New Supreme Court Term Potentially Momentous for LGBT Rights

The Supreme Court begins its October 2018 Term, which runs through June 2019, on October 1.

During the week of September 24, the Supreme Court holds its “long conference,” during which the Justices consider the long list of petitions for review filed with the Court since last spring, and assembles its docket of cases for argument after those granted late last term are heard.  While there are several petitions involving LGBT-related issues pending before the Court, it is unlikely that there will be any announcement about these cases until late October or November at the earliest.Anthony Kennedy retirement

Three of the pending petitions raise one of the most hotly contested LGBT issues being litigated in the lower federal courts: Whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, can be interpreted to extend to claims of discrimination because of sexual orientation or gender identity. One of the three cases also raises the question whether an employer with religious objections gender transition has a defense under the Religious Freedom Restoration Act.  Another petition presents the question whether a judge who has religious objections to conducting same-sex marriages has a 1st Amendment right to refuse to do so.

Although many state civil rights laws ban such discrimination, a majority of states do not, so the question whether the federal law applies is particularly significant in the Southeast and Midwest, where state courts are generally unavailable to redress such discrimination.

With President Donald J. Trump’s nomination of Brett Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, Jr.’s, retirement, which was effective on July 31, petitions pending at the Supreme Court took on heightened significance while the Senate confirmation process was taking place. The Senate Republican leadership had hoped to speed the process so that Trump’s appointee would be seated on the Court by the time the term began on October 1, but accusations of long-ago sexual misconduct by Kavanaugh have caused the Judiciary Committee’s vote to be delayed.  Meanwhile, the eight-member Court had to confront the question during their long conference of whether to grant review on cases as to which the justices were likely to be evenly divided, when they were unsure when the ninth seat would be filled and who would fill it.  As of the end of September, they had already scheduled oral arguments on cases granted last spring running through the first week of November.

ArtLeonardObservations.com. September 24, 2018, by Art Leonard

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Germany Must Allow Third Gender Category, Court Rules

Germany must create a third gender category for people who do not identify as either male or female or were born with ambiguous sexual traits, the country’s constitutional court ruled on Wednesday, finding that binary gender designations violated the right to privacy.

In 2013, Germany became the first European country to allow parents to register newborns as neither female nor male, if the child was born with characteristics of both sexes.

The new decision, by the Federal Constitutional Court, goes further, giving lawmakers until the end of 2018 to either allow the introduction of a third gender category or dispense with gender altogether in public documents.Germany transgender

The ruling arrives as society, medicine and law increasingly recognize the ways in which gender is socially constructed and not necessarily fixed or stable.

According to Lambda Legal, an American organization that works for the rights of lesbians, gay men, bisexuals, and transgender people, at least eight countries — Australia, Bangladesh, Germany, India, Malta, Nepal, New Zealand and Pakistan — recognize more than two genders on passports or national ID cards.

Thailand recognizes a third gender in its Constitution but has not yet made that an option on government documents.

In June, for the first time in Canada, a newborn was issued a health document without a gender: a health card that listed U as the gender, for unspecified or unknown. In August, Canada began issuing passports with a third gender option, designated with an X.

Several American states have offered residents gender-neutral options on drivers licenses, and last month, California passed a law that allows nonbinary and intersex people a nonbinary category on their birth certificates.

While much of the change worldwide has involved transgender people, the discussion has also focused attention on intersex people, those born with traits of both sexes.

“Children who are born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilization, involuntary genital normalizing surgery,” a 2013 report from the United Nations special rapporteur on torture found, noting that they were left “with permanent, irreversible infertility and causing severe mental suffering.” Human Rights Watch has condemned such procedures.