Human Rights at Home Blog

Trump Administration Abandons LGBT Rights - Again

Last week the Justice Department submitted a brief arguing that the anti-discrimination law Title  VII do not protect LGBT employees. The administration filed an amicus brief in a New York case in which the government is not directly involved.  The brief was filed on the same day that the President announced in a tweet that transgender individuals would not be permitted to serve in the military. 

By filing, Justice Department has made it clear that the administration is withdrawing Obama era guidance that Title VII's provisions protect from discrimination based on gender identity. 

The case before the court was brought by a man who was fired after disclosing to the a customer that he is gay.  The circumstances were that Mr. Zarda, an employee who accompanied customers o parachute jumps, told a female customer with whom he was about to do a tandem jump that he is gay.  The customer's husband complained to the employer, who then fired Zarda.  Mr. Zarda sued under Title IX. 

While courts are not mandated to follow Justice's guidance, many do.  Mr. Zarda's case will be a test of whether the courts will be guided by the new administration's interpretations or will consider marriage equality and other changes in federal law sufficient to reinterpret the reach of Title VII.   We have seen the importance and power of an independent judiciary over the past six months.  How the court decides is not a slam dunk for Mr. Sessions.

 

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.

 

 

 

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."

The New Dignity Conversation

by Jeremiah Ho

 

I would agree with a recent NPR article online about the disjointed, state-by-state progress for gay rights in 2016, a year after marriage equality had prevailed at the Supreme Court. (See 2016 Has Been a Mixed Bag for LGBT Politics)  In part, that’s understandable as we have been preoccupied with electoral politics since that time.  It's also very much in line with how the incremental politics of gay rights progresses in general when a state has obtained marriage equality.  Things slow down for a little bit for gay rights.

 

But that's not to say that this slowing is excusable.  The divisive Presidential election is over.  LGBTQ individuals still deserve the full equality and anti-discrimination protections that they do not yet fully possess.  In the year after marriage equality, we have seen the backlash toward LGBTQ people in various context from healthcare to bathrooms.  Last week, the most recent case to be taken up by the Supreme Court hopefully is our next wake-up to moving on with what is left to be done in fulfilling advances for sexual minority protections and rights under the Constitution.  The Gloucester County case, which we recently posted on, has now crystallized into our next step. However, several challenges do exist to affect whether or not a victory will be eminent for transgender individuals facing public discrimination over the right to access the bathroom that reflects the gender with which they identify. The composition of the High Court with only eight Justices is one possibility that whatever ruling they give will not necessarily be as solid as if there were a full Court of nine Justices.  What if the Court reaches a decision where the eight justices were to divide evenly on the doctrinal resolution of this issue?

 

Despite that uncertainty for doctrinal progress in that event, incremental politics of LGBTQ equality and rights advancement must continue to urge that sexual minorities are seen in the politics of dignity and respect.  The last major words that the Supreme Court had in regards to the rights of sexual minorities--meaning from the decision to extend the fundamental right to marry same-sex couples--were written in a politics and a connotation of subdued and restrained respect for same-sex couples.  Despite the legal significance for same-sex couples, the Obergefell v. Hodges decision couched their rights within a reverence for traditional marriage. Sure that did  give gay couples the right to marry. But it was done in a way that showed how much they qualified for traditional marriage--instead of saying that same sex couples could create their own merits for unions without qualification. But only because under equality principles they always should have been allowed to do so.

 

Now with transgender bathroom rights, we have a new opportunity to use the existing dignity rhetoric from cases such as Lawrence v. Texas (and not the marriage cases, Windsor or Obergefell) to articulate the respect for sexual minorities for inherently who they are.  Even if doctrinally the advancement for LGBTQ anti-discrimination were to receive a less stable and lasting treatment because of a gridlocked 4-4 decision by the High Court, I hope that the conversation about the right for transgender individuals to choose their own bathrooms will be framed within a discussion of respect and dignity for inherently who they are and not the respectability rhetoric left over from Justice Kennedy's marriage equality decision.  A new conversation of respect and dignity in this context free from the marriage decisions would hopefully give us a restart toward the preferred inherent dignity and respect that will more easily move us to further progress for the advancement of sexual minority rights without and away from the lens of heteronormativity.  Even if that is the only thing that comes from the Gloucester case, I would find that as a welcomed victory because it'll set us up better for the next challenge.

The Financial Cost of Hate

by Jeremiah Ho

The fall-out from the North Carolina anti-LGBT bill seems to continue. With the numerous businesses taking their ventures out of the state (including notables such as PayPal and Angie’s List) and big-name entertainers (Bruce Springsteen, the band Pearl Jam, and Ringo Starr) cancelling shows in North Carolina, the question of the economics of the business backlash is obviously inevitable.  According to a PBS Newshour’s piece that aired this week, the economic backlash based on cancelled conventions has cost the state at least $8 million dollars.  That’s not chump change, given that the bill (HB2) was passed only within the last two months.

The Williams Institute at the UCLA School of Law recently weighed in on the answer to the fiscal question for such anti-LGBT legislation—this time examining the fiscal impact of the Tennessee anti-LGBT bill (HB 2414) and the costs beyond the boycotts and backlash of private businesses. Instead, the Institute released a report this month that examines the fiscal impact from an administrative angle.  In sum, the researchers note that there are three major areas in which there would be negative financial impact to Tennessee with the bill in effect.  First the study notes that there might be a loss of federal educational funding of up to $1.2 billion annually as a result of Title IX violations.  Secondly, the loss of federal contracts to educational institutions could rise up to $3 million to $9 million annually as a result of violations of Executive Order 13672, which prohibits federal contractors that receive more than $10,000 in federal contracts annually from discriminating against their employees and job applicants based on gender identity.  Lastly, there likely will be costs incurred as a result of litigation and federal administrative enforcement.  The report can be found here.

If the report is accurate, then are these costs that both the citizens and the state of Tennessee will tolerate because of legislative intolerance? Is this a worthy cost of fear and hate?  

LGBT Update - Moving Forward With Irony

Last week the federal appeals court for the 4th Circuit ruled that a Virginia student could sue his school board for prohibiting him from using the bathroom matching his gender identity.  The Court found that the prohibition imposed upon Gavin Grimm violated Title IX.  The ruling, in what is generally considered a conservative state, may have influence in other states that are resistant to endorsing bathroom use by gender identity.   Among the states struggling to prevent  gender identity from deciding which bathroom is used are: South Dakota, Illinois, Texas and Mississippi.   A pathway  for the issue to arrive at the US Supreme Court perhaps?

And let's not forget North Carolina where activists against the newly enacted law restricting the rights of LGBT individuals were arrested for refusing to leave a state building where a demonstration was taking place.  However, the arrests could have been a major breakthrough for the activists. Whether intended or not, the situation is not without its irony, if not humor.  Mara Keisling, director of the National Center for Transgender Equality, was among those arrested.  Not only did she describe the arresting officers as respectful,  Ms. Keisling reported that transgender men were put into cells housing males while transgender women were housed in the women's cell.  Also, at the jail, arrestees used bathrooms that matched gender identity. 

All to prove that you cannot make this stuff up.

 

Coming Soon to a Supreme Court Near You

Last week, a Massachusetts state judge ruled that a Catholic high school discriminated against a gay man when it rescinded a job offer upon learning that the candidate's spouse is male.  The decision is believed to be the first in the nation employment discrimination case since the enactment of marriage equality.  The candidate, Matthew Barrett, accepted an offer as food service director.  But when he listed his husband as his emergency contact in completing employment forms, the school withdrew its offer. 

Mr. Barrett is represented by GLAD attorney, Ben Klein.  Judge Douglas Wilkins, in deciding the case, rejected the school's argument of a religious exemption under the Massachusetts' anti-discrimination law.  The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school's religious teachings.  Judge Wilkins based his decision on several findings.  Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett's position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage.  In what is a disappointing ruling for those asking to have sexual identity acknowledged as a protected class, Judge Wilkins noted only that Mr. Barrett was subject to gender discrimination when he was denied employment to which a woman applicant married to a man would have been entitled. As previously discussed in this blog, a protected class analysis has been lacking in the same sex and sexual identity cases that have come before a variety of U. S. courts.

This decision is ripe to wend its way to the U.S. Supreme Court.  Advocates for conservative Catholic organizations, such as the Catholic Action League of Massachusetts, are already voicing dismay over the decision. That statement may be said too lightly.  The group's website headline says that it "condemns" the decision.  I suspect that those advocating for the acknowledgement of sexual identity as a suspect classification would welcome this case being accepted for cert.  The facts are favorable for consideration of the protected class argument that was avoided in Obergefell.  On the other hand, those who believe that this case is wrongly decided may be cautioned against appeal if the consequence might be a ruling that not only affirms the trial court but expands constitutional protections on sexual identity grounds. 

Stay tuned!