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Don’t panic over Neil Gorsuch: The courts are the last hope for LGBT rights under Trump

Federal courts are playing a critical role in helping to move the country forward on LGBT issues


Nico Lang
April 13, 2017 2:58AM (UTC)

Is the U.S. court system the last hope for LGBT equality the next four years? Following an avalanche of groundbreaking rulings extending existing civil rights legislation to cover sexual orientation and gender identity, it certainly seems so.

The past week has been a groundbreaking one in cementing the rights of LGBT individuals to equal protection under the law. On April 4, the 7th Circuit Court of Appeals ruled in favor of Kim Hively, a part-time professor at Ivy Tech Community College in Indiana, who claimed that the university administration declined to offer her a full-time position because of her sexual orientation. Hively, who is a lesbian, was chastised by a fellow staff member for “inappropriate behavior” in 2009, claiming that the lecturer was spotted “sucking face” with her girlfriend in the school’s parking lot. After that incident, court documents allege that Hively was not allowed the opportunity for advancement. She was let go in 2014.

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The appeals court declined to say whether Hively had indeed experienced job-based discrimination. Instead the decision ruled as to whether such a claim could be made under Title VII of the Civil Rights Act of 1964, which prevents bias on the basis of sex but, until now, has never explicitly provided protections for LGBT individuals.

“It would require considerable calisthenics to remove the 'sex' from 'sexual orientation,’” the court decided in an 8-3 decision.

That decision was surprising given that the ruling reversed the 7th Circuit Court’s own decision. After a trial court dismissed Hively’s claim in 2015, she appealed to the 7th Circuit in September of the same year. A three-judge panel ruled against her, citing a lack of precedent in siding with the rights of LGBT workers. The Hoosier State is one of 28 that doesn’t recognize sexual orientation or gender identity as protected classes in state civil rights codes. But last October, the court decided to rehear the case en banc, meaning that all eight court judges would hear it, not just a selected panel.

A particularly compelling aspect of the Hively v. Ivy Tech decision is that five of the judges in the majority are conservative. These include Frank Easterbrook and Richard Posner, the latter of whom penned an eloquent concurring opinion on the need to reinterpret the Civil Rights Act.

“We understand the words of Title VII differently,” Posner said, “not because we're smarter than the statute's framers and ratifiers but because we live in a different era, a different culture.”

This groundbreaking ruling, which followed four months of legal arguments, was the first time a federal court argued that civil rights laws should be extended to include LGBT protections. But it wouldn’t be the last. Just a day later, a Denver court sided with a transgender woman, Rachel Smith, and her partner, who claim that their application for an apartment was turned down after the landlord said he didn’t want to attract scrutiny due to the couple’s “unique relationship.” U.S. District Judge Raymond Moore argued that the Smiths’ right to be treated just like any other couple was covered under the Federal Fair Housing Act.

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That law, which is also known as Title VII of the Civil Rights Act of 1968, bans discrimination on the basis of national origin, race and sex in the “sale, rental, and financing of dwellings and in other housing-related financial transactions.”

Although these rulings pertain to different areas of civil rights law, the legal basis for these two decisions was strikingly similar. In each case, the court ruled that discrimination on the basis of sexual orientation is a form of “sex stereotyping” — which is why such bias falls under the umbrella of legislation that doesn’t spell out LGBT protections explicitly. “Imagine Hively is a man, but everything else stays the same, including the sex of her partner,” CNN’s Danny Cevallos explained. “Isn't she then being treated differently only because she is a woman?”

Let’s put it this way: The court thusly argued that because women are stereotypically viewed as being heterosexual, denying someone advancement in the workplace because they’re a lesbian amounts to discrimination on the basis of gender. The law says that’s illegal, which makes what Hively claims happened to her illegal.

The 7th Circuit Court decision applies to Indiana, Wisconsin, and Illinois, but the issue will likely head to the Supreme Court following a conflicting ruling out of Georgia last month. The 11th Circuit Court ruled that it was legal for Jameka Evans to be fired from her job as a security guard because of her sexual orientation. A SCOTUS showdown is a concern for LGBT activists given the recent appointment of far-right jurist Neil Gorsuch to the bench. In his 2004 Oxford University dissertation, Gorsuch argued that the U.S. Constitution didn’t protect the marriage rights of same-sex couples. Referring to marriage equality as part of the liberal social agenda, he later accused progressives of being “addicted to the courtroom.”

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Gorsuch’s nomination, which was opposed by 18 LGBT groups, is viewed as yet another component in the Trump’s quiet campaign to erase LGBT people from public policy. Last month, questions about LGBT seniors were removed from two annual surveys conducted by the Department of Health and Human Services, and the White House has rolled back federal oversight on workplace protections for LGBT people passed under the Obama administration.

Given that so many of Trump's appointees have worked to oppose LGBT equality, LGBT rights will likely be a nonstarter in the White House for the next four years. The past week, though, has offered a much-needed reminder of what a critical role the courts have played in helping to move the country forward on LGBT issues.

Although the U.S. court system wasn’t always favorable to LGBT rights, that began to shift with the Supreme Court’s 1996 ruling in Romer v. Evans, which declared that Colorado could not explicitly ban protections for its LGBT residents. In a 6-3 decision, the court ruled that the Equal Protection Clause under the 11th Amendment, which states that all citizens are entitled to “the equal protection of the laws,” prevented the state from singling out LGBT people. That ruling, the first of its kind in the U.S., would pave the way for the Court’s 2003 decision to strike down anti-gay sodomy laws in Lawrence v. Texas.

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Conservatives like to malign “activist judges” legislating from the bench, but the truth is that case law has increasingly laid the groundwork for LGBT protections being upheld by courts around the U.S., even in the face of an unprecedented wave of anti-LGBT hate. The trend is both striking and unmistakable.

After Mississippi signed a bill into law that allowed businesses to discriminate against LGBT people, Judge Carlton Reeves issued an injunction against House Bill 1523. “The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after [Obergefell v. Hodges],” Reeves said, referencing the Supreme Court’s 2015 ruling legalizing marriage equality. And a federal court in Pennsylvania ruled that Juliet Evancho, the transgender sister of inauguration singer Jackie Evancho, had the right to use the girls’ bathroom at her Pennsylvania high school.

Even a major setback in Gavin Grimm’s impending U.S. Supreme Court case offered unexpected hope for the transgender student’s fight to be treated with dignity and respect.

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After the Supreme Court, which was set to hear arguments in G.G. v. Gloucester County School Board this term, turned the case back to the lower courts, the Fourth Circuit Court of Appeals declined to hear the 17-year-old’s case on an expedited basis. As Chase Strangio of the American Civil Liberties Union noted in a post for Medium, it would be customary for the federal court to offer a “short, one-line update” on the case to its docket. Instead, Senior Judge Henry Floyd penned a stirring ode to Grimm’s years-long struggle — which will now be decided after the Virginia student graduates.

“G.G.’s case is about much more than bathrooms,” Floyd wrote. “It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity.”

Justice for Gavin Grimm will be delayed, but if the recent direction of the courts on LGBT rights is any indication, it’s coming sooner rather than later. The LGBT community may no longer have a friend in the Oval Office, but justice is on our side.


Nico Lang

MORE FROM Nico Lang

Related Topics ------------------------------------------

Civil Rights Act Gavin Grimm Lgbt Neil Gorsuch Scotus Supreme Court




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