This court ruling could help change the scope of gay rights in America

A federal appeals court just handed down a huge ruling in favor of gay rights.

On Monday, the Court of Appeals for the Second Circuit ruled that anti-gay discrimination in the workplace is prohibited under Title VII of the federal Civil Rights Act of 1964. The law doesn’t explicitly ban anti-gay discrimination, instead banning discrimination based on sex. LGBTQ activists, however, have long argued that the ban on sex discrimination should cover anti-gay discrimination as well.

The Second Circuit Court agreed, using the example of a woman attracted to a woman.

“[A] woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,” the court’s majority opinion said. “We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

The ruling does not apply nationwide, instead only applying to the Second Circuit, which is made up of Connecticut, New York, and Vermont. It could be reversed by the Supreme Court — or affirmed, expanding the decision to the rest of the country.

The case originated with Donald Zarda, a skydiving instructor who said an employer, Altitude Express, fired him due to his sexual orientation. Zarda died in a base-jumping accident in 2014, according to Bloomberg, but his estate and family have continued the case.

The ruling is a victory for Zarda’s estate, overruling a lower court on this issue and remanding the case to be relitigated with the Second Circuit Court’s decision in mind.

The ruling is also a blow to President Donald Trump’s administration, which previously filed a friend-of-the-court brief in opposition to Zarda. The Trump administration has repeatedly taken anti-LGBTQ stances in courts.

The decision has national implications. Currently, most states and the federal government do not explicitly prohibit anti-gay discrimination in the workplace. But if the courts agree that the Civil Rights Act already bans anti-gay discrimination, they could change the national landscape once and for all.

The courts are currently split on this question. The Seventh Circuit Court in 2017 ruled that Title VII protects gay people, but the 11th Circuit Court previously ruled in the other direction. The contradiction could ultimately be settled by the Supreme Court.

The ruling covers a big gap in LGBTQ rights across America: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (such as restaurants, hotels, and other places that serve the public).

Someone can be fired from a job, evicted from a home, or kicked out of a business just because an employer, landlord, or business owner doesn’t approve of the person’s sexual orientation or gender identity.

Similarly, federal and most states’ laws don’t explicitly ban anti-LGBTQ discrimination in schools.

But federal and state laws do ban discrimination based on race, religion, nationality, and sex in the workplace, schools, and other settings. This is what the Civil Rights Act and other federal and state civil rights laws that followed were about.

What activists want to do is expand the existing civil rights protections to also protect LGBTQ people.

Civil rights advocates claim, however, that federal law should already shield LGBTQ people from discrimination, because, they say, bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.

According to advocates, discrimination against people based on their sexual orientation or gender identity is fundamentally rooted in prohibited sex-based expectations. For example, if someone discriminates against a gay man, that’s largely based on the expectation that a man should only love or have sex with a woman — a belief built on the idea of what a person of a certain sex should be like.

Similarly, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — again, a belief built on the idea of what a person of a certain sex assigned at birth should be like.

On the other side, opponents argue that LGBTQ nondiscrimination protections aren’t included in existing federal civil rights laws, because the authors of federal civil rights laws never believed or intended that bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.

LGBTQ advocates, citing legal precedent, say that what the original laws’ authors believe or intended is irrelevant. Joshua Block, an attorney with the ACLU LGBT and HIV Project, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.

“Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”

On Monday, the Second Circuit Court embraced this interpretation for sexual orientation in the workplace, as several other courts have already done so for gender identity. It may now be up to other federal courts, particularly the Supreme Court, to affirm or reject the decision.

Even if courts eventually conclude that statutory bans on sex discrimination do prohibit discrimination based on sexual orientation and gender identity, under federal law that would only create explicit protections in the workplace, housing, and schools — but not public accommodations. That’s because federal civil rights laws don’t ban sex discrimination in public accommodations. That leaves a hole in nondiscrimination laws to be settled even if courts ultimately come down in favor of LGBTQ rights.

Still, for now, the Second Circuit Court’s ruling gives LGBTQ advocates a major victory.