He Says He Was Fired For Being Gay. This Federal Court Won’t Hear His Case

A federal appeals court in Atlanta has declined to take up the case of a gay employee who claims he was fired because of his sexual orientation.

In a Wednesday decision, the 11th U.S. Circuit Court of Appeals declined to weigh in on a discrimination claim by Gerald Lynn Bostock, a former employee of the Clayton County Juvenile Court System. Bostock, who worked 13 years in child welfare services, claimed that he was terminated when his department found out he is gay.

While it did not weigh in on the validity of Bostock’s allegations, the appeals court affirmed its earlier position that LGBTQ people cannot claim workplace discrimination under Title VII of the Civil Rights Act of 1964.

The decades-old civil rights law — which prohibits bias in employment on the basis of characteristics like race, religion, and sex — does not specifically enumerate protections on the basis of gender identity and sexual orientation. While other courts have extended those rights to LGBTQ employees, the 11th Circuit has continued to hold an extremely narrow reading of those guidelines.

Although the bench did not state its reasons for refusing the case, Judges Robin S. Rosenbaum and Jill Pryor filed an impassioned dissent taking colleagues to task for clinging to “a 39-year-old precedent” in refusing to reconsider its stance on workplace protections for queer and trans people.

“I continue to firmly believe that Title VII prohibits discrimination against gay and lesbian individuals because they fail to conform to their employers’ views when it comes to whom they should love,” Rosenbaum said in a written opinion.

The judge cited a 2011 study from UCLA’s The Williams Institute reporting widespread prejudice against queer and trans people in employment settings. A quarter of eight million people in the U.S. who identify as LGBTQ say they have experienced workplace discrimination on the basis of their identity

“That’s a whole lot of people potentially affected by this issue,” she said.

Rosenbaum noted that a growing number of federal courts have diverged from the conservative court — which has been packed with Trump appointees over the past 18 months. Both the Second and Seventh Circuit Courts have ruled that LGBTQ identity is a protected category under the category of sex discrimination.

In contrast, the 11th Circuit ruled in Title VII didn’t apply to a discrimination case against a lesbian security guard brought before the bench last year.

The issue could next be heard by the Supreme Court.

Bostock’s case is one of two petitions on the subject of LGBTQ workplace discrimination filed to the nation’s highest bench. The other is the Second Circuit ruling in Zarda v. Altitude Express, in which the court ruled that a skydiving instructor had the right to sue for discrimination after claiming he was fired for being gay.

The Supreme Court has historically declined to weigh in on whether sexual orientation and gender identity fall under the purview of national civil rights law.