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Supreme Court agrees to hear whether federal law bars anti-LGBT discrimination

Decision may not come until June 2020

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The Supreme Court has agreed to hear whether Title VII covers LGBT workers. (Blade file photo by Michael Key)

The U.S. Supreme Court has agreed hear cases seeking to determine once and for all if anti-LGBT discrimination in the workplace is prohibited under federal law.

In its orders list on Monday, the court announced it has granted certiorari in response to three separate petitions seeking clarification on whether Title VII of Civil Rights of 1964, which bars sex discrimination in the workplace, applies to cases of anti-LGBT discrimination.

Two of the petitions — the filings for the cases of Zarda v. Altitude Express and Bostock v. Clayton County — sought clarification on whether Title VII applies to cases of sexual-orientation discrimination. The other petition — a filing in the case of Harris Funeral Homes v. EEOC — seeks clarification on whether Title VII applies to anti-transgender discrimination.

Masen Davis, CEO of Freedom for All Americans, said in a statement the time has come “for the Supreme Court to cement into place our core American values of treating all people with respect and dignity and allowing everyone a fair shot no matter who they are.”

“Like other Americans, LGBTQ people want to make a living and provide for their families,” Davis said. “A win in these cases would improve the lives of millions of LGBTQ people and their families as well as send a message about the inherent importance of all of us being able to go to work, to live our everyday lives free from discrimination, and to have the means to take care of ourselves and our loved ones.”

Because the court decided to grant certiorari in April, the court will be unable to reach a conclusion by the time it adjourns for this term in June. The decision will have to wait until the next term, which means a ruling may not happen until June 2020.

The petition in the Harris case was filed in behalf of Harris Funeral Homes by the anti-LGBT legal firm Alliance Defending Freedom, which called on the Supreme Court to issue a more restrictive interpretation of Title VII that would omit transgender protections.

“Neither government agencies nor the courts have authority to rewrite federal law by replacing sex with gender identity — a change with widespread consequences for everyone,” ADF Vice President of Appellate Advocacy John Bursch said. “Businesses have the right to rely on what the law is — not what government agencies want it to be — when they create and enforce employment policies. The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves.”

In a conference call with reporters Monday, Bursch told the Washington Blade Alliance Defending Freedom doesn’t have a position on whether Title VII applies to cases of sexual-orientation discrimination.

“The issue in our case is about what Congress meant when it prohibited discrimination based on sex in 1964 and I don’t think any reasonable person would look at what was happening in 1964 and conclude that they intended to address gender identity in any way shape or form,” Bursch said. “I suspect that there are similar arguments that can be advanced with respect to sexual orientation, but they’re obviously distinct cases.”

LGBT people have asserted workplace discrimination on the basis of sexual orientation and gender identity constitutes sex discrimination and is unlawful under Title VII for decades.

With respect to sexual-orientation discrimination, courts have more recently adopted the idea Title VII applies to sex discrimination. The Second Circuit and Seventh Circuit have affirmed Title VII prohibits anti-gay discrimination, but the Eleventh Circuit recently rejected the idea.

Case law affirming Title VII covers anti-transgender discrimination is more developed. Over nearly two decades, eight federal appeals courts and 35 federal district courts have affirmed anti-transgender discrimination is sex discrimination and unlawful, according to the National Center for Transgender Equality.

James Esseks, director of the LGBT project at the American Civil Liberties Union, said in a conference call with reporters a ruling from Supreme Court against LGBT protections would conflict with the public acceptance for LGBT rights and the perception held by 70 percent of people anti-LGBT discrimination is already unlawful.

“There are cases going back to 1977 where courts have protected transgender workers or transgender individuals from sex discrimination,” Esseks said. “In fact, the public would be shocked if the Supreme Court ruled that it’s perfectly legal to fire someone just because she’s LGBTQ.”

The ACLU is co-counsel for the gay plaintiff in the Zarda case and the transgender plaintiff in the Harris case, but isn’t affiliated with the Bostock case.

Although the upcoming Supreme Court 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, the Affordable Care Act and Title IX of the Education Amendments of 1972.

Esseks pointed out LGBT people have taken advantage of laws barring sex discrimination in cases of discrimination not just in employment, but also education, housing and health care. Transgender people have won cases asserted denial of transition-related health care, including gender reassignment surgery, constitutes unlawful sex discrimination.

“This isn’t a question of is the Supreme Court going to for the first time say that LGBT people get to sue from discrimination,” Esseks said. “LGBT people are suing and have been suing for years and have been getting remedies for the discrimination where the courts say it is real, and so, the potential consequence here is widespread changes potential in the civil rights protections that LGBTQ people currently have.”

(No federal law bars discrimination on the basis of sex in public accommodations, so discriminating against LGBT people in public accommodations will be legal regardless of what the Supreme Court decides.)

The Supreme Court has agreed to hear the cases at the same time the Democratic-controlled House is moving forward with the Equality Act, legislation that would amend the Civil Rights Act of 1964 to prohibit explicitly anti-LGBT discrimination in employment, housing, credit, jury service, federally funded programs, education and public accommodations”

Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement the Supreme Court has “an opportunity to clarify this area of law to ensure protections for LGBTQ people in many important areas of life,” but legislative action is still necessary.

“The impact of this decision will have very real consequences for millions of LGBTQ people across the country,” Warbelow said. “Regardless of the eventual outcome, it’s critical that Congress pass the Equality Act to address the significant gaps in federal civil rights laws and improve protections for everyone.”

The petitions have been pending before the court for some time. The court grants certiorari the week after the U.S. Eighth Circuit Court of Appeals held arguments in the case of Horton v. Midwest Geriatric Management on whether Title VII covers sexual-orientation discrimination.

It remains to be seen what decision the Supreme Court will reach. The cases reach the Supreme Court after Trump has remade the bench with the appointments. of U.S. Associate Justices Neil Gorsuch and Brett Kavanaugh. LGBT groups, fearing the appointments would be hostile to LGBT rights, opposed the confirmation of both justices.

Esseks, nonetheless, told the Blade he’s “hopeful” the Supreme Court will reach a decision affirming LGBT protection under existing law.

“I think that the lower courts that have recognized that anti-LGBT discrimination is a form of sex discrimination have it right,” Esseks said. “I think the public has it right. The public already agrees that we are protected. And so, I think the court would be going out on a limb with the public and, I think, legal argument by ruling against us as opposed to ruling for us.”

Asked whether it helps and hurts to have the sexual orientation and gender identity issue decided at the same time, Esseks said “it’s fine” because “they’re all of a piece.”

“These are all just different forms of sex discrimination, and I think it’s important for the court and the country to get used to thinking about it through that lens because these are different kinds of sex discrimination,” Esseks said.

The Zarda case has a standing issue. Altitude Express, the company that allegedly fired Zarda for being gay, no longer exists, but another company bought it assets. The question is whether the new company assumes liability for the company it bought without having engaged in anti-gay discrimination itself.

Esseks said standing, however, won’t be an issue because the Supreme Court also granted review in the Bostock, which has no standing complications.

“The fact that the court has taken review in both Bostock and Zarda and consolidated them means that for better or worse the standing questions, I think, become irrelevant because even if there are standing issues in Zarda, Bostock will provide a vehicle for the court to reach the issue,” Esseks said.

The Trump administration has already asserted LGBT workers aren’t entitled to non-discrimination protections under Title VII. The U.S. Justice Department argued Title VII shouldn’t apply to cases of sexual-orientation discrimination before the U.S. Second Circuit Court of Appeals in the Zarda case and file a brief before the Supreme Court arguing the U.S. Sixth Circuit Court of Appeals wrongly decided Title VII applies to cases of anti-transgender discrimination in the Harris case.

But the U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal civil rights laws, has continued to argue Title VII applies to LGBT workers in the Trump administration. Last week, the EEOC sent a lawyer to participate in oral arguments in the Horton case before the Eighth Circuit to assert those protections.

Esseks said what role of the EEOC will take before the Supreme Court is an “interesting question” because the agency initially brought the case on behalf Aimee Stephens, the transgender plaintiff in the Harris case, and are “technically respondents,” but the Justice Department, which is charged with arguing on behalf of the U.S. government before the Supreme Court, has taken the opposite position.

“We are thinking through whether we’re going to ask for formal realignment to change the caption, but certainly I fully expect the government to be arguing against civil rights protections for LGBTQ people in both cases,” Esseks said.

Laura Durso, vice president of the LGBT research and communications Project at the Center for American Progress, said in a statement the Supreme Court should issue a ruling affirming non-discrimination for LGBT people.

“People should have the right to love who they love and be who they are without fear of losing their job,” Durso said. “Too many lesbian, gay, bisexual, and transgender people face bias in the workplace, making it harder to provide for themselves and their families. The Supreme Court should affirm the growing consensus of federal courts in recognizing the reality of this discrimination in order to ensure that LGBT employees are guaranteed the same protections afforded to other workers.”

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U.S. Appellate Court rules against anti-LGBTQ website designer

In the 2-1 ruling, the court said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups.

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U.S. 10th Circuit Court of Appeals, Byron White Courthouse Denver Colorado (Photo Credit - Library of Congress Collections)

DENVER – A three judge panel of the U.S. 10th Circuit Court of Appeals on Monday ruled against a Lakewood, Colorado based web designer who sued to challenge the state’s anti-discrimination law, claiming that it would force her to design wedding websites for same-sex couples which violated her ‘Christian’ beliefs.

Lorie Smith, represented by anti-LGBTQ legal group, the Alliance Defending Freedom, (ADF)- listed by the Southern Poverty Law Center as an anti-LGBTQ extremist hate group, claimed in court filings that the Colorado law violated Smith’s freedom of speech and freedom of religious expression.

In the 2-1 ruling, the panel said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through its law.

The law that is being challenged by Smith and ADF is the same one that was argued before the U.S. Supreme Court and decided in 2018, Masterpiece Cakeshop, Ltd., et al., Petitioners v. Colorado Civil Rights Commission, et al., in the case of another Lakewood business and individual, Jack Phillips.

The high court in the Masterpiece Bakeshop case narrowly ruled in a 7–2 decision, the Colorado Civil Rights Commission had not acted employing religious neutrality. In the decision Associate Justice Anthony Kennedy, writing for the court majority on Monday, said it is “unexceptional” that Colorado law “can protect gay persons in acquiring products and services on the same terms and conditions that are offered to other members of the public,” but at the same time, “the law must be applied in a manner that is neutral toward religion.”

The high court however did not rule on the broader intersection of anti-discrimination laws, free exercise of religion, and freedom of speech, and whether a business can invoke religious objections to refuse service to LGBTQ people.

In a statement the ADF’s senior counsel, John Bursch noted that the group would appeal Monday’s ruling. “The government should never force creative professionals to promote a message or cause with which they disagree. That is quintessential free speech and artistic freedom,” Bursch said.

“This really isn’t about cake or websites or flowers,” Lambda Legal senior counsel Jennifer C. Pizer said in a statement. “It’s about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals and public humiliation in countless places – from fertility clinics to funeral homes and everywhere in between.”

Lambda Legal, is a legal group that fights for the civil rights of LGBTQ people and had submitted a brief supporting the state’s anti-discrimination law in the case.

Colorado Solicitor General Eric Olson questioned whether Smith should even be allowed to challenge the law since she had not started offering wedding websites yet, the Associated Press reported.

But if she did, Olson said, her argument would mean she would refuse to create a website for a hypothetical same-sex couple named Alex and Taylor but agree to make the same one for an opposite-sex couple with the same names. He said that would be discrimination under the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation.

Judge Mark Beck Briscoe wrote in Monday’s majority opinion (303 Creative, et al. v. Elenis, et al.) that “we must also consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation. Combatting such discrimination is, like individual autonomy, `essential’ to our democratic ideals.”

In his dissent, Chief Judge Timothy Tymkovich wrote that “this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do.”

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More Americans personally know someone who’s transgender, non-binary

Half of Americans say they would be either very or somewhat comfortable using a gender-neutral pronoun to refer to someone if asked to do so

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Teen Trans activist Landon Richie speaking at a rally for Trans rights in Austin, Texas in April 2021 (Blade file photo)

WASHINGTON – More Americans personally know a transgender person or someone who goes by gender-neutral pronouns, according to new data from the non-partisan Pew Research Center.

A survey found 42 percent of Americans know someone who’s transgender, who is up from 37 percent who said so in 2017. Although most Americans, 57 percent, still say they don’t know anyone who’s transgender, that’s down from 63 percent five years ago.

Similarly, 26 percent of Americans say they know someone who uses non-binary gender pronouns compared to the 18 percent in 2018 who said they knew someone uses pronouns such as “they” as opposed to “he” or “she.”

At the same time, comfort levels with using gender-neutral pronouns – as well as their opinions on whether someone’s gender can differ from the sex they were assigned at birth – has remained about the same. Half of Americans say they would be either very or somewhat comfortable using a gender-neutral pronoun to refer to someone if asked to do so, compared to 48 percent who say they would not be comfortable. The numbers, according to Pew Research, are basically unchanged since 2018.

The survey found profound differences by age, party, and education in knowing a transgender person or someone who goes by gender-neutral pronouns, although in both parties growing shares of Americans report knowing a person who’s transgender.

For Americans under age 30, some 53 percent say they know a transgender person, which is up from 44 percent in 2017. In the same age group, 46 percent of younger U.S. adults know someone who goes by gender-neutral pronouns, compared to 32 percent in 2018.

The Pew Research Center conducted the survey of 10,606 U.S. adults between June 14 and June 17. The survey is weighted to reflect the U.S. adult population in terms of gender, race, ethnicity, partisan affiliation, education, and other categories, according to Pew Research.

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Louisiana lawmakers fail to overturn Edwards veto of Trans sports bill

Edwards further said that the bill was “mean” because it targets “the most emotionally fragile children in the state of Louisiana.”

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Louisiana Democratic Governor John Bel Edwards (Photo Credit: Official state portrait)

BATON ROUGE – Louisiana lawmakers failed to override Gov. John Bel Edwards’ (D) veto last month of a bill 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. 

The Republican majority state House chamber failed to override the Governor’s veto after voting 68-30 to override it, according to the state legislature’s website.

The vote narrowly missed the 70-vote threshold needed in the lower chamber to override the veto.

Two-thirds of both the House and Senate must vote to override a governor’s veto, according to the local Baton Rouge newspaper The Advocate.

The Governor reacted to the news that his veto withstood Republican efforts to overturn it in a press conference Wednesday.

Edwards noted that in his view he had “rejected a play” that had no place in Louisiana. 

“I would rather the headlines going out from today be that Louisiana did what was right and best. We rejected a play out of a national playbook that just had no place in Louisiana. That bill wasn’t crafted for our state, I mean go read it and look at the arguments that were made. None of that applies here,” Edwards said.

He further said that the bill was “mean” because it targets “the most emotionally fragile children in the state of Louisiana.” 

“We have to be better than that,” Edwards said. “We have to be better than that.” 

 

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