What Does “Sex” Mean?

Courts have started to determine whether sexual orientation or gender identity discrimination is cognizable as sex discrimination

Courts have started to determine whether sexual orientation or gender identity discrimination is cognizable as sex discrimination under federal statutes. The Equal Employment Opportunity Commission (EEOC) issued guidance and an administrative ruling in 2015 that interpreted Title VII of the Civil Rights Act to include sexual orientation-based bias within the definition of sex-based discrimination. This reading followed the Departments of Labor and Education in similarly construing Titles IV and IX of that same Act.

The Hivley Case

It is against this background that the Seventh Circuit recently decided Hively v. Ivy Tech Community College (7th Cir. 2016). Kimberly Hively, an adjunct professor, claimed she was repeatedly denied a full-time position because she was a lesbian. The College answered that neither federal nor Illinois law prohibited sexual orientation discrimination, and therefore Hively’s suit must be dismissed. The 7th Circuit, in the first federal appellate ruling since the EEOC guidance and opinion were released, held that plaintiff did not have a Title VII claim. The court reviewed the long-standing federal precedent that Congress’s ban on “discrimination on the basis on sex” in Titles VII (and analogous bans in Titles IV and IX) did not include sexual orientation or gender identity claims. Despite the EEOC guidance and an “emerging consensus [in society and the lower federal courts] that sexual orientation [discrimination] in the workplace can no longer be tolerated” the court wrote, Congress had not acted to protect employees from such bias. Given the lack of Congressional action and long-standing judicial precedent across the country, the court believed it had to find against Hively.

The line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist.

The Difference Between “Sex Discrimination” and “Sexual Orientation Discrimination”

In an interesting section of its opinion, the 7th Circuit noted that its decision “creates an uncomfortable result in which the more visibly and stereotypically gay or lesbian a plaintiff is in mannerisms, appearance and behavior,” the more likely it is that the plaintiff will have a viable Title VII claim. This is true because the U.S. Supreme Court in Price Waterhouse v. Hopkins (1989) held that it was sex discrimination for employers to discriminate against an employee based on gender stereotypes or a belief that employees should conform to traditional indicia and behaviors for their gender. For example, an employer may not act against a female employee for not wearing dresses or makeup, or against a male employee for being effeminate or having stereotypically female hobbies like sewing or cooking. The Hively court noted that perhaps the quintessential example of non-conformity to gendered expectations is when a lesbian or gay man chooses a romantic, sexual or life partner of the same gender. Moreover, the court approvingly quoted a California district court: “Simply put, the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.” Accordingly, while the holding of Hively points in one direction, the court’s language leads in the other.

The panel wrote, “Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry,” the panel wrote. “[But u]ntil the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent.”

The handwriting on the wall may come under the guise of legislative action to add sexual orientation and gender identity as prohibited categories for employment, public accommodations and federally funded programs. However, given the current, sharp partisan divisions in the federal government, there would need to be significant political change in order for such a bill to be enacted.

More likely, action will be taken by the U.S. Supreme Court.

The Supreme Court Will Decide

Perhaps more likely will be action by the U.S. Supreme Court. In August 2016, the Court issued a stay in G.G. v. Gloucester County School Board, a case involving Gavin Grimm, a transgender teen who sued his school board for the right to use the boys’ bathroom at his Virginia high school. The school board had passed a policy requiring students to use bathrooms corresponding to their “biological sex,” meaning Grimm was barred from the boys’ restroom. Although Grimm lost at the district court, he prevailed in the 4th Circuit. The court said his gender identity case could move forward as a sex discrimination claim under Title IX. It deferred to the Obama administration’s position that barring transgender students from restrooms that coincide with their gender identity is a violation of Title IX’s prohibition on sex discrimination in federally funded programs. It issued an order that Grimm could use the restroom of his choice when the school year began. In a 5-to-3 decision, the Supreme Court said it would stay the 4th Circuit judgment pending its decision to grant or deny certiorari in the case. If the Court grants cert, it must decide whether to extend the stay; if it denies cert, it will lift the stay.

The grant of a stay would ordinarily seem to be a negative sign for the Obama administration’s reading of the Civil Rights Act since one of the criteria for a stay is likelihood of success on the merits. However, Justice Breyer specifically noted that he joined the Chief Justice and Justices Kennedy, Thomas and Alito in voting to grant the stay as a “courtesy” in order to preserve the status quo. This may signal that he may join Justices Ginsburg, Sotomayor and Kagan who dissented from the stay, if the Court eventually hears the matter on the merits.