Things have not been looking particularly rosy for the LGBTQ community and their allies and friends. Vice President-Elect Mike Pence’s support of damaging conversion therapy and of laws discriminating against gay people are in keeping with the overall hostility to gay and transgendered Americans exhibited by Trump’s Administration writ large. Every single cabinet member Trump has picked thus far opposes gay rights. Every. Single. One.
So the question naturally becomes where can the LGBTQ community and its allies turn to both safeguard the advances achieved and to build on those advances with additional progress? On November 30, good news seemed to come out of the Seventh Circuit Court of Appeals — a federal appeals court (junior only to the Supreme Court) that is dominated by Republican appointees.
First, some context. Protections against employment discrimination for the LGBTQ community vary dramatically by state, and in many states, employers act as though it is entirely legal to refuse to hire, to fire, or to otherwise treat members of the LGBTQ community differently.* The Equal Employment Opportunity Commission — the federal agency that enforces the nation’s federal employment discrimination laws — has been arguing in courts around the country that discrimination against gay people is, fundamentally, discrimination on the basis of gender. As a result, laws like Title VII — which protect against gender discrimination — also make LGBTQ discrimination illegal.**
But back to November 30. On November 30, the Seventh Circuit heard oral arguments in a case called Hively v. Ivy Tech Community College. Based upon how the oral arguments proceeded, it sounds as though the Seventh Circuit is prepared to agree with the EEOC and rule that sexual orientation discrimination IS gender discrimination. (If you are a lawyer who likes to geek out — or if you’re just curious about what an oral argument at the federal circuit court level — you can listen to a recording of the argument here.) Slate’s coverage of the oral arguments is fantastic and worth a read in whole; but take a look at this comment by Judge Frank H. Easterbrook, one of those conservative Reagan appointees who dominate the Seventh Circuit:
“I’d like you to focus on Loving v. Virginia from 1967,” Easterbrook says—his first comment of the day. “State law bans marriages between a black person and a white person. And the Supreme Court holds that that is race discrimination. Here we have an employer’s ban on relations between a woman and a woman. Why isn’t that sex discrimination by exactly the reasoning of Loving?”
Not all analogies between race discrimination and sexual orientation discrimination are apt, but this one hits the nail on the head.
Those of us who care about LGBTQ rights — or about equality more generally — owe the EEOC and the individuals who have pushed this suit forward a big “Thank you” for what they’ve accomplished here. While I don’t know all of them personally, I can tell you that EEOC’s General Counsel David Lopez (far left) and EEOC Commissioner Chai Feldblum (far right) are both kind and dedicated advocates.
Not only are they making good law, but they are also giving us something to cheer about in these otherwise difficult and troubling times.
* This Wikipedia map provides a handy overview for those interested in the intricacies.
** There are multiple legal arguments for why this is so. One of the most simple is this: if the Employer is ok with Mike dating Jess, but wants to fire Lisa for dating Jess, then the Employer is discriminating against Lisa on the basis of her gender. In other words, dating Jess wasn’t the problem, as proven by Mike; it was that Lisa is a woman while dating Jess that is the problem for that Employer.