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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
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.