July 28, 2016 at 9:15 pm EDT | by Chris Johnson
Court declines to rule anti-gay bias is gender discrimination
same-sex marriage, gay news, Washington Blade

A federal judge has determined anti-gay discrimination isn’t gender bias under current law.

In a blow to LGBT advocates making the case that anti-gay bias violates the prohibition on gender discrimination under the law, a federal appeals court on Thursday ruled it couldn’t reach that conclusion under current precedent.

U.S. Circuit Judge Ilana Rovner, an appointee of former President George H.W. Bush, wrote the 42-page decision on behalf of a three-judge panel on the U.S. Seventh Circuit Court of Appeals.

Although Rovner emphasizes throughout her opinion “it seems illogical to entertain” the idea laws against sex discrimination cover gender non-conformity, but not sexual orientation, she says she cannot issue a new ruling given precedent in the judicial circuit.

“Perhaps the writing is on the wall,” Rovner writes. “It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. But writing on the wall is not enough.”

The decision affirms the lower court ruling in the case, which was filed in 2014 by Kimberly Hively against her former employer, the Indiana-based Ivy Tech Community College, where she worked as part-time professor. The lawsuit alleged the school violated Title VII of the Civil Rights Act of 1964 by denying Hively full-time employment and promotions because she’s a lesbian.

Greg Nevins, counsel and employment fairness strategist for Lambda Legal, which is representing Hively, said in a statement the ruling calls for judicial reconsideration and passage of the Equality Act, which would explicitly prohibit anti-LGBT discrimination in federal law.

“The court acknowledges that this is the wrong outcome and repeats over and over again that the distinctions between discrimination on the basis of gender nonconformity, which is prohibited by Title VII, and sexual orientation discrimination — which the Court says isn’t prohibited under Title VII — is an arbitrary line; the distinction creates ‘an odd state of affairs’ because it’s a ‘false distinction,’” Nevins said. “Nevertheless, the Court felt bound by prior Seventh Circuit case law. The writing is on the wall, the precedents the Court felt bound by need to be reconsidered and we need Congress to pass the Equality Act.”

Nevins told the Washington Blade that Lambda Legal, is “considering both options” of seeking “en banc” reconsideration before the full Seventh Circuit or filing a petition for certiorari before the U.S. Supreme Court.

Jeffery Scott Fanter, a spokesperson for Ivy Tech Community College, denied the school engaged in any wrongdoing in the aftermath of the ruling.

“Ivy Tech Community College values and embraces diversity,” Fanter said. “It is an equal opportunity employer that does not condone, and in fact explicitly prohibits, employment discrimination based upon a person’s sexual orientation. In 2014, Kimberly Hively alleged that she was not promoted due to her sexual orientation. Ivy Tech takes such a claim very seriously and steadfastly denies Hively’s allegations.”

LGBT advocates criticized the ruling as erroneous in the aftermath of an increasing number of courts determining anti-gay bias constitutes gender discrimination under current law. The U.S. Equal Employment Opportunity Commission, the agency with charged with federal workplace civil rights law, determined last year in the case of Baldwin v. Foxx claims anti-gay discrimination are covered under Title VII.

Tico Almeida, president of the LGBT group Freedom to Work, said the Seventh Circuit ruling is based on “prior and outdated rulings of the Seventh Circuit” and judicial reconsideration could correct it.

“Thankfully this incorrect decision is not the final word,” Almeida said. “Our LGBT movement is still waiting on rulings in similar cases pending before other federal circuit courts, and we should keep pushing until we get this issue to the U.S. Supreme Court.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said the decision against Hively is “baffling” because the court acknowledges there’s no way to carve out sexual-orientation discrimination claims other types of gender discrimination.

“The court explains why sexual orientation discrimination is inherently based upon gender stereotypes and notes that its prior precedents, excluding such claims from protection under Title VII, have left lower courts with no clear guidance and led to inconsistent and arbitrary results,” Minter said. “The court also acknowledges that excluding sexual orientation claims creates a direct conflict with the court’s race discrimination precedents, which recognize that discrimination against someone for being in a relationship with a person of a particular race is prohibited race discrimination under Title VII. And yet, inexplicably, after explaining in such detail why its prior precedents are wrong, the court declines to overrule them, calling upon the Supreme Court or Congress to intervene.”

Minter added the result of the decision will be to “prolong the current unstable and unfortunate state of affairs” in which lower courts have no principled guidance on handling sex discrimination claims by lesbian, gay or bisexual plaintiffs.

“It makes no sense to recognize that prior precedents are wrong and yet to refuse to reconsider them,” Minter said. “Such a ruling damages the credibility of courts and diminishes respect for the law. This is not a tenable situation, and the net effect of today’s decision is likely to be to encourage other circuits to hold that discrimination based on sexual orientation is sex discrimination.”

Xochitl Hinojosa, a spokesperson for the Hillary Clinton campaign, said the ruling demonstrates the need for congressional action.

“Hillary Clinton supports efforts underway in the courts and federal government to clarify that under federal statutes ‘sex discrimination’ includes discrimination on the basis of ‘gender identity’ and ‘sexual orientation,'” Hinojosa said. “Court decisions like this only reinforce the urgent need for Congress to pass the federal Equality Act to provide LGBT people with explicit and comprehensive protection from discrimination in all facets of American life.”

UPDATE 8/4/2016: Nevins said Lambda intends to pursue “en banc” reconsideration of the 7th Circuit ruling before the full court.

“Our current intention is to seek rehearing en banc and ask the full court to effect the overruling that the panel said would bring rationality and consistency to the interpretation of sex discrimination under Title VII,” Nevins said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

1 Comment
  • I’ve repeatedly told you that unless the SCOTUS rules that current law covers LGBT, any rulings by the EEOC won’t hold water especially with social conservatives who have repeatedly said that LGBT are not covered by current law. The Bush Administration often used such arguments. They said Bush could not even sign ENDA into law as it was be unconstitutional.

    Even the SCOTUS has historically been very reluctant to rule that we are a suspect class despite many cases before it that it could have used to do so. It always falls short of that. As such, it becomes even more important to make sure that the next President appoints open-minded fair people to the courts in particular the SCOTUS which has given us most of our current legal rights through its rulings. You won’t get such people under Trump/Pence.

    Under the current Congressional majority we won’t move forward on favorable legislation so the courts are the only hope for justice.

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