The Second Circuit joined the Seventh Circuit and the EEOC in ruling that Title VII protects individuals from discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775 (2nd Cir. February 26, 2018). The Second Circuit agreed with the Seventh that the law evolves. The court ruled that, even if the authors of Title VII never intended to protect people from discrimination based on sexual orientation, (a) the text of the statute says that employers may not discriminate “because of sex” and (b) discrimination on the basis of sexual orientation is, necessarily, logically, and as a result of “operationalizing” definitions, discrimination because of sex. The court relied on the EEOC’s 3 bases for its position – sexual orientation is defined by one’s sex, sexual orientation discrimination is sex stereotyping, and sexual orientation discrimination is discrimination based on a person’s association with others of the same sex.

The court’s opinion is laced with judicial views concerning the nature of law, the meanings of statutory terms, and the logic of relationships. Consequently, the issue seems headed for the Supreme Court, where we can expect a re-chopping of all its conclusions. In any case, the court took no position on whether statutory exceptions in Title VII or the Religious Freedom Restoration Act might immunize religious employers. So, we will see plenty more philosophical debate about sex in the lower courts too.