This is big news: A 10-3 2nd U.S. Circuit Court of Appeals ruling that it was impermissible for a New York company to fire a skydiving instructor because he was gay. It is the second such ruling by an appellate court, against one in favor of discrimination in another circuit.

The Trump Administration went to court to defend the firing, over the finding of the Equal Opportunity Employment Commission. The case may force a decision from the U.S. Supreme Court.


In a majority opinion joined at least in part by eight other judges, Chief Judge Robert A. Katzmann wrote, “Since 1964, the legal framework for evaluating Title VII claims has evolved substantially,” adding that it now included expanded protections against discrimination based on factors like “sex stereotypes.” The opinion said that the law should be read to include sexual orientation.

“Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” Judge Katzmann wrote, “making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

Arkansans who want to discriminate have a couple of added degrees of protection. For one, we reside in the 8th U.S. Circuit, perhaps the most conservative appellate court, controlled by Republican judges. Arkansas also has a law intended to protect those who want to discriminate against LGBT people. You need only say it’s about religion and you may discriminate in employment, housing or even serving a hamburger. In time, that sham to protect discrimination will find its way to court resolution, too. But if Republicans continue to control the judicial appointment process, the chances of erosion of hard-won gains in non-discrimination are great.