In a major win for LGBTQ advocates and a setback for Donald Trump's Department of Justice, the Second Circuit Court of Appeals ruled Monday that Title VII of the Civil Rights Act of 1964 does cover anti-gay discrimination under the basis of "sex." Buzzfeed's Dominic Holden writes of Zarda v. Altitude Express, Inc.:
The Court of Appeals for the 2nd Circuit ruled Monday, “We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of . . . sex,’ in violation of Title VII.” In doing so, the court overruled a lower court — and a precedent from two previous court cases — and remanded the case to be litigated in light of their reading of Title VII.
The decision holds national implications due to its high tier in the judicial system, and because it’s seen as a litmus test of the Trump administration’s ability — or inability — to curb LGBT rights through court activism. The Justice Department had injected itself into the case even though it wasn’t a party to the lawsuit and doesn’t normally involve itself in private employment disputes.
The case was heard in New York City by all 13 judges in the 2nd Circuit, known as an en banc hearing, which leaves the Supreme Court as the only avenue for a potential appeal.
This is a pretty BFD 10-3 en banc decision following on a similar Seventh Circuit Court of Appeals 8-3 en banc ruling last year. LGBTQ advocates have been steadily gaining ground in the courts with the assertion that discrimination against lesbian, gay and bisexual workers does constitute "sex" discrimination, even though "sexual orientation" isn't explicitly written into Title VII. But Attorney General Jeff Sessions’ Department of Justice argued the exact opposite last year in a friend of the court brief, injecting itself into a case that the government wasn’t a party to.
In Zarda, the 2nd Circuit determined that "sex" discrimination is, in fact, inherent in anti-gay discrimination precisely because the employee targeted on such a basis wouldn't experience discrimination if they were differently gendered.
"A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women," the majority wrote in an opinion led by Judge Robert Katzman. "We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination."
In addition, the opinion asserted, "sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected."
The Equal Employment Opportunity Commission—the federal agency charged with enforcing laws that prohibit workplace discrimination—adopted the view that anti-gay discrimination constitutes sex discrimination in 2013. That followed a unanimous ruling by the agency in 2012 that anti-transgender bias was covered under sex discrimination in a case called Macy v. Holder.
But one of the big breakthroughs for advocates working on transgender protections in the workplace came when the 11th Circuit Court of Appeals in 2011 made the first real explicit connection between anti-trans bias and nonconformity with sex stereotypes in Glenn v. Brumby.
The 2nd Circuit decision Monday builds on a 2017 Seventh Circuit en banc ruling that Title VII's prohibition on sex discrimination covers sexual orientation, overruling prior precedent in the circuit. Zarda similarly broke with two 2017 rulings in the 2nd Circuit by 3-judge panels that found they were bound by prior precedent in the circuit.