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7th Circuit Finds a ‘Living’ Civil Rights Act: ‘Sex’ Now Means Sexual Orientation

The U.S. Court of Appeals for the Seventh Circuit issued an 8-3 en banc ruling Tuesday holding that the term “sex” in Title VII of the 1964 Civil Rights Act now includes sexual orientation.

The court, covering Illinois, Indiana, and Wisconsin, overruled decades of its own precedent on this very issue in order to expand federal protection to an entire new class of litigants without any change in the language of the half-century old law. Unless overruled by the Supreme Court, the law’s prohibition on employment discrimination on the basis of “race, color, religion, sex, or national origin” now applies to the practice of homosexuality and other “sexual orientations” throughout the courts of those states.

The case, Hively v. Ivy Tech Community College, involved Kimberly Hively, a part-time instructor who alleged that she had not been hired full-time on the basis of her being a lesbian and sued on the theory this constituted discrimination on the basis of sex under Title VII. Her case was initially dismissed, first by the district court and then by a three-judge panel of the Seventh Circuit, for failure to state a claim on which relief can be granted, citing in each case decades of Seventh Circuit precedent restricting sex discrimination claims based on distinctions between men and women.

At the appellate level, Ms. Hively’s case was taken on by Lambda Legal, a well-funded pro-gay public interest law firm with long-standing financial ties to left-wing billionaire George Soros’s Open Society Foundations. After losing in their initial appeal, Hively and Lambda Legal were able to secure the eleven judge en banc panel which Tuesday overturned precedent on which the initial appellate panel ruled.

Years before Tuesday’s ruling came, the Obama Administration’s Equal Employment Opportunity Commission (EEOC), had apparently seen the writing on the wall. In 2013, the EEOC issued a three-year “Strategic Enforcement Plan” recognizing “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”

A Living Civil Rights Act

The majority opinion, authored by Chief Judge Diane Woods, acknowledged the precedent on which the smaller panel had relied, but insisted developments at the Supreme Court over the last two decades warranted a “fresh look.” Citing Supreme Court decisions from 1989 and 1998 that requiring “stereotypical” male or female constitutes sex discrimination under Title VII as well as  Obergefell v. Hodges, the 2015 landmark holding that the constitution mandates homosexual marriage, Woods came to see what she calls the “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.

Neither that the 1960s authors of Title VII had no intention of including sexual orientation when they prohibited discrimination on the basis of sex, nor the fact that, in the intervening decades, legislatures have passed dozens of law that include protections against discrimination on the basis of sexual orientation, held little sway with the majority.

“It is therefore neither here nor there that the Congress that enacted the Civil Rights Act in 1964 and chose to include sex as a prohibited basis for employment discrimination (no matter why it did so) may not have realized or understood the full scope of the words it chose,”

the ruling read.

Posner and Other Reagan Appointees Offer No Resistance

Judge Richard Posner, an appointee of President Ronald Reagan and author of many consequential rulings hailed by conservatives such as 2012’s Moore v. Madigan, which struck down the last “no-issue” concealed carry ban in the country on second amendment grounds, joined the majority opinion in its entirety. Furthermore, Posner drafted his own concurrence, wholeheartedly adopting the theory of a living Civil Rights Act which automatically comes to include new victim classes as society’s views change.

“Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted,” Posner, still listed as an expert of the conservative lawyer’s association the Federalist Society, wrote in his concurrence.

Three other Reagan appointees, Judge Frank Easterbrook, Senior Judge Kenneth Ripple, and Judge Joel Flaum, also joined the majority, the latter two penning their own concurrence. Easterbrook in particular, also listed as an expert of the Federalist Society has, at times, been held up by some conservatives as an example of sound jurisprudence, despite some liberal social views. He was, by way of illustration, reportedly strongly considered for nomination to the Supreme Court by President George W. Bush.

Dissent Tries for Meanings Civil Rights Act’s Drafters Would Have Understood

Judge Diane Sykes, joined by two others, Judge William Bauer and Judge Michael Kanne, filed a twenty-nine page dissent calling into question the entire enterprise of majority in expanding the meaning “sex” discrimination. “In common, ordinary usage in 1964—and now, for that matter—the word “sex” means biologically male or female; it does not also refer to sexual orientation,” the dissent pleads.

“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.”

No “Gender Identity” This Time

Interestingly, Chief Judge Woods’s majority opinion refused to draw the distinction between “sex” and “gender,” a term which does not appear in the 1964 Civil Rights Act. Drawing a distinction between the two and severing the link between biological sex and so-called “gender identity” has been a goal of the progressive left both in and out of the courtroom for years.

Other circuit courts, including the California-based “Notorious Ninth” have ruled in the past that employers discriminating on the basis of so-called gender identity is also “sex discrimination” under Title VII. In 2012, the EEOC, after the Obama Administration’s recess appointments gave Democratic appointees a majority on that body, also adopted this interpretation. The EEOC has since declined to go as far as the Seventh Circuit did Tuesday and include sexual orientation in the federal prohibition on sex discrimination.

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