Nicole Wittmer v. Phillips 66 Company

Case: 18-20251 Document: 00514825287 Page: 1 Date Filed: 02/06/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-20251 February 6, 2019

Lyle W. Cayce

NICOLE C. WITTMER, Clerk

Plaintiff - Appellant

v.

PHILLIPS 66 COMPANY,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.

JAMES C. HO, Circuit Judge:

Over the past two years, three circuits have construed Title VII of the

Civil Rights Act of 1964 to prohibit employers from discriminating on the basis

of either sexual orientation or transgender status. See Zarda v. Altitude

Express, Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc); EEOC v. R.G. & G.R.

Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Hively v. Ivy Tech

Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).

The district court here examined these recent out-of-circuit rulings,

found them “persuasive,” and thus “assume[d]” that Title VII prohibits

transgender discrimination, in a published opinion. Wittmer v. Phillips 66 Co.,

304 F. Supp. 3d 627, 634 (S.D. Tex. 2018). In doing so, the district court

expressly stated that “the Fifth Circuit has not yet addressed the issue.” Id.

Case: 18-20251 Document: 00514825287 Page: 2 Date Filed: 02/06/2019

No. 18-20251

But we have addressed the issue. In Blum v. Gulf Oil Corp., 597 F.2d

936 (5th Cir. 1979), we expressly held that Title VII does not prohibit

discrimination on the basis of sexual orientation. Yet the district court did not

mention, let alone distinguish, Blum. Most notably, it did not contend that

Title VII applies to transgender status but not sexual orientation. To the

contrary, the court concluded that the “same” analysis applies to transgender

status and sexual orientation alike. Wittmer, 304 F. Supp. 3d at 634.

Blum remains binding precedent in this circuit to this day. Our sister

circuits—including those favorably quoted in the district court’s published

opinion—recognize Blum as our precedent. See Zarda, 883 F.3d at 107–8

(recognizing historic “consensus among our sister circuits” foreclosing sexual

orientation claims under Title VII, including Blum); Hively, 853 F.3d at 341–

42 (“recognizing . . . Fifth Circuit’s precedent in Blum”); see also Evans v. Ga.

Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (Blum is “binding precedent”

that “forecloses” sexual orientation discrimination claims under Title VII).

Other district courts within the Fifth Circuit have likewise repeatedly

acknowledged that Blum is binding circuit precedent. See, e.g., O’Daniel v.

Indus. Serv. Solutions, 2018 WL 265585, *7 (M.D. La. Jan. 2, 2018) (“The Fifth

Circuit has specifically held that discharge based upon sexual orientation is

not prohibited by Title VII . . . . Blum is binding precedent”); Berghorn v. Texas

Workforce Comm’n, 2017 WL 5479592, *4 (N.D. Tex. Nov. 15, 2017) (“The

court . . . is bound by Fifth Circuit precedent, not Seventh Circuit precedent.”).

We nevertheless affirm the district court on other grounds. The district

court correctly granted summary judgment for the employer, because the

employee failed to present sufficient evidence to support a prima facie case of

discrimination, and because the employee failed to present a genuine issue of

material fact concerning pretext.

2

Case: 18-20251 Document: 00514825287 Page: 3 Date Filed: 02/06/2019

No. 18-20251

I.

Nicole Wittmer, a transgender woman, applied for an Instrument and

Reliability Engineer position with Phillips 66 in 2015. Phillips 66 conducted

four interviews, including an in-person interview on August 3.

During these interviews, Phillips 66 asked about Wittmer’s current

employment with Agrium. They discussed on-going projects at Agrium that

would require significant future travel to Canada as the reason Wittmer was

looking for a new job. On August 10, Phillips 66 offered Wittmer the job,

contingent on passing certain background checks.

On September 2, Ellen Fulton, Phillips 66’s Human Resources Manager,

informed Wittmer that the background check uncovered a discrepancy:

Agrium terminated Wittmer on July 28, with pay continuing through

August 2.

In response, Wittmer acknowledged the discrepancy, but did not think

“it was that big of a deal.” Wittmer sent Fulton the July 28 termination letter

from Agrium, clearly stating that their employment relationship ended on July

28.

Fulton and several other Phillips 66 executives conferred on

September 8. Everyone at the meeting agreed that the offer of employment

should be rescinded due to Wittmer’s misrepresentations.

On September 10, Wittmer sent an unsolicited email to Fulton and

another Phillips 66 employee, accusing them of transgender discrimination.

Fulton responded that Phillips 66 was unaware of Wittmer’s transgender

status prior to the email, and that in any event, the information would not

affect Phillips 66’s decision.

On September 14, Fulton formally rescinded the offer of employment.

Fulton explained that it was due to the discrepancies revealed during the

background check after the initial conditional offer.

3

Case: 18-20251 Document: 00514825287 Page: 4 Date Filed: 02/06/2019

No. 18-20251

A year later, in October 2016, Wittmer filed a charge of discrimination

with the EEOC against Phillips 66. Wittmer claimed that Phillips 66 rescinded

its offer because of transgender discrimination. The EEOC issued a right-to-

sue letter.

II.

Wittmer sued Phillips 66 under Title VII for discrimination on the basis

of transgender status. Without distinguishing or even mentioning Blum,

Wittmer claimed that Title VII prohibits transgender discrimination.

Phillips 66 took no position on whether Title VII prohibits transgender

discrimination. Instead, Phillips 66 moved for summary judgment on the

grounds that (1) Wittmer failed to state a prima face case of discrimination on

the basis of transgender status, and (2) Wittmer failed to present a genuine

issue of material fact that the non-discriminatory reason offered by Phillips 66

was pretextual.

The district court granted summary judgment to Phillips 66 on both

grounds. Wittmer appealed.

On appeal, Phillips 66 continues to take no position on whether Title VII

prohibits discrimination on the basis of transgender status. It instead seeks

affirmance on the specific evidentiary grounds on which it prevailed in the

district court.

This appeal nevertheless attracted substantial amicus attention on the

question of whether Title VII prohibits transgender discrimination. The EEOC

filed an amicus brief that took no position whether the judgment below should

be affirmed or reversed. The EEOC simply asked this court to hold that Title

VII does indeed prohibit discrimination on the basis of transgender status.

Similarly, various organizations, led by the National Center for Lesbian

Rights, filed an amicus brief that, like EEOC, concluded that Title VII

prohibits transgender discrimination, and took no position on the judgment.

4

Case: 18-20251 Document: 00514825287 Page: 5 Date Filed: 02/06/2019

No. 18-20251

The EEOC requested the opportunity to participate in oral argument.

We granted the request. In addition, we appointed Adam Mortara as amicus

curiae to brief and argue the contrary interpretation of Title VII—just as the

Second Circuit did in Zarda. The EEOC subsequently withdrew its request to

participate in oral argument, due to the government shutdown. So the

National Center amici asked us if they could take the EEOC’s place at the

podium. We granted that request as well. 1

III.

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(a).

Title VII prohibits employment discrimination against “any individual

. . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). To

establish a prima facie case of discrimination, the plaintiff must either present

direct evidence of discrimination or, in the absence of direct evidence, rely on

circumstantial evidence using the McDonnell Douglas burden-shifting

analysis. Under McDonnell Douglas, the plaintiff carries the burden to prove

that (1) he belongs to a protected class; (2) he applied for and was qualified for

the position; (3) he was rejected despite being qualified; and (4) others similarly

qualified but outside the protected class were treated more favorably.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Willis v.

Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006).

If a plaintiff establishes a prima facie case, the burden shifts to the

employer to show it had a legitimate, nondiscriminatory reason for rescinding

1We thank Mr. Mortara for his public service in accepting the court’s appointment.

We also thank the National Center amici for participating in oral argument under these

unusual circumstances. All of the amici provided the court with excellent legal analysis and

advocacy.

5

Case: 18-20251 Document: 00514825287 Page: 6 Date Filed: 02/06/2019

No. 18-20251

the offer. McDonnell Douglas, 411 U.S. at 802. If the employer can show a

legitimate, non-discriminatory reason for not hiring the plaintiff, the

presumption of discrimination disappears, and the burden shifts back to the

plaintiff to show either that the proffered reason was a pretext for

discrimination, or that the plaintiff’s protected status was another motivating

factor for the decision. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir.

2007). To overcome a legitimate, nondiscriminatory reason for termination,

the plaintiff must show something beyond disagreement with the employer’s

decision. Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)

(“Disparate treatment of similarly situated employees is one way to

demonstrate unlawful discrimination and retaliation.”).

Wittmer’s claim fails at both steps. To begin with, Wittmer failed to

establish a prima facie case of discrimination. Specifically, Wittmer did not

present evidence that any non-transgender applicants were treated better, as

required under the fourth prong of McDonnell Douglas. See Rogers v. Pearland

Indep. Sch. Dist., 827 F.3d 403, 408–09 (5th Cir. 2016) (upholding summary

judgment for failing the fourth prong of the prima facie case).

In addition, Phillips 66 identified a legitimate, non-discriminatory

reason for rescinding the offer—namely, Wittmer’s misrepresentations.

Wittmer’s own deposition testimony confirms the misrepresentations about

maintaining an on-going employment relationship with Agrium, and

voluntarily departing Agrium to avoid substantial travel to Canada. And

Phillips 66 offered evidence that it decided to rescind the offer due to the

discrepancies uncovered in the background check—and that it did so two days

before anyone at the company ever learned of Wittmer’s transgender status.

So Wittmer’s claim fails for two reasons, separate and apart from our

holding in Blum. First, Wittmer failed to satisfy the plaintiff’s burden to

present a prima facie case under the fourth prong of McDonnell Douglas. And

6

Case: 18-20251 Document: 00514825287 Page: 7 Date Filed: 02/06/2019

No. 18-20251

second, Wittmer did not present a genuine issue of material fact that the non-

discriminatory reason offered by Phillips 66 was pretextual. The district court

was therefore correct to enter summary judgment for Phillips 66.

The judgment is affirmed.

7

Case: 18-20251 Document: 00514825287 Page: 8 Date Filed: 02/06/2019

No. 18-20251

PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:

I concur fully in the dismissal of Wittmer’s Title VII claim on the grounds

stated in the majority opinion. Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir.

1979), was decided decades before Lawrence v. Texas, 539 U.S. 558 (2003),

invalidated laws criminalizing same-sex sexual conduct, and we have never

since relied on Blum for its holding that Title VII does not cover sexual

orientation discrimination. Neither party, in the district court or this court,

relied on or questioned Blum’s continued vitality—so, wisely I think, we do not

reach here to resolve Blum’s endurance or the question of whether Title VII

today proscribes discrimination against someone because of sexual orientation

or transgender status. We do not because we cannot, even with elegant asides.

8

Case: 18-20251 Document: 00514825287 Page: 9 Date Filed: 02/06/2019

No. 18-20251

JAMES C. HO, Circuit Judge, concurring:

For four decades, it has been the uniform law of the land, affirmed in

eleven circuits, that Title VII of the 1964 Civil Rights Act prohibits sex

discrimination—not sexual orientation or transgender discrimination.

But that uniformity no longer exists today. Three circuits to date have

construed Title VII to prohibit sexual orientation or transgender

discrimination. And now a district court in our circuit has issued a published

opinion declaring those rulings “persuasive”—and thus the “assume[d]” law of

our circuit—without mentioning our own circuit precedent to the contrary.

Wittmer v. Phillips 66 Co., 304 F. Supp. 3d 627, 634 (S.D. Tex. 2018).

The majority opinion makes plain what should go without saying—that

our precedent remains binding in this circuit. I write separately to explain

why our precedent is also correct as a matter of faithful legal interpretation.

Only the Supreme Court can resolve this circuit split, of course. But because

the EEOC has asked us to address this issue—and because the district court

puts the law of our circuit into question—further discussion is warranted.

I.

Since 1964, Title VII has prohibited employers from “discriminat[ing]”

against any individual with respect to employment “because of such

individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).

Whether this language applies to sexual orientation or transgender

discrimination is a question of statutory interpretation that has deeply divided

respected jurists in other circuits in recent years. Compare, e.g., Hively v. Ivy

Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc); id. at 352

(Posner, J., concurring); id. at 357 (Flaum, J., concurring); Zarda v. Altitude

Express, Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc); id. at 132 (Jacobs, J.,

concurring); id. at 135 (Cabranes, J., concurring); id. at 135 (Sack, J.,

concurring); id. at 136 (Lohier, J., concurring); with Hively, 853 F.3d at 359

9

Case: 18-20251 Document: 00514825287 Page: 10 Date Filed: 02/06/2019

No. 18-20251

(Sykes, J., dissenting); Zarda, 883 F.3d at 137 (Lynch, J., dissenting); id. at

167 (Livingston, J., dissenting); id. at 169 (Raggi, J., dissenting).

As a matter of ordinary usage, the term “sex,” of course, does not mean

“sexual orientation” or “transgender status.” “In common, ordinary usage in

1964—and now, for that matter—the word ‘sex’ means biologically male or

female . . . . To a fluent speaker of the English language—then and now—the

ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual

orientation.’ The two terms are never used interchangeably, and the latter is

not subsumed within the former; there is no overlap in meaning.” Hively, 853

F.3d at 362–63 (citations omitted) (Sykes, J., dissenting).

But what does it mean to “discriminate because of sex”? There are two

competing schools of thought. Under the longstanding view, universally

accepted by federal circuits for forty years, Title VII prohibits employers from

favoring men over women, or vice versa. By contrast, under the approach

recently adopted in three circuits, Title VII does more than prohibit favoritism

toward men or women—it requires employers to be entirely blind to a person’s

sex. See, e.g., Hively, 853 F.3d at 345 (“[H]olding all other things constant and

changing only her sex, [would] she [] have been treated the same way?”).

A brief example will illustrate the meaningful difference between these

two visions. Separate bathrooms for men and women are of course ubiquitous

in our society. They are prevalent not because they favor one sex over another,

but because they protect the privacy of both sexes. So separate bathrooms are

permitted under the anti-favoritism theory of Title VII. But they are unlawful

under the blindness approach to Title VII, because separate bathrooms are

obviously not blind to sex.

These competing visions of Title VII similarly diverge on the issue of

transgender and sexual orientation discrimination. Imagine that a company

discriminates against transgender women. Is that “discrimination because of

10

Case: 18-20251 Document: 00514825287 Page: 11 Date Filed: 02/06/2019

No. 18-20251

sex”? The anti-favoritism theory would say no, not if the company also

discriminates against transgender men. After all, that would not be favoring

men over women, or women over men—it would be favoring non-transgender

persons over transgender persons. So too as to sexual orientation: A company

that refuses to hire either gay men or lesbian women is not favoring men over

women, or vice versa—it is favoring straight men and women over gay men

and lesbian women. The blindness theory, by contrast, would hold that Title

VII prohibits both transgender and sexual orientation discrimination. Because

under that theory, it would not matter that the company isn’t favoring men

over women, or women over men. All that matters is that company policy

treats people differently based on their sex: Because only women, not men,

may identify as women—and only women, not men, may marry men—just as

only women, not men, may use women’s bathrooms.

Neither of these competing theories appears to be foreclosed under the

literal terms of Title VII. How, then, should a dutiful textualist proceed? When

statutory text permits two very different interpretations, how do you decide?

For a number of reasons, the traditional interpretation should prevail.

A.

Although judges in other circuits are divided over their interpretation of

Title VII, they are united as to the original public meaning of Title VII.

No one seriously contends that, at the time of enactment, the public

meaning and understanding of Title VII included sexual orientation or

transgender discrimination. To the contrary, there is a judicial consensus that

the public meaning of Title VII in 1964 did not include sexual orientation or

transgender discrimination. See, e.g., Hively, 853 F.3d at 345 (adopting

interpretation of Title VII that “the Congress that enacted the Civil Rights Act

in 1964 . . . may not have realized or understood”); id. at 355 (Posner, J.,

concurring) (“A broader understanding of the word ‘sex’ in Title VII than the

11

Case: 18-20251 Document: 00514825287 Page: 12 Date Filed: 02/06/2019

No. 18-20251

original understanding is thus required in order to be able to classify the

discrimination of which Hively complains as a form of sex discrimination.”); id.

at 362 (Sykes, J., dissenting) (“Is it even remotely plausible that in 1964, when

Title VII was adopted, a reasonable person competent in the English language

would have understood that a law banning employment discrimination

‘because of sex’ also banned discrimination because of sexual orientation? The

answer is no, of course not.”); Zarda, 883 F.3d at 137 (Lynch, J., dissenting)

(“Of course, today’s majority does not contend that Congress literally

prohibited sexual orientation discrimination in 1964. . . . [A]ny such contention

would be indefensible.”). 1

This consensus about the original understanding of Title VII is further

bolstered by four decades of case law. During that time, every federal circuit

to address the issue—including the First through Eleventh Circuits—rejected

attempts to construe Title VII to prohibit discrimination on the basis of either

sexual orientation or transgender status. See, e.g., Dillon v. Frank, 952 F.2d

403, *4 (6th Cir. 1992) (unpublished table) (“The circuits are unanimous in

holding that Title VII does not proscribe discrimination based on sexual

activities or orientation.”); Hively, 853 F.3d at 361 (Sykes, J., dissenting) (“This

interpretation has been stable for many decades and is broadly accepted; all

1 Original public meaning is not to be confused with the subjective intent of legislators.

Opponents of the traditional view of Title VII point out that members of Congress in 1964

would not have expected it to prohibit sexual harassment, including same-sex sexual

harassment—yet that is how courts have construed it today. See Oncale v. Sundowner

Offshore Services, Inc., 523 U.S. 75 (1998). But for originalists, the point is not whether

members of Congress subjectively intended that result—rather, the point is whether they

should have expected it, in light of the words of the statute as they were generally understood

at the time. In short, our lodestar is original public meaning, not original intent. It should

surprise no one that a statute drafted to eradicate sex discrimination in the workplace would

later be unanimously construed by the Supreme Court to reach workplace conduct that

pressures members of one sex out of the workplace, but not the other. See Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57 (1986). That of course says nothing about whether Title VII also

forbids sexual orientation and transgender discrimination.

12

Case: 18-20251 Document: 00514825287 Page: 13 Date Filed: 02/06/2019

No. 18-20251

circuits agree that sexual-orientation discrimination is a distinct form of

discrimination and is not synonymous with sex discrimination.”). 2

It was not until 40 years after Congress enacted Title VII that a federal

court of appeals first construed it to prohibit transgender discrimination

(Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004))—and 53 years after

enactment that a federal court of appeals first construed it to prohibit sexual

orientation discrimination (Hively, 853 F.3d 339).

If the first forty years of uniform circuit precedent nationwide somehow

got the original understanding of Title VII wrong, no one has explained how.

B.

The traditional understanding of Title VII is further bolstered by other

established principles of statutory interpretation.

2 See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999)

(‘‘[W]e regard it as settled law that . . . Title VII does not proscribe harassment simply

because of sexual orientation.’’); Simonton v. Runyon, 232 F.3d 33, 35 (2nd Cir. 2000) (‘‘The

law is well-settled in this circuit and in all others to have reached the question that . . . Title

VII does not prohibit harassment or discrimination because of sexual orientation.”); Bibby v.

Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3rd Cir. 2001) (“It is clear . . . that Title VII

does not prohibit discrimination based on sexual orientation.”); Wrightson v. Pizza Hut of

Am., 99 F.3d 138, 143 (4th Cir. 1996) (‘‘Title VII does not afford a cause of action for

discrimination based upon sexual orientation.’’), abrogated on other grounds by Oncale, 523

U.S. 75; Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for

homosexuality is not prohibited by Title VII.”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757,

762 (6th Cir. 2006) (‘‘[S]exual orientation is not a prohibited basis for discriminatory acts

under Title VII.’’); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984) (“While

we recognize distinctions among homosexuals, transvestites, and transsexuals, we believe

that the same reasons for holding that the first two groups do not enjoy Title VII coverage

apply with equal force to deny protection for transsexuals.”); Williamson v. A.G. Edwards &

Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (‘‘Title VII does not prohibit discrimination against

homosexuals.’’); Sommers v. Budget Mktg, Inc., 667 F.2d 748, 750 (8th Cir. 1982)

(“[D]iscrimination based on one’s transsexualism does not fall within the protective purview

of [Title VII].”); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329–30 (9th Cir. 1979) (“Title

VII’s prohibition of ‘sex’ discrimination applies only to discrimination on the basis of gender

and should not be judicially extended to include sexual preference such as homosexuality.”);

Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661 (9th Cir. 1977) (“Title VII does not

embrace transsexual discrimination.”); Medina v. Income Support Div., 413 F.3d 1131, 1135

(10th Cir. 2005) (‘‘Title VII’s protections . . . do not extend to harassment due to a person’s

sexuality.”); Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (following Blum).

13

Case: 18-20251 Document: 00514825287 Page: 14 Date Filed: 02/06/2019

No. 18-20251

As the Supreme Court has repeatedly observed, Congress “does not alter

the fundamental details of a regulatory scheme in vague or ancillary

provisions—it does not, one might say, hide elephants in mouseholes.”

Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001). See also, e.g.,

Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (same).

The Court typically invokes the “elephants” canon when it is asked to

construe an ambiguous statute to reach a matter of great policy consequence.

As the Court explained, Congress at times drafts statutes that are “susceptible

to more precise definition and open to varying constructions, and thus

ambiguous in the relevant sense.” Id. at 258. When faced with such ambiguous

provisions, “our inquiry into whether Congress has directly spoken to the

precise question at issue is shaped, at least in some measure, by the nature of

the question presented.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 159 (2000) (emphasis added). “Congress is more likely to have focused

upon, and answered, major questions, while leaving interstitial matters to

answer themselves in the course of the statute’s daily administration.” Id.

For example, in Gonzales v. Oregon, the Court rejected an interpretation

of the Controlled Substances Act that would have given the Attorney General

the power to regulate drugs used in physician-assisted suicide. The Court

noted that “[t]he importance of the issue of physician-assisted suicide, which

has been the subject of an ‘earnest and profound debate’ across the country,

makes the oblique form of the claimed delegation all the more suspect.” 546

U.S. at 267 (quoting Washington v. Glucksberg, 521 U.S. 702, 735 (1997)).

Similarly, in FDA v. Brown & Williamson, the Court rejected a reading

of the Food, Drug, and Cosmetic Act that would have given the FDA the power

to regulate tobacco. The Court said that “we are confident that Congress could

not have intended to delegate a decision of such economic and political

significance to an agency in so cryptic a fashion.” 529 U.S. at 160. See also

14

Case: 18-20251 Document: 00514825287 Page: 15 Date Filed: 02/06/2019

No. 18-20251

MCI v. AT&T, 512 U.S. 218, 231 (1994) (“It is highly unlikely that Congress

would leave the determination of whether an industry will be entirely, or even

substantially, rate-regulated to agency discretion—and even more unlikely

that it would achieve that through such a subtle device as permission to

‘modify’ rate-filing requirements.”); Brannan v. Stark, 342 U.S. 451, 463 (1952)

(“We do not think it likely that Congress, in fashioning this intricate . . .

machinery, would thus hang one of the main gears on the tail pipe.”).

The elephants canon easily applies here. No one could seriously dispute

the importance of the issues presented in this case, as reflected by the amicus

and en banc attention these issues have attracted in other circuits.

What’s more, this case is about more than sexual orientation or

transgender discrimination. If we accept the blindness theory of Title VII,

what else are employers prohibited from doing?

As I noted earlier, employers would also be forbidden from maintaining

separate bathrooms and changing rooms for men and women—even though the

purpose of separate bathrooms and changing rooms is not favoritism toward

either sex, but respect for the privacy of employees and customers of both sexes.

No one to my knowledge has suggested how the blindness theory of Title VII

could prohibit transgender and sexual orientation discrimination, while still

allowing employers to maintain separate bathrooms for men and women. That

is presumably because no such limiting principle exists.

In Zarda, for example, Judge Lynch stated that surely “Title VII . . . does

not prohibit an employer from having separate men’s and women’s toilet

facilities.” 883 F.3d at 150 (Lynch, J., dissenting). Indeed, it was precisely for

that reason that he rejected the blindness view of Title VII. See id. at 151 (“it

is not the case that any employment practice that can only be applied by

identifying an employee’s sex is prohibited,” including separate bathrooms).

15

Case: 18-20251 Document: 00514825287 Page: 16 Date Filed: 02/06/2019

No. 18-20251

Notably, the majority in Zarda responded to Judge Lynch by conceding

that, under their view of Title VII, “employer policies regarding sex-segregated

bathrooms” would indeed “discriminate[] because of sex.” Id. at 118. The

majority tried to avoid employer liability for separate bathrooms by suggesting

that bathroom assignments are not significant enough to constitute terms and

conditions of employment protected under Title VII. Id. at 118–19. But that

only begs the question: What if an employee is fired for using the wrong

bathroom or changing room? The majority does not say.

To their credit, the National Center amici conceded during oral

argument that, under their theory of Title VII, employers would indeed be

forbidden from maintaining separate bathrooms and changing rooms for men

and women. Oral Arg. 27:40–28:17.

So this case does not simply concern sexual orientation and transgender

discrimination. It affects every American who uses the restroom at any

restaurant, buys clothes at any department store, or exercises at any gym.

What’s more, because federal statutes governing educational institutions

employ language indistinguishable from Title VII, this debate also affects

virtually every school, college, dormitory, athletic activity, and locker room in

America. See, e.g., Title IX of the Education Amendments Act of 1972, 20

U.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal

financial assistance.”).

Under the elephants canon, significant policy issues must be decided by

the people, through their elected representatives in Congress, using clearly

understood text—not by judges, using “oblique,” “cryptic,” or “subtle” statutory

parsing. Gonzales, 546 U.S. at 267; Brown & Williamson, 529 U.S. at 160;

MCI, 512 U.S. at 231. That principle surely applies here, considering the

16

Case: 18-20251 Document: 00514825287 Page: 17 Date Filed: 02/06/2019

No. 18-20251

revolutionary social change that would be brought about under the blindness

approach to Title VII.

C.

The traditional interpretation of Title VII is also the only reading that

comports with common usage.

When construing statutes, courts presume that lawmakers use words in

light of their natural and ordinary meaning, rather than resort to more cryptic

formulations. See, e.g., Smith v. United States, 508 U.S. 223, 228 (1993)

(“When a word is not defined by statute, we normally construe it in accord with

its ordinary or natural meaning.”).

If Congress had meant to prohibit sexual orientation or transgender

discrimination, surely the most straightforward way to do so would have been

to say so—to add “sexual orientation” or “transgender status” or “gender

identity” to the list of classifications protected under Title VII. It would defy

common sense to imagine that lawmakers labored to assemble a majority

coalition to eradicate sexual orientation and transgender discrimination from

the workplace—only to select the most oblique formulation they could think of

(“because of sex”) and then hope for the best that courts would understand

what they meant.

By the same token, any legitimate theory of interpretation must account

for the possibility that lawmakers might ultimately decide to prohibit sex

discrimination, but not sexual orientation or transgender discrimination. And

the most obvious way to implement that policy judgment is to do exactly what

Congress did in 1964: prohibit discrimination on the basis of sex, without the

need for an exemption for, or any other reference to, sexual orientation or

transgender status.

This is not just common usage in 1964—it is common usage today.

Counsel for the National Center amici acknowledged as much during oral

17

Case: 18-20251 Document: 00514825287 Page: 18 Date Filed: 02/06/2019

No. 18-20251

argument. When asked about a hypothetical company that hires equally

between men and women, but refuses to hire any transgender men or women,

counsel agreed that, as a matter of common parlance, we would call that

company today transphobic, not sexist. Oral Arg. 25:10–25:35.

Similarly, both Congress and various state legislatures have expressly

prohibited sexual orientation and gender identity discrimination by using the

terms “sexual orientation” and “gender identity,” as Judge Sykes cataloged in

Hively. 853 F.3d at 363–64 (Sykes, J., dissenting). “This uniformity of usage

is powerful objective evidence that sexual-orientation discrimination is broadly

recognized as an independent category of discrimination and is not

synonymous with sex discrimination.” Id. at 364–65. 3

II.

Opponents of the traditional approach to Title VII nevertheless contend

that their position is compelled by the Supreme Court’s decision in Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989). See, e.g., Hively, 853 F.3d at 342.

Under this theory, sex stereotyping is per se unlawful under Price

Waterhouse, regardless of whether it is ultimately used to favor one sex over

another. Accordingly, transgender discrimination must now be treated as per

se unlawful under Title VII as well. After all, transgender discrimination

targets transgender men and women precisely because they do not conform

with sex stereotypes as to how they should identify themselves. And so too

with sexual orientation discrimination, which likewise targets gay men and

3 See, e.g., Violence Against Women Act, 34 U.S.C. § 2291(b)(13)(A) (prohibits federally

funded programs and activities from discriminating “on the basis of actual or perceived race,

color, religion, national origin, sex, gender identity, . . . sexual orientation, or disability”);

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249(a)(2)(A)

(imposes heightened punishment for causing or attempting to cause bodily injury “to any

person, because of the actual or perceived religion, national origin, gender, sexual orientation,

gender identity, or disability of any person”).

18

Case: 18-20251 Document: 00514825287 Page: 19 Date Filed: 02/06/2019

No. 18-20251

lesbian women because they do not conform with sex stereotypes. See, e.g., id.

(“[A]ll gay, lesbian and bisexual persons fail to comply with the sine qua non

of gender stereotypes—that all men should form intimate relationships only

with women, and all women should form intimate relationships only with

men.”).

But here’s the problem with this theory: Price Waterhouse doesn’t make

sex stereotyping per se unlawful under Title VII. To the contrary, under Price

Waterhouse, sex stereotyping is actionable only to the extent it provides

evidence of favoritism of one sex over the other.

The plurality opinion of Justice Brennan, for example, spoke of

prohibiting not all sex stereotypes per se, but only “disparate treatment of men

and women resulting from sex stereotypes.” Id. at 251 (emphasis added). See

also id. (“An employer who objects to aggressiveness in women but whose

positions require this trait places women in an intolerable and impermissible

catch 22: out of a job if they behave aggressively and out of a job if they do not.

Title VII lifts women out of this bind.”) (citations and quotations omitted).

Similarly, the concurring opinion of Justice O’Connor observed that sex

is a “human characteristic[] of which decisionmakers are aware and about

which they may comment in a perfectly neutral and nondiscriminatory

fashion.” Id. at 277 (emphasis added). “What is required is . . . direct evidence

that decisionmakers placed substantial negative reliance on an illegitimate

criterion in reaching their decision.” Id.

And Justice Kennedy noted on behalf of three dissenting justices that

“Title VII creates no independent cause of action for sex stereotyping.

Evidence of use by decisionmakers of sex stereotypes is, of course, quite

relevant to the question of discriminatory intent. The ultimate question,

however, is whether discrimination caused the plaintiff’s harm.” Id. at 294.

19

Case: 18-20251 Document: 00514825287 Page: 20 Date Filed: 02/06/2019

No. 18-20251

III.

Opponents of the traditional view of Title VII also claim their position is

compelled by an analogy to race, and specifically, to interracial marriage.

Put simply, their point is this: Title VII requires blindness to race—so

why doesn’t it also require blindness to sex? For example, courts have

construed Title VII to forbid employers from discriminating against employees

for being in an interracial marriage. See, e.g., Holcomb v. Iona College, 521

F.3d 130 (2nd Cir. 2008); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d

888 (11th Cir. 1986). Why, then, doesn’t Title VII also require employers to be

blind to sex as well—which would prohibit discrimination on the basis of same-

sex marriage, sexual orientation, and transgender status? See, e.g., Hively,

853 F.3d at 342 (alleging “sharp tension” between lack of Title VII protection

for sexual orientation and legal protection for interracial marriage).

But the analogy fails for one simple reason: The Supreme Court has

analyzed interracial marriage differently from same sex marriage.

The Court has condemned laws against interracial marriage, not only

because of our constitutional commitment to color blindness, but because

prohibitions on interracial marriage are racist, pure and simple. As the Court

put it, “[t]here is patently no legitimate overriding purpose independent of

invidious racial discrimination which justifies this classification.” Loving v.

Virginia, 388 U.S. 1, 11 (1967) (emphasis added). See also Hively, 853 F.3d at

348 (“[M]iscegenation laws . . . are (and always were) inherently racist.”); id.

at 368 (Sykes, J., dissenting) (“[M]iscegenation laws are inherently racist.”).

By contrast, the Court did not establish a right to same-sex marriage

based on sex discrimination at all, let alone based on blindness to sex. To be

sure, the plaintiffs in Obergefell made the argument—indeed, they devoted an

entire subsection of their brief to the argument that traditional marriage laws

are not blind to sex. Brief for Petitioners, Obergefell v. Hodges, 135 S. Ct. 2584

20

Case: 18-20251 Document: 00514825287 Page: 21 Date Filed: 02/06/2019

No. 18-20251

(2015), available at 2015 WL 860738, *48. Yet not a single justice endorsed

that theory. Instead, the Supreme Court held that traditional marriage laws

discriminate on the basis of sexual orientation, not sex. As Judge Sykes put it

in Hively, “far from collapsing the well-understood distinction between sex

discrimination and sexual-orientation discrimination, the Court actually

preserved it.” 853 F.3d at 372 (Sykes, J., dissenting).

IV.

It took an act of Congress to prohibit race and sex discrimination in

private employment nationwide—a landmark achievement in our nation’s

history. So too it will take an act of Congress if the people wish to prohibit

transgender and sexual orientation discrimination across the country as well.

See, e.g., Zarda, 883 F.3d at 166 (Lynch, J., dissenting) (“[I]t is the prerogative

of Congress or a state legislature to decide whether private employers may

[discriminate].”).

Running the gauntlet of Article I, Section 7 of the Constitution is arduous

work, to be sure. But it is necessary for the people to ensure that the

protections sought in this case are not just legitimate, but lasting.

Moreover, it is worth remembering what Congress has already achieved

by enacting the 1964 Civil Rights Act. As the court-appointed amici reminds

us: Title VII protects every American, regardless of sexual orientation or

transgender status. It simply requires proof of sex discrimination, as distinct

from sexual orientation or transgender discrimination. If you can demonstrate

that your employer will hire transgender men but not transgender women, or

gay men but not lesbian women, or vice versa, you may well have a claim of

sex discrimination.

In sum, Title VII prohibits sex discrimination, full stop. And it applies

the same rules to everyone, without regard to sexual orientation or

transgender status. For example, in O’Daniel v. Industrial Service Solutions,

21

Case: 18-20251 Document: 00514825287 Page: 22 Date Filed: 02/06/2019

No. 18-20251

2018 WL 265585, *7 (M.D. La. Jan. 2, 2018) (appeal pending), the district court

held that a straight employee has no Title VII claim for sexual orientation

discrimination by a lesbian supervisor. See also Medina, 413 F.3d at 1133–35

(same). The same rules apply to Bonnie O’Daniel as to Nicole Wittmer.

***

Under our Constitution, contentious policy disputes are resolved by the

people, through their elected representatives in Congress. And when a

particular policy position garners enough support to leap the hurdles of Article

I, Section 7, it becomes the law of the land.

For our system to work, however, we must share a common language.

When the American people come to a consensus, there must be a way to reduce

the agreement to words that we can all understand and accept—both today

and in the years to come. We must have confidence that our words will be

faithfully construed in the future, consistent with our common understanding.

That confidence is lost if the people undertake to debate difficult issues,

accept the daunting task of forging compromise, and then reduce that

compromise to legislation—only to have courts surprise the people with rulings

that bear no resemblance to our common language. I agree with Judge Lynch

that “we need to respect the choices made by Congress about which social

problems to address, and how to address them.” Zarda, 883 F.3d at 166

(Lynch, J., dissenting). We should not “impos[e] on a half-century-old statute

a meaning of ‘sex discrimination’ that the Congress that enacted it would not

have accepted.” Hively, 853 F.3d at 357 (Posner, J., concurring).

I join in the decision to affirm the district court. But I do so with concern

that the people are losing faith in their institutions—and that our courts are

giving the people reason to do so.

22