In an 8-3 en banc decision in Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit has held that discrimination based on sexual orientation is a form of sex discrimination under Title VII. In so holding, the Seventh Circuit has become the first federal appellate court to extend the protections of Title VII to prohibit discrimination on the basis of sexual orientation.

Hively, an openly gay former adjunct professor at Ivy Tech Community College, alleged that the school did not promote her and eventually terminated her contract because of her sexual orientation. A Northern District of Indiana district court granted Ivy Tech’s motion to dismiss and a three-judge Seventh Circuit panel affirmed, holding that sexual orientation claims are not available under Title VII.

Subsequently, a majority of the Seventh Circuit voted to rehear the case en banc “in light of the importance of the issue.” The majority decision, written by Chief Judge Diane P. Wood, concluded that “a person who alleges that she experienced employment discrimination on the basis of sexual orientation has put forth a case of sex discrimination for Title VII purposes.”

In reaching its decision, the court noted that historic United States Supreme Court rulings like Price Waterhouse v. Hopkins (holding that gender stereotyping falls within Title VII’s prohibition against sex discrimination) and Oncale v. Sundowner Offshore Services, Inc. ( finding that Title VII’s sexual harassment protections exist in cases where the harasser is the same sex as the victim), have expanded the traditional notions of Title VII sex discrimination protections beyond that which may have originally be contemplated when Title VII was passed. The Seventh Circuit also observed the difficulty of separating gender nonconformity claims from sexual orientation claims, citing the Second Circuit’s March 27, 2017 decision in Christiansen v. Omnicom Group, Inc., in which a three-judge panel found that an openly gay male plaintiff pleaded a claim of gender stereotyping that was sufficient to survive dismissal. The Seventh Circuit found that while the Christiansen panel declined to revisit prior Second Circuit precedent holding that sexual orientation discrimination is not prohibited under Title VII—stating that it was “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court”—two of the Christiansen judges argued in a concurring opinion that if the “appropriate occasion” were to present itself, it would “make sense for the Court to revisit” the issue.

The Seventh Circuit went on to consider Hively’s argument that Title VII sex discrimination includes discrimination on the basis of sexual orientation because, holding all other things equal and changing only her sex, she would not have been treated the same way by her former employer. The court found that, considering a scenario in which Hively was a man and had a woman as a partner, Hively has alleged that Ivy Tech would not have refused to promote her and would not have terminated her employment. This, concluded the court, “describes paradigmatic sex discrimination,” in which the employer is alleged to have “disadvantage[ed] her because she is a woman.“

The court further considered the facts at issue “[v]iewed through the lens of the gender non-conformity line of cases.” In that context, stated the court, “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.” The court noted that while the earlier panel decision “described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin,” that line, in fact “does not exist at all.”

In a concurring opinion, the often-quoted Judge Richard A. Posner agreed with the majority but suggested that a statutory interpretation approach may be a “more straightforward” means of achieving the same result. Noting that Title VII, enacted in 1964, is “now more than half a century old,” Judge Posner opined that the statute “invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted.” Acknowledging that “[i]t is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII,” Judge Posner nevertheless observed that:

The most tenable and straightforward ground for deciding in favor of Hively is that while in 1964 sex discrimination meant discrimination against men or women as such and not against subsets of men or women such as effeminate men or mannish women, the concept of sex discrimination has since broadened in light of the recognition, which barely existed in 1964, that there are significant numbers of both men and women who have a sexual orientation that sets them apart from the heterosexual members of their genetic sex (male or female), and that while they constitute a minority their sexual orientation is not evil and does not threaten our society. Title VII in terms forbids only sex discrimination, but we now understand discrimination against homosexual men and women to be a form of sex discrimination; and to paraphrase [Supreme Court Justice Oliver Wendell] Holmes, “We must consider what this country has become in deciding what that [statute] has reserved.”

A three-judge dissent to the majority opinion opined that because sexual orientation is not synonymous with sex in its ordinary usage, Title VII cannot be read to prohibit discrimination on the basis of sexual orientation. The dissent went on to argue that the majority holding effectively amends the statute, overstepping the right of Congress alone to make and amend statutory law.

Hively is a groundbreaking decision, opening the door in the Seventh Circuit (which includes Illinois, Indiana, and Wisconsin) to Title VII claims based on sexual orientation. The decision also creates a circuit split, with other appellate courts (including both Second Circuit as discussed above, as well as the Eleventh Circuit) continuing to hold that sexual orientation discrimination claims are not cognizable under Title VII. While the timing is not yet certain, the Supreme Court will ultimately be called upon to resolve the question of just how far Title VII’s sex discrimination protections extend when it comes to sexual orientation.