Holy Dictum: Federal Judge Rejects Protection Against Transgender Discrimination in “Elegant Aside”

Posted in: Civil Rights

What happens when parties do not disagree about a legal issue, but a judge feels like addressing it anyway? The result is dicta—proclamations about the law that are not necessary to resolve the case or controversy before the court. That is the only way to understand the Fifth Circuit’s recent ruling in Wittmer v. Phillips 66 Company, in which a federal appellate judge concurred to his own majority opinion for the purpose of addressing an issue not raised by either party—whether Title VII protects against transgender discrimination—and offering a resounding “no.”

The Actual Controversy: Why Was an Offer of Employment Rescinded?

Nicole Wittmer, a transgender woman, applied for an engineering job with Phillips 66. Asked why she would consider leaving her current job, she said she did not want to undertake the significant travel to Canada that ongoing projects would require. She was offered the job, contingent on passing a background check. A human resources manager discovered that she had actually been terminated from her previous job, and executives at Phillips 66 thus decided to rescind the offer of employment. Two days later, Wittmer sent an e-mail to the human resources manager accusing the company of transgender discrimination.

Wittmer sued, arguing as a legal matter that Title VII of the Civil Rights Act of 1964 protects against transgender discrimination as part of its prohibition against discrimination “because of sex.” She also argued as a factual matter that her transgender status was the basis for the employer’s decision to rescind the offer. Phillips 66 took no position on the legal question; it didn’t argue at trial or on appeal that transgender discrimination is not covered by Title VII, even though a successful argument in that vein would have insulated it from liability. Rather, the employer disputed only the facts, arguing that it had no knowledge of her transgender status at the time the offer was rescinded and had made the decision based solely on the discovery of her misrepresentation. The federal district court agreed and granted summary judgment to the employer.

Wittmer appealed, arguing that transgender discrimination was the real reason the offer was rescinded; Phillips 66 argued, as it had below, that that the action was based on a non-discriminatory reason. Phillips 66 asked the Fifth Court to affirm its victory on the same, specific ground it won on below.

The EEOC—the federal agency charged with enforcing Title VII—and several advocacy groups asked the Fifth Circuit to rule that Title VII protects against transgender discrimination. Since Phillips 66 did not argue to the contrary, the Fifth Circuit appointed a lawyer to argue against the EEOC’s position. Game on, but with only a referee and no real players.

The Majority Opinion in Wittmer v. Phillips 66 Company: Short and Sweet

A three-judge panel of the Fifth Circuit affirmed the district court’s ruling in favor of Phillips 66. In a short opinion written by Judge James Ho, the court concluded that Wittmer had failed to prove she experienced discrimination because of her transgender status. She had failed, in the court’s view, to show that non-transgender applicants were treated better than she was and, more importantly, that the reason offered by Phillips 66 (her misrepresentation about current employment) was pretextual. It thus affirmed summary judgment for the employer. All three judges on the panel joined that opinion.

But Judge Ho also filed a concurrence—to his own majority opinion. There, he considered at length whether Title VII prohibits gender identity discrimination—a question not raised on appeal—and purported to affirm an old Fifth Circuit precedent, Blum v. Gulf Oil Co. (1979), which held that Title VII does not cover sexual orientation discrimination—a separate issue, also not raised in this case. Judge Higginbotham also wrote a concurrence, but only to point out that Blum’s “continued vitality” was not at issue and that the majority did not reach that issue “because we cannot, even with elegant asides.”

Judge Ho’s Concurring Opinion: A Long and Winding Road

Judge Ho’s first move is to lump discrimination on the basis of transgender status (the case before the court) with discrimination on the basis of sexual orientation. This allows him to opine on sexual orientation discrimination, which is, it seems, his true passion. Combining discussion of the two types of discrimination is not crazy—some of the arguments are similar. But they’re not identical, and the jurisprudence, despite Judge Ho’s contention, is not at all the same.

Judge Ho notes that “Three circuits to date have construed Title VII to prohibit sexual orientation discrimination or transgender discrimination.” Two of the cases he’s writing about—Hively v. Ivy Tech Community College (2017) (Seventh Circuit) and Zarda v. Altitude Express, Inc. (2018) (Second Circuit)—are sexual orientation cases. And those two cases, discussed here and here, do represent a major departure from earlier cases involving sexual orientation discrimination under Title VII. The third case, EEOC v. R.G. & G.R. Harris Funeral Homes is a transgender case from the Sixth Circuit. It, however, does not represent such a marked departure from the norm. The Sixth Circuit held as early as 2004, in Smith v. City of Salem, that Title VII can be used to challenge discrimination against transgender employees. Many courts since then have reached the same conclusion under Title VII, as well as other anti-discrimination laws like Title IX. (Some of that history is reviewed here.)

In lumping the two types of discrimination together and spending a lot of time discussing sexual orientation discrimination, Judge Ho is now two steps removed from his case at hand, a case that involves transgender discrimination and one that was, in any case, resolved on another basis by both the lower court and his own Fifth Circuit majority opinion. Once plunged into dicta, Judge Ho describes the issue as one that “has deeply divided respected jurists in other circuits in recent years.” True, but beside the point. Some judges have taken opposing sides, but the issue has not deeply divided the courts in recent years. The outcomes in the en banc opinions he cites for this proposition (Hively and Zarda) both found sexual orientation discrimination actionable by large margins (8-3 and 10-3 majorities, respectively). And the opinion in the Sixth Circuit’s transgender discrimination case, by no less respected jurists, was 3-0.

Sex Blindness Versus Sex Favoritism

On substance, Judge Ho’s argument goes awry almost immediately. He frames the entire issue as coming down to “two competing schools of thought” about what it means to discriminate because of sex under Title VII. The first, which he calls the “longstanding view, universally accepted by federal circuits over forty years,” is that employers are not allowed to favor men over women, or vice versa. He contrasts this with the approach supposedly taken by the three recent circuit court decisions, which is that employers must not only resist favoritism, they must be entirely blind to a person’s sex. Neither interpretation, Ho says, is foreclosed by Title VII, but he believes the traditional approach is better.

The framing itself is fraught. These “two competing schools of thought” may be the way that Judge Ho organizes the issues, but they do not align with the relevant jurisprudence or scholarship. While it’s generally true that favoring one sex over another is unlawful, employers are permitted to do this in some contexts. Employers may, for example, treat one group more favorably than another pursuant to a bona fide affirmative action plan in order to remedy past discrimination (Johnson v. Transportation Agency (1987)), and treat pregnant women more favorably than non-pregnant employees (California Federal Savings & Loan Ass’n v. Guerra (1987)). Employers in those cases were given explicit license to consider an employee’s sex.

Outside of these particular situations, though, courts have adhered to a sex-blind standard. In fact, the Supreme Court tackled a closely related issue in case that’s now more than four decades old: Los Angeles Department of Water & Power v. Manhart (1978). In Manhart, the Court considered a challenge to the City of Los Angeles’s policy that required female employees to make larger contributions to the pension fund than the male employees because they, on average, live longer. The Court concluded that this plan violated Title VII, making clear that while fairness to a particular class (men, women) affected by the statute may be relevant, it’s not the end of the story. The Department attempted to defend its policy by claiming that it resulted in fairness to all classes of workers. The Court was having none of it: “Congress has decided that classifications based on sex, like those based on national origin or race, are unlawful.” Title VII was intended to make race and those other factors “irrelevant” in the employment market. Most significantly, the absence of a discriminatory effect on men or women as a class could not be used to justify an employment practice that, on its face, treated individual men and women differently. Judge Ho’s repeated claim that Title VII only applies in situations where members of one sex are favored skirts the central holding in Manhart.

This sex-blind approach is also consistent with the way that courts analyze these claims. The Supreme Court has made it clear, numerous times, that the focus of the statute is whether individual employees get held to different standards because of their sex or race. This is what makes comparators—employees who are the same in all respects except for the protected characteristic (sex, in this case)—the evidentiary gold standard. Treating a man who is attracted to men differently than a woman who is attracted to men is a simple case of sex discrimination. Now, one could argue that the proper comparison is between an employer’s treatment of a gay man and a lesbian. But that comparison is the very definition of question-begging: as the Hively court pointed out, “It makes no sense to control for or rule out discrimination on the basis of sexual orientation if the question before us is whether that type of discrimination is nothing more or less than a form of sex discrimination.”

But What About the Bathrooms?

Judge Ho moves quickly to what he clearly thinks is a trump card when it comes to his sex blindness point: bathrooms. He leads with and repeatedly returns to the prospect that a sex-blind approach to Title VII would forbid employers from maintaining sex-segregated bathrooms and changing rooms. “[T]his case,” warns the judge in a typical passage, “does not simply concern sexual orientation and transgender discrimination. It affects every American who uses the restroom at any restaurant, buys clothes at any department store, or exercises at any gym.” It would even, Judge Ho contends, apply to bathrooms and locker rooms in schools!

Now, give Judge Ho his rhetorical due: that’s a bogeyman we haven’t seen in full form since Phyllis Schlafly was shopping her opposition to the Equal Rights Amendment back in the 1970s and 1980s. (Though we’ve seen a slightly different form of it more recently, when several states, including Texas, sought to pass “bathroom bills” in order to root out the imaginary menace of transgender people using the “wrong” bathroom. A window into that controversy can be found here.) But let’s try to take the emotion out of it and deal with the more serious reductio argument at its core: that this sex-blind view can’t be right because it mandates an absurd result.

Initially, it’s not at all clear that the elimination of sex-specific restrooms is jurisprudentially absurd. Judge Ho doesn’t cite any controlling cases for that proposition because there aren’t any. And most related jurisprudence, including that of the Supreme Court, takes a pretty hard line on the illegality of all sex-based classifications regardless of discriminatory effect. (A better tack would have been the sex-specific grooming and dress code cases (discussed briefly here) that litter the lower courts despite being inconsistent with straightforward readings of Manhart and Price Waterhouse). It’s not at all clear that Title VII doesn’t demand unisex restrooms, and at least some amici in these types of cases have argued that it does. (One would think that the civil rights law also prohibits an employer from maintaining racially segregated bathrooms.)

If we adopt a sex-blind view, are we stuck with unisex bathrooms? Maybe, but maybe not. Some have suggested that restrooms aren’t significant enough to rise to the level of a term or condition of employment. But that doesn’t seem like a promising way to distinguish restrooms and, as Judge Ho correctly points out, as soon as someone gets fired for using the wrong restroom it certainly rises to the level of a material condition of employment. A more promising route would be for an employer seeking to maintain separate restrooms to rely on a Bona Fide Occupational Qualification (BFOQ) defense, which allows employers to discriminate on the basis of sex, national origin, or religion when those traits are reasonably necessary to the essence of the business. A benefit of this analysis is that there is no BFOQ for race or color classifications, so we do not have the same potential for racially segregated bathrooms.

The BFOQ in a case like this would, ostensibly, be based on bodily privacy. Numerous courts have found personal privacy to be an acceptable basis for the BFOQ defense, even in situations where the privacy of the people involved were prison inmates. And although the defense does not neatly apply to workplace conditions (it applies more directly in the hiring and firing context), many courts have figured out a way to make it work in such situations and, in any case, conditions cases can be converted to discharge cases as soon as the first employee uses the “wrong” restroom. In the end, we don’t expect that courts that share Judge Ho’s fear of unisex bathrooms will hesitate to allow BFOQ defenses in such cases. (We also haven’t yet noticed a flood of bathroom cases in the three circuits that have taken this “sex-blind” approach.) The specter of unisex bathrooms and changing rooms is really, in the end, a pretty pathetic ghost story.

Judge Ho’s Case for a Favoritism Interpretation of Title VII: Of Elephants and Mouseholes

Let’s turn, then, to Judge Ho’s actual arguments in favor of his interpretation. He argues first the original public meaning of Title VII did not include sexual orientation or transgender discrimination. This is, as he points out, a largely uncontested point. It’s also an irrelevant one. Aside from Judge Posner’s position that courts should pragmatically “update” the meaning of statutory terms, not a single argument in the majority opinions in Hively, Zarda, or Harris Funeral Homes relies on a new definition of “sex.” They depend, instead, on the original public meaning of sex as biological sex, male and female. They then proceed, in a number of convincing ways, to demonstrate that discrimination on the basis of sexual orientation or transgender status is necessarily a subset of discrimination on the basis of biological sex.

Congress surely did not think through all the possible applications of the original prohibitions. But, as the Supreme Court has repeatedly noted, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” (Oncale v. Sundowner Offshore Services, Inc. (1998)). The 1964 Congress also didn’t contemplate Title VII would prohibit hostile work environments, discrimination against women with pre-school age children, sex stereotyping, or same-sex harassment. Yet the Supreme Court has interpreted Title VII to ban all of these things as forms of sex discrimination.

Judge Ho’s second argument involves the application of a canon of statutory construction: the so-called “elephant” canon. Congress, it is argued, “does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” (Whitman v. American Trucking Associations (2001)). In other words, when a statute contains ambiguous language, courts should resist an interpretation of that language that results in a significant change. If Congress had intended such a big change, it would have used more precise language. Because construing Title VII to prohibit sexual orientation and transgender discrimination is a momentous change, Judge Ho argues (he returns to the bathroom point here), that the elephant canon counsels courts to reject that interpretation.

Where to start? Statutory canons, including this one, are often deployed when a court needs help interpreting ambiguous or vague statutory terms. But here, as discussed above, the arguments don’t turn on some ambiguity in the definition of “sex,” so canons of statutory construction are probably irrelevant. (Indeed, Judge Ho’s first argument is precisely that there is no dispute about what Congress meant when it said “sex” in 1964, an argument that is conceded by virtually everyone.) An ambiguity is not the same thing as a failure to contemplate all possible applications of an agreed-upon definition. The arguments here depend on the plain meaning of the statutory terms.

More generally, it should be noted that canons of construction are the last refuge of judges grasping for their preferred outcomes. Karl Llewellyn pointed out the folly of the canons almost seventy years ago, explaining that for every canon one can find a canon that opposes it. With hundreds of canons to choose from, judges tend just to choose those that support their point of view rather than the other way around. But if canons are your thing, here’s another longstanding one: remedial statutes should be broadly construed, a canon invoked routinely in anti-discrimination cases. See how easy that was?

Is it Sex Discrimination or Not?

After an already long haul, Judge Ho finally makes a couple of arguments that were considered and rejected by the Seventh and Second Circuits. The first is the argument that that if Congress meant to ban sexual orientation and transgender discrimination it could have said so explicitly, as it does in some later statutes. The Hively court specifically addressed that question—replying, among other things, that “Congress may certainly choose to use both a belt and suspenders to achieve its objectives, and the fact that “sex” and “sexual orientation” discrimination may overlap in later statutes is of no help in determining whether sexual orientation discrimination is discrimination on the basis of sex for the purposes of Title VII.” Judge Ho doesn’t respond to this counterargument.

Judge Ho also positively mangles the majority’s argument that sexual orientation and transgender discrimination is a form of sex stereotyping outlawed by Supreme Court in Price Waterhouse v. Hopkins (1989). There, the Court found that an adverse employment decision based on an employee’s failure to conform to sex stereotypes is actionable sex discrimination. Sexual orientation and gender identity discrimination boil down to stereotypes that men should appear masculine and be attracted to women, and women the opposite. Punishment for the failure to conform is discrimination. Judge Ho tries to argue that Price Waterhouse doesn’t make sex stereotyping “per se unlawful,” it only does so when it results in “disparate treatment” or when decisionmakers place “substantial negative reliance” on it. But that, of course, is what happens—when an employer takes adverse action against a man for failing to comply with a male stereotype, it is singling out a subclass of men (and men alone) for disparate treatment, which directly harms the nonconforming employee. To read Price Waterhouse as Judge Ho does, you’d have to assume that the Court would have let Price Waterhouse off the hook for failing to promote Ann Hopkins if it could prove that it also discriminated against men for failure to comply to their own masculine stereotypes. There’s not a trace of evidence in that case (or later cases) that such a doubling down on stereotypes will insulate employers from liability.

Judge Ho also addresses an analogy to race discrimination that’s come up in a number of the cases, specifically the analogy to the way the Supreme Court analyzed anti-miscegenation laws in Loving v. Virginia, the 1967 case in which the Court held that interracial marriage bans violate the Constitution. The state law challenged in that case restricted marriage to couples who were of the same race—whites could only marry whites, blacks could only marry blacks, and so on. The plaintiffs argued that the law prevented a black person from doing something that a white person could do—specifically, marry a white person. Virginia argued the law did not discriminate because each race was required to marry within the same racial group. The Court flatly rejected the “equal application” theory and noted that the law was actually in place to reinforce and perpetuate a racial hierarchy with whites on top.

Those who traffic in this argument in the sexual orientation and gender identity context suggest that there is no discrimination because no one is allowed to be attracted to a member of the same sex or to transition from one sex to the other. But that’s exactly the move rejected by the Supreme Court in Loving.

Judge Ho’s answer to this racial analogy is a reasonable one (and one, we think, hasn’t been fully addressed by the courts). One of the main reasons the Loving Court rejected this line of reasoning is that Virginia’s law was intended to reinforce white supremacy. As Judge Ho puts it, it was rejected because “prohibitions on interracial marriage are racist, pure and simple.” But, the argument goes, actions policing sexual orientation and transgender status aren’t part of a broader program of sex discrimination. And, in any case, the Supreme Court didn’t rely on this type of reasoning when it struck down bans on same-sex marriage in Obergefell v. Hodges (2015).

Initially, it should be pointed out that the Loving decision did not, in fact, turn on the fact that Virginia’s anti-miscegenation law was designed to reinforce a program of white supremacy. Indeed, the Loving Court specifically stated, “we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the ‘integrity’ of all races.” The Hively majority opinion mentions this aspect of Loving, but it goes ignored in Judge Ho’s concurrence.

But even if the reasoning in Loving did turn on the perpetuation of a racial hierarchy, that would not cut against using the same reasoning in these sex discrimination cases. Sexual orientation and transgender discrimination are, in fact, sexist, pure and simple. They are part and parcel of maintaining a sex hierarchy. As we pointed out in a previous column, discrimination on the basis of characteristics such as sexual orientation and transgender status (as well as dress and grooming) are all attempts to police the gender line. Transgender people, for example, present a direct challenge to the existence of a simple division between the sexes. People who were born with one set of sexual organs but identify and present as members of the opposite sex blur the lines between sexes, and make clear that the relationship between sex and gender is complicated. Blurred lines threaten the hierarchical system. As we explained in that earlier column:

Maintaining the distinction between men and women wouldn’t be important if, for most everything, they weren’t treated differently. That is, when equality is the rule, then drawing a distinction really doesn’t matter—whether you’re on one side of the gender line or the other (or somewhere in between), you’re treated the same. At home. At school. At work. At church. At the country club. The distinction matters precisely because equality isn’t the rule in many of those places—the gender division reflects a longstanding hierarchy, with men on top. And if we can’t tell who’s who because people challenge gender conventions—by wearing the wrong color, or marrying someone of the wrong gender, or, even worse, trying to become someone of the other gender, chaos ensues.

It’s hard to maintain sexual inequality when you can’t tell what, exactly, makes someone a boy or a girl, a man or a woman. And the fact that the Supreme Court didn’t explicitly rely on this kind of reasoning in Obergefell doesn’t reflect a rejection of it—the Court just had other grounds for reaching the same conclusion.

Thus end the substantive arguments in Judge Ho’s concurring opinion. It’s remarkable that he would take the time to write such an opinion while failing to directly address a number of the arguments and counterarguments made in the cases that he finds so upsetting. These oversights include what is perhaps the most straightforward iteration of the argument, put forth in the majority opinion in Zarda and Judge Flaum’s concurrence in Hively, that the very definition of sexual orientation means accounting for the sex of the person and the sex of the person to whom he or she is attracted. Sexual orientation is therefore a function of biological sex. And, for Title VII, that’s all it takes, since the law states that sex cannot be “a motivating factor for any employment practice, even though other factors also motivated the practice.”


Judge Ho ends his concurring opinion with a civics lesson. He warns of the “confidence” lost when, after hard-fought legislative compromises, “courts surprise the people with rulings that bear no resemblance to our common language.” He worries that “people are losing faith in their institutions—and that our courts are giving the people reason to do so.” And, certainly, the legitimacy of our governmental institutions is quite important (and presently under threat). But the opinions Judge Ho complains of—the considered holdings of three circuit courts, two of them by large en-banc majorities—are hardly good examples of the judicial branch driving outside its lane. Judge Ho’s concurring opinion, however, is a textbook example of it, opining broadly on sexual orientation discrimination in a transgender case that was completely resolved on other grounds. A civics lecture from a judge who just wrote an op-ed piece masquerading as a concurring opinion is rich indeed.