Every night Marsha Wetzel barricades herself in her room at Glen St. Andrew Living Community. The 69-year-old pushes a table against the door to keep out people who may want to hurt her. Since moving into the senior housing facility in Niles, Wetzel has been hit, spit on and rammed into by other residents because she is a lesbian, according to a federal lawsuit she filed against housing administrators for failing to intervene.
In South Bend, Ind., Kim Hively teaches at a high school after she wasn’t promoted to full-time math professor at Ivy Tech Community College. She applied six times between 2009 and 2014 and was not granted any interviews, according to the lawsuit she filed in federal court against the institution. The reason, she alleges, is that someone saw her kissing her girlfriend goodbye.
Both cases — one pending before the 7th U.S. Circuit Court of Appeals in Chicago, the other expected to be appealed to that same court — could explicitly expand LGBT rights into federal arenas such as housing and employment. To make a ruling, however, judges must consider a core issue that rests at the heart of each case: Is discrimination against sex, which is barred in federal civil rights laws, the same as discrimination against sexual orientation?
The question comes at a time when judges nationwide are increasingly willing to see the two acts as one and the same, said Anthony Kreis, a visiting assistant professor at Chicago-Kent College of Law. The semantics matter because laws on the books ban only discrimination based on sex — interpreted as a person’s gender — not based on sexual orientation.
"At the heart of many sex discrimination claims and sexual orientation discrimination claims is the idea that the motivating animus behind discriminatory action is all about gender stereotyping," said Kreis, who researches the law’s treatment of LGBT people. "We perceive you should behave in ‘x’ way, and if you don’t, we’re going to react in a way that’s contrary to fair employment practices or fair housing practices."
For example, Kreis explained, backlash stemming from a same-sex relationship is rooted in the societal expectation that men should date women and women date men. If someone is denied an opportunity for defying that gender norm, the ensuing discrimination should be seen as sex discrimination, he said.
Lawsuit Chris Sweda / Chicago Tribune Marsha Wetzel filed a federal lawsuit against the housing administrators at Glen St. Andrew Living Community in Niles, claiming they failed to intervene when she was harassed by other residents for being a lesbian. Marsha Wetzel filed a federal lawsuit against the housing administrators at Glen St. Andrew Living Community in Niles, claiming they failed to intervene when she was harassed by other residents for being a lesbian. (Chris Sweda / Chicago Tribune)
LGBT rights advocates say momentum appears to be building for this broader interpretation.
In November, a district court judge in Pennsylvania ruled that a telemarketing employee could sue a company for sexual orientation discrimination because a manager subjected him to obscene and frequent name-calling. Meanwhile, a pending case brought by a gay and HIV-positive ad executive in New York prompted a lower court judge in March to question whether the view on sexual orientation discrimination needs to be revamped. Courts from Connecticut to Georgia also are determining such lawsuits.
In the 7th Circuit, Wetzel and Hively are the most recent examples pushing courts to "dig deeper" into the distinction of sex versus sexuality, said Karen Loewy, an attorney at Lambda Legal who worked on both lawsuits.
"It’s been an evolving area of law," Loewy said. "Increasingly, we’re seeing courts and federal agencies recognize that the kind of discrimination and harassment LGBT people are facing really is a form of sex discrimination."
A hostile housing environment
Wetzel’s case is expected to land in the 7th Circuit after a district court judge dismissed the lawsuit last month. Loewy said she will appeal that decision.
The lawsuit, filed in July, accuses the administration at Glen St. Andrew of violating the Fair Housing Act by failing to respond to repeated reports of harassment that impeded Wetzel’s access to fair and equal lodging.
After the cancer death of her longtime partner, Wetzel started renting a room at the senior housing facility in November 2014, according to her lawsuit. Though administrators did not express any problem with her sexual orientation in an applicant interview, some residents responded violently once she moved in.
"They went World War III," Wetzel said in a recent interview. "It went through this rumor mill. It got to people. I started getting called names. And in a couple of weeks, it just kept getting worse and worse and worse."
Between April 2015 and July 2016, Wetzel was attacked from behind, knocked off her scooter and insulted with derogatory names for lesbians, among other assaults, the lawsuit says. Scared and intimidated, she skipped group meals in the dining hall to eat alone in her room as her complaints went unaddressed by the administrators.
Additionally, the lawsuit accuses the facility of retaliating against Wetzel for complaining by limiting her access to the lobby and threatening to evict her. By failing to take corrective action, attorneys argued, Glen St. Andrew created a hostile housing environment, fueled by residents who discriminated against Wetzel because she is a lesbian.
Attorneys for Glen St. Andrew did not respond to a request for comment. In court filings, lawyers do not directly contest that Wetzel suffered discrimination from other residents because of her sexual orientation. Instead, the company asserts that it can’t be held liable for the discriminatory actions of its tenants.
In dismissing the case, U.S. Judge Samuel Der-Yeghiayan ruled in favor of the housing company, finding that Wetzel failed to show any discriminatory intent of behalf of the administrators. He also pointed to the fact that Wetzel still resides there, saying that defeats her argument that the institution’s failings created an uninhabitable environment.
"Wetzel does not allege any facts that suggest any actions taken against her by Defendants that were based on her gender or sexual orientation," Der-Yeghiayan wrote in his Jan. 18 ruling.
Wetzel and her attorneys disagree, arguing that the law allows her to hold the housing administrators accountable for perpetrating a hostile housing environment.
For her part, Wetzel said she refused to vacate her room because she didn’t want to let her oppressors win.
"I don’t do nothing to them. I’m just me," she said. "They are as human as me, and I am as human as them. What gives them the right? How do they get the idea that they can put somebody down for who they love?"
Promotions denied
Hively’s case has been pending before all 12 appellate judges on the 7th Circuit since the full panel took it under advisement Nov. 30.
The 50-year-old lesbian filed her lawsuit in August 2014 after Ivy Tech Community College, where she worked as an adjunct part-time professor for 14 years, did not renew her contract.
Hively alleged she had been denied full-time employment and promotions because of her sexual orientation, pointing to an incident in 2009 when someone reported seeing Hively kiss a girlfriend goodbye. An administrator reprimanded her for the behavior, Hively has said, marking a change in her treatment at the institution.
Unlike the Wetzel case, Ivy Tech argued in their defense that the law did not protect against sexual orientation discrimination.
A district court judge in Indiana agreed. So did a three-judge panel of the 7th Circuit, who affirmed the lower court’s opinion but issued a 42-page ruling nudging the Supreme Court or Congress to directly address the question.
"Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co-workers’ discomfort with a lesbian woman’s and or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases. Therefore we cannot conclude that the two must necessarily be coextensive unless or until either the legislature or the Supreme Court says it is so," wrote U.S. Judge Ilana Rovner in the opinion.
In a rare move after the opinion came down, the entire panel voted to rehear the case and vacated its earlier ruling in October.
Lawyers say that signals the judges are willing to reconsider key issues in the case.
Hively, who got certified for teaching high school, said she isn’t overly anxious about the outcome.
"It would be nice for it to have some closure, but you go on with your life," she said.
A win for Hively or Wetzel would create precedent for lower courts in Illinois, Indiana and Wisconsin to follow. It could also embolden other circuits to revisit their laws or decisions on the topic, said John Knight, director for LGBT and HIV projects at the American Civil Liberties Union of Illinois.
Citing the 2015 Supreme Court decision that made marriage equality the law of the land, Knight said the pending cases follow "a significant number of developments in the world of civil rights and the protections of the LGBT people. The notion that someone can get married one day and get fired the next (because they are gay) has given judges pause to think, ‘Huh. That’s wrong.’ "
echerney@chicagotribune.com
Twitter @Elyssacherney
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