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A Major Step Forward for LGBTQ Civil Rights
Daniel Bruner / Senior Director of Policy
Daniel Bruner / Senior Director of Policy

April 13, 2017

Last week, a major decision on the rights of lesbian, gay and bisexual people under federal employment discrimination law was issued by the U.S. Court of Appeals for the Seventh Circuit. Hively v. Ivy Tech Community College. The court issued a rare “en banc” ruling (all of the Judges on the court sitting together) which held that Title VII of the Civil Rights Act, which prohibits sex discrimination in employment, covers sexual orientation discrimination. Although the holding is legally binding only in the Seventh Judicial Circuit – covering Illinois, Indiana and Wisconsin – the Seventh Circuit Court of Appeals is a very influential court, and the fact that the ruling was “en banc” is likely to make it even more influential.

Title VII prohibits discrimination in employment “because of … sex.”  Until recently, the federal courts – and the Equal Employment Opportunity Commission (EEOC), which administers and enforces Title VII – consistently ruled that “discrimination because of sex” did not include discrimination based on sexual orientation. Their reasoning was that when Congress enacted the law in 1964, it did not intend to protect gay and lesbian people from discrimination, and attempts over the years to amend the statute to add “sexual orientation” to the protected categories have been unsuccessful in Congress. However, in recent years legal advocates have argued for a fresh look at the law, and in 2015 the EEOC ruled in a federal agency discrimination case that sexual orientation discrimination is a form of discrimination based on sex (in the landmark case Baldwin v. Foxx). A number of federal trial courts (U.S. District Courts) have agreed, but until now no U.S. Court of Appeals has adopted this view. The Hively case is the first time a federal court of appeals has concluded, based on a thorough and thoughtful analysis, that the old precedents are wrong.

(There has been a similar struggle in the courts on behalf of transgender and gender nonconforming people subjected to discrimination. Until a few years ago, the courts and civil rights agencies had ruled that Title VII’s prohibition of sex discrimination did not protect transgender persons who suffered discrimination because of their gender identity. But an increasing number of courts, and the EEOC, have now ruled that gender identity discrimination is sex discrimination. The Hively case involved sexual orientation, not gender identity.)

The case was brought by Kimberly Hively, an open lesbian who was a part-time adjunct professor at a community college in Indiana. She applied for several full-time positions, all of which were rejected; she then was fired. When she sued, the college argued that Title VII does not cover sexual orientation discrimination. Because of adverse precedents in the Seventh Circuit, Hively lost her case in the U.S. District Court, and a three-judge panel of the Court of Appeals agreed. However, in a rare move, the full Seventh Circuit, consisting of eleven judges, voted to re-hear Hively’s case, and last week voted 8-3 in her favor.

The majority overruled its older decisions, and concluded that discrimination against Hively was a form of sex discrimination, on three separate but related grounds, which are essentially the same as the EEOC’s reasoning in the 2015 Baldwin case:

She claimed she was discriminated against because she was a woman having relationships with other women. Had she been a man having relationships with women, she would not have experienced discrimination. Thus, the discrimination was because of her sex: because she was female.
Hively also claimed that she was discriminated against because she was having relationships with women, rather than with men. Thus, she suffered discrimination because of the sex (female) of the people with whom she was associated. The court relied on other cases which have held that, for instance, a white person who is fired from a job because they have a black spouse (or because they are dating a black person) can sue for race discrimination, even if the employer did not discriminate against other white employees (who did not have interracial relationships).
In addition, the courts have ruled that sex discrimination includes discrimination based on failure to conform to an employer’s sex stereotypes. (This law is based on a Supreme Court case, Price Waterhouse v. Hopkins, in which a woman was denied partnership at an accounting firm because her dress and behavior were not sufficiently “feminine” in the opinion of the – male – partners.)  The Court of Appeals majority agreed that an employee experiencing discrimination because of a same-sex relationship or attraction is fired because of the sex stereotype of heterosexuality – and, therefore, fired because of sex.
In response to arguments that Congress in 1964 was not intending to protect lesbians or gay men or bisexuals, and that Congress has not amended Title VII to add the words “sexual orientation,” the Court of Appeals majority declared that their decision flowed from the logic of the words “discrimination because of sex,” and from the principle that sex discrimination includes discrimination based on gender stereotypes. The majority observed that as the Supreme Court had pointed out (In a same-sex sexual harassment ruling authored by Justice Scalia), it is the words of a statute that matter, not what’s in Congress’ mind when the statute was passed years earlier.

Judge Posner – a famous and influential legal conservative – wrote a separate opinion in which he observed that the court’s willingness to take a fresh look at a law enacted more than 50 years ago, and to depart from decades of precedents, was due to fundamental changes in society that have resulted in greatly increased visibility and acceptance of lesbian, gay and bisexual people.

It is worth noting that the Hively court’s ruling is nonpartisan. Of the eight judges who ruled that Title VII protects against sexual orientation discrimination, five were appointed by Republican Presidents.

Although this victory is the result of years of effort by many advocates, special recognition is due to the attorneys at Lambda Legal (especially Greg Nevins) and to EEOC Commissioner Chai Feldblum and former EEOC General Counsel David Lopez.

Where do we go from here?

The Seventh Circuit’s decision conflicts with decisions issued just last month by three-judge panels of the U.S. Courts of Appeals for the Eleventh Circuit and the Second Circuit.  The majorities in those two cases held that Title VII does not cover sexual orientation discrimination, but that the plaintiffs (a lesbian and a gay man) might prevail if they could prove that they had been fired for violating gender stereotypes in their dress and mannerisms (essentially, that the lesbian had been fired for being too “butch” and the gay man for being too “femme”).  In each case, the majority declared that it was constrained by earlier precedents in their Circuits that could only be overturned by the Circuit court sitting en banc – and dissenting judges in each case criticized those precedents and called for their reversal. It is possible that the Seventh Circuit’s powerful, en banc opinion will persuade other Courts of Appeal to follow suit.  If there continues to be conflict between the federal Circuits, the Supreme Court might ultimately decide the issue.

Although these cases all concern Title VII and employment discrimination, they have implications far beyond workplace rights. Other federal laws prohibit discrimination “because of sex” in education (Title IX), housing (the Fair Housing Act), and health insurance and health care (Section 1557 of the Affordable Care Act). For all of these statutes, the federal courts are the final word – and they largely look to the cases interpreting Title VII for guidance. However the Trump Administration interprets these statutes, ultimately the courts will determine how federal sex discrimination laws apply to discrimination based on sexual orientation and to discrimination based on gender identity. Whitman-Walker Health will continue to work with many other advocates to fight LGBTQ discrimination in health insurance and health care, employment, education and housing – and the Seventh Circuit’s Hively decision is a major advance in that fight.

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