Federal Courtroom Ruling Forbidding Antigay Job Discrimination Doubtlessly a Very Massive Deal

Rainbow flagJeff Malet Images/NewscomDiscrimination on the idea of sexual orientation counts as discrimination on the idea of intercourse and subsequently is already prohibited underneath related federal legal guidelines. That is the meat of the ruling launched late yesterday by the U.S. Courtroom of Appeals for the seventh Circuit, which covers Indiana, Illinois, and Wisconsin.

The Eight-Three ruling has big political and authorized penalties. The court docket particularly decided that Title VII of the Civil Rights Act of 1964, which bars discrimination on the idea of intercourse, additionally bars discrimination on the idea of sexual orientation. So now, abruptly, with out passing any new legal guidelines, now we have a brand new protected class underneath federal regulation.

Thoughts you, the court docket does not see this as a brand new federal class, or a minimum of the bulk does not. The case revolved round a lady suing Ivy Tech Group School in Indiana claiming that she had been discriminated in opposition to and denied educating positions on the idea of her sexual orientation. Sexual orientation is notably not lined underneath Title VII and decrease courts had tossed her case out for that cause. However the full court docket decided that although sexual orientation doesn’t have particular separate safety underneath federal regulation, it’s nonetheless lined underneath bans on intercourse discrimination.

One of many arguments the court docket discovered compelling was that for those who modified the plaintiff’s intercourse to male and adjusted nothing else about her life, the discrimination wouldn’t have occurred. She can be a person married to a lady—a heterosexual—and wouldn’t have been denied employment due to her relationship. Subsequently, discrimination on the idea of her intercourse is indicated, not simply her orientation. Moreover, the Supreme Courtroom has beforehand established a precedent that discrimination on the idea of whether or not an individual conforms (or not) to a gender stereotype counts as intercourse discrimination. That precedent can also be delivered to bear on this case (and has been invoked in other cases of discrimination on the basis of sexual orientation and gender identity as well):

Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel describes the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs from traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).

The majority ruling is fundamentally focused on the idea that court decisions over time have filled out the concept of what certain types of discrimination mean in real practice beyond just the basic terms of “sex” or “race” or any other protected characteristic. Discriminating against a woman because she’s pregnant counts as sex discrimination. Discriminating against a person for being in an interracial marriage counts as discrimination on the basis of race. Therefore, their logic is that discriminating against a person for being a relationship with somebody of the same sex is discrimination on the basis of sex.

Such a ruling may also then bring into play a lively debate over the limits of who much leeway judges should have to determine the boundaries of a law and how much they should be bound to the original intent of the law’s creators. That’s a diplomatic way of saying that there’s going to be a lot of discussion about “activist judges” in response to this case.

The three dissenting judges were very concerned at the consequences of the judiciary making the decision to massively expand the limits of what the classifications of the law covered:

The result is a statutory amendment courtesy of unelected judges. Judge Posner [who wrote a concurring opinion] 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 loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.

If this court decision ultimately withstands Supreme Court scrutiny (assuming it or a similar case makes it there—but I think that’s a safe assumption), it would have the impact of rendering a huge amount of remaining gay political activism moot. The argument can also apply (and has been used in courts) to cover discrimination on the basis of gender identity, which would then have federal civil rights laws protecting transgender citizens as well.

There are multiple ways of both defending and critiquing this decision from a libertarian perspective. When elimination of laws and regulations are not on the table—and they’re not here—the appropriate alternative is for them to all apply equally. That’s been the libertarian argument for same-sex legal recognition. If the government is going to regulate marriages it shouldn’t be discriminating on the basis of sex of the participants (and arguably the number of consenting adults who want to participate).

On the other hand, this is also a situation where the decision increases the opportunity for the government to use the law, its authority, and its monopoly of force in order to punish private citizens, and that should always be a reason for concern. Much of my resistance to the expanse of public accommodation laws and my defense for the right of religious shop owners to decline to provide their services to same-sex weddings is based not on some sort of perverse pleasure at seeing gay customers get rejected. Rather, I think the use of government power to punish people for their actions when it’s absolutely unnecessary to do so presents a much greater threat for harm than such low-level and relatively uncommon discrimination.

Discrimination in employment and housing is a little different, though, and there are going to be those who feel it’s fundamentally different to punish a baker for not making a wedding cake versus punishing a college refusing to employ a gay person. But if that’s how the citizenry feel, maybe federal law should actually spell it out.

Read the full decision here. The ruling is now competing for attention with the shocking, shocking news today that Barry Manilow is gay.

Scott Shackford

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