Some 40 years ago, in Blum v. Gulf Oil Corp. (1979), the Fifth Circuit pronounced that Title VII of the Civil Rights Act of 1964 does not prohibit sexual orientation discrimination. Despite the immense shift in the cultural and legal zeitgeists since then, including decisions from several federal appellate courts holding the exact opposite, the Fifth Circuit seized the opportunity in its recent decision in Wittmer v. Phillips 66 Company to reiterate—albeit in dicta—that the Blum decision remains the law of that Circuit, which covers Louisiana, Mississippi, and Texas.

Nicole Wittmer, a transgender female, received a conditional offer of employment from Phillips 66. But Phillips 66 rescinded the offer when Wittmer’s background check revealed that she had been less than candid about her employment history during her job interview.

Wittmer then filed suit against Phillips 66 alleging transgender discrimination under Title VII. At the district court level, Phillips 66 did not assert that Title VII did not cover transgender individuals, in and of itself an interesting illustration of Corporate America doing its best to avoid even the appearance of not embracing diversity and inclusivity. Rather, Phillips 66 asserted that rescinding the offer was based on the legitimate, nondiscriminatory reason that Wittmer was dishonest in her job interview. Phillips 66 won on summary judgment, and Wittmer appealed to the Fifth Circuit.

Although on appeal Wittmer and Phillips 66 did not even raise the issue of whether Title VII extended to gender identity, the Fifth Circuit nevertheless took up the issue and dedicated most of its majority opinion to it. Writing for a three-judge panel in affirming judgment for Phillips 66, Judge James Ho (a 2017 Trump appointee) wasted no time in chastising the lower court for ignoring the Blum decision and, instead, embracing contrary authority from three other circuit courts. Judge Ho stated that Blum remains binding Fifth Circuit precedent, and extends to reject the assertion that Title VII covers transgender status. The force of Judge Ho’s statements about Title VII’s coverage remains in question, as they arguably consist entirely of dicta, because the Fifth Circuit’s decision was not based on the scope of Title VII. Instead, the decision affirmed judgment for Phillips 66, finding that Wittmer failed to establish (1) a prima facie case of discrimination, and (2) that Phillips 66’s stated reason for rescinding the offer was a pretext for discrimination.

In addition to authoring the majority decision, Judge Ho also wrote a lengthy concurring opinion wherein he raised deep concerns about the expanse of Title VII coverage since its enactment. Contemplating what it means to “discriminate because of sex,” Judge Ho explained the two competing schools of thought on this issue: the anti-favoritism approach and the blindness approach.

• Under the anti-favoritism approach, an employer who discriminates against transgender individuals would not be considered to have discriminated because of sex—so long as the discrimination was against transgender males and females alike.
• Subscribers of the blindness approach, on the other hand, would view the mere fact that an individual is being treated differently because of sex to be sex discrimination under Title VII.

Judge Ho asserted that the anti-favoritism, “traditional” approach was the right one.

While Judge Ho has now made his position on Title VII’s limits known, it is not clear what another panel or the full Fifth Circuit bench would say or how they may feel about whether the 40-year-old Blum decision remains viable and whether it extends to prohibit transgender protection. Thus, we might be right back where we started. One thing is certain: the Wittmer decision has deepened the split of viewpoints within the Circuit Courts on this issue, hopefully amplifying the likelihood that the question of LGBT protection under Title VII will be taken up by the U.S. Supreme Court, which has three such petitions for certiorari pending before it.