Katie Eyer

  • August 8, 2017
    Guest Post

    by Katie Eyer, Associate Professor at Rutgers Law School

    *Her Issue Brief on this subject, Sex Discrimination Law and LGBT Equality is available on the ACS website.

    The last week of July confirmed what many people already knew: that the Trump administration is no friend to LGBT rights.  On July 26, 2017, the President declared, by tweet, that “the United States Government will not accept or allow…Transgender individuals to serve in any capacity in the U.S. Military.”  That same day the Trump Justice Department filed an amicus brief in private litigation urging the 2d Circuit to find that gays and lesbians are not covered by federal antidiscrimination law.

  • April 7, 2017
    Guest Post

    by Katie Eyer, Associate Professor, Rutgers Law School             

    Since the 1970s, gay and lesbian plaintiffs have raised the argument that discrimination on the basis of sexual orientation is, inherently and necessarily, sex discrimination under Title VII. Such arguments have long had strong doctrinal support. As early as 1978, the Supreme Court made clear that "treatment of a person in a manner which, but for that person's sex, would be different" is discriminatory and prohibited under Title VII. This standard is satisfied in each and every case of sexual orientation discrimination—since by definition in a sexual orientation discrimination case sex-based disparate treatment has occurred (a woman who is fired for marrying a woman would not have been fired for the same conduct had she been a man). Other arguments founded in well-established anti-discrimination doctrine, such as associational discrimination and gender stereotyping, have also been put forward.

    And yet even after the Supreme Court’s decision in Price Waterhouse v. Hopkins—recognizing the doctrine of gender stereotyping, and holding categorically that an employer “may not take gender into account”—most courts have continued to reject the notion that sexual orientation discrimination could be considered a form of sex discrimination. Thus, while most courts did allow gay plaintiffs to bring narrower sex discrimination claims—focused on discrimination targeting deviations from gender-stereotypical appearance or mannerisms—every Court of Appeals until this week had held that sexual orientation itself was not categorically protected under Title VII.

    On Tuesday, breaking from this history, the Seventh Circuit, sitting en banc, took a fresh look at the doctrine and concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

    Thus, the Court observed inter alia:

    “Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her… This describes paradigmatic sex discrimination.

  • April 4, 2017
    Guest Post

    by Katie Eyer, Associate Professor of Law at Rutgers Law School

    *Professor Eyer was a panelist on our March 23 event, Trans Rights in the Trump Era

    On March 30, under the pressure of significant economic boycotts, the North Carolina legislature purported to repeal its so-called bathroom bill, HB 2. Enacted in 2016, HB2 responded to a local ordinance that had adopted LGBT-inclusive anti-discrimination protections by preempting (i.e., invalidating) all such local ordinances. Most famously, HB2 went further in specifically mandating that state facilities exclude transgender people from gender identity appropriate restroom access.

    While framed as a repeal, the legislation enacted last week did not simply restore the status quo. Rather, HB 142 replaced HB2 with a moratorium on new or amended local anti-discrimination laws and legislatively preempted local or executive regulation of access to multiple occupancy restrooms, showers and changing facilities. 

    Absent knowledge of its background, HB 142 could be taken for a compromise, and that is how North Carolina’s Democratic governor and some progressive legislators, have defended their acquiescence in its enactment. But for those familiar with the history of HB2 and of LGBT equality struggles, HB 142 is a transparent attempt to suspend the mechanisms of progress for LGBT equality in the state. Just as limited state-level marriage equality victories helped to pave the way for broader marriage equality gains, incremental, local level enactment of LGBT equality has been one of the lynchpins of LGBT success in the employment, education and public accommodations realms. There can be no doubt that HB 142 is an attempt to forestall this highly effective strategy by precluding localities from demonstrating—on an incremental, locality by locality basis—that LGBT equality works (and conversely, that the claims of LGBT rights opponents lack any basis in reality).