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Lisa Beane and Katherine Barrett Wiik File Amicus Brief Encouraging Eighth Circuit to Hold that Title VII Prohibits Discrimination Based on Sexual Orientation

Robins Kaplan appellate attorneys Lisa Beane and Katherine Barrett Wiik recently submitted an amicus brief to the U.S. Court of Appeals for the Eighth Circuit on behalf of the Columbia Law School Sexuality and Gender Law Clinic in a Title VII sex discrimination case. The brief encourages the Eighth Circuit to join the Second and Seventh Circuits in concluding that Title VII’s prohibition against sex discrimination includes discrimination based on sexual orientation.

The case, Mark Horton v. Midwest Geriatric Management, LLC, centers on an instance of alleged discrimination in which the defendant, Midwest Geriatric Management (MGM), rescinded a job offer to the plaintiff, Mark Horton, after Mr. Horton revealed that he has a husband. An Eastern District of Missouri judge dismissed Mr. Horton’s Title VII sex discrimination claim, relying upon a sentence from a 1989 decision from the Eighth Circuit that “Title VII does not prohibit discrimination against homosexuals.”

The Clinic’s amicus brief, however, argues that those words were not intended to be precedential, but rather “dicta” – non-binding statements that are not key to the decision in the matter. In particular, the brief notes that the 1989 decision was not based on a sex discrimination claim – it was a race discrimination case.

In addition, the Clinic argues that relying on decades-old dicta as though it were binding precedent “reduces the court’s flexibility to respond to changes in the law and society through its future rulings,” noting that the 1989 decision predates the elimination of anti-sodomy laws or the passage of marriage equality.  

Briefing in the appeal will conclude this spring, and the Eighth Circuit is expected to hold oral argument in the appeal later this year.