Full Appeals Court Rules Federal Law Forbids Sexual Orientation Discrimination in Employment

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, the 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.

Federal Government Issues Guidance for Schools, Educational Programs, re: Transgender Students

“When it’s time to change, you’ve got to rearrange

Who you are and what you're gonna be”

The Department of Justice and the Department of Education today issued a significant guidance document today to help schools comply with their obligations toward transgender students under Title IX of the Education Amendments of 1972 (“Title IX”) – which is a federal statute modeled after part of the Civil Rights Act of 1964 – and the federal regulations implementing that law.  This “dear colleague” letter does not subject schools to any new binding regulatory commands, but it clarifies how these two agencies interpret extant laws.  The Department of Education’s blog introduces the guidance, illustrating the importance of assuring schools respect the rights of all students including transgender students and explaining the departments’ action as responsive to requests from the education community.   Title IX prohibits sex discrimination in educational programs and activities receiving federal funds, as the vast majority of schools do.  Consistent with the trend in federal courts (much of which was, disgracefully and likely disingenuously, omitted from North Carolina’s complaint in the state’s lawsuit against the Justice Department for its actions in response to HB2), the guidance explains that the Departments of Justice and Education have interpreted Title IX’s ban on sex discrimination to include a prohibition on “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”    Under Title IX and its regulations, as the departments of the federal government charged with enforcing them have interpreted these laws, schools must not discriminate against transgender boys (who were identified as female at birth but whose gender identity is male) or transgender girls (who were identified as male at birth but whose gender identity is female).  Transgender boys are to be treated as the school treats boys generally; transgender girls are to be treated as the school treats girls generally.  Most prominently under discussion these days due to North Carolina’s anti-civil rights HB2, if a school provides separate spaces for students of different sexes, it must allow transgender students to use the space consistent with their gender identity.  Thus, transgender boys must be allowed to use boys’ restrooms, and transgender girls.  This requirement is how the departments had already been interpreting the relevant federal laws.   In addition, the guidance makes clear that schools must ensure a safe and nondiscriminatory environment for their students, including taking effective steps to preclude hostile environments created by “[h]arassment that targets a student based on gender identity, transgender status, or gender transition.”  The guidance suggests that school staff and contractors are to use student names and pronouns consistent with the student’s gender identity, regardless of what may be specified on formal identity documents such as birth certificates, which can be difficult or impossible to amend to reflect correctly a person’s gender identity.  The guidance also makes clear that this can be important to protecting the confidentiality of a student’s transgender status.   The guidance letter does what this kind of document is supposed to do: provides significant guidance to schools and educational programs across the country concerning their legal requirement not to discriminate on the basis of sex.  Unlike the Justice Department’s letter to North Carolina, which violated transgender students’ rights in state law, HB2, rushed through from introduction to adoption in a single day in an extraordinary special session of the legislature, today’s guidance document does not threaten any school with loss of federal funding.  It does, however, make clear what the relevant federal department understand the governing law to mean for schools.  It seems likely, then that schools that are seeking in good faith to provide equal educational opportunities to all their students will take the opportunity to change their policies, or adopt ones, to do what is legally required when it comes to their transgender students, who deserve the same chance to learn and to thrive as all others.

   

“A little bit of living, a little bit of growing all adds up to you”

Unveiling Marriage Equality?

“’Cause maybe they’ve seen us and welcome us all”

SCOTUSblog has a “flash” symposium on the Supreme Court’s grant of review Friday, January 16, in the four marriage cases from the Sixth Circuit, Same-sex marriage and the 14th Amendment.  My entry, UnveilingMarriage Equality?, addresses the issues the Court did, did not, and could take up in the cases; hazards a prediction regarding the ultimate outcome of the litigation; offers the skeleton of a defense of my position that the Constitution requires marriage equality; and sounds a note of caution about the Supreme Court’s recent spotty record on equality issues and the need for sustained work to bring about a more equal society in the United States.

Federal Courts Hold Oregon & Pennsylvania Marriage Exclusions Unconstitutional

 “Cause a double-rainbow is hard to find”

On two consecutive days, federal trial courts held unconstitutional state laws that excluded same-sex couples from marriage and refused to recognize lawful marriages of such couples from other jurisdictions.  On Monday, May 19, in Geiger v. Kitzhaber (opinion here), U.S. District Judge Michael J. McShane held that Oregon’s statutory and state constitutional marriage exclusions violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.  Judge McShane’s order in the case permanently enjoined the state and county defendants from enforcing the laws, effective immediately.  (He declined to “stay” his judgment to put it on hold and keep same-sex couples from marrying, though the U.S. Court of Appeals for the Ninth Circuit could impose a stay, as could the U.S. Supreme Court.)  On Tuesday, May 20, in Whitewood v. Wolf (opinion here), U.S. District Judge John E. Jones III held that Pennsylvania’s statutes denying marriage to same-sex couples and denying recognition of same-sex couples’ valid marriages from other jurisdictions violated same-sex couples’ equal protection rights and their fundamental right to marry under the Fourteenth Amendment’s Due Process Clause.  Judge Jones likewise permanently enjoined the state and county defendants from enforcing those laws.  Following last week’s decision holding Idaho’s marriage exclusion unconstitutional, and the prior week’s ruling against Arkansas’s marriage ban, these Oregon and Pennsylvania rulings heighten the momentum of the national campaign for marriage equality and underscore the vacuity of the arguments for the continued denial of civil marriage to same-sex couples.

Some Geiger plaintiffs, from left, Lisa Chickadonz, Christine Tanner, Ben West and Paul Rummell.  Photo: Don Ryan/AP

In Geiger, the Oregon case, the state had refused to defend the state’s discriminatory marriage laws, concluding they were unconstitutional and joining the plaintiffs in asking the court to hold them unconstitutional.  The arguments against it were presented by amici curiae (“friends of the courts,” or interested persons or groups who are formally plaintiffs or defendants in the case) and were the same sorts of claims that are by now well familiar.  Like many other judges since the Supreme Court’s decision holding part of the Defense of Marriage Act unconstitutional law summer in U.S. v. Windsor, the Geiger judge concluded that the potential justifications did not even satisfy “rational basis review,” the most deferential form of scrutiny.  (The judge in dicta rejected the plaintiffs’ argument that the marriage laws classified on the basis of sex, which would subject them to a less forgiving “intermediate” or “heightened” form of scrutiny.  But his reasoning on this point, illogically trying to distinguish Loving v. Virginia, was neither persuasive nor necessary to his ruling, since he held that the laws fail even rational basis review.  Thus, this opinion should not even be persuasive precedent for the counter-intuitive proposition that laws that keep same-sex couples from marrying do not classify on the basis of sex.)

Applying rational basis review, the judge ruled, as have many others, that tradition arguments and moral disapproval were legally insufficient to uphold laws challenged as denying people equal protection on the basis of sexual orientation.  He also concluded that “[t]here is simply no rational argument connecting” a potential state interest in “natural” procreation or other child-welfare-focused interests to the state’s marriage bans, which undermine rather than advance the state’s interests in the wellbeing of all its children.  “The marriage laws place the plaintiffs and other gay and lesbian couples seeking to marry in Oregon at a disadvantage, and the laws do so without any rationally related government purpose.”  Thus, they violate the Constitution’s guarantee of equal protection, were unconstitutional, and were enjoined.

Two of the Whitewood plaintiffs, Angela Gillem and Gail Lloyd  Photo: ACLU

In the Whitewood case, Judge Jones applied “intermediate scrutiny” to the plaintiffs’ equal protection claim, a form of judicial review less deferential to the government; instead of asking whether the plaintiff had proven that the statute was not rationally related to a legitimate state purpose, intermediate scrutiny places the burden on the government to prove that a discriminatory law furthers not merely a legitimate purpose but one that counts as “important,” and that the law is not merely rationally but substantially related to such important purposes.  Because the proper level of scrutiny in the Third Circuit was not settled, the judge examined the various factors the Supreme Court had deemed relevant, such as a history of discrimination, the irrelevance of sexual orientation to people’s ability to contribute to society, and a relative lack of political power.  Interpreting the plaintiffs’ arguments not to be pressing for full “strict scrutiny” (as would be applied to racial discrimination), the court concluded that intermediate scrutiny was appropriate.  Applying that scrutiny, Judge Jones held that the state’s asserted interests in “the promotion of procreation, child-rearing and the well-being of children, tradition, and economic protection of Pennsylvania businesses” may or may not satisfy rational basis review but were not sufficient to provide the “exceedingly persuasive justification” needed to uphold discriminatory laws reviewed under equal protection.  Thus the marriage laws were unconstitutional.

In his fundamental right analysis, Judge Jones first concluded, like most other courts since the Windsor decision, that the Supreme Court’s 1972 ruling in Baker v. Nelson rejecting a challenge to Minnesota’s mixed-sex requirement for civil marriage was dispositive; the Court’s case law had evolved too much since then for that decision to answer the constitutional issues.  He rejected the claim that the constitutional right to marry (protected by the Due Process Clause of the Fourteenth Amendment) was only a right to marry a person of a different sex, but rather followed Loving v. Virginia and joined the many courts concluding that it was improper to build in the identities of the plaintiffs into the description of the right, which should be seen instead as the right to marry the person of one’s choice.  Pennsylvania’s law excluding same-sex couples from marriage infringed that rights and thus was unconstitutional for this reason as well, as was the state’s refusal to recognize marriages of same-sex couples validly entered in other jurisdictions.  And, like Judge McShane in the Geiger case, Judge Jones let his ruling go into effect already, so same-sex couples in Pennsylvania will be able to marry, as Oregon couples already are, as soon as a three-day waiting period between receiving a marriage license and being able to “solemnize” and thus legally enter a marriage.

With this pair of rulings, we have now seen nineteen court rulings in a row since the Supreme Court’s decision in U.S. v. Windsor last June holding in favor of marriage equality, and eight states have had their exclusionary marriage laws held unconstitutional in that time.  This unanimity of judicial opinion that the constitutional logic of equal protection, including in decisions like Windsor, establishes the unconstitutionality of bans on same-sex couples marrying bodes well for the chances of equality ultimately prevailing  when the Supreme Court next revisits the issue.