An Eleventh Circuit Court of Appeals panel held that a “gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’” but is instead a “separate, distinct avenue for relief under Title VII.” The majority opinion explained that Title VII recognizes discrimination based on a failure to conform to a gender stereotype (i.e., discrimination based on gender non-conformity) as a type of sex-based discrimination, but declined to hold that Title VII can provide relief for an individual claiming sex-based discrimination on the basis of their sexual orientation alone.

The Eleventh Circuit’s holding is in contrast to an en banc opinion issued just one month later by the Seventh Circuit Court of Appeals. The Seventh Circuit’s majority stated that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”  Based on that rationale, it held Title VII protects individuals from discrimination on the basis of their sexual orientation.

It is important to note that both majority opinions were accompanied by strong dissenting opinions – Chief Judge Flaum was joined in dissent by Judge Ripple in the Seventh Circuit, and Judge Rosenbaum penned his own dissent in the Eleventh Circuit.

Given the uncertainty in the national jurisprudence on this issue, employers should be prepared to implement policies forbidding discrimination on the basis of sexual orientation. Employers located within the Eleventh Circuit should also incorporate policies prohibiting discrimination based upon an employee’s gender identity.