On July 6, the full Eleventh Circuit Court of Appeals declined to hear the appeal of a case dismissing a sexual orientation bias claim under Title VII for lack of jurisdiction. This decision creates a split among the federal appellate circuits on this issue, and may prompt the U.S. Supreme Court to settle this question on a nationwide basis.

In Evans v. Georgia Regional Hospital, the plaintiff alleged that she was terminated as a result of her sexual orientation. The district court dismissed the claim on its own motion, and this decision was upheld by a split panel of the Eleventh Circuit. The plaintiff filed for an en banc review by the entire Eleventh Circuit. While this request was pending, the full Seventh Circuit Court of Appeals released its Hively decision, concluding that sexual orientation discrimination is a form of sex bias covered under Title VII.

Despite this decision, the Eleventh Circuit issued a per curiam order declining to revisit the panel’s dismissal of the claim. The plaintiff announced her intent to appeal this decision to the Supreme Court. The two differing en banc decisions may prompt the Supreme Court to accept review of this issue. The Trump administration has not indicated whether it will continue the Equal Employment Opportunity Commission’s position of supporting an expansive interpretation of sex discrimination that includes sexual orientation.