On Tuesday, the U.S. Court of Appeals for the 7th Circuit issued a landmark decision in Hively v. Ivy Tech holding that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The 8–3 ruling is an extraordinary victory for LGBTQ advocates—an emphatic declaration from a bipartisan group of judges that anti-gay workplace discrimination is clearly illegal under federal law. It also creates a sharp circuit split, increasing the odds of Supreme Court review. If that review comes and at least five justices agree with the 7th Circuit, their decision will effectively outlaw anti-gay employment discrimination in all 50 states.
The facts in Hively are straightforward. Kimberly Hively is an openly gay professor who believes that her former employer, Ivy Tech Community College, discriminated against her on the basis of sexual orientation. Hively sued Ivy Tech under Title VII, which prohibits workplace discrimination “because of sex.” A district court ruled against Hively in 2015, concluding that Title VII does not bar sexual orientation discrimination. A panel of judges for the 7th Circuit affirmed that ruling in 2016—but noted that it was only doing so because it was bound by two 7th Circuit precedents from 2000. In a frank opinion by Judge Ilana Rovner, a George H.W. Bush appointee, the majority signaled that it found these decisions dubious and untenable, urging the full court to reconsider them en banc. The court agreed, hearing arguments in November. And on Tuesday, it vindicated Rovner’s concerns, overruling those old precedents and holding that Title VII protects all gay employees.
As the lopsided vote in Hively indicates, the court did not find much difficulty reaching this conclusion—nor did it view the issue as a partisan one. (Five Republican appointees, including influential conservative Judge Frank Easterbrook, joined the majority.) Chief Judge Diane Wood’s opinion for the court largely tracked the reasoning laid out by the Equal Employment Opportunity Commission when it determined in 2015 that Title VII bars sexual orientation discrimination. (EEOC Commissioner Chai Feldblum told me on Tuesday that she was “gratified to see that the 7th Circuit has adopted the simple logic that sexual orientation discrimination is a form of sex discrimination and I hope its reasoning can serve as a model for other courts.”)
Wood provided three interrelated reasons why Title VII’s ban on sex discrimination must encompass discrimination on the basis of sexual orientation. First, the Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex discrimination includes sex stereotyping—that is, mistreating an employee because she fails to conform to gender stereotypes. That logic, Wood explained, applies to gay employees. “Hively represents the ultimate case of failure to conform to the female stereotype,” Wood wrote. “She is not heterosexual.” Because she is a woman who dates other women, Hively defies the stereotypical expectation that women date members of the opposite sex. By allegedly discriminating against Hively for failing to conform to this gender role, Wood held, Ivy Tech engaged in unlawful sex stereotyping.
Second, Wood deployed what she calls the “comparative method” of Title VII interpretation. I call this the textualist reading of Title VII, because it is derived from the plain language of the statute itself. On its face, the law bars “discrimination because of sex.” If Hively were a man dating a woman—or if she were dating a man—she would not face discrimination. She only faced discrimination because she is a woman dating another woman. “This describes paradigmatic sex discrimination,” Wood writes. “Ivy Tech is disadvantaging her because she is a woman.” These facts lead to “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
Third, Wood relied upon the “associational theory”—also known as the Loving theory—of sex discrimination. In Loving v. Virginia, the Supreme Court found that when the government discriminates against an individual for associating with a different race, it has discriminated on the basis of race. Many courts have extended this theory to Title VII, holding that when an employer mistreats a worker for marrying a person of a different race, he has violated Title VII’s ban on race discrimination.
Wood easily carries that logic over to the sex discrimination context. When Ivy Tech refused to promote Hively because of her orientation, Wood explained, it discriminated against her for intimately associating with people of the same sex. As Easterbrook made clear during oral arguments in Hively, this mistreatment qualifies as discrimination “because of sex,” in the same way that Virginia’s anti-miscegenation law constitutes discrimination because of race. “If we were to change the sex of one partner in a lesbian relationship,” Wood wrote, “the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex.”
Judge Richard Posner, a Slate contributor and Reagan appointee, wrote separately to point out that while Title VII’s drafters did not mean to protect gay employees, their intent is immaterial. Courts, he insisted, should interpret statutes in a manner that “infuses” them “with vitality and significance today” rather than relying on their original meaning. Posner contrasted this theory with the conservative “originalism” championed by Justice Antonin Scalia. (It is worth noting, however, that Scalia himself interpreted Title VII rather liberally.) By way of example, Posner pointed out:
[I]t has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.
Judges Joel Flaum and Kenneth Ripple—both Reagan appointees as well—issued another concurrence further praising the textualist and associational theories of Title VII. Judges Diane Sykes, Michael Kanne, and William Bauer dissented. That lineup is no surprise: Sykes and Kanne are rigid reactionaries while the 90-year-old Bauer joked at oral arguments that lesbians exist because of “ugly men.” Lambda Legal attorney Greg Nevins, who argued for Hively at the 7th Circuit, told me on Wednesday that the dissenters didn’t concern him. “After today,” Nevins said, “courts will have to grapple with the real issues and not rest on poorly reasoned decisions from long ago. And thus we will win.”
Tuesday’s decision is, in short, a thunderbolt. It lays out three cogent reasons why sexual orientation discrimination is always a form of sex discrimination. And it essentially dares other courts, including the Supreme Court, to find flaws in its careful, disciplined analysis. Wood’s majority opinion contributes to a growing (though not yet universal) consensus among federal courts that Title VII obviously protects gay employees—and confirms that this consensus is bipartisan. It will be impossible for other judges to ignore. And with a little luck, it will soon push a majority of the Supreme Court to recognize that anti-gay discrimination is, at root, discrimination “because of sex.”