So what does this recent EEOC ruling mean? It means that sexual orientation discrimination is now considered sex discrimination, because the gender of you and the gender of who you love means it’s about gender, not orientation, per se.
The first time we saw this in any significant way was when Hawaii’s Baehr v Lewin case left the door open for civil unions back in 1993 (causing, some might argue, the whole DOMA movement at the federal and state levels).
This EEOC ruling is *not* binding in courts, but the EEOC investigates a lot of workplace cases and the courts, in turn, often defer to EEOC rulings precisely because the EEOC has more experience and expertise as their mission is to uphold the Civil Rights Act of 1064.
The argument that gender identity, but not sexual orientation, is already covered by Title VII and other sex discrimination laws has sometimes been asserted as a reason to cut gender identity out of LGBT nondiscrimination bills at the state or local level. In fact, all forms of anti-LGBT nondiscrimination are inherently gender-based—and yet we still urgently need legislation to make clear beyond doubt, once and for all, that LGBT people are protected. The EEOC’s underscores that the entire LGBT community is in the same boat in that regard.
Which is NCTE’s way of saying that the EEOC ruling may help, but it does not (yet) invalidate the need for ENDA.