Last week, the Second Circuit Court of Appeals ruled that discrimination against gay workers is prohibited under Title VII of the Civil Rights Act. That 1964 law doesn’t explicitly prohibit LGBTQ discrimination, but instead bans discrimination based on sex. LGBTQ activists, however, have made the case that the ban on sex discrimination also applies to anti-gay discrimination.
The Second Circuit Court agreed, using the example of a woman attracted to a woman.
“[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 court’s majority opinion said. “We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”
The ruling is not currently national, but applies to the Second Circuit, which includes Connecticut, New York, and Vermont. Going forward, it could either be reversed or affirmed by the Supreme Court. If the second happens, it would expand the decision to the rest of the country.
The case emerged in 2010 when Donald Zarda, a skydiving instructor with Altitude Express, was allegedly fired due to his sexual orientation. As Mr. Zarda was preparing for a tandem sky-dive with a female client, he told her that he was “100 percent gay.” Mr. Zarda explained that his comment was intended to put the woman at ease when she expressed discomfort with being tightly strapped to him during the tandem dive. Yet after the woman’s boyfriend complained to the school, Zarda was fired.
Mr. Zarda filed a lawsuit, claiming that his dismissal violated Title VII. Two courts in New York initially ruled against him. In 2014, Mr. Zarda died in a base jumping accident. But appeal continued, and the legal landscape started to shift.
Last week’s ruling is also a blow to President Trump’s administration, which had filed a friend-of-the-court brief in opposition to Zarda.
The decision could have a national impact. At the moment, most states and the federal government do not explicitly prohibit anti-gay discrimination in the workplace. However, if the courts agree that the Civil Rights Act already bans anti-gay discrimination, they could change the national landscape for good.
The courts are currently divided on this question. The Seventh Circuit Court in 2017 ruled that Title VII protects gay people, but the 11th Circuit Court issued the opposite ruling. That tension may ultimately be settled by the Supreme Court.
Most states don’t explicitly ban anti-LGBTQ discrimination
The ruling covers a significant gap in LGBTQ rights in the U.S. Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, in housing, or in public accommodations (like restaurants, hotels, and other places that serve the public).
A person can be fired from a job, evicted from a home, or asked to leave a business simply because an employer, landlord, or business owner doesn’t like the person’s sexual orientation or gender identity.
Yet federal and state laws do prohibit discrimination based on race, religion, nationality, and sex in the workplace, schools, and other settings. This is the very purpose of the Civil Rights Act and other federal and state civil rights laws that followed.
Activists are now seeking to expand those civil rights protections to also cover LGBTQ people.
Advocates argue federal civil rights laws should already protect LGBTQ people
Civil rights advocates, however, argue that federal law should already shield LGBTQ people from discrimination, because bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.
According to arguments put forth by those advocates, discrimination against people based on their sexual orientation or gender identity is essentially rooted in prohibited sex-based expectations. For example, if someone discriminates against a gay man, that’s largely based on the assumption that a man should only love or have sex with a woman — a belief built on the notion of what a person of a certain sex should be like.
Similarly, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify and present themselves as a man — again, a belief grounded in the idea of what a person of a certain sex assigned at birth should be like.
Opponents, on the other hand, say that LGBTQ nondiscrimination protections aren’t included in existing federal civil rights laws, because the authors of federal civil rights laws never believed or intended that bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.
On Monday, the Second Circuit Court embraced this interpretation for sexual orientation in the workplace, as several other courts have already done so for gender identity. It may now be up to other federal courts, particularly the Supreme Court, to affirm or reject the decision.
Even if courts eventually conclude that statutory bans on sex discrimination do prohibit discrimination based on sexual orientation and gender identity, under federal law that would only create explicit protections in the workplace, housing, and schools — but not public accommodations. That’s because federal civil rights laws don’t ban sex discrimination in public accommodations. That leaves a hole in nondiscrimination laws to be settled even if courts ultimately come down in favor of LGBTQ rights.
Still, for now, the Second Circuit Court’s ruling gives LGBTQ advocates a major victory.