The ruling by a court appointed predominantly by Republicans reflected the dramatic advances of gay rights in the legal system in recent years. | Getty Appeals court: Existing law bans anti-gay discrimination

A federal appeals court has ruled that federal law on the books for more than half a century protects gays and lesbians from discrimination in the workplace.

The full bench of the 7th U.S. Circuit Court of Appeals voted 8-3 on Tuesday to overrule a series of prior decisions that held that a prohibition on sex discrimination did not extend to discrimination on the basis of sexual orientation.


Five of the eight justices in the court's majority were Republican appointees — a startling development that reflected the dramatic advances of gay rights in the legal system in recent years.

Writing for the court's majority, Judge Diane Wood concluded that bias against gays and lesbians amounts to gender discrimination because it treats individuals differently on account of their sex and their failure to conform to gender stereotypes.

"A policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex," Wood wrote.

"The discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account. Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex."

"it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex," Clinton appointee Wood added in the court's opinion. She also said the Supreme Court's ruling striking down laws against interracial marriages supported the conclusion that someone discriminated against for their same-sex relationship was being discriminated against based on gender.

In dissent, Judge Diane Sykes accused her colleagues of adopting "a statutory amendment courtesy of unelected judges."

"When we assume the power to alter the original public meaning of a statute through the process of interpretation, we assume a power that is not ours," the George W. Bush appointee wrote. "However welcome today’s decision might be as a policy matter, it comes at a great cost to representative self-government."

Sykes also disagreed with the majority's central conclusion.

"An employer who refuses to hire homosexuals is not drawing a line based on the job applicant’s sex. He is not excluding gay men because they are men and lesbians because they are women. His discriminatory motivation is independent of and unrelated to the applicant’s sex," Sykes wrote.

Judge Richard Posner wrote an edgy concurring opinion joining the majority, but suggesting that the courts do sometimes have the ability to update laws to reflect a modern understanding rather than what Congress or the average person would have meant by sex discrimination at the time the law was passed in 1964.

"Nothing has changed more in the decades since the enactment of the statute than attitudes toward sex ... today 'sex' has a broader meaning than the genitalia you’re born with," wrote Posner, a Reagan appointee. "We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture. ... I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of 'sex discrimination' that the Congress that enacted it would not have accepted."

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The case before the court was brought by Kimberly Hively, an adjunct professor at an Indiana community college who claimed her applications for permanent teaching positions were repeatedly rejected because she is a lesbian.

Wood's opinion was joined in full by Posner, Reagan appointee Frank Easterbrook, Clinton appointee Ann Williams, George H.W. Bush appointee Ilana Rovner, and Obama appointee David Hamilton and joined in part by Reagan-appointed Judges Joel Flaum and Kenneth Ripple.

Sykes' dissent was joined by Kanne, a Reagan appointee, and William Bauer, a Ford appointee.

The defendant in the suit, Ivy Tech Community College, said Wednesday that it has no plans to ask the Supreme Court to take up the case. It also noted that the courts have not ruled on the substance of Hively's discrimination claims, which the school denies.

“Ivy Tech Community College rejects discrimination of all types, sexual orientation discrimination is specifically barred by our policies," college spokesman Jeff Fanter said in a statement. "Ivy Tech respects and appreciates the opinions rendered by the judges of the Seventh Circuit Court of Appeals and does not intend to seek Supreme Court review. The College denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court.”

The result means the decision is likely to remain the law in the 7th Circuit states of Illinois, Indiana and Wisconsin, green-lighting sexual orientation discrimination lawsuits there at least until the Supreme Court confronts the issue in some future case.