LGBTQ people are anxious about their vulnerability under the coming Donald Trump presidency, due in part to the confusing patchwork of state and federal laws that protect them. Illinois is one of 19 states that explicitly bar discrimination based on both sexual orientation and gender identity, while Wisconsin law protects gays but not trans people, and Indiana—home state of vice president-elect Mike Pence—offers none of the above.
This makes the protections enshrined in Title VII of the 1964 Civil Rights Act—which bars employment discrimination on the basis of sex, among other traits—all the more precious. And yet its interpretation is still contested.
The Chicago-based Seventh Circuit Court of Appeals will sit en banc Wednesday—gathering together all 11 of its judges—to consider the court’s case precedent. Prompting this rare assembly is a lawsuit that could have a major impact on the employment rights of gays and lesbians. Attorney Greg Nevins, director of the Workplace Fairness Program at Lambda Legal and the LGBT advocacy group’s point person on employment issues for the past decade, has taken up temporary residence in Chicago in order to try the landmark case. The Reader spoke to him last week from his offices in Atlanta.
Can you start by explaining the case you’ve brought before the Seventh Circuit, Hively vs. Ivy Tech, and what its broader significance is?
Kim Hively had been teaching at Ivy Tech Community College of Indiana and had been denied promotions and eventually was denied renewal of her contract because she’s a lesbian. And when she made her claim in federal court in Indiana, the judge said, “Well, the Seventh Circuit said that Title VII doesn’t cover [discrimination based on sexual orientation]. You need to talk to the Seventh Circuit if you want to bring this case.”
On appeal, the Seventh Circuit expressed a lot of agreement with the arguments we were making, but said, ultimately, “We’re going to stick by the decisions we rendered 15 years ago.”
But the whole court has the power to revisit its prior precedents. And so we asked them to do that. And they don’t like to do that! I mean, it’s even more difficult to get the circuit court to sit en banc than it is to get the Supreme Court to grant review, statistically speaking. And yet they did agree to take the case up before the entire court. And so it’ll be an argument before 11 judges Wednesday.
Since at least 2015, the Equal Employment Opportunity Commission has interpreted “sex” in Title VII to include sexual orientation. But the federal court system has not always agreed with that interpretation.
That’s definitely true. The federal appellate courts have not agreed with that interpretation with respect to sexual orientation. With gender identity there’s actually a lot of overlap—there are two federal circuits that have ruled in employment cases and two others that have ruled in other [cases] under other federal statutes that sex discrimination includes discrimination against transgender individuals.
So with Hively, you’re asking the Seventh Circuit to overturn all the case precedent that would have denied workplace protections to gay people, correct?
So there’s a lot at stake here.
Yes, there is. The Seventh Circuit was one of more than a few courts back about 15 years ago whose logic began and ended with “the words ‘sexual orientation’ aren’t in the statute, and Congress has been asked to pass that and they didn’t, so you lose.” And that’s just not a good way to do it. It’s just the wrong way to approach the job.
The idea of there being classes of people who are protected by Title VII is not really the question. The question is: Did what happened to you happen because of one of these traits? You should just ask the question that the statute requires you to answer, which is, is this discrimination because of the person’s sex? Would this have happened if they weren’t the sex that they are? So, all the men who worked at Ivy Tech, their attraction to women was not a problem. It was only Kim Hively’s attraction to women that was a problem.
How quickly do you expect the Seventh Circuit to make a decision?
What I always say is, they’ll issue a decision exactly when they’re ready to.
Let’s say they come back and they say, “OK, we’re going to overturn our precedent.” Would the decision also be setting a precedent nationally?
I think most people would say it would have an outsized effect. They would become the first circuit to rule that way.
If they come back and they say, “We’re not going to change our precedent,” what’s your move at that point?
Well, first off, our role is as attorneys for Kim Hively, and we just have to assess whether moving forward in asking the Supreme Court to review it is the next move.
Given the likelihood that Donald Trump could appoint the next two or three Supreme Court justices, do you want a Supreme Court to hear the case at that point?
Well, more than any other, the decision we hang our hat on is a case called Oncale vs. Sundowner Offshore Services. This was about a guy on a [oil] rig out in the Gulf of Mexico. There were only other guys on the rig, no women, and he was being just ruthlessly sexually harassed by a few of the guys and nobody else was being sexually harassed.
This was a unanimous Supreme Court decision and it was written by Justice Scalia. The court said, “Look, we know that the Congress that passed Title VII back in 1964 wasn’t thinking about male-on-male sexual harassment, but that doesn’t matter. The words of the statue are: Did this happen because of his sex? That’s all you need to know.” It doesn’t matter that every other guy on the rig was treated fine, and it didn’t matter that men were the only people that got the jobs on the rig. Scalia said specifically that for them, that doesn’t matter. They took the view that anything that happens to you because of your sex that wouldn’t have happened to you if you weren’t that sex qualifies as a violation of Title VII.
So does that mean you’re not worried about the likelihood of Trump appointing more conservative justices, at least when it comes to this particular issue?
Well, I guess the real question is: Are they thoughtful? If they’re thoughtful judges who follow the law, then I wouldn’t be worried about it. If they were ideologues with a record of railing against things from a political standpoint and not from a carefully reasoned judicial standpoint, obviously we would be concerned.
One thing I would note is that on [Trump’s] list of candidates is William Pryor out of Alabama. And this is not an endorsement of his potential nomination, but I just have to point out that one of those decisions that I referenced about transgender employees being covered [by Title VII] was a decision that I argued before him and two other judges here in Atlanta in the 11th Circuit, and he absolutely agreed with that position. He didn’t just join majority opinion, he said, “Yes, that’s what the precedence points to.” So in that sense, people need to ask the right questions and not just label someone as a conservative and write them off as hostile.
I’ve heard some people say that they feel like they’re in defense mode now—that it’s going to be less about making advancements for their community—whether that’s Muslim or LGBT—and more about just trying not to lose ground. Do you share that mentality, or do you think it’s possible to advance the cause of gay and transgender rights under the new political climate?
We have to be both on the offense and defense. We should be pushing the law forward and getting the proper interpretation of it everywhere we can. I’m sitting here in Georgia, and the legislative session is about to kick into gear, and that historically has been a challenging time for our community—especially in this neck of the woods. So I completely understand, and I don’t want to minimize what people are feeling right now, those people who feel besieged. But I took this job one year into George W. Bush’s presidency, and the prospects at the federal level for moving things forward didn’t always look bright. But we made great advances in just keeping our eyes on the prize of justice and equality. We have a job as the litigators of the movement to tell people that we will do everything we can to keep the wins that we made and to get advances wherever we can. v