The Volokh Conspiracy Analysis
Seventh Circuit holds that Title VII forbids anti-gay job discrimination
By Dale Carpenter April 4

In a major decision breaking with every other federal appeals court to rule on the issue, the en banc Seventh Circuit held today that sexual orientation discrimination is a form of sex discrimination forbidden by Title VII of the Civil Rights Act of 1964. The vote was 8-3. The opinion in Hively v. Ivy Tech Community College, by Judge Diane Wood, reasoned that sexual orientation discrimination is essentially indistinguishable from sex discrimination because the former relies on stereotyped concepts about how men and women should behave sexually and about with whom they should associate in their intimate lives. Because the decision creates a circuit split on the issue of anti-gay employment discrimination for the first time, the matter could now go to the Supreme Court as soon as next Term. [UPDATE: An official at Ivy Tech told the New York Times that the school “respects and appreciates” the ruling and does not plan to appeal it to the Supreme Court. The school will still contest the factual claim that it discriminated against the plaintiff.]