The Seventh Circuit Court of Appeals ruled this month that a lesbian college professor had the right to sue her school alleging discrimination based on her sexual orientation. Credit: AFP

LGBTQ rights are likely headed for a showdown at the U.S. Supreme Court after judges in Illinois came to opposite conclusions from courts in Georgia and New York on whether LGBTQ people are protected from discrimination in the workplace.

Last week the New York City-based Second Circuit Court of Appeals found against Donald Zarda, a skydiving instructor who claims he was let go from his job after informing a client he was gay. A three-judge panel held that a 2000 ruling from the court—which claimed that the 1964 Civil Rights Act doesn’t protect against sexual orientation bias—precluded Zarda’s ability to challenge his firing.

This conflicts with a decision handed down by the Seventh Circuit Court of Appeals earlier this month. In an 8-3 decision, the Chicago-based appellate court ruled that a college professor had the legal right to sue her university after claiming she’d been blocked from a promotion due to her sexual orientation. Kim Hively, a lesbian, claimed in the suit that she had been chastised by an administrator at Indiana’s Ivy Tech Community College after kissing her partner in the parking lot. (The staff member claimed that Hively was caught “sucking face.”)

After that incident, the part-time professor claims, she was denied full-time employment and was subsequently fired. Indiana is one of 28 states that lack explicit employment protections for LGBTQ people, which means Hively had no means to challenge that decision under current state law.

But that will change—locally, at least—after the Seventh Circuit’s ruling, which found that claims of discrimination on the basis of sexual orientation are covered under Title VII of the Civil Rights Act. That law prohibits sex-based bias in the workplace, and the April 4 decision made the Seventh Circuit the first federal appellate court to extend the interpretation of that law to include LGBTQ people.

According to the Seventh Circuit, what puts Hively v. Ivy Community College under the 1964 law (which also prohibits discrimination on the basis of race, religion, and national origin) is that it represents the “ultimate case” of discrimination on the basis of gender. To deny a woman advancement in the workplace because she happens to be in a relationship with someone of her same sex is “based on assumptions about the proper behavior for someone of a given sex.” In other words, if a similarly situated man were in a relationship with a woman, he wouldn’t be subject to the same treatment.

The Seventh Circuit reversed its own decision from a month earlier, in which a three-judge panel argued that there wasn’t sufficient precedent from within the Seventh Circuit to find that sexual orientation was covered under existing civil rights law. The court’s previous decisions included Ulane v. Eastern Airlines, in which it decided that transgender pilot Karen Frances Ulane, who was fired from her job in 1980 after she began transitioning, was not able to claim bias under Title VII. Judge Diane Wood wrote then that the law doesn’t “outlaw discrimination against a person who has a sexual identity disorder.”

Society has obviously changed a great deal since the days when being transgender was considered a mental disorder. But given that the previous decision “had been out there for so long,” says Mary Anne Case, a law professor at the University of Chicago, the court’s “hands were tied.”

“The courts had basically said: ‘We’re sorry, but we can’t do anything about this according to our precedents,'” Case says.

Greg Nevins, the Lambda Legal attorney who represented Hively, petitioned the court for en banc review, in which all 11 members of the Seventh Circuit would hear the case. That would allow the court to deliberate not only its own previous rulings, but also changes in civil rights law since Ulane was decided more than three decades ago. In 1998’s Oncale v. Sundowner Offshore Services, for example, the Supreme Court held that claims of sexual harassment were still valid if both of the parties involved were of the same gender.

Nevins says the Seventh Circuit’s April 4 decision is a “big deal.”

“The opinion applies only to Wisconsin, Indiana, and Illinois, but it’s going to have an outsize influence on other cases,” Nevins says. “I think it will have a very powerful effect on the law going forward in other circuits.”

Brian Johnson, the executive director of Equality Illinois, said that even though LGBTQ people in Illinois are shielded from employment discrimination under the Illinois Human Rights Act, it will address the bias Illinoisans could face when traveling to other jurisdictions for work.

Say, for instance, that a gay man lives in Chicago, and is offered a job in Gary. Prior to this month’s decision, displaying a photo of his husband on his desk could lead him to be terminated with no legal recourse.

“There’s undoubtedly a chilling effect, not just in the workplace but also in public,” Johnson says of the legal climate prior to the Seventh Circuit’s ruling. “The impetus for the Hively case was around a kiss in a parking lot. Laws like these means LGBTQ people might not hold hands with their partner at the mall or may not go out for Friday date night because they don’t want to be seen by their employer or colleagues at work.”

In a statement Ivy Tech denied “that it discriminated against the plaintiff on the basis of her sex or sexual orientation” but “does not intend to seek Supreme Court review.”

“Ivy Tech Community College rejects discrimination of all types, sexual orientation discrimination is specifically barred by our policies,” said Jeff Fanter, senior vice president for student experience, in an e-mail. “Ivy Tech respects and appreciates the opinions rendered by the judges of the Seventh Circuit Court of Appeals.”

Hively v. Ivy Tech thus appears settled, but the Seventh Circuit decision could lead to a battle over the rights of LGBTQ workers at the Supreme Court following the conflicting rulings from other appellate courts.

In addition to this week’s Second Circuit decision, the Atlanta-based 11th Circuit Court of Appeals argued in a March ruling that a lesbian employee, Jameka Evans, didn’t have the right to file suit against her former employer for “sex stereotyping.” The court’s findings relied upon precedent in 1979’s Blum v. Gulf Oil, which found that “discharge for homosexuality is not prohibited by Title VII.”

According to Nevins, the 11th Circuit argued in last month’s ruling that employers have the right to dismiss their workers “at will.”

“If they fire you for a horrible reason or no reason at all,” he says, “you have no claim unless it’s an illegal reason.”

The split means that the issue will likely be decided by the nation’s highest court, which may not be good news for LGBTQ people.

Justice Neil Gorsuch was recently confirmed to fill the spot left vacant on the Supreme Court bench by the death of Antonin Scalia, an ultraconservative jurist who compared LGBTQ people to polygamists, murderers, child abusers, and heroin addicts. Donald Trump claimed that his SCOTUS pick would be “very much in the mold” of Scalia. Gorsuch, a strict constructionist, argued against legal recognition for same-sex unions in his 2004 dissertation at Oxford University.

In a piece published in the National Review a year later, he claimed liberals are “addicted to the courtroom” to advance the “gay marriage agenda.”

Justice Anthony Kennedy, who is 80 years old, may be considering retirement, according to recent reporting by ABC News. That would allow Trump to fill another seat on the court. The two most liberal members of the court, Ruth Bader Ginsburg and Stephen Breyer, are also its oldest judges, at 84 and 78 respectively.

Nevins, though, claims that there’s an alternative to a battle in the Supreme Court. The Seventh Circuit decision might encourage other appellate courts to hear the case en banc—and allow their judges to deliberate on whether their prior legal standards apply to today.

“It allows the court to overrule the prior bad decisions,” Nevins says. “It allows them to say, ‘The arguments we did rely on were wrong. All the arguments that are being made now, those are the correct arguments.'”