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Will the Supreme Court Decide Whether Gays Are Protected by Title VII?

As I predicted last week, a conflict among the circuits now exists on whether gays are protected from workplace discrimination. In yesterday’s landmark opinion in Hively v. Ivy Tech Community College, the Seventh Circuit became the first court of appeals to find homosexuality broadly defined is included in Title VII’s protection against sex-based discrimination.

The Seventh Circuit’s decision creates a direct conflict with the Eleventh Circuit’s opinion I wrote about last week in Evans v. George Regional Hospital. The court found discrimination on the basis of sexual orientation was not included in the prohibition against gender stereotyping as a type of sex-based discrimination. This “circuit split”, as lawyers call it, makes it much more likely that the Supreme Court will soon consider whether discrimination based on sexual orientation is really a form of sex discrimination. Assuming Neil Gorsuch joins the Supreme Court in the very near future, I would predict that this case is very likely to end up being a 5-4 decision with Justice Kennedy (as in the past) being the deciding vote.

Since I am on a roll in this prediction business, let me suggest that Judge Posner’s concurring opinion may be more persuasive with Justice Kennedy than any brief filed on behalf of LGBT employees. Judge Posner insightfully stated:

I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.

Judge Posner is likely correct that most, if not all, of the members of Congress who enacted Title VII in 1964 would not agree that sexual orientation was included in the definition of “sex” as the term was used in the Act. But as Judge Posner points out, using today’s understanding of the term “sex” rather than blindly sticking to the original understanding of the term is really about the fact that “we live in a different era, a different culture.”

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.