Sexual orientation discrimination as a form of sex discrimination

While the West Virginia Supreme Court adopted the traditional view that discrimination because of sexual orientation is not a form of sex discrimination, State v. Butler, 2017 W. Va. LEXIS 333 (W.Va. 2017) (hate crime against two gay men did not constitute criminal civil rights violation willfully injuring a person "because of such other person's … sex"), the Seventh Circuit came to the opposite view in Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017). See also Christiansen v. Omnicom Group, Inc., 2017 U.S. App. LEXIS 5278 (2d Cir. 2017) (although bound by precedent to hold the opposite, the court argued that sexual orientation discrimination is a form of sex discrimination); Smith v. Avanti, 2017 U.S. Dist. LEXIS 54777 (D.Colo. 2017) (refusal to rent to same-sex couple when one of the two was a transgender woman is a form of sex discrimination because it is based on gender stereotyping).

The West Virginia Supreme Court relied on what it viewed as the "common, ordinary and accepted meaning": of the word "sex" and found that it meant something different than "sexual orientation." The ordinary meaning of sex distinguishes males from females while sexual orientation describes inclination toward sexual activity with other males or females. In addition, the laws of the states have treated sex and sexual orientation as different things with some including "sexual orientation" in their laws and many not including it. It therefore found that the word "sex" unambiguously distinguished males and females not gay and straight persons.

In contrast, the Seventh Circuit found that sexual orientation discrimination is a form of sex discrimination for three different reasons. First, applying the "comparative method," the court noted that she would have been promoted if she had been a man married to a woman but was not promoted simply because she was a woman married to a woman. Her sex was a "but for" cause of the discrimination; she was not promoted "because she is a woman." Id. at *15.

Second, the court found discrimination "under the associational theory." It is clear that "a person who is discrimniated against because of the protected characteristic of oen with whom she associates in actually being disadvantaged because of her own traits." If a woman is not promoted because she is married to a woman rather than a man, she is facing sex discrimination because of who she associates with and that treats her differently because of her own sex.

Third, the court applied the gender stereotyping or gender noncomformity theory of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and the holding of Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) that sex discrimination can be present event though perpetrator and victim are both the same sex. The court noted that the EEOC has taken the position that Title VII's prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation. Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 EEOPUB LEXIS 1905, 2015 WL 4397641 (2015). Discrimination because of sexual orientation relies on the idea that a woman is supposed to marry a man rather than another woman; that view is based on a conception of what appropriate conduct is for both women and men. It is also based on the idea that women should have a heterosexual rather than a homosexual sexual orientation.