Write a memo for Mr. Loffler, explaining what legal claims, if any, you think Mr. Client has against UU.

You have just started your extremely prestigious summer job at the Loffler, Argentino, & Whitaker Firm (or “LAW Firm”). Just as you are feeling like you have your feet underneath you — you’re done figuring out how to raise and lower your chair and where the nearest bathroom is, at least — Mr. Loffler walks into your office. He invites you into a meeting with a prospective client and asks you to take very careful notes. “After this meeting,” he says, “I would like you to write me a memo analyzing how strong you think our prospective client’s case is.” Before you can tell him you don’t even have a password to log in to any research database, he adds, “I don’t want you to do any additional research — I saw from your resume you took Law, and Policy with Professor Green! They’re a friend of mine and I want you to just use what you learned in that class — including your notes, any readings they assigned, and any cases referenced in the textbook for the class.” In the meeting, you learn the following: Connor Client (he/him, Mr. Client) is a transgender man living in New York City.1 Mr. Client is also a man of color. He used to work for a university — Unfair University — that receives government funding, doing athletics training for the school’s men’s sports teams, spending most of his time working with the volleyball team. About a year ago, Mr. Client tells you, things started to go badly. Mr. Client, in his own words, passes2 completely as a man. That is, if he did not tell you, you would have no idea he was transgender. He worked for UU for the better part of a decade without issue. Fifteen months ago, Mr. Client met his now-husband, Danny Devoted. Danny, Mr. Client tells you, is a cisgender man, and identifies as a gay man (Mr. Client tells you that he, himself, identifies as bisexual.” After a brief, whirlwind romance, the two were married and took a short honeymoon, during which — as married couples do — they did it. And Mr. Client got pregnant. When he first returned to work, Mr. Client says that everything was a little weird. People — students and other faculty alike — asked lots of extremely invasive questions about his sex life with his husband (“who’s the pitcher?”; “do you, you know… do butt stuff?”). For the most part, 1 Mr. Loffler passes you a note when Mr. Client notes that he’s from New York. The note says, “I will look into New York City/New York State law issues — I want you to focus on any constitutional law or Federal Civil Rights Act issues.” 2 “In the context of gender identity, the term passing refers to a transgender person’s ability to be perceived in accordance with their gender identity. Most often, this translates to a transgender man being socially perceived as a cisgender man or a transgender woman being socially perceived as a cisgender woman.” See Carla A. Pfeffer, Stealth (Transgender Passing), SAGE Encyclopedia of LGBTQ Studies. however, Mr. Client says that these questions felt like they were asked either out of genuine curiosity or out of a kind of machismo-based-kinship. What Mr. Client thought was an invasive question would quickly be followed with a shout of “UP TOP BRO!” and a demand for a high-five. Given that, Mr. Client chose not to complain about any of the conduct and take everything in stride. However, after a few months, Mr. Client started to appear visibly pregnant. The comments in “good fun” started to become much more mean spirited and cruel. Mr. Client was routinely told he was “disgusting,” “filthy,” and “unnatural.” He also found that the supervisor in his department stopped assigning him to go on trips to away games with UU Teams. Assignment to work with the teams on these trips were highly sought after by all members of the athletics departments because they came with payment of large amounts of overtime, as well as occasional publicity and news coverage. Mr. Client also tells you he believes that the teams he worked with suffered for his absence, and that the volleyball team he most often worked with had a winning record (8 wins, 2 losses) before he stopped receiving away game assignments, that fell apart, with the team finishing the season with 9 wins and 20 losses. UU awards bonuses to sports staff whose teams have winning seasons, and no staff that worked with the volleyball team received those bonuses this year. As both the pregnancy and the season went on, things got worse for Mr. Client. Not only did he not receive plum assignments, but — given that he was pregnant — his supervisor also started prohibiting him from doing any task that involved heavy physical activity. As it happens, that encompassed most of Mr. Client’s job, and he found himself sitting at a desk doing nothing most days. Finally, just after the volleyball season ended, Mr. Client was fired. Officially, UU cited his failure to be capable of fulfilling his job duties. However, Mr. Client also provides you with an email his direct supervisor sent the day before Mr. Client was fired. In that email, the supervisor wrote: “It will be a cold day in hell before I let someone like you work in my department. I can’t even list all the reasons you’re wrong for this job. If you were a real man, you could handle the physical requirements of the job, and getting knocked up would have been impossible. If you were a real woman we wouldn’t be here in the first place! — obviously I would never let a woman work in my department. Ultimately, you are neither, and you aren’t man OR woman enough! GOOD RIDDANCE.” As the meeting concludes, Mr. Loffler thanks you and asks if you can have the memo on his desk by tomorrow morning. Write a memo for Mr. Loffler, explaining what legal claims, if any, you think Mr. Client has against UU, under any law we have studied in this class. Be sure to discuss both the strengths and weaknesses of any claims you think Mr. Client has, before stating whether you think he should win or lose on a claim. Mr. Loffler has told you he wants you to identify any arguable claim, even if you ultimately conclude that filing a lawsuit with that claim is a bad idea. Additionally, if you see any particular, non-legal challenges Mr. Client’s claims might face, based on the materials covered in class, even if those challenges are not legal, please describe those (but read Question 2 below first! — it will give you a freebie on one issue, as well as flag an issue you should discuss there and not here). If there are any additional facts you believe you need to analyze any issue, please identify those facts and what effect they would have on your analysis. Question 2: (40 points): A few weeks after you finish the memo in Question 1, Mx. Argentino come into your office. They begin, “I heard about the stellar work you did for Mr. Loffler, and I was hoping you could help me with a question he and I were discussing about the case. Mr. Loffler believes we would have a very strong claim that Mr. Client was discriminated against because he is a woman. I tend to agree with the legal analysis, but I am worried about presenting that option to Connor.” They continue, “Mr. Loffler thinks if we present this case to a court as an open-shut case of sex discrimination — Connor was fired for getting pregnant, and the supervisor even said he would never intentionally hire a woman — both under Price Waterhouse and even the non-sex stereotyping cases, we will win. Mr. Loffler wants to file a case using Connor’s deadname[3 ], because he’s worried that a judge will stop paying attention to the case as soon as that judge finds out that Connor is transgender.” “However, I worry that Connor will be unhappy with that, and that going through years of litigation being referred to by his deadname will hurt Connor a lot. I also worry that we’re missing an opportunity to use some of the really egregious facts of Connor’s case to get courts to write good decisions that help future transgender plaintiffs.” They conclude, “but I think this is a really, really hard question — don’t you? Can you write me a short memo that discusses what issues we should think about before making a recommendation to Connor?” Write a memo that discusses the concerns that you think your firm should discuss with Connor before making a decision on how to present his case. Unlike above, this question is not asking for your conclusions about the legal merits of the case (you should assume that Connor’s case, if he were to pretend to be a cisgender woman, would be a slam dunk), but asking you to think about the human being bringing the lawsuit. Possible topics for consideration include (but these are NOT all of the things you can discuss): 1. How the lawsuit will impact Connor personally; 2. What concerns this might raise for Connor and Danny, in terms of their testimony; 3. What this case might mean for future cases and clients; 4. Whether there are any questions or additional facts you want to ask Connor about (if so, include what effect the answers would have on your analysis); and 5. Whether there are any claims Connor might be giving up by taking this approach. 3 “[T]he name that a transgender person was given at birth and no longer uses upon transitioning.” Merriam-Webster, “deadname.” Available at https://www.merriamwebster.com/dictionary/deadname. Deadnaming, as a practice, is generally considered to be very harmful and personally offensive to transgender people. See https://www.healthline.com/health/transgender/deadnaming