March 13, 2017
Imagine the money America would save if liberals understood a little concept called the "separation of powers." Instead, they clog the courts with cases hoping that judges won't interpret the law, but rewrite it in a way that elected representatives refuse to! And while some courts are all too willing to comply, others -- like the 11th Circuit Court of Appeals -- are leaving the legislating to Congress.
It's a novel idea to rule on the plain text of the law, but Judge William Pryor agrees that if the Left wants to change the way we define discrimination, it's asking the wrong branch of government. Like us, he knows that the Civil Rights Act of 1964 accomplished a lot of things -- but special rights for people based on their sexual preferences was not one of them. Nowhere in the text of the law does it say anything about making "sexual orientation" a protected class -- but that hasn't stopped the Left from arguing as much. But based on a decision late Friday, they'll have to argue harder or (*gasp*) convince lawmakers to change the law! In the case of Jameka Evans, a security guard who claims she was fired for identifying as a lesbian, a three-judge panel of the 11th Circuit ruled that "sex discrimination" -- which is part of Title VII -- is not the same as "sexual orientation discrimination."
For the last few years, we've seen this new trend from liberals, including President Obama, to twist the Civil Rights Act (which statues like Title VII and Title IX are based on) to fit their modern-day LGBT agenda. That's how the last administration justified its gender-free school bathroom and shower mandate. They argued that people who identify as transgender were somehow part of the broad umbrella of "sex" outlined in the law in 1964. But, as most people point out, sexual orientation wasn't on the minds of legislators 53 years ago when it was trying to weed out prejudice -- and more importantly, it wasn't in the text of the law it passed! This is just another attempt by the Left to rewrite policy through the courts because it knows the public isn't on board with its radical agenda.
Fortunately, Judge Pryor agreed with the lower court that Evans's claim "relies on false stereotypes of gay individuals." By a 2-1 decision, the panel rejected the claim that "sex discrimination" includes "sexual preference," as Pryor called it. "Just as woman cannot recover under Title VII when she is fired because of her heterosexuality, neither can a gay woman sue for discrimination based on her sexual orientation." He goes on, "Deviation from a particular gender stereotype may correlate disproportionately with a particular sexual orientation, and plaintiffs who allege discrimination on the basis of gender nonconformity will often also have experienced discrimination because of sexual orientation. But under Title VII, we ask only whether the individual experienced discrimination for deviating from a gender stereotype."
In an almost comical dissent, Judge Robin Rosenbaum tried to refute Pryor's reasoning but showed her true activist colors instead. "There mere fact that we may believe that Congress may not have specifically intended the meaning of what a statute actually says is not a basis for failing to apply the textual language." Translation: Sure, Congress didn't include "sexual orientation" in its law, but that doesn't mean we shouldn't read into it what we want! Meanwhile, no federal appeals court has ever ruled that Title VII includes "sexual orientation." And thanks to Judge Pryor, this 11th Circuit panel won't be the first.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.