Second Round of Briefing in LGBT Title VII Cases Before the Supreme Court Completed During August
By Arthur S. Leonard. This article appears in the September issue of the LGBT Bar Association of New York’s Law Notes.
On October 8, the second day of hearings in the Supreme Court’s October 2019 Term, the Court will hear arguments in Bostock v. Clayton County, Georgia, Case No. 17–1618, and Altitude Express, Inc. v. Zarda, Case No. 17–1623, appeals from the 11th and 2nd Circuits on the question whether sexual orientation discrimination claims are actionable as sex discrimination under Title VII of the Civil Rights Act of 1964, and in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and Aimee Stephens, Case No. 18–107, an appeal from the 6th Circuit on the question whether gender identity discrimination claims are actionable as sex discrimination under Title VII. The Court consolidated the two sexual orientation discrimination cases, in which the plaintiff-employee is appealing in Bostock and the defendant-employer is appealing in Altitude Express, for a single argument of one hour in the morning. The argument in Harris Funeral Homes, in which the employer is appealing, will be held for one hour in the afternoon. Transcripts of the arguments will be posted on the Supreme Court’s website shortly after each argument has concluded (usually within an hour or two), and links to audio recordings of the arguments will be made available on the Court’s website later in the week.
Harris Funeral Homes presents an unusual situation; the victorious party in the 6th Circuit Court of Appeals, the Equal Employment Opportunity Commission (EEOC), is represented in the Supreme Court by the Solicitor General, who, reflecting the change of administration since the original complaint in this case was filed by the EEOC, is now joining with the employer to ask the Court to reverse the 6th Circuit. The only party defending the 6th Circuit’s decision is the charging party in the EEOC proceeding, transgender funeral director Aimee Stephens, who intervened as a co-appellant in the 6th Circuit, is named as a Respondent in Harris Funeral Homes’ cert. petition, and is represented by the American Civil Liberties Union. Harris Funeral Homes is represented by Alliance Defending Freedom (ADF), the conservative religious litigation group that is a frequent litigant opposing LGBT rights in the courts.
For purposes of briefing, the Court decided to treat all the employee-plaintiffs in the three cases as if they were Petitioners (although only Bostock is a Petitioner in the Supreme Court), and the three employer-defendants as if they were Respondents (even though two of them are actually Petitioners). Thus, the first round of briefing, which was concluded early in July, consisted of the main briefs for Gerald Bostock, the Estate of Donald Zarda, and Aimee Stephens, and the amicus briefs (more than 40) filed in support of their claims that Title VII does extend to sexual orientation and gender identity discrimination claims. The second round of briefing, which concluded during August, consisted of the briefs for the three employers — Clayton County, Georgia; Altitude Express; and Harris Funeral Homes; and the EEOC, which is technically a respondent even though the government, as such, is now siding with the Petitioner.
Interestingly, despite earnest efforts by the Solicitor General’s Office, the EEOC’s General Counsel, who would ordinarily be a signatory on the brief purporting to represent their agency, did not join in the submission of the government’s brief, since as of the date of filing the EEOC had not disavowed its position that gender identity discrimination claims are covered by Title VII. Indeed, the amicus brief filed by the Solicitor General in the sexual orientation cases on behalf of the employer also lacked the EEOC’s signature, since the agency that enforces Title VII (and whose interpretation of the statute is entitled to judicial deference, under existing precedents), has not disavowed its position (argued as an agency amicus in the 2nd Circuit) that Title VII covers sexual orientation claims. Quite a tangle for the Supreme Court to confront. During oral argument of Zarda v. Altitude Express in the 2nd Circuit, the en banc bench reflected some puzzlement and bemusement about being confronted with a lawyer from the S.G.’s office and a lawyer from the EEOC arguing against each other.
Simultaneously with the filing of the government’s brief, the Solicitor General filed a request that argument time be divided evenly (15 minutes each) between the Solicitor General’s office and ADF, counsel for Harris Funeral Homes.
Law Notes gave an overview of the first round of filings in our August 2019 issue. Herewith is a brief summary of the second round of filings.
Altitude Express’s brief was signed by Saul D. Zabell, Counsel of Record who has represented the company throughout this litigation, and Ryan T. Biesenbach of Zabell & Collotta, P.C., a Bohemia, N.Y., law firm. It predictably argues that the meaning of Title VII must be its “original public meaning” — the meaning that members of the public would attribute to the statutory language when it was enacted by Congress in 1964. The brief claims that the Supreme Court has never interpreted Title VII in a manner that “conflicts” with “the original public meaning of ‘sex’.” It also describes as “wrong” the various legal theories offered by Bostock for construing “sex” to include “gender identity.” It argues that subsequent legislative developments — the repeated introduction of bills to amend federal anti-discrimination law to add “sexual orientation” that have never achieved enactment, as well as the enactment of some other statutes that use ‘sexual orientation’ such as the Hate Crimes Law — show Congress’s understanding that the term must be used to address such discrimination, noting also that after the EEOC and several lower federal courts had rejected sexual orientation discrimination claims in the early period of Title VII’s history, Congress passed a package of amendments to Title VII in 1991 but did not overrule any of those rulings legislatively. The brief also rejects certain other arguments that some lower court judges had accepted as reasons for extending Title VII to cover sexual orientation claims. None of these arguments was new or unanticipated, and they were all rejected in one way or another not only in the 2nd Circuit (en banc) but also in the 7th Circuit (en banc) in 2017 in Hively v. Ivy Tech Community College, a case where the employer decided not to seek Supreme Court review.
Clayton County’s brief (Bostock), signed by Counsel of Record Jack R. Hancock and other attorneys from the Forest Park, Georgia, law firm of Freeman Mathis & Gary LLP, carries the same argument headings as Altitude Express’s brief. Indeed, they appear to be a joint product, making identical arguments.
The main brief that drew most of the press commentary when it was filed, of course, was the Solicitor General’s brief, on which S.G. Noel J. Francisco is Counsel of Record. The other signatories are attorneys in the Solicitor General’s office and main Justice Department. As noted above, and deemed newsworthy, no attorneys from the EEOC signed this brief which is presented as the brief of the Federal Respondent (which, technically, is the EEOC). The brief urges the Court to adopt a narrow interpretation of key Title VII Supreme Court precedents on which the EEOC had relied in the 6th Circuit, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, contending that the 6th Circuit had extended them beyond their holdings to reach the conclusion that allowing gender identity discrimination claims is consistent with Supreme Court precedent. Most of the arguments in the brief are variants of one or more of the arguments in the Altitude Express and Clayton County briefs, effectively countering the EEOC’s justifications for applying Title VII to gender identity claims in Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (2012). Even though the EEOC has not overruled Macy, it is anticipated that it may do so in due course as the new majority resulting from Trump’s appointments to the Commission either rules on a federal sector gender identity discrimination case, proposes a new regulatory interpretation, or takes a position in litigation in the lower federal courts embracing a change of position. The Commission could just instruct its regional offices to dismiss gender identity claims on jurisdictional grounds, similar to the action of the U.S. Department of Education which now refuses to process gender identity discrimination claims under Title IX of the Education Amendments of 1972.
The brief on behalf of Harris Funeral Homes, submitted by Alliance Defending Freedom, attracted comparatively little attention, with the Solicitor General being the “elephant in the room.” Mainstream press coverage clearly sees Harris as part of the Trump Administration’s overall opposition to transgender rights as part of its systemic attempt to reverse the civil rights positions taken by the Obama Administration. Clearly, the president feels that he was elected to overturn everything that the Obama Administration did, if possible. This was certainly reflected in his transgender military service ban and former Attorney General Jeff Sessions’ October 2017 memorandum disavowing the Obama Administration’s positions on both sexual orientation and gender identity discrimination.
Beginning on August 16 and extending through August 23, the Supreme Court clerk added to the docket forty amicus briefs supporting Harris Funeral Homes’ (and the Solicitor General’s) position that Title VII does not extend to gender identity discrimination claims. Some were from the “usual suspects” familiar to anybody who had scanned the amicus lists in Obergefell and Windsor, the cases concerning marriage equality. They include states whose anti-discrimination laws do not cover gender identity, Republican members of Congress, companies that don’t want to be forced to employ transgender people, individual legal scholars, polemicists, think tanks and policy institutes, and, of course, religious entities that argue that requiring employers to accommodate transgender people excessively burdens their religious freedom. (In Harris, the owner of the funeral homes stated his religious beliefs as a justification for his refusal to continue employing the plaintiff after she wrote to him about her gender transition. As a result of this, the district court ruled in favor of Harris Funeral Homes in reliance on the Religious Freedom Restoration Act, employing an interpretation subsequently rejected by the 6th Circuit. Surprisingly, in light of its religious freedom orientation, ADF did not include in its cert petition a question about the application of the RFRA to this case, so technically the religious arguments made by many of the amici are not pertinent to the questions on which cert was granted.
Particular press attention was drawn to briefs of some feminist groups who are particularly perturbed about any legal recognition of transgender women, making arguments that fall far outside the mainstream of the professional medical and mental health communities about the nature of human sexuality, contending that transgender women are men in drag who should not be given admission to women-only spaces and should not be accorded the treatment under anti-discrimination law that has been accorded to women. Vox.com devoted a lengthy article to explaining the opposition of some feminist groups to transgender rights. See Katelyn Burns, The Rise of Anti-Trans ‘Radical’ Feminists, Explained” (posted September 5, 2019).
Also during August, 24 amicus briefs (including one from the Solicitor General, as the federal government is not a party in the sexual orientation cases) were filed in support of the employers in the sexual orientation discrimination cases, Bostock and Altitude Express. Of course, the EEOC’s legal staff is not represented among the signers of the Solicitor General’s amicus brief, again a newsworthy absence denoting that at least as of the time when briefs were due, the agency had not abandoned its position in Baldwin v. Foxx, EEOC No. 0120133080, 2015 WL 4397641 (2015), that Title VII covers sexual orientation discrimination claims. Many of these amicus briefs were noted as addressing all three pending Title VII cases and thus were also filed and counted among the Harris Funeral Home amicus briefs. When it announced the filing schedule, the Court also directed that amicus briefs for the Altitude Express case were to be filed on the Bostock docket. The same mix of amici that one finds on the Harris Funeral Homes docket generally show up on the Bostock list, minus those groups who have a specific focus on opposing transgender rights. The arguments in the amicus briefs are similar as well, although, of course, the argument that gender is identified at birth is permanent and not changeable is absent here, while it predominates in many of the amicus briefs filed in Harris Funeral Homes.
Several of these amicus briefs emanate from groups that may have been formed for the specific purpose of filing amicus briefs in these cases. All of the docketed amicus briefs can be examined on the Supreme Court’s website, where they are available to be downloaded in pdf format.
The deadline for the third round of briefing set by the Court is September 16, when Reply Briefs can be filed, responding to the briefs that were filed in August. Reply briefs, if any, will be reported in the October issue of Law Notes.