Eleventh Circuit Judge Makes the Case for Employment Protections Under Title VII in Fiery Dissent

By Shane Stahl • July 26, 2018 • 5:30 pm

On Friday, July 20 the Eleventh Circuit Court of Appeals denied en banc review in the case of Bostock v. Clayton County, GA, which centers on whether Title VII of the Civil Rights Act, which prohibits employment discrimination based on sex, covers people discriminated against based on sexual orientation. The plaintiff in the case, Gerald Lynn Bostock, was fired from his county position because of his sexual orientation, and his legal team has already submitted a petition for certiorari to the United States Supreme Court. Read the denial here from Equality Case Files.

Across the country, the legal consensus is building that no one should face discrimination because of who they are or who they love. In the past year and a half, the U.S. Courts of Appeals for the 7th Circuit and 2nd Circuit have ruled that federal law already prohibits employment discrimination based on sexual orientation. Other appellate courts – including the 11th Circuit and the 6th Circuit, have found that federal law prohibits employment discrimination based on gender identity. And just last year the 7th Circuit found that the federal Title IX, which prohibits discrimination against students based on sex also covers transgender students. This groundswell of legal consensus is hard to ignore – read all about it in our Litigation Tracker here, including Where We Stand in the Courts.

Although the court denied review, Judge Robin Rosenbaum issued a strongly worded dissent that took the court to task for its inaction, saying, “I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people.”

Citing previous cases, Judge Rosenbaum wrote:

“The issue this case raises—whether Title VII protects gay and lesbian individuals from discrimination because their sexual preferences do not conform to their employers’ views of whom individuals of their respective genders should love—is indisputably en banc-worthy. Indeed, within the last fifteen months, two of our sister Circuits have found the issue of such extraordinary importance that they have each addressed it en banc.”

Her dissent goes on to explain:

“I dissent today for an even more basic reason: Regardless of whatever a majority of this Court’s views may turn out to be on the substantive issue that Bostock raises, we have an obligation to, as a Court, at least subject the issue to the crucial crucible of adversarial testing, and to give a reasoned and principled explanation for our position on this issue—something we have never done. Particularly considering the amount of the public affected by this issue, the legitimacy of the law demands we explain ourselves.”

To read more about the case, visit our litigation page here. And keep up on all litigation related to LGBTQ nondiscrimination in Freedom for All Americans’ Litigation Tracker.

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