Jim Dey | Supreme Court set to review cases on sexual-orientation discrimination

Jim Dey | Supreme Court set to review cases on sexual-orientation discrimination

In April 2017, a Chicago federal appeals court ruled that a 1964 civil-rights law barring discrimination on account of a person's sex should be re-interpreted to protect individuals against discrimination on account of their sexual orientation.

Since then, it's been only a matter of time before the U.S. Supreme Court would feel compelled to review conflicting decisions on the issue from the various federal circuits and set a national legal standard.

That day came Monday, when the high court accepted for review three cases that address sexual orientation and a related issue.

Oral arguments will not be held in the case until after the beginning of the Supreme Court's fall 2019 term, with a decision expected sometime in early 2020.

Ironically, the decision in Hively v. Ivy Tech Community College by Chicago's 7th Circuit Court of Appeals, which helped spark the national legal debate, will not be at issue. In that case, defendant Ivy Tech decided not to ask for Supreme Court review, choosing instead to fight the discrimination allegation based on the facts, not the law.

So far, justices in the 2nd (New York) and 7th circuits have expanded prohibitions against sex discrimination to include sexual-orientation discrimination. Other circuits have not done so, including an 11th circuit (Atlanta) case that will be before the high court.

The Supreme Court also announced it will review a related case out of the 6th Circuit Court of Appeals (Cincinnati) involving a transgendered woman, Aimee Stephens, fired from her job at a Michigan funeral home because she intended to wear women's clothes to work. The 6th Circuit ruled in Stephens' favor.

The sexual preference issue raises the question of statutory interpretation: Should the statute be expanded by the courts or left exclusively for Congress to resolve?

The transgendered dispute poses the issue of whether federal law — Title VII — bars discrimination "against transgender people based on either their status as transgender or sex stereotyping" under a Supreme Court precedent that held a company "can't discriminate based on stereotypes of how a man or woman should appear or behave," according to legal analyst Amy Howe.

The two issues — sexual preference and transgender — will be separately argued.

The transgender issue is the more novel of the two, with fewer trial and appellate judges having issued opinions on the issue.

However, the sexual preference question has been addressed by a wide variety of liberal and conservative justices, and their opinions have defied the traditional liberal/conservative divide.

Some judges — liberal and conservative — have held that protection against sexual preference discrimination is not covered by the 1964 law and to hold that it does represents an abuse of judicial power.

Other judges — liberal and conservative — have argued the bar against sex discrimination can be interpreted in multiple ways because, as one jurist put it, sexual orientation is "a subset of actions taken on the basis of sex."

In the 7th Circuit's Hively decision, noted conservative Frank Easterbrook and conservative/libertarian Richard Posner supported the majority decision written by liberal Diane Wood.

"Hively alleged that if she had been a man married to a woman ... and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her," wrote Wood, characterizing the allegation as "paradigmatic sex discrimination."

Dissenting in Hively was Justice Diane Sykes, who wrote that the 1964 law "does not provide a remedy for this kind of discrimination" and "must be addressed by Congress."

Among the most interesting — and least mentioned of the opinions in the Hively case — is that of the now-retired Posner.

Despite his amazing candor, Posner's concurrence with Wood's decision has mostly been ignored in the public discussion of the legal dispute. It may be because Posner's opinion let the legal cat out of the bag.

He chided Wood for her rhetorical gamesmanship and stated that it was clear that "we, who are judges, are imposing on a half-century-old statute a meaning of 'sex discrimination' that the Congress that enacted it would not have accepted."

Nonetheless, Posner said it was the right thing to do because rewriting the statute to cover sexual preference discrimination brings an outdated statute up to modern times.

That assertion of judicial power to adopt a favored policy position at the expense of Congress' exclusive law-making authority is something judges rarely, if ever, acknowledge. Although unstated, it surely will be at the root of the arguments presented this fall to the nine-member court.

Jim Dey, a member of the News-Gazette staff, can be reached at jdey@news-gazette.com or 217-351-5369.

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