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Tag: LGBTQ

The New ‘Lavender Scare’ Is an Attack on the Working Class

Posted on by Maximillian Alvarez
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Maximillion Alvarez

Things are getting very dark in this country, and it’s likely going to get worse before it gets better.

At every turn — as collective society breaks down, as the ruling class continues to rob us blind, as humanity barrels towards climate catastrophe — working people are being encouraged to turn on each other and to see certain groups of their fellow workers as the enemy.

From the demonization and increasingly violent attacks against LGBTQIA+ people, to an extremist-dominated Supreme Court preparing to strip away queer people’s right to marry, to legislatures around the country working to eliminate trans people’s right to exist, we must respond to these assaults on our neighbors and coworkers with the same spirit of solidarity that gives life to labor’s eternal message: an injury to one is an injury to all.

In a special and urgent podcast episode, we speak with Gabbi Pierce and Martha Grevatt about how far the labor movement has come in defending the rights of LGBTQIA+ workers, how far we still have to go, and what role the labor movement can and must play in fighting for dignity and equality for all.

Gabbi Pierce is an organizer with the Communications Workers of America (CWA), co-chair of Pride at Work — Twin Cities, and she is the first transgender person to serve on the Minnesota AFL-CIO General Board. Martha Grevatt is a retired autoworker and member of the United Auto Workers (UAW); she formerly served as Executive Board member for UAW Locals 122 and 869 and was a founding member of Pride at Work.

This blog originally appeared at In These Times on August 1, 2022 and references a podcast that may be heard at its website. The full transcript is posted to the website as well. Reprinted with permission.

About the author: Maximillion Alvarez is editor-in-chief at the Real News Network and host of the podcast Working People.


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‘We Took Care of Each Other’: A Maritime Union’s Hidden History of Gay-Straight and Interracial Solidarity

Posted on by Jonathan Kissam
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Jonathan Kissam – LAWCHA

Decades before the modern LGBTQ+ movement, a small but militant union of maritime workers on the West Coast with openly gay members and leaders coined a slogan linking discrimination against gay men, racial discrimination, and red-baiting. For the better part of two decades, the Marine Cooks and Stewards Union fought discrimination on the ships where its members worked and in society, until it was crushed by the same corporate and government forces that tried to destroy the United Electrical Workers (UE) during the Cold War.

The Marine Cooks and Stewards Union (MCS) was formed in 1901 by the workers who waited on passengers, carried bags, cleaned rooms, cooked meals, and served drinks on the passenger and cruise ships that provided both travel and leisure for the middle and upper classes. They fed crews and washed the dishes and pots and pans on ships of all types. They faced grueling conditions, often being forced to work 16 hours a day, seven days a week, with no overtime pay, and sleeping in substandard quarters they called “floating tenements.”

Many of the cooks and stewards were Black and Asian, but MCS, like too many unions at the time, restricted membership to white workers. And although a high percentage of the cooks and stewards were “queens,” as gay men preferred to call themselves at the time, the union rarely if ever stood up for them when they were taunted—or “queen-baited”—by straight workers.

This all changed during the great waterfront strikes of the 1930s, when both MCS and the longshore union, prodded by rank-and-file activists, realized the need to unite all workers in order to win against the powerful ship owners. Black and Asian workers joined the unions and the strikes, which were ultimately successful in establishing coast-wide contracts for MCS and the International Longshore and Warehouse Union—both of which joined the newly-formed Congress of Industrial Organizations.

Victory did not come without a cost. On July 5, 1934, known as “Bloody Thursday,” police killed two workers—a longshoreman and a cook—as the ship owners tried to reopen the port of San Francisco by force. The flowers at their graves were tended by an MCS member known as the “Honolulu Queen.”

‘IT’S ANTI-UNION TO RED-BAIT, RACE-BAIT, OR QUEEN-BAIT’

As MCS established its presence on the ships—and used its hiring hall to integrate formerly all-white crews—its members continued to face taunts and harassment for their sexual orientation, their race, and their politics from bosses, passengers, and members of the conservative Sailors Union of the Pacific.

Revels Cayton, a Black, straight steward who became an MCS official, told historian Allan Bérubé how the union worked to address this situation. “In 1936 we developed this slogan: It’s anti-union to red-bait, race-bait, or queen-bait. We also put it another way: If you let them red-bait, they’ll race-bait, and if you let them race-bait, they’ll queen-bait. That’s why we all have to stick together.”

Sticking together worked. Bérubé relates, “The insults keep coming, but the gay stewards are getting bolder because they know their union is watching their backs.” Stephen “Mickey” Blair, a white, gay MCS member told Bérubé, “Marine Cooks and Stewards took the dignity that was in each of us and built it up, so you could get up in the morning and say to yourself ‘I can make it through this day.’ Equality was in the air we breathed.”

A WALKOUT TO HIRE LUELLA LAWHORN

During World War II, the ships that MCS members worked on were converted to serve the war effort, carrying troops and munitions. MCS membership tripled. Many of the new members were gay men who want to serve their country in the fight against fascism but had been kicked out of the military for their sexual orientation. Bérubé writes, “Merchant seaman pay a high price during the war… Although they are civilians, they are killed at a higher rate than are servicemen in any branch of the armed services other than the Marine Corps.”

After the war, MCS continued its traditions of aggressive struggle and uniting all workers. Messmen’s wages tripled between 1945 and 1949. When MCS dispatched a Black woman, Luella Lawhorn, to work on the fancy passenger liner Lurline and the company refused to accept her, the entire stewards department walked off the ship. The company backed down, and Lawhorn became the first Black stewardess on a U.S. passenger ship in the Pacific. In 1949, recognizing that its white leadership didn’t reflect its multiracial membership (by 1949 more than half of the members were Black, and a significant number Asian), the union diversified its leadership within a year.

However, MCS soon fell prey to the same wave of Cold War repression that attempted to destroy UE, the ILWU, and other “Them and Us” unions. Along with UE, ILWU, and eight other unions, MCS was brought up on charges of “communist domination” and expelled from the CIO. The Coast Guard declared MCS activists as “security risks” and prevented them from taking jobs on ships. Other unions used homophobia and racism, as well as red-baiting, to try to destroy the MCS. Ultimately the union was absorbed into the conservative Seafarers International Union.

‘OUR HISTORY HAS BEEN ERASED’

Bérubé, who was working on a book about the Marine Cooks and Stewards Union at the time of his death in 2007, wrote that “Their history is unknown today because, through fear and intimidation, it was first rewritten as an un-American activity, then dismissed as an insignificant failure, and, finally, erased from our nation’s memory, as if what they had achieved had never even happened.”

“We were 50 years ahead of our time. We were so democratic this country couldn’t stand it,” Peter Brownlee, a white, straight MCS member told Bérubé. “The most important thing was not that we had gays. It was that an injury to one was an injury to all—and we practiced it. We took care of each other.”

Stephen Blair told Bérubé, “What many of you younger people are trying to do today as queers—what you call inclusion and diversity—we already did it 50 years ago in the Marine Cooks and Stewards Union. We did it in the labor movement as working-class queens with left-wing politics, and that’s why the government crushed us, and that’s why you don’t know anything about us today—our history has been totally erased.”

This blog originally appeared at Labor Notes on June 23, 2021. Reprinted with permission.

About the Author: Jonathan Kissam is the communications director for the United Electrical Workers (UE).


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The Supreme Court Case Testing the Limits of Gorsuch’s Textualism

Posted on by Richard Primus
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Image result for richard primusIn three cases argued last week—Bostock v. Clayton County, Altitude Express v. Zarda, and Harris Funeral Homes v. EEOC—the Supreme Court confronted this question: Does Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of [an] individual’s … sex” forbid discrimination on the basis of sexual orientation or gender identity?

Several lower courts and most academic commentators have said that the answer is yes. The logic is pretty simple. If a male employee is fired because he has sexual relationships with men, but female employees in the same workplace can have sexual relationships with men without getting fired, then the male employee was fired “because of [his] sex,” inasmuch as he would not have been fired had his sex been different. The same is true of a woman assigned female at birth who is fired because she lives as a man. If you’re tempted by the thought that firing a person for having a same-sex partner doesn’t discriminate on the basis of sex because the employer would fire people of any sex who have same-sex partners, ask yourself whether a law prohibiting people of any race to marry outside their racial groups, or to ride in a railroad car designated for people of a different race, discriminates on the basis of race. (It does.)

To be sure, nobody thinks that Congress in 1964 intended to ban workplace discrimination against LGBTQ persons when it prohibited discrimination “because of … sex.” But the words of the law turn out to do so, regardless of what Congress had in mind. The question before the Supreme Court, therefore, is what prevails when the text of a statute does something that the legislature that passed the statute did not have in mind—and would not have endorsed.

The justice to whom that question is posed most sharply, and who may well cast the deciding vote in these cases, is Justice Neil Gorsuch. Gorsuch may find himself pulled in different directions by two of his strong jurisprudential commitments. On one hand, he generally thinks that courts should not be engines of social change, including by expanding the reach of antidiscrimination laws. Those sorts of changes, he believes, should come from legislatures. But on the other hand, Gorsuch is a proud and articulate textualist. In his oft-repeated view, a court applying a law passed by a legislature should be governed by what the words of the statute actually say, regardless of whether the court thinks the words of the statute embody good public policy. Nor should courts let the meaning of statutory text be overcome by considerations about the general purposes of the law or what members of the legislature said or thought during the lawmaking process. What matters is the text of the statute. And the text that Congress adopted, read literally, covers LGBTQ scenarios.

To be sure, all nine justices would probably describe themselves as textualists of one sort of another in cases of statutory interpretation. None of them thinks that courts can ignore what statutes say. But most are more open to considering other factors as well, including the legislature’s purpose. (The leading alternatives to textualist approaches to statutory interpretation are usually called “purposivist,” because they advocate taking into account what Congress meant to accomplish, not just what the law literally says.) Gorsuch’s textualism is the most uncompromising, and being a principled textualist is a big part—perhaps the biggest part—of Gorsuch’s public identity as a jurist.

So if Gorsuch were to write that employers are able to discriminate on the basis of gender identity or sexual orientation—whether because of a concern about precipitating social change or otherwise—critics will surely charge that his textualism is more rhetorical than real. They will say that he pretends to have a consistent interpretive theory, but he’s willing to jettison that theory when he doesn’t like the result it would lead to. That criticism might sting. But in the end, the charge of playing fast and loose with his principles is not the most significant problem Gorsuch would have to face if he ruled for the employers. He would also risk exposing one of the key premises of textualism as flawed.

At oral argument, Gorsuch recognized the strength of the textualist argument in favor of the LGBTQ plaintiffs. But Gorsuch also suggested that this point might not decide the case, because of a competing concern about the appropriate role of courts within the legal system. To decide that existing federal law prohibits employment discrimination on the basis of sexual orientation or gender identity, Gorsuch mused, might cause significant social disruption. Perhaps, he said, American society is not ready for, or does not want, a legal rule protecting LGBTQ persons against workplace discrimination. And like most conservative-leaning federal judges—indeed, like most federal judges regardless of politics—Gorsuch takes the view that major social change should not come from court rulings but rather from democratically elected legislatures. Indeed, a big part of the point of textualism for someone like Gorsuch is that it prevents courts from substituting their own policy intuitions for those of legislatures.

How much social disruption would actually result from a ruling for the plaintiffs is of course a matter of guesswork: Counsel for the plaintiffs argued that it might not be so disruptive. But to a strict textualist, the degree of potential social disruption shouldn’t matter. If courts shouldn’t be in the business of making judgments about social policy, and instead should just apply statutes as written, then societal outcomes should be no reason to hesitate to do what the text of the statute says. It might feel like a ruling for the plaintiffs would constitute judge-ordered social change, but from a textualist viewpoint, ruling for the plaintiffs wouldn’t expand antidiscrimination law. It would just enforce the law that already exists.

That’s not to say that social disruption—were it to occur—wouldn’t be a problem. But a key tenet of statutory textualism is the idea that if statutes are problematic, the solution is not for courts to tinker with them. Courts must enforce laws as they are, warts and all, and leave any needed repair work to Congress. In the present case, that means that if Congress doesn’t think that Title VII should prevent discrimination against LGBTQ persons, Congress could add clarifying language to the statute. A textualist with faith in this process should have no problem enforcing the statute as written and leaving the rest up to Congress.

Like most justices, though, Gorsuch is a sophisticated observer of congressional behavior. He knows that in reality the legislative process is full of veto opportunities even when it isn’t completely gridlocked. Getting anything through Congress is difficult, and imagining that Congress will respond to every statutory interpretation it doesn’t like by passing appropriate statutory amendments is more than a little naïve. In this case, Gorsuch knows that Congress is unlikely to respond to a literal construction of Title VII by affirmatively authorizing discrimination against LGBTQ persons. There probably isn’t a sufficient majority in Congress today to pass legislation specifically prohibiting discrimination against LGBTQ persons, but there probably isn’t a sufficient majority for passing a law specifically denying that protection, either. So whichever way the Supreme Court decides is likely to be how the law remains for some period of time.

That’s why the possibility of social disruption concerns Gorsuch: If he believed a legislative fix were a realistic possibility, he could just follow the text of the statute and let Congress do whatever cleanup work it thought was needed. But Gorsuch is entirely correct to doubt that any legislative fix would be forthcoming.

If Gorsuch writes an opinion in this case that suggests (even implicitly) that he does not trust the possibility of a legislative fix, he will have done more than give his critics grounds to say that he abandoned his textualist principles when he didn’t like the results. He will also be suggesting that, when push comes to shove, he knows that one of the premises of hard-core statutory textualism—that fixing statutes is the job of the legislature—is not in practice workable. That is not a signal that a Supreme Court justice who aspires to be his generation’s leading hard-edged textualist ought to want to send. The simplest way to avoid sending that signal, of course, is to apply the statute literally—that is, to rule that Title VII covers discrimination on the basis of sexual orientation and gender identity. That would look like evidence that Gorsuch is seriously committed to his textualist approach, regardless of his views about the policy wisdom to which it leads in any given case.

This article was originally published at Politico on October 15, 2019. Reprinted with permission. 

About the Author: Richard Primus is the Theodore J. St. Antoine Professor of Law at the University of Michigan Law School and a former clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg. Follow him on Twitter @Richard_Primus.


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The Corporate Media Failed to Warn Us About the Trump Admin’s Attack on LGBTQ Workers

Posted on by Andy Roth
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Image result for Andy Lee Roth“Sex,” Katherine Franke, a law professor at Columbia University, told the New York Times, “is a confounding term in our culture, in our language and certainly in the law.” As the Supreme Court opens a new session, its justices are set to tackle the conundrum of defining “sex.” At issue is whether Title VII of the landmark Civil Rights Act of 1964, which bars employment discrimination “because of sex,” applies to gay, lesbian, and transgender employees.

There are many reasons why LGBTQ Americans deserve federal protection against employment and workplace discrimination. Simplest and most glaring: In a majority of states, it is perfectly legal for an employer to refuse to hire someone, or to fire them, simply because of their sexual orientation or gender identity. In its preview of Bostock v. Clayton County, Altitude Express Inc. v. Zarda, and Harris Funeral Homes v. EEOC, SCOTUSBlog described the trio of cases as “some of the biggest” of the Court’s forthcoming term. The Court’s decisions will be consequential for how secure all workers—whether straight or queer; transgender, cisgender, or nonbinary—are in their jobs, because the cases will also test a 30-year-old decision that established gender stereotyping as a form of sex discrimination.

It is distressing that corporate news media have not deemed employment protections for LGBTQ workers to be newsworthy until the Supreme Court decided to hear these cases, but it is no surprise to us. The inadequate news coverage fits a pattern we found in a study of several hundred news reports on LGBTQ issues published by four major newspapers between January 2016 and November 2018. The study, “Stonewalled: Establishment Media’s Silence on the Trump Administration’s Crusade against LGBTQ People,” appears in Censored 2020: Through the Looking Glass (Seven Stories Press, 2019).

Our study concluded that, during that period, corporate news media consistently muted, marginalized or ignored the steady rollback of LGTBQ protections and rights under the Trump administration. Another recent study, focused on television news coverage, reached similar conclusions: Since Trump became president, news coverage of LGBTQ issues has “all but disappeared.”

From the 2016 presidential campaign through the midterm elections of 2018, we found that corporate news coverage of LGBTQ issues focused on two main issues: the president’s proposal to ban transgender people from military service and so-called “bathroom bills.” Together these two topics accounted for more than forty percent of all LGBTQ-focused news articles in the New York Times, Washington Post, Los Angeles Times and Wall Street Journal. By contrast, during the same time period, the independent news outlets in our study covered a much wider range of issues facing LGBTQ Americans, devoting less than 10% of their coverage to the proposed transgender military ban and “bathroom bills.”

Based on the findings from our study, we forecast three trends in news coverage of the Supreme Court’s hearing of the Title VII anti-discrimination cases. The first pattern we expect to hold is a positive, encouraging one; the remainder are causes for concern.

News coverage will center LGBTQ voices.

LGBTQ people—including spokespersons for leading LGBTQ rights organizations, such as Human Rights Campaign, Lambda Legal and the National Center for Transgender Equality—will achieve what sociologist William Gamson calls “media standing.” Standing, in Gamson’s use of the term, goes beyond being covered or mentioned in the news; the figures that journalists quote directly are positioned as agents whose insights and actions matter.

In our study, we found that at least 7.5% of quoted sources identified as gay, lesbian, or bisexual. Although the actual numbers of LGBTQ people in the United States are difficult to determine, that figure is higher than recent estimates of the nation’s adult population indicate, suggesting that journalists are making good faith efforts to represent “the diversity of opinion and experience within the LGBTQ community,” as recommended by Sarah Kate Ellis in her introduction to the GLAAD Media Reference Guide.

This point about the inclusion of LGBTQ voices may seem obvious, even trivial, but a long history of systemic prejudice against LGBTQ people by the nation’s most prominent news outlets makes the achievement of media standing by LGBTQ people noteworthy. As recently as 1996, for example, Edward Alwood, author of Straight News, concluded that U.S. news media “rarely focus” on the leaders of gay and lesbian rights organizations.

As coverage of the LGBTQ cases argued before the Supreme Court will show, in 2019 news organizations have improved in this regard.

Corporate news will provide limited historical context for understanding these cases.

News stories are geared toward current events and journalists often fail to provide the long-term historical view necessary to fully understand those events.

If news coverage frames the Bostock, Altitude Express and Harris Funeral Homes cases in terms of the history of civil liberties in the United States, this will be due to the advocacy of civil liberties organizations and their allies.

In October 2018, for example, the Trump administration proposed to define gender as a biological fact, determined at birth. In our data, we found that spokespeople for civil liberties groups, such as the American Civil Liberties Union, articulated their opposition by linking protections of and inclusion for LGBTQ people to the history of the civil rights movement, including the racial integration of the military by President Truman in 1948, and the desegregation of schools, as mandated by Brown v. Board of Education in 1954.

Had the newspaper articles in our study not included the voices of civil liberties advocates, readers would have had no historical context with which to make sense of the Trump administration’s audacious proposal.

To what extent will news coverage of the Supreme Court cases on employment discrimination be enhanced by historical perspective? Our study suggests that the answer to this question depends on whether that coverage features the voices of civil liberties organizations.

Corporate news coverage will whitewash anti-LGBTQ advocates’ most virulent positions.

In our study, establishment newspapers frequently quoted Tony Perkins, president of the Family Research Council, as a newsworthy opponent of state laws and ordinances that would prohibit LGBTQ discrimination.

Quotations published by the New York Times and Wall Street Journal, for example, portrayed Perkins as a fair partisan, engaged in legitimate debate, but failed to inform readers of Perkins’ more virulent anti-LGBTQ statements or that, in 2010, the Southern Poverty Law Center listed the Family Research Council as an anti-gay hate group.

Similarly, Media Matters has documented how establishment media outlets have highlighted Mike Pence’s civility with gay men in public and professional meetings while downplaying his long record of anti-LGBTQ positions, first in Congress, then as Governor of Indiana, and now as Vice President.

Numerous studies show that hate crimes against LGBTQ people—including violence that is often deadly—is on the rise, while acceptance of LGBTQ people in everyday situations is eroding. But corporate news coverage of the trio of Supreme Court cases is likely to downplay these realities, in part by depicting the opponents of employment protections for LGBTQ Americans as reasonable and principled figures—even when they have taken virulent homophobic or transphobic positions in the past. Call it the Tony Perkins Syndrome.

At its best, journalism provides insights into complex issues, puts news into context, and highlights abuses of authority. We would be happy for establishment news outlets to report on the Supreme Court’s LGBTQ cases in ways that prove our critical predictions wrong. But, based on our study of recent news coverage, we expect otherwise.

The Supreme Court is not likely to rule on the trio of LGBTQ employment cases until June 2020. We do not have to wait until then to judge the establishment media’s coverage of crucial LGBTQ issues, or to hold news organizations accountable when they fail to provide the kind of coverage we need to act as informed members of our communities.

This article was originally published at InTheseTimes on October 8, 2019. Reprinted with permission.

About the Author: Andy Lee Roth is associate director of Project Censored, a media watchdog organization established in 1976. His research, including the study described in this article, focuses on the power of news to shape public opinion. He is the coeditor of in Censored 2020: Through the Looking Glass (Seven Stories Press, 2019) and nine previous Censored yearbooks.About the Author: April Anderson is the lead author of “Stonewalled: Establishment Media’s Silence on the Trump Administration’s Crusade against LGBTQ People,” which appears in Censored 2020. A member and advocate of the LGBTQI+ community, they work as a Research and Instruction Librarian at Macalester College.


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Pride Month Profiles: Jeanne Laberge and Ruth Jacobsen

Posted on by Kenneth Quinnell
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For Pride Month, the AFL-CIO is spotlighting various LGBTQ Americans who have worked and continue to work at the intersection of civil and labor rights. Our next profile is Jeanne Laberge and Ruth Jacobsen.

In the early 1970s, Steve D’Inzillo was the business agent for New York City’s Motion Picture Projectionists Local 306, an affiliate of the Theatrical Stage Employees (IATSE). He had built a reputation as a maverick and had a particular passion for expanding civil rights. He wanted  women to gain equal footing in the local, but the prospect was daunting.

For women to win respect and acceptance in the union, they would need both the skills to do the job well and the toughness to deal with the small-minded men that opposed women’s inclusion. D’Inzillo found the right women to challenge the system with Jeanne Laberge and Ruth Jacobsen, a lesbian couple who were willing to fight for their rights. Laberge had a union background and loved the idea of taking on the status quo. Jacobsen had been a “hidden child” during the Nazi occupation of Holland.

In 1972, D’Inzillo sponsored Jacobsen’s apprenticeship and she got her license a year later, making her New York City’s first female “booth man.” Laberge also applied and was admitted to the trade in 1974. D’Inzillo watched the women on the job and in the union hall and was impressed at how well they supported each other. Jacobsen and Laberge soon proposed that Local 306 sponsor a pre-apprenticeship program for women. D’Inzillo eagerly agreed. Many of those who signed up for the program were the sisters, wives and daughters of booth men, and they were paid less to work in lower-skilled jobs.

Laberge spoke about the success of the program:

We got several licenses out of that first class. It was the first crack of having not just fathers and sons in the trade. We were into the feminist thing. We had the union change how they addressed the letters, to get rid of ‘Dear Sir and Brother.’ The men could be pretty derisive at meetings, so our women’s group dealt with their disruptions.

Laberge and Jacobsen were the proximate cause for Local 306 adding sexual orientation to its anti-discrimination policies in the late 1970s. After working with the women for years, the local’s membership had no interest in excluding them. The local also began to regularly make contributions to lesbian and gay charities, and supported three gay members who were sick from AIDS.

This early success led D’Inzillo to ask Jacobsen to join the local’s executive board, but she wasn’t interested in board politics. Laberge, on the other hand, was enthusiastic about it and joined the board herself. Soon after she started a local newsletter, writing most of the articles. She became D’Inzillo’s right-hand woman as he rose up the ranks of IATSE. He twice ran for the national presidency and was elected to be an IATSE vice president, with Laberge by his side the whole time. During his time as a leader in IATSE, Laberge said D’Inzillo was the only person at national conventions who pushed proposals that dealt with larger social and political issues, and she was a key part of those efforts.

This blog was originally published by the AFL-CIO on June 18, 2019. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.


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Supreme Court will decide if it is legal to fire someone for being LGBTQ

Posted on by Ian Millhiser
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When Justice Anthony Kennedy announced he would leave the Supreme Court last June, he gave a giant middle finger to millions of gay, lesbian, and bisexual Americans who saw the Court slowly begin to respect their humanity. Though Kennedy was very conservative on most issues, he was relatively moderate on gay rights questions, and often joined with the Court’s liberal bloc to vindicate these rights.

Kennedy’s replacement, Brett Kavanaugh, is a much more doctrinaire conservative who is unlikely to have much sympathy for LGBTQ plaintiffs. So the shift from Kennedy to Kavanaugh is likely to be felt hard in three cases the Supreme Court agreed to hear on Monday.

Altitude Express Inc. v. Zarda and Bostock v. Clayton County both ask whether existing federal law prohibits employment discrimination on the basis of sexual orientation. R.G. & G.R. Harris Funeral Homes v. EEOC asks the same question about anti-trans discrimination.

In all three cases, the legal arguments against saying that such discrimination is forbidden are exceedingly weak. Title VII of the Civil Rights Act of 1964 forbids employment discrimination “because of . . . sex” (the word “sex” in this context refers to gender and not to sexual intercourse), and it is difficult to argue that firing someone for being LGBTQ is not a form on gender discrimination.

As the appeals court explained in Harris Funeral Homes, the trans discrimination case, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The whole point of such a firing is that the employee’s boss does not believe that the employee identifies with the proper gender.

Similarly, suppose that a woman is fired because she is a lesbian. A lesbian is a woman who is sexually attracted to women, but presumably the same employer would not fire men who are sexually attracted to women. Thus, this woman was fired because she has desires that male employees are allowed to have. That is gender discrimination.

Additionally, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is illegal gender discrimination. Firing an employee because you believe them to be a man who is behaving too much like a woman is sex stereotyping. Similarly, the notion that only men may have sex with women and vice-versa may be the ultimate sex stereotype.

So if the Supreme Court follows the law in Zarda, Bostock, and Harris Funeral Homes, they will rule in favor of the plaintiffs in a 9-0 decision. That outcome, however, is unlikely.

If a decade of increasingly ridiculous judicial opinions striking down Obamacare has taught the legal profession anything, it should be that, in politically charged cases, judges are more likely to behave like raw partisans rather than as jurists.

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Republicans control a majority on the Supreme Court. Republicans oppose LGBTQ rights. It’s not hard to guess how Zarda, Bostock, and Harris Funeral Homes are likely to be decided.

About the Author: Ian Millhiser is a columnist for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

This article was originally published at ThinkProgress on April 22, 2019. Reprinted with permission.


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These are the stories of LGBTQ people who need the Equality Act’s protections

Posted on by Casey Quinlan
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Congressional Democrats reintroduced a sweeping nondiscrimination bill last week to bolster protections for LGBTQ Americans. If passed into law, the bill would clarify existing protections and fill the gaps in federal nondiscrimination laws.

The bill would amend the Civil Rights Act of 1964 to ban discrimination on the basis of gender identity and sexual orientation in housing, employment, education, federal programs, jury service, public accommodations, and credit and lending. It would also update the law to include protections against discrimination in public spaces and services like retail stores, transportation services, banks, and legal services.

According to the Movement Advancement Project, only 21 states and the District of Columbia have passed laws explicitly prohibiting discrimination and gender identity in employment and housing. Twenty states and D.C. explicitly prohibit discrimination in public accommodations. Only 14 states have non-discrimination laws covering credit discrimination.

A 2017 nationally representative survey conducted by the Center for American Progress found that among those who experienced sexual orientation or gender identity-based discrimination in the last year, 43.7 percent said it negatively affected their physical well-being. Nearly 40 percent said it negatively impacted their school environment and 52.8 percent reported that it negatively impacted their work environment. (ThinkProgress is an editorially independent news site housed at the Center for American Progress.)

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LGBTQ people have successfully argued that they’re covered by the Civil Rights Act of 1964 in the past. The term “sex-based stereotypes,” for example, has been used in cases to defend the rights of both queer couples and trans people. In 2017, a federal appeals court ruled for the first time that the Civil Rights Act protects LGBTQ workers from employment discrimination. Judge Richard Posner wrote at the time, “I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.”

Still, the legal landscape’s protections right now are unclear and uneven. The Equality Act would bolster protections for LGBTQ people, and would help prevent stories like the following from happening again.

Employment
In 2013, a transgender woman named Aimee Stephens told her funeral home employer that she was going to dress differently to better reflect her gender. Her employer responded by firing her and offering her a severance package, which she did not accept. She worked there for six years, and co-workers testified that she was a “very good embalmer” and that people were happy with her work.

Stephens filed a complaint with the Equal Employment Opportunity Commission. Then, the EEOC sued the funeral home. In 2018, the 6th Circuit Court of Appeals ruled in her favor and said, it is impossible to fire a worker based on their status as a trans person without an employer participating in sex-based discrimination.

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“Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court said.

The lawyers representing the funeral home have asked the U.S. Supreme Court to consider the case.

Meanwhile, the Department of Justice recently disagreed with the idea that queer workers are covered by the civil rights law. In 2017, the department filed a brief in the case Zarda v. Altitude Express, arguing that the federal law’s prohibition of sex discrimination does not include the prohibition of discrimination on the basis of sexual orientation.

Zarda v. Altitude Express centers on Donald Zarda, a New York skydiver who is now deceased. In 2010, Zarda said he was fired because of his sexual orientation. Given his physical proximity to students during the skydive, Zarda said he thought it would make female clients more comfortable to know about his sexual orientation before the skydive. One female client told her boyfriend of Zarda’s sexuality and the boyfriend decided to complain to Altitude Express. Then, the company fired him.

The Second Circuit did not accept the argument that Title VII of the Civil Rights Act prohibits discrimination on sexual orientation. The LGBTQ civil rights organization Lambda Legal requested that the ruling be reconsidered, but the Justice Department argued against including sexual orientation under the civil rights law. It also referred to the Equality Act of 1974 sponsored by Rep. Bella Abzug (D-NY), which would have prohibited discrimination on the account of sex, marital status, or sexual orientation in public accommodations, federally assisted programs, housing, and financing. The bill died in committee.

“Congress neither added sexual orientation as a protected trait nor defined discrimination on the basis of sex to include sexual orientation discrimination,” the Justice Department wrote in its brief. “… In fact, every Congress from 1974 to the present has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation.”

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Clarification from Congress would certainly help strengthen protections for LGBTQ people and make it more difficult to argue that it’s unclear whether LGBTQ people have these rights.

Housing
A married couple in Denver — Rachel Smith, a trans woman, and Tonya Smith, a cis woman — were looking for a new home with their two children in 2015.

When the couple found the right home, a rental townhouse, Tonya Smith emailed the landlord and described her family, including the fact that Rachel Smith is transgender. The couple visited the townhouse and met a couple that lived nearby. But the Smiths said that after they returned, they received an email from the landlord telling them they were not welcome to rent the townhouse because the neighbors were concerned. The landlord claimed their family would be the talk of the town, making it difficult for their neighbors to “keep a low profile.”

In 2017, U.S. District Judge Raymond P. Moore ruled that they were protected by the Federal Fair Housing Act, which prohibits discrimination based on sex, and wrote, “Such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.”

But other housing discrimination cases involving LGBTQ people have not succeeded. In January, a federal judge dismissed a lawsuit from a married lesbian couple in Missouri, Mary Walsh and Beverly Nance, who said they were denied housing by a senior living community called Friendship Village. According to their lawsuit, they were denied occupancy in 2016 because Friendship Village has a policy that defines marriage as “the union of one man and one woman, as marriage is understood in the Bible.”

The couple claimed Friendship Village’s actions violated the Fair Housing Act and Missouri Human Rights Act. But U.S. District Judge Jean C. Hamilton said the Fair Housing Act did not protect against discrimination on the basis of sexual orientation.

Given the courts’ disagreements on whether queer couples are covered by the Fair Housing Act, it would make a difference for Congress to weigh in through the Equality Act.

Public accommodations
Title II of the Civil Rights Act of 1964 — the part of the law focusing on public accommodations, such as hotels, restaurants, theaters, and sports stadiums — doesn’t cover protections against sex discrimination, but only includes race, color, religion, and national origin. That means there is no legal remedy for discrimination on the basis of sexual orientation and gender identity in public accommodations under current federal law.

In 2013, Ally Robledo, a trans woman, was denied access to an Idaho grocery store, and workers called the police on her when she used the restroom. Lewiston Police Captain Roger Lanier referred to Robledo as a “a male subject who was using the female restroom” and said customers were uncomfortable. She was given a no trespass order after leaving the grocery store.

Robledo said at the time that she doubted it would have been more socially acceptable for her to use the men’s restroom and that when she has used the men’s restroom, “I found myself in a lot of dangerous situations.”

The Equality Act would protect Robledo, and others like her. The legislation would be the first national nondiscrimination bill of its kind for LGBTQ people.

The Equality Act has been introduced before — first in 2015 — but has not been able to get through the Republican-controlled Congress. Last fall, Rep. Nancy Pelosi (D-CA), who is now House speaker, said that if Democrats won the majority they would make the Equality Act a top priority. If the bill does pass the House, it’s unclear if Senate Majority Leader Mitch McConnell (R-KY) would even bring it up for a vote. His press secretary would not give NBC News a yes or no answer.

According to a 2018 PRRI survey, 71 percent of Americans said they favor laws protecting LGBTQ people against discrimination in public accommodations, housing, and employment. But 64 percent of Republicans said business owners should be able to refuse service to gay and lesbian people compared to 24 percent of Democrats and 42 percent of independents.

This article was originally published at ThinkProgress on March 18, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, and In These Times.


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‘Religious freedom’ arguments kill Nebraska’s LGBTQ employment protections bill

Posted on by Zack Ford
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Nebraska is one of more than two dozen states that have no LGBTQ nondiscrimination protections at the state level. That’s not changing anytime soon, as a bill to create employment protections came to an abrupt end this week.

State Sen. Patty Pansing Brooks (D) introduced LB 627 in January this year. The legislation would have updated all relevant state statutes to prohibit employment discrimination on the basis of sexual orientation and gender identity. Pansing Brooks, whose son is gay, pleaded with fellow lawmakers Tuesday to consider the bill.

Pansing Brooks nearly secured the 25-vote majority she needed for passage, but could not find the 33 votes she needed to overcome a filibuster-ending cloture motion. Opponents of the bill claimed that it would be used to target religious business owners in the state and punish them for their beliefs.

Sen. Robert Clements (R) suggested that LGBTQ people didn’t deserve protections because he wasn’t aware of any science suggesting they were “born at birth that way.” Moreover, he took umbrage that “what the Bible teaches, and Christians and Jews have affirmed for 2,000 years, is being called hateful,” claiming the bill constituted “reverse discrimination.”

After reading an email from a constituent claiming that the protections would punish people of faith for their religious beliefs, Sen. Dave Murman (R) also claimed the bill “would threaten small-business owners with liability for alleged discrimination based on perceived gender.”

Many of the lawmakers who supported LB 627 warned of a brain drain, with young people leaving the state to find a more welcoming community. Sen. Megan Hunt (D), who identifies as bisexual and Nebraska’s first-ever LGBTQ senator, is herself a business owner and employs 12 young women, and knows first-hand how challenging it is to keep young people in the state. “I think there’s a lot to learn about why Nebraska struggles to keep young people here,” she said.

Sen. Adam Morfeld (D) similarly recalled the story of an attorney who lost a position at a Nebraska law firm after he inquired about same-sex partner benefits, and talked about a constituent in his district who was fired from a fast-food restaurant after it came out he had a boyfriend.

But opponents of the bill were not convinced. Murman instead insisted that young people were supposedly flocking to Nebraska because of the state’s conservative values.

Though LB 627 is essentially dead for the session, Pansing Brooks is still optimistic that the debate helped create some change that will allow it to pass in the future. Writing on Facebook after its defeat, she took hope that the politics of the state were changing and that “Nebraska will ultimately see the light.”

“I will continue to fight with every fiber of my being for the protection of LGBTQ people’s civil rights,” she wrote.

Democrats in Congress are expected to introduce the Equality Act soon, which would create nationwide LGBTQ protections in employment, housing, public accommodations, education, and credit. Though the bill has previously been introduced in the past two sessions of Congress, Republicans never brought it up for a vote.

This blog was originally published at ThinkProgress on March 5, 2019. Reprinted with permission 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news.


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Supreme Court poised to drastically reverse LGBTQ equality

Posted on by Zack Ford
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There are now six different cases implicating LGBTQ rights sitting before the Supreme Court. While the conservative-majority Court has not yet agreed to hear any of them, a circuit split between two of the cases and the fact that President Trump’s transgender military ban is at the heart of another strongly suggest at least one of them will advance to oral arguments.

The cases span a variety of different issues, including employment, education, military service, and public discrimination. At the heart at most of them is a question about whether discrimination against LGBTQ people counts as discrimination on the basis of “sex.” If the Court rules against queer people in just one of them, it could set a precedent that hinders LGBTQ equality across all of the different issues.

Such a decision would be the largest blow to queer rights since the Court upheld sodomy laws 32 years ago.

Employment discrimination

Two of the cases before the Court address the question of whether it’s legal to fire someone for being gay. Two different federal appellate courts arrived at different conclusions, increasing the likelihood that the Supreme Court will hear the cases to resolve the dispute.

In Bostock v. Clayton County, Georgia, a gay man argued that he was fired because of his sexual orientation. The U.S. Court of Appeals for the Eleventh Circuit dismissed Gerald Lynn Bostock’s case over a 1979 precedent, even though several Supreme Court cases since then have undermined that ruling, including a case that recognized “sex stereotyping” as a form of sex discrimination as well as a case that recognized same-sex sexual harassment as sex discrimination. The Eleventh Circuit insisted that “sexual orientation” enjoys no recognition under Title VII’s employment protections on the basis of sex.

Meanwhile, this past February, the U.S. Court of Appeals for the Second Circuit arrived at the exact opposite conclusion in Zarda v. Altitude Express. In that case, the appellate court found that skydiving instructor Donald Zarda, now deceased, was illegally fired for being gay under Title VII. The Trump administration had argued otherwise.

With this split in how to interpret federal law, it seems highly likely that the Supreme Court will want to resolve the conflict. While there are several compelling arguments that discrimination on the basis of sexual orientation inherently requires making determinations on the basis of sex, it’s not clear that there are five justices who will agree.

While they’re at it, the Court may also consider R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a similar case about whether Title VII’s “sex” protections include discrimination on the basis of gender identity. The U.S. Court of Appeals for the Sixth Circuit agreed this past March that a Michigan funeral home violated the law when it fired employee Aimee Stephens for being transgender.

The Trump administration recently filed a brief in this case arguing that the Supreme Court should overturn the Sixth Circuit’s decision and rule that it’s legal to fire someone for being trans. But the administration also argued that the Court should consider Zarda or Bostock first — in other words, that it should resolve the question of whether sexual orientation is protected before it takes up gender identity.

In any of these cases, a ruling narrowly defining “sex” could set back employment rights for the entire LGBTQ community.

Trans military ban

On Friday, the Trump administration asked the Supreme Court to take the reins on the four different court battles over President Trump’s ban on transgender people serving in the military. The administration has lost in all of these different cases, including before two appellate courts, but it is now asking the Court to combine them all into the case Trump v. Karnoski.

The request is an unusual step, one that attempts to skip over the standard appeals process. LGBTQ groups chided the administration for being so desperate to discriminate that they’re willing to flout judicial norms and procedures. Nevertheless, given the Court’s willingness to cater to executive power in the Muslim ban cases, it might similarly be charitable to Trump’s claim that banning transgender people somehow improves military readiness, even though there’s no evidence to support that claim.

Another bakery

Just months after the Supreme Court granted a one-off victory to an anti-gay baker from Colorado, another bakery from Oregon is again asking the Court to grant it special permission to refuse service to same-sex couples. The details of Klein v. Oregon Bureau of Labor and Industries are almost identical to the Masterpiece Cakeshop case.

As ThinkProgress previously explained, Aaron and Melissa Klein — owners of Sweet Cakes by Melissa — are asking for even more from the Court than Jack Phillips did last year. They argue that business owners have a right to discriminate based on their religious beliefs — against any group, not just on the basis of sexual orientation. A ruling along those lines would not only greatly undermine LGBTQ protections, but nondiscrimination protections for all vulnerable groups.

Transgender students

While the Alliance Defending Freedom (ADF) is not defending the Kleins as it did Phillips last year, the anti-LGBTQ hate group is still heavily involved in this year’s round of cases. In addition to defending the funeral home in the transgender employment case, ADF is also representing a group of families challenging a Pennsylvania school’s inclusive policies.

In Doe v. Boyertown Area School District, ADF contends that allowing transgender students to use restrooms and locker rooms consistent with their gender identity somehow violates the privacy of other students. As such, they’re asking for a mandate that schools segregate trans students to single-use restrooms. Like in the employment cases with Title VII, ADF is also asking the Court to rule that Title IX’s sex protections don’t extend to transgender students.

If the Supreme Court were to take all of these cases and the conservative majority were to prevail in them all, 2019 could look radically different for LGBTQ people. Nationwide, it’d become legal to fire them for who they are, to discriminate against them in schools, and to discriminate against them in public spaces — and several thousand transgender service members would lose their jobs.

For now, the Court is delaying making any decisions.

This article was originally published at ThinkProgress on November 27, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news.


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Transgender guidance disappears from Office of Personnel Management website

Posted on by Zack Ford
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Under President Obama, the Office of Personnel Management (OPM), which oversees all federal employees, issued detailed guidance protecting transgender people in the workforce. As of Friday, that guidance has disappeared and been replaced by generic language with no content specific to transgender people.

The previous “Gender Identity Guidance” page, which was still live as of earlier this week, laid out definitions for terms related to transgender identities, and outlined specific expectations for respecting transgender employees. These included ensuring that trans workers could dress according to their gender identity, that they were called by their preferred names and pronouns, and that they were allowed to use restrooms and locker rooms consistent with their gender identity.

“Transitioning employees should not be required to have undergone or to provide proof of any particular medical procedure (including gender reassignment surgery) in order to have access to facilities designated for use by a particular gender,” the guidance stated. “Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, located at an unreasonable distance from the employee’s work station, or that are inconsistent with the employee’s gender identity.”

On the new site, that language and any reference to transgender people is now gone, although the page does still state that discrimination on the basis of gender identity is prohibited — consistent with an executive order President Obama issued that is still in effect.

Gone, however, are the detailed definitions for the terms “gender identity,” “transgender,” “gender non-conforming,” and “transition.” Specific references to confidentiality related to transitioning have been replaced with generic language about medical privacy. The page’s dress code language no longer provides reassurances that employees will be allowed to dress consistent with their gender identity.

Before:

After:

Two vital sections have been erased without a trace: both the section on respecting employees’ names and pronouns and the section addressing access to “sanitary and related facilities.” There is no longer any guidance whatsoever to ensure that trans people are respected according to their gender identity in the federal government. Should a manager have questions about how to respond when an employee comes out as transgender, they will find no answers on OPM’s page.

The changes to the page came without any announcement or notice.

From the beginning of the Trump administration, federal agencies have increasingly erased content related to LGBTQ people or gender more broadly. The day after President Trump’s inauguration, the White House website discarded its page dedicated to LGBTQ rights and the Labor Department also removed a report on LGBTQ workers’ rights.

A few months later, questions that would help identify LGBTQ people in data collection were erased from two important national surveys. This past July, the Department of Health and Human Services removed language on sex discrimination from its website, and in October, it scrapped “gender” from its civil rights page. Recent reports have even suggested that the administration is trying to remove references to “gender” in United Nations documents.

While these unannounced website changes have been somewhat inconspicuous, the administration’s opposition to trans rights has been anything but subtle. A memo leaked in October laid out the administration’s plans to completely erase trans people from any recognition under any agency of the federal government. People would be defined solely by the sex they were assigned at birth, subject to genetic testing.

This article was originally published at ThinkProgress on November 23, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.”


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