SCOTUS Hears Arguments On Whether Federal Civil Rights Laws Protect LGBTQs

(Photo: Fred Schilling, Collection of the Supreme Court of the United States/Public Domain)

The U.S. Supreme Court heard oral arguments on Tuesday for three cases considering whether federal civil rights laws protect LGBTQ people in the workplace.

Two of the cases (Zarda v. Altitude Express and Bostock v. Clayton County) involve the firing of gay men and question whether anti-gay discrimination is illegal under Title VII of the Civil Rights Act of 1964.

The third case, EEOC v. Harris Funeral Homes, looks for resolution on whether anti-transgender discrimination is illegal under the law.

The basic premise of the arguments hinges on whether discrimination based on “sex” – which Title VII prohibits – includes any discrimination involving sexual orientation.

In other words, are employers allowed to discriminate against an employee based on the sex of the person they may date or marry?

Conservative Justice Samuel Alito seemed to take the position that Congress in 1964 did not foresee covering sexual orientation or gender identity when passing Title VII.

“You’re trying to change the meaning of ‘sex,’” said Alito according to the Associated Press.

But Justice Elena Kagan suggested ‘sexual orientation’ is clearly a subset of sex discrimination in that a man who loves other men shouldn’t be treated differently by an employer than a woman who loves men.

Here are the immediate reactions by some reporters who attended the oral arguments.

Chris Johnson, of the Washington Blade, tweets that the ruling could come down, surprisingly, to Justice Neil Gorsuch who asked several questions “if sex is also in play” in cases regarding anti-LGBTQ discrimination.

Johnson also notes that Chief Justice John Roberts, who has become something of the ‘moderate/swing vote’ on the court since the retirement of Anthony Kennedy, should not be counted on to rule in our favor.

Legal blogger Amy Howe, formerly of SCOTUS Blog, also came away thinking Gorsuch may be the swing vote.

And from Mark Joseph Stern at Slate:

Only 21 states, the District of Columbia, and two territories, Guam and Puerto Rico, have laws banning bias in the workplace based on both sexual orientation and gender identity.

Trump To Supreme Court: It’s Ok To Fire Employees For Being LGBTQ

The Trump administration, in its never-ending campaign against LGBTQ rights, has filed a brief in support of allowing private companies to legally fire employees based solely on their sexual orientation.

The Trump administration, in its never-ending campaign against LGBTQ rights, has filed a brief in support of allowing private companies to legally fire employees based solely on their sexual orientation.

From Dominic Holden at Buzzfeed News:

An amicus brief filed by the Justice Department weighed in on two cases involving gay workers and what is meant by Title VII of the Civil Rights Act of 1964, which bans discrimination “because of sex.” The administration argued courts nationwide should stop reading the civil rights law to protect gay, lesbian, and bisexual workers from bias because it was not originally intended to do so.

That view conflicts with some lower court rulings that found targeting someone for their sexual orientation is an illegal form of both sex discrimination and sex stereotyping under Title VII. Those courts have found, to illustrate the point, that a gay man wouldn’t be targeted if he were instead a woman dating a man; thus he faced discrimination because of his sex.

But the administration said in its brief Friday that Title VII’s ban on sex discrimination only prohibits unequal treatment between “biological sexes,” as it argued last week in a related brief against transgender rights, in which the Justice Department said companies should be able to fire people because they are transgender as well.

Earlier this week, the Donald sidestepped a question about his administration’s position on the cases claiming he has deep support from LGBTQ Americans.

“I think I’ve done really very well with that community,” said Trump citing his endorsement by the conservative LGBTQ group Log Cabin Republicans. “They like the job I’m doing.”

The U.S. Supreme Court will hear the cases beginning October 8.

(lead image: public domain via Flickr/White House)

Trump Administration Argues Firing People For Being Transgender Is Legal

The Trump administration has filed a brief with the U.S. Supreme Court in support of a Michigan funeral home that fired a longtime employee for coming out as transgender and beginning her transition.

The Trump administration has filed a brief with the U.S. Supreme Court in support of a Michigan funeral home that fired a longtime employee for coming out as transgender and beginning her transition.

Aimee Stephens worked for Harris Funeral Homes for five years before she began to transition in 2012.

Saying she was “violating God’s commands,” fired Stephens two weeks later.

Stephens is suing the funeral home saying she experienced sex discrimination the workplace under Title VII of the Civil Rights Act of 1964.

It is the Trump administration’s position that transgender people can be fired just for being trans.

More from Dominic Holden at Buzzfeed News:

The Justice Department’s brief on Friday contends the word refers to a person’s “biological sex” and, further, that transgender discrimination isn’t addressed by a 1989 Supreme Court ruling that found Title VII bans sex stereotyping.

“Title VII does not prohibit discrimination against transgender persons based on their transgender status,” says a filing by the Justice Department, adding, “It simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”

The counterargument from LGBTQ advocates and several lower courts, however, is that the intent of lawmakers does not limit a law’s reach, but rather its meaning is defined by the statute’s plain text. They say anti-transgender discrimination can result from a person defying traditional sex stereotypes or because the person transitioned from one sex to another — and thus, it is inherently a type of sex discrimination.

The case at issue is one of three currently before the court about the rights of LGBTQ workers under Title VII — and the only one concerning a transgender worker.

The Trump administration maintains that when the Civil Rights Act of 1964 was authored, the idea of transgender people wasn’t present in the “ordinary public meaning of ‘sex'” as biological sex.

But here’s the double-standard: if you can only apply laws as what people knew or understood at the time the were written, that would mean military assault-style weapons would not be protected under the 2nd Amendment because the Founding Fathers didn’t know such weapons would ever exist. And that’s just the beginning.

Stephens’ legal team maintains the plain text of Title VII addresses “sex” discrimination. And it’s impossible to consider her being transgender without taking into account the concept of her sex.

SCOTUS will hear oral arguments in the case on Oct. 8, along with two additional cases that address whether sexual orientation discrimination is protected by Title VII.

Pro-LGBTQ ‘Friends Of The Court’ Briefs Being Filed By Diverse Sectors In Advance Of Title VII Arguments At SCOTUS

U.S. Supreme Court

In advance of the upcoming oral arguments at the U.S. Supreme Court regarding whether Title VII of the Civil Rights Act of 1964 protects LGBTQ workers from discrimination based on sexual orientation or gender identity, many sectors of America are urging SCOTUS to rule in favor of LGBTQ people.

A group of 36 former federal government officials who served during the Obama administration has filed a 43-page ‘friend of the court’ brief calling on the U.S. Supreme Court to uphold LGBTQ rights.

Additionally, over 34 prominent LGBTQ-friendly Republicans, led by former Republican National Committee chairman Ken Mehlman, have offered their own amicus brief which aims to ‘resonate’ with the conservative members of the high court on the issue.

Advocacy groups Family Equality, The Trevor Project, and PFLAG National submitted an their own amicus brief in support of queer employees in the critically-important LGBTQ employment discrimination cases that will be considered by SCOTUS in the 2019-2020 term.

And big business has weighed in as well with over 206 major corporations (including Apple, Amazon, American Airlines, Bank of America, Ben & Jerry’s, Coca-Cola, Domino’s Pizza, Goldman Sachs, IBM, Microsoft, Morgan Stanley, Nike, Starbucks, Viacom, Walt Disney and Xerox) signing on to their own brief in support of LGBTQ protections.

200+ Companies Sign Brief Asking SCOTUS To Rule Title VII Prohibits LGBTQ Discrimination

The U.S. Supreme Court has scheduled oral arguments for October 8 on whether Title VII of the Civil Rights Act of 1964 applies in banning LGBTQ discrimination.

The U.S. Supreme Court has scheduled oral arguments for October 8 on whether Title VII of the Civil Rights Act of 1964 applies in banning LGBTQ discrimination.

There will be three cases regarding Title VII heard that day. The crux of the cases concerns whether anti-LGBTQ discrimination is a form of sex discrimination.

LGBTQ advocates say discrimination against gay people is sex discrimination because anti-gay bias is borne out of opposition to people who love others of the same sex.

A brief filed by the ACLU last week read, in part, “Firing a man because he is attracted to other men is like refusing to hire a woman because she has school-age children, failing to promote a woman because she is too ‘macho,’ or countenancing the sexual harassment of a man who is perceived by his coworkers to be vulnerable.”

Some court watchers say they are not overly-hopeful for a pro-LGBTQ ruling in light of Donald Trump’s choices for far-right leaning justices on the high court.

But Chief Justice John Roberts has, at times, surprised the LGBTQ community.

During arguments for the Obergefell decision in 2015, which made marriage equality the law of the land, Roberts made comments wondering if banning same-sex marriage would constitute a kind of sex discrimination.

In advance of the oral arguments, 206 companies have signed on to a ‘friend of the court’ brief asking SCOTUS to rule in favor of Title VII prohibiting discrimination against LGBTQs.

The list of companies includes big tech like Facebook, Apple and Adobe; food giants like Coca-Cola, Starbucks and Domino’s Pizza; also Uber, Zillow, MGM Resorts, Hilton, HSBC Bank and more.

The Human Rights Campaign reports the amicus brief has the largest number of business signers than any other brief filed in an LGBTQ discrimination case.

The brief reads, in part, “Even where companies voluntarily implement policies to prohibit sexual orientation or gender identity discrimination, such policies are not a substitute for the force of law.”

“Only a uniform federal rule can enable businesses to recruit and retain, and employees to perform, at their highest levels,” says the brief.

The brief was organized by several LGBTQ advocacy groups including the Human Rights Campaign, Out & Equal, Freedom for All Americans and Lambda Legal.

(h/t Washington Blade)

News Round-Up: April 11, 2018

(via Instagram)

Some news items you might have missed:

• Since its Hump Day I’m starting this round with two – count’em two – InstaHunks as there’s a birthday in the house as Alex Abramov celebrates #31 with bf Brett Miles (above).

•  Illinois lawmakers have advanced a bill that would require public schools to include teaching the accomplishments of LGBT folks in history classes much like current laws that require students learn about other groups such as African-Americans, Hispanics and Asian-Americans.

• John Sherman at Buzzfeed has penned an interesting essay wondering if gay media is still focusing on gay acceptance (i.e. Love, Simon) instead of celebrating queer difference? Sherman brings up some points I hadn’t considered. Def worth the read.

• The raid on Donald Trump’s personal lawyer’s office and home specifically looked for documents regarding the now infamous “Grab’em by the pussy” Trump video from Access Hollywood. Political experts posit the investigation may be looking into payments to silence women who might have affected Trump’s electoral chances in 2016.

• A federal judge in Texas ruled last week that Title VII of the U.S. Civil Rights Act of 1964 which bans sex discrimination, also bans discrimination based on sexual orientation and gender identity.

• This week we got our first look at Anything, a story about love and acceptance that follows widower Early (John Caroll Lynch) after his move to LA in the aftermath of the death of his wife. Early finds an unlikely friend in his neighbor, Freda, who is a transgender sex worker.

While the film’s premise is welcome, folks have raised concerns about the casting of Matt Bomer, a cisgender man, as the trans character Freda.

Watch the trailer below.

Federal Appeals Court Rules Civil Rights Act Of 1964 Bans Anti-Gay Discrimination In Workplace

In a huge win for the LGBTQ community, the 2nd Circuit Court of Appeals has ruled that Title VII of the Civil Rights Act of 1964 bans anti-gay discrimination.

The case examined whether Donald Zarda, a now-deceased skydiver who alleged he was fired from Altitude Express for being gay, could sue under existing civil rights law because sexual-orientation discrimination is a form of sex discrimination.

From Dominic Holden at Buzzfeed:

The Court of Appeals for the 2nd Circuit ruled Monday, “We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of . . . sex,’ in violation of Title VII.” In doing so, the court overruled a lower court — and a precedent from two previous court cases — and remanded the case to be litigated in light of their reading of Title VII.

The decision holds national implications due to its high tier in the judicial system, and because it’s seen as a litmus test of the Trump administration’s ability — or inability — to curb LGBT rights through court activism. The Justice Department had injected itself into the case even though it wasn’t a party to the lawsuit and doesn’t normally involve itself in private employment disputes.

“Sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination,” the majority wrote.

In reaching its decision Monday, the court pointed out that anti-gay discrimination would not exist “but for” a person’s sex. That is to say, gays, lesbians, and bisexuals would not experience this type of unequal treatment had been born a different gender, or were attracted to a different sex.

Robert A. Katzmann, the 2nd Circuit’s chief judge who authored the majority ruling, was joined by nine other judges while three judges dissented.

This ruling is also a blow to the Trump administration which was not a party to the case.

The Justice Department sent Deputy Assistant Attorney General Hashim Mooppan to take part in oral arguments in September arguing that despite Title VII employers should be able to fire workers for being gay.

Zarda had apparently told a female student as they prepared for a sky-diving jump that he was “100 percent gay” in an attempt to make the woman less anxious about the close physical contact involved in being strapped to her instructor.

The woman’s boyfriend complained to the school about the encounter, and that led to Zarda’s dismissal.

This ruling now allows Zarda’s estate to file a discrimination lawsuit against Altitude Express.

The case was heard by all 13 eligible judges of the 2nd Circuit, known as an en banc hearing, meaning the only option for left for the haters is to head to the U.S. Supreme Court.

U.S. Supreme Court Refuses Appeal Of LGBT Lambda Legal Employment Discrimination Case

From Lambda Legal:

Today, the U.S. Supreme Court announced it will not review the Lambda Legal case on behalf of Jameka Evans, a Savannah security guard who was harassed at work and forced from her job because she is a lesbian.

“By declining to hear this case, the Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country,” said Greg Nevins, Employment Fairness Project Director for Lambda Legal.

Several federal courts have affirmed the argument that Title VII of the Civil Rights Act, when properly understood, protects LGBT employees. Most notably, the full Seventh Circuit overruled four of its precedents and ruled in April that Lambda Legal client Kimberly Hively could proceed under the Civil Rights Act with her claim that Indiana-based Ivy Tech Community College discriminated against her because she is a lesbian.

In April of 2015, Evans filed a lawsuit in U.S. District Court for the Southern District of Georgia against her former employer, Georgia Regional Hospital, arguing that the hospital violated Title VII of the Civil Rights Act by discriminating against her because of her sexual orientation and her nonconformity with gender norms of appearance and demeanor.

The district court dismissed the case. In January of last year, Lambda Legal filed an appeal on Evans’ behalf, arguing that she must have her day in court, citing rulings by several federal district courts and the Equal Employment Opportunity Commission (EEOC) finding that sexual orientation discrimination is a form of sex discrimination and thereby a prohibited employment practice.

On March 10, 2017, a three-judge panel of the Eleventh Circuit held that it was compelled by a 1979 ruling to reject Evans’ sexual orientation discrimination claim.

Lambda Legal asked the whole court to rehear the case so that it could reexamine the 1979 precedent, but unlike the Seventh Circuit and Second Circuit, the full Eleventh Circuit Court of Appeals declined to rehear the case on July 6. Citing a clear conflict among the circuits, Lambda Legal filed a petition asking the U.S. Supreme Court to review the case. Today, the Supreme Court denied review.

Evans is part of Lambda Legal’s efforts to establish and enforce employment discrimination protection for all LGBT people and everyone living with HIV. 

Attorney General Sessions Reverses Course On Policy Protecting Transgender Folks In Workplace

Attorney General Jeff Sessions

Deeply disappointing but not a surprise by any means, Attorney General Jeff Sessions announced today that his Department of Justice has reversed course on the Obama era position that federal law bans sex discrimination in the workplace.

Going forward the DOJ’s position is that Title VII does not offer any protections for transgender individuals in the workplace.

From Reuters:

The memo sent to U.S. Attorneys’ offices on Wednesday by Attorney General Jeff Sessions says Title VII of the Civil Rights Act of 1964 only prohibits discrimination on the basis of a worker’s biological sex, and not their gender identity.

Sessions rescinded a Justice Department memo from 2014 that said Title VII does protect transgender people, a position also taken by several federal appeals courts in recent years.

It was the Trump administration’s latest move to roll back Obama administration policies on LGBT issues. In August, President Donald Trump signed a memo directing the U.S. military not to accept transgender men and women as recruits, reversing a policy that allowed transgender people to serve openly.

And last month, the Justice Department appeared before a federal appeals court in Manhattan to argue that Title VII does not provide protections to gay and lesbian workers.

Yet another hostile move against the LGBTQ community from Donald “Better for the Gays” Trump.

Here’s just a few of the LGBTQ advocacy groups responding to the memo.

Stacey Long Simmons, Director of Advocacy and Action, National LGBTQ Task Force:

“This memo contradicts what is already established legal precedent. Courts across the country have agreed that sex protections include gender identity. The plain truth is that Attorney General Sessions is running the Justice Department with a clear anti-transgender bias, not current law.

“This is only the latest example of the administration’s broad reaching anti-LGBTQ policy changes. There is a pungent stench coming from the Trump/Pence Administration and its actors.”

Kellan Baker, Board of Directors, Equality Federation

“Sessions’ shameful memo is yet another purely political attack on some of the most vulnerable members of our community: transgender people like me.

“The vast majority of Americans and the courts agree that transgender people should have a fair opportunity to provide for ourselves and our families, free from discrimination on the basis of who we are.

“Even as this administration continues its attacks on LGBTQ communities and on our friends and allies, we will continue our fight to live and work safely and with dignity in the communities we call home.”

7th Circuit Court Of Appeals Rules Civil Rights Act Of 1964 Protects LGBTs From Workplace Discrimination

The Associated Press is reporting that the 7th Circuit Court of Appeals has ruled that Title VII of the Civil Rights Act of 1964 protects LGBTs from workplace discrimination.

Normally, a case would be heard by three judges on the court, but this was heard by the full 7th Circuit Court of Appeals. The judges ruled 8-3 that Title VII protects LGBTs in the workplace.

This is WAY huge.

The decision by the 7th U.S. Circuit Court of Appeals comes after it threw out a July finding by three of its own judges that the law doesn’t cover sexual-orientation bias and ordered a rare rehearing by the full court, a rare session known as an en banc hearing.

It also comes as President Donald Trump’s administration has begun setting its own policies on LGBT rights. Late in January, the White House declared Trump would enforce an Obama administration order barring companies that do federal work from workplace discrimination on the basis of sexual identity. But in February, it revoked guidance on transgender students’ use of public school bathrooms, deferring to states.

The Hively case stems from a lawsuit by Indiana teacher Kimberly Hively alleging that the Ivy Tech Community College in South Bend didn’t hire her full time because she is a lesbian. The entire court reheard oral arguments in November and directed the toughest questions at a lawyer for the college who argued only Congress could extend the protections. The aggressive questions suggested the court might be willing to expand the 53-year-old landmark law.

Judge Diane Wood called it a “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”

The 7th Circuit covers federal lawsuits out of Indiana, Illinois, and Wisconsin.