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Chicago Federal Judge Includes List Of Favorite Gays In Landmark Civil Rights Decision

By Anthony Todd in Food on Apr 6, 2017 3:00PM

Richard Posner, handout
In case you missed it (or you aren't an appellate court geek), the Seventh Circuit Court of Appeals, based in Chicago, released a fairly important civil rights decision on gay rights and employment discrimination on Wednesday. However, contained within a concurrence by the famously colorful Judge Richard Posner was something a little odd: a list of influential GLBT men and women.

For background, the case is Kimberly Hively v. Ivy Tech Community College, and the case centered around the definition of "sex." Title VII, the primary anti-discrimination law related to employment, prevents discrimination based on sex, but the federal appeals courts have been split about whether this applies to discrimination based on sexual orientation. Hively is a lesbian who claims she was discriminated against by her employer, and the Seventh Circuit found that this was covered by Title VII.

The Court's argument goes something like this, according to the author of the majority opinion, Judge Diane Wood: "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." The full text of all of the opinions can be found here.

Legal wrangling aside, the Seventh Circuit opinion provoked attacks from the right and cheers from the left. But somewhat missed in all the hubbub was Judge Posner's interesting concurrence. The Judge is known for his sharply worded opinions, as well as for his decisions that sometimes favor practicality (or at least his version of practicality) over actual legal precedent. In a concurring opinion, Judge Posner came out strongly in favor of an expanded interpretation of Title VII and wrote a mini-screed against originalism (that included a jab against sexual harassment at Fox News).

He also included this odd tidbit:

We now understand that homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations) are normal in the ways that count, and beyond that have made many outstanding intellectual and cultural contributions to society (think for example of Tchaikovsky, Oscar Wilde, Jane Addams, André Gide, Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Turing, Alec Guinness, Leonard Bernstein, Van Cliburn, and James Baldwin—a very partial list).

Above the Law referred to this as Posner's list of his "favorite gays," and apparently he has a sense of humor about it—when Above the Law asked him why Elton John was excluded, he added John to the list.

While this is a bit strange (can you imagine a list of prominent African-Americans as part of a race discrimination case?), read charitably, this is a good example of how opinions change over time. A 78 year old Republican-appointed judge explaining how gay men and women are normal and important to society is definitely not something anyone could have expected 20 or 30 years ago. Indeed, as Posner points out in his opinion:

I had graduated from law school two years before the law was enacted. Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of À la recherche du temps perdu.” Homosexuality was almost invisible in the 1960s.

It might have been invisible to Judge Posner, but declaiming from the bench that homosexuality was invisible in the 1960s ignores pretty much all of GLBT history and the experiences of GLBT people, and betrays a fairly basic ignorance of the past.

Posner uses this position to argue that while the drafters of Title VII would never have even considered sexual orientation, now (thanks in part of those acclaimed gays he lists), opinions have changed and gays are understood to be "normal in the ways that count." Therefore (apparently), they are now worthy of protection under the law.

While this narrative leads Posner to a commendable outcome, it's a bit of a skewed view of the past.

The definition of "sex" in the minds of the authors of Title VII in 1964 didn't exclude gay people because the authors didn't know gay people existed. The authors would never have thought to include gay people because the authors who wrote the law were often virulently homophobic. Gay men and lesbians were plenty visible before the magical days of the 1990s; they were just portrayed as deviants to be stopped, and often not discussed in polite society. Consider the purges of gay men and women from the military, the purges of gay men and women from the state department during the 1950s, the well-publicized raids on gay bars and gathering places during the 1950s and 60s and the demonstrations by pro-gay activist societies as early as 1950.

GLBT people were known to exist at the time Title VII was drafted. Basing a legal argument on a narrative of their then-invisibility and now-prominence (as if we as a society had miraculously come around and redeemed our anti-gay sins because of the acting of Alec Guinness) is a fundamental misreading of history, and creates a narrative of historical progress that obscures the true past. The way Posner describes it, discrimination against gay people is more of a "whoops" than an act of will - people like him just didn't notice GLBT people, and when they finally did, they realized GLBT people were A-Ok. The true story? Some people in society have changed their views on just how "normal" homosexuality is. Many have not. And the complexity and detail contained within that story is more illuminating than a judge describing how he enjoys Elton John.

Why does this matter? As Judge Sykes put it in her dissent:

If Kimberly Hively was denied a job because of her sexual orientation, she was treated unjustly. But Title VII does not provide a remedy for this kind of discrimination. The argument that it should must be addressed to Congress.

This means that it is even more important to learn the true history of discrimination against GLBT people, in order to make a compelling case for Congress to change the law. Not because gays and lesbians are now "normal" and have some paradigmatic cultural figures on their side, but because discrimination on the basis of sexual orientation is just as wrong as discrimination on the basis of sex and race. Especially with a Supreme Court that may be unlikely to adopt the Seventh Circuit's expansive view of this law, it is more important than ever to make a compelling case based on facts, not historical myths of gay social progress.