Sexual Orientation

Seventh Circuit holds that the Fair Housing Act prohibits discrimination based on sexual orientation

/ Antidiscrimination Law, Concurrent or Common Ownership, Fair Housing Act, Gender Identity, Sexual Orientation

Extending a former precedent concerning employment discrimination, Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), a three judge panel of the Seventh Circuit has held that discrimination based on sexual orientation in housing is a form of sex discrimination prohibited by the Fair Housing Act. Wetzel v. Glen St. Andrew Living Community, LLC, 2018 U.S. App. LEXIS 24193 (7th Cir. 2018). The case involves a continuing care retirement community which failed to protect one of its residents from harassment by other residents directed at her because she is a lesbian. The court held that a landlord is liable for tenant-on-tenant harassment when it has actual notice of it but chooses not to take any reasonable steps to stop that harassment. Harassment is outlawed if it is severe or pervasive and that is the case where the harassment objectively interferes with teh enjoyment of the premises …

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Religious exemption to public accommodation laws rejected by Supreme Court while those laws cannot be administered in a way that demonstrates hostility to religion or that unfairly discriminates among religious beliefs

/ Antidiscrimination Law, Consumer Protection, Free Speech, Legal Theory, Religious Freedom, Sexual Orientation

This blog entry has a long title because the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd., v. Colo. Civil Rights Comm’n, 2018 U.S. LEXIS 3386, 2018 WL 2465172 (U.S. 2018) is complicated and cannot be summarized quickly. While the baker won the case (the Supreme Court reversed the state court order to him to pay civil rights damages to the plaintiff couple for refusing to sell them a “wedding cake”), he won it on such narrow grounds that the decision is likely to wind up supporting the power to states to enforce civil rights law without regard to the religious objections of business owners. The Supreme Court ruled in favor of the baker on narrow grounds in a 7-2 decision with four judges concurring. The two dissenting judges were Ginsburg and Sotomayor. Three concurring opinions were written by Kagan (joined by Breyer) and Gorsuch (joined by Alito) and Thomas (joined by Gorsuch). …

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No sex discrimination or violation of privacy rights when trans students use bathrooms corresponding to their gender identity

/ Antidiscrimination Law, Due Process, Gender Identity, Sexual Orientation

The Third Circuit entertained and rejected a claim by cisgender students (whose gender identity corresponds to the gender assigned at birth) that their constitutional rights to privacy and their statutory rights to be free from sex discrimination were violated when trans students were allowed to use bathrooms corresponding to their gender identity. Doe v. Boyertown Area School District,2018 U.S. App. LEXIS 16323 (3d Cir. 2018). The court found that cisgender students were not deprived of a right to privacy when they had to change clothes in view of transgender students because the presence of the transgender students in bathroom and locker rooms according with their gender identity furthered an important government interest in preventing sex discrimination. Further, the court found that it would constitute sex discrimination not to treat transgender students in accord with their gender identity so that allowing them to do so could not constitute sex discrimination against cisgender …

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Another federal court rules that transgender discrimination is a form of sex discrimination

/ Antidiscrimination Law, Gender Identity, Sexual Orientation

Gavin Grimm is a man who was denied the right to use the men’s restrooms in a public school in Virginia because the school classified him as a woman based on his birth designation. U.S. District Court Judge Judge Arenda l. Wright Allen held that this constituted discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §1681-1688, the federal law that prohibits sex discrimination in any educational institution receiving federal funds. Grimm v. Gloucester County School Board, 2018 U.S. Dist. LEXIS 88638 (D.Va. 2018). The court applied the gender stereotyping theory of Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989), and agreed with the First, Sixth, Ninth, and Eleventh Circuits that discrimination based on gender identity constitutes “sex” discrimination. It concluded that “”discrimination on the basis of transgender status constitutes gender stereotyping because ‘by definition, transgender persons do not conform to …

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Courts expand “sex” discrimination laws to include prohibitions on sexual orientation and gender identity discrimination

/ Antidiscrimination Law, Sexual Orientation

Two recent Circuit Court cases create a conflict among the Circuits on the question of whether sexual orientation or gender identity discrimination is a form of “sex discrimination.” While the 11th Circuit and most other Circuits holds that it is not (see Evans v. Georgia Regional Hospital, 850 F>3d 1248 (11th Cir. 2017)), the Second and Sixth Circuits have issued rulings to the contrary. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Zarda v. Altitude Express, Inc, 883 F.3d 100 (2d Cir. 2018). Both courts agree with the 7th Circuit’s holding in Hively v. Ivy Tech Cmty. College of Indiana, 853 F.3d 339 (7th Cir. 2017) (Title VII prohibits discrimination on the basis of sexual orientation). Zarda holds that discrimination in employment on the basis of sexual orientation is both per se sex discrimination and a form of gender stereotyping. It is sex discrimination because the employer would not have engaged …

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Oregon Appeals Court affirms application of state public accommodations law to cake shop that refused to sell a wedding cake to a same-sex couple

/ Antidiscrimination Law, Consumer Protection, Sexual Orientation, Trespass

In Klein v. Or. Bureau of Labor & Indus., 2017 Ore.App. LEXIS 1598 (2017), the Court of Appeals of Oregon affirmed an administrative finding that Sweetcakes by Melissa violated the state public accommodations law when it refused to sell a wedding cake to a same-sex couple. The case is similar to the Masterpiece Cakeshop case currently being considered by the US Supreme Court because the cake shop based its claim on the first amendment’s protection of free speech (as well as a claim of religious freedom).  The owner gave religious reasons for denying service, quoting Leviticus and calling the customers “an abomination.” The court rejected the owner’s argument that the refusal to serve was “on account of” the owner’s religious convictions rather than on account of sexual orientation. It also rejected the argument that the refusal to serve was based on the “conduct” of getting married rather than the “status” of sexual …

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First Amendment protects right to federal registration of offensive trademarks that disparage a person or group

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Free Speech, Intellectual Property, Religious Freedom, Sexual Orientation, Trademarks

The Supreme Court held that the First Amendment prohibits enforcement of a provision of the Lanham Act that purports to deny the benefits of trademark registration to names or marks that “disparage” a person or “bring [them] into contempt or disrepute.” Matal v. Tam,2017 WL 2621315 (U.S. 2017); 15 U.S.C. §1502(a) (Lanham Act). The Court held that “this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” The case involved a band called “The Slants” who sought to reclaim an offensive term for persons of Asian descent. Because the Court’s analysis focused on the idea that speech cannot be regulated because of its offensive content, it would appear that this ruling would equally apply to those who use a term about themselves (the members of the Slants are Asian-Americans) …

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Supreme Court will decide whether a bakery must sell wedding cake to a same-sex couple as required by Colorado public accommodations law

/ Antidiscrimination Law, Sexual Orientation

On June 26, 2017, the Supreme Court took certiorari in this case under the name, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n. (No. 16-111). The Colorado Court of Appeals has affirmed the Civil Rights Division’s that a bakery must sell wedding cakes to same-sex couples if they would ordinarily do so to male-female couples. Mullins v. Masterpiece, 2015 Colo. App. LEXIS 121, 2015 COA 115 (Colo. App. 2015). State law prohibits discrimination on the basis of sexual orientation in public accommodations, and neither the state statute itself nor the constitution entitles the providers of goods and services to engage in proscribed discrimination for religious reasons. The court rejected the bakery’s contention that it was acting on the basis of an opposition to same-sex marriage rather than an intent to discriminate on the basis of sexual orientation. The court held that it did not matter that the bakery would sell baked goods other than a …

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Seventh Circuit holds that transgender discrimination is a form of sex discrimination

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation, Trespass

Applying Title IX of the Education Amendments Act of 1972, 20 U.S.C. §1681, as well as the Equal Protection Clause of the Fourteenth Amendment, a three judge panel of the Seventh Circuit has ruled that a school must allow a transgender boy to use the boy’s bathroom, holding that discrimination on the basis of gender idenitty is a form of sex discrimination. Whitaker v. Kenosha Sch. Dist. No. 1 Bd. of Educ., 2017 U.S. App. LEXIS 9362 (7th Cir. 2017). The court affirmed a preliminary injunction granted by the District Court requiring the school to allow plaintiff access to the restroom that conforms to his gender identity. The court rested on the gender conformity argument because “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth” and a “policy that requires an individual to use a bathroom that …

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Sexual orientation discrimination as a form of sex discrimination

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Sexual Orientation

While the West Virginia Supreme Court adopted the traditional view that discrimination because of sexual orientation is not a form of sex discrimination, State v. Butler, 2017 W. Va. LEXIS 333 (W.Va. 2017) (hate crime against two gay men did not constitute criminal civil rights violation willfully injuring a person “because of such other person’s … sex”), the Seventh Circuit came to the opposite view in Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017). See also Christiansen v. Omnicom Group, Inc., 2017 U.S. App. LEXIS 5278 (2d Cir. 2017) (although bound by precedent to hold the opposite, the court argued that sexual orientation discrimination is a form of sex discrimination); Smith v. Avanti, 2017 U.S. Dist. LEXIS 54777 (D.Colo. 2017) (refusal to rent to same-sex couple when one of the two was a transgender woman is a form of sex discrimination because it is based on gender stereotyping). The West Virginia Supreme …

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