In a groundbreaking ruling, the 7th Circuit Court of Appeals has found that “discrimination on the basis of sexual orientation is a form of sex discrimination,” meaning that you can’t fire someone just because they are gay, bi, or queer.
Let’s get this part out of the way:
Okay, you might be saying to yourself “didn’t we already know that was against the law?” The answer is, sadly, no – at least not everywhere.
“Love Wins” at Home – But Not At Work
Currently, there is no federal law explicitly protecting LGBTQ people from being fired or otherwise discriminated against on the job – and only 20 states plus D.C. have laws that specifically prohibit discrimination on the basis of sexual orientation and gender identity at work, while 2 other states have laws that specifically protect employees only from discrimination based on sexual orientation.
This is of course, not to mention the Obama-era executive order Trump recently rolled back that helped ensure that federal agencies would consider whether companies had discriminated against LGBTQ people and women before awarding them federal contracts. Bottom line: things aren’t that great for LGBTQ people at work.
Kim Hively, the plaintiff in the case, knows this all too well. She was fired from her job as a teacher at Ivy Tech Community College after being seen kissing her then-girlfriend in the school parking lot. But this kind of discrimination isn’t limited to just Kim’s case. The Williams Institute found in 2013 that 27% of LGB people faced discrimination on the job, and 78% of trans people faced workplace harassment or mistreatment based on their gender identity. Given this, and the lack of explicit legal protections, it’s not surprising that over half of LGBT employees have reported being closeted at work. No one should have to hide who they are – not only is it depressing, it contributes to the idea that being queer or trans is shameful – a belief that has no place anywhere, much less the 21st century.
This Ruling Could Change That
Title VII is the federal law that prohibits discrimination on the basis of sex, race, color, national origin, and religion. It doesn’t specifically mention sexual orientation. In this ruling, the 7th Circuit became the first federal Court of Appeals to hold that Title VII nevertheless does protect people on the basis of sexual orientation, because discriminating against someone based on the sex of the person they date/love/marry is a form of sex discrimination.
It’s important to note though, that this ruling only considers sexual orientation – but other Courts of Appeals have previously held that discrimination on the basis of gender identity is unlawful sex discrimination. And yesterday’s ruling puts us in good shape for a case the 7th Circuit (which has not yet ruled on this issue) will soon be considering. Ash Whitaker, a trans student in Wisconsin, is suing his school for refusing to respect his gender identity. We filed an amicus brief that outlined why anti-trans discrimination is also a form of sex discrimination – an argument we believe should apply to both Title IX in Ash’s case, and anywhere sex discrimination is barred.
What Happens Next
Unfortunately though, this story may not be over. The ruling conflicts with one in the 11th Circuit, which means the case could go all the way up to the Supreme Court, should Ivy Tech choose to appeal. If that happens, we’ll have to wait a while to find out how or if this decision will have an impact on queer people at work.
In the meantime though, let’s celebrate this momentous decision and cross our fingers that legal workplace discrimination against queer people is a thing of the past!