In a big win for LGBT employment rights today, the U.S. Court of Appeals for the 7th Circuit issued an en banc ruling in Hively v. Ivy Tech Community College of Indiana that discrimination on the basis of “sex” includes sexual orientation under Title VII of the 1964 Civil Rights Act, the primary federal law for employment discrimination claims. (En banc means that all the judges on the court participated, as opposed to the usual panel of three. An appeals court will sometimes rehear cases en banc to settle questions of exceptional public importance when the lower courts are divided.) The decision reversed a previous ruling by a three-judge panel of the same court, which had been sympathetic to the plaintiff’s arguments but did not believe it had authority to overrule past case law.

Activists and progressive politicians have been trying for a long time to pass a federal Employment Non-Discrimination Act (ENDA) specifically for LGBT protections, a goal that looks farther away than ever under the current administration. Today’s decision, especially if the reasoning is picked up by other courts, points out a better route to the same result. Politically and symbolically, Hively puts LGBT rights on a firmer foundation by showing that we are all fighting the same battle. Freedom from gender-expression stereotyping and homophobia is contiguous with the classic feminist struggle against sexual harassment and the glass ceiling, and even with the overturning of bans on interracial marriage. This is a welcome opportunity for intersectionality at a time when some powerful voices are hijacking feminism to scapegoat trans people.

In today’s case, Kimberly Hively was a part-time adjunct professor at defendant’s college who alleged she was repeatedly passed over for a full-time position because she is an out lesbian. The college said this was not a legitimate basis to sue under Title VII. However, the court concluded that you can’t have sexual orientation discrimination without unequal treatment based on gender–if Hively were a man in a romantic relationship with a woman, all other factors being equal, she would have been promoted (assuming her factual claims are correct). Moreover, by analogy to Loving v. Virginia, “a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.” (Slip opinion, pg.15) No separate right to “interracial marriage” or “same-sex relationships” need be found in the statute. If it’s racial discrimination to penalize a white person because his partner is black, it’s sex discrimination to penalize a woman because her partner is not a man.

This result eliminates the paradox that the Supreme Court’s 2015 ruling in Obergefell gave gays and lesbians the constitutional right to marry, but they could still be fired by an anti-gay employer for exercising that same right. (For a poignant fictional illustration, watch the 2014 film “Love is Strange”.)

Some highlights from the majority opinion:

Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and eve rything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. (We take the facts in the light most favorable to her, because we are here on a Rule 12(b)(6) dismissal; naturally nothing we say will prevent Ivy Tech from contesting these points in later pro ceedings.) This describes paradigmatic sex discrimination. To use the phrase from Ulane, Ivy Tech is disadvantaging her because she is a woman. Nothing in the complaint hints that IvyTech has an anti-marriage policy that extends to heterosexual relationships, or for that matter even an anti-partnership policy that is gender-neutral.

Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. 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 we re policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man). (pgs.12-13)

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Today’s decision must be understood against the backdrop of the Supreme Court’s decisions, not only in the field of employment discrimination, but also in the area of broader discrimination on the basis of sexual orientation… [cites cases decriminalizing same-sex intercourse, overturning the Defense of Marriage Act, and declaring marriage equality to be a fundamental liberty under the 14th Amendment]

This is not to say that authority to the contrary does not exist. As we acknowledged at the outset of this opinion, it does. But this court sits en banc to consider what the correct
rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.

The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line. (pgs.19-21)

Meanwhile, a three-judge panel of the Second Circuit, the federal appeals court that includes New York, ruled last week that a gay advertising executive could pursue a Title VII sex discrimination claim against a supervisor who allegedly bullied him with gender stereotyping, such as slurs about effeminacy and AIDS. From the Rewire article by Imani Gandy:

Matthew Christiansen, an openly gay HIV-positive man, filed a lawsuit in 2015 against his employer, DDB Worldwide Communications Group, where he works as a creative director. Christiansen alleges that his direct supervisor engaged in a pattern of humiliating harassment targeting his sexual orientation and “effeminacy” in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of sex, among a host of other factors…

…In the Second Circuit—as across the country—Title VII simply does not prohibit discrimination on the basis of sexual orientation.

The law does, however, prohibit discrimination on the basis of gender stereotyping, as stated in the landmark U.S. Supreme Court ruling in Price Waterhouse v. Hopkins. This ultimately saved Christiansen’s lawsuit.

Judge Failla acknowledged that discrimination on the basis of nonconformity to sexual stereotypes was permissible in the Second Circuit. But she also pointed out that the court in Simonton and Dawson said that this “should not be used to bootstrap protection for sexual orientation into Title VII.”

That’s what Judge Failla thought Christiansen was doing: Although Christiansen alleged that he was targeted because of “animus towards a gender stereotype,” and his complaint included several instances of gender stereotyping behavior, the district court still found that he was essentially trying to bootstrap a sexual orientation claim to his claims about gender stereotyping. In other words, she felt Christiansen’s case was really about sexual orientation discrimination, and not gender stereotyping discrimination.

A three-judge panel of the Second Circuit disagreed.

Noting, somewhat regretfully, that it was without power to reconsider Simonton and Dawson—because the court is “bound by decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court”—the panel, citing Price Waterhouse v. Hopkins, found that the district court had erred in dismissing Christiansen’s claims of discrimination on the basis of gender stereotyping.

In Price Waterhouse, plaintiff Ann Hopkins said she had been denied a promotion at work because she was “too macho.” Her employer told her that she should wear makeup, style her hair, and act more feminine. Six members of the Supreme Court agreed that such comments were indicative of gender discrimination. They held that Title VII barred discrimination because of biological sex, but also barred gender stereotyping—discrimination based on someone failing to act and appear according to expectations defined by gender.

The Second Circuit found similar gender discrimination in Christiansen’s allegations…

So it sounds like the panel opened the door (and pointed to it vigorously) for a Second Circuit en banc reconsideration similar to Hively. This being one of the more liberal jurisdictions, I’m hopeful about the outcome. Gandy’s article cites arguments from amicus briefs that succeeded in the Seventh Circuit a week later. (An amicus brief may be submitted by a person or organization who is not a party to the lawsuit but has a stake in the outcome.)

According to an amicus brief filed by a coalition of civil rights groups including the American Civil Liberties Union, the National Women’s Law Center, and the National Partnership for Women and Families, “Discrimination on the basis of sexual orientation is sex discrimination under the plain meaning of the term, because sexual orientation turns on one’s sex in relation to the sex of one’s partner.”

“Consideration of an employee’s sexual orientation therefore necessarily involves consideration of the employee’s sex,” the brief continued.

As amici point out in their brief, since 2011, the Equal Employment Opportunity Commission (EEOC)—which is in charge of enforcing Title VII—has recognized that discrimination against LGBTQ people necessarily involves discrimination on the basis of sex, because such discrimination turns on societal expectations that women should be attracted only to men and that men should be attracted only to women. That year in Veretto v. Donahoe, the EEOC said that Title VII prohibits workplace discrimination “motivated by the sexual stereotype that marrying a woman is an essential part of being a man.”

And certainly, the sea of change regarding LGBTQ rights—from the repeal of Don’t Ask Don’t Tell to the Supreme Court’s ruling in Obergefell v. Hodges that laws banning same-sex marriage are unconstitutional—has shifted the perception regarding protections. Indeed, in 2015, the EEOC issued a decision that was binding on federal agencies (although not on federal courts) stating that claims for sexual orientation discrimination are permissible under Title VII.

The wild card, as always, is the Trump administration, which could abruptly reverse course on EEOC policy, just as they did last month in withdrawing Education Department guidelines protecting transgender students under Title IX of the Civil Rights Act. Time to find out how strong our constitutional separation of powers really is.