March 5, 2018 at 9:08 am PDT | by Jon Davidson
Momentous Momentum

Thurgood Marshall United States Courthouse at 40 Centre Street in New York City.

On February 26th, the full federal Court of Appeals for the Second Circuit issued an important decision known as Zarda v. Altitude Express. They ruled that Title VII—the federal law barring employment discrimination based on race, sex, religion, and national origin—protects against employment discrimination based on sexual orientation as well, because it is a form of sex discrimination. Ten of 13 Second Circuit judges agreed with this outcome. They joined 8 of 11 Seventh Circuit judges who reached a similar conclusion in Hively v. Ivy Tech Community College last April.

The Zarda decision provides federal protections to lesbian, gay, and bisexual employees within the Second Circuit—Connecticut, New York, and Vermont. Those three states already had laws expressly barring employment discrimination based on sexual orientation, however. Why, then, is the decision being hailed as a “landmark” and a “huge victory” for gay rights? (The decision also indirectly helps on trans rights, because it rejects common arguments made against Title VII’s coverage of both sexual orientation and gender identity claims.)

One reason is that having both federal and state legal protections may make it easier for employees to win their cases. The Second Circuit concluded that was true in Don Zarda’s case. They remanded Don’s case back to the lower court for a new trial, where his estate (he has since passed away) can prevail by showing that at least one of the factors that led to him being fired from his job as a skydiving instructor was his sex (understood to include his sexual orientation). That shouldn’t be too hard given that he was fired very shortly after he disclosed he was gay to a woman he was being tethered to for a tandem dive, to make her more comfortable.

The Second Circuit’s decision also adds to the split among federal circuits on whether sexual orientation discrimination violates Title VII, increasing the likelihood that the Supreme Court will soon feel the need to step in and decide who is right, in order to provide a uniform outcome nationwide. Whether they do that quickly could well affect the outcome, given the risk that delay could afford Trump another chance to appoint an anti-LGBT high court justice.

But I believe the Zarda decision’s greatest significance comes from the increasing acceptance by federal judges that sexual orientation discrimination is a subset of sex discrimination.

Polls consistently show a supermajority of Americans support having a federal law barring employment discrimination based on sexual orientation (as well as based on gender identity). Indeed, a 2011 poll found that 87% of all voters believe federal law already prohibits someone being fired for being lesbian, gay, or bisexual. Because Title VII doesn’t expressly reference sexual orientation, the only way these voters are right is if the Second and Seventh Circuits are—that that law’s express ban on sex discrimination encompasses sexual orientation discrimination as well.

Second Circuit Chief Judge Robert Katzmann clearly explained three reasons why that must be so. First, he recognized that an individual’s sexual orientation depends on their sex. If someone is male and primarily attracted to men, they’re gay. If the person instead were female but still primarily attracted to men, they’re heterosexual. So, discriminating against someone because of their sexual orientation necessarily means treating them worse than they would have been treated had they been of a different sex.

Second, courts have held that treating employees adversely because they don’t conform to stereotypes about their sex is sex discrimination. Judge Katzmann recognized that sexual orientation discrimination invariably rests on the sex stereotype that a “real” man should only be attracted to women and a “real” woman should only be attracted to women.

Third, courts have accepted that discrimination against a white employee for dating someone black discriminates against the employee based on his race. Just Katzman explained that that same reasoning must mean that discrimination against a male employee for dating a man necessarily discriminates against the employee based on his sex.

The federal EEOC came to these same conclusions in 2015. Numerous federal district courts have agreed. But, with the Second Circuit’s new ruling, large numbers of federal appellate judges are supporting these conclusions as well. That’s crucially important, because the Supreme Court is more likely to follow a growing consensus in reaching its decisions than being willing to break new ground.

That happened in the march towards marriage equality. By the time the Supreme Court issued its ruling in Obergefell, 37 states had already allowed same-sex couples to marry either by legislative action or judicial ruling. Similar change in getting rid of state sodomy laws preceded the Supreme Court’s decision in Lawrence v. Texas. Momentum is the name of the game. And, with the victory in Zarda, the wind at our backs is stronger than ever.

Jon W. Davidson has been a leading LGBT legal rights advocate and constitutional scholar for more than 30 years. He recently stepped down as the national legal director of Lambda Legal.

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