‘Why Do You Think There Are Lesbians’: Seventh Circuit Hears Anti-Gay Discrimination Case

After being reprimanded for kissing her girlfriend in a campus parking lot, Kimberly Hively tried in vain to get full-time employment at the college where she worked. She never received an interview, and in 2014, the college failed to renew her part-time position.

In 2009, Kimberly Hively was an adjunct math professor at Ivy Tech, a community college in Indiana. Someone reported they had seen Hively kiss her girlfriend, and Hively was reprimanded. Ivy Tech Community College / YouTube

When the U.S. Supreme Court ruled in favor of marriage equality in 2015, LGBTQ advocates won a significant victory. Outside of the marriage context, however, LGBTQ rights remain a patchwork quilt ranging from minimal to near-complete, depending on the state and the right. Ensuring that all people have equal protections in things such as employment and housing continues to be a hard-fought battle in local legislatures and lower courts.

One such case, which has been making its way through the Seventh Circuit Court of Appeals since last year, is Hively v. Ivy Tech. The full Seventh Circuit heard oral arguments on the case last week.

In 2009, Kimberly Hively was an adjunct math professor at Ivy Tech, a community college in Indiana. Someone reported they had seen Hively kiss her girlfriend in the campus parking lot, and Hively was reprimanded. Over the next several years, Hively tried, in vain, to get full-time employment at the college, but she never received an interview, even though she was qualified and there were open positions. In 2014, the college failed to renew her part-time position. She now works as a high school math teacher.

Hively filed a lawsuit in federal court in Indiana, alleging that the college violated Title VII of the Civil Rights Act when it discriminated against her for being a lesbian. One problem: Title VII prohibits sex discrimination, but is not generally read to prohibit sexual orientation discrimination. Worse, Indiana has no state-level protections for LGBTQ people outside of the marriage context. That means people can be fired just for being gay, even though it is legal to be married to a same-sex spouse.

However, the Equal Employment Opportunity Commission (EEOC) has recently taken a hard line supporting LGBTQ rights, including issuing a 2015 decision finding that Title VII does prohibit anti-gay discrimination. EEOC decisions are not binding on any court, but are often granted some level of deference.

In this case, the EEOC backed Hively, and Lambda Legal came aboard to represent her in court. At the trial court level, the college argued, successfully, that Title VII doesn’t protect Hively—or anyone else—against discrimination on the basis of sexual orientation. Hively appealed to the Seventh Circuit, but the panel agreed with the lower court and held Hively’s case should be dismissed. She then successfully petitioned the Seventh Circuit to hear the case en banc—that is, to have the entire Seventh Circuit appellate bench review the case and hear oral arguments.

The Seventh Circuit is one of the nation’s more … rambunctious appellate courts. Among many others, there’s Frank Easterbrook, a short-tempered Reagan appointee. There’s Diane Sykes, widely regarded as a front-runner for a Trump Supreme Court pick. There’s Diane Wood, a stalwart liberal who was a member of both Planned Parenthood and the National Organization for Women before becoming a judge. And finally, there’s Richard Posner, an irascible conservative who somehow became a staunch defender of gay rights during the marriage debate.

Wednesday’s oral arguments in the Hively case showed all four of those judges (along with, on this particular day, seven others) in fine form, peppering attorneys for Hively, the EEOC, and Ivy Tech with questions that ranged from the favorable to the cantankerous to the deeply odd.

Judge Wood, as expected, seemed open to the idea that Title VII should encompass sexual orientation, calling out Ivy Tech’s attorney for a brief Wood framed as “Ivy Tech deplores sexual orientation discrimination, but we’re going to defend our right to do it anyway.”

With Posner, things got positively weird. He asked the attorney for Ivy Tech, “Why do you think there are lesbians?” Posner went on to say that if being gay is part of someone’s genetic makeup, wouldn’t that make lesbians “significantly different from other women?”

“You’re all women, but you’re very different, and you’re different in a way that’s built into your genes,” Posner continued to muse.

The most charitable reading of Posner’s line of questioning is that he might have been saying that being a lesbian is somehow part of the genetic sex of some women, and that discriminating against them for being lesbians is discriminating against them on the basis of sex.

In the end, there’s really no way, regardless of the decision, that the losing side wouldn’t petition the U.S. Supreme Court to take the case. And it’s highly likely the Court would do so. Expanding the reach of Title VII to encompass a prohibition on anti-gay discrimination in the workplace would be a giant step forward. Had Merrick Garland been confirmed, this would almost certainly have been have been a slam dunk. However, with the Trump presidency, the conservatives will again have a majority on the Supreme Court bench.

This likely means that, as with almost every major decision in the last several years, it will all come down to how Justice Anthony Kennedy feels. His majority decision in Obergefell v. Hodges gave us marriage equality, but he also joined the majority in Wal-Mart v. Dukes, in which the Supreme Court refused to certify as a class of 1.6 million women who worked for Walmart. The plaintiffs in that case alleged that Walmart, as an institution, was suffused with a gender bias that led to women being promoted into managerial positions only infrequently. As Lyle Denniston wrote for SCOTUSblog at the time, because of that decision, “Each of those women, it appears, will have to complain on her own to federal officials, or file her own lawsuit.”

Will Kennedy jump at the chance to expand Title VII protections, or will he revert to a retrograde line of thinking about gender and the workplace? Only time will tell.

Now, more than ever, LGBTQ individuals need as much protection from discrimination as they can get. Interpreting Title VII to provide, nationwide, those protections in employment would be a huge safety net, particularly for places like Indiana where state-level protections just don’t exist. Hopefully, Hively is the vehicle to make that happen.