was, there's a whole different statute from that. Can we, that's under something else. Can we please move on and talk about what this case is about, which is a person being fired solely because they identify as their gender identity does not match their sex assigned at birth. Can we talk about that issue, please? Yeah. Okay. So I want to make sure we have a couple minutes to talk a little bit about any thoughts that we have that we haven't yet expressed about how the advocates did. Jamie, you had some thoughts, I think,

on the petitioners' lawyers. What do you think? Yeah. So I and I think that we probably have some different thoughts on this, which I think is a good thing to share our maybe sometimes opposing viewpoints on in the first argument, Pam Carlin argued, and she is a legend. I thought her opening was amazing. I thought she framed the issues really wonderfully. I thought her textual arguments were fantastic. But I had some serious concerns with the way she handled hypotheticals. And I know in the lawyer's lounge, there were a lot of kind of wide eyes and oh-no's in the room. First, she just got stuck talking about this bathroom point forever and couldn't get off of it and didn't seem to be making much of an effort to try to do so. So that concerned me a lot.

Two other things. So just on that point, I wanted to jump in on the bathroom point because I feel like what Pam did, and I should disclose I worked with Pam when I was visiting at the Stanford Litigation Clinic. So you can discount whatever I am about to say on that ground. I thought what came through well as she was answering the questions is, one, why the fuck are you asking me about this? I am arguing employers can't discriminate on the basis of sexual orientation. Why are you asking me these questions about people's use of bathrooms? You know, like, and so I, you know, just wanted to flag that answer, which we can play for a second here. You'd be better advised to ask the question to someone who is representing someone who's

transgender. I'm representing someone who's gay. And then the second thing I wanted to note about that is that she was freely, right, willing to say, right, like, no, it is not permissible to force members of the trans community to use bathrooms that are not consistent with their gender identity. So even though, right, her case did not involve bathrooms, even though her case did not involve members of the trans community, you know, she first tried to get the justices like back to what this case is about. And then second, when they their fixation on bathrooms continued, right, she was just going to say, you know, no, like, I'm not going to throw the other, you know, case under the bus. One thing I thought that she did that was pretty interesting was she kind of brought the court as an institution into the conversation. So she says, when I got up, you called me. She says, addressing the chief justice, when I got up, you called me Ms. Carlin.

I suspect or I'm willing to bet that when my adversary gets up, you're going to call him Mr. Harris. And so she's sort of trying to make the point that gender differentiation happens all the time, but that a lot of it is not harmful. And it seemed like she, you know, and so like, I'm not hurt by being called Ms. Carlin. And, you know, lots, most people may probably aren't either. And it's not like it's a little bit responding to the social upheaval point. But like, I think that justices are a little uncomfortable in sort of being reminded that they live in this kind of social and cultural ecosystem, that they're part of it. You know, I kind of felt like it was a bold move. It was, again, meant to sort of illustrate the innocuousness of a lot of sex differentiation.

But I worried that it had this kind of unintended effect of reminding them of the prevalence of sex differentiation in a way that was going to make them nervous about what they were going to upend, potentially. And again, I think for the reasons that we've discussed, lots of questions remain open regardless of how they decide this case. But, you know, the chief justice then, after she says, I'm sure you're going to call my opponent, Mr. Harris, she sits down and the chief says, counsel. And he gets a little bit of a laugh. And then Harris, instead of responding, you know, just beginning his argument, he says, counsel, and he gets a little bit of a laugh. And then Harris, instead of responding, you know, just beginning his argument, he says, Mr. Chief Justice and may please the court, and he gets an even bigger laugh. And it was like this, oh, right, they used to all be Mr. Justice until Justice O'Connor joined the court. And for some reason, when we have a finally a female

Chief Justice, then the Mr. Chief Justice will fall by the wayside, rightly. But it was a bold and interesting choice, I think, to bring the court into the conversation. And I'm just not sure if it worked. So there's another place where I thought that it did not work and it made my head explode. And that was when Pam Carlin brought up the idea of different dress codes as being socially acceptable. And she affirmatively offered the following example. I know we can talk absurd examples. No, but I'll give you a real world example, which is it probably doesn't violate the dress code to require men and women and business events for the women to wear skirts. But if you required a female telephone lineman to wear a skirt. And so I kind of thought that, you know, affirmatively making the point

without being asked about it, that it is totally fine to require women to wear skirts at business events was kind of horrifying to me as a woman, as a feminist, as, you know, as a lot of things. So that was not my favorite part. But I think she's just she was she was just trying to suggest, I think, that, you know, we can take baby steps. And I sort of agree that maybe she gave too much away there. But I think that that was clearly a considered choice to show the justices how much would be unaffected by their ruling in this case. And then the last part that happened kind of very at the end of the argument, that Justice Alito had this hypothetical that was just, I think, is kind of an insane hypothetical that will never happen. But he said, what if an employer didn't hire someone because they were gay, but the employer didn't know the applicant's sex? Couldn't that be discrimination based on sexual orientation without being a

subset of sex? And the petitioner's argument all along is that discrimination based on sexual orientation necessarily is discrimination based on sex. And the respondent's argument is it might not be. Sometimes it might. Sometimes it might not. We'll have to look at the facts to know. And so Pam Carlin's response to this was basically, yep, that could be discrimination based on sexual orientation without it being based on sex. And here's that clip.

So this is Saturday Night Live Pat as an example, right? Well, I'm not familiar with that. Which is the person named Pat, and you can never tell whether Pat is a man or a woman. I mean, theoretically, that person might be out there, but here's the key. Theoretically what? Theoretically, that person might be out there, but here's the key. The cases that are brought are almost all brought by somebody who says, my employer knew who I was and fired me because I was a man or fired me because I was a woman. Somebody who

comes in and says, I'm not going to tell you what my sex is, but believe me, I was fired for my sexual orientation, that person will lose. Well, if that's the case, then I think your whole argument collapses because sexual orientation then is a different thing from sex. Of course it is. No one has claimed that sexual orientation is the same thing as sex. What we are saying is when somebody is fired... Let me amend that. Your argument is that discrimination based on sexual orientation necessarily entails discrimination based on sex. And so what were your responses to that? I thought it was hugely problematic and really gave up this kind of per se argument that the petitioners

really needed. But again, it was a crazy hypothetical. Yeah, it felt to me like she was just sort of fundamentally misunderstanding the hypothetical. Like, I think Alito envisioned a resume that was like ambiguous as to the sex of the applicant, but had some kind of signaling of like membership in some LGBT group or something. And I think you're right. The answer has to be, yes, if the person isn't hired. Now, I think Pam may have been saying like, oh, failure to hire is always kind of weird. There's lots of factors or failure to interview even. And so maybe that's part of what tripped her up. But I think you're right. The answer has to be, yes, if the reason or even if one of the reasons that the person is not getting a call is because they have somehow identified as LGBT on a resume,

that's sex discrimination on the logic that they're advancing. And so I think the answer was wrong, but I genuinely think she didn't totally understand. She said she thought someone's walking into the room and is, I think, gender nonconforming. And in some ways, that tripped her up, too, to kind of go back to the conversation that you, Jamie, and Jay were having before about how binary a lot of the conversation was. She sort of did seem to be saying, well, maybe a gender nonconforming person presents a different scenario. But, you know, I think revealing that she's pretty caught up in these kind of binary terms, as were I think pretty much as was pretty much everybody involved in the arguments. Yeah. And I thought, you know, there was a good answer on this. It's basically, even if you don't know the sex of that, you know, the sex assigned at birth of the person before

you, you're still refusing to hire someone because whether they're male or female, you know that they do not live up to the stereotypes you have for how men or women should act and live. And that's discrimination based on sex. And I think even bracketing the sex stereotyping, you know you are subjecting them, right, to treatment that is based on their sex and their partner's sex. So imagine, for example, that an employer doesn't know, right, the race of an employee, but all they know is they are in an interracial marriage, right, and the employer fires them for that reason. In that

circumstance, that's clearly discrimination on the basis of race. Just like if an employer knew that the employee was in interfaith marriage, but didn't know the particular religion of the employee, that would be discrimination on the basis of religion. So it can't be that like not knowing the sex of the employee, but knowing that they are in a same sex relationship or knowing that they are a member of a trans community necessarily means it's not sex discrimination once you start to play with those hypotheticals. But I did appreciate Pam's reference to the Pat character from Saturday Night Live, even though I agree that it was maybe not entertaining or like fully grappling with the application of this statute to individuals who do

not identify as gender binary. So how about you two? You know, how did you think the advocates did? You know, aside from, you know, some of the observations you've always already shared, but did you have any additional kind of thoughts? I mean, I actually thought that, you know, given the hot topic of this in so many ways, because I think, you know, society is really watching this, right? People who have been discussing these issues and concerned about this have been waiting to see the courts talk about bathrooms, talk about gender identity, talk about sexual orientation. And so, you know, I'm not, for me, obviously the jury is still out in so many ways. So it was both empowering in ways to hear about my community at this level in terms of, you know, SCOTUS discussing this, but at the same time, I thought, do we really have to get to this point, right? I mean, we really want to be a society that's inclusive, that people have a sense of belonging regardless of where

they sit along the gender identity continuum. And for me, I think that's where this will drill down to ultimately, what will be the sense of belonging from the community after this. So before we wrap, should we make sure we talk for a couple of minutes about the kind of the, you know, the implications, what's next, sort of regardless of how the Supreme Court rules in this case, I don't feel like I can make any bottom line predictions. This is such a hard one to read. I think that Justice Gorsuch seemed genuinely to be open, but I don't know yet sort of enough about him at oral arguments to predict anything. I assume that he will side with the employers at the end of the day. Justice Kavanaugh, who I thought was kind of the person to watch going in, said almost nothing. And the chief, I thought, seemed much more sympathetic to the employers,

particularly in the gender identity case. I thought he seemed a bit more open in the sexual orientation cases. But I think this is a really hard one to call. So I don't have any good predictions to make. Yeah. so I guess I am not particularly optimistic, in part because of this clip I wanted to play, which is, you know, I agree that of the conservative justices, the one who seemed to be understanding the textual argument on behalf of the employees was Justice Gorsuch. But there was this moment where Justice Gorsuch was asking David Cole, who was arguing on behalf of Amy Stevens, about the implications of ruling in her favor.

And Justice Gorsuch seemed to get really frustrated when David Cole tried to make statements about, you know, no matter what you are going to rule here, members of the trans community, right, are going to continue to exist in public spaces and thrive in the way that Jay was alluding to, right? They are lawyers, they are in the courtroom, you know, there's no massive social upheaval, even though you have members of the trans community using bathrooms of the Supreme Court that correspond with their gender identity, right? So try and grapple with that. And Justice Gorsuch seemed to be getting audibly annoyed when David Cole was trying to make these affirmations and statements about the implications for the transgender community. There are transgender lawyers in this courtroom today.

Of course there are. That's not the question, Mr. Cole. The question is a matter of the judicial role. 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 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 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. Leah, the way I took that, and I could be wrong, is that, you know, Justice Gorsuch asked the question, David Cole starts to answer it, and Justice Gorsuch interpreted David's answer

as, you know, suggesting that Justice Gorsuch was biased. It was kind of like a, you know, don't even get into that issue about how there are trans people here. I don't want to talk about that or think about it. You know, I'm not saying anything offensive. I'm asking you a simple doctrinal question about modesty. And that's what you should answer. And it seemed to kind of try to sanitize the humanity of the issues that were before the court. So I was concerned by that as well. So one thing that we previewed on this show before is what happens if the court rules for the employers and specifically what will be the implications for the sex stereotyping theory of discrimination. The Solicitor General and employers briefs had questioned whether sex

stereotyping as such was a violation of Title VII. However, at oral argument, it appeared like the Solicitor General wanted to back away from that a little, or at least he was going to fight the hypotheticals that Justice Ginsburg gave him. So I'm going to play the clip in which Justice Ginsburg raises the possibility of an employer who only hires women and then fires women once they become married because they are no longer sufficiently attractive or appealing to the male clientele. Let me give you a not hypothetical case. An airline hires only women as cabin attendants, but it fires them if they marry. The airline's defense is whatever we're doing, it's not sex discrimination against women because we don't hire any men at all, married or unmarried.

That case, I take it from your brief, you would say there's no violation of Title VII. Well, no, Your Honor, because I think the problem is that the prohibition on hiring any male flight attendants would in and of itself violate Title VII. But the male is not complaining. The complainant is the woman who was fired because she married. Okay, so then. The male complainant might have a very good case, but my case is the woman. And my problem with the hypothetical is that the way it's constructed, there is, you know, presumably no men that have the job in the first place. Now, if you say

that, in theory, men should be able to have the job, then the question would be, would you also have fired men who were married? And if you only fired women who were married but not men who were married, that would plainly be a violation of Title VII because you're treating similarly situated people differently. But to finish my answer to Justice — idea to put into practice by taking out the sex. May I just continue with it? The hypothetical is not hypothetical. It's Sproggis against United Airlines. And it was given and not challenged that they didn't hire men as cabin attendants.

Right. But they fired this woman because she married, because she didn't look like as cabin attendants. Right. But they fired this woman because she married, because she didn't look like Cheryl Flymey. Right. Once she married, she wouldn't be attracted to the male passengers. The Court of Appeals said Title VII was meant to strike out the entire spectrum of sex stereotyping. So if this woman was fired because she wasn't,

she would no longer be so attractive to men if she was married. That's sex discrimination. And we don't have to have a male involved. This is a woman who was treated in a very stereotypical way. She is no longer young and attractive when she marries. Your Honor, I do think that the question is always, are you treating similarly situated men and women differently? There are times where issues of proof are very difficult. For example, in the Price Waterhouse case, Ann Hopkins was fired because she was aggressive, because she was rude to staff. But this was an actual case.

This was an actual case, and it was given that no males are hiring and no male is complaining. But, Your Honor, the way that actual case was resolved was because the woman had not brought her claim in a timely fashion on the sex discrimination piece. And so the way this court resolved that decision was it said, all right, she's being treated the same. This case never came to this.

Oh, then I guess I'm thinking of the wrong case. Brogues against the United Airlines. The reason this hypothetical is interesting for the employer and federal government's theory is that the employer and federal government are arguing you can only determine whether there's sex stereotyping or sex discrimination if you find a quote similarly situated man or woman who is treated less favorably than the comparably situated man or woman. And in Justice Ginsburg's hypothetical, the employer has no similarly situated men because only women are flight attendants. As it happens, that's also true of one of the cases here. So in

Bostock, the employer only hired men as skydiving instructors. So when you have a workplace like that, Justice Ginsburg is raising the possibility that under the federal government's and employers theory, you're not going to be able to have any sex stereotyping theory of liability at all, because you're not going to have a comparator to compare the disadvantaged employee to. You know, I wasn't sure how to read exactly what the Solicitor General was saying here, but I think you're right, Leah, that he did seem to be trying to sort of assuage concerns that there was any kind of frontal challenge to the sex stereotyping line of cases. He said explicitly, I take no issue with Pricewaterhouse. Of course, that a little bit depends what you mean by Pricewaterhouse,

but most people take it. It clearly stands for this idea that certain kinds of sex stereotyping violate Title VII. And so at the very least, that concession seemed to me to suggest that they're not going to sort of put sex stereotyping in the crosshairs, as some folks read that brief as suggesting they might move to do. Yeah, it seemed like Francisco was basically saying sex stereotyping is relevant only insofar as it demonstrates that similarly situated men and women would be treated differently, not kind of per se that it is dispositive of discrimination based on sex. And I thought that's a difficult kind of line to draw, especially when you note the case that you talked about, Leah. I guess I wonder if the reason why there's this effort to step back from Price Waterhouse is that if you look just at the

sex stereotyping aspect, it is difficult to see how Harris, the transgender case, does not come out in the petitioner's favor. And I'll say I find the comparator argument more difficult. But on sex stereotyping, you know, if you have someone who is a man and he's seen as effeminate and he likes sewing at work or he likes knitting at work on his break and he is fired for doing that and that violates Title VII. Then how can you intellectually honestly argue that then if he identifies as a member of the female gender having characteristics that someone thinks shouldn't be associated with what they perceive the person's sex to be. And I don't know, that seems to me like such a strong argument. And I don't know how it's overcome unless you kind of ignore the sex

stereotyping aspect. There's a question that's left with me from all of this, and that's, you know, as a man of the trans experience whose legal and social identity is now no different than, say, a cisgender man, if someone finds out that I was a fab, which means a female assigned at birth, and chooses to discriminate me on that basis, you know, that's a question I'm not quite sure in terms of, you know, whether it's sex stereotyping or gender identity stereotyping. What does that mean? And so, you know, I there's not I'm not looking for an answer, but I'm saying, but that's where I'm left with the question from all of this. And I have no doubt that, you know, other members of the trans community are feeling the same way. All right. So that probably wraps up all of the time we have

for this particular episode. Anyone want to offer any other final predictions or thoughts? I have one or maybe two, but you all can go first. Oh, just that, you know, so if the kind of conservative block on the court is successful and, you know, there are five votes to turn away these discrimination claims, I think it'll surely be at least in part on the basis that this is an issue properly addressed in the legislative arena and that's the way the court should come out. But I will say the court has, you know, issued opinions that take an, I think, unduly narrow read of the scope of Title VII before. Like the court once found that pregnancy discrimination wasn't sex discrimination because it distinguished between pregnant persons and non-pregnant persons. And the latter category had women as well as men in it. And you know what? Congress fixed that, right? It did pass the Pregnancy Discrimination Act to clearly encompass pregnancy discrimination within the reach of Title VII. Now, I think that we have a pretty gridlocked and dysfunctional Congress. So I think it's hard to have as much hope as you maybe did in 1978 that the Congress is going to take what I think will be an incorrect decision by the court if in fact it comes out this way and correct it. But there is a history of this kind of dialogue between the court and Congress on Title VII in particular. So I would say that to the extent that there has been a lot of energy mobilized around this case, it would be important to sort of to keep it moving and just to sort of to direct it at the legislative arena. Again, not to offer that as a reason for the court to find in the employer's favor, but as something constructive to take away should the arguments fail before the court. No, instead, the court is going to offer

as a reason that Rick Perry made them say that discrimination on the basis of sexual orientation and gender identity isn't discrimination on the basis of sex. No, Leah. Oh, that's the new enforcing the voting rights act. I love it. They have to interpret Title VII to not encompass gender identity and sexual orientation because that's the only way they can effectively enforce the Voting Rights Act. For those of you who don't follow me on Twitter, I am obsessed with the Voting Rights Act and that justification. So, you know, the only other question we're really left with is what is going to happen to Justice Breyer as German police officer. So perhaps we'll play that clip and just leave you there. In my mind, there are three basic parts to this case on the other side. The language, you've dealt with that.

The parade of horribles, you've dealt with that. And the third one is the one that Alito is bringing up in one form. As it comes out of the briefs, as I read it in her opponent's brief, I would put it in these terms. Imagine a statute that says policemen, da, da, da, must pay damages. Passed a long time ago. That doesn't apply to German policemen. Doesn't apply to what? To German policemen. The meaning is the same. German policemen are policemen.

But the statute doesn't apply to them. How do we know? Well, we know through a lot of history, da, da, da. Okay? Now, that's the box in which I put the argument that Justice Alito made. It's a serious legal argument, and the argument is that at the time, Congress wouldn't have dreamt of this. And therefore, the words, though they apply, they meant to exclude the gays and transgender. Now, what I need to hear is a clear answer to that question. Thank you all for listening. Thank you to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. And if you'd like to support the show, please feel free to get your merchandise at our website, strictscrutinypodcast.com, or become a Glow subscriber at glow.fm forward slash strict scrutiny.

Thanks all.