On April 4, 2017, in a case called Hively v. Ivy Tech Community College and masterfully litigated by the brilliant attorneys at Lambda Legal, the Seventh Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex, protects lesbian, gay, and bisexual employees. Reversing several of its earlier decisions, the Seventh Circuit became the first federal appeals court to conclude that “discrimination on the basis of sexual orientation is a form of sex discrimination.”
This landmark ruling advances one of the most important goals of the LGBT movement — obtaining nationwide anti-discrimination protection for LGBT workers. Along with the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court, this ruling underscores just why the courts are so important to the future of our movement.
For years, LGBT advocates and allies have worked hard to pass state and federal anti-discrimination laws. In 2015, Sen. Jeff Merkley and Rep. David Cicilline introduced the Equality Act, a comprehensive federal bill that would prohibit sexual orientation and gender identity discrimination in employment, housing, and public accommodations. But faced with conservative majorities in many state legislatures and the U.S. Congress, our progress on the legislative front has been grueling and slow. In contrast, the federal courts have become increasingly receptive to claims by LGBT people brought under federal sex discrimination laws.
In addition to the Seventh Circuit’s ruling in favor of a lesbian plaintiff in Hively, a number of federal courts of appeals have recognized that Title VII and Title IX, which prohibits sex discrimination in public schools, protect transgender people. Across the country, federal courts are hearing these sex discrimination claims and, increasingly, ruling in favor of LGBT plaintiffs. In these cases, one of the most common themes is that courts must apply our nation’s laws to reflect society’s growing recognition that LGBT people deserve equal dignity and respect and must be included on equal terms. In Hively, Judge Richard Posner, a prominent and highly respected conservative jurist, wrote a separate opinion to point out the importance of judges taking these societal changes into account: “We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.”
In stark contrast, President Trump is seeking to pack the Supreme Court and the federal bench more broadly with judges who, in the chilling words of our newest Supreme Court Justice Neil Gorsuch, believe that courts should look “backward, not forward.” The Seventh Circuit decision in Hively illustrates the importance of having judges who, unlike strict originalists like Gorsuch, understand the need to take societal change into account. Of the 11 judges who heard the case, eight ruled in favor of the plaintiff, Kimberly Hively, who was denied full-time employment and eventually lost her job after she gave her girlfriend a goodbye kiss in the car on her way into work. Judge Diane Sykes, who authored an opinion on behalf of the three dissenting judges, took the majority to task for departing from what she considered to be the “original” meaning of Title VII. Citing former Supreme Court Justice Antonin Scalia, one of the most conservative and anti-LGBT judges in our nation’s history, Judge Diane Sykes wrote: “Is it even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation? The answer is no, of course not.”
Not coincidentally, given her extremely conservative views, President Trump placed Judge Sykes on his short list for potential Supreme Court nominees. Like Judge Gorsuch, Judge Sykes shares the dangerous view that statutory and constitutional protections must be frozen in time — thereby effectively fencing out LGBT people from any meaningful protection.
The danger this poses to our continued progress cannot be overstated. Like many other minority groups, LGBT people have often depended on the courts to protect our equality and freedom. Repeatedly throughout our history, we have turned to courts to strike down discriminatory laws that target LGBT people. In Romer v. Evans, the U.S. Supreme Court held that states cannot make gay people “strangers to the law,” striking down a Colorado state constitutional amendment that would have prohibited Colorado from enacting any anti-discrimination protections for lesbian, gay, or bisexual people. In Lawrence v. Texas, the Court held that states cannot make gay people criminals, striking down laws that criminalize same-sex intimacy. In United States v. Windsor, the Court held that states cannot relegate married same-sex couples to a “second-tier status.” The Court struck down the so-called Defense of Marriage Act, which would have barred any federal recognition of married same-sex couples. And in Obergefell v. Hodges, the Court held that same-sex couples have the same fundamental freedom to marry as others and that their families must be treated equally under state law.
Each of these landmark rulings has affected the daily lives of LGBT people in profound ways. As the Supreme Court noted in Obergefell, these decisions have gradually changed the status of LGBT people from that of “outlaw” to “outcast” — and eventually to persons who, more and more, are seen as equal members of society. And yet, despite their importance for LGBT people, many of these decisions — including Windsor and Obergefell — were decided by a slim 5-4 majority, with vigorous and often openly anti-LGBT dissents.
This is why the appointment of Judge Gorsuch to a lifetime tenure on the Court is a matter of such grave importance to our community — and why we must remain vigilant. Gorsuch replaces Justice Antonin Scalia, one of the Court’s most outspoken opponents of LGBT equality. Rated as even more conservative than Scalia, Gorsuch has criticized gay people for going to the courts to vindicate their constitutional rights, has expressed deep skepticism about the very existence of fundamental rights, and wrote a concurring opinion in the Hobby Lobby case that would appear to permit employers to invoke religious liberty to evade anti-discrimination laws.
Because Gorsuch is replacing Scalia, his appointment to the Court does not immediately tip the balance of justices likely to protect LGBT equality. But the margin of that protection is now razor thin. With the replacement by Trump of even one sitting justice who voted in favor of the LGBT plaintiffs in Windsor or Obergefell, the U.S. Supreme Court will almost certainly no longer be a reliable bulwark against the enactment of anti-LGBT laws.
This threat comes at a particularly perilous and important time. In the aftermath of Obergefell and former President Obama’s strong support for LGBT equality, we are facing a serious backlash. Across the country, conservative state legislatures are seeking to enact laws that openly discriminate against same-sex couples and their children, create sweeping new religious exemptions that permit government officials and others to deny services to LGBT people, and that seek to exclude transgender people from public spaces. Just this month, the Fifth Circuit Court of Appeals held oral argument in a case challenging Mississippi’s HB 1523, an unprecedented law that created extremely broad religious exemptions for anyone who believes that marriage should be reserved only for different-sex couples, that sexual intimacy should take place only within such marriages, and that a person’s sex is immutably determined by the gender marker on their original birth certificate. Depending on the outcome of this case, other states will either be deterred from enacting similar laws or given a green light to declare open season on LGBT people.
At the same time, some states are attempting to chip away at Obergefell and undermine marriage equality for same-sex couples. The Arkansas Supreme Court recently became the first and only court in the country to rule, in direct violation of Obergefell, that a same-sex spouse may not be listed as a parent on a child’s birth certificate when a married woman gives birth, even though the husband would automatically be listed if she were married to a man. We at the National Center for Lesbian Rights recently filed a petition asking the U.S. Supreme Court to review that case and overturn the Arkansas court’s decision. While it seems likely that Obergefell is secure for the time being, the appointment of even one more justice like Gorsuch could leave it vulnerable to similar efforts to erode equality for same-sex couples.
The Hively decision is an important reminder that a fair and independent judiciary has been among the most important elements enabling the LGBT movement to make such incredible progress over the past two decades. But in the end, the judiciary is only as strong a voice for our freedom and equality as the women and men who sit on the bench. As the Trump administration moves forward with future nominations to the lower federal courts — and most critically, any future Supreme Court nominations — it is more critical than ever that people engage with their Senators, make their voices heard, and resist the president’s plans to reshape the federal courts by appointing judges in the mold of Scalia, Sykes, and Gorsuch.
SHANNON PRICE MINTER, Esq., is the legal director of National Center for Lesbian Rights.