Kimberley Hively says that starting in 2014, she was the victim of workplace discrimination on the basis of her identity as a lesbian at Ivy Tech College; according to Hively, she was denied a promotion six times. Lambda Legal took her case, and yesterday a federal appeals court ruled in her favor: specifically, they said that Title VII of the Civil Rights Act of 1964, which addresses discrimination on the basis of sex, includes discrimination against employees on the basis of sexual orientation.
Hively’s case is important because it may end up helping to form long-term legal precedent regarding the interpretation of Title VII, and whether it can be used to protect LGBT employees in the future. As Yvonne wrote about Hively’s case in 2016, “a three-judge panel reviewed the case and ruled that discrimination based on sexual orientation isn’t protected by Title VII of the 1964 Civil Rights Act.” In March, an appeals court in the Eleventh Circuit came to the same conclusion in the case of Jameka Evans, a security guard who suffered harassment at work for being a gender nonconforming lesbian.
Both times, judges agreed that Title VII’s language about sex discrimination didn’t extend to discrimination against an employee based on their sexual orientation, although gender conformation may be relevant; in Evans’ case, Judge Jose Martinez said “that Evans could amend her suit to make a case that she was discriminated against due to gender stereotyping, given her masculine gender presentation.” It’s significant, therefore, that the new ruling on Hively’s case included the statement “I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.” The court that made this new decision is generally considered conservative, and the judge who wrote that sentence was appointed by Reagan.
Hively’s case may well end up before the Supreme Court, setting the scene for a far-reaching and longstanding ruling on how Title VII should be interpreted. If the Supreme Court interprets the law as affirming the rights of LGBT employees, it could make a huge difference for people throughout the US. Right now, it’s up to individual states to pass laws requiring fair treatment of LGBT employees, and many states haven’t; it’s legal in many parts of the US to fire or refuse to hire someone because of their sexual orientation, gender presentation and/or trans status. A Supreme Court ruling could change all that, instead solidifying the federal Civil Rights Act as something upon which LGBT employees can rely.
Of course, this is an example of how crucial a difference it will make whether Neil Gorsuch is confirmed to the Supreme Court — as of the writing of this piece, Democrats are strenuously opposing it, although Republicans can still change Senate laws to try to pull the ground out from under them and force the confirmation through. We can’t know exactly how Gorsuch would rule on this particular case; his record as a judge has been anti-LGBT more often than not, and he leans toward a literal and historically grounded interpretation of law, meaning that he may argue the lawmakers in 1964 didn’t intend Title VII to apply to LGBT identities. Gorsuch also has a history of siding with employers and not workers in discrimination cases, as in the case of a woman who was denied extended leave when she had cancer and has since passed away. Most importantly, Gorsuch has actually had occasion to weigh in on the interpretation of Title VII before, in the case of Kastl v. Maricopa County Community College District:
“Judge Gorsuch, sitting by designation on the U.S. Court of Appeals for the Ninth Circuit, joined an unpublished opinion that, while recognizing that a transgender person can state a claim for sex discrimination under Title VII based on a theory of gender stereotyping, ultimately ruled against the plaintiff. The employer had barred the plaintiff from using the female restroom until completing gender-confirmation surgery. The court held that “restroom safety” was a non-discriminatory reason for the employer’s decision.”
Based somewhat speculatively on that, it would seem that Gorsuch would likely agree with the judges’ rulings previous to this week; that Title VII can apply to perception of gender conformity, but not sexual orientation per se.
Even if Gorsuch somehow isn’t confirmed, and no other justice is either, there are also risks to having this case heard by a court with eight justices on the bench. If they tie with a “split vote,” it would mean that no decision is made and the verdict reverts to the last ruling of the previous appeals court — and it would only apply to Hively, not create any further legal precedent for the rest of the nation.
The Trump administration has already managed to make it clear in its first 100 days that it isn’t interested in protecting the rights of LGBT people at work or school; between rescinding the guideline that trans and gender nonconforming students be able to use the facilities of their choice and rescinding the executive order that asked federal contractors to be accountable and document that they weren’t discriminating, the trend is obvious. It remains to be seen what part the Supreme Court will play in the current chapter of LGBT citizens’ fight to be treated equally in all facets of public life.