Sex Is Confusing: Or, Employment Discrimination: Does It Apply to LGBT?

A federal law called Title VII prohibits discrimination “because of sex.” In the past three months, one federal appeals (7^th Circuit) has ruled that “because of sex” covers discrimination against LGBTs. Boiling this court’s reasoning down to a sentence, the 7^th Circuit said: “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017).

The Second Circuit, in a March 2017 decision, said that Title VII pertains to some forms of sexual orientation discrimination— namely, to the extent that it is gender nonconformity discrimination. That case involved a claim by a male employee that he was humiliatingly harassed because of his “effeminacy and sexual orientation.” Anonymous v. Omnicom Group Inc., 852 F.3d 195 (2d Cir. Mar. 27, 2017).

Also in March, the 11^th Circuit made a similar ruling. Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017).

So, the courts disagree about the meaning of “because of sex” as it relates to complaints on the basis of sexual orientation. It’s time for the Supreme Court to resolve this “circuit split.”

Did you know? When Title VII came to the floor for a vote, a segregationist named Howard Smith tried to block Title VII, which at that point only prohibited race discrimination. He proposed the addition of “because of sex” thinking that this much broader version of the law would doom the legislation. He miscalculated—the law passed with his amendment. But that has created an interpretive problem for courts. Usually, courts view words in a statute as reflective of the intent of lawmakers. Here, however, the intent was the opposite—to deny coverage for women (and now, LGBT).