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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.

The Supreme Court hits pause on gay and lesbian rights

Monday, December 11th, 2017

For the second time in a week, the Supreme Court signaled on Monday that it may no longer be a friendly place for victims of discrimination on the basis of sexual orientation.

The Court announced Monday that it will not hear Evans v. Georgia Regional Hospital, a surprising decision given that the question presented in Evans — whether existing law banning discrimination “because of … sex” encompasses discrimination based on sexual orientation — is a subject of disagreement among federal appeals courts.

According to the Court’s own rules, the justices are especially likely to hear cases where “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” Maintaining the uniformity of federal law is one of the primary functions of the Supreme Court.

As a general rule, it is dangerous to overread the significance of the Court’s decision not to hear a particular case. Such denials of review are not decisions on the merits, and can sometimes reflect a quirky problem with an individual case — not that the justices are uninterested in resolving the issue presented by that case.

But the Court’s non-decision in Evans follows last week’s surprising oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where Justice Anthony Kennedy — the author of the Supreme Court’s landmark marriage equality decision — appeared unwilling to let the law treat homophobia as an evil akin to racism, sexism, or other forms of invidious discrimination.

Taken together, the two events suggest that Kennedy, who believes that all people have a fundamental right to marry, is not particularly interested in abolishing discrimination on the basis of sexual orientation writ large. Without Kennedy, moreover, the project of equality for the LGBTQ community is dead in the water at the Supreme Court.

A year-and-a-half ago, Kennedy’s marriage equality opinion in Obergefell v. Hodges seemed to suggest that gay rights litigators still had many significant victories ahead of themObergefell described sexual orientation as an “immutable nature.” And it highlighted the long history of harsh discrimination against people with same-sex attractions both by the government and private actors.

This language in the Obergefell opinion seemed significant because past Supreme Court decisions established that when a group has historically faced discrimination that bears “no relation to ability to perform or contribute to society,” and especially when they face such discrimination because of an “immutable” trait that they cannot control, any law which discriminates against that group must be treated with a great deal of constitutional skepticism.

A major purpose of the Fourteenth Amendment is to eradicate institutionalized racism and government discrimination that is similar in character to racism, and Kennedy’s Obergefell opinion strongly signaled that discrimination on the basis of sexual orientation meets this test.

Perhaps emboldened by these signals in Obergefell, the United States Court of Appeals for the Seventh Circuit held last April that the existing ban on sex discrimination by employers prohibits discrimination on the basis of sexual orientation. In an 8-3 decision joined by several Republican-appointed judges, the Seventh Circuit explained in Hively v. Ivy Tech Community College that discrimination against a lesbian employee is itself a form of sex discrimination. Being a woman attracted to women “represents the ultimate case of failure to conform to the female stereotype.”

On the day Hively was handed down, there was good reason to believe that the Supreme Court would follow the Seventh Circuit’s lead. Kennedy’s opinion in Obergefell suggested that he believes that discrimination on the basis of sexual orientation is both morally and legally similar to sexism. And eliminating private discrimination against gay, lesbian, and bisexual employees was the next logical step for LGBTQ rights litigators after their victory for marriage equality.

Now, however, that project is stalled. The Supreme Court’s decision not to take the Evans case leaves Hively in place, but it also leaves in place decisions in several other federal judicial circuits holding that it is perfectly legal to fire someone because they are gay. Kennedy’s questions in the Masterpiece Cakeshop case, moreover, suggest that he may even be willing to roll back existing protections for such workers.

At last Tuesday’s oral argument, Kennedy was outraged by a Colorado state commissioner who said — accurately — that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history.” He also accused the state of not being “tolerant” or “respectful” of the religious beliefs of a baker who refused to serve a same-sex couple in violation of Colorado’s anti-discrimination law.

Kennedy, in other words, appeared to think that laws banning discrimination on the basis of sexual orientation must bend to the will of people who claim a religious justification for their prejudices — or, at least, that state officials who wish to enforce these laws must walk on eggshells to avoid offending people on the religious right.

Rather than extending civil rights protections to gay, lesbian, and bisexual workers throughout the country, Kennedy now appears more likely to roll back existing protections in states that already ban discrimination on the basis of sexual orientation. The momentum towards equality is currently paused, but it may soon move in reverse.

This article was originally published by Ian Millhiser on December 11, 2017. Reprinted with permission. 

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

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.

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.

Federal appeals court holds workers can’t be fired for being gay

Wednesday, April 5th, 2017

With a lopsided majority joined by a bipartisan coalition of judges, the United States Court of Appeals for the Seventh Circuit held on Tuesday that discrimination on the basis of sexual orientation violates federal civil rights law, at least in the context of the workplace.

The court telegraphed in an order last October that Hively v. Ivy Tech Community College was likely to be a victory for victims of discrimination in the workplace. The final vote in the case, however, is a bit more surprising.

Eight of the Seventh Circuit’s judges joined Tuesday’s opinion, including Republican appointees Richard Posner, Joel Flaum, Frank Easterbrook, Ilana Rovner, and Kenneth Ripple. Only three judges dissented.

The case involves Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of an employee’s “sex.” Though Title VII contains no explicit statement that discrimination on the basis of “sexual orientation” is prohibited, two crucial Supreme Court precedents inform Chief Judge Diane Wood’s majority opinion in Hively.

The first is Price Waterhouse v. Hopkins, which established that Title VII’s ban on sex discrimination is violated when an employee faces discrimination due to gender stereotyping. Thus, in that case, a female accountant could allege illegal discrimination if she was denied a partnership because her superiors deemed her too masculine. (One partner told her to take “a course at charm school.” Another deemed her too “macho.”)

One of the the core insights of Chief Judge Wood’s decision in Hively is that, because she is a lesbian, “Hively represents the ultimate case of failure to conform to the female stereotype.” Stereotypical women enter into romantic and sexual partnerships with men. Hively defies this stereotype by engaging in such relationships with women. So presuming that she must prefer relations with men is itself a form of gender stereotyping forbidden by Hopkins.

Wood’s opinion also offers several other reasons why sexual orientation discrimination should be understood as a form of sex discrimination. Indeed, as Wood explains, this case is actually pretty straightforward. “Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her,” Wood writes. If this claim proves to be true, then it “describes paradigmatic sex discrimination.”

In reaching this conclusion, Wood acknowledges that the lawmakers who drafted the Civil Rights Act of 1964 probably did not expect it to be used this way. But the conclusion that Title VII can be read more expansively than its drafters anticipated was embraced by Justice Antonin Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services.

Oncale was a case of male-on-male sexual harassment, something that, as Scalia wrote, “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But so what?

As Scalia explained, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

A prohibition on discrimination “because of . . . sex” was expansive enough to cover male-on-male sexual harassment in Oncale. And it is big enough to encompass discrimination on the basis of sexual orientation. So holds the Seventh Circuit in Hively.

As Wood notes in her opinion, “for many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation.” Hively is now an outlier, and the Supreme Court typically takes up cases where the federal appeals courts disagree. It is all but certain to take up this case.

That means the fate of gay and bisexual workers is likely to rest with Justice Anthony Kennedy, a conservative who often provides the fifth vote in favor of gay rights. Whether Kennedy does so in this case remains to be seen—though the lopsided vote in Hively should be an encouraging sign for supporters of LGBT rights.

This blog originally appeared in ThinkProgress.org on April 4, 2017. Reprinted with permission.

Ian Millhiser is the Justice Editor at ThinkProgress. He is a skeptic of the Supreme Court, hater of Samuel Alito, and a constitutional lawyer of ill repute. Contact him at  imillhiser@thinkprogress.org.

Trump revokes executive order, weakens protections for LGBT workers

Wednesday, March 29th, 2017

An executive order President Trump signed Monday rescinded an executive order President Obama implemented that would have required companies that contract with the federal government to provide documentation about their compliance with various federal laws. Some have argued that this will make it harder to enforce the LGBT protections President Obama implemented for employees of federal contractors—as well as many other protections those workers enjoyed.

Trump rescinded the Fair Pay and Safe Workplaces order, also known as Executive Order 13673, that President Obama issued in 2014. That order required companies wishing to contract with the federal government to show that they’ve complied with various federal laws and other executive orders. Notably, Obama issued that order in tandem with Executive Order 13672, which prohibited contractors from discriminating on the basis of sexual orientation or gender identity.

Executive Order 13673 was enjoined by a federal judge in Texas back in October, but had it been implemented, it would have improved accountability for businesses that contract with the federal government. Enforcement of 13672, the LGBT protections, does not require this order, but would have been stronger with it. Whatever its fate in court may have been, it’s now gone forever.

LGBT people are particularly vulnerable to discrimination, even with 13672 still in place. Obama’s LGBT executive order amended previous presidential orders that also protected the employees of contractors on the basis of race, color, religion, sex, national origin, disability, and age, but all of those other categories are also afforded protection under various federal laws (the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act). Sexual orientation and gender identity are the only identity categories without explicit nondiscrimination protections under federal law, and fewer than half the states offer LGBT protections at the state level. That means Obama’s executive order is the only legal force protecting over a million workers.

Camilla Taylor, senior counsel at Lambda Legal, was the first to raise concerns that this change would impact the LGBT community. As she explained to Keen News Service, “It’s sending a message to these companies…that the federal government simply doesn’t care whether or not they violate the law.”

National Center for Lesbian Rights Executive Director Kate Kendell also said in a statement, “President Trump’s quiet take-down yesterday of federal safeguards against employment discrimination for millions of LGBT Americans is yet another example of why our elected officials, advocates, and our community must remain vigilant and continue working together to stop this administration’s regressive and harmful policies.”

When a draft of a “religious freedom” executive order that would have licensed discrimination against LGBT people was circulating, the White House tried to stir up some positive press by promising that it would “leave in place” Obama’s 2014 order protecting LGBT workers.

“President Trump continues to be respectful and supportive of LGBTQ rights,” the statement read. The New York Times’ Jeremy Peters fell over himself to praise the statement for using “stronger language than any Republican president has before in favor of equal legal protections for gay lesbian, bisexual, and transgender people.”

It’s not a surprise, however, that Trump is walking back other executive orders that weaken the LGBT protections. Trump promised to undo all of Obama’s executive orders.

That “religious freedom” executive order hasn’t gone away either. A month after the draft leaked and the White House assured LGBT people it wasn’t signing it at that time, White House Press Secretary Sean Spicer told The Heritage Foundation’s Daily Signal that it was still coming. “I think we’ve discussed executive orders in the past, and for the most part we’re not going to get into discussing what may or may not come until we’re ready to announce it,” he said at the time. “So I’m sure as we move forward we’ll have something.”

This article was originally posted at Thinkprogress.org on March 29, 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.

Federal judge concludes transgender worker can sue for sex discrimination

Wednesday, December 21st, 2016

A federal court in Kentucky is allowing a transgender workplace discrimination suit to proceed, recognizing that mistreatment in regards to gender identity constitutes illegal discrimination on the basis of sex.

Plaintiff Mykel Mickens sued General Electric Appliances (GE) for harassment and disparate treatment in the workplace. He was not permitted to use the men’s restroom, so he had to use a facility much farther away from his work station, and he was then disciplined for how long his breaks were to accommodate that journey. Mickens also had a conflict with an employee, but though GE addressed a complaint one of his white, female colleagues had with that employee, his complaint went unaddressed. He says that when he disclosed that he was transgender to his supervisor, he was singled out and reprimanded for conduct no one else was reprimanded for, and when he reported the harassment, GE said there was nothing it could do.

Federal Chief Judge Joseph McKinley, a Clinton appointee, concluded that there was significant evidence to bring a discrimination case for race and gender discrimination. He agreed there is precedent that punishing an employee for failing to conform to gender stereotypes can qualify as gender discrimination under Title VII. “Significantly,” he wrote, “Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female [sic] should look and act like.”

McKinley noted that several court cases, including G.G. v. Glouchester County School Board?—?currently before the Supreme Court?—?could impact future trans discrimination suits. In the meantime, however, “what is clear is that the Plaintiff’s complaint sufficiently alleges facts to support discrimination or disparate treatment claims based upon race and gender non-conformity or sex stereotyping.”

GE did not comment directly on the suit but reaffirmed in a statement its commitment to “creating, managing and valuing diversity in our workforce” and “ensuring that our workplace is free from harassment.”

McKinley’s ruling isn’t an automatic victory for Mickens, but it is a sign of progress for those seeking the justice system’s protection for discrimination against transgender people.

Just last week, a transgender man in Louisiana won his discrimination complaint against his employer through arbitration. Tristan Broussard involuntarily resigned from the financial services company he worked for when he was intolerably forced to “act and dress only as a female.” He was awarded more than a year’s salary as well as additional damages for emotional distress.

The Obama administration has extended protections to transgender people in various ways, including advocating for their civil rights in employment discrimination cases. Many advocates worry the Trump administration will roll back these protections and abandon support for these plaintiffs, if not take an antagonistic position against their discrimination claims.

A recent massive survey of transgender people found that 16 percent had lost a job due to being transgender, and 27 percent had either been fired, denied a promotion, or not been hired due to being transgender.

This article was originally posted at Thinkprogress.org on December 13, 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.

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
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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.

A governor just sued his own attorney general over LGBT employment protections

Wednesday, October 5th, 2016

pphlnood_400x400The attorney general said he wasn’t going to stop blocking contracts unless he was sued, so the governor sued.

Louisiana’s governor just sued its attorney general over whether lawyers the state hires should be allowed to discriminate against LGBT people.

If that sounds odd, that’s because it is. And though there’s an easy moral answer to the conundrum, the legal answer might be far more complicated.

Gov. John Bel Edwards (D) was elected last year to succeed Bobby Jindal (R). One of the first things he did when taking office was reverse Jindal’s anti-LGBT policies, including Jindal’s executive order allowing businesses to discriminate against same-sex couples without any consequence from the state. Edwards then issued his own executive order protecting state workers and contractors from discrimination on the basis of sexual orientation and gender identity. It was nearly identical to President Obama’s 2014 executive order protecting LGBT federal employees and contractors, as well as Louisiana gubernatorial executive orders protecting LGB state employees that were in place before Jindal rescinded them in 2008.

But despite both the state and federal precedent for such executive action, Attorney General Jeff Landry (R) wasn’t having it. Prompted by anti-LGBT lawmakers opposed to both Edwards’ executive order and the Obama administration’s guidance protecting transgender students, he issued an eight-page opinion in May declaring that neither was legally enforceable in the state.

“The brief answer is an Executive Order cannot expand or create state law,” Landry wrote. “‘Gender identity’ is not and has never been a legally protected class under state or federal anti-discrimination laws.” He insisted that the order protecting LGBT employees “should be interpreted as merely aspirational and without any binding legal effect.”

Even giving Landry the benefit of the doubt that he was just trying to check the power of the executive, his own anti-LGBT biases are not in doubt. He also said that the federal transgender guidance “creates an environment in which children may be more easily exposed to sexual predators.” Rules simply affirming transgender students’ identities “place the mental well-being and privacy rights of ninety-nine percent of Louisiana’s children at risk without any demonstrable evidence of benefit to the less than one percent of the population this policy purports to benefit.”

For the past four months, Landry and Edwards have engaged in this standoff, warring over state legal contracts. Edwards keeps including LGBT nondiscrimination language in proposed contracts with private lawyers, and Landry keeps blocking them specifically because of this language. He hasblocked at least 37 contracts, including 11 from the Department of Insurance. Defending his actions, Landry’s office has asserted, “The Attorney General requires antidiscrimination clauses in legal contracts to be written in conformity with State and Federal law, therefore, these provisions should not contain language exceeding what the law requires.”

Matthew Block, general counsel for the Edwards administration, explained last week that these blocked contracts are starting to have a big impact on the management of the state. “We have a lot of things that need to get attended to and we need to have people doing their work,” he told NOLA.com. “I have law firms not getting paid for the work that they are doing. I have law firms that are waiting around to start work.”

1-ttjhkebbo9sxiijhid_lyaSo on Friday, Edwards sued Landry in state court. At a press conference Friday, he was pretty blunt about the standoff. “He basically told me that if I wanted him to approve those contracts that I would have to sue him,” Edwards said. “So I’m obliging him on that.”

The lawsuit states that Landry “has refused to perform the ministerial task of approving private contracts and appointing private counsel for numerous executive agencies of the State.” He has “explicitly rejected most of the contracts on the grounds that the contracting attorneys should not have agreed not to discriminate in employment and the rendering of services” in accordance with the executive order. In other words, the lawyers who would be impacted by the LGBT protections have already agreed to them, but Landry has still denied the contracts because that language is in them.

The conflict is spurring some interesting political divisions. For example, Louisiana Senate President John Alario (R), voted against LGBT nondiscrimination protections in the legislature, but he told NOLA.com that he believes the governor isn’t overstepping his authority. It’s Landry, he said, who he thinks “is stepping out of bounds.”

Landry has stood by his actions, saying in an interview that he looks forward to “defending the legislature and their priorities and their wishes.” He added that he believes the protections create “additional liabilities and expenses for the state,” but refused to answer questions about his own position on protecting LGBT people from discrimination.

It will now be up to the state courts to resolve the conflict, or at least to interpret whether Landry is within his authority as attorney general to rebuff the executive order. It could, however, be the first time that a court weighs the validity of an executive order that protects workers from discrimination.

But Louisiana is hardly an outlier for the actions Edwards took. There are 12 other states that, through executive order or similar administrative regulation, extend employment protections to state employees on the basis of sexual orientation or gender identity that exceed protections under state law. And of course, past Louisiana governors protected sexual orientation without having to sue their attorneys general to enforce them.

This article was originally posted at Thinkprogress.org on October 5, 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.

 

House Republicans stand strong for anti-LGBT discrimination in the wake of Orlando shootings

Thursday, June 23rd, 2016

LauraClawsonLGBT people may be able to marry, but in many states they can also be fired or not hired because they’re LGBT. And House Republicans are fighting to keep that from changing.

President Obama’s executive order banning federal contractors from discriminating on the basis of sexual orientation or gender identity went into effect in 2015. Democratic Rep. Sean Patrick Maloney has been trying to get the House to pass an amendment backing up that executive order, but House Republicans are not having it. They’ve beenfighting to keep allowing employers to discriminate against LGBT workers even if they get federal money, and they’re not stopping now.

The House Rules Committee blocked Maloney’s amendment from getting a full House vote. Again, we’re talking about something saying that if you want federal money, you can’t discriminate. And context matters here:

Maloney argued that allowing a vote to prohibit discrimination in the workplace after the targeted attack on the gay nightclub would send a message of solidarity with the LGBT community.

“It’s hard to imagine that any act that is so horrific could lead to anything positive. But if we were going to do anything, it would be a very positive step to say that discrimination has no place in our law and to reaffirm the president’s actions in this area,” Maloney told The Hill. “Seems to me a pretty basic thing to do.”

Sorry, make that—context should matter here. But House Republicans have made it clear that there’s no context that would stop them from enabling discrimination.

This blog originally appeared at DailyKos.com on June 15, 2016. Reprinted with permission. 

Laura Clawson has been a Daily Kos contributing editor since December 2006. Labor editor since 2011.

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