Thursday, September 28, 2017
It was the Government v. the Government on Whether Sexual Orientation Discrimination is Gender Discrimination
In the recent Second Circuit case, it was the Government - the Equal Employment Opportunity Commission v. the Government - the Department of Justice. The government bizarrely found itself on opposite sides of the issue.
Erin Mulvaney, US Agencies to Clash in Appeal Over Sexual Orientation Bias
The U.S. Court of Appeals for the Second Circuit will hear arguments in a high-profile case next week that could telegraph what’s to come in the ongoing legal battle over whether sexual orientation should be protected under federal civil rights law. Zarda v. Altitude Express is also notable in that it pits two government agencies—the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission—against each other in the courtroom.
After a three-judge panel of the Second Circuit ruled back in April that Title VII of the Civil Rights Act of 1964 does not protect LGBTQ workers, the full appeals court agreed to revisit the decision en banc. Arguments are scheduled for Sept. 26 in New York.
The ultimate answer to the question of whether Title VII should be expanded in scope to include workers from discrimination based on their sexual orientation will have widespread effects on companies across the country. So far, rulings on the issue have varied, and eventually the Supreme Court will almost certainly provide its own view. Lower court arguments will be crucial in setting the stage for a possible circuit split and an eventual high court showdown.
The U.S. Court of Appeals for the 2nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary.
The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace.
It’s important to understand some background before getting further into how those arguments went. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination doesprotect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning.
Regardless, the DOJ’s decision to weigh in on Zarda ensured that oral arguments would include the weird spectacle of one federal agency opposing another in court. That doesn’t happen often—and really shouldn’thappen—because the executive branch is expected to speak with one voice on legal affairs.
Tuesday, April 25, 2017
In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.
Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”
Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***
Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.
Monday, March 13, 2017
On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11thCircuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.
Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII.*
That left it up to Judge Robin S. Rosenbaum to explain, in dissent, all the ways that Pryor and the majority went terribly wrong. As Rosenbaum succinctly explained:Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of … sex.”
Rosenbaum pointed out that the Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex discrimination encompasses sex stereotyping. This decision, she explained, clearly abrogated the 1979 decision relied upon by the majority. As the law stands today, employers are indisputably barred from mistreating workers on the basis of sex-based stereotypes. Anti-gay discrimination is motivated by precisely such a stereotype: the conviction that men and women must only be attracted to individuals of the opposite sex. Therefore, sexual orientation discrimination must fall under the scope of sex discrimination.
In a lengthy retort, Rosenbaum also took a satisfying swipe at Pryor’s “irrelevant journey through some of the different ways in which a gay person may express—or suppress—her sexual attraction.” And she rebutted the notion that because Title VII was not designed to protect gay people, it cannot be read to do so now. The Supreme Court unanimously rejected a similar argument in 1998’s Oncale v. Sundowner, when a discriminatory employer argued that the law wasn’t passed to stop male-on-male sexual harassment. This form of harassment, Justice Antonin Scalia wrote for the majority, was “assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But, he noted:Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.
Given this principle, Rosenbaum wrote, “the mere fact that we may believe that Congress may not have specifically intended the meaning of what a statute actually says is not a basis for failing to apply the textual language.”
Wednesday, November 18, 2015
The White House endorsed legislation Tuesday that would amend the 1964 Civil Rights Act to ban discrimination on the basis of sexual orientation or gender identity.
White House press secretary Josh Earnest said the Obama administration had been reviewing the bill “for several weeks.”
“Upon that review it is now clear that the administration strongly supports the Equality Act,” he said. “That bill is historic legislation that would advance the cause of equality for millions of Americans.
“We look forward to working with Congress to ensure that the legislative process produces a result that balances both the bedrock principles of civil rights . . . with the religious liberty that we hold dear in this country,” Earnest added.
Sunday, November 15, 2015
Under fire from critics including gay rights activists and the state’s Republican governor, a judge in Utah on Friday reversed, at least temporarily, his order that a foster child be taken away from a lesbian couple because it was “not in the best interest of children to be raised by same-sex couples.”
While the child may remain with the couple for the moment, Judge Scott N. Johansen signaled that the matter might not be settled. He continued to question the placement of children with same-sex parents, a matter that will be taken up at a Dec. 4 hearing on what is in the best interests of this child, a 9-month-old girl.
The judge’s actions, coming after the Supreme Court this year established a right to same-sex marriage, put him at the center of another front in the nation’s legal and culture wars: the question of whether gay men and women can get, and keep, custody of children under various circumstances.
Thursday, November 5, 2015
A city ordinance protecting residents from discrimination based on sexual orientation and gender identity is defeated after a fierce campaign.
The nation’s fourth-largest city has elected a lesbian mayor three consecutive times without much controversy, and in 2014, its city council approved an ordinance protecting residents from discrimination based on sexual orientation, gender identity, and 13 other factors. But when that same proposal came before the electorate on Tuesday, it lost out to an opposition campaign armed with a startlingly simple message: “No men in women’s bathrooms.” Opponents led 61 to 39, with 66 percent of the precincts reporting on Tuesday night.
Federal education officials have ruled that an Illinois school would illegally discriminate against a transgender student if they did notlet her use the girls’ locker room without restrictions, rejecting a plan to have her change beyond privacy curtains. Students leda walk out of a Missouri school earlier this year when a transgender girl started using the girl’s locker room. “Some girls already have insecurity problems getting dressed in front of other girls as it is,” one student said.
Can transgender equality be protected while still recognizing student concerns about privacy in a locker room, or do such accommodations create inequality?
Monday, October 26, 2015
ALBANY -- Gov. Andrew Cuomo’s move to provide legal protections to transgender New Yorkers hinges on interpreting the word “sex.”
Cuomo late Thursday introduced regulations that would legally prevent New York employers, businesses and housing providers from discriminating against transgender individuals and those with gender dysphoria.
Within hours of Cuomo’s proposal, conservative groups pushed back, questioning whether the governor has the legal authority to install such rules. The Cuomo administration has stood its ground, with one official calling the plan a “progressive interpretation” of a law that first took effect in 1945.
Friday, October 23, 2015
Tokyo’s Shibuya ward said Friday that it will start accepting applications for same-sex partnership certificates beginning next week after passing an ordinance earlier this year that permits the ward to recognize the partners equivalent to those married under the law.
According to the ward, same-sex couples applying for a certificate must both reside in Shibuya and be at least 20 years old. They must also be unrelated and have no spouses or other same-sex partners. The ward will also require that the couple submit notarized documents proving their relationship.
The ward said it will start issuing the certificates beginning Nov. 5.
Monday, October 12, 2015
In the midst of earthquake reconstruction and political violence in the country's south, Nepal's new constitution provides a reason for many citizens to celebrate -- particularly its lesbian, gay, bisexual, transgender, and intersex (LGBTI) community.
After more than seven years of deliberation, on September 20, Nepal's President Ram Baran Yadav promulgated the small Himalayan country's historic constitution. It stands as the first national constitution in Asia--and only the third in the world along with South Africa (1996) and Ecuador (1998)--to include explicit rights and protections for LGBTI people.
Friday, October 9, 2015
"Everyone has a fundamental right to be recognized in their gender," the Delhi High Court declared this week in a short but powerful judgment that vindicates the rights of India’s transgender people.
The court stepped in to protect Shivy, a 19-year-old transgender man studying neurobiology in California, who was being mistreated by his parents during a family holiday to India. Shivy said his parents confined him to his grandparents’ home in Agra, took away his Indian passport and United States residency card, and compelled him to enroll in a university in Agra. When he ran away, his parents reported him to the police, who searched for him and reportedly harassed activists who had assisted him.
Wednesday, October 7, 2015
Prof. Keith Cunningham-Parmeter has uploaded a new article onto SSRN. The article is titled "Marriage Equality, Workplace Inequality: The Next Gay Rights Battle," and its abstract reads:
Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.
This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.
Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.
Friday, October 2, 2015
Since the American press largely ignored or downplayed the Pope's January 2015 Vatican visit with a transgender man from Spain, many Americans have nothing to counterbalance off the Pope's Kim Davis visit to understand that the pontiff's visit is not meant to signal he has taken Davis' side, or joins in condemning gay culture. Rather it is the Pope's demonstration of compassion for all people.
While those eager to criticize and even hate the Pope for his visit with Davis, those with open minds can consider the Vatican visit with Diego Neria Lejarraga and his fiancee as a refutation of the hatred that the Davis camp is spreading. The public following the Pope is due more comprehensive exposure to Pope Francis' inclusion of the different voices and lifestyles he embraces in his spiritual vision of the Church in the future, and the vist with Neira represents the Pope's boldest departure from Catholic doctrine to date.
Monday, September 14, 2015
She’s back — but what happens now?
That is the question on the minds off all Rowan County watchers. There, in small-town Kentucky, clerk Kim Davis went to jail earlier this month rather than issue marriage licenses in the wake of the Supreme Court’s legalization of same-sex marriage. Davis, an Apostolic Christian, said her faith prevented her from blessing such unions, so she refused to issue any licenses despite a court order. This landed her in jail for contempt of court.
Last week, after five days behind bars, Davis triumphantly emerged arm-in-arm with Republican presidential candidate Mike Huckabee to the strains of “Eye of the Tiger” — and, though clerks have been issuing licenses in her absence — with a bit of ambiguity about what would happen when she returned to her job.
Friday, September 11, 2015
Nearly four decades before Caitlyn Jenner introduced herself to the world, Phyllis Randolph Frye came out as a transgender woman in a far less glamorous way. No Diane Sawyer, no Vanity Fair.
It was the summer of 1976. As Bruce Jenner, 26, was celebrating his decathlon victory at the Montreal Olympics, Phillip Frye, 28, was admitting defeat in suppressing his gender identity. He, becoming she, had already lost a lot: He had been forced to resign from the military for “sexual deviation.” He had been disowned by his parents, divorced by his first wife and separated from his son. He had been dismissed from several engineering jobs.
Monday, September 7, 2015
New Year’s revelers clamored outside the window of Shagasyia Diamond’s apartment in the Bronx the day she was arrested.
Newly into 2014, she was in the midst of a dispute with her husband when officers showed up at her front door, placed her in handcuffs and escorted her to a nearby precinct. It was there, Ms. Diamond recalled, that the violations began.
Although the New York Police Department amended its patrol guide in 2012 to require respectful treatment of transgender people, Ms. Diamond, who is a transgender woman, said she was subjected to a strip search by a male officer. Two other officers watched from a few feet away, gawking as she spread her legs. Officers then placed Ms. Diamond in a cell for men, she said, where she cowered in the corner as other inmates heckled her and used the exposed toilet in her presence. When she expressed her discomfort to an officer, he replied, “You know you like it in there with all the men.”
Wednesday, September 2, 2015
Nawel was in Tunis’s city centre when it happened. “This guy came up to me from nowhere. He was dressed really religiously and, without any warning, he just slapped me across the face – and the weird thing was that it wasn’t just the slap. It was that no one did anything. They all just carried on. It was if I deserved it.”
Nawel shakes her head, still stung by the casual indifference of the crowd. There isn’t anything unusual about her that might mark her out for attack. With her short hair, jeans and T-shirt she is indistinguishable from many other young women.
Tunisia’s attitude to its lesbian, gay, bisexual and transgender (LGBT) community goes beyond the social. Article 230 of Tunisia’s constitution forbids acts of sodomy, with those found guilty facing jail sentences of up to three years. Article 226 rules against outrages to public decency, a catch-all law often used to target the country’s trans community. Both laws date from 1914 and remain untouched by the 2011 revolution and the subsequent rush to reform.
Much of the focus for Tunisia’s LGBT pushback has focused on the pressure group Shams, which campaigns for the repeal of Article 230. But an organisation formed in June last year is providing a feminist alternative. Chouf, whose members see themselves primarily as visual activists, offers a desperately needed safe haven for Tunisia’s most isolated and vulnerable groups, its lesbian, bisexual and trans communities.
Monday, August 31, 2015
One of the informal prerequisites for the court to deem something a suspect class for purposes of equal protection is that the members of that class have an "immutable trait," something that they are born with and is not amenable to change.
As its name suggests, transgender implies an identity that is mutable. However, a recent NYT story challenges that inference.
Dr. Kranz studied four different groups: female-to-male transsexuals; male-to-female transsexuals; and controls who were born female or male and identify as such. Since hormones can have a direct effect on the brain, both transsexual groups were studied before they took any sex hormones, so observed differences in brain function and structure would not be affected by the treatment. He used a high-resolution technique called diffusion tensor imaging, a special type of M.R.I., to examine the white matter microstructure of subjects’ brains.
What Dr. Kranz found was intriguing: In several brain regions, people born female with a female gender identity had the highest level of something called mean diffusivity, followed by female-to-male transsexuals. Next came male-to-female transsexuals, and then the males with a male gender identity, who had the lowest levels.
In other words, it seems that Dr. Kranz may have found a neural signature of the transgender experience: a mismatch between one’s gender identity and physical sex. Transgender people have a brain that is structurally different than the brain of a nontransgender male or female — someplace in between men and women.
This gradient of structural brain differences, from females to males, with transgender people in between, suggests that gender identity has a neural basis and that it exists on a spectrum, like so much of human behavior.
Friday, August 21, 2015
Same-sex couples may have won marriage equality, but some gay and lesbian individuals have been left wondering if their unions are still less than equal in the eyes of the government.
Kathy Murphy is one of them. She has been unable to collect survivor and death benefits from Social Security since she lost her spouse, Sara Barker, to cancer in 2012. Ms. Murphy retired from her career in publishing in 2011, earlier than she expected, to care for Ms. Barker, who died at 62.
Ms. Murphy finds herself in this predicament largely because her spouse died before the Supreme Court’s monumental ruling in June, Obergefell v. Hodges, which declared that marriage is a fundamental right. That case came after the landmark Windsor decision, in 2013, in which the court ruled that same-sex couples are entitled to federal benefits.
Wednesday, August 19, 2015
Thus runs a tentative theory being floated by MSNBC, of all parties:
With his penchant for name-calling and plans to deport every undocumented immigrant living in the United States, Donald Trump hasn’t exactly established a reputation for tolerance. Yet the real estate mogul and reality TV host might nevertheless be the most LGBT-friendly Republican running for president.
Asked whether private companies should be able to fire employees simply because they’re gay, Trump told “Meet The Press” host Chuck Todd on Sunday that he didn’t think sexual orientation “should be a reason” for letting workers go.
The question is a significant one for any White House hopeful – currently, 31 states lack employment protections for LGBT Americans, by the Human Rights Campaign’s count, and there are no federal barriers to discrimination based on sexual orientation or gender identity. Trump’s response, however, marked a significant departure from the rest of the crowded GOP presidential pack, many of whom have pledged to expand protections for those wishing to turn away LGBT people on religious grounds.