At oral argument, Stanford lawprof Pamela Karlan stood on behalf of the two gay men who sought the protections of Title VII against sex discrimination. One was Zarda. The other Bostock. Going into this argument, the question was whether the word “sex” (which all concede was never intended to mean “sexual orientation” at the time enacted, and all similarly concede has been subject to continuous efforts to expand the law to include sexual orientation, but has been refused by Congress) should be expanded to mean sexual orientation. That was a dubious policy stretch.
What’s Karlan to do?
But if you’re a real textualist, all of that is beside the point. As Pamela Karlan, the lawyer for the two gay men at the center of the first half of Tuesday’s session, put it in her straightforward first few minutes at the podium, Title VII as it exists today resolves the case:
When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(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 703(a), because the adverse employment action is based on the male employee’s 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.
As strong as the hope for change might be, that the Supreme Court would redefine the word “sex” to mean something Congress never meant it to mean, and didn’t mean at the time the word was put into the law books, because the meaning of “sex” has morphed into gender, which morphed into an expansive view of who should be protected from discrimination, Karlan was quietly brilliant in her argument.
The argument made was not that the word “sex” meant sexual orientation, but a recognition of Justice Scalia’s admonition in Oncale v. Sundowner.
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.
Karlan’s argument did not rely on the parade of horribles for gays, whether as employees or in society at large, but in the old school approach to sex discrimination, sticking with the word as written, even as intended, and applying it to a straightforward fact pattern. If it’s fine for a woman to do something, then it can’t be disadvantageous for a man to do the same thing.
That Congress has failed miserably in addressing the fact that society has finally begun to move beyond giving a damn about whom adults find sexually attractive, and the widespread acceptance of gay marriage after Obergefell — another example of SCOTUS doing the dirty work for Congress — makes that plain, puts the onus on lawfare and the courts to fix a gaping hole in discrimination law.
But Pam Karlan? She was brilliant, not merely in framing her argument beyond the limits of gay rights, as the same contention applies to any disadvantage imposed whether it’s because someone is gay or vegan or enjoys sheep in sheer stockings.
The Supreme Court may yet decide the question of whether “sex” under Title VII includes sexual orientation, and with it the panoply of collateral issues dependent upon the definition of sex that permeates the Civil Rights Act of 1964 and the ancillary laws, such as the Pregnancy Discrimination Act, the followed.
But even if the Court goes nowhere near the morass of problems that remain from Congress’ neglect, Pam Karlan made the argument that surpasses sexual orientation and provides the Court with a means to achieve the outcome her clients seek regardless. This may have been a case for a cause, but Karlan mounted an argument for her clients. And it shouldn’t matter whether her clients were gay; they were still discriminated against because of their sex. That’s the point.