Table of Authorities.................................................................... ii

STATEMENT OF INTEREST................................................................. 1

STATEMENT OF THE ISSUE................................................................ 2

STATEMENT OF THE CASE................................................................. 2

A. Statement of Facts......................................................................... 2

B. District Court’s Decision............................................................... 4

SUMMARY OF ARGUMENT................................................................ 6

ARGUMENT............................................................................................ 7

I. Transgender discrimination is cognizable as sex discrimination under Title VII..................................................... 7

A. The Supreme Court has instructed that “gender must be irrelevant to employment decisions.”................................... 9

B. Transgender discrimination violates Title VII’s prohibition on sex stereotyping................................................................. 13

II. The Supreme Court directs that statutes must be interpreted as written, without judicial carve-outs, even when the language goes beyond the principal evil Congress sought to address....................................................................................... 18

CONCLUSION...................................................................................... 23

CERTIFICATE OF SERVICE................................................................ 25

CERTIFICATE OF COMPLIANCE...................................................... 26

Table of Authorities

Cases

Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)........ 15

Brandon v. Sage Corp., 808 F.3d 266 (5th Cir. 2015)......... 15

Connecticut v. Teal, 457 U.S. 440 (1982)............................ 11

EEOC v. Boh Bros. Constr. Co.,
731 F.3d 444 (5th Cir. 2013) (en banc)............... 4, 15, 16

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.,
884 F.3d 560 (6th Cir. 2018)................................... passim

EEOC v. Rent-A-Center E., Inc.,
264 F. Supp. 3d 952 (C.D. Ill. 2017)............................. 17

Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007)............................................................................... 17

Fabian v. Hosp. of Cent. Conn.,
172 F. Supp. 3d 509 (D. Conn. 2016)...................... 12, 17

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).... 8, 16, 18

Grimm v. Gloucester Cty. Sch. Bd.,
302 F. Supp. 3d 730 (E.D. Va. 2018)............................. 17

Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017).............................................................................. 19

Hively v. Ivy Tech Cmty. Coll.,
853 F.3d 339 (7th Cir. 2017) (en banc)............... 5, 10, 22

Hui v. Castaneda, 559 U.S. 799 (2010)................................ 19

L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978)........................................................................ 10, 19

Lewis v. Heartland Inns of Am., L.L.C.,
591 F.3d 1033 (8th Cir. 2010).................................. 11, 12

Lopez v. River Oaks Imaging & Diagnostic Grp., Inc.,
542 F. Supp. 2d 653 (S.D. Tex. 2008)............................ 18

Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012)................................. 8, 13

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986).......... 19, 20

Newport News Shipbldg. & Dry Dock Co. v. EEOC,
462 U.S. 669 (1983)........................................................ 10

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)........................................................................ 20, 21

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990).............................................................................. 22

Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)...... 11

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)....... passim

Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)................................................................................. passim

Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)............ 8

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).... 16, 18

United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989)........................................................................................ 19

Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,
858 F.3d 1034 (7th Cir. 2017).................................... 8, 16

Zarda v. Altitude Exp., Inc., 883 F.3d 100 (2d Cir. 2018) (en banc)........................................................................... 5, 15

Statutes & Legislative Materials

Violence Against Women Act, 34 U.S.C. § 12291(a)(39) (2017).............................................................................. 22

Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq......................................... passim

42 U.S.C. § 2000e-2(a)-(c)................................................ 7

Civil Rights Uniformity Act of 2017, H.R. 2796, 115th Cong. § 3 (2017)............................................................. 22

Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007)........................................................ 21

Other Authorities

Fed. R. App. P. 29(a)............................................................ 1

Fed. R. App. P. 29(d)......................................................... 26

Fed. R. App. P. 32(a)(5)..................................................... 26

Fed. R. App. P. 32(f).......................................................... 26

Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Cal. L. Rev. 561, 563 (Apr. 2007)............................................................................... 16

Am. Psychological Ass’n, Answers to Your Questions About Transgender People, Gender Identity, & Gender Expression, http://www.apa.org/topics/lgbt/transgender.aspx (last visited Aug. 6, 2018)..................................................... 15

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with interpreting, administering, and enforcing T itle VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal addresses whether claims of transgender discrimination are cognizable under Title VII as claims of sex discrimination. The EEOC’s interest in this issue is substantial. Between January 1, 2013, when the EEOC began tracking the data, and September 30, 2017, it has received 1,206 charges of gender identity/transgender discrimination against private sector employers, labor organizations, employment agencies, and state or local government employers. The number of charges has increased every year.

The EEOC devotes significant resources to these charges by investigating, making reasonable cause determinations, conciliating with respondents, and sometimes seeking relief in court. This Court’s determination of the issue, therefore, will significantly affect the EEOC’s enforcement efforts. Accordingly, the EEOC files this brief. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Is transgender discrimination a form of sex discrimination prohibited by Title VII because it involves impermissible consideration of sex and because it invokes sex stereotypes about how a woman or a man should behave?

STATEMENT OF THE CASE

A. Statement of Facts

Nicole Wittmer applied for an engineering position at one of Phillips 66’s refineries on May 31, 2015. ROA.181, 240. During several interviews on August 3, she talked about her experiences as a current employee of Agrium, Inc. ROA.181, 242-44, 270. Phillips 66 offered her the position, contingent in part on a successful background check. ROA.197-99.

The subsequent background check indicated that at the time of her August 3 interview, Wittmer was no longer employed with Agrium. ROA.181-82, 246-47, 363. When Phillips 66 asked Wittmer about the discrepancy, she explained that she had been terminated without cause effective July 28, but had been paid through August 2. ROA.227-29. She later sent unsolicited emails complaining about the environment for female engineers at Agrium. ROA.206-07.

Phillips 66’s management decided to rescind Wittmer’s job offer. ROA.182, 275, 284. Before Phillips 66 communicated this decision, however, Wittmer sent the company another email, stating, “I became aware that you all found out that I am a transsexual woman. No one ever comes out and says that is why we do not want you. But to make up a false reason to is not Christian. Not only does you[r] diversity policy disallow discrimination, there are also several federal laws that prohibit[] discriminating against me also.” ROA.210.

The human resources manager replied that Phillips 66 had not been aware of Wittmer’s transgender status. She assured Wittmer that this knowledge would not influence the hiring decision, but noted her “concern regarding discrepancies in information [Wittmer] provided over the course of the hiring and pre-employment due diligence processes.” ROA.218.

Wittmer sent another series of unsolicited emails to various Phillips 66 personnel. One of these emails accused Phillips 66 of “wrongly trying to rescind [her] employment offer because [she is] a transsexual woman.” ROA.221.

The human resources manager called Wittmer to rescind the job offer. She explained in a follow-up email, “We have decided to rescind your offer because you were not forthright during the interview about your employment and led us to believe information that was not the case.” ROA.235.

Wittmer sued for sex discrimination under Title VII. She alleged that Phillips 66 rescinded the offer “because of her sex (female) by not conforming to sex stereotypes.” ROA.11.

B. District Court’s Decision

The district court granted Phillips 66’s motion for summary judgment. The court noted that Title VII prohibits discrimination based on sex stereotyping. ROA.564 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989); EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 454 (5th Cir. 2013) (en banc)). It then observed that several circuits have recently interpreted this prohibition to cover “discrimination based on transgender status and sexual orientation.” ROA.564-65 (citing EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Zarda v. Altitude Exp., Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc)). Those decisions, the court said, reason that both sexual orientation discrimination and transgender discrimination are “‘rooted in gender stereotypes and [are] thus a subset of sex discrimination.’” ROA.565 (quoting Zarda, 883 F.3d at 122). Finding this reasoning persuasive, the court proceeded to assume that Title VII prohibits discrimination against an individual because she is transgender. ROA.566.

Nevertheless, the court found that Wittmer failed to make out a prima facie case of discrimination. ROA.566. In the alternative, the court said, the record does not support an inference either that Phillips 66’s stated reasons for rescinding the job offer were pretextual or that transgender discrimination was a motivating factor for the decision. ROA.566.

SUMMARY OF ARGUMENT

Title VII’s prohibition on sex discrimination covers discrimination against an individual because he or she is transgender. To conclude that someone is transgender, an employer must take his or her sex into account. By doing so, the employer violates Title VII’s rule that sex must be “irrelevant” to employment decisions. Analogously, in the context of religious discrimination, no court has ever suggested that discrimination against religious converts does not constitute discrimination “because of . . . religion.” There is no principled basis to distinguish Title VII’s treatment of individuals who change their religion from its treatment of individuals who change the sex with which they identify.

Transgender discrimination also violates Title VII because the statute bars discrimination based on the failure to conform to gender stereotypes. Changing one’s sex is the ultimate failure to conform to gender stereotypes. Title VII provides no basis for carving out this one form of gender nonconformity from the generally applicable rule.

This Court must interpret Title VII to mean what it says. Neither the enacting Congress’s presumed intentions nor subsequent legislative history can override the statutory text. The Supreme Court has repeatedly interpreted Title VII to go beyond coverage that Congress likely anticipated, holding that sex discrimination includes opposite-sex harassment, same-sex harassment, and discrimination based on failure to conform to sex stereotypes. Interpreting sex discrimination to incorporate transgender discrimination follows this well-worn path.

ARGUMENT

I. Transgender discrimination is cognizable as sex discrimination under T itle VII.

Title VII prohibits employment discrimination “because of … sex.” 42 U.S.C. § 2000e-2(a)-(c). There is no statutory provision exempting transgender individuals from this prohibition on sex discrimination. And the Supreme Court has clarified that the phrase “because of … sex” means “that gender must be irrelevant to employment decisions.” Price Waterhouse, 490 U.S. at 240.

Accordingly, when an employer “intentional[ly] discriminat[es] against a transgender individual because that person is transgender,” the employer “by definition, [has engaged in] ‘discrimination based on … sex,’ and such discrimination therefore violates Title VII.” Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995, at *11 (EEOC Apr. 20, 2012) (citing Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)). Courts confronted with this issue—whether under Title VII or analogous statutes—have increasingly adopted this view. See, e.g., Harris Funeral Homes, 884 F.3d at 577 (Title VII)^{^[2]}; Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1048 (7th Cir. 2017) (Title IX); Glenn, 663 F.3d at 1317 (§ 1983); Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000) (Gender Motivated Violence Act); Schroer v. Billington, 577 F. Supp. 2d 293, 305 (D.D.C. 2008) (Title VII).

For the following reasons, these courts are correct.

A. The Supreme Court has instructed that “gender must be irrelevant to employment decisions.”

Transgender discrimination violates the rule that “gender must be irrelevant to employment decisions.” Price Waterhouse, 490 U.S. at 240. An employer cannot discriminate against an employee because he or she is transgender without taking sex into account. By definition, transgender men were identified as girls at birth, and transgender women were identified as boys. To recognize them as transgender requires an employer to acknowledge this fact. See Harris Funeral Homes, 884 F.3d at 575 (“[I]t is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”).

An employer that takes an adverse action against a transgender woman when it would not have done so had she continued to identify as a man fails the Supreme Court’s “simple” test for sex discrimination: “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (citation omitted); see also Newport News Shipbldg. & Dry Dock Co. v. EEOC, 462 U.S. 669, 682-83 (1983) (applying Manhart’s “simple test of Title VII discrimination”). The facts of Schroer, 577 F. Supp. 2d 293, make this plain. There, the Library of Congress offered a job to David Schroer, but revoked the offer when it learned that David intended to become Diane. The court correctly held that this was “literally discrimination ‘because of … sex.’” Id. at 308; cf. Hively, 853 F.3d at 345 (holding in context of sexual orientation discrimination that if, “holding all other things constant and changing only [plaintiff’s] sex,” the outcome changes, the result is “paradigmatic sex discrimination”).

Because Title VII prohibits discrimination against subsets of a protected class, even if an employer takes action only against women who are transgender, and not against all women, that employer is still discriminating based on sex. As the Supreme Court has observed, “It is clear that Congress never intended to give an employer license to discriminate against some employees … merely because he favorably treats other members of the employees’ group.” Connecticut v. Teal, 457 U.S. 440, 455 (1982); see also Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1040 (8th Cir. 2010) (plaintiff need not show that the discrimination “affected anyone other than herself”). Indeed, in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), for example, the Court noted that the employer refused to take applications from women with pre-school-age children, but took applications and hired other women; “hence no question of bias against women as such was presented.” Id. at 543. The Court held that the policy would violate Title VII, absent a defense.

Likewise, consideration of sex undergirds transgender discrimination even when employers discriminate against both transgender men and transgender women. The fact that they discriminate against both does not mean that they are not discriminating based on sex; it means that they are violating Title VII twice. Were it otherwise, the Supreme Court in Price Waterhouse would have compared the employer’s treatment of Ann Hopkins, a gender nonconforming woman, to its treatment of gender nonconforming men, not to its treatment of women who conformed with sex stereotypes. “‘[T]he ultimate issue is the reasons for the individual plaintiff’s treatment, not the relative treatment of different groups within the workplace.’” Lewis, 591 F.3d at 1039 (citation omitted); see also Harris Funeral Homes, 884 F.3d at 574 (under Price Waterhouse, employer violates Title VII even if it expects both male and female employees to comply with gender stereotypes).

The same rule would apply in other Title VII contexts. For purposes of Title VII, changing one’s sex is indistinguishable from changing one’s religion. Title VII “on its face treats each of the enumerated categories exactly the same.” Price Waterhouse, 490 U.S. at 243 n.9. An employer that does not discriminate against life-long Jews or life-long Catholics nevertheless violates Title VII by discriminating against people who convert from one religion to the other. Harris Funeral Homes, 884 F.3d at 575-76; Schroer, 577 F. Supp. 2d at 306-07; see also Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 (D. Conn. 2016) (“Because Christianity and Judaism are understood as examples of religions rather than the definition of religion itself, discrimination against converts, or against those who practice either religion the ‘wrong’ way, is obviously discrimination ‘because of religion.’”). Even though the impetus for the employer’s discrimination is the change of religion, not the particular religion in question, the employer has impermissibly used religion to take an adverse employment action. Macy, 2012 WL 1435995, at *11.

In the context of religion, “[n]o court would take seriously that ‘converts’ are not covered by the statute.” Schroer, 577 F. Supp. 2d at 306. There is no principled basis for treating individuals who change their sex differently.

B. Transgender discrimination violates Title VII’s prohibition on sex stereotyping.

Transgender discrimination violates Title VII because the statute’s prohibition on sex discrimination bars employers from taking adverse action based on an individual’s failure to conform to sex stereotypes. Price Waterhouse, 490 U.S. at 250-51. The plaintiff in Price Waterhouse was a woman whose employer perceived her as insufficiently feminine. Several partners in her firm commented that she would have a better chance of becoming a partner if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. Six members of the Court agreed that these comments indicated gender discrimination based on sexual stereotypes. Id. at 251 (plurality op.) (“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”); id. at 259 (White, J., concurring) (plaintiff showed sex was a substantial factor in the adverse employment action); id. at 272-73 (O’Connor, J., concurring) (in light of plaintiff’s substantial evidence of sex bias, “one would be hard pressed to think of a situation where it would be more appropriate to require the defendant to show that its decision would have been justified by wholly legitimate concerns”).^{^[3]}

This Court has not yet applied Price Waterhouse’s sex-stereotyping rule in the context of transgender discrimination.^{^[4]} See Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir. 2015). It has, however, stated without qualification that “a plaintiff can satisfy Title VII’s because-of-sex requirement with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes.” Boh Bros., 731 F.3d at 454. In its en banc opinion in Boh Brothers, a same-sex harassment case, the Court cited to two out-of-circuit transgender cases to demonstrate the availability of the sex-stereotyping rule. Id. at 454 n.4 (citing Glenn, 663 F.3d at 1316; Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004)).

Abandoning the sex with which one has been identified since birth is, of course, the ultimate failure to conform to a gender stereotype. As the Eleventh Circuit has recognized, “‘[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.’” Glenn, 663 F.3d at 1316 (quoting Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Cal. L. Rev. 561, 563 (Apr. 2007)).

Other courts agree. The Seventh Circuit says that “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” Whitaker, 858 F.3d at 1048. The Sixth Circuit calls a transgender person “someone who is inherently ‘gender non-conforming,’” explaining that “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Harris Funeral Homes, 884 F.3d at 576-77 (quoting Smith, 378 F.3d at 575). Numerous district courts say the same. See, e.g., Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 745 (E.D. Va. 2018); EEOC v. Rent-A-Center E., Inc., 264 F. Supp. 3d 952, 256 (C.D. Ill. 2017); Fabian, 172 F. Supp. 3d at 527; Schroer, 577 F. Supp. 2d at 306.^{^[5]}

The holding of Price Waterhouse extends to sex stereotyping that results in adverse employment actions, and it carves out no exceptions. The fact that some people do not conform to gender stereotypes because they are transgender, rather than for some other reason, does not justify excluding them from Price Waterhouse’s rule. Smith, 378 F.3d at 574-75. As a district court from within this Circuit put it, being transgender is not a bar to a sex stereotyping claim:

[T]he plain language of Title VII and Price Waterhouse [does] not make any distinction between a transgender[] litigant who fails to conform to traditional gender stereotypes and an “effeminate” male or “macho” female who, while not necessarily believing himself or herself to be of the opposite gender, nonetheless is perceived by others to be in nonconformity with traditional gender stereotypes. There is nothing in existing case law setting a point at which a man becomes too effeminate, or a woman becomes too masculine, to warrant protection under Title VII and Price Waterhouse.

Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008). “The nature of the discrimination is the same; it may differ in degree, but not in kind, and discrimination on this basis is a form of sex-based discrimination . . . .” Glenn, 663 F.3d at 1319.

II. The Supreme Court directs that statutes must be interpreted as written, without judicial carve-outs, even when the language goes beyond the principal evil Congress sought to address.

Congress added the prohibition on sex discrimination to Title VII “at the last minute,” and there is virtually no legislative history to demonstrate congressional intent. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 63-64 (1986). Given Congress’s silence regarding transgender discrimination, courts must interpret the statute as written. See Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017) (“[I]t is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.”); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (“The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’”) (citation omitted).

The plain language of Title VII prohibits the “entire spectrum” of sex discrimination in employment. Manhart, 435 U.S. at 707 n.13. As the Supreme Court has observed, such broad statutory language “easily accommodates both known and unknown causes of action.” Hui v. Castaneda, 559 U.S. 799, 806 (2010) (interpreting statute granting federal employees absolute immunity). Thus, notwithstanding arguments that Congress never intended the statute to reach so far, the Supreme Court has interpreted Title VII to prohibit opposite-sex sexual harassment (Meritor, 477 U.S. at 66), same-sex sexual harassment (Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78-80 (1998)), and discrimination based on failure to conform to gender stereotypes (Price Waterhouse, 490 U.S. at 251). All of these cases have relied on a literal interpretation of Title VII.

In holding that same-sex harassment is cognizable under Title VII, the Supreme Court in Oncale unanimously rejected the notion that Title VII only proscribes discrimination specifically considered by Congress. The Court acknowledged that same-sex harassment was not the “principal evil” Congress sought to address when enacting Title VII. 523 U.S. at 79. Nevertheless, it explained, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79.

The Oncale Court observed that Title VII protects men as well as women, citing precedents acknowledging the possibility that individuals may discriminate against members of their own race. Id. at 78. Finding no justification for a “categorical rule” excluding same-sex harassment, the Court held that Title VII’s prohibition on sexual harassment “must extend to sexual harassment of any kind that meets the statutory requirements.” Id. at 79-80.

Just as Oncale rejected an artificial carve-out from Title VII’s prohibition on sexual harassment, Title VII also rejects an artificial carve-out from Price Waterhouse’s prohibition on gender stereotyping. As discussed supra at 16-17, transgender discrimination implicates one of the most basic gender stereotypes of all: that individuals who are born into a particular sex will remain that sex for life. Oncale requires that Title VII treat this gender stereotype just as it treats all others.

Congress’s rejection of subsequent legislation expressly prohibiting transgender discrimination in the workplace,^{^[6]} like its introduction of legislation that would “prohibit … redefining sex [in Title VII] to mean gender identity,”^{^[7]} has no bearing on whether Title VII already prohibits transgender discrimination as a form of sex discrimination. As the Supreme Court has cautioned, “subsequent legislative history is a ‘hazardous basis for inferring the intent of an earlier’ Congress” and is “a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns … a proposal that does not become law.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (citation omitted). Moreover, even though other some other statutes expressly mention “gender identity,”^{^[8]} and Title VII does not, “Congress may certainly choose to use both a belt and suspenders to achieve its objectives.” Harris Funeral Homes, 884 F.3d at 578-79 (quoting Hively, 853 F.3d at 344).

The plain language of Title VII renders transgender discrimination a form of sex discrimination. This Court should not rely on speculations about congressional intent to override the statutory text.

CONCLUSION

Transgender discrimination violates Title VII because it involves impermissible consideration of sex, violates the Supreme Court’s prohibition on sex stereotyping, and is analogous to discrimination based on an individual’s transition from one religion to another. For these reasons, this Court should hold that transgender discrimination is cognizable under Title VII as a form of sex discrimination.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

s/Elizabeth E. Theran

Assistant General Counsel

GAIL S. COLEMAN

JEREMY D. HOROWITZ

Attorneys

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4055

gail.coleman@eeoc.gov

(202) 663-4716

jeremy.horowitz@eeoc.gov

CERTIFICATE OF SERVICE

I, Elizabeth E. Theran, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 6th day of August, 2018. I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system:

[1] The EEOC takes no position on the merits of this appeal.

[2] A petition for certiorari has been filed with the Supreme Court (No. 18-107) in Harris Funeral Homes.

[3] The Price Waterhouse plurality observed that remarks based on sex stereotypes, while evidence of sex discrimination, would not “inevitably prove” that an adverse action was “because of … sex.” 490 U.S. at 251. This observation does not weaken the Court’s holding that Title VII prohibits discrimination based on gender stereotyping. Rather, it acknowledges that a Title VII plaintiff must always prove causation. See Zarda, 883 F.3d at 120 n.20, petition for cert. filed, No. 17-1623 (S. Ct.).

[4] B lum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), which pre-dates Price Waterhouse, is inapposite here. Blum alleged sexual orientation discrimination, not transgender discrimination, which is an entirely “distinct question.” Zarda, 883 F.3d at 129 n.32. See also Am. Psychological Ass’n, Answers to Your Questions About Transgender People, Gender Identity, & Gender Expression, http://www.apa.org/topics/lgbt/transgender.aspx (last visited Aug. 6, 2018) (“Sexual orientation refers to an individual’s enduring physical, romantic, and/or emotional attraction to another person, whereas gender identity refers to one’s internal sense of being male, female, or something else. Transgender people may be straight, lesbian, gay, bisexual, or asexual, just as nontransgender people can be.”).

[5] Only one court of appeals, post-Price Waterhouse, has failed to reach a similar conclusion. In Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1221-22 (10th Cir. 2007), the Tenth Circuit held, “at this point in time and with the record and arguments before this court,” that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII.” The court reached this conclusion in reliance on pre-Price Waterhouse case law, and based in part on its view that transgender individuals are not a separate “protected class under Title VII.” Id. As explained above, however, neither the EEOC nor the courts have espoused the theory that transgender individuals must be deemed a new “protected class” as a prerequisite for Title VII coverage. In any event, the Etsitty court tempered its ruling, ultimately holding that it would assume without deciding that Title VII protects “transsexuals who act and appear as a member of the opposite sex.” Id. at 1221, 1224.

[6] E.g., Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007).

[7] E.g., Civil Rights Uniformity Act of 2017, H.R. 2796, 115th Cong. § 3 (2017).

[8] E.g., Violence Against Women Act, 34 U.S.C. § 12291(a)(39) (2017).