DO CONGRESS ENACTED THIS PRINCIPLE THAT YOU SHOULD NOT BE FIRED BECAUSE OF WHO YOU ARE, WHETHER IT'S SEX OR RACE OR NATIONALITY OR RELIGION.

ALL THOSE ARE CALLED LOAD AND TITLE VII.

AND SO, WHAT DOES THAT MEAN?

[MUSIC] >> Bonnie: HELLO.

I AM BONNIE ERBE.

WELCOME TO "TO THE CONTRARY".

THIS WEEK, WE CONTINUE OUR WOMEN THOUGHT LEADERS SERIES.

WE ARE HERE WITH GEORGETOWN UNIVERSITY LAW CENTER PROFESSOR NAN HUNER, WHO IS AN EXPERT ON WOMEN, GENDER, AND THE LAW.

WELCOME, PROFESSOR HUNTER.

VERY NICE TO MEET YOU.

>> Professor Nan Hunter: THANK YOU.

>> Bonnie: THANKS FOR COMING.

>> Professor Nan Hunter: MY PLEASURE.

>> Bonnie: WE WILL DO THIS SORT OF BACKWARDS IN THE SINCE YOU HAVE A NEW FINDING WHICH IS FASCINATING, WHICH I WANT TO TALK ABOUT.

BUT THEN I ALSO WANT TO TALK ABOUT THE WHOLE HISTORY OF COMMUNAL, LAWS, JUDGE MADE MEETING COURT OPINIONS, CONGRESSIONAL MADE LAW WHICH IS SEEN AS SOMETHING DIFFERENT, AND WHAT IT MEANS AND HOW IT HAS EVOLVED OVER TIME IN RAY LGBTQI RIGHTS.

SO WE START WITH YOUR FINDING.

LEASE TELL ME WHAT THAT IS.

>> Professor Nan Hunter: WELL, WHAT I WROTE ABOUT WAS SOMETHING THAT I FOUND IN THE CANDIDATE AT JFK LIBRARY IN BOSTON WHEN I WAS DOING RESEARCH FOR A DIFFERENT PROJECT.

AND WHAT I CAME ACROSS WAS SOMETHING THAT SPEAKS DIRECTLY TO WHAT THE SORT OF UNDERSTOOD MEANING OF SEX DISCRIMINATION WAS IN THE MID-1960S, BECAUSE THAT'S THE QUESTION THAT'S BEFORE THE COURT IN THESE TITLE VII CASES.

WHAT DOES IT MEAN WHEN CONGRESS ENACTED TITLE VII TO SAY THERE CAN BE NO DISCRIMINATION BECAUSE OF SEX IN THE WORKPLACE?

AND IT WAS THE 1960S.

WHAT COURTS LOOK TO NOW IN INTERPRETING TEXTS IS IF THEY ARE NOT COMMITTEE REPORTS, AND THERE WEREN'T FOR THIS PARTICULAR PART OF TITLE VII, WHAT WAS THE POPULAR UNDERSTANDING?

WHAT WERE PEOPLE THINKING ABOUT WHEN THEY THOUGHT ABOUT DISCRIMINATION BASED ON SEX?

AND I THINK THE RIGHT ANSWER TO THAT IS THAT EVEN IN 1964, DISCRIMINATION BASED ON SEX INCLUDED CONCEPTS LIKE STEREOTYPES AND GENDER.

AND HERE'S THE EVIDENCE THAT I FOUND IN THAT: IT WAS THE TRANSCRIPT OF THE MEETING OF WHAT WAS THEN THE PRESIDENT'S COMMISSION ON STATUS OF WOMEN.

THIS IS 1962.

IT'S A COUPLE YEARS BEFORE TITLE VII WAS ENACTED.

AND THE CONVERSATION IS HOW RATIONAL IT IS TO DISTINGUISH BASED ON SEX PEOPLE ARE DOING THE SAME JOB.

SO IT'S AN EQUAL PAY CONVERSATION.

INTO THE CHAIR OF THE COMMITTEE ON LAW OF THIS COMMISSION IS A WOMAN NAMED EDITH GREENE, A MEMBER OF CONGRESS.

SHE CAME FROM OREGON.

>> Bonnie: DEMOCRAT?

>> Professor Nan Hunter: DEMOCRAT.

SHE WAS IN CONGRESS FOR 20 YEARS, HAD BEEN A SCHOOLTEACHER, A WIFE, A MOTHER AND b ¦¦ >> Bonnie: SOUNDS LIKE AN EARLIER VERSION OF WAS NO SENDER bÃÃDISPUTE IN PATTY b ¦¦ >> Bonnie: WHEN SHE FIRST CAMPAIGN TALK ABOUT BEING A MOM AND TENNIS SHOES.

>> Professor Nan Hunter: YES.

EDITH GREENE IS CHAIRING THIS MEETING.

THE QUESTION COMES UP, HOW CAN PEOPLE NOT GET IT THAT IS DISCRIMINATION BASED ON SEX AND WHEN PEOPLE ARE DOING THE SAME JOB?

AND EDITH GREENE SAYS, WELL, IF YOU WANT HEAR ABOUT SEX DISCRIMINATION, LET ME TELL YOU ABOUT SEX DISCRIMINATION.

AND THAT OCCURRED IN LONDON WHEN A WOMAN WHO IS WORKING FOR THE BRITISH MINISTRY, SO IT'S THE BRITISH GOVERNMENT, NOT SOME OBSCURE LITTLE, YOU KNOW, MOM-AND-POP BUSINESS SOMEWHERE, THE BRITISH GOVERNMENT.

SHE IS WORKING FOR THE BRITISH GOVERNMENT.

SHE DECIDES SHE WANTS TO TRANSITION AND BECOME A MAN.

SO SHE CHANGES HER NAME, GOES THROUGH THE PROCESS, SHE INFORMS THE EMPLOYER THAT SHE WILL BE COMING TO WORK WITH A NEW NAME, COME TO WORK IS DONE OFTEN.

SHE COMES BACK TO WORK AS A HE.

SHE STARTS WORK DOING THE SAME JOB AND, BINGO, SHE'S GOT A RAISE.

WHY IS THERE A RAISE?

THERE'S A RAISE BECAUSE NOW THIS PERSON IS A MALE AND MEN GET PAID MORE IN THE EARLY 1960s IN BRITAIN.

AND SO, THE STRUCTURE OF THAT STORY IS EXACTLY THE SAME STRUCTURE AS THE STORY OF THE CASES BEFORE THE SUPREME COURT, AND IN THE SUPREME COURT, THERE IS ONE OF THE CASES THAT INVOLVES A MAN WHO TRANSITIONED TO BECOME WOMAN.

A WOMAN THAT FELT LIKE IT WAS HER TRUE GENDER IDENTITY.

COMES BACK AND TELLS EVERYONE, COMES BACK TO WORK THE SAME JOB, SAME PERSON, SAME EMPLOYER.

EVERYTHING IS THE SAME EXCEPT THAT THIS INDIVIDUAL'S SEX HAS CHANGED.

AND SO, THE ARGUMENT ABOUT WHETHER THAT CONSTITUTES DISCRIMINATION BASED ON SEX, IF YOU THINK ABOUT IT AND SIMPLY A LOGICAL KIND OF COMMON SENSE WAY, IT'S OBVIOUSLY DISCRIMINATION BASED ON SEX.

AND b ¦¦ >> Bonnie: AND ITS FIRED?

>> Professor Nan Hunter: AND IN 1962, BECOMING A MAN GETS YOU A RAISE.

AND TODAY, INFORMED TRANSITIONS TO BECOME A WOMAN, YOU KNOW, YOU ARE FIRED.

BUT THE ISSUE I THINK IS JUST A LOGICAL STRUCTURE OF IT.

SO IT WAS THAT SAME LOGICAL STRUCTURE KIND OF IN THE MINDS OF PEOPLE IN THE 1960s AND THE STORY FROM THIS PRESIDENT'S COMMISSION I THINK ILLUSTRATES THAT IT WAS, THAT YOU KNOW, YOU HAD A ROOM FULL OF PROFESSIONAL MEN AND WOMEN WHO ARE CONSIDERING, YOU KNOW, THIS ISSUE, AND THEY HEAR THIS STORY.

THE STORY IS ACTUALLY TOLD BY MEMBER OF CONGRESS EVEN THOUGH IT'S NOT A CONGRESSIONAL COMMITTEE.ND I THINK IT SIMPLY ILLUSTRATES THAT THE LOGIC OF SEX DISCRIMINATION THEN, WHEN SOMEONE TOOK THE TROUBLE TO THINK ABOUT IT, WAS THE SAME LOGIC OF SEX DISCRIMINATION NOW.

AND SO, I THINK THAT'S IMPORTANT FOR US TO REMEMBER AS WE THINK ABOUT QUESTIONS OF SEX DISCRIMINATION THAT ARE RAISED BY PEOPLE WHO DID NOT TEND TO BE PLAINTIFFS IN THE 1960s SUCH AS GAY PEOPLE OR TRANSGENDER PEOPLE WANT LET ME PLAY AVOLT THE DEVILS ADVOCATE FOR A MOMENT.

HERE TALKING ABOUT A CONVERSATION THAT TOOK PLACE OUTSIDE OF THE HEARING, I GUESS.>> Professor Nan Hunter: OUTSIDE OF CONGRESS.

>> Bonnie: BEFORE OR AFTER THE ACTUAL HEARING ITSELF?

OR WAS THIS b ÃÃDID SHE TELL THE SITE AN ADULT WHILE THEY WERE IN SOME KIND OF OFFICIAL?

>> Professor Nan Hunter: THIS WAS PART OF THE OFFICIAL HEARING, THE MEETING OF THE COMMISSION.

>> Bonnie: BUT SHE LATER VOTED, BY THE WAY, FOR THE CIVIL RIGHTS ACT.

>> Professor Nan Hunter: YES.

>> Bonnie: AS DID MOST DEMOCRATS BACK THEN.

BUT GETTING BACK TO HER STORY, IT WAS NOT IN A CONFERENCE COMMITTEE WHERE THE HOUSE AND SENATE WORK OUT DIFFERENCES BETWEEN THE TWO BILLS, TWO VERSIONS OF THE BILL THAT THEY BOTH PAST.

THEN THE CONFERENCE COMMITTEE, AS IT'S CALLED, PASSES THE LEGISLATION.

BENNETT SENT BACK TO BOTH CHAMBERS FOR ANOTHER VOTE.

SO IT WAS NOT b ÃÃAND USUALLY THOSE ARE THE KINDS OF THINGS THAT WHEN THE SUPREME COURT, WHEN ANY COURTS ARE TRYING TO LOOK TO FIGURE OUT WHAT IS SO-CALLED CONGRESSIONAL INTENT, THEY WILL LOOK TO SOMETHING THAT HAPPENED AT A COMMITTEE THAT WAS DIRECTLY INVOLVED IN DECIDING WHAT THE CIVIL RIGHTS ACT SHOULD BE.

>> Professor Nan Hunter: THAT IS TRUE.

BUT THAT'S ACTUALLY AN OLDER WAY OF INTERPRETING TEXT.

AND MOST OF THE TEXTUALISTS TODAY INCLUDING PEOPLE LIKE JUSTICE SCALIA WHO WROTE INTERPRETATION OF TITLE VII IN SAYING THAT IT INCLUDED NOT ONLY SEXUAL HARASSMENT BUT SEXUAL HARASSMENT OF MEN BY MEN, SO SAME-SEX HARASSMENT, WAS ALSO INCLUDED IN TITLE VII.

THE REASON FOR THAT IS THAT COURTS NOW ACCEPT THAT WE CANNOT KNOW WHAT ALL THE MEMBERS OF CONGRESS WERE THINKING OR WHAT THEY INTENDED.

THEY PROBABLY INTENDED DIFFERENT THINGS.

BUT WHAT WE CAN TRY TO THINK ABOUT IS WHAT WAS UNDERSTOOD AT THE TIME, WHAT REASONABLE PEOPLE APPLY IN COMMON SENSE TO PARTICULAR SITUATIONS WOULD HAVE THOUGHT WAS INCLUDED IN SEX DISCRIMINATION.

AND BASED ON THAT, THE COURT HAS OVER THE PAST, WHAT, YOU KNOW, 50, 60 YEARS SINCE THE LAW WAS PASSED, IT HAS EXTENDED IT TO COVER SEXUAL HARASSMENT, WHICH IS NOT MENTIONED IN THIS STATUTE.

THERE IS NO MENTION OF HARASSMENT.

THERE WAS NO DISCUSSION OF HARASSMENT IN CONGRESS.

BUT WE NOW TAKE IT AS A GIVEN THAT THAT CONSTITUTES DISCRIMINATION BASED ON SEX, INCLUDING, AS JUSTICE SCALIA SAID, DISCRIMINATION WHEN A MAN HARASSES ANOTHER MAN.

>> Bonnie: TO OUR VIEWERS, THEY DID NOT USED TO CONSIDER THAT SEXUAL DISCRIMINATION BECAUSE IT DID NOT HAPPEN TO A WOMAN.

SEX DISCRIMINATION WAS SOMETHING THAT HARMED A FEMALE.

>> Professor Nan Hunter: AGAIN, IF YOU SORT OF WENT b ÃÃ IMAGINE, TIME TRAVEL, IMAGINE A SORT OF REASONABLE GROUP OF PEOPLE THINKING ABOUT SEX DISCRIMINATION AND WHAT IT INCLUDES.

IN APPLYING THAT TO SITUATIONS THAT ARE NEW, THAT'S WHAT LAW DOES ALL THE TIME.

WE TAKE A PRINCIPLE OF LAW OR STATUTE, NEW FACTS COME UP, AND WE TRIED TO DETERMINE WHAT IS THE MOST REASONABLE AND PRINCIPLED WAY TO APPLY SOMETHING LIKE THE RULE AGAINST SEX DISCRIMINATION?

AND SO, SEXUAL HARASSMENT IN 1964, I MEAN, YOU WATCH AN EPISODE OF MAD MEN OR SOMETHING, RIGHT, IT WAS A DAY AT THE OFFICE.

THERE WAS NOTHING b ¦¦ >> Bonnie: UNTIL 1972, THE NEW YORK TIMES POSTED CLASSIFIED JOB, JOB ADS REALLY.

HELP, MEN WANTED, HELP, WOMEN WANTED.

PERFECTLY FINE OPPOSED THE SAME JOB IN BOTH COLUMNS WITH PAYING LISTS TO THE WOMEN BECAUSE THE WOMEN WERE b ÃÃIT WAS ACCEPTED IN SOCIETY THAT IT WAS FINE TO PAY WOMEN LESS.

>> Professor Nan Hunter: THAT'S RIGHT.

SO THERE ARE SO MANY EXAMPLES OF COMMON PRACTICES THAT WERE ALIVE IN 1964 WHEN THE LAW WAS PASSED THAT PEOPLE DO NOT NECESSARILY THINK OF IMMEDIATELY AS SEX DISCRIMINATION.

BUT WHEN THEY WERE PRESENTED, WHEN THOSE SITUATIONS WERE PRESENTED TO COURTS OR AGENCIES LIKE THE EEOC, THEN, YES, WE TAKE THE PRINCIPAL -- CONGRESS ENACTED THIS PRINCIPLE THAT YOU SHOULD NOT BE FIRED BECAUSE OF WHO YOU ARE, WHETHER IT'S SEX OR RACE OR NATIONALITY OR RELIGION, ALL THOSE WERE COVERED IN TITLE VII.

AND SO, WHAT DOES THAT MEAN?

WHAT IS IT THAT HAPPENS TO PEOPLE BECAUSE OF SEX OR BECAUSE OF RACE?

AND SO, OVER TIME, WE HAVE SEEN INITIALLY THE ARGUMENT WAS THAT PREGNANCY WAS DIFFERENT FROM SEX, THAT, YOU KNOW, THEY WERE PREGNANT PEOPLE AND NONPREGNANT PEOPLE.

AND IT JUST SO HAPPENED THAT ALL THE PREGNANT PEOPLE WERE WOMEN.

ISN'T THAT AMAZING?

AND SO, CONGRESS ACTUALLY FIX THAT AND AMENDED TITLE VII.

NOW THAT'S AN ACCEPTED PRINCIPLE.

THE COURT ITSELF INCLUDED SEXUAL HARASSMENT.

AND ESPECIALLY I THINK RELEVANT TO THESE CASES, THE COURT HAS b ÃÃIN THIS GOES ALL THE WAY BACK TO RUTH GINSBURG'S ARGUMENTS b ÃÃACCEPTED THAT STEREOTYPES OF SEX ARE PART OF SEX DISCRIMINATION.

SO THERE IS A FAMOUS CASE FROM THE LATE '80s, AGAIN, THE SUPREME COURT RULING UNDER TITLE VII, IN WHICH A WOMAN IN HOPKINS WAS DENIED PARTNERSHIP AT PRICE WATERHOUSE BECAUSE b ÃÃ AND THIS WAS IN THE RECORD, WHAT HER SUPERVISOR SAID, YOU KNOW, SHE'S NOT FEMININE ENOUGH, SHE DOESN'T WALK THE RIGHT WAY, SHE DOESN'T DRESS THE RIGHT WAY, SHE NEEDS TO WEAR MORE MAKEUP, SHE NEEDS TO WEAR MORE JEWELRY, SHE NEEDS TO GO TO CHARM SCHOOL.

AND THE COURT SAID IT DOES NOT MATTER THAT SOME OTHER WOMAN MIGHT HAVE BEEN PROMOTED, RIGHT?

WHAT MATTERS IS YOU ARE APPLYING STANDARDS TO HER BECAUSE OF STEREOTYPES.

AND THOSE STEREOTYPES ARE CLEARLY SORT OF SEX-BASED STEREOTYPES.

THEY ARE ABOUT WHAT A WOMAN SHOULD LOOK LIKE OR HOW SHE SHOULD ACT OR HOW A MAN SHOULD ACT.

AND THAT, YOU KNOW, IS ANOTHER IMPORTANT CONCEPT FOR THESE CASES THAT ARE BEFORE THE SUPREME COURT NOW WE WANT I GREW UP IN A BINARY WORLD.

YOU WHERE A GIRL OR A BOY.

AND IT WAS, EVEN THOUGH I AM VERY b ÃÃI LOVE CHANGE, I LOOK FORWARD TO CHANGE AS SOCIETY EVOLVES, I REMEMBER THE NEW YORK TIMES RAN AN ARTICLE b ÃÃ HAS TO BE 15 YEARS AGO b ÃÃABOUT A YOUNG BOY, SEVEN YEARS OLD I THINK, IN SAN FRANCISCO HE RAISED AS A BOY, AND HE DECIDED b ÃÃTOLD HIS PARENTS, I AM NOT A BOY.

I AM A GIRL.

I AM JUST IN THE WRONG BODY.

THEY LET HIM GROW HIS HAIR LONG LIKE A GIRL, JUST LIKE A GIRL LIKE HE WANTED TO.

EVENTUALLY I THINK EVEN TALKED ABOUT THE, YOU KNOW, CHANGING HORMONES FOR HIM AND I MUST SAY THAT'S THE FIRST TIME I HEARD ABOUT ANYTHING LIKE THAT, EVEN THOUGH I GREW UP IN NEW YORK CITY.

USUALLY I LIVED THAT STUFF BEFORE IT GOT INTO THE PAPER.

BUT THIS TIME IT WAS IN THE PAPER FIRST.

AND SO, I REMEMBER BEING A LITTLE SHOCKED ABOUT THAT AND THAT WAS SORT OF THE BEGINNING, TO ME, OF WHEN PEOPLE STARTED TALKING ABOUT, YOU KNOW, YOU ARE NOT b ÃÃNOBODY IS ABSOLUTELY FEMALE OR ABSOLUTELY MALE.

WE ALL HAVE A LITTLE BIT OF b ÃÃ WOMEN STILL HAVE TESTOSTERONE, MEN STILL HAVE ESTROGEN.

SO WE ARE ON THIS CONTINUUM AS OPPOSED TO IT BEING ABSOLUTELY BINARY.

SO WHAT WERE THE FIRST COURT CASES DEALING WITH THOSE ISSUES, THE FIRST MAJOR ONES, AND HOW DID THE SUPREME COURT RULE ON THEM?

>> Professor Nan Hunter: WELL, THIS IS THE FIRST CASE INVOLVING A TRANSGENDER ISSUE THAT HAS GONE TO THE SUPREME COURT.

NOW, LOWER FEDERAL COURTS HAVE BEEN DEALING WITH TRANSGENDER AND GENDER TRANSITION ISSUES FOR A WHILE.

IN FACT, THE SEX DISCRIMINATION CASES GO BACK 20 YEARS FOR FEDERAL APPELLATE COURTS THAT WERE PRESENTED WITH FACTS ALONG THE LINES OF THE FACTS THAT ARE AT THE SUPREME COURT NOW IN THE FACTS THAT CAME OUT IN BRITISH MINISTRY IN THE EARLY 1960s, AND THAT IS THE TRANSITION OF A PERSON FROM ONE GENDER TO ANOTHER.

SOMETIMES THE REQUIREMENT b ÃÃ THERE HAVE BEEN REQUIREMENTS OF COMMUNAL, MEDICAL CONSULTATIONS OR MEDICAL TREATMENTS OR CERTIFICATION OF THE NECESSITY OF IT.

AND THAT'S COME AND GONE IN THE LAW.

BUT THE LAW HAS RECOGNIZED THIS AS A MATTER OF DISCRIMINATION BASED ON SEX ACTUALLY GOING BACK 20 YEARS, BUT IT IS TRUE THAT THE SUPREME COURT HAS NEVER RULED ON THIS QUESTION.

>> Bonnie: TALKING ABOUT, IF YOU WILL, A LITTLE BIT ON THE IMPORTANT RULINGS THAT RUTH BADER GINSBURG MADE WHEN SHE WAS A LOWER MEMBER OF THE APPELLATE COURT AS OPPOSED TO THE SUPREME COURT THAT HAD TO DO WITH SEX AND GENDER DISCRIMINATION.

>> Professor Nan Hunter: I THINK THAT ONE OF THE WAYS TO UNDERSTAND WHAT GINSBURG WAS ARGUING FROM THE VERY BEGINNING WAS b ÃÃAND MILITARY CASES, FOR EXAMPLE, SHE REPRESENTED A NUMBER OF WOMEN IN THE MILITARY OR IN SOME CASES MEN IN THE MILITARY WHOSE WIVES HAD DIED OR WHOSE WIVES WERE NOT GETTING THE SAME TREATMENT AS MALE SPOUSES.

AND, YOU KNOW, SHE TOOK THOSE CASES TO THE POINT OF THE SUPREME COURT, REALIZING THAT SEX DISCRIMINATION, LIKE RACE DISCRIMINATION, HAD TO BE EXAMINED VERY CLOSELY FOR WHETHER IT WAS RATIONAL AND WHETHER IT SERVED ANY LEGITIMATE PURPOSE.

AND A BIG PART OF WHAT SHE WAS ARGUING WAS THAT THE ASSUMPTIONS THAT WERE BEHIND THOSE RULES AND THOSE LAWS AT THAT TIME WERE ASSUMPTIONS ABOUT WOMEN'S INABILITY TO DO CERTAIN THINGS AND ALSO ASSUMPTIONS ABOUT THE ROLES WOMEN PLAYED b ¦¦ >> Bonnie: WOMEN COULD NOT BE IN COMBAT, WOMEN COULD NOT BE IN THIS JOB IN THE MILITARY OR THAT JOB.

AND NOW ALMOST NO POSITIONS ARE FORCED WORN FOR WOMEN IN THE MILITARY.

THEY CAN DO JUST ABOUT EVERYTHING, INCLUDING COMBAT, EVEN THOUGH THE MILITARY IN THIS LAST b ÃÃIT'S BEEN 20, 30 YEARS, THERE WERE WOMEN ARGUING THAT, YOU KNOW, WOMEN CANNOT BE IN COMBAT, EVEN THOUGH I REMEMBER DURING THE REAGAN YEARS THERE WAS A COMMISSION ON WOMEN IN THE MILITARY AND CONSERVATIVE WOMEN WERE ARGUING WOMEN CANNOT BE IN COMBAT, THEY GET THE PERIODS, BLAH, BLAH, BLAH.

IT'S BEEN A TOTAL REVOLUTION IN TERMS OF IT.

>> Professor Nan Hunter: IT HAS, IT HAS.> Bonnie: YOU ARE HOPING IN THE UPCOMING SUPREME COURT CASE THAT WAS HEARD IN OCTOBER THAT THE COURT WILL RULE b ¦¦ >> Professor Nan Hunter: THE COURT WILL RULE THAT THE PHRASE BECAUSE OF SEX AND TITLE VII INCLUDES SITUATIONS WHERE SEX IS TAKEN INTO ACCOUNT SO THAT IT EXPANDS BEYOND b ÃÃJUST THE COURT HAS SAID IT EXPANDS TO INCLUDE HARASSMENT AND NOT JUST FIRING SOMEBODY, THAT INCLUDES b ÃÃUNDERSTOOD TO INCLUDE SITUATIONS WHERE THE REASON I AM FIRING YOU IS BECAUSE YOU CHANGE SEX OR THE REASON I'M FIRING YOU IS BECAUSE I DON'T LIKE THE WAY YOU WALK OR TALK OR ACT.

YOU, A MAN, OR TO A FEMINANTE OR YOU, A WOMAN, ARE TOO MASCULINE.

THE CASE THAT I DESCRIBED, THE ONE INVOLVING THE WOMAN AT PRICE WATERHOUSE, SHE HAS NOW PASSED AWAY.

IN HOPKINS, AND BECAUSE SHE WAS A LITIGANT, A LOT ABOUT HER PERSONAL LIFE BECAME KNOWN.

SHE WAS NOT LESBIAN.

SHE WAS A HETEROSEXUAL WOMAN THAT WAS MARRIED, HAD KIDS.

ONE OF HER DAUGHTERS SIGNED AMICUS CASE IN FAVOR OF THE PLAINTIFF'S CASE.

WHEN YOU THINK ABOUT THAT, WHEN ASKED TO THINK, WELL, YOU KNOW, YOU GO BACK TO THAT POINT IN TIME, AND WOMEN IN BUSINESS, WOMEN WHO ACTED IN AN ASSERTIVE WAY, WHAT WAS CONSIDERED TOO ASSERTIVE IN THOSE TIMES WOULD NOT BE CONSIDERED THAT WE KNOW AND ONE OF THE WAYS THAT PEOPLE ATTACK WOMEN WHO ARE VIEWED AS TOO ASSERTIVE OR TOO MASCULINE IS TO SAY, WELL, YOU MUST BE A LESBIAN.

YOU MUST BE, YOU KNOW, DEVIANT IN SOME SENSE.

AND SO, THAT WHOLE METHOD OF HOLDING WOMEN BACK OR POLICING MEN, POLICING MEN WHOSE GENDER PRESENTATION IS DIFFERENT FROM WHAT WE THINK OF AS MAY BE THE MORE STANDARD PRESENTATION.

I MEAN, THAT'S BECAUSE OF SEX.

AND WHAT I WANT THE SUPREME COURT TO DO IS TO RECOGNIZE THAT AND TO PRESERVE TITLE VII AS A REALLY A VITAL, ROBUST METHOD OF PROTECTION FOR PEOPLE.

>> Bonnie: AND YET, IT'S A SUPREME COURT DOMINATED BY CONSERVATIVES.

OF COURSE, SCALIA WAS A CONSERVATIVE.

BUT HOW DO YOU THINK YOU WILL DO WITH THE ADDITION OF KAVANAUGH AND GORSUCH TO EXTREMELY CONSERVATIVE b ÃÃWAY MORE CONSERVATIVE IN THEIR POLITICS, IT SEEMS, THEN SCALIA WHO AT LEAST ALMOST FREE SPEECH AND CIVIL RIGHTS ISSUES HAD SOME MODERATE, MORE MODERATE VIEWS?

LIKE, HE WROTE THAT YOU COULD BURN THE AMERICAN FLAG.

THAT'S POLITICAL SPEECH CASE.

AND HE WAS FAMOUS FOR NOT TOWING THE CONSERVATIVE LINE SOME ISSUES.

DO YOU THINK KAVANAUGH AND GORSUCH MAY TURN OUT TO BE THE SAME WAY?

>> Professor Nan Hunter: WELCOME I THINK ON THIS KIND OF ISSUE, IT'S POSSIBLE BECAUSE OF THE PHILOSOPHY THAT SCALIA AND AIR b ÃÃI BELIEVE THEY BOTH SAID THEY ARE GREAT ADMIRERS OF THE LATE JUSTICE SCALIA.

WHAT HE PIONEERED AND IS NOW ACCEPTED AS AN UNDERSTANDING OF WHAT THE TEXT MEANT IN THE CULTURE AT THE TIME.

I THINK WHEN YOU GIVE IT AN HONEST LOOK AND SORT OF NOT LET COMMUNAL, THE SORT OF, YOU KNOW, CULTURE WARS OF THE LAST 30, 40 YEARS SORT OF INFLUENCE YOU ONE WAY OR ANOTHER, YOU GO BACK TO LITTLE EXAMPLES LIKE CONGRESSWOMAN GREENE.

IF SHE WAS NOT MAKING A POINT IN THE CULTURE WAR, THEY WERE JUST TALKING ABOUT DISCRIMINATION BASED ON SEX AND HOW CRAZY IT WAS IF YOU HAVE THE SAME PERSON DOING THE SAME JOB.

I THINK IF YOU GIVE IT AN HONEST COMMON SENSE APPROACH LIKE THAT, YOU CAN GET TO THE POSITION THAT THIS IS FAIRLY COVERED, THAT IT'S AS JUSTICE SCALIA JUST -- ONCE SAID, STATUTES SHOULD NOT BE STRICTLY CONSTRUED OR TWO BROADLY CONSTRUED.

THEY SHOULD BE FAIRLY CONSTRUED AND FAIR BASED ON THE COMMON SENSE REACTION.

SO GORSUCH, FOR EXAMPLE, DURING THE ARGUMENT IN THESE CASES SAID, WELL, YOU KNOW, THIS IS A VERY, VERY CLOSE CASE.

THIS IS, YOU KNOW b ÃÃAND I THINK HE WAS SAYING, YOU KNOW, HE DID NOT PUT IN THESE WORDS, BUT IT RUNS AGAINST MY CONSERVATIVE TENDENCIES, BUT I SEE THE ARGUMENT.

I GET THE ARGUMENT HERE.

AND SO, I'M HOPING THAT, YOU KNOW, GORSUCH, THE CHIEF JUSTICE, AND THE OTHER JUSTICES SORT OF STICK TO THAT PERCEPTION AND TAKE IT WHERE THEY SHOULD TAKE IT.

>> Bonnie: WELL, ALL THE BEST OF LUCK TO YOU, PROFESSOR NAN HUNER OF GEORGETOWN LAW SCHOOL.

THANK YOU SO MUCH FOR YOUR TIME AND FOR YOUR THOROUGH EXPLANATION OF THE ORIGIN OF LGBTQ WRITES IN COURT LAW UP TO THE SUPREME COURT.

THANK YOU VERY MUCH.

>> Professor Nan Hunter: THANK YOU.

>> Bonnie: I AM BONNIE ERBE.

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