Will Trump’s Supreme Court grant lesbians equal rights under the law?
Do lesbians have equal rights to employment under the law? In Trump’s America that’s an increasingly open question, but one due to be challenged by two women—Jameka Evans and Kimberly Hively—fired from their jobs for being gender non-conforming lesbians.
While polls show the majority of Americans think LGBT people are already protected under employment discrimination laws, such as the 1964 Civil Rights Act, that has yet to be determined in law by the courts. Lesbians have been targeted for employment discrimination more than other LGBT people in recent years, in part because of firings from teaching positions due to same-sex marriages and pregnancies.
Now a series of recent court cases suggest lesbians who don’t adhere to heterosexual stereotypes of femininity are more under threat than ever in every aspect of their lives, from employment discrimination to hate crimes.
Religious freedom laws have soared under the Trump Administration and Vice President Mike Pence is a notorious homophobe. Religious freedom laws and their ugly off-shoot, the bathroom bills, penalize LGBTQ people for their own existence.
During his campaign, candidate Trump claimed to be “for the gays,” and insisted that he was better for LGBTQ people than Hillary Clinton, who was the highest-ranked member of any administration to assert as she did in her now-famous speech “gay rights are human rights.”
But as with so much, what candidate Trump said wasn’t true. Is President Trump for the gays? Not so much.
On July 12 Trump, who hasn’t had a press conference in months, gave an interview to Christian Broadcasting Network’s Rev. Pat Robertson, who is known for his egregiously homophobic statements. Robertson is not a journalist, nor is CBN an actual news network, so Trump giving Robertson an interview is just one more anti-LGBT scene in Trump’s brief but bigoted presidency.
The case of Kimberly Hively began, ironically, in Pence’s home state during his tenure as governor. Hively’s case was pursued by Lambda Legal, a civil rights organization that focuses on lesbian, gay, bisexual, and transgender (LGBT) communities as well as people living with HIV/AIDS (PWAs) through impact litigation, societal education, and public policy work.
According to Lambda Legal, in August 2015, Hively filed a lawsuit in U.S. District Court for the Northern District of Indiana against a South Bend, Indiana-based community college where she had taught for 14 years.
Hively claimed the college, Ivy Tech, was violating Title VII of the Civil Rights Act by discriminating against her because of her sexual orientation, a form of sex discrimination. Lambda Legal explained that Ivy Tech successfully moved the trial court to dismiss Hively’s claim, arguing that Title VII does not protect employees from anti-gay discrimination.
This has been the assertion in every such case in recent years—that because the 1964 Civil Rights Act doesn’t specifically address sexual orientation, lesbians and gay men are not covered by it.
Lambda Legal argued that several court rulings and a recent decision by the Equal Employment Opportunity Commission (EEOC) support Hively’s contention that sexual orientation discrimination is sex discrimination under Title VII and that the dismissal should be reversed.
In April, the full Seventh Circuit Court of Appeals decided Hively’s case. In a groundbreaking 8-3 decision, the Court ruled that workplace discrimination based on sexual orientation violates federal civil rights law.
This ruling was in response to Lambda Legal urging the Court to reverse a lower court ruling to allow Hively to present her case. Hively’s case alleged that Ivy Tech Community College, where she worked as an adjunct professor for 14 years, denied her full-time employment and promotions and eventually terminated her employment because she is a lesbian.
The Hively case should have ended all further cases and become established law, but homophobia is deeply rooted. So the ruling was a one-day headline on April 7.
Ivy Tech refused to accept the Court’s ruling and is appealing, asserting they are not biased against lesbians. (And nothing underscores this more than countersuing a lesbian asserting discrimination.)
The key point in Hively’s suit is her assertion that Ivy Tech only passed her over for promotion and then fired her after learning that she was a lesbian. In the Hively ruling, Chief Judge Diane Wood (who was on Hillary Clinton’s list of possible Supreme Court picks) wrote for the majority.
“For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation,” Wood wrote. “We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.”
Wood asserted that the Court had carefully examined more than 20 years of rulings on similar cases as well as reviewing cases where lesbian and gay rights had been decided, such as the 2015 ruling by the U.S. Supreme Court legalizing same-sex marriage.
Wood detailed how Hively’s lesbianism was a factor and that her lesbianism was fundamentally linked to her female sex. “Hively represents the ultimate case of failure to conform to the female stereotype,” Wood wrote.
“She is not heterosexual. Because she is a woman who dates other women, Hively defies the stereotypical expectation that women date members of the opposite sex.
By allegedly discriminating against Hively for failing to conform to this gender role,” Wood asserted, Ivy Tech engaged in unlawful sex stereotyping and thus discriminated against her based on her sex.
According to Wood, Hively was discriminated against specifically because she was involved with other women.”This describes paradigmatic sex discrimination,” Wood writes. “Ivy Tech is disadvantaging her because she is a woman.”
This then leads to what Wood said was “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex. If we were to change the sex of one partner in a lesbian relationship,” Wood wrote, “the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex.”
But perhaps the most pivotal piece of the Hively decision going forward for other lesbians filing similar suits came from another judge on the panel, Reagan appointee Judge Richard Posner, a noted conservative. Posner asserted this:
“It has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination.
It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.”
In other words, gender non-conforming women—lesbians—are obviously being discriminated against on the sole basis of their sex and thus must be covered by the 1964 Civil Rights Act.
Wood clarified that the U.S. Supreme Court has yet to determine whether the 1964 Civil Rights Act covers sexual orientation. It is thought Hively’s case could force the SCOTUS to make that determination.
As was reported in April, in its decision to reinstate Hively’s 2014 lawsuit, which was thrown out at the local level in Indiana, the Court of Appeals ruled that protections against sex discrimination in Title VII of the Civil Rights Act of 1964 protect people from job discrimination based on their sexual orientation.
Ivy Tech is not going forward to the U.S. Supreme Court, but is taking the case back to District Court where it will likely use the dissenting opinion in the case to assert this was an “activist” ruling.
In their dissent, the three judges asserted that Wood and the majority were creating their own law. “Today the court jettisons the prevailing interpretation and installs the polar opposite,” Judge Diane Sykes, known for her deeply conservative judicial stance, wrote in dissent.
If the District Court finds in favor of Ivy Tech, Lambda Legal will no doubt take Hively’s case to the SCOTUS.
Like Hively, Evans is a gender non-conforming with a butch affect. Where Evans’ case differs from Hively’s is Lambda Legal, which represents both women, was unable to get the 11th Circuit Court of Appeals to hear Evans’ case en banc, as it did Hively’s.
As a consequence, Lambda decided on July 7 to appeal Evans’ case to the SCOTUS. There, the case will also have the full weight of Wood’s and Posner’s writing on the subject which post-dates the 11th Circuit Court’s refusal to hear Evans’ case en banc.
Wood is a well-known progressive, but that key passage by Posner, which he chose specifically to write, is a game-changer. Or should be. Whether Trump appointee Neil Gorsuch will alter the outcome of such a case—or argue against it being heard at all—remains to be seen. Since he joined the SCOTUS, Gorsuch has proven himself to be not just the youngest member of the High Court but also the most conservative and extreme.
Evans’ case is similar to Hively’s. In April 2015 she filed a lawsuit against the Georgia Regional Hospital in Savannah arguing that the level of abuse and discrimination she faced in her job as a security guard was extreme and she was forced out of the job solely based on her appearance and her lesbianism.
Evans alleges that her termination violated Title VII of the 1964 Civil Rights Act, which prohibits discrimination on the basis of sex, race, color, national origin and religion. Hively’s case would seem to bolster Evans’ argument.
The U.S. District Court for the Southern District of Georgia, which maintained Title VII does not cover sexual orientation, dismissed Evans’ case. Then Lambda Legal appealed the lower court’s ruling to the 11th U.S. Circuit Court of Appeals in Atlanta.
The 11th Circuit dismissed the case in March–a week before Hively’s groundbreaking outcome with a less reactionary bench.
On July 7 the 11th Circuit denied a petition to have the case reconsidered. Greg Nevins, director of the Employment Fairness Project at Lambda Legal, told NBC News the 11th Circuit’s decision not to rehear the case “came as a big surprise” because of the ruling in the Hively case. “[It’s a] compelling case for the Supreme Court to step in and correct this uncertainty in the law that hurts employers and employees,” Nevins said.
The clock is ticking on such a case. SCOTUS Justice Anthony Kennedy, known for being the swing voter on the High Court, has written the most defining gay rights legislation in U.S. history. And he may retire next year. (He was rumored to be retiring at the end of this term last month, but fortunately chose not to do so.)
Kennedy first argued for the normalcy and equality of same-sex relationships in Lawrence v. Texas in 2003. That case overturned the 1986 Bower v. Hardwick case which had maintained that sexual acts between same-sex couples were illegal.
In Lawrence v. Texas, Kennedy said same-sex couples should be granted the same rights as other couples to “the pursuit of happiness” as codified in the Declaration of Independence.
Lawrence v. Texas made sexual acts between consenting same sex couples legal nationwide—a groundbreaking decision. Bowers v. Hardwick had been used repeatedly against lesbian mothers in custody cases.
The case of Sharon Bottoms was inextricably linked to Bowers v. Hardwick when Bottoms’ mother sued for custody of Bottoms’ child and won based on Sharon Bottoms’ lesbianism.
Kennedy is the justice Lambda most needs to hear Evans’ case because while Ruth Bader Ginsburg, Sonya Sotomayor, Stephen Breyer and Elaine Kagan are all reliably progressive on LGBT rights issues, it is Kennedy who will determine the outcome.
The other four justices, Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Neil Gorsuch are all equally determined to halt the expansion of equality for LGBT Americans.
Complicating Evans’ case is the fact that Congress has steadfastly refused to pass a law making it illegal to discriminate against LGBT people in employment, housing, public services and other daily exchanges in which every other minority group is covered.
Since 1994 the Employment Non-Discrimination Act (ENDA) was proposed in the Congress but has failed to pass both houses of Congress. ENDA would prohibit discrimination in hiring and employment on the basis of sexual orientation of gender identity by employers with at least 15 employees.
The bill passed the Senate in 2013 and then-President Barack Obama supported the law, but it failed to pass the House. Hillary Clinton was also a proponent of ENDA.
Employment discrimination is self-limiting in that reports of such discrimination lean heavily toward states with large out LGBT populations. States where one assumes there is more discrimination is also where victims of such discrimination are less likely to report or file suit. Evans and Hively are the exceptions, not the rule, in their decision to fight their firings.
Polls vary widely, putting employment discrimination against LGBT people at between 20 and 60 percent. A full 90 percent of gender non-conforming lesbians and transgender women and men report employment discrimination and on-the-job harassment of the sort Evans and Hively experienced, according to the National Center for Transgender Equality.
In March, the three judges who ruled on Evans’ case failed to connect sex to sexual orientation, unlike the full court in Hively’s case. Circuit Judge William Pryor argued, “A gay individual may establish with enough factual evidence that she experienced sex discrimination because her behavior deviated from a gender stereotype held by an employer, but our review of that claim would rest on behavior alone.”
Pryor also wrote in his opinion that it was up to Congress, not the courts, to declare sexual orientation a protected class, the exact opposite of the ruling in the Hively case.
In a dissenting opinion, Circuit Judge Robin Rosenbaum echoed what Wood and Posner would write a week later. Rosenbaum wrote that it is time for the court to recognize that the law prohibits workplace discrimination based on an employee’s sexual orientation because that is definitively discrimination based on sex: “Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only.”
Evans’ lawsuit also included a claim that she was targeted because of gender-based behavior, notably dressing like a man and having a male haircut, although she is also obviously female. For decades lesbians–especially butch and gender non-conforming lesbians–have faced untold discrimination in all aspects of their lives from arrests in bars dating back well before Stonewall to the kind of discrimination Evans and Hively experienced.
It’s to be hoped that the enlightened perspective evidenced by both Rosenbaum’s dissent in Evans’ case and Wood and Posner in Hively’s will compel the SCOTUS to hear Evans’ case in the fall and help move LGBT Americans one step closer to full citizenship and protection under the law.