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Hullabaloo


Wednesday, April 05, 2017

 

Can't "remove the 'sex' from 'sexual orientation'"

by Tom Sullivan


Photo by Ludovic Bertron via Creative Commons.

"Federal law is catching up to public opinion," Greg Nevins of Lambda Legal told reporters Tuesday after a federal appeals court in Chicago ruled that longstanding civil rights protections against job discrimination cover lesbian, gay, bisexual, and transgender employees.

CNN reports:
"We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination," Judge Diane Wood wrote for the 7th Circuit Court of Appeals.

The ruling is a victory for Kimberly Hively, who sued Ivy Tech Community College, arguing that the school violated Title VII of the Civil Rights Act of 1964 when it denied her employment.

"Any discomfort, disapproval, or job decision based on the fact that the complainant -- woman or man -- dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex," Wood wrote. "That means that it falls within Title VII's prohibition against sex discrimination, if it affects employment in one of the specified ways," Wood added.
The three dissenting judges argued that "sexual-orientation discrimination is a distinct form of discrimination and is not synonymous with sex discrimination" and that courts have interpreted Title VII on that basis for decades.

But in her majority opinion, Wood writes:
It would require considerable calisthenics to remove the “sex” from “sexual orientation.” The effort to do so has led to confusing and contradictory results, as our panel opinion illustrated so well.
The Chicago Tribune adds:
The Chicago ruling followed a so-called en banc hearing of all the judges in the appeals court, with eight agreeing that the civil rights law prohibits discrimination because of sexual orientation, and three dissenting. The vote is notable because the 7th Circuit is considered a relatively conservative appeals court. Eight out of the 11 judges were appointed by Republican presidents.
The U.S. Senate is debating elevating Judge Neil Gorsuch to the U.S. Supreme Court. This is a decision that could wind up in his lap.

The Washington Post reports:
The ruling echoes those of a number of lower courts, which have also concluded that discrimination against gays is a prohibited form of sex stereotyping. It conflicts, however, with others, including a ruling last month by a three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta, which interpreted Title VII of the Civil Rights Act more narrowly and found that sexual orientation is not a protected class under that law.

A split in the circuits could set up a clash before the Supreme Court.
And so we return now to the Democrats' filibuster of Gorsuch in the Senate and Republican majority leader Mitch McConnell's threat to end the filibuster rule, about which Sen. John McCain of Arizona says, “Benjamin Franklin is somewhere turning over in his grave ... Why have a bicameral system?”