Federal Court Rules Sex Discrimination Not Same as LGBT Discrimination

March 15, 2017

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.

Photo credit: wp paarz via Flickr, CC BY-SA 2.0


Maggie Gallagher is a senior fellow at the American Principles Project.

Archive: Maggie Gallagher

2 comments on “Federal Court Rules Sex Discrimination Not Same as LGBT Discrimination”

  • ErnieBridge says:

    It is so good to see somebody handling this question in a rational manner. I think most people will admit, to themselves at least, that they have occasional wondered about homosexual activity; but almost all of us reject the idea of opting into the lifestyle and live out their lives as ordinary Middle Americans. Those who choose to go to the extremes then seek government help to make their behavior convenient and comfortable. I believe it to be wrong to discriminate against people who choose to act out an alternative lifestyle but I also believe that they should not seek or receive special accommodations.

    • Jk105 says:

      Ernie Old Boy, no one opts into being heterosexual or homosexual. No choice. If so, tell me all about the day you decided to be heterosexual. You are the one being irrational.

      Equal rights is not a special accommodation. Marriage only for heterosexuals is a special accommodation.

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