WASHINGTON — Existing civil rights laws protect against discrimination based on sexual orientation, a federal appeals court ruled in a historic nationwide first on Tuesday.
It is a "common-sense reality," the US Court of Appeals for the Seventh Circuit held, "that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex."
Specifically, the court held that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 includes a bar on discriminating against gay, lesbian, or bisexual people.
The 8-3 ruling represented a reversal of the court's past decisions on the topic, and makes it the first federal appeals court to rule in favor of protection for sexual orientation-based discrimination under existing federal law.
"[A] person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes," Chief Judge Diane Wood wrote for the full court.
The Seventh Circuit covers federal lawsuits out of Indiana, Illinois, and Wisconsin.
The ruling comes on the heels of two other federal appeals court rulings, in which three-judge panels held that prior rulings of the courts made clear that sexual orientation discrimination is not covered under Title VII. Tuesday's ruling, however, was the first time a court had sat en banc — meaning the full court — in hearing such a case. When an appeals court sits en banc, it can review — and reverse — its prior rulings.
The Seventh Circuit did just that on Tuesday in Kimberly Hively's case alleging discrimination against Ivy Tech Community College of Indiana.
"It would require considerable calisthenics to remove the 'sex' from 'sexual orientation.' The effort to do so has led to confusing and contradictory results," Wood wrote, noting that the Equal Employment Opportunity Commission concluded "that such an effort cannot be reconciled with the straight-forward language of Title VII."
In explaining why the court was taking the step it took Tuesday, Wood detailed the role of the court — and the changed legal circumstances for gay people in America today, detailing the line of Supreme Court decisions over 20 years that culminated in 2015's Supreme Court decision ending state bans on same-sex couples' marriages.
"[T]his court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago," Wood noted. "The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line."
Although the issue in the case brought by Kimberly Hively was regarding sexual orientation-based discrimination, Wood noted the logic has been applied to gender identity-based discrimination case as well.
"Many other courts have found that gender-identity claims are cognizable under Title VII," she wrote.
Three of the court's 11 judges dissented from the ruling: Judge Diane Sykes, joined by Judges William Bauer and Michael Kanne.
Sykes wrote, in part, that the decision represented a "radical change in a well-established, uniform interpretation of an important—indeed, transformational—statute."
Hively is represented by Lambda Legal. Gregory Nevins, a lawyer with the group, celebrated the ruling, saying in a statement, "This decision is gamechanger for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: it is against the law to discriminate on the basis of sexual orientation."
In Sykes' dissenting opinion, she addressed the group directly, saying that while "Lambda Legal's proposed new reading of Title VII ... has a strong foothold in current popular opinion," such information "informs a case for legislative change and might eventually persuade the people’s representatives to amend the statute to implement a new public policy" but that "it does not bear" on the legal question before the court as to the interpretation of Title VII.