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Hey Seventh Circuit Court, Sex Does Not Mean Sexual Orientation

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Kluczynski Federal Building and Dirksen United States Courthouse, Chicago, Illinois
Photo credit: Ken Lund (CC-By-SA 2.0)

Article I, Section 1 of the Constitution of the United States reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Then Article II, Section 1 says in part, “The executive Power shall be vested in a President of the United States of America.”

Fast forward to Article III, Section 1 and it reads in part, “The judicial Power of the United States shall be vested in one supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish.”

Congress makes law. The President enforces and executes the law.  The Judicial Branch – the Supreme Court, appellate courts and federal district courts – interpret the law. This is Constitution 101, the founders wanted each branch to have clearly defined roles and checks and balances on the other branches.

This is not rocket science.

Apparently most of the judges in the U.S. Court of Appeals for the Seventh Circuit in Chicago need to go back to law school or, at the very least, need to pick up a dictionary. The full circuit heard Hively v. Ivy Tech Community College found on Tuesday that the Civil Rights Act of 1964 does apply to sexual orientation.

In a nutshell a teacher in Indiana, Kimberly Hively, alledged that the Ivy Tech Community College in South Bend, IN, didn’t hire her full time because she is a lesbian.

The school actually has a diversity statement that reads:

Ivy Tech Community College is committed to a diverse and inclusive educational environment that extends beyond tolerance to respect and affirms human difference.  Therefore, diversity, as defined by Ivy Tech, includes, but is not limited to, differences in race, ethnicity, religious beliefs, regional and national origin, color, gender identity, sexual orientation, socioeconomic status, age, disability, and political affiliation.  By encouraging free and open discourse, providing educational opportunities within and outside its classrooms, and intentionally recruiting and retaining a diverse assembly of students, faculty and staff, the College endeavors to graduate culturally literate individuals who will make positive contributions to a local, national, and global society. (emphasis mine)

I frankly don’t see a public community college discriminating based on that, but my focus is not whether she was discriminated against or not, but on what the Seventh Circuit Court just did in their ruling.

Apparently the justices in the majority found that “sex” includes “sexual orientation.” You see the federal Civil Rights Act of 1964 says it is unlawful, “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Incase you were confused about this, Congress also stated:

 The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-­related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise.

Not a single reference to homosexuality or transgenders… for that matter there is no mention of heterosexuality either. Any intelligent person can ascertain that “sex” means biological sex not “sexual orientation.

Chief Judge Diane Wood writing for the majority admitted that amending the law was beyond the scope of their power.

The question before us is not whether this court can, or should, “amend” Title VII to add a new protected category to the familiar list of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.

Words matter. Definitions matter. She recognizes they simply can’t add sexual orientation because they can’t rewrite law only Congress can do that. Interpretation of the law does not mean rewriting it.

Faithful interpretation of the law doesn’t mean reinterpreting words either and their decision has the same effect as amending the law. Then Circuit Judge Richard Posner made this argument in his opinion concurring with the majority opinion.

It’s true that even today if asked what is the sex of plaintiff Hively one would answer that she is female or that she is a woman, not that she is a lesbian. Lesbianism denotes a form of sexual or romantic attraction; it is not a physical sex identifier like masculinity or femininity. A broader understanding of the word “sex” in Title VII than the original understanding is thus required in order to be able to classify the discrimination of which Hively complains as a form of sex discrimination. That broader understanding is essential. Failure to adopt it would make the statute anachronistic, just as interpreting the Sherman Act by reference to its nineteenth-century framers’ understanding of competition and monopoly would make the Sherman Act anachronistic.

Oh we need a “broader understanding” of “sex” to make this work. Circuit Judge Diane Sykes was one of three judges who dissented, and she wrote the dissent. She drops some common sense which appears to be lacking among most of the judges in the Seventh Circuit.

The question before the en banc court is one of statutory interpretation. The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion. So does Judge Posner in his concurrence. Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges. Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative pro- cess by which the people govern themselves.

She continues:

We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.

Then she points out that there hasn’t been any debate over this because, well, it’s common sense – sex is not sexual orientation.

What justification is offered for this radical change in a well-established, uniform interpretation of an important—indeed, transformational—statute? My colleagues take note of the Supreme Court’s “absence from the debate.” …. What debate? There is no debate, at least not in the relevant sense. Our long-standing interpretation of Title VII is not an outlier. From the statute’s inception to the present day, the appellate courts have unanimously and repeatedly read the statute the same way, as my colleagues must and do acknowledge.  The Supreme Court has had no need to weigh in, and the unanimity among the courts of appeals strongly suggests that our long- settled interpretation is correct.

There has not been debate on this in the law because this is so straightforward. She notes that has been a cultural and political debate over LGBT rights, and the proper remedy therefore is not in the courts, but Congress.

This striking cultural change informs a case for legislative change and might eventually persuade the people’s representatives to amend the statute to implement a new public policy. But it does not bear on the sole inquiry properly before the en banc court: Is the prevailing interpretation of Title VII—that discrimination on the basis of sexual orientation is different in kind and not a form of sex discrimina- tion—wrong as an original matter?

Those who want to see federal protection for LGBT employees may not think it is fair to not include sexual orientation. Then they need to work to get that language codified, this is why many states specifically include the terms “sexual orientation” and “gender identity” in their own civil rights codes because “sex” doesn’t mean “sexual orientation.” This isn’t about promoting discrimination I for one, with the exception of religious organizations, don’t believe hiring practices should revolve around someone’s sexual orientation because in most instances it simply doesn’t matter.

This however is a blatant disregard of the separation of powers that prevail upon linguistic and legal gymnastics in order to get the achieved result. This is not how our judiciary should operate. This opinion should trouble everyone.

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