Gender and the Law Prof Blog

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

Thursday, July 2, 2020

Anti-LGBT Free Speech and Group Subordination

Luke A. Boso, Anti-LGBT Free Speech and Group Subordination

In 2020, the Supreme Court in Bostock v. Clayton County, Georgia held that Title VII, a federal workplace antidiscrimination law, prohibits discrimination against gay and transgender employees. The majority concluded by citing potential concerns from religious and conservative dissenters, and it suggested that Constitutional and statutory principles of religious freedom and free speech might override LGBT-inclusive antidiscrimination commands in appropriate cases.

This Article is about the tension between liberty and equality. It examines this tension in the context of disputes over Free Speech and LGBT rights. Today, dominant conceptions of both Equal Protection and Free Speech are informed by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A pluralistic and progressive society must more adequately balance libertarian interests in the exercise of individual rights — like Free Speech — with the need for government action to promote equitable outcomes. This Article joins voices prominent in the field of Critical Race Theory who argue for an antisubordinating approach to both equality and liberty. Simply put, if the triumph of a Free Speech claim would enforce a status hierarchy that positions historically oppressed groups as inferior, that Free Speech claim should fail.

The moment is ripe to reconceptualize liberty and equality. In response to a shifting social and legal climate that is increasingly less tolerant of bullying, embraces liberal sexual and gender norms, and seeks to institute formal equality for formerly disfavored groups, many in the conservative movement have turned to the First Amendment to protect the status quo. A libertarian view of the Constitution ensures that meaningful liberty and equality exist only for some. The LGBT community and the backlash to its increasingly protected legal status sit at the epicenter of current court battles over the contours of equality and the breadth of the First Amendment, but equity for all marginalized groups is at stake.

July 2, 2020 in Constitutional, LGBT, Theory | Permalink | Comments (0)

Wednesday, May 20, 2020

The Causation Problem of "Because of Sex" in the Trio of Supreme Court Cases on Title VII, Gender Identity and Sexual Orientation, and a Proposed Solution

Shirley Lin, Aimee Stephens and Preserving Our Broader Understandings of Sex, JURIST

Just last week, we were saddened by the loss of Aimee Stephens at age 59. Ms. Stephens was a Detroit funeral director who, in 2013, announced a gender transition that exposed her employer’s deep intolerance toward transgender people. For seven years, she challenged the harsh dismissal and loss of livelihood that followed the announcement. Although she will not hear the Supreme Court’s decision in her case, Ms. Stephens’ unwavering commitment to workplace dignity made history in 2018 in her landmark victory before the Sixth Circuit Court of Appeals, in one of the most nuanced examinations of sex discrimination ever issued.

 

The decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. is best understood as a doctrinal correction to the current ideological drift in causation theory in discrimination law. Since 1989, a segment of the Court has pursued approaches that needlessly narrow the effectiveness of Title VII through causation analysis and anti-classification.

 

The law’s plain language prohibits discrimination against any individual “because of such individual’s…sex.” An employer generally cannot use an employee’s protected trait — here, her sex — to harm or otherwise disadvantage her. Under a different provision, the causation element of proving discrimination against an employee is a factual question due to other reasons employers may point to as the genuine, non-discriminatory reason for its action against the employee. In other words, it is a separate element from the trait element. Thus, “because of…sex” has been interpreted to encompass not only claims regarding women being passed over for men because they are women, but also contextual subordination that relies upon our sex trait, including gender stereotyping, sexual assault, quid pro quo sexual harassment, and hostile work environment. No less than race or religion, sex is a protected trait from which we infer meaning, and experience harm, based upon variable circumstances of time and place.

 

Thus, the Sixth Circuit unanimously held that “it is analytically impossible to fire an employee based upon that employee’s status” as a transgender person or lesbian employee “without being motivated, at least in part, by the employee’s sex.” But the panel took the farther step of affirming the non-binary sex spectrum. ***

 

However, buried in the Second Circuit’s en banc opinion in Zarda v. Altitude Express (also pending within the Title VII trio of cases the Court heard with Ms. Stephens’s case) was an outlier within the groundswell of courts seeking to course-correct causation analysis. There, a plurality ventured that a gay man’s status was the “but-for cause” of his dismissal, because if he had been a heterosexual woman married to a man, rather than a gay man, his status was determinative of the outcome. This theory, raised on appeal among other theories, conflates the social trait and causation elements of disparate treatment claims and thus competes with the approach of examining the social context of the sex trait. If misapplied to future sex and other trait discrimination cases, but-for causation could flatten existing sex discrimination analysis at a time when society has made significant strides toward recognizing intersexnon-binary, and gender-fluid people.

Shirley Lin, Dehumanization "Because of Sex": The Multiaxial Approach to the Title VII of Sexual Minorities, Lewis & Clark L. Rev. (forthcoming)

Although Title VII prohibits discrimination against any individual “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, however, many courts have read “sex” in Title VII as a socially defined trait and evaluate social construction of a protected trait before identifying causation when a court detects subordination. This Article builds on this judicial consensus by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination gives fuller effect to Title VII’s provisions and purposes as compared to sex stereotyping theory or the “but-for causation” method recently raised with the Supreme Court in the Title VII suits brought by gay and transgender plaintiffs. Uncoupling causation from the sex trait analysis will realize the statute’s civil rights protections as localities increasingly recognize the scope of sex beyond a fixed binary.

May 20, 2020 in Equal Employment, Gender, LGBT, SCOTUS | Permalink | Comments (0)

Tuesday, April 7, 2020

What Taylor Swift and Beyonce Teach Us About But-For Causation in Sex Discrimination Cases

Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman, What Taylor Swift and Beyoncé Teach Us About Sex and Causes, U. Penn. L. Rev. (forthcoming)

In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated. 

April 7, 2020 in Equal Employment, Gender, LGBT, SCOTUS | Permalink | Comments (0)

Friday, April 3, 2020

Misunderstanding Transgenderism as a Question of Gender Rather than Sex

Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minnesota L. Rev. (forthcoming)  

A central tenet of sex discrimination law is the protection of gender nonconformity: unless a feature of biological sex requires it, regulated entities may not expect that individuals will conform their gender performance to the stereotypes of their sex. This doctrine is critical to promoting the antistereotyping aims of sex discrimination law by allowing gender nonconformers from aggressive women to caregiving fathers to challenge expectations that would limit them to the gender performance that accords with their sex. More recently, courts have extended gender nonconformity protection to transgender persons in cases where discrimination is due to the transgender person’s gender performance. The Supreme Court will consider this new law of gender nonconformity this term in EEOC v. R.G. & G.R. Harris Funeral Homes, which asks whether sex discrimination law of the workplace covers transgender discrimination.

Notwithstanding its partial success, the gender nonconformity doctrine is the wrong path for pursuing transgender rights. The doctrine has led to losses when transgender persons are discriminated against not for their gender performance, but for seeking recognition as their identified sex rather than the sex they were assigned at birth. Transgender plaintiffs are likely to continue to lose under the doctrine when seeking such recognition in the long list of contexts—like bathrooms, dress codes, sports, schools, and beyond—that are still lawfully sex segregated. Even transgender plaintiffs’ successes under the doctrine are Pyrrhic victories. Under the gender nonconformity doctrine, a plaintiff who was designated male at birth but who identifies as female is an effeminate man rather than a woman. The doctrine thus reinforces the notion that transgender persons are their birth-designated sex, contrary to substantial medical and legal authority, and to the claims of transgender persons seeking recognition as their identified sex. And treating transgender plaintiffs as gender nonconformers risks harm not only to transgender rights, but to protection for gender nonconformity, by raising the bar to prove such claims, even in paradigm cases. Regardless of the outcome in Harris, this Article has implications for transgender rights throughout sex discrimination law.

These losses and harms are not inevitable. They all stem from one error—misunderstanding transgenderism as a matter of gender rather than sex—that can be corrected. As a few courts have suggested, discrimination on the basis of seeking recognition for one’s identified sex is discrimination on the basis of sex. Contrary to the concerns of some courts and scholars, extending protection to transgender discrimination would advance rather than undermine the antistereotyping aims of sex discrimination law. Doing so under the right theory can protect transgender persons while promoting sex discrimination law’s historic role in fighting sex stereotypes.

April 3, 2020 in Gender, LGBT, Theory | Permalink | Comments (0)

Monday, September 30, 2019

SCOTUS to Consider Question of whether Sexual Orientation and Gender Identity are Protected by Title VII

Lots of writing and thinking about the upcoming Supreme Court cases to be heard on Oct. 8 on whether Title VII's "because of sex" extends to sexual orientation and/or gender identity.  The consolidated cases are, from SCOTUSblog:

Bostock v. Clayton County, GeorgiaNo. 17-1618 [Arg: 10.8.2019]
Issue(s): Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity CommissionNo. 18-107 [Arg: 10.8.2019]
Issue(s): Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

Altitude Express Inc. v. ZardaNo. 17-1623 [Arg: 10.8.2019]
Issue(s): Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.


Some of the analysis includes: 

Andrew Koppelman, LGBT Discrimination and the Subtractive Moves

The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The lower courts are split on whether such protection is granted by the plain language of the statute. The judges who reject the discrimination claim argue that the statute does not prohibit activity that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. Their subtractive strategy, an innovation in statutory interpretation, comprises a number of different argumentative moves, with a common aim: to draw upon the cultural context at the time of enactment to avoid an unwelcome implication of a statute’s plain language. This strategy however maximizes judicial discretion and betrays the promise of textualism.

Marty Lederman, Thoughts on the SG’s “Lesbian Comparator” Argument in the Pending Title VII Sexual-Orientation Cases

In a pair of cases that’ll be argued on October 8th—Bostock v. Clayton County, Georgia, No. 17-1618, and Altitude Express, Inc. v. Zarda, No. 17-1623—the Supreme Court will consider whether the provision in Title VII of the Civil Rights Act of 1964 making it unlawful for a covered employer to “discriminate against” an employee “because of such individual’s . . . sex” prohibits that employer from firing an employee because he’s a gay man.

            The defendant employers and the Solicitor General recently filed their briefs arguing that there’s no Title VII liability in these cases.  Those briefs frame the issue in a particular, familiar way:  They assume that the Court’s decision depends upon whether it would violate Title VII for an employer to implement a policy that categorically excludes all persons with same-sex orientation, gay men and lesbians alike, from the workforce—as though the cases involve what a couple of court of appeals judges (Judge Lynch in the Second Circuit and Judge Sykes in the Seventh Circuit) described as employers who “insist[] that [their] employees match the dominant sexual orientation regardless of their sex” and therefore hire “only heterosexual employees.”    
 
As I’ll explain in Parts IV and V of this post, I think such a categorical “heterosexuals only need apply” policy would violate Title VII, even if it equally affected gay men and lesbians alike.  Before getting to that discussion, however, in Part III I explain why this common framing of the question—based on a hypothetical employer who believes that homosexuality as such is immoral and thus won’t employ gay men or lesbians—is not, in fact, the scenario raised by these cases or, indeed, by virtually any of the reported cases in which employees have alleged that they were fired because of their same-sex orientation.  In Bostock and Zarda, for instance, if the supervisors in question did fire the plaintiffs (at least in part) because they were gay men--something the plaintiffs will have to establish--it's not at all obvious that they would have fired similarly situated lesbians, too.  Indeed, both of the defendant employers in these cases, like almost all employers covered by Title VII, steadfastly insist that they don't have a policy or practice of hiring only heterosexuals—in part, no doubt, because such discrimination would be unlawful wholly apart from Title VII, but also because very few employers in the nation today would be willing to exclude all gay employees from their workforce:  such a policy or open and notorious practice would be foolhardy, if not economically disastrous (not to mention morally odious) for almost employers.
 
Once this crucial point is acknowledged—namely, that there’s no reason to believe these employers would have treated lesbian employees the way they (allegedly) treated the gay male plaintiffs—that ought to resolve the Title VII question, because both the Solicitor General and the defendants themselves concede that even if Congress didn’t intend to prohibit discrimination based upon sexual orientation, as such, it is a form of prohibited sex discrimination for a covered employer to treat a gay man less favorably than the employer would have treated a similarly situated lesbian (or vice versa).

 

Dress Codes Central in Supreme Court Gender identity Bias Debate

The U.S. Equal Employment Opportunity Commission sued R.G. & G.R. Harris Funeral Homes on behalf of Stephens, arguing her former employer fired her because she is transgender, violating federal civil rights laws. The funeral home and its owner Thomas Rost, however have since argued that “maintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.”

This dispute will play out before the U.S. Supreme Court on Oct. 8, where the justices will grapple with a broader question of whether gender identity should be protected under Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating against employees on the basis of sex, race, national origin, and religion. The divisive issue has been drawn into the national spotlight, and pits two federal agencies against each other.

The funeral home’s dress code argument, backed by the Justice Department, reveals a practical clash in the workplace that could be resolved when the high court issues its opinion. Whether these policies are permitted under Title VII already falls in a legal gray area, and has prompted challenges for decades and inspired some state action recently, specifically over hair or grooming policies.

September 30, 2019 in Equal Employment, LGBT, Manliness, SCOTUS | Permalink | Comments (0)

Tuesday, September 17, 2019

Projecting Concepts of Gender Onto Same-Sex Divorce

Suzanne A. Kim & Edward Stein, Gender in the Context of Same-Sex Divorce and Relationship Dissolution. 

This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender dynamics facing same-sex couples upon divorce or other relationship dissolution. When same-sex couples marry, the legal system and society at large may project conceptions of gender onto same-sex couples, often in a manner that conflicts with couples’ intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of gender on the dissolution of same-sex relationships.

September 17, 2019 in Family, Gender, LGBT | Permalink | Comments (0)

Tuesday, September 3, 2019

How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong

Jessica Clarke, How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong, Texas Law Review Online, Forthcoming

The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”

This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title

September 3, 2019 in Courts, Equal Employment, Gender, LGBT | Permalink | Comments (0)

Tuesday, July 16, 2019

Book Review Stone's Sex and the Constitution, Comparing Women's Rights & LGBT Movements

Rivka Weill, Women’s and LGBTQ Social Movements and Constitutional Change -- On Geoffrey Stone’s Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century, Jerusalem Review of Legal Studies, Forthcoming

This essay reviews Geoffrey Stone’s “Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.” Part I offers a synopsis of the treatise to make it accessible to the general public. Stone’s 600 pages book reviews the regulation of sex in the ancient cultures of the Greeks, Romans, and ancient Hebrews. It later discusses the evolution of the regulation of sex in Christianity and the English common law. Stone then focuses specifically on US regulation of obscenity, contraception, abortion, and same-sex marriage to portray a story of progress with a warning that much of this progress depends on the composition of the Supreme Court. Part II reveals the contribution of Sex and the Constitution to the literature with respect to the ways social movements may bring about constitutional change outside the formal process defined in the Constitution for amendment. Part III offers some critical reflections on the book. In particular, it argues that Stone’s book implicitly asserts great similarities between women’s and LGBTQ movements’ struggles for the recognition that their rights demand constitutional protection. Yet, Stone should have acknowledged more forcefully the major differences between the two struggles. They differ substantially in their opening positions, their agendas for social change, the length of the struggles, the pace of change, and their successes. Some possible explanations are offered for the rather meteoric success of the LGBTQ members in transforming law and society within a short period in comparison to the rather slow pace of change for women. Moreover, while women’s successes assisted the gay rights revolution, some of the advancement in gay rights came at the expense of advancement of women.

July 16, 2019 in Abortion, Books, Constitutional, Family, Legal History, LGBT | Permalink | Comments (0)

Thursday, July 11, 2019

How Marriage Continues to Be Gendered in Same-Sex Divorce

Suzanne Kim & Edward Stein, "Gender in the Context of Same-Sex Divorce and Relationship Dissolution" 

We suggest that marriage is likely to remain gendered in a variety of ways in the near term, although how it may continue to be gendered over time is not clear. We focus here on some ways in which gender may continue to play a role in the dissolution of the relationships of same-sex couples in the U.S., specifically with respect to (i) the grounds for divorce, dissolution, and annulment, (ii) the financial aspects of relationship dissolution, (iii) the custody of children, and (iv) the social experience of divorce and relationship dissolution more generally. We draw on existing social scientific and legal research, but because same-sex marriage has only been legal for just over a dozen years and in place across the country for just over two years, many of the questions about gender and
same-sex divorce cannot be answered without more research and the passage of time.

July 11, 2019 in Family, Gender, LGBT | Permalink | Comments (0)

Thursday, June 20, 2019

Framing Trans Rights

Marie-Amelie George, Framing Trans Rights, Northwestern U. L. Rev. (forthcoming)  


In the wake of marriage equality, opponents of LGBT rights refocused their attention and made transgender rights their main target. To persuade voters to maintain gender identity anti-discrimination protections, LGBT rights campaigns have presented trans identity in a specific but limited way, emphasizing gender-conforming transgender individuals and thereby implicitly reinforcing the gender binary. Although LGBT rights groups have succeeded in their efforts, their messaging may undermine the movement’s broader litigation strategy and render even more vulnerable the substantial portion the transgender community that identifies as non-binary.

The trans rights framing choices thus raise questions about how the LGBT movement’s advocacy decisions blur the lines between success and failure, advancement and retrenchment. To illustrate this tension, this Article details the history of marriage equality campaign strategies, identifying how and why LGBT rights groups applied those frames to trans rights. Using these events, this Article analyzes the factors that both motivate and circumscribe social movements’ framing decisions more generally to identify whether and how to alter trans rights advocacy.

How trans rights are framed is a significant subject that extends far beyond whether a specific city or state maintains or eliminates its gender identity protections. Although political positioning in an electoral campaign may seem far removed from the work of courts, legislatures, and administrative advocacy, this Article demonstrates how porous the boundaries are, such that the frames of the former have a substantial impact on the latter. Drawing on the scholarly literatures on acoustic separation and popular constitutionalism, this Article identifies why it is that LGBT state and local ballot measure contests cannot be separated from the movement’s broader strategies. It consequently provides suggestions for reframing transgender ballot measures.

June 20, 2019 in Gender, LGBT | Permalink | Comments (0)

Wednesday, May 22, 2019

Pregnant People?

Jessica Clarke, Pregnant People?, 119 Colum. L. Rev. Online (Forthcoming)

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do — such as purchasing a car seat, finding a pediatrician, or choosing a daycare — as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have benefits in terms of equality for expectant LGBT parents. To further this project, this Response asks what unsexing pregnancy might look like for different types of pregnant people: (1) pregnant individuals who do not identify as women, (2) expectant couples in which one partner is pregnant, (3) expectant parents engaging a surrogate or pursuing adoption, and (4) pregnant people who rely on networks of family and friends for support and caregiving. It argues that, in each of these contexts, the extension of pregnancy benefits raises a unique set of questions. But across all of these contexts, it will take more than simply making existing pregnancy rules gender neutral to achieve equality.

May 22, 2019 in LGBT, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, April 22, 2019

Supreme Court Grants Cert to Resolve Circuit Split on Whether LGBTQ Bias is "Sex" Discrimination under Title VII

The US Supreme Court granted cert today in Altitude Express v. Zarda, RG & GR Harris Funeral Homes v. EEOC, and Bostock v. Clayton County on the question of "Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989)."

Wash Post, Supreme Court to Decide if Anti-Harassment Employment Laws Protect on Basis of Sexual Orientation and Gender Identity

The Supreme Court on Monday added what could be landmark issues to its docket for the next term: whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity.

 

The court accepted three cases for the term that begins in October. They include a transgender funeral home director who won her case after being fired; a gay skydiving instructor who successfully challenged his dismissal; and a social worker who was unable to convince a court that he was unlawfully terminated because of his sexual orientation.

 

The cases shared a common theme: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.

Bloomberg, Supreme Court Can Settle Split on LGBT Bias in the Workplace

At least nine federal circuit courts ruled in decisions prior to 2007 that sexual orientation wasn’t covered by Title VII of the 1964 Civil Rights Act, which prohibits bias against workers and job applicants based on their “sex.” The tide began to shift in 2015, when the Equal Employment Opportunity Commission decided in a federal sector case that Title VII does apply to sexual orientation.

 

In a groundbreaking decision in 2017, the U.S. Court of Appeals for the Seventh Circuit became the first federal appeals court to rule that Title VII covers sexual orientation when it said a lesbian job applicant could sue an Indiana community college for discrimination. While the Eleventh Circuit decided earlier that year that the law doesn’t apply to sexual orientation, the Second Circuit deepened the split in the courts with its 2018 ruling that it does.

The Supreme Court Just Took Up a Set of Very Big Cases on LGBTQ Rights

The Court agreed to hear three cases that have to do with whether existing federal bans on sex discrimination in the workplace also prohibit discrimination based on sexual orientation or gender identity. In the consolidated Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator, respectively, said they were fired for being gay. And in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a funeral home employee said she was fired because she came out as transgender.***

 

The cases cover a big gap in LGBTQ rights in the US: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (like restaurants, hotels, and other places that serve the public).

April 22, 2019 in Equal Employment, LGBT, SCOTUS | Permalink | Comments (0)

Monday, April 15, 2019

Unsexing Pregnancy

David Fontana & Naomi Schoenbaum, Unsexing Pregnancy, 119 Columbia L. Rev. (2019)  

Because sex does not dictate the capacity to provide care in the home or work in the market, sex-equality law combats harmful sex stereotypes by eliminating statutes and regulations that assign these roles on the basis of sex. When it comes to pregnancy, though, courts and commentators alike chart a very different course. They assume that pregnancy is a biological event that is almost exclusively for women. Thus, equal protection jurisprudence accepts the legal assignment of carework during pregnancy to women, and a range of laws regulating pregnancy carework — from prenatal leave under the Family and Medical Leave Act to health benefits under the Affordable Care Act to employment protections under the Pregnancy Discrimination Act — apply only or mostly to women. Even though the sexed law of pregnancy stands in stark contrast to the unsexed law of parenting, the sexed pregnancy has avoided challenge and largely escaped notice.

This Article makes visible the law of the sexed pregnancy, identifies and evaluates the core tension it generates in the law of sex equality, and considers how to unravel this tension. Of course, typically only women can physically carry a child, and therefore some pregnancy regulations are appropriately sex specific. But the nine months of pregnancy encompass a range of carework, much of which has little or nothing to do with the physical fact of pregnancy. Expectant fathers can, for example, buy a carseat, quit smoking, take a childcare class, and choose a pediatrician or daycare center for the child. Given the ability to disaggregate sex from much of the carework of pregnancy, the law’s failure to do so marks women for caregiving and men for breadwinning in the same problematic way that sex-equality law has tried to combat after a child is born. And while pregnancy implicates real concerns about a woman’s constitutional right to bodily autonomy, this concern alone cannot justify the failure to scrutinize all sex-based pregnancy regulations, because much prebirth carework does not involve the woman’s body at all. After surfacing the law’s anomalous sexed treatment of pregnancy, this Article considers how to harmonize the law of sex equality. This effort can advance not only the goal of equality between the sexes, but also equality for lesbian, gay, and transgender parents, while at the same time enhancing women’s autonomy.

April 15, 2019 in Family, LGBT, Pregnancy | Permalink | Comments (0)

Wednesday, April 10, 2019

Fitting LGBTQ Discrimination into the Larger Framework of Sexism

Anthony Michael Kreis, Policing the Painted and Powdered, 41 Cardozo L. Rev. (forthcoming)  

Is homophobia also sexism?

This question was the focus of pioneering scholarship nearly three decades ago and has been the subject of reignited controversy because of litigation over marriage rights, employment discrimination, educational opportunities, fair housing, religious exemptions, and military service. Even though some courts, federal agencies, and state employment commissions have recognized that sexual orientation and gender identity discrimination are subsets of sex discrimination, including the landmark Title VII decisions Hively v. Ivy Tech and Zarda v. Altitude Express, academics, judges, and public administrators have been unable to articulate a plain theory of sexual orientation discrimination as sexism. Without a straightforward theory to operationalize into law, some judges are unpersuaded that sexism and homophobia are linked. Appellate judges have struggled to find consensus even when they agree that sexual orientation discrimination is sex discrimination.

This Article’s objective is to reconsider the relationship between sexism and homophobia, by reexamining prior scholarship with new historical evidence and an exploration of recent LGBTQ rights jurisprudence to provide a more complete, easily digestible analytical framework that explains how homophobia fits in in the larger puzzle of American sexism. The Article argues that American law’s historical and more contemporary maltreatment of sexual minorities is a product of a particular brand of sexism — ambivalent sexism — which utilizes a carrot and stick approach to subjugate both women and sexual minorities simultaneously. Ambivalent sexism punitively targets visible gender non-conformity while patronizingly rewarding individuals compliant with traditional gender expectations at the expense of women.

The Article contends that the path-dependent consequences of actions taken by Progressive Era lawmakers and the early administrative state in response to the LGBTQ community’s amplified visibility in the nineteenth-century and the reappropriation of paternalistic legal theories initially used to restrict women’s rights, constitute the crux of homophobia in the law. The Article proffers how ambivalent sexism animates the homophobic state and urges courts and administrative actors to recognize that homophobia is a type of sexism.

April 10, 2019 in Gender, LGBT, Theory | Permalink | Comments (0)

Monday, April 1, 2019

Private Actor Regulation of Sexual Norms

Melissa Murray, Consequential Sex: #MeToo, Masterpiece Cakeshop, and Private Sexual Regulation, 113 Northwestern L. Rev. 825 (2019)

The last sixty years have ushered in a tectonic shift in American sexual culture, from the sexual revolution—with its liberal attitudes toward sex and sexuality—to a growing recognition of rape culture and sexual harassment. The responses to these changes in sexual culture have varied. Conservatives, for their part, bemoan the liberalization of sexual mores and the rise of a culture where “anything goes.” And while progressives may cheer the liberalization of attitudes toward sex and sexuality and the growing recognition of sexual harassment and sexual assault, they lament the inadequacy of state efforts to combat sexual violence. Although these responses are substantively different, both evince a sense of the state’s failure. For conservatives, the changes wrought by the decriminalization of “deviant” sexual behavior, the shift to no-fault divorce regimes, and the recognition of constitutional protections for sex and sexuality suggest that the state has abdicated its historic role in imposing consequences on those who do not comply with traditional sexual mores. For progressives (and especially feminists), state efforts to properly regulate rape, sexual assault, and sexual harassment are, at best, anemic and, at worst, utterly ineffectual. As they see it, the state has failed to impose consequences for harassment, assault, and other offensive sexual conduct.

But it is not just that these two constituencies believe that the state has failed to properly regulate sex and sexuality; they have also responded in uncannily similar ways to these lapses. Specifically, in response to the state’s failure to regulate, private actors on both sides of the ideological spectrum have stepped into the regulatory void, challenging extant sexual norms and articulating new visions of appropriate sex and sexuality. These private regulatory efforts are evident in the rise and proliferation of conscience objections or exemptions, as exemplified in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as well as in the emergence of the #MeToo movement. As this Article maintains, conscience objections allow private actors to reject the extant normative regime and instead articulate and enforce their own views of appropriate sex and sexuality through the denial of goods and services. The #MeToo movement has similarly sought to advance an alternative vision of appropriate sex and sexuality through private action. Using social media and the press, the #MeToo movement has identified recidivist harassers and workplaces where sexual harassment and sexual assault are rife, advocated for increased workplace harassment training, and, ultimately, called for the expulsion from the workplace of many high-profile men who, for years, engaged in objectionable conduct.

As this Article explains, the fact that private actors are stepping in to regulate in the state’s stead is not necessarily novel. Private actors have often played a regulatory role—particularly in contexts where norms are in flux or contested. Nevertheless, the private regulation seen in Masterpiece Cakeshop and #MeToo evinces a new turn in the regulation of sex and sexuality. In the absence of appropriate state regulation of sex and sexuality, private actors are coming to the fore to take on a more visible role in regulating sex and sexuality, and in doing so, have claimed and recast parts of the public sphere as private space suitable for the imposition of their own norms and values.

April 1, 2019 in Gender, LGBT, Theory, Workplace | Permalink | Comments (0)

Tuesday, January 29, 2019

19th Women and Law Conference: The Way Forward-Gender, LGBTQIA Rights, and Religious Liberties

Thomas Jefferson School of Law, 19th Women and the Law Conference: The Way Forward: Gender, LGBTQIA Rights, and Religious Liberties, Feb. 1, 2019

Thomas Jefferson School of Law’s 19 th  Annual Women and the Law Conference, The Way Forward: Gender, LGBTQIA Rights, and Religious Liberties, will be held on Friday, February 1, 2019 at Thomas Jefferson School of Law. This conference brings together leading experts and practitioners to discuss critical federal and state legislative, executive, and judicial developments affecting women, the LGBTQIA community, and people concerned about religious liberties.  At a time when public discourse about these issues seems irreconcilably polarized, this event will focus on means to resolve these opposing views.

 

Former EEOC Commissioner Chai Feldblum will deliver the Ruth Bader Ginsburg Lecture. Before her appointment, Commissioner Feldblum was a law professor at Georgetown University Law Center.  Feldblum continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson School of Law in 2003.

 

Other speakers include:  Alan Brownstein, Emeritus Professor of Law at UC Davis School of Law; Julie Greenberg, Emeritus Professor of Law at Thomas Jefferson School of Law; Pamuela Halliwell, therapist at the San Diego LGBT Community Center; Shannon Minter, Legal Director at the National Center for Lesbian Rights; Jocelyn Samuels, Executive Director at the Williams Center UCLA School of Law; Maimon Schwarzchild, Law Professor at the University of San Diego School of Law; and Mattheus Stephens, Founding Partner of the Progressive Law Group.

January 29, 2019 in Conferences, Gender, LGBT | Permalink | Comments (0)

Tuesday, January 22, 2019

Supreme Court Stays Injunctions, Allowing Transgender Military Ban to Go into Effect Temporarily while Lawsuit Continues

Supreme Court Allows Trump Restrictions on Transgender Troops in Military to go Into Effect as Legal into Effect a Legal Battle Continues

The Supreme Court on Tuesday allowed President Trump’s broad restrictions on transgender people serving in the military to go into effect while the legal battle continues in lower courts.

 

The justices lifted nationwide injunctions that had kept the administration’s policy from being implemented.

 

It reversed an Obama-administration rule that would have opened the military to transgender men and women, and instead barred those who identify with a gender different from the one assigned at birth and who are seeking to transition.

See also Supreme Court Allows Transgender Military Ban to be Enforced

 

The court’s five conservatives--Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh--allowed the restrictions to go into effect while the court decides to whether to consider the merits of the case.

 

The liberal justices--Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan--would have kept the injunctions in place.

 

Trump surprised even his own military advisers in July 2017 when he announced a sweeping ban on transgender people’s military service via Twitter. He cited what he viewed as the “tremendous medical costs and disruption.” The administration’s order reversed President Barack Obama’s policy of allowing transgender men and women to serve openly and receive funding for sex-reassignment surgery.

 

Attorneys for active-duty service members went to court to block the policy shift, which could subject current transgender service members to discharge and deny them certain medical care.

January 22, 2019 in Gender, LGBT, SCOTUS | Permalink | Comments (0)

Monday, January 14, 2019

Harvard Study Shows Bias Drops Dramatically for Sexual Orientation and Race Since 2007

Study: Bias Drops Dramatically for Sexual Orientation and Race since 2007

New research from Harvard University finds that Americans' unconscious bias on the basis of sexual orientation and race dropped dramatically over a decade.

 

The study in the journal Psychological Science looks at more than 4 million online tests for implicit bias — bias people aren't aware of — taken from 2007 to the end of 2016.

 
It finds that attitudes about sexual orientation changed the fastest, says lead author Tessa Charlesworth: "The most striking finding is that sexuality attitudes have changed toward neutrality, toward less bias, by as much as 33 percent on implicit measures," and by 49 percent on explicit measures — people's reports about their own attitudes.

The study also found a big drop in racial bias — but a rise in bias against people based on body weight.

And it showed that implicit biases, initially thought to be so deep-seated that they were immutable, can change over time, and toward multiple groups of people.

 

January 14, 2019 in Gender, LGBT, Pop Culture, Race | Permalink | Comments (0)

Tuesday, December 4, 2018

Extending Voluntary Acknowledgements of Parentage to Female Same-Sex Partners

Jessica Feinberg, A Logical Step Forward: Extending Voluntary Acknowledgments of Parentage to Female Same-Sex Couples, 30 Yale J. Law & Feminism 97 (2018)  

Under current law, stark differences exist between different- and same-sex couples who welcome children into the world with regard to the ease through which the member of the couple who did not give birth to the child is able to obtain legal parent status. While a number of simple, efficient procedures exist for establishing legal parentage for different-sex partners of women who give birth, same-sex partners of women who give birth often have to go through significantly more complex, time-consuming, and expensive procedures in order to establish legal parentage. The inequitable treatment of same-sex couples in establishing legal parentage has extremely harmful consequences for these couples and their children, and legal reform to address the unfair treatment of same-sex parents is long overdue. The hesitation to extend to same-sex couples the simple, efficient methods of establishing legal parent status available to different-sex couples likely stems from the longstanding tie between genetic connections and the establishment of legal parentage. While the law’s historical privileging of genetic connections in parentage determinations poses some challenges for same-sex couples in obtaining access to the simple, efficient methods of establishing legal parentage in existence today, these challenges are far from insurmountable. This Article sets forth a comprehensive proposal for the federal government to require states to extend voluntary acknowledgments of parentage, which currently allow a birth mother’s different-sex partner to establish paternity through the execution of a document at the time of the child’s birth, to female same-sex couples who conceive children using sperm provided in compliance with state donor non-paternity laws. The proposal represents a logical, modest step in the right direction for ameliorating the difficulties faced by same-sex parents in obtaining legal parentage without requiring significant upheaval to state laws governing the rights of genetic parents or federal laws governing voluntary acknowledgments of parentage.

December 4, 2018 in Family, LGBT | Permalink | Comments (0)

Wednesday, November 7, 2018

"They, Them and Theirs": Taking Nonbinary Gender Seriously

Jessica Clarke, They, Them, and Theirs, 132 Harvard Law Rev. (2019)  

Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But the idea of nonbinary gender as an identity itself only appears at the margins of U.S. legal scholarship. Many of the cases recognizing transgender rights involve plaintiffs who identify as men or women, rather than plaintiffs who seek to reject, permute, or transcend those categories. The increased visibility of a nonbinary minority creates challenges for other rights movements, while also opening new avenues for feminist and LGBT advocacy. This Article asks what the law would look like if it took nonbinary gender seriously. It assesses the legal interests in binary gender regulation in areas including law enforcement, employment, education, housing, and health care, and concludes these interests are not reasons to reject nonbinary gender rights. It argues that the law can recognize nonbinary gender identities, or eliminate unnecessary legal sex classifications, using familiar civil rights concepts.

November 7, 2018 in Gender, LGBT, Theory | Permalink | Comments (0)