The first case has only minor implications for the law of sexual orientation. In Verrinder v. Rite Aid Corp., 2007 U.S. Dist. LEXIS 90931 (W.D. Va. 2007), an employee of Rite Aid Pharmacies alleged that his co-workers engaged in illegal racial and sexual harassment by decrying those, such as the plaintiff, who married women of a different race and by implying that the plaintiff was homosexual. Verrinder, 2007 U.S. Dist. LEXIS 90931 at 2. The federal district court's discussion of sexual orientation issues was brief, and the court's legal conclusions simply cited the unremarkable concepts that Title VII does not forbid discrimination based on sexual orientation and thus the plaintiff needed to prove that he would not have been harassed if he was not male. See Verrinder, 2007 U.S. Dist. LEXIS 90931 at 25 (stating that "Plaintiff must show that he would not have been subjected to offensive comments about his sexual orientation if he were not male."); Id. at 24 n. 14 (noting that Title VII does not provide a cause of action for employment discrimination based on sexual orientation). The court then refused to enter summary judgment in favor of the plaintiff.
Verrinder is another reminder of the rather limited state of Title VII law in regards to sexual orientation. The federal courts' continued rejection of the argument that discrimination against gay and lesbian employees is a form of sex discrimination has left the LGBT community with little hope of fighting discrimination under federal law. There is the possibility that a plaintiff could succeed in litigation on the theory that employment discrimination was based on his refusal to conform to certain gender norms because of his perceived sexual orientation, but this view is unlikely to take hold in the Fourth Circuit or similar conservative benches. I happen to agree that Title VII, as it exists now, does not forbid discrimination on the basis of sexual orientation. At the very least, it is clear that Congress did not intend for the statute to cover sexual orientation. The gender norms argument referenced above has some appeal to me, but I believe that the application of Title VII as a means to prevent people from holding certain gender norms is beyond the scope of that statute ( although it might be addressed by other appropriate legislation). Congress' recent interest in passing the proposed Employment Non-Discrimination Act still represents the best opportunity for resolving employment discrimination against LGBTI individuals. See generally Employment Non-Discrimination Act, H.R. 3685, 110th Cong. (2007).
A more interesting recent case involved custody arrangements in the Virginia state courts. In Sirney v. Sirney, 2007 Va. App. LEXIS 473 (Va. Ct. App. 2007), the appellant divorced her husband and took her four children with her to Oregon, where she lived with her female partner. Sirney, 2007 Va. App. LEXIS 473 at 2. The father was awarded primary custody in 2004, with the appellant retaining visitation rights. The father then requested sole custody of the children, which the trial court granted because communications had deteriorated amongst the parents, the appellant's relationship with her children had deteriorated because she had not had visitation with them for some time, and the mother cohabitated with a person to whom she was not married. Id. at 3. The trial court insisted that it had not based its decision on the appellant's lesbian relationship, but rather upon the lack of contact between the appellant and the children (due in part to the mother's fear of hostile contact from her former husband) and two of the children's discomfort with their mother's romantic situation. See id. at 5 (stating that the decision to give custody to the father was the result of two of the oldest children's discomfort with their mother's relationship and the inability of the appellant and her former husband to co-parent the children). Before the Virginia Court of Appeals, the appellant first argued the trial court gave insufficient weight to the father's hostility towards her and his contribution to her inability to see her children and the breakdown in the parents' communications. See id. at 5 (describing the appellant's assertion that, given the trial court's finding of the father's hostility, it was an abuse of discretion to fail to give more weight to the hostile actions of the father and the breakdown in communications with him). The court rejected this argument because the trial court had found that the building hostility between the couple was "a two-way street." Id. at 8. Thus the trial court gave adequate consideration to the father's detrimental impact upon the relationship amongst the parents and the children. The appellant also raised an Equal Protection Clause challenge to the trial court's order prohibiting her partner from staying overnight when the children visited. Id. at 12. The court rejected this challenge because the trial court's order applied both to same-sex and opposite-sex unmarried overnight visitors, and the order thus treated heterosexual and homosexual relationships in the same manner. Id. at 13. The court did not agree with the notion that the prohibition on unmarried visitors served to exclude only homosexuals. The court simply stated "[m]other's argument that the trial court would have no grounds to impose the overnight restriction if she was married to her current life partner in a marriage that Virginia would recognize as legal poses a hypothetical situation. 'We need not address this argument since it posits a wholly hypothetical situation.'" Id. at 13–14 (quoting Pryor v. Commonwealth, 48 Va. App. 1, 7 ( Va. Ct. App. 2006)).
The Sirney decision, in my view, typifies a jurisprudence that ignores significant facts and context. The order prohibiting overnight visitors is a form of proxy discrimination against LGBT people. The court gave short shrift to the important point that Virginia law does not recognize any gay unions, which renders the trial court's order a de facto ban on overnight homosexual visitors. The court, in a rather strange twist, treats this as an argument based on a "hypothetical situation" that merits no further discussion. Yet appellant makes a significant point; legal regimes banning marriage among same-sex couples provides the basis for other legal measures that deny equal protection of the laws. The Sirney Court's failure to recognize this point demonstrates the failure of the current law regarding sexual orientation to appreciate the pervasive discrimination embodied in a state's ban on gay marriage and in routine state trial court orders.
I have concluded my first blog post for now, and I appreciate you taking the time to read it. I would welcome any comments you have on these cases or on federal and state legal issues affecting LGBTI individuals.
