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Adding insult to injury

DOJ challenging pro-trans 6th Circuit ruling on Title VII

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Jon Davidson is Chief Counsel for Freedom for All Americans. (Photo courtesy Davidson)

One of several LGBTQ cases the Supreme Court may hear this term involves a woman named Aimee Stephens who was fired from her job as a funeral director after she told her boss she was transitioning and intended to start dressing in business attire traditionally worn by women. She sued under Title VII, which prohibits employment discrimination based on sex (as well as race, religion and national origin). She won at the Sixth Circuit, which unanimously ruled that, because discrimination based on gender identity is a form of sex discrimination, she could proceed with her suit.

That court held that was true for two reasons. First, discrimination against someone who is transgender is based on a sex stereotype that people should only identify and present as the sex they were identified as at birth. Second, discriminating against an individual who is transgender necessarily takes their sex into account. It either is based on what people thought their sex was when they were born or what the individual currently knows their sex to be or both.

Just because there are separate terms for “gender identity” and “sex” doesn’t mean a job termination based on someone’s gender identity isn’t a form of sex discrimination. As the Sixth Circuit noted, if someone was fired because they converted from Judaism to Christianity, their employer couldn’t credibly argue that was not religious discrimination because Title VII doesn’t mention the word “converts.” Likewise, it’s well-settled that an employer who refuses to hire female employees who have children cannot defend that by noting that Title VII doesn’t reference the term “mothers.”

Nonetheless, in a brief filed on Oct. 24 by the Department of Justice (which these days might be better known as the Department of Injustice), they take the position that the Sixth Circuit’s decision is “erroneous.” That position is contrary to the view of the EEOC, the principal federal agency that interprets and applies Title VII, which brought the suit on Stephens’ behalf.

Together with the recently leaked Department of Health and Human Services memo, this latest legal position by the Trump administration is perhaps the worst body blow by that administration to our community. That memo apparently proposes the adoption of regulations that would consistently define “sex” under federal law as either male or female, as something that cannot be changed, and as determined by the genitals a person is born with. That position—which negates the very existence of transgender and intersex people—is a turnabout from the Obama administration’s and is inconsistent with both science and basic human dignity.

While contesting the correctness of the Sixth Circuit’s ruling, DOJ’s brief urges the Supreme Court not to take up Stephens’ case now, but instead hold it until the Court takes up and decides either of two Title VII cases dealing with sexual orientation-based employment discrimination or, if the Court takes up neither, not hear Stephens’ case at all in order to await further circuit rulings on the issue.

There are a number of reasons DOJ may be urging that. They may think the gender identity issue is harder than the sexual orientation one and that they will have an easier time winning both if the Supreme Court hears the sexual orientation issue first. While there currently is a split in the circuit courts on whether sexual orientation discrimination is a form of sex discrimination, six of 12 federal circuits agree that gender identity discrimination is. Second, having the Justice Department undermine a case brought by the EEOC is a bad visual. Third, they may not want to go up against the ACLU, which intervened on appeal in the case to directly represent Stephens.

But why is the Trump administration taking these anti-LGBTQ positions? Perhaps they are playing to biased members of their base. This may just be another effort to undo anything the Obama administration accomplished. Or it may be because the current administration is filled with anti-LGBTQ advocates, like Roger Severino, the director of HHS’s Office of Human Rights, who previously worked for the Heritage Foundation.

This should not be mistaken for a partisan dispute. One of the judges who joined the Sixth Circuit’s opinion was appointed by President George W. Bush, and numerous other federal judges who have agreed with the opinion’s conclusions also have been appointed by Republican presidents.

The non-partisan Public Religion Research Institute found last year that 60 percent of Republicans favor laws protecting LGBTQ people against discrimination. Similarly, New Hampshire, a state with a Republican governor and Republican-controlled legislature, enacted express protections against gender identity discrimination in June.

But because the strong judicial decisions so far are subject to possible review by an increasingly conservative Supreme Court, one thing is clear: enacting additional statutory protections against anti-LGBTQ discrimination is more critical than ever.

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It’s time to prioritize the plight of trans and queer refugees

In order for the United States to truly be a safe place for persecuted LGBTQ+ people, immigration reform alone is not enough

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By Jamie Sgarro | NEW YORK – Every year, on June 20th, World Refugee Day overlaps with LGBTQ+ Pride Month. This day presents an opportunity to raise awareness of the unique challenges faced by LGBTQ+ asylum seekers and refugees, and to demand action to reestablish the United States as a safe harbor for the thousands of persecuted LGBTQ+ people who seek refuge here every year.   

When the U.S. presidential election was called for Joe Biden, I breathed a heavy sigh of relief. During its first 100 days in office, the Biden-Harris administration has slowly begun to undo Trump’s legacy of hate on LGBTQ+ rights and immigration. As the founder of a nonprofit focused on LGBTQ+ asylum and a newly “out” trans person, I am encouraged by the administration’s early efforts, but I also recognize that there is still much more work to be done.   

So far, in support of LGBTQ+ rights, the administration has urged Congress to pass the Equality Act, committed to advocating for LGBTQ+ equality abroad, issued the first presidential proclamation recognizing Transgender Day of Visibility, and signed an executive order repealing the ban on transgender people serving openly in the military. The new administration has also begun to unwind Trump’s immigration policies by ceasing new enrollments in the Migrant Protection Protocols policy its first day in office before formally ending the policy in June, reversing Trump’s “Muslim ban”, and eliminating Trump’s historically-low limits on refugee resettlement. 

But, despite this incremental progress, we must hold the new administration accountable for its promises not yet achieved. The administration’s action—or lack thereof—on both LGBTQ+ and immigration issues have life-or-death ramifications for persecuted trans and queer people. For example, since taking office, President Biden has enforced Title 42, a Trump-era policy that has resulted in most asylum seekers being turned away at the southern border without the opportunity to apply for protections in the U.S. According to WOLA, since March 2020, this policy has expelled more than 750,000 undocumented migrants apprehended at the border back to Mexico or their home countries. President Biden’s reversal of the Migrant Protection Protocols policy (known as “Remain in Mexico”) has also stranded over 30,000 asylum seekers whose claims were denied or dismissed under the policy in Mexico. LGBTQ+ asylum seekers cannot wait safely in Mexico and are at risk of murder upon deportation to their home countries.    

Additionally, while immigration enforcement has decreased under the new administration, President Biden has continued to detain LGBTQ+ immigrants. The U.S. detention system is dangerous, even lethal, for LGBTQ+ individuals (especially trans women). According to an analysis by the Center for American Progress, LGBTQ+ immigrants held at federal detention centers are 97 times more likely to be sexually assaulted than other detainees. In this context, anything less than the immediate release of every transgender, gender nonconforming and queer person from Immigrations and Customs Enforcement detention centers is insufficient. Fleeing persecution to live authentically should never result in arbitrary imprisonment.    

In order for the United States to truly be a safe place for persecuted LGBTQ+ people, immigration reform alone is not enough. The administration must also ensure that all LGBTQ+ people have full equality under the law and the freedom to safely walk down the street. Although America has made significant strides in the right direction on LGBTQ+ rights —from increased representation in media to the recent landmark Supreme Court ruling banning workplace discrimination against gay and transgender employees —our country still falls short of social acceptance in many communities and still lacks federal anti-discrimination protections for LGBTQ+ people in critical areas including housing, education, federal funding, public accommodations, credit, and the opportunity to serve on a jury. Trans women of color continue to face a deadly epidemic of violence, and trans youth can still be subjected to psychologically-damaging conversion therapy in 25 states.  

According to the Human Rights Campaign, 2021 is already the worst year in recent history for state legislative attacks on LGBTQ+ rights. So far, 17 anti-LGBTQ+ bills have been enacted. This coordinated legislative effort particularly targets the transgender community. These attacks are damaging to all trans people but are perhaps especially cruel for trans refugees who have courageously fled persecution in pursuit of a better life. Upon arrival in the United States, LGBTQ+ refugees deserve to be met with compassion, not an onslaught of discriminatory legislation and rhetoric.  

It is time for America to prioritize welcoming trans and queer refugees. Everyone deserves the opportunity to live authentically without fear.

 

Jamie Sgarro is the co-founder of AsylumConnect, a 501(c)(3) nonprofit organization providing the world’s first web and mobile resource platform for LGBTQ+ people fleeing persecution.

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OAN’s anti-LGBTQ hate supported by cable & streaming services

OAN reportedly relies on subscriber fees, also known as carriage fees, rather than advertising as a prime revenue source

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Graphic via Media Matters for America

By Beatrice Mount & Alex Paterson | WASHINGTON – The right wing conspiracy theory One America News channel regularly uses extreme anti-LGBTQ rhetoric, combating what it has called “militant LGBTQ recruitment” strategies.

OAN’s baseless fearmongering about Drag Queen Story Hour, Demi Lovato’s gender identity, and transgender athletes, however, is being financially supported by cable companies and streaming services that claim to be celebrating LGBTQ people and Pride month.

Rather than relying on “advertising as a prime revenue source,” OAN reportedly relies on subscriber fees, also known as carriage fees, as its primary funding source. Verizon and DirecTV (and its parent company, AT&T) pay OAN subscriber fees in exchange for the network being available to their customers, whose subscription costs pay for OAN. While it’s difficult to quantify exactly how much revenue these cable contracts generate, Bloomberg previously reported that OAN “gets paid about 15 cents per subscriber by the companies.” 

OAN also generates revenue through subscriber fees via its streaming app, which charges its subscribers $4.99 per month and is available to download on RokuAmazon FireGoogle Play, and Apple TV. In exchange for hosting OAN in their channel libraries, these companies reportedly take a percentage of that subscription fee. For example, according to Yahoo Finance and The Motley Fool, Roku takes 20% of subscription fees, and Apple TV takes 30% during the first year and 15% in subsequent years. 

These companies have all celebrated Pride month through statements and social media support, including VerizonAmazonGoogleAppleRoku, and DirecTv and its parent company AT&T. However, these companies also enable OAN to maintain a steady income, even though the network is in direct opposition to their corporate commitments to the LGBTQ community.

What’s more, OAN’s hateful rhetoric adds fuel to the rising attacks on LGBTQ people, particularly trans people: Anti-trans violence in the U.S. has reached record high levelshate crimes targeting LGBTQ people are on the rise, and state legislatures have proposed over 100 bills to restrict trans rights so far in 2021 alone. 

OAN hosts and guests regularly spread anti-LGBTQ rhetoric and misinformation, particularly targeting trans people

In the days leading up and following the first day of Pride Month in June, some of OAN’s most prominent hosts — Kara McKinney, Stephanie Hamill, and Dan Ball — and their guests have regularly used the platform to fearmonger about LGBTQ people, including claiming that Pride “is a really sad indicator of just how far the cultural rot has gone.” Here are some of the worst examples:

Tipping Point with Kara McKinney

  • On May 20, McKinney suggested that “militant LGBTQ recruitment” has caused more young people to identify as LGBTQ. She also claimed PBS programming that featured Drag Queen Story Hour was “radical LGBTQ propaganda” and a ”mockery and caricature of true womanhood, basically the gender equivalent of blackface or cultural appropriation.”
  • Later in that same segment, McKinney was joined by RedState’s Brandon Morse, who claimed that PBS is “introducing what is actually a mental illness” to kids through covering Drag Queen Story Hour in order “to make good little soldiers for the hard-left, progressive agenda,” comparing it to “the sexual abuse of our children.” He also said that being trans is “a trend, and when this trend wears off the people who actually submitted these kids, pressured them — all the celebrities who signed up for it and pushed it on them, the corporations who signed on and pushed it on them — none of these people are going to look good in the long run, and I can’t wait for that day to come.”
  • On May 24, McKinney asserted that people who affirm trans youth are “leading young people, especially those suffering from mental illness and who are typically being raised in unstable households, into a life of gender confusion.” 
  • In that same edition of Tipping Point, Morse said that being trans is a “trend” and compared it to “the emo craze, the scene kids, you know, all these people dressing in weird ways to try to stand out.” He also claimed that as “abortions are becoming harder and harder to get for Planned Parenthood to perform, they’re moving toward … gender transition treatments” and pushing trans youth “into this weird LGBT-centric agenda that forces them to do something that they can’t take back years later.”
  • On June 1, McKinney commemorated Pride month by proclaiming, “We of course pray for those suffering with same-sex attraction,” and she equated being LGBTQ to a “sin” and a “vice.” She also lamented that “for being a country founded on Judeo-Christian principles, the fact that we dedicate an entire month to one of the seven deadly sins, which is pride, the cause in many ways of the fall itself, is a really sad indicator of just how far the cultural rot has gone.” 
  • Later in that same episode, far-right pastor Jesse Lee Peterson said people should celebrate “white history month” instead of “perverted” LGBTQ Pride. He also asserted that “Christians must stand up and fight against evil” and questioned, “What’s happy about being perverted?”

In Focus with Stephanie Hamill

  • On May 20, one day after singer Demi Lovato came out as nonbinary and announced they will now use gender-neutral “they/them” pronouns, Hamill suggested they were “desperately trying to stay relevant.” Turning Point USA’s Alex Clark claimed that “the ultimate magic eraser for bad PR is to change your sexual orientation or your gender identity” and accused Lovato of being “severely mentally ill.” (Hamill and her guest also repeatedly misgendered Lovato the following day.)
  • During a May 28 appearance on In Focus, Terry Schilling, the executive director of anti-LGBTQ group the American Principles Projectcalled for a “ban” on best practice health care for trans youth and claimed such care is “absolutely insane” and “all meant to destroy us as human beings.”
  • Later in that segment, during a rant about Kellogg’s Pride-themed cereal, Hamill said that “kids are getting bombarded with liberal propaganda,” and Schilling questioned if LGBTQ advocates “didn’t have the billions of dollars a year that they spend in this movement, what percentage of Americans would identify as LGBT or have some type of confusion about their gender? My guess is that it won’t be that many.”
  • In a June 1 segment with the right-wing Libertas Institute’s Emma Phillips, Hamill complained that Nickelodeon’s Blue’s Clues is “pushing the drag culture so hard on kids” and claimed that “we see this kind of indoctrination going on in schools, the anti-American agenda, too.” Phillips said that “parents have been posting on social media, ‘My child just learned that Jesus is nonbinary,’ and it’s like this laundry list of insane things that kids are being exposed to.”
  • On June 2, in an apparent violation of a court-issued gag order, Jeff Younger, a father in a high-profile Texas child custody dispute, joined Hamill to spread anti-trans rhetoric about his trans child’s “abnormal gender expression.”

Real America with Dan Ball

  • On June 8, while defending a Loudoun County, Virginia, public school teacher who refused to refer to trans students by their correct name and pronouns, Ball claimed that affirming trans youth is participating in “pronoun garbage.”
  • Ball has also repeatedly denigrated prominent trans people. He has misgendered and deadnamed U.S. Assistant Secretary of Health Dr. Rachel Levine. Ball also ridiculed Caitlyn Jenner, saying she was “dick-tator-less,” while his guests, far-right commentators the Hodgetwins, said being trans is “just a wardrobe” and a “bizarre lifestyle.”

Beatrice Mount is a media analyst and researcher for Media Matters for America. She’s a George Washington University Graduate with a degree in gender studies and political science.

Alex Paterson is a researcher for the LGBTQ program at Media Matters, where he has worked since 2019. Alex holds a bachelor’s degree in economics from Montana State University and has a background in LGBTQ advocacy, including previous work at the National LGBTQ Task Force and the U.S. Department of Health and Human Services.

The preceding commentary and analysis was published by Media Matters and is republished by permission.

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Pride at Work, U.S. Dept. of Labor recommits to inclusive workplaces

Pride Month is for LGBTQ+ people to be proud & visible in a world that tells us not to be; recommitting to inclusive workplaces

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U.S. Department pf Labor, Frances Perkins Building, Washington D.C. (Photo Credit: GSA U.S. Government)

By B.A. Schaaff | WASHINGTON – Pride Month is a chance for lesbian, gay, bisexual, transgender and queer (LGBTQ+) people to be proud and visible in a world that tells us not to be. Pride Month is a chance to celebrate and honor the work of LGBTQ+ people as we fight every day for equity and inclusion in society, in the law and in our workplaces. 

Thanks to the tireless work of advocates, we’ve had many recent encouraging wins at the national level:

  • Last June, in Bostock vs. Clayton County,the Supreme Court affirmed that Title VII of the Civil Rights Act protects employees from discrimination based on their sexual orientation and gender identity.
  • In January, President Biden issued an Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, and  another executive order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which includes LGBTQ+ persons. He also rescinded a 2020 executive order on Combating Race and Sex Stereotyping that had a chilling effect on diversity and inclusion training programs among federal agencies and contractors.
  • The Biden-Harris administration has stated strong support for the Equality Act, which would amend existing federal civil rights laws to expressly include non-discrimination protection on the basis of sex (including gender identity and sexual orientation), providing security and equality to LGBTQ+ people in accessing housing, employment, education, public accommodations, health care and other federally funded services, credit and more.
  • In March, President Biden became the first U.S. president to recognize Transgender Day of Visibility.

In the past year, anti-racism protests have sparked important conversations around diversity, equity and inclusion. The Department of Labor has recommitted to being an inclusive workplace, and continues to offer trainings related to sexual orientation and gender identity, including those related to the use of gender-inclusive language and pronouns. I’ve been proud to provide these trainings and support those efforts as a vice president of Pride at DOL, an affinity group for the department’s LGBTQ+ employees and contractors and our allies.

As part of the department’s efforts to implement the sexual orientation and gender identity executive order, our Civil Rights Center – a member of the Title VI/Title IX Interagency Working Group led by the Department of Justice – will serve on the Title IX and Executive Order 13988 Committee. This committee will serve to provide opportunities for interagency collaboration to advance EO 13988’s goal of protecting individuals from discrimination on the basis of sexual orientation and gender identity, ensuring the Bostock decision is applied to Title IX and other relevant statutes, and making federal agencies welcoming to LGBTQ+ people.

The department is also working to reverse the impact of the prior administration’s executive order on diversity training. Our Office of Federal Contract and Compliance Programs is examining promising practices for diversity training as one component of broader efforts to eliminate bias from employment practices. In addition, the department is conducting an equity review to better understand how well our policies and programs are reaching historically underserved populations, and launched a related data challenge.

But there is still more work to do, and our pride can come at a price. Being visible sometimes means being exposed to harassment, discrimination, and violence. This is especially true for transgender people, particularly those who are women and people of color. Equity and inclusion require creating an environment — through language, policies and practices — that not only tolerates but recognizes and affirms people’s identities and relationships. Only with this can employers create a sense of belonging and value in their organization.

So as we celebrate Pride Month this year and every year, let’s recognize all the work that has been done and that is necessary to keep pushing forward.

B.A. Schaaff (they/he) is an attorney in the U.S. Department of Labor’s Office of the Solicitor and is vice president of Pride at DOL.

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