Connect with us

National

EEOC ruling on trans rights triggers new call for ENDA

Agency decision doesn’t affect gay, lesbian workers

Published

on

Masen Davis, executive director of the Transgender Law Center (photo courtesy of the Transgender Law Center)

LGBT rights supporters are continuing to press for passage of the Employment Non-Discrimination Act, following a ruling this week from a U.S. agency expanding non-discrimination protections under existing law to Ā include transgender workers.

During a conference call with reporters on Tuesday, Masen Davis, executive director of the Transgender Law Center, emphasized the need for passage of ENDA, legislation that would bar employers from discriminating on the basis of sexual orientation and gender identity.

Davis said ENDA would complement the ruling Monday from the U.S. Equal Employment Opportunity Commission that determined Title VII of the Civil Rights Acts of 1964 covers gender identity.

“We still need ENDA,” Davis said. “This decision is incredibly important. It means that transgender people throughout the United States now have legal recourse … We need to make sure that we couple that with legal protections from Congress and the courts.”

Tobias Wolff, a gay law professor at the University of Pennsylvania,Ā said the ruling doesn’t provide non-discrimination protections for gay and lesbian workers ā€” coverage that ENDA would provide. Additionally, Wolff said transgender workers could face discrimination based on sexual orientation if they’re in a same-sex relationship that an employer finds objectionable.

“If you’re a transgender lesbian, for example, then the question of whether you’re protected from discrimination based upon your gender identity is often put on the table at the same time the question of whether you’re protected from discrimination because you’re a lesbian,” Wolff said. “This ruling speaks to the first question; it doesn’t speak to the second question.”

LGBT organizations such as the Human Rights Campaign and the National Gay & Lesbian Task Force issued statements calling for the passage of ENDA after the EEOC decision was rendered.

HRC President Joe Solmonese said “it is critical” the entire LGBT community have “clear, strong protections against workplace discrimination in federal law.”

ā€œPolicymakers must take every step available to them to ensure all workers have a level playing field, including passage of an inclusive Employment Non-Discrimination Act and the adoption of an executive order barring discrimination by federal contractors,” Solmonese said.

EEOC made the ruling after the Obama administration was criticized by many in the LGBT communityĀ for deciding at this time against issuing an executive order requiring federal contractors to have non-discrimination policies based on sexual orientation and gender identity. But the advocates say they believe the two decisions are unrelated.

Davis said he “doesn’t see any connection” between the White House decision not to issue the executive order and the EEOC ruling affirming transgender workers’ rights.

“This case has been in process for over a year now,” Davis said. “This has been with EEOC for several months. The EEOC is an independent agency and the decision was made by the five appointed commissioners.”

That observation was verified by the White House. Shin Inouye, a White House spokesperson, said the EEOC “reached their conclusion on their own.”

Davis said the decision is almost certain to stand because it cannot be appealed to a higher court or anywhere else because theĀ federal Bureau of Alcohol, Tobacco, Firearms and Explosives would have to show the decision was “clearly erroneous.”

“This is the final word,” Davis said. “ATF could ask for reconsideration by the commission, but it’s very unlikely they would even ask for it … The agency would have to show that the decision was clearly erroneous in its interpretation of the law, which was plainly not the case [given] the EEOC issued the decision in light of the strong trans federal court decisions.”

However, Wolff noted that the Supreme Court could get involved in the issue if lower federal courts make their own decisions on whether Title VII should apply to transgender workers.

“I think it’s a little premature to say that this is a settled issue among the lower federal courts,” Wolff said. “I think it is correct to say that the trend among lower courts is … recognizing anti-trans discrimination is sex discrimination and that that is certainly the better argument. The question of whether or not the court gets involved will probably depend what types of opinions we see coming out of lower federal courts.”

The ruling will allow for the hiring of Mia Macy, a transgender woman who allegedly was denied a job as a ballistics technician at the ATF.

“That’s all she’s ever wanted,” Davis said. “She wants the ability use her skills and her talents and her tremendous experience … to serve as a member of ATF.”

Ilona Turner, legal director for theĀ Transgender Law Center, said her organization would also seek the restitution of back pay, which could be resolved through settlement or the agency issuing a response to the discrimination complaint and ordering the appropriate remedy.

“As she mentioned, she lost her house as a result of this,” Turner said. “Her family has been seriously affected financially by what she went through.”

Wolff also spoke favorably about the presence on the EEOC of Chai Feldblum, a lesbian who’s had a long history of LGBT activism ā€” authoring ENDA and fighting against the institution of “Don’t Ask, Don’t Tell” in 1993.

“She is one of the most distinguished and brilliant minds of our generation on discrimination law and statutes that are aimed at prohibiting discrimination,” Wolff said. “I think that one can see her expertise certainly, among others, reflected in the analysis of this opinion. When the president selected her for this post, I think it represented a strong statement on the part of his administration about the importance of good and sensible thinking on anti-discrimination law enforced in the statutes like Title VII. It is because we have such good people on the EEOC that we see a ruling like this.”

CORRECTION: An initial posting of this article misattributed a quote about Chai Feldblum. The Blade regrets the error.

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

U.S. Supreme Court

Supreme Court declines to hear case over drag show at Texas university

Students argue First Amendment protects performance

Published

on

The U.S. Supreme Court justices on June 30, 2022. ((Photo by Fred Schilling of the U.S. Supreme Court)

The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.

The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.

When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.

The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows ā€œderisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”

The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that ā€œit is not clearly established that all drag shows are inherently expressive.”

Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on ā€œtext, history and tradition.”

Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.

Continue Reading

Federal Government

EXCLUSIVE: USAID LGBTQ coordinator visits Uganda

Jay Gilliam met with activists, community members from Feb. 19-27

Published

on

U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam (Photo courtesy of USAID)

U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam last month traveled to Uganda.

Gilliam was in the country from Feb. 19-27. He visited Kampala, the Ugandan capital, and the nearby city of Jinja.

Gilliam met with LGBTQ activists who discussed the impact of the Anti-Homosexuality Act, a law with a death penalty provision for “aggravated homosexuality” that President Yoweri Museveni signed last May. Gilliam also sat down with USAID staffers.

Gilliam on Wednesday during an exclusive interview with the Washington Blade did not identify the specific activists and organizations with whom he met “out of protection.” 

“I really wanted to meet with community members and understand the impacts on them,” he said.

Consensual same-sex sexual relations in Uganda were already criminalized before Museveni signed the Anti-Homosexuality Act. Gilliam told the Blade he spoke with a person who said authorities arrested them at a community meeting for mental health and psychosocial support “under false pretenses of engaging in same-sex relations and caught in a video that purportedly showed him.” 

The person, according to Gilliam, said authorities outed them and drove them around the town in which they were arrested in order to humiliate them. Gilliam told the Blade that prisoners and guards beat them, subjected them to so-called anal exams and denied them access to antiretroviral drugs.

“They were told that you are not even a human being. From here on you are no longer living, just dead,” recalled Gilliam.

“I just can’t imagine how difficult it is for someone to be able to live through something like that and being released and having ongoing needs for personal security, having to be relocated and getting support for that and lots of other personal issues and trauma,” added Gilliam.

Gilliam said activists shared stories of landlords and hotel owners evicting LGBTQ people and advocacy groups from their properties. Gilliam told the Blade they “purport that they don’t want to run afoul of” the Anti-Homosexuality Act.

“These evictions really exacerbate the needs from the community in terms of relocation and temporary shelter and just the trauma of being kicked out of your home, being kicked out of your village and having to find a place to stay at a moment’s notice, knowing that you’re also trying to escape harm and harassment from neighbors and community members,” he said.

Gilliam also noted the Anti-Homosexuality Act has impacted community members in different ways.

Reported cases of violence and eviction, for example, are higher among gay men and transgender women. Gilliam noted lesbian, bisexual and queer women and trans men face intimate partner violence, are forced into marriages, endure corrective rape and lose custody of their children when they are outed. He said these community members are also unable to inherit land, cannot control their own finances and face employment discrimination because of their sexual orientation or gender identity.Ā Ā 

US sanctioned Ugandan officials over Anti-Homosexuality Act

The U.SĀ imposed visa restrictionsĀ on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announcedĀ the suspension of new loansĀ to Uganda.

The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act ā€œfurther increases restrictions on human rights, to include restrictions on freedoms of expression and peaceful assembly and exacerbates issues regarding the respect for leases and employment contracts.ā€ The White House has also removed Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. and has issued a business advisory for the country over the Anti-Homosexuality Act. 

Secretary of State Antony Blinken on Dec. 4, 2023, announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups. Media reports this week indicate the U.S. denied MP Sarah Achieng Opendi a visa that would have allowed her to travel to New York in order to attend the annual U.N. Commission on the Status of Women.

Museveni, for his part, has criticized the U.S. and other Western countries’ response to the Anti-Homosexuality Act. 

Gilliam noted authorities have arrested and charged Ugandans under the law.Ā 

Two men on motorcycles on Jan. 3 stabbed Steven Kabuye, co-executive director of Coloured Voice Truth to LGBTQ Uganda, outside his home while he was going to work. The incident took place months after Museveni attended Uganda’s National Prayer Breakfast at which U.S. Rep. Tim Walberg (R-Mich.) spoke and defended the Anti-Homosexuality Act.

The State Department condemned the attack that Kabuye blamed on politicians and religious leaders who are stoking anti-LGBTQ sentiments in Uganda. Gilliam did not meet with Ugandan government officials while he was in the country.

“We in the U.S. government have already made it clear our stance with government officials on how we feel about the AHA, as well as broader human rights concerns in country,” said Gilliam. “That’s been communicated from the very highest levels.”

The Uganda’s Constitutional Court last Dec. 18 heard arguments in a lawsuit that challenges the Anti-Homosexuality Act. It is unclear when a ruling in the case will take place, but Gilliam said LGBTQ Ugandans with whom he met described the law “as just one moment.” 

“Obviously there is lots of work that has been done, that continues to be done to respond to this moment,” he told the Blade. “They know that there’s going to be a lot of work that needs to continue to really address a lot of the root causes and to really back humanity to the community.” 

Gilliam further noted it will “take some years to recover from the damage of 2023 and the AHA (Anti-Homosexuality Act) there.” He added activists are “already laying down the groundwork for what that work looks like” in terms of finding MPs, religious leaders, human rights activists and family members who may become allies.

“Those types of allyships are going to be key to building back the community and to continue the resiliency of the movement,” said Gilliam.

Continue Reading

Texas

Pornhub blocks Texas accessing site over age verification law

Court battle forced statute to take effect

Published

on

Washingtonporn Blade graphic

Aylo (formerly MindGeek) the largest global adult online entertainment conglomerate, owned by Canadian private equity firm Ethical Capital Partners, has restricted access to its platforms including its flagship Pornhub in Texas after a court battle forces the state’s age verification law to take effect.

Texas Republican Attorney General Ken Paxton had appealed a U.S. District Court decision that enjoined him from enforcing House Bill 1181. Paxton and others argued that purveyors of obscene materials online needed to institute reasonable age-verification measures to safeguard children from pornography.Ā 

A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional.Ā 

ā€œApplying rational-basis review, the age-verification requirement is rationally related to the governmentā€™s legitimate interest in preventing minorsā€™ access to pornography,ā€ the three judge panel of the 5th Circuit explained. ā€œTherefore, the age-verification requirement does not violate the First Amendment.ā€

While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower courtā€™s injunction against a separate section of the law that would require pornography websites to display a health warning on their landing page and all advertisements. 

Texas users are greeted with this notice.

The Houston Chronicle reported people who go to the site are now greeted with a long message from the company railing against the legal change as ā€œineffective, haphazard, and dangerous.ā€ The company calls for age verification by the makers of devices that let people on the internet, instead of individual websites.

Age verification legislation was enacted in several states in 2023 in addition to Texas, including North Carolina, Montana, Arkansas, Louisiana, Mississippi, Utah and Virginia.

The new laws require users to provide digital confirmation via a certified approved third party vendor like London-based digital identity company Yoti. The other possibility would be a state approved digital ID such as the California DMVā€™s Wallet app, which contains a mobile driverā€™s license.

Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the stateā€™s digital ID system, known as LA Wallet. The law passed in 2022 subjects adult websites to damage lawsuits and state civil penalties as high as $5,000 a day if they fail to verify that users are at least 18 years old by requiring the use of digitized, state-issued driverā€™s licenses or other methods.

The Associated Press reported this past October that an adult entertainment groupā€™s lawsuit against a Louisiana law requiring sexually explicit websites to verify the ages of their viewers was dismissed by U.S. District Judge Susie Morgan in New Orleans.

Texas users are greeted with this notice.

Potential or existing Pornhub users in North Carolina and Montana are directed to a video that features adult film star Cherie DeVille, who recites a message also written under the video.

ā€œAs you may know, your elected officials in your state are requiring us to verify your age before allowing you access to our website. While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users and in fact, will put children and your privacy at risk.ā€

ā€œMandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,ā€ the statement continues. ā€œAs weā€™ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.ā€

ā€œUntil a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]ā€ the message ends with.

The company previously blocked Utah on May 7, 2023. CNN reported at the time:

Affected users are shown a message expressing opposition toĀ Senate Bill 287, the Utah law signed by Gov. Spencer Cox in March that creates liability for porn sites that make their content available to people below the age of 18.

ā€œAs you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,ā€ the message said. ā€œWhile safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk.ā€

Courthouse News reportedĀ that after Virginiaā€™s bill was passed in June, state Sen. L. Louise Lucas, a Democrat, criticized the state for not creating a system for age verification, and instead leaving it up to websites to manage the process, citing security risks.Ā Ā 

ā€œWe passed a bill during this session to protect children from online porn. However the executive branch had an obligation to create a system for age verification,ā€Ā Lucas saidĀ on X, formerly Twitter. ā€œWe will continue our work to keep pornography out of the hands of minors ā€¦ but we will also work to ensure that this Governorā€™s error does not put the privacy of Virginians at further risk.ā€

Beyond the U.S. in the European Union, Pornhub and two more of the worldā€™s biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EUā€™s Digital Services Act.

According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as ā€œvery large online platformsā€ subject to more stringent controls under the Digital Services Act because they each have 45 million average monthly users, according to the European Commission, the EUā€™s executive branch.

They are the first porn sites to be targeted by the sweeping Digital Services Act, which imposes tough obligations to keep users safe from illegal content and dodgy products, the Associated Press reported last month.

In addition to the adult entertainment websites, any violations are punishable by fines of up to 6% of global revenue or even a ban on operating in the EU. Some 19 online platforms and search engines have already been identified for stricter scrutiny under the DSA, including TikTok, Amazon, Facebook, Instagram, Google and more.

Continue Reading
Advertisement
Advertisement

Sign Up for Weekly E-Blast

Follow Us @washblade

Advertisement

Popular