The LGBTQ community has just scored a major victory from an unexpected place: a Republican-appointed court. A Chicago federal appeals court has declared that LGBTQ employees are protected from workplace discrimination based on sexual orientation under the Civil Rights Act.
The ruling came from a lawsuit brought on by Kimberly Hively, an Indiana teacher who argued that the Ivy Tech Community College in South Bend had passed on hiring her because of her sexual orientation as a lesbian.
Judge Richard Posner clarified that the Civil Rights Act should protect employees based on sexual orientation. Originally appointed by Republican Ronald Reagan, Posner argued that the Civil Rights Act, created in 1964, should be seen as a living document that changes based on the times.
“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,” Judge Posner wrote, according to ABC News. Judge Diane Wood agreed.
“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,” Judge Wood argued, CNN reported.
ABC News notes that the 7th Circuit is a somewhat conservative court. Five of the judges in the majority were appointed by Republican presidents, meaning that the interpretation of the Civil Rights Act is changing significantly even among Republican-supported members of the court.
Out of the 11 judges, only three disagreed with the ruling. Judge Diane Sykes, who is up for consideration for the Supreme Court, wrote the dissent for the minority.
“We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions,” Sykes wrote. “It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act… But we’re not authorized to amend Title VII by interpretation.”
Through the 7th Circuit’s ruling, LGBTQ activists are hoping to gain more anti-discrimination protections. The ruling could give an opening to protect discrimination based on gender identity, too, if more federal appeals courts move to interpret “sex” as an indicator of gender identity. This seems to be the case with Posner, who argued lesbians are a “subset of women.” The same argument could be applied to transgender women, too.
Lambda Legal’s Greg Nevins represented Hively during the case, and he stressed that the ruling was a major victory for gay, lesbian, and bisexual employees throughout the United States. “This decision is [a] game changer for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: It is against the law to discriminate on the basis of sexual orientation,” he said.
