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Second Circuit to consider whether federal law prohibits sexual orientation discrimination

The U.S. Second Circuit Court of Appeals, in New York, has decided that the full court—all eleven active judges—will consider whether sexual orientation discrimination is a form of sex discrimination prohibited by the Civil Rights Act. If the full Second Circuit decides that sexual orientation discrimination is a form of sex discrimination, it will have to overrule a prior Second Circuit decision that held the opposite.

Normally, panels of three appellate judges decide cases but those three-judge panels are required to follow precedent. They cannot deviate from the decisions that their court reached in earlier cases. When the full appellate court considers a case, however, it can overrule prior precedents and a decision by the full court to hear a case signals that some judges want to consider overruling past precedent.

Federal appeals courts rarely decide to have the full court consider cases. This type of full-court review, sometimes called “en banc review,” is exceedingly rare in the Second Circuit. Thus, the Second Circuit’s decision to hear this case en banc is noteworthy in itself. The Second Circuit, however, is following the lead of the Seventh Circuit which earlier this year ruled en banc that sexual orientation discrimination is a form of sex discrimination.

In recent years, many have argued that discrimination against someone because of his or her sexual orientation is a type of sex discrimination. The arguments that support this position are threefold. The first argument goes like this: consider a company that has no problem with male employees marrying women but disapproves of male employees marrying men and fires all male employees who marry other men. This disapproval of male employees marrying men is based on the sex of the male employee and, thus, it is sex discrimination.  After all, if the male employee who married a man had been a female employee, the employer would not have fired him.

The second argument, which is somewhat similar to the first, relies on an analogy to court cases which have held that when someone discriminates against a person because he is associated in some way, such as through marriage, with someone of a different race, that is race discrimination. Likewise, the argument goes, if someone discriminates against a person because he is associated in some way, such as through marriage, with someone of the same sex, that is sex discrimination.

The third argument is based on Supreme Court precedent that prohibits discrimination against employees because they fail to conform to certain gender stereotypes. For example, if a company refused to promote a woman because she acted “macho,” did not wear skirts, kept her hair short, and did not wear make up, that would be sex discrimination. This stereotyping argument can be applied to sexual orientation discrimination because one of the principle stereotypes of men and women is that they are sexually attracted to people of the opposite sex. Thus, the very fact that someone is gay or a lesbian means that they do not conform to stereotypical notions of how men and women should behave. And, as such, discrimination against someone because of his or her sexual orientation is stereotype-based sex discrimination.

The Second Circuit will likely consider all three of these arguments. If it decides to overrule its past precedent and finds that sexual orientation discrimination is a form of sex discrimination, it will continue a trend in the federal courts toward increasing protections for LGBT people.