SUPREME COURT
OF THE UNITED STATES
IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - - - GERALD LYNN BOSTOCK,
Petitioner,
v.

)
)
) No. 17-1618

CLAYTON COUNTY, GEORGIA,
Respondent.
and

)
)
)

ALTITUDE EXPRESS, INC., ET AL.,
Petitioners,
v.

)
)
) No. 17-1623

MELISSA ZARDA, AS EXECUTOR OF THE

)

ESTATE OF DONALD ZARDA, ET AL.,

)

Respondents.

)

- - - - - - - - - - - - - - - - - Pages:

1 through 70

Place:

Washington, D.C.

Date:

October 8, 2019

HERITAGE REPORTING CORPORATION
Official Reporters
1220 L Street, N.W., Suite 206
Washington, D.C. 20005
(202) 628-4888
www.hrccourtreporters.com

 Official - Subject to Final Review
1
1

IN THE SUPREME COURT OF THE UNITED STATES

2

- - - - - - - - - - - - - - - - - -

3

GERALD LYNN BOSTOCK,

4
5
6
7
8
9
10
11

Petitioner,
v.

)
)
) No. 17-1618

CLAYTON COUNTY, GEORGIA,
Respondent.
and

)
)
)

ALTITUDE EXPRESS, INC., ET AL.,
Petitioners,
v.

)
)
) No. 17-1623

12

MELISSA ZARDA, AS EXECUTOR OF THE

)

13

ESTATE OF DONALD ZARDA, ET AL.,

)

14
15
16
17

Respondents.

)

- - - - - - - - - - - - - - - - - Washington, D.C.
Tuesday, October 8, 2019

18
19

The above-entitled matter came on

20

for oral argument before the Supreme Court of the

21

United States at 10:05 a.m.

22
23
24
25

Heritage Reporting Corporation

 Official - Subject to Final Review
2
1

APPEARANCES:

2
3

PAMELA S. KARLAN, Stanford, California;

4

on behalf of the Petitioner in 17-1618

5

and the Respondents in 17-1623.

6

JEFFREY M. HARRIS, Arlington, Virginia;

7

on behalf of the Respondent in 17-1618

8

and the Petitioners in 17-1623.

9

GEN. NOEL J. FRANCISCO, Solicitor General,

10

Department of Justice, Washington, D.C.,

11

for the United States, as amicus curiae,

12

supporting affirmance in 17-1618 and

13

reversal in 17-1623.

14
15
16
17
18
19
20
21
22
23
24
25

Heritage Reporting Corporation

 Official - Subject to Final Review
3
1

C O N T E N T S

2

ORAL ARGUMENT OF:

3

PAMELA S. KARLAN, ESQ.

PAGE:

4

On behalf of the Petitioner in 17-1618

5

and the Respondents in 17-1623

6

ORAL ARGUMENT OF:

7

JEFFREY M. HARRIS, ESQ.

8

On behalf of the Respondent in 17-1618

9

and the Petitioners in 17-1623

10

ORAL ARGUMENT OF:

11

GEN. NOEL J. FRANCISCO, ESQ.

12

For the United States, as amicus

13

curiae, supporting affirmance in 17-1618

14

and reversal in 17-1623

15

REBUTTAL ARGUMENT OF:

16

PAMELA S. KARLAN, ESQ.

17

On behalf of the Petitioner in 17-1618

18

and the Respondents in 17-1623

19
20
21
22
23
24
25

Heritage Reporting Corporation

4

31

52

64

 Official - Subject to Final Review
4
1

P R O C E E D I N G S

2
3

(10:05 a.m.)
CHIEF JUSTICE ROBERTS:

We'll hear

4

argument first this morning in Case 17-1618,

5

Bostock versus Clayton County, and the

6

consolidated case.

7

Ms. Karlan.

8

ORAL ARGUMENT OF PAMELA S. KARLAN

9

ON BEHALF OF THE PETITIONER IN 17-1618

10
11
12
13

AND THE RESPONDENTS IN 17-1623
MS. KARLAN:

Thank you, Mr. Chief

Justice, and may it please the Court:
When a employer fires a male employee

14

for dating men but does not fire female

15

employees who date men, he violates Title VII.

16

The employer has, in the words of Section

17

703(a), discriminated against the man because he

18

treats that man worse than women who want to do

19

the same thing.

20

because of sex, again in the words of

21

Section 703(a), because the adverse employment

22

action is based on the male employee's failure

23

to conform to a particular expectation about how

24

men should behave; namely, that men should be

25

attracted only to women and not to men.

And that discrimination is

Heritage Reporting Corporation

 Official - Subject to Final Review
5
1

There is no analytic difference

2

between this kind of discrimination and forms of

3

discrimination that have been already recognized

4

by every court to have addressed them.

5

example, discrimination against men who are a

6

effeminate rather than macho.

7

discrimination here, that discrimination is

8

because of non-conformity with an expectation

9

about how men should behave.

10

For

Like the

The attempt to carve out

11

discrimination against men for being gay from

12

Title VII cannot be administered with either

13

consistency or integrity.

14

en banc Second Circuit, it forces judges to

15

result -- resort to lexical bean counting where

16

they count up the frequency of epithets, such as

17

"fag," "gay," "queer," "real man," and "fem," to

18

determine whether or not discrimination is based

19

on sex or sexual orientation.

20

In the words of the

That attempt is futile because when a

21

man is discriminated against for being gay, he

22

is discriminated against for not conforming to

23

an expectation about how men should behave.

24
25

Finally, the possibility that some
employers, but not the employers here, may have

Heritage Reporting Corporation

 Official - Subject to Final Review
6
1

policies of denying employment opportunities

2

both to gay men and to lesbians does not change

3

the unlawfulness of what was alleged by the

4

employees here.

5

Labeling those policies under an

6

umbrella phrase like "sexual orientation

7

discrimination" cannot hide the fact that such

8

an employer is a double discriminator.

9

discriminates against men who do not conform to

10

a male stereotype, and it discriminates against

11

women who do not conform to an expectation about

12

female --

13

JUSTICE GINSBURG:

It

Ms. Karlan --

14

Ms. Karlan, how do you answer the argument that

15

back in 1964, this could not have been in

16

Congress's mind because in -- in many states

17

male same-sex relations was a criminal offense;

18

the American Psychiatric Association labeled

19

homosexuality a -- a mental illness?

20

MS. KARLAN:

Well, I think you read

21

the words of the statute.

22

recognized again and again forms of sex

23

discrimination that were not in Congress's

24

contemplation in 1964.

25

And this Court has

In 1964, those were the days of Mad

Heritage Reporting Corporation

 Official - Subject to Final Review
7
1

Men, so the idea that sexual orientation would

2

have been reached, most courts didn't find

3

sexual harassment to be actionable until this

4

Court did.

5

recognized that discrimination against a woman

6

who cursed like a sailor, walked like a man, and

7

didn't wear makeup was reachable under Title

8

VII.

9

what they had thought, they would not have been

10

In Price Waterhouse, this Court

If you had asked members of Congress then

thinking about women like Ann Hopkins.

11

CHIEF JUSTICE ROBERTS:

They --

How do you --

12

do you agree or disagree with Judge Posner's

13

statement that the statute should be read to

14

encompass sexual orientation discrimination to

15

"avoid placing the entire burden of updating old

16

statutes on the legislative branch"?

17

MS. KARLAN:

I disagree with Judge

18

Posner.

19

updating here.

20

words as they were understood then, which is

21

"men" and "women."

22

make sure that men were not disadvantaged

23

relative to women and women were not

24

disadvantaged relative to men.

25

I don't think you need to do any
I think you should read the

Title VII was intended to

And when you tell two employees who

Heritage Reporting Corporation

 Official - Subject to Final Review
8
1

come in, both of whom tell you they married

2

their partner Bill last weekend, when you fire

3

the male employee who married Bill and you give

4

the female employee who married Bill a couple of

5

days off so she can celebrate the joyous event,

6

that's discrimination because of sex.

7

Well, if no one has any further

8

questions, I'll reserve the remainder of my time

9

for rebuttal.

10

(Laughter.)

11

CHIEF JUSTICE ROBERTS:

12

Well, I think

we'll have further questions.

13

(Laughter.)

14

CHIEF JUSTICE ROBERTS:

15

with the argument that this is a

16

non-discriminatory policy because it applies

17

equally to relationships between women and

18

relationships between men?

19

friends on the -- or you emphasize that you need

20

to know the sex of the individuals involved

21

before you can determine whether or not there's

22

a violation and that that brings it within Title

23

VII.

24
25

What do you do

In other words, your

But what about the response that you
do not need to know the sex of the people

Heritage Reporting Corporation

 Official - Subject to Final Review
9
1

involved; you just can have a policy against

2

same sex?

3

participants are women or men.

4

same, then that's covered by the policy.

5

So you don't care whether the

MS. KARLAN:

If they're the

I think that's no

6

different than having a policy that says

7

everyone should comply with the stereotype

8

applicable to their sex.

9

example from the Court's prior cases, for

And if I can use an

10

example, in Dothard against Rawlinson, the

11

policy on its face said you cannot guard someone

12

of the opposite sex.

13

guard a man is barred from that job; a man who

14

seeks to guard a woman is barred from that job.

15

Just put in, instead of the word "guard," "date"

16

and you get the same kind of rule here, which is

17

a man who wants to date a man can't do it but a

18

woman can, and a woman who wants to date a woman

19

can't do it --

So a woman who seeks to

20

JUSTICE GINSBURG:

21

MS. KARLAN:

22
23

But there's, Ms. --

-- but a man can.

They

are two forms of discrimination.
JUSTICE GINSBURG:

24

quite a difference.

25

the disparate impact.

Ms. Karlan, there's

In the Dothard case, it was
There are many more male

Heritage Reporting Corporation

 Official - Subject to Final Review
10
1

prisoners to guard than females.

2

policy, even though it applied to men guarding

3

women, it had a disproportionate effect on women

4

who wanted to be guards because there were many

5

more jobs guarding male prisoners than female

6

prisoners.

7

MS. KARLAN:

So that

Justice Ginsburg, the

8

part of Dothard against Rawlinson that rested on

9

disparate impact was the height and weight

10

requirements.

11

the opposite sex was not a disparate impact.

12

most, the Court noted in a footnote along the

13

way that there were more guard positions

14

available to men, but it was not a disparate

15

impact case.

16

The requirement about guarding
At

It was a disparate treatment case.

And so a male person who had wanted to

17

guard someone at the Julia Tutwiler prison, the

18

prison for women in Alabama, would have had a

19

claim that he had been discriminated against

20

because of sex.

21

claim but on BFOQ grounds, not on because of sex

22

grounds.

23

Now, he would have lost that

JUSTICE GINSBURG:

What do you do with

24

the example that was brought up that, unlike

25

race, there are certain distinctions that are

Heritage Reporting Corporation

 Official - Subject to Final Review
11
1

not only permitted but maybe even required

2

between males and females, like physical fitness

3

tests?

4

MS. KARLAN:

So those -- I want to

5

answer that question in two parts.

6

to notice that in those cases, there is no

7

question there's a differential between men and

8

women; that is, men and women are being treated

9

differently.

10

The first is

What is at issue there is whether that

11

differential treatment constitutes unlawful

12

discrimination under Title VII.

13

example, in Johnson against Santa Clara County

14

Transportation Agency, everyone recognized Paul

15

Johnson denied the job because of his sex, but

16

because it was a permissible affirmative action

17

program, that was okay.

18

Rawlinson, this Court said Ms. Rawlinson is

19

discriminated because of sex, but there's a

20

BFOQ.

21

So, for

In Dothard against

So if Congress writes an exemption

22

into the statute, that's one thing.

23

Court really shouldn't be writing in an

24

exemption for those purposes.

25

JUSTICE SOTOMAYOR:

But this

Do you think we

Heritage Reporting Corporation

 Official - Subject to Final Review
12
1

need exemptions for those BFOQs?

2

the -- physical fitness standards for different

3

sports, but big issue right now raging the

4

country is bathroom usage.

5

usage.

6

It's not just

Same-sex bathroom

How are those cases going to be dealt

7

with absent a congressional exemption other than

8

BFOQ?

9

MS. KARLAN:

Well, I think the way

10

that they get dealt with is everybody agrees if

11

you have men's bathrooms and women's bathrooms,

12

that's because of sex.

13

it says go to this bathroom.

14

another way, it says go to this bathroom.

15

It treats men one way,
It treats women

Then the question becomes is that

16

permissible to do?

17

an example that I think will show why this is

18

so.

19

me, "Ms." Karlan, I am willing to bet any amount

20

of money I have that when Mr. Harris gets up, he

21

is going to say "Mr." Harris.

22

If I could just begin with

When I got up, the Chief Justice said to

He treated us differently because of

23

sex.

24

of us has been subjected to a disadvantage.

25

as this Court said in Burlington White against

That is not discriminatory because neither

Heritage Reporting Corporation

And

 Official - Subject to Final Review
13
1

North -- Burlington Northern against White, what

2

the statute means when it says discriminate

3

against is to cause an injury and requiring

4

people generally to use separate bathrooms is

5

not an injury.

6

JUSTICE GORSUCH:

Well, I'm -- I'm not

7

sure that maybe how they would see it.

8

what -- to what extent should we take that into

9

account?

And to

And same thing with a gender-specific

10

uniform requirements.

11

MS. KARLAN:

12

JUSTICE GORSUCH:

Sure.
How would you deal

13

with those, given that -- that at least those

14

affected might think that they're suffering a

15

harm?

16

MS. KARLAN:

So there is no

17

categorical rule about these.

18

fact that all of the men sitting at counsel

19

table knew that they had to wear ties today and

20

I was free not to didn't cause an injury.

21

the other hand, even the dissenters in the

22

Second Circuit said, if the Court said women who

23

come to argue should argue in Hooters outfits

24

and the men should wear --

25

JUSTICE GORSUCH:

For example, the

No --

Heritage Reporting Corporation

On

 Official - Subject to Final Review
14
1

MS. KARLAN:

2

JUSTICE GORSUCH:

3

-- ties --- we're not --

we're not -- I mean --

4

MS. KARLAN:

5

JUSTICE GORSUCH:

I know.
-- we can talk

6

absurd examples or we can talk real world

7

examples.

8
9

MS. KARLAN:

I will give you a real

world example, which is, it probably doesn't

10

violate dress code to require men and women in

11

business events for the women to wear skirts,

12

but if you required a telephone lineman to wear

13

a skirt --

14

JUSTICE GORSUCH:

15

MS. KARLAN:

16

JUSTICE GORSUCH:

No, no --

-- while she's still -I understand that.

17

That's not what I'm getting at.

18

what I'm getting at.

19

example's not a bad -- the case that we're about

20

to take up is -- is -- is more in the realm of

21

my question.

The funeral homes

22

MS. KARLAN:

23

JUSTICE GORSUCH:

24
25

And you know

Okay.
You can offer me

help if you want to.
MS. KARLAN:

Yes, yes.

No, I'm trying

Heritage Reporting Corporation

 Official - Subject to Final Review
15
1

to offer you help.

2

What I'm trying to say --

JUSTICE GORSUCH:

All right.

What

3

I'm -- what I'm suggesting, counsel, is that

4

there are male and female bathrooms, there are

5

dress codes that are otherwise innocuous, right,

6

most -- most people would find them innocuous.

7

But the affected communities will not.

8

And they will find harm.

9

deal with that one way or the other?

And how does your test
That's

10

what I'm asking you to address, if you'd like

11

to.

12

MS. KARLAN:

Yes.

My test says that

13

you have treated the people differently because

14

of sex, which is what we are asking you to hold

15

here.

16

date a woman differently than a woman who wants

17

to date a woman, that -- that's discrimination.

18

Then you get to what I've said, which

When you treat a gay man who wants to

19

is you have to ask whether a reasonable person

20

under these circumstances would be injured by

21

the imposition of the particular sex-specific

22

world.

23

I am not injured.

24
25

So when the Chief Justice calls me Ms.,
When I go to a -- when I --

JUSTICE GORSUCH:

You are not, but

another --

Heritage Reporting Corporation

 Official - Subject to Final Review
16
1

MS. KARLAN:

2

JUSTICE GORSUCH:

3

MS. KARLAN:

4

It --

it --

-- person might be.

Right.

And the question

--

5

JUSTICE GORSUCH:

Are they reasonable

6

or not?

7

I'm wondering, how do you decide those cases?

8
9
10

And -- and I'm -- I'm -- I'm just --

MS. KARLAN:

An idiosyncratic

preference does not void an otherwise valid
dress code or bathroom rule.

11

JUSTICE GORSUCH:

12

JUSTICE SOTOMAYOR:

13

JUSTICE GORSUCH:

14
15
16
17

So is it -Ms. Karlan --

I'm sorry.

I --

I -- and I apologize.
JUSTICE SOTOMAYOR:

Go ahead and

finish it.
JUSTICE GORSUCH:

Is it idiosyncratic

18

for a transgender person to prefer a bathroom

19

that's different than the -- the one of their

20

biological sex?

21

transsexual person to wish to dress in a

22

different style of dress than his or her

23

biological --

Is it idiosyncratic for a

24

MS. KARLAN:

25

JUSTICE GORSUCH:

No.
Sex?

Okay.

Heritage Reporting Corporation

So the

 Official - Subject to Final Review
17
1

answer to your question is -- the question then,

2

at the end of the day, if I understand it, is

3

that those are acts of discrimination under

4

Title VII as you understand it?

5

MS. KARLAN:

Yes, although I think

6

you'd -- you'd be better advised to ask the

7

question to someone who -- who is representing

8

someone here who is transgender.

9

representing someone who is gay.

10

JUSTICE SOTOMAYOR:

11

MS. KARLAN:

12

JUSTICE SOTOMAYOR:
Justice Gorsuch's question.

14

up on the same thing --

16

MS. KARLAN:

Ms. Karlan.

And -- yeah.

13

15

I am

But you're begging
We were following

I truly am not trying

to --

17

JUSTICE SOTOMAYOR:

18

MS. KARLAN:

19

JUSTICE SOTOMAYOR:

-- which is --

-- beg the question.
-- how do we

20

differentiate the two?

21

that you propose to say this is discrimination

22

because of sex, as you said, calling you one

23

thing and your friend another is discriminatory,

24

but it's okay because there's no harm.

25

What is the legal test

So what's the test we apply to, say,

Heritage Reporting Corporation

 Official - Subject to Final Review
18
1

when it is harm and when it isn't?

2
3

MS. KARLAN:

Let -- let me try to be

clear.

4

JUSTICE SOTOMAYOR:

5

MS. KARLAN:

Let's be --

It's not discrimination

6

to call me Ms. Karlan and to call Mr. Harris,

7

Mr. Harris.

8

we were treated differently.

9

It is -- it is because of sex that

But as this Court has made it clear

10

several times, discrimination consists in an

11

injury that the law is prepared to recognize.

12

And generally across all statutes, this isn't a

13

Title VII, and this is why I'm really not

14

begging the question here, the Court has said de

15

minimis effects are exempted from statutes

16

presumptively.

17
18

So if this Court thinks or if another
court --

19

JUSTICE SOTOMAYOR:

20

MS. KARLAN:

21

JUSTICE SOTOMAYOR:

So why --

-- thinks --- is a dress code

22

for Hooters that requires all women to wear a

23

scantily -- a scant dress, is that

24

discriminatory?

25

MS. KARLAN:

Yes, it is.

Heritage Reporting Corporation

 Official - Subject to Final Review
19
1

JUSTICE SOTOMAYOR:

Is it

2

discriminatory for the woman who just doesn't

3

want to wear it because it's demeaning?

4

MS. KARLAN:

5

JUSTICE SOTOMAYOR:

Yes, it is.
So how about, is

6

it discriminatory for the restaurant not to hire

7

a transgender man who wants to wear the uniform?

8
9

MS. KARLAN:

Well, you're going to get

--

10

JUSTICE SOTOMAYOR:

11

MS. KARLAN:

12

I -- I mean, I do want to

get to the question of sexual orientation --

13

JUSTICE SOTOMAYOR:

14

MS. KARLAN:

15

The scant uniform.

No, no, no --

-- here, but I understand

-- I understand.

16

JUSTICE SOTOMAYOR:

But I think what

17

you are alluding is, and I still haven't heard

18

--

19

MS. KARLAN:

20

JUSTICE SOTOMAYOR:

Yeah.
-- the

21

explanation, which is the question of how do we

22

tell what's actionable and not?

23

MS. KARLAN:

24

JUSTICE SOTOMAYOR:

25

Well, if -At what -- when

does that discrimination become an issue?

Heritage Reporting Corporation

 Official - Subject to Final Review
20
1

MS. KARLAN:

I'll give an analogy from

2

the race area that may be helpful to the Court,

3

which is, for many years, there was an argument

4

that separate but equal was acceptable.

5

ultimately this Court concluded that when it

6

came to race, separate but equal was not

7

permissible.

And

8

I don't think the Court has held

9

anything like that with regard to sex, but

10

you're going to have to answer that question

11

about dress codes regardless of how you rule in

12

either my case or in Ms. Stephens' case

13

because --

14

JUSTICE ALITO:

15

JUSTICE GINSBURG:

Can I ask -Would you say the

16

test is -- is the person injured?

17

differential based on gender, but most people

18

are not injured by having separate bathrooms.

19

In fact, they -- most people would prefer it.

20

Yes, it's a

So are you saying we have to wait for

21

the testing case for the person who might be

22

injured by not being allowed to use the bathroom

23

of the other sex?

24
25

MS. KARLAN:

I think it highly

unlikely you're going to see cases like that.

Heritage Reporting Corporation

 Official - Subject to Final Review
21
1

The bathroom issue has been around since the

2

beginning of Title VII.

3

provision in 703(a)(ii) that says, when you

4

segregate people, the question is whether that

5

segregation denies them employment

6

opportunities.

7

Title VII has a special

And it is hard to see, quite honestly,

8

how requiring men to use a men's room and women

9

to use a women's room denies them employment

10

opportunities.

11

JUSTICE ALITO:

12

CHIEF JUSTICE ROBERTS:

13

May I ask -Are these --

Justice Alito.

14

JUSTICE ALITO:

May I ask you to

15

respond to what some people will say about this

16

Court if we rule in your favor?

17

And what they will say is that whether

18

Title VII should prohibit discrimination on the

19

basis of sexual orientation is a big policy

20

issue, and it is a different policy issue from

21

the one that Congress thought it was addressing

22

in 1964.

23

And Congress has been asked repeatedly

24

in the years since 1964 to address this

25

question.

The Equality Act is before Congress

Heritage Reporting Corporation

 Official - Subject to Final Review
22
1

right now.

2

act on these requests.

3

this up and interprets this 1964 statute to

4

prohibit discrimination based on sexual

5

orientation, we will be acting exactly like a

6

legislature.

7

Congress has declined or failed to
And if the Court takes

We might as well just take the

8

Equality Act and issue that as our opinion and

9

say, as Judge Posner said, that the courts need

10

to intervene on questions like this when the

11

legislative branch simply will not do so.

12
13

What would we -- how would we respond
to that question?

14

MS. KARLAN:

Well, the fact that a

15

loose cannon like Judge Posner says, "do

16

whatever you feel like" is not what we're asking

17

for.

18

"because of sex" and you ask, in 1964, what did

19

those words mean?

20

differently from women.

21

We're saying, if you read the words

They meant treating men

So if in 1964 it would be

22

discrimination to fire a woman who wanted to --

23

you know, a woman who enjoyed sewing, and there

24

is a famous case, it's the foundational case on

25

sexual orientation where they fired a man who

Heritage Reporting Corporation

 Official - Subject to Final Review
23
1

said --

2

JUSTICE ALITO:

3

MS. KARLAN:

4

JUSTICE ALITO:

We will --

-- his body was -We would not be

5

deciding a major policy question that was not in

6

Congress's mind in 1964, and then Congress has

7

repeatedly failed to address in the years since

8

then?

9

MS. KARLAN:

10

in Oncale.

11

PriceWaterhouse.

12

--

No more than what you did

No more than what you did in
No more than what you did in

13

JUSTICE BREYER:

14

MS. KARLAN:

15

JUSTICE BREYER:

All right.

Newport News.
Is there -- is there

16

-- in my mind, there are three basic parts to

17

this case on the other side, to language.

18

You've dealt with that.

19

The parade of horribles, you have

20

dealt with that.

21

that Alito is bringing up in one form, as it

22

comes out of the -- out of the briefs, as I read

23

it in your opponent's brief.

24
25

And the third one is the one

I would put it in these terms.
Imagine a statute that says policemen, dah, dah,

Heritage Reporting Corporation

 Official - Subject to Final Review
24
1

dah, must pay damages.

2

That doesn't apply to German policemen.

3
4

MS. KARLAN:

Passed a long time ago.

Doesn't apply to what

kind of --

5

JUSTICE BREYER:

6

The meaning is the same.

7

policemen.

8

them.

9

To German policemen.
German policemen are

But the statute doesn't apply to

How do we know?

Well, we know through

10

a lot of history, dah, dah, dah.

11

that's the -- that's the box in which I put the

12

argument that Justice Alito made.

13

serious legal argument, and the argument is that

14

at the time Congress wouldn't have dreamt of

15

this.

16

apply, they meant to exclude the gays and

17

transgender.

18

clear answer to that question.

19

MS. KARLAN:

Okay?

Now,

It's a

And, therefore, the words, though they

Now, what I need to hear is a

I think the way to think

20

about this is to ask about the specific behavior

21

that's at issue, which is a man dates a man, and

22

then ask:

How does that fit within the

23

language?

And the best example I can give --

24

JUSTICE BREYER:

25

MS. KARLAN:

It fits.

No, I'm --

Heritage Reporting Corporation

 Official - Subject to Final Review
25
1

JUSTICE BREYER:

2

MS. KARLAN:

3

I give you it fits.

I'm -- I'm about to

explain why --

4

JUSTICE BREYER:

5

MS. KARLAN:

Yeah.

-- it fits.

Which is the

6

idea was that people should not be denied jobs

7

that they're qualified to do, award-winning

8

advocates for child services like Gerald Bostock

9

should not be denied a job, because they are a

10

man who does something that if they were a

11

woman, would cause no problems at all.

12

So just to give an example from the

13

first sex discrimination case this Court had,

14

which was the Phillips against Martin Marietta

15

case, a woman who has children at home should

16

not be denied a job that a man who has children

17

at home.

18

Now, all you have to do is say those

19

words apply also if it is a woman who has a wife

20

at home --

21

CHIEF JUSTICE ROBERTS:

22

MS. KARLAN:

23

CHIEF JUSTICE ROBERTS:

Counsel, I --

-- rather than children.
Several, I

24

think about 23, states have been passing laws to

25

address these -- these issues.

And I don't know

Heritage Reporting Corporation

 Official - Subject to Final Review
26
1

how many of them, but I think it's a big part of

2

them, when they do extend the coverage against

3

discrimination on the basis of sex to sexual

4

orientation, transgender, they also include an

5

exemption for religious organizations.

6

Now, if we're going to be extending

7

the -- the understanding of what sex

8

encompasses, and I know your argument --

9
10

MS. KARLAN:

Yeah.

CHIEF JUSTICE ROBERTS:

-- that that's

11

not doing that, how do we address that other

12

concern, that at least, I think almost every

13

state legislature that has extended it has felt

14

compelled to address?

15

MS. KARLAN:

Well, I -- I -- I would

16

say three things about that.

17

Court has already created an exemption for

18

sincere religious belief for a large category of

19

employers through the ministerial exception.

20

The first is this

The second is that Congress balanced

21

these issues and has rebalanced them several

22

times in the co-religionist exception.

23

The third thing I would say is to

24

understand this in context, which is 85 percent

25

of American employers are not covered by Title

Heritage Reporting Corporation

 Official - Subject to Final Review
27
1

VII at all.

2

have religious objections to hiring someone who

3

is gay, they're free to continue doing that.

4

So as to those employers, if they

And the fourth is to make it very

5

clear that the question is not whether people

6

have religious objections to homosexuality; it's

7

whether they have religious objections to hiring

8

someone who is gay or lesbian.

9

many employers whose own religious beliefs would

And there are

10

tell them this would be immoral for them, who

11

have no problem hiring gays and lesbians who are

12

qualified to do a job.

13

If I could just ask the Court to do

14

one thing in thinking back to 1964, it is to

15

look at the two foundational opinions on which

16

everybody has played a game of telephone ever

17

since.

18

It's like your opinion last term in

19

Argus Media, where you ask where did the idea

20

that homosexuality wasn't covered come from?

21

came from first a case where a gay black man

22

said he was being treated worse than gay white

23

men.

24

case.

25

who was fired because -- who was denied a job

It

It wasn't even a sexual discrimination
The second one came from a straight man

Heritage Reporting Corporation

 Official - Subject to Final Review
28
1

because he said his hobby was sewing.

2

employer said:

3

bet you're gay.

4

And the

That's an effeminate hobby, so I

If you look at the reasoning in those

5

cases, you will realize that it was not until

6

Hively that any court did a careful reading of

7

the statute using contemporaneous methods of

8

textual interpretation --

9

JUSTICE ALITO:

10

MS. KARLAN:

But you gave your --

-- and since then a

11

majority of justices -- I mean a majority of

12

judges have held that sexual orientation is a

13

subset of sex discrimination.

14

JUSTICE ALITO:

Justice Breyer

15

characterized what I said earlier as conceding

16

that sexual orientation discrimination fits the

17

words of Title VII, but that we should take a

18

broader view of what Congress had in mind.

19

But that was not -- that was not the

20

premise of my argument.

21

the parties have in their briefs, have all of

22

these comparisons, and they will make your head

23

spin if you -- if you try to figure them all

24

out.

25

And your core -- the --

But let me just go to your core one,

Heritage Reporting Corporation

 Official - Subject to Final Review
29
1

which you began with today.

2

to other men.

3

is attracted to men; she is not fired.

4

that's all you need to look at.

5

discrimination on the basis of sex, right?

A man is attracted

He's fired, let's say.

6

MS. KARLAN:

7

JUSTICE ALITO:

A woman
You say

That's

Yes.
Okay.

That's not --

8

that's not correct, because there are two

9

possible explanations for what happened there.

10

It could be based on sexual orientation, or it

11

could just be based on the fact that the

12

employer wants -- does not want to hire men.

13

Now, if you add in two other cases,

14

that a man who is attracted to women, not fired,

15

a woman who's attracted to women, is fired, then

16

you have a much better idea the basis for the

17

discrimination.

18

It's not sex.

19

And it's sexual orientation.

MS. KARLAN:

But in a case like the

20

two cases before this Court where the employer

21

had hired these men and they were already there,

22

the supposition you made in your question

23

doesn't apply, which is we know this is an

24

employer who's willing to hire men.

25

Indeed, the employer in Gerald -- I

Heritage Reporting Corporation

 Official - Subject to Final Review
30
1

mean the employer in Don Zarda's case had only

2

men as skydiving instructors.

3

a man who wants to dates a woman and he -- I

4

mean a man who wants to date a man and he does

5

not fire a woman who wants to date a man --

6

JUSTICE ALITO:

So when he fires

The -- the point is

7

that discrimination on the basis of sex in the

8

sense that Congress understood it in 1964 is a

9

different concept from discrimination on the

10

basis of sexual orientation.

11

MS. KARLAN:

12

JUSTICE ALITO:

Well, in -- in 19 -And that's what you're

13

fighting.

14

of what Congress understood sex to mean and what

15

everybody understood --

You're trying to change the meaning

16

MS. KARLAN:

17

JUSTICE ALITO:

18
19

I -- I'm --- sex to mean in

1964.
MS. KARLAN:

-- not trying to change

20

that at all.

21

and a woman both wanted to sew and you fire the

22

man who loves sewing and you don't fire the

23

woman who loves sewing, that's discrimination

24

pure and simple, sex discrimination.

25

fire a -- if you fire the man who -- thank you.

I'm simply saying that if a man

Heritage Reporting Corporation

If you

 Official - Subject to Final Review
31
1
2

CHIEF JUSTICE ROBERTS:

Thank you,

counsel.

3

Counsel.

4

(Laughter.)

5

CHIEF JUSTICE ROBERTS:

6

ORAL ARGUMENT OF JEFFREY M. HARRIS

7

ON BEHALF OF THE RESPONDENT IN 17-1618

8
9
10

Sorry.

AND THE PETITIONERS IN 17-1623
MR. HARRIS:

Mr. Chief Justice, and

may it please the Court:

11

(Laughter.)

12

CHIEF JUSTICE ROBERTS:

13

MR. HARRIS:

Touché.

In -- in 1982, Wisconsin

14

became the first state in the country to pass a

15

law banning discrimination because of sexual

16

orientation in private employment.

17

proponents of that law celebrated its passage as

18

a landmark achievement for gay rights.

19

The

According to the plaintiffs here,

20

however, Wisconsin's landmark law actually had

21

little, if any, practical impact because

22

Congress had already banned sexual orientation

23

discrimination nationwide, 18 years earlier in

24

the Civil Rights Act of 1964.

25

To quote Judge Lynch's dissent below,

Heritage Reporting Corporation

 Official - Subject to Final Review
32
1

Congress did no such thing.

2

orientation are independent and distinct

3

characteristics, and sexual orientation

4

discrimination by itself does not constitute

5

discrimination because of sex under Title VII.

6
7

That's just as true today as it was in
1964.

8
9

Sex and sexual

The core error in the Second Circuit's
holding is actually quite similar to the error

10

that led this Court to reverse in Oncale.

11

Oncale, the Fifth Circuit had held that same-sex

12

harassment claims were categorically excluded

13

from Title VII.

14

and held that such claims may well be

15

cognizable, as long as the plaintiff meets all

16

requirements of the statute, especially what

17

this Court called the "critical inquiry into

18

whether members of one sex were being treated

19

worse than members of the other sex."

20

In

This Court correctly reversed

This case is just the mirror image of

21

Oncale.

22

adopted a categorical exclusion, the Second

23

Circuit adopted a rule of per se inclusion in

24

which plaintiffs alleging sexual orientation

25

discrimination receive a free pass around the

Whereas the lower courts in Oncale

Heritage Reporting Corporation

 Official - Subject to Final Review
33
1

critical inquiry into whether men and women are

2

being treated differently because of their sex.

3

In short, the Second Circuit simply

4

changed the ultimate question from sex to sexual

5

orientation.

6

have same sex attractions or partners, a

7

stand-alone allegation of sexual orientation

8

discrimination cannot, without more, show

9

discriminatory treatment --

10

But because both men and women may

JUSTICE SOTOMAYOR:

Excuse me.

Can I

11

understand your argument in context?

12

answer the question.

Employer looks at a man

13

who applies and says:

One of my hobbies is

14

sewing.

15

effeminate hobby.

16

I'm not hiring you.

17

And the employer says:

Let's

That's an

You may be gay.

You're --

So is that a mixed motive case?

And

18

-- and are we going to be trying somehow to

19

parse that there's some sort of substantial

20

legal difference between the belief that you're

21

too effeminate or that a lesbian is too macho,

22

whichever, from your attracted to the other sex?

23

How do you tease that out?

24
25

MR. HARRIS:

Justice Sotomayor, I

don't disagree that there will be tough cases at

Heritage Reporting Corporation

 Official - Subject to Final Review
34
1

the margins, but the problem with what the

2

Second Circuit did is they glossed over those

3

hard questions and said:

4

adopt --

5
6

JUSTICE SOTOMAYOR:

9

Well, aren't you

--

7
8

We're just going to

MR. HARRIS -- a per se rule that if
you -JUSTICE SOTOMAYOR:

-- aren't you

10

glossing over the BFOQ, meaning, what it seems

11

like you're confusing is three concepts, Title

12

VII has causation and injury.

13

firing, that's the injury.

14

Not hiring, not

Now the question is what caused that?

15

Being too effeminate, that's a sexual trait;

16

being attracted to, if you're a man, to another

17

man, that's a sexual trait.

18

those two things.

19

It is caused by

Aren't then we moving to the third

20

question, which is, is there a reason

21

independent of your religious belief or your

22

innate hatred and invidious discrimination for

23

why you're treating this person differently?

24

And if there is, you have a BFOQ.

25

have to hire them.

You don't

You can fire them.

Heritage Reporting Corporation

 Official - Subject to Final Review
35
1

But if there isn't, they're doing

2

their job, and they're not bothering you, and

3

they are not bringing their boyfriend or

4

girlfriend, if it's the opposite sex, to a

5

function to your private home because you don't

6

want them there or whatever else is offensive to

7

you, they're just working.

8
9

So I don't understand why those are
hard cases.

10

MR. HARRIS:

11

JUSTICE SOTOMAYOR:

Well -Any harder than

12

what the law applies for race discrimination,

13

for religious discrimination, for any of the

14

other forms, national origin discrimination.

15

MR. HARRIS:

So, Your Honor, as this

16

Court has emphasized in cases such as Johnson

17

Controls, the BFOQ exception has been

18

interpreted extremely narrowly, and so I think

19

it -- it -- it is important as this Court

20

emphasized in Oncale, the Court emphasized

21

several times the need to ensure strict

22

compliance with all requirements of the statute,

23

including the discrimination element, because

24

once you find discrimination, it gets very hard

25

to make out the BFOQ.

Heritage Reporting Corporation

 Official - Subject to Final Review
36
1

JUSTICE GINSBURG:

2

MR. HARRIS:

3

JUSTICE GINSBURG:

Would Oncale --

So you don't -Would Oncale have

4

come out differently if the employer said, I

5

don't hire women to work on platforms, the only

6

people I hire are men?

7

MR. HARRIS:

Well, that -- that

8

obviously would have been discriminatory against

9

the women seeking --

10

JUSTICE GINSBURG:

11

MR. HARRIS:

12

JUSTICE GINSBURG:

13

But it's not --

-- the job.
-- the woman who is

suing --

14

MR. HARRIS:

15

JUSTICE GINSBURG:

Right.
-- it's the male

16

who is being harassed by other men.

17

employer's defense is, you can't compare what

18

I'm doing to someone who discriminates on the

19

basis of sex between men and women because I

20

don't hire women at all.

21

MR. HARRIS:

And the

So it's, of course --

22

it's -- it's not a complete defense or even a

23

defense to say, I treat it -- in cases like

24

Martin -- like Martin Marietta, it was not a

25

defense for that employer to say, because I

Heritage Reporting Corporation

 Official - Subject to Final Review
37
1

hired other women, it excuses this.

2
3

So the answer to your question is that
would not be a defense.

4

But --

JUSTICE GINSBURG:

That -- that was --

5

Martin Marietta was different because it was the

6

plus.

7

apply to men.

The plus applied to women and didn't
So you had that distinction.

8

Well, take PriceWaterhouse.

9

the employer said, I don't want any men who are

Suppose

10

not sufficiently macho, and I don't want any

11

women who are not sufficiently feminine.

12

If they -- the -- PriceWaterhouse said

13

we will treat a man who isn't sufficiently macho

14

the same way we treated Ann Hopkins, there would

15

be, as I understand your argument, no sex

16

discrimination.

17

MR. HARRIS:

I -- I disagree with

18

that, Justice Ginsburg.

19

best way to think of PriceWaterhouse is, when an

20

employer has certain traits or characteristics

21

that it values in promotion and hiring and

22

discharge decisions, there can't be a list of

23

criteria for men and a list of criteria for

24

women.

25

The way -- I think the

So the Solicitor General offered the

Heritage Reporting Corporation

 Official - Subject to Final Review
38
1

hypothetical that Your Honor said.

2

in that situation, there would be two sets of

3

criteria.

4

meet the women's criteria and a woman who

5

doesn't meet the men's criteria would have a

6

claim there.

7

And -- and

And so maybe both a man who doesn't

But -- but it wouldn't be -- it would

8

not excuse it just to say that there are

9

different criteria for each set.

10

JUSTICE GINSBURG:

11

JUSTICE BREYER:

12

Catholic, Jew, want to get married.

13

fires the Catholic.

14

Catholics.

15

obviously I can use the same example with race,

16

which is famous.

17
18

He is not against
And

there would be no claim?
MR. HARRIS:

There would, in fact, be

a claim, in both -JUSTICE BREYER:

22

MR. HARRIS:

23

JUSTICE BREYER:

25

Employer

He's against intermarriage.

21

24

Suppose -- suppose a

I take it from your argument that

19
20

Why?

Well --

Why?

-- situations.
Why?

Why?

All

right.
If there is a claim there, why isn't

Heritage Reporting Corporation

 Official - Subject to Final Review
39
1

there here?

2

MR. HARRIS:

3

the only difference between --

4
5
6

So in the race context,

JUSTICE BREYER:

I didn't say race.

said religion.
MR. HARRIS:

Right.

In -- in the --

7

in the context of religion, which first of all

8

religion is defined as the only one other than

9

pregnancy which has an expansive definition.

10

JUSTICE BREYER:

11

MR. HARRIS:

No --

Yes, it would be

12

religious discrimination because between a

13

couple that is Catholic and Jewish and two

14

Catholics, the only difference between those

15

couples is their religion.

16

I

JUSTICE BREYER:

And the only

17

difference between the two couples here is that

18

one is a man rather than the woman.

19

MR. HARRIS:

Except that it also

20

introduces an independent characteristic, which

21

can be completely --

22

JUSTICE BREYER:

23

MR. HARRIS:

24

JUSTICE BREYER:

25

All right.

-- neutral to men -So does it there --

why I'm not against Catholics, I am not against

Heritage Reporting Corporation

 Official - Subject to Final Review
40
1
2
3

Jews, I am against inter-marriage?
MR. HARRIS:

I -- if -- if that person

or actor exists, I think it's foreign to our --

4

JUSTICE BREYER:

5

MR. HARRIS:

6

JUSTICE BREYER:

Oh, it exists.

-- case law.
I promise you.

There

7

are many people, at least in the religious

8

context, who are against inter-marriage and are

9

not against Catholics or Jews.

10
11
12
13

That's not an

unrealistic example.
And all I find in that example is an
identical case to this one.
MR. HARRIS:

And I -- I think that --

14

I do think that most of the -- most people who

15

would oppose any sort of interreligious marriage

16

would do so for religious reasons.

17

also note in the --

18

JUSTICE KAGAN:

And I would

Mr. Harris, I think --

19

I think what all of these hypotheticals are

20

about is that in many of our cases, what you

21

find is what you said, what did you say,

22

independent characteristics?

23

our cases.

24
25

They're all over

If you take Manhart, which is the
Seminole case, Manhart was all about an

Heritage Reporting Corporation

 Official - Subject to Final Review
41
1

independent characteristic.

2

expectancy.

3

into some different sort of analysis where we

4

don't just say would the same thing have

5

happened to you if you were a man or would the

6

same thing have happened to you if you were a

7

woman, because we had an independent

8

characteristic, which was life expectancy.

9

It was about life

But we didn't say, oh, we're going

And -- and so the same thing here.

So

10

all of these hypotheticals are really about the

11

same thing, which is that Manhart gave us a very

12

simple test, and Manhart said, what you do when

13

you look to see whether there is discrimination

14

under Title VII is, you say, would the same

15

thing have happened to you if you were of a

16

different sex?

17

And, Ms. Karlan made all the -- you

18

know, went through all the ways in which,

19

obviously, the -- the same thing would not have

20

happened to you if you were a different sex, you

21

being her client.

22

So, I mean, that's the question.

23

There are independent characteristics in all

24

these cases.

We have insisted on this extremely

25

simple test.

If you apply that test, I guess it

Heritage Reporting Corporation

 Official - Subject to Final Review
42
1

seems to come out against you.

2

MR. HARRIS:

A couple things.

First,

3

let me address Manhart and then address --

4

address the test more generally.

5

So in Manhart, this Court noted that

6

the -- the policy wasn't just about longevity.

7

That -- that employer made no attempt to do any

8

sort of bona fide underwriting or life

9

expectancy estimates.

10

It simply charged the women more.

So

11

even a woman and a man, if they each had a

12

75-year life expectancy, they would be charged

13

different rates, even though they were totally,

14

similarly situated with respect to that.

15

JUSTICE KAGAN:

Yes, but Manhart was

16

very clear that women in the aggregate were

17

probably going to be fine under this policy,

18

because women in the aggregate do have a higher

19

life expectancy.

20

Manhart makes clear why another aspect of your

21

argument is -- is wrong, because you say, well,

22

we have to look at these big classes.

23

I mean, I think actually

Well, there was nothing wrong in

24

Manhart when you looked at big classes.

25

became wrong in Manhart was when you looked at

Heritage Reporting Corporation

What

 Official - Subject to Final Review
43
1

individuals.

2

which Manhart insisted one do, one should do,

3

and when you apply the test that Manhart

4

insisted you apply, would this woman have been

5

treated differently if she were a man?

6

answer was yes.

7

And when you look at individuals,

The

And, similarly, I guess I'm just going

8

to ask you again, if you applied that test,

9

don't you lose?

10

And if you do lose, why should

we not apply that test?

11

MR. HARRIS:

Here's the problem with

12

the test.

13

Martin Marietta, the comparator test makes

14

perfect sense because you know exactly what

15

you're testing for, so the comparator helps you

16

draw inferences from the evidence.

17

In Manhart, in Newport News, in

The problem here is, unless the

18

plaintiffs can point to something outside the

19

comparator to tell us why we need to hold sexual

20

orientation -- to -- to tell us why that is

21

irrelevant, they're -- they're just assuming

22

their conclusion.

23

So their comparator would say, you

24

would ask if a gay man has suffered sex

25

discrimination by comparing him to a

Heritage Reporting Corporation

 Official - Subject to Final Review
44
1

heterosexual woman, which that version of the

2

comparator can't isolate if it's the sex or the

3

sexual orientation.

4

And so I do think, unless they can

5

point to something outside the comparator, to

6

justify putting sexual orientation off limits --

7

JUSTICE GORSUCH:

8

MR. HARRIS:

9

Well --

-- the comparator doesn't

-- doesn't answer the ultimate question.

10

JUSTICE GORSUCH:

Well, it certainly

11

may not answer -- isolate the sole or proximate

12

cause, but I -- I think the -- the argument on

13

the other side is the language of the statute

14

has a but-for causation standard, a more

15

generous causation standard.

16

So perhaps there are two causal

17

factors at work here.

18

in the narrow sense of -- of -- of biological

19

gender?

20

But isn't one of them sex

What's -- what's your response to that?
MR. HARRIS:

Yeah.

So in the -- what

21

I'm arguing is simply that sexual orientation

22

standing alone is not, without more, sex

23

discrimination.

24

me of the question one more time?

25

And so the -- I'm sorry, remind

JUSTICE GORSUCH:

Sure.

So the --

Heritage Reporting Corporation

 Official - Subject to Final Review
45
1

MR. HARRIS:

2

JUSTICE GORSUCH:

Right.
Your response to

3

Justice Kagan was, I need to focus on sexual

4

orientation because that's the sole or primary

5

causal factor here for the firing.

6

And I think the response from the

7

other side is:

8

generous causal --

9

But the statute has a more

MR. HARRIS:

10

Okay.

JUSTICE GORSUCH:

-- formulation, a

11

but-for causal formulation, so perhaps you're

12

right that, at some level, sexual orientation is

13

surely in -- in play here.

14

in play here because of the change of the first

15

variable?

16

MR. HARRIS:

17

JUSTICE GORSUCH:

But isn't sex also

Right.

So I think --

And isn't that

18

enough?

19

a material causal factor or some formulation

20

like that, not the sole cause, not the proximate

21

cause, but a cause.

22

It -- you know, the statute talks about

And one -- one would -- in what -- in

23

what linguistic formulation would one -- would

24

one say that sex, biological gender, has nothing

25

to do with what happened in this case?

Heritage Reporting Corporation

 Official - Subject to Final Review
46
1

MR. HARRIS:

Yes, Your Honor.

So what

2

you're referring to, I believe, is the

3

motivating factor language.

4

just referred to as the sort of benchmark

5

scenario, sex would not be a motivating factor

6

there.

7

And so, in what I

If you look at Mr. Bostock's

8

complaint, for example, and you strip out any

9

mention of his sex as being a man, again, we --

10

we dispute the allegations, of course, but it

11

would still make perfect sense.

12

stripped out any reference to his sexual

13

orientation, it would make little, if any,

14

sense.

15

But if you

And so in Price Waterhouse, this Court

16

helped give guidance about how to do the

17

motivating factor analysis and said imagine you

18

gave the employer truth serum and said what were

19

your true reasons for doing this?

20

them be the characteristic?

21

call that -- that benchmark scenario --

22

JUSTICE GORSUCH:

23

MR. HARRIS:

24

JUSTICE GORSUCH:

25

serum, okay?

Would one of

And what I would

All right, let's --

-- sex would not be -Let's do truth

Wouldn't -- wouldn't the employer

Heritage Reporting Corporation

 Official - Subject to Final Review
47
1

maybe say it's because this was -- this person

2

was a man who liked other men?

3

first part sex?

4

MR. HARRIS:

And isn't that

Your Honor, I think in

5

common parlance, we would call that a same-sex

6

attraction.

7

some reason to think that employer -- and some

8

of the amicus briefs say that much

9

discrimination against gay and lesbian people is

10

-- is based on sort of animus against gay men or

11

lesbian women.

12

And I want to be clear, if there is

If there's some reason to believe that

13

in that scenario, then that may well be a

14

motivating factor, but when you simply have an

15

employee saying I was fired because of my sexual

16

orientation, that alone does not show that --

17

what -- what this Court called in Oncale the

18

critical -- critical issue of distinguishing

19

between men and women.

20

JUSTICE KAVANAUGH:

Are you drawing a

21

distinction between the literal meaning of

22

"because of sex" and the ordinary meaning of

23

"because of sex"?

24

supposed to think about ordinary meaning in this

25

case?

And, if so, how are we

Heritage Reporting Corporation

 Official - Subject to Final Review
48
1

MR. HARRIS:

I don't see a difference

2

between the two as far as -- and the last point,

3

running out of time, I think to go back to some

4

of the questions about bathrooms and fitness

5

standards, I want to be clear, under the

6

Plaintiff's simple but-for test, if you truly

7

simply apply the Manhart test or -- in the way

8

they want to do it, I don't see any way that

9

single-sex bathrooms or showering facilities --

10

JUSTICE GINSBURG:

You have to have

11

someone who's injured.

12

who's injured.

13

bathrooms is who is the complaining plaintiff?

14

And for most people, they would not be

15

complaining plaintiff.

16

eligible because they're not injured by the

17

separate bathrooms.

18

You have to have someone

And the response to the

They would not be

In fact, they like it.

MR. HARRIS:

Yes, Your Honor,

19

although, of course, if someone, for example, is

20

fired, imagine a factory with hazardous

21

materials where people shower after work and to

22

-- to clean up, and a -- a man used the women's

23

bathroom and is fired.

24

certainly be injured.

25

friend's test, they would say just change the

That person would
And I think, under my

Heritage Reporting Corporation

 Official - Subject to Final Review
49
1

sex and that person wouldn't have been fired.

2

But here's the problem:

That's not a

3

similarly situated person.

4

would say that a neutral policy, such as use the

5

showering facility that corresponds to your

6

biological sex, the man who uses the women's

7

shower, the -- the comparator is not a woman who

8

uses the woman's shower.

9

the men's shower, because otherwise you're not

10

-- otherwise you're -- you're loading the dice

11

or you're not looking at similarly situated

12

people.

13

The proper analysis

It's a woman who uses

And the last thing I'd like to get

14

into is this Court, in Espinoza, Footnote 2 -- I

15

think there was some discussion of the states

16

early on.

17

origin discrimination, this Court said the state

18

practice interpreting parallel laws is highly

19

instructive.

20

22 or 23 states have done this by legislation

21

and zero have done it by judicial

22

interpretation, just shows that this isn't belt

23

and suspenders.

24

and sexual orientation both in 1964 and today

25

are different concepts that mean different

In Espinoza, in interpreting national

And so I -- I think the fact that

It's not redundancy, that sex

Heritage Reporting Corporation

 Official - Subject to Final Review
50
1

things, and common users of language both today

2

and in 1964 would have recognized that.

3

JUSTICE SOTOMAYOR:

4

MR. HARRIS:

5

JUSTICE SOTOMAYOR:

Can they ever be?

I'm sorry?
Can they ever be?

6

Justice -- justice -- Judge Lynch below said

7

that homophobic stereotypes are unrelated to

8

sexual orientation.

9

us shows that that's just not true, that

The very first case before

10

homosexual orientation is highly correlated to

11

people's stereotypes.

12

If you're too effeminate a man, you're

13

a homosexual.

14

you're a lesbian.

15

find it somewhat difficult to unwind the two.

16

If not difficult, nearly impossible.

17

If you're too macho a woman,
Happens all the time.

MR. HARRIS:

So I

It often is, Your Honor,

18

and it's a sad reality that homophobic slurs are

19

often directed at heterosexual or homosexual

20

people to -- to criticize --

21

JUSTICE SOTOMAYOR:

22
23

And that's okay

under your theory?
MR. HARRIS:

It is absolutely not,

24

Your Honor, if that person can show

25

discrimination because of sex, but what -- what

Heritage Reporting Corporation

 Official - Subject to Final Review
51
1

the courts can't do is what the Second Circuit

2

did and the Seventh Circuit did in Hively.

3

Footnote 11 of the Zarda opinion is very candid

4

about this where it talks about operationalizing

5

its holding.

6

to change the jury instructions to tell juries

7

that if they find sexual orientation

8

discrimination, they've now found sex

9

discrimination.

10

The Second Circuit is just going

So, Justice Sotomayor, I don't

11

disagree that there will be difficult cases at

12

the margins, but the answer is not to change the

13

ultimate inquiry and replace it with something

14

that Congress never could have intended.

15

JUSTICE ALITO:

Well, if you have a

16

minute, let me ask you this:

17

the decisionmaker in a particular case is behind

18

the veil of ignorance and the subordinate who

19

has reviewed the candidates for a position says:

20

I'm going to tell you two things about this

21

candidate.

22

the job, and this candidate is attracted to

23

members of the same sex.

24
25

Let's imagine that

This is the very best candidate for

And the employer says:

Okay, I'm

going -- I'm not going to hire this person for

Heritage Reporting Corporation

 Official - Subject to Final Review
52
1

that reason.

2

Is that discrimination on the basis of

3

sex, where the employer doesn't even know the

4

sex of the individual involved?

5

MR. HARRIS:

6

CHIEF JUSTICE ROBERTS:

7

MR. HARRIS:

May I?
Please.

That not be

8

discrimination on the basis of sex.

9

that's exactly right.

And I think

If you get a resume that

10

-- that has a name that could be male or female,

11

and there's something on there suggesting that

12

the person is gay and they're not hired for that

13

reason, that would be sexual orientation

14

discrimination that has absolutely nothing

15

whatsoever to do with sex discrimination.

16

CHIEF JUSTICE ROBERTS:

17
18

Thank you,

counsel.
General Francisco.

19

ORAL ARGUMENT OF GEN. NOEL J. FRANCISCO

20

FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING

21

AFFIRMANCE IN 17-1618 AND REVERSAL IN 17-1623

22

GENERAL FRANCISCO:

23

and may it please the Court:

24
25

Mr. Chief Justice,

The issue is not whether Congress can
or should prohibit employment discrimination

Heritage Reporting Corporation

 Official - Subject to Final Review
53
1

because of sexual orientation.

2

rather, is whether it did so when it prohibited

3

discrimination because of sex.

4

The issue,

It did not for two reasons.

First,

5

sex means whether you're male or female, not

6

whether you're gay or straight.

7

all gay and men -- gay men and women exactly the

8

same regardless of their sex, you're not

9

discriminating against them because of their

10
11

So if you treat

sex.
Second, any doubt is removed by the

12

history of Title VII and related statutes since,

13

in the face of unanimous interpretation by the

14

courts and the executive branch that persisted

15

for decades, Congress has repeatedly extended

16

other statutes to specifically cover sexual

17

orientation, yet has refused to do so with

18

respect to Title VII.

19
20

The employee's position would nullify
that conscious choice.

21

And Justice Gorsuch, if I could first

22

address your question about our -- my friend on

23

the other side's argument about the literal

24

meaning of the statute, well, there are

25

essentially two responses to that argument.

Heritage Reporting Corporation

And

 Official - Subject to Final Review
54
1

they're related.

2

The first is that under that

3

interpretation, you actually couldn't fire a man

4

for using the woman's restroom because in some

5

metaphysical sense, that man's sex is a but-for

6

cause for his firing.

7
8
9

The reason --

JUSTICE GINSBURG:
injured.

But he's not

He's not injured.
GENERAL FRANCISCO:

Well, he's fired,

10

Your Honor, in my hypothetical.

11

why that is permitted --

12
13
14

JUSTICE GORSUCH:

And the reason

I think counsel

acknowledged all of that.
GENERAL FRANCISCO:

Yeah.

And the

15

reason why that's permitted, though, to do that,

16

is because you're treating -- and this is my

17

second point -- you're treating him the -- the

18

same as a similarly situated woman; that is, a

19

woman who uses the men's room.

20

And that's always the critical

21

analysis when you're trying to determine if

22

somebody is being --

23

JUSTICE GINSBURG:

24

GENERAL FRANCISCO:

25

Is it --- discriminated

against because --

Heritage Reporting Corporation

 Official - Subject to Final Review
55
1

JUSTICE GINSBURG:

2

GENERAL FRANCISCO:

3

JUSTICE GINSBURG:

Is it --- of their sex.
Is it -- let me

4

give you a not hypothetical case.

5

hires only women as cabin attendants, but it

6

fires them if they marry.

7

is whatever we're doing, it's not sex

8

discrimination against women because we don't

9

hire any men at all, married or unmarried.

An airline

The airline's defense

10

That case, I take it from your brief,

11

you would say there's no sex -- no violation of

12

Title VII?

13

GENERAL FRANCISCO:

Well -- well, no,

14

Your Honor, because I think the problem is that

15

the prohibition on hiring any male flight

16

attendants would in and of itself violate --

17

JUSTICE GINSBURG:

That -- but --

18

GENERAL FRANCISCO:

-- Title VII.

19

JUSTICE GINSBURG:

But the male is not

20

complaining.

21

was fired because she married.

The complainant is the woman who

22

GENERAL FRANCISCO:

Okay.

23

JUSTICE GINSBURG:

The male

So then --

24

complainant might have a very good case, but my

25

case --

Heritage Reporting Corporation

 Official - Subject to Final Review
56
1

GENERAL FRANCISCO:

2

JUSTICE GINSBURG:

-- is the woman.

3

GENERAL FRANCISCO:

And my problem

Right, and my --

4

with the hypothetical is that the way it is

5

constructed, there is, you know, presumably no

6

men that have the job in the first place.

7

if you say that in theory men should be able to

8

have the job, then the question would be would

9

you also have fired men who were married?

10

Now,

And if you only fired women who were

11

married but not men who were married, that would

12

plainly be a violation of Title VII because

13

you're treating similarly situated people

14

differently.

15
16

JUSTICE SOTOMAYOR:

General, that --

that's an --

17
18

But to finish --

GENERAL FRANCISCO:

-- my answer to

Justice --

19

JUSTICE SOTOMAYOR:

-- an impossible

20

idea to -- to put into practice by taking out

21

the sex.

22

JUSTICE GINSBURG:

May I just continue

24

GENERAL FRANCISCO:

Yes, Your Honor.

25

JUSTICE GINSBURG:

The hypothetical is

23

with it?

Heritage Reporting Corporation

 Official - Subject to Final Review
57
1

not a hypothetical.

2

Airlines.

3

that they didn't hire men as cabin attendants.

Its Sprogis against United

And it was given, and not challenged,

4

GENERAL FRANCISCO:

5

JUSTICE GINSBURG:

Right.
But they fired this

6

woman because she married, she didn't look like

7

Cheryl "Fly Me" once she married, she wouldn't

8

be attracted to the male passengers.

9

The court of appeals said, Title VII

10

was meant to strike out the entire spectrum of

11

sex stereotyping, so if this woman was fired

12

because she wasn't -- she would no longer be so

13

attractive to men if she is married, that's sex

14

discrimination.

15

And we don't have to have a -- a -- a

16

male involved.

17

in a very stereotypical way.

18

young and attractive when she married.

19

GENERAL FRANCISCO:

This is a woman who was treated
She is no longer

Your Honor, I --

20

I -- I do think that the question is always, are

21

you treating similarly situated men and women

22

differently.

23

proof are very difficult.

24
25

There are times where issues of

For example, in the PriceWaterhouse
case, Ann Hopkins was fired because she was

Heritage Reporting Corporation

 Official - Subject to Final Review
58
1

aggressive --

2

JUSTICE GINSBURG:

3

GENERAL FRANCISCO:

4

But this was --- because she was

rude to staff --

5

JUSTICE GINSBURG:

-- this was an

6

actual case.

7

given that no males are hiring and no male is

8

complaining.

9

This was an actual case and it was

GENERAL FRANCISCO:

But, Your Honor,

10

the way that actual case was resolved was

11

because the woman had not brought her claim in a

12

timely fashion on the sex discrimination piece.

13

And so the way this Court resolved that decision

14

was it said, all right --

15
16
17
18

JUSTICE GINSBURG:

The -- no.

was -GENERAL FRANCISCO:

-- she is being

treated the same --

19

JUSTICE GINSBURG:

20

this case, never came to this Court.

21

This

GENERAL FRANCISCO:

22

thinking of the wrong case.

23

JUSTICE GINSBURG:

-- never came to

So I guess I'm

Sprogis against

24

United Airlines, Seventh Circuit.

25

JUSTICE KAGAN:

General, could I go

Heritage Reporting Corporation

 Official - Subject to Final Review
59
1

back to your opening statement and particularly

2

to the second part of it?

3

You talked about the history of -- of

4

Title VII and some of the subsequent legislative

5

history, and I guess what strikes me, and I was

6

struck in reading your briefs too, is that the

7

arguments you're making, I would say, are not

8

ones we typically would accept.

9

For many years, the lodestar of this

10

Court's statutory interpretation has been the

11

text of a statute, not the legislative history,

12

and certainly not the subsequent legislative

13

history.

14

And the text of the statute appears to

15

be pretty firmly in Ms. Karlan's corner.

16

you discriminate against somebody, against her

17

client, because of sex?

18

you fired the person because this was a man who

19

loved other men.

Yes, you did.

Did

Because

20

And part of that -- and it only has to

21

be part, we've made very clear there's no search

22

for sole cause in Title VII -- part of that is

23

you fired the person because he was a man.

24

he were a woman, he wouldn't have been fired.

25

If

This is the usual kind of way in which

Heritage Reporting Corporation

 Official - Subject to Final Review
60
1

we interpret statutes now.

We look to laws.

2

don't look to predictions.

We don't look to

3

desires.

4

laws.

5
6

We don't look to wishes.

We

We look to

Why doesn't that mean your argument
fail?

7

GENERAL FRANCISCO:

Because, Your

8

Honor, I think that what our brief attempts to

9

do, at least, is make a straightforward textual

10

argument.

11

sexual orientation.

12

The law distinguishes between sex and

Those are two different traits.

And

13

that's precisely why when Congress wants to

14

prohibit discrimination based on sexual

15

orientation, it doesn't define sex as including

16

sexual orientation.

17

trait.

It lists it as a different

18

JUSTICE GORSUCH:

19

GENERAL FRANCISCO:

20
21

What -- what is -And so under Title

-JUSTICE GORSUCH:

What is your

22

response to the two-comparator problem we've

23

been discussing and the fact that at least one

24

contributing cause appears to be sex?

25

GENERAL FRANCISCO:

Well, Your Honor,

Heritage Reporting Corporation

 Official - Subject to Final Review
61
1

a couple of responses.

2

that one contributing cause is sex.

3

that as long as you're treating gay men and

4

women exactly the same regardless of their sex,

5

the contributing cause is sexual orientation,

6

not sex.

7

First, I don't think
I think

And, two, I think it reflects the fact

8

that sex and sexual orientation are different

9

traits.

And if you do the analysis the way my

10

friends on the other side suggested, you've

11

completely eliminated the distinction between

12

two very different traits and you've -- and

13

you've essentially rendered -- you nullified

14

Congress's very careful decisions in numerous

15

other statutes to specifically protect sexual

16

orientation and gender identities, we'll --

17

JUSTICE SOTOMAYOR:

18

JUSTICE GINSBURG:

Is there anything

GENERAL FRANCISCO:

-- get to in the

19
20
21
22

Is there --

--

next case.
JUSTICE GINSBURG:

-- in this record

23

showing that the employers would not employ

24

lesbian women?

25

GENERAL FRANCISCO:

You know, Your

Heritage Reporting Corporation

 Official - Subject to Final Review
62
1

Honor, in these cases, and this may have been a

2

better question for my colleague, but I think in

3

these cases, the employers have -- in the

4

cases -- the sexual orientation cases, the

5

employers have generally denied that they

6

discriminate based on --

7
8

But all we know on

GENERAL FRANCISCO:

-- their sexual

--

9
10

JUSTICE GINSBURG:

orientation.

11

JUSTICE GINSBURG:

Did this go --

12

the -- the -- the allegation is that the person

13

was discharged when he announced that he was

14

gay.

15

can see that there was a policy on the

16

employer's part of discharging or not --

There's nothing in the record as far as I

17

GENERAL FRANCISCO:

18

JUSTICE GINSBURG:

19

Right.
-- discharging

lesbian women.

20

GENERAL FRANCISCO:

I think that's

21

right.

22

defenses here were, one, I didn't fire him

23

because he was gay, but, two, if you think I

24

did, Title VII doesn't prohibit discrimination

25

based on sexual orientation.

I think basically the employer's

Heritage Reporting Corporation

 Official - Subject to Final Review
63
1

And if I could address lastly the

2

point that the Chief Justice and Justice Alito

3

were raising about so-called legislative

4

updating that Judge Posner suggested, here I

5

think that a judicial ruling would be

6

particularly pernicious because when Congress

7

seeks to expand the scope of Title VII's

8

liability provisions, it typically couples that

9

itself with an expansion of the religious

10

employers exemption to Title VII, precisely

11

because issues of sexual orientation like issues

12

of gender identity raise different issues from a

13

religious liberty perspective.

14

The employee's position here would

15

only do half of that work.

16

scope of liability without giving any

17

consideration to those religious liberty

18

interests on the other side of the balance, and

19

that is precisely why this is the type of issue

20

that is better left to Congress than the courts.

21

It would expand the

Justice Gorsuch, I want to make sure

22

that I fully addressed your -- your textual

23

considerations, though, because I really do

24

think it boils down to the fact that sex and

25

sexual orientation are different traits.

Heritage Reporting Corporation

 Official - Subject to Final Review
64
1

And may I finish my answer?

2

CHIEF JUSTICE ROBERTS:

3

GENERAL FRANCISCO:

Sure.

Title VII

4

prohibits discrimination based on one of those

5

traits, as long as you treat men and women who

6

are similarly situated with respect to the other

7

trait exactly the same, you're not

8

"discriminating" under -- within the meaning of

9

Title VII.

10
11

CHIEF JUSTICE ROBERTS:
counsel.

12

GENERAL FRANCISCO:

13

CHIEF JUSTICE ROBERTS:

14

Thank you,

Thank you.
Five minutes,

Ms. Karlan.

15

REBUTTAL ARGUMENT OF PAMELA S. KARLAN

16

ON BEHALF OF THE PETITIONER IN 17-1618 AND THE

17

RESPONDENTS IN 17-1623

18

MS. KARLAN:

19

Let me start with the question that

Thank you.

20

Justice Ginsburg asked because I think it's

21

illustrative of contemporary sexual orientation

22

discrimination cases.

23

Virtually none of them involve an

24

employer, and neither of the cases before you

25

does, who claims to have an across-the-board

Heritage Reporting Corporation

 Official - Subject to Final Review
65
1

policy of firing both all gay men and all

2

lesbians.

3

What tends to happen, and this case is

4

illustrative of this, is a man who also doesn't

5

conform with some other gender-based stereotypes

6

and who is gay gets fired, which puts them in

7

exactly the position that Justice Sotomayor

8

mentioned, which is really devilishly hard to

9

figure out what's going on here.

10

The second point I just want to leave

11

the Court with is, the entire argument on the

12

other side depends on the idea that men who are

13

gay and women who are lesbians are being treated

14

the same.

15

And that's just not so.
Because if you look at what actually

16

causes the problem, it's the man who says, I

17

married my partner, Bill.

18

worked there had married Bill, he wouldn't --

19

she would not have been fired.

20

If any woman who

And he is.

And you have to look, because the

21

textual language tells you to, at such

22

individual and not at the overall class.

23

JUSTICE SOTOMAYOR:

Ms. Karlan, would

24

you address these -- General's statement at the

25

end?

He -- he goes back to the comparator

Heritage Reporting Corporation

 Official - Subject to Final Review
66
1

should be a woman who -- a -- a man who likes a

2

man and a woman who likes a woman.

3

trying to get to that.

4

MS. KARLAN:

Yes.

You're

I think he -- he is

5

varying two things there.

6

the sex of the employee and, second, he's

7

varying the sex of the person to whom the

8

employee is interested.

9
10
11
12

One, he is varying

And if two things that -JUSTICE SOTOMAYOR:

So give us an

example from a case how you can't do that.
MS. KARLAN:

I'm not sure -- of course

13

you can do it but you don't have to.

14

all you need to do is show that sex played a

15

role here.

16

Because

And if the answer is if a man had --

17

if a woman had come in and said, I like to date

18

men, you wouldn't have fired her, and when a man

19

says, I like to date men, you did, that's enough

20

to show sex discrimination.

21

JUSTICE ALITO:

But what if the

22

decisionmaker makes a decision based on sexual

23

orientation but does not know the biological sex

24

of the person involved?

25

MS. KARLAN:

Well, there is no

Heritage Reporting Corporation

 Official - Subject to Final Review
67
1

reported case that does that.

2

--

3

JUSTICE ALITO:

And I think that

All right.

But what

4

if it happened?

5

hypotheticals of things that may or may not have

6

happened.

7

We have had a lot of

What if that happens?

Is that

8

discrimination on the basis of sex where the

9

decisionmaker doesn't even know the person's

10
11
12
13
14
15
16

sex?
MS. KARLAN:

And -- and how do they

know the person's sexual orientation?
JUSTICE ALITO:

interviewed the candidates tells them that.
MS. KARLAN:

And they are unable to

tell anything about the person's sex?

17

JUSTICE ALITO:

18

MS. KARLAN:

19
20
21

No.

So this is Saturday Night

Live Pat, as -- as an example, right?
JUSTICE ALITO:

Well, I'm not familiar

with that.

22

MS. KARLAN:

23

JUSTICE ALITO:

24

MS. KARLAN:

25

Because somebody who

Okay.
But --

Which is the person named

Pat, and you can never tell whether Pat is a man

Heritage Reporting Corporation

 Official - Subject to Final Review
68
1
2
3

or a woman.
I mean, theoretically that person
might be out there.

But here is the key --

4

JUSTICE ALITO:

5

MS. KARLAN:

Theoretically what?

Theoretically that person

6

might be out there.

7

-- the cases that are brought are almost all

8

brought by somebody who says my employer knew

9

who I was and fired me because I was a man or

10
11

But here is the key:

The

fired me because I was a woman.
Somebody who comes in and says I'm not

12

going to tell you what my sex is, but, believe

13

me, I was fired for my sexual orientation, that

14

person will lose.

15

JUSTICE ALITO:

Well, if that's the

16

case, then I think your whole argument collapses

17

because sexual orientation then is a different

18

thing from sex.

19

MS. KARLAN:

Of course it is.

No one

20

has claimed that sexual orientation is the same

21

thing as sex.

22

somebody is fired --

23

What we are saying is when

JUSTICE ALITO:

Let me amend it.

Your

24

argument is that sex -- discrimination based on

25

sexual orientation necessarily entails

Heritage Reporting Corporation

 Official - Subject to Final Review
69
1

discrimination based on sex.

2

But if it's the case that there would

3

be no liability in the situation where the

4

decisionmaker has no knowledge of sex, then that

5

can't possibly be true.

6

MS. KARLAN:

If there was that case,

7

it might be the rare case in which sexual

8

orientation discrimination is not a subset of

9

sex.

10

But in the case where the person knows

11

the sex of the person that they are firing or

12

refusing to hire, and knows the sex of the

13

people to whom that person is attracted, that is

14

sex discrimination, pure and simple.

15

And it's important to understand that

16

-- and -- and this goes back to something that

17

Justice Ginsburg asked during the opening

18

argument, that discrimination against gay men

19

and discrimination against lesbians is not one

20

thing.

21

And in 1964, if you look at the

22

members of Congress's brief, they will tell you

23

if you looked in the dictionary there was no

24

phrase sexual orientation.

25

That is a modern way of combining two

Heritage Reporting Corporation

 Official - Subject to Final Review
70
1

kinds of discrimination:

2

gay men, which goes back to Leviticus and the

3

common law, and discrimination against lesbians,

4

which was not part of Leviticus and was not part

5

of the common law.

6

Discrimination against

Indeed, in 1964, there were only 16

7

states in the United States that clearly forbid

8

some act in which lesbians could engage.

9

So the idea that this is one large

10

idea about sexual orientation discrimination in

11

the abstract, without reference to sex, simply

12

burkes the history and burkes the understanding.

13

And if you look at the harassment cases, you

14

will see why this is true.

15

in a different way than lesbians.

Gay men are harassed

16

Thank you.

17

CHIEF JUSTICE ROBERTS:

18
19
20

counsel.

Thank you,

The case is submitted.
(Whereupon, at 11:07 a.m., the case

was submitted.)

21
22
23
24
25

Heritage Reporting Corporation

 71
Official - Subject to Final Review
1

actually [5] 31:20 32:9 42:19 54:3

applicable [1] 9:8
applied [3] 10:2 37:6 43:8
applies [3] 8:16 33:13 35:12
apply [13] 17:25 24:2,3,7,16 25:19

64:16

behave [3] 4:24 5:9,23
10:05 [2] 1:21 4:2
add [1] 29:13
behavior [1] 24:20
11 [1] 51:3
address [12] 15:10 21:24 23:7 25:
behind [1] 51:17
11:07 [1] 70:19
belief [3] 26:18 33:20 34:21
25 26:11,14 42:3,3,4 53:22 63:1
29:23 37:7 41:25 43:3,4,10 48:7
16 [1] 70:6
area [1] 20:2
beliefs [1] 27:9
65:24
17-1618 [12] 2:4,7,12 3:4,8,13,17 4: addressed [2] 5:4 63:22
aren't [3] 34:5,9,19
believe [3] 46:2 47:12 68:12
4,9 31:7 52:21 64:16
addressing [1] 21:21
argue [2] 13:23,23
below [2] 31:25 50:6
17-1623 [11] 2:5,8,13 3:5,9,14,18 4: administered [1] 5:12
arguing [1] 44:21
belt [1] 49:22
10 31:8 52:21 64:17
adopt [1] 34:4
argument [31] 1:20 3:2,6,10,15 4: benchmark [2] 46:4,21
18 [1] 31:23
adopted [2] 32:22,23
4,8 6:14 8:15 20:3 24:12,13,13 26: best [3] 24:23 37:19 51:21
19 [1] 30:11
adverse [1] 4:21
8 28:20 31:6 33:11 37:15 38:17
bet [2] 12:19 28:3
1964 [18] 6:15,24,25 21:22,24 22:3, advised [1] 17:6
42:21 44:12 52:19 53:23,25 60:5, better [4] 17:6 29:16 62:2 63:20
18,21 23:6 27:14 30:8,18 31:24
advocates [1] 25:8
10 64:15 65:11 68:16,24 69:18
between [16] 5:2 8:17,18 11:2,7
32:7 49:24 50:2 69:21 70:6
affected [2] 13:14 15:7
arguments [1] 59:7
33:20 36:19 39:3,12,14,17 47:19,
1982 [1] 31:13
affirmance [3] 2:12 3:13 52:21
Argus [1] 27:19
21 48:2 60:10 61:11
affirmative [1] 11:16
Arlington [1] 2:6
BFOQ [7] 10:21 11:20 12:8 34:10,
2
Agency [1] 11:14
around [2] 21:1 32:25
24 35:17,25
2 [1] 49:14
[2] 42:16,18
[1] 42:20
[1] 12:1
aggregate
aspect
BFOQs
2019 [1] 1:17
[1] 58:1
[1] 6:18
[5] 12:3 21:19 26:1 42:22,24
aggressive
Association
big
[1]
22 49:20
ago [1] 24:1
assuming [1] 43:21
Bill [5] 8:2,3,4 65:17,18
23 [2] 25:24 49:20
agree [1] 7:12
attempt [3] 5:10,20 42:7
biological [6] 16:20,23 44:18 45:
3
agrees [1] 12:10
attempts [1] 60:8
24 49:6 66:23
ahead [1] 16:15
attendants [3] 55:5,16 57:3
black [1] 27:21
31 [1] 3:9
airline [1] 55:4
attracted [10] 4:25 29:1,3,14,15
body [1] 23:3
4
33:22 34:16 51:22 57:8 69:13
airline's [1] 55:6
boils [1] 63:24
4 [1] 3:5
Airlines [2] 57:2 58:24
attraction [1] 47:6
bona [1] 42:8
AL [2] 1:9,13
attractions [1] 33:6
BOSTOCK [3] 1:3 4:5 25:8
5
[1] 10:18
[2] 57:13,18
Alabama
attractive
Bostock's [1] 46:7
52 [1] 3:14
ALITO [25] 20:14 21:11,13,14 23:2, available [1] 10:14
both [9] 6:2 8:1 30:21 33:5 38:3,20
6
4,21 24:12 28:9,14 29:7 30:6,12,
avoid [1] 7:15
49:24 50:1 65:1
17 51:15 63:2 66:21 67:3,13,17,
award-winning [1] 25:7
bothering [1] 35:2
64 [1] 3:18
20,23 68:4,15,23
box [1] 24:11
B
7
allegation [2] 33:7 62:12
boyfriend [1] 35:3
back [7] 6:15 27:14 48:3 59:1 65: branch [3] 7:16 22:11 53:14
703(a [2] 4:17,21
allegations [1] 46:10
25 69:16 70:2
703(a)(ii [1] 21:3
alleged [1] 6:3
BREYER [17] 23:13,15 24:5,24 25:
bad [1] 14:19
75-year [1] 42:12
alleging [1] 32:24
1,4 28:14 38:11,21,23 39:4,10,16,
balance [1] 63:18
[1] 20:22
allowed
22,24
40:4,6
8
balanced [1] 26:20
[1] 19:17
[4] 23:23 55:10 60:8 69:22
alluding
brief
8 [1] 1:17
banc [1] 5:14
almost [2] 26:12 68:7
briefs [4] 23:22 28:21 47:8 59:6
85 [1] 26:24
banned [1] 31:22
alone [2] 44:22 47:16
bringing [2] 23:21 35:3
[1]
A
already [4] 5:3 26:17 29:21 31:22 banning 31:15
brings [1] 8:22
[2] 9:13,14
barred
[2]
although
17:5
48:19
broader [1] 28:18
a.m [3] 1:21 4:2 70:19
based [14] 4:22 5:18 20:17 22:4
[1] 1:9
ALTITUDE
brought [4] 10:24 58:11 68:7,8
[1]
able 56:7
29:10,11 47:10 60:14 62:6,25 64: burden [1] 7:15
amend [1] 68:23
above-entitled [1] 1:19
4 66:22 68:24 69:1
American [2] 6:18 26:25
burkes [2] 70:12,12
absent [1] 12:7
[1] 23:16
basic
[4]
amicus 2:11 3:12 47:8 52:20
Burlington [2] 12:25 13:1
absolutely [2] 50:23 52:14
[1] 62:21
basically
[1]
amount
12:19
business [1] 14:11
abstract [1] 70:11
basis [10] 21:19 26:3 29:5,16 30:7, but-for [4] 44:14 45:11 48:6 54:5
[1] 20:1
analogy
[1]
absurd 14:6
analysis [5] 41:3 46:17 49:3 54:21 10 36:19 52:2,8 67:8
accept [1] 59:8
C
bathroom [9] 12:4,4,13,14 16:10,
61:9
acceptable [1] 20:4
[2] 55:5 57:3
18
20:22
21:1
48:23
cabin
analytic [1] 5:1
According [1] 31:19
bathrooms [9] 12:11,11 13:4 15:4 California [1] 2:3
animus [1] 47:10
account [1] 13:9
20:18 48:4,9,13,17
call [4] 18:6,6 46:21 47:5
Ann [3] 7:10 37:14 57:25
achievement [1] 31:18
[1] 5:15
called [2] 32:17 47:17
bean
announced [1] 62:13
acknowledged [1] 54:13
[2] 31:14 42:25
calling [1] 17:22
became
[6]
another 12:14 15:25 17:23 18:
across [1] 18:12
[1] 19:25
calls [1] 15:22
become
17 34:16 42:20
across-the-board [1] 64:25
[1] 12:15
came [6] 1:19 20:6 27:21,24 58:19,
becomes
answer [14] 6:14 11:5 17:1 20:10
Act [5] 21:25 22:2,8 31:24 70:8
[1] 17:18
20
beg
24:18
33:12
37:2
43:6
44:9,11
51:
acting [1] 22:5
candid [1] 51:3
began [1] 29:1
12
56:17
64:1
66:16
[2]
action 4:22 11:16
candidate [3] 51:21,21,22
begging [2] 17:12 18:14
apologize [1] 16:14
actionable [2] 7:3 19:22
[1] 12:16
candidates [2] 51:19 67:14
begin
[1]
appeals
57:9
actor [1] 40:3
[1] 21:2
cannon [1] 22:15
beginning
APPEARANCES [1] 2:1
acts [1] 17:3
[8] 2:4,7 3:4,8,17 4:9 31:7
cannot [4] 5:12 6:7 9:11 33:8
behalf
[2]
appears 59:14 60:24
actual [3] 58:6,6,10
65:15

Heritage Reporting Corporation
Sheet 1

10:05 - cannot

 72
Official - Subject to Final Review
care [1] 9:2
careful [2] 28:6 61:14
carve [1] 5:10
Case [48] 4:4,6 9:24 10:15,15 14:

client [2] 41:21 59:17
co-religionist [1] 26:22
code [3] 14:10 16:10 18:21
codes [2] 15:5 20:11
19 20:12,12,21 22:24,24 23:17 25: cognizable [1] 32:15
13,15 27:21,24 29:19 30:1 32:20
collapses [1] 68:16
33:17 40:5,12,25 45:25 47:25 50: colleague [1] 62:2
8 51:17 55:4,10,24,25 57:25 58:6, combining [1] 69:25
6,10,20,22 61:21 65:3 66:11 67:1 come [6] 8:1 13:23 27:20 36:4 42:

68:16 69:2,6,7,10 70:18,19
[24] 9:9 11:6 12:6 16:7 20:
25 28:5 29:13,20 33:25 35:9,16
36:23 40:20,23 41:24 51:11 62:1,
3,4,4 64:22,24 68:7 70:13
categorical [2] 13:17 32:22
categorically [1] 32:12
category [1] 26:18
Catholic [3] 38:12,13 39:13
Catholics [4] 38:14 39:14,25 40:9
causal [5] 44:16 45:5,8,11,19
causation [3] 34:12 44:14,15
cause [12] 13:3,20 25:11 44:12 45:
20,21,21 54:6 59:22 60:24 61:2,5
caused [2] 34:14,17
causes [1] 65:16
celebrate [1] 8:5
celebrated [1] 31:17
certain [2] 10:25 37:20
certainly [3] 44:10 48:24 59:12
challenged [1] 57:2
change [7] 6:2 30:13,19 45:14 48:
25 51:6,12
changed [1] 33:4
characteristic [4] 39:20 41:1,8 46:
20
characteristics [4] 32:3 37:20 40:
22 41:23
characterized [1] 28:15
charged [2] 42:10,12
Cheryl [1] 57:7
CHIEF [23] 4:3,11 7:11 8:11,14 12:
18 15:22 21:12 25:21,23 26:10 31:
1,5,9,12 52:6,16,22 63:2 64:2,10,
13 70:17
child [1] 25:8
children [3] 25:15,16,22
choice [1] 53:20
Circuit [10] 5:14 13:22 32:11,23
33:3 34:2 51:1,2,5 58:24
Circuit's [1] 32:8
circumstances [1] 15:20
Civil [1] 31:24
claim [7] 10:19,21 38:6,18,20,25
58:11
claimed [1] 68:20
claims [3] 32:12,14 64:25
Clara [1] 11:13
class [1] 65:22
classes [2] 42:22,24
CLAYTON [2] 1:6 4:5
clean [1] 48:22
clear [9] 18:3,9 24:18 27:5 42:16,
20 47:6 48:5 59:21
clearly [1] 70:7

cases

correlated [1] 50:10
62:5
corresponds [1] 49:5
denies [2] 21:5,9
couldn't [1] 54:3
denying [1] 6:1
counsel [9] 13:18 15:3 25:21 31:2, Department [1] 2:10
3 52:17 54:12 64:11 70:18
depends [1] 65:12
count [1] 5:16
desires [1] 60:3
counting [1] 5:15
determine [3] 5:18 8:21 54:21
country [2] 12:4 31:14
devilishly [1] 65:8
COUNTY [3] 1:6 4:5 11:13
dice [1] 49:10
1 66:17
couple [4] 8:4 39:13 42:2 61:1
dictionary [1] 69:23
comes [2] 23:22 68:11
couples [3] 39:15,17 63:8
difference [7] 5:1 9:24 33:20 39:3,
14,17 48:1
common [4] 47:5 50:1 70:3,5
course [5] 36:21 46:10 48:19 66:
12 68:19
communities [1] 15:7
different [22] 9:6 12:2 16:19,22 21:
comparator [9] 43:13,15,19,23 44: COURT [43] 1:1,20 4:12 5:4 6:21 7: 20 30:9 37:5 38:9 41:3,16,20 42:
2,5,8 49:7 65:25

compare [1] 36:17
comparing [1] 43:25
comparisons [1] 28:22
compelled [1] 26:14
complainant [2] 55:20,24
complaining [4] 48:13,15 55:20
58:8

4,4 10:12 11:18,23 12:25 13:22
18:9,14,17,18 20:2,5,8 21:16 22:2
25:13 26:17 27:13 28:6 29:20 31:
10 32:10,13,17 35:16,19,20 42:5
46:15 47:17 49:14,17 52:23 57:9
58:13,20 65:11
Court's [2] 9:9 59:10
courts [6] 7:2 22:9 32:21 51:1 53:
14 63:20
cover [1] 53:16
coverage [1] 26:2
covered [3] 9:4 26:25 27:20
created [1] 26:17
criminal [1] 6:17
criteria [6] 37:23,23 38:3,4,5,9
critical [5] 32:17 33:1 47:18,18 54:
20
criticize [1] 50:20
curiae [3] 2:11 3:13 52:20
cursed [1] 7:6

complaint [1] 46:8
complete [1] 36:22
completely [2] 39:21 61:11
compliance [1] 35:22
comply [1] 9:7
conceding [1] 28:15
concept [1] 30:9
concepts [2] 34:11 49:25
concern [1] 26:12
concluded [1] 20:5
conclusion [1] 43:22
conform [4] 4:23 6:9,11 65:5
conforming [1] 5:22
D
confusing [1] 34:11
[2]
Congress [20] 7:8 11:21 21:21,23, D.C 1:16 2:10
dah [6] 23:25,25 24:1,10,10,10
25 22:1 23:6 24:14 26:20 28:18
damages [1] 24:1
30:8,14 31:22 32:1 51:14 52:24
date [10] 4:15 9:15,17,18 15:16,17
53:15 60:13 63:6,20
Congress's

[5] 6:16,23

23:6 61:

14 69:22

30:4,5 66:17,19

dates [2] 24:21 30:3
dating [1] 4:14
day [1] 17:2
days [2] 6:25 8:5
de [1] 18:14
deal [2] 13:12 15:9
dealt [4] 12:6,10 23:18,20
decades [1] 53:15
decide [1] 16:7
deciding [1] 23:5
decision [2] 58:13 66:22
decisionmaker [4] 51:17 66:22

congressional [1] 12:7
conscious [1] 53:20
consideration [1] 63:17
considerations [1] 63:23
consistency [1] 5:13
consists [1] 18:10
consolidated [1] 4:6
constitute [1] 32:4
constitutes [1] 11:11
constructed [1] 56:5
contemplation [1] 6:24
67:9 69:4
contemporaneous [1] 28:7
[2] 37:22 61:14
decisions
contemporary [1] 64:21
[1] 22:1
declined
[5]
context 26:24 33:11 39:2,7 40:
defense [6] 36:17,22,23,25 37:3
8
continue [2] 27:3 56:22
contributing [3] 60:24 61:2,5
Controls [1] 35:17
core [3] 28:20,25 32:8
corner [1] 59:15
correct [1] 29:8
correctly [1] 32:13

55:6

defenses [1] 62:22
define [1] 60:15
defined [1] 39:8
definition [1] 39:9
demeaning [1] 19:3
denied [6] 11:15 25:6,9,16 27:25

13 49:25,25 60:12,16 61:8,12 63:
12,25 68:17 70:15
differential [3] 11:7,11 20:17
differentiate [1] 17:20
differently [12] 11:9 12:22 15:13,
16 18:8 22:20 33:2 34:23 36:4 43:
5 56:14 57:22
difficult [4] 50:15,16 51:11 57:23
directed [1] 50:19
disadvantage [1] 12:24
disadvantaged [2] 7:22,24
disagree [5] 7:12,17 33:25 37:17
51:11
discharge [1] 37:22
discharged [1] 62:13
discharging [2] 62:16,18
discriminate [3] 13:2 59:16 62:6
discriminated [6] 4:17 5:21,22 10:
19 11:19 54:24
discriminates [3] 6:9,10 36:18
discriminating [2] 53:9 64:8
discrimination [82] 4:19 5:2,3,5,7,
7,11,18 6:7,23 7:5,14 8:6 9:22 11:
12 15:17 17:3,21 18:5,10 19:25
21:18 22:4,22 25:13 26:3 27:23
28:13,16 29:5,17 30:7,9,23,24 31:
15,23 32:4,5,25 33:8 34:22 35:12,
13,14,23,24 37:16 39:12 41:13 43:
25 44:23 47:9 49:17 50:25 51:8,9
52:2,8,14,15,25 53:3 55:8 57:14
58:12 60:14 62:24 64:4,22 66:20
67:8 68:24 69:1,8,14,18,19 70:1,1,
3,10
discriminator [1] 6:8
discriminatory [7] 12:23 17:23
18:24 19:2,6 33:9 36:8
discussing [1] 60:23
discussion [1] 49:15
disparate [5] 9:25 10:9,11,14,15
disproportionate [1] 10:3
dispute [1] 46:10
dissent [1] 31:25
dissenters [1] 13:21
distinct [1] 32:2
distinction [3] 37:7 47:21 61:11
distinctions [1] 10:25
distinguishes [1] 60:10
distinguishing [1] 47:18
doing [6] 26:11 27:3 35:1 36:18 46:
19 55:7

Heritage Reporting Corporation
Sheet 2

care - doing

 73
Official - Subject to Final Review
Don [1] 30:1
DONALD [1] 1:13
done [2] 49:20,21
Dothard [4] 9:10,24 10:8 11:17
double [1] 6:8
doubt [1] 53:11
down [1] 63:24
draw [1] 43:16
drawing [1] 47:20
dreamt [1] 24:14
dress [8] 14:10 15:5 16:10,21,22

even [9] 10:2 11:1 13:21 27:23 36: felt [1] 26:13
22 42:11,13 52:3 67:9
fem [1] 5:17
event [1] 8:5
female [7] 4:14 6:12 8:4 10:5 15:4
52:10 53:5
events [1] 14:11
everybody [3] 12:10 27:16 30:15 females [2] 10:1 11:2
everyone [2] 9:7 11:14
feminine [1] 37:11
evidence [1] 43:16
fide [1] 42:8
exactly [7] 22:5 43:14 52:9 53:7
Fifth [1] 32:11
61:4 64:7 65:7
fighting [1] 30:13
example [18] 5:5 9:9,10 10:24 11: figure [2] 28:23 65:9
13 12:17 13:17 14:9 24:23 25:12
Finally [1] 5:24
38:15 40:10,11 46:8 48:19 57:24
find [8] 7:2 15:6,8 35:24 40:11,21

gave [3] 28:9 41:11 46:18
gay [29] 5:11,17,21 6:2 15:15 17:9

27:3,8,21,22 28:3 31:18 33:15 43:
24 47:9,10 52:12 53:6,7,7 61:3 62:
14,23 65:1,6,13 69:18 70:2,14
gays [2] 24:16 27:11
GEN [3] 2:9 3:11 52:19
gender [5] 20:17 44:19 45:24 61:
16 63:12
gender-based [1] 65:5
gender-specific [1] 13:9
18:21,23 20:11
General [33] 2:9 37:25 52:18,22
66:11 67:19
50:15 51:7
54:9,14,24 55:2,13,18,22 56:1,3,
during [1] 69:17
15,17,24 57:4,19 58:3,9,17,21,25
example's [1] 14:19
fine [1] 42:17
E
60:7,19,25 61:20,25 62:9,17,20
examples [2] 14:6,7
finish [3] 16:16 56:14 64:1
each [2] 38:9 42:11
Except [1] 39:19
fire [11] 4:14 8:2 22:22 30:5,21,22, 64:3,12
earlier [2] 28:15 31:23
25,25 34:25 54:3 62:22
exception [3] 26:19,22 35:17
General's [1] 65:24
early [1] 49:16
exclude [1] 24:16
fired [27] 22:25 27:25 29:2,3,14,15 generally [4] 13:4 18:12 42:4 62:5
effect [1] 10:3
47:15 48:20,23 49:1 54:9 55:21
excluded [1] 32:12
generous [2] 44:15 45:8
effects [1] 18:15
56:9,10 57:5,11,25 59:18,23,24
exclusion [1] 32:22
GEORGIA [1] 1:6
effeminate [6] 5:6 28:2 33:15,21
65:6,19 66:18 68:9,10,13,22
Excuse [2] 33:10 38:8
GERALD [3] 1:3 25:8 29:25
34:15 50:12
excuses [1] 37:1
fires [4] 4:13 30:2 38:13 55:6
German [3] 24:2,5,6
either [2] 5:12 20:12
executive [1] 53:14
firing [5] 34:13 45:5 54:6 65:1 69: gets [3] 12:20 35:24 65:6
element [1] 35:23
11
EXECUTOR [1] 1:12
getting [2] 14:17,18
eligible [1] 48:16
exempted [1] 18:15
firmly [1] 59:15
GINSBURG [38] 6:13 9:20,23 10:7,
eliminated [1] 61:11
23 20:15 36:1,3,10,12,15 37:4,18
exemption [6] 11:21,24 12:7 26:5, first [16] 4:4 11:5 25:13 26:16 27:
emphasize [1] 8:19
17 63:10
21 31:14 39:7 42:2 45:14 47:3 50: 38:10 48:10 54:7,23 55:1,3,17,19,
emphasized [3] 35:16,20,20
23 56:2,22,25 57:5 58:2,5,15,19,
8 53:4,21 54:2 56:6 61:1
exemptions [1] 12:1
employ [1] 61:23
23 61:18,22 62:7,11,18 64:20 69:
exists [2] 40:3,4
fit [1] 24:22
employee [6] 4:13 8:3,4 47:15 66: expand [2] 63:7,15
17
fitness [3] 11:2 12:2 48:4
6,8
expansion [1] 63:9
fits [4] 24:24 25:1,5 28:16
girlfriend [1] 35:4
employee's [3] 4:22 53:19 63:14 expansive [1] 39:9
Five [1] 64:13
give [9] 8:3 14:8 20:1 24:23 25:1,
employees [3] 4:15 6:4 7:25
12 46:16 55:4 66:10
expectancy [5] 41:2,8 42:9,12,19 flight [1] 55:15
employer [24] 4:13,16 6:8 28:2 29: expectation [4] 4:23 5:8,23 6:11 Fly [1] 57:7
given [3] 13:13 57:2 58:7
12,20,24,25 30:1 33:12,14 36:4,25 explain [1] 25:3
focus [1] 45:3
giving [1] 63:16
37:9,20 38:12 42:7 46:18,25 47:7 explanation [1] 19:21
following [1] 17:13
glossed [1] 34:2
51:24 52:3 64:24 68:8
explanations [1] 29:9
footnote [3] 10:12 49:14 51:3
glossing [1] 34:10
employer's [3] 36:17 62:16,21
EXPRESS [1] 1:9
forbid [1] 70:7
GORSUCH [29] 13:6,12,25 14:2,5,
employers [10] 5:25,25 26:19,25
14,16,23 15:2,24 16:2,5,11,13,17,
extend [1] 26:2
forces [1] 5:14
27:1,9 61:23 62:3,5 63:10
25 44:7,10,25 45:2,10,17 46:22,24
extended [2] 26:13 53:15
foreign [1] 40:3
employment [6] 4:21 6:1 21:5,9
53:21 54:12 60:18,21 63:21
extending [1] 26:6
form [1] 23:21
31:16 52:25
extent [1] 13:8
forms [4] 5:2 6:22 9:22 35:14
Gorsuch's [1] 17:13
en [1] 5:14
extremely [2] 35:18 41:24
formulation [4] 45:10,11,19,23
got [1] 12:18
encompass [1] 7:14
found [1] 51:8
grounds [2] 10:21,22
F
encompasses [1] 26:8
foundational [2] 22:24 27:15
guard [7] 9:11,13,14,15 10:1,13,17
face [2] 9:11 53:13
end [2] 17:2 65:25
fourth [1] 27:4
guarding [3] 10:2,5,10
facilities [1] 48:9
engage [1] 70:8
FRANCISCO [32] 2:9 3:11 52:18, guards [1] 10:4
facility [1] 49:5
enjoyed [1] 22:23
19,22 54:9,14,24 55:2,13,18,22 56: guess [4] 41:25 43:7 58:21 59:5
fact [11] 6:7 13:18 20:19 22:14 29: 1,3,17,24 57:4,19 58:3,9,17,21 60: guidance [1] 46:16
enough [2] 45:18 66:19
11 38:19 48:17 49:19 60:23 61:7
ensure [1] 35:21
7,19,25 61:20,25 62:9,17,20 64:3,
H
63:24
entails [1] 68:25
12
factor [6] 45:5,19 46:3,5,17 47:14 free [3] 13:20 27:3 32:25
half [1] 63:15
entire [3] 7:15 57:10 65:11
factors [1] 44:17
hand [1] 13:21
epithets [1] 5:16
frequency [1] 5:16
factory [1] 48:20
happen [1] 65:3
equal [2] 20:4,6
friend [2] 17:23 53:22
fag [1] 5:17
happened [8] 29:9 41:5,6,15,20
Equality [2] 21:25 22:8
friend's [1] 48:25
45:25 67:4,6
fail [1] 60:6
equally [1] 8:17
[2]
friends 8:19 61:10
failed [2] 22:1 23:7
Happens [2] 50:14 67:7
error [2] 32:8,9
fully [1] 63:22
failure [1] 4:22
harassed [2] 36:16 70:14
especially [1] 32:16
function [1] 35:5
familiar [1] 67:20
harassment [3] 7:3 32:12 70:13
Espinoza [2] 49:14,16
funeral [1] 14:18
famous [2] 22:24 38:16
hard [5] 21:7 34:3 35:9,24 65:8
ESQ [4] 3:3,7,11,16
further [2] 8:7,12
far [2] 48:2 62:14
harder [1] 35:11
essentially [2] 53:25 61:13
[1]
futile 5:20
fashion [1] 58:12
harm [4] 13:15 15:8 17:24 18:1
ESTATE [1] 1:13
G
favor [1] 21:16
HARRIS [47] 2:6 3:7 12:20,21 18:6,
estimates [1] 42:9
7 31:6,9,13 33:24 34:7 35:10,15
game [1] 27:16
feel [1] 22:16
ET [2] 1:9,13

Heritage Reporting Corporation
Sheet 3

Don - HARRIS

 74
Official - Subject to Final Review
36:2,7,11,14,21 37:17 38:19,22
39:2,6,11,19,23 40:2,5,13,18 42:2
43:11 44:8,20 45:1,9,16 46:1,23
47:4 48:1,18 50:4,17,23 52:5,7
hatred [1] 34:22
hazardous [1] 48:20
head [1] 28:22
hear [2] 4:3 24:17
heard [1] 19:17
height [1] 10:9
held [4] 20:8 28:12 32:11,14
help [2] 14:24 15:1
helped [1] 46:16
helpful [1] 20:2
helps [1] 43:15
heterosexual [2] 44:1 50:19
hide [1] 6:7
higher [1] 42:18
highly [3] 20:24 49:18 50:10
hire [11] 19:6 29:12,24 34:25 36:5,
6,20 51:25 55:9 57:3 69:12
hired [3] 29:21 37:1 52:12
hires [1] 55:5
hiring [8] 27:2,7,11 33:16 34:12 37:
21 55:15 58:7
history [7] 24:10 53:12 59:3,5,11,
13 70:12
Hively [2] 28:6 51:2
hobbies [1] 33:13
hobby [3] 28:1,2 33:15
hold [2] 15:14 43:19
holding [2] 32:9 51:5
home [4] 25:15,17,20 35:5
homes [1] 14:18
homophobic [2] 50:7,18
homosexual [3] 50:10,13,19
homosexuality [3] 6:19 27:6,20
honestly [1] 21:7
Honor [15] 35:15 38:1 46:1 47:4
48:18 50:17,24 54:10 55:14 56:24
57:19 58:9 60:8,25 62:1
Hooters [2] 13:23 18:22
Hopkins [3] 7:10 37:14 57:25
horribles [1] 23:19
however [1] 31:20
hypothetical [6] 38:1 54:10 55:4
56:4,25 57:1
hypotheticals [3] 40:19 41:10 67:
5

I
idea [8] 7:1 25:6 27:19 29:16 56:
20 65:12 70:9,10

identical [1] 40:12
identities [1] 61:16
identity [1] 63:12
idiosyncratic [3] 16:8,17,20
ignorance [1] 51:18
illness [1] 6:19
illustrative [2] 64:21 65:4
image [1] 32:20
Imagine [4] 23:25 46:17 48:20 51:
16

immoral [1] 27:10

impact [5] 9:25 10:9,11,15 31:21
important [2] 35:19 69:15
imposition [1] 15:21
impossible [2] 50:16 56:19
INC [1] 1:9
include [1] 26:4
including [2] 35:23 60:15
inclusion [1] 32:23
Indeed [2] 29:25 70:6
independent [7] 32:2 34:21 39:20

Johnson [3] 11:13,15 35:16
joyous [1] 8:5
Judge [7] 7:12,17 22:9,15 31:25

40:22 41:1,7,23
individual [2] 52:4 65:22
individuals [3] 8:20 43:1,1
inferences [1] 43:16
injured [11] 15:20,23 20:16,18,22
48:11,12,16,24 54:8,8
injury [6] 13:3,5,20 18:11 34:12,13
innate [1] 34:22
innocuous [2] 15:5,6
inquiry [3] 32:17 33:1 51:13
insisted [3] 41:24 43:2,4
instead [1] 9:15
instructions [1] 51:6
instructive [1] 49:19
instructors [1] 30:2
integrity [1] 5:13
intended [2] 7:21 51:14
inter-marriage [2] 40:1,8
interested [1] 66:8
interests [1] 63:18
intermarriage [1] 38:14
interpret [1] 60:1
interpretation [5] 28:8 49:22 53:
13 54:3 59:10
interpreted [1] 35:18
interpreting [2] 49:16,18
interprets [1] 22:3
interreligious [1] 40:15
intervene [1] 22:10
interviewed [1] 67:14
introduces [1] 39:20
invidious [1] 34:22
involve [1] 64:23
involved [5] 8:20 9:1 52:4 57:16
66:24
irrelevant [1] 43:21
isn't [10] 18:1,12 35:1 37:13 38:25
44:17 45:13,17 47:2 49:22
isolate [2] 44:2,11
issue [12] 11:10 12:3 19:25 21:1,
20,20 22:8 24:21 47:18 52:24 53:
1 63:19
issues [6] 25:25 26:21 57:22 63:
11,11,12
itself [3] 32:4 55:16 63:9

8:11,14 9:20,23 10:7,23 11:25 12:
18 13:6,12,25 14:2,5,14,16,23 15:
2,22,24 16:2,5,11,12,13,15,17,25
17:10,12,13,17,19 18:4,19,21 19:1,
5,10,13,16,20,24 20:14,15 21:11,
12,13,14 23:2,4,13,15 24:5,12,24
25:1,4,21,23 26:10 28:9,14,14 29:
7 30:6,12,17 31:1,5,9,12 33:10,24
34:5,9 35:11 36:1,3,10,12,15 37:4,
18 38:10,11,21,23 39:4,10,16,22,
24 40:4,6,18 42:15 44:7,10,25 45:
2,3,10,17 46:22,24 47:20 48:10
50:3,5,6,6,21 51:10,15 52:6,16,22
53:21 54:7,12,23 55:1,3,17,19,23
56:2,15,18,19,22,25 57:5 58:2,5,
15,19,23,25 60:18,21 61:17,18,22
62:7,11,18 63:2,2,21 64:2,10,13,
20 65:7,23 66:10,21 67:3,13,17,20,
23 68:4,15,23 69:17 70:17
justices [1] 28:11
justify [1] 44:6

J
JEFFREY [3] 2:6 3:7 31:6
Jew [1] 38:12
Jewish [1] 39:13
Jews [2] 40:1,9
job [12] 9:13,14 11:15 25:9,16 27:
12,25 35:2 36:11 51:22 56:6,8

jobs [2] 10:5 25:6

50:6 63:4

judges [2] 5:14 28:12
judicial [2] 49:21 63:5
Julia [1] 10:17
juries [1] 51:6
jury [1] 51:6
Justice [173] 2:10 4:3,12 6:13 7:11

5 60:10 70:3,5

laws [4] 25:24 49:18 60:1,4
least [5] 13:13 26:12 40:7 60:9,23
leave [1] 65:10
led [1] 32:10
left [1] 63:20
legal [3] 17:20 24:13 33:20
legislation [1] 49:20
legislative [6] 7:16 22:11 59:4,11,
12 63:3

legislature [2] 22:6 26:13
lesbian [7] 27:8 33:21 47:9,11 50:

14 61:24 62:19
[8] 6:2 27:11 65:2,13 69:
19 70:3,8,15
level [1] 45:12
Leviticus [2] 70:2,4
lexical [1] 5:15
liability [3] 63:8,16 69:3
liberty [2] 63:13,17
life [5] 41:1,8 42:8,12,19
likes [2] 66:1,2
limits [1] 44:6
lineman [1] 14:12
linguistic [1] 45:23
list [2] 37:22,23
lists [1] 60:16
literal [2] 47:21 53:23
little [2] 31:21 46:13
Live [1] 67:19
loading [1] 49:10
lodestar [1] 59:9
K
long [4] 24:1 32:15 61:3 64:5
KAGAN [4] 40:18 42:15 45:3 58:
longer [2] 57:12,17
25
longevity [1] 42:6
KARLAN [83] 2:3 3:3,16 4:7,8,11
look [17] 27:15 28:4 29:4 41:13 42:
6:13,14,20 7:17 9:5,21,23 10:7 11: 22 43:1 46:7 57:6 60:1,2,2,3,3 65:
4 12:9,19 13:11,16 14:1,4,8,15,22, 15,20 69:21 70:13
25 15:12 16:1,3,8,12,24 17:5,10,
looked [3] 42:24,25 69:23
11,15,18 18:2,5,6,20,25 19:4,8,11, looking [1] 49:11
14,19,23 20:1,24 22:14 23:3,9,14 looks [1] 33:12
24:3,19,25 25:2,5,22 26:9,15 28:
loose [1] 22:15
10 29:6,19 30:11,16,19 41:17 64: lose [3] 43:9,9 68:14
14,15,18 65:23 66:4,12,25 67:11, lost [1] 10:20
15,18,22,24 68:5,19 69:6
lot [2] 24:10 67:4
Karlan's [1] 59:15
loved [1] 59:19
KAVANAUGH [1] 47:20
loves [2] 30:22,23
key [2] 68:3,6
lower [1] 32:21
kind [4] 5:2 9:16 24:4 59:25
Lynch [1] 50:6
kinds [1] 70:1
Lynch's [1] 31:25
knowledge [1] 69:4
LYNN [1] 1:3
knows [2] 69:10,12

L
labeled [1] 6:18
Labeling [1] 6:5
landmark [2] 31:18,20
language [6] 23:17 24:23 44:13
46:3 50:1 65:21
large [2] 26:18 70:9
last [4] 8:2 27:18 48:2 49:13
lastly [1] 63:1
Laughter [4] 8:10,13 31:4,11
law [9] 18:11 31:15,17,20 35:12 40:

lesbians

M

macho [5] 5:6 33:21 37:10,13 50:
13

Mad [1] 6:25
made [6] 18:9 24:12 29:22 41:17
42:7 59:21

major [1] 23:5
majority [2] 28:11,11
makeup [1] 7:7
male [18] 4:13,22 6:10,17 8:3 9:25
10:5,16 15:4 36:15 52:10 53:5 55:
15,19,23 57:8,16 58:7

Heritage Reporting Corporation
Sheet 4

HARRIS - male

 75
Official - Subject to Final Review
males [2] 11:2 58:7
man [54] 4:17,18 5:17,21 7:6 9:13,

particular [3] 4:23 15:21 51:17
particularly [2] 59:1 63:6
13,17,17,21 15:15 19:7 22:25 24:
parties [1] 28:21
21,21 25:10,16 27:21,24 29:1,14
partner [2] 8:2 65:17
30:3,4,4,5,20,22,25 33:12 34:16,
partners [1] 33:6
17 37:13 38:3 39:18 41:5 42:11
parts [2] 11:5 23:16
43:5,24 46:9 47:2 48:22 49:6 50:
pass [2] 31:14 32:25
12 54:3 59:18,23 65:4,16 66:1,2,
passage [1] 31:17
16,18 67:25 68:9
20,21,23 10:7 11:4,18 12:9,19 13: 19 17:22 21:21 23:20,20,21 27:14, Passed [1] 24:1
11,16 14:1,4,8,15,22,25 15:12,22
24 28:25 32:18 33:13 39:8,18 40: passengers [1] 57:8
man's [1] 54:5
12 43:2,2 44:17,24 45:22,22,23,24 passing [1] 25:24
Manhart [14] 40:24,25 41:11,12 42: 16:1,3,8,12,24 17:5,10,11,15,18
18:2,5,6,20,25 19:4,8,11,14,19,23
46:19 60:23 61:2 62:22 64:4 66:5 Pat [3] 67:19,25,25
3,5,15,20,24,25 43:2,3,12 48:7
20:1,12,24 22:14 23:3,9,14 24:3,
68:19 69:19 70:9
many [9] 6:16 9:25 10:4 20:3 26:1
Paul [1] 11:14
19,25 25:2,5,22 26:9,15 28:10 29: ones [1] 59:8
27:9 40:7,20 59:9
pay [1] 24:1
6,19 30:11,16,19 41:17 59:15 64: only [13] 4:25 11:1 30:1 36:5 39:3, people [20] 8:25 13:4 15:6,13 20:
margins [2] 34:1 51:12
14,18 65:23 66:4,12,25 67:11,15,
8,14,16 55:5 56:10 59:20 63:15
17,19 21:4,15 25:6 27:5 36:6 40:7,
Marietta [4] 25:14 36:24 37:5 43:
13

marriage [1] 40:15
married [15] 8:1,3,4 38:12 55:9,21
56:9,11,11 57:6,7,13,18 65:17,18

marry [1] 55:6
Martin [5] 25:14 36:24,24 37:5 43:
13

material [1] 45:19
materials [1] 48:21
matter [1] 1:19
mean [13] 14:3 19:11 22:19 28:11
30:1,4,14,17 41:22 42:19 49:25
60:5 68:2
meaning [8] 24:6 30:13 34:10 47:
21,22,24 53:24 64:8
means [2] 13:2 53:5
meant [3] 22:19 24:16 57:10
Media [1] 27:19
meet [2] 38:4,5
meets [1] 32:15
MELISSA [1] 1:12
members [5] 7:8 32:18,19 51:23
69:22
men [66] 4:14,15,24,24,25 5:5,9,11,
23 6:2,9 7:1,21,22,24 8:18 9:3 10:
2,14 11:7,8 12:12 13:18,24 14:10
21:8 22:19 27:23 29:2,3,12,21,24
30:2 33:1,5 36:6,16,19 37:7,9,23
39:23 47:2,10,19 53:7,7 55:9 56:6,
7,9,11 57:3,13,21 59:19 61:3 64:5
65:1,12 66:18,19 69:18 70:2,14
men's [5] 12:11 21:8 38:5 49:9 54:
19
mental [1] 6:19
mention [1] 46:9
mentioned [1] 65:8
metaphysical [1] 54:5
methods [1] 28:7
might [8] 13:14 16:2 20:21 22:7 55:
24 68:3,6 69:7
mind [4] 6:16 23:6,16 28:18
minimis [1] 18:15
ministerial [1] 26:19
minute [1] 51:16
minutes [1] 64:13
mirror [1] 32:20
mixed [1] 33:17
modern [1] 69:25

money [1] 12:20
okay [12] 11:17 14:22 16:25 17:24
24:10 29:7 45:9 46:25 50:21 51:
morning [1] 4:4
most [9] 7:2 10:12 15:6,6 20:17,19 24 55:22 67:22
40:14,14 48:14
old [1] 7:15
motivating [4] 46:3,5,17 47:14
Oncale [9] 23:10 32:10,11,21,21
35:20 36:1,3 47:17
motive [1] 33:17
moving [1] 34:19
once [2] 35:24 57:7
Ms [83] 4:7,11 6:13,14,20 7:17 9:5, one [35] 8:7 11:22 12:12 15:9 16:

18,22,24 68:5,19 69:6

much [2] 29:16 47:8
must [1] 24:1

N
name [1] 52:10
named [1] 67:24
namely [1] 4:24
narrow [1] 44:18
narrowly [1] 35:18
national [2] 35:14 49:16
nationwide [1] 31:23
nearly [1] 50:16
necessarily [1] 68:25
need [11] 7:18 8:19,25 12:1 22:9
24:17 29:4 35:21 43:19 45:3 66:
14
neither [2] 12:23 64:24
neutral [2] 39:23 49:4
never [4] 51:14 58:19,20 67:25
Newport [2] 23:14 43:12
News [2] 23:14 43:12
next [1] 61:21
Night [1] 67:18
NOEL [3] 2:9 3:11 52:19
non-conformity [1] 5:8
non-discriminatory [1] 8:16
none [1] 64:23
North [1] 13:1
Northern [1] 13:1
note [1] 40:17
noted [2] 10:12 42:5
nothing [4] 42:23 45:24 52:14 62:
14
notice [1] 11:6
nullified [1] 61:13
nullify [1] 53:19
numerous [1] 61:14

O
objections
obviously [3] 36:8 38:15 41:19
October [1] 1:17
offense [1] 6:17
offensive [1] 35:6
offer [2] 14:23 15:1
offered [1] 37:25
often [2] 50:17,19
[3] 27:2,6,7

70:6

14 47:9 48:14,21 49:12 50:20 56:
13 69:13
people's [1] 50:11
per [2] 32:23 34:7
percent [1] 26:24
perfect [2] 43:14 46:11
perhaps [2] 44:16 45:11
permissible [3] 11:16 12:16 20:7
permitted [3] 11:1 54:11,15
pernicious [1] 63:6
19
persisted [1] 53:14
ordinary [2] 47:22,24
person [28] 10:16 15:19 16:2,18,
21 20:16,21 34:23 40:2 47:1 48:
organizations [1] 26:5
23 49:1,3 50:24 51:25 52:12 59:
orientation [57] 5:19 6:6 7:1,14
18,23 62:12 66:7,24 67:24 68:2,5,
19:12 21:19 22:5,25 26:4 28:12,
14 69:10,11,13
16 29:10,17 30:10 31:16,22 32:2,
3,24 33:5,7 43:20 44:3,6,21 45:4, person's [3] 67:9,12,16
12 46:13 47:16 49:24 50:8,10 51: perspective [1] 63:13
7 52:13 53:1,17 60:11,15,16 61:5, Petitioner [6] 1:4 2:4 3:4,17 4:9
8,16 62:4,10,25 63:11,25 64:21
64:16
66:23 67:12 68:13,17,20,25 69:8, Petitioners [4] 1:10 2:8 3:9 31:8
24 70:10
Phillips [1] 25:14
origin [2] 35:14 49:17
phrase [2] 6:6 69:24
other [27] 8:18 12:7 13:21 15:9 20: physical [2] 11:2 12:2
23 23:17 26:11 29:2,13 32:19 33: piece [1] 58:12
22 35:14 36:16 37:1 39:8 44:13
place [1] 56:6
45:7 47:2 53:16,23 59:19 61:10,
placing [1] 7:15
15 63:18 64:6 65:5,12
plainly [1] 56:12
otherwise [4] 15:5 16:9 49:9,10
plaintiff [3] 32:15 48:13,15
out [16] 5:10 23:22,22 28:24 33:23 Plaintiff's [1] 48:6
35:25 36:4 42:1 46:8,12 48:3 56:
plaintiffs [3] 31:19 32:24 43:18
20 57:10 65:9 68:3,6
platforms [1] 36:5
outfits [1] 13:23
play [2] 45:13,14
outside [2] 43:18 44:5
played [2] 27:16 66:14
over [3] 34:2,10 40:22
please [4] 4:12 31:10 52:6,23
overall [1] 65:22
plus [2] 37:6,6
own [1] 27:9
point [7] 30:6 43:18 44:5 48:2 54:
17 63:2 65:10
P
policemen [5] 23:25 24:2,5,6,7
PAGE [1] 3:2
policies [2] 6:1,5
PAMELA [5] 2:3 3:3,16 4:8 64:15 policy [14] 8:16 9:1,4,6,11 10:2 21:
parade [1] 23:19
19,20 23:5 42:6,17 49:4 62:15 65:
parallel [1] 49:18
1
parlance [1] 47:5
position [4] 51:19 53:19 63:14 65:
parse [1] 33:19
7
part [10] 10:8 26:1 47:3 59:2,20,21, positions [1] 10:13
22 62:16 70:4,4
Posner [4] 7:18 22:9,15 63:4
participants [1] 9:3
Posner's [1] 7:12

opening [2] 59:1 69:17
operationalizing [1] 51:4
opinion [3] 22:8 27:18 51:3
opinions [1] 27:15
opponent's [1] 23:23
opportunities [3] 6:1 21:6,10
oppose [1] 40:15
opposite [3] 9:12 10:11 35:4
oral [7] 1:20 3:2,6,10 4:8 31:6 52:

Heritage Reporting Corporation
Sheet 5

males - Posner's

 76
possibility [1] 5:24
possible [1] 29:9
possibly [1] 69:5
practical [1] 31:21
practice [2] 49:18 56:20
precisely [3] 60:13 63:10,19
predictions [1] 60:2
prefer [2] 16:18 20:19
preference [1] 16:9
pregnancy [1] 39:9
premise [1] 28:20
prepared [1] 18:11
presumably [1] 56:5
presumptively [1] 18:16
pretty [1] 59:15
Price [2] 7:4 46:15
PriceWaterhouse [5] 23:11 37:8,
12,19 57:24

primary [1] 45:4
prior [1] 9:9
prison [2] 10:17,18
prisoners [3] 10:1,5,6
private [2] 31:16 35:5
probably [2] 14:9 42:17
problem [9] 27:11 34:1 43:11,17
49:2 55:14 56:3 60:22 65:16
problems [1] 25:11
program [1] 11:17
prohibit [5] 21:18 22:4 52:25 60:
14 62:24
prohibited [1] 53:2
prohibition [1] 55:15
prohibits [1] 64:4
promise [1] 40:6
promotion [1] 37:21
proof [1] 57:23
proper [1] 49:3
proponents [1] 31:17
propose [1] 17:21
protect [1] 61:15
provision [1] 21:3
provisions [1] 63:8
proximate [2] 44:11 45:20
Psychiatric [1] 6:18
pure [2] 30:24 69:14
purposes [1] 11:24
put [4] 9:15 23:24 24:11 56:20
puts [1] 65:6
putting [1] 44:6

Official - Subject to Final Review
requires [1] 18:22
R
requiring [2] 13:3 21:8

race [7] 10:25 20:2,6 35:12 38:15
39:2,4

raging [1] 12:3
raise [1] 63:12
raising [1] 63:3
rare [1] 69:7
rates [1] 42:13
rather [4] 5:6 25:22 39:18 53:2
Rawlinson [4] 9:10 10:8 11:18,18
reachable [1] 7:7
reached [1] 7:2
read [5] 6:20 7:13,19 22:17 23:22
reading [2] 28:6 59:6
real [3] 5:17 14:6,8
reality [1] 50:18
realize [1] 28:5
really [5] 11:23 18:13 41:10 63:23
65:8

realm [1] 14:20
reason [8] 34:20 47:7,12 52:1,13
54:6,10,15

reasonable [2] 15:19 16:5
reasoning [1] 28:4
reasons [3] 40:16 46:19 53:4
rebalanced [1] 26:21
REBUTTAL [3] 3:15 8:9 64:15
receive [1] 32:25
recognize [1] 18:11
recognized [5] 5:3 6:22 7:5 11:14
50:2

record [2] 61:22 62:14
redundancy [1] 49:23
reference [2] 46:12 70:11
referred [1] 46:4
referring [1] 46:2
reflects [1] 61:7
refused [1] 53:17
refusing [1] 69:12
regard [1] 20:9
regardless [3] 20:11 53:8 61:4
related [2] 53:12 54:1
relations [1] 6:17
relationships [2] 8:17,18
relative [2] 7:23,24
religion [4] 39:5,7,8,15
religious [14] 26:5,18 27:2,6,7,9

34:21 35:13 39:12 40:7,16 63:9,
13,17
Q
remainder [1] 8:8
qualified [2] 25:7 27:12
remind [1] 44:23
queer [1] 5:17
removed [1] 53:11
question [34] 11:5,7 12:15 14:21
rendered [1] 61:13
16:3 17:1,1,7,13,18 18:14 19:12,
repeatedly [3] 21:23 23:7 53:15
21 20:10 21:4,25 22:13 23:5 24:
replace [1] 51:13
18 27:5 29:22 33:4,12 34:14,20
reported [1] 67:1
37:2 41:22 44:9,24 53:22 56:8 57: representing [2] 17:7,9
20 62:2 64:19
requests [1] 22:2
questions [5] 8:8,12 22:10 34:3
require [1] 14:10
48:4
required [2] 11:1 14:12
quite [3] 9:24 21:7 32:9
requirement [1] 10:10
quote [1] 31:25
requirements [4] 10:10 13:10 32:
16 35:22

reserve [1] 8:8
resolved [2] 58:10,13
resort [1] 5:15
respect [3] 42:14 53:18 64:6
respond [2] 21:15 22:12
Respondent [4] 1:7 2:7 3:8 31:7
Respondents [6] 1:14 2:5 3:5,18

seems [2] 34:10 42:1
segregate [1] 21:4
segregation [1] 21:5
Seminole [1] 40:25
sense [6] 30:8 43:14 44:18 46:11,
14 54:5

separate [5] 13:4 20:4,6,18 48:17
serious [1] 24:13
serum [2] 46:18,25
4:10 64:17
services [1] 25:8
response [6] 8:24 44:19 45:2,6 48: set [1] 38:9
12 60:22
sets [1] 38:2
responses [2] 53:25 61:1
Seventh [2] 51:2 58:24
restaurant [1] 19:6
several [4] 18:10 25:23 26:21 35:
21
rested [1] 10:8
restroom [1] 54:4
sew [1] 30:21
result [1] 5:15
sewing [5] 22:23 28:1 30:22,23 33:
14
resume [1] 52:9
reversal [3] 2:13 3:14 52:21
sex [109] 4:20 5:19 6:22 8:6,20,25
9:2,8,12 10:11,20,21 11:15,19 12:
reverse [1] 32:10
12,23 15:14 16:20,25 17:22 18:7
reversed [1] 32:13
20:9,23 22:18 25:13 26:3,7 28:13
reviewed [1] 51:19
29:5,18 30:7,14,17,24 32:1,5,18,
rights [2] 31:18,24
19 33:2,4,6,22 35:4 36:19 37:15
ROBERTS [17] 4:3 7:11 8:11,14
41:16,20 43:24 44:2,17,22 45:13,
24 46:5,9,23 47:3,22,23 49:1,6,23
50:25 51:8,23 52:3,4,8,15 53:3,5,
8,10 54:5 55:2,7,11 56:21 57:11,
13 58:12 59:17 60:10,15,24 61:2,
4,6,8 63:24 66:6,7,14,20,23 67:8,
10,16 68:12,18,21,24 69:1,4,9,11,
12,14 70:11
sex-specific [1] 15:21
sexual [60] 5:19 6:6 7:1,3,14 19:12
S
21:19 22:4,25 26:3 27:23 28:12,
sad [1] 50:18
16 29:10,17 30:10 31:15,22 32:1,
sailor [1] 7:6
3,24 33:4,7 34:15,17 43:19 44:3,6,
same [24] 4:19 9:2,4,16 13:9 17:14 21 45:3,12 46:12 47:15 49:24 50:
24:6 33:6 37:14 38:15 41:4,6,9,11, 8 51:7 52:13 53:1,16 60:11,14,16
14,19 51:23 53:8 54:18 58:18 61:
61:5,8,15 62:4,9,25 63:11,25 64:
4 64:7 65:14 68:20
21 66:22 67:12 68:13,17,20,25 69:
same-sex [4] 6:17 12:4 32:11 47:
7,24 70:10
5
she's [1] 14:15
Santa [1] 11:13
short [1] 33:3
Saturday [1] 67:18
shouldn't [1] 11:23
saying [5] 20:20 22:17 30:20 47:
show [6] 12:17 33:8 47:16 50:24
15 68:21
66:14,20
says [16] 9:6 12:13,14 13:2 15:12 shower [4] 48:21 49:7,8,9
21:3 22:15 23:25 33:13,14 51:19, showering [2] 48:9 49:5
24 65:16 66:19 68:8,11
showing [1] 61:23
scant [2] 18:23 19:10
shows [2] 49:22 50:9
scantily [1] 18:23
side [6] 23:17 44:13 45:7 61:10 63:
scenario [3] 46:5,21 47:13
18 65:12
scope [2] 63:7,16
side's [1] 53:23
se [2] 32:23 34:7
similar [1] 32:9
search [1] 59:21
similarly [8] 42:14 43:7 49:3,11 54:
Second [15] 5:14 13:22 26:20 27:
18 56:13 57:21 64:6
24 32:8,22 33:3 34:2 51:1,5 53:11 simple [5] 30:24 41:12,25 48:6 69:
54:17 59:2 65:10 66:6
14
Section [2] 4:16,21
simply [8] 22:11 30:20 33:3 42:10
see [8] 13:7 20:25 21:7 41:13 48:1, 44:21 47:14 48:7 70:11
8 62:15 70:14
since [6] 21:1,24 23:7 27:17 28:10
seeking [1] 36:9
53:12
seeks [3] 9:12,14 63:7
sincere [1] 26:18
21:12 25:21,23 26:10 31:1,5,12
52:6,16 64:2,10,13 70:17
role [1] 66:15
room [3] 21:8,9 54:19
rude [1] 58:4
rule [7] 9:16 13:17 16:10 20:11 21:
16 32:23 34:7
ruling [1] 63:5
running [1] 48:3

Heritage Reporting Corporation
Sheet 6

possibility - sincere

 77
Official - Subject to Final Review
single-sex [1] 48:9
sitting [1] 13:18
situated [7] 42:14 49:3,11 54:18

struck [1] 59:6
style [1] 16:22
subjected [1] 12:24
56:13 57:21 64:6
submitted [2] 70:18,20
situation [2] 38:2 69:3
subordinate [1] 51:18
situations [1] 38:22
subsequent [2] 59:4,12
skirt [1] 14:13
subset [2] 28:13 69:8
skirts [1] 14:11
substantial [1] 33:19
skydiving [1] 30:2
suffered [1] 43:24
slurs [1] 50:18
suffering [1] 13:14
so-called [1] 63:3
sufficiently [3] 37:10,11,13
sole [4] 44:11 45:4,20 59:22
suggested [2] 61:10 63:4
Solicitor [2] 2:9 37:25
suggesting [2] 15:3 52:11
somebody [6] 54:22 59:16 67:13 suing [1] 36:13
68:8,11,22
supporting [3] 2:12 3:13 52:20
somehow [1] 33:18
Suppose [3] 37:8 38:11,11
someone [11] 9:11 10:17 17:7,8,9 supposed [1] 47:24
27:2,8 36:18 48:11,11,19
supposition [1] 29:22
somewhat [1] 50:15
SUPREME [2] 1:1,20
sorry [4] 16:13 31:5 44:23 50:4
surely [1] 45:13
sort [6] 33:19 40:15 41:3 42:8 46:4 suspenders [1] 49:23
47:10

SOTOMAYOR [32] 11:25 16:12,

T

[1]
15 17:10,12,17,19 18:4,19,21 19:1, table 13:19
[1] 59:3
talked
5,10,13,16,20,24 33:10,24 34:5,9
talks [2] 45:18 51:4
35:11 50:3,5,21 51:10 56:15,19
tease [1] 33:23
61:17 65:7,23 66:10
telephone [2] 14:12 27:16
[1]
special 21:2
tells [2] 65:21 67:14
specific [1] 24:20
tends [1] 65:3
specifically [2] 53:16 61:15
term [1] 27:18
[1]
spectrum 57:10
terms [1] 23:24
spin [1] 28:23
test [17] 15:8,12 17:20,25 20:16 41:
sports [1] 12:3

Sprogis [2] 57:1 58:23
staff [1] 58:4
stand-alone [1] 33:7
standard [2] 44:14,15
standards [2] 12:2 48:5
standing [1] 44:22
Stanford [1] 2:3
start [1] 64:19
state [3] 26:13 31:14 49:17
statement [3] 7:13 59:1 65:24
STATES [11] 1:1,21 2:11 3:12 6:
16 25:24 49:15,20 52:20 70:7,7

statute [16] 6:21 7:13 11:22 13:2
22:3 23:25 24:7 28:7 32:16 35:22
44:13 45:7,18 53:24 59:11,14
statutes [7] 7:16 18:12,15 53:12,
16 60:1 61:15
statutory [1] 59:10
Stephens' [1] 20:12
stereotype [2] 6:10 9:7
stereotypes [3] 50:7,11 65:5
stereotypical [1] 57:17
stereotyping [1] 57:11
still [3] 14:15 19:17 46:11
straight [2] 27:24 53:6
straightforward [1] 60:9
strict [1] 35:21
strike [1] 57:10
strikes [1] 59:5
strip [1] 46:8
stripped [1] 46:12

12,25,25 42:4 43:3,8,10,12,13 48:
6,7,25
testing [2] 20:21 43:15
tests [1] 11:3
text [2] 59:11,14
textual [4] 28:8 60:9 63:22 65:21
theoretically [3] 68:2,4,5
theory [2] 50:22 56:7
there's [12] 8:21 9:20,23 11:7,19
17:24 33:19 47:12 52:11 55:11 59:
21 62:14
therefore [1] 24:15
they've [1] 51:8
thinking [3] 7:10 27:14 58:22
thinks [2] 18:17,20
third [3] 23:20 26:23 34:19
though [5] 10:2 24:15 42:13 54:15
63:23
three [3] 23:16 26:16 34:11
ties [2] 13:19 14:1
timely [1] 58:12
Title [31] 4:15 5:12 7:7,21 8:22 11:
12 17:4 18:13 21:2,2,18 26:25 28:
17 32:5,13 34:11 41:14 53:12,18
55:12,18 56:12 57:9 59:4,22 60:
19 62:24 63:7,10 64:3,9
today [5] 13:19 29:1 32:6 49:24 50:
1
totally [1] 42:13
Touche [1] 31:12
tough [1] 33:25

trait [4] 34:15,17 60:17 64:7
traits [6] 37:20 60:12 61:9,12 63:
25 64:5

transgender

[5] 16:18

17:8 19:7

24:17 26:4

usage [2] 12:4,5
users [1] 50:1
uses [4] 49:6,8,8 54:19
using [2] 28:7 54:4
usual [1] 59:25

Transportation [1] 11:14
V
transsexual [1] 16:21
[1] 16:9
valid
treat [5] 15:15 36:23 37:13 53:6 64:
values [1] 37:21
5
[1]
treated [12] 11:8 12:22 15:13 18:8 variable 45:15
[3] 66:5,5,7
varying
27:22 32:18 33:2 37:14 43:5 57:
veil [1] 51:18
16 58:18 65:13
[1]
treating [7] 22:19 34:23 54:16,17 version 44:1
[1] 4:5
versus
56:13 57:21 61:3
view [1] 28:18
treatment [3] 10:15 11:11 33:9
VII [29] 4:15 5:12 7:8,21 8:23 11:12
treats [3] 4:18 12:12,13
true [5] 32:6 46:19 50:9 69:5 70:14 17:4 18:13 21:2,2,18 27:1 28:17
32:5,13 34:12 41:14 53:12,18 55:
truly [2] 17:15 48:6
12,18 56:12 57:9 59:4,22 62:24
truth [2] 46:18,24
63:10 64:3,9
[2]
try 18:2 28:23
[1]
trying [8] 14:25 15:1 17:15 30:13, VII's 63:7
[2] 14:10 55:16
violate
19 33:18 54:21 66:3
violates [1] 4:15
Tuesday [1] 1:17
violation [3] 8:22 55:11 56:12
Tutwiler [1] 10:17
Virginia [1] 2:6
[25]
two
7:25 9:22 11:5 17:20 27:
Virtually [1] 64:23
15 29:8,13,20 34:18 38:2 39:13,
void [1] 16:9
17 44:16 48:2 50:15 51:20 53:4,
25 60:12 61:7,12 62:23 66:5,9 69:
25
two-comparator [1] 60:22
type [1] 63:19
typically [2] 59:8 63:8

U
ultimate [3] 33:4 44:9 51:13
ultimately [1] 20:5
umbrella [1] 6:6
unable [1] 67:15
unanimous [1] 53:13
under [14] 6:5 7:7 11:12 15:20 17:

W
wait [1] 20:20
walked [1] 7:6
wanted [4] 10:4,16 22:22 30:21
wants [10] 9:17,18 15:15,16 19:7
29:12 30:3,4,5 60:13

Washington [2] 1:16 2:10
Waterhouse [2] 7:4 46:15
way [19] 10:13 12:9,12,14 15:9 24:

19 37:14,18,19 48:7,8 56:4 57:17
58:10,13 59:25 61:9 69:25 70:15
ways [1] 41:18
[8]
3 32:5 41:14 42:17 48:5,24 50:22 wear 7:7 13:19,24 14:11,12 18:
22
19:3,7
54:2 60:19 64:8
[1]
understand [10] 14:16 17:2,4 19: weekend 8:2
[1] 10:9
weight
14,15 26:24 33:11 35:8 37:15 69:
whatever [3] 22:16 35:6 55:7
15
whatsoever [1] 52:15
understanding [2] 26:7 70:12
Whereas [1] 32:21
understood [4] 7:20 30:8,14,15
Whereupon [1] 70:19
[1]
underwriting 42:8
whether [17] 5:18 8:21 9:2 11:10
uniform [3] 13:10 19:7,10
UNITED [8] 1:1,21 2:11 3:12 52:20 15:19 21:4,17 27:5,7 32:18 33:1
41:13 52:24 53:2,5,6 67:25
57:1 58:24 70:7
whichever [1] 33:22
unlawful [1] 11:11
White [3] 12:25 13:1 27:22
unlawfulness [1] 6:3
who's [4] 29:15,24 48:11,12
unless [2] 43:17 44:4
whole [1] 68:16
unlike [1] 10:24
whom [3] 8:1 66:7 69:13
[1]
unlikely 20:25
wife [1] 25:19
unmarried [1] 55:9
will [17] 12:17 14:8 15:7,8 21:15,17
unrealistic [1] 40:10
22:5,11 23:2 28:5,22 33:25 37:13
[1]
unrelated 50:7
51:11 68:14 69:22 70:14
until [2] 7:3 28:5
[2] 12:19 29:24
willing
unwind [1] 50:15
[1] 31:13
Wisconsin
[9]
up 5:16 10:24 12:18,20 14:20
[1] 31:20
Wisconsin's
17:14 22:3 23:21 48:22
[1] 16:21
wish
updating [3] 7:15,19 63:4

Heritage Reporting Corporation
Sheet 7

single-sex - wish

 78
Official - Subject to Final Review
wishes [1] 60:3
within [3] 8:22 24:22 64:8
without [4] 33:8 44:22 63:16 70:
11

woman

[47] 7:5 9:12,14,18,18,18
15:16,16,17 19:2 22:22,23 25:11,
15,19 29:2,15 30:3,5,21,23 36:12
38:4 39:18 41:7 42:11 43:4 44:1
49:7,8 50:13 54:18,19 55:20 56:2
57:6,11,16 58:11 59:24 65:17 66:
1,2,2,17 68:1,10
woman's [2] 49:8 54:4
women [48] 4:18,25 6:11 7:10,21,
23,23 8:17 9:3 10:3,3,18 11:8,8
12:13 13:22 14:10,11 18:22 21:8
22:20 29:14,15 33:1,5 36:5,9,19,
20 37:1,6,11,24 42:10,16,18 47:11,
19 53:7 55:5,8 56:10 57:21 61:4,
24 62:19 64:5 65:13
women's [5] 12:11 21:9 38:4 48:
22 49:6
wondering [1] 16:7
word [1] 9:15
words [11] 4:16,20 5:13 6:21 7:20
8:18 22:17,19 24:15 25:19 28:17
work [4] 36:5 44:17 48:21 63:15
worked [1] 65:18
working [1] 35:7
world [3] 14:6,9 15:22
worse [3] 4:18 27:22 32:19
writes [1] 11:21
writing [1] 11:23

Y
years [5] 20:3 21:24 23:7 31:23 59:
9

young [1] 57:18

Z
ZARDA
Zarda's [1] 30:1
zero [1] 49:21

[3] 1:12,13

51:3

Heritage Reporting Corporation
Sheet 8

wishes - zero