Dear Dawg: Well, I’m just going to be blunt. Our district is small, rural and conservative. Am I being redundant? We do not want to expose our children to teachers who are not the kind of people that the folks in this community can support. I can’t imagine that a gay or lesbian teacher would want to live here, and I’m sure they would not be very comfortable here. I know that we would not be happy with them. Now don’t get on any soap box with me, Dawg—I seek just a straight legal opinion. If we refuse to hire both gay men and lesbian women, how on earth can someone think that we are discriminating on account of their sex? I understand that many people will not approve—but legally if we treat homosexual men and women the same….how can they call that “sex” discrimination? POLITICALLY INCORRECT TO THE CORE.
DEAR POLITICALLY INCORRECT: OK, no soap box. We will just refer you to the recent decision of the 2nd Circuit en banc. “En banc” is Latin for “this is really a big deal. We got ALL the judges in on this one.” The 2nd Circuit held that discrimination based on sexual orientation is a form of sex discrimination, and thus is a violation of Title VI of the 1964 Civil Rights Act. The key here is that Title VI does not just apply when males and females are treated differently. It applies when decisions are “based on sex.” The majority of the court reasoned that discrimination based on a person’s sexual orientation is “based on sex” regardless of the gender of the person.
This decision upholds the view of the EEOC and rejects the view of the Trump Administration. That’s right—the Trump Administration opposed its own EEOC on this one. Go figure.
The issue is likely to eventually get to SCOTUS, but for now, we will just advise you that this 2nd Circuit en banc decision is a big deal, especially since the 7th Circuit has already said the same thing. So good luck out there in politically incorrect land.
The case is Zarda v. Altitude Express, decided by the 2nd Circuit on February 26, 2018. We found it at 855 F.3d 76.
DAWG BONE: TREND LINE IS PRETTY CLEAR: DISCRIMINATION BASED ON SEXUAL ORIENTATION IS A FORM OF SEX DISCRIMINATION.