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Court Takes Major Step in Ruling Sexual Orientation Connected to Sex Discrimination

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On Tuesday, the full bench of the 7th Circuit made a powerful statement that times are officially changing. The court, in a 8-3 decision, overruled a series of prior decisions that had held “sex discrimination” is somehow different than “discrimination on the basis of sexual orientation.” And the best part? The court wasn’t even packed with a bunch of wacky liberals waving rainbow flags; this was just good jurisprudence, plain and simple.

Back when I was in law school in the mid-90s, discrimination against “homosexuals” (“LGBT” wasn’t quite a thing yet then) was often a hot topic for exams. Creative professors would test the limits of our flexible thinking by posing the question of how discrimination on the basis of sexual orientation should be evaluated legally. On one hand, sexuality had not been ruled a characteristic of a “protected class” in the way that race, religion, national origin, and gender had. Therefore, constitutionally, laws and policies that discriminated on the basis of sexual orientation needed only pass a minimum level of scrutiny to survive. On the other hand, those same laws could be interpreted as discriminating on the basis of gender (or as was the convention to say in past decades, on the basis of “sex”), which would dictate a much higher level of scrutiny. A law prohibiting same-sex marriage, for example, could be considered one that treats gay people differently from straight people; but that same law could also be understood as one that treats men and women differently. After all, if it were legal for a woman to marry a man, but not for a man to marry a man, that’s really a difference relating to gender, not sexual orientation. As an academic exercise, the debate was always an interesting one, which highlighted the importance of the various lenses through which we evaluate legislation.

As the legal dispute persisted, so too did questions of the nature of homosexuality itself. The nature vs. nurture question is a powerful one when grappling with the issue of constitutional protection. Under the Constitution, various groups receive the highest level of legal protection based on their “immutable characteristics” – things members of those groups are born with and cannot change. It is this concept of immutabilty that underlies the law protecting discrimination against a person’s national origin, race, or gender. Religion too, gets this special treatment, even though many would argue that it isn’t quite the same as one’s race or national origin. Those who understand sexual orientation as a biological, static characteristic argue that legally, it should receive the same protection as other such traits. Those who believe sexuality is a “lifestyle choice” argue that it deserves no more protection than classifications such as age, income bracket, or military history.

The complexity, but dramatic impact of these legal issues is often masked by the overly-simplistic “Love is Love is Love” logic that is well-intentioned, but legally impotent. But yesterday, an appellate court more than half-full of Republican appointees handed a victory to the LGBT community – and it wasn’t so much a victory for tolerance, as one for basic logic. The Court said what so many of us already know:

“it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”

At the center of the case is Kimberly Hively, a college professor who is a lesbian. Hively sued Ivy Tech Community College for discrimination under Title VII after she was denied at least six full-time positions over a number of years, and was later fired by the school. Hively alleges that if she had been a man married to or dating a woman, and all other factors had been the same, Ivy Tech would have promoted her. The 7th Circuit did not rule on the merits of Hively’s underlying case, but rather, on her right to bring the claim at all under Title VII, which prohibits employment discrimination on the basis of sex, race, color, national origin, or religion.

The 7th Circuit was cautious, and clarified that it wasn’t adding “sexual orientation” to Title VII’s list:

“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.”

While many champions of LGBT rights would be gratified to see sexual orientation take its rightful place among the standard list of protected classes, what the 7th Circuit did may well have made a more powerful and more effective legal statement.

Chief Judge Diane Wood explained that discrimination affecting gay people is about gender nonconformity:

“A policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex.”

By equating sexual orientation with gender for legal purposes, the Court created an important new result by using well-established principles. Legally-speaking, the most radical changes are often effectuated with just this kind of mix of the old and the new. And the 7th Circuit did not simply rest on statutory interpretation here; rather, it reminded litigants that times really have changed. The Court outlined history from Romer v. Evans (a 1996 case which struck down a Colarado law forbidding protection of LGBs), to Lawrence v. Texas,(a 2003 case throwing out a Texas statute criminalizing homosexual intimacy between consenting adults), then United States v. Windsor (the 2013 end of the Defense of Marriage Act), and finally Obergefell v. Hodges (2015), which established marriage as a fundamental liberty for all people. Both the law, and society’s understanding of sexuality is evolving, and the 7th Circuit is on board. What wider impacts the 7th Circuit’s decision will have remain to be seen, but if a bunch of judges in the conservative Midwest can see what’s right, that’s a great sign for things to come.

This is an opinion piece. The views expressed in this article are those of just the author.

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