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Posts Tagged ‘LGBTQ’

Supreme Court poised to drastically reverse LGBTQ equality

Tuesday, November 27th, 2018

There are now six different cases implicating LGBTQ rights sitting before the Supreme Court. While the conservative-majority Court has not yet agreed to hear any of them, a circuit split between two of the cases and the fact that President Trump’s transgender military ban is at the heart of another strongly suggest at least one of them will advance to oral arguments.

The cases span a variety of different issues, including employment, education, military service, and public discrimination. At the heart at most of them is a question about whether discrimination against LGBTQ people counts as discrimination on the basis of “sex.” If the Court rules against queer people in just one of them, it could set a precedent that hinders LGBTQ equality across all of the different issues.

Such a decision would be the largest blow to queer rights since the Court upheld sodomy laws 32 years ago.

Employment discrimination

Two of the cases before the Court address the question of whether it’s legal to fire someone for being gay. Two different federal appellate courts arrived at different conclusions, increasing the likelihood that the Supreme Court will hear the cases to resolve the dispute.

In Bostock v. Clayton County, Georgia, a gay man argued that he was fired because of his sexual orientation. The U.S. Court of Appeals for the Eleventh Circuit dismissed Gerald Lynn Bostock’s case over a 1979 precedent, even though several Supreme Court cases since then have undermined that ruling, including a case that recognized “sex stereotyping” as a form of sex discrimination as well as a case that recognized same-sex sexual harassment as sex discrimination. The Eleventh Circuit insisted that “sexual orientation” enjoys no recognition under Title VII’s employment protections on the basis of sex.

Meanwhile, this past February, the U.S. Court of Appeals for the Second Circuit arrived at the exact opposite conclusion in Zarda v. Altitude Express. In that case, the appellate court found that skydiving instructor Donald Zarda, now deceased, was illegally fired for being gay under Title VII. The Trump administration had argued otherwise.

With this split in how to interpret federal law, it seems highly likely that the Supreme Court will want to resolve the conflict. While there are several compelling arguments that discrimination on the basis of sexual orientation inherently requires making determinations on the basis of sex, it’s not clear that there are five justices who will agree.

While they’re at it, the Court may also consider R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a similar case about whether Title VII’s “sex” protections include discrimination on the basis of gender identity. The U.S. Court of Appeals for the Sixth Circuit agreed this past March that a Michigan funeral home violated the law when it fired employee Aimee Stephens for being transgender.

The Trump administration recently filed a brief in this case arguing that the Supreme Court should overturn the Sixth Circuit’s decision and rule that it’s legal to fire someone for being trans. But the administration also argued that the Court should consider Zarda or Bostock first — in other words, that it should resolve the question of whether sexual orientation is protected before it takes up gender identity.

In any of these cases, a ruling narrowly defining “sex” could set back employment rights for the entire LGBTQ community.

Trans military ban

On Friday, the Trump administration asked the Supreme Court to take the reins on the four different court battles over President Trump’s ban on transgender people serving in the military. The administration has lost in all of these different cases, including before two appellate courts, but it is now asking the Court to combine them all into the case Trump v. Karnoski.

The request is an unusual step, one that attempts to skip over the standard appeals process. LGBTQ groups chided the administration for being so desperate to discriminate that they’re willing to flout judicial norms and procedures. Nevertheless, given the Court’s willingness to cater to executive power in the Muslim ban cases, it might similarly be charitable to Trump’s claim that banning transgender people somehow improves military readiness, even though there’s no evidence to support that claim.

Another bakery

Just months after the Supreme Court granted a one-off victory to an anti-gay baker from Colorado, another bakery from Oregon is again asking the Court to grant it special permission to refuse service to same-sex couples. The details of Klein v. Oregon Bureau of Labor and Industries are almost identical to the Masterpiece Cakeshop case.

As ThinkProgress previously explained, Aaron and Melissa Klein — owners of Sweet Cakes by Melissa — are asking for even more from the Court than Jack Phillips did last year. They argue that business owners have a right to discriminate based on their religious beliefs — against any group, not just on the basis of sexual orientation. A ruling along those lines would not only greatly undermine LGBTQ protections, but nondiscrimination protections for all vulnerable groups.

Transgender students

While the Alliance Defending Freedom (ADF) is not defending the Kleins as it did Phillips last year, the anti-LGBTQ hate group is still heavily involved in this year’s round of cases. In addition to defending the funeral home in the transgender employment case, ADF is also representing a group of families challenging a Pennsylvania school’s inclusive policies.

In Doe v. Boyertown Area School District, ADF contends that allowing transgender students to use restrooms and locker rooms consistent with their gender identity somehow violates the privacy of other students. As such, they’re asking for a mandate that schools segregate trans students to single-use restrooms. Like in the employment cases with Title VII, ADF is also asking the Court to rule that Title IX’s sex protections don’t extend to transgender students.

If the Supreme Court were to take all of these cases and the conservative majority were to prevail in them all, 2019 could look radically different for LGBTQ people. Nationwide, it’d become legal to fire them for who they are, to discriminate against them in schools, and to discriminate against them in public spaces — and several thousand transgender service members would lose their jobs.

For now, the Court is delaying making any decisions.

This article was originally published at ThinkProgress on November 27, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news.

Transgender guidance disappears from Office of Personnel Management website

Friday, November 23rd, 2018

Under President Obama, the Office of Personnel Management (OPM), which oversees all federal employees, issued detailed guidance protecting transgender people in the workforce. As of Friday, that guidance has disappeared and been replaced by generic language with no content specific to transgender people.

The previous “Gender Identity Guidance” page, which was still live as of earlier this week, laid out definitions for terms related to transgender identities, and outlined specific expectations for respecting transgender employees. These included ensuring that trans workers could dress according to their gender identity, that they were called by their preferred names and pronouns, and that they were allowed to use restrooms and locker rooms consistent with their gender identity.

“Transitioning employees should not be required to have undergone or to provide proof of any particular medical procedure (including gender reassignment surgery) in order to have access to facilities designated for use by a particular gender,” the guidance stated. “Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, located at an unreasonable distance from the employee’s work station, or that are inconsistent with the employee’s gender identity.”

On the new site, that language and any reference to transgender people is now gone, although the page does still state that discrimination on the basis of gender identity is prohibited — consistent with an executive order President Obama issued that is still in effect.

Gone, however, are the detailed definitions for the terms “gender identity,” “transgender,” “gender non-conforming,” and “transition.” Specific references to confidentiality related to transitioning have been replaced with generic language about medical privacy. The page’s dress code language no longer provides reassurances that employees will be allowed to dress consistent with their gender identity.

Before:

After:

Two vital sections have been erased without a trace: both the section on respecting employees’ names and pronouns and the section addressing access to “sanitary and related facilities.” There is no longer any guidance whatsoever to ensure that trans people are respected according to their gender identity in the federal government. Should a manager have questions about how to respond when an employee comes out as transgender, they will find no answers on OPM’s page.

The changes to the page came without any announcement or notice.

From the beginning of the Trump administration, federal agencies have increasingly erased content related to LGBTQ people or gender more broadly. The day after President Trump’s inauguration, the White House website discarded its page dedicated to LGBTQ rights and the Labor Department also removed a report on LGBTQ workers’ rights.

A few months later, questions that would help identify LGBTQ people in data collection were erased from two important national surveys. This past July, the Department of Health and Human Services removed language on sex discrimination from its website, and in October, it scrapped “gender” from its civil rights page. Recent reports have even suggested that the administration is trying to remove references to “gender” in United Nations documents.

While these unannounced website changes have been somewhat inconspicuous, the administration’s opposition to trans rights has been anything but subtle. A memo leaked in October laid out the administration’s plans to completely erase trans people from any recognition under any agency of the federal government. People would be defined solely by the sex they were assigned at birth, subject to genetic testing.

This article was originally published at ThinkProgress on November 23, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.”

Gay teacher says she suffered months of homophobic harassment with no end in sight

Tuesday, June 26th, 2018

A gay middle school English teacher, Amy Estes, said she had to take a mental health leave after student harassment grew more and more intense and her school did little to mitigate the problem.

It all began when a former student asked to stay in touch with her and followed Estes on Instagram. After Estes posted a photo of herself and her partner, the former student saw the photo and spread word to other students at Spring View Middle School in Rocklin Unified School District in California, Estes told ThinkProgress.

“So much of the conversation was negative and hurtful. It wasn’t like ‘She’s gay, that’s whatever,’ it was ‘Oh that’s gross. That’s disgusting,’” Estes said of the hurtful comments students posted about her online.

Estes said she experienced harassment, was told to take down a poster meant to help LGBTQ students feel safe, and felt that the administrators said LGBTQ student would need to adhere to requirements others did not.

Last September, a student approached her to tell her students were talking about her online. She informed the administration, but they minimized it as “middle school drama,” Estes said. She then had a conversation with a student who she believed was one of the most involved in the discussion of her sexuality online, at the suggestion of administration, but the student denied being involved. Estes said that student misbehaved several times in class that were unrelated to the harassment, and she reached out to his mother. But the mother accused of her of making it personal, Estes said.

“The tone of email was that I was retaliating against her child for something he didn’t do and that she had seen the things on Instagram and Snapchat and that was my private life, and how dare I rope her child into it?” Estes said. “And I was blindsided at that point. I didn’t realize how huge it had gotten. So I went to the administration again and still nothing happened. They basically said ‘OK we will deal with that parent from here on out but there is nothing we can do otherwise’ and I said ‘Well I think we should address this on a larger scale.’”

Estes said that since she shares English with a group of 120 students and three other teachers, she suggested that teachers have a conversation with the whole group to confirm that “Yes, I’m gay, and you figured it out. Here’s how we are going to deal with it.”

“The principal’s words exact words were ‘Well we don’t want you coming out unless it absolutely comes to that,’” Estes said.

Although to many Americans, there appears to be progress in visibility and legal protections for the LGBTQ community since same-sex marriage became the law in all 50 states in 2015 and films depicting queer relationships have flourished at award ceremonies, the reality is very different for queer and trans teachers. There is no federal law that gives specific protections to queer and trans workers. Only 20 states and Washington, D.C. have these protections for both queer and trans workers. California is among those states and public schools are required to teach LGBTQ history, but at Spring View, Estes still faced barriers to LGBTQ inclusion.

“There are students in my classroom that I know are queer and they’re seeing this, like, ‘Holy cow, this is happening to an adult. What would happen to me if I were out with my peers?

A 2017 Center for American Progress survey found that 36.5 percent of all people in the LGBTQ community surveyed hid a personal relationship and 62.9 percent of those who experienced some kind of discrimination hid personal relationships. In the workplace, LGBTQ people of color were more likely to hide gender identity and sexual orientation from employers than white people in the LGBTQ community. A 2017 report by the Harvard T.H. Chan School of Public Health, the Robert Wood Johnson Foundation, and National Public Radio found that one in five people in the community said they were discriminated against when being considered for a promotion, applying for a job, or looking for housing.

Estes’ experience is similar to other teachers who administrators failed to support when they were criticized by parents who disapproved of queer teachers being out in the classroom or simply acknowledging the existence of people in the LGBTQ community. Of course, one of the main differences is that Estes was outed and did not get the chance to control how people learned she is gay. But the lack of administration support once the information came out fits a pattern. A Texas elementary school teacher, Stacy Bailey, was suspended after she mentioned her wife to students. A Kentucky chorus teacher, Nicholas Breiner, lost his job a month after he came out as bisexual on Instagram, which he said he did to show LGBTQ students they are not alone. Breiner said the deputy superintendent questioned him about his sexual orientation. In 2015, a teacher read a book about two princes falling in love and dealt with significant parent backlash, but administrators did not have his back. Teachers have lost their jobs after getting married.

Estes said there is still a lot of fear among teachers in the LGBTQ community about being themselves in the classroom.

“I don’t want to categorize my district specifically at all but what I have heard from a number of teachers is that despite marriage equality being the law of the land there is still a lot of living in the shadows,” Estes said.

Estes added, “The idea that I could just offhand mention my partner and what our life is like to students — that isn’t something that just happens for gay teachers. It is a reality for many queer teachers that we might have certain legal rights but in terms of just being ourselves, I think there are a lot of unwritten rules. The assumption that my mentioning my female partner somehow that’s going to be turned into pressure for students to be gay or how-to course on gay culture.”

After harassment became worse, Estes took steps toward greater privacy on all of her personal social media accounts. But students found her professional social media and posted hateful language on a professional video on student discipline produced for her master’s program on school leadership, she said. Estes said she went to administrators again and worked on a plan for a lesson on tolerance, with administrative encouragement but without administrative help, to address the issue. Administrators didn’t approve of her approach and said they’d get back to her with revisions but didn’t. Months later, not long after a student made homophobic comments on a school project, and progress stalled yet again, she went to her union representative.

Estes said that after she went to various teachers union representatives who eventually referred her to a lawyer, she thinks some people in the community perceive her as out to make money, but she wants them to know she is doing this for the LGBTQ community.

“There are students in my classroom that I know are queer and they’re seeing this, like, ‘Holy cow, this is happening to an adult. What would happen to me if I were out with my peers?’” she said.

Thirty-three percent of LGBTQ students said they were physically harassed in the past year because of sexual orientation and 23 percent were physically harassed because of their gender, according to a 2014 survey from the Gay, Lesbian & Straight Education Network (GLSEN).

Estes said that, unrelated to the harassment issue, she mentioned the idea of starting a Gay Straight Alliance (GSA) to administrators. A GSA is a student-led group that gives students in the LGBTQ community a safe space to fully be themselves. Some schools have resisted GSAs after conservative residents and parents objected to the creation of these student-led groups. One school district’s board even considered eliminating all student groups simply to avoid the assertion that they were targeting a GSA.

Although it was not a requirement for other clubs to have administrators or counselors at meetings, Spring View said an administrator or counselor would have to be present at GSA meetings, she said.

In 2016, Estes also put up a GLSEN poster meant to affirm queer and trans students, but the school principal asked her to remove it. She followed orders. After that incident and other indications that staff may not be comfortable with talking about LGBTQ issues, Estes went back to the principal to talk about inclusion at the school. She said the principal said she would “see what the district has in mind” and in the 2017-2018 school year, she broached the issue again.

“I felt strongly that I should be able to hang up the safe space sign. So I went to principal again and said ‘I really need to hang this up’ and she said ‘I’ll look into it in the district and in the meantime don’t do anything until I have given you permission to do so’ and so I didn’t. I followed up with her and nothing happened. She never got back to me. When I approached her again, she said I’m still looking into it.”

After struggling with harassment and what appeared to be a lack of concern from administration on how to make LGBTQ teachers and students feel welcome, Estes, who has had anxiety and depression since her teens, took a mental health leave. She is still on that leave until she feels comfortable going back to work.

Community members have spoken in front of the school board to support Estes after the harassment she experienced for months. During the school board meeting earlier this month, school board president Todd Lowell said the Rocklin Unified School District will make sure that “all our students, staff and families feel welcome, safe and supported” and said Estes’ comments were one side of the story, according to ABC 10.

The Rocklin Unified School District said it could not answer all of ThinkProgress’ questions due to pending litigation. However, in response to a question about whether teachers in the LGBTQ community are expected not to be out in the classroom, Diana Capra, spokesperson for the district, responded, “The District has the same expectations of all its teachers.” When asked about the GSA issues Estes mentioned, Capra said, “While we can not comment regarding Ms. Estes specifically due to pending litigation, we can share with you there are Gay Straight Alliance groups at some of our secondary District schools. They are initiated through the regular process to start a student club.”

Capra added that its middle and high schools have wellness programs for students and staff and plan to include parent, guardian and staff resource nights around social emotional wellness strategies. She said it has sent administrators and staff to The Museum of Tolerance, which the district says help “better understand and support students and staff who are LGBTQ.” Capra said staff is implementing strategies for intervention in situations where people are being treated unfairly. The district will also roll out a plan for inclusivity in its schools “that involves engaging staff in examining belief systems and behaviors before it moves into adopting formal programs and strategies, in order to ensure enduring outcomes for our District so all students and staff feel welcome, safe and supported.”

Estes said she doesn’t want a punitive approach for students who participate in this kind of harassment. She said she wants consequences to be more in line with restorative practices that allow students to talk to each other about the hurt they’re experiencing and repair relationships. She has been working with a lawyer to reach an agreement with the school district but did not reach one at the time she spoke with ThinkProgress.
This article was originally published at ThinkProgress on June 26, 2018. Reprinted with permission. 
About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

Intertwined: The Labor Movement and LGBT Rights

Monday, June 25th, 2018

Through all the celebration of LGBTQ Pride this month, there’s been a valuable opportunity to reflect on the hard-fought victories, brutal setbacks, and tenacious struggles that have ultimately delivered so much for so many. And just as importantly, there has been time to think about what lies ahead in that fight for justice.

By the time I was elected president of the United Mine Workers of America in 1982, the fight for LGBTQ rights was already in full swing. Thirteen years after the Stonewall riots, activists were marching, shouting and organizing for the basic dignities they had been denied for so long. It was a groundbreaking movement for equal treatment in all the fundamental facets of life, from employment and housing to health care and personal safety.

These pioneers knew that change wasn’t simply going to be handed down from the halls of power or granted as an act of corporate benevolence. Change would only come when a diverse and united front stood together to demand it. In the face of unrepentant bigotry and blind loyalty to the status quo, grassroots organizing led the way forward.

It’s a basic principle that has always been at the heart of the labor movement. Progress, steadily gained, is fueled by the power of a mobilized community. Every victory in the fight against oppression has ultimately been achieved by that spirit of solidarity.

That’s certainly been true in the ongoing battle for justice on the job. From my first day in the coal mines of southwestern Pennsylvania, I knew that the only way to secure a brighter future was to lock arms and stand together. And that meant leaving no one behind.

That’s why we at the UMWA were so proud to help secure some of the earliest protections for same-sex couples in our members’ contracts, ensuring that all of our comrades had equal access to key benefits. We couldn’t afford to wait until it was popular.

And so unions offered a new refuge for gay workers. A place where full equality wasn’t just a mission, but an obligation.

Over the succeeding decades, LGBTQ Americans have won a flurry of progress. Public opinion shifted in favor of equality. Prominent figures, from sports to entertainment to politics, came out of the closet. Institutional disdain for the community gave way to unbending advocacy of justice. Trans rights were lifted up, the armed forces’ closet door was knocked down, and the constitutional right to marriage was unequivocally affirmed.

Perhaps no movement for social change has achieved so much so quickly. But even in a sea of rainbow flags—and even with marriage equality secured—there still remains too much of the discrimination endured by early protesters.

Today, you are free to marry who you love. But in most states, you can still be fired because of who you are. Unless, of course, you have the protection of a union contract.

The truth is that many of the fights left to be won are based on economic rights. They’re rooted in workers’ relationships with employers. The labor movement knows a thing or two about that.

The AFL-CIO’s constituency group Pride at Work continues to lead the way in advocating for the dignity of LGBTQ workers. The rights codified in so many union contracts over the years—from couples’ benefits to nondiscrimination to trans health care—have made headway that simply couldn’t have been gained otherwise.

For many LGBTQ Americans, a union card is their only form of employment protection. But more importantly, it signifies membership in a large and growing family ready to fight when it matters most.

That’s what the labor movement is all about. And it’s how the progress of tomorrow will be won.

So, here’s my ask for this Pride Month: Join a union. Check out Pride at Work and tackle the workplace challenges facing LGBTQ Americans the way this movement always has: Organize, organize, organize.

This blog was originally published at AFLCIO.org on June 26, 2018. Reprinted with permission. 

About the Author: Richard L. Trumka is president of the 12.5-million-member AFL-CIO. An outspoken advocate for social and economic justice, Trumka is the nation’s clearest voice on the critical need to ensure that all workers have a good job and the power to determine their wages and working conditions. He heads the labor movement’s efforts to create an economy based on broadly shared prosperity and to hold elected officials and employers accountable to working families.

Massive grocery chain is denying HIV prevention drugs to its employees — and it won’t explain why

Wednesday, January 31st, 2018

Publix, a massive grocery store chain across the southern U.S., is refusing to provide its employees coverage for the HIV-prevention medicine known as PrEP. According to a new report from TheBody.com, a Publix employee filed multiple appeals to have his PrEP prescription covered, but the company repeatedly refused, and the insurance company indicated it was because Publix did not want the medication covered.

PrEP (pre-exposure prophylaxis) is a daily pill that people who are HIV-negative can take that reduces the risk of contracting HIV by more than 90 percent. It has massive potential to help reduce infection rates. Last year, for example, clinics in London reported noticing a significant drop in new HIV infections among gay men, speculating that it was because many were taking PrEP. In the U.S., PrEP use has increased significantly in major cities, but less so in other parts of the country — particularly the South, where Publix operates. North Carolina, Georgia, and Florida (where Publix is based) ranked in the top ten states with the highest number of HIV diagnoses in 2016.

Publix’s refusal to cover PrEP was first reported back in 2016, but to this day, the company refuses to publicly explain why it denies coverage. It offered TheBody.com a brief statement describing its health plans as providing “generous medical and prescription coverage” and noting that “there are numerous medications covered by the plan used in the treatment of HIV.”

With no explanation available, many advocates are speculating that the company is imposing its moral authority, not unlike Hobby Lobby refusing to cover contraception for its employees. Cost doesn’t make sense as an explanation, because it would cost Publix far less to cover PrEP than it would the medications necessary if someone were to contract HIV.

The company is known for its conservative values. Its political action committee donates significantly more to Republican candidates than Democratic candidates, and CEO Randall Jones likewise favors Republicans with his donations.

Publix refuses to participate in the Human Rights Campaign’s Corporate Equality Index, which scores businesses on how they treat their LGBTQ employees and customers. It is conspicuously one of the only companies in the Fortune 1000 not to participate. In 2013, a company spokesperson reportedly claimed, “We are inundated with survey requests… and actually participate in very few due to the volume.” There have been, however, multiple reports of anti-LGBTQ discrimination at Publix stores.

Publix has 1,169 stores across seven states, employing some 188,000 workers.

This article was originally published at ThinkProgress on January 30, 2018. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students. He can be reached at zford@thinkprogress.org

Can federal workers blatantly discriminate against LGBTQ people? Jeff Sessions isn’t sure.

Wednesday, October 18th, 2017

During Wednesday’s Justice Department Oversight Hearing, Sen. Dick Durbin (D-IL) asked Attorney General Jeff Sessions about the Department of Justice’s new “religious freedom” guidance. In particular, Durbin was concerned about how the guidance might enable anti-LGBTQ discrimination, asking Sessions to respond to several hypotheticals.

“Could a social security administration employee refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse?” Durbin asked.

There was a long pause. “That’s something I never thought would arise, but I would have to give you a written answer to that, if you don’t mind.” Sessions responded.

Durbin countered, “I’d like to have that,” then launched right into another hypothetical. “Could a federal contractor refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts?”

“Likewise, but I would say to you — are you citing Title VII for this? Or the guidance? I’m not sure that’s covered by it, but I’ll look.”

It is highly unbelievable that Sessions had never considered these examples prior to Wednesday. More than two years ago, when he was still in the Senate, Sessions was one of the original co-sponsors of the First Amendment Defense Act (FADA), a bill that would grant those who have religious objections to same-sex marriage a license to discriminate. Many of the provisions in the new guidance mirror FADA’s language.

 In response to that bill’s introduction, the ACLU and LGBTQ advocacy groups pushed back, saying that it would be used to prop up discrimination. The ACLU, in particular, outlined FADA’s “parade of horribles” in a 2015 blog post, including the following two:
  • [It would] permit government employees to discriminate against married same-sex couples and their families – federal employees could refuse to process tax returns, visa applications, or Social Security checks for all married same-sex couples.
  • [It would] allow federal contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people or anyone who has an intimate relationship outside of a marriage.

Those are nearly identical to the hypotheticals Durbin asked Sessions to respond to on Wednesday. Still, years after they’d been highlighted by advocacy groups, Sessions claimed they had somehow never occurred to him before.

After Sessions’ dodged Durbin’s hypotheticals, the senator asked the attorney general to comment about the fact that “people are discriminating in the name of their own personal religious liberty.”

Sessions responded:

Yes, I would say that wherever possible, a person should be allowed to freely exercise their religion and not to carry out activities that further something they think is contrary to their faith. But at the same time, if you participate in commercial exchanges, you have limits on what you can do under those laws — public accommodation type laws. And so the balance needs to be properly struck — and I think we have. Those issues were discussed as we wrestled with this policy.

It’s unclear with whom Sessions discussed those issues. The Department of Justice apparently held “listening sessions”, but has refused to name which groups it consulted. The reason the public even knows these consultations took place at all is because the Alliance Defending Freedom — an anti-LGBTQ hate group that defends business owners who discriminate and challenges nondiscrimination protections in the name of “religious freedom” — bragged that it had participated in them.

Given Sessions said in an interview last week that he believes such discrimination should be allowed in the case of the anti-gay baker whose case is headed to the Supreme Court, it’s not hard to imagine how he might respond to Durbin’s hypotheticals, if pressed.

This article was originally published at ThinkProgress on October 18, 2017. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students. He can be reached at zford@thinkprogress.org.

Justice Department brief argues against protections for LGBTQ workers

Thursday, July 27th, 2017

On Wednesday evening, the Department of Justice moved to undermine rights for LGBTQ people to ensure they are treated fairly in the workplace. The department filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.

The federal law in question is Title VII, which is part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.

The case before the U.S. Second Circuit Court of Appeals, Zarda v. Altitude Express, centers on a now deceased skydiver. In 2010, Zarda said he was fired because of his sexual orientation. In April, the Second Circuit decided that it would not accept the argument that discrimination on sexual orientation isn’t permitted under Title VII. However, Lambda Legal requested that the ruling be reconsidered, which is why the Justice Department planned to file its amicus brief.

The power of the federal government to influence LGBTQ workplace rights can’t be underestimated, said Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress. ThinkProgress is an editorially independent news site housed in the Center for American Progress Action Fund.

“It is the Justice Department of the U.S. It’s not just anyone, so it’s definitely going to have a lot of weight because it is the position of the U.S. government, so it will be interesting to see how Second Circuit takes those arguments,” Gruberg said.

The role of Title VII in protecting lesbian, bisexual, and gay people against discrimination has been fuzzier than the issue of whether it can protect transgender people from discrimination. The U.S. Equal Employment Opportunity Commission recognized that Title VII protects transgender people from discrimination in 2012. In 2015, the agency also held that Title VII covers claims of discrimination on the basis of sexual orientation. But court decisions on sexual orientation protections have been mixed.

The strongest decision for the recognition of sexual orientation discrimination under Title VII was in Hively v. Ivy Community College, in which the Seventh Circuit held that sexual orientation was covered under sex discrimination in Title VII for three reasons. In that ruling, Chief Judge Diane Wood referenced Price Waterhouse V. Hopkins, a case that is commonly used to support sexual orientation as protected through Title VII by arguing that says sex discrimination includes sex stereotyping. If a stereotypical woman is considered to be heterosexual, then dating women is a failure to conform. Looking at it another way, if a woman were a man dating a woman she would not face discrimination; therefore she is facing discrimination because she is a woman. And yet another way to consider discrimination would to look at the matter of association. The Loving v. Virginia case found that discrimination based on association with someone of a different race is discrimination on the basis of race. In the case of sexual orientation, Wood used this “associational theory” to say that a refusal to promote someone based on their association with someone of the same sex qualifies as sex discrimination.

Gruberg said that with conflicting decisions from the courts, including a March 11th Circuit ruling that Title VII does not cover sexual orientation, and statements from judges such as Chief Judge Robert Katzmann of the Second Circuit U.S. Court of Appeals that discrimination on the basis of sexual orientation is likely covered under Title VII, the issue could come before the U.S. Supreme Court.

“There has been an indication last time they considered this, where Chief Katzmann noted that this is still a developing issue in courts and he felt that court should reexamine whether sex orientation discrimination is covered under Title VII, so it has been mixed,” Gruberg said. “We’re already at a circuit split so it’s something I am convinced is going to be in front of the Supreme Court soon.”

In the brief, the Justice Department noted in Hively, Judge Diane Sykes said sex as “common, ordinary usage in 1964” means “biologically male or female.” Gruberg, who commented before the brief was released, said it would not make sense for the department to address gender identity, given the courts’ past rulings.

“Courts have been much more willing to see that gender identity discrimination is straight up sex discrimination. That has not really been a question. Sexual orientation is a little bit [of a question], so it is shocking that DOJ would bring that [gender identity] up,” Gruberg said. “That is not as contested in federal courts and yet they are bringing it up as an assault on the idea that trans people have civil rights protections.”

Gruberg said that the department will likely take the most prevalent argument against including sexual orientation and say that the statute doesn’t explicitly mention sexual orientation.

“But it doesn’t say sex stereotyping either, and the courts ruled on that, and it doesn’t mention sexual harassment but we now see harassment as covered,” Gruberg said. “What it means under Title VII has been understood as far more broad than what Congress in 60s believed it meant… It is a willful disregard of the evolving definition of sex discrimination.”]

This article was originally published at ThinkProgress on July 26, 2017. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress.

Working People in Unions Stand with LGBTQ Brothers and Sisters Against Discrimination

Monday, April 18th, 2016

Image: Liz ShulerLet’s be clear about North Carolina’s H.B. 2 and other “bathroom laws” popping up in states that would bar transgender people from using the restroom facility of their identified gender: We won’t stand for it.

H.B. 2 not only discriminates against our LGBTQ brothers and sisters, but it also means employers can now fire anyone because of their religion, race, color, national origin, age, sex, disability or veteran status. North Carolina abolished 30 years of legal protections against workplace discrimination.

This law even bars cities and municipalities from passing legislation on nondiscrimination, paid leave, fair scheduling and raising the minimum wage.

Jerame Davis, executive director of Pride At Work, said:

In states desperately in need of jobs and infrastructure, lawmakers are focused on legalizing discrimination and harassing people in restrooms. It’s just astounding. Pride at Work condemns these regressive laws as well as those in other states, including those that are still pending. We also call upon Congress to swiftly pass the Equality Act at the federal level in order to nullify the injustice of these attempts to circumvent progress for the LGBTQ community.

North Carolina State AFL-CIO Secretary-Treasurer MaryBe McMillan said:

It’s crazy that at a time when our elected officials should be doing all they can to create jobs and get more people employed that they’re actually wasting taxpayer money to create a law that’s going to make it easier to discriminate and fire people. And, in the process, they’re driving business out of our state because these corporations don’t want to do business in a state that supports discrimination.

To put it simply, H.B. 2 and similar legislation mean more discrimination, weaker benefits, less safe workplaces and lower wages.

#WeAreNotThis

This blog was originally posted on aflcio.org on April 15, 2016. Reprinted with permission.

Liz Shuler was elected AFL-CIO secretary-treasurer in September 2009, the youngest person ever to become an officer of the AFL-CIO. Shuler previously was the highest-ranking woman in the Electrical Workers (IBEW) union, serving as the top assistant to the IBEW president since 2004. In 1993, she joined IBEW Local 125 in Portland, Ore., where she worked as an organizer and state legislative and political director. In 1998, she was part of the IBEW’s international staff in Washington, D.C., as a legislative and political representative.

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