7th Circuit Decision: 'Ultimate Case'

BY JAY KAPLAN

Two very important and significant court decisions impacting LGBT rights were issued last week. The first, Hively v. Ivy Tech Community College of Indiana, is a 7th Circuit Court of Appeals ruling that "discrimination on the basis of sexual orientation is a form of sex discrimination" prohibited by Title VII (the federal law that bars employment discrimination based on sex). The lawsuit was filed by Kimberly Hively, a lesbian who was working as an ajunct professor at Ivy Tech. Despite years of successful teaching, her attempts to secure a full-time tenure position were unsuccessful and finally her contract was not renewed under circumstances that led her to believe that it was because of her sexual orientation. Hively is the first federal appellate court decision to embrace this legal theory. The 7th Circuit covers the states of Indiana, Illinois, and Wisconsin, and this decision will especially help LGBT people in Indiana who have no specific protections against discrimination in their state civil rights laws.

What makes this decision especially authoritative is that it was decided upon rehearing of an appeal "en banc." En banc is a term in which an appeal is heard by all of the active judges on a federal Circuit Court of Appeals instead of by a three-judge panel that typically decides appeals. Of the 11 judges who heard this appeal, eight agreed that current federal law prohibiting sex discrimination also protects against sexual orientation discrimination. This decision was non-partisan in that five out of the eight majority judges were appointed by Republican Presidents.

While there have been a number of federal appellate decisions that have held that discrimination against LGBT people for failure to conform with gender stereotypes (as to how men and women should look, act, dress, love, etc) is illegal sex discrimination, the 7th Circuit decision says that not being heterosexual represents the "ultimate case" of not conforming to sex stereotypes because "it is based on assumptions about the proper behavior for someone of a given sex." In other words, LGBT people inherently will not conform to gender stereotypes and that fact more often than not is the impetus for

discrimination.

As the 7th Circuit further explained that "[a]ny discomfort, disapproval, or job decision based on the fact that the complainant- a woman or man- dresses different, speaks different, or date or marries a same-sex partner, is reaction purely based on sex."

The decision is consistent with federal agencies, such as the Departments of Education, Health and Human Services, Labor, HUD, as well the Equal Employment Opportunity Commission (EEOC), which enforces Title VII and investigates employment discrimination complaints. The decision is also consistent with numerous federal court decisions (including the 6th Circuit, which covers Michigan) that have held that gender identity discrimination against transgender persons is barred as a form of sex discrimination.

The 7th Circuit decision creates a split in the Circuit Court of Appeals that makes it increasingly likely that the U.S. Supreme Court will eventually have to weigh in on this issue to resolve it nationally.

While Ivy Tech College has announced it will not seek Supreme Court review, the 7th Circuit's decision makes it likely that other federal courts will follow their lead. Even if these appellate courts do not agree with the 7th Circuit, the losing LGBT plaintiff in another circuit would have a strong argument for the Supreme Court to hear an appeal, given the conflict that would be created between the 7th Circuit's decision and theirs.

The second important decision (Smith v. Avanti) came from a federal district court in Colorado, where Judge Raymond Moore held that a landlord discriminated against Tonya and Rachel Smith when she refused to rent to them because of their "uniqueness." The Smiths are a same-sex couple with two children. Rachel is transgender. The landlord told the couple that she had kept a low profile for 30 years, but that wouldn't be possible if she rented to the Smiths because of their "unique relationship".

The Court found that the landlord discriminated against the Smith family because they did not conform to traditional gender stereotypes in violation of the Fair Housing Act, which prohibits discrimination on the basis of sex in housing. Judge Moore's opinion marks that first time that a federal court has ruled that the Fair Housing Act's sex discrimination prohibitions apply to discrimination based on stereotypes about sexual orientation and gender identity.

Both case decisions are significant steps forwards towards LGBT equality. The Lambda Legal Defense and Education Fund are to be applauded for their work on both of these cases. The decisions also point out just how high the stakes are for our community in terms of the make-up of the federal judiciary. Like many other minority groups, the LGBT community often depends on courts to protect our equality and freedom, particularly when we live in a State like Michigan where the current legislative majority is hostile to our issues (and has consistently failed to amend our State civil rights laws to specifically include sexual orientation and gender identity). In finding that civil rights laws prohibiting sex discrimination protect LGBT people, federal (and some state) courts are taking in account societal change and holding that LGBT people deserve equal dignity and respect. Rather than seeing our constitution as frozen in time, they see it as a living breathing document that can and should address current issues in society. This is contrasted with approach of originalists, like the recently confirmed Supreme Court Justice Neil Gorsuch, who believes that courts should look "backward not forward."

Indeed Gorsuch has expressed expressed disapproval of civil rights impact litigation, writing in 2005 that "American liberals have become addicted to the courtroom ... as the primary means of effecting their social agenda on everything from gay marriage" to other issues. Candidate Trump announced his intention during the 2016 presidential campaign to appoint judges to the federal bench who are originalist and this could have a significant negative impact on our ability to move forward on LGBT civil rights, while other branches of government continue to stall.

The ACLU of Michigan has been a champion for our equality for decades. Jay Kaplan, the organization's staff attorney of the LGBT Project, has for years provided us a thoughtful, serious and effective voice for LGBT equality. This week's column is yet another example of how the ACLU fights for us, and we must support them together. That's why BTL is offering to double your donation to the ACLU by April 17. To donate, visit the "BTL's Challenge Grant to the ACLU of Michigan" page. Make your gift and BTL will match your gift 100 percent.
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