In a stunning 6-3 decision written by Justice Neil Gorsuch (!), the Supreme Court has ruled that LGBTQ people cannot be discriminated against on the basis of their sexual orientation or gender identity. It is now against the law to be fired from your job for being LGBTQ. Gorsuch wrote the majority opinion, with Chief Justice John Roberts joining: “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,” he wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Title VII bars discrimination on the basis of “race, color, national origin, sex, and religion,” but the original statute did not define what “sex” meant. The Trump administration argued that the original intent of the drafters of the Civil Rights Act of 1964 would not have included LGBTQ workers, but was focused specifically on women and meant only cis women. Gorsuch doesn’t let them pass it off that way—he acts like an actual textualist. “Only the written word is the law,” he wrote, “and all persons are entitled to its benefit.”
This blog originally appeared at Daily Kos on June 15, 2020. Reprinted with permission.
About the Author: Joan McCarter is a Senior Political Writer for Daily Kos.
The EEOC quietly acknowledged nonbinary workers in a change to the “Frequently Asked Questions” section on its site.
The Equal Employment Opportunity Commission (EEOC), an independent federal agency that is responsible for enforcing federal civil rights laws against workplace discrimination, recently changed its website to address how employers can report workers as nonbinary.
Before the EEOC’s actions last week, employers didn’t have a way to report nonbinary workers in what are known as EEO-1 reports, which are filed with the agency as mandated by Title VII of the Civil Rights Act of 1967.
More Americans are informing people that their gender is under the nonbinary umbrella, which places a pressing need on employers to recognize their gender, and more states are recognizing this diversity.
According to a Harris Poll done on behalf of GLAAD in 2017, 12% of millennials say they are transgender, agender, genderfluid, or bigender, which is double the percentage of Generation X who said the same. The report said there were growing levels of young people whose genders are outside of the gender binary. More than one third of people in Generation Z say they know someone who uses non-binary pronouns such as they and them.
A few states allow nonbinary people to choose a marker other than “M” or “F” on government identification such as driver’s licenses and ID cards. California, Oregon, Minnesota, Colorado, Maine, Maryland, Hawaii, and the District of Columbia allow nonbinary people to have this option such as an “X” designation. Washington, Oregon, and New Jersey allow nonbinary birth certificates.
The EEOC has recognized this need under its Frequently Asked Questions page addressing 2017 and 2018 compensation data. According to the National Law Review, these changes were made on August 15.
Although this guidance for employers is not a long-term solution for nonbinary people, it is an improvement over completely erasing nonbinary people’s genders. It also defies the binary understanding of gender that the Trump administration has embraced from the beginning. The EEOC directs employers to write the nonbinary worker’s gender in the comment box on the Certification Page and to preface it with “Additional Employee Data.” The EEOC provides an example:
Harper Jean Tobin, director of policy at the National Center for Transgender Equality, said the EEOC was likely responding to employers’ questions about how to account for nonbinary workers.
“There has not been a concern that something bad was going to happen to employers because they didn’t include this data. Employers wanted to know how to provide accurate data to the EEOC so the EEOC said that’s fine. We’re not going to get into the business of defining people’s gender,” she said.
“If you have employees who are nonbinary, you can use the narrative comment section of the form, like you could for anything else that doesn’t fit into the boxes they give you to report a number of nonbinary employees.”
Tobin compared this case of acknowledging nonbinary workers to actions at the U.S. Department of Health and Human Services to undo protections for transgender people. HHS recently rolled out a proposal that would quash guidelines that are part of the ACA which explicitly includes gender identity under sex discrimination. Last year, The New York Times also reported on an HHS memo that classified sex as either male or female and determined at birth.
“It does stand in contrast to the position U.S. Health and Human Services has staked out in its recent health care rule, which is a position contrary to medical science that gender is immutably determined at birth and that there are only two genders,” she said.
“The EEOC is recognizing the reality that employers know who their own workforce is.”
“The EEOC is recognizing the reality that employers know who their own workforce is, and who their employees are because they work with them every day, whereas HHS is simply covering its eyes and saying we don’t see nonbinary people. They don’t exist. That is part of a broader problem in the HHS proposal and its approach to civil rights laws. Denying that gender identity is a core part of human identity, that gender transition is often medically necessary, that our civil rights laws have long been understood to protect transgender people from discrimination.”
Although this may seem like a small tweak, it matters to nonbinary workers to be counted and not forced to choose between two genders when neither accurately describes them.
This action can also be understood in the context of other recent actions from the EEOC. Last week, the Justice Department filed a court brief on behalf of the EEOC to argue that transgender people, and in turn other people affected by sex stereotypes, are not protected under Title VII of the Civil Rights Act. It would essentially overturn Price Waterhouse v. Hopkins (1989). In 2014, the EEOC sued for alleged discrimination against Aimee Stephens, a trans woman who said she was fired because she informed her employer that she was a woman.
Stephens said the termination violated the Civil Rights Act. The EEOC won in the Sixth Circuit Court of Appeals. At the U.S. Supreme Court level, however, the EEOC has to be represented by the Solicitor General, who can say the opposite of what the EEOC has said in the lower courts. Tobin said this rarely happens, but has occurred twice in recent months. Although the general counsel for an agency usually signs these briefs, the EEOC did not. The National Law Journal writes that this may be evidence that the EEOC doesn’t agree with the Justice Department’s argument.
“It’s telling that lawyers for the EEOC weren’t willing to sign their names to the brief … We’ve had many cases in the recent past where Justice Department lawyers were not willing to sign their names to briefs filed on behalf of the administration because of its legal arguments and this may be another such case,” Tobin said. “In this case, it also happens to not reflect the view of commission in the way that day-to-day it’s still interpreting and enforcing the law — at least what is consistent with most of the case law.”
There have been attempts to politicize the EEOC. Members of the commission are usually reconfirmed without much attention but in 2018, Sen. Mike Lee (R-UT), objected to the reappointment of Chai Feldblum, who is a lesbian. Lee said she had “radical views on marriage.”
These nominations are usually passed by unanimous consent. Feldblum later withdrewher name from the nomination process. In an interview with HRDive in February, she said that Title VII protects sexual orientation and gender identity.
This article was originally published at Think Progress on August 20, 2019. Reprinted with permission.
About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.
A gay middle school English teacher, Amy Estes, said she had to take a mental health leave after student harassment grew more and more intense and her school did little to mitigate the problem.
It all began when a former student asked to stay in touch with her and followed Estes on Instagram. After Estes posted a photo of herself and her partner, the former student saw the photo and spread word to other students at Spring View Middle School in Rocklin Unified School District in California, Estes told ThinkProgress.
“So much of the conversation was negative and hurtful. It wasn’t like ‘She’s gay, that’s whatever,’ it was ‘Oh that’s gross. That’s disgusting,’” Estes said of the hurtful comments students posted about her online.
Estes said she experienced harassment, was told to take down a poster meant to help LGBTQ students feel safe, and felt that the administrators said LGBTQ student would need to adhere to requirements others did not.
Last September, a student approached her to tell her students were talking about her online. She informed the administration, but they minimized it as “middle school drama,” Estes said. She then had a conversation with a student who she believed was one of the most involved in the discussion of her sexuality online, at the suggestion of administration, but the student denied being involved. Estes said that student misbehaved several times in class that were unrelated to the harassment, and she reached out to his mother. But the mother accused of her of making it personal, Estes said.
“The tone of email was that I was retaliating against her child for something he didn’t do and that she had seen the things on Instagram and Snapchat and that was my private life, and how dare I rope her child into it?” Estes said. “And I was blindsided at that point. I didn’t realize how huge it had gotten. So I went to the administration again and still nothing happened. They basically said ‘OK we will deal with that parent from here on out but there is nothing we can do otherwise’ and I said ‘Well I think we should address this on a larger scale.’”
Estes said that since she shares English with a group of 120 students and three other teachers, she suggested that teachers have a conversation with the whole group to confirm that “Yes, I’m gay, and you figured it out. Here’s how we are going to deal with it.”
“The principal’s words exact words were ‘Well we don’t want you coming out unless it absolutely comes to that,’” Estes said.
Although to many Americans, there appears to be progress in visibility and legal protections for the LGBTQ community since same-sex marriage became the law in all 50 states in 2015 and films depicting queer relationships have flourished at award ceremonies, the reality is very different for queer and trans teachers. There is no federal law that gives specific protections to queer and trans workers. Only 20 states and Washington, D.C. have these protections for both queer and trans workers. California is among those states and public schools are required to teach LGBTQ history, but at Spring View, Estes still faced barriers to LGBTQ inclusion.
“There are students in my classroom that I know are queer and they’re seeing this, like, ‘Holy cow, this is happening to an adult. What would happen to me if I were out with my peers?
A 2017 Center for American Progress survey found that 36.5 percent of all people in the LGBTQ community surveyed hid a personal relationship and 62.9 percent of those who experienced some kind of discrimination hid personal relationships. In the workplace, LGBTQ people of color were more likely to hide gender identity and sexual orientation from employers than white people in the LGBTQ community. A 2017 report by the Harvard T.H. Chan School of Public Health, the Robert Wood Johnson Foundation, and National Public Radio found that one in five people in the community said they were discriminated against when being considered for a promotion, applying for a job, or looking for housing.
Estes’ experience is similar to other teachers who administrators failed to support when they were criticized by parents who disapproved of queer teachers being out in the classroom or simply acknowledging the existence of people in the LGBTQ community. Of course, one of the main differences is that Estes was outed and did not get the chance to control how people learned she is gay. But the lack of administration support once the information came out fits a pattern. A Texas elementary school teacher, Stacy Bailey, was suspended after she mentioned her wife to students. A Kentucky chorus teacher, Nicholas Breiner, lost his job a month after he came out as bisexual on Instagram, which he said he did to show LGBTQ students they are not alone. Breiner said the deputy superintendent questioned him about his sexual orientation. In 2015, a teacher read a book about two princes falling in love and dealt with significant parent backlash, but administrators did not have his back. Teachers have lost their jobs after getting married.
Estes said there is still a lot of fear among teachers in the LGBTQ community about being themselves in the classroom.
“I don’t want to categorize my district specifically at all but what I have heard from a number of teachers is that despite marriage equality being the law of the land there is still a lot of living in the shadows,” Estes said.
Estes added, “The idea that I could just offhand mention my partner and what our life is like to students — that isn’t something that just happens for gay teachers. It is a reality for many queer teachers that we might have certain legal rights but in terms of just being ourselves, I think there are a lot of unwritten rules. The assumption that my mentioning my female partner somehow that’s going to be turned into pressure for students to be gay or how-to course on gay culture.”
After harassment became worse, Estes took steps toward greater privacy on all of her personal social media accounts. But students found her professional social media and posted hateful language on a professional video on student discipline produced for her master’s program on school leadership, she said. Estes said she went to administrators again and worked on a plan for a lesson on tolerance, with administrative encouragement but without administrative help, to address the issue. Administrators didn’t approve of her approach and said they’d get back to her with revisions but didn’t. Months later, not long after a student made homophobic comments on a school project, and progress stalled yet again, she went to her union representative.
Estes said that after she went to various teachers union representatives who eventually referred her to a lawyer, she thinks some people in the community perceive her as out to make money, but she wants them to know she is doing this for the LGBTQ community.
“There are students in my classroom that I know are queer and they’re seeing this, like, ‘Holy cow, this is happening to an adult. What would happen to me if I were out with my peers?’” she said.
Thirty-three percent of LGBTQ students said they were physically harassed in the past year because of sexual orientation and 23 percent were physically harassed because of their gender, according to a 2014 survey from the Gay, Lesbian & Straight Education Network (GLSEN).
Estes said that, unrelated to the harassment issue, she mentioned the idea of starting a Gay Straight Alliance (GSA) to administrators. A GSA is a student-led group that gives students in the LGBTQ community a safe space to fully be themselves. Some schools have resisted GSAs after conservative residents and parents objected to the creation of these student-led groups. One school district’s board even considered eliminating all student groups simply to avoid the assertion that they were targeting a GSA.
Although it was not a requirement for other clubs to have administrators or counselors at meetings, Spring View said an administrator or counselor would have to be present at GSA meetings, she said.
In 2016, Estes also put up a GLSEN poster meant to affirm queer and trans students, but the school principal asked her to remove it. She followed orders. After that incident and other indications that staff may not be comfortable with talking about LGBTQ issues, Estes went back to the principal to talk about inclusion at the school. She said the principal said she would “see what the district has in mind” and in the 2017-2018 school year, she broached the issue again.
“I felt strongly that I should be able to hang up the safe space sign. So I went to principal again and said ‘I really need to hang this up’ and she said ‘I’ll look into it in the district and in the meantime don’t do anything until I have given you permission to do so’ and so I didn’t. I followed up with her and nothing happened. She never got back to me. When I approached her again, she said I’m still looking into it.”
After struggling with harassment and what appeared to be a lack of concern from administration on how to make LGBTQ teachers and students feel welcome, Estes, who has had anxiety and depression since her teens, took a mental health leave. She is still on that leave until she feels comfortable going back to work.
Community members have spoken in front of the school board to support Estes after the harassment she experienced for months. During the school board meeting earlier this month, school board president Todd Lowell said the Rocklin Unified School District will make sure that “all our students, staff and families feel welcome, safe and supported” and said Estes’ comments were one side of the story, according to ABC 10.
The Rocklin Unified School District said it could not answer all of ThinkProgress’ questions due to pending litigation. However, in response to a question about whether teachers in the LGBTQ community are expected not to be out in the classroom, Diana Capra, spokesperson for the district, responded, “The District has the same expectations of all its teachers.” When asked about the GSA issues Estes mentioned, Capra said, “While we can not comment regarding Ms. Estes specifically due to pending litigation, we can share with you there are Gay Straight Alliance groups at some of our secondary District schools. They are initiated through the regular process to start a student club.”
Capra added that its middle and high schools have wellness programs for students and staff and plan to include parent, guardian and staff resource nights around social emotional wellness strategies. She said it has sent administrators and staff to The Museum of Tolerance, which the district says help “better understand and support students and staff who are LGBTQ.” Capra said staff is implementing strategies for intervention in situations where people are being treated unfairly. The district will also roll out a plan for inclusivity in its schools “that involves engaging staff in examining belief systems and behaviors before it moves into adopting formal programs and strategies, in order to ensure enduring outcomes for our District so all students and staff feel welcome, safe and supported.”
Estes said she doesn’t want a punitive approach for students who participate in this kind of harassment. She said she wants consequences to be more in line with restorative practices that allow students to talk to each other about the hurt they’re experiencing and repair relationships. She has been working with a lawyer to reach an agreement with the school district but did not reach one at the time she spoke with ThinkProgress.
This article was originally published at ThinkProgress on June 26, 2018. Reprinted with permission.
About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.
On Wednesday evening, the Department of Justice moved to undermine rights for LGBTQ people to ensure they are treated fairly in the workplace. The department filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.
The federal law in question is Title VII, which is part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.
The case before the U.S. Second Circuit Court of Appeals, Zarda v. Altitude Express, centers on a now deceased skydiver. In 2010, Zarda said he was fired because of his sexual orientation. In April, the Second Circuit decided that it would not accept the argument that discrimination on sexual orientation isn’t permitted under Title VII. However, Lambda Legal requested that the ruling be reconsidered, which is why the Justice Department planned to file its amicus brief.
The power of the federal government to influence LGBTQ workplace rights can’t be underestimated, said Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress. ThinkProgress is an editorially independent news site housed in the Center for American Progress Action Fund.
“It is the Justice Department of the U.S. It’s not just anyone, so it’s definitely going to have a lot of weight because it is the position of the U.S. government, so it will be interesting to see how Second Circuit takes those arguments,” Gruberg said.
The role of Title VII in protecting lesbian, bisexual, and gay people against discrimination has been fuzzier than the issue of whether it can protect transgender people from discrimination. The U.S. Equal Employment Opportunity Commission recognized that Title VII protects transgender people from discrimination in 2012. In 2015, the agency also held that Title VII covers claims of discrimination on the basis of sexual orientation. But court decisions on sexual orientation protections have been mixed.
The strongest decision for the recognition of sexual orientation discrimination under Title VII was in Hively v. Ivy Community College, in which the Seventh Circuit held that sexual orientation was covered under sex discrimination in Title VII for three reasons. In that ruling, Chief Judge Diane Wood referenced Price Waterhouse V. Hopkins, a case that is commonly used to support sexual orientation as protected through Title VII by arguing that says sex discrimination includes sex stereotyping. If a stereotypical woman is considered to be heterosexual, then dating women is a failure to conform. Looking at it another way, if a woman were a man dating a woman she would not face discrimination; therefore she is facing discrimination because she is a woman. And yet another way to consider discrimination would to look at the matter of association. The Loving v. Virginia case found that discrimination based on association with someone of a different race is discrimination on the basis of race. In the case of sexual orientation, Wood used this “associational theory” to say that a refusal to promote someone based on their association with someone of the same sex qualifies as sex discrimination.
Gruberg said that with conflicting decisions from the courts, including a March 11th Circuit ruling that Title VII does not cover sexual orientation, and statements from judges such as Chief Judge Robert Katzmann of the Second Circuit U.S. Court of Appeals that discrimination on the basis of sexual orientation is likely covered under Title VII, the issue could come before the U.S. Supreme Court.
“There has been an indication last time they considered this, where Chief Katzmann noted that this is still a developing issue in courts and he felt that court should reexamine whether sex orientation discrimination is covered under Title VII, so it has been mixed,” Gruberg said. “We’re already at a circuit split so it’s something I am convinced is going to be in front of the Supreme Court soon.”
In the brief, the Justice Department noted in Hively, Judge Diane Sykes said sex as “common, ordinary usage in 1964” means “biologically male or female.” Gruberg, who commented before the brief was released, said it would not make sense for the department to address gender identity, given the courts’ past rulings.
“Courts have been much more willing to see that gender identity discrimination is straight up sex discrimination. That has not really been a question. Sexual orientation is a little bit [of a question], so it is shocking that DOJ would bring that [gender identity] up,” Gruberg said. “That is not as contested in federal courts and yet they are bringing it up as an assault on the idea that trans people have civil rights protections.”
Gruberg said that the department will likely take the most prevalent argument against including sexual orientation and say that the statute doesn’t explicitly mention sexual orientation.
“But it doesn’t say sex stereotyping either, and the courts ruled on that, and it doesn’t mention sexual harassment but we now see harassment as covered,” Gruberg said. “What it means under Title VII has been understood as far more broad than what Congress in 60s believed it meant… It is a willful disregard of the evolving definition of sex discrimination.”] This article was originally published at ThinkProgress on July 26, 2017. Reprinted with permission.
About the Author: Casey Quinlan is a policy reporter at ThinkProgress.
Sarah Farley had worked at a law firm where she participated in the firm’s Profit Sharing Plan – a plan qualified under the Employee Retirement Income Security Act (ERISA). The Plan provides that death benefits be paid to the participant’s “surviving Spouse.”
Sarah then married Jean Tobits in Canada. When Sarah died, both Jean and Sarah’s parents claimed the death benefits.
The dispute went to federal district court in Pennsylvania (Cozen O’Connor PC v. Tobits) where the judge had no trouble deciding that Jean was Sarah’s surviving spouse.
In United States v. Windsor (US Supreme Court 06/26/2013) the Supreme Court held that Section 3 of theDefense of Marriage Act (DOMA) – defining “spouse” as a person of the opposite sex – is unconstitutional. Therefore, since Sarah and Jean were lawfully married, and that marriage is recognized by the laws of Illinois, ERISA has to be interpreted as meaning Jean was Sarah’s spouse. And thus the law firm’s ERISA plan has to be interpreted as meaning Jean was Sarah’s spouse.
This leaves me with one huge question: Will you get the same result in every state? That seems doubtful to me. The opinion in Windsor (a 5-4 decision) relied heavily on the fact that Windsor’s same-sex marriage was recognized by the State of New York (and the Tobits marriage was recognized by the State of Illinois). As Justice Kennedy put it, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” So, if you’re in a state where same-sex marriages are not recognized, it may be difficult to apply the logic of the Windsor case.
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