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And therefore, there, too, on that separate ground, they should win. Well, there are two basic points. But the second is that these are distinct traits.

Sex and gender identity, like sex and sexual orientation, are different traits. They have different definitions. And it may well be that Congress should protect the second thing, too, the government says. May I ask you to respond to what some people will say about this court if we rule in your favor? And what they will say is that whether Title VII should prohibit discrimination on the basis of sexual orientation is a big policy issue. And it is a different policy issue from the one that Congress thought it was addressing in And Congress has been asked repeatedly in the years since to address this question.

The Equality Act is before Congress right now. Congress has declined or failed to act on these requests. And if the court takes this up and interprets this statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature. The second thing that was going out at the argument was barely legal.

It was more cultural. There was a lot of talk about the supposed social upheaval that would follow by a ruling in particular in favor of Aimee Stephens. There was a lot of talk about sports teams, and dress codes, and especially and endlessly about restrooms. So the hard question is, how do we deal with that?

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Does that argument hold up when you get to specific work requirements? But the fixation on restrooms was really extraordinary. So why are the justices, and it feels like both from the left and the right, fixated on this? And I guess those are deeply ingrained cultural norms. And people on both sides of the ideological aisle on the court really were troubled by and were trying to figure out how to deal with the question that not in this case, but in some future case, they might have to decide whether not letting a transgender person use a bathroom is the kind of adverse employment action that could give rise to a lawsuit.

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So, Adam, what do you make of these questions and these reactions from the justices at this point in the hearing? What does it tell you about their thinking? So I walk into this argument thinking what I usually think, that typically the five Republican appointees, the five conservatives, are going to be on one side, ruling against the gay and transgender people, and the four Democratic appointees, the four liberals, on the other side.

But some things got scrambled. And there were questions from the right side of the court, which seemed very sympathetic to the argument that, listen, the words mean what they mean. And they may well protect gay people and transgender people. And he just about says, listen —. The judge finds it very close. If that were the only question in the case, the words seem to protect these people. And then he pauses for a beat and says —. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision?

But what about the social upheaval that would result?

Which, by the way, is not a particularly legitimate question for courts to take account of if their job is to interpret the law. Congress makes the law, and the consequences of the law are for Congress to worry about, not courts. So I walk out thinking, what do you know? The four liberal votes are probably locked in. But Aimee Stephens needs a fifth vote to win. It might well be Neil Gorsuch. And it may be yet another case along the usual lines.

But it did seem that Gorsuch, in particular, was really struggling with his intuition that the words mean what the plaintiffs, what Aimee Stephens, say they mean. It feels like the central tension here is not about whether the text of the law applies to Aimee Stephens.

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It sounds like, in many cases, they think it does. Exactly right. We take account of legislative history and conference reports and floor reports, and we try to figure out what Congress meant to do. And here, they kind of flipped sides. And a little more broadly, I think the court has basically reconciled itself to the fact that they made four major gay rights decisions, and that gay people ought to be protected.

The transgender case really does sound like because of sex. The sexual orientation case is a little further away from because of sex. But culturally, the court seems O. So, Adam, knowing everything you know about this court and having sat through all this, what do you think is going to happen in this case? The five more conservative members of the court are likely to rule in lockstep against her. If she picks up one vote, she wins. Walking out of the courtroom, I thought it was a little closer than you might have thought. But if you had to put money on it, this is, in this kind of big culture-wars kind of case, a conservative court.

Which would mean that in the case of a judge like Gorsuch, if he joins the conservatives against Aimee Stephens, he will have been prioritizing these fears of societal upheaval that he thinks would result over perhaps the kind of straight legal textural arguments. I wonder if you have had any interactions with your boss there. I did keep in contact with some of my close friends at work. But the ones that were closest to me have since passed on. I have been there for visitations to friends and things that have died and passed on. Well, we used to go eat at a particular Chinese restaurant when I was presenting as male.

And we were in there eating one weekend. And she turned around and she looked at me and she says, he is now a she. And you could have drove a freight train in its mouth because his jaw dropped. But to me, life was more important than dying. And it would be nice to be able to work a job that I truly loved, that I was good at.

General Resources

I want to let you know, as you may know already, that we will begin our open hearings in the impeachment inquiry next week. We will be beginning with the testimony of Ambassador Taylor and Ambassador Kent. On Wednesday, House impeachment investigators said that the public phase of their inquiry would begin next week, with televised testimony from three senior officials from the State Department who will lay out their case against President Trump.

And I think you will see throughout the course of the testimony — not only their testimony, but many others — the most important facts are largely not contested. We are getting an increasing appreciation for just what took place during the course of the last year, and the degree to which the president enlisted whole departments of government in the illicit aim of trying to get Ukraine to dig up dirt on a political opponent. We simply want to ensure that there is integrity in the process.

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We owe this to the people of Kentucky. The election was a closely watched test of the politics of impeachment, with Bevin, an unpopular incumbent, aligning himself with President Trump and claiming that Beshear represented the forces threatening the president. And without Justice Kennedy, who joined four liberals in the 5-to-4 ruling granting same-sex couples the right to marry , the workers who sued their employers in the three cases before the court may face an uphill fight.

For the most part, the justices seemed divided along predictable ideological lines on Tuesday. But there was one possible exception: Justice Neil M. Justice Gorsuch is an avowed believer in textualism, meaning that he considers the words Congress enacted rather than evidence drawn from other sources. And he repeatedly suggested that the words of Title VII may well bar employment discrimination based on sexual orientation and transgender status.