Federal court’s redefinition of ‘sex’ could have wide ripple effects

The 7th U.S. Circuit Court of Appeals issued a landmark ruling this week that redefines the term “sex” in the 1964 Civil Rights Act to include “sexual orientation.”

Gay rights advocates declared the ruling a “game changer” in their press to establish homosexuality as a protected class under federal law. Religious liberty attorneys decried the decision as judicial activism that could put faith-based ministries in the legal crosshairs of disgruntled gay employees for years to come.

In the 8-3 decision issued April 4, the appeals court ruled contrary to its own precedent and every U.S. appeals court to date, including the 11th Circuit which just weeks earlier came to the opposite conclusion in a similar case. The lawsuit before the 7th Circuit, Hively v. Ivy Tech, involved a lesbian who sued her employer for sex discrimination claiming she didn’t get a full-time job because of her sexuality. In her complaint, Kimberly Hively cited Title VII as her defense. In doing so she forced the court to decide whether sexual orientation means the same thing as sex.

“In truth it rewrote the statute,” Jim Campbell, an attorney with Alliance Defending Freedom, said of the 7th Circuit ruling.

Title VII of the Civil Rights Act protects employees from discrimination based on protected classes of sex, race, color, national origin, and religion. It does not include sexual orientation or gender identity.

But the states in the court’s jurisdiction—Indiana, Illinois, and Wisconsin—must now abide by a new interpretation of Title VII that includes sexual orientation as a protected class.

That could put faith-based organizations at risk of lawsuits.

“If anyone in the 7th Circuit thinks they have been discriminated against based on sexual orientation, you bet that they will be filing complaints under Title VII,” Campbell told me.

Ivy Tech Community College of Indiana, the defendant, has indicated it will not appeal the decision. That leaves the precedent-setting ruling in place—possibly for years—until a similar case makes it to the U.S. Supreme Court.

In the majority opinion, Judge Diane Wood said the court cannot “amend” Title VII to add the new category of sexual orientation as a protected class.

“Obviously that lies beyond our power,” she wrote. “We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.”

The majority declared Hively’s homosexuality a matter of “gender nonconformity” and therefore a form of sex discrimination.

In a concurring opinion, Judge Richard Posner balked at the circuitous route his colleagues took to get to their conclusion. Instead of redefining terms, Posner argued the court simply needed to revisit the 53-year-old statue in light of modern norms.

“Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the act was enacted,” he wrote.

A three-judge panel of the 7th Circuit heard the case last year and rejected Hively’s argument based on its own precedents. But Campbell noted that opinion hinted a full court panel might come to a different conclusion. An appellate court’s three-judge panel cannot overturn its own precedent but a fully empaneled court can.

Writing for the full panel’s three dissenters, Judge Diane Sykes called the court’s “momentous” decision a “statutory amendment courtesy of unelected judges.”

Sykes, who was on President Donald Trump’s short list of Supreme Court nominees, noted the U.S. Constitution provides for Congress, not unelected judges, to write statutes.

“When we presume the power to alter the original public meaning of a statute through the process of interpretation, we assume a power that is not ours,” she wrote.

Other cases challenging the definition of “sex” in Title VII are making their way through different courts. But it could be years before any of them arrive at the U.S. Supreme Court to challenge the 7th Circuit precedent.

One week before the Hively decision, the 2nd Circuit ruled a gay man could proceed with his lawsuit against his employer, claiming Title VII protects him from discrimination based on sexual orientation.

But in early March, a three-judge panel of the 11th Circuit ruled an employee’s sexual orientation could not form the basis of a Title VII lawsuit. The plaintiff could appeal to the full panel.

Critics of the 7th Circuit ruling said the decision not only sets an unconstitutional precedent but creates an ethos in which other courts or governing entities are emboldened to act outside their established boundaries.

“If judges freely defy the law, twist it, legislate from the bench why should other public officials not treat their rulings in the same way?” Princeton law professor Robert P. George tweeted earlier this week.