No. 17-___
IN THE

JAMEKA K. EVANS,

Petitioner,
v.
GEORGIA REGIONAL HOSPITAL, ET AL.,

Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
PETITION FOR A WRIT OF CERTIORARI

Jeffrey L. Fisher
Pamela S. Karlan
STANFORD LAW SCHOOL
SUPREME COURT
LITIGATION CLINIC
559 Nathan Abbott Way
Stanford, CA 94305
Jon W. Davidson
LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC.
4221 Wilshire Boulevard,
Suite 280
Los Angeles, CA 90010

Gregory R. Nevins
Counsel of Record
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
730 Peachtree Street NE,
Suite 640
Atlanta, GA 30308
(404) 897-1880
gnevins@lambdalegal.org
Omar Gonzalez-Pagan
Susan L. Sommer
Karen L. Loewy
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, NY 10005

 QUESTION PRESENTED

Whether the prohibition in Title VII of the Civil
Rights Act of 1964 against employment discrimination
“because of . . . sex” encompasses discrimination based
on an individual’s sexual orientation.

 ii
PARTIES TO THE PROCEEDING

Petitioner, plaintiff below, is Jameka K. Evans.
Respondents, defendants below, are Georgia
Regional Hospital at Savannah, Charles Moss, Lisa
Clark, and Jamekia Powers.

 iii
TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDING ............................ ii
TABLE OF AUTHORITIES ........................................ v
PETITION FOR A WRIT OF CERTIORARI .............. 1
OPINIONS BELOW..................................................... 1
JURISDICTION ........................................................... 1
RELEVANT STATUTORY PROVISION.................... 1
INTRODUCTION ........................................................ 2
STATEMENT OF THE CASE ..................................... 3
REASONS FOR GRANTING THE PETITION .......... 8
I.

The courts of appeals and federal agencies
that enforce Title VII are divided over
whether the statute covers discrimination
based on sexual orientation .................................. 8
A. The courts of appeals are divided .................. 9
B. Federal agencies are divided ....................... 12

II. The question presented is exceptionally
important............................................................. 15
III. This case offers an ideal vehicle to resolve
the issue............................................................... 21
IV. The Eleventh Circuit’s decision is wrong .......... 23
CONCLUSION ........................................................... 29
APPENDICES
Appendix A, Opinion of the Eleventh Circuit
Court of Appeals .................................................. 1a
Appendix B, Order of the U.S. District Court
for the Southern District of Georgia ................. 55a

 iv
Appendix C, Report and Recommendation of
the Magistrate, United States District Court
for the Southern District of Georgia ................. 56a
Appendix D, Order of the Eleventh Circuit Court
of Appeals denying petition for rehearing
and rehearing en banc ....................................... 68a

 v
TABLE OF AUTHORITIES
Page(s)
Cases

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ............................................. 21
Anderson v. Napolitano,
No. 09-60744-CIV, 2010 WL 431898
(S.D. Fla. Feb. 8, 2010) ........................................ 18
Baldwin v. Foxx,
No. 0120133080, 2015 WL 4397641
(EEOC July 16, 2015) .................................... 13, 27
Blum v. Gulf Oil Corp.,
597 F.2d 936 (5th Cir. 1979) ........................... 6, 11
Boutillier v. Hartford Pub. Sch.,
221 F. Supp. 3d 255 (D. Conn. 2016) .................. 16
Christiansen v. Omnicom Grp., Inc.,
167 F. Supp. 3d 598 (S.D.N.Y. 2016) .................. 29
Christiansen v. Omnicom Grp., Inc.,
852 F.3d 195 (2d Cir. 2017) ..........................passim
City of L.A. Dep’t of Water & Power v.
Manhart, 435 U.S. 702 (1978) ..................... 8, 9, 23
Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,
156 F.3d 581 (5th Cir. 1998) ............................... 26
DeSantis v. Pac. Tel. & Tel. Co., Inc.,
608 F.2d 327 (9th Cir. 1979) ............................... 12
EEOC v. Abercrombie & Fitch Stores, Inc.,
135 S. Ct. 2028 (2015) ......................................... 13
EEOC v. Scott Med. Health Ctr., P.C.,
217 F. Supp. 3d 834 (W.D. Pa. 2016) ............ 13, 17
Faragher v. City of Boca Raton,
524 U.S. 775 (1998) ............................................. 21

 vi

Garvey v. Childtime Learning Ctr.,
No. 5:16-CV-1073 (TJM/ATB), 2016 WL
6081436 (N.D.N.Y. Sept. 12, 2016) ..................... 18
Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 252 (1st Cir. 1999) ................................ 11
Hively v. Ivy Tech Cmty. Coll.,
830 F.3d 698 (7th Cir. 2016) (panel opinion) ..... 18
Hively v. Ivy Tech Cmty. Coll.,
853 F.3d 339 (7th Cir. 2017) (en banc) ........passim
Holcomb v. Iona Coll.,
521 F.3d 130 (2d Cir. 2008) ............................. 9, 25
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ......................................... 22
Kalich v. AT&T Mobility, LLC,
679 F.3d 464 (6th Cir. 2012) ............................... 11
Kay v. Indep. Blue Cross,
142 Fed. Appx. 48 (3d Cir. 2005) ........................ 18
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) ............................... 22
Lawrence v. Texas,
539 U.S. 558 (2003) ................................. 19, 28, 29
Lewis v. City of Chicago,
560 U.S. 205 (2010) ............................................. 28
Loving v. Virginia,
388 U.S. 1 (1967) ....................................... 9, 10, 27
Maroney v. Waterbury Hosp.,
No. 3:10-CV-1415 (JCH), 2011 WL 1085633
(D. Conn. Mar. 18, 2011) ..................................... 19
Medina v. Income Support Div.,
413 F.3d 1131 (10th Cir. 2005) ........................... 12

 vii

Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57 (1986) ................................................. 2
Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U.S. 669 (1983) ................................. 25
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ..................................passim
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998) ..................................... 2, 27, 28
Parr v. Woodmen of the World Life Ins. Co.,
791 F.2d 888 (11th Cir. 1986) ......................... 9, 26
Pension Benefit Guar. Corp. v. LTV Corp.,
496 U.S. 633 (1990) ............................................. 28
Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971) ............................................. 24
Philpott v. New York,
___ F. Supp. 3d ___, 2017 WL 1750398
(S.D.N.Y. May 3, 2017) ........................................ 17
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ......................................passim
Prowel v. Wise Bus. Forms, Inc.,
579 F.3d 285 (3d Cir. 2009) ................................. 11
Romer v. Evans,
517 U.S. 620 (1996) ................................. 20, 28, 29
Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017) ......................................... 25
Sprogis v. United Air Lines, Inc.,
444 F.2d 1194 (7th Cir. 1971) ............................... 9
Terveer v. Billington,
34 F. Supp. 3d 100 (D.D.C. 2014) ....................... 23

 viii

Tetro v. Elliott Popham Pontiac, Oldsmobile,
Buick, & GMC Trucks, Inc.,
173 F.3d 988 (6th Cir. 1999) ............................... 25
United States v. Virginia,
518 U.S. 515 (1996) ............................................. 25
United States v. Windsor,
133 S. Ct. 2675 (2013) ............................. 19, 28, 29
United States v. Wise,
370 U.S. 405 (1962) ............................................. 28
Videckis v. Pepperdine Univ.,
150 F. Supp. 3d 1151 (C.D. Cal. 2015) ............... 17
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) ............................................. 25
Whitewood v. Wolf,
992 F. Supp. 2d 410 (M.D. Pa. 2014) .................. 22
Williams v. Wal-Mart Stores, Inc.,
182 F.3d 333 (5th Cir. 1999) ............................... 26
Williamson v. A.G. Edwards & Sons, Inc.,
876 F.2d 69 (8th Cir. 1989) ................................. 12
Wrightson v. Pizza Hut of Am., Inc.,
99 F.3d 138 (4th Cir. 1996) ................................. 11
Zarda v. Altitude Express, Inc.,
855 F.3d 76 (2d Cir. 2017) ............................. 11, 14
Statutes

28 U.S.C. § 1254(1)....................................................... 1
28 U.S.C. § 1915(e)(2)(B)(ii) ......................................... 5
42 U.S.C. § 2000e-2(a)(1) ......................................... 1, 2
42 U.S.C. § 2000e-5(f)(1) ............................................ 14
42 U.S.C. § 2000e-16(c) .............................................. 13

 ix
Other Authorities

Barron, Laura G. & Michelle Hebl, The Force
of Law: The Effects of Sexual Orientation
Antidiscrimination Legislation on
Interpersonal Discrimination in Employment,
19 Psychol. Pub. Pol’y & L. 191 (2013) ............... 21
Farias, Cristian, Losing Employer Won’t Ask
Supreme Court to Overturn Landmark Gay
Rights Ruling, HuffPost (Apr. 5, 2017) .............. 23
Hasenbush, Amira, et al., Williams Inst.,
The LGBT Divide: A Data Portrait of LGBT
People in the Midwestern, Mountain, and
Southern States (2014) ........................................ 20
Sears, Brad & Christy Mallory, Employment
Discrimination Against LGBT People:
Existence and Impact, in Gender Identity
and Sexual Orientation Discrimination in
the Workplace: A Practical Guide (Christine
Michelle Duffy ed., 2014) .................................... 20

 PETITION FOR A WRIT OF CERTIORARI

Petitioner Jameka K. Evans respectfully petitions
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Eleventh
Circuit.
OPINIONS BELOW

The opinion of the United States Court of Appeals
for the Eleventh Circuit (Pet. App. 1a-54a) is published
at 850 F.3d 1248. The Eleventh Circuit’s order denying
rehearing en banc (Pet. App. 68a-69a) is unpublished.
The order of the district court (Pet. App. 55a) is
unpublished but is available at 2015 WL 6555440. The
report and recommendation of the magistrate judge
(Pet. App. 56a-67a) is unpublished but is available at
2015 WL 5316694.
JURISDICTION

The judgment of the court of appeals was entered
on March 10, 2017. Pet. App. 1a. The court of appeals
denied a timely petition for rehearing en banc on July
6, 2017. Pet. App. 68a-69a. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISION

42 U.S.C. § 2000e-2(a)(1) provides in pertinent
part: “It shall be an unlawful employment practice for
an employer . . . to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex,
or national origin.”

 2
INTRODUCTION

Title VII of the Civil Rights Act of 1964 prohibits
employment
discrimination
“because
of”
an
individual’s “sex.” 42 U.S.C. § 2000e-2(a)(1). This
provision is designed “to strike at the entire spectrum
of disparate treatment of men and women in
employment,” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 78 (1998) (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986))—even
forms of gender discrimination beyond those with
which Congress was principally concerned “when it
enacted Title VII,” id. at 79. And “recognizing that new
insights and societal understandings can reveal
unjustified inequality within our most fundamental
institutions that once passed unnoticed and
unchallenged,” this Court has declared that
discriminating against lesbian, gay, and bisexual
people based on a “disapproval of their relationships”
“diminish[es] their personhood” and “works a grave
and continuing harm” that must be remedied.
Obergefell v. Hodges, 135 S. Ct. 2584, 2602-04 (2015).
Yet it remains unresolved whether Title VII’s ban
on sex discrimination permits an employer to fire (or
otherwise discriminate against) lesbian, gay, and
bisexual people based on their sexual orientation.
Earlier this year, the Seventh Circuit held that “[t]he
logic of the Supreme Court’s decisions, as well as the
common-sense reality that it is actually impossible to
discriminate on the basis of sexual orientation without
discriminating on the basis of sex,” dictate that
Title VII prohibits discrimination based on sexual
orientation. Hively v. Ivy Tech Cmty. Coll., 853 F.3d
339, 350-51 (7th Cir. 2017) (en banc). But in this case,
the Eleventh Circuit refused to follow suit, citing

 3
decades-old case law from several circuits and
asserting that only “the Supreme Court” can bring
Title VII into line with society’s contemporary
understandings concerning sexual orientation and sex
discrimination. Pet. App. 12a.
This Court should carry out that task without
delay. Ours is a national economy, and basic
protections in the workforce should not depend on
geography. More fundamentally, lesbian, gay, and
bisexual Americans will not enjoy true legal equality
until their sexual orientation is irrelevant not only to
their right to enter into consenting relationships and
to marry but also to their ability to maintain jobs and
pursue their livelihoods. It cannot be that Title VII
allows an employer to fire Sharon for exercising her
constitutional right to marry her girlfriend while
retaining her co-worker Samuel after he marries his.
STATEMENT OF THE CASE

1. From 2012 to 2013, petitioner Jameka Evans
worked as a security officer at Georgia Regional
Hospital at Savannah (the “Hospital”). Petitioner, who
describes herself as a gay female, presented herself at
work in stereotypically “male” ways—for example, she
wore a male uniform, had a short haircut, and wore
male shoes. Pet. App. 3a, 58a.
During her time at the Hospital, petitioner’s
supervisors “harassed her because of her perceived
homosexuality, and she was otherwise punished
because [of her] status as a gay female.” Pet. App. 58a.1
Among other things, Evans suffered harassment
1

Because this case comes to the Court on a dismissal of the
complaint for failure to state a claim, all factual allegations must
be accepted as true. Pet. App. 8a.

 4
intended to make her employment unbearable,
received less desirable work schedules, and was
singled out for alleged rule infractions. Id. 3a-4a. In
addition, petitioner was passed over for a promotion in
favor of “a less qualified individual” who is not gay and
does not otherwise transgress gender norms. Id.
2. Petitioner filed an internal complaint about her
most troublesome supervisor, Charles Moss, with Lisa
Clark in the Hospital’s human resources department.
As part of its investigation of these allegations, a
Senior Human Resources Manager, Jamekia Powers,
inquired about petitioner’s sexual orientation. Pet.
App. 3a. Prior to that point, petitioner had not
discussed her sexual orientation with the manager.
The question alerted petitioner to the fact that “her
sexuality was the basis of her harassment.” Id. When
the unbearable discriminatory working conditions
persisted, petitioner left her job.
3. After exhausting her remedies with the Equal
Employment Opportunity Commission (“EEOC” or
“Commission”), Pet. App. 58a-59a n.4, petitioner
timely filed a pro se complaint against the Hospital,
Moss, Clark, and Powers in the United States District
Court for the Southern District of Georgia, id. 2a. In
her complaint, petitioner specifically alleged that she
was subjected to workplace discrimination because her
“status as a gay female did not conform to . . . gender
stereotypes associated with women.” Id. 58a.
Petitioner also alleged she was targeted for

 5
harassment for otherwise “failing to carry herself in a
‘traditional woman[ly] manner.’” Id. 3a.2
Prior to service of the complaint, petitioner’s
motion was referred to a magistrate judge. The
magistrate recommended that the complaint be
dismissed with prejudice for failure to state a claim
upon which relief could be granted. See 28 U.S.C. §
1915(e)(2)(B)(ii). In the magistrate’s view, petitioner’s
claim of discrimination based on her sexual
orientation failed because Title VII “was not intended
to cover discrimination against homosexuals.” Pet.
App. 59a. Furthermore, the magistrate perceived
Evans’s claim of discrimination based on sex
stereotypes as no different from her claim based on
sexual orientation. As the magistrate put it, “to say
that an employer has discriminated on the basis of
gender non-conformity is just another way to claim
discrimination based on sexual orientation.” Id. 61a.
Petitioner, still proceeding pro se, filed timely
objections to the magistrate judge’s report and
recommendation. Pet. App. 6a. She also argued that,
as a pro se litigant, she should have been granted an
opportunity to amend her complaint. Id. In support of
her objections, Lambda Legal Defense and Education
Fund, Inc. (“Lambda Legal”) sought and was granted
leave to file a brief as amicus curiae. Id.
The district court adopted the magistrate judge’s
report and recommendation without addressing any of
petitioner’s objections. Pet. App. 7a. The district court
then dismissed petitioner’s case with prejudice and

2

Petitioner also alleged that she was subjected to unlawful
retaliation, but the court of appeals later deemed that claim
waived, Pet. App. 17a, and petitioner does not press it here.

 6
appointed Lambda Legal as counsel to represent her
on appeal. Id.
4. Petitioner appealed, and the EEOC filed a
supportive amicus brief, maintaining that sexual
orientation discrimination “fall[s] squarely within
Title VII’s prohibition against discrimination based on
sex.” EEOC CA11 Br. 1.
A divided panel of the Eleventh Circuit affirmed
in part and reversed in part.
Rejecting the position advanced by petitioner and
the EEOC, the majority held that petitioner could not
“state[] a claim under Title VII by alleging that she
endured workplace discrimination because of her
sexual orientation.” Pet. App. 11a. The majority noted
that circuit precedent from 1979 dictated that
“[d]ischarge for homosexuality is not prohibited by
Title VII.” Id. 11a (quoting Blum v. Gulf Oil Corp., 597
F.2d 936, 938 (5th Cir. 1979)). And the panel deemed
itself bound to follow that precedent “unless and until
it is overruled by [the Eleventh Circuit] en banc or by
the Supreme Court.” Pet. App. 12a (citation omitted).
At the same time, the panel held that
“discrimination based on gender nonconformity is
actionable.” Pet. App. 9a. The court of appeals
therefore vacated the part of the district court’s order
dismissing that claim and ordered that petitioner be
granted “leave to amend such claim.” Pet. App. 11a.
In a concurring opinion, Judge William Pryor
defended the rule that Title VII does not cover
discrimination based on sexual orientation. According
to Judge Pryor, Title VII prohibits discriminating
against someone because their “behavior” does not
conform to sex stereotypes, but the statute does not

 7
preclude discrimination based on the “status” of being
lesbian, gay, or bisexual. Pet. App. 22a-23a.
In an opinion concurring in part and dissenting in
part, Judge Rosenbaum disagreed with the majority’s
holding that sexual orientation discrimination is not a
form of sex discrimination. Pet. App. 27a-54a. She
explained that since Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), the law has been clear that “Title VII
precludes discrimination on the basis of every
stereotype of what a woman supposedly should be.”
Pet. App. 27a. Thus, “when a woman alleges, as Evans
has, that she has been discriminated against because
she is a lesbian, she necessarily alleges that she has
been discriminated against because she failed to
conform to the employer’s image of what women
should be—specifically, that women should be sexually
attracted to men only.” Id.
Judge Rosenbaum also recognized that an
employer who discriminates against a woman who is
attracted to women, but not against a man who is
attracted to women, “treats women and men
differently ‘because of . . . sex.’” Pet. App. 35a n.9.
Finally, Judge Rosenbaum criticized the concurrence’s
attempt to distinguish between conduct and status as
“mak[ing] no sense from a practical, textual, or
doctrinal point of view.” Id. 39a.
5. Petitioner sought reconsideration en banc of the
panel’s holding regarding sexual orientation
discrimination. She urged the Eleventh Circuit to
adopt the view taken by Judge Rosenbaum and the
EEOC—the same view the Seventh Circuit accepted in
Hively v. Ivy Tech Community College, 853 F.3d 339
(7th Cir. 2017) (en banc). The Eleventh Circuit denied
the petition without comment. Pet. App. 68a.

 8
REASONS FOR GRANTING THE PETITION

The federal courts of appeals are irreconcilably
divided on whether Title VII prohibits sexual
orientation discrimination as part of its ban on sex
discrimination. Likewise, the two federal agencies
charged with enforcing Title VII have taken opposite
positions
on
whether
sexual
orientation
discrimination is a form of sex discrimination. This
intractable conflict over the scope of Title VII has
created uncertainty for employees and employers
alike, compounding pervasive discrimination suffered
by lesbian, gay, and bisexual individuals. Only this
Court can resolve the disagreement on this important
issue, and it is vital that the Court do so now.
I.

The courts of appeals and federal agencies that
enforce Title VII are divided over whether the
statute covers discrimination based on sexual
orientation.

Title VII mandates that “gender must be
irrelevant
to
employment
decisions.”
Price
Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989)
(plurality opinion). Employers cannot rely “upon sexbased considerations.” Id. at 242.
This mandate plays out in three related ways.
First, Title VII forbids “treatment of a person in a
manner which but for that person’s sex would be
different.” City of L.A. Dep’t of Water & Power v.
Manhart, 435 U.S. 702, 711 (1978) (citation omitted).
Second, this Court has held that gender stereotyping—
for example, refusing to promote a woman because she
is too “aggressive”—falls within Title VII’s prohibition
against sex discrimination. Price Waterhouse, 490
U.S. at 250 (plurality opinion). Indeed, “[i]n forbidding

 9
employers to discriminate against individuals because
of their sex, Congress intended to strike at the entire
spectrum of disparate treatment of men and women
resulting from sex stereotypes.” Manhart, 435 U.S. at
707 n.13 (quoting Sprogis v. United Air Lines, Inc., 444
F.2d 1194, 1198 (7th Cir. 1971)). Third, Title VII
prohibits discrimination against an employee based on
the interaction of a protected aspect of the employee’s
identity with the identity of a person with whom the
employee associates. An employer, for example,
commits this forbidden “associational” discrimination
when it treats an employee in an interracial
relationship differently from other employees married
to persons of the same race. See, e.g., Holcomb v. Iona
Coll., 521 F.3d 130, 132 (2d Cir. 2008); Parr v.
Woodmen of the World Life Ins. Co., 791 F.2d 888, 892
(11th Cir. 1986); cf. Loving v. Virginia, 388 U.S. 1, 11
(1967) (punishing a person for marrying someone of a
different race constitutes race discrimination).
Federal courts and federal agencies applying
these doctrinal constructs are split over whether they
dictate that Title VII covers discrimination based on
sexual orientation.
A. The courts of appeals are divided.

1. In an en banc decision earlier this year, the
Seventh Circuit held by an 8-3 vote that
“discrimination on the basis of sexual orientation is a
form of sex discrimination.” Hively v. Ivy Tech Cmty.
Coll., 853 F.3d 339, 341 (7th Cir. 2017) (en banc). The
Seventh Circuit concluded that all three ways of
conceptualizing Title VII’s prohibition against sex
discrimination “end up in the same place”: “that a
person who alleges that she experienced employment
discrimination on the basis of her sexual orientation

 10
has put forth a case of sex discrimination for Title VII
purposes.” Id. at 345, 351-52.
First, the Seventh Circuit explained that sexual
orientation discrimination necessarily involves sexbased considerations because the discrimination
endured by a woman based on her attraction to women
is not suffered by any man with an identical attraction
to women. Hively, 853 F.3d at 345.
Second, the Seventh Circuit reasoned that a
woman’s being a lesbian “represents the ultimate case
of failure to conform to the female stereotype (at least
as understood in a place such as modern America,
which views heterosexuality as the norm and other
forms of sexuality as exceptional).” Hively, 853 F.3d at
346. In other words, sexual orientation discrimination
is a form of unlawful sex stereotyping because it rests
on the assumption that people should pursue romantic
relationships with (or be attracted to) only members of
a different sex. Just as employers may not reject
women from jobs in “traditionally male workplaces,
such as fire departments,” based on sex stereotypes,
employers may not act “based on assumptions about
the proper behavior for someone of a given sex” with
respect to the sex of their romantic partner. Id.
Third, the Seventh Circuit concluded that sexual
orientation discrimination “is discrimination based on
an associational theory.” It explained that this Court
in Loving had “recognized that equal application of a
law that prohibited conduct only between members of
different races did not save it.” Hively, 853 F.3d at 348.
“So too, here. If we were to change the sex of one
partner in a lesbian relationship, the [employment]
outcome would be different. This reveals that the
discrimination rests on distinctions drawn according

 11
to sex.” Id. at 349; see also id. at 359 (Flaum, J.,
concurring).
Also earlier this year, the majority of a Second
Circuit panel likewise determined that: (1) “sexual
orientation discrimination is sex discrimination for the
simple reason that such discrimination treats
otherwise similarly-situated people differently solely
because of their sex”; (2) sexual orientation
discrimination is sex discrimination “because such
discrimination is inherently rooted in gender
stereotypes”; and (3) sexual orientation discrimination
is sex discrimination because it treats similarly
situated people differently because of their sex, viewed
in relation to the sex of the individuals with whom they
associate (or to whom they are attracted).
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195,
202-05 (2d Cir. 2017) (Katzmann, C.J., joined by
Brodie, J., concurring). The Second Circuit has since
granted en banc review in another case to consider the
issue. See Zarda v. Altitude Express, Inc., 855 F.3d 76
(2d Cir. 2017); Order, Zarda v. Altitude Express, Inc.,
No. 15-3775 (2d Cir. May 25, 2017) (ECF No. 271).
2. “Almost all” of the remaining circuits have
weighed in on the issue—some quite recently—and
have held (or strongly suggested) that Title VII
permits employment discrimination based on sexual
orientation. Hively, 853 F.3d at 341-42 (citing Higgins
v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259
(1st Cir. 1999); Prowel v. Wise Bus. Forms, Inc., 579
F.3d 285, 290 (3d Cir. 2009); Wrightson v. Pizza Hut
of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996) (dicta);
Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir.
1979); Kalich v. AT&T Mobility, LLC, 679 F.3d 464,
471 (6th Cir. 2012); Williamson v. A.G. Edwards &
Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (dicta); and

 12

Medina v. Income Support Div., 413 F.3d 1131, 1135
(10th Cir. 2005)); see also DeSantis v. Pac. Tel. & Tel.
Co., Inc., 608 F.2d 327, 329-30 (9th Cir. 1979); Pet.
App. 11a-16a (Eleventh Circuit’s decision below). A
common sentiment in these decisions is that in passing
Title VII, “Congress had only the traditional notions of
‘sex’ in mind.” DeSantis, 608 F.2d at 329. These courts
similarly stress that “Congress has repeatedly rejected
legislation that would have extended Title VII to cover
sexual orientation.” Medina, 413 F.3d at 1135
(citations omitted).
The Eleventh Circuit’s 2-1 decision here cements
the conflict with the Seventh Circuit and ensures that
only this Court can resolve it. The Eleventh Circuit
panel refused to revisit circuit precedent that Title VII
does not reach discrimination against lesbian, gay, or
bisexual individuals “unless and until it is overruled
by this court en banc or by the Supreme Court.” Pet.
App. 12a, 14a (citation omitted). Judge William Pryor
concurred to defend the decades-old Eleventh Circuit
rule as a matter of first principles. Id. 19a-26a. Then,
presented with a petition for rehearing en banc that
asked the Eleventh Circuit to follow the Seventh
Circuit’s and the EEOC’s lead, the Eleventh Circuit
denied the petition without a single vote in favor of
rehearing. Id. 68a-69a.
B. Federal agencies are divided.

Title VII empowers both the EEOC and the
United States Department of Justice to enforce
Title VII, depending on the identity of employers. Just
like the courts of appeals, these federal agencies have
split over how to interpret Title VII in this context.
1. The EEOC exercises significant enforcement
powers with respect to Title VII claims. First and

 13
foremost, the EEOC investigates charges that
employers have engaged in discrimination in violation
of Title VII. The Commission also issues findings and
conciliates charges of discrimination under the
statute.
Moreover, the EEOC may bring actions directly
against private employers. See, e.g., EEOC v.
Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028
(2015). In this capacity, the EEOC has invoked Title
VII’s prohibition on sex discrimination to sue private
employers who discriminate on the basis of sexual
orientation. See, e.g., EEOC v. Scott Med. Health Ctr.,
P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016).
The
EEOC
also
directly
adjudicates
discrimination claims by federal employees. “[I]f
aggrieved by the final disposition of his complaint, or
by the failure to take final action on his complaint,” a
federal employee may file a federal lawsuit. 42 U.S.C.
§ 2000e-16(c). But the federal government as employer
may not appeal a final EEOC decision in an employee’s
favor to federal court.
Acting in its capacity as the adjudicator of federal
employment cases, the Commission has held—
consistent with its stance respecting private
employers—that “allegations of discrimination on the
basis of sexual orientation necessarily state a claim of
discrimination on the basis of sex.” Baldwin v. Foxx,
No. 0120133080, 2015 WL 4397641, at *10 (EEOC
July 16, 2015). This means that in EEOC enforcement
proceedings against private and federal government
employers, the Commission treats sexual orientation
discrimination as a form of sex discrimination
prohibited by Title VII.

 14
2. The Department of Justice has taken the
opposite position. While the EEOC has investigative
and conciliatory authority respecting discrimination
claims against state or local governments, the
Attorney General makes the decision whether to bring
an enforcement action against such a “government,
governmental agency, or political subdivision.” 42
U.S.C. § 2000e-5(f)(1).
In direct contrast to the EEOC, the Department of
Justice recently announced, through an amicus brief,
that it does not believe that Title VII prohibits sexual
orientation discrimination. See Brief for the United
States as Amicus Curiae Supporting DefendantsAppellees at 1, Zarda v. Altitude Express, Inc., No. 153775 (2d Cir. July 26, 2017), 2017 WL 3277292.
According to that brief, “discrimination because of
sexual orientation is not discrimination because of sex
under Title VII,” id. at 6 (capitalization altered), and
employers are free under federal law to fire or
otherwise discriminate against employees and job
applicants based on their sexual orientation.
That the federal agencies charged with
enforcement of Title VII have staked out wholly
contradictory positions regarding the scope of
Title VII’s prohibition on sex discrimination further
reinforces the need for this Court’s guidance. The
protection that public employees have from sex-based
discrimination should not depend on whether they
work for the federal or a state or local government.

 15
II. The question presented is exceptionally
important.

For three overarching reasons, it is critical that
this Court swiftly resolve the conflict over whether
Title VII covers discrimination based on sexual
orientation.
1. The current geographic checkerboard of
Title VII’s coverage is untenable for employees and
employers alike. Take, for example, a gay person who
lives in Michiana, Michigan. The current divide in the
circuits means that if that person takes a job in his
own neighborhood, he can be fired at any time based
on his sexual orientation. If he commutes to a less
desirable position in Michigan City, Indiana, he will
enjoy job security impossible to obtain at home.
Federal law should not put people in such a bind.
Nor should federal law place employees in a
quandary over whether to accept a promotion or
divulge their sexual orientation. Yet at present, a
lesbian or bisexual employee working in Indianapolis,
Indiana, who is offered a promotion that will require
her to relocate to Indianola, Mississippi, is forced to
choose between Title VII protection and advancing her
career. Furthermore, lesbian, gay, and bisexual
employees who are entitled to insurance and other
forms of employment benefits for their spouses might
be wary of telling their employers about their marital
status, for fear of revealing their sexual orientation
and subjecting themselves to termination on that
basis.
Federal law should not leave national employers
unsure of their legal obligations either. If, for instance,
an airline has hubs in both Chicago and Miami (as
American Airlines does), the human resources offices

 16
in both cities should be able to advise management,
train supervisors, and inform employees of their rights
in the same way. The same goes for a company such as
Boeing that designs and builds airplanes in Chicago
and Atlanta, or a company such as Kohler that
manufactures plumbing and other products in both
Kohler, Wisconsin and Huntsville, Alabama. And so
on. Yet the current state of affairs precludes such
clarity.
2. Intervention by this Court is particularly
warranted to relieve courts and litigants from having
to adjudicate cases like this under the guise of “gender
nonconformity” claims.
Like many other appellate courts that foreclose
Title VII claims based directly on sexual orientation,
the Eleventh Circuit allows lesbian, gay, and bisexual
employees to allege that they have been subjected to
disparate
treatment
because
their
personal
appearances or mannerisms do not “conform to a
gender stereotype.” Pet. App. 10a-11a. “Numerous
district courts throughout the country,” however, have
“found this approach to gender stereotype claims
unworkable.” Christiansen v. Omnicom Grp., 852 F.3d
195, 205 (2d Cir. 2017) (Katzmann, C.J., concurring).
The result is a “contradictory” and “confused hodgepodge of cases” attempting “to extricate the gender
nonconformity claims from the sexual orientation
claims.” Hively v. Ivy Tech Comm. Coll., 853 F.3d 339,
342 (7th Cir. 2017) (en banc) (citation omitted); see
also, e.g., Boutillier v. Hartford Pub. Sch., 221 F. Supp.
3d 255, 269 (D. Conn. 2016) (requirement to exclude
“sexual orientation discrimination . . . from the
equation when determining whether allegations or
evidence of gender non-conformity discrimination are
sufficient is inherently unmanageable”).

 17
The core problem, as the Seventh Circuit has
explained, is that it requires “considerable calisthenics
to remove the ‘sex’ from ‘sexual orientation.’” Hively,
853 F.3d at 350. Indeed, as several district courts have
emphasized, “the line between sex discrimination and
sexual orientation discrimination . . . does not exist,
save as a lingering and faulty judicial construct.”
Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151,
1159-60 (C.D. Cal. 2015); see also Philpott v. New
York, ___ F. Supp. 3d ___, 2017 WL 1750398, at *2
(S.D.N.Y. May 3, 2017) (“I decline to embrace an
‘illogical’ and artificial distinction between gender
stereotyping discrimination and sexual orientation
discrimination, and in so doing, I join several other
courts throughout the country.”); EEOC v. Scott Med.
Health Ctr., P.C., 217 F. Supp. 3d 834, 841 (W.D. Pa.
2016) (“[T]he Court finds discrimination on the basis
of sexual orientation is, at its very core, sex
stereotyping plain and simple; there is no line
separating the two.”).
Circuit precedent forbidding Title VII claims
based on sexual orientation but allowing “gender
nonconformity” claims thus leaves district courts—not
to mention litigants and their lawyers—utterly
flummoxed. And lacking any logical compass, district
courts often simply dismiss “gender nonconformity”
claims from lesbian, gay, and bisexual plaintiffs. For
instance, one court recently concluded that a plaintiff
was impermissibly “attempting to bring a Title VII
claim based on sexual orientation” because the
complaint identified the plaintiff as a “male
homosexual” and referred to the phrase “sexual
orientation at least twice.” Garvey v. Childtime
Learning Ctr., No. 5:16-CV-1073 (TJM/ATB), 2016 WL
6081436, at *3 (N.D.N.Y. Sept. 12, 2016). Even when

 18
strong evidence of gender-based motivation exists,
courts have pointed to the use of explicitly anti-gay
epithets, such as “fag” or “queer,” by a harasser to
justify dismissing sex stereotyping claims. See, e.g.,
Kay v. Indep. Blue Cross, 142 Fed. Appx. 48, 51 (3d
Cir. 2005).
And even when courts entertain “gender
nonconformity” claims from lesbian, gay, and bisexual
plaintiffs, this creates problems. Forcing all sexual
orientation discrimination claims into a sex
stereotyping pigeonhole “creates an uncomfortable
result in which the more visibly and stereotypically
gay or lesbian a plaintiff is in mannerisms,
appearance, and behavior, and the more the plaintiff
exhibits those behaviors and mannerisms at work, the
more likely a court is to recognize a claim of gender
non-conformity which will be cognizable under
Title VII as sex discrimination.” Hively v. Ivy Tech
Cmty. Coll., 830 F.3d 698, 709-10 (7th Cir. 2016)
(panel opinion) (collecting examples).
Conversely, “[p]laintiffs who do not look, act, or
appear to be gender non-conforming but are merely
known to be or perceived to be gay or lesbian do not
fare as well in the federal courts.” Hively, 830 F.3d at
710 (gathering examples). Likewise, if a male
employee is harassed with taunts stereotypically
associated with gay men but not necessarily with
women, he too may see his claim dismissed. See, e.g.,
Anderson v. Napolitano, No. 09-60744-CIV, 2010 WL
431898, at *6 (S.D. Fla. Feb. 8, 2010) (because lisping
and being “too flamboyant” are not stereotypes
associated with women, co-workers’ harassment of a
gay employee by speaking at him with a lisp and
calling him “too flamboyant” did not support a claim of
sex discrimination).

 19
In short, “gender nonconformity” claims are
“especially difficult for gay plaintiffs to bring.”
Maroney v. Waterbury Hosp., No. 3:10-CV-1415
(JCH), 2011 WL 1085633, at *2 n.2 (D. Conn. Mar. 18,
2011). They are even harder for district courts to
adjudicate. Litigants and courts should not be
required to cram cases involving discrimination based
on sexual orientation into this box.
3. Finally, it is important for this Court to address
the question presented in light of the discrimination
lesbian, gay, and bisexual people face in employment.
This Court has repeatedly acknowledged the “long
history of disapproval” of gay people that has led to
their “subordinat[ion],” Obergefell v. Hodges, 135 S.
Ct. 2584, 2604 (2015), and to “discrimination both in
the public and in the private spheres,” Lawrence v.
Texas, 539 U.S. 558, 575 (2003). See also United States
v. Windsor, 133 S. Ct. 2675, 2694-95 (2013) (same);
Lawrence, 539 U.S. at 581 (O’Connor, J., concurring)
(describing the employment-related consequences of
anti-sodomy laws). As the United States recently
advised this Court:
Employers and co-workers continue to
discriminate against lesbian and gay people in
the workplace. A set of 15 studies conducted
since the mid-1990s has found that significant
percentages of lesbian, gay, and bisexual
people
have
experienced
workplace
discrimination, including being fired or
refused employment; being denied promotion
or given unfavorable performance reviews;
being verbally or physically abused or
experiencing workplace vandalism; and
receiving unequal pay or benefits.

 20
Brief for United States as Amicus Curiae Supporting
Petitioners at 6, Obergefell v. Hodges, 135 S. Ct. 2584
(2015) (No. 14-556).
This pervasive discrimination exacts a heavy toll.
Many lesbian, gay, and bisexual employees must “hide
their identities, are paid less, and have fewer
employment opportunities” than their co-workers.
Brad Sears & Christy Mallory, Employment
Discrimination Against LGBT People: Existence and
Impact, in Gender Identity and Sexual Orientation
Discrimination in the Workplace: A Practical Guide
40-13 (Christine Michelle Duffy ed., 2014),
http://tinyurl.com/01Evans. “Research has also
documented that [anti-gay] discrimination, as the
expression of stigma and prejudice, also exposes”
lesbian, gay, and bisexual individuals “to increased
risk for poorer physical and mental health.” Id. These
problems are especially acute in states lacking explicit
local
protections
against
sexual
orientation
employment discrimination—which often are where
sexual orientation stigma and economic disadvantages
run highest. See Amira Hasenbush et al., Williams
Inst., The LGBT Divide: A Data Portrait of LGBT
People in the Midwestern, Mountain, and Southern
States 1-7, 22 (2014), http://tinyurl.com/011Evans.
A decision from this Court clarifying that
Title VII’s prohibition against sex discrimination
applies to sexual orientation discrimination will ease
these burdens. Title VII’s “‘primary objective,’ like that
of any statute meant to influence primary conduct, is
not to provide redress but to avoid harm.” Faragher v.
City of Boca Raton, 524 U.S. 775, 806 (1998) (quoting
Albemarle Paper Co. v. Moody, 422 U.S. 405, 417
(1975)); see also Romer v. Evans, 517 U.S. 620, 627
(1996) (noting that legal rules shape “transactions and

 21
relations” between individuals “in both the private and
governmental spheres”). And studies confirm that
workplace discrimination wanes when legal rules
clearly prohibit it. See Laura G. Barron & Michelle
Hebl, The Force of Law: The Effects of Sexual
Orientation Antidiscrimination Legislation on
Interpersonal Discrimination in Employment, 19
Psychol. Pub. Pol’y & L. 191, 200-02 (2013).
Conversely, the current legal landscape, which
leaves lesbian, gay, and bisexual people in large
swaths of the country unprotected, sends a strong
message that it is acceptable to discriminate against
employees based on their constitutionally protected
love for a person of the same sex.
III. This case offers an ideal vehicle to resolve the
issue.

This case is in a perfect posture for this Court to
decide whether Title VII’s ban on sex discrimination
encompasses sexual orientation discrimination. The
case comes to this Court on review of a complaint’s
sufficiency, cleanly presenting a clear-cut question of
law. And judges at the district court and appellate
level have thoroughly ventilated the arguments for
and against Title VII coverage. Compare Pet. App.
27a-54a (Rosenbaum, J., concurring in part and
dissenting in part), with id. 19a-26a (William Pryor, J.,
concurring), and id. 56a-67a (magistrate judge’s
opinion).
That the Eleventh Circuit granted petitioner leave
to amend her complaint to allege that a “decision” to
“present herself in a masculine manner” caused the
adverse employment actions, Pet. App. 10a, only
reinforces the propriety of using this case to resolve
the question presented. As noted above, there is no

 22
way to know exactly how the district court might
attempt to manage such a “gender nonconformity”
claim under the Eleventh Circuit’s artificial construct.
But, almost by definition, the construct seems
designed to limit petitioner’s ability to plead, obtain
discovery, and prove that her sexual orientation led to
adverse action against her in violation of Title VII. It
would be much better to get the overall law right
before going down those litigation pathways and
potentially having to start all over again.
Finally, it is worth noting that the very fact that
this case has made it to this Court is a plus. Previous
cases involving the rights of lesbian, gay, and bisexual
people have shown that losers in such cases are not
always willing to seek appellate review, and winners
are not always interested in defending their victories.
See, e.g., Hollingsworth v. Perry, 133 S. Ct. 2652, 2660
(2013); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014)
(state officials refused to defend district court decision
upholding state constitutional amendments banning
same-sex couples from marriage); Whitewood v. Wolf,
992 F. Supp. 2d 410 (M.D. Pa. 2014) (defendants
declined to appeal decision invalidating equivalent
state law).
Those same phenomena are playing out regarding
the question presented here as well. The employer that
lost in Hively v. Ivy Tech Community College, 853 F.3d
339 (7th Cir. 2017) (en banc), announced immediately
that it would not seek certiorari. Cristian Farias,
Losing Employer Won’t Ask Supreme Court to
Overturn Landmark Gay Rights Ruling, HuffPost
(Apr. 5, 2017), http:// tinyurl.com/0111Evans.
Similarly, after the U.S. District Court for the District
of Columbia held (in the absence of D.C. Circuit
authority on the issue) that an individual could pursue

 23
a Title VII claim for discrimination based on sexual
orientation, see Terveer v. Billington, 34 F. Supp. 3d
100, 116 (D.D.C. 2014), the defendant settled the case
in lieu of taking an appeal, see Order Approving Joint
Stipulation of Dismissal, Terveer v. Billington,
No. 1:12-CV-01290-CKK (D.D.C. Dec. 11, 2015) (ECF
No. 69). In short, if this Court were to pass on this case,
another opportunity to resolve whether Title VII
covers discrimination based on sexual orientation may
not reach the Court for a long while.
IV. The Eleventh Circuit’s decision is wrong.

The Eleventh Circuit’s decision here, and the
decisions of other courts of appeals holding that
Title VII does not reach discrimination on the basis of
sexual orientation, cannot be reconciled with either
the text of the statute or this Court’s decisions
construing it. Simply put, it is discrimination “because
of . . . sex” for an employer to treat female employees,
like petitioner, who are attracted to women differently
from male employees who are attracted to women. The
three strands of this Court’s decisions confirm this
point.
1. Discriminating against lesbian, gay, or bisexual
employees inherently involves treating them
adversely based on their sex. For more than forty
years, it has been settled that Title VII forbids an
employer from having “one hiring policy for women
and another for men.” Phillips v. Martin Marietta
Corp., 400 U.S. 542, 544 (1971) (per curiam). One way
to articulate this “simple test” is that it forbids any
“treatment of a person in a manner which but for that
person’s sex would be different.” City of L.A. Dep’t of
Water & Power v. Manhart, 435 U.S. 702, 711 (1978)
(citation omitted).

 24
It is straightforward to see how discrimination
against a lesbian or bisexual female employee fails this
but-for test. If, for example, a female employee can
show that her employer provides spousal healthinsurance benefits to a male employee married to a
woman but has fired her because she is married to a
woman, then she has “prove[d] that the employer
relied upon sex-based considerations in coming to its
decision.” Price Waterhouse v. Hopkins, 490 U.S. 228,
242 (1989) (plurality opinion). The female employee
would have been treated differently had she been a
man.
2. Discrimination based on sexual orientation
rests on impermissible sex stereotyping. This Court’s
decision in Price Waterhouse makes clear that Title
VII does not permit employers to “evaluate employees
by assuming or insisting that they match[] the
stereotype associated with their group.” 490 U.S. at
251 (plurality opinion). Such assumptions and
demands, when they result in adverse employment
consequences for workers who do not fit the
stereotypes, constitute discrimination because of sex.
Discrimination on the basis of sexual orientation
is rooted in stereotypes about what it means to be a
man or to be a woman and about how men and women
should conduct their lives. It rests on the idea that
women should not be attracted to women and that men
should not be attracted to men. “In fact, stereotypes
about homosexuality are directly related to our
stereotypes about the proper roles of men and women.”
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 205
(2d Cir. 2017) (Katzmann, C.J., concurring) (citation
omitted); see also Hively v. Ivy Tech Cmty. Coll., 853
F.3d 339, 346 (7th Cir. 2017) (en banc). As this Court
explained last Term, “[f]or close to a half century” it

 25
has been the law that “overbroad generalizations
about the different talents, capacities, or preferences
of males and females” constitute sex discrimination.
Sessions v. Morales-Santana, 137 S. Ct. 1678, 1692
(2017) (quoting United States v. Virginia, 518 U.S.
515, 533 (1996), and citing Weinberger v. Wiesenfeld,
420 U.S. 636, 643, 648 (1975)).
3. Discrimination on the basis of sexual
orientation constitutes “associational” discrimination
forbidden by Title VII. In Newport News Shipbuilding
& Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), this
Court held that an employment practice premised on
the sex of an employee’s spouse can constitute sex
discrimination. The practice at issue there was the
denial of spousal pregnancy benefits in an employer’s
healthcare plan. Title VII had been amended to
provide that discrimination on the basis of pregnancy
is discrimination “because of sex.” Because, at the
time, “the sex of the spouse [was] always the opposite
of the sex of the employee,” male employees were being
subjected to discrimination because they had female
spouses. Id. at 684.
In a similar vein, every circuit to have addressed
the question, including the Eleventh Circuit, has held
that discrimination based on the race of a person with
whom an employee has a relationship constitutes a
form of discrimination “because of . . . race” prohibited
by Title VII. In Parr v. Woodmen of the World Life
Insurance Co., 791 F.2d 888 (11th Cir. 1986), for
example, the Eleventh Circuit held that “[w]here a
plaintiff claims discrimination based upon an
interracial marriage or association, he alleges, by
definition, that he has been discriminated against
because of his race.” Id. at 892; see also Holcomb v.
Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008); Tetro v.

 26

Elliott Popham Pontiac, Oldsmobile, Buick, & GMC
Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999);
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156
F.3d 581, 589 (5th Cir. 1998), opinion reinstated on
reh’g en banc sub nom. Williams v. Wal-Mart Stores,
Inc., 182 F.3d 333 (5th Cir. 1999).
The logic of the cases involving race is inescapable
here: treating an employee differently because of the
sex of the person to whom he or she is married, or with
whom he or she has an intimate relationship, is
discrimination because of sex. See Hively, 853 F.3d at
347-48; id. at 359 (Flaum, J., concurring);
Christiansen, 852 F.3d at 204 (Katzmann, C.J.,
concurring). Title VII “treats each of the enumerated
categories exactly the same.” Price Waterhouse, 490
U.S. at 243 n.9 (plurality opinion). So just as
“[c]hanging the race of one partner made a difference
in determining the legality of” the marriage at issue in
Loving v. Virginia, 388 U.S. 1 (1967), the employer in
a case involving discrimination based on sexual
orientation would have acted differently “if we were to
change the sex of one partner.” Hively, 853 F.3d at
348-49.
4. Neither the absence of the explicit phrase
“sexual orientation” in Title VII nor congressional
inaction after enactment of Title VII, Pet. App. 25a,
undercuts treating discrimination on the basis of
sexual orientation as “because of . . . sex.” Petitioner
does not ask this Court to add a new protected category
to the list provided by Congress. Rather, as the EEOC
has explained, she asks only that she be provided the
same protection against sex discrimination that
applies in any other case where an employer “has
‘relied on sex-based considerations’ or ‘take[n] gender
into account’ when taking the challenged employment

 27
action.” Baldwin v. Foxx, No. 0120133080, 2015 WL
4397641, at *4 (EEOC July 16, 2015) (quoting Price
Waterhouse, 490 U.S. at 239, 241-42 (plurality
opinion)). Petitioner’s claim rests on the fact that if she
were a man, or if she dressed and behaved in a more
stereotypically feminine way, or if she were attracted
to men rather than to women, respondents would have
treated her differently. This is sex discrimination,
pure and simple. Title VII nowhere carves out lesbian,
gay, and bisexual people from its categorical protection
against sex discrimination.
To be sure, in 1964 when it enacted Title VII,
Congress was not thinking about discrimination
against lesbian, gay, or bisexual people. Nor, of course,
was it thinking about male-on-male sexual
harassment. But as this Court explained in Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75 (1998),
“statutory prohibitions often go beyond the principal
evil” targeted by the Congress that enacted them “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. Discrimination against individuals on the
basis of their sexual orientation, like the same-sex
sexual harassment at issue in Oncale, “meets the
statutory requirements” for sex discrimination
prohibited by Title VII, id. at 80. Courts cannot
“rewrite the statute so that it covers only what [they]
think is necessary to achieve what [they] think
Congress really intended.” Lewis v. City of Chicago,
560 U.S. 205, 215-17 (2010). They must instead apply
the statute as written.
Nor does congressional inaction support excluding
claims of discrimination on the basis of sexual
orientation that fit within one or more of the three

 28
categories already recognized by this Court. As this
Court has repeatedly cautioned, “subsequent
legislative history” provides “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). Given the multitude
of reasons the various proposals to add “sexual
orientation” to Title VII might not have been adopted,
the congressional inaction over the years here has “no
persuasive significance.” United States v. Wise, 370
U.S. 405, 411 (1962); see also Christiansen, 852 F.3d
at 206 (Katzmann, C.J., concurring).
5. The Eleventh Circuit’s decision in this case also
ignores the enormous change in the understanding of
sexual orientation worked by this Court’s decisions in
Romer v. Evans, 517 U.S. 620 (1996), Lawrence v.
Texas, 539 U.S. 558 (2003), United States v. Windsor,
133 S. Ct. 2675 (2013), and Obergefell v. Hodges, 135
S. Ct. 2584 (2015). As this Court observed in
Lawrence, “times can blind us to certain truths.” 539
U.S. at 579. One of those truths is that subjecting
lesbian, gay, and bisexual employees to adverse
treatment fits firmly within the contours of Title VII’s
prohibition on discrimination because of sex. When
this Court “held in Lawrence [that] same-sex couples
have the same right as opposite-sex couples to enjoy
intimate association,” Obergefell, 135 S. Ct. at 2600, it
was squarely articulating a fundamental basis for
holding that discrimination against lesbian, gay, and
bisexual people is sex discrimination: it denies them
rights due to their sex and the sex of the person with
whom they form a couple.
As Justice O’Connor explained, one of the
consequences of the legal regime that existed prior to

 29
this Court’s decisions recognizing the equal dignity of
lesbian, gay, and bisexual individuals was “legally
sanction[ed] discrimination” against them in areas
such as “employment.” Lawrence, 538 U.S. at 582
(O’Connor, J., concurring). Romer, Lawrence,
Windsor, and Obergefell “reflect a shift in the
perception, both of society and of the courts, regarding
the protections warranted for same-sex relationships
and the men and women who engage in them.”
Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d
598, 619 (S.D.N.Y. 2016), aff’d in part and rev’d in
part, 852 F.3d 195 (2d Cir. 2017). As the Seventh
Circuit’s recent en banc decision put it, “[t]he goalposts
have been moving over the years, as the Supreme
Court has shed more light on the scope of the language
that already is in the statute: no sex discrimination.”
Hively, 853 F.3d at 344. It is time for this Court to
resolve the uncertainty in the lower courts and ensure
that Title VII’s protection against sex discrimination
protects lesbian, gay, and bisexual employees to the
same extent it protects all other workers.
CONCLUSION

For the foregoing reasons, the petition for a writ
of certiorari should be granted.

 30
Respectfully submitted,
Jeffrey L. Fisher
Pamela S. Karlan
STANFORD LAW SCHOOL
SUPREME COURT
LITIGATION CLINIC
559 Nathan Abbott Way
Stanford, CA 94305
Jon W. Davidson
LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC.
4221 Wilshire Boulevard,
Suite 280
Los Angeles, CA 90010

September 7, 2017

Gregory R. Nevins
Counsel of Record
LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC.
730 Peachtree Street NE,
Suite 640
Atlanta, GA 30308
(404) 897-1880
gnevins@lambdalegal.org
Omar Gonzalez-Pagan
Susan L. Sommer
Karen L. Loewy
LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, NY 10005