In a decision released April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit issued a ruling concluding “that discrimination on the basis of sexual orientation is a form of sex discrimination.”
The ruling states, “Viewed through the lens of the gender non-conformity line of cases, (Kimberly) Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”
“The fundamental question is not whether a lesbian is being treated better or worse than gay men, bisexuals, or transsexuals, because such a comparison shifts too many pieces at once. Framing the question that way swaps the critical characteristic (here, sex) for both the complainant and the comparator and thus obscures the key point—whether the complainant’s protected characteristic played a role in the adverse employment decision. The counterfactual we must use is a situation in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.”
“We close by noting that we have decided only the issue put before us.  Additional complications can be saved for another day, when they are actually involved in the case.  Ivy Tech did not contend, for example, that it was a religious institution and the positions it denied to Hively related to a religious mission.  Nor have we had any occasion to consider the meaning of discrimination in the context of the provision of social or public services.  We hold only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.  It was therefore wrong to dismiss Hively’s complaint for failure to state a claim.  The judgement of the district court is REVERSED and the case is REMANDED for further proceedings.”
Hively v. Ivy Tech Community College (USA) — GIW
Hively-Ivy-Tech  — April 4, 2017 decision