26
Fla. L. Weekly Fed. C1300aTop of Form

Civil
rights — Employment discrimination — Appeal from sua sponte order dismissing
complaint alleging plaintiff who was formerly employed as hospital security
guard was discriminated against because of her sexual orientation and gender
non-conformity and was retaliated against after she lodged complaint with
employer’s human resources department — Gender non-conformity —
Discrimination based on gender non-conformity is actionable; however, plaintiff
in her pro se complaint failed to plead facts sufficient to create
plausible inference that her decision to present herself in a masculine manner
led to adverse employment actions — Although dismissal of gender
non-conformity claim would have been appropriate on this basis, circumstances
entitle plaintiff to an opportunity to amend her complaint one time unless
doing so would be futile — Sexual orientation — Title VII action alleging
workplace discrimination based on sexual orientation is foreclosed by binding
precedent — Discussion of Blum v. Gulf Oil Corp. and its statement
concerning viability of Title VII sexual orientation claim — Retaliation —
Plaintiff waived challenge to district court’s dismissal of her retaliation
claim by failing to specifically object

JAMEKA
K. EVANS, Plaintiff-Appellant, v. GEORGIA REGIONAL HOSPITAL, CHARLES MOSS, et
al., Defendants-Appellees. 11th Circuit. Case No. 15-15234. March 10, 2017.
Appeal from the U.S. District Court for the Southern District of Georgia (No.
4:15-cv-00103-JRH-GRS).

(Before
WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and MARTINEZ,* District Judge.)

(MARTINEZ,
District Judge.) Jameka Evans appeals the sua sponte dismissal of her
employment discrimination complaint, filed pursuant to 42 U.S.C. § 2000e et
seq., in which she alleged that she was discriminated against because of
her sexual orientation and gender non-conformity, and retaliated against after
she lodged a complaint with her employer’s human resources department. We have
carefully reviewed the Appellant’s and amicus curiae’s initial and supplemental
briefs,1 and have had the benefit of oral
argument. For the reasons set forth below, we affirm the district court’s
dismissal order in part, and vacate and remand in part.

I.

Evans
filed a pro se complaint against Georgia Regional Hospital (“Hospital”),
Chief Charles Moss, Lisa Clark, and Senior Human Resources Manager Jamekia
Powers, alleging employment discrimination under Title VII in her job as a
security officer at the Hospital. Evans also moved for leave to proceed in
forma pauperis before the district court, and for appointment of counsel.
In her complaint, Evans alleged the following facts, which this Court accepts
as true.2

Evans
worked at the Hospital as a security officer from August 1, 2012, to October
11, 2013, when she left voluntarily. During her time at the Hospital, she was
denied equal pay or work, harassed, and physically assaulted or battered. She
was discriminated against on the basis of her sex and targeted for termination
for failing to carry herself in a “traditional woman[ly] manner.” Although she
is a gay woman, she did not broadcast her sexuality. However, it was “evident”
that she identified with the male gender, because of how she presented herself
— “(male uniform, low male haircut, shoes, etc.”).

Evans
had not met Powers before the harassment began and had never discussed her
sexual preference with her. Yet, Evans was punished because her status as a gay
female did not comport with Moss’s gender stereotypes and this caused her to
experience a hostile work environment. For example, a less qualified individual
was appointed to be her direct supervisor. Moreover, internal e-mails provided
evidence that Moss was trying to terminate Evans by making her employment
unbearable, because she had too much information about his wrongdoing in the
security department.

Evans
also explained that her employers had violated some regulations or policies and
that she had initiated an investigation. After Evans lodged her complaints
about these violations, Powers asked Evans about her sexuality, causing Evans
and “others” to infer that her sexuality was the basis of her harassment and
that upper management had discussed it during the investigation. Finally, Evans
provided that she was harassed and retaliated against because she spoke to
human resources about Moss’s discriminatory behavior. Evans also reserved the
right to amend her complaint should new information arise.

Evans
attached to her complaint a “Record of Incidents.” This report stated that Moss
had repeatedly closed a door on Evans in a rude manner, that she experienced
scheduling issues and a shift change, and that a less qualified individual was
promoted as her supervisor. She detailed the problems she had with her new
supervisor, Corporal Shanika Johnson, and asserted that Johnson scrutinized and
harassed her. Evans also asserted that someone had tampered with her equipment,
including her radio, clip, and shoulder microphone.

Evans
also included an e-mail from Harvey Sanchez Pegues, which stated that Moss had
harassed Pegues on a daily basis, had a habit of favoritism, changed Pegues’s
schedule frequently, had created a tense and unpleasant work environment, and
had a habit of targeting people for termination. Evans also attached a letter
from Jalisia Bedgard, which stated that Johnson and Moss had expected Evans to
quit because of Johnson’s promotion and, if not, because of a bad shift change
that would cause Evans scheduling conflicts. Another attached letter from
Cheryl Sanders, Employee Relations Coordinator in the human resources
department at the Hospital, indicated that the Hospital had investigated
Evans’s complaints of favoritism, inconsistent and unfair practices, and
inappropriate conduct, and had found no evidence that she had been singled out
and targeted for termination. Finally, Evans attached e-mail correspondence
between Pegues and Evans, which indicated that: (1) Pegues believed that Moss
was trying to target Evans for termination because she had substantial evidence
of wrongdoing against him, and (2) Moss had changed the qualifications of a job
to prevent other candidates from qualifying.

A
magistrate judge subsequently issued a report and recommendation (“R&R”),
wherein the magistrate judge granted Evans leave to proceed in forma
pauperis, denied her request for appointment of counsel, and sua sponte screened
her complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The magistrate judge
preliminarily noted that while the Equal Employment Opportunity Commission
(“EEOC”) had not indicated that there was an untimeliness issue, Evans
reportedly worked at the Hospital from August 2012 through October 2013, and
thus, only had 180 days from the alleged discriminatory conduct to file. The
magistrate judge also noted that Evans’s complaint in the district court needed
to be consistent with her EEOC complaint. With respect to Evans’s claim of
discrimination based on her sexual orientation, or status as a gay female, the
magistrate judge reasoned that — based on case law from all circuits that had
addressed the issue — Title VII “was not intended to cover discrimination
against homosexuals.” With regard to Evans’s claim of discrimination based on
gender non-conformity, the magistrate judge concluded that it was “just another
way to claim discrimination based on sexual orientation,” no matter how it was
otherwise characterized. Additionally, the magistrate judge recommended
dismissal of the retaliation claim on the basis that Evans failed to allege
that she opposed an unlawful employment practice, given that sexual orientation
was not protected under Title VII. Additionally, the R&R noted that Moss,
Clark, and Powers were coworkers or supervisors sued in their individual
capacities and, therefore, were not actionable defendants under Title VII.
Finally, the magistrate judge recommended dismissing all of Evans’s claims,
with prejudice, without allowing her to leave to amend, because she pled no
actionable claim nor seemed likely to be able to do so.

Evans
timely objected to the R&R. In particular, Evans argued that her gender
non-conformity and sexual orientation discrimination claims were actionable
under Title VII as sex-based discrimination. She also argued that, as a pro
se litigant, she should have been permitted to amend her complaint, stating
that “new supplemental evidence ha[d] arisen that affirm[ed] the consistency of
the claims alleged in [her] complaint with the claims investigated in the EEOC
charge, satisfying the administrative consistency doctrine,” and noting that
she had reserved her right to amend in her complaint.

The
Lambda Legal Defense and Education Fund, Inc., (“Lambda Legal”) requested
permission to file an amicus curiae brief in support of Evans’s objections
to the R&R, which the district court granted. Lambda Legal argued that an
employee’s status as lesbian, gay, bisexual or transgender (“LGBT”), does not
defeat a claim based on gender non-conformity. Lambda Legal also disputed the
magistrate judge’s assertion that sexual orientation is not an actionable basis
under Title VII, and disputed the assertion that all other courts have held so.
Lambda Legal also argued that Evans did not need to plead a prima facie case
to survive dismissal at the pleading stage. It also disputed the magistrate
judge’s recommendation that Evans’s retaliation claim be dismissed with
prejudice, arguing that Evans did not need to actually engage in protected
activity to state a claim for retaliation so long as her belief that sexual
orientation was covered by Title VII was not unreasonable. Lambda Legal also
argued that the magistrate judge’s remarks that Evans’s claims were untimely
and that her complaint was inconsistent with the EEOC investigation were
“speculati[ve]” and “premature at best.” Lastly, it argued that Evans was
entitled to leave to amend, because any necessary amendment would not be futile
given Evans’s colorable claims.

The
district court conducted a de novo review of the entire record and
adopted — without further comment — the R&R, dismissed the case with
prejudice, and appointed counsel from Lambda Legal to represent Evans on
appeal.

On
appeal, Evans, with the support of the EEOC as amicus curiae, argues that the
district court erred in dismissing her claim that she was discriminated against
for failing to conform to gender stereotypes, because an LGBT person may
properly bring a separate discrimination claim for gender non-conformity in
this Circuit. Evans also argues that, contrary to the district court’s
assertion, sexual orientation discrimination is, in fact, sex discrimination
under Title VII. Evans further argues that the district court erred in
concluding that she did not meet the requirements to bring a retaliation claim,
because a plaintiff can establish a prima facie case of unlawful
retaliation if there is a good faith, reasonable belief that the employer was
acting unlawfully. Finally, Evans argues that the district court erred in
failing to allow her leave to amend her complaint, because pro se litigants
should be allowed to amend their complaints when they have a viable argument.
We address each argument in turn.

II.

We
review de novo a district court’s sua sponte dismissal for
failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), viewing the
allegations in the complaint as true. Hughes v. Lott, 350 F.3d 1157,
1159-60 (11th Cir. 2003) [17 Fla. L. Weekly Fed. C37a]. Dismissal under §
1915(e)(2)(B)(ii) is governed by the same standard as a dismissal under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Mitchell v. Farcass,
112 F.3d 1483, 1490 (11th Cir. 1997). However, “[p]ro se pleadings
are held to a less stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed.” Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998). Moreover, we may affirm on any ground
supported by the record, regardless of whether that ground was relied on or
considered below. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
(11th Cir. 2007) [21 Fla. L. Weekly Fed. C168a].

To
survive a motion to dismiss, a complaint must contain sufficient factual
matter, which, accepted as true, states a claim for relief that is plausible on
its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) [21 Fla. L. Weekly
Fed. S853a]. A claim is plausible on its face when there is a “reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
A Title VII complaint need not allege facts sufficient to make out a classic prima
facie case, but must simply provide enough factual matter to plausibly
suggest intentional discrimination. See Surtain v. Hamlin Terrace Found.,
789 F.3d 1239, 1246 (11th Cir. 2015) [25 Fla. L. Weekly Fed. C1273a].

III.

First,
Evans argues that the district court erred in dismissing her claim that she was
discriminated against for failing to conform to gender stereotypes, because an
LGBT person may bring a separate discrimination claim for gender
non-conformity.3 She contends that her status as a
lesbian supports her claim of sex discrimination, because discrimination
against someone for her orientation often coincides with discrimination for
gender non-conformity. Evans further asserts that discrimination based on
gender stereotypes is a broad claim that encompasses more than just her
appearance, but also provides for suits based on various other stereotypes,
such as family structure.

Even
though we hold, infra, that discrimination based on gender
non-conformity is actionable, Evans’s pro se complaint nevertheless
failed to plead facts sufficient to create a plausible inference that she
suffered discrimination. See Surtain, 789 F.3d at 1246. In other words,
Evans did not provide enough factual matter to plausibly suggest that her
decision to present herself in a masculine manner led to the alleged adverse
employment actions. Id. Therefore, while a dismissal of Evan’s gender
non-conformity claim would have been appropriate on this basis, these
circumstances entitle Evans an opportunity to amend her complaint one time
unless doing so would be futile.

When
“a more carefully drafted complaint might state a claim, a plaintiff must be
given at least one chance to amend the complaint before the district court
dismisses the action with prejudice.” Bryant v. Dupree, 252 F.3d 1161,
1163 (11th Cir. 2001) [14 Fla. L. Weekly Fed. C707a] (citation omitted).
Although a pro se litigant generally should be permitted to amend her complaint,
a district court need not allow amendment when it would be futile. Cockrell
v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) [21 Fla. L. Weekly Fed.
C254a]. “Leave to amend a complaint is futile when the complaint as amended
would still be properly dismissed or be immediately subject to summary judgment
for the defendant.” Id.

Here,
Evans, a pro se litigant, has not previously amended her complaint, and
it cannot be said that any attempt to amend would be futile with respect to her
gender non-conformity claim and possibly others. See Bryant, 252 F.3d at
1163; Sparks, 510 F.3d at 1310. Discrimination based on failure to
conform to a gender stereotype is sex-based discrimination. Glenn v. Brumby,
663 F.3d 1312, 1316 (11th Cir. 2011) [23 Fla. L. Weekly Fed. C611a] (citing
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by
statute on other grounds, 42 U.S.C. § 2000e-5(g)(2)(B) (1991), as stated in
Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994)). Specifically, in Glenn,
we held that discrimination against a transgender individual because of
gender-nonconformity was sex discrimination. 663 F.3d at 1317 (applying
gender-nonconformity sex discrimination in a 42 U.S.C. § 1983 action). In that
decision, we stated that “[a]ll persons, whether transgender or not, are
protected from discrimination on the basis of gender stereotype,” and we
reasoned that, because those protections apply to everyone, a transgender
individual could not be excluded. Id. at 1318-19. We hold that the lower
court erred because a gender non-conformity claim is not “just another way to
claim discrimination based on sexual orientation,” but instead, constitutes a
separate, distinct avenue for relief under Title VII.

Accordingly,
we vacate the portion of the district court’s order dismissing Evans’s gender
non-conformity claim with prejudice and remand with instructions to grant Evans
leave to amend such claim.

IV.

Evans
next argues that she has stated a claim under Title VII by alleging that she
endured workplace discrimination because of her sexual orientation. She has
not. Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp.,
597 F.2d 936, 938 (5th Cir. 1979)4 (“Discharge for homosexuality is not
prohibited by Title VII . . . .”). “Under our prior precedent rule, we are
bound to follow a binding precedent in this Circuit unless and until it is
overruled by this court en banc or by the Supreme Court.” Offshore of the
Palm Beaches, Inc. v. Lynch, 741 F.3d 1251, 1256 (11th Cir. 2014) [24 Fla.
L. Weekly Fed. C986a] (internal quotations omitted).

The
EEOC argues that the statement in Blum regarding discharge for
homosexuality is dicta and not binding precedent. We disagree. Before making
such statement, the panel in Blum remarked: “We comment briefly on the
other issues raised on appeal.” 597 F.2d at 938 (emphasis added). As a
result, the statement in Blum concerning the viability of a sexual
orientation claim was not dicta, but rather directly addressed a question
before the Court. Even if Blum is read as disposing of the sexual
orientation claim for another reason,5 an alternative reason does not render
as dicta this Court’s holding that there is no sexual orientation action under
Title VII.

In Hitchcock
v. Sec’y, Florida Dep’t of Corr., 745 F.3d 476 (11th Cir. 2014) [24 Fla. L.
Weekly Fed. C1102a], this Court addressed whether an alternative holding is
dicta:

[A]n alternative holding is
not dicta but instead is binding precedent. See, e.g., Massachusetts v.
United States, 333 U.S. 611, 623, 68 S. Ct. 747, 754, 92 L. Ed. 968 (1948)
(explaining that where a case has “been decided on either of two independent
grounds” and “rested as much upon the one determination as the other,” the
“adjudication is effective for both”); Richmond Screw Anchor Co. v. United
States, 275 U.S. 331, 340, 48 S. Ct. 194, 196, 72 L. Ed. 303 (1928) (“It
does not make a reason given for a conclusion in a case obiter dictum, because
it is only one of two reasons for the same conclusion.”); United States v.
Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S. Ct. 621, 623, 68 L.
Ed. 1110 (1924) (“[W]here there are two grounds, upon either of which an
appellate court may rest its decision, and it adopts both, the ruling on
neither is obiter, but each is the judgment of the court, and of equal validity
with the other.”) (quotation marks omitted); Bravo v. United States, 532
F.3d 1154, 1162 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C833a] (explaining
that an “alternative holding counts because in this circuit additional or
alternative holdings are not dicta, but instead are as binding as solitary
holdings”); Johnson v. DeSoto Cnty. Bd. of Comm’rs, 72 F.3d 1556, 1562
(11th Cir. 1996) (“[W]e are bound by alternative holdings.”); McLellan v. Miss.
Power & Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (en banc)
(“It has long been settled that all alternative rationales for a given result
have precedential value.”).

745
F.3d at 484 n.3. Applying this well-established law, the statement from Blum
regarding a sexual orientation claim is not dicta, but rather binding
precedent.

Evans
and the EEOC also argue that the Supreme Court decisions in Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989), and Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75 (1998), support a cause of action for sexual
orientation discrimination under Title VII. Again, we disagree. The fact that
claims for gender non-conformity and same-sex discrimination can be brought
pursuant to Title VII does not permit us to depart from Blum. See
Randall v. Scott, 610 F.3d 701, 707 (11th Cir. 2010) [22 Fla. L. Weekly
Fed. C1050a] (“While an intervening decision of the Supreme Court can overrule
the decision of a prior panel of our court, the Supreme Court decision must be
clearly on point.” (citation omitted)); N.L.R.B. v. Datapoint Corp., 642
F.2d 123, 129 (5th Cir. 1981) (“Without a clearly contrary opinion of the
Supreme Court or of this court sitting en banc, we cannot overrule a decision
of a prior panel of this court . . . .”). Price Waterhouse and Oncale
are neither clearly on point nor contrary to Blum. These Supreme
Court decisions do not squarely address whether sexual orientation
discrimination is prohibited by Title VII.

Finally,
even though they disagree with the decisions, Evans and the EEOC acknowledge
that other circuits have held that sexual orientation discrimination is not
actionable under Title VII. See, e.g., Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII does not
proscribe harassment simply because of sexual orientation.”); Simonton v.
Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (“Simonton has alleged that he was
discriminated against not because he was a man, but because of his sexual
orientation. Such a claim remains non-cognizable under Title VII.”); Bibby
v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title
VII does not prohibit discrimination based on sexual orientation.”); Wrightson
v. Pizza Hut of Am., 99 F.3d 138, 143 (4th Cir. 1996), abrogated on other
grounds by Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (“Title
VII does not afford a cause of action for discrimination based upon sexual
orientation . . . .”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir. 2006) (“[S]exual orientation is not a prohibited basis for
discriminatory acts under Title VII.”); Hamner v. St. Vincent Hosp. &
Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000) (“[H]arassment
based solely upon a person’s sexual preference or orientation (and not on one’s
sex) is not an unlawful employment practice under Title VII.”); Williamson
v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (“Title
VII does not prohibit discrimination against homosexuals.”); Rene v. MGM
Grand Hotel, Inc., 305 F.3d 1061, 1063-64 (9th Cir. 2002) (“[A]n employee’s
sexual orientation is irrelevant for purposes of Title VII. It neither provides
nor precludes a cause of action for sexual harassment. That the harasser is, or
may be, motivated by hostility based on sexual orientation is similarly
irrelevant, and neither provides nor precludes a cause of action.”); Medina
v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (“Title VII’s
protections, however, do not extend to harassment due to a person’s sexuality .
. . . Congress has repeatedly rejected legislation that would have extended
Title VII to cover sexual orientation.”) (internal quotations omitted). Evans
and the EEOC question these decisions, in part, because of Price Waterhouse and
Oncale. Whether those Supreme Court cases impact other circuit’s
decisions, many of which were decided after Price Waterhouse and Oncale,
does not change our analysis that Blum is binding precedent that has not
been overruled by a clearly contrary opinion of the Supreme Court or of this
Court sitting en banc. Accordingly, we affirm the portion of the district
court’s order dismissing Evan’s sexual orientation claim.

V.

Evans
also argues that the district court erred in concluding that she did not meet
the requirements for a retaliation claim, because a plaintiff can establish a prima
facie case of unlawful retaliation if there was a good faith, reasonable
belief that the employer was acting unlawfully.

However,
we will generally not review a magistrate judge’s findings or recommendations
if a party failed to object to those recommendations below. See 11th
Cir. R. 3-1. Title 28 of the United States Code, Section 636(b)(1) provides
that, within 14 days of being served with a copy of a magistrate judge’s
recommendations or findings, a party may file written objections with the
court, and the court shall conduct a de novo review of the issues
raised. 28 U.S.C. § 636(b)(1). Pursuant to 11th Cir. R. 3-1, a party who fails
to object to a magistrate judge’s findings or recommendations in an R&R
“waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions,” provided the party was given
proper notice of the objection time period and the consequences of failing to
do so, as was the case here. Consequently, we will only review a waived
objection, for plain error, if necessary in the interests of justice. Id.
Review for plain error “rarely applies in civil cases.” Ledford v. Peeples,
657 F.3d 1222, 1258 (11th Cir. 2011) [23 Fla. L. Weekly Fed. C435a]. Even when
it does, we require a greater showing of error than in criminal appeals. United
States v. Levy, 391 F.3d 1327, 1343 n.12 (11th Cir. 2004) [17 Fla. L.
Weekly Fed. C685a]. We find nothing in the record that suggests that plain
error review is appropriate in this appeal.

Further,
we do not consider an amicus curiae to be a party in the case where it appears.
See In re Bayshore Ford Truck Sales, Inc., 471 F.3d 1233, 1249 n.34
(11th Cir. 2006) [20 Fla. L. Weekly Fed. C159a]. Moreover, without “exceptional
circumstances, amici curiae may not expand the scope of an appeal to
implicate issues not presented by the parties to the district court.” Richardson
v. Ala. State Bd. of Educ., 935 F.2d 1240, 1247 (11th Cir. 1991) (regarding
issues raised on appeal by amici curiae that were not raised in the
appellant’s brief on appeal).

Here,
Evans failed to object to the district court’s dismissal of her retaliation
claim. While Evans specifically objected to the dismissal of her claims for
discrimination based on gender non-conformity and sexual orientation, as well
as the magistrate judge’s denial of her request for leave to amend her
complaint, notably absent from her filing was any mention of her retaliation
claim. Additionally, although an amicus curiae brief was filed by Lambda
Legal, which included an objection on this matter, Lambda Legal was not a party
to the litigation, or Evans’s counsel at the time, and thus could not preserve
that objection for her. See Bayshore, 471 F.3d at 1249 n.34. For these
reasons, we consider any challenge to the district court’s treatment of Evan’s
retaliation claim waived. 11th Cir. R. 3-1.

For
the foregoing reasons, the district court’s order dismissing Evans’s action
with prejudice is affirmed in part, and vacated in part and remanded for
further proceedings consistent with this opinion.

AFFIRMED
IN PART, VACATED IN PART AND REMANDED.

__________________

(WILLIAM
PRYOR, Circuit Judge, concurring.) I concur in the majority opinion, but I
write separately to explain the error of the argument of the Equal Employment
Opportunity Commission and the dissent that a person who experiences discrimination
because of sexual orientation necessarily experiences discrimination for
deviating from gender stereotypes. Although a person who experiences the former
will sometimes also experience the latter, the two concepts are legally
distinct. And the insistence otherwise by the Commission and the dissent relies
on false stereotypes of gay individuals. I also write separately to explain
that the dissent would create a new form of relief based on status that runs
counter to binding precedent and would undermine the relationship between the
doctrine of gender nonconformity and the enumerated classes protected by Title
VII.

The
majority opinion correctly holds that a claim of discrimination for failure to
conform to a gender stereotype is not “just another way to claim discrimination
based on sexual orientation.” Maj. Op. at 12. Like any other woman, Evans can
state a claim that she experienced, for example, discrimination for wearing a
“male haircut” if she includes enough factual allegations. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) [21 Fla. L. Weekly Fed. S853a]; Glenn v.
Brumby, 663 F.3d 1312, 1314, 1320-1321 (11th Cir. 2011) [23 Fla. L. Weekly
Fed. C611a]. But just as a woman cannot recover under Title VII when she is
fired because of her heterosexuality, neither can a gay woman sue for
discrimination based on her sexual orientation. Deviation from a particular
gender stereotype may correlate disproportionately with a particular sexual
orientation, and plaintiffs who allege discrimination on the basis of gender
nonconformity will often also have experienced discrimination because of sexual
orientation. See, e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d
285, 287, 289, 291 (3d Cir. 2009) (Hardiman, J.) (holding that Title VII
protects a gay man for deviating from gender stereotypes but not for his sexual
orientation). But under Title VII, we ask only whether the individual
experienced discrimination for deviating from a gender stereotype. Cf. id. at
291.

The
unsurprising reality that some individuals who have experienced discrimination
because of sexual orientation will also have experienced discrimination because
of gender nonconformity by no means establishes that every gay
individual who experiences discrimination because of sexual orientation has a
“triable case of gender stereotyping discrimination.” Id. at 292. The
Commission and the dissent would have us hold that sexual orientation
discrimination always constitutes discrimination for gender nonconformity. They
contend, for example, that all gay individuals necessarily engage in the same
behavior. E.g., Amicus Br. at 14 (“[A]ll homosexuals, by definition,
fail to conform to traditional gender norms in their sexual practices.”
(quoting Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006)))
(alteration in original) (emphasis added); Dissenting Op. at 40-41 (same);
Amicus Br. at 15 (arguing that the stereotype exists that “ ‘real’ men should date
women, and not other men” (quoting Centola v. Potter, 183 F. Supp.
2d 403, 410 (D. Mass. 2002))) (emphasis added). But that argument stereotypes
all gay individuals in the same way that the Commission and the dissent allege
that the Hospital stereotyped Evans.

By
assuming that all gay individuals behave the same way or have the same
interests, the Commission and the dissent disregard the diversity of
experiences of gay individuals. Some gay individuals adopt what various
commentators have referred to as the gay “social identity” but experience a
variety of sexual desires. E.g., E.J. Graff, What’s Wrong with
Choosing to Be Gay?, The Nation (Feb. 3, 2014) (recounting experiences of
gay individuals); see also Brandon Ambrosino, I Wasn’t Born This Way.
I Choose to Be Gay, The New Republic (Jan. 28, 2014) (arguing against the
belief that “none of us has any control over our sexual identities”). Like some
heterosexuals, some gay individuals may choose not to marry or date at all or
may choose a celibate lifestyle. And other gay individuals choose to enter
mixed-orientation marriages. See, e.g., Brief of Amici Curiae Same-Sex
Attracted Men and Their Wives in Support of Respondents and Affirmance at 2-3, Obergefell
v. Hodges, 135 S. Ct. 2584 (2015) [25 Fla. L. Weekly Fed. S472a] (Nos.
14-556, 14-562, 14-571, 14-574). A gay individual may establish with enough
factual evidence that she experienced sex discrimination because her behavior
deviated from a gender stereotype held by an employer, but our review of that
claim would rest on behavior alone.

The
dissent asserts that discrimination on the basis of sexual orientation “clearly
violates Title VII,” Dissenting Op. at 30, yet as the majority opinion
explains, every circuit to have reviewed this issue, including our own, has
arrived at the opposite conclusion, Maj. Op. at 15-16. The dissent compares gay
females to heterosexual males, Dissenting Op. at 37 n.4, but it does not follow
that an employer who treats one differently from the other does so “because of
. . . sex” instead of “because of sexual orientation.” The dissent also crafts
a new, status-based class of protection that betrays a misreading of Price
Waterhouse and Glenn and would undercut the relationship between the
doctrine of gender nonconformity and the classes enumerated in Title VII.

The
dissent misreads our precedent by framing the pertinent question in an appeal
involving the doctrine of gender nonconformity as whether an employee’s status
deviated from the ideal held by an employer as to what a woman “should be.”
Dissenting Op. at 34-35. Not shy about this invention, the dissent repeats it
on nearly every page. Id. at 29, 31-32, 35-42, 44-52, 55. But Price
Waterhouse and Glenn concerned claims that an employee’s behavior,
not status alone, deviated from a gender stereotype held by an employer.

The
dissent derives much of its analytic framework from legal commentary,
Dissenting Op. at 31, but even that commentary accepts that Price Waterhouse
concerned behavior, not status, and that current doctrine does not protect
on the basis of status alone. Zachary R. Herz, Note, Price’s Progress: Sex
Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J.
396, 406-07, 433 (2014) (stating that the stereotype the plaintiff in Price
Waterhouse deviated from was not “behaving as a woman ‘should’ ” and
that the “basic problem” today is that “employers are evaluating employees . .
. according to discriminatory ideas about how men and women should behave”
(emphases added)); id. at 432 (acknowledging that “the current regime .
. . protects stereotypically “gay” conduct without protecting LGBT status”
(emphases added)). The only possible “status” in Price Waterhouse was
the employee’s status as an “aggressive” woman. Price Waterhouse v. Hopkins,
490 U.S. 228, 250 (1989). But it is overbroad to say, as the dissent does, that
Price Waterhouse asked about “status” in general when the decision
clearly pertained to behavior.

The
dissent also asserts that we provided Glenn relief “solely for being transsexual,”
which the dissent proclaims deviated from what the employer thought Glenn
“should be,” Dissenting Op. at 38 (emphasis added), but we did not afford
relief based on status alone. Instead, Glenn’s claim was successful because
Glenn was fired after choosing to “beg[i]n to take steps to transition.” Glenn
“present[ed]” and “dressed as a woman” at work and notified the supervisor that
Glenn intended to continue this behavior. Because Glenn “was born a biological
male,” Glenn’s employer believed these choices were “unsettling,” “unnatural,”
and “not appropriate.” Glenn, 663 F.3d at 1314, 1320-21. Title VII would
have protected any biological male under those facts, not because of status,
but because of behavior.

The
dissent’s revision of the doctrine of gender nonconformity from a
behavior-based inquiry into a status-based one does more than misread
precedent; it also does violence to the relationship between the doctrine and
the enumerated classes of Title VII. The dissent would have us hold that
“discrimination because an employee is gay violates Title VII[ ]” automatically
under the doctrine. Dissenting Op. at 36. But Price Waterhouse is clear
that gender nonconformity does not “inevitably” lead to protection. 490 U.S. at
251. The doctrine of gender nonconformity is not an independent vehicle for
relief; it is instead a proxy a plaintiff uses to help support her argument
that an employer discriminated on the basis of the enumerated sex category by
holding males and females to different standards of behavior.

Because
a claim of gender nonconformity is a behavior-based claim, not a status-based
claim, a plaintiff still “must show that the employer actually relied on her
gender in making its decision.” Id. That is, the employer must
additionally establish that discrimination occurred on the basis of an
enumerated class in Title VII. Remarks based on gender nonconformity are only “evidence
that gender played a part” in the employer’s decision and are not always
determinative. Id. For example, under Title VII, an employee could fire
a male who wore a dress to work — even if that violated the employer’s gender
stereotypes — if the reason for the firing was that all employees were
required to wear a uniform that included pants. See id. at 252. The
doctrine of gender nonconformity is, and always has been, behavior based.
Status-based protections must stem from a separate doctrine or directly from
the text of Title VII. The dissent’s contrary view would undermine the
evidentiary approach established by Price Waterhouse and the
relationship of that doctrine to the text of Title VII.

The
willingness to accept that Price Waterhouse and Glenn deal only
with behaviors that deviate from gender stereotypes does not put one “at war
with Glenn.” Dissenting Op. at 37. Instead, it acknowledges that the
doctrine of gender nonconformity is not and cannot be an independent vehicle
for relief because the only status-based classes that provide relief are those
enumerated within Title VII. We review claims of gender nonconformity the same
way in all appeals regardless of a plaintiff’s sexual orientation. Any
correlation that might exist between a particular sexual orientation and
deviation from a particular gender stereotype does not overcome this settled rule.

Because
Congress has not made sexual orientation a protected class, the appropriate
venue for pressing the argument raised by the Commission and the dissent is
before Congress, not this Court. And for decades, members of Congress have
introduced bills for that purpose. See, e.g., Equality Act, H.R. 3185,
114th Cong. (2015); Employment Non-Discrimination Act, S. 815, 113th Cong.
(2013), S. 811, 112th Cong. (2011), S. 1584, 111th Cong. (2009), H.R. 3685,
110th Cong. (2007), H.R. 3285, 108th Cong. (2003), S. 1284, 107th Cong. (2002),
H.R. 2355, 106th Cong. (1999), H.R. 1858, 105th Cong. (1997), S. 2056, 104th
Cong. (1996), H.R. 4636, 103d Cong. (1994); Civil Rights Act, H.R. 431, 103d
Cong. (1993); Civil Rights Amendments Act, H.R. 423, 103d Cong. (1993), S. 574,
102d Cong. (1991); S. 430, 98th. Cong. (1983); S. 1708, 97th Cong. (1981); S.
2081, 96th Cong. (1979). Contrary to the dissent’s assertions, Dissenting Op.
at 52, we cite this pattern of legislation not because it does or can suggest
legislative intent but because it illustrates that Congress is the appropriate
branch in which to raise the arguments raised by the dissent. The dissent’s
disagreement boils down to incredulity that “[i]t cannot possibly be the case
that” the combination of the text of Title VII and Price Waterhouse leave
some individuals unprotected from discrimination. Dissenting Op. at 42. But as
a Court, “[o]ur province is to decide what the law is, not to declare what it
should be. . . . If the law is wrong, it ought to be changed; but the power for
that is not with us.” Minor v. Happersett, 88 U.S. 162, 178 (1874).

__________________

(ROSENBAUM,
Circuit Judge, concurring in part and dissenting in part.) A woman should be a
“woman.” She should wear dresses, be subservient to men, and be sexually
attracted to only men. If she doesn’t conform to this view of what a woman
should be, an employer has every right to fire her.

That
was the law in 1963 — before Congress enacted Title VII of the Civil Rights
Act of 1964. But that is not the law now. And the rule that Title VII precludes
discrimination on the basis of every stereotype of what a woman supposedly
should be — including each of those stated above — has existed since the
Supreme Court issued Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded
in part by The Civil Rights Act of 1991, Tit. I, § 107(a), 105 Stat. 1075
(codified at 42 U.S.C. § 2000e — 2(m)), 28 years ago.

Yet
even today the panel ignores this clear mandate. To justify its position, the
panel invokes 38-year-old precedent — issued ten years before Price
Waterhouse necessarily abrogated it — and calls it binding precedent that
ties our hands. I respectfully disagree.

Plain
and simple, when a woman alleges, as Evans has, that she has been discriminated
against because she is a lesbian, she necessarily alleges that she has been
discriminated against because she failed to conform to the employer’s image of
what women should be — specifically, that women should be sexually attracted
to men only. And it is utter fiction to suggest that she was not discriminated
against for failing to comport with her employer’s stereotyped view of women.
That is discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), and
it clearly violates Title VII under Price Waterhouse.

So
I dissent from Part IV of the panel’s opinion. On remand, Evans should be
allowed to amend her complaint to state such a claim.

I.

In
1989 Price Waterhouse rocked the world of Title VII litigation. Before Price
Waterhouse, the Supreme Court had recognized only one type of
discrimination rooted in stereotyping that Title VII prohibits: discrimination
based on the employer’s assumption that, merely by virtue of membership in a
protected group, the plaintiff possesses an attribute or will act against the
employer’s desire, in conformity with a supposed stereotypical characteristic
of the group.

So,
for example, in the pre-Price Waterhouse days, the Supreme Court held
that the employers’ practices in Phillips v. Martin Marietta Corp., 400
U.S. 542 (1971), and Los Angeles Department of Water & Power v. Manhart,
435 U.S. 702 (1978), violated Title VII.6 In Phillips, the employer
hired men with young children but not women with young children, based on the
employer’s gender-based stereotype that women with young children — unlike men
with young children — would be incapable of balancing their “family
obligations” with their work obligations. See 400 U.S. at 544.
Similarly, in Manhart, the employer had a policy that required women to
contribute a greater percentage of their salary to a pension fund than men had
to, based on the statistic that, as a general matter, women lived longer than
men. See 435 U.S. at 705.

In
these cases, the employer violated Title VII by ascribing certain
characteristics to individual women — without considering whether any
individual woman actually possessed the characteristics — based on the
employer’s stereotyping of women as a group. So the employer discriminated
because it assumed that all members of the protected group would
conform to an undesired characteristic of the employer’s stereotyped
perception of the group. At least one commentator has referred to this view of
Title VII as prohibiting “ascriptive” stereotyping. Zachary R. Herz, Price’s
Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law,
124 Yale L.J. 396, 405 (2014).

But
Price Waterhouse substantially broadened the scope of actionable
discriminatory stereotyping under Title VII. In that case, the Supreme Court
for the first time recognized that discrimination because of an individual
plaintiff’s failure to conform to the discriminator’s desired and
stereotyped perception of how members of the individual’s protected group
should be or act — essentially the mirror image of ascriptive stereotyping —
violated Title VII. This kind of stereotyping has been called “prescriptive”
stereotyping, presumably because discrimination occurs on the basis that an
employee does not satisfy an employer’s stereotyped prescription of what the
employee of that protected group should be or how the employee should act.
Herz, supra, at 406-07.

To
understand why Price Waterhouse was so revolutionary, we need to
consider the facts of that case. The accounting firm Price Waterhouse denied
partnership to Ann Hopkins, a female senior manager, because, in the eyes of
her employer, she had qualities that defied stereotypes of how women should
look and act. Among other criticisms, Price Waterhouse employees described
Hopkins as “abrasive[,]” “brusque[,]” and “macho”; they also complained that
she “over-compensated for being a woman” and that she should have “walk[ed]
more femininely, talk[ed] more femininely, dress[ed] more femininely, w[orn]
make-up, ha[d] her hair styled, and w[orn] jewelry.” Price Waterhouse,
490 U.S. at 234-35 (alterations added).

Hopkins’s
claim could not have qualified for relief under the ascriptive-stereotyping
theory that prevailed before Price Waterhouse was decided: Price
Waterhouse had not declined to make Hopkins a partner because it assumed that
Hopkins would act in conformance with a stereotyped “feminine” manner. Just the
opposite: Price Waterhouse had passed over Hopkins for partner because it insisted
that she should act in a stereotyped “feminine” manner, and she did not.

Despite
the fact that Price Waterhouse had not ascriptively stereotyped Hopkins, the
Supreme Court found that Price Waterhouse’s actions violated Title VII.
Describing Price Waterhouse’s employees’ comments as “show[ing] sex
stereotyping at work,” the Supreme Court held that Title VII prohibited an employer
from “evaluat[ing] employees by assuming or insisting that they matched the
stereotype associated with their group.” Id. at 251. The second part of
this statement — “or insisting that [employees] matched the stereotype
associated with their group” — opened a whole new avenue for Title VII claims
by substantially expanding Title VII’s previously understood reach of
precluding discrimination based on only the first half of the statement —
“assuming . . . that [employees] matched the stereotype associated with their
group.”

Applying
this broader understanding, the Supreme Court concluded, “In the specific
context of sex stereotyping, an employer who acts on the basis of a belief that
a woman cannot be aggressive, or that she must not be, has acted on the
basis of gender.” Id. at 250 (emphasis added). Because Price Waterhouse
had allegedly discriminated against Hopkins for being, in its view, as a woman
“must not be,” the Court determined that Price Waterhouse’s conduct fell within
the bounds of Title VII.

Nor
did Price Waterhouse leave any doubt about its scope. In its holding,
the Court emphasized that, “[i]n forbidding employers to discriminate against
individuals because of their sex, Congress intended to strike at the entire
spectrum of disparate treatment of men and women resulting from sex
stereotypes.” Id. at 251 (quoting Manhart, 435 U.S. at 707 n.13
(quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th
Cir. 1971))) (emphasis added). The Supreme Court’s message was plain:
regardless of the kind of prescriptive stereotype of women that a particular
woman failed to satisfy, no employer — and no court — could hold that against
her.

We
in the Eleventh Circuit heard the Supreme Court’s message loud and clear. In Glenn
v. Brumby, 663 F.3d 1312 (11th Cir. 2011) [23 Fla. L. Weekly Fed. C611a],
the employer fired Glenn, a transgender woman, because the employer learned
that Glenn intended to proceed with gender transition. Id. at 1313,
1320-21. In fact, the employer testified that he terminated Glenn’s employment
“based on ‘the sheer fact of the transition.’ ” Id. at 1320-21.

We
relied on Price Waterhouse‘s reasoning to find that the employer’s
testimony “provide[d] ample direct evidence . . . that [the employer] acted on
the basis of Glenn’s gender non-conformity.” Id. at 1321. For this
reason, we concluded that the employer had violated Title VII.7 Id. at 1321. So we applied
prescriptive-stereotyping theory to hold that discrimination against a
transgender employee merely because the employee fails to conform to the
employer’s view of what a member of the employee’s birth-assigned sex should be
violates Title VII.

We
reached this conclusion despite noting that before Price Waterhouse,
“several courts” had determined that Title VII offered no relief to transgender
victims of sex discrimination. Id. at 1318 n.5. These pre-Price
Waterhouse opinions had reasoned that discrimination against a transgender
or transsexual person occurred “not because she is female, but because she is
transsexual.” Id. (quoting Ulane v. E. Airlines, Inc., 742 F.2d
1081, 1087 (7th Cir. 1984)). That is the same position that the panel and Judge
William Pryor’s concurrence take today: by their reasoning, discrimination
against a lesbian happens not because she is a woman, but because she is a
lesbian, as though being sexually attracted to men only is somehow divorced
from a prescriptive stereotype of women.

But
that is precisely the reasoning that we — including Judge Pryor — rejected in
Glenn. The pre-Price Waterhouse opinions that we concluded Price
Waterhouse had abrogated applied only ascriptive-stereotyping theory. They
found that the employer had not discriminated against the transsexual or
transgender employee in violation of Title VII because the employer had not
assumed that the employee would conform to what the employer viewed as an
undesired characteristic of the employee’s birth-assigned gender.

These
courts did not consider prescriptive-stereotyping theory, so they failed to ask
whether the employer discriminated against the transgender or transsexual
employee because the employee failed to meet the employer’s stereotype of what
a person of the employee’s birth-assigned gender should be. As a result, these
courts did not inquire into Title VII’s full scope. For this reason, we wholly
dismissed the holdings of these other courts’ opinions, concluding in the
strongest of terms that Price Waterhouse had “eviscerated” them. Id. (quoting
Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004)) (quotation
marks omitted).

Price
Waterhouse and Glenn likewise demand the conclusion that
discrimination because an employee is gay violates Title VII’s proscription on
discrimination “because of . . . sex.” By definition, a gay employee is
sexually attracted to members of her own sex. See Gay, The American
Heritage Dictionary (5th ed. 2011) (“Of, relating to, or having a sexual
orientation to persons of the same sex.”). So when an employer discriminates
against an employee solely because she is a lesbian, the employer acts against
the employee only because she is sexually attracted to women, instead of being
attracted to only men, like the employer prescriptively believes women should
be. This is no different than when an employer discriminates against an employee
because she is an aggressive or “macho” woman or solely because she is a
transgender woman. In all cases, the employer discriminates against the
employee because she does not conform to the employer’s prescriptive stereotype
of what a person of that birth-assigned gender should be.8 And so the employer discriminates
against the employee “because of . . . sex.”9 42 U.S.C. § 2000e-2(a)(1).

II.

Despite
the fact that my colleague Judge William Pryor joined in all aspects of the Glenn
opinion — including its discussion of why Price Waterhouse abrogated
other courts’ conclusions that Title VII does not protect transgender people
from discrimination — today his concurrence takes a position at war with Glenn:
it asserts that an employer who discriminates against a woman employee solely
because she is a lesbian and therefore fails to conform to the employer’s
prescriptive stereotype of what a woman should be does not violate Title VII’s
ban on sex-based prescriptive stereotyping.

To
justify its contradictory conclusion, Judge Pryor’s concurrence attempts to
distinguish Glenn by ignoring its facts. To be sure, as the concurrence
emphasizes, see W. Pryor Op. at 24-25, before Glenn’s employer ended her
employment, he disciplined her for dressing as a woman when she worked for him.

But
the concurrence conveniently overlooks the fact that the employer did not fire
Glenn for that. Rather, Glenn’s employer fired Glenn before her
transition “because ‘Glenn’s intended gender transition was
inappropriate . . . .’ ” Glenn, 663 F.3d at 1314 (emphasis added). He
readily admitted that he terminated her “based on ‘the sheer fact of the
transition’ ” that she had not yet undertaken but had expressed an intent to
undertake.10 Glenn, 663 F.3d at 1314,
1320-21 (emphasis). In other words, he fired her solely for being transsexual
— that is, for failing to conform to her employer’s view of what a
birth-assigned male should be. We said that was enough for Glenn to state a
Title VII claim for discrimination based on her termination. Id. at
1321.

And
discrimination against an employee solely because she fails to conform to the
employer’s view that a woman should be sexually attracted to men only is no
different than discrimination against a transsexual because she fails to
conform to the employer’s view that a birth-assigned male should have male
anatomy. In both cases, the employer discriminates because the employee does
not comport with the employer’s vision of what a member of that particular
gender should be. It’s just as simple as that.

To
avoid this obvious conclusion, the concurrence recharacterizes the
discrimination that a lesbian experiences when her employer discriminates
against her for failure to conform to the employer’s view that women should not
be sexually attracted to women; the concurrence says that this is
discrimination based on sexual orientation, and sexual orientation is not a
protected class under Title VII. See Pryor Op. at 21, 27. But the fact
that such discrimination may be alternatively characterized does not make the
employer’s discrimination any less based on the employee’s failure to conform
to the employer’s prescriptive gender stereotype. Nor does it make the
discrimination any less actionable under Price Waterhouse‘s gender
nonconformity theory.

If
it did, Glenn’s termination claim would have been dismissed. But instead, we
correctly found that Title VII did not allow Glenn’s employer to fire her for
failing to conform to the employer’s prescriptive stereotype of what a
birth-assigned male should be because doing so constituted discrimination
“because of . . . sex.” Our conclusion did not change the fact that Glenn is
transsexual, and Title VII does not protect transsexuals as a class. Rather,
our conclusion was in spite of those facts. See Glenn, 663 F.3d at 1318
n.5 (recognizing that pre-Price Waterhouse decisions had concluded that
a claim based on discrimination against a transsexual woman for being
transsexual was not actionable under Title VII because it stated a claim of
discrimination “not because she is female, but because she is transsexual,” and
transsexuals are not a protected class under Title VII) (citations and
quotation marks omitted).

As
the concurrence itself notes, “[U]nder Title VII, we ask only whether the
individual experienced discrimination for deviating from a gender stereotype.”
Pryor Op. at 21. When the answer is “yes,” the plaintiff has stated a claim,
and the fact that Title VII does not protect homosexuals as a class is entirely
irrelevant. The concurrence offers no answer to this hole in its reasoning.

Instead,
it changes the subject, pointing to an artificial line between discrimination
because an employee has not behaved in a way that the employer thinks a person
of that gender should, on the one hand, and discrimination because an employee
is not the way that the employer thinks a person of that gender should be, on
the other. Pryor Op. at 23. As a matter of logic, no basis exists for this
arbitrary line. Even a circuit that has declined to apply gender-stereotyping
to a plaintiff’s claim that he was discriminated against because he is gay has
essentially admitted as much: in Vickers v. Fairfield Medical Center,
453 F.3d 757, 762 (6th Cir. 2006), the Sixth Circuit expressed concern that
recognizing the Title VII claim of a man who asserted that he was harassed and
discriminated against because his co-workers perceived him to be gay would
allow “any discrimination based on sexual orientation [to] be actionable under
a [prescriptive] sex stereotyping theory . . ., as all homosexuals, by
definition, fail to conform to traditional gender norms in their sexual
practices.” 453 F.3d at 764 (emphasis added).

If
an employer discriminates against a lesbian solely because she fails to conform
to the employer’s view that women should be sexually attracted to only men, the
employer clearly discriminates against that woman for failure to conform to
gender stereotypes as much as if the employer discriminates against a woman
because she engages in the behavior of dating women.

But
in the concurrence’s world, only the person who acts on her feelings enjoys the
protection of Title VII. This makes no sense from a practical, textual, or
doctrinal point of view.

As
a practical matter, this construction protects women who act or dress in ways
that the employer perceives as gay, because that behavior fails to conform to
the employer’s view of how a woman should act. But it allows employers to
freely fire women that the employer perceives to be lesbians — as long as the
employer is smart enough to say only that it fired the employee because it
thought that the employee was a lesbian, without identifying the basis for the
employer’s conclusion that she was a lesbian. It cannot possibly be the case
that a lesbian who is private about her sexuality — or even a heterosexual
woman who is mistakenly perceived by her employer to be a lesbian — can be
discriminated against by the employer because she does not comport with the
employer’s view of what a woman should be, while the outwardly lesbian
plaintiff enjoys Title VII protection.11

The
concurrence’s distinction between behavior and being also enjoys no textual
support. Title VII prohibits discrimination “because of . . . sex.” 42 U.S.C. §
2000e-2(a)(1). It doesn’t distinguish between discrimination “because of . . .
sex,” based on behaving “like a woman,” and discrimination “because of . . .
sex” based on being a woman. To take an analogous example, by prohibiting
discrimination “because of . . . religion,” Title VII does not allow an
employer to discriminate against a non-practicing Catholic for simply being a
Catholic any more than it allows an employer to discriminate against a Catholic
for coming to work on Ash Wednesday with a cross of ashes on her forehead. The
Title VII text that prohibits discrimination against a Catholic simply for
being a Catholic is exactly the same as the Title VII text that prohibits
discrimination against women, except that it refers to “religion” instead of
“sex.” If that language does not permit an employer to discriminate against a
Catholic for being Catholic, it does not allow an employer to discriminate
against a woman for being a woman, regardless of whether she behaves the way
her employer thinks a woman should.

The
Supreme Court has likewise not found a distinction between behavior and being
in applying Title VII’s proscription of discrimination “because of . . . sex.”
In the ascriptive-stereotyping case Manhart, which involved the policy
charging women more than men for pension benefits, living longer was a matter
of being rather than behaving. But the Supreme Court found that the policy
nonetheless violated Title VII, despite the fact that the plaintiffs were not
discriminated against for their behavior. And that’s because Title VII’s broad
language “strike[s] at the entire spectrum of disparate treatment of men
and women resulting from sex stereotypes.” Price Waterhouse, 490 U.S. at
251 (emphasis added) (citations and quotation marks omitted).

Finally,
as a doctrinal matter, neither the concurrence nor any other source, to my
knowledge, has satisfactorily explained how a woman who behaves in a manner
that is inconsistent with the employer’s vision of how a woman should act is
discriminated against any more on the basis of her gender than a woman who is
discriminated against because, by being sexually attracted to women, she fails
to conform to the employer’s view of what a woman should be. The concurrence’s
distinction between “behavior” and “being” is a construct that is both illusory
in its defiance of logic and artificial in its lack of a legal basis.

Perhaps
because the dichotomy that the concurrence advocates cannot find logical
support, the concurrence constrictively reads Price Waterhouse and
reinvents Glenn to support its theory. See Pryor Op. at 23-26.
While the concurrence correctly notes that Price Waterhouse did not promote
Hopkins because she acted in a manner that did not conform to its view of
women, nothing in Price Waterhouse purports to limit its reasoning to
only those cases involving discrimination on the basis of behavior (as opposed
to interests or attractions) that does not comport with the employer’s
prescriptive gender stereotype.12 True, Price Waterhouse discriminated
against Hopkins based on characteristics Hopkins demonstrated in the workplace
that were inconsistent with Price Waterhouse’s prescriptive stereotype of
women. But that is simply how the facts in Price Waterhouse arose.
Nothing in Price Waterhouse‘s reasoning or construction of Title VII
justifies limiting Price Waterhouse‘s holding to cases involving
discrimination against women for their behavior, as opposed to discrimination
against women for being women or for their interests and attractions. Nor, for
the reasons I have discussed, does it make sense to do so. The concurrence
likewise points to nothing in Price Waterhouse that so limits its
reasoning.

As
for Glenn, I have already explained how the concurrence tries to use
this case as a do-over of that one. But Glenn says what it says —
namely, that discrimination solely because a birth-assigned male failed to
conform to the employer’s prescriptive stereotype for what men should be by
being transsexual constitutes gender-based discrimination in violation of Title
VII. Whether the concurrence likes it or not — and whether the concurrence
recognizes it or not — we are bound by Glenn, and Glenn cannot
be reconciled with our holding today.

So
the concurrence tries a different tack. It argues essentially that it’s for
lesbian employees’ own good that we should not recognize that Title VII
prohibits discrimination against lesbians on the basis that they fail to
conform to the employer’s view of what a woman should be. See W. Pryor
Op. at 20-21. In the concurrence’s view, we shouldn’t apply Price Waterhouse‘s
prescriptive-stereotyping theory to preclude discrimination against a lesbian
for failure to comply with the employer’s ideal view of women because doing so
somehow “rel[ies] on false stereotypes of gay individuals.” Id.

Judge
Pryor’s concurrence then embarks on an irrelevant journey through some of the
different ways in which a gay person may express — or suppress — her sexual
attraction. See id. at 3. It asserts, for example, that “[s]ome gay
individuals adopt the gay ‘social identity’ but experience a variety of sexual
desires. . . . [S]ome gay individuals may choose not to marry or date at all or
may choose a celibate lifestyle. And other gay individuals choose to enter
mixed-orientation marriages.” Id. (citations omitted).

The
concurrence’s argument seems to fundamentally misunderstand what it means to be
a lesbian. Lesbians are women who are sexually attracted to women. That’s not a
stereotype; it’s a definition.

And
if an employer discriminates against a woman for the reason that the employer
believes the employee is sexually attracted to women, how the employee
expresses — or suppresses — her feelings of sexual attraction is irrelevant
to the fact that the employer has discriminated against the woman for failing
to conform to the employer’s stereotype that women should be sexually attracted
to only men.13 That discrimination violates Title
VII’s proscription against discrimination “because of . . . sex,” under Price
Waterhouse and Glenn, just as much as if the discrimination were for
the failure of a woman to be demure or a birth-assigned male to refrain from
identifying as a woman.14

The
panel opinion’s reasons for rejecting this conclusion fare no better than Judge
Pryor’s concurrence’s. The panel opinion makes two arguments in defense of its
position. First, the panel opinion asserts that, under our
prior-panel-precedent rule, we have no choice but to hold that discrimination
against a woman for being a lesbian and therefore failing to conform to her
employer’s stereotype of what a woman should be does not violate Title VII. And
second, the panel opinion contends that its holding is correct because “other
circuits have held that sexual orientation discrimination is not actionable
under Title VII.” Maj. Op. at 15. Neither argument can withstand scrutiny.

Beginning
with the panel opinion’s contention that our precedent dictates our result
today, our prior-panel-precedent rule states that we must follow a prior
panel’s decision, even if we disagree with it — unless a later en banc
or Supreme Court opinion overrules or undermines the prior precedent to the
point of abrogation. Chambers v. Thompson, 150 F.3d 1324, 1326 (11th
Cir. 1998). We have said that where a Supreme Court opinion “directly
conflict[s] with” a prior precedent, the prior panel precedent has been
abrogated. United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009)
[22 Fla. L. Weekly Fed. C75a]. Contrary to the panel opinion’s position in
Evans’s case, the exception governs here.

The
panel opinion hangs its hat on Blum v. Gulf Oil Corp., 597 F.2d 936 (5th
Cir. 1979), a case our predecessor court decided 38 years ago — ten years
before the Supreme Court recognized prescriptive-stereotyping theory in Price
Waterhouse. In Blum, we said, “Discharge for homosexuality is not
prohibited by Title VII . . . .” Id. at 938. This ruling allows an
employer to discriminate against a woman solely because she is a lesbian and
does not fulfill the employer’s version of what a woman should be.

But
that result “directly conflict[s] with” Price Waterhouse‘s holding that
Title VII prohibits an employer from discriminating against its employee on the
basis that she fails to conform to the employer’s view of what a woman should
be. Indeed, Price Waterhouse “eviscerate[s]” Blum‘s holding no
less than we found it did other courts’ pre-Price Waterhouse holdings
that employers did not violate Title VII when they discriminated against their
transgender employees simply because the employees failed to conform to the
employers’ view of what a member of the employee’s birth-assigned sex should
be. See Glenn, 663 F.3d at 1318 n.5 (quoting Smith, 378 F.3d at
573) (quotation marks omitted).

Simply
put, Price Waterhouse requires us to apply the rule that “[a]n
individual cannot be punished because of his or her perceived
gender-nonconformity.” See id. at 1319. Since continued application of Blum
would allow a woman to be punished precisely because of her perceived
gender non-conformity — in this case, sexual attraction to other women — Price
Waterhouse undermines these cases to the point of abrogation. See Kaley,
579 F.3d at 1255; Chambers, 150 F.3d at 1326.

And
even if it didn’t — a position that is not supported by the reality of what Blum‘s
holding does — Blum‘s failure to account for prescriptive-stereotyping
theory in its “analysis”15 demands reexamination after Price
Waterhouse. For this reason, since the panel concludes that Blum continues
to bind us even after Price Waterhouse, we should rehear this case en
banc on this issue. Cf., e.g., Flanigan’s Enters., Inc. of Ga. v.
City of Sandy Springs, Ga., 831 F.3d 1342, 1348 (11th Cir. 2016) [26 Fla.
L. Weekly Fed. C586a] (encouraging appellants to “petition the court to
reconsider our decision en banc” where prior precedent appeared to conflict
with recent Supreme Court law).

Turning
to the panel opinion’s second basis for its holding, the opinion wrongly finds
comfort in other circuits’ rulings on this issue. To be sure, we should
carefully consider our sister circuits’ opinions and the bases for them, for
our colleagues are a thoughtful and learned bunch. But to put it colloquially,
the mere fact that our friends may jump off a bridge does not, in and of
itself, make it a good idea for us to do so.

Our
sister circuits’ decisions are not correct. Not one of the justifications they
offer for concluding that Title VII does not protect a man or woman from
discrimination because he is gay or she is a lesbian holds up to examination.

I
begin by noting that several circuits have opined that discrimination against a
man or woman because he or she is gay does not fall into any of the following
categories of discrimination: discrimination based on sexually charged
interactions, on ascriptive stereotyping, or on differences in treatment
between men and women. But even if that is accurate,16 discrimination doesn’t have to
comport with one of these theories in order to qualify under Title VII as
discrimination “because of . . . sex.”

Under
Price Waterhouse, when an employer discriminates because of an
employee’s failure to conform to the employer’s view of what a member of that
sex should be, that employer has discriminated, in violation of Title VII,
“because of . . . sex.” See Price Waterhouse, 490 U.S. at 251. That is
all that is required to establish a claim for discrimination under Title VII.

Nor
does it matter to the viability of an employee’s claim that, as some courts
have phrased it, “[s]exual orientation is not a classification that is
protected under Title VII.” See, e.g., Hamner v. St. Vincent
Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 707 (7th Cir. 2000); see
also Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st
Cir. 1999); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Bibby
v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Wrightson
v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Vickers,
453 F.3d at 762. The concurrence relies on this rationale as well; as I have
already explained, that reliance is grossly misplaced.

Some
of our sister circuits, like the concurrence here, have also noted that
“Congress has repeatedly rejected legislation that would have extended Title
VII to cover sexual orientation.” Bibby, 260 F.3d at 261. But the
Supreme Court has emphasized that “it is ultimately the provisions of our laws
rather than the principal concerns of our legislators by which we are governed.
Title VII prohibits ‘discriminat[ion] . . . because of . . . sex’ in the
‘terms’ or ‘conditions’ of employment.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 79-80 (1998). This necessarily “extend[s] to
[discrimination ‘because of . . . sex’] of any kind that meets the statutory
requirements.” Id. at 80. Indeed, the Court in Oncale made clear
that we must apply Title VII’s text alone, without regard to what we may divine
Congress’s concerns to be. And Price Waterhouse establishes that
discrimination based on an employee’s failure to comport with the employer’s
view of what a member of the employee’s sex should be is discrimination
“because of . . . sex” that meets Title VII’s statutory requirements.

It
likewise makes no difference to the viability of a Title VII claim whether the
employee has “readily demonstra[ted]” in the workplace the characteristic on
which the discrimination is based. Vickers, 453 F.3d at 763. This
argument is a variation on Judge Pryor’s concurrence’s contention that Title
VII and Price Waterhouse somehow prohibit discrimination based on
behavior only and not on being, so it fails for the same reasons that the
concurrence does.

Finally,
the panel opinion cites Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061
(9th Cir. 2002), for the proposition that “an employee’s sexual orientation is
irrelevant for purposes of Title VII.” Maj. Op. at 16 (quotation marks
omitted). In the context of Rene‘s facts, I agree that the plaintiff’s
sexual orientation was irrelevant — but only because the plaintiff alleged
that he was discriminated against “because of . . . sex” under Title VII when
he was subjected to “severe, pervasive, and unwelcome ‘physical conduct of a
sexual nature’ in the workplace.” Rene, 305 F.3d at 1063.

As
I have noted, discrimination that occurs in the form of physical sexual conduct
satisfies a category of discrimination “because of . . . sex” without
consideration of whether it also constitutes discrimination “because of . . .
sex” under any other theories. But the mere fact that sexual orientation may be
irrelevant when a plaintiff alleges discrimination “because of . . . sex” under
Title VII based on an unwanted-sexual-conduct theory does not mean that it is
irrelevant when a plaintiff alleges discrimination “because of . . . sex” based
on a prescriptive-stereotyping theory.

I
am not the first person to conclude that discrimination against an employee
because of her sexual orientation is discrimination against an employee
“because of . . . sex.” In recent years in particular, numerous district
courts, including two in our Circuit, have also reached this conclusion. See,
e.g., Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, __ F. Supp. 3d
__, No. 1:16CV00054-MW-GRJ, 2016 WL 3440601, at *5-9 (N.D. Fla. June 20, 2016);
Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1193-94 (M.D. Ala.
2015); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159-61 (C.D.
Cal. 2015); Deneffe v. SkyWest, Inc., No. 14-cv-00348-MEH, 2015 WL
2265373, at *5-6 (D. Colo. May 11, 2015); Terveer v. Billington, 34 F.
Supp. 3d 100, 116 (D.D.C. 2014); Boutillier v. Hartford Pub. Schs., No.
3:13CV1303 WWE, 2014 WL 4794527, at *2 (D. Conn. Sept. 25, 2014); Heller v.
Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002); see
also Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 618-22
(S.D.N.Y. 2016) (adhering to circuit precedent foreclosing a sexual-orientation
claim under Title VII but explaining why that precedent rests on shaky ground).

And
the U.S. Equal Employment Opportunity Commission has taken the same position as
these district courts, both in a recent administrative decision, see Baldwin
v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015), and
in this litigation in the capacity as an amicus curiae. It is time that
we as a court recognized that Title VII prohibits discrimination based on an
employee’s sexual orientation since that is discrimination “because of . . .
sex.”

III.

Presidential-Medal-of-Freedom
recipient Marlo Thomas has expressed the sentiment that “[i]n this land, every
girl grows to be her own woman.”17 Title VII codifies the promise that
when she does, she will not be discriminated against on the job, regardless of
whether she conforms to what her employer thinks a woman should be. Because the
panel does not read Title VII to fulfill that promise, I respectfully dissent.

__________________

*Honorable
Jose E. Martinez, United States District Judge for the Southern District of
Florida, sitting by designation.

1This
appeal arises from Evans’s decision to proceed in forma pauperis, and
the district court reviewed the allegations without appellees receiving
service. 28 U.S.C. § 1915(e)(2)(B)(ii). Appellees did not file a brief for this
Court’s consideration or otherwise appear on appeal, apart from informing the
Court via letter that the district court dismissed the action before service
was perfected on them.

2Hughes
v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003) [17 Fla. L. Weekly
Fed. C37a].

3Evans
also briefly mentions that the district court erred in speculating about the
timeliness of her EEOC charge and whether the allegations in her complaint were
sufficiently similar to the EEOC’s investigation. However, Evans provided only
a passing reference to these issues, and no real argument to them. Therefore,
as a passing reference is insufficient to preserve an issue on appeal, we
consider these issues abandoned. See Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

4In Bonner
v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to close of business on September 30, 1981.

5The
Court in Blum stated, in pertinent part:

It is questionable whether appellant has presented a prima
facie Title VII case of racial, sexual, or religious discrimination. However,
even if he has done so, Gulf articulated a legitimate reason for his discharge:
Mr. Blum admitted using Gulf’s telephones for his own business. From what Gulf
then knew of appellant’s use as opposed to his later explanations and
qualifications it had a legitimate reason for terminating him. Although he has
attempted to show that this reason was a pretext, he has not shown that anyone
in authority was aware that other employees used Gulf telephones for non-Gulf
business.

597
F.2d at 937-38 (internal citations omitted).

6In Phillips,
the Court concluded that the policy violated Title VII to the extent that it
did not fit the exception for bona fide occupational qualifications.

7Although
Glenn was decided under the Equal Protection Clause, Title VII’s
standard is easier to satisfy than the Equal Protection Clause’s standard. See
Glenn, 663 F.3d at 1321. In Glenn, we also recognized the
cross-applicability of principles between Title VII and Equal Protection cases
by relying extensively on the rationale of Title VII decisions, particularly Price
Waterhouse.

8I
do not mean to suggest any judgments about the reasons for why an employer
might hold any given prescriptive stereotype. The reasons for it are irrelevant
to whether prescriptive stereotyping actually occurs under Title VII. All that
matters is that the employer discriminates against the employee because the
woman employee’s sexual attraction to women fails to comport with the
employer’s view of what a woman should be. Cf. Manhart, 435 U.S. at 707
(finding that discrimination based on even “unquestionably true” ascriptive
stereotypes constitutes discrimination against an “individual” “because of . .
. sex” and therefore violates Title VII).

9This
type of discrimination is discrimination “because of . . . sex” for another
reason as well. When an employer discriminates against a woman because she is
sexually attracted to women but does not discriminate against a man because he
is sexually attracted to women, the employer treats women and men differently
“because of . . . sex.”

10Judge
Pryor’s concurrence tries valiantly to escape this inconvenient fact, arguing
that the employer’s statement that he “fired Glenn because he considered it
‘inappropriate’ for her to appear at work dressed as a woman and that he found
it ‘unsettling’ and ‘unnatural’ that Glenn would appear wearing women’s
clothing,” Glenn, 663 F.3d at 1320, demonstrates that Glenn was not
fired “solely for being transsexual.” W. Pryor Op. at 24. This argument is
wrong on three counts. First, the opinion in Glenn reflects that Glenn
actually wore women’s clothing to work only once (on Halloween) before she
was fired, and on that occasion, she was asked to leave — she was not
terminated — so plainly, Glenn was not fired for actually having worn women’s
clothing to work. Second, it is clear that the employer’s statement on which
the concurrence relies expressed concern only that Glenn would appear at work
as a woman after her transition, but that never occurred since the
employer fired her before her transition. Finally, the employer candidly
admitted that he fired Glenn “based on ‘the sheer fact of the
transition.’ ” Glenn, 663 F.3d at 1320-21 (emphasis added).

11The
concurrence takes a phrase of this sentence out of context and uses it to
mischaracterize this dissent as amounting to nothing more than a disagreement
with Congress since Congress did not specifically intend to protect lesbians
from discrimination on the basis that they are sexually attracted to women. See
W. Pryor Op. at 27. But, in reality, the concurrence is the one with the
disagreement — only it’s a disagreement with the text of Title VII, Supreme
Court precedent, our precedent, and even logic. True, my conclusion — that
discrimination against a lesbian because she fails to comport with the
employer’s view of what a woman should be violates Title VII’s ban on discrimination
“because of . . . sex” — likely is not what Congress had in mind when it
enacted Title VII. But “male-on-male sexual harassment in the workplace was
assuredly not the principal evil Congress was concerned with when it enacted
Title VII,” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79
(1998). Yet the Supreme Court found that irrelevant to whether Title VII’s text
prohibited it. So the mere fact that we may believe that Congress may not have
specifically intended the meaning of what a statute actually says is not a
basis for failing to apply the textual language. This dissent relies on the
text of Title VII, as well as Supreme Court precedent, this Court’s opinion in Glenn,
and logic, not on some “disagreement” with Congress. Of course, the concurrence
is free to ignore my analysis rather than respond to it, but that doesn’t make
it go away.

12The
concurrence relies on Zachary Herz’s legal commentary for the proposition that
“current doctrine does not protect on the basis of status alone.” Pryor Op. at
24. While Herz does note that “the current regime . . . protects
stereotypically ‘gay’ conduct without protecting LGBT status,” as the
concurrence notes, id. at 5 (quoting Herz, supra, at 432), Herz
was suggesting, among other things, that Price Waterhouse supports a
broader reading than some courts at that time were giving it. See Herz, supra,
e.g., at 399 (“a broader application of Price Waterhouse‘s view
of discrimination has the potential to resolve, or at least to ameliorate, a
serious problem in American antidiscrimination law — the inability of
traditional Title VII approaches to address the realities of modern workplace
bias”). Since Herz’s note was published, other cases have recognized the extent
of Price Waterhouse‘s reasoning. See, e.g., Winstead v.
Lafayette Cty. Bd. of Cty. Commis, __ F. Supp. 3d __, No.
1:16CV00054-MW-GRJ, 2016 WL 3440601, at *5-9 (N.D. Fla. June 20, 2016).

13I
nevertheless note that even under Judge Pryor’s limited view, discrimination
against an employee for “adopt[ing]” what Judge Pryor’s concurrence describes
as the “gay ‘social identity,’ ” for marrying or dating someone of the same
sex, for choosing not to marry or date at all, or for entering into so-called
mixed-orientation marriages, is still discrimination in its own right because
the employer holds a prescriptive stereotype that members of a given sex should
not act in these ways. Judge Pryor’s concurrence may dress up the prescriptive
stereotype that the employer applies however he wishes, but all of this
discrimination is discrimination because of the employee’s failure to comport
with the employer’s idealized version of what a member of a given sex should be.
So all of it violates Title VII under Price Waterhouse and Glenn.

14The
concurrence seems to suggest that I am proposing that merely alleging that an
employer has discriminated because an employee is a lesbian somehow suffices to
prove the claim. See W. Pryor Op. at 25-26 (“Because a claim of gender
nonconformity is a behavior-based claim, not a status-based claim, a plaintiff
still ‘must show that the employer actually relied on her gender in making its
decision.’ ”). To be clear, that is not what I am saying. Of course, a
plaintiff who alleges that her employer discriminated against her because she
failed to conform to the employer’s view that women should be sexually
attracted to only men must prove that, in fact, that was a motivating factor in
why her employer took adverse employment action against her. She can do so
through either direct or circumstantial evidence. But at the pleading stage,
all she must do is allege facts that, taken as true, establish that her
employer discriminated against her because she did not comport with the
employer’s vision of what a woman should be.

15In Blum,
we actually engaged in no discussion or reasoning related to our statement,
“Discharge for homosexuality is not prohibited by Title VII . . . .” 597 F.2d
at 938. Rather, we simply cited Smith v. Liberty Mutual Insurance Co.,
569 F.2d 325, 327 (5th Cir. 1978). In Smith, we characterized the
plaintiff as arguing that Title VII precludes discrimination “based on
affectional or sexual preference.” Id. at 326. Finding no cause of
action for the plaintiff under Title VII, we explained our holding in
ascriptive-stereotyping-theory terms: “Here the claim is not that [the
plaintiff] was discriminated against because he was a male, but because as a
male, he was thought to have those attributes more generally characteristic of
females and epitomized in the descriptive ‘effeminate.’ ” Id. at 327. In
other words, we found that Title VII could not assist the plaintiff because his
employer did not assume that, since he was a man, he would comport with an
undesired stereotype of men. And although the plaintiff presented a
prescriptive-stereotyping theory — that is, the theory that his employer
discriminated against him under Title VII by insisting that the plaintiff
comply with its view of what a man should be — we rejected it. This is perhaps
understandable, since the Supreme Court did not recognize the theory for
another eleven years after we issued Smith. But now, 39 years later and
28 years after the Supreme Court issued Price Waterhouse, our continuing
refusal to recognize the significance of Price Waterhouse is not.

16As
I have noted, see supra at n.4, discrimination against a woman because
she is sexually attracted to women can qualify as well as discrimination based
on differences in treatment between men and women. When an employer
discriminates against a woman because she is sexually attracted to women but
does not discriminate against a man because he is sexually attracted to women,
the employer treats women and men differently “because of . . . sex.”

17STEPHEN
J. LAWRENCE & BRUCE HART, Free to Be . . . You and Me, on FREE
TO BE . . . YOU AND ME (Bell Records 1972); see also President Obama
Announces the Presidential Medal of Freedom Recipients, The White House, https://obamawhitehouse.archives.gov/blog/2014/11/10/president-obama-announces-presidential-medal-freedom-recipients
(last visited Feb. 22, 2017). Marlo Thomas and Friends created the album Free
to Be . . . You and Me, a children’s record with multiple songs, skits,
stories, and poems, that has been praised for its “potent message of freedom,
equality, and personal liberation.” Free to Be . . . You and Me at 40,
The Paley Center for Media, https://www.paleycenter.org/2014-free-to-be-you-and-me-at-40
(last visited Feb. 19, 2017). After the album went platinum, Thomas created a
best-selling book and an award-winning television special of the same name. Id.
Much of the album emphasizes the idea that a person should be what she
wishes — not be forced to conform to another’s view of her gender. Some of the
album’s more famous songs that focus on this notion include “Parents are
People,” “William’s Doll,” and “It’s Alright to Cry.” Id. In addition to
Thomas, Alan Alda, Harry Belafonte, Mel Brooks, Rita Coolidge, Billy DeWolfe,
Roberta Flack, Rosey Grier, Michael Jackson, Kris Kristofferson, The New
Seekers (who performed the title track), Tom Smothers, The Voices of East
Harlem, and Dionne Warwick appear on the album. Free to Be You and Me,
Amazon, https://www.amazon.com/Free-Be-You-Marlo-Thomas/dp/B00005OKQT
(last visited Feb. 20, 2017). The White House cited Thomas’s work on Free to
Be . . . You and Me in its announcement of her Presidential Medal of
Freedom.

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