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Bostock v. Clayton Cty. Bd. of Comm'rs

United States Court of Appeals for the Eleventh Circuit

July 18, 2018, Filed

No. 17-13801


 [*1335]  BY THE COURT:

A member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

Dissent by: ROSENBAUM


 [*1336]  ROSENBAUM, Circuit Judge, joined by JILL PRYOR, dissenting from the denial of rehearing en banc:

The issue this case raises—whether Title VII protects gay and *** individuals from discrimination because their sexual preferences do not conform to [**2]  their employers' views of whom individuals of their respective genders should love—is indisputably en-banc-worthy. Indeed, within the last fifteen months, two of our sister Circuits have found the issue of such extraordinary importance that they have each addressed it en banc. See Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).1

No wonder. In 2011, about 8 million Americans identified as ***, gay, or bisexual.2 See Gary J. Gates, How Many People are ***, Gay, Bisexual, and Transgender?, The Williams Inst., 1, 3, 6 (Apr. 2011), (last visited July 10, 2018). Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers' expectations.3 That's a whole lot of people potentially affected by this issue.4

 [*1337]  Yet rather than address this [**3]  objectively en-banc-worthy issue, we instead cling to a 39-year-old precedent, Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), that was decided ten years before Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion of Blum. Worse still, Blum's "analysis" of the issue is as conclusory as it gets, consisting of a single sentence that, as relevant to Title VII, states in its entirety, "Discharge for homosexuality is not prohibited by Title VII." Blum, 597 F.2d at 938.5 And if that's not bad enough, to support this proposition, Blum relies solely on Smith v. Liberty Mutual Insurance Co., 569 F.2d 325 (5th Cir. 1978)—a case that itself has been necessarily abrogated not only by Price Waterhouse but also by our own precedent in the form of Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).6 I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people.7

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894 F.3d 1335 *; 2018 U.S. App. LEXIS 19835 **; 102 Empl. Prac. Dec. (CCH) P46,088; 27 Fla. L. Weekly Fed. C 1029; 2018 WL 3455013

GERALD LYNN BOSTOCK, Plaintiff - Appellant, versus CLAYTON COUNTY BOARD OF COMMISSIONERS, Defendant, CLAYTON COUNTY, Defendant - Appellee.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:16-cv-01460-O.

Bostock v. Clayton Cty. Bd. of Comm'rs, 723 Fed. Appx. 964, 2018 U.S. App. LEXIS 12405 (11th Cir. Ga., May 10, 2018)


***, gender, sexual, conform, calisthenics, abrogated, love, en-banc-worthy, orientation, Bisexual, reheard, sex, sit