By Sarina Deb
The Daily interviewed law professor Pamela Karlan to discuss her recent victory in a landmark Supreme Court case that prohibits discrimination against gay and transgender individuals in the workplace. Karlan and the Stanford Supreme Court Litigation Clinic, which she co-directs, represented skydiving instructor Donald Zarda who was fired for misconduct after telling a customer he was gay.
Zarda, who died before the case made it to the Supreme Court, was one of three plaintiffs in Bostock v. Clayton County Georgia, which Karlan argued in October 2019. The Supreme Court ruled in a 6-3 decision on June 15 that the Title VII of the Civil Rights Act, which prohibits discrimination “because of sex,” also applies to discrimination based on sexual orientation and gender identity.
The Stanford Daily [TSD]: Professor Karlan, you’ve been working on this landmark case for many months now, and the verdict is in and it’s in your favor. How do you feel?
Pamela Karlan [PK]: I was really pleased with the outcome. We got exactly what we were hoping for from the Court: a holding that discriminating against a worker for being gay, lesbian or bisexual is discrimination “because of … sex” as covered by Title VII of the Civil Rights Act of 1964.
TSD: What is Title VII of the Civil Rights Act of 1964? How does it inform these cases?
PK: Title VII is part of the Civil Rights Act, which was a massive response to the civil rights movement, that covers fair employment. It forbids employers with more than 15 employees from discriminating against an individual because of the individual’s race, sex, national origin or religion. It is the law that all three plaintiffs brought the suit under.
TSD: Who were the three plaintiffs, and what were they fighting for?
PK: All three plaintiffs were fired from their jobs. They believe that they were fired, in [Gerald Lynn] Bostock and Mr. Zarda’s cases, for being gay, and in [Aimee] Stephens’ case for being transgender.
TSD: How did you get involved in this case?
PK: I represented the estate of Donald Zarda. I first got involved in the summer of 2018, when a former student of mine, Greg Antollino, who has represented Don Zarda and, after his death, Don’s estate, contacted me to ask for help with representing Zarda at the Supreme Court. And James Esseks and Ria Tabacco Mar from the ACLU also were involved.
(The Supreme Court wrote its decision for three individual cases, Altitude Express v. Zarda, Bostock v. Clayton County, and Harris Funeral Homes v. EEOC. Professor Karlan represented one of the three plaintiffs, Mr. Zarda, in Altitude Express v. Zarda).
TSD: Why did you want to take on the cases?
PK: I wanted to take the case because I believe that workers should be judged on the quality of their work and not on the basis of who they are.
TSD: Can you tell us a little bit more about your argument that discrimination based on sexual orientation or gender identity is discrimination based on sex? Why is this true?
PK: We offered the court three theories on why discriminating against someone for being LGBT is discrimination because of that individual’s sex. First, it’s sex discrimination because the employer is taking action against them for something that — in Zarda’s case, being a man attracted to men — would be fine with if the individual were a woman. So if Don had been “Donna,” being attracted to men would have been fine.
Second, it’s sex discrimination because the employer is taking action against a man because that man is not conforming to normative prescriptions — that is, “stereotypes” — about how men should behave. Third, we drew an analogy to cases where the courts have held that it is race discrimination to fire someone for being in an interracial relationship.
TSD: What cases can we look to as precedent?
PK: One example is that the court in Martin Marietta said that discriminating against mothers of pre- school age children is sex discrimination. So we said that if discriminating against a woman with children at home is sex discrimination, then discriminating against a woman with a wife at home is also sex discrimination.
TSD: Can you talk a little bit about your experience arguing in front of the Supreme Court?
PK: It was a great experience. Before arguing a case at the Court, I always do a number of dry runs. You want to avoid being surprised by the questions. I was a little surprised the justices asked me so many questions about bathrooms. (During the case, justices and attorneys discussed the implications of ruling in favor of the plaintiff on bathroom usage by transgender individuals).
TSD: Which justices did you think would come down “on your side” before and after you presented your case? Did you think that you would be able to persuade any of the conservative justices? If so, which ones?
PK: I thought from the outset that we had a shot at virtually all the justices because they all profess to take the text of statutes seriously. Seven of the nine (the six in the majority plus Justice Brett Kavanaugh in dissent) agreed with us, and I was not surprised they did.
TSD: What was the most difficult counterargument or question that you had to respond to during your argument? How did you handle it?
PK: Justice Samuel Alito asked a question about what to do with respect to employers who don’t know the sex of their employees but fire anyone who is gay. I tried to explain that as long as the employee, in his or her complaint to a court, identifies his or her sex, that should be enough.
TSD: What were your thoughts while reading the majority opinion? Were you surprised that it was written by a generally more conservative justice? What does it mean for you, your case, and for the American LGBTQ+ community that two conservative justices voted to uphold protections for LGBTQ+ people and that a conservative justice wrote the majority opinion?
PK: I was pleased with the Court’s opinion, which seemed very straightforward. The fact that both more liberal and more conservative justices joined the opinion confirms that there is widespread agreement that discriminating against someone for being LGBT is a form of sex discrimination.
TSD: What did you make of President Donald Trump’s reaction to the ruling? How will this ruling affect the administration’s policies regarding LGBTQ+ individuals?
PK: I don’t care what President Trump thinks of the ruling. I think the ruling casts serious doubt on some of the administration’s policies.
TSD: Some are saying that the ruling left the question of whether religious exemptions can apply to cases like these open. What role did you think religion and religious freedom and liberty should play legally when considering whether an employer can discriminate against a person based on sexual orientation or gender identity?
PK: There are a variety of doctrines that potentially permit some religiously motivated employers to take sexual orientation and gender identity into account in their employment
TSD: Two of the plaintiffs in the case, Mr. Zarda, who you represented, and Ms. Stephens, are now unfortunately deceased. If you could talk to them now what would you say to them about the outcome of the case and their role in it?
PK: I would thank them for having the courage and commitment to bring their cases and for their faith in the legal system.