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.

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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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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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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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‘License for Discrimination’: Texas Senate Advances Anti-LGBTQ Bill

Doctors, child care providers, counselors and other state-licensed workers who refuse to provide services based on “a sincerely held religious belief” would be protected under Senate Bill 17.

Texas gay marriage

The Texas Senate on Tuesday gave its initial OK to a bill that civil rights advocates say would give state-licensed workers — including doctors, child care providers and counselors — a free pass to discriminate, especially against people in the LGBTQ community.

Senate Bill 17, filed by state Senator Charles Perry, R-Lubbock, would bar state agencies that issue occupational licenses from penalizing workers who refuse to provide services based on “a sincerely held religious belief.” A worker could still be sued or fired, but the legislation would provide a legal defense in court, Perry said. The state licenses more than 150 types of workers, from cosmetologists to engineers. The bill would not apply in situations with a risk of death or serious bodily injury.

The bill, which has the support of Lieutenant Governor Dan Patrick, has prompted a vocal backlash. Dozens of people testified against the proposal in a committee hearing last week, while only a handful spoke in favor. Echoing the response to the 2017 “bathroom bill,” businesses including Apple, Google and Dell signed a letter opposing the bill, as well as another measure that would endanger local nondiscrimination policies. During debate Tuesday, Perry said he didn’t read the letter and views his proposal as a moral issue rather than an economic one.

SB 17 tentatively passed the upper chamber on a vote of 19-12, with Democrat Eddie Lucio of Brownsville and Republican Kel Seliger of Amarillo bucking party lines. Because the Senate requires a three-fifths majority, the bill would have died without Lucio’s blessing. Two companion House bills have been referred to committees in the lower chamber, but neither has received a hearing.

During floor debate, Seliger questioned whether a state-licensed worker should be able to deny service to a gay couple or a Muslim person. “When do you tell the difference between firmly held religious belief and bias?” he asked. Perry responded that there is “no real definition” of a sincerely held religious belief: “It’s what you practice and what you believe.”

TExasObserver.org, By Vicki Camerillo, April 4, 2019

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Americans Show Broad Support for LGBT Nondiscrimination Protections

Across Lines of Party, Demographics, and Geography, Americans Broadly Support Nondiscrimination Protections for LGBT People

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Americans remain supportive of broad nondiscrimination protections for lesbian, gay, bisexual, and transgender (LGBT) people. Nearly seven in ten (69%) Americans favor laws that would protect LGBT people from discrimination in the job market, public accommodations, and housing.

Support by Age Group

Younger Americans are 17 percentage points more likely than older Americans to say they support laws protecting LGBT people from various forms of discrimination. More than three-quarters (76%) of younger Americans (ages 18-29) favor such laws, compared to (59%) of seniors (ages 65 and older).

Support by Political Party and Ideology

Support for nondiscrimination protections enjoys broad support across the political spectrum. Majorities of Democrats (79%), independents (70%), and Republicans (56%) say they favor laws that would shield LGBT people from various kinds of discrimination. While support among Democrats and independents has remained relatively constant, Republican support for these provisions has fallen five percentage points over the past few years, down from (61%)  in 2015.

Majorities of liberals (81%), moderates (76%), and conservatives (55%) all favor nondiscrimination protections for LGBT people.

Ideological differences are more pronounced among Democrats and independents than among Republicans. The biggest intra-party divide is among Democrats: Liberal Democrats (87%) are likelier than moderate (76%) and conservative (61%) Democrats to favor nondiscrimination laws protecting LGBT people. Liberal (79%) and moderate (78%) independents are also likelier than conservative independents (58%) to support nondiscrimination protections.

Notably, self-identified moderate Republicans (69%) are likelier than self-identified liberal Republicans (59%) or conservative Republicans (53%) to favor laws protecting LGBT people from discrimination. Conservative Democrats (61%) are about as likely as liberal Republicans (59%) to favor nondiscrimination protections for LGBT people.

PRRI.org, March 12, 2019 by
Daniel GreenbergEmma BeyerMaxine Najle, PhDOyindamola BolaRobert P. Jones, PhD

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What’s covered under New York’s new IVF law?

The New York Law will cover fertility treatment, including IVF, for up to 2.4 million

frozen eggs

With more young women and men delaying parenthood, the demand for fertility treatments such as egg freezing and in-vitro fertilization (IVF) has grown across the country.

Legislation and science have lagged behind the trend, and the cost of the treatments can be prohibitively expensive.

A new law, enacted in the 2020 state budget, mandates that certain large-group insurance plans cover IVF, and requires all private insurance companies to cover medically necessary egg freezing.

It is projected to benefit to up to 2.4 million New Yorkers, according to figures from Gov. Andrew M. Cuomo’s administration, but there are kinks to iron out before it guarantees coverage to the other half of insured New Yorkers, including gay men, Medicaid-recipients, and the self-employed.

Secretary to the Governor Melissa DeRosa, the first woman to hold that position, pushed for IVF legislation in the spending plan, citing it as a top priority for the two-year-old Council for Women and Girls.

DeRosa, 36, said that she understands the anxiety of women in her age group who are pressured to decide between advancing their careers and starting a family.

There is nothing more personal or life altering than the ability to conceive and making the choice about when to conceive,” DeRosa said. “As someone who is currently facing these life-altering decisions, I know firsthand the toll they take — emotionally and financially.”

TimesUnion.com by Rachel Silberstein, April 1, 2019

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Brunei to Punish Adultery and Gay Sex With Death by Stoning

When Brunei announced in 2013 that it was bringing in harsh Islamic laws that included punishments of death by stoning for adultery and gay sex, the move was met with international protest.

Some investments by the country’s sovereign wealth fund, including the Beverly Hills Hotel, were targets of boycotts and calls for divestment.

Following the outcry, Brunei, a sultanate of about 430,000 on the island of Borneo, delayed carrying out the harshest provisions of its Shariah law.

Now, it is quietly going ahead with them.

Beginning on April 3, statutes allowing stoning and amputation will go into effect, according to an announcement posted by the country’s attorney general last year that has only recently received notice.

That has set off a renewed outcry from human rights groups.

“Brunei’s Penal Code is a deeply flawed piece of legislation containing a range of provisions that violate human rights,” Rachel Chhoa-Howard, a researcher for Amnesty International, said in a statement. “As well as imposing cruel, inhuman and degrading punishments, it blatantly restricts the rights to freedom of expression, religion and belief, and codifies discrimination against women and girls.”

Brunei has had the death penalty on the books since it was a British protectorate, but in practice executions are not typically carried out.

Homosexuality is already illegal in Brunei, with a punishment of up to 10 years in prison, but the new laws allow for penalties including whipping and stoning. The new laws also introduce amputation of hands or feet as a punishment for robbery.

“To legalize such cruel and inhuman penalties is appalling of itself,” Ms. Chhoa-Howard said. “Some of the potential ‘offenses’ should not even be deemed crimes at all, including consensual sex between adults of the same gender.”

Brunei is ruled by a sultan, Hassanal Bolkiah, who lives in a 1,788-room palace and whose wealth amounts to tens of billions of dollars thanks to Brunei’s oil riches. In recent decades he has advocated a conservative vision of Islam that has clashed with the more moderate strains generally practiced in the region, and with the royal family’s own luxurious lifestyle.

New York Times, by Austin Ramzy, March 29, 2019

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Gay Dads Make Excellent Parents, According To A Recent Study, Proving What We Already Knew

Yet another study, now from Canada, shows gay dads are engaged and loving parents.

gay dads study

Sometimes it seems like our world is never getting any better. Climate change is still very much a thing, as are climate change deniers. Racism, sexism, homophobia; none of this has been completely eradicated as a person might have hoped would happen by 2019. And yet, there is still a nice shiny light at the end of the tunnel. Because a recent study found that gay dads make excellent parents, and just the knowledge that such a study exists is cause for a little celebration.

A seven year study conducted by Eric Feugé of the University of Quebec in Montreal looked specifically at how gay fathers interacted with their children. The long-term study observed 46 families, including 92 gay fathers and 46 children under the age of 9, according to Pink News. 

Most of the men in the study had adopted children who had been removed from their biological families for their own protection, according to The Montreal Gazette, which can understandably be more of a challenge considering potential emotional or physical trauma. And it seems that, according to the study, a full one-third of the children adopted under the social services umbrella in Montreal were adopted by gay parents since it became legal in the province of Quebec in 2002.

Feugé explained to The Montreal Gazette that he was looking specifically at gay dads to see how they engaged with their kids. 

“One of my main objectives was to study the degree of engagement of gay fathers, and how they distribute parental work,” he told the publication. “I wanted to see if that had an effect on the adaptation of the children; and to understand the determinants of (the fathers’) engagement — why some fathers get involved in certain areas of their children’s lives rather than others.” 

And as he explained to The Montreal Gazette, “There was a high degree of engagement in all types of parental roles.”

Feugé went on to note in his study that there tended to be one father who did a bit more than the other, leading the researchers to categorize the dads into primary and secondary caregiver roles, according to The Montreal Gazette.

Recent wins for LGBTQ families

March arrived like the proverbial lion with a wave of good news for LGBTQ families.

LGBTQ Families

New Jersey Gov. Phil Murphy (D) signed a bill Feb. 19 expanding the state’s paid family leave law in a number of ways, including by expanding the definition of “family” to include chosen families and expanding the definition of “parent” to include foster parents and those who become parents via gestational surrogacy.

“New Jersey is now the first state in the nation to offer paid family leave that is inclusive of all families,” according to the Center for American Progress. 

A bill also passed the New York Assembly Judiciary Committee Feb. 27 that would more effectively protect families created through assisted reproductive technologies. The Child-Parent Security Act would legalize gestational surrogacy in the state and simplify the procedure for securing the legal rights of non-biological parents. It has yet to pass the full Assembly and Senate, but Gov. Andrew Cuomo (D) has expressed his support.

And in Virginia, the General Assembly on Feb. 22 passed an update to its surrogacy laws that will now give same-sex couples and single parents the same rights as different-sex couples. The legislation, known as Jacob’s Law, is named after the son of two dads who had to fight for their rights to him after he was born with the help of a surrogate. A Virginia court had refused to recognize their Wisconsin surrogate contract, precipitating a long legal battle.

On the federal level, Judge John F. Walter of the U.S. District Court for the Central District of California on Feb. 21 recognized the birthright citizenship of Ethan Dvash-Banks, the son of U.S.-citizen Andrew Dvash-Banks and his Israeli husband Elad Dvash-Banks. Two-year-old Ethan was previously denied recognition of his citizenship—even though his twin brother was granted it.

That means that at least one other family, that of U.S. citizen Allison Blixt and her spouse Stefania Zaccari, an Italian citizen, must continue to fight for their children’s right to be U.S. citizens. Like the Dvash-Banks’, they married abroad while the Defense of Marriage Act was still in effect, and then had two sons, Lucas and Massi. The U.S. State Department refused to recognize their marriage and said that Massi was Allison’s son because she had given birth to him, but Lucas, who was carried by Stefania, was not. It thus has refused to recognize Lucas’ citizenship. The Dvash-Banks victory is thus a step forward, but not the end of the story.

Washington Blade by Dana Rudolph, March 18, 2019

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