Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex

The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity.

gay rights, lgbt adoption rights, adoption rights, gay adoption rights, gay adoption new york

Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.

The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation.  Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018).  The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.

The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation.  Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018).  The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim.  He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination.  Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.

The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition.   R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018).  Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII.  Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case.  The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability.  The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion.  EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018).  The 6thCircuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.

In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.

artleonardobservations.com, by Art Leonard, April 22, 2019

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Parental Rights In New York To Graduate From The Dark Ages, Hopefully

The changes, if they go through, will significantly improve the state of New York law, and protect parental rights and donors’ rights.

New York parental rights

Many New York parents are currently in a very scary legal environment, and they may not even know it. Did you know that a hopeful single parent who turns to a known sperm donor to conceive in New York has no way to sever the donor’s parental rights? That’s right. And that means that a sperm donor can, at any time, seek parental rights to the child. Vice versa, the parent can seek child support from the sperm donor. That’s concerning! The situation is also true for egg and embryo donations.

New York attorney and adoption and assisted reproductive technology powerhouse, Denise Seidelman, spoke to me about the current problematic legal environment, as well as her ongoing efforts to fix the situation, and to protect parents and children. Seidelman and her law partner, Nina Rumbold, are among those in New York zealously advocating for the passage of the Child-Parent Security Act (CPSA).

Even The Governor Wants It!

The CPSA was introduced in 2013 by Assemblymember Amy Paulin and State Senator Brad Hoylman. Hoylman is himself a parent of two children born through surrogacy. Hoylman and his husband were forced to go outside of New York to have their children through surrogacy because, in addition to the bleak donor situation, compensated surrogacy is illegal in New York.

The CPSA has undergone a number of revisions since its initial proposal, and is still undergoing a few finishing touches. But not until this year did anyone have as much hope that this legislation could pass. Key among factors giving New Yorkers newfound optimism is the vocal support of New York Governor Andrew Cuomo. The Governor has publicly supported the bill, explaining that “New York’s antiquated laws frankly are discriminatory against all couples struggling with fertility, same sex or otherwise.” Even more exciting, the Governor initially included the CPSA in his executive budget plan. However, it was removed in the last few weeks — possibly out of an interest in letting the legislature pass the bill with the latest updates.

What’s So Special About This Bill?

It protects children, for one! No kid should be stuck in the middle of a legal battle questioning who his or her legal parent is, merely because New York’s laws are decades out of date. Specific protections for families and those who help them include:

  • Clarifying and protecting parental rights when a sperm donor, egg donor, or embryo donor assists with conception. About time! Seidelman explained that while the surrogacy aspects of the bill are getting most of the attention, she is especially excited about the positive impact of the donor-related provisions. The bill provides that those who turn to a donor can be assured that they are the legal parents of their child, and that a donor can’t claim parental rights to the child. And, on the other side, that donors can rest easy that their good deed of helping another family no longer opens them to the risk of later being sued for child support for the child. This protection could encourage more couples to donate remaining embryos to others to form their families, rather than destroying them or donating them to research.
  • Legalizing compensated gestational surrogacy. At the moment, New York is among a small minority of U.S. states which dictate that a woman is not permitted to receive compensation if she chooses to act as a gestational surrogate for another. In fact, it’s criminal.

AboveTheLaw.com, by Ellen Trachman, April 10, 2019

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Buttigieg Is Trump’s Kryptonite

Mayor Pete’s campaign is about finally grabbing ‘freedom, security, and democracy’ back from the GOP, and dashing for higher, non-ideological ground.

Buttigieg Trump

Why is Pete Buttigieg suddenly everywhere? Why has he moved so quickly from obscure flavor of the month to serious contender for the Democratic nomination and the presidency? And why does a 37-year-old gay mayor of a small city in Indiana match up so well against President Trump?

The answers lie not only in his appeal as a fresh-faced, hand-crafted product of the heartland—a whip-smart artisanal candidate for the wine-and-brie part of the party; not only in his barrier-breaking age, sexual orientation, and unorthodox political experience, which have helped him stand out from the pack and allowed many Democrats to congratulate themselves for their open-mindedness; not only in his calm and, for a young guy, surprisingly authoritative comportment that can fairly be described as presidential.

Buttigieg is also going viral because in addition to Spanish, French, Italian, Maltese, Arabic, Farsi, and Norwegian, he speaks a compelling form of English. He is fluent in the subtext of American politics—the ideas and phrases that tap into our deeper sense of who we are and what we owe each other and future generations. At least for now, his generational and aspirational themes are working at a more powerful level than policy proposals or ideological positioning, and they lift him above the cut and thrust of the tiresome news cycle.

TheDailyBeast.com, by Jonathan Alter, April 17, 2018

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Making Babies in the Year 2045 – Genetic Data

Huge pools of Genetic data collected over the past generation allow you to pick many of your child’s genetic traits. Are you comfortable with that?

genetic defect

The year is 2045. The genomes of four billion humans have been sequenced, creating a huge pool of genetic information accessible to researchers. This process had been well underway in 2019, but accelerated rapidly once many countries realized that understanding human biology was the ultimate big data problem and a key to reducing health care costs and enhancing national competitiveness. Widely sharing deeply personal health information had alarmed privacy advocates. But supporters of sharing genetic data argued convincingly that the benefits to society outweighed the privacy concerns of individuals. The debate may have once seemed abstract. But now you are in a fertility clinic and the issues are fast becoming real.

The cascade of numbers overwhelms you as the doctor splashes the spreadsheet across the digital walls of her office.

“I hope you can see the wonder and possibility in these figures,” she says, trying to put you at ease.

As you sit in the spa-like clinic, it’s hard to imagine it was just last week when your assistant placed the miniature device on your arm that painlessly suctioned out a small amount of blood and started you on this journey. The spark of life that used to begin in bedrooms and the back seats of cars was now migrating out of the human body and into the lab.

“Take your time,” the doctor continues. “You need to first select the early- stage embryo optimal for you. The numbers across the top list the 300 options for you that we’ve prescreened from the initial 10,000. The column down the left lists all the disorders and traits influenced by genetics that we have some ability to predict. The numbers populating the chart are our best predictions for how the genetic component of each trait would be realized if we selected based on that trait alone. We’re looking for high composite scores emphasizing the qualities most important to you.”

You scan the lists on the walls wondering if a human being can really be reduced to numbers. “Can you really predict all of these traits?” you ask.

“These are all probabilities, not certainties,” the doctor says. “Not all traits are equally genetic. And genetics is a trade-off, so we can’t choose to optimize every trait. Thirty years ago we could mostly just identify disorders determined by a single genetic mutation, but in 2018 we started using what we call ‘polygenic scoring’ to make better predictions about diseases and traits influenced by hundreds or thousands of genes. 

“Our biology is still about as complex as it’s been for millions of years but the technology we’re using to understand it is getting exponentially more sophisticated,” she continues. “There may be magic in humans, but we aren’t made of magic. Our DNA is a type of source code we’re learning how to read and write.”

The idea of humans as hackable data sets may be increasingly common but still unsettles you. The numbers on the wall seem to confirm the doctor’s words. “And this 60 means that embryo would be good at math?” you ask, pointing to one of the options on the list.

NYTimes.com, by Jamie Metzl, April 10, 2019

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The relationship between LGBT inclusion and economic development: Macro-level evidence

This study analyzes the relationship between social inclusion of lesbian, gay, bisexual, and transgender (LGBT) people and economic development.

gay money

It uses legal and economic data for 132 countries from 1966 to 2011. Previous studies and reports provide substantial evidence that LGBT people are limited in their human rights in ways that also create economic harms, such as lost labor time, lost productivity, underinvestment in human capital, and the inefficient allocation of human resources. This analysis uses a fixed effects regression approach and a newly-created dataset – Global Index on Legal Recognition of Homosexual Orientation (GILRHO) – to assess how these detriments are related to the macroeconomy. Our study finds that an additional point on the 8-point GILRHO scale of legal rights for LGB persons is associated with an increase in real GDP per capita of approximately $2000. A series of robustness checks confirm that this index continues to have a positive and statistically significant association with real GDP per capita after controlling for gender equality. In combination with the qualitative evidence from previous studies and reports, our quantitative results suggest that LGBT inclusion and economic development are mutually reinforcing. Also, a back-of-the-envelope estimate suggests that about 6% to 22% of the finding could reflect the costs to GDP of health and labor market stigmatization of LGB people. Results from this study can help to better understand how the fuller enjoyment of human rights by LGBT people can contribute to a country’s economic development.

ScienceDriect.com, April 11, 2019

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AI COULD SCAN IVF EMBRYOS TO HELP MAKE BABIES MORE QUICKLY

Embryo AI

IF A WOMAN (or non-female-identifying person with a uterus and visions of starting a family) is struggling to conceive and decides to improve their reproductive odds at an IVF clinic, they’ll likely interact with a doctor, a nurse, and a receptionist, not an AI specialist. They will probably never meet the army of trained embryologists working behind closed lab doors to collect eggs, fertilize them, and develop the embryos bound for implantation.

One of embryologists’ more time-consuming jobs is grading embryos—looking at their morphological features under a microscope and assigning a quality score. Round, even numbers of cells are good. Fractured and fragmented cells, bad. They’ll use that information to decide which embryos to implant first.

It’s more gut than science and not particularly accurate. Newer methods, like pulling off a cell to extract its DNA and test for abnormalities, called preimplantation genetic screening, provide more information. But that tacks on additional costs to an already expensive IVF cycle and requires freezing the embryos until the test results come back. Manual embryo grading may be a crude tool, but it’s noninvasive and easy for most fertility clinics to carry out. Now, scientists say, an algorithm has learned to do all that time-intensive embryo ogling even better than a human.

In new research published today in NPJ Digital Medicine, scientists at Cornell University trained an off-the-shelf Google deep learning algorithm to identify IVF embryos as either good, fair, or poor, based on the likelihood each would successfully implant. This type of AI—the same neural network that identifies faces, animals, and objects in pictures uploaded to Google’s online services—has proven adept in medical settings. It has learned to diagnose diabetic blindness and identify the genetic mutations fueling cancerous tumor growth. IVF clinics could be where it’s headed next.

“All evaluation of the embryo as it’s done today is subjective,” says Nikica Zaninovic, director of the embryology lab at Weill Cornell Medicine, where the research was conducted. In 2011, the lab installed a time-lapse imaging system inside its incubators, so its technicians could watch (and record) the embryos developing in real time. This gave them something many fertility clinics in the US do not have—videos of more than 10,000 fully anonymized embryos that could each be freeze-framed and fed into a neural network. About two years ago, Zaninovic began Googling to find an AI expert to collaborate with. He found one just across campus in Olivier Elemento, director of Weill Cornell’s Englander Institute for Precision Medicine.

wired.com by Megan Molteni, April 4, 2019

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WHY I’M AN ORTHODOX RABBI WHO IS GOING TO OFFICIATE LGBTQ WEDDINGS

Shouldn’t our Orthodox communities rush at the opportunity to keep as many Jews, including LGBTQ jews, engaged in their Judaism? Is this the Torah and this its reward?

orthodox LGBTQ

A queer friend of mine from a haredi Orthodox background had posed a query publicly on social media. She had attended a conference on LGBTQ inclusion. There she learned a practice of certain Catholic priests who described going into gay bars in full clerical garb: They would sit in the bar, and when queer Catholics approached them, the priests would affirm God’s love and their belonging place in the church.

My friend asked her community of observant Jews, acknowledging that rabbis don’t have any identifying clerical garb: When might Orthodox rabbis do the same?

As an Orthodox rabbi myself, I was intrigued. I discovered a rainbow kippah online and decided to purchase it.

It managed to garner attention the first day I wore it. A woman took a picture of me and motioned a thumbs-up. A homeless man on the subway who was begging for money approached, pointing to my kippah, and said, “Now I like that,” and bumped my fist. A man in high heels came up to me before getting off his stop and said, “Thanks for the yarmulke.” I even had made my way to the headquarters of Chabad Lubavitch that very same day for a meeting and a Hasid asked me where he could find a kippah like mine. I surmised: The kippah works.

But what is it symbolizing and is it enough?

The kippah is a symbol of my commitment to God, to Torah and the Jewish people. To me, the rainbow kippah is also a symbol that God and Judaism love you no matter your sexual orientation.

I understand that the plain reading of Leviticus considers homosexual sex a “toevah,” often translated as an abomination. I understand that Jewish law views kiddushin, the ritual ceremony of marriage, as a legal structure between a man and a woman. I know and respect this.

But I also believe that the Torah does not want human beings to live alone, and supports a covenantal relationship between parties as they build a faithful Jewish home. I know that Judaism has, for thousands of years, had a rich understanding of the diversity of gender identities. I know that the Torah affirms the God-endowed dignity of all human beings.

In the recent film “Boy Erased,” based off Garrard Conley’s memoir describing his experience in a gay conversion program, a scene between a Baptist pastor father and his adult gay son has stayed with me. Conley’s character says something along the lines of “I’ve tried to change, God knows I’ve tried. I can’t change. Now it is your turn.”

www.thejerusalempost.com, April 7, 2019 by Avram Mlotek

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I Wanted to Change the World for Gay Black People. Starting With Myself. Queer Love In Color

I’m working on a book based on my Times article, “Queer Love in Color,” a celebration of the joy and romance that queer couples and families of color share. Here’s how it came about — and how you can help.

queer love in color

Last year, I published an article that changed my life.

I was a few weeks into my job at The New York Times when I realized I was never taught how to love another gay, black man.

I mean, I’d done it. I’ve had fulfilling relationships and I’ve said “I love you” and meant it. But did I really know what I was doing? Did any of us? It’s hard to do something you’ve never seen. For most of my life, the most visible queer couples in media have been white. I’d always been aware of this, but I didn’t realize what it was doing to my head.

So I made a list of all the things in my life I started to question soon after working here.

  • The truth is hard. So hard that The Times, where I’m a digital storytelling and training editor, built an entire advertising campaignaround it. Is it too hard for me? Do I even know how to do journalism? Do I have a basic grasp of the English language?
  • How do I single-handedly reverse over a century of problematic representation and erasure of minority communities by the media? Will it make me Twitter-famous? 
  • How do I learn to love other gay men? When I figure this out, how do I teach the rest of the gay community? 

I got to thinking.

Six months earlier, I had been in Orlando, at a gay bar with a young man named Josean, whose two best friends were murdered in the Pulse Nightclub shooting 357 days earlier. We were searching for Khia, rapper of “My Neck, My Back” fame, who was performing a benefit show for survivors of the shooting and their families. (We never found her.)

Late that evening, I met another young man, who, upon learning I was a journalist, lamented the media’s coverage of the Pulse shooting and its aftermath, and the focus on bloodshed and tragedy over the community’s continuing story of strength and triumph.

I was emotionally overwhelmed by both that story and that moment and felt a clarity of mission that I’d never felt before.

I remember wishing I had someone to talk to. Or alcohol. Or tacos. (There are great tacos in Orlando.)

Instead, back at my hotel, I cried and watched TV and eventually I was no longer awake.

About a year after crying myself to sleep in that Orlando hotel room, I wrote and photographed an article called “Queer Love in Color” for The New York Times. That was a life-changing experience, too, in the literal sense. I grew more optimistic about love, the queer community and our ability to honestly represent the two in our reporting. 

NYTimes.com, April 6, 2019 by Jamal Jordan

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Challenge to Trans Student Bathroom Access Advances

Federal court says valid sexual harassment, religious freedom claims asserted on trans bathroom Access

In a first round advance for the anti-LGBTQ litigation group Alliance Defending Freedom, a federal court judge has allowed a lawsuit challenging the Palatine, Illinois, high school district’s policy that allows trans students to use restrooms and locker rooms consistent with their gender identity to proceed on theories of sexual harassment and free exercise of religion.

The March 29 ruling by District Judge Jorge L. Alonso came in response to a suit filed by students and their parents in the district who claim the policy unfairly discriminates against cisgender students who don’t want to be exposed to trans students when using what the plaintiffs refer to as “privacy facilities.”

However, Alonso dismissed a claim the policy violated the cisgender students’ right to bodily privacy or their parents’ right to direct their children’s education.

In ruling on a motion to dismiss, the court assumed that the plaintiffs’ factual allegations as true in deciding whether they have stated a potentially valid legal claim. The school district, which moved to dismiss all the claims, has not filed an answer to the complaint, so the plaintiffs’ rather argumentative characterization of the facts has not yet been challenged. 

The Illinois Safe Schools Alliance, which advocates on behalf of LGBTQ students, has been granted intervenor status, as have three trans students. The Alliance and the student intervenors are represented by the American Civil Liberties Union of Illinois and the ACLU LGBT & HIV Project.

The complaint uses terminology typical of ADF’s anti-LGBTQ propaganda.

“The crux of this suit is that defendants seek to affirm the claimed genders of students by allowing male students who claim female gender to use privacy facilities (i.e., bathrooms and locker rooms) designated for use by the female sex and female students who claim male gender to use privacy facilities designated for the male sex,” the ADF complaint reads. “Plaintiffs refer to the policy as District 211’s ‘compelled affirmation policy.’… District 211 adopted the policy solely to affirm the claimed genders of those students claiming a gender different from their sex at birth.”

The policy, the plaintiffs allege, has caused cisgender students “embarrassm­ent, humiliation, anxiety, fear, apprehension, stress, degradation, and the loss of dignity.” Those students, the suit contends, “are at continual risk of encountering (and sometimes do encounter), without their consent, members of the opposite sex while disrobing, showering, urinating, defecating, and while changing tampons and feminine napkins.”

GayCityNewsNYC.com, by Arthur Leonard, April 3, 2019

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Mormon Church to Allow Children of LGBT Parents to Be Baptized

The Church of Jesus Christ of Latter-day Saints, the Mormon Church, announced a remarkable reversal to its policies on LGBT people on Thursday.

mormon lgbt day

The decision rolls back a 2015 policy that barred children living with same-sex couples from important religious practices like baby-naming ceremonies and baptisms. That policy also declared that LGBT Mormon church members in same-sex marriages were apostates and subject to excommunication.

“Effective immediately, children of parents who identify themselves as LGBT may be baptized without First presidency approval,” the Mormon church’s First Presidency said in a statement on Thursday.

“While we still consider such a marriage to be a serious transgression, it will not be treated as apostasy for purposes of Church discipline,” the statement said. “Instead, the immoral conduct in heterosexual or homosexual relationships will be treated in the same way.”

The decision, instructed by President Dallin H. Oaks, who leads the church’s Quorum of the Twelve Apostles, comes as the church prepares for its general conference this coming weekend.

NYTimes.com, by Elizabeth Dias, April 4, 2019

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