It’s not definitive, but this is a huge step. The Seventh Circuit ruled 8-3 that a woman who was denied a job because she was a lesbian had a cause of action under Title VII. Title VII is the civil rights law which prevents workplace discrimination on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Congress has frequently considered amending Title VII to add the words “sexual orientation” to the list of prohibited characteristics, yet it has never done so.
In an opinion which many critics will call “legislating from the bench”, the 7th Circuit majority in Hively v. Ivy Tech Community College of Indiana, ruled that Title VII discrimination is applicable because “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation. ‘” This is undeniably true. If Ms. Hively had been a man with a preference for women, there would have been no issue with her being hired. But she is a woman. Therefore, this has to do with gender.
The dissent argues, predictably:
[Plaintiff’s attorney] is advancing a creative new legal argument for reinterpreting Title VII, deploying the comparative method not as a method of proof (its normal and intended function) but as a thought experiment with the end of imbuing the statute with a new meaning that it did not bear at its inception.
That’s a rather typical conservative judicial interpretation (unless we are talking about the word “arms” in the Second Amendment).
Anyway, this is a big step forward, and I expect that the Supreme Court will visit this soon. Here is the full opinion: