What Does That Civil Rights Act Victory for LGBT Employees Actually Mean?
Yesterday, the Seventh Circuit Court of Appeals resoundingly said that discriminating against someone because they are lesbian, gay or bisexual is also a form of sex discrimination. As one judge said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”
This Lambda Legal victory is a wave cresting across the country: LGBT people are protected from discrimination by the law.
Not new law, not different law — the same Civil Rights Act that protects all of us from discrimination because of race, color, religion, sex or national origin also bars discrimination based on sexual orientation and gender identity.
What does this mean for transgender employees?
In short: nothing new. Because courts in four federal circuits have already held that discriminating against someone because they are transgender or gender non-conforming is sex discrimination, and it is against the law.
This is one of too few moments in our movement where protections for trans people are out ahead of protections for LGB people. Victories on behalf of transgender plaintiffs like Vandy Beth Glenn paved the way for this win. Beginning in 2003 federal courts have held that being fired because of your sex is, well, sex discrimination. As one judge said, what else would you call it?
And six circuits have held that discrimination against LGBT people based on sex stereotypes — the essence of anti-LGBT discrimination — is against the law.
Who’s covered by this decision, and why is it such a big deal?
The decision immediately provides federal employment protection to lesbian, gay and bisexual people throughout Indiana, Illinois and Wisconsin. It is particularly important to those living in Indiana, who currently have no state protections against sexual orientation discrimination in employment.
But its impact is far broader. An entire circuit sits together, “en banc,” very rarely, and primarily to consider reversing past precedent. In doing so here, the Seventh Circuit knocked the wind out of outdated case law, and overruled a case from 1984 that has been used to hurt transgender and queer people in many courts.
Kim Hively’s case was decided 8–3, on a court made up of mostly Republican appointees. It was written by Judge Diane Wood, with a concurrence by Judge Richard Posner, one of the most famous federal judges in the country. It sends a powerful signal to the other federal circuit courts around the country that are considering the same issues right this minute — a petition for en banc review is already pending in the Eleventh Circuit on behalf of Lambda Legal client Jameka Evans, and our partners at ACLU, GLAD and NCLR are litigating cases in other federal courts.
How was this not already the law?
Our law evolves as our society evolves. When the Civil Rights Act was passed in 1964, white-collar offices like in Mad Men were the norm, and there were 14 women (total!) in Congress.
Early cases enforcing sex discrimination under the Civil Rights Act fought discrimination and stereotypes, like a case about men’s right to be nurses, which was brought by an ACLU lawyer you may have heard of named Ruth Bader Ginsburg. Later cases established that sexual harassment is against the law — and the reason it’s illegal for your boss to grab you at work is that it’s sex discrimination (whether our President knows it or not).
While Congress has still not passed a law that expressly protects LGBT people nationwide, we are winning that protection in court. And that’s what happened yesterday.
As activists, it is time to change our message: rather than tell LGBT people that they are not protected from discrimination at work, we must ensure our community knows that the law does protect them. And if they are harassed or discriminated against because of their sexual orientation or gender identity, they can and should take action.
As Thomas Jefferson said, “As new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
Yes, this issue will end up at the Supreme Court soon.
Though likely not Kim Hively’s case with us, as her former employers at Ivy Tech Community College have said they will not appeal.
We will keep fighting until then, and if we have Justices who follow the law, we will keep winning.
Justice Scalia, of all people, wrote one of the key court decisions we rely on now in our cases. It said to just apply the words of the law as written without inventing a special “gay exception” that Congress never wrote.
Kim Hively loved her job, but she was fired because she is a lesbian.
More and more courts around the country are saying clearly: that’s wrong.
Our movement is about love and pride. Pride in yourself and your work, and the freedom to love and to be treated equally. That’s what we’re fighting for, and that’s why we will win.