Thread by @marty_lederman

This piece fundamentally misrepresents @DavidColeACLU's argument in Harris Funeral Home. David never referred to Aimee Stephens as an “'insufficiently masculine' man"--let alone "repeatedly." Indeed, he began his argument with this simple declarative sentence: /1

@ACLU

https://twitter.com/CalifLRev/status/1243206995701673984

"Aimee Stephens is a transgender woman." David never referred to Stephens as a man at all; nor "indicated that Aimee could be considered a male for the purposes of the statute"; nor "acquiesced to labeling Aimee as a 'biological male.'” /2

Instead, he (properly) referred to her only as a "woman" or w/female pronouns--and he did so more than three dozen times.

Nor did David "reinforce[] the proposition that the statute only reaches" discrimination on the basis of “biological sex," let alone do so "exclusively." /3

To be sure, he *did* argue that Title VII *at a minimum* reaches discrimination on account of “biological sex” (i.e., external sex organs or “sex assigned at birth”)--but that wasn't a "concession" at all--much less a "needless" or gratuitous" one. /4

It was, instead, a very shrewd thing to do, b/c (as I and my fellow amici argued), it's the most straightforward reason why T7 covers Harris's discrimination against Stephens. /5

@dorf @sbagen @LeahLitman @mjschlanger

supremecourt.gov/DocketPDF/18/1…

I'm hardly disinterested (David is a friend and colleague), but IMHO (and I'm hardly alone) his advocacy in this case, as in so many others, was stellar. It's entirely fair to debate the best strategies for briefing and arguing this difficult case ... /6

... -- rest assured countless attorneys involved in the case did so, at great length. But the particular critiques offered in this @CalifLRev piece are inaccurate & unwarranted. /7