CHICAGO — A federal appeals court has ruled that “sexual orientation” can fall under the interpretation of sex discrimination in the federal Civil Rights Act, a decision that the dissenting judges found to be a stretch.

The Seventh Circuit Court of Appeals concluded 8-3 on Tuesday that while Title VII of the Civil Rights Act of 1967—which prohibits employment discrimination on the basis of “race, color, religion, sex or national origin”—does not include the term “sexual orientation,” the existing inclusion of “sex” can apply because the discrimination surrounds a person’s actions not being normative for their sex.

“The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases,” the Seventh Circuit Court of Appeals wrote.

“We [therefore] hold only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes,” it concluded.

The case centered around part-time Ivy Tech Community College professor Kimberly Hively, who suspected when her teaching contract was not renewed in 2014 that the decision was made based on the fact that she is a lesbian. She had also applied to teach full-time at the school, but was not accepted.

Hively sued the college, alleging a violation of civil rights law, but Ivy Tech filed for dismissal of the suit in denying the claim that her lesbian lifestyle had anything to do with the matter. However, it also noted that sexuality is not protected under Title VII. A district court sided with the school and dismissed Hively’s legal challenge.

The former professor then appealed to the Seventh Circuit, which upheld the lower court’s ruling, but only because it felt it was bound by precedent.

“In light of the importance of the issue, and recognizing the power of the full court to overrule earlier decisions and to bring our law into conformity with the Supreme Court’s teachings,” the Seventh Circuit voted to rehear the case en banc—or before the full court.

The full court then concluded this week that Title VII’s prohibition on sex discrimination could indeed be interpreted as applying to homosexuality, as it compared a woman being rejected because of her sex to being fired for not adhering to the relational norms for a woman.

“Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual,” Chief Judge Diane Wood wrote for the court.

“Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man),” she said.

However, Judges Diane Sykes, William Bauer and Michael Kanne strongly disagreed.

“Today the court jettisons the prevailing interpretation and installs the polar opposite. Suddenly sexual-orientation discrimination is sex discrimination and thus is actionable under Title VII. What justification is offered for this radical change in a well-established, uniform interpretation of an important—indeed, transformational—statute?” Sykes wrote for the dissent.

“To a fluent speaker of the English language—then and now—the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation,'” she outlined. “The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning. …  Classifying people by sexual
orientation is different than classifying them by sex.”

The judges noted that sex and “sexual orientation” are always written as two separate concepts in discrimination law, including federal law.

“[T]he Supreme Court has never deployed an abstract version of the comparative method of proof to illuminate the original meaning or scope of Title VII, nor has it even hinted that such an abstraction is a proper interpretive tool,” Sykes stated. “For good reason. Ordinary people do not use abstract thought experiments to ascribe meaning to texts.”

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