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Pelosi: Supreme Court review to have ‘no impact’ on Equality Act, floor vote in May

Both Supreme Court and Congress to consider LGBT protections

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A spokesperson for Nancy Pelosi said the Supreme Court will have “no impact” on the Equality Act. (Blade file photo by Michael Key)

The decision by the U.S. Supreme Court to review whether existing federal law prohibits anti-LGBT discrimination will have “no impact” on the advancement of legislation seeking to ban it explicitly under federal law, a spokesperson for House Speaker Nancy Pelosi (D-Calif.) said Monday.

Drew Hammill, a Pelosi spokesperson, said via email in response to an inquiry from the Washington Blade the Supreme Court decision will have “no impact” on the legislative process for the Equality Act, which he said is set for floor vote in the U.S. House in May.

“I would just make the point that House passage sends a strong message to SCOTUS,” Hammill said.

Introduced by Rep. David Cicilline (D-R.I. and Sen. Jeff Merkley (D-Ore.), the Equality Act would amend the Civil Rights Act of 1964 and the Fair Housing Act to ban anti-LGBT discrimination in employment, housing, public accommodations, jury service, education, federal programs and credit.

The bill also seeks to update federal law to include sex in the list of protected classes in public accommodation in addition to expanding the definition of public accommodations to include retail stores, banks, transportation services and health care services. Further, the Equality Act would establish that the Religious Freedom Restoration Act — a 1994 law aimed at protecting religious liberty — can’t be used to enable anti-LGBT discrimination.

Meanwhile, the Supreme Court has granted certiorari for three petitions seeking clarification on whether Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex in employment, applies to cases of anti-LGBT discrimination.

Although the ruling on its face will determine whether anti-LGBT discrimination is prohibited under employment non-discrimination law, it will also impact other non-discrimination laws that bar discrimination on the basis of sex, such as the Fair Housing Act and Title IX of the Education Amendments of 1972. (No federal law, however, bars discrimination on the basis of sex in public accommodations.)

As such, a favorable ruling from the Supreme Court for LGBT workers would affirm non-discrimination protections for LGBT people in many aspects of civil rights law, but only the Equality Act would affirm non-discrimination protections for LGBT people with respect to public accommodations.

Conversely, a ruling from the Supreme Court rejecting LGBT protections under Title VII would mean no federal protections exist, making the Equality Act necessary for any LGBT protections under federal law.

The Supreme Court is unlikely to issue a ruling on Title VII until the end of its next term in June 2020. If the House approves the Equality Act (which is almost certain given the Democratic majority and number of co-sponsors to the bill), the legislation could in theory become law as at sooner time, but that’s unlikely with Republicans in control of the Senate and President Trump in the White House.

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U.S. Military/Pentagon

U.S. Army considering letting LGBTQ+ troops transfer out of hostile states

This policy tweak to the existing Army regulations pertaining to compassionate reassignment would clarify the current standard rules

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Top Army G-1 officer & enlisted advisor speaking with Joint Base Lewis-McChord single and dual military parents (Photo Credit: U.S. Army)

ARLINGTON, Va. – A draft policy is circulating among top officials of the U.S. Army that would allow soldiers to be able to request a transfer if they feel state or local laws discriminate against them based on gender, sex, religion, race or pregnancy.

Journalist Steve Beynon writing for Military.com reported last week the guidance, which would update a vague service policy to add specific language on discrimination, is far from final and would need approval from Army Secretary Christine Wormuth. But if enacted, it could be one of the most progressive policies for the Army amid a growing wave of local anti-LGBTQ+ and restrictive contraception laws in conservative-leaning states, where the Army has a majority of its bases and major commands.

“Some states are becoming untenable to live in; there’s a rise in hate crimes and rise in LGBT discrimination,” Lindsay Church, executive director of Minority Veterans of America, an advocacy group, told Military.com. “In order to serve this country, people need to be able to do their job and know their families are safe. All of these states get billions for bases but barely tolerate a lot of the service members.”

This policy tweak to the existing Army regulations pertaining to compassionate reassignment would clarify the current standard rules, which are oft times fairly vague.

A source in the Army told Beynon the new guidance has not yet been fully worked out through the policy planning process or briefed to senior leaders including the Army Secretary or the Office of the Secretary of Defense Lloyd Austin.

“The Army does not comment on leaked, draft documents,” Angel Tomko, a service spokesperson, told Military.com in an emailed statement. “AR 600-100 and 600-200 establish the criteria for which soldiers may request for a compassionate reassignment. The chain of command is responsible for ensuring Soldiers and Families’ needs are supported and maintain a high quality of life.”

A base member wears rainbow socks during Pride Month Five Kilometer Pride Run at Joint Base Andrews, Md., June 28, 2017.
(U.S. Air Force photo by Airman 1st Class Valentina Lopez)

The Crystal City Virginia based RAND Corporation had published a study on Sexual Orientation, Transgender Identity, and Health Among U.S. Active-Duty Service Members in 2015 that listed approximate numbers of LGBTQ+ troops are 6% gay or bisexual and 1% is transgender or nonbinary.

A senior analyst for RAND told the Blade on background those numbers are likely much lower than in actuality as 2015 was less than 4 years after the repeal of ‘Don’t Ask-Don’t Tell’ and prior to the Trump enacted Trans service ban in 2017 which was then repealed by the Biden Administration which has had a chilling effect on open service. Another factor is that the current 18-24 year old troops colloquially referred to as ‘Gen Z’ are much more inclined to embrace an LGBTQ+ identity and that would cause the numbers to be higher than reported.

Also factored in is uncertainty in the tweaking of policy in light of the recent leak of the draft U.S. Supreme Court decision that would effectively repeal Roe v Wade.

According to Military.com it’s unclear whether the Army’s inclusion of pregnancy on the list would protect reproductive care for soldiers if Roe v. Wade is overturned. That language could be intended to protect pregnant service members or their families from employment or other discrimination, but could also be a means for some to argue for transfers based on broader reproductive rights.

One advocacy group pointed out that the current wave of anti-LGBTQ+ legislation will negatively impact the moral of service members:

“What we’re seeing across the board is a small group of elected officials who are trying to politicize and weaponize LGBTQ identities in despicable ways. They’re not only doing that to our youth, but the collateral damage is hurting our service members,” Jacob Thomas, communications director for Common Defense, a progressive advocacy organization, told Military.com. “[Troops] can’t be forced to live in places where they aren’t seen as fully human.”

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Oklahoma

Oklahoma Senate passes anti-Trans bathroom bill sends it to Governor

The law stipulates that all students must use bathrooms and locker rooms that match the sex listed on their birth certificates

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Oklahoma Governor Kevin Stitt (Screenshot/YouTube)

OKLAHOMA CITY – The Oklahoma Republican-majority state Senate passed SB 615 in a 38-7 vote, a measure that will bar transgender students in pre-K through 12th grade at public and public charter schools in the state from using bathrooms consistent with their gender identity.

The bill now heads to Republican Governor Kevin Stitt and will be effective upon his signature into law.

The law stipulates that all students must use bathrooms and locker rooms that match the sex listed on their birth certificates. Transgender students who decline to use the restroom required under the measure would have to use “a single-occupancy restroom or changing room” provided by the school.

At the end of April Stitt signed that explicitly prohibits the use of nonbinary gender markers on state birth certificates and in March he signed into law Senate Bill 2, a bill which would restrict transgender girls from playing on school sports teams that match their gender identity. 

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New Hampshire

New Hampshire’s Republican Governor to veto “Don’t Say Gay” bill

“This bill is antithetical to all the work we have done to ensure individuals in the LGBT community can live a life free from discrimination”

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Governor Chris Sununu (Screenshot/ CBS Boston)

CONCORD – New Hampshire’s Republican Governor Chris Sununu announced Thursday that he will veto HB 1431, titled as the “Parental Bill of Rights,” legislation that would force school officials and faculty to take on the role of outing students to their families.

“This bill as written creates numerous challenges for kids,” the governor said. “I share the concerns of the attorney general and, as such, will veto the bill if it reaches my desk.”

The bill had undergone several changes with a final amended version working through both chambers pushed by Republican leadership.

The New Hampshire Bulletin reported Thursday that the bill has been opposed by the New Hampshire Attorney General’s Office, LGBTQ+ rights groups, civil rights advocates, and teachers unions, who noted that the legislation would require schools to “out” trans students to their parents. They argued that doing so could be dangerous for some students and might discourage others from seeking help at school.

In interviews with Manchester’s ABC News affiliate WMUR-TV 9, supporters claimed it would allow parents to be more involved with their children’s school lives.

“They don’t know my child like I do,” said state Sen. Bill Gannon, R-Sandown. “I’m the one responsible for them. The child doesn’t have capacity on his own to give up whether or not he’s going to get certain medical treatment. I want to know what’s going on in my kid’s life.”

“So, there are a lot of cases where things are going on in a school system, and the parents are never informed, and this will allow for notification to the parents, and there’s a long list of things that would be notified – everything from bullying to failing grades,” said JR Hoell, treasurer of Rebuild NH, a group that organized around opposing COVID-19 vaccine mandates.

LGBTQ+ advocacy groups and ally lawmakers decry the measure WMUR reported:

Opponents are blasting the bill, saying it would mean that if a student joins a specific club or confides in an adviser or teacher, schools would then inform parents, essentially outing gay, lesbian and transgender students.

“This bill is antithetical to all the work we have done in the state to ensure that individuals in the LGBT community can live a life free from discrimination,” said state Sen. Becky Whitley, D-Hopkinton.

“It’s totally inappropriate for school officials to take on the role of outing students to their families, and coming out should always be an intimate moment within a family, not a clumsy event,” said Chris Erchull, of GLBTQ Legal Advocates & Defenders.

Last December a diverse group of educators, advocacy groups, and law firms filed a federal lawsuit challenging a New Hampshire classroom censorship law, contained within state budget bill HB2, which discourages public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity in the classroom.

“This unconstitutionally vague law disallows students from receiving the inclusive, complete education they deserve, and from having important conversations on race, gender, disability, sexual orientation, and gender identity in the classroom,” said Gilles Bissonnette, Legal Director of the ACLU of New Hampshire at the time of the lawsuit. “It is an attack on educators who are simply doing their job. Just four months into the school year, teachers are reporting being afraid to teach under this law for fear of being taken to court. This law, through vagueness and fear, erases the legacy of discrimination and lived experiences of Black and Brown people, women and girls, LGBTQ+ people, and people with disabilities.”

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