by Maggie Gallagher
By a 2-1 margin, a three-judge panel on the 11th Circuit on Friday rejected a security guard’s claim that legal protections against sex discrimination can be stretched to include sexual orientation discrimination, in a case where the guard claimed a hospital fired her because she was a lesbian.
The majority opinion relied on a 1979 ruling that stated sexual orientation is not covered by Title VII. A more recent 2011 case held that gender noncomformity could be used as the basis for a sex discrimination claim, but that, as concurring Judge William Pryor wrote, “[a] gay individual may establish with enough factual evidence that she experienced sex discrimination because her behavior deviated from a gender stereotype held by an employer, but our review of that claim would rest on behavior alone,” not orientation per se.
The majority in the current case instructed the lower court to permit the plaintiff to bolster her other argument that her mannish dress and haircut led to her termination.
This was one of two cases pending before federal courts which Lambda Legal hopes to use in order to insert LGBT anti-discrimination measures into the iconic 1964 Civil Rights Act, bypassing the legislative branch entirely (and thus the need to compromise on conscience protections for religious people and charities).
Last July, a three-judge panel of the 7th Circuit ruled that Title VII’s sex discrimination provision was intended to protect women as a class, not gays and lesbians. In that case, a South Bend, Ind., woman claimed a community college refused to hire her as a part-time instructor because she was a lesbian. That case was reheard by the full circuit in November; a decision has yet to be announced.
A split in the appeals courts on the issue would make it much more likely one of these cases would end up being decided by the Supreme Court.
With Donald Trump in office, Lambda Legal is likely racing to get into the Supreme Court while a narrow majority still exists for dramatically reinterpreting (or mis-interpreting) laws to benefit the LGBT community, thus circumventing the hard negotiation process of democracy.
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