In an move that surprised many Supreme Court watchers, the Court declined to hear the case of Evans v. Regional Hospital et al. The case raised the issue of whether the prohibition in Title VII against employment discrimination because of sex encompasses sexual orientation. The Eleventh Circuit ruled that Title VII did not encompass sexual orientation. The panel did however hold that “discrimination based on gender non-conformity” is actionable. The line between sexual orientation discrimination and gender non-conformity discrimination as sex discrimination is blurry at best. Gender non-conformity appears to be where a gay or lesbian plaintiff exhibits at work overt mannerisms, appearance, and behavior that is stereotypical of a gay or lesbian. A plaintiff who is gay or lesbian, but who does not exhibit the stereotypical mannerisms, behavior, or appearance yet is known to be gay or lesbian fares less well with a claim of sex discrimination. The Seventh Circuit has held that sexual orientation discrimination is prohibited by Title VII in Hively v. Ivy Tech. Interestingly, the EEOC and DOJ take different views of the issue. Neither case addressed the issue of transgender discrimination. It was hoped that the Supreme Court would bring some clarity to these issues.