Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, July 29, 2015

"A Quiet Triumph for Gay Workers"

So reads the headline from an Atlantic article.   The contents thereof read:  

Gay Americans can now get married in the morning and then, in the afternoon, just for being gay, their employers can fire them. Is doing so legal? Up until last week, the answer was yes for Americans living in the 28 states without explicit bans on workplace sexual-orientation discrimination. But an important rulingfrom the Equal Employment Opportunity Commission (EEOC) means that courts in those states are now more likely to say that such discrimination is illegal, and that gay Americans are already protected from such discrimination under existing law.

Related articles include:

July 29, 2015 in LGBT, Work/life, Workplace | Permalink | Comments (0)

Monday, July 27, 2015

Obama criticizes Kenya on gay rights

President Obama is presently traveling through Africa.  Recently, he gave a speech in Kenya condemning the nation's refusal to protect the rights of its gay citizens.  From the NYT: 

NAIROBI, Kenya—Widespread celebration of President Barack Obama’s visit to a country teeming with national pride over an American leader considered a local son was briefly overshadowed Saturday by a public disagreement with his Kenyan counterpart over gay rights.

In an awkward moment of tension, Mr. Obama condemned Kenya’s treatment of gays and lesbians as “wrong—full stop” while standing alongside Kenyan President Uhuru Kenyatta during a joint news conference.

The president, whose personal story has deep resonance in Kenya, even used himself as an example of why discrimination on the basis of gender, race or sexual orientation should be illegal.

“As an African American in the United States I am painfully aware of what happens when people are treated differently under the law,” said Mr. Obama, whose father was born and raised in Kenya.

To no avail......

But none of it swayed Mr. Kenyatta, who responded by saying his country does not share the U.S. president’s view.

“For Kenyans today the issue of gay rights is really a non-issue,” Mr. Kenyatta said, stressing matter-of-factly that economic and security concerns are of higher concern.

July 27, 2015 in International, LGBT | Permalink | Comments (0)

"For Transgender Americans, Legal Battles Over Restrooms"

An editorial from the NYT: 

Gavin Grimm sat quietly in the audience last November as dozens of parents at a school board meeting in Gloucester County, Va., demanded that he be barred from using the boys’ restrooms at school. They discussed the transgender boy’s genitals, expressed concern that he might expose himself and cautioned that being in a men’s room would make the teenager vulnerable to rape. One person called him a “freak.”

When Gavin, 16, got his turn at the podium, he was remarkably composed. “I didn’t ask to be this way,” Gavin said. “All I want to do is be a normal child and use the restroom in peace.”


On Monday, Judge Robert Doumar of Federal District Court in Virginia is scheduled to consider whether the school board’s decision to prohibit Gavin from using the male restroom is unlawful discrimination. The case addresses one of the main unresolved battles in the fight for transgender equality.

A favorable decision for the student would be the first time a federal court has ruled that refusing transgender students access to proper restrooms is discriminatory. Any other outcome would reinforce cruel policies that deny dignity to some of the most vulnerable students and subject them to more bullying and stigmatization.

July 27, 2015 in Legislation, LGBT | Permalink | Comments (0)

Saturday, July 25, 2015

Equality Act Introduced in Congress

Huff Post, The Equality Act is a Visionary Piece of Legislation--And Way Overdue

Something extraordinary happened Thursday to advance fairness and equality in the United States. Members of Congress introduced legislation to amend the landmark Civil Rights Act of 1964 to embrace a more robust vision of equality.


The bill -- aptly named the Equality Act -- would amend existing law to explicitly prohibit discrimination based on sexual orientation and gender identity and expand protections against discrimination for women. The bill would also extend the reach of protections against discrimination by businesses and stop the use of religion to discriminate. It's historic -- and it may also be a surprise because many people think such discrimination is already illegal

Slate,"The Equality Act": Democrats Push Bill Banning LGBT Discrimination

The Equality Act Could End Legal LGBT Discrimination for Good

Sweeping LGBT Rights Bill to be Introduced this Week

July 25, 2015 in Legislation, LGBT | Permalink | Comments (0)

Friday, July 24, 2015

Editorial on the Boy Scouts of America and Gay Rights

Boy Scouts marching in Seattle Pride Parade

From the LA Times, an interesting comparison with the much more open policy of the Girl Scouts.  

The Boy Scouts of America didn't go as far as it ought to have with its new recommendation on gay Scout leaders, but it did make reluctant headway. This wasn't the leap of an organization that now views sexual orientation with more tolerant eyes, but rather a shuffling step by a tradition-bound group that has been prodded by dramatic changes in societal views of sexual orientation, as well as the financial realities of needing to woo back corporate donors such as Walt Disney Co. that are reluctant to sponsor an organization that discriminates against gay people.

The resolution approved last week by the Scouts' national executive committee puts an end to the organization's official ban on gay Scout leaders and volunteers. But rather than banning such discrimination entirely, it leaves the decision up to individual troops and units. (The new policy is expected to be ratified by the executive board July 27.) Some of those troops already have shown interest in welcoming all interested and qualified adults, regardless of sexual orientation; many others are expected to keep a ban in place.

Compare that with the way the Girl Scouts recently made news: A Scouting council in western Washington rejected a $100,000 donation that came with the stipulation that it not be used to support transgender Scouts. That's in line with the organization's history. The Girl Scouts also became racially integrated much earlier than the Boy Scouts, and had little problem accepting atheist members.

July 24, 2015 in LGBT, Manliness, Masculinities | Permalink | Comments (0)

Saturday, July 18, 2015

EEOC Rules Title VII Does and Has Covered Sexual Orientation Discrimination

Slate, Scalia and the EEOC: How Oncale Made Sexual Orientation Discrimination Illegal

On Thursday, the Equal Employment Opportunity Commission dropped a bombshell: Sexual orientation discrimination in the workplace, the EEOC ruled, is already illegal under Title VII of the Civil Rights Act of 1964. This ruling—which is binding on EEOC conciliations between employers and employees, and is an extremely persuasive authority for courts—has been a long time in the making. In fact, it can be traced back to a unanimous 1997 Supreme Court opinion written by none other than Justice Antonin Scalia.


That case, Oncale v. Sundownerdealt with Title VII’s prohibition of discrimination “because of sex.” Joseph Oncale worked on an oil rig with seven other men, who sexually harassed him physically and verbally. Oncale sued his employer, arguing that he faced discrimination because of his sex. But the court ruled against him, holding that Title VII did not protect men against sex discrimination by male co-workers.


In a terse opinion, Scalia emphatically rejected this reasoning. Male-on-male sexual harassment, Scalia acknowledged, “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” (The principal evil, of course, was male-on-female workplace discrimination.) Still, Scalia explained: "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."

This passage has formed the bedrock of the EEOC’s expansion of Title VII’s protections to sexual and gender minorities. In a 2012 decision holding that Title VII bars discrimination based on gender identity and transgender status, the EEOC placed Scalia’s “comparable evils” declaration at the center of its analysis. On Thursday, the commission pulled the same maneuver, faithfully quoting Scalia and noting that the text of Title VII does not exclude sexual minorities from the law’s protections. And now, thanks in part to Scalia, LGBT employees in every state are protected from workplace discrimination by federal law.

July 18, 2015 in Equal Employment, LGBT | Permalink | Comments (0)

Friday, July 17, 2015

taking gender out of the tax code

From the Detroit Free Press: 

WASHINGTON – A Michigan congressman today proposed to do formally what the U.S. Supreme Court effectively accomplished last month: take the gender references out of the federal tax code.

U.S. Rep. Sander Levin, D-Royal Oak, introduced legislation intended to make clear that all married couples, regardless of gender, are equal under the tax code, removing gender references such as “husband and wife” and replacing them with nongender references like “married couple.”

July 17, 2015 in Legislation, LGBT | Permalink | Comments (0)

"Ireland passes law allowing trans people to choose their legal gender"

From the Guardian UK: 

Transgender people in Ireland have won legal recognition of their status after a law was passed allowing them to change their legal gender with no medical or state intervention.

The majority of countries in Europe require transgender people to undergo surgery and sterilisation, or be diagnosed with a mental disorder and get divorced if they are married, in order to have their desired gender legally recognised.

The gender recognition bill, passed late on Wednesday and set to be signed into law by the end of July, makes Ireland only the third European country, after Denmark and Malta, to allow transgender people aged over 18 to change their legal gender without intervention.

The bill was passed months after the people of Ireland backed same-sex marriageby a landslide in a referendum that marked a dramatic social shift in a country that decriminalised homosexuality just two decades ago.

July 17, 2015 in International, LGBT | Permalink | Comments (0)

Wednesday, July 15, 2015

"Hawaii Eases Process to Switch Gender on Birth Certificates"

From the NYT: 

HONOLULU — Gov. David Ige signed a bill Monday that will allow transgender men and women in Hawaii to more easily change the gender on their birth certificate.

The new law eliminates the requirement that someone must undergo gender reassignment surgery before officially making the switch.

"I know that this has been a tough issue," Ige said. "As all of you know, the birth certificate is one of those foundation documents."

Many in the transgender community can't afford or don't want to undergo costly surgeries. But having a birth certificate that reflects their gender expression is critical for school transcripts, job applications, health insurance and many other aspects of life, advocates said.

"With this new law, it's life-changing," said Tia Thompson, 30, of Honolulu, who was denied a birth certificate that reflects her female gender identity. "Words cannot express what's going on."

July 15, 2015 in LGBT | Permalink | Comments (0)

Monday, July 13, 2015

replacing "husband" and "wife"

The story: 

WHITE PLAINS, N.Y. (CBSNewYork) — It’summer wedding season, and as couples prepare to say “I do,” some lawmakers have been looking to change hundreds of laws on the books.

As CBS2’s Lou Young reported, a proposal in the U.S. House of Representatives would remove the terms “husband” and “wife.”

In White Plains, the sculpture “Contact” by J. Seward Johnson depicts a man and woman embracing. They are married – as the rings on their fingers demonstrate.

But are they “husband and wife?” Are they “two spouses?” Does it matter?

“I’m a husband. I’m married to a wife,” said James Kindro of Ardsley, “and if you want to say ‘married couple,’ I really don’t bother me one way or the other.”

The recent revolution in same-sex unions has prompted a proposal to gender-neutralize federal law, deleting references to “husband and wife” and opting for “spouse” or “married couple.

July 13, 2015 in LGBT | Permalink | Comments (0)

Friday, July 10, 2015

"Schools are becoming ground zero for clashes over transgender rights."

From the Atlantic: 

Casey Hoke would spend an average of two minutes out of his seven-hour school day in the restroom. “That’s it. Business as usual. No one bats an eye,” Hokewrote in January, back when he was a high-school senior in Louisville, Kentucky. “How we go about our business is none of yours.”

By “we,” Hoke was referring to transgender students. He was primarily addressing Kentucky’s legislature, which at the time was considering a bill that would’ve cracked down on transgender students’ use of K-12 bathrooms. The legislation would’ve legally required schools to ensure that children follow anatomical conventions when using gender-segregated school facilities: that children who were born boys but identify as girls use the boys’ restroom, and vice versa. What Hoke found particularly egregious about the “Kentucky Student Privacy Act” was that, in its original version, the legislation also would’ve entitledstudents who sued offenders in state court to damages of $2,500 each. Hoke compared this proposed system to a witch hunt.

July 10, 2015 in Education, LGBT | Permalink | Comments (0)

Monday, July 6, 2015

more evidence that young Americans differ from their parents on issue of gay marriage

Scott Walker, the governor of Wisconsin and GOP presidential hopeful, publicly condemned the Supreme Court's recognition of gay marriage as a fundamental right.  His sons--both college students--were "disappointed" by their father's intolerance.  From WaPo: 

In the political world, Walker drew immediate scrutiny for being particularly strident. In their house, Tonette Walker heard immediately about her husband’s response from the couple’s two sons, Matt and Alex, who are taking time off from college to help their father’s campaign. She told them to talk directly to him.

“That was a hard one,” Tonette said, pausing and choosing her words carefully. “Our sons were disappointed. . . . I was torn. I have children who are very passionate [in favor of same-sex marriage], and Scott was on his side very passionate.”

“It’s hard for me because I have a cousin who I love dearly — she is like a sister to me — who is married to a woman, her partner of 18 years,” she said.

She said her son Alex was her cousin’s best man at their wedding last year.

July 6, 2015 in LGBT | Permalink | Comments (0)

what the Republican presidential candidates think about gay marriage ruling

From Salon

Wisconsin Governor Scott Walker

“As a result of this decision, the only alternative left for the American people is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage. I call on the president and all governors to join me in reassuring millions of Americans that the government will not force them to participate in activities that violate their deeply held religious beliefs.”

Former Florida Governor Jeb Bush

“Guided by my faith, I believe in traditional marriage. I believe the Supreme Court should have allowed the states to make this decision. I also believe that we should love our neighbor and respect others, including those making lifetime commitments. In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.”

Former Arkansas Governor Mike Huckabee

“The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do — redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat.”

“This ruling is not about marriage equality, it’s about marriage redefinition. This irrational, unconstitutional rejection of the expressed will of the people in over 30 states will prove to be one of the court’s most disastrous decisions, and they have had many. The only outcome worse than this flawed, failed decision would be for the President and Congress, two co-equal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny.”

“The Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the law of gravity. Under our Constitution, the court cannot write a law, even though some cowardly politicians will wave the white flag and accept it without realizing that they are failing their sworn duty to reject abuses from the court. If accepted by Congress and this President, this decision will be a serious blow to religious liberty, which is the heart of the First Amendment.”

Louisiana Governor Bobby Jindal

“The Supreme Court decision today conveniently and not surprisingly follows public opinion polls, and tramples on states’ rights that were once protected by the 10th Amendment of the Constitution. Marriage between a man and a woman was established by God, and no earthly court can alter that.”

“This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree with this decision. This ruling must not be used as pretext by Washington to erode our right to religious liberty.”

“The government should not force those who have sincerely held religious beliefs about marriage to participate in these ceremonies. That would be a clear violation of America’s long held commitment to religious liberty as protected in the First Amendment.”

Former Pennsylvania Senator Rick Santorum

“This is a watershed moment in American history. It’s the most egregious rejection of traditional values and the Bill of Rights since Roe v. Wade.”

July 6, 2015 in LGBT | Permalink | Comments (0)

Sunday, June 28, 2015

Attitudes about Gay Marriage

The graph below was lifted from an Atlantic essay that shortly predated the Supreme Court's announcement regarding gay marriage.

White evangelical Protestants and Mormons are the only two groups in which majorities of younger members do not support same-sex marriage. But even among these most conservative groups, the generation gaps are yawning. And it is striking that among young white evangelical Protestants, opposition falls short of a majority.

Whether or not the Supreme Court deals the final blow to the culture war over same-sex marriage next week, public opinion trends indicate—and the public overall perceives—that the days of the decades-long debate over this issue are numbered. In light of that reality, both supporters and opponents of gay rights are already asking, “Then what?”

June 28, 2015 in LGBT | Permalink | Comments (0)

GOP on Gay Marriage

It looks as though the GOP has settled into two camps regarding gay marriage.  One--the more conservative--represented by Carla Fiorina, and the other--less conservative--represented by Jeb Bush: 

"Throughout the millennia and in every religion in the world, marriage has a very specific meaning. Marriage is an institution, grounded in spirituality. It is the union of a man and a woman, and from that union comes life, and life is a gift from God," Fiorina said at the Western Conservative Summit. "Now that this decision has come down, I think we need to focus all of our energies on ensuring that we protect the religious liberties and the freedom of conscience of those who profoundly disagree with this decision."

In Nevada, Jeb Bush told reporters he didn't think that a legislative push by Republicans for constitutional amendment on same-sex marriage was realistic.

"I don't think it's going to happen. I think we ought to focus just as I said on trying to forge consensus so we can move forward," Bush said. "The courts have decided traditional marriage still is a hugely important element of a just, loving society and we should respect people that have long-term loving relationships and allow people to act on their conscience."

June 28, 2015 in LGBT | Permalink | Comments (0)

Kennedy's reasoning

In Obergefell v. Hodges, Justice Kennedy's rhetoric is elegant, and as a cultural document, his judicial opinion has been celebrated by many Americans--and many more will celebrate in the future.   But as a teacher of constitutional law, I wish he hadn't combined the equal protection and due process arguments to strike down the ban against gay marriage.  

Here's what Kennedy wrote: 

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.

The straightforward argument from equal protection would have been easier to make, in my view; the due process argument--the argument that gay marriage per se is constitutional--would appear more difficult to make.    

Homosexuality would seem to satisfy all the conventional requirements to be deemed a "suspect classification" that triggers strict scrutiny under the equal protection clause.  Gays are a discrete and insular minority; suffer stigma; have endured a history of discrimination; and their sexual orientation--like that of heterosexuals--is probably immutable.   

There could have also been some political dividends to be gained from making the argument that gays are a vulnerable group who have been wrongly denied equal rights by a prejudiced majority.  

But Kennedy's approach mushes things, and it will be harder for con law teachers to explain to their students what precisely he meant in terms of either due process or equal protection.  

June 28, 2015 in LGBT | Permalink | Comments (0)

Friday, June 26, 2015

"Huh?"--Justice Antonin Scalia

Instructors of legal writing may wish to take note of Justice Scalia's memorable prose in his dissenting opinion in the gay marriage cases (I have placed in bold especially colorful language): 

“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court....

June 26, 2015 in Judges, LGBT | Permalink | Comments (0)

Supreme Court Upholds Right to Gay Marriage

From the NYT: 

WASHINGTON — In a long-sought victory for the gay rights movement, the Supreme Court ruled on Friday that the Constitution guarantees a nationwide right to same-sex marriage.

Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court’s four more liberal justices.

The decision, the culmination of decades of litigation and activism, came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of same-sex marriage.

Justice Kennedy said gay and lesbian couples have a fundamental right to marry.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote. “In forming a marital union, two people become something greater than once they were.”

And SCOTUS Blog commentary:

June 26, 2015 in LGBT | Permalink | Comments (0)

Wednesday, June 24, 2015

India Law School Issues Gender-Neutral Degree

The story: 

In a first, the NALSAR Law University in Hyderabad has issued a gender-neutral graduation certificate to a student who did not wish to be identified with honorific Mr or Ms but with "Mx".

Anindita Mukherjee, who graduated this year from the Law school, had requested the authorities to address her as "Mx" in her certificates and the university, which has probably become the first Indian educational institution to do so, accepted the "fact".

Mukherjee also prefers to be addressed as "they" rather than "he" or "she".

Note the "Mx." designation: 

June 24, 2015 in Education, LGBT | Permalink | Comments (0)

"2015 Will Be the Year of the Gender-Neutral Baby Name"

From Time: noticed thisemerging trend in its midyear report. Though gendered names like Noah and Emma remain super common, gender-neutral names like Amari, Karter, Phoenix, Quinn and Reese are rising in popularity too.

“As usual, baby names are reflecting a larger cultural shift,”says BabyCenter’s Global Editor in Chief Linda Murray. “Millennials are an open-minded and accepting group, and they don’t want their children to feel pressured to conform to stereotypes that might be restrictive.”

June 24, 2015 in Family, LGBT, Masculinities | Permalink | Comments (0)