Big ruling: seventh circuit decides sex discrimination includes sexual orientation discrimination

One of the most contentious issues in contemporary US law is whether statutes that protect people from sex discrimination (like Title VII) also protect people from sexual orientation discrimination.

The argument is that if you would fire a woman who dates women but not an identical man who dates women, then you have discriminated on the basis of sex.

Today’s Seventh Circuit decision is basically one long and varied discourse on the role of courts and statutory interpretation. Worth a read! The majority concludes that sex discrimination includes sexual orientation discrimination. So, for debate: Did they get it right?

Let me guess: The liberals will think they got it right and the conservatives will think they got it wrong. :slight_smile:

As for me, if this is concerning the government, then yes I think they got it right. If it is concerning private individuals or businesses, then I think they got it wrong. But then, I’ve always believed that the government should confine itself to policing discrimination by the government, and not by the private sector. I realize that puts me in an odd-ball category, but so be it!

As for whether they read the tea leaves correctly in interpreting the Supremes, I would prefer they left up to the actual Supremes to do that and not try to stretch things beyond what that august body has done.

The Court isn’t concerned with what the law should be but what it is.

The question related to the applicability of Title VII of the 1964 Civil Rights Act’s prohibition on sex discrimination, to prohibition of discrimination on the basis of sexual orientation. The argument they ultimately accepted essentially says that if you wouldn’t fire a man because of that man’s sexual attraction to women, you’re discriminating on the basis of sex if you fire a woman with the same sexual preference.

The Supreme Court hasn’t dealt with this particular question yet, at all. This is how the judiciary works: cases start low, and each stage makes its own decision; if a higher level finds reason to do so, they’ll consider it themselves; if not, they’ll let things be as the lower court decided.

Do you feel that way even about race discrimination?

Well, duh. But that doesn’t mean the lower court has to stake out new ground. I know that all the cool kids want to do that, but they don’t have to.

They’re not “staking out new ground,” they’re answering a straightforward question put before them: was Kimberly Hively a victim of sex discrimination? And they’re trying to come up with the best answer they can based on the relative merits of the arguments made by the parties involved.

If the Supreme Court hasn’t ruled, the Court of Appeals must necessarily “stake out new ground” in the sense of offering a new interpretation of the law.

Interpreting the statute as to a new issue will always either create a new claim (the statute includes X) or a new defense (the statute doesn’t include X). Either way, it’s new ground.

I don’t mean this as snark or a gotcha. I regard you as somebody who I can engage in a reasonable discussion with, even on issues over which we disagree.

So I would like to ask what your position is on the issue of discrimination. How do you feel discrimination by private individuals or businesses should be addressed, if not by government interference? Do you feel there are other non-governmental mechanisms that will work against discrimination? Or do you feel discrimination is just an evil we (or at least some people) have to live with?

Since I am unfortunately not trained in the law I don’t remember the exact terms, but up to now, if I understand correctly, courts have held that sexual orientation did not rise to the same level of protection as race, sex, religion etc. Decisions such as the ones on marriage equality had to be made on different bases than Title VII, didn’t they? In fact, if Title VII had been deemed to have applied, the issue would not have had to go to the Supreme Court.

So now this Circuit is re-defining discrimination based on sex to include discrimination based on sexual orientation. If you can’t fire a person just for being a woman, then you can’t fire a person just for being a non-standard (i.e. non-hetero) woman. If you can’t fire a man for loving a woman, then you can’t fire a woman for loving a woman.

To me this seems brilliant and elegant, and makes me wonder why it hasn’t been put forward before; or if it has, why it didn’t work before. It almost seems too easy.

I eagerly await the more scholarly legal explanations of why this will or will not change everything about laws and court decisions affecting sexual orientation.

I don’t have time for a longer reply, but this argument was raised in the marriage cases. Some courts accepted it. Others rejected it. The Supreme Court didn’t reach it.

Of course, it’s slightly different in the constitutional context than under Title VII.

Actually, I wish that the Supreme Court case that established the right of same-gender couples to marry had relied upon this thinking. It’s much more straight-forward, and rather more defensible. It also doesn’t lead inevitably to concluding that polygamy must also be acceptable, etc.

Are you implying that people’s hearts and minds can never change, except by way of government interference? Most Americans today are not nearly as racist or sexist or homophobic as previous generations were. Is the government responsible for this, or are the evolving laws a consequence of this change?

Interracial marriage didn’t get majority public support until decades after it was legal across the country. While some people’s hearts and minds may change eventually, dealing with the more clearly negative elements of bigotry is a lot easier when you have the force of the law on your side. Are you implying that the correct way to respond to a great injustice is to wait for everyone to eventually come around on it?

At first I thought this was about this court case, but that’s the 5th Circuit Court of Appeals. It does look like recent Republican efforts to pass “religious liberty” bills is earning us another season of legal challenges re LGBT rights.

I was responding to “discrimination by private individuals or businesses”, not at all the same as laws against interracial marriage.

Yes, this, exactly.

“I’m sorry, [person of minority X], you have to wait to be treating like a real human being by your fellow citizens, because it makes me uncomfortable to have the government interfere with personal prejudice. You should be treated equally about two hundred years after your death. Hope that works for your schedule!”

In this country, our most important laws about race and equality were not a consequence of massive, sweeping societal change.

The abolition of slavery? A spoil of war forced upon a defeated population. Every single landmark case from the Civil Rights Era? The military wasn’t assembled in Little Rock because it made a good photo op. And so on.

In almost every circumstance, it was the result of backwards people being forced, quite against their will, to stop applying the weight of law to their personal bigotries. Then attitudes change as subsequent generations spend their formative years under more progressive governments.

So no, evolving laws are not a consqueunce of hearts and minds changing. At least not in the way you’re proposing. American progressivism goes like this:

  1. Hearts and minds change in more progressive parts of the country.
  2. Jusssst the right mix and right amount of lawmakers and judges create progressive laws or strike down conservative ones.
    3a) The more moderate portions of the country obey the new status quo and people in those parts of the country slowly change their views.
    3b) The people in extremely conservative parts of the country find ways to ignore or resist the new laws because the government doesn’t tell them who to stop hating. Nothing changes there. Sometimes it gets worse for the affected minority group.
  3. Eventually, the Supreme Court makes a landmark ruling that makes it impossible for these states to continue their resistance, and people in those parts of the country slowly change their views.

In my opinion, yes, the government was largely responsible for this.

Look at our history after the Civil War. We had an extended period where a large part of the country routinely and systemically oppressed black people. This went on for generations after the war was over and it showed no signs of going away on its own. The people involved in the system grew up in it and saw it as normal. There’s no reason to believe it wouldn’t still exist if it had been left undisturbed.

But what happened was the federal government got involved. It interfered and broke up the system. It forced private individuals and private businesses to behave in a way they didn’t want to.

And the end result was people became aware that the change wasn’t bad. Many people ended up seeing it as positive change and saw the resulting society they lived in as being better than the old society.

The same thing that happened with civil rights for black people happened with civil rights for women and civil rights for gay people and is happening now with civil rights for trans people. Initially people have to be forced to change their behavior. But once they adapted to the new behavior, most people accept it as an improvement.

I’m not John. But personally, I feel that these laws are part cause and part effect. But mostly effect. The tide had turned against racial discrimination before anti-discrimination laws were put into place (or else they wouldn’t have been), but the laws then helped further hammer home the message that society would no longer stand for it. But even without the Civil Rights Act, discrimination by private businesses would have withered away in the face of public disapproval.

Fundamentally, I don’t think the government has the right to tell me who I can and cannot let into my place of business any more than they can tell me who I have to let into my home. On the other hand, discrimination is bad. So it’s a wash. The law is both unnecessary and, in my opinion, overreaching, but so are most laws. At least this one has the affect of improving people’s lives and stymieing bigots. So I’m not going to fight it or complain about it. But I still philosophically disagree that this is something the government should be able to do.