HISTORIC: Why the 7th Circuit Ruling Declaring Anti-Gay Employment Discrimination Illegal is So Important

By Adam Polaski • April 5, 2017 • 9:03 am
Today the 7th Circuit Court of Appeals issued a historic en banc ruling in favor of Kimberly Hively, a math teacher who was fired from her job in Indiana because she was seen kissing her girlfriend. In its 8-3 ruling on the case, brought forward by Lambda Legal, the court stated that discrimination based on sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. This is the first time a federal appellate court has reached this conclusion.

Matt McTighe, executive director of Freedom for All Americans, released the following statement:
“Today’s ruling brings significant hope to the future of equal treatment under the law for lesbian, gay, and bisexual people. No one should ever fear losing a job that they love because of their sexual orientation. This is a tremendous development in the courts, but the lived reality is clear: in 32 states, LGBT people continue to suffer daily because they lack comprehensive explicit protections from discrimination. It’s critical for lawmakers to catch up to public opinion and the courts, and put an end to the dangerous anti-LGBT bills pending in legislatures across the country.”

Take a look at this primer on the decision – and the fight ahead for non-discrimination in the courts.

What Did the 7th Circuit Rule?

For many years LGBT advocates have been making the argument in court that Title VII of the Civil Rights Act of 1964, which prohibits employment and housing discrimination based on race, color, national origin, religion, and “sex” also, logically, prohibits discrimination based on sexual orientation and gender identity, since both pieces of one’s identity so intimately involve sex and gender. That is, if someone is fired because they are a woman dating a woman, then they are being discriminated against because of the sex of their romantic partner, and the discrimination would not have occurred if their romantic partner was a man.

The U.S. Court of Appeals for the 7th Circuit found this week that indeed, discrimination based on sexual orientation is naturally a form of sex discrimination and thus is prohibited under federal law. Read the full ruling here.

Chief Judge Wood wrote in the ruling: “Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).”

The 7th Circuit has jurisdiction over Wisconsin, Illinois, and Indiana. Wisconsin and Illinois already have state laws prohibiting discrimination based on sexual orientation (although Wisconsin lacks protections for transgender people).

Why Is This Ruling Historic?

Never before has a federal appeals court found that discrimination based on sex is already prohibited under the federal Title VII. In fact, nearly every federal appellate court has ruled the reverse, writing again and again for various reasons that Title VII was not intended to prohibit discrimination based on sex.

In lower federal courts, however, judges have been ruling in favor of LGBT plaintiffs under Title VII, especially in recent years. Just this fall, a judge in Pennsylvania wrote, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.” And the federal Equal Employment Opportunity Commission found in July 2015 that discrimination based on sexual orientation violates the Civil Rights Act, setting an interpretation for other courts to consider.

A three-judge panel from the 7th Circuit last summer ruled against Hively, but more because a three-judge panel is bound by existing precedent within the circuit. That’s why, when the full 7th Circuit agreed to hear the case, they have the power to reverse their precedent fighting that anti-gay discrimination is not prohibited (a precedent set at the 7th Circuit in 2000). “In light of the importance of the issue, and recognizing the power of the full court to overrule earlier decisions and to bring our law into conformity with the Supreme Court’s teachings, a majority of the judges in regular active service voted to rehear this case en banc,” Chief Justice Wood wrote.

Judge Wood continued: “The question before us is not whether this court can, or should, ‘amend’ ‘Title VII to add a new protected category to the familiar list of ‘race, color, religion, sex, or national origin.’ Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence.”

What About Employment Discrimination Based on Gender Identity?

While this ruling was limited to employment discrimination based on sexual orientation, the same argument remains true for discrimination based on gender identity – and other cases involving transgender plaintiffs are fighting in court to ensure full protections at work for transgender people, too.
In December 2011 Lambda Legal’s case Glenn v. Brumby successfully resulted in a ruling from the U.S. Court of Appeals for the 11th Circuit finding that discrimination based on gender identity amounts to sex discrimination and violates the plaintiff’s equal protection guarantees. The employer did not appeal the 11th Circuit ruling, and so Vandy Beth Glenn emerged victorious in the case. As a result, state employees in Georgia, Alabama, and Florida are protected by this ruling from employment discrimination based on gender identity.
Efforts to fully prohibit discrimination based on sexual orientation and gender identity are also under way in the United States Congress and in state houses across the country (see below).

What’s Ahead in the Courts?

Recent weeks have resulted in two other big rulings for employment non-discrimination: The 11th Circuit ruled against a plaintiff fired for her sexual orientation, and the 2nd Circuit Court of Appeals ruling, despite also falling short of a declarative victory, included two judges – including the Chief Judge – urging the full 2nd Circuit to revisit a longtime precedent limiting the scope of Title VII.

There’s an active field of litigation ahead – even just in federal appellate courts. Here’s a quick look:

  • 2nd Circuit (NY, VT, CT): In Christiansen v. Omnicon, where a 3-judge panel ruled just last week that it is bound by existing 2nd Circuit precedent to determine that Title VII does not preclude employment discrimination based on sexual orientation, it remains to be seen whether the legal team will seek an en banc argument from the full court.
  • 4th Circuit (VA, WV, MD, NC, SC)The ACLU’s Gavin Grimm v. Gloucester County School Board case – which involves a transgender boy seeking access to the boy’s room in his Virginia school, based on Title IX of the Education Amendments of 1972’s prohibits on sex discrimination – is now before the 4th Circuit, following full briefing at the U.S. Supreme Court. The 4th Circuit is also scheduled to hear argument in May in cases challenging two North Carolina laws: SB2 (which allows magistrates to cite their religious beliefs as a reason for not issuing marriage licenses to same-sex couples) and HB2 (which restricts restroom access for transgender people).
  • 5th Circuit (TX, MS, LA): On Monday the 5th Circuit heard arguments in two cases taking on HB1523, the heinous anti-LGBT religious refusal law passed by Mississippi in 2016.
  • 6th Circuit (MI, OH, TN, KY): Briefing is underway in a 6th Circuit case involving anti-transgender employment discrimination. In an extremely out-of-step lower court decision, a judge cited the federal RFRA as justification for a trans person’s firing.
  • 7th Circuit (WI, IN, IL): A ruling is also pending in the 7th Circuit’s hearing on a preliminary injunction allowing a transgender boy in Wisconsin to use the boy’s room at school. Oral argument was held in that case last week.
  • 11th Circuit (GA, AL, FL): Lambda Legal on Friday requested an en banc hearing in their Evans v. Georgia Regional Hospital case, seeking interpretation that Title VII prohibits employment discrimination based on sexual orientation.

What Else is Happening in the Fight for LGBT Non-Discrimination?

The fight for LGBT-inclusive non-discrimination, of course, is not limited to the court room. Even as we see tremendous and positive momentum in litigation, the country also needs explicit federal non-discrimination protections that comprehensively address discrimination LGBT people face in every aspect of their lives, in and beyond the workplace – including housing and public accommodations. Freedom for All Americans is working with state parters in states across the country to push ahead on proactive protections for LGBT Americans.


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