There is a body of employment law holding that differential dress codes for men and women don’t ordinarily amount to sex discrimination. So if that’s the question for the Supreme Court, Aimee Stephens loses on that score as well.
Both versions of the questions, from the Alliance Defending Freedom and the court, invoke the case of Price Waterhouse v. Hopkins. This 1989 decision expanded the concept of discrimination to hold that an employer who penalizes an employee who doesn’t conform to a stereotypical idea of the proper appearance or behavior for that person’s gender can be found to violate Title VII. The precedent has played an important role in litigation on behalf of gay men and lesbians, and it will play an important one in this case as well. The court’s rephrased question makes it clear that the justices read Price Waterhouse as encompassing a broad view of stereotyping, well beyond the dress code issue. That was the view taken by the United States Court of Appeals for the Sixth Circuit in its ruling on behalf of Ms. Stephens. By discriminating against a transgender employee, the appeals court said, an employer is necessarily “imposing its stereotypical notions of how sexual organs and gender identity ought to align.”
I have no inside information about what went on at the court during the prolonged consideration of this case. But I believe that there was an extended negotiation among the justices, aimed at crafting questions that would open up the case rather than skew it in the employer’s direction.
I’m reminded of something that happened a quarter-century ago when another potential landmark case, Planned Parenthood v. Casey, reached the court. The petition was filed in late 1991 by abortion-rights advocates who believed that the court, following the retirements of its leading liberal justices, was about to overturn Roe v. Wade. The advocates’ calculation was that if this was going to be the outcome, it would be better for it to happen quickly and decisively, in time for the 1992 presidential election to become a referendum on the right to abortion and to awaken what polls showed to be a large silent majority favoring abortion rights. So they asked the court to decide a broad question: Was Roe v. Wade still good law?
The court refused to put itself to that all-or-nothing test. Instead, it rewrote the question to address specifically the constitutionality of the three Pennsylvania abortion restrictions that were at issue. As I later learned from internal court correspondence when I was writing a biography of Justice Harry Blackmun, the author of Roe v. Wade, the instigator of this change was Justice David Souter, who said he wanted to rephrase the question “in such a way as to avoid overruling Roe.” Justice Souter, who was then one of two justices recently appointed by President George H.W. Bush, went on to provide a crucial vote as one of the five justices who preserved the right to abortion.
The times, the cases and the court are different now, of course. But the Casey story shows us that the justices are capable of taking great care not to permit overly zealous advocacy to back them into a corner.
The other two Title VII cases the court granted on Monday are Bostock v. Clayton County, Ga. and Altitude Express v. Zarda. The justices did not reword the questions in either of these cases. The wording in both is straightforward and to the point. The Bostock petition asks “Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of … sex’ within the meaning of Title VII. …” The Altitude Express petition’s question is only slightly different: “Whether the prohibition in Title VII of the Civil Rights Act of 1964 … against employment discrimination ‘because of … sex’ encompasses discrimination based on an individual’s sexual orientation.”