The 11th United States Circuit Court of Appeals has ruled that gay and lesbian employees are not a protected class under Title VII of the Civil Rights Act of 1964 and, therefore, can be discriminated against by employers because of their sexual orientation.
Title VII currently prohibits discrimination on the basis of race, sex, religion, and national origin.
Judge Bill Pryor, recently on President Trump’s short list to fill Justice Scalia’s vacancy on the Supreme Court and former Alabama attorney general, drew a distinction between being gay and behaving as a gay person might. He stated that homosexuals cannot be discriminated against because of the way they dress or behave, but they can be discriminated against because they are homosexual. Judge Robin Rosenbaum in her dissenting opinion defined Judge Pryor’s argument as a “defiance of logic.”
Title VII does not currently list sexual orientation as a protected class. However, a 2011 case that came before the 11th Circuit previously extended Title VII protections to transgender employees discriminated against because they do not comply with stereotypical norms of that person’s biological gender. Judge Pryor reasoned that such discrimination was based on a person’s behavior, which is not the same as discriminating against someone because of his or her sexual orientation.
Judge Pryor stated: “If the law is wrong, it should be changed, but the power for that is not with us.” In contrast, Judge Rosenbaum dissented: “There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity, because not being straight is gender-nonconforming, period.”