A Federal Judge's Rather Rude Joke About Lesbians

The Seventh Circuit, sitting en banc, delves into... lesbianism.

Judge William J. Bauer (via YouTube)

Judge William J. Bauer (via YouTube)

Earlier this week, the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, heard oral arguments in Hively v. Ivy Tech Community College. The issue (as stated in the vacated three-judge panel opinion): “whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation.”

The law prohibits employment discrimination “because of sex,” and so the question is whether sexual-orientation discrimination falls under this term. As explained by Mark Joseph Stern of Slate, “Some federal courts, as well as the Equal Employment Opportunity Commission, have found that sex discrimination encompasses sexual orientation discrimination—and that anti-gay workplace discrimination is thus already illegal nationwide. Wednesday marked the EEOC’s first opportunity to test this interpretation in a federal appeals court since it adopted the theory in 2015.”

Here’s what jumped out at me (and several tipsters) from the oral argument (starting around the 37-minute mark):

JUDGE RICHARD POSNER: Why do you think there are lesbians?

JUDGE WILLIAM BAUER: What was the question?

[Laughter.]

Okay, that wasn’t the joke. People laughed because Judge Posner asked a question you don’t often hear in a federal appellate argument, and Judge Bauer asked for clarification in an amusingly befuddled sort of way.

JOHN MALEY [counsel for appellee Ivy Tech]: Why do I think, uh, people are….

JUDGE POSNER: Why do you think there’s this… type of person?

MALEY: The caselaw has cited to….

JUDGE POSNER: This is not a caselaw question. What is the cause of lesbianism?

MALEY: It’s now an immutable characteristic, is what the medical professionals say….

JUDGE BAUER: It’s not just ugly men, huh?

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Wow. I can’t put it any better than Mark Joseph Stern: “Bauer is 90 years old, and that is the kindest thing I can think to say about him at this time.”

When I first heard about this exchange, I wondered also about the appropriateness of Judge Posner’s unorthodox “why are there lesbians” line of questioning. But if you listen to it in context, it makes much more sense (and is, by the way, very Posnerian in its pragmatism). Per Stern:

Posner explains that homosexuality appears to be “part of your genetic makeup,” meaning lesbians are “significantly different from other women.” His point is that, genetically speaking, sex literally includes sexual orientation….

And so Posner’s point is quite germane to a discussion of whether discrimination because of sexual orientation constitutes discrimination “because of sex.” (In addition, as Courthouse News points out, the questioning reflects Posner’s “long-standing interest in the biological roots of sexuality, which he examined in his 1992 book, Sex and Reason” (affiliate link).)

Here’s the other part of the argument that will interest Article III groupies and other fans of the federal judiciary (via Slate):

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Gail Coleman, arguing for the EEOC, follows up [Lambda Legal attorney Gregory Nevins’s] sturdy performance with a clear reiteration of his most critical points—but gets sidetracked by a few silly questions from Judge Diane S. Sykes, who seems to be auditioning to fill the Supreme Court vacancy.

Judge Sykes’s audition is timely — President-elect Donald Trump has said he’ll announce his SCOTUS nominee “pretty soon” — but I take issue with Stern’s characterization of her questions as “silly.” If you listen to the relevant part of the argument (starting around 24:00), you’ll see the point she is trying to make. Her argument, in a nutshell: we should compare the alleged treatment of plaintiff Kimberly Hively — a gay, qualified woman — to the treatment that would be given to a gay, qualified man. If Hively and this hypothetical male employee get treated differently, then that would be discrimination “because of sex”; but if they both get the same (mis)treatment, then there’s no discrimination “because of sex.”

This strikes me as reasonable. And Congress could take this whole issue off the plate of courts by simply passing the Employment Non-Discrimination Act (ENDA), which would ban discrimination in hiring and employment on the basis of sexual orientation or gender identity. This method of achieving the (very admirable) goal of prohibiting sexual-orientation discrimination would be preferable to having it done by courts.

I do think, however, that Judge Sykes’s argument would be more persuasive if the Seventh Circuit were writing on a blank slate. The problem for her is Supreme Court precedent, most notably Price Waterhouse v. Hopkins (holding that gender stereotyping is actionable as sex discrimination) and Loving v. Virginia (striking down state laws banning interracial marriage — and, by the way, the basis for an acclaimed new movie).

Here is how Judge Frank Easterbrook, a leading conservative legal mind, raises Loving (in a question directed to John Maley, counsel to Ivy Tech):

I’d like you to focus on Loving v. Virginia from 1967. State law bans marriages between a black person and a white person. And the Supreme Court holds that that is race discrimination. Here we have an employer’s ban on relations between a woman and a woman. Why isn’t that sex discrimination by exactly the reasoning of Loving?

Maley offers some non sequiturs, like “I recall Loving being a constitutional decision on marriage,” and gets promptly pounced upon by Judge Easterbrook, Judge Posner, and Chief Judge Diane Wood (three of the fiercest intellects on the federal bench, and not a trio you want to mess with).

EEOC Commissioner Chai Feldblum, speaking to Mark Joseph Stern post-argument, expressed optimism: “The lawyer for Ivy Tech had no answer to the Loving question! None. Judge Easterbrook was right on target. Different judges discussed different theories, but they all led to one conclusion: Sexual orientation discrimination always involves gender. It is sex discrimination.”

Feldblum declined to predict the outcome, but I will: Hively and the EEOC will win before the Seventh Circuit. But who will write the opinion, and what reasoning will it employ? That’s anyone’s guess.

Kimberly Hively v. Ivy Tech Community College: Oral Argument [U.S. Court of Appeals for the Seventh Circuit]
Kimberly Hively v. Ivy Tech Community College: Panel Opinion [U.S. Court of Appeals for the Seventh Circuit]
Listen to Federal Judges Shred Arguments That Civil Rights Law Doesn’t Protect Gay Employees [Slate]
The 7th Circuit Looks Poised to Rule That Anti-Gay Employment Discrimination is Already Illegal [Slate]
Seventh Circuit Poised to Grant Major Gay-Rights Victory [Courthouse News Service]


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.