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DOJ: Anti-gay discrimination perfectly OK under federal law

“A roadmap for dismantling years of federal protections”

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The Justice Department under Jeff Sessions rejected gay protections under Title VII of the Civil Rights Act of 1964. (Photo by Gage Skidmore; courtesy Wikimedia Commons)

The U.S. Justice Department has declared anti-gay discrimination is lawful under current federal civil rights law, filing an friend-of-the-court brief in a case of alleging employment discrimination.

In a 23-page brief, the Justice Department under U.S. Attorney General Jeff Sessions rejects the notion that sexual-orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the brief says. “Moreover, whatever this Court would say about the question were it writing on a blank slate, Congress has made clear through its actions and inactions in this area that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination. Other statutes and rules may prohibit such discrimination, but Title VII does not do so as a matter of law, and whether it should do so as a matter of policy remains a question for Congress to decide.”

The brief is signed by Chad Readler, acting assistant attorney general for the Civil Division; Tom Wheeler, acting assistant attorney general for civil rights; Deputy Assistant Attorney General Hashim Mooppan; and Justice Department attorneys Charles Scarborough and Stephanie Marcus.

The Justice Department brief was expected. Outside sources familiar with the department’s plan informed the Washington Blade earlier this week a brief would be forthcoming in a case alleging anti-gay workplace discrimination before the U.S. Second Circuit Court of Appeals.

However, the Justice Department was expected not only to reject the idea that anti-gay discrimination is covered under Title VII, but also transgender discrimination. The brief ultimately avoids the issue of discrimination based on gender identity, although its reasoning could apply to cases of transgender discrimination.

Although the Justice Department under the Obama administration never took an official view on whether sexual orientation discrimination is prohibited under Title VII, the brief effectively turn a Justice Department that once argued for protections for LGBT people into an institution that seeks to undermine them.

The reasoning in the brief contrasts with the determination of the U.S. Equal Employment Opportunity Commission, the independent agency charged with enforcing federal workplace civil rights laws. In 2015, the EEOC found in the case of Baldwin v. Foxx anti-gay discrimination constitutes sex discrimination under Title VII.

Case law that has determined Title VII bars workplace discrimination against lesbian, gay and bisexual people isn’t well developed, but some courts are reconsidering decisions made in past decades against protections based on sexual orientation.

The Seventh Circuit determined earlier this year in the case of Hively v. Ivy Community College that sexual orientation discrimination constitutes sex discrimination under Title VII, but the Eleventh Circuit came to the opposite view. Lambda Legal is preparing to submit a petition before the U.S. Supreme Court seeking a nationwide affirmation that anti-gay workplace discrimination is barred under current law.

At one point, the Justice Department brief mocks the Seventh Circuit for adopting the reasoning espoused by EEOC that anti-gay discrimination is sexual-orientation discrimination under current law.

“The Seventh Circuit majority in Hively largely adopted the EEOC’s theories,” the brief says. “These theories are inconsistent with Congress’s clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination. And even viewed solely on their own terms, none of these theories is persuasive.”

The brief is filed on the same day President Trump announced on Twitter he’d reinstitute the ban prohibiting openly transgender people from serving in the armed forces. Coupled together, the brief and the president’s tweets span actions enabling discrimination across the entire LGBT community.

The filing is just the view of the Trump administration and has no binding effect. Whether or not anti-gay discrimination will be considered lawful under Title VII is up the Second Circuit.

James Esseks, director of the ACLU’s LGBT and HIV Project, quipped upon review of the brief, “Trump and Sessions together have made it Anti-LGBT Day for the administration.”

“The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination,” Esseks added. “Fortunately, courts will decide whether the Civil Rights Act protects LGBT people, not an Attorney General and a White House that are hell-bent on playing politics with people’s lives.”

Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement after the brief was filed “attacks against the LGBTQ community at all levels of government” continue to happen under the Trump administration.

“In one fell swoop, Trump’s DOJ has provided a roadmap for dismantling years of federal protections and declared that lesbian, gay, and bisexual people may no longer be protected by landmark civil rights laws such as the Fair Housing Act, Title IX, or Title VII,” Warbelow said. “For over a decade, courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law. Today’s filing is a shameful retrenchment of an outmoded interpretation that forfeits faithful interpretation of current law to achieve a politically-driven and legally specious result.”

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U.S. Federal Courts

Ketanji Brown Jackson sworn in as 116th justice of the U.S. Supreme Court

“It has taken 232 years and 115 prior appointments for a black woman to be selected to serve on the Supreme Court of the United States”

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Screenshot/YouTube SCOTUS TV via the Associated Press

WASHINGTON – In oaths administered by the Chief Justice John Roberts and outgoing Associate U.S. Supreme Court Justice Stephen Breyer, Judge Ketanji Brown Jackson was sworn in as the 116th justice of the U.S. Supreme Court.

The 51 year-old Justice Jackson made history as the first-ever black woman sworn in as a justice on the U.S. Supreme Court. She replaces Justice Breyer, whose resignation from the Supreme Court becomes effective at noon Thursday (Eastern) after his nearly 28 years of service on the nation’s high court.

In the simple ceremony held at the Court, Jackson in the constitutional oath, given by Chief Justice Roberts, solemnly swore to defend the Constitution “against all enemies, foreign and domestic,” and “bear true faith and allegiance to the same.”

Justice Breyer gave her the statutory oath, in which Jackson swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

The newly sworn-in Associate Justice was joined by her husband, Dr. Patrick Jackson, and their two daughters, Talia and Leila.

The court will hold another formal inaugurating ceremony, called an investiture, in the fall, Roberts said. But Thursday’s ceremony allows her to immediately begin work as the newest member of the nine-seat Supreme Court.

Nominated by President Biden and confirmed by the Senate, in April at a ceremony on the South Lawn of the White House, addressing the audience of members of Congress, the Biden Cabinet, and White House staff along with family and invited guests, Justice Jackson noted;

“As I take on this new role, I strongly believe that this is a moment in which all Americans can take great pride. We have come a long way towards perfecting our union. In my family, it took just one generation to go from segregation to the Supreme Court of the United States.” 

As the first Black woman to be nominated to serve on the nation’s highest court which she noted in her remarks:

“It has taken 232 years and 115 prior appointments for a black woman to be selected to serve on the Supreme Court of the United States. But we’ve made it,” she said, to applause from the crowd. “We’ve made it, all of us, all of us. And our children are telling me that they see now, more than ever, that here in America anything is possible.“

Quoting Maya Angelou, an American author, poet and civil rights activist, “I am the hope and the dream of the slave,” Jackson said.

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U.S. Federal Courts

U.S. Supreme Court upholds Biden’s ability to enforce immigration laws

In its 5-4 ruling the high court said that the president may repeal the Trump-era ‘remain in Mexico’ policy

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Screenshot/YouTube NBC News

WASHINGTON – The U.S. Supreme Court Thursday upheld President Biden’s broad presidential powers to enforce the nation’s immigration laws and policies. In a 5-4 ruling the high court said that the president may repeal the Trump-era ‘remain in Mexico’ policy, which barred most Central American migrants from entering the United States to seek asylum.

Chief Justice John Roberts, joined by Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer and Brett Kavanaugh rejected arguments by Republican-led states in the case known as Biden v. Texas that were seeking to force the administration to keep the policy enacted under former President Trump.

The Chief Justice writing for the majority held that the decision to end it did not violate a 1996 migrant detention law and that a second memo terminating the program should have been considered by lower federal courts. 

In his opinion, Roberts overturned the ruling by the 5th U.S. Circuit Court of Appeals that forced border officials to revive the Remain in Mexico rules, formally known as the Migrant Protection Protocols this past December. The Chief Justice noted that the 1996 law which authorizes the program does not mandate U.S. Immigration and Customs Enforcement (ICE) officials to return migrants to Mexico, but allows them the option to do so. Roberts referenced use of the word “may” in the statute.

If Congress meant for the law to require asylum-seekers to be returned to Mexico, Roberts wrote, “it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term ‘may.'”

Justices Samuel Alito and Amy Coney Barrett filed separate dissenting opinions, parts of which were joined by Justices Neil Gorsuch and Clarence Thomas.

U.S. Senator Alex Padilla (D-Calif.), Chair of the Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety, released the following statement on the Supreme Court’s decision today in Biden v. Texas:

“Today’s Supreme Court decision correctly acknowledges the Biden administration’s authority to end the unlawful and cruel ‘Remain in Mexico’ program. For more than three years, this horrifying policy has denied asylum seekers their right to due process and subjected them to crimes like rape, kidnapping, and torture in northern Mexican border cities while they await their court hearings.

“I urge the Biden administration to do everything in its power to swiftly end ‘Remain in Mexico’ once and for all. Misguided and inhumane Trump-era policies like ‘Remain in Mexico’ and Title 42 have only decimated an already broken immigration system. We must keep working to restore the lawful processing of asylum seekers at the border, in keeping with America’s most deeply held values as a nation of immigrants.”

This is a developing story.

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Illinois

Exclusive: Chicago’s Out mayor describes Roe ruling as ‘gut punch’

Lori Lightfoot in 2019 became the first Black lesbian woman elected mayor of a major U.S. city, the nation’s third largest

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Chicago Mayor Lori Lightfoot (Photo courtesy of the Lori Lightfoot campaign)

CHICAGO – Mayor Lori Lightfoot on Monday said the U.S. Supreme Court ruling that overturned Roe v. Wade was a “gut punch.”

“It wasn’t a surprise,” she told the Washington Blade during an exclusive interview. “This had been a 50-year quest for people who don’t want to recognize our rights and want to take us back to 1950s America, when our community was pushed very decidedly into the closet because we didn’t have protections — we certainly didn’t have marriage. That was inconceivable back then.”

“We didn’t have protections on employment, on housing and the basic rights of citizenship that we’ve come to really embrace and expect as Americans,” added Lightfoot.

Lightfoot in 2019 became the first Black lesbian woman elected mayor of a major U.S. city.

She noted Justice Clarence Thomas in his concurring opinion in the Roe decision said the Supreme Court should reconsider its decision in the Obergefell, Lawrence and Griswold cases that guarantee marriage equality and the rights to private, consensual sex and access to contraception respectively.

“Fuck Clarence Thomas,” said Lightfoot on Sunday when she spoke at Chicago Pride.

“I woke up yesterday morning feeling pretty sad for all the reasons that you would expect,” she told the Blade on Monday. “It was still inconceivable that we are now living in an America where all of us who have been empowered to teach and live our own authentic lives are now at risk in this country by the stroke of a pen and a radicalized right-wing majority on the court with seemingly little regard of the consequences.”

Lightfoot said the ruling’s “immediate impact” will be on women in “red states” and “states that have trigger laws” that ban abortion. Lightfoot added women of color and low-income women will be disproportionately impacted.

“You got to play the long game here,” she said. “Clarence Thomas clearly signaled what his intent is, which is when you talk about reconsidering Griswold, that’s the right to contraception access. They talk about reconsidering Lawrence in Texas. We know what that is. Well really, are gay men going to be in a position where they have to worry about cops breaking into their bedroom and try to haul them off to jail by engaging in a natural act of intimacy between consenting adults?”

“We are very much in the target, and the sights of this right-wing mob that feels like the only way that they can exercise their power is by taking ours,” added Lightfoot.

‘We’re going to respect your rights’

Lightfoot in May announced a “Justice for All Pledge” after Politico published a leaked draft of the Roe decision.

Her administration and the Chicago Department of Public Health pledged an additional $500,000 to “support access to reproductive healthcare for Chicagoans and patients seeking safe, legal care from neighboring states that have or ultimately will ban abortion if the Supreme Court decides to strike down Roe v. Wade, as outlined in the leaked decision.” The “Justice for All Pledge,” among other things, reaffirms Chicago will “fight for the rights of all people regardless of race, color, sex, gender identity, age, religion, disability, national origin, ancestry, or sexual orientation.”  

“We will fight to ensure that no person will be attacked, assaulted, bullied, or discriminated against because of who they are, the choices they make regarding their bodily autonomy, or who they love,” reads the pledge.

“We have to be a beacon of light and hope across the country and particularly in the Midwest region,” said Lightfoot. 

She also encouraged LGBTQ people from Florida, Texas and other states that have passed homophobic and/or transphobic laws to consider moving to Chicago.

“We’re going to respect your rights,” said Lightfoot. “We’re going to allow you to live in an environment where you can live your true, authentic life without the worry of some radicalized right-wing legislature cutting off your rights. People have to start making choices.”

Lightfoot also challenged corporations to do more to support LGBTQ rights and their LGBTQ employees.

“Corporations have to start making choices,” she said. “All those nice little value statements on a corporate website, if you value your employees and their rights, you cannot be situated in states that are attacking everyone in our community.” 

“When you look at the fact that many of these states are attacking children and their families, that tells you there’s no floor, there’s no floor to which they will sink,” added Lightfoot. “It’s open season on us and we’ve got to respond.”

Mayor lacked role models ‘that looked like me’

Lightfoot lives in Chicago’s Logan Square neighborhood with her wife, Amy Eshleman, and their daughter.

She told the Blade that she met a transgender teenager from downstate Illinois during Chicago Pride. Lightfoot said she hugged her and her parents and she “just felt such joy.”

She said she “didn’t see any role models that looked like me” and “didn’t see a lot of gay and lesbian leaders on a national level or even at the local level” when she was younger. Lightfoot told the Blade in response to a question about how she feels about being the first Black lesbian mayor of a major U.S. city that there are now “so many more of us who are living our authentic lives.”

“One of the greatest gifts that we can give is to say to those young people, you’re going to be great,” she said. “Be who you are, embrace, embrace your authentic life. Because there’s always going to be a home for you. There’s going to be a village, a community that’s going to be supportive. That’s one of the things I think the most powerful statement that I can make as mayor, using my platform as mayor of the third largest city, to say to our young people, you’re always going to have a home here.”

Lightfoot earlier this month announced she is running for re-election in 2023.

Crime and the response to protests in the wake of George Floyd’s murder in 2020 are among the issues over which Lightfoot has faced criticism.

She referenced efforts to make “real meaningful, permanent progress on public safety that we are doing here in our city against a lot of different headwinds” and economic development in low-income neighborhoods as two of her administration’s accomplishments. Lightfoot said she decided to run for a second term because “the work’s not done.”

“We have been through a lot, as every major city in the country has in these last three years, but we’ve persevered and continued to do really good work on behalf of the people and made a lot of progress,” she said. 

“I liken it to being a gardener,” added Lightfoot. “You till the soil, you plant the seeds, you want to be around to reap the harvest. And I want to make sure that the work that we put in place, that those roots are deep and strong and they continue to bear fruit for years and years to come, long after I fade from the scene.” 

Lesbian super PAC again endorses Lightfoot

LPAC endorsed Lightfoot’s initial mayoral campaign. The super PAC that supports lesbian candidates has once again backed her. 

“I am just grateful that they are ready to re-up for round two,” said Lightfoot.

“When we are present in those corridors of power, we bring a life of experience that is different than traditionally the straight white men that have populated these corridors of power,” she added. “We show up and we show up importantly for our community and that is critically important.”

LPAC Executive Director Lisa Turner in a statement to the Blade praised Lightfoot.

“When I think of the Black LGBTQ leaders serving in office like Chicago Mayor Lori Lightfoot, I am filled with pride about the work LPAC has done to uplift women and support their campaigns,” said Turner. “We were the first national organization and LGBTQ organization to endorse Mayor Lightfoot in 2019, and we are proud to be the first again as she seeks re-election. LPAC’s unwavering support shows our commitment to not solely electing more LGBTQ women to office, but to elect LGBTQ women who represent the full diversity of our community.”

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