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The Eleventh Circuit Holds That Discrimination Because of Gender Non-Conformity is Actionable, But Discrimination Because of Sexual Orientation Is Not Under Title VII

On Friday, March 10, 2017, the Eleventh Circuit Court of Appeals decided the case of Evans v. Georgia Regional Hospital. The Eleventh Circuit is the federal court that hears and decides appeals from federal district courts in Alabama, Florida, and Georgia.

The central issues in Evans was whether a plaintiff may claim that an employer has unlawfully discriminated against him or her because the plaintiff does not conform to gender stereotypes (e.g., a woman who doesn't act "womanly" enough, or a man who doesn't act "manly" enough) and because of the plaintiff's sexual orientation.

Jameka Evans, a lesbian, sued Georgia Regional Hospital, alleging that it discriminated against her because of her sexual orientation. She also alleged that the hospital harassed and discriminated against her in various ways because, as the court construed her allegations, "it was 'evident' that she identified with the male gender, because of how she presented herself[.]" In other words, Evans alleged that the defendant discriminated against her because she failed to conform to certain ideas about how men and women should behave.

Title VII of the Civil Rights Act of 1964 prohibits discrimination because of, among other traits, "sex." Plaintiffs have been arguing for years that the prohibition on discrimination because of "sex" must mean that Title VII prohibits discrimination on the basis of sexual orientation. However, every one of the federal circuit court of appeals to have addressed this issue before Evans has held that Title VII does not protect an individual from discrimination on the basis of sexual orientation; and those courts have dismissed the cases of plaintiffs attempting to make this argument.

Most decisions of a federal court of appeals are issued by a three-judge panel; and in the vast majority of those decisions, one of those three judges writes the opinion on behalf of the entire three-judge panel. In this case, however, all three of the judges wrote their own opinions. That is a testament to the importance and difficulty of these questions.

In the end, however, two of the three judges in Evans agreed that, while Title VII prohibits discrimination because a person does not adhere to traditional gender stereotypes, Title VII does not prohibit discrimination because of a person's sexual orientation.

With this holding, the Eleventh Circuit brings itself in line with every single one of the eleven federal circuits to have decided this issue. The dissent by Judge Rosenbaum, however, makes the case for holding that Title VII in fact prohibits discrimination on the basis of sexual orientation. The lively debate among the judges strongly suggests that we certainly have not heard the last word on this issue, whether in Evans' case or in subsequent cases.

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