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An Amici Curiae Nos. 17-1618, 17-1623, 18-107 IN THE Supreme Court of the United States GERALD LYNN BOSTOCK, Petitioner, v. CLAYTON COUNTY, GEORGIA, Respondent. ALTITUDE EXPRESS, INC., and RAY MAYNARD, Petitioners, v. MELISSA ZARDA and WILLIAM MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, Respondents. R.G. & G.R. HARRIS FUNERAL HOMES, INC., Petitioner, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and AIMEE STEPHENS, Respondents. ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE ELEVENTH, SECOND, AND SIXTH CIRCUITS BRIEF OF GLBTQ LEGAL ADVOCATES & DEFENDERS, NATIONAL CENTER FOR LESBIAN RIGHTS, ET AL. AS AMICI CURIAE IN SUPPORT OF THE EMPLOYEES ALAN E. SCHOENFELD Counsel of Record WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937-7518 [email protected] ADDITIONAL COUNSEL AND REPRESENTATION INFORMATION ON INSIDE COVER MARY BONAUTO LEON T. KENWORTHY GLBTQ LEGAL ADVOCATES JAMES BARTON & DEFENDERS WILMER CUTLER PICKERING 18 Tremont St., Suite 950 HALE AND DORR LLP Boston, MA 02108 1875 Pennsylvania Ave., NW Counsel for GLAD Washington, DC 20006 CHRISTOPHER D. DODGE CHRISTOPHER STOLL WILMER CUTLER PICKERING JULIE WILENSKY HALE AND DORR LLP SHANNON MINTER 60 State Street NATIONAL CENTER FOR Boston, MA 02109 LESBIAN RIGHTS 870 Market Street, Suite 370 Counsel for amici curiae San Francisco, CA 94102 Counsel for NCLR TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................... ii INTEREST OF AMICI CURIAE ..................................... 1 INTRODUCTION ............................................................... 7 ARGUMENT ........................................................................ 9 I. A Rule Excluding Discrimination Against Lesbian, Gay, Bisexual, Or Transgender Persons From Title VII Is Unworkable And Leads To Inconsistent Results .......................... 9 A. Courts’ Attempts To Apply A Rule Excluding Discrimination Against Lesbian, Gay, And Bisexual Plaintiffs From Title VII Have Led To Confusion And Inconsistent Outcomes .............. 9 B. With Near Uniformity In The Last Twenty Years, Courts Have Refused To Draw Arbitrary Lines In Cases Brought By Transgender Plaintiffs, Avoiding The Confusion Endemic To Cases Involving Lesbian, Gay, And Bisexual Plaintiffs ............................................... 15 II. Enforcing Title VII According To Its Text And In Accordance With This Court’s Precedents Will Ensure Consistent Outcomes And Provide Clear Guidance To Lower Courts .............................................................. 17 CONCLUSION .................................................................. 21 ii TABLE OF AUTHORITIES CASES Page(s) Arkansas Electric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375 (1983) ..................................................... 18 Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641 (July 16, 2015) ............................................................................. 19 Bibby v. Philadelphia Coca Cola Bottling Co., No. 00-1261, 2001 WL 919976 (3d Cir. Aug. 1, 2001) ......................................................................... 10 Boutillier v. Hartford Public Schools, 221 F. Supp. 3d 255 (D. Conn. 2016) .................................... 13 Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ............................................................................. 14 Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) ............................................... 19 Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ......................................................... 12, 13 EEOC v. Boh Bros. Construction Co., 731 F.3d 444 (5th Cir. 2013)....................................................... 12 EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) ............................... 7 Estate of D.B. by Briggs v. Thousand Islands Central School District, 169 F. Supp. 3d 320 (N.D.N.Y. 2016) ................................................... 13 Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) ............................................................................ 18 iii TABLE OF AUTHORITIES—Continued Page(s) Fabian v. Hospital of Central Connecticut, 172 F. Supp. 3d 509 (D. Conn. 2016) ................... 15, 16 Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ................................................................... 7, 15, 16 Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) ........................... 14 Hertz Corp. v. Friend, 559 U.S. 77 (2010) ...................... 17 Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017)................... 7, 8, 10, 14, 19 Kay v. Independence Blue Cross, 142 F. App’x 48 (3d Cir. 2005) .......................................................... 12 Koon v. United States, 518 U.S. 81 (1996) ..................... 17 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) ............................................. 8, 19, 20 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) ..................................................................... 18 Payne v. Tennessee, 501 U.S. 808 (1991)........................ 18 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ............................................................................ 15 Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009) ........................................................ 12 Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) ..................................................... 7, 15, 16 Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000).............................................................. 10 iv TABLE OF AUTHORITIES—Continued Page(s) Trigg v. New York City Transit Authority, No. 99-CV-4730, 2001 WL 868336 (E.D.N.Y. July 26, 2001) ............................................................... 10 Vasquez v. Hillery, 474 U.S. 254 (1986) ......................... 18 Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006)....................................................... 11 Whitaker By Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) ...................................... 7 Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) ................................................... 7, 8, 9, 13 INTEREST OF AMICI CURIAE1 Through strategic litigation, public policy advocacy, and education, GLBTQ Legal Advocates & Defenders (GLAD) works in New England and nationally to cre- ate a just society free of discrimination based on gender identity and expression, HIV status, and sexual orien- tation. GLAD has litigated widely in both state and federal courts in all areas of the law in order to protect and advance the rights of lesbians, gay men, bisexuals, transgender individuals, and people living with HIV and AIDS. GLAD has an enduring interest in ensuring that employees receive full and complete redress for violation of their civil rights in the workplace. The National Center for Lesbian Rights (NCLR) is a national non-profit legal organization dedicated to protecting and advancing the civil rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has played a leading role in securing fair and equal treat- ment for LGBT people and their families in cases across the country involving constitutional and civil rights. NCLR has a particular interest in promoting equal op- portunity for LGBT people in the workplace through legislation, policy, and litigation, and represents LGBT people in employment and other cases in courts throughout the country. 1 No party authored this brief in whole or in part, and no one other than amici, their members, and their counsel made a mone- tary contribution intended to fund the preparation or submission of this brief. All employers and the United States have filed blan- ket letters of consent to the filing of this brief. Amici obtained written consent from the employees to the filing of this brief. 2 Advocates for Youth (Advocates) partners with youth leaders, adult allies, and youth serving organiza- tions that promote policies and champion programs re- lated to young people’s sexual and reproductive health and rights. Advocates works alongside thousands of young people here in the U.S. and around the globe as they fight for sexual health, rights, and justice. Advo- cates envision a world in which marginalized young people are not discriminated against based on their ac- tual or perceived sexual orientation or gender identity and expression. The Disciples LGBTQ+ Alliance is a network of congregations and individual members of the Christian Church (Disciples of Christ) called to join in God’s work of transforming the Christian Church into a just and inclusive church that welcomes persons of all gender expressions and sexual identities into the full life and leadership of the church; and to work ecumenically in advocacy for LGBTQ+ people, voicing our faith position about equality and inclusion in secular/cultural issues. Equality Arizona is a non-profit organization dedi- cated to building the cultural and political power of the LGBTQ community in Arizona. Since our founding in 1992, we have led the fight for LGBTQ equality in Ari- zona by advocating and organizing for the civil and hu- man rights of LGBTQ individuals
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