Yesterday, in a landmark civil rights decision, the Seventh Circuit held that by prohibiting discrimination “because of [an] individual’s . . . sex,” Title VII of the Civil Rights Act of 1964 forbids discrimination on the basis of sexual orientation.  In other words, for purposes of the main federal anti-discrimination law governing employment, “discrimination on the basis of sexual orientation is a form of sex discrimination.” 

This is a profoundly important decision. It marks an emergent judicial recognition that firing someone just because they are gay is intolerable in this nation, and is incompatible with the plain text of Title VII.  We now live in a fairer and more just society.

There is much to say about the Seventh Circuit’s 8-3 en banc ruling, written by Chief Judge Diane Wood (with concurrences from Judges Posner and Flaum, and a dissent by Judge Sykes).  In this post, I offer two quick reactions:

First, the odds that the Supreme Court grants review of this question in the near future are high.  It is no exaggeration to say that Title VII’s application to gays and lesbians now ranks among the most important open questions in U.S. civil rights law.

Second, it remains disturbingly unclear what position the Trump Administration will take on Title VII’s protections for gays and lesbians, even though the Equal Employment Opportunity Commission (EEOC) has already concluded that Title VII necessarily forbids discrimination on the basis of sexual orientation.  The Administration's actions and personnel choices thus far, however, are an ominous sign. 

In future posts, I’ll elaborate on an additional point: the Seventh Circuit got it right. As a matter of law, the case for its reading of Title VII should persuade other courts to reconsider their precedents.  And if the Supreme Court does end up granting review of this question, it should embrace the Seventh Circuit’s holding as the law of the land.

Why This Issue Could Soon Reach SCOTUS

One of the surest signs that the Supreme Court will grant review of a case is the existence of a “circuit split.” When the Courts of Appeals have disagreed on a discrete proposition of federal law,  it is typically the Supreme Court’s unique responsibility to resolve the issue and ensure national uniformity.

Until yesterday, an unbroken line of appellate authority held that Title VII does not forbid sexual orientation discrimination (though some courts held that particular instances of anti-gay conduct might qualify as forbidden sex stereotyping).^[1] While the EEOC and some district courts had reached a contrary conclusion—forcefully urging that Title VII be revisited with new insight and fewer indefensible assumptions about sex, gender, and sexual orientation—the consensus among Courts of Appeals held firm.

Indeed, on March 10, 2017, a divided panel of the Eleventh Circuit explicitly refused to reconsider precedent holding that Title VII offers no protection against anti-gay discrimination.  Judge William Pryor—a conservative darling who made President Trump’s Supreme Court shortlist—wrote separately to explain why this was the right result.  In a forceful dissent, Judge Robin S. Rosenbaum argued that the majority had failed to realize Title VII’s full promise and proper meaning.

Then, on March 27, 2017, a per curiam panel of the Second Circuit dodged the issue, declining to reconsider circuit precedent and instead holding that the facts before it might have constituted illegal sex stereotyping discrimination.  Chief Judge Robert A. Katzmann, joined by Judge Margo K. Brodie, wrote separately to advocate that “in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII.”  He added, “Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”  

At the time, Chief Judge Katzmann’s prophecy was understood as a thinly-veiled reference to Hively v. Ivy Tech Community College.  There, a panel of the Seventh Circuit had similarly concluded that it was bound by circuit precedent, but had raised grave doubt about the continuing vitality of that authority:

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.  The agency tasked with enforcing Title VII does not condone it, many of the federal courts to consider the matter have stated that they do not condone it, and this court undoubtedly does not condone it.  But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent . . . .

(citations omitted).  It was in this very case that the Seventh Circuit, rehearing the issue en banc, overruled its own precedent yesterday and held that Title VII forbids sexual orientation discrimination.

In sum, the en banc Seventh Circuit is now at odds with every other Court of Appeals, including two that have recently declined opportunities to revisit their own precedent. This is a paradigmatic circuit split and appears highly unlikely to resolve itself without intervention by the Supreme Court or Congress.  What’s more, the split involves a question of undoubted national importance.  And while the Supreme Court often prefers that an issue “percolate,” here there have recently been numerous appellate decisions accompanied by thoughtful concurrences and dissents—not to mention an EEOC opinion, many district court decisions, and dozens (hundreds?) of student notes and law review articles.  It’s unclear how further percolation would help the justices’ decision-making process in addressing this pure question of law.   

All said and done, it would be most anomalous for the Supreme Court to decline review in these circumstances.  Therefore, when a case that properly presents this question reaches the Court, odds are high that certiorari is granted.

What Will the Trump Administration Do?

This raises two questions:  What position will the Trump Administration take?  And does it matter?

In one important respect, part of the administration is already committed to a position. In December 2012, the EEOC adopted its current Strategic Enforcement Plan, which includes “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply," as a top EEOC enforcement priority.  And in July 2015, the EEOC concluded in a guidance document that “allegations of discrimination on the basis of his sexual orientation state a claim of discrimination on the basis of sex within the meaning of Title VII.”  (This guidance was shortly followed by an administrative ruling that arrived at the same conclusion.) 

Since President Trump’s election, though, many commentators have wondered whether the EEOC, whose newly appointed acting chair voted against the EEOC’s pro-gay rights ruling, will change course.  While the EEOC is somewhat insulated from day-to-day politics because commission members have staggered, four-year terms, Trump will nominate two new commission members this year, plus a new general counsel.  In short order, the EEOC might well tilt rightward.  In a worse case scenario, the new commissioners might seek to overturn the 2015 guidance.  But even if it does not formally change policy, EEOC’s willingness to commit resources to enforcing Title VII in this field and advocating its interpretation before federal courts may abate (though for now it remains involved in Title VII cases addressing sexual orientation).

And what about the rest of the administration? Would the Justice Department defend EEOC’s position in the Supreme Court?  Or would it urge the Court to limit Title VII?  The answer might well matter: the United States is no ordinary litigant (and is itself the largest employer in the nation), and may command special weight if it takes a strong position before the Court on this significant issue. And once the Supreme Court settles the question as a matter of law, the EEOC (not to mention the rest of the federal government and all private parties) will be bound by its interpretation—unless and until Congress enacts legislation clarifying, expanding, or reducing Title VII’s protections.  

Unfortunately, it’s difficult to predict with confidence what Trump will do.

On the one hand, Trump has made a number of pro-gay and lesbian rights statements, and has refused to rescind an Obama executive order banning government contractors from discriminating on the basis of sexual orientation.  (That said, a draft order in circulation would eviscerate LGBT protections in the name of “religious liberty,” and Trump has rescinded a key order facilitating enforcement of Obama's contractor rules).

On the other hand, personnel is policy. And Trump has stocked his government with vehement opponents of LGBT rights—most notably, Michael Pence, Jeff Sessions, and HHS Civil Rights Chief Roger Severino.  (Trump’s nominee for Solicitor General has not shown any sign of being cut from different cloth.) There can be little doubt that most of Trump’s inner circle would gladly kick gays and lesbians to the curb, in Title VII cases and many others.  Indeed, the administration’s treatment of transgender rights offers only cold comfort.  So, too, the administration’s cruel and stupid decision to exclude gays, lesbians, and transgendered persons from being counted in the 2020 Census.

It may therefore be a good thing that, for the time being, the EEOC remains in the driver’s seat.  That agency appears unlikely to change its policy in the short term.  And this means federal lawyers will appear in courts nationwide to argue that Title VII does cover sexual orientation discrimination.  Now, more than ever, the EEOC and private parties advancing this contention might find a receptive audience, with yesterday’s en banc Seventh Circuit decision lending further credibility and gravitas to their position.

But soon—possibly very soon—this issue will reach the Supreme Court.  When it does, will President Trump’s attorneys argue that federal law safeguards gays and lesbians from discrimination in their places of work?  Or will they reverse years of federal policy and argue that Title VII’s command of equality is perfectly consistent with sexual orientation discrimination?  I can only imagine the heated debates that will rage across federal agencies as this is sorted out.  It makes me cringe. 

Conclusion

I wish I could tell you that I’m optimistic.  But these are strange and trying times.  And when I reflect on Trump’s inner circle and civil rights track record, I fear for the future of LGBT equality in this nation.  

Here, as elsewhere, it may fall upon the Judiciary to do the right thing and vindicate the rule of law.  As I will explain in future posts, this means concluding that Title VII forbids discrimination on the basis of sexual orientation.

^[1] See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997).

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