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DOJ dodges on whether Supreme Court should review trans protections

But DOJ disagrees with court ruling for trans funeral home worker

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Kirby v. North Carolina State University, Supreme Court, gay news, Washington Blade

The Justice Department calls on the Supreme Court to act on transgender protections.(Washington Blade file photo by Michael Key)

Days after an explosive New York Times report revealing the Department of Health & Human Services is planning to define transgender people out of existence, the Trump administration is sidestepping a question before the U.S. Supreme Court on whether justices should take up a case to review whether the term “sex” under federal laws applies to transgender people.

The U.S. Justice Department took the position Wednesday in a filing responding to a petition from Alliance Defending Freedom, an anti-LGBT legal group, calling on the Supreme Court to reverse a decision from the U.S. Sixth Court of Appeals finding transgender protections under Title VII of the Civil Rights Act of 1964.

The case involves Aimee Stephens, a transgender worker at Harris Funeral Homes in Michigan who was terminated from her position after she announced she would transition on the job. Although the district court agreed employers could terminate Stephens based on religious freedom principles under the Religious Freedom Restoration Act, the Sixth Circuit reversed.

U.S. Solicitor General Noel Francisco took the position for the Justice Department as a representative for the U.S. Equal Employment Opportunity Commission, which initially brought the complaint on behalf of Stephens.

Instead of either calling on the court to accept or reject the petition, the Justice Department asserts the Supreme Court should first make a decision on two petitions requesting clarification on whether sexual orientation discrimination is sex discrimination and therefore unlawful under Title VII.

“If the court were to grant the petitions in Zarda, Bostock, or both to resolve that conflict, its decision may bear on the questions petitioner raises concerning gender-identity discrimination and thus may bear on the proper disposition of the petition in this case,” the brief says. “The question presented in those cases is distinct from the issues petitioner raises here, but analysis of the issues may overlap.”

In the event the Supreme Court decides to reject the petitions in the Zarda and Bostic cases, the Justice Department argues it “would be appropriate to deny review of the questions presented in this case at this juncture.”

Nonetheless, the Justice Department filing asserts the United States “disagrees with the court of appeals’ decision” in the Sixth Circuit finding transgender protections under Title VII.

“In any event, the court of appeals’ conclusion that gender-identity discrimination categorically constitutes sex discrimination under Title VII is incorrect,” the filing says. “As discussed above, the ordinary meaning of ‘sex’ does not refer to gender identity…The court’s position effectively broadens the scope of that term beyond its ordinary meaning. Its conclusion should be rejected for that reason alone.”

It takes a vote of four justices to issue a writ of certiorari, or agree to take up a case. It remains to be seen whether the Supreme Court will grant in this case, especially with newly seated U.S. Associate Justice Brett Kavanaugh on the bench.

If the Supreme Court were to take up the case and deliver a ruling against transgender protections, it would defy decades of case law from lower courts finding laws against sex discrimination also prohibit anti-trans discrimination.

However, the Supreme Court could take up the case and affirm transgender protections nationwide, which would make the Trump administration’s argument transgender people aren’t protected under current law even more tenuous. Such a decision may well prompt the administration to enforce federal laws against sex discrimination to bar anti-trans discrimination.

Countering the Justice Department brief was a filing from the American Civil Liberties Union, which has intervened in the case to represent Stephens.

The brief argues the Supreme Court shouldn’t take up the case because of massive case law asserting laws against discrimination, including Title VII, protect transgender people and because issues presented by Alliance Defending Freedom in this case weren’t adjudicated by lower courts.

“Every circuit court to address whether transgender people may state claims for discrimination based on gender non-conforming appearance and behavior after Price Waterhouse has agreed that they may — not only under Title VII, but also under other provisions of federal law that similarly prohibit sex discrimination,” the brief says.

James Esseks, director of the LGBT project at the ACLU, said even though the Justice Department declined to outright say the Supreme Court should take up the case, the Trump administration’s anti-trans view is clear.

“While the department didn’t expressly call for the court to grant review in Aimee’s case, its sharp critique of the appeals court ruling still sends a clear message to the court that the administration doesn’t support transgender equality,” Esseks said.

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Transgender immigrant activists march to White House

Marchers demanded end to ICE detention of trans, HIV-positive people

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Transgender immigrant activists who marched to the White House on June 23, 2021, stand in the intersection of 16th and H Streets, N.W., near Black Lives Matter Plaza. (Washington Blade photo by Michael Key)

WASHINGTON — More than 100 people marched to the White House on Wednesday to demand the Biden administration end the detention of transgender people and people with HIV/AIDS in U.S. Immigration and Customs Enforcement facilities.

Casa Ruby CEO Ruby Corado and other marchers left National City Christian Church in Thomas Circle after organizers held a “funeral” for three trans women — Roxsana Hernández, Victoria Arellano and Johana “Joa” Medina Leon — who died while in ICE custody or immediately after the agency released them.

Hernández, a trans woman with HIV from Honduras, died in a hospital in Albuquerque, N.M., on May 25, 2018, while in ICE custody. Arellano, a trans woman with HIV from Mexico, passed away at a hospital in San Pedro, Calif., while in ICE custody.

ICE released Medina, a trans woman with HIV from El Salvador, from its custody on May 28, 2019, the same day it transferred her to a hospital in El Paso, Texas. Medina died three days later.

Hernández’s family has filed a lawsuit against the federal government and the five private companies that were responsible for her care.

Isa Noyola, deputy director of Mijente, one of the immigrant advocacy groups that organized the march, emceed the “funeral.” Noyola played a message that Hernández’s nephew in Honduras recorded.

“The state does not recognize our humanity,” said Noyola, who became emotional at several points during the service.

A press release that announced the events said 25 trans women who had previously been in ICE custody participated. They, along with other participants, blocked traffic at the intersection of 16th and H Streets, N.W., near Black Lives Matter Plaza for several minutes before they marched into Lafayette Square.

March participants also carried three pink coffins that represented Hernández, Arellano and Medina. They propped them up on a security fence along Pennsylvania Avenue before they staged a die-in.

The march took place a week after Mijente and seven other immigrant advocacy groups in a letter to Homeland Security Secretary Alejandro Mayorkas and acting ICE Director Tae Johnson demanded the release of all trans people and people with HIV who are in immigrant detention facilities.

The White House on Tuesday announced asylum seekers who saw their cases closed under the previous administration’s “Remain in Mexico” policy will be allowed to enter the U.S. in order to pursue them. Vice President Kamala Harris, who traveled to Guatemala earlier this month, has also acknowledged anti-LGBTQ violence is one of the “root causes” of migration from Central America’s Northern Triangle.

‘Our only crime is to seek opportunities, to seek refuge’

Li An “Estrella” Sánchez, a trans woman from Mexico’s Veracruz state who the U.S. has granted asylum, is among those who participated in the march.

She told the Los Angeles Blade during an interview in Lafayette Square after the march that she spent 13 months in ICE custody at three Georgia detention centers — the Atlanta City Detention Center, the Irwin County Detention Center and the Stewart Detention Center — before her release in 2013. Sánchez, who founded Community Estrella, an Atlanta-based organization that advocates for ICE detainees who identify as LGBTQ, said she and other trans ICE detainees face inadequate access to health and solitary confinement, among other things.

“I know first hand what they felt,” said Sánchez, referring to the three trans women who died in ICE custody or immediately after their release. “I wouldn’t wish it upon my worst enemy to be in a jail.”

“Our only crime is to seek opportunities, to seek refuge, to seek protection, to seek security,” she added.

Sánchez also had a message for President Biden.

“Listen, because the people are continuing the fight,” said Sánchez. “You have promised to support the LGBT community and you are really forgetting the immigrant community.”

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Chaos erupts at Virginia school board meeting over trans students rights

Two people arrested, two others injured

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Screenshot via WJLA ABC 7 News Washington

LEESBURG, Va. — The Loudoun County School Board abruptly ended its meeting Tuesday as chaos erupted after parents who were against the school district’s implementation of Policy 8040 failed to observe rules regarding disruptions and decorum.

Loudoun Now reports Vice Chair Atoosa Reaser made the motion to curtail public comment about an hour after that portion of the meeting began. A brawl then broke out between members of the public, and Loudoun County Sheriff’s Department deputies were called to clear the room. 

Two people were arrested, and two people also suffered minor injuries. The names of those who were taken into custody and injured have not been made public.

The school board resumed its meeting at 6:30 p.m. after it ended the public comment session and deputies cleared the room. The school board entered into closed session to meet with legal counsel and discuss negotiations involving a bid award.

In light of the events that transpired at the school board meeting, a group of LGBTQ groups in neighboring Fairfax County in a statement called upon prominent community members to condemn the anti-transgender hate in Loudoun County.

“A coalition of organizations based in Northern Virginia is calling on local officials … to condemn the rise of anti-LGBTQIA+ hate, in particular animosity towards transgender and gender-expansive students, on display in Loudoun County,” reads the statement 

“In addition, the coalition is asking for the denouncement of support for this hate from other local groups, including the Fairfax County Republican Committee, the Family Foundation of Virginia and the Family Research Council,” it adds. “Finally, the members of these organizations are requesting visible displays of support for LGBTQIA+ students, particularly trans and gender-expansive students, in both words and deeds.”

More than 300 people attended the school board meeting, with many of them opposing Policy 8040 which would allow transgender students to use their preferred name and pronouns regardless of the name and gender in their permanent education record. The proposed policy would also not require them to provide any substantiating evidence.

Parents also expressed their support for Policy 8040 during the public comment session.

They spoke in favor of inclusivity and equality in the Loudoun County School District.

Parents who were against the policy cited the need to respect biology and privacy as their arguments. In addition, some speakers, including former state Sen. Dick Black expressed anger at the previous school year’s events such as the suspension of physical education teacher Tanner Cross after he refused to refer to trans students using their preferred pronouns.  

“The crowd repeatedly cheered public speakers who lashed out at school board members and denounced the plan that would provide bathroom and locker room access based on a student’s gender identity,” WTOP News reports.

Only 51 of the 249 speakers who had signed up for public comment ended up speaking before Reaser’s motion was passed.

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Louisiana Governor John Bel Edwards vetoes trans youth sports bill

Discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana

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Louisiana Governor John Bel Edwards (D) (Official state portrait)

BATON ROUGE – Louisiana’s Democratic Governor John Bel Edwards announced Tuesday that he has vetoed a measure that would have barred trans girls and women from participating on athletic teams or in sporting events designated for girls or women at elementary, secondary and postsecondary schools. 

The measure, Senate Bill 156 authored by Sen. Beth Mizell titled the ‘the Fairness in Women’s Sports Act,’ in the Governor’s eyes, “was a solution in search of a problem that simply does not exist in Louisiana,” Edwards said in his veto statement;

“As I have said repeatedly when asked about this bill, discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana. Even the author of the bill acknowledged throughout the legislative session that there wasn’t a single case where this was an issue. 

Further, it would make life more difficult for transgender children, who are some of the most vulnerable Louisianans when it comes to issues of mental health. We should be looking for more ways to unite rather than divide our citizens. And while there is no issue to be solved by this bill, it does present real problems in that it makes it more likely that NCAA and professional championships, like the 2022 Final Four, would not happen in our state. For these and for other reasons, I have vetoed the bill.”

The Baton Rouge Advocate newspaper’s State House reporter, Blake Paterson, noted that [the law] would have required athletic teams or sporting events for women at public institutions be composed only of “biological females,” or those who presumably were listed as female on their birth certificates.

The measure won Senate approval 29-6 and cleared the House 78-19. Those margins are wide enough to override a governor’s veto, though it’s unclear whether lawmakers will return to Baton Rouge to do so.


“Governor Edwards deserves enormous credit for urging Louisianans to reject the politics of division and to focus on what brings us together, including a shared concern for vulnerable children. As his veto message rightly notes, transgender youth already face huge challenges,” Shannon Minter, the Legal Director for the National Center for Lesbian Rights, (NCLR) told the Blade in an email. “Banning them from school sports would not make any child’s life better or safer, but it would bring discredit and economic hardship to the state, which likely would lose NCAA and professional championships. Governor Edward’s veto message is a model of clarity and compassion. We need more leaders with his courage.”

The ACLU reacted in a tweet saying:

 

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