7th Circuit Victory for Lesbian Worker Shows Why Judges Matter
On April 4, 2017, in a case called Hively v. Ivy Tech Community College, the Seventh Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex, protects lesbian, gay, and bisexual employees. Reversing several of its earlier decisions, the Seventh Circuit became the first federal appeals court to conclude that “discrimination on the basis of sexual orientation is a form of sex discrimination.”
This landmark ruling advances one of the most important goals of the LGBT movement — obtaining nationwide anti-discrimination protection for LGBT workers. Along with the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court, this ruling underscores just why the courts are so important to the future of our movement.
For years, LGBT advocates and allies have worked hard to pass state and federal anti-discrimination laws. In 2015, Sen. Jeff Merkley and Rep. David Cicilline introduced the Equality Act, a comprehensive federal bill that would prohibit sexual orientation and gender identity discrimination in employment, housing, and public accommodations. But faced with conservative majorities in many state legislatures and the U.S. Congress, our progress on the legislative front has been grueling and slow. In contrast, the federal courts have become increasingly receptive to claims by LGBT people brought under federal sex discrimination laws.
In addition to the Seventh Circuit’s ruling in favor of a lesbian plaintiff in Hively, a number of federal courts of appeals have recognized that Title VII and Title IX, which prohibits sex discrimination in public schools, protect transgender people. Across the country, federal courts are hearing these sex discrimination claims and, increasingly, ruling in favor of LGBT plaintiffs. In these cases, one of the most common themes is that courts must apply our nation’s laws to reflect society’s growing recognition that LGBT people deserve equal dignity and respect and must be included on equal terms. In Hively, Judge Richard Posner, a prominent and highly respected conservative jurist, wrote a separate opinion to point out the importance of judges taking these societal changes into account: “We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.”
In stark contrast, President Trump is seeking to pack the Supreme Court and the federal bench more broadly with judges who, in the chilling words of our newest Supreme Court Justice Neil Gorsuch, believe that courts should look “backward, not forward.” The Seventh Circuit decision in Hively illustrates the importance of having judges who, unlike strict originalists like Gorsuch, understand the need to take societal change into account. Of the 11 judges who heard the case, eight ruled in favor of the plaintiff, Kimberly Hively, who was denied full-time employment and eventually lost her job after she gave her girlfriend a goodbye kiss in the car on her way into work. Judge Diane Sykes, who authored an opinion on behalf of the three dissenting judges, took the majority to task for departing from what she considered to be the “original” meaning of Title VII. Citing former Supreme Court Justice Antonin Scalia, one of the most conservative and anti-LGBT judges in our nation’s history, Judge Diane Sykes wrote: “Is it even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation? The answer is no, of course not.”
April 10, 2017 – Advocate.com, by Shannon Minter and Chris Stoll
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