Hively's Self-Induced Blindness

14 Pages Posted: 14 Jun 2017

See all articles by Brian Soucek

Brian Soucek

University of California, Davis - School of Law

Date Written: June 13, 2017


The Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College has received as much attention for its dueling views of statutory interpretation as for its historic holding: that sexual orientation discrimination is protected under Title VII’s “because of sex” prong. Yet the opinions’ divergent approaches to statutory interpretation end up doing surprisingly little work. Lacking substantive engagement with the ways sexual orientation discrimination helps police gender norms or longstanding debates over how thoroughly Title VII is meant to disrupt those norms, the opinions instead offer an originalism without history, a dynamic interpretation that lacks limits, and a textualism largely divorced from the values Title VII’s text is meant to address. As other courts consider whether to adopt Hively’s important holding, its gender-blind approach to equality law should give way to one that foregrounds the opportunity-limiting sex stereotyping at the heart of anti-LGBT animus.

Keywords: Title VII, Sexual Orientation, Sex Discrimination, Employment Discrimination, Antidiscrimination Law, Statutory Interpretation

Suggested Citation

Soucek, Brian, Hively's Self-Induced Blindness (June 13, 2017). 127 Yale L.J. F. 115 (2017), Available at SSRN:

Brian Soucek (Contact Author)

University of California, Davis - School of Law ( email )

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