Bostock v. Clayton County (17-1618)

argument 17-1618

Bostock v. Clayton County

Supreme Court of the United States 1h 1m 9 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the core argument that firing a gay man but not a lesbian violates Title VII?

John G. Roberts 0:00

We'll hear argument first this morning in case seventeen, sixteen, eighteen, Boston versus Clayton County and the consolidated case. Ms. Carlin.

Pamela S. Karlan 0:09

Thank you, Mr Chief Justice, and may it please the court. When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title seven. The employer has, in the words of Section seven hundred three A, discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section seven oh three A, because the adverse employment action is based on the male employees' failure to conform to a particular expectation about how men should behave, namely that men should be attracted only to women and not to men. There is no analytic difference between this kind of discrimination and forms of discrimination that have been already recognized by every court to have addressed them.

Pamela S. Karlan 0:55

For example, discrimination against men who are effeminate rather than macho. Like the discrimination here, that discrimination is because of nonconformity with an expectation about how men should behave. The attempt to carve out discrimination against men for being gay from Title VII cannot be administered with either consistency or integrity. In the words of the En Banc Second Circuit, it forces judges to resul resort to lexical bean counting, where they count up the frequency of epithets such as fag, gay, queer, real man and femme, to determine whether or not discrimination is based on sex or sexual orientation. That attempt is futile because when a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave.

Pamela S. Karlan 1:43

Finally, the possibility that some employers, but not the employers here, may have policies of denying employment opportunities both to gay men and to lesbians does not change the unlawfulness of what was alleged by the employees here. Labeling those policies under an umbrella uh uh phrase like sexual orientation discrimination cannot hide the fact that such a d employer is a double discriminator. It discriminates against men who do not conform to a male uh stereotype, and it discriminates against women who do not conform to an expectation about female stereotype.

Ruth Bader Ginsburg 2:22

the argument that back in nineteen sixty four this could not have been in Congress's mind because in many states male same sex relations was a criminal offence. The American Psychiatric Association labeled homosexuality a mental illness.

Pamela S. Karlan 2:48

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 madmen. 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 Seven. If you had asked members of Congress then what they had thought, they would not have been thinking about women like Ann Hopkins. How do you

John G. Roberts 3:26

do you agree or disagree with Judge Posner statement that the statute should be read to encompass sexual orientation discrimination to quote, avoid placing the entire burden of updating old statutes on the legislative branch.

Pamela S. Karlan 3:41

I disagree with Judge Poser. I don't think you need to do any updating here. 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 employee who married Bill a couple of days off so she she can celebrate the joyous event, that's discrimination because of sex.