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Speaker 1: For the first time, a federal appeals court has ruled

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Speaker 1: that U. S. Civil rights law bars job discrimination on

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Speaker 1: the basis of sexual orientation. The eight to three ruling

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Speaker 1: by the Seventh U. S. Circuit Court of Appeals late

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Speaker 1: yesterday cleared the way for a lawsuit by an Indiana

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Speaker 1: teacher who claims a community college wouldn't hire her full

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Speaker 1: time because she is a lesbian. The ruling puts the

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Speaker 1: Seventh Circuit in conflict with other federal appeals courts, meaning

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Speaker 1: the issue the issue looks likely to be resolved by

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Speaker 1: the U. S. Supreme Court. With us to talk about

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Speaker 1: this landmark ruling is Michael Selmi, a professor at George

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Speaker 1: Washington University Law School, and early LaBelle who teaches at

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Speaker 1: the University of San Diego. Mike, welcome to you both.

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Speaker 1: First of all, Mike, federal civil rights law called Title

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Speaker 1: seven says that employers can't discriminate on the basis of sex.

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Speaker 1: It's as sex as well as some other factors like

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Speaker 1: race and religion. It doesn't say anything about sexual orientation.

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Speaker 1: So how did this decision written by Judge Diane would

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Speaker 1: how did they get around that that language issue? Well,

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Speaker 1: the court um there were actually a couple of different opinions, Diane,

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Speaker 1: which was the main opinion of the court, and this

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Speaker 1: is an issue that has been percolating in the lower

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Speaker 1: courts for some time. And ultimately what she concluded is

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Speaker 1: that the definition of sex includes um sexual orientation based

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Speaker 1: on um the comparisons that individuals have to use in

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Speaker 1: order to succeed on Title seven claims. So for this case,

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Speaker 1: where it is a lesbian who is bringing the claim,

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Speaker 1: the court concluded that the fact that she is being

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Speaker 1: treated differently because she is in rest in or dating

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Speaker 1: women makes it so that she is being treated differently

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Speaker 1: because of her sex. That if she were a man

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Speaker 1: who was dating a woman, is one way to look

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Speaker 1: at it, she would um uh not have been she

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Speaker 1: would have been offered the job in that And there's

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Speaker 1: also another theory that underlines the decision, and that is

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Speaker 1: that individuals men and lesbians, um uh do not satisfy

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Speaker 1: the norm of our gender, our gender norms, and it's

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Speaker 1: what's known as gender nonconformity theory, and so that people

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Speaker 1: who go against the standard norms are being discriminated against

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Speaker 1: that because they don't fit the stereotype of what it

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Speaker 1: means to be a man or a woman in that

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Speaker 1: to the Court concluded, is a basis for applying Title

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Speaker 1: seven to discrimination based on sexual orientation. Orally, you get

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Speaker 1: the descent. Can you give us a synopsis of why

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Speaker 1: the descent thought that Judge Wood was wrong? Yeah, well,

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Speaker 1: I do not agree with the descent. But Judge Pikes,

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Speaker 1: who um was one of the finalists for this year's

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Speaker 1: Trump Supreme Court nominees, wrote about how it might be

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Speaker 1: unfair to discriminate against somebody because of their sexual orientation,

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Speaker 1: but she adheres to the very strict definition, strict wording

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Speaker 1: of Title seven that just has the words sex in it,

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Speaker 1: and she, like other what you would call originalists or

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Speaker 1: conservative conservative non activists judges, wants to have Congress expand

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Speaker 1: the definitions of the law and not have the judiciary

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Speaker 1: be active and kind of have this living understanding of

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Speaker 1: what the law requires of us. There was a really

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Speaker 1: great discussion those opinions and Judge Posner's concurring opinion about

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Speaker 1: what the proper role of judges is and especially when

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Speaker 1: they're interpreting old statutes and orally you sort of alluded

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Speaker 1: to I think I know where you're coming down on that.

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Speaker 1: But I'm interested in in both of your take on

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Speaker 1: on that debate. In particular, Posner says, essentially, you know,

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Speaker 1: we are doing this because we know that Congress in

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Speaker 1: nineteen sixty four would not have intended this definition of sex.

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Speaker 1: But our understanding of the word sex has changed since then. Uh,

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Speaker 1: and we're going to apply that. So who's Mike, Who's

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Speaker 1: right in that debate? Well? I have to say I

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Speaker 1: found Judge Posner's decision quite refreshing, uh, in that he admitted,

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Speaker 1: UM quite clearly that this the interpretation that the Court

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Speaker 1: was adopting, was not one that was consistent with the

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Speaker 1: understanding at the time the statue was passed in nineteen

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Speaker 1: sixty four. UM. And that's correct. This was not a

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Speaker 1: area that the Congress had considered UM. And for many

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Speaker 1: years the statue was was deemed not to apply to

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Speaker 1: sexual orientation. But in the last decade things have changed.

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Speaker 1: And one of the things that both Diane Wood's UM

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Speaker 1: decision and Judge Posner's decision address is that and Judge

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Speaker 1: Wood talks about it UM quite extensively in her opinion,

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Speaker 1: that the Supreme Court has opened this road, as they've

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Speaker 1: acknowledged in the recent decision on same sex marriage. Over

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Speaker 1: felt in other cases that we should have a more

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Speaker 1: expansive definition of sex, and so she also indicated that

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Speaker 1: we were falling, that they were falling. I'm sorry that

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Speaker 1: they were falling to the path of Supreme Court had

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Speaker 1: paid and Judge Poser and his decision was pretty clear

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Speaker 1: that it was not necessary to wait for Congress to

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Speaker 1: address that. He said they could, but this he considers

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Speaker 1: to be the rule of the Court to update statutes

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Speaker 1: to be more contemporary. Or I want to ask you

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Speaker 1: about that too, But before I do, let me just

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Speaker 1: mention that we are waiting for our President Trump and

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Speaker 1: jord Jordan and King Abdullah to hold a press conference

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Speaker 1: and we are going to jump over to that as

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Speaker 1: soon as it begins. Uh. Right now, there are two

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Speaker 1: empty lecterns in the looks like the rose garden of

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Speaker 1: the White House. Um or orally on that same question,

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Speaker 1: isn't this what Judge Posner said? Kind of? Um Maybe

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Speaker 1: radical is too strong a word, but that's that is

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Speaker 1: that usually how judges interpret statutes. I thought they looked

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Speaker 1: at the words and what Congress was intending at the

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Speaker 1: time they passed those words. Yeah, that's Posner is an

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Speaker 1: incredible judge who writes a lot, and he's a scholar

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Speaker 1: as well and teaches at the University of Chicago Law School,

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Speaker 1: And so he's an great character to understand what judges

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Speaker 1: do because he was considered a conservative judge, he was

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Speaker 1: a Republican appointee. UM. But on the other hand, UM,

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Speaker 1: he's he really understands that laws are about making market

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Speaker 1: and society better and they have reasons behind them. They're

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Speaker 1: not just black letter, UM. They are not to be

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Speaker 1: just interpreted and kind of a stale ways um that

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Speaker 1: doesn't evolve