Connect with us

News

DOJ slammed for ducking on trans exclusion in ADA

Obama administration says resolution to case based on Title VII the right approach

Published

on

scales of justice, gay news, Washington Blade

The Justice Department ducked on whether the trans exclusion in ADA is unconstitutional. (Photo by Mbiama via Wikimedia Commons)

As civil rights advocates celebrate the 25th anniversary enactment of the Americans with Disabilities Act, one New England-based LGBT group is criticizing the Obama administration for ducking on the issue of whether the transgender exclusion in the law is unconstitutional.

Gay & Lesbian Advocates & Defenders took the Justice Department to task in a statement last week for declining to weigh in on the explicit transgender exclusion written into the 1990 law.

The ADA prohibits discrimination on the basis of disability in employment, public accommodations and other areas, but the law explicitly states it doesn’t include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism [and] gender identity disorders not resulting from physical impairments or other sexual behavior disorders.”

Jennifer Levi, director of GLAD’s trans rights project, said the Justice Department’s decision to avoid the trans exclusion in a statement of interest filed on July 21 is “surprising and disappointing.”

“Given the rank animus behind it, the exclusion serves to marginalize and stigmatize a minority group that the DOJ has recognized needs and deserves legal protections,” Levi said.

Kate Lynn Blatt, a transgender employee at the hunter gear Cabela’s Retail, filed a discrimination claim against her employer under both Title VII of the Civil Rights Act of 1964, on the grounds the store discriminated against her based on her sex; and the ADA, on the basis the store refused to reasonably accommodate her by denying her use of a restroom consistent with her gender identity and the ability to wear a nametag with her correct name. Blair also endured harassment from supervisors and co-workers and was abruptly terminated in 2007.

In a four-page statement of interest signed by trial attorney Emily Nestler, the Justice Department asks the court to hold off on determining the constitutionality of ADA’s trans exclusion until the challenge on the basis of Title VII is resolved.

“The United States respectfully requests that the Court defer ruling upon Plaintiff’s constitutional challenge to the GID Exclusion until after the Title VII claims are resolved, as disposition of Plaintiff’s Title VII claims could resolve this case without the need to reach the constitutionality of the GID Exclusion,” the filing says. “Should the Court later determine that the constitutional issue cannot be avoided, the United States respectfully reserves the right to intervene or file a supplemental statement of interest at that time.”

In 2012, the U.S. Equal Employment Opportunity Commission determined in the case of Macy v. Holder the gender provision under Title VII applies to workplace discrimination against people for being transgender. In a statement in December, the Justice Department followed suit, saying the U.S. government would no longer deny the law covers gender-identity discrimination.

Levi added the filing has two silver linings: the reassertion that Title VII prohibits workplace discrimination against transgender people and language that enables the Justice Department to revisit the trans exclusion at a later time.

“While we acknowledge these bright spots, the problem created by the ADA exclusion remains,” Levi said. “Congress excluded transgender people from the protections of the ADA because of the stigma associated with gender dysphoria. As long as the transgender exclusion remains within the law, the ADA fails in its promise to create a level playing field in employment for all people capable of doing the job.”

The U.S. Justice Department deferred to its filing in the case in response to the Washington Blade’s request to comment on GLAD’s criticism.

Representing Blatt is Sidney Gold, Neelima Vanguri and Brian Farrell of the Philadelphia-based Sidney L. Gold & Associates. Along with Law Professor Kevin Barry of Quinnipiac University, GLAD and other trans rights groups filed a friend-of-the-court brief in January arguing by maintaining the trans exclusion, the ADA perpetrates the kind of discrimination it seeks to dismantle.

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

Maryland

Montgomery County police chief discloses details behind arrest of 18-year-old trans student charged with plans to commit school shooting

County executive tells news conference student’s trans identity is irrelevant to criminal charge

Published

on

(Photo by jiawangkun/Bigstock)

Montgomery County, Md., Police Chief Marcus Jones joined other county and law enforcement officials at a news conference on Friday, April 19, to provide details of the police investigation and arrest of an 18-year-old high school student charged two days earlier with threats of mass violence based on information that he allegedly planed a mass shooting at the high school and elementary school he attended in Rockville, Md.

In charging documents and in a press released issued on April 18, Montgomery County identified the arrested student as “Andrea Ye, of Rockville, whose preferred name is Alex Ye.”

One of the charging documents states that a friend of Ye, who police say came forward as a witness who played a crucial role in alerting authorities to Ye’s threats of a school shooting, noted that Ye told the witness that Ye identified as the transgender student he wrote about as character in a 129-page manifesto outlining plans for a school shoot. Police have said Ye told them the manifest was a fictional story he planned to publish.  

At the news conference on Friday, Police Chief Jones and other law enforcement officials, including an FBI official and Montgomery County Executive Marc Elrich, referred to the student as Alex Ye and Mr. Ye. None of the officials raised the issue of whether Ye identified as a transgender man, seven though one of the police documents identifies Ye as a “biological female.”

County Executive Elrich appeared to express the views of the public officials at the news conference when one of the media reporters, during a question-and-answer period, asked Elrich why he and the others who spoke at the news conferment to “admit that this individual was transgender.”

“Because it’s not a lead,” Elrich replied, asking if the press and law enforcement authorities should disclose that someone arrested for murder is “a white Christian male who’s heterosexual.” Elrich stated, “No, you don’t – You never publish somebody’s sexual orientation when we talk about this. Why you are focusing on this being a transgender is beyond me. It’s not a news story. It is not a crime to  be transgender.”

The reporter attempted to respond but was cut off by the press conference moderator, who called on someone else to ask the next question.

In his remarks at the press conference Chief Jones praised the so far unidentified witness who was the first to alert authorities about Ye’s manifesto appear to make threats of a mass school shooting.

“Now, this is a situation that highlights  the critical importance of vigilance and community involvement in preventing potential tragedies,” Jones said. I commend the collaborative efforts of the Montgomery County Police Department, the Federal Bureau of Investigation,  the Rockville City Police Department, and the Montgomery County Public Schools, as well as Montgomery County Health and Human Services,” he told the gathering.

“Thanks to their swift action and cooperation a potentially catastrophic event was prevented,” Jones said.

Jones pointed out that during the current school year, police have received reports of 140 threats to the public schools in Montgomery County. He said after a thorough investigation, none of them rose to the level where an arrest was made. Instead, police and school officials took steps to arrange for the student making the threats and their parents take remedial action, including providing  mental health services.

“But this case is different,” Jones said. “This case is entirely different that takes it to a different level. It was a concerned witness who brought this matter to light by rereporting the suspect’s manifest to authorities. This underscores the value of community engagement and the ‘see something say something’ approach,” he said.

Continue Reading

Federal Government

Lambda Legal praises Biden-Harris administration’s finalized Title IX regulations

New rules to take effect Aug. 1

Published

on

U.S. Secretary of Education Miguel Cardona (Screen capture: AP/YouTube)

The Biden-Harris administration’s revised Title IX policy “protects LGBTQ+ students from discrimination and other abuse,” Lambda Legal said in a statement praising the U.S. Department of Education’s issuance of the final rule on Friday.

Slated to take effect on Aug. 1, the new regulations constitute an expansion of the 1972 Title IX civil rights law, which prohibits sex-based discrimination in education programs that receive federal funding.

Pursuant to the U.S. Supreme Court’s ruling in the landmark 2020 Bostock v. Clayton County case, the department’s revised policy clarifies that discrimination on the basis of sexual orientation and gender identity constitutes sex-based discrimination as defined under the law.

“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona said during a call with reporters on Thursday.

While the new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, the question is addressed in a separate rule proposed by the agency in April.

The administration’s new policy also reverses some Trump-era Title IX rules governing how schools must respond to reports of sexual harassment and sexual assault, which were widely seen as imbalanced in favor of the accused.

Jennifer Klein, the director of the White House Gender Policy Council, said during Thursday’s call that the department sought to strike a balance with respect to these issues, “reaffirming our longstanding commitment to fundamental fairness.”

“We applaud the Biden administration’s action to rescind the legally unsound, cruel, and dangerous sexual harassment and assault rule of the previous administration,” Lambda Legal Nonbinary and Transgender Rights Project Director Sasha Buchert said in the group’s statement on Friday.

“Today’s rule instead appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity,” she said. “Schools must be places where students can learn and thrive free of harassment, discrimination, and other abuse.”

Continue Reading

Maryland

Rockville teen charged with plotting school shooting after FBI finds ‘manifesto’

Alex Ye charged with threats of mass violence

Published

on

Alex Ye (Photo courtesy of the Montgomery County Police Department)

BY BRETT BARROUQUERE | A Montgomery County high school student is charged with what police describe as plans to commit a school shooting.

Andrea Ye, 18, of Rockville, whose preferred name is Alex Ye, is charged with threats of mass violence. Montgomery County Police and the FBI arrested Ye Wednesday.

The rest of this article can be found on the Baltimore Banner’s website.

Continue Reading
Advertisement
Advertisement

Sign Up for Weekly E-Blast

Follow Us @washblade

Advertisement

Popular