Human Rights at Home Blog

UN Human Rights Committee Grills U.S. on Abortion, Maternal Mortality, and Separation of Families

This blog post is crossposted with permission from the Reproductive Rights Law Profs Blog.

By Hannah Filippino and Benita von Lilienfeld-Berry, Law Students in CUNY Law School's Human Rights & Gender Justice Clinic

Earlier this month, the United Nations Human Rights Committee (“HRC”) reviewed the U.S.’ performance under one of the only three international human rights treaties that the U.S. has ratified: the International Covenant on Civil & Political Rights (“ICCPR”). As expected during the two-day review, the HRC members grilled the U.S. on the impact that the Supreme Court case Dobbs v. Jackson has had on access to abortion, but they also asked tough questions about other reproductive justice issues, including the U.S.’s failure to address maternal mortality and the improper separation of families by Child Protective Services.

To ensure that HRC members were fully informed of ICCPR violations in the U.S., civil society members submitted over 70 reports and sent 150 human rights lawyers and activists to attend the review. Through CUNY Law School’s Human Rights & Gender Justice Clinic, we attended the review as part of civil society and submitted a shadow report with If/When/How, Pregnancy Justice, the Center for Reproductive Rights, Birthmark Doula Collective, Changing Woman Initiative, and We Testify. The report highlights the ways in which abortion, miscarriage, and pregnancy outcomes are criminalized in the U.S. in violation of multiple rights protected under the ICCPR, including the rights to life, non-discrimination, equal protection before the law, freedom from cruel, inhuman, and degrading treatment or torture, as well as health care privacy (Art. 6, 7, 17, 2, 3, 26). Several other organizations also submitted separate reports focusing on abortion access and maternal mortality.

During the review, Serbian Committee Member (“CM”) Tijana Šurlan made maternal mortality and reproductive rights one of her primary concerns. She emphasized that the U.S. must adopt positive measures to both reduce maternal mortality and ensure abortion access to protect pregnant people’s rights to health and life. Noting the disproportionately high rates of maternal mortality in Black, Indigenous, and Native Hawaiians and other Pacific Islander communities, she asked what measures the U.S. is undertaking to improve health care for these vulnerable groups. She also framed decriminalizing religious and cultural midwifery as a pivotal piece of reducing the U.S.’ maternal mortality rate, which is the highest among wealthy countries.

CM Šurlan described the Dobbs cases as a serious retrogression after five decades of protection for sexual and reproductive health rights established since Roe v. Wade. French CM Hélène Tigroudja also focused on the criminalization of abortion and asked President Biden’s delegation to describe tangible, precise measures that the U.S. has taken to reduce the criminalization of abortion providers, seekers, and their helpers in light of the World Health Organization’s (“WHO”) 2022 Abortion Care Guidelines. In doing so, she emphasized that the right to choose pregnancy requires safe and legal abortions under the ICCPR rights to life, non-discrimination, and freedom from cruel, inhuman, and degrading treatment or torture. CM Tigroudja also expressed concern about State data surveillance being weaponized to criminalize abortion. She further highlighted that since Dobbs, pregnant people that either receive abortive care or are forced to carry their pregnancies to term have been discriminated against and are suffering physically and psychologically as a result.

CM Šurlan asked the U.S. to clarify what remedies are in place for people who are forced to carry their pregnancies to term, as well as for those who suffer from severe health problems from unsafe abortions. She also asked about the possible creation of a federal statutory right to abortion through legislation like the Women’s Health Protection Act. Chilean CM Hernán Quezada Cabrera expressed concern about how Child Protective Services uses behavior during pregnancy as a basis to separate families and even arrest parents instead of undertaking measures to help families and alleviate poverty. He alluded to the ways that this criminalization of pregnancy relates to racist family separations by Child Protective Services, which were also criticized when the U.S. was reviewed for its compliance with the Convention on the Elimination of All Forms of Racial Discrimination in 2022.

While the government delegates agreed that the Dobbs decision has caused serious human rights violations, they failed to directly address state laws banning or severely restricting abortion access in response to the HRC’s questions. Instead, the government representatives discussed enforcing federal laws that safeguard private health care information, require health care treatment in emergencies, and prohibit threats and violence at clinics. The Special Assistant to the President for Democracy and Civic Participation at the White House, Justin Vail, emphasized that the right to choose is fundamental, but, other than noting the executive orders enforcing federal laws, he only stated that the federal government is trying to pass laws to restore Roe protections.

The sole state-level delegation member, Attorney General Aaron Ford of Nevada, described efforts to protect abortion rights in his state. However, Nevada is only one of fifty states, and it is also the only state that explicitly criminalizes self-managed abortion.

Ultimately, the Biden delegation relied on federalism to avoid accountability for our nation’s violations of the ICCPR. In doing so, the Biden delegation continued the U.S.’ longstanding history of ignoring its obligations to adhere to international treaties like the ICCPR as “The Supreme Law of the Land” under the Constitution.

The HRC is expected to release its formal concluding observations on November 3.

New Article: Colonizing Queerness

Jeremiah Ho, Colonizing Queerness, University of Colorado Law Review (forthcoming 2023). Abstract below.

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives continually privilege white heteropatriarchal structures that dominate over non-normative sexualities.

Through covert demands upon queer identities to assimilate with the status quo, such settler colonialist motivations are visible in the way Supreme Court gay rights advancements have facilitated a conditional but normative path to mainstream citizenship for queer identities. By employing concepts from critical race theory, queer studies, and settler colonial theory, this Article illuminates on how the Court’s cases are indeed part of American settler colonialism’s sexuality project and answers why such legal advancements always appear monumental, but ultimately remain in the control of a discriminatory status quo. Only if queer legal advancements are accompanied by essential shifts from the normative structures of white settler heteropatriarchy will such victories live up to their liberatory claims. Otherwise, such apparent progress will continually attempt to marginalize—indeed, colonize—queerness.

New Article: Foreword: Centering Intersectionality in Human Rights Discourse

Johanna Bond, Foreword: Centering Intersectionality in Human Rights Discourse, 79 Wash. & Lee L. Rev. 953 (2022). Abstract below.

In the last decade, intersectionality theory has gained traction as a lens through which to analyze international human rights issues. Intersectionality theory is the notion that multiple systems of oppression intersect in peoples’ lives and are mutually constitutive, meaning that when, for example, race and gender intersect, the experience of discrimination goes beyond the formulaic addition of race discrimination and gender discrimination to produce a unique, intersectional experience of discrimination. The understanding that intersecting systems of oppression affect different groups differently is central to intersectionality theory. As such, the theory invites us to think about inter-group differences (i.e., differences between women and men) and intra-group differences (i.e., differences in the experiences of discrimination and rights violations between white women and women of color).

Event 10/14: Harvard Law Webinar on the UN General Assembly Report on Peace, Security, Sexual Orientation and Gender Identity

On October 14, 2022 at 12:40pm EST, Victor Madrigal-Borloz, Senior Visiting Researcher at Harvard Law School’s Human Rights Program and United Nations Independent Expert on Sexual Orientation and Gender Identity, will speak at Harvard Law School previewing his report on peace, security, sexual orientation and gender identity to the 77th General Assembly of the United Nations.

In his report, Victor Madrigal-Borloz calls for greater awareness of how gender and sexual orientation and gender identity dynamics operate in the context of armed conflict, and within peacebuilding and peacekeeping. He aims to provide insight on the application of a comprehensive set of legal resources to foster prevention, participation, protection, relief and sustainable peace for persons, communities and peoples suffering from violence and discrimination in war-torn contexts. The report seeks to establish a basis for expanding existing policies within the United Nations system.

Register for this webinar here.

Event: 6/16 ABA Webinar on Feminist Perspectives on the US Response to the Crisis at the Southern Border

Tomorrow, June 16, 2021, from 12:00 – 1:30pm ET, join the American Bar Association Group on International Law for a webinar on the intersection of immigration, human rights, and inequality. The distinguished webinar panelists are: Deborah Anker, Blaine Bookey, Devon Cone, and Bardis Vakili. More information on tomorrow’s presentation is available here.

As part of the ABA’s three-session Global Women Series taking place this week, tomorrow's panelists will discuss the humanitarian crisis at the southern border of the United States, the disproportionate impact on women and children seeking refuge in the US, and ways that a feminist policy agenda can support the Biden-Harris administration’s response.

To register for this free event, click here.

Queering Justice Gorsuch’s Textualism in Bostock

By Co-Editor Prof. Jeremiah Ho

It’s amusing to note that the recent collection of major Supreme Court decisions regarding the rights of LGBTQ people has often dropped upon us during Pride Month.  Whether or not it’s a positive decision in the Lawrence, Windsor, or Obergefell camps, or a negative one, such as Masterpiece Cakeshop, the month of June always feels especially weighted in a year when a LGBTQ case is up for resolution at the Court.  With Bostock this June, it was good to see the Court handing down a decision to protect LGBTQ employees under Title VII, shoring up once and for all the debate whether “because of . . . sex” affords sexual orientation and gender identity protections in the employment context.       

Being a fairly optimistic person (though tested recently in these COVID-19 times), I don’t question the potential of Bostock v. Clayton County, and its far-reaching protections for LGBTQ employees under Title VII.  Writing for the majority, Justice Gorsuch seems to have given us a textualist interpretation of “because of sex” that is definite and broad in determining the scope of SOGI protections under Title VII.  My colleagues John Rice and Shirley Lin have written terrific posts analyzing the implications of Bostock, especially for the previously unsettled case law surrounding LGBTQ litigants in the federal circuits.  However, after dwelling on Bostock for a few weeks now, there are implications from the decision that appear less hopeful in my mind.

Although the textualist interpretation is likely one of the most direct approaches toward including sexual orientation and gender identity as categories protected by “sex” in Title VII, and has been one that lower courts have used, this approach had to contend with the assumption that “sex” is a stable concept.  As Justice Gorsuch writes on p. 5 of the slip-op, “we proceed on the assumption that ‘sex’ signified what the employers suggest, referring only to the biological distinctions between male and female.”  This statement is the first and foremost observation I have about Bostock that gives me pause because this view of “sex” might continue to perpetuate rigid binaries, cis-genderism, and anti-classificationist perspectives on equality.  If one were to approach Bostock with a queering analysis or from a queer theory angle, Justice Gorsuch’s denotation of “sex” might not be the best reflection of a modern reality, where the concept of “sex” can bear more instability than the narrow dictionary meanings that he used.        

Rather, the more empowering and animating term that Gorsuch’s textualist approach examines in Bostock is the phrase “because of.”  Through Gorsuch’s interpretation, “because of” conjures the “but-for” causation test that allows for the comparator approach to showing how the firing of Gerald Bostock, Don Zarda, and Aimee Stephens all encompassed “because of sex” discrimination under Title VII.  Under textualism, the broad reaches of “because of” permits the connection between the sexual orientation and/or gender identities of a person to be linked to the biological male-female binary for the purposes of finding a Title VII violation here. 

In its functionalist way, Justice Gorsuch’s approach gets us to the desired result of protecting LGBTQ individuals from workplace discrimination.  However, pragmatism here also decreased the ability in Bostock to explicitly reinforce the counter- or anti-stereotyping policies of Title VII that could have applied to restricting homophobia and transphobia, and bolstered the positive recognition of LGBTQ people even more.  The actual legislative history behind including “sex” in Title VII is sparse (and often anecdotal) and lacking any indication to protect LGBTQ individuals in 1964.  However, as William Eskridge, Cary Franklin, and others have expressed in writing about Title VII, since the 1960s, the developed interpretation and importance of Title VII protections reflect anti-stereotyping principles and policies against workplace discrimination based on biases toward one’s sex.  Bostock’s interpretation of “sex” as a stable concept renders mixed results.  First, to presume and declare that “sex” is a stable concept rather than one that is fluid or ambiguous was indeed an important judicial interpretative gesture for Justice Gorsuch because.  This declaration foreclosed any real need for him to look at legislative history or intent behind Title VII—and in fact, it allowed him to avoid even raising the kind of exegetical discussions regarding legislative intent that Justices Alito and Kavanaugh used to support their dissenting opinions.  That got us to a good doctrinal result for Title VII SOGI protections in Bostock.  It even allowed Justice Gorsuch to call out the employers’ justifications for the discriminatory firings of Bostock, Zarda, and Stephens based on adherence to legislative intent as “naked policy appeals.”  But the ability to not have to examine one side’s legislative history or intent arguments also allowed him to gloss over mentioning the anti-stereotyping disposition that prior Title VII cases have carved out for “because of sex” discrimination over the years—an anti-stereotyping disposition that could have bode well for the image of LGBTQ people in the workplace and beyond.  Here, Justice Gorsuch was able to resist the opportunities to discuss why sexual orientation and gender identity are categories that need to be protected from discrimination in general; instead, such protections are merely a consequence in the textualist link to the category of “sex” in Title VII.  That’s a squandered opportunity for publicly elevating LGBTQ individuals.                    

            Additionally, Gorsuch’s sole textualist focus in Bostock to reach favorable results for LGBTQ workers, but overlooked any attempt for discussing the dignitary harms that the litigants in the consolidated cases suffered for being fired­ because of how aspects of their identities were perceived with animus by their former employers and not because of any on-the-job incompetence.  We didn’t get to read about the various ways in which Bostock, Zarda, and Stephens were mistreated by their former employers, what kind of hateful ways in which their employment were terminated, and what harms they suffered as a result of losing their livelihoods all on account of targeted aspects of their identities that had nothing to do with their job competence but much to do with their personal dignity.  Queering the textuality of Justice Gorsuch’s written opinion in this way, we note that much of those facts remained closeted.  This missed opportunity shortens the decision’s potential to raise the significance of Title VII’s anti-stereotyping disposition for showing exactly why discriminating against one’s sexual orientation or gender identity in the workplace is nothing but an act of homophobia or transphobia—an animus that has no rational status in society.  Comparing Bostock to Justice Kennedy’s pro-LGBTQ decisions, which did assert litigant facts in ways that helped the mainstream see LGBTQ individuals in a more humanized light (albeit in problematic ways sometime), we might see that again Justice Gorsuch’s opinion missed the opportunity for recognizing LGBTQ individuals similarly—for actually addressing the weight of discrimination that Justice Kennedy’s LGBTQ rights opinions often dwelled upon.  Unlike Obergefell, the individual facts about each litigant, Bostock, Zarda, and Stephens, were sparse compared to Justice Kennedy’s notable renditions of representative litigant facts in the marriage equality decision.  Bostock was going to accomplish LGBTQ protections by textualism and textualism alone.   

            Lastly, Justice Gorsuch’s reliance on textualism in Bostock also helps him evade discussing another anti-stereotyping potential as the decision drops any intertextual play with the prior pro-LGBTQ decisions.  Given that these cases in Bostock were Title VII employment cases and not marriage or privacy cases, the boundaries were necessarily drawn by context.  However, this decision could have celebrated more of the humanity of LGBTQ employees, and thus grasped onto the anti-stereotyping potential of Title VII by alluding to previous pro-LGBTQ cases at the Court.  Instead, the one allusion toward a prior LGBTQ case that Gorsuch makes in Bostock is to the Masterpiece Cakeshop decision—not in name or citation, but by raising religious exemptions at the end of Bostock:

We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society  But worries about how Title VII may intersect with religious liberties are nothing new; they even predate [Title VII’s] passage.  As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations.  This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” (quoting Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC)

In effect, this passage in Bostock is reminiscent of Justice Gorsuch’s concurrence in Masterpiece Cakeshop:  “[W]hen the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble.  Then the government can prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a compelling interest and are narrowly tailored.”  In both passages from these LGBTQ cases, he carves out areas in the law that tolerates religious freedom over discriminatory practices.  Incidentally, Justice Gorsuch’s concurrence in Masterpiece was replete with facts about the Christian baker that allowed him to not only draw favorable inferences to justify the baker’s discriminatory acts against the same-sex couple in Masterpiece but also imply that the treatment the baker received from the Colorado Civil Rights Commission was not respectful toward the baker’s religious beliefs—in essence, violating the baker’s personal dignity.  Thus, here in Bostock, despite its textualist approach, religion is still potentially prioritized.

            Still, the Bostock decision is a watershed moment for the LGBTQ community.  To find that Title VII protects LGBTQ individuals is a terrific development.  But as a brief queer analysis of Bostock can show, Justice Gorsuch missed several opportunities to elevate LGBTQ individuals further by underscoring the anti-stereotyping disposition of Title VII and/or the anti-stereotyping themes in prior pro-LGBTQ rights cases at the Court.  That task will just have to be taken up by LGBTQ litigants and their smart advocates in future cases.       

Breastfeeding Rights in the U.S.

In 2015, UN experts stated that breastfeeding is a "human rights issue for babies and mothers and should be protected and promoted for the benefit of both."

How does the U.S. stack up?

In 2020, the World Health Organization, UNICEF and IBFAN reported that the U.S. was among the minority of WHO-member countries in the world that had not taken any steps to bring national law into line with the International Code of Marketing of Breast Milk substitutes.

Perhaps a more prevalent issue in the U.S. is the stigma attached to breastfeeding, and whether women are allowed to breastfeed in workplaces or in public places as they handle their daily lives with their infants alongside.  Find out how your state is doing in this regard by consulting this new survey compiled by the always useful National Conference of State Legislatures.

A Victory For Equality and The Rule of Law

Guest Blogger Professor John Rice, UMass Law School, shares his thoughts on Bostock v Clayton County, Ga.

On June 15, 2020, the Supreme Court announced its opinion in the Title VII trifecta—Bostock v. Clayton County., Ga.; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. At the outset, I acknowledge the roles that Aimee Stevens and Donald Zarda played in this litigation. Both litigants passed away prior to the Court’s ruling in their cases. I thank both of these individuals for their courage and veracity in bring these suits, and I offer warm wishes of peace and comfort to their loved ones.

 This opinion has been hailed—rightly—by many as a significant civil rights victory, particularly regarding equality for the LGBTQIA+ community. Captioned Bostock (Bostock was the first of the three cases docketed), the Court considered whether the prohibition of “discrimination on the basis of . . . sex” set forth in Title VII of the Civil Rights Act of 1964 extended to prohibit discrimination of the basis of sexual orientation or gender identity. The Court presented what it characterized as a simple answer to a simple question: “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex[.]” Thus, an employer who engages in such discrimination violates Title VII.

I receive this victory with cautious optimism. Much should, can, and will be written about the “next” issues arising and the inherent limits of the moment. The Court was construing Title VII, which only applies to employers who have more than 15 employees and from which religious organizations are exempt. Relatedly, it’s hard to avoid noticing that Justice Gorsuch allocated almost two pages (out of thirty-three) discussing what issues are not before the Court, including any purported tension between non-discrimination and an employer’s religious convictions. Indeed, a case in the Court’s pipeline—Fulton v. City of Philadelphia—will soon explore that precise issue. Additionally, Bostock only addressed the term “sex” in the context of a single statute; it remains unseen whether the term “sex” likewise encompasses sexual orientation and gender identity for purposes of heightened constitutional scrutiny. Likewise, across the country, the federal executive and state governments are engaged in a barrage of attacks against the LGBTQIA+ community, including rolling back healthcare protections and permitting adoption discrimination. Without doubt, the fight continues. But for now, let us take a moment to celebrate and breathe a sigh of relief.  

I join with those who offer praise for the Court’s ruling. While, for most, the jubilation is over the victory for the equality movement, we should also celebrate this opinion as significant in advancing the rule of law and promoting public confidence in the judiciary. The principles underlying the rule of law can generally be framed as three core values: first, that no one is above the law and no one is beneath it; second, that law is formed through a public and transparent process—there is no such thing as “secret” law; and finally, that the institutions that make, interpret, and enforce our laws are consistent and predictable. In Bostock, the Court fulfilled each of these promises.

Most notably, Bostock is about statutory interpretation. Here, the Court engaged in one of its most foundational duties and employed familiar canons of statutory construction to arrive at its conclusion. While acknowledging that the statute’s drafters may not have anticipated this particular application of the law, the letter of the law still necessitated the conclusion. In fact, the majority reasoned that adoption of the employers’ positions would be a deviation from the plain language of the statute. Despite sharp criticism from the dissents that the Court was expanding the plain language of the statue, “legislating from the bench,” the majority made it clear: “homosexuality and transgender status are inextricably bound up with sex.” Thus, discrimination based on sexual orientation or gender identity is discrimination based on sex, which is prohibited by Title VII.

            Next, Bostock was consistent with the Court’s precedent and offered an analytical framework for moving forward. The Court primarily relied on three of its past Title VII rulings: Phillips v. Martin Marietta Corp., L.A. Dept. of Water & Power v. Manhart, and Oncale v. Sundower Offshore Services, Inc. Each of these cases involved “sex plus” discrimination—that is, discrimination on the basis of sex “plus” something else (e.g., having young children, a longer life expectancy, or being of the same sex as one’s harasser). Although the discrimination may have been primarily motivated by the non-sex factor, each instance nevertheless still involved sex, and was therefore prohibited under Title VII.

            Similarly, Bostock offered a framework for legal analysis in future cases. Unlike some of the Court’s past monumental opinions, Bostock did not rely on evasive principles such as “dignity,” “intimate association,” “[safeguarding] children and families,” or “the Obergefell v. Hodges, 576 U.S. 644 (2015), or United States v. Windsor. Of course, this may be attributable to Bostock’s presentation of a different sort of legal issue, one that is more technical and separate and apart from issues of fundamental rights under the Constitution. But still, Bostock offers sound insight into how courts may in the future analyze other prohibitions of discrimination based on sex, such as in the context of healthcare, education, or adoption.

            Finally, the Court soundly rejected the notion of “secret” law or the idea that a legislature’s subjective intent—or perhaps even just the subjective intent of a few legislators—could supersede the plain language of a statute. Certainly not. In a line that sent chills up my spine, the majority reminded us: “Only the written word is the law, and all persons are entitled to its benefit.”

Indeed, your Honors. Indeed.

SCOTUS’ Landmark Reading of Title VII “Sex” As Encompassing Sexual Orientation and Gender Identity

Parallel to our symposium on Mr Floyd's death and the aftermath, we are running posts on this term's Supreme Court decisions having human rights and civil rights implications.  Prof. Shirley Lin of NYU Law School discusses an unexpected result.

In a historic opinion that reenvisions Title VII as “sweeping” and “expansive,” the Supreme Court ruled that hostility against an individual for “being homosexual or transgender” is sex discrimination in Bostock v. Clayton County, Ga.  One of the broadest readings of Title VII in decades, the 6-3 opinion implicitly honored the courage and perseverance of plaintiffs Aimee Stephens and Donald Zarda, whose cases were consolidated with Gerald Bostock's but who unfortunately passed away before hearing the opinion issued.  The Court recognized their dedication to their employers and, using accessible language, acknowledged their gender identity and sexual orientation with dignity.

The cases hinged upon Title VII’s statutory language, which states simply that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1).  Relying upon reasoning that alternated between textual, plain meaning, and a concerning debut of “ordinary public meaning” as to a remedial civil rights statute, Justice Gorsuch wrote:

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids."

Bostock represents a major shift in how courts analyze discriminatory intent in Title VII cases.  By providing a categorical rule that one’s status, “trait or actions” related to sexual orientation or gender identity, is “sex”-based, the opinion is a landmark victory for LGBTQIA+ communities that further eases the burden judicial interpretations had until now made very difficult in proving claims that raise the social traits of race, color, national origin, and religion.  The opinion acknowledges that but-for causation “can be a sweeping standard” that “often [includes] multiple but-for causes,” but the sea change lies in the following passage:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Among the remarkable aspects of Bostock is its elevation of multiple motives in its broadened description of but-for causation while ignoring the less-preferred alternative called “motivating factor.”  It implicitly responds to a doctrinal correction as to causation instigated by lower courts that read the statute’s plain text to include any subordination of a worker beyond the Court’s gratuitously narrowed articulation of but-for causation over the last two decades.  Those courts read the protected trait of “sex” through social construction evidence, which the Court did in the above passage through a comparative argument.

Notably, because the circumstances of all three plaintiffs did not involve non-binary gender presentation the Court sidestepped having to define “sex” conclusively and left the question for a future case in stating that it “proceed[ed] on the assumption that 'sex' [in 1964] signified what the employers suggest, referring only to biological distinctions between male and female.”  The majority acknowledged “nothing in [its] approach to these cases turns on the outcome of the parties’ debate” over whether sex’s meaning includes “norms concerning gender identity and sexual orientation.”  But implicitly, the Court for now viewed both statuses as a “plus” in the vein of its sex-plus precedent, rather than as subsets of “sex.”  It also reserved for another day the application of religion objections brought by both religious employers, exceptions for ministerial employees, and claims under the Religious Freedom Restoration Act, as none of those issues were raised on appeal.

Not content with the majority’s imputed meaning of sex “in 1964,” in a dissent joined by Justice Thomas, Justice Alito accused the majority of judicial legislating, and Justice Kavanaugh separately wrote: “Seneca Falls was not Stonewall . . . . [T]o think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”

Particularly in light of the Trump Administration’s relentless assault on the legal rights of LGBTQIA+ communities, the decision has potent implications for Title IX, which is viewed as analytically identical to Title VII and yielded equally momentous public-school student victories that propelled public support for communities nationwide to affirm transgender students’ gender identity.  Today’s decision indeed marked a euphoric moment for the triumph of principle over ends-driven interpretation.

Aimee Stephens and Challenging Our Legal Discourse about Sex

By Guest Contributor Prof. Shirley Lin, New York University School of Law

 

 

A few days ago, 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 gender justice and workplace dignity made history in 2018 in her landmark victory before the Sixth Circuit, one of the most nuanced examinations of sex discrimination to issue from a court.

 

The panel 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 workplace discrimination law.  Since 1989, a segment of the Court has pursued approaches that needlessly narrow the effectiveness of Title VII within causation analysis and anti-classification analysis. 

 

Title VII’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; 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 reasoned “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.”  Crucially, the panel took judicial notice of the non-binary sex spectrum, and stated:

 

Moreover, discrimination because of a person’s transgender, intersex, or sexually indeterminate status is no less actionable than discrimination because of a person's identification with two religions, an unorthodox religion, or no religion at all. And “religious identity” can be just as fluid, variable, and difficult to define as “gender identity”; after all, both have “a deeply personal, internal genesis that lacks a fixed external referent.”

 

Ms. Stephen’s 2018 victory for LGBTQIA+ communities, and all workers, capped a wave of Title VII and Title IX decisions since 2015 in which four circuits have overruled misguided precedent holding that sex discrimination does not reach anti-trans and anti-gay hostility under a narrow definition of sex.  (A fifth signaled it would do the same, if given the chance.)  So have a majority of district courts to reach the issues.

 

However, 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 doctrinal correction.  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 competes with the Sixth Circuit’s and others’ 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 intersex, non-binary, and gender-fluid people.

 

Equality scholars will recognize the embedded “anti-classification” approach in this “but-for causation” theory.  Adopting a more abstract, formal equality approach, anti-classification logics limit the reach of discrimination to only the act of classifying people within a forbidden category over more contextual anti-subordination approaches.  By design, it would not support intersectional analysis of race, class, and other factors that inform the social context of our sex.  To further theorize the approach of the post-2015 groundswell, I have proposed multiaxial analysis as methodology that avoids reinscribing a fixed-sex, unidimensional binary. 

 

While we await the Supreme Court’s decision, those of us who, like Aimee, believe in the capacity of human understanding must do our part to expand legal discourse as well.

 

 

Something To Cheer About!

With mostly bleak news these days, the US Women's Soccer Team gave us something to be proud of when they won the World Cup this past Sunday in France.  An amazing group of women athletes have become the new role models for millions of American girls.   The team has shown bravery and determination on and off the field.  In March, on International Women's Day, members of the team filed suit against US Soccer for gender discrimination.

According to NPR, "The U.S. Women's National Team, or USWNT, has consistently been more successful than the men's team. The U.S. women have won the World Cup three times (now four) and are four-time Olympic champions. The men's team has never won either tournament and failed to qualify for the 2018 World Cup."

As one example of the many of unequal pay issues,  assuming the men's and women's teams played twenty exhibition games and won them all, the women would earn $99,000 while the men would earn $263,320.00.  Gender differences in pay for the team is prevalent in almost every contract term including travel, the number of games required to play, and the type of training fields provided.

The Men's Soccer Team supports the women's lawsuit including an equal allocation of revenue sharing between the men's and women's teams.  Thank you, men.  A bit late and a lot short. Evidence indicates that the women draw larger audiences and win more games.  So perhaps equal allocation is not so much the issue as equal reward incentives.  

 

 

Host A Watch Party as Women of Color Lead The Movement To Pass the ERA

On Monday October 29th at 6:30 p.m. City University of New York will host a discussion by women of color who are leading the effort to pass the Equal Rights Amendment.  

Speakers are women of color in political life and include several state senators.  The discussion will be moderated by Carol Robles-Roman, co-president and CEO of the ERA Coalition and the Fund for Women's Equity.  For those who cannot attend the live event, the discussion will be live streamed.  You are encourage to host a party to watch this event.  Encourage your students to do the same.  As the website states:

"With recent votes to ratify in Nevada and Illinois, the Equal Rights Amendment (ERA) is back in the public consciousness. In this positive new era for the ERA, women of color are leading the momentum as elected officials and advocates. Hear about the on-the-ground experiences of black and Latina women who have brought the movement to its current threshold."

For more information on live streaming and registration, click here. 

Gender Specific Needs of Women in Prison Not Being Met

A recent study confirms what we what know anecdotally.  The unique needs of incarcerated women  are not being met.  The study, conducted by DOJ's Office of the Inspector General included the following:

Lack of a Strategic Approach.  We found that BOP could not ensure that its correctional institutions adhered to BOP policies pertaining to female inmates because BOP has only recently taken steps to formalize a process for verifying compliance with those policies.  Further, while BOP established a Central Office branch that serves as its source of expertise on the management of female inmates, this branch may not have adequate staffing to fully fulfill its mission.  Additionally, BOP requires all staff in female institutions to take training on the management of female inmates and trauma-informed correctional care; however, BOP does not require its National Executive Staff to complete these trainings.  As a result, the officials who develop policy and make decisions that affect female inmates may not be aware of their needs. 

BOP Programming and Policies.  We identified three areas in which BOP’s programming and policy decisions did not fully consider the needs of female inmates:  (1) trauma treatment programming, (2) pregnancy programming, and (3) feminine hygiene.  We found that BOP may not be able to provide its trauma treatment program to all eligible female inmates until late in their incarceration, if at all, because BOP has assigned only one staff member at each institution to offer this program.  We also estimated that only 37 percent of sentenced pregnant inmates participated in BOP’s pregnancy programs between fiscal year (FY) 2012 and FY 2016.  We believe that participation was low because BOP inmates and staff lacked awareness of these programs, and staff may apply eligibility criteria more restrictively than intended by BOP headquarters.  Further, we found that the distribution methods for feminine hygiene products provided to inmates varied by institution and did not always ensure that inmates had access to a sufficient quantity of products to meet their needs.    

Lack of Gender-Specific Posts.  We found that BOP’s practice of assigning Correctional Officers to posts solely by seniority has resulted in an inefficient use of Correctional Officer resources at female institutions.  Male Correctional Officers are assigned to posts at which staff must regularly conduct searches of female inmates.  Because the Prison Rape Elimination Act of 2003 and BOP policy prohibit male Correctional Officers from searching female inmates, female Correctional Officers must leave other assigned posts to conduct these searches. 

 · Negative Impact of Federal Correctional Institution (FCI) Danbury Conversion.  We examined BOP’s 2013 decision to convert FCI Danbury from a female institution to a male institution, which resulted in 366 low security sentenced female inmates serving a portion of their sentences in Metropolitan Detention Center (MDC) Brooklyn—a detention center intended for short-term confinement.  We found that at MDC Brooklyn, BOP offered female inmates no access to outdoor space, less natural light, and fewer programming opportunities than what would otherwise be available to them at BOP facilities designed for long-term confinement. 

Click here to read the full report.

 

Just Us Voices - Storytelling for Change

Just Us Voices gives formerly incarcerated women an opportunity to tell their stories.  The organization is soliciting formerly incacerated women to tell others about their experiences within and without of prison. To view a video of last years' voices click here.   The penal system is not designed to accomodate women, their needs or their special circumstances.  Just Us Voices encourages women to share their experiences as a form of healing, as a way to enfold others into the experience and eventually into advocacy.

Just Us Voices describes itself as "a new multimedia initiative that aims to transform the public dialogue on mass incarceration through storytelling and the lived experiences of formerly incarcerated women. Although women are the fastest-growing segment of the prison population, the national conversation on mass incarceration focuses primarily on the experiences of men. JustUS Voices will broaden the conversation to include perspectives and insights through the unique lens of gender, race and justice."

 

 

Keep the Cameras Rolling: Photographers Lose in Challenge over Refusal to Service Same-Sex Weddings under Minnesota’s Human Rights Act

by Prof. Jeremiah Ho

 Last week, a federal district court in Minnesota ruled against plaintiffs Carl and Angel Larsen, and their videography company, TMG, in their suit against Lori Swanson, Minnesota’s Attorney General and Kevin Lindsey, the commissioner of Minnesota’s Department of Human Rights.  In Telescope Media Group, Inc. v. Lindsey, the plaintiffs had lodged a “pre-enforcement challenge” to the prohibition on sexual orientation discrimination under the Minnesota’s Human Rights Act (“MHRA”).   The plaintiff couple had goals to expand their company into the wedding video industry with a specific purpose of using their wedding video services to express their opposition to same-sex marriages and reify the Christian belief in opposite-sex marriages.  To effectuate their goals, they intended not to produce wedding videos of same-sex couples and also intended to post a message on TMG’s website explicitly denying service to same-sex weddings.  That posting would have violated Minnesota’s Human Rights Act with civil penalties up to $25,000.  In addition, Minnesota legislatively recognized same-sex marriages in 2013.  Hence, their challenge arose. 

Because the plaintiffs had yet to produce wedding videos and actively discriminate against same-sex couples, justiciability issues were raised.  But for the most part, the district court dismissed those challenges by the defendants and ventured into the merits of the plaintiffs’ claims, which were based under a constitutional free speech, right of association, religious exercise, unconstitutional conditions, equal protection, and due process arguments.  

The challenges under the First Amendment were untenable.  For the free speech argument, the court ruled that the MHRA was a content-neutral regulation and did not violate the plaintiffs’ free speech rights under intermediate scrutiny.  The court also found that the plaintiffs had not shown a viable claim under the compelled speech doctrine.  Furthermore, the court pronounced that the plaintiffs’ textual challenge against the MHRA for terms that they claimed would lead to unbridled enforcement discretion was not credible.  For the right of association arguments, the court quickly dismissed the notion that the MHRA inhibited the plaintiffs’ right to expressive association to an extent that would be constitutionally dangerous.  The court also dismissed the plaintiffs’ religious exercise challenge by noting that the MHRA was a regulation of general applicability.  Lastly, the plaintiffs’ attempt to restate their First Amendment claims under an unconstitutional conditions argument was seen as merely repackaging what the court already had not favored. 

Under the Fourteenth Amendment, the plaintiffs’ equal protection and due process arguments also crumbled—mostly because of unsustainable characterizations of their status or similar repackaging of their free speech arguments. 

Already, the most well-noted excerpt of the ruling has been Chief Judge John Tunheim’s analogy that the plaintiffs’ desire to turn down same-sex clients by posting such a disclaimer on their website was “conduct akin to a ‘White Applicants Only’ sign.”  No doubt, this lawsuit is likely to be appealed.  The plaintiffs’ attorneys, from Alliance Defending Freedom, are part of same team representing the wedding cake maker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, to be argued at SCOTUS this fall.  That case involved a professional wedding cake provider’s refusal of business to same-sex couples. 

Post-Obergefell, after the extension of marriage to same-sex couples, these cases present an interesting moment for sexual orientation antidiscrimination as the leveraging for full equality by LGBTQ individuals is occurring not only against First Amendment religious exercise arguments but also—now more fully it seems than before—within free speech challenges as well.  I write this not because such challenges weren’t previously couched in free speech theories, but because of the recent headline resurgence of free speech controversies.  At the same time, the national debate on free speech is taking place on campuses and elsewhere in the media, these cases are quickly being cemented into the larger national dialogue—sometimes violent—over identity, our collective history, and ultimately our national values.  Free speech is being used to prop up a reality that does not comport with democratic principles of liberalism and respect for human rights.  Rather, free speech is being used to reinforce a world of hierarchy stoked by false nostalgia and collective insecurity.

Not to mention, the vindication of the MHRA in favor of same-sex marriages and weddings in Telescope Media Group, Inc. v. Lindsey has historical resonance for LGBTQ rights.  Minnesota was where one of the earliest episodes of the struggle for marriage equality took place.  In 1970, two gay students from the University of Minnesota, Richard Baker and James McConnell, applied for a marriage license in Minneapolis.  After their application was denied, they sued.  Their litigative failures, from state to federal courts, unfolded all the way to SCOTUS where the Court in 1972 summarily dismissed their suit, Baker v. Nelson, with just one line: “The case is dismissed for want of a substantial federal question.”

Whatever outcomes are ahead, I don’t think we’re in one-liner territory anymore.

You may read the judgment here.  

 

 

 

 

Why Can't US Laws Be More Rwandan?

The US record on gender equality is dismal.  Rwanda, largely as a consequence of the loss of men in the 1994 genocide, has made significant progress in the legal status of women.  At that time, the population of Rwanda was 70% female.  The Rwandan constitution ensures gender equality in all matters.  In the 2013 elections, 64% of the members of parliament were female.  Women are guaranteed three months paid maternity leave. 

By contrast, the US guarantees no paid maternity leave.  In the recent health care discussions, some men wanted to remove health care coverage for maternity.  86% of Rwandan women participate in the work force compared with 56% of US women.   However, despite Rwandan laws requiring equality for women, true equality has not been achieved.  Women earn 88 cents for every dollar earned by men.  Significantly, Rwandan women experience domestic violence at the high rate of 1 in 3.  Recently progress has been made in enforcing laws against abusive men, but the most significant barrier to stopping violence against women universally is men's culture in opposing gender equality.  In a story reported in WeNews, woman's advocate Peace Ruzage, of Aspire Rwanda, said "“The problem of violence against women in Rwanda, as with many African countries, is rooted in the cultural beliefs and notions of masculinity reinforced through generations.”  True for the US as well.

PRIDE

June was filled with international Pride events. Let's not lose perspective and forget that public Pride demonstrations still require courage of the LGBTI community.  Marriage equality success can present sexual identity freedom and acceptance as a false norm.  

Being anything but "straight" remains unsafe.  

The criminalization of  HIV-AIDS exists in the majority of US jurisdictions, with many of those making it a crime for an individual living with HIV to have sex with another  without disclosure of the HIV status and that person's informed consent.  These statutes often do not require proof of intent to transmit the disease; and actual inability to transmit the disease due to effective medical intervention presents no defense.  The enforcement of these laws primarily against people of color is not unnoticed. 

Members of the LGBT community are more likely to be the targets of US hate crimes than any other minority.

Leigh Goodmark has written on the extraordinarily high rates of abuse against trans women.

While we celebrate the expansion of legal equality, let's remember that the specific "equalities" recognized are more along the path of joining heterosexual norms, rather than a celebration of sexual minorities as respected individuals who may equally participate in our society upon their terms.  Those "equalities" remain, in fact, narrow.  We must exlore whether what our culture encourages is more than demanding conformity with heterosexually based cultural institutions.

Let's try to correct and avoid heterosexuality as the norm.  Whiteness as the norm in fashioning race based remedies has resulted in the endurance of bias, implicit and explicit.  We are early in the journey of ensuring effective remedies for members of the LGBTI community.  Will we avoid the mistakes of the past in forcing alignment with false norms?   We will have some indication from SCOTUS next term.

 

 

 

Finally - Discrimination Due To Sexual Orientation Recognized as Civil Rights Violation

For the first time, the U.S. Court of Appeals ruled, in an 8-3 decision, that the Civil Rights Act of 1964 protects lesbian, gay, bi-sexual, and transgender employees from workplace discrimination.  The Seventh Circuit recognized that discrimination based upon one's perceived or actual sexual orientation is a civil rights violation.  The decision of Hively v. Ivy Tech was heard en banc after a three judge panel earlier ruled against the Plaintiff, Kimberly Hively, who claimed that she experienced workplace discrimination based upon her identification as a lesbian. 

Historically, opponents argued successfully that LGBT individuals could not benefit from discrimination protections because discrimination based upon sexual orientation was not specifically mentioned in the act.   As recently as March 10, 2017, the 11th circuit wrote that it was bound by prior case law that limited protections to straight men and women. "Because Congress has not made sexual orientation a protected class, the appropriate venue for pressing the argument [that LGBT individuals are protected] raised by the Commission and the dissent is before Congress, not this court."  A dissenting opinion forecast the reasoning used in Hively.

Hively's Judge Wood declared on Tuesday that "For many years, the court of appeals of this country understood the prohibition against sex discrimination  to exclude discrimination on the basis of a person's sexual orientation. We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination."  Judge Wood continues: "It would take considerable calisthenics to remove the 'sex' from 'sexual orientation'."  

Ms. Hively was represented by Lambda Legal who undoubtedly will next argue the case before the US Supreme Court.  Watch for more posts on this case. 

 

Breaking News: North Carolina Repeals HB2

by Jeremiah Ho

Today the North Carolina state legislature voted to repeal HB2, the infamous bathroom bill from 2016 that restricted transgender individuals from using the public restrooms that reflected their gender identities.  The repeal was completed with a compromise bill that was signed this afternoon by the new governor, Roy Cooper.  The repeal was sought, in part, because of the economic threats resulting from big business boycotts in reaction to last year's bill.  Observe that North Carolina still does not have antidiscrimination laws protecting LGBTQ individuals. 

Here is the New York Times coverage.

This is the second time that threatened economic consequences have been effective in changing  North Carolina policy that discriminated against members of the LGBT community.  See our prior coverage.

Judge Gorsuch and Women

Over the course of the past few weeks, women's organizations have reviewed Judge Gorsuch's record  in an attempt to determine his understanding of the myriad legal issues women face.  Judge Gorsuch by and large has not appreciated the difficulties of women's lives and how laws and policies can have a disparate impact on them. 

The National Association of Women Lawyers found Judge Gorsuch to be "not qualified" on women's issues.  The organization's Supreme Court Committee members, of which the author is one, review candidates' opinions and other writings and conduct interviews with a wide number of people who have interacted with the candidate in various capacities.  While the committee found that Judge Gorsuch generally treated litigants and lawyers with respect, and that he has the intellectual capacity for the position, his record on issues important to women displays a lack of understanding.  In a press release containing the committee's findings, the committee noted concerns around the Judge's giving religious freedom rights deference over women's reproductive rights.  Likewise, the committee noted "Judge Gorsuch's writing also exhibits a reluctance to recognize precedent that applies substantive due process to protect the rights of women."  The committee further noted concern in other areas, including his failure to recognize transgender women as women thus denying them rights that are afforded to other women.

The National Women's Law Center also issued their report on Judge Gorsuch.  Concerned with Judge Gorsuch's lack of support for regulatory authorities, the Center's press release stated:  "Judge Gorsuch has explicitly praised Justice Scalia's approach to the law. While he has not opined on Roe v. Wade, he voted to override a woman's coverage of contraception if her boss objected. Justice Scalia was highly skeptical that courts should defer to the interpretations of laws by expert government agencies - and Judge Gorsuch would go even further, making it harder for agencies to implement the laws that have literally opened doors of opportunity for women and girls."