For the second time in just two months, the Chicago-based U.S. Court of Appeals for the Seventh Circuit has issued a ground-breaking ruling that will have an enormous impact on countless gender discrimination cases involving LGBTQ people.
In April, the Seventh Circuit overturned itself and broke ranks with its sister by holding that employment discrimination “because of sex,” which is prohibited by Title VII of the Civil Rights Act of 1964, includes employment discrimination specifically targeting employees on the basis of sexual orientation. As Kevin Love Hubbard previewed and as Andrew Melzer and I have discussed elsewhere, Hively v. Ivy Tech Community College of Indiana, will likely serve as a bellwether in the rapidly developing LGBTQ discrimination field. While the decisions of the Seventh Circuit are only binding on federal courts in Illinois, Indiana, and Wisconsin, the powerful and commonsense reasoning underlying Hively is already having an impact as far away as New York, where a district court judge recently adopted Hively’s reasoning in also concluding that Title VII prohibits discrimination on the basis of sexual orientation, thereby giving the Second Circuit the opportunity to overturn its less LGBTQ-friendly case law as well.
On May 30, the Court once again moved the bar for LGBTQ rights in Whitaker v. Kenosha Unified School District, in which it held that preventing a student from using a school bathroom that corresponded to the student’s gender identity amounted to unlawful discrimination. The Seventh Circuit wasn’t the first appeals court to reach this conclusion; the Fourth Circuit said as much last year in G.G. ex rel. Grimm v. Gloucester County School Board. However, the two cases differ enormously in how they each got to that conclusion.
Grimm found the school’s policy to be unlawful under Title IX, which prohibits discrimination in schools in much the same way as Title VII prohibits employment discrimination. The Fourth Circuit leaned heavily on the work of the U.S. Department of Education, which had recently interpreted Title IX to prohibit discrimination on the basis of gender identity. However, this approach made the decision vulnerable to anti-transgender political forces, and the U.S. Supreme Court wiped out (but did not reverse) Grimm once the Trump administration reversed the Department’s stance on precisely whom is protected by Title IX.
What makes Whitaker different is that the Seventh Circuit didn’t rely on the Department of Education’s earlier guidance at all in reaching its decision. Instead, the Court interpreted Title IX for itself, borrowing in particular from Title VII cases like Hively that had previously established that punishing employees for not conforming to gender stereotypes (such as the stereotype that women should only be attracted to men, and vice versa) amounted to discrimination “because of sex.” The Whitaker court extended this reasoning based on the simple premise that punishing a transgender student is, at heart, a particularly glaring form of sex stereotyping. Barring an amendment to Title IX that specifically excludes transgender students from protection – or a reversal by the Supreme Court or an en banc panel of the Seventh Circuit – Whitaker’s reading of Title IX will remain the law within the circuit and will probably also remain highly influential outside of it.
But the Whitaker court didn’t stop at its interpretation of Title IX. While it didn’t strictly need to, the Court also considered whether the school’s bathroom policy also violated the equal protection provision of the Fourteenth Amendment; it concluded that it did. A constitutional holding cannot be directly undone by either of the political branches, so it would require a reversal by the Supreme Court or an en banc panel. The aftermath suffered by Grimm will not be suffered by Whitaker.
So what do Hively and Whitaker mean for victims of gender identity discrimination in the workplace working with employment lawyers or LGBTQ discrimination attorneys? First, the Seventh Circuit’s decisions (along with decisions in numerous other courts) show us that interpretations of Title VII and Title IX tend to influence each other, so there is an excellent chance that Whitaker’s broad interpretation of “sex discrimination” to protect transgender students would apply with equal force to protect transgender employees. Likewise, both Hively and Whitaker provide a hook to other courts nationwide as they join in the rapid development of federal case law to protect LGBTQ individuals in the employment context.