15-15234 Oral Argument

Evans v. Georgia Regional Hospital, No. 15-15234 (11th Circuit)

Notes from Oral Argument, December 15,2016

Judge Pryor opened the morning by wishing everyone a happy Bill of Rights Day. Within a minute of the beginning of plaintiff’s arguments (made by Greg Nevins of Lambda Legal), Judge Pryor jumped in. “Let’s cut to the chase,” he said. “There are two things here. We have one claim on gender nonconformity, which this court recognizes.” He then noted that there might not be enough of a clearly stated claim in the original complaint and that the remedy may well be to allow for an amended complaint (which the Magistrate’s Report and Recommendation, adopted by the District Court, denied) with a remand to the District Court for further consideration.

Point two from Judge Pryor was that this case presented a claim based on sexual orientation. He said that the 11th Circuit has a strong precedent on that issue and accordingly, he is bound to hold that Title VII does not protect against sexual orientation discrimination (see Blum v. Gulf Oil Corp., 597 F.2d 936 (5th circuit, 1979)* Nevins argued that holdings along these lines are no longer good law, and the court should revisit the issue. Judge Pryor commented this could possibly be taken up en banc, should that be necessary.

Judge Rosenbaum interjected that there didn’t seem to be a logical way to draw a line separating sexual orientation from gender nonconformity in the context of sex discrimination saying that “there is no intellectually honest way to distinguish.” The meat of the argument in this area dealt with Pryor sticking to his assertions that the court was bound to the holding that Title VII does not protect against sexual orientation discrimination while Nevins cited to multiple precedents in this shifting legal landscape and reiterated that the 11th Circuit should review it afresh. Judge Rosenbaum, while not interjecting often, did seem to agree that sexual orientation should be protected.

Judge Martinez made no comments and asked no questions. His facial expression remained neutral throughout.

Though the EEOC’s time was brief, Gail Coleman deftly pointed out that while the Hively court “tried really hard” to continue asserting that sexual orientation is not protected from discrimination, recent proceedings in the Hively case  — specifically the rehearing en banc —  may be leaving that on shaky ground at best. Also, Ms. Coleman reinforced that the 11th Circuit’s Glenn v. Brumby held that all people are protected against discrimination on the basis of gender nonconformity.

*What is today the 11th Circuit was part of the 5th Circuit before being split off in 1981, and 5th Circuit holdings prior to the split are binding precedent in the 11th Circuit.

~ Thank you to EQCF Board Member Jason Hewett for attending argument in Atlanta and providing these notes.