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Creating Change 2019 creates controversy, again

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For much of its 31-year history, the National LGBT Task Force’s Creating Change conference has been a mecca for intellects, movement leaders, grassroots activists and allies eager to engage in coalition building. The gathering created a cauldron of ideas, sparking analysis and sometimes messy debate over strategies for fighting institutionalized oppression and ugly anti-LGBT discrimination developing its own organized Religious Right movement in states around the country. And the conferences almost always made news. This year, Creating Change made news again—but not particularly favorably.

In years past, LGBT reporters eagerly pursued thought leaders expressing powerful, political assessments of surviving under siege and their passionate strategies for confronting the struggles ahead.

During the 1993 conference in Raleigh, North Carolina, for instance, radical, Marxist-leaning former director Urvashi Vaid surprised herself by calling for traditional 50-state get-out-the-vote organizing to combat the Christian Coalition. “We must develop a more pro-active and clear political strategy” to “knit together” different efforts, she said, and build a powerful movement to secure a federal equality act and beat back Newt Gingrich’s revolution.

NGLTF executive director Matt Foreman stunned the Creating Change audience in 2008 by calling HIV a “gay disease” and chastising the LGBT community for allowing HIV/AIDS to slip as a priority and spread among people of color through institutionalized racism and lack of access to healthcare. He received only a smattering of applause but the issue was hotly debated by activists once home.

NGLTF executive director Kerry Lobel, who with Lynn Cothren brought Coretta Scott King and Dorothy Height to NGLTF, called Creating Change “the political hothouse of our movement,” the “incubator of countless projects, campaigns, strategies and initiatives that help to bring our movement into the 21st century.”

Lobel later served on the Coastside Jewish Community’s Board of Directors. One wonders how she or Foreman or Vaid would have handled Creating Change 2019, which made LGBT news for a disruption by the Cancel Pinkwashing Coalition and the Task Force’s muted response amid charges by national LGBT Jewish leaders and online commenters that the protest and reaction were anti-Semitic.

On Jan. 24, as the opening plenary was getting underway in Detroit, a handful of activists started chanting “Free, free Palestine!” As they made their way onstage, Creating Change organizer Andy Garcia stepped aside and the lights dimmed. Undeterred, the leader, who identified herself as a Jewish, lesbian, transgender woman, proceeded to slam the Task Force for what she said was a continued “ban on Palestinian content and that has stretched into Jewish and Muslim content at this conference and we won’t stand for that.”

She noted that the Cancel Pinkwashing Coalition submitted seven workshop proposals about Palestine and pinkwashing to Creating Change, all of which were rejected. “Pinkwashing” is a term derived from “whitewashing” applied to LGBT rights. Generally it suggests a marketing or political ploy that makes a product, person, or country appear pro-LGBT while diverting attention or covering up an opposite intent. The term was original coined by Breast Cancer Action in 1992 to expose companies that claimed to support the cause through pink ribbons while actually profiting from the illness, according to Self Magazine.

The Cancel Pinkwashing Coalition wants “robust programing that reflects the Task Force’s so-called commitment to change, dignity and equality,” the Jewish trans lesbian leader said. “We want a conference and a space where radical queer and trans people, radical Jews, radical Muslims, radical Palestinians, radical people from across the globe and around the country can come together and discuss all parts of our liberation. And right now our content is being censored. Our liberation is being silenced and our voices are being shut down because the Task Force is too cowardly to have a conversation on one of the leading social justice issues of our time—Palestinian freedom.”

The leader blamed the ADL—the Anti-Defamation League—for encouraging the Palestine ban “as part of a reaction to protests that took place in 2016.”

That protest in Chicago left an indelible mark on the consciousness of anyone who heard about it. A Wider Bridge, an organization that promotes LGBT equality in Israel, was hosting a reception for Sarah Kala-Meir and Tom Canning from the Jerusalem Open House for Pride and Tolerance when more than 200 yelling people crammed the hallways outside the third floor reception room, terrifying the guests and causing them to flee for fear of violence. The group opposed what they claimed is Israeli pinkwashing to deflect from its policies toward occupied Palestinians—but their message was lost in the storm of fear they created. The Chicago police were called, which lead to a slew of other issues.

After the 2016 controversy, National LGBTQ Task Force Executive Director Rea Carey told the Washington Blade that the Task Force “does not have a policy stance on the Israeli Palestinian conflict….We are not an organization with an international mission.”

But that did not satisfy the Coalition, which protested at Creating Change last year, as well.

“I’m Jewish,” said the Cancel Pinkwashing Coalition leader at the Jan. 24 opening plenary. “I’m here to say that the ADL does not speak for me and the ADL does not speak for queers. In fact, if you look into their history, they have committed acts of severe violence against the queer and trans liberation movement. The ADL spied on – the reason that many of us are here – Queer Nation. And they spied on ACT UP in the ‘80s. Is that an organization that the Task force should have a partnership with – one that pied on ACT UP? No. No. No.”

This attack infuriated LGBT Jewish leaders. In 2012, the ADL, which monitors and educates about hate groups, submitted substantial testimony to support the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act  and has been actively involved with educating about hate crimes.

But the accusation about ACT UP is true. As reported by the New York Times and others, the San Francisco offices, homes and storage facilities of key ADL members were raided in 1993 as police investigated an illegal spy ring. They uncovered thousands of index cards with names of 12,000 Americans and 950 groups—including the NAACP, ACLU, and ACT UP. That scandal has been lost with time.

But it was the chant at the end of the 15 minutes of seized protest time that unnerved many Jews and non-Jews alike. “Hopefully, one day – from the river to the sea, Palestine will be free.” The group left the stage to a standing ovation.

The phrase “from the river to the sea, Palestine will be free” is generally perceived as a call to eliminate the state of Israel. That alone was enough to set off howls of protest claiming the group called for the murder of Jews—three days before Holocaust Remembrance Day. They also charge the Task Force with anti-Semitism for not stepping in and stopping it.

“We are deeply troubled that an uninvited group of disruptors breached the opening plenary of Creating Change to voice hate speech and slander against the Jewish community and our institutions, without action or consequence from the leadership of the National LGBTQ Task Force,” Rabbi Denise Eger of Congregation Kol Ami in West Hollywood and Tyler Gregory of A Wider Bridge wrote in an open letter to Executive Director Rea Carey demanding an apology.

“The fifteen-minute disruption ended with calls of “from the river to the sea,” an anti-Semitic dog whistle from those wishing to see the Jewish State and its inhabitants disappear.”

“Bruce Voeller, who founded the National Gay Task Force, and the Jews he invited to serve on its early board, such as pioneering activist Frank Kameny, would have been horrified at the present anti-Semitism in the guise of anti-Zionism that has been allowed to take over the Task Force,” historian Lillian Faderman told the Los Angeles Blade. “They would not have felt welcome in this organization that they built. How tragic that this has been allowed to happen. The present leadership has a responsibility to put an end to anti-Semitism in the ranks of the organization and to disassociate from it by apologizing in the name of the Task Force.”

“The National ‘Task Force’ not only needs to apologize, but Non- self loathing Jews need to be put in leadership positions on the board and in Executive positions. Until then, all donations to the task force must stop, and they need to be put on the National anti-Semitic organization list. Right now,” longtime activist Robin Tyler told the Los Angeles Blade.

Carey made a statement from the stage on Jan. 27, which is apparently the only comment she is giving.

“We are aware that some have expressed concerns about protests at Creating Change, including the protest on Thursday regarding Israel and Palestine,” she said. “As we have before, the National LGBTQ Task Force firmly condemns anti-Semitism. We firmly condemn Islamophobia. We firmly condemn attacks on each other’s humanity. The perpetuation of white supremacy is harmful to all. There are a number of misunderstandings and misinformation being thrown around. As Kierra said Thursday night, we want and appreciate all feedback, and part of being in community together means holding each other as we evolve. We are committed to staying in respectful conversation as we move forward towards Creating Change 2020. For your feedback, please send an email to [email protected].”

Few were happy with Carey’s response, fewer still were happy with what the late activist Morris Kight used to call “oppression sickness” that seemed to dominate discussions on the Internet.

Meanwhile, on the ground at Creating Change, [email protected] Coalition founder Bamby Salcedo told the Los Angeles Blade, the protest made no waves among the roughly 4,000 attendees. “No one was talking about it,” she said, unlike the huge #TransLivesMatter protest she staged at Creating Change, which not only yielded results but Salcedo was a plenary speaker this year.

Nonetheless, many are questioning Carey’s leadership: why she didn’t see the protest coming and tackle the issue head-on as a matter of importance to the LGBT community—once a trait of NGLTF.

“Anything that happens under my watch is my responsibility, and I take it seriously. I and we are learning and I think we’re going to come up with some creative and concrete recommendations with how we can move forward for the conference, for the organization and for the movement,” Carey told the Washington Blade in Feb. 2016.

What happened to that commitment?

(The Los Angeles Blade is presenting the Open Letter and a transcript of most of the protesters’ remarks as op-eds so readers can be better informed.)

 

 

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California

Newsom signs laws, further fortifies California abortion protections

“California is a Reproductive Freedom state and all are welcome to seek the care they want or need here in California”

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First Partner Jennifer Siebel Newsom with Governor Gavin Newsom (Photo Credit: Office of the Governor)

SACRAMENTO – As other states throughout the country outlaw abortion and criminalize patients and doctors, California continues to lead the nation’s fight for reproductive health care access and privacy. 

Today, Governor Gavin Newsom signed additional bills into law to further protect people from legal retaliation and prohibit law enforcement and corporations from cooperating with out-of-state entities regarding lawful abortions in California, while also expanding access to contraception and abortion providers in California.

“An alarming number of states continue to outlaw abortion and criminalize women, and it’s more important than ever to fight like hell for those who need these essential services. We’re doing everything we can to protect people from any retaliation for accessing abortion care while also making it more affordable to get contraceptives,” said Governor Newsom. “Our Legislature has been on the frontlines of this fight, and no other legislative body in the country is doing more to protect these fundamental rights – I’m proud to stand with them again and sign these critical bills into law.”

 The package signed today includes:

  • PROTECTIONS FROM CRIMINAL & CIVIL LIABILITIES: AB 2223 by Assemblymember Buffy Wicks (D-Oakland) helps to ensure that pregnancy loss is not criminalized, prohibiting a person from being criminally or civilly liable for miscarriage, stillbirth, abortion, or perinatal death due to causes that occurred in utero.  
  • KEEPS MEDICAL RECORDS PRIVATE: AB 2091 by Assemblymember Mia Bonta (D-Oakland) prohibits a health care provider from releasing medical information on an individual seeking abortion care in response to a subpoena or request from out-of-state.
  • PROHIBITS COOPERATION WITH OUT-OF-STATE ENTITIES: AB 1242 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) prohibits law enforcement and California corporations from cooperating with out-of-state entities regarding a lawful abortion in California. It also prohibits law enforcement from knowingly arresting a person for aiding in a lawful abortion in California.
  • EXPANDS BIRTH CONTROL ACCESS: SB 523 by Senator Connie Leyva (D-Chino) expands birth control access – regardless of gender or insurance coverage status – by requiring health plans to cover certain over-the-counter birth control without cost sharing. It also prohibits employment-related discrimination based on reproductive health decisions.
  • MORE HEALTH CARE PROVIDERS: SB 1375 by Senate President pro Tempore Toni G. Atkins (D-San Diego) expands training options for Nurse Practitioners and Certified Nurse-Midwives for purposes of performing abortion care by aspiration techniques.

“During this unprecedented time, I’m grateful to the Governor and the California Legislature for taking critical measures to protect a woman’s right to choose and to enshrine the right to reproductive freedom into California’s constitution,” said First Partner Jennifer Siebel Newsom. “No person should be denied access to contraceptive services and abortion care because of a lack of resources or a fear of retribution. And we will not accept the status quo of rendering women powerless to determine their own destiny. In California, we trust women, we believe in women, and we see their value beyond their reproductive capabilities.” 

“My colleagues and I saw the imminent danger headed for national abortion access more than a year ago and have spent every day since working to not only protect reproductive rights, but expand them. Our package of bills ensures that all Californians, and anyone who needs to come here, will receive the essential health care they need and the respect they deserve. Creating laws is like a marathon and today, we are only able to cross the finish line because of months of hard work, and leadership from the Legislative Women’s Caucus and our partners on the California Future of Abortion Council.” – Senate President pro Tempore Toni Atkins.

In addition to the bills detailed above, the Governor also signed into law: 

  • AB 657 by Assemblymember Jim Cooper (D-Elk Grove): Expedites licensure for health care practitioners that come to California to provide abortion care services.
  • AB 2626 by Assemblymember Lisa Calderon (D-Whittier): Prohibits specified licensing boards from suspending or revoking a license solely for performing an abortion in accordance with the licensee’s practice act.
  • AB 2205 by Assemblymember Wendy Carrillo (D-Los Angeles): Requires Covered California plans to report annually the total amounts of funds collected in special accounts for abortion care which was established under the ACA to hold premium payment of $1 per member per month and from which claims for abortion care must be paid.
  • SB 1142 by Senator Anna Caballero (D-Merced) and Senator Nancy Skinner (D-Berkeley): Requires the establishment of an abortion care services website and an evaluation of the Abortion Practical Support Fund.
  • SB 1245 by Senator Sydney Kamlager (D-Los Angeles): Establishes a reproductive health pilot project in LA County to support innovative approaches and collaborations to safeguard abortion access.
  • AB 1918 by Assemblymember Cottie Petrie-Norris (D-Laguna Beach): Creates the CA Reproductive Health Scholarship Corps to recruit, train and retain a diverse workforce of health care professionals who will provide reproductive health services in underserved areas of the state.
  • AB 2134 by Assemblymember Dr. Akilah Weber (D-San Diego): Establishes the CA Reproductive Health Equity Program which will provide grants to providers who provide uncompensated care to patients with low-incomes and those who face other financial barriers.
  • AB 2586 by Assemblymember Cristina Garcia (D-Bell Gardens): Establishes the CA Reproductive Justice and Freedom Fund to support CBOs in providing comprehensive reproductive/sexual health education, inclusive of abortion care, to disproportionately impacted communities. 

The Governor previously signed SB 245 to eliminate cost-sharing for abortion services and AB 1666, which seeks to protect those in California from civil liability for providing, aiding, or receiving abortion care in the state. 

“As extreme politicians across the country pursue personal political agendas seeking to restrict and criminalize people seeking and providing abortion services – essential health care that should be available to people where they live and when they want or need it – California is showing what is possible when leaders listen to experts, facts, science and from the people who are directly impacted,” said Jodi Hicks, President and CEO of Planned Parenthood Affiliates of California. “Patients and providers across California and the country are living in a state of fear and confusion as we collectively try to navigate this new post-Roe reality. Today’s bold and comprehensive actions provide reassurance to all that California is a Reproductive Freedom state and all are welcome to seek the care they want or need here in California.”

“California continues to take historic steps towards its promise to be a Reproductive Freedom state – not just protecting access to abortion care in the face of Roe v. Wade being overturned, but moving forward centering equity and expanding access to help people, regardless of where they call home, get the essential care they want or need here in California. This bill package, in addition to the $200+ million in new funding, will go a long way in helping people seeking care in California and the community organizations and providers already on the ground doing the work across the state. By signing this bill package, Governor Newsom is putting an exclamation mark on a year-long effort by California reproductive health, rights, and justice leaders and policymakers to prepare and respond to the U.S Supreme Court overturning 50 years of precedent and eliminating the federally protected right to abortion.” – Steering Committee of the California Future of Abortion Council.

“California is committed to upholding and expanding protections that ensure reproductive health care is a right and not a privilege. The legislative package signed into law today strengthens the budget actions taken by the Governor earlier this summer to protect and expand reproductive care in California, while also breaking down barriers that have caused historic inequities in access and the health outcomes of our most vulnerable communities,” said Secretary of the California Health & Human Services Agency, Dr. Mark Ghaly. “We stand ready to deliver on this vision of a Healthy California for All, which protects the health and wellbeing of anyone seeking critical reproductive services in California.”

These actions build upon California’s nation-leading actions to cut costs, expand access and strengthen protections for abortion care:

  • Allocated more than $200 million to help pay for travel costs, cover uninsured care, support health care facilities and providers, bolster security and more.
  • Signed legislation to help protect patients and providers in California from civil liability for providing, aiding or receiving abortion care in the state.
  • Launched a new Multi-State Commitment to defend access to reproductive health care and protect patients and providers.
  • Signed an executive order preventing medical records, patient data and other information from being shared by state agencies in response to inquiries or investigations brought by other states or individuals within those states looking to restrict abortion access, and declining to extradite any person in California sought by another state for lawful abortion services provided in California.
  • Eliminating copays for abortion care services and signed into law a legislative package to further strengthen access and protect patients and providers.
  • In November, California voters will have an opportunity to amend the state’s constitution to enshrine the right to an abortion following the introduction of a constitutional amendment by state leaders.
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Virginia

HS Students in Virginia stage massive walk-outs over Trans policy

The student-led Virginia-based Pride Liberation Project organizing mass walkouts and rallies in more than 90 schools across the state

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Youth activists in schools across Virginia walked out of class to rally against proposed changes to school policy for LGBTQ students. (Washington Blade photo by Michael Key)

FAIRFAX COUNTY – Thousands of students in schools across Virginia participated in walkouts and rallies on Tuesday to oppose the revised “model policies” on transgender students released by the Virginia Department of Education.

VDOE policy revisions were released on Sept. 16 and differ substantially from the policies passed into law in 2020.

The original policies on the treatment of trans students were intended to protect LGBTQ students; but the revised “model policies” have been criticized by activists, educators and legislators for mandating students use school facilities for the sex they were assigned at birth and bars students from changing their names and pronouns without parental permission. Further, the policies direct teachers and staff not to conceal a student’s gender identity from parents, even when a student asks to keep that information private.

The student-led Virginia-based Pride Liberation Project responded to these policy changes by organizing mass walkouts and rallies in more than 90 schools from Alexandria to Williamsburg.

“These proposed guidelines are essentially taking that cornerstone and using it to undermine our rights. If these guidelines are implemented, it will be the single biggest loss for queer rights in Virginia in years,” Natasha Sanghvi, a student organizer with the Pride Liberation Project, said in a statement.

Openly gay Virginia state Sen. Adam Ebbin (D-Alexandria) in a statement said “these new model policies, which are in flagrant violation of Virginia law, will do serious harm to transgender students. They are not based in science or compassion and will lead to students being outed before they are ready, increased bullying and harassment of marginalized youth, and will require students to jump through legal hoops just to be referred to with their proper name.”

Ebbin joined several hundred students at West Potomac High School in Alexandria in a rally opposing the model policies proposed by Republican Gov. Glenn Youngkin.

“The new policy drafts are only going to do more harm to trans students who are already at risk for being outed, harassed and harmed,” Jules Lombardi, a Fairfax County high school senior, told the Washington Blade. “These drafts will take schools, which are supposed to be safe environments for students, and make them spaces where students have to hide themselves for fear of their parents finding out about their identities.”

“This isn’t a matter of ‘parental rights,’ it’s a matter of human rights and we deserve to be treated with the same respect as cis students,” Lombardi added.

Students in more than 90 schools across Virginia participated in walkouts on Tuesday, Sept. 27.
(Washington Blade photo by Michael Key)

Andrea-Grace Mukuna, a senior at John R. Lewis High School in Springfield, told the Blade that “gender affirmation matters. Something so easily given to cisgender people is a right that our trans and gender non conforming youth deserve. I am walking out because schools will no longer be a safe place for queer students to be in if these policies get passed.”

“Requirements for teachers to refer to students by their birth name and pronouns aligning with their sex, rather than trusting our students to know themselves and who they are best, reinforces the idea that we as students have no power, no control and no knowledge over anything in our lives. Gender queer youth exist, and no policy can change that,” Mukuna said.

Mukuna continued, “making an attempt at denying them their ability to be who they are is a malicious attack on vulnerable students that could cause deathly harm.”

“I walk out for my queer community — there is no erasing us,” Mukuna said.

Several hundred students walked out of McLean High School. The walkout was lead by members of the school’s GSA and organizers from the Pride Liberation Project including McLean High School senior Casey Calabia.

Calibia asked the crowd, “Do we want Gov. Youngkin to understand that this is not what Virginia looks like?”

The crowd roared, “yes!”

“Virginia stands for trans kids. Trans and queer people are a fact of humanity. We will be accepted one way or another and to see everybody here today is another step toward that change,” said Calibia through a bull horn.

Calibia told the Blade in a pre-walkout statement said “to call these policies in favor of respecting trans students’ rights and privacy is to call an apple an orange. The 2022 Transgender Model policies, even as a draft, have begun to actively hurt my community’s mental health.”

“Instead of focusing on academics and our future, we have to sit in class and wonder if we will be safe in school,” Calibia concluded. “To not only take away the 2021 policies, a cornerstone in LGBTQIA+ rights for Virginia, but to mock them with these replacements, is a devastating blow to myself, trans students, queer students, and the whole of Virginia’s public school student body. How can we be safe, if we can be taken out of school-provided counseling, maliciously misgendered, and denied opportunities given to other students simply because of our gender? Accepting queer students in class does not indoctrinate or brainwash kids. It tells queer students like me that it is okay and safe to be ourselves in school.”

Students walk out of McLean High School on Tuesday, Sept. 27, to protest the Youngkin administration’s school policies
(Washington Blade photo by Michael Key)

The student protests in Virginia have made national news.

“This is a president who supports the LGBTQI+ community and has been supporting that community for some time now as a vice president, as senator, and certainly as president now,” said White House Press Secretary Karine Jean-Pierre in response to a question about the protests during her daily press briefing. “And he . . . always is proud to speak out against the mistreatment of that community … We believe and he believes transgender youth should be allowed to be able to go to school freely, to be able to express themselves freely, to be able to have the protections that they need to be who they are.”

“When it comes to this community, he is a partner, and he is a strong ally, as well as the vice president,” Jean-Pierre stated.

Walkouts and rallies were held at middle and high schools in Arlington, Bedford, Buchanan, Chesterfield, Culpeper, Fairfax, Fauquier, Frederick, Henrico, James City, Loudoun, Louisa, Montgomery, Powhatan, Prince George’s, Prince William, Spotsylvania, Stafford, Warren and York Counties as well as in the cities of Chesapeake, Newport News, Portsmouth, Richmond, Williamsburg and Winchester.

“Every parent wants Virginia’s laws to ensure children’s safety, freedom, and to encourage a vibrant and engaging learning experience. But the Virginia Department of Education is rejecting those shared values by advancing policies that will target LGBTQ kids for harassment and mistreatment simply because of who they are,” said Ebbin.

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U.S. Federal Courts

Bisexuality not covered by federal employment law lawsuit claims

“There is nothing in Title VII that prohibits employers from discriminating because of the employee’s sexual or romantic partners”

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John Minor Wisdom United States Court of Appeals Building in New Orleans, Louisiana (Photo Credit: U.S. Courts/GSA)

NEW ORLEANS – Lawyers in a Texas case filed a brief last week arguing that the U.S. Supreme Court’s ruling in Bostock v. Clayton County, in June of 2020, does not apply to bisexual men. In that ruling the High Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because they are gay or transgender.

Lawyers for Braidwood Management, a business owned by hardline anti-LGBTQ activist Steven Hotze, and Bear Creek Bible Church in Keller, Texas, argued in their brief that “An employer who discriminates on account of an employee or job applicant’s bisexual orientation (or conduct) cannot engage in ‘sex’ discrimination as defined,” the lawyers wrote, “because that employer would have taken the exact same action against an identically situated individual of the opposite biological sex.” In other words, employment discrimination based on sexual orientation or gender identity does not apply to bisexuals — as long as bi men are being discriminated against “on equal terms” as bi women.

The Dallas Morning News reported the brief was filed on the day it was due, Sept. 21, by former Texas solicitor general Jonathan Mitchell and Gene Hamilton, with the Trump affiliated American First Legal, are representing the plaintiffs. midway through Bisexuality Awareness Week.

The Dallas Morning News noted that:

Mitchell sued the U.S. Equal Employment Opportunity Commission in 2018, arguing that employers with religious objections should be able to hire and fire employees based on their gender identity or sexual orientation. Last year, U.S. District Judge Reed O’Connor ruled largely in his favor.

But the judge sided with the federal government on two issues — so-called bisexual conduct and certain transgender health care procedures.

In their reply to that ruling with the Fifth Court of Appeals, Hamilton and Mitchell argue the Texas judge erred on these issues. The lawyers explained their reasoning like this: The Supreme Court’s decision said that an employer cannot treat two people differently solely based on their sex under federal employment discrimination rules known as Title VII.

This means, according to their argument, an employer cannot fire a gay man for being attracted to men if it would not also fire a woman for being attracted to men. But that same employer is in the clear if it discriminates equally against all bisexuals because it is not treating bi men and bi women differently, the lawyers argued.

“The text of Title VII prohibits sex discrimination only with respect to the sex of the affected employee or job applicant,” they wrote. “There is nothing in Title VII that prohibits employers from discriminating because of the ‘sex’ of an employee or job applicant’s sexual or romantic partners.”

One of the foundational arguments in their brief the lawyers cite is the fact that U.S. Supreme Court Associate Justice Neil Gorsuch who wrote the majority opinion in Bostock, outlined the fact that “The key to determining whether sex discrimination has taken place is determining whether a worker of the opposite sex would be treated the same.”

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote, leaving out any mention of bisexual workers. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The lawyers are arguing the difference between romantic or sexual partners and gender identity or sexual orientation as it applies under those circumstances.

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