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Promising Court Decision Suggests Heterosexuality Is a Gender Stereotype

Judge Katzmann
Judge Robert Katzmann

A gay man has successfully claimed that in a suit that discrimination based on sexual orientation can't be separated from discrimination based on gender.

The opinion in a federal court case involving a gay man suing for employment discrimination asserts that discrimination based on sexual orientation inherently involves gender stereotyping, so it is therefore sex discrimination, prohibited under Title VII of the Civil Rights Act of 1964. But more than that, the opinion issued Monday by a three-judge panel on the Second Circuit Court of Appeals asserts that the assumption of heterosexuality involves gender stereotyping.

The plaintiff in Christiansen v. Omnicon Group, Matthew Christiansen, an HIV-positive gay man who faced extreme harassment and discrimination at the hands of his supervisor at the Omnicom Group, repositioned the argument in the case after a trial court dismissed his suit, citing the precedent-setting 2000 decision in Simonton v. Runyon, which found that Title VII does not protect against sexual orientation discrimination, according to Freedom for All Americans. But Christiansen and his legal team claimed that to discrimination based on sexual orientation cannot be separated from discrimination against a person due to their "sex" or gender because of stereotypes about said gender -- in this case that men and women are compelled to be intimate only with the opposite sex.

While the Second Circuit panel could not overturn the precedent from 2000, it recommended that the full circuit reconsider the issue. However, the opinion signaled progress for LGBT discrimination cases, as the panel found that Christiansen's claim of gender stereotyping under Title VII is valid.

"Negative views of sexual orientation are often, if not always, rooted in the idea that men should be exclusively attracted to women and women should be exclusively attracted to men -- as clear a gender stereotype as any," Chief Judge Robert A. Katzmann wrote in the opinion. "Thus, in my view, if gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim."

In its opinion in Christiansen, the panel cited Baldwin v. Fox, which noted pithily, "As the Employment Opportunity Commission ('EEOC') has observed, sexual orientation 'cannot be defined or understood without reference to sex.'" The EEOC, a federal government body, has held that courts should consider discrimination based on sexual orientation to be sex discrimination.

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