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Bostock v. Clayton County Board of Commissioners

United States Court of Appeals, Eleventh Circuit

July 18, 2018

GERALD LYNN BOSTOCK, Plaintiff - Appellant,
v.
CLAYTON COUNTY BOARD OF COMMISSIONERS, Defendant, CLAYTON COUNTY, Defendant-Appellee.

          Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:16-cv-01460-ODE

          Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.

         BY THE COURT:

         A member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

          ROSENBAUM, Circuit Judge, dissenting from the denial of rehearing en banc:

         The issue this case raises-whether Title VII protects gay and lesbian individuals from discrimination because their sexual preferences do not conform to their employers' views of whom individuals of their respective genders should love-is indisputably en-banc-worthy. Indeed, within the last fifteen months, two of our sister Circuits have found the issue of such extraordinary importance that they have each addressed it en banc. See Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).[1]

         No wonder. In 2011, about 8 million Americans identified as lesbian, gay, or bisexual.[2] See Gary J. Gates, How Many People are Lesbian, Gay, Bisexual, and Transgender?, The Williams Inst., 1, 3, 6 (Apr. 2011), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-How-Many-People-LGBT-Apr-2011.pdf (last visited July 10, 2018). Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers' expectations.[3] That's a whole lot of people potentially affected by this issue.[4]

         Yet rather than address this objectively en-banc-worthy issue, we instead cling to a 39-year-old precedent, Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), that was decided ten years before Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion of Blum. Worse still, Blum's "analysis" of the issue is as conclusory as it gets, consisting of a single sentence that, as relevant to Title VII, states in its entirety, "Discharge for homosexuality is not prohibited by Title VII." Blum, 597 F.2d at 938.[5] And if that's not bad enough, to support this proposition, Blum relies solely on Smith v. Liberty Mutual Insurance Co., 569 F.2d 325 (5th Cir. 1978)-a case that itself has been necessarily abrogated not only by Price Waterhouse but also by our own precedent in the form of Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).[6] I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people.[7]

         I have previously explained why Price Waterhouse abrogates Blum and requires the conclusion that Title VII prohibits discrimination against gay and lesbian individuals because their sexual preferences do not conform to their employers' views of whom individuals of their respective genders should love. See Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1261-73 (11th Cir.) (Rosenbaum, J., dissenting), cert. denied, 138 S.Ct. 557 (2017). Both the Second and Seventh Circuits have likewise concluded that their respective pre-Price Waterhouse precedents reaching the same conclusion as Blum cannot stand. See Zarda, 883 F.3d at 113 (observing that attempts to distinguish Price Waterhouse amount to "semantic sleight[s] of hand . . . not a defense . . . a distraction"); Hively, 853 F.3d at 350-51 ("It would require considerable calisthenics to remove 'sex' from 'sexual orientation' . . . . The logic of the Supreme Court's decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line."). I continue to firmly believe that Title VII prohibits discrimination against gay and lesbian individuals because they fail to conform to their employers' views when it comes to whom they should love.

         But I dissent today for an even more basic reason: regardless of whatever a majority of this Court's views may turn out to be on the substantive issue that Bostock raises, we have an obligation to, as a Court, at least subject the issue to the "crucial" "crucible of adversarial testing, "[8] and after that trial "yield[s] insights or reveal[s] pitfalls we cannot muster guided only by our own lights, "[9] to give a reasoned and principled explanation for our position on this issue-something we have never done.[10]

         Particularly considering the amount of the public affected by this issue, the legitimacy of the law demands we explain ourselves. See Harvie Wilkinson III, The Role of Reason in the Rule of Law, 56 U. Chi. L. Rev. 779, 798 (1989) ("Reason . . . defines the federal judicial system. Nothing in the Constitution requires the written justification of judicial decisions, but a judiciary accountable to reason cannot resort to arbitrary acts. It requires candor from judges in addressing the strongest arguments against their own views."); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 472 (1981) (Stevens, J., dissenting) ("[Common law judges'] explanations of why they decided cases as they did provided guideposts for future decisions . . . . Many of us believe that those statements of reasons provided a better guarantee of justice than . . . a code written in sufficient detail to be fit for Napoleon."); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 19-20 (1959) ("The virtue or demerit of a judgment turns, therefore, entirely on the reasons that support it."); 1 Blackstone, Commentaries 71 (1803) (observing that written court decisions have long been "held in the highest regard" because the public can examine and understand "the reasons the court gave for [its] judgment.").

         Despite never offering a reasoned explanation tested by the adversarial process, a majority of this Court apparently believes that Blum somehow prophesized the correct post-Price Waterhouse legal conclusion in its one-sentence "analysis" that relies solely on authority itself abrogated by Price Waterhouse. If the majority truly believes that, it should grant en banc rehearing and perform the "considerable calisthenics" to explain why gender nonconformity claims are cognizable except for when a person fails to conform to the "ultimate" gender stereotype by being attracted to the "wrong" gender. Hively, 853 F.3d at 346, 350. And if it doesn't or if it believes-as I and others do-that these "calisthenics" are simply "impossible," Hively, 853 F.3d at 350-51, it should not sit idly by and leave victims of discrimination remediless by allowing Blum to continue to stand.

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