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Title VII Sexual Orientation Suit Filed at Supreme Court

By William Vogeler, Esq. on September 13, 2017 | Last updated on March 21, 2019

It's not that the case came from the Deep South, but Judge Robin Rosenbaum knew the U.S. Eleventh Circuit Court of Appeals was in deep trouble.

As she wrote in her long dissent in Evans v. Georgia Regional Hospital, the Eleventh Circuit majority was about 50 years behind the times. Now the U.S. Supreme Court will decide if it's time to bring the appeals court up to date.

The question is whether an employer may discriminate against a person based on sexual orientation. Is that still a question in 2017?

Split Decisions

Not only did the Eleventh Circuit panel divide over the issue, the appeals court decision also split the circuits. The U.S. Seventh Circuit Court of Appeals said in Hively v. Ivy Tech Community College that Title VII bars discrimination based on sexual orientation.

In the Eleventh Circuit case, the petitioner says the Supreme Court must resolve the conflict. It will be up to at least four of the nine justices whether to hear the appeal.

The Constitution Daily reported on the case after the Eleventh Circuit declined en banc review. The Supreme Court, it said, seems interested in Title VII.

"Last term, the Supreme Court showed it was interested in the transgender question under Title VII, when it agreed to hear the case of a transgender high school student who had been denied the use of the boys' bathroom because he had been assigned female gender at birth," Lyle Denniston wrote for the publication.

Deep Issues

In Evans, the petitioner said she was discriminated against under Title VII for failing to carry herself in a "traditional womanly manner." Although she is a lesbian, she identified with the male gender by wearing male clothes, a short haircut and men's shoes.

While the majority said Title VII does not prohibit discrimination based on sexual orientation, the dissent said it should. Women have a role in society, Rosenbaum posed rhetorically, to wear dresses, be subservient to men and be sexually attracted only to men.

"If she doesn't conform to this view of what a woman should be, an employer has every right to fire her," Rosenbaum wrote. "That was the law in 1963 -- before Congress enacted Title VII of the Civil Rights Act of 1964. But that is not the law now."

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