You’re applying for a job/So you’re filling out a form
And for all intents and purposes/You fit into the norm
Until it says to list your next of kin/But there's no box to fit you in
In a landmark decision, the U.S. Court of Appeals for the Seventh Circuit has held that the federal statute barring sex discrimination in employment forbids sexual orientation discrimination. The 8-3 majority opinion by Chief Judge Diane Woods in significant measure tracks a well-reasoned decision about Title VII of the Civil Rights Act of 1964 adopted in a 2015 ruling by the Equal Employment Opportunity Commission (EEOC). Today’s decision in Hively v. Ivy Tech Community College is likely to be influential as litigants in other cases across the country continue to advocate the same interpretation of Title VII, likely leading the Supreme Court to take the issue up sooner rather than later.
The case arose when lesbian Kimberly Hively was repeatedly rejected for full-time positions and eventually had her part-time teaching contract not renewed by Ivy Tech Community College in Southbend, Indiana. She sued pro se, arguing in part that Ivy Tech discriminated against her based on her sexual orientation and thus in violation Title VII’s ban on sex discrimination. Her claim was rejected by the federal trial court, but on appeal she was represented by Lambda Legal. A three-judge panel of the Seventh Circuit ruled against that argument, holding it foreclosed by older circuit precedent, which is binding on such panels until the Supreme Court or an “en banc” panel of all active Seventh Circuit judges overrules it.
Hively has now overruled such earlier Seventh Circuit precedent and held that, under Title VII, “discrimination on the basis of sexual orientation is a form of sex discrimination.” The court concluded this as a matter of statutory interpretation, adopting its best view of Title VII without feeling obligated to defer to the EEOC’s interpretation reaching the same conclusion. The Seventh Circuit court did follow the Supreme Court’s reasoning in a Title VII case about sexual harassment between people of the same sex, Oncale v. Sundowner Offshore Services, Inc. The lesson it drew from Oncale? “[T]he fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”
The EEOC’s decision in Baldwin v. Foxx had ruled sexual orientation discrimination a form of sex discrimination in part based on a sex stereotyping theory, the general bounds of which the Supreme Court had embraced in Price Waterhouse v. Hopkins in 1989. Here, the full Seventh Circuit court concluded that “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.” Hence, although the three-judge panel had “described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin,” the en banc court “conclude[d] that it does not exist at all.”
The Baldwin case also relied on an associational theory: Courts had regularly held that Title VII, which also prohibits race discrimination in employment, is violated when an employer discriminates against employees or applicants in interracial relationships. The EEOC said that discriminating against women who associate with women (as opposed to men who associate with women) similarly is sex discrimination, and the en banc court in Hively agreed. It should be no defense to say an employer would discriminate against lesbians and gay men alike, just as it was no defense of laws against interracial marriage, held unconstitutional in Loving v. Virginia (three years after Title VII was enacted) to say that such marriage restrictions discriminated against white and black people alike if they engaged in interracial relationships.
Judge Richard Posner seemingly joined Chief Judge Wood’s majority opinion (despite misgivings about its use of Oncale and Loving) but wrote separately to emphasize that “statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning.” In his view, such evolutionary interpretation is especially appropriate here because “[n]othing has changed more in the decades since the enactment of the statute than attitudes toward sex.” (Because he gets the law right, in my view, and shows a humane view of lesbigay people, I’ll cut him his slack for identifying Renée Richards, who transitioned in 1975, as “the first transgender celebrity,” completely overlooking the widespread attention received by Christine Jorgensen, who transitioned in the early 1950s and was covered on talk shows and front pages of newspapers.)
Judge Joel Flaum, joined by Judge Kenneth Ripple, joined most of Judge Woods’s majority opinion but declined to join Part III, which invoked the Supreme Court’s trend of increasing protection of lesbigay persons in its constitutional decisions. In their view, the statutory interpretation was fairly simple: “discrimination against an employee on the basis of their homosexuality is necessarily, in part, discrimination based on their sex” because, in light of how sexual orientation is defined in our society, “[o]ne cannot consider a person’s homosexuality without also accounting for their sex.”
Judge Diane Sykes, joined by Senior Judge William Bauer and Judge Michael Kanne, dissented. They pressed a by now familiar appeal to “democracy” and a view of statutory interpretation that, despite their protestations to the contrary, nonetheless closely tethers laws to presumed expectations of their enactors of how those laws would apply, rather than reasoning logically about what the words say and mean, as Oncale seems to direct.
Remember, Title VII prohibits discrimination because of sex. Even were we to think the dissenters right that “[t]o a fluent speaker of the English language—then and now—the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation[,]’” that would not make their position right. I’ve advanced parallel arguments elsewhere for why Title VII’s sex discrimination ban forbids anti-transgender discrimination (see pp. 264-265 of my article Acknowledging the Gender in Anti-TransgenderDiscrimination). Even if “sex” refers to “male” and “female” and we set aside the circumstances of intersex persons, it remains the case, as the Hively en banc majority persuasively argued, that discrimination against someone because she is lesbian is discrimination “because of” sex.
Here, and in rejecting the comparisons the majority appropriately draws, he dissenters seem to think that we should pair up instances of discrimination, so that an employer who discriminates against gay men because of sex (though hiring women similarly attracted to men) and who discriminates against lesbian women because of sex (though hiring men similarly attracted to women) engages in no sex discrimination, rather than two instances of sex discrimination. This is wrong, as legal scholars including Kenji Yoshino (see p.441 of The Epistemic Contract of Bisexual Erasure) and myself (see Making up Women:Casinos, Cosmetics, and Title VII) have argued in a variety of contexts.
To quote the dissent, “I could go on, but the point has been made.” The majority opinion offers sound rejoinders to many of the dissenters’ subsidiary contentions. With luck, other courts will see that and rule the same way. This would go far toward reducing the discrimination lesbigay people face in many places throughout the country.