author: SUSAN L. CARNEY, Circuit Judge:

text:
    JACOBY & MEYERS, LLP, on behalf of itself and all other similarly situated entities authorized to practice law in the State of New York; Jacoby & Meyers USA II, PLLC, Plaintiffs-Appellants, v. The PRESIDING JUSTICES OF THE FIRST, SECOND, THIRD AND FOURTH DEPARTMENTS, APPELLATE DIVISION OF THE SUPREME COURT of the State OF NEW YORK; Eric T. Schneiderman; Diane Maxwell Kearse, in her official capacity as Chief Counsel for the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts; Gary L. Casella, in his official capacity as Chief Counsel for the Grievance Committee for the Ninth Judicial District; Gregory A. Green, in his official capacity as Chief Counsel for the Grievance Committee for the Tenth Judicial District; Gregory J. Huether, in his official capacity as Chief Counsel for the Grievance Committee for the Fifth, Seventh and Eighth Judicial Districts; Peter M. Torncello, in his official capacity as Chief Attorney for the Committee on Professional Standards for the Appellate Division of the Supreme Court, Third Judicial Department; Monica Duffy, Defendants-Appellees.

      Docket No. 15-2608
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: August 19, 2016
    Decided: March 24, 2017

      Douglas Gregory Blankinship, Finkel-stein, Blankinship, Frei-Pearson & Gar-ber, LLP, White Plains, New York, for Appellants.
    Andrew Rhys Davies, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, on the brief), for Eric T. Sehneid-erman, Attorney General of the State of New York, New York, New York, for Ap-pellees.
    Before: LYNCH and CARNEY, Circuit Judges, and HELLERSTEIN, District Judge.

       The Clerk of Court is directed to amend the official caption in this case to conform to the caption above.

       Judge Alvin K. Hellerstein, of the United States District Court for the Southern District of New York, sitting by designation.

   SUSAN L. CARNEY, Circuit Judge:

Through a set of prohibitions of long standing in New York and similar to those widely prevalent in the fifty states and the District of Columbia, the State of New York prohibits non-attorneys from investing in law firms. See generally N.Y. State Bar Ass’n, Report of the Task Force on Nonlawyer Ownership, reprinted at 76 Alb. L. Rev. 865 (2013) (“NYSBA Report”). The prohibition is generally seen as helping to ensure the independence and ethical conduct of lawyers. See id. at 876-77. Plaintiffs-Appellants Jacoby & Meyers, LLP, a limited liability partnership (the “LLP”), and Jacoby & Meyers USA II, PLLC, a related professional limited liability company (the “PLLC”; together, “plaintiffs” or the “J&M Firms”) bring a putative class action challenging New York’s rules, regulations, and statutes prohibiting such investments. The infusions of additional capital that the regulations now prevent, they declare, would enable the J&M Firms to improve the quality of the legal services that they offer and at the same time to reduce their fees, expanding their ability to serve needy clients. They assert that, were they able to do so, they would act on that ability in the interests of such potential clients. Because the laws currently restrict their ability to accomplish those goals, they maintain, the state regime unlawfully interferes with their rights as lawyers to associate with clients and to access the courts — rights they see as grounded in the First Amendment.

The United States District Court for the Southern District of New York (Kaplan, Judge) dismissed the complaint for failure to allege the infringement of any cognizable constitutional right. On de novo review, we identify no error in that conclusion. Neither as a for-profit law partnership nor as a professional limited liability company do the J&M Firms have the associational or petition rights that they claim. Even were we to assume, given the evolving nature of commercial speech protections, that they possess some such First Amendment interests, the regulations at issue here are adequately supported by state interests and have too little effect on the attorney-client relationship to be viewed as imposing an unlawful burden on the J&M Firms’ constitutional interests. We therefore AFFIRM the judgment of the District Court.

BACKGROUND

We draw this factual statement from the J&M Firms’ Third Amended Complaint (“TAC”), accepting as true the allegations stated there for purposes of our review of the District Court’s decision. AHW Inv.

P’ship v. Citigroup, Inc., 806 F.3d 695, 697 n.1 (2d Cir. 2015).

Founded in 1972, Jacoby & Meyers, LLP, is a New York-based law partnership that “maintains a network of affiliated law offices across the country, including in Southern California, New York, Alabama, Florida, and Arizona.” Joint Appendix (“J.A.”) 106-07. The LLP presents as its mission the following: “[T]o ensure that people of modest or average means, who could often not afford to hire a lawyer, ha[ve] a practical alternative to obtain competent, qualified counsel at reasonable rates.” J.A. 106. The LLP was formed and is operated, still, as a for-profit law firm, as is its co-plaintiff, the related professional limited liability company Jacoby & Meyers USA II, PLLC.

The J&M Firms challenge the constitutionality of New York Rule of Professional Conduct 5.4, “Professional Independence of a Lawyer,” and a clutch of New York state laws that in combination work to prevent non-lawyers from investing in New York law firms. Rule 5.4, for exam-pie, provides in part that “[a] lawyer shall not practice with or in the form of an entity authorized to practice law for profit if: (1) a non lawyer owns any interest therein ... or (3) a non lawyer has the right to direct or control the professional judgment of a lawyer.” N.Y.R. Prof 1 Conduct 5.4(d). Approaching the issue from a slightly different angle, New York Judiciary Law Section 491, for example, makes it a misdemeanor for any non-attorney to share fees or compensation with an attorney in consideration of client referrals.

The LLP alleges that it “wishes to expand its operations, hire additional attorneys and staff, acquire new technology, and improve its physical offices and infrastructure to increase its ability to serve its existing clients and to attract and retain new clients and qualified attorneys.” J.A. 107. To make these improvements, the LLP asserts, it requires capital contributions. It reports receiving “numerous offers” from “prospective non-lawyer investors ... who are prepared to invest capital in exchange for owning an interest in the firm.” J.A. 109. These include some “high net-worth individuals” and “institutional investors” identified in the TAC. J.A. 109. And it would accept such contributions through the vehicle of the professional limited liability company that it has formed for this purpose. But in light of New York’s prohibitions, it has “been relegated to obtaining capital from (i) the personal contributions of the partners, (ii) retained earnings on fees generated and collected, and (iii) commercial bank loans, which invariably come with onerous interest rates and intrusive covenants and conditions.” J.A. 109. Moreover, these potential alternative sources of capital are either not available in practice, or too costly to be used.

In 2011, the LLP sued the Presiding Justices of the New York Supreme Court’s Appellate Divisions (who administer Rule 5.4) and others, asserting that the rule violates the First and Fourteenth Amendments and the Dormant Commerce Clause of the U.S. Constitution. After an amendment of the complaint, a dismissal for lack of standing, and a successful appeal to this Court with respect to standing, the case was remanded to the District Court, at which point the J&M Firms filed a second amended complaint that attempted to articulate a constitutional challenge to the entire New York regulatory regime. See Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Dep’ts, 847 F.Supp.2d 590, 591 (S.D.N.Y. 2012) (“Jacoby I”); Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Dep’ts, 488 Fed.Appx. 526, 528 (2d Cir. 2012) (“Jacoby II"); Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Dep’ts, 118 F.Supp.3d 554, 563 (S.D.N.Y. 2015) (“Jacoby III”). But on remand they met with no greater success: the District Court again granted the state’s motion to dismiss, this time holding that the J&M Firms’ amended complaint failed to state a claim for a violation of any constitutional right. See Jacoby III, 118 F.Supp.3d at 566-81.

This appeal followed.

DISCUSSION

We review de novo■ a district court’s decision to dismiss a complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 59 (2d Cir. 2016).

On appeal, the J&M Firms abandon many of the constitutional challenges asserted in their prior complaints, and press only the argument that New York’s prohibition of non-lawyer investment in law firms infringes their First Amendment rights to petition and to association. The J&M Firms are not clear about whether their claim is a facial or as-applied constitutional challenge. The District Court observed that they “attempt[ ] to characterize [their] lawsuit as an as-applied challenge, [but] [they] simply do[ ] not appreciate the distinction between as-applied and facial challenges.” Jacoby III, 118 F.Supp.3d at 566 n.50. On appeal, they do not address the issue until their reply brief. In any event, “[b]ecause plaintiffs pursue this pre-enforcement appeal before they have been charged with any violation of law, it constitutes a facial, rather than as-applied challenge.” N.Y.S. Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015) (internal quotation marks omitted). “[T]o succeed on a facial challenge, the challenger must establish that no set of circumstances exists under which the [regulation] would be valid.” Id. (internal quotation marks omitted). “As a result, a facial challenge to a legislative enactment is the most difficult challenge to mount successfully.” Id. (internal quotation marks omitted).

We agree with the District Court that the J&M Firms’ facial challenge fails: as a for-profit law partnership and professional limited liability company, the J&M Firms do not possess the First Amendment rights that they claim to have — and, even if they did have some colorable claim to such rights, their complaint does not plausibly allege that the New York regulatory regime unlawfully restricts them.

A. The First Amendment Rights to Petition and Association

The First Amendment prohibits the enactment of any law “abridging ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const, amend. I. The Petition Clause has deep roots in the Anglo-American legal tradition., British subjects enjoyed the right to petition the monarch, and colonial Americans had the right to petition both the British government and local legislative assemblies. McDonald v. Smith, 472 U.S. 479, 482, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U.L. Rev. 899, 929-34 (1997). Many state constitutions included the right to petition the legislature even before such a federal right was recognized in the new country’s Constitution. Pfander, 91 Nw. U.L. Rev. at 934-35. Not much detail about the Petition Clause appears, however, in the records of the constitutional debates. See Pfander, 91 Nw. U.L. Rev. at 954-55.

The right to associate freely is not mentioned in the text of the First Amendment, but has been derived over time as implicit in and supportive of the rights identified in that amendment. Thus, drawing upon the rights of both petition and expression, the Supreme Court has held that the First Amendment bears on some situations in which clients and attorneys seek each other out to pursue litigation. One line of cases involving political advocacy organizations relies on the expressive value of certain types of associational litigation. In NAACP v. Button for example, the Court held that the NAACP’s work on anti-segregation cases — and the organization’s efforts to recruit plaintiffs for those cases — constituted “modes of expression and association protected by the First and Fourteenth Amendments.” 371 U.S. 415, 428-29, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Similarly, in In re Primus, the Court held that an ACLU attorney’s solicitation of a potential client was protected by the First Amendment because “[t]he ACLU engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public.” 436 U.S. 412, 431, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978).

Another line of Supreme Court authority recognizes that clients seeking legal representation — specifically in the context of union activity — have a right protected by the First Amendment to associate with each other to obtain legal representation and vindicate their rights effectively. See, e.g., Bhd. of R.R. Trainmen v. Va. ex rel. Va. State Bar, 377 U.S. 1, 5, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964) (“Trainmen”). In this vein, the Court has held that “the First Amendment’s guarantees of free speech, petition, and assembly give railroad workers the right to cooperate” to seek legal counsel, and that “collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.” United Transp. Union v. State Bar of Mich., 401 U.S. 576, 585, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971). This right has attached to the activities of workers who associate with each other to obtain counsel and further their litigation ends, and to the union as a proxy for the workers in their exercise of associational rights. See United Transp. Union, 401 U.S. at 582, 91 S.Ct. 1076 (“[T]he members of a union have a First Amendment right to help and advise each other in securing effective legal representation .... ”); United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n, 389 U.S. 217, 225, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967) (“The decree at issue here thus substantially impairs the associational rights of the Mine Workers....” (emphasis added)); Trainmen, 377 U.S. at 8, 84 S.Ct. 1113 (“[T]he Constitution protects the associational rights of the members of the union....” (emphasis added)).

The Button line of cases might casually be characterized as reflecting lawyers’ expressive rights in the causes they pursue— when those causes implicate expressive values — whereas in the union cases, it is the associational rights of the union members, as clients, that are the focus. The Supreme Court has never held, however, that attorneys have their own First Amendment right as attorneys to associate with current or potential clients, or their own right to petition the government for the redress of their clients’ grievances when the lawyers are acting as advocates for others, and not advocating for their own cause. Although in Trainmen, the Court commented that “lawyers accepting employment under [the unions’] constitutionally protected plan [to recommend specific lawyers] have a like protection which the State cannot abridge,” 377 U.S. at 8, 84 S.Ct. 1113, at most, the comment is dictum. It suggests only that attorneys may not be censured or sanctioned for taking on representation through a union referral program. We think that the comment may not properly be read as recognizing an advocate’s own First Amendment right to associate with prospective clients or to petition the government through access to the courts.

In fact, the Court has explicitly distinguished between the First Amendment protections enjoyed by attorneys who, as part of an advocacy group like the ACLU or the NAACP, have recognized associational rights, and attorneys who are engaged in litigation for their own commercial rewards, albeit in the context of advancing or protecting the interests of their clients. In particular, in 1978 the Court issued on a single day decisions in two cases involving state regulation of attorneys, highlighting this distinction. In In re Primus, the Court struck down the South Carolina Supreme Court’s sanction of an ACLU attorney for solicitation of clients, holding that the disciplinary ruling infringed her First Amendment rights. 436 U.S. at 427-28, 98 S.Ct. 1893. In a decision issued in tandem with Pri-mus, Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), however, the Court upheld Ohio’s restriction on a private attorney’s solicitation of potential personal injury clients. Distinguishing the pursuit of expressive activity from the pursuit of commercial interests, the Court wrote:

Normally the purpose or motive of the speaker is not central to First Amendment protection, but it does bear on the distinction between conduct that is an associational act of expression, and other activity subject to plenary regulation by government. Button recognized that certain forms of cooperative, organizational activity, including litigation, are part of the freedom to engage in association for the advancement of beliefs and ideas, and that this freedom is an implicit guarantee of the First Amendment. As shown above, [the Primus] appellant’s speech — as part of associational activity — was expression intended to advance beliefs and ideas. In Ohralik, the lawyer was not engaged in associational activity for the advancement of beliefs and ideas; his purpose was the advancement of his own commercial interests. The line, based in part on the motive of the speaker and the character of the expressive áctivity, will not always be easy to draw, but that is no reason for avoiding the undertaking.

In re Primus, 436 U.S. at 438 n.32, 98 S.Ct. 1893 (internal quotation marks and citations omitted).

We embraced that distinction in Board of Education of the City of New York v. Nyquist, where we rejected the argument that any attorney has a First Amendment right to litigate on behalf of a client even when the representation might violate ethical rules. 590 F.2d 1241, 1245 (2d Cir. 1979). Because the attorney in Nyquist was not, as was the lawyer in In re Pri- mus, “encouraging the airing in court of a point of view she believed in,” we concluded that the individual lawyer held no related First Amendment right to represent the clients in a case not raising other First Amendment concerns, Nyquist, 590 F.2d at 1245-46 (citing In re Primus, 436 U.S. at 422, 98 S.Ct. 1893).

B. The J&M Firms’ Purported First Amendment Rights

These cases illustrate why the J&M Firms have failed to allege facts sufficient to establish that any First Amendment right held by them is infringed by the New York regulations, especially in light of the demanding standard that governs a facial constitutional challenge. The J&M Firms argue that the rights at issue are the lawyers’ “right of access to the courts” and “right to associate with clients for purposes of accessing the courts.” Appellants’ Br. 20. But we think In re Primus, Ohralik, and Nyquist foreclose recognizing any such rights in a for-profit law partnership or PLLC that is not itself engaged in its own political advocacy or expression. See In re Primus, 436 U.S. at 438 n.32, 98 S.Ct. 1893; Ohralik, 436 U.S. at 458, 98 S.Ct. 1912; Nyquist, 590 F.2d at 1245. Clients have First Amendment expressive rights for which litigation may provide a vehicle. When the lawyers’ own expressive interests align with those rights, the lawyers themselves may have a cognizable First Amendment interest in pursuing the litigation. We are not aware of any judicial recognition of such an interest, however, when it comes to the lawyer’s generic act of pursuing litigation on behalf of any client.

The J&M Firms’ lead argument to the contrary rests primarily on what we think is a misreading of the Supreme Court’s union cases. In particular, they cite United Transportation Union and United Mine Workers, which we describe above, for the proposition that “lawyers hold First Amendment rights of access to courts.” Appellants’ Br. 11, 15. But those cases do not so hold. Rather, they uniformly decide that unions and union members have rights under the First Amendment to associate and to act collectively to pursue legal action — action that ordinarily necessitates the involvement of lawyers. They do not establish that an attorney is entitled to access the court on a client’s behalf, at least not under the First Amendment rights to petition or association. Our reading of these two cases, focusing on the expressive rights of clients, riot their counsel, is in keeping, moreover, with the constitutional text: the rights of petition and assembly attach to “the people” — who are themselves aggrieved and accordingly who seek to assemble or to petition in order to redress their own grievances. U.S. Const, amend. I. Lawyers in a for-profit practice who act in their representative capacities do riot themselves seek access to the courts to remediate their own grievances; rather, they are doing so as a part of a commercial transaction in which they serve, and are paid.

The J&M Firms’ error is compounded by their apparent assumption that they enjoy a constitutionally protected right to associate with clients qua clients. But the so-called “freedom of association” protected by the First Amendment has been generally understood to encompass two quite different types of associational activity: “choices to enter into and maintain certain intimate human relationships,” and “association] for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). The J&M Firms do not purport to invoke the former. And if their associations with clients merit protection as a version of the latter form of constitutionally-protected association, it must be that they offer a means to serve other First Amendment ends, not that the association is itself a protected First Amendment activity. See Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 50 (1st Cir. 2005) (“The [Supreme] Court has tended to view the right of association as dependent on underlying individual rights of expression; there is no right of association in the abstract.” (internal quotation marks and alteration omitted)). In other words, because the J&M Firms have not asserted that their clients’ underlying suits implicate First Amendment concerns, we are aware of no constitutional protection for associating to bring those suits. See Nyquist, 590 F.2d at 1245.

The J&M Firms fault the District Court for relying on a distinction drawn in case law between the rights and interests of private, for-profit attorneys and not-for-profit political advocacy organizations. They contend that “the right of access to courts is not limited to instances in which attorneys provide services in cases with a political or constitutional dimension,” and that Supreme Court precedent holds “that a for-profit attorney employed by an individual client to litigate a non-political grievance (such as a personal injury case) is fully protected by the First Amendment right of access to the courts.” Appellants’ Br. 17. Although these assertions may hold some superficial appeal, again, we think they misconstrue precedent. As noted above, the Supreme Court has taken pains to differentiate between the protections that the Constitution affords the activities of lawyers acting in a for-profit setting and those acting in a not-for-profit context, advocating political causes in which the attorneys themselves share; those cases reference the attorneys’ own associational and petition rights only in limited circumstances. See In re Primus, 436 U.S. at 438 n.32, 98 S.Ct. 1893; see also Ohralik, 436 U.S. at 459 n.16, 98 S.Ct. 1912 (observing that, in Trainmen, “the Court highlighted the difference between permissible regulation of lawyers and regulation that impinges on the associational rights of union members.... The Court implicitly approved of the State’s regulation of conduct characterized colloquially as ‘ambulance chasing.’ ”).

Neither Jacoby & Meyers, LLP, nor Jacoby & Meyers USA II, PLLC, is a not-for-profit political advocacy organization engaging in its own expression, nor a collection of individuals seeking redress of their own grievances or vindication of their own rights. Instead, the J&M Firms are engaged in the practice of law as a business. Thus, their firms can be regulated as businesses, and, as will be explained below, those regulations do not automatically trigger strict scrutiny simply because one of the law firm’s functions is to help clients access the courts. Of course, we do not question the right to petition a court, with the aid of a lawyer, for redress. But in the context of for-profit law firms that serve their clients’ interests as a business, that right belongs to the client, not the attorney. As in a comparable case in the Third Circuit, “[a]ppellants provide no support for the proposition that the Petition Clause protects the rights of an attorney [operating in the context of a for-profit law firm] to appeal to courts or other forums on behalf of another.” Nat’l Ass’n for the Advancement of Multijurisdictional Practice v. Castille, 799 F.3d 216, 224 (3d Cir. 2015). Indeed, as the Supreme Court has observed, a “lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls squarely within the State’s proper sphere of economic and professional regulation.” Ohralik, 436 U.S. at 459, 98 S.Ct. 1912. The J&M Firms also perceive their challenge as encompassing both present and potential clients’ Petition Clause rights. To the extent that they may bring such claims on behalf of their clients, we reject that challenge on the merits for the reasons explained below. But in the context of for-profit law firms who serve their clients’ interests as a business, that right belongs to the client, not the attorney. The plaintiff firms have accordingly failed to state a claim that the New York regulations violate their First Amendment rights.

C. The Failure to Allege any Burden on First Amendment Rights

Because the law is evolving rapidly with respect to the protections afforded commercial speech by the First Amendment, however, we proceed one step further with our analysis. We turn to addressing whether, to the extent that the J&M Firms could be found to have some degree of First Amendment right to associate with clients or to petition the government through the courts on their clients’ behalf — or could be allowed to challenge the regulations on behalf of their clients — their complaint states a claim. We conclude again, however, that their claims fail because the regulations are supported by substantial government interests and impose an insubstantial burden on the exercise of any such First Amendment rights.

The heart of the causal argument is:

[The] complaint alleges that several specifically identified non-lawyers stand ready to take equity stakes in [the J&M Firms’] law practice; that such equity will enable [the J&M Firms] to undertake several specific improvements in technology and infrastructure; and that those improvements, by increasing the efficiency of [the J&M Firms’] provision of legal services, will raise even higher the quality of their legal services and lower the cost to clients, thus affecting [ ] the scope, cost, and quality of lawyers’ association with clients for purposes of accessing courts.

Appellants’ Br. 28.

Taking these projections as accurate, and assuming that the J&M Firms would in fact serve more clients at a lower cost, New York’s regulations proscribing non-lawyer investment in law firms do not impede the lawyers’ constitutionally-shielded ability to associate or petition. We think the only plausible argument that the J&M Firms could have in this vein is that they would be able to and would in fact associate with and serve more needy clients if the regulations are lifted. Any law firm, of course, might like to attract more clients, and any client would like to pay less for his lawyer’s services. But these observations do not mean that regulations that hypothetically and marginally raise the cost of legal services infringe any lawyer’s First Amendment right of association or access to the courts: the connection is simply too attenuated. Indeed, “the broadly formulated First Amendment argument here would, if successful, undermine the power of states to regulate bar membership” and numerous fundamental aspects of the legal profession, “when this power has been repeatedly recognized and upheld by courts.” Russell v. Hug, 275 F.3d 812, 822 (9th Cir. 2002). Many of the rules governing lawyers, such as educational requirements, directly or indirectly affect the cost of legal services. There is no basis for subjecting legislative judgments that balance increased cost against consumer protection to strict judicial scrutiny simply because the business being regulated is the practice of law.

Like our sister circuits that have rejected similar Petition Clause challenges to ordinary regulations of the legal profession, we see a marked difference between the regulations at issue here and the state prohibitions on attorney activities that were struck down in Button, Trainmen, and Primus. Unlike in those cases, no attorney here risks censure or sanction for soliciting, meeting with, or representing a client — the activities that can be central to initiating and maintaining the attorney-client relationship. Here, by contrast, the regulations prohibiting non-lawyer investment in law firms simply do “not deny [lawyers] meaningful access to the courts.” Nat’l Ass’n for the Advancement of Multijurisdiction Practice v. Berch, 773 F.3d 1037, 1048 (9th Cir. 2014) (rejecting a challenge to Arizona’s admission-on-motion rule); see Castille, 799 F.3d at 221 (attorney admission reciprocity rule did not violate the Petition Clause, as it was a permissible “exercise of Pennsylvania’s broad power to establish standards for licensing practitioners and regulating the practice of professions” (internal quotation marks omitted)). Like bar admission requirements, the regulations at issue here balance desired limitations on the legal profession that promote quality and ethical lawyering against the necessary increase in the cost of practicing law. Such an increased cost does not implicate the First Amendment, especially where, as here, the law firms in question operate as for-profit businesses.

The J&M Firms attempt to analogize this case to United Transportation Union, and argue that if the right of access to the courts “is impermissibly burdened by prohibitions on such mundane activities as transporting clients to attorneys’ offices,” as the Supreme Court found there, then “the same right is surely burdened by impediments to the various specific efficiency-enhancing, price-reducing investments in law-firm infrastructure that, according to [the J&M Firms’] allegations, are obstructed by the challenged statutes and rules.” Appellants’ Br. 11. Their analogy fails to persuade us. The union in United Transportation Union had in fact been enjoined from, among other conduct, receiving any kind of compensation or reimbursement for the time or money spent in putting its members or their families in contact with recommended attorneys — and transporting its members from Michigan to Chicago, where the attorneys were located. United Transp. Union, 401 U.S. at 582, 91 S.Ct. 1076. The Supreme Court struck down the injunction, including the portion related to travel: “Since the members of a union have a First Amendment right to help and advise each other in securing effective legal representation, there can be no doubt that transportation of injured members to an attorney’s office is within the scope of that protected activity. To the extent that the injunction prohibits this practice, it is invalid....” Id. at 582-83, 91 S.Ct. 1076. A court injunction that works to prevent clients from meeting with chosen attorneys at all strikes us as a far cry from state regulations that may at most work slightly, and in conjunction with a host of other factors, to increase the cost of legal services. United Transportation Union provides no reason to abandon our earlier conclusion that the challenged New York laws do not threaten any First Amendment right of the J&M Firms.

D. The State’s Interest in the Challenged Regulations

Because we hold that the J&M Firms’ complaint does not plausibly allege the infringement of any First Amendment right, we need not stay long with the question whether New York’s interests as a state justify its regulations regarding non-lawyer investments.

The J&M Firms ask us to apply strict scrutiny to the regulations. In the context of claims asserting First Amendment associational rights we have instructed that, depending on the burden that the statute imposes on those rights, we will “apply either strict scrutiny, in which case the restriction survives only if it is narrowly drawn to advance a compelling state interest, or rational basis review, in which case the restriction need only be rationally related to a legitimate government interest.” Kraham v. Lippman, 478 F.3d 502, 506 (2d Cir. 2007) (citations omitted). Strict scrutiny applies only when a challenged regulation imposes “severe burdens” on associational rights. Id. As discussed above, however, no First Amendment right of the J&M Firms is even implicated by the challenged regulations, much less substantially burdened by them.

Accordingly, rational basis review applies. The regulations at issue plainly survive that standard because they are rationally related to a legitimate government interest. As the District Court noted, and as we think is cognizable even on a motion to dismiss, the challenged laws serve New York State’s well-established interest in regulating attorney conduct and in maintaining ethical behavior and independence among the members of the legal profession. See, e.g., Jacoby III, 118 F.Supp.3d at 574-75; Ohralik, 436 U.S. at 460-61, 98 S.Ct. 1912. For example, by proscribing the involvement of unrelated third parties in the attorney-client relationship, the regulations preclude the creation of incentives for attorneys to violate ethical norms, such as those requiring attorneys to put their clients’ interests foremost. See, e.g., Lawline v. Am. Bar Ass’n, 956 F.2d 1378, 1385-86 (7th Cir. 1992). They therefore easily pass muster under rational basis review.

CONCLUSION

The J&M Firms have no claim to the First Amendment rights of association and petition that the Supreme Court has recognized in political advocacy groups or in individuals seeking the vindication of their own rights through not-for-profit counsel. And the New York regulations at issue here have at most an attenuated effect on the availability of attorney services to the population at large. Because the J&M Firms have neither plausibly alleged that they possess any First Amendment rights implicated here nor that any First Amendment right they might generously be assumed to have has been infringed, they have failed to state a claim for relief.

We AFFIRM the judgment of the District Court.

      . Before filing this suit, Jacoby & Meyers, LLP, created Jacoby & Meyers USA, LLC (the "LLC”), its initial co-plaintiff. See Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Dep’ts, 118 F.Supp.3d 554, 561 (S.D.N.Y. 2015). The LLC was a limited liability company that the LLP saw as a vehicle compatible with managing the desired outside investment. The LLP envisioned transferring its assets to the LLC, should it be permitted to accept such investments. Operating as a law firm, however, the LLC would have run afoul of certain New York laws that bar the practice of law by LLCs regardless of the nature of their investors. See id. at 563 (citing N.Y. LLC Law § 201 and N.Y. Judiciary Law § 495, which prohibit limited liability companies from practicing law). During the course of these proceedings, the LLC was replaced as co-plaintiff by Jacoby & Meyers USA II, PLLC. The format of the professional limited liability company permits both outside investment (if otherwise legal) and the practice of law. See N.Y. LLC Law §§ 1201 et seq. (governing PLLCs).

      . The J&M Firms cite New York Judiciary Law §§ 478, 484, 485, 491, 495; New York Partnership Law § 121-1500(a)(I); and New York Limited Liability Company Law §§ 201, 1201, 1203, 1207(a), 1209, 1210, 1211, as effecting the prohibition. The American Bar Association, which includes an equivalent to Rule 5.4 in its Model Rules of Professional Conduct, has considered whether to support "alternative business structures” — including some that might permit non-lawyer investment — but has remained agnostic on the overarching issue, concluding simply that it warrants further exploration. See Am. Bar Ass’n R. Prof'l Conduct 5.4; Am. Bar Ass'n, Comm'n on the Future of Legal Servs., Report on the Future of Legal Srvs. in the U.S. 42-43 (2016). As the New York State Bar Association has noted, the functional effect of enacting these rules in one jurisdiction is that any lawyer practicing in multiple jurisdictions is bound by the most restrictive set of rules. See NYSBA Report, 76 Alb. L. Rev. at 900.

      . New York's Rules of Professional Conduct, modeled after the ABA’s Model Rules of Professional Conduct, were adopted by the Appellate Division of the New York State Supreme Court in 2009. NYSBA Report, 76 Alb. L. Rev. at 885. They are published as Part 1200 of the Joint Rules of the Appellate Division. See 22 N.Y. Comp. Codes R. & Regs. tit. 22, § 1200 (2017).

      . The District Court initially dismissed the complaint for lack of standing because the LLP challenged the constitutionality of only Rule 5 A — not any of the other provisions of New York law that address non-lawyer investment. See Jacoby I, 847 F.Supp.2d at 591. On appeal, this Court vacated that judgment and remanded the case, directing the District Court to grant the LLP leave to amend its complaint in order to add the other relevant New York laws and regulations. See Jacoby II, 488 Fed.Appx. at 527-28. It became clear at oral argument in Jacoby II that the LLP's failure to include those provisions arose from to its fear that the District Court would abstain, pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), from deciding the case. Defendants, however, had become judicially estopped from making a Pullman abstention argument to the District Court in view of the position they took in their arguments to this Court, see Jacoby II, 488 Fed.Appx. at 527, and the case proceeded accordingly.

      . In their papers on appeal, the J&M Firms also refer to the Supreme Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), in an attempt to link the freedom to operate in a particular corporate form with First Amendment protections for speech. They do not allege any suppression of speech, however, and so that case has little relevance to the issue at hand.

      . This is not to suggest, of course, that a litigant’s right to present his or her position through counsel may easily be curtailed; it is to highlight, rather, that the right in question is the client’s, not the lawyer’s.

      . Without fully developing an argument for third-party standing, the J&M Firms at times appear to suggest that their claims encompass the rights of present and potential clients. Because we reject the J&M Firms’ challenge to the relevant regulations on the merits, we need not decide today in what circumstances the third-party standing doctrine might permit attorneys in the capacity of plaintiffs to assert constitutional rights belonging to their clients. (We may avoid this question because limitations on third-party standing are prudential, not constitutional. Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004).) In general, a party “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Id. (internal quotation marks omitted). A plaintiff may bring a claim on behalf of a third party, only if he can establish: "(1) a close relationship to the injured party and (2) a barrier to the injured party's ability to assert its own interests.” Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 358 (2d Cir. 2016) (internal quotation marks omitted). The Supreme Court has also allowed plaintiffs to assert third-party standing where the "enforcement of the challenged restrictions against the litigant would result indirectly in the violation of third parties' rights.” Kowalski, 543 U.S. at 130, 125 S.Ct. 564. The Court has stated that an existing attorney-client relationship is "of course, quite distinct from [a] hypothetical attorney-client relationship” for purposes of third-party standing. Id. at 131, 125 S.Ct. 564. We do not decide on which, if any, clients' behalf the J&M Firms might have asserted their constitutional challenge because the regulations at issue here do not violate the First Amendment.

      . The J&M Firms' assertions about quality of representation strike us as speculative and, in any event, irrelevant, since any right to access the courts would certainly not also involve a right to a lawyer of a certain caliber above ordinary competence.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Antonio Paul MARIN-MARIN, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
    Docket No. 15-2074
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Submitted: November 4, 2016
    Decided: March 27, 2017

      James A. Welcome, Waterbury, CT, for Petitioner.
    Jessica A. Dawgert, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Melissa Neiman-Kelting, Senior Litigation Counsel, on the brief), United States Department of Justice, Washington, D.C., for Respondent.
    Before: HALL, LIVINGSTON, Circuit Judges, GARAUFIS, District Judge.

       Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of New York, sitting by designation.

   PER CURIAM:

Petitioner Antonio Paul Marin-Marin, a native and citizen of Ecuador, seeks review of a May 28, 2015 order of the Board of Immigration Appeals (“BIA”) and the underlying January 16, 2014 decision of an Immigration Judge (“IJ”) finding him removable based on his unlawful entry to the United States. The issue before us is whether either the Fifth Amendment’s due process clause or the Eighth Amendment’s prohibition on cruel and unusual punishment requires consideration and weighing of the • proportionality of removal against the grounds for removability. Because removal is not punitive and no fair notice considerations are present here, we hold that no such consideration is necessary.

BACKGROUND

In 2013, Marin-Marin, a native and citizen of Ecuador, entered the United States without inspection. At the time, he was an unaccompanied juvenile of 17 who had entered the country to live with his mother in Connecticut. The U.S. Department of Homeland Security charged that Marin-Marin was subject to removal based on his unlawful presence in the United States.

Before an IJ, Marin-Marin, through counsel, conceded that he was removable as charged and declined to apply for relief from removal. Instead, Marin-Marin moved to terminate his removal proceedings, arguing that his removal would be disproportionate to the ground for his re-movability, and thus would constitute either excessive punishment in violation of the Eighth Amendment or a grossly excessive penalty in violation of the Fifth Amendment’s Due Process Clause. The IJ concluded that he did not have jurisdiction to consider Marin-Marin’s constitutional arguments or conduct a proportionality analysis. The BIA affirmed the IJ’s decision without opinion. Marin-Marin has filed a timely petition for review of that decision.

DISCUSSION

Marin-Marin argues that the agency was required to conduct a proportionality analysis to determine whether his removal is excessive when compared to the noncriminal ground for his removal. We disagree and hold that there is no merit to Marin-Marin’s claim that the agency is constitutionally required to consider whether removal is proportionate to the grounds for removability.

“It is settled that deportation, being a civil procedure, is not punishment and the cruel and unusual punishment clause of the Eighth Amendment accordingly is not applicable.” Santelises v. Immigration and Naturalization Serv., 491 F.2d 1254, 1255-56 (2d Cir. 1974); see also Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Sunday v. Att’y Gen., 832 F.3d 211, 218-19 (3d Cir. 2016); Hinds v. Lynch, 790 F.3d 259, 264-68 (1st Cir. 2015). The Government here did not seek to remove Marin-Marin as a result of criminal conduct but rather based solely on his unauthorized presence in the United States. And, in general, when removal is predicated on a criminal act, “the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999).

Marin-Marin notes that in Padilla v. Kentucky, the Supreme Court stated that “deportation is a particularly severe penalty.” 559 U.S. 356, 365, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). However, “the Court’s mere description of deportation as a ‘penalty’ ... does not call into question the continuing vitality of the Court’s precedent holding that the Eighth Amendment is not implicated by a noncitizen’s removal.” Hinds, 790 F.3d at 265. Indeed, in Padilla, the Court reiterated that deportation “is not, in a strict sense, a criminal sanction,” and held only that counsel must inform noncitizen criminal defendants of potential immigration consequences of a guilty plea. 559 U.S. at 365-66, 130 S.Ct. 1473; cf. Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 1110-11, 185 L.Ed.2d 149 (2013) (characterizing Padilla as “holding that the failure to advise about a noncriminal consequence could violate the Sixth Amendment” (emphasis added)).

Relying on decisions like State Farm Mutual Auto Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), Marin-Marin argues that proportionality review is required by the Fifth Amendment’s Due Process Clause. But State Farm, and the decisions which preceded it, were predicated on problems of fair notice not present in this case, where removal following unauthorized entry is neither novel nor unexpected. See id. at 417, 123 S.Ct. 1513 (explaining that the reason procedural and substantive restrictions on punitive damage awards exist is because “elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose”). As we have explained, “[i]n immigration cases, the Due Process clause requires only that an alien receive notice and a fair hearing where the [Government] must prove by clear, unequivocal, and convincing evidence that an alien is subject to deportation.” Cervantes-Ascencio v. U.S. Immigration and Naturalization Serv., 326 F.3d 83, 86 (2d Cir. 2003). Given the clear statutory consequences of entry without inspection, the due process concerns that motivated the State Farm court are simply inapplicable in this case, and thus cannot mandate proportionality review. See Herrerar-Molina v. Holder, 597 F.3d 128, 133-34 (2d Cir. 2010) (explaining, in the context of retroactivity analysis, that the application of clear immigration statutes does not implicate fair notice concerns).

For the reasons stated, Marin-Marin’s constitutional arguments fail. We need not further consider his argument that the IJ deprived him an opportunity to apply for relief from removal. Not only is this argument plainly belied by the record, but Marin-Marin failed to exhaust that argument before the BIA. See Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007); see also Theodoropoulos v. Immigration and Naturalization Serv., 358 F.3d 162, 172 (2d Cir. 2004).

CONCLUSION

For the foregoing reasons, the petition for review is DENIED.

      . Marin-Marin was 18 years old at the time he was ordered removed and acknowledged that he was not eligible for special immigrant juvenile status.


author: PER CURIAM: KATZMANN, Chief Judge,

text:
    Matthew CHRISTIANSEN, Plaintiff-Appellant, v. OMNICOM GROUP, INCORPORATED, DDB Worldwide Communications Group Incorporated, Joe Cianciotto, Peter Hempel, and Chris Brown, Defendants-Appellees.
    Docket No. 16-748
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: January 20, 2017
    Decided: March 27, 2017

      Susan Chana Lask, Law Offices of Susan Chana Lask, New York, NY, for Plaintiff-Appellant Matthew Christiansen.
    Howard J. Rubin (Shira Franco and Judith Kong, on the brief), Davis & Gilbert LLP, New York, NY, for Defendants-Ap-pellees Omnicom Group Incorporated, DDB Worldwide Communications Group Incorporated, Peter Hempel, and Chris Brown.
    Rick Ostrove, Leeds Brown Law, P.C., Carle Place, NY, for Defendant-Appellee Joe Cianciotto.
    Barbaba L. Sloan, Attorney, Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C. (P. David Lopez, General Counsel; Jennifer S. Goldstein, Associate General Counsel; and Margo Pave, Assistant General Counsel, Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., on the brief), for Amicus Curiae Equal Employment Opportunity Commission, in support of Plaintiff-Appellant.
    Lenora M. Lapidus, Gillian L. Thomas, Ria Tabaeco Mar, and Leslie Cooper, American Civil Liberties Union Foundation, New York, NY; Erin Beth Harrist, Robert Hodgson and Christopher Dunn, New York Civil Liberties Union Foundation, New York, NY, for Amici Curiae American Civil Liberties Union; New York Civil Liberties Union; 9to5, National Association of Working Women; A Better Balance; American Association of University Women; California Women’s Law Center; Coalition of Labor Union Women; Equal Rights Advocates; Gender Justice; Legal Momentum; Legal Voice; National Association of Women Lawyers; National Partnership for Women and Families; National Women’s Law Center; Southwest Women’s Law Center; Women Employed; Women’s Law Center of Maryland; Women’s Law Project, in support of Plaintiff-Appellant.
    Peter T. Barbur, Cravath, Swaine <& Moore LLP, New York, NY, for Amici Curiae 128 Members of Congress, in support of Plaintiff-Appellant.
    Shannon P. Minter and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, CA, for Amicus Curiae National Center for Lesbian Rights, in support of Plaintiff-Appellant.
    Michael D.B. Kavey, Brooklyn, NY; Omar Gonzalez-Pagan, Lambda Legal Defense and Education Fund, Inc., New York, NY; Gregory R. Nevins, • Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, for Amicus Curiae Lambda Legal Defense and Education Fund, Inc., in support of Plaintiff-Appellant.
    Before: ROBERT A. KATZMANN, Chief Judge, DEBRA ANN LIVINGSTON, Circuit Judge, and MARGO K. BRODIE, District Judge.

       Judge Margo K. Brodie, of the United States District Court for the Eastern District of New York, sitting by designation.

   PER CURIAM:

Plaintiff-appellant Matthew Christian-sen sued his employer, supervisor, and others affiliated with his company (collectively, “defendants”) under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and state and local law alleging that he was discriminated against at his workplace due to, inter alia, his HIV-positive status and his failure to conform to gender stereotypes. The United States District Court for the Southern District of New York (Failla, J.) dismissed Christiansen’s federal claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and declined to exercise supplemental jurisdiction over his state and local claims. See Christiansen v. Omnicom Grp., Inc., 167 F.Supp.3d 598, 612, 616-18, 622 (S.D.N.Y. 2016). In its decision, the district court concluded that Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), holding that Title VII does not prohibit discrimination on the basis of sexual orientation, precluded Christiansen’s Title VII claim. Christiansen, 167 F.Supp.3d at 618, 622. Christiansen primarily appeals this aspect of the district court’s decision.

I. Background

Christiansen, an openly gay man who is HIV-positive, worked as an associate creative director and later creative director at DDB Worldwide Communications Group, Inc., an international advertising agency and subsidiary of Omnicom Group, Inc. Christiansen’s complaint alleged that his direct supervisor engaged in a pattern of humiliating harassment targeting his effeminacy and sexual orientation. According to Christiansen, in the spring and summer of 2011, his supervisor drew multiple sexually suggestive and explicit drawings of Christiansen on an office whiteboard. The most graphic of the images depicted a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, “I’m so pumped for marriage equality.” J.A. at 16 ¶ 34.C; J.A. at 42. Another depicted Christiansen in tights and a low-cut shirt “prancing around.” J.A. at 16 ¶ 34.A; J.A. at 40. A third depicted Chris-tiansen's torso on the body of “a four legged animal with a tail and penis, urinating and defecating.” J.A. at 16 ¶ 34.B; J.A. at 41. Later in 2011, Christiansen’s supervisor circulated at work and posted to Facebook a “Muscle Beach Party” poster that depicted various employees’ heads on the bodies of people in beach attire. J.A. at 13 ¶ 30. Christiansen’s head was attached to a female body clad in a bikini, lying on the ground with her legs upright in the air in a manner that one coworker thought depicted Christiansen as “a submissive sissy.” J.A. at 13 ¶ 30; J.A. at 43.

Christiansen’s supervisor also made remarks about the connection between effeminacy, sexual orientation, and HIV status. The supervisor allegedly told other employees that Christiansen “was effeminate and gay so he must have AID[S].” J.A. at 15 ¶ 30. Additionally, in May 2013, in a meeting of about 20 people, the supervisor allegedly told everyone in the room that he felt sick and then said to Christian-sen, “It feels like I have AIDS. Sorry, you know what that’s like.” J.A. at 17 ¶ 38. At that time, Christiansen kept private the fact that he was HIV-positive.

On October 19, 2014, Christiansen submitted a complaint to the Equal Employment Opportunity Commission (“EEOC”) detailing the harassment described above. After receiving a “Notice of Right to Sue” from the EEOC, Christiansen filed this lawsuit in the United States District Court for the Southern District of New York on May 4, 2015. Shortly thereafter, defendants moved to dismiss the complaint. In their motion to dismiss, defendants argued, inter alia, that Christiansen’s claim under Title VII was a sexual orientation discrimination claim rather than a gender stereotyping claim and was thus not cognizable under Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005).

The district court agreed. In its decision, the district court described at length difficulties in distinguishing sexual orientation discrimination claims from gender stereotyping claims, specifically noting that negative views people hold of those with certain sexual orientations may be based on stereotypes about appropriate romantic associations between men and women. See Christiansen, 167 F.Supp.3d at 619-20. Having reviewed the decisions of other district courts addressing this issue in the wake of Simonton and Dawson, the district court concluded that “no coherent line can be drawn between these two sorts of claims.” Id. at 620. Nevertheless, the district court recognized that “the prevailing law in this Circuit — and, indeed, every Circuit to consider the question — is that such a line must be drawn.” Id. Although the district court considered several references to effeminacy in the complaint, it concluded that, as a whole, Christiansen’s complaint did not allege that he was discriminated against because he did not conform to gender stereotypes, but because he was gay. Id. at 620-22. As a result, the district court held that Christiansen’s claim was a sexual orientation discrimination claim that was not cognizable under Title VII pursuant to Simonton and Dawson and dismissed the claim under Rule 12(b)(6). Id. at 622.

II. Discussion

“We review a District Court’s grant of a motion to dismiss under Rule 12(b)(6) for failure to state a claim de novo, accepting the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiffs favor.” Carpenters Pension Tr. Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232 (2d Cir. 2014) (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,167 L.Ed.2d 929 (2007)). To meet this standard, a plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Title VII makes it “an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l). On appeal, Christiansen argues, supported by various amici, that we should reconsider our decisions in Simonton and Dawson in light of a changed legal landscape and hold that Title VU’s prohibition of discrimination “because of ... sex” encompasses discrimination on the basis of sexual orientation. Because we are “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court,” United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004), “it [is] ordinarily ... neither appropriate nor possible for [a panel] to reverse an existing Circuit precedent,” Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 (2d Cir. 2009). We thus lack the power to reconsider Simonton and Dawson.

However, we disagree with the district court’s conclusion that Christiansen failed to plausibly allege a Title VII claim based on the gender stereotyping theory of sex discrimination articulated in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), which is also binding on this panel. In Price Waterhouse, the female plaintiff, a senior manager at an accounting firm, was described as “macho” and “masculine” and informed that “to improve her chances for partnership, ... [she] should walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” 490 U.S. at 231-32, 235, 109 S.Ct. 1775 (internal quotation marks omitted). After her office declined to nominate her for partnership, she sued under Title VII alleging sex discrimination. Id. at 231-33, 109 S.Ct. 1775. Six members of the Supreme Court held that adverse employment action rooted in “sex stereotyping” or “gender stereotyping” was actionable sex discrimination. Id. at 250-52, 109 S.Ct. 1775 (plurality); see also id. at 258, 109 S.Ct. 1775 (White, J., concurring); id. at 272-73, 109 S.Ct. 1775 (O’Connor, J., concurring).

Here, as noted above, Christiansen’s complaint identifies multiple instances of gender stereotyping discrimination. His complaint alleges that his supervisor described him as “effeminate” to others in the office, J.A. at 15 ¶ 30, and depicted him in tights and a low-cut shirt “prancing around,” J.A. at 16 ¶ 34.A; J.A. at 40. The complaint further alleges that the “Muscle Beach Party” party poster, depicting Christiansen’s head attached to a bikini-clad female body lying on the ground with her legs in the air, was seen by at least one coworker as portraying Christiansen “as a submissive sissy.” J.A. 13 ¶ 30. The district court acknowledged these facts but concluded that because Christiansen’s complaint contained fewer allegations about his effeminacy than about his sexual orientation, the allegations about his effeminacy did not “transform a claim for discrimination that Plaintiff plainly interpreted — and the facts support — as stemming from sexual orientation animus into one for sexual stereotyping.” Christiansen, 167 F.Supp.3d at 621. The district court also opined that permitting Christiansen’s Title VII claim to proceed “would obliterate the line the Second Circuit has drawn, rightly or wrongly, between sexual orientation and sex-based claims.” Id. at 622.

The district court’s decision draws attention to some confusion in our Circuit about the relationship between' gender stereotyping and sexual orientation discrimination claims. Some district courts in this Circuit have viewed Simonton and Dawson as making it “especially difficult for gay plaintiffs to bring” gender stereotyping claims. Maroney v. Waterbury Hosp., No. 3:10-CV-1415 (JCH), 2011 WL 1085633, at *2 n.2 (D. Conn. Mar. 18, 2011); see also Estate of D.B. v. Thousand Islands Cent. Sch. Dist., 169 F.Supp.3d 320, 332-33 (N.D.N.Y. 2016) (“The critical fact under the circumstances is the actual sexual orientation of the harassed person.”). Such cases misapprehend the nature of our rulings in Simonton and Dawson. While Simonton observed that the gender stereotyping theory articulated in Price Waterhouse “would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine,” 232 F.3d at 38, it acknowledged that, at a minimum, “stereotypically feminine” gay men could pursue a gender stereotyping claim under Title VII (and the same principle would apply to “stereotypically masculine” lesbian women). Simonton and Dawson do not suggest that a “masculine” woman like the plaintiff in Price Waterhouse, 490 U.S. at 235, 109 S.Ct. 1775, has an actionable Title VII claim unless she is a lesbian; to the contrary, the sexual orientation of the plaintiff in Price Waterhouse was of no consequence. In sum, gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals. Simonton and Dawson merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.

The gender stereotyping allegations in Christiansen’s complaint are cognizable under Price Waterhouse and our precedents. Christiansen alleges that he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons. Furthermore, the harassment to which he was subjected, particularly the “Muscle Beach Party” poster, is alleged to have specifically invoked these “stereotypically feminine” traits. Simonton, 232 F.3d at 38. The district court commented that much more of the complaint was devoted to sexual orientation discrimination allegations than gender stereotyping discrimination allegations and that it thus might be difficult for Christiansen to withstand summary judgment or prove at trial that he was harassed because of his perceived effeminacy and flouting of gender stereotypes rather than because of his sexual orientation. Even if that were Christiansen’s burden at summary judgment or at trial — and we do not hold here that it is — it is not our task at the motion to dismiss stage to weigh the evidence and evaluate the likelihood that Christiansen would prevail on his Title VII gender stereotyping claim. Instead, we assess whether he has “state[d] a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). We hold that he has.

III. Conclusion

For the foregoing reasons, we REVERSE the district court’s dismissal of Christiansen’s Title VII claim and REMAND for further proceedings consistent with this opinion. We AFFIRM the judgment of the district court in all other respects.

KATZMANN, Chief Judge, concurs in a separate opinion, in which BRODIE, District Judge, joins.

KATZMANN, Chief Judge,

with whom BRODIE, District Judge, joins, concurring:

To ascertain whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination, we begin with the text:

It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge ... or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ....

42 U.S.C. § 2000e-2(a)(l). Christiansen and amici advance three arguments, none previously addressed by this Court, that sexual orientation discrimination is, almost by definition, discrimination “because of ... sex.” They argue first that sexual orientation discrimination is discrimination “because of ... sex” because gay, lesbian, and bisexual individuals are treated in a way that would be different “but for” their sex. Second, they argue that sexual orientation discrimination is discrimination “because of ... sex” because gay, lesbian, and bisexual individuals are treated less favorably based on the sex of their associates. Finally, they argue that sexual orientation discrimination is discrimination “because of ... sex” because gay, lesbian, and bisexual individuals are treated less favorably because they do not conform to gender stereotypes, particularly stereotypes about the proper roles of men and women in romantic relationships. I find persuasive these arguments, which reflect the evolving legal landscape since our Court’s decisions in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), holding that sexual orientation discrimination claims are not cognizable under Title VII. Concluding that it was constrained by the law as it then was, the Simonton Court expressly decried the “appalling persecution,” 232 F.3d at 35, that Simonton endured because of his sexual orientation, stating that such persecution was “morally reprehensible whenever and in whatever context it occurs.” Id. For the reasons that follow, I write separately to express my view that when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued.

I. Sexual Orientation Discrimination As Traditional Sex Discrimination

First, sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex. A person is discriminated against “because of ... sex” if that person is “exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (Ginsburg, J., concurring)). As the Supreme Court has alternatively explained, an action constitutes sex discrimination under Title VII if “the evidence shows treatment of a person in a manner which but for that person’s sex would be different.” City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) (emphasis added) (internal quotation marks omitted). “Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ’discrimina[tion] ... because of ... sex,’ ” Oncale, 523 U.S. at 81, 118 S.Ct. 998 (emphasis omitted), and Title VII’s prohibition “must extend to [discrimination] of any kind that meets the statutory requirements,” id. at 80,118 S.Ct. 998 (emphasis added).

Sexual orientation discrimination meets this test. As the Equal Employment Opportunity Commission (“EEOC”) has observed, sexual orientation “cannot be defined or understood without reference to sex,” Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015), because sexual orientation is defined by whether a person is attracted to people of the same sex or opposite sex (or both, or neither). For this reason, the EEOC has concluded that “[s'Jexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” Id. To illustrate, the EEOC gives an example:

[AJssume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action. The same result holds true if the person discriminated against is straight. Assume a woman is suspended because she has placed a picture of her husband on her desk but her gay colleague is not suspended after he places a picture of his husband on his desk. The straight female employee could bring a cognizable Title VII claim of disparate treatment because of sex.

Id. (citation omitted). Under this framework, “but for [the employee’s] sex,” the employee’s treatment would have been different. Manhart, 435 U.S. at 711, 98 S.Ct. 1370. Because this situation “meets the statutory requirements” of Title VII, the statute “must extend” to prohibit it. Oncale, 523 U.S. at 80, 118 S.Ct. 998.

One could argue in response that a man married to a man is not similarly situated to a man married to a woman, but is instead similarly situated to a woman married to a woman. In other words, one might contend that, for comparative purposes, a gay man is not married to a man; he is married to someone of the same sex, and it is other people married (or otherwise attracted) to the same sex who are similarly situated for the purpose of Title VII. In my view, this counterargument, which attempts to define “similarly situated” at a different level of generality, fails to demonstrate that sexual orientation discrimination is not “but for” sex discrimination. The Supreme Court rejected an analogous argument on interracial marriage— “that members of each race [were] punished to the same degree” — in Loving v. Virginia and held that treating all members of interracial relationships the same, but less favorably than members of intrar-acial relationships, was a race-based classification violating the Equal Protection Clause. See 388 U.S. 1, 7-8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The same logic suggests that it is sex discrimination to treat all individuals in same-sex relationships the same, but less favorably than individuals in opposite-sex relationships. Similarly, Manhart tells us that sex discrimination is treating someone “in a manner which but for that person’s sex would be different,” 435 U.S. at 711, 98 S.Ct. 1370 (emphasis added) (internal quotation marks omitted), suggesting that when evaluating a comparator for a gay, lesbian, or bisexual plaintiff, we must hold every fact except the sex of the plaintiff constant — changing the sex of both the plaintiff and his or her partner would no longer be a “but-for-the-sex-of-the-plaintiff” test.

Thus in my view, if gay, lesbian, or bisexual plaintiffs can show that “but for” their sex, Manhart, 435 U.S. at 711, 98 S.Ct. 1370, they would not have been discriminated against for being attracted to men (or being attracted to women), they have made out a cognizable sex discrimination claim. In such a case, then, traditional sex discrimination would encompass discrimination on the basis of sexual orientation. Neither Simonton nor Dawson addressed this argument.

II. Sexual Orientation Discrimination As Associational Sex Discrimination

Next, sexual orientation discrimination is discrimination “because of ... sex” because it treats people differently due to the sex of their associates. The associational discrimination theory, which we articulated with respect to racial discrimination eight years after our decision in Simonton, provides that “an employer may violate Title YII if it takes action against an employee because'of the employee’s association with a person of another race.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). As we explained, “[t]he reason [for this holding] is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race” in relation to the race of his or her associate. Id. at 139 (emphasis in original).

As the Supreme Court has observed, Title VII “on its face treats each of the enumerated categories exactly the same,” and for that reason “the principles ... announee[d]” with respect to sex discrimination “apply with equal force to discrimination based on race, religion, or national origin,” and vice versa. Price Waterhouse v. Hopkins, 490 U.S. 228, 243 n.9, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Thus, the associational theory of race discrimination applies also to sex discrimination. Putting aside romantic associations, this principle is not controversial. If a white employee fired or subjected to a hostile work environment after friendly association with black coworkers has a claim under Title VII, see Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878, 881, 883-84 (7th Cir. 1998) (finding no categorical bar to the application of the associational theory of race discrimination to interracial friendships), then a female employee fired or subjected to a hostile work environment after friendly association with male coworkers should have a claim under Title VII. Once we accept this premise, it makes little sense to carve out same-sex relationships as an association to which these protections do not apply, particularly where, in the constitutional context, the Supreme Court has held that same-sex couples cannot be “lock[ed] ... out of a central institution of the Nation’s society.” Obergefell v. Hodges, — U.S. —, 135 S.Ct. 2584, 2602, 192 L.Ed.2d 609 (2015); see also United States v. Windsor, — U.S. —, 133 S.Ct. 2675, 2693-94, 186 L.Ed.2d 808 (2013) (explaining that differentiation between opposite-sex and same-sex couples in the Defense of Marriage Act “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify” (citation omitted)). In sum, if it is race discrimination to discriminate against interracial couples, it is sex discrimination to discriminate against same-sex couples.

Therefore, I conclude that if gay, lesbian, or bisexual plaintiffs can show that they would not have been discriminated against but for the sex of their associates, they have made out a cognizable sex discrimination claim. In such a case, the associational theory of sex discrimination would encompass discrimination on the basis of sexual orientation. Because Si-monton and Dawson were decided before Holcomb, we have had no opportunity to address the associational theory of sex discrimination as applied to sexual orientation discrimination.

III. Sexual Orientation Discrimination As Gender Stereotyping

Finally, sexual orientation discrimination is discrimination “because of ... sex” because such discrimination is inherently rooted in gender stereotypes. In Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004), we considered “a crucial question: What constitutes a gender-based stereotype?” Id. at 119-20. While we did not definitively answer that question, we invoked the Seventh Circuit’s observation that whether there has been improper “reliance upon stereotypical notions about how men and women should appear and behave” can sometimes be resolved by “considering] ... whether [the plaintiffs] gender would have been questioned for [engaging in the relevant activity] if he were a woman rather than a man.” Id. at 120 n.10 (quoting Doe ex rel. Doe v. City of Belleville, Ill., 119 F.3d 563, 581-82 (7th Cir. 1997), vacated on other grounds by 523 U.S. 1001, 118 S.Ct. 1183, 140 L.Ed.2d 313 (1998) (remanding the case in light of Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998))).

Relying on common sense and intuition rather than any “special training,” see Back, 365 F.3d at 120 (quoting Price Waterhouse, 490 U.S. at 256, 109 S.Ct. 1775), courts have explained that sexual orientation discrimination “is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women. ... The gender stereotype at work here is that ‘real’ men should date women, and not other men,” Centola v. Potter, 183 F.Supp.2d 403, 410 (D. Mass. 2002); see also Boutillier v. Hartford Pub. Sch., No. 3:13-CV-01303-WWE, 2016 WL 6818348 (D. Conn. Nov. 17, 2016) (“[H]omosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus.”). Indeed, we recognized as much in Dawson when we observed that “[stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”398 F.3d at 218 (alteration in original) (internal quotation marks omitted). Having conceded this, it is logically untenable for us to insist that this particular gender stereotype is outside of the gender stereotype discrimination prohibition articulated in Price Waterhouse.

Numerous district courts throughout the country have also found this approach to gender stereotype claims unworkable. See, e.g., Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1159 (C.D. Cal. 2015) (collecting cases) (“Simply put, the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw' because that line does not exist, save as a fingering and faulty judicial construct.”). The binary distinction that Simonton and Dawson establish between permissible gender stereotype discrimination claims and impermissible sexual orientation discrimination claims requires the factfinder, when evaluating adverse employment action taken against an effeminate gay man, to decide whether his perceived effeminacy or his sexual orientation was the true cause of his disparate treatment. See Fabian v. Hosp. of Cent. Connecticut, 172 F.Supp.3d 509, 524 n.8 (D. Conn. 2016). This is likely to be an exceptionally difficult task in fight of the degree to which sexual orientation is commingled in the minds of many with particular traits asso-dated with gender. More fundamentally, carving out gender stereotypes related to sexual orientation ignores the fact that negative views of sexual orientation are often, if not always, rooted in the idea that men should be exclusively attracted to women and women should be exclusively attracted to men — as clear a gender stereotype as any.

Thus, in my view, if gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim. In such a case, the gender stereotype theory of discrimination would encompass discrimination on the basis of sexual orientation. In neither Simonton nor Dawson did we consider this articulation of the gender stereotype at play in sexual orientation discrimination.

IV. Congressional Inaction

Our decision in Simonton was understandably influenced by “Congress’s refusal to expand the reach of Title VII” in the wake of “consistent judicial decisions refusing to interpret ‘sex’ to include sexual orientation,” which we viewed as “strong evidence of congressional intent.” 232 F.3d at 35. The Supreme Court has indicated, however, that:

[Subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress. It is a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns ... a proposal that does not become law. Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.

Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (internal citations and quotation marks omitted).

As several amici point out, there are idiosyncratic reasons that many bills do not become law, and those reasons may be wholly unrelated to the particular provision of a bill that a court is assessing. In light of the force of the arguments as to why discrimination “because of ... sex” encompasses sexual orientation discrimination and Oncale’ s admonition that “it is ultimately the provisions of our laws ... by which we are governed,” 523 U.S. at 79, 118 S.Ct. 998, we should not rely on the “hazardous basis” of subsequent congressional inaction, LTV Corp., 496 U.S. at 650, 110 S.Ct. 2668, to exclude sexual orientation discrimination from Title VII’s coverage.

V. Conclusion

When Simonton was decided, this Court reached the same conclusion as every other circuit court that had considered the issue: that discrimination “because of ... sex” did not encompass discrimination on the basis of sexual orientation, a view then shared by the EEOC. But in the years since, the legal landscape has substantially changed, with the Supreme Court’s decisions in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and Obergefell v. Hodges, — U.S. —, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), affording greater legal protection to gay, lesbian, and bisexual individuals. During the same period, societal understanding of same-sex relationships has evolved considerably.

There is no doubt that sexual orientation discrimination “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” Oncale, 523 U.S. at 79, 118 S.Ct. 998. However, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws ... by which we are governed.” Id. Title VII prohibits all “discrimination] ... because of ... sex” and its protections “must extend to [discrimination] of any kind that meets the statutory requirements.” Id. at 80, 118 S.Ct. 998 (emphasis added). Despite recent congressional inaction in the face of judicial decisions excluding sexual orientation discrimination from Title VII’s coverage, there is “no justification in the statutory language ... for a categorical rule excluding” such claims so long as a plaintiff can demonstrate that he or she was discriminated against “because of ... sex.” Id.

Taking a fresh look at existing cases, the EEOC and other advocates have articulated three ways that gay, lesbian, or bisexual plaintiffs could make this showing. First, plaintiffs could demonstrate that if they had engaged in identical conduct but been of the opposite sex] they would not have been discriminated against. Second, plaintiffs could demonstrate that they were discriminated against due to the sex of their associates. Finally, plaintiffs could demonstrate that they were discriminated against because they do not conform to some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men. Neither Simonton nor Dawson had occasion to consider these worthy approaches. I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.

      . Christiansen also purports to challenge the district court’s dismissal of his ADA claim for failure to comply with the statute of limitations. The district court, however, did not dismiss the ADA claim on this basis and instead concluded that Christiansen did not allege facts constituting discrimination under the ADA. Christiansen, 167 F.Supp.3d at 613-17. We thus need not consider Christiansen's statute of limitations argument, and we affirm the district court's dismissal of Christiansen’s ADA claim.

      . This highlights an issue that may arise when a plaintiff alleges discrimination under Title VII as well as under state and local laws that do prohibit sexual orientation discrimination. See, e.g., N.Y. Exec. Law § 296(l)(a); N.Y.C. Admin. Code § 8-107(l)(a). In such a case, one would expect a plaintiff to detail alleged instances of sexual orientation discrimination in violation of state and local law alongside alleged instances of gender stereotyping discrimination in violation of federal law. When evaluating such a complaint, courts should not rely on the mere fact that a complaint alleges sexual orientation discrimination to find that a plaintiff fails to state a separate claim for gender stereotyping discrimination, but should instead independently evaluate the allegations of gender stereotyping.

      . Defendants argue on appeal that Christian-sen’s Title VII claim is time-barred. Chris-tiansen responds that the continuing violation doctrine and equitable estoppel apply to his claims. Because the district court did not reach the time-bar issue below, we will not decide it here in the first instance. Instead, we leave it to the district court to determine, on remand, whether Christiansen's claims are time-barred.

      . The only exception, not relevant here, is for a “bona fide occupational qualification” ("BFOQ”), which is a justification for some differential treatment based on religion, sex, or national origin but not based on race. See 42 U.S.C. § 2000e-2(e); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 242, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).