After the Eleventh Circuit denied a petition for rehearing en banc last week in Evans v. Georgia Regional Hospital, LGBT advocacy group Lambda Legal announced that it will appeal the dismissal of its client's complaint to the United States Supreme Court. Evans will petition the Court to hear the case and to hold that Title VII's prohibition against sex discrimination includes a prohibition against sexual orientation discrimination. The Seventh Circuit created a circuit split on this issue in April when a majority of its judges decided that sexual orientation discrimination is per se sex discrimination; we wrote about that decision here.
The Eleventh Circuit is the only circuit so far to decline the opportunity to revisit its precedent on this issue. After agreeing last year to reconsider its precedent, the Seventh Circuit issued a landmark opinion in April of this year reversing its long-held precedent that LGBT status discrimination is not covered by Title VII. The Second Circuit followed the Seventh Circuit by agreeing in May of this year to reconsider its precedent, which we discussed here.
As we have predicted, this issue is not likely to be resolved nationally unless and until the United States Supreme Court steps in, which now appears more likely with this latest development.
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