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Posts Tagged ‘LGBT discrimination’

The Supreme Court Case Testing the Limits of Gorsuch’s Textualism

Wednesday, October 16th, 2019

Image result for richard primusIn three cases argued last week—Bostock v. Clayton CountyAltitude Express v. Zarda, and Harris Funeral Homes v. EEOC—the Supreme Court confronted this question: Does Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of [an] individual’s … sex” forbid discrimination on the basis of sexual orientation or gender identity?

Several lower courts and most academic commentators have said that the answer is yes. The logic is pretty simple. If a male employee is fired because he has sexual relationships with men, but female employees in the same workplace can have sexual relationships with men without getting fired, then the male employee was fired “because of [his] sex,” inasmuch as he would not have been fired had his sex been different. The same is true of a woman assigned female at birth who is fired because she lives as a man. If you’re tempted by the thought that firing a person for having a same-sex partner doesn’t discriminate on the basis of sex because the employer would fire people of any sex who have same-sex partners, ask yourself whether a law prohibiting people of any race to marry outside their racial groups, or to ride in a railroad car designated for people of a different race, discriminates on the basis of race. (It does.)

To be sure, nobody thinks that Congress in 1964 intended to ban workplace discrimination against LGBTQ persons when it prohibited discrimination “because of … sex.” But the words of the law turn out to do so, regardless of what Congress had in mind. The question before the Supreme Court, therefore, is what prevails when the text of a statute does something that the legislature that passed the statute did not have in mind—and would not have endorsed.

The justice to whom that question is posed most sharply, and who may well cast the deciding vote in these cases, is Justice Neil Gorsuch. Gorsuch may find himself pulled in different directions by two of his strong jurisprudential commitments. On one hand, he generally thinks that courts should not be engines of social change, including by expanding the reach of antidiscrimination laws. Those sorts of changes, he believes, should come from legislatures. But on the other hand, Gorsuch is a proud and articulate textualist. In his oft-repeated view, a court applying a law passed by a legislature should be governed by what the words of the statute actually say, regardless of whether the court thinks the words of the statute embody good public policy. Nor should courts let the meaning of statutory text be overcome by considerations about the general purposes of the law or what members of the legislature said or thought during the lawmaking process. What matters is the text of the statute. And the text that Congress adopted, read literally, covers LGBTQ scenarios.

To be sure, all nine justices would probably describe themselves as textualists of one sort of another in cases of statutory interpretation. None of them thinks that courts can ignore what statutes say. But most are more open to considering other factors as well, including the legislature’s purpose. (The leading alternatives to textualist approaches to statutory interpretation are usually called “purposivist,” because they advocate taking into account what Congress meant to accomplish, not just what the law literally says.) Gorsuch’s textualism is the most uncompromising, and being a principled textualist is a big part—perhaps the biggest part—of Gorsuch’s public identity as a jurist.

So if Gorsuch were to write that employers are able to discriminate on the basis of gender identity or sexual orientation—whether because of a concern about precipitating social change or otherwise—critics will surely charge that his textualism is more rhetorical than real. They will say that he pretends to have a consistent interpretive theory, but he’s willing to jettison that theory when he doesn’t like the result it would lead to. That criticism might sting. But in the end, the charge of playing fast and loose with his principles is not the most significant problem Gorsuch would have to face if he ruled for the employers. He would also risk exposing one of the key premises of textualism as flawed.

At oral argument, Gorsuch recognized the strength of the textualist argument in favor of the LGBTQ plaintiffs. But Gorsuch also suggested that this point might not decide the case, because of a competing concern about the appropriate role of courts within the legal system. To decide that existing federal law prohibits employment discrimination on the basis of sexual orientation or gender identity, Gorsuch mused, might cause significant social disruption. Perhaps, he said, American society is not ready for, or does not want, a legal rule protecting LGBTQ persons against workplace discrimination. And like most conservative-leaning federal judges—indeed, like most federal judges regardless of politics—Gorsuch takes the view that major social change should not come from court rulings but rather from democratically elected legislatures. Indeed, a big part of the point of textualism for someone like Gorsuch is that it prevents courts from substituting their own policy intuitions for those of legislatures.

How much social disruption would actually result from a ruling for the plaintiffs is of course a matter of guesswork: Counsel for the plaintiffs argued that it might not be so disruptive. But to a strict textualist, the degree of potential social disruption shouldn’t matter. If courts shouldn’t be in the business of making judgments about social policy, and instead should just apply statutes as written, then societal outcomes should be no reason to hesitate to do what the text of the statute says. It might feel like a ruling for the plaintiffs would constitute judge-ordered social change, but from a textualist viewpoint, ruling for the plaintiffs wouldn’t expand antidiscrimination law. It would just enforce the law that already exists.

That’s not to say that social disruption—were it to occur—wouldn’t be a problem. But a key tenet of statutory textualism is the idea that if statutes are problematic, the solution is not for courts to tinker with them. Courts must enforce laws as they are, warts and all, and leave any needed repair work to Congress. In the present case, that means that if Congress doesn’t think that Title VII should prevent discrimination against LGBTQ persons, Congress could add clarifying language to the statute. A textualist with faith in this process should have no problem enforcing the statute as written and leaving the rest up to Congress.

Like most justices, though, Gorsuch is a sophisticated observer of congressional behavior. He knows that in reality the legislative process is full of veto opportunities even when it isn’t completely gridlocked. Getting anything through Congress is difficult, and imagining that Congress will respond to every statutory interpretation it doesn’t like by passing appropriate statutory amendments is more than a little naïve. In this case, Gorsuch knows that Congress is unlikely to respond to a literal construction of Title VII by affirmatively authorizing discrimination against LGBTQ persons. There probably isn’t a sufficient majority in Congress today to pass legislation specifically prohibiting discrimination against LGBTQ persons, but there probably isn’t a sufficient majority for passing a law specifically denying that protection, either. So whichever way the Supreme Court decides is likely to be how the law remains for some period of time.

That’s why the possibility of social disruption concerns Gorsuch: If he believed a legislative fix were a realistic possibility, he could just follow the text of the statute and let Congress do whatever cleanup work it thought was needed. But Gorsuch is entirely correct to doubt that any legislative fix would be forthcoming.

If Gorsuch writes an opinion in this case that suggests (even implicitly) that he does not trust the possibility of a legislative fix, he will have done more than give his critics grounds to say that he abandoned his textualist principles when he didn’t like the results. He will also be suggesting that, when push comes to shove, he knows that one of the premises of hard-core statutory textualism—that fixing statutes is the job of the legislature—is not in practice workable. That is not a signal that a Supreme Court justice who aspires to be his generation’s leading hard-edged textualist ought to want to send. The simplest way to avoid sending that signal, of course, is to apply the statute literally—that is, to rule that Title VII covers discrimination on the basis of sexual orientation and gender identity. That would look like evidence that Gorsuch is seriously committed to his textualist approach, regardless of his views about the policy wisdom to which it leads in any given case.

This article was originally published at Politico on October 15, 2019. Reprinted with permission. 

About the Author: Richard Primus is the Theodore J. St. Antoine Professor of Law at the University of Michigan Law School and a former clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg. Follow him on Twitter @Richard_Primus.

The Corporate Media Failed to Warn Us About the Trump Admin’s Attack on LGBTQ Workers

Wednesday, October 9th, 2019

Image result for Andy Lee Roth“Sex,” Katherine Franke, a law professor at Columbia University, told the New York Times, “is a confounding term in our culture, in our language and certainly in the law.” As the Supreme Court opens a new session, its justices are set to tackle the conundrum of defining “sex.” At issue is whether Title VII of the landmark Civil Rights Act of 1964, which bars employment discrimination “because of sex,” applies to gay, lesbian, and transgender employees.

There are many reasons why LGBTQ Americans deserve federal protection against employment and workplace discrimination. Simplest and most glaring: In a majority of states, it is perfectly legal for an employer to refuse to hire someone, or to fire them, simply because of their sexual orientation or gender identity. In its preview of Bostock v. Clayton CountyAltitude Express Inc. v. Zarda, and Harris Funeral Homes v. EEOCSCOTUSBlog described the trio of cases as “some of the biggest” of the Court’s forthcoming term. The Court’s decisions will be consequential for how secure all workers—whether straight or queer; transgender, cisgender, or nonbinary—are in their jobs, because the cases will also test a 30-year-old decision that established gender stereotyping as a form of sex discrimination.

It is distressing that corporate news media have not deemed employment protections for LGBTQ workers to be newsworthy until the Supreme Court decided to hear these cases, but it is no surprise to us. The inadequate news coverage fits a pattern we found in a study of several hundred news reports on LGBTQ issues published by four major newspapers between January 2016 and November 2018. The study, “Stonewalled: Establishment Media’s Silence on the Trump Administration’s Crusade against LGBTQ People,” appears in Censored 2020: Through the Looking Glass (Seven Stories Press, 2019).

Our study concluded that, during that period, corporate news media consistently muted, marginalized or ignored the steady rollback of LGTBQ protections and rights under the Trump administration. Another recent study, focused on television news coverage, reached similar conclusions: Since Trump became president, news coverage of LGBTQ issues has “all but disappeared.”

From the 2016 presidential campaign through the midterm elections of 2018, we found that corporate news coverage of LGBTQ issues focused on two main issues: the president’s proposal to ban transgender people from military service and so-called “bathroom bills.” Together these two topics accounted for more than forty percent of all LGBTQ-focused news articles in the New York TimesWashington PostLos Angeles Times and Wall Street Journal. By contrast, during the same time period, the independent news outlets in our study covered a much wider range of issues facing LGBTQ Americans, devoting less than 10% of their coverage to the proposed transgender military ban and “bathroom bills.”

Based on the findings from our study, we forecast three trends in news coverage of the Supreme Court’s hearing of the Title VII anti-discrimination cases. The first pattern we expect to hold is a positive, encouraging one; the remainder are causes for concern.

News coverage will center LGBTQ voices.

LGBTQ people—including spokespersons for leading LGBTQ rights organizations, such as Human Rights Campaign, Lambda Legal and the National Center for Transgender Equality—will achieve what sociologist William Gamson calls “media standing.” Standing, in Gamson’s use of the term, goes beyond being covered or mentioned in the news; the figures that journalists quote directly are positioned as agents whose insights and actions matter.

In our study, we found that at least 7.5% of quoted sources identified as gay, lesbian, or bisexual. Although the actual numbers of LGBTQ people in the United States are difficult to determine, that figure is higher than recent estimates of the nation’s adult population indicate, suggesting that journalists are making good faith efforts to represent “the diversity of opinion and experience within the LGBTQ community,” as recommended by Sarah Kate Ellis in her introduction to the GLAAD Media Reference Guide.

This point about the inclusion of LGBTQ voices may seem obvious, even trivial, but a long history of systemic prejudice against LGBTQ people by the nation’s most prominent news outlets makes the achievement of media standing by LGBTQ people noteworthy. As recently as 1996, for example, Edward Alwood, author of Straight News, concluded that U.S. news media “rarely focus” on the leaders of gay and lesbian rights organizations.

As coverage of the LGBTQ cases argued before the Supreme Court will show, in 2019 news organizations have improved in this regard.

Corporate news will provide limited historical context for understanding these cases.

News stories are geared toward current events and journalists often fail to provide the long-term historical view necessary to fully understand those events.

If news coverage frames the BostockAltitude Express and Harris Funeral Homes cases in terms of the history of civil liberties in the United States, this will be due to the advocacy of civil liberties organizations and their allies.

In October 2018, for example, the Trump administration proposed to define gender as a biological fact, determined at birth. In our data, we found that spokespeople for civil liberties groups, such as the American Civil Liberties Union, articulated their opposition by linking protections of and inclusion for LGBTQ people to the history of the civil rights movement, including the racial integration of the military by President Truman in 1948, and the desegregation of schools, as mandated by Brown v. Board of Education in 1954.

Had the newspaper articles in our study not included the voices of civil liberties advocates, readers would have had no historical context with which to make sense of the Trump administration’s audacious proposal.

To what extent will news coverage of the Supreme Court cases on employment discrimination be enhanced by historical perspective? Our study suggests that the answer to this question depends on whether that coverage features the voices of civil liberties organizations.

Corporate news coverage will whitewash anti-LGBTQ advocates’ most virulent positions.

In our study, establishment newspapers frequently quoted Tony Perkins, president of the Family Research Council, as a newsworthy opponent of state laws and ordinances that would prohibit LGBTQ discrimination.

Quotations published by the New York Times and Wall Street Journal, for example, portrayed Perkins as a fair partisan, engaged in legitimate debate, but failed to inform readers of Perkins’ more virulent anti-LGBTQ statements or that, in 2010, the Southern Poverty Law Center listed the Family Research Council as an anti-gay hate group.

Similarly, Media Matters has documented how establishment media outlets have highlighted Mike Pence’s civility with gay men in public and professional meetings while downplaying his long record of anti-LGBTQ positions, first in Congress, then as Governor of Indiana, and now as Vice President.

Numerous studies show that hate crimes against LGBTQ people—including violence that is often deadly—is on the rise, while acceptance of LGBTQ people in everyday situations is eroding. But corporate news coverage of the trio of Supreme Court cases is likely to downplay these realities, in part by depicting the opponents of employment protections for LGBTQ Americans as reasonable and principled figures—even when they have taken virulent homophobic or transphobic positions in the past. Call it the Tony Perkins Syndrome.

At its best, journalism provides insights into complex issues, puts news into context, and highlights abuses of authority. We would be happy for establishment news outlets to report on the Supreme Court’s LGBTQ cases in ways that prove our critical predictions wrong. But, based on our study of recent news coverage, we expect otherwise.

The Supreme Court is not likely to rule on the trio of LGBTQ employment cases until June 2020. We do not have to wait until then to judge the establishment media’s coverage of crucial LGBTQ issues, or to hold news organizations accountable when they fail to provide the kind of coverage we need to act as informed members of our communities.

This article was originally published at InTheseTimes on October 8, 2019. Reprinted with permission.

About the Author: Andy Lee Roth is associate director of Project Censored, a media watchdog organization established in 1976. His research, including the study described in this article, focuses on the power of news to shape public opinion. He is the coeditor of in Censored 2020: Through the Looking Glass (Seven Stories Press, 2019) and nine previous Censored yearbooks.About the Author: April Anderson is the lead author of “Stonewalled: Establishment Media’s Silence on the Trump Administration’s Crusade against LGBTQ People,” which appears in Censored 2020. A member and advocate of the LGBTQI+ community, they work as a Research and Instruction Librarian at Macalester College.

Scary times as Trump Supreme Court tackles abortion restrictions and anti-LGBTQ job discrimination

Friday, October 4th, 2019

Almost exactly a year after Brett Kavanaugh’s lies succeeded at getting him onto the Supreme Court, his first chance to limit abortion rights is in his grasp. The court announced Friday it would take a case on Louisiana’s abortion restrictions, restrictions that are very similar to Texas provisions the court struck down in 2016. That’s not the only bombshell the Trump court could be dropping soon—next week the court will hear a set of cases on employment discrimination against LGBTQ people.

Louisiana, as Texas previously did, wants to require abortion providers to have admitting privileges at a nearby hospital—a significant burden to providers since some hospitals will not give them admitting privileges at all, while also being of basically no benefit to patients since hospital admission after abortion is vanishingly rare and can be accomplished without the provider having admitting privileges. The most conservative appeals court in the U.S. upheld that law, but the Supreme Court put it on hold while considering whether to hear the case. Which it will now do, with a decision expected in 2020.

Even before that case comes up, though, the court will hear a set of cases involving people who were fired for being gay or transgender. Those cases involve Title VII of the Civil Rights Act of 1964, which prohibits job discrimination “because of sex.” The Equal Employment Opportunity Commission decided in 2015 that it would be discrimination because of sex to treat a woman in a relationship with a woman differently than a woman in a relationship with a man, and judges in two of the cases before the court next week have found similarly, with one writing “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” and another that it’s “analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” But we are talking about the Trump Supreme Court here, so … it’s hard to be optimistic about anything, ever.

This article was originally published at Daily Kos on October 4, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor at Daily Kos editor since December 2006. Full-time staff since 2011, currently assistant managing editor.

CNN’s planning a 2020 LGBTQ forum. Here are some issues advocates say the candidates should address.

Friday, September 6th, 2019

Image result for casey quinlan

 

High on the list: Reversing the ban on transgender troops and addressing the plight of LGBTQ people of color.

A prominent LGBTQ rights organization, the Human Rights Campaign (HRC) announced Thursday that it will host a presidential town hall on LGBTQ issues next month. The event will air on CNN.

LGBTQ advocacy groups told ThinkProgress that they know exactly what ideas they want to hear discussed at the town hall set for Oct. 10, which is National Coming Out Day. Many said that first and foremost, they want candidates to acknowledge the struggles of the most marginalized in the community, including LGBTQ people of color, and put forward policies to respond to anti-LGBTQ bias in the criminal justice system.

“LGBTQ people are more likely to come into contact with the police due to discriminatory policing, be incarcerated, and experience violence while locked up than non-LGBTQ people. Black and Latinx LGBTQ people are most impacted,” Tyrone Hanley, senior policy counsel for the National Center for Lesbian Rights, told ThinkProgress.

Hanley said that aspirants to the White House must put criminal justice reform as one of the issues topping their list. “Candidates must demonstrate an understanding that anti-LGBTQ discrimination and violence is impacted by issues of race, gender, and class just as they are for other communities,” he said.

The town hall comes at a critical time, as the Trump administration has rolled back health-care protections for transgender people and protections for transgender students, implemented a ban on transgender people in the military, and proposed a rule that allows broad religious exemptions for businesses with federal contracts.

Sens. Kamala Harris (D-CA), Amy Klobuchar (D-MN), and Elizabeth Warren (D-MA); former Vice President Joe Biden; South Bend, Indiana, Mayor Pete Buttigieg, and former Housing and Urban Development Secretary Julián Castro have accepted the invitation to the town hall, and others may yet join them.

HRC invited candidates who reach at least 2% in four national polls chosen by the Democratic National Committee (DNC) and who have met the DNC’s threshold of 130,000 unique donors.

The candidates will answer questions from CNN journalists and the members of the audience at back-to-back town halls over the course of the evening. LGBTQ advocates have a broad range of issues on their list of topics they want to see discussed.

Shannon Minter, legal director of the National Center for Lesbian Rights, said he’d like to see how each candidate stands on reversing the president’s ban on military service by transgender troops. Minter said he would like the candidates to acknowledge that health care, poverty, and food insecurity are all LGBTQ issues.

And, he added, the candidates should also demonstrate how they would carry on the progress of the Obama administration when it comes to tackling the issue of conversion therapy, programs in which young people are told they can and should change their sexual orientation and in some cases, their gender. The American Medical Association has said conversion therapy, especially in youth, may cause significant psychological distress.

“While regulating that issue falls primarily to the states, President Obama’s Department of Health and Human Services issued a groundbreaking report on the harms caused to minors by conversion therapy in 2015 that has played a key role in supporting state legislation,” Minter said.

“We would very much like to see candidates pledge to continue and expand such educational efforts. The president’s voice is powerful, and we urgently need national leadership on this issue, which poses such a severe threat to the health and well-being of LGBTQ youth.”

Stacey Long Simmons, director of advocacy and action for the National LGBTQ Task Force, echoed the views of others in saying that the presidential candidates should focus on the community’s most vulnerable populations.

“When we are having conversations with policymakers, we typically ask about issues affecting members of our community who are most deeply marginalized and in particular thinking about people who may have multiple marginalized identities,” Long Simmons said.

“They may be undocumented or transgender or gender-nonconforming. They may be racial minorities or religious minorities. All of those things are things we tend to highlight when we’re in conversations with people,” she said.

She added that candidates have to understand how all issues connect to the LGBTQ community and roll back many of the anti-LGBTQ policies of the Trump administration, which have undone much of the work of the Obama administration to bolster LGBTQ rights.

“There’s not an issue out there that is being discussed that doesn’t directly impact members of our community,” she said.

“We would want to be involved in as many ways possible to shape policy because we know that, given the way society is structured, whether it’s climate change or healthcare policy or criminal justice policy, all of the things decision-makers put out affect our community and so we want to make sure they don’t worsen some of the conditions we’re currently grappling with.”

In a statement to ThinkProgress, Sharon McGowan, chief strategy officer and legal director at Lambda Legal, said that candidates need to explain how they would use “all of the tools at their disposal,” including the bully pulpit, executive powers, and legislative acton where possible to address and reverse the policies of the Trump administration.

McGowan said of these policies, “These harms include this administration’s weaponization of religion as an enemy of civil rights protections for LGBTQ people (among others), and the ways in which this administration has taken aim at the most vulnerable in our community, including transgender people, young people, and LGBTQ people of color.”

She said Lambda Legal would also like to see the candidates “discuss the damage that has been done to the federal judiciary by the appointment of scores of anti-LGBTQ ideologues to lifetime positions on the federal bench, and how they intend to address this crisis.”

As other organizations have said, McGowan said candidates need to understand that all policy issues, whether they be safe schools, police misconduct, and treatment in government custody, are all LGBTQ issues.

In his statement announcing the town hall, HRC President Alphonso David said that despite enormous gains in the past decade, there remain a number of areas where LGBTQ people face discrimination and disadvantages “because of who we are.”

“Today, in 30 states, LGBTQ people remain at risk of being fired, evicted, or denied services because of who we are. Thirty-five states have yet to ban the dangerous and debunked practice of ‘conversion therapy,’ which is harming our young people. Hate crimes are rising, and more than 100 transgender people — most of whom are transgender women of color — have been killed in the United States in the last five years,”  David said.

Many Democratic candidates acknowledged the LGBTQ community during the first presidential debate in June. Sen. Cory Booker (D-NJ) said that violence against transgender people of color was a serious issue that the country needs to address. At least 16 transgender people have been killed this year, according to HRC, and the overwhelming majority of these murders were of black trans women. Last year, there were at least 26 killings of transgender people.

Castro called for making health care inclusive to trans people, although he misspoke about which trans people should be considered when he talked about reproductive justice. Warren used inclusive language to discuss how the economy isn’t working for Latinx people. Klobuchar also mentioned shifting attitudes in marriage equality.

Several candidates for the Democratic nomination have released plans in the past few months on how they plan to tackle policy issues that affect the LGBTQ community.

Warren released proposals and policies designed to advance LGBTQ rights. Her ideas included supporting the Equality Act, reversing President Donald Trump’s military trans ban, a vow to “protect civil rights for transgender people,” outlawing conversion therapy, reversing the State Department’s denial of family visas to same-sex domestic partners of diplomats, and ending discrimination against queer men who are currently barred from donating blood.

Warren tweeted in August about a trans woman of color who died in isolation at Rikers Island, “Let’s be clear: Layleen Cubilette-Polanco should still be alive. Solitary confinement is cruel and inhumane. We must end this practice, enforce strict standards for medical care, and provide extra layers of protection for LGBTQ+ people.”

Former Rep. Beto O’Rourke (D-TX) has released his plan to fight for LGBTQ rights, which included reversing the trans military ban, directing the Justice Department to investigate crimes against transgender people, specifically trans women of color, and making sure that LGBTQ people are included in federal data collection efforts.

Last month, some of the candidates spoke about the needs of transgender Americans with the National Center for Transgender Equality (NCTE) Action Fund for its Transform the White House initiative.

Booker and Sen. Bernie Sanders (I-VT) spoke at length about their approach to advancing transgender equality. They spoke on issues such as rolling back Trump administration policies that undid much of the progress of the Obama administration on transgender equality, violence against transgender people and the criminal justice system, and economic policies that would improve trans people’s lives.

In later interviews, Castro and Klobuchar spoke with the National Center for Transgender Equality Action Fund. Castro mentioned discrimination against transgender people in housing, the large share of homeless youth who are LGBTQ, and the detainment of transgender immigrants.

Klobuchar said she would reverse the trans military ban in her first 100 days and touted her support of national nondiscrimination protections for LGBTQ people over the years.

 

 

This article was originally published at Think Progress on September 5, 2019. Reprinted with permission.

About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.

Supreme Court to decide if LGBTQ workers are protected by US civil rights law

Monday, August 19th, 2019

The U.S. Supreme Court in its upcoming session will hear arguments on whether anti-LGBTQ employment discrimination is sex discrimination.

The court will hear arguments on October 8 about whether LGBTQ workers are protected by the Title VII of the Civil Rights Act of 1964.

“This is a momentous occasion. It is a pivotal moment and the public should be paying attention,” Omar Gonzalez-Pagan, senior attorney at Lambda Legal, a civil rights organization focused on LGBTQ people, told ThinkProgress.

“These cases will affect the ability of LGBTQ people to be full members of society and to contribute to society by entering the workplace and be free of discrimination.”

In the worst case scenario, LGBTQ people would have to rely on a patchwork of state protections for employment protections and the Equality Act, a sweeping LGBTQ nondiscrimination bill passed by the U.S. House of Representatives in May, would become even more critical to protecting LGBTQ rights.

Twenty-one states, the District of Columbia, and two territories explicitly prohibit employment discrimination based on sexual orientation and gender identity.

Christy Mallory, senior counsel for the UCLA School of Law’s Williams Institute, said, “The court may decide that neither sexual orientation or gender identity discrimination are forms of sex discrimination prohibited by Title VII. This would remove existing non-discrimination protections for LGBT people under Title VII, which would have a particularly significant impact on LGBT people who live in states without statewide non-discrimination laws.”

There are three cases but two questions before the court. Zarda v. Altitude Express and Bostock v. Clayton County have been consolidated to consider sexual orientation as sex discrimination and Harris Funeral Homes v. EEOC will consider discrimination against transgender people.

The Zarda case involved an employee named Donald Zarda being fired from Altitude Express, where he worked as a skydiver. He informed a woman he was gay while they were strapped to each other because he thought it would make her feel more comfortable. She later informed his employer that she wasn’t happy with his sharing his being gay and he was subsequently fired. Zarda died in 2014 but his estate pursued the case.

The Bostock case focuses on Gerald Bostock, a child welfare services coordinator who was in a gay recreational softball league. He said his participation in the league and his sexual orientation became a problem with someone at work. Then he was fired for “conduct unbecoming of a county employee,” which he said was tied to his sexuality.

Harris involves Aimee Stephens, a trans woman, who was fired from her job at a funeral parlor after she informed the funeral director she worked for that she was transgender. She had worked in funeral services for nearly 20 years and received positive feedbackfrom her employer.

The briefs from plaintiffs and their supporters have focused on a textualist understanding of the law — hewing closely to the original text of the Constitution, which the conservative justices may be more inclined to accept — rather than legislative intent, or what lawmakers had in mind in passing related legislation.

Several law professors have argued in their briefs that the court can look to Price Waterhouse v. Hopkins (1989), which says employers can’t use sex-based stereotypes when taking employment actions.

Gonzalez-Pagan said one doesn’t need to believe that anyone can be transgender. Despite the mountains of evidence, “the reality is that in the discrimination in this case against this employee, Aimee Stephens, she did not conform to the expectations of her birth-assigned sex that the employer had.”

The Alliance Defending Freedom, a legal group whose attorneys have linked marriage equality with a “degradation of our human dignity,” and filed a petition asking the court to hear one of these cases, has argued that lower courts “redefined” sex in the law. Mallory pointed out that Title VII itself does not define the term “sex.”

But plaintiffs and others can also argue that when discriminating against queer and trans people, you necessarily have to consider sex.

“The fact is that in the arguments we are making, that plaintiffs are making, and others are making in this case, this is really about the text of the statute. This is really a very conservative argument — textualist and adhering to the letter of the law. And the reality is that when you consider somebody’s same-sex attraction, somebody’s transgender status — by definition you have to consider their sex,” Gonzalez-Pagan said.

“You are impermissibly considering sex in taking an employment action. There’s no way around that. It’s not that we are in this case proposing that there be another definition of sex. It is being elucidated in other cases and in scientific literature and the medical establishment and there is a consensus that is built but we don’t even have to go there. Because either way, because no matter the definition you consider of sex, you’re still considering that sex in making that employment decision.”

Some historians have argued in an amicus brief that the understanding of sex in the 1940s, 50s, and 60s was such that LGBTQ people could have been understood to be included. They wrote, “This broad understanding of sex, as evoking a range of sex roles, sexual expression, and sexual instincts, shaped public knowledge about LGBT individuals. Mid-twentieth century writers sometimes grouped LGBT people under the term ‘sex variants’—a term introduced by psychiatrist George Henry to mean primarily persons he considered homosexuals, though he sometimes also included individuals who wished to change their sex, regardless of their sexual desires.”

They added, “The word ‘sex’ thus covered a broad range of meaning in the mid-twentieth century—one that encompassed the behavior, practices, and identities of LGBT individuals.”

Gonzalez-Pagan said that a common argument against the Equal Rights Amendment in the 1970s was that by prohibiting sex discrimination, one could apply it to LGBTQ people.

“[O]pponents of LGBTQ equality that are trying to dismantle these protections recognized by EEOC and federal courts and vast majority of public — what they’re trying to do is have their cake and eat it too,” he said.

“They are saying these protections aren’t necessary because they will essentially protect LGBTQ people and now they’re saying they don’t cover LGBTQ people. So it’s really illustrative of their bad faith.”

He added, “It’s not about not whether we have arguments on our side, but whether the court will adhere preferences for statutory interpretation, or political ideology. That’s what really what’s at stake here.”

This article was originally published at Think Progress on August 17, 2019. Reprinted with permission.

About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.

Discrimination complaints hit group fighting Trump's health policies

Friday, August 16th, 2019

Rachana PradhanSome of its employees have described an environment allowing mistreatment of minority and LGBTQ employees.

A legal aid organization leading the fight against several Trump administration policies, including health care for LGBTQ and low-income people, is facing its own internal allegations of discrimination.

The National Health Law Program, or NHeLP, was founded in 1969 to advocate for health care rights of underserved people. It has grown more prominent in the Trump era, taking on causes like fighting Medicaid work requirements. But some of its employees have described an environment allowing mistreatment of minority and LGBTQ employees, including instances of bullying black women; employees telling “off-color jokes” about women and Jewish people; and a “sense of not belonging among LGBTQ staff,” according to a 2018 assessment on its workplace culture obtained by POLITICO.

Elizabeth Taylor, a former Justice Department attorney who became the group’s executive director in 2014, said leadership has worked, and continues to work, to fix problems flagged by the 53-pageassessment, which the organization commissioned amid high staff turnover and concern about workplace culture.

“We appreciate the urgency of addressing racism both internally and in our outward facing work,” said Taylor. She said remedies include diversifying leadership, bringing in a human resources company to do management training, convening all-staff retreats focused on equity issues and establishing ground rules for conduct during meetings and other workplace interactions.

But a half dozen individuals who work or have worked for the social justice nonprofit claimed workplace inequities persist. All of them worked there after the January 2018 report.

NHeLP employs roughly three dozen attorneys, policy experts and administrative staff across its three offices in Washington, Los Angeles and CarrboroN.C.

“They say we hear you and we understand you but then don’t see results,” said one employee who called the pace of change too slow. “Things have to change.” That employee, as well as other current and former employees who spoke to POLITICO, asked to remain unidentified.

Taylor acknowledged that improvements may not occur quickly enough for certain employees — but that the changes can’t be rushed if they are to be done correctly and sustainably.

The January 2018 report, in addition to interviews with several former and current employees, depict an organization struggling to create an equitable workplace even as it battles the Trump administration over policies it says are discriminatory or punitive to low-income people and other marginalized groups.

The legal group is not alone in grappling with these issues; many sectors of society including Hollywood, Congress, the media and both the corporate and nonprofit worlds are uncovering mistreatment, abuse andemployee discrimination.

Since 2016, 14 people have left NHeLP, including eight people of color, according to figures the organization provided to POLITICO. Four of them left this year, including two individuals who are ethnic minorities.

It is unclear whether all these departures were related to the issues raised in the report. POLITICO was unable to reach some of the people who left in recent years; others did not respond to queries.

One employee who left after the 2018 assessment told POLITICO there were challenges around the retention of minority staff and lack of leadership opportunities.

“I think that there are situations that they are trying to improve. I just think it’s a long road ahead,” said the individual who left after concluding there was no opportunity for advancement.

NHeLP for decades has fought in court for patient access to a range of health care services, such as medications for severe chronic illness, children’s mental health benefits and abortion. It has also advocated for legislation expanding health insurance coverage. The group’s profile — along with its fundraising — has grown in the Trump era, its work seen as indispensable among health care advocates who oppose a range of Trump policies they believe will weaken the health care safety net for millions of people.

The organization has led successful lawsuits blocking the Trump administration from allowing the first-ever Medicaid work requirements in three states, though the Justice Department has appealed and other states are still planning on adding work rules. NHeLP is also likely to challenge the administration’s looming rollback of civil rights protections for LGBTQ patients, which the nonprofit helped shape as part of the Affordable Care Act.

The organization raised $8.3 million in 2017, more than triple the $2.6 million it raised in 2014, according to tax documents (though below the nearly $11 million that came in during 2013.) In 2017, as Republicans in Washington sought to repeal the Affordable Care Act, the group hired 11 people, about three times as many as the year before. Despite staff turnover, the organization grew.

NHeLP has stood out as a rare legal organization that is primarily led by womenYet it has struggled with retaining a diverse staff, even as it expanded.

“We know that we still have work to do and we’re doing it,” Taylor said.

Many nonprofits as well as for-profit entities struggle with boosting diversity and installing leadership that is more representative of the populations they serve.

“This is something that’s urgent and most every nonprofit in the country is struggling with,” said one individual in the nonprofit sphere who has worked with NHeLP for years. “Figuring out a way to address it is vital.”

Taylor said the departures in 2016 of three employees of color who worked on policy issues was one reason NHeLP stepped up its diversity and equity efforts, including hiring an outside firm to examine its workplace culture. That review by the Management Assistance Group produced the January 2018 assessment.

“There were certainly things in it that resonated with me,” said Wayne Turner, a senior attorney based in Washington, declining to give specifics. But he added, “I think for people who have been here for a while, it’s kind of history and we’ve moved beyond that.”

The group’s board in 2017 also adopted a strategic plan that included priorities to boost equity internally as well as in other areas, including partnering with organizations that represent the interests of people of color.

Then the January 2018 report came. The report, which is based on interviews and observations provided by current and former staff as well as board members, detailed management styles that alienated staff of color and LGBTQ workers.

The report noted the perception among some employees that “there were instances where women of color had more experience but white staff were identified as more capable.” It also relayed descriptions of instances when individuals acted “surprised when a person of color is a good writer.”

“Management issues are so bad and pervasive,” the report quotes one employee saying. “While I’ve benefited from being a white woman, it is hard to see it because it is such a challenge. It is worse for people of color.”

The report said people observed “bullying” of black female employees, but it did not provide details or indicate how many individuals witnessed it. Nor did it provide more details about off-color jokes.

“There were things in there that were shocking as leaders of the organization to read,” Taylor said.

The report said NHeLP’s emphasis on maintaining a workplace culture of “niceness” and avoiding conflict can prevent employees from raising concerns related to treating workers equally. Managers also “often” meant to create an inclusive atmosphere, but those efforts backfired at times, the report said.

“We learned that managers often have the best intentions to make staff feel included and welcome, however due to miscommunication, disparate management styles, and assumptions about what people want, are skilled at, and need, their actions do not land as intended, and too often create an atmosphere of unintended hostility,” the report reads.

Not all employees perceived that hostility; the report found most staff believed NHeLP’s offices were pleasant and knew their colleagues had “the best intentions in mind.” Many of the current and former employees interviewed by POLITICO, who represented a diverse group, also had a positive impression.

“It was a pretty decent organization,” said one former employee who nonetheless witnessed staff turnover and people of color voicing concern about the workplace environment. This individual said that managers attributed staff departures to millennial “job hop,” rather than looking at deeper issues.

“There was definitely that brush off — ‘oh, that age group,’” the former employee said.

Taylor said she had never heard anyone on the management team make such a remark.

She said the organization views the effort to improve workplace culture as a “long-term commitment.” Employees said NHeLP set up committees to address various issues, from improving partnerships with organizations led by people of color to hiring, retention and office culture.

“I feel like staff was given a lot of leeway from management to come up with a staff-driven process on how to address these issues that were going on,” said one employee who had not personally witnessed bullying but did occasionally hear off-putting jokes at work. This individual was concerned that co-workers might be impatient and “lose faith.”

“It’s not a short-term process,” the person said. “Doing something on a consensus basis, staff-led process is going to be slower.”

Two individuals who work or have worked at the organization viewed some of the remedies as inadequate. “We have all of these committees and I honestly just don’t know why,” said one.

NHeLP’s director of health policy Leonardo Cuello said the organization is making changes deliberately and doesn’t view improving diversity and equity as “a check the box thing.”

“You have to do things in the right order and you have to do it with professional support, and you have to do it thoughtfully and kind of in accordance with the model practices. And that takes time,” he said.

“We’ve been working on it for two years and there’s a reason for that.”

This article was originally published by Politico on August 16, 2019. Reprinted with permission. 

About the Author: Rachana Pradhan is a health care reporter for POLITICO Pro. Before coming to POLITICO, she spent more than three years at Inside Health Policy focusing on implementation of the Affordable Care Act. Prior to that, Pradhan worked at The Daily Progress in Charlottesville, Va., and spent most of her time covering city government (with the occasional foray into stories on urban chicken-keeping and the closure of neighborhood pools).

Pradhan is a rare local of the Washington, D.C., area and graduated from James Madison University. She was also news editor of JMU’s student newspaper, The Breeze.

Proposed anti-LGBTQ Labor Department rule would let federal contractors discriminate

Thursday, August 15th, 2019

The Labor Department proposed a new rule Wednesday that would allow broad religious exemptions for businesses with federal contracts, which could undermine the rights of LGBTQ people and other marginalized groups. This could apply to hundreds of thousands of contractors and subcontractors.

It applies to a number of organizations, such as schools, societies, and corporations. The rule says, “A religious purpose can be shown by articles of incorporation or other founding documents, but that is not the only type of evidence that can be used.”

“The problem isn’t so much that [contractors] will necessarily hold sincerely religious beliefs, but they will use this as an excuse for their homophobia and their transphobia,” said Victoria Rodriguez-Roldan, senior policy counsel for the National LGBTQ Task Force. “At the Task Force, we are concerned and many people of faith and faith-based communities that are progressive may see this as a problem.”

Several LGBTQ organizations and organizations focused on the separation of church and state attended meetings with Office of Federal Contract Compliance Programs (OFCCP) officials this summer in anticipation of the rule. The National LGBTQ Task Force, Americans United for Separation of Church and State, National Women’s Law Center, National Center for Transgender Equality, and the Human Rights Campaign held meetings with officials from May to July about the proposed rule.

Rodriguez-Roldan said that she met with the director of the OFCCP, Craig E. Been, and that he “kept insisting” that, under OFCCP regulations, gender identity and sexual orientation were still protected.

“I did say we are aware but we don’t want any exceptions to them based on religion,” she said.

An August 2018 directive mentioned several U.S. Supreme Court cases to justify its guidance to OFCCP officials, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Communication,Trinity Lutheran Church of Columbia, Inc. v. Comer, and Burwell v. Hobby Lobby Stores, Inc. and recent executive orders.

In the Masterpiece Cakeshop case, in which shop owner Jack Phillips refused to make a wedding cake for a gay couple, the court narrowly ruled in 2018 that the Colorado Civil Rights Communication did not employ religious neutrality when it found that the bakery discriminated against the couple. It reversed the CCRC’s decision. In the case involving Trinity Lutheran Church, the court held in 2017 that when a state program denied a grant to a religious school and provided grants to non-religious groups, it violated freedom of religion. The court ruled in Burwell v. Hobby Lobby Stores, Inc. that closely held for-profit corporations are legal persons under the Religious Freedom Restoration Act.

In 2017, President Donald Trump released an executive order on Promoting Free Speech and Religious Liberty that would “guide the executive branch in formulating and implementing policies with implications for the religious liberty of persons and organizations in America.” In 2018, the president established a White House Faith and Opportunity Initiative. LGBTQ rights groups said they were concerned these orders would weaponize religious freedom rights to discriminate against LGBTQ people.

In 2014, President Barack Obama signed an executive order that amended two executive orders by addressing LGBTQ anti-discrimination protections for federal employees. Trump said he would not rescind it. However, a Justice Department brief argued against protections for queer workers.

In a statement following news of the rule, m the National Center for Transgender Equality said the regulation is “another attempt to allow contractors to circumvent a 2014 executive order prohibiting discrimination on the basis of sexual orientation or gender identity by any federal contractor. In 2017, President Trump weakened this rule by eliminating reporting standards for contractors.”

“This administration has clearly shown a propensity to use religious liberty to give a license to discriminate,” said Frank J. Bewkes, policy analyst for the LGBT Research and Communications Project at the Center for American Progress. (ThinkProgress is an editorially independent newsroom housed within the Center for American Progress Action Fund.)

In an interview before the proposed rule dropped, Bewkes said he does not see how the cases mentioned in the directive would justify this rule. Shannon Minter, legal director for the National Center for Lesbian Rights, told INTO last year that the directive was “contrary to established law” and said that, in the past, the department has made it clear religious contractors can prefer members of their religion but can’t discriminate because of their religion.

“By eliminating that important qualification, the new directive is confusing at best and at worst sends a dangerous and false message that such discrimination is now permitted,” he said.

Protections for workers or prospective workers for federal contractors and subcontractors are important for the protection of LGBTQ workers’ rights when there is only a patchwork of employment protections on the state level. Senate Republicans refuse to consider the Equality Act, which would clarify and expand LGBTQ protections on the national level in employment, housing, and other areas. According to the Movement Advancement Project, only 21 states and the District of Columbia have passed laws explicitly prohibiting discrimination and gender identity in employment and housing.

The Williams Institute at the UCLA School of Law, using Gallup data, estimates that 4.5% of American adults are LGBTQ. Among millennials, 8.2% identified as LGBTQ. Federal contractors are responsible for employing about one-fifth of the country’s workforce.

Bewkes said the rule could affect an even larger number of people.

“This is a huge number of people this is affecting who are LGBTQ workers. And once you consider religious exemptions, sometimes people use it for other things. What if you’re in an [interracial marriage] and your employer disagrees with that on religious grounds?” Bewkes said. “Is that something that is going to be a problem? We’ve seen in South Carolina with adoptions and religious exemptions that people are not necessarily turned away because of their sexual orientation and identity. They’re being turned away because their specific religion is not the religion of the agency.”

Bewkes added that this is really an expansion of exemptions that already apply to The Civil Rights Act of 1964.

“They are asking for an expansion of that … They’re asking for [an exemption] for anyone who is religiously affiliated in any way, and that opens up a whole Hobby Lobby issue and would be very concerning. The larger the exemption the more undermined any nondiscrimination protection becomes, because it’s enforceable against fewer people. It’s just simple numbers. What they’re asking for would be overly broad.”

This article was originally published at Think Progress on August 14, 2019. Reprinted with permission.

About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.

9 Reasons LGBTQ Workers Need Federal Protections

Wednesday, August 14th, 2019

Currently, there’s no federal law that protects LGBTQ people from discrimination at work. But this April, the Supreme Court agreed to hear three cases involving people who claim they were fired for being LGBTQ. Arguments are set to begin during the fall of this year, and decisions will likely be made next summer. The Court will decide whether Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, religion, sex and national origin, also includes gender identity and sexual orientation. If the plaintiffs win their cases, it could become illegal in all states to fire someone for identifying as LGBTQ.

But LGBTQ-identifying individuals who aren’t fired for their sexual orientation or gender identity may still face other types of discrimination at work. These nine statistics show just how far we still have to go to make workplaces accepting and supportive for LGBTQ folks.

  • 46% – LGBTQ people who were closeted at work in the U.S. in 2018
  • 22% – LGBTQ people who had experienced discrimination in pay or in consideration for a promotion
  • 20% – LGBTQ people who had felt pressured by coworkers to dress more feminine or masculine
  • 53% – LGBTQ people who had heard jokes about lesbian or gay people on the job
  • 10% – LGBTQ people who had left a job because the workplace was not accepting of them
  • 32% – LGBTQ people of color who had experienced discrimination when applying for jobs as of 2017
  • 73 – Countries that protect workers from discrimination based on sexual orientation (the U.S. is not among them)
  • 26 – U.S. states that allow private employers to fire someone based on sexual orientation or gender identity
  • 3 – States that explicitly ban local governments from passing nondiscrimination provisions: Arkansas, Tennessee and North Carolina

This article was originally published at In These Times on August 13, 2019. Reprinted with permission.

About the Author: Alex Schwartz is a 2019 editorial intern for In These Times.

Texas has a new plan to discriminate against LGBT people

Monday, April 17th, 2017

Texas’ anti-transgender bill has seemingly stalled, but inspired by North Carolina, Republican state lawmakers have a new plan to expand discrimination against LGBT people.

Last month, Texas seemed on track to follow in the footsteps of North Carolina’s HB2 and pass its own bill, SB6, mandating anti-transgender discrimination across the entire state. Lt. Gov. Dan Patrick (R) launched a massive misinformation campaign to scare up support of the bathroom bill, and the Senate passed it, terrifying the trans kids and families who testified against it. The bill was blocked in the House by various House Republican leaders who indicated they believed it was unnecessary.

But now, those House Republicans have introduced a new bill that looks awfully familiar.

Unlike the various complicated aspects of SB6, HB 2899 does only one thing: ban cities from passing nondiscrimination protections. To that end, it also would nullify any municipal nondiscrimination ordinances already in place.

This approach strongly resembles the “compromise” bill North Carolina lawmakers recently passed to replace HB2, which banned cities and school districts from passing any ordinance “regulating private employment practices or regulating public accommodations” until December 1, 2020.

These both, in turn, follow the example set by Tennessee and Arkansas—which have “preemption” laws that prohibit cities from protecting any class from discrimination that isn’t already protected under state law, which amounts to a de facto ban on LGBT protections. North Carolina’s law sloppily allows protections that already exist to remain in place, but Texas takes the approach a step further. By banning and nullifying all nondiscrimination ordinances, HB 2899 would prohibit cities from doing anything to address discrimination on the local level.

HB 2899 would effectively be a statewide license to discriminate against LGBT people. By regulating schools, it would also have severe consequences for LGBT students, who could not be protected from bullying. Trans students could not be guaranteed the right to use the restrooms and other facilities that match their gender identity.

Given the NCAA and NBA were convinced to abandon their boycotts of North Carolina over its replacement law, it seems likely that Texas lawmakers expect their new plan will similarly be safer from economic backlash. This is despite the fact that many cities and states are maintaining their bans on publicly-funded travel to North Carolina.

House State Affairs Committee Chairman Byron Cook (R), who blocked the Senate anti-trans bill, called HB 2899 “the right kind of balance” between “privacy”—i.e. discrimination against transgender people—and avoiding “a chilling effect on business.”

Cook’s committee will consider the new bill next Wednesday.

This article was originally posted at Thinkprogress.org on April 14, 2017. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

North Carolina just lost out on another 730 jobs because of its anti-LGBT law

Wednesday, October 26th, 2016

Zach FordThis week, North Carolina found out it is not getting 730 new jobs and a quarter-billion-dollar impact that it was the top contender for. The reason? Its anti-LGBT law, HB2, which bans trans people from using the bathroom and bars municipalities from protecting LGBT people from discrimination.

CoStar Group Inc., a real estate analytics company, had been shopping around cities to build a new research operations headquarters, and the contenders were Charlotte, Richmond, Atlanta, and Kansas City. The Atlanta Business Chronicle heard from sources that Charlotte was the favorite. But the jobs are going to Richmond.

According to David Dorsch, CoStar Group’s commercial real estate broker, “The primary reason they chose Richmond over Charlotte was HB2.” CoStar Group was itself, a bit mum, simply confirming the jobs were going to Richmond-and no expansions were planned anywhere else. But Dorsch was adamant that the jobs were another casualty of the discriminatory law. “The best thing we can do as citizens in North Carolina is to show up on Nov. 8 and think about which party is costing us jobs and which one is not.”

Co-Star’s expansion is the latest-and one of the biggest-losses the state has faced over HB2. In April, PayPal backed out of a 400-job expansion in Charlotte and Deutsche Bank froze a 250-job expansion in Cary-both companies openly stating they refused to expand in a state with such a discriminatory law.

North Carolina has also lost several prominent sporting events, such as the NBA All-Star Game, various NCAA championships, and the ACC championships, each a significant economic impact the state will no longer enjoy.

Additionally, there are countless conventions, entertainers, and film companies that have backed out of economic commitments in North Carolina. Numerous states have even banned state-funded travel to the state. Plus, the state has to spend money to defend the law in court; the legislature even redirected $500,000 from emergency relief funds to cover the legal costs. That was before Hurricane Matthew devastated the state with massive flooding, and Gov. Pat McCrory (R) insists that even though he didn’t veto that measure, he hasn’t actually spent that money (yet).

But McCrory’s administration denies there’s been any backlash whatsoever. His Commerce Secretary, John Skvarla, insisted this week that HB2 “hasn’t moved the needle one iota.” Indeed, he claimed that the state is financially and operationally in the “best position” it’s ever been.

As the Charlotte Observer pointed out, this doesn’t jibe with the losses that local business leaders have reported because of decreased tourism and development. Johnny Harris, a real estate developer in Charlotte, believes that “ for every one company that decides to relocate to North Carolina that another 10 probably are not, deterred by HB2.”

They’re not in total denial, though. Skvarla also admitted that the state made PayPal give back a ceremonial wooden bowl that McCrory had given to the company as a gift celebrating the original plan to expand in North Carolina. As the Observer described it, “state officials did what any jilted ex might: Asked for their stuff back.”

It could be that because the boycotts were either new expansions that don’t appear as losses or recurring events that haven’t happened again yet, they don’t show up in Skvarla’s numbers. But the numbers do show up.

In September, Facing South estimated that, based only on the backlash that was evident so far at the time, the law’s cost would be well over $200 million. Wired similarly crunched the numbers in September and found losses approaching $400 million. And back in May, the Williams Institute made a similar estimate, but also counted the $4.8 billion in federal funding North Carolina receives that it would no longer be eligible for because of its enforcement of HB2 in schools and universities?—?a grand total of $5 billion in potential losses, per year.

This article was originally posted at Thinkprogress.org on October 25, 2016.
Reprinted with permission
.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

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