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EEOC ruling on trans rights triggers new call for ENDA

Agency decision doesn’t affect gay, lesbian workers

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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  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, said the ruling doesn’t provide non-discrimination protections for gay and lesbian workers — 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.”

“Policymakers 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 community 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 the 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 the 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 — 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.

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Biden announces pardons for thousands convicted of federal marijuana possession

“Too many lives have been upended because of our failed approach to marijuana.  It’s time that we right these wrongs”

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(Photo courtesy of NORML)

President Biden traveling in New York state on Thursday announced that he was granting a pardon of all prior Federal offenses of simple possession of marijuana.

Taking aim at federal conviction rates for marijuana possession, Biden noted in a statement released by the White House, “while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.”

This announcement by the president comes roughly a month before the midterm elections that will decide whether the president’s party can hold on to control of Congress. Democratic and progressive candidates have pushed the administration for action on this issue which which many Democratic activists have long called for.

The White House estimates will affect more than 6,500 people and in conjunction with his action today Biden is asking that all Governors to do the same with regard to state offenses.

Statement from President Biden on Marijuana Reform

As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana.  Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities.  And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.
 
Today, I am announcing three steps that I am taking to end this failed approach.
 
First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana.  I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals.  There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions.
 
Second, I am urging all Governors to do the same with regard to state offenses.  Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.
 
Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.  Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances.  This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic. 
 
Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.
 
Too many lives have been upended because of our failed approach to marijuana.  It’s time that we right these wrongs. 

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New Supreme Court term includes critical LGBTQ case with ‘terrifying’ consequences

Business owner seeks to decline services for same-sex weddings

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The U.S. Supreme Court is to set consider the case of 303 Creative, which seeks to refuse design services for same-sex weddings. (Blade file photo by Michael Key)

The U.S. Supreme Court, after a decision overturning Roe v. Wade that still leaves many reeling, is starting a new term with justices slated to revisit the issue of LGBTQ rights.

In 303 Creative v. Elenis, the court will return to the issue of whether or not providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds. In this case, the business owner is Lorie Smith, a website designer in Colorado who wants to opt out of providing her graphic design services for same-sex weddings despite the civil rights law in her state.

Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with the Blade, “it’s not too much to say an immeasurably huge amount is at stake” for LGBTQ people depending on the outcome of the case.

“This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person — if that were to be accepted, that would be a profound change in the law,” Pizer said. “And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having a non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you.”

The upcoming arguments and decision in the 303 Creative case mark a return to LGBTQ rights for the Supreme Court, which had no lawsuit to directly address the issue in its previous term, although many argued the Dobbs decision put LGBTQ rights in peril and threatened access to abortion for LGBTQ people.

And yet, the 303 Creative case is similar to other cases the Supreme Court has previously heard on the providers of services seeking the right to deny services based on First Amendment grounds, such as Masterpiece Cakeshop and Fulton v. City of Philadelphia. In both of those cases, however, the court issued narrow rulings on the facts of litigation, declining to issue sweeping rulings either upholding non-discrimination principles or First Amendment exemptions.

Pizer, who signed one of the friend-of-the-court briefs in opposition to 303 Creative, said the case is “similar in the goals” of the Masterpiece Cakeshop litigation on the basis they both seek exemptions to the same non-discrimination law that governs their business, the Colorado Anti-Discrimination Act, or CADA, and seek “to further the social and political argument that they should be free to refuse same-sex couples or LGBTQ people in particular.”

“So there’s the legal goal, and it connects to the social and political goals and in that sense, it’s the same as Masterpiece,” Pizer said. “And so there are multiple problems with it again, as a legal matter, but also as a social matter, because as with the religion argument, it flows from the idea that having something to do with us is endorsing us.”

One difference: the Masterpiece Cakeshop litigation stemmed from an act of refusal of service after owner, Jack Phillips, declined to make a custom-made wedding cake for a same-sex couple for their upcoming wedding. No act of discrimination in the past, however, is present in the 303 Creative case. The owner seeks to put on her website a disclaimer she won’t provide services for same-sex weddings, signaling an intent to discriminate against same-sex couples rather than having done so.

As such, expect issues of standing — whether or not either party is personally aggrieved and able bring to a lawsuit — to be hashed out in arguments as well as whether the litigation is ripe for review as justices consider the case. It’s not hard to see U.S. Chief Justice John Roberts, who has sought to lead the court to reach less sweeping decisions (sometimes successfully, and sometimes in the Dobbs case not successfully) to push for a decision along these lines.

Another key difference: The 303 Creative case hinges on the argument of freedom of speech as opposed to the two-fold argument of freedom of speech and freedom of religious exercise in the Masterpiece Cakeshop litigation. Although 303 Creative requested in its petition to the Supreme Court review of both issues of speech and religion, justices elected only to take up the issue of free speech in granting a writ of certiorari (or agreement to take up a case). Justices also declined to accept another question in the petition request of review of the 1990 precedent in Smith v. Employment Division, which concluded states can enforce neutral generally applicable laws on citizens with religious objections without violating the First Amendment.

Representing 303 Creative in the lawsuit is Alliance Defending Freedom, a law firm that has sought to undermine civil rights laws for LGBTQ people with litigation seeking exemptions based on the First Amendment, such as the Masterpiece Cakeshop case.

Kristen Waggoner, president of Alliance Defending Freedom, wrote in a Sept. 12 legal brief signed by her and other attorneys that a decision in favor of 303 Creative boils down to a clear-cut violation of the First Amendment.

“Colorado and the United States still contend that CADA only regulates sales transactions,” the brief says. “But their cases do not apply because they involve non-expressive activities: selling BBQ, firing employees, restricting school attendance, limiting club memberships, and providing room access. Colorado’s own cases agree that the government may not use public-accommodation laws to affect a commercial actor’s speech.”

Pizer, however, pushed back strongly on the idea a decision in favor of 303 Creative would be as focused as Alliance Defending Freedom purports it would be, arguing it could open the door to widespread discrimination against LGBTQ people.

“One way to put it is art tends to be in the eye of the beholder,” Pizer said. “Is something of a craft, or is it art? I feel like I’m channeling Lily Tomlin. Remember ‘soup and art’? We have had an understanding that whether something is beautiful or not is not the determining factor about whether something is protected as artistic expression. There’s a legal test that recognizes if this is speech, whose speech is it, whose message is it? Would anyone who was hearing the speech or seeing the message understand it to be the message of the customer or of the merchants or craftsmen or business person?”

Despite the implications in the case for LGBTQ rights, 303 Creative may have supporters among LGBTQ people who consider themselves proponents of free speech.

One joint friend-of-the-court brief before the Supreme Court, written by Dale Carpenter, a law professor at Southern Methodist University who’s written in favor of LGBTQ rights, and Eugene Volokh, a First Amendment legal scholar at the University of California, Los Angeles, argues the case is an opportunity to affirm the First Amendment applies to goods and services that are uniquely expressive.

“Distinguishing expressive from non-expressive products in some contexts might be hard, but the Tenth Circuit agreed that Smith’s product does not present a hard case,” the brief says. “Yet that court (and Colorado) declined to recognize any exemption for products constituting speech. The Tenth Circuit has effectively recognized a state interest in subjecting the creation of speech itself to antidiscrimination laws.”

Oral arguments in the case aren’t yet set, but may be announced soon. Set to defend the state of Colorado and enforcement of its non-discrimination law in the case is Colorado Solicitor General Eric Reuel Olson. Just this week, the U.S. Supreme Court announced it would grant the request to the U.S. solicitor general to present arguments before the justices on behalf of the Biden administration.

With a 6-3 conservative majority on the court that has recently scrapped the super-precedent guaranteeing the right to abortion, supporters of LGBTQ rights may think the outcome of the case is all but lost, especially amid widespread fears same-sex marriage would be next on the chopping block. After the U.S. Tenth Circuit Court of Appeals ruled against 303 Creative in the lawsuit, the simple action by the Supreme Court to grant review in the lawsuit suggests they are primed to issue a reversal and rule in favor of the company.

Pizer, acknowledging the call to action issued by LGBTQ groups in the aftermath of the Dobbs decision, conceded the current Supreme Court issuing the ruling in this case is “a terrifying prospect,” but cautioned the issue isn’t so much the makeup of the court but whether or not justices will continue down the path of abolishing case law.

“I think the question that we’re facing with respect to all of the cases or at least many of the cases that are in front of the court right now, is whether this court is going to continue on this radical sort of wrecking ball to the edifice of settled law and seemingly a goal of setting up whole new structures of what our basic legal principles are going to be. Are we going to have another term of that?” Pizer said. “And if so, that’s terrifying.”

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DOJ urged to investigate threats against providers of transition-related care

Boston-area hospital forced to evacuate in August

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A coalition of major health organizations are calling on U.S. Attorney General Merrick Garland to investigation threats against providers of gender transition-related medical care for youth, asserting ongoing hostility, including bomb threats and threats of personal violence.

The letter, dated Oct. 3, says medical providers are facing threats for providing “evidence-based health care” to youth, which has meant care for gender transitions, such as hormones, puberty blockers and gender reassignment surgery. The targets of these threats, the letter says, are children’s hospitals, academic health systems and physicians across the country.

“These coordinated attacks threaten federally protected rights to health care for patients and their families,” the letter says. “The attacks are rooted in an intentional campaign of disinformation, where a few high-profile users on social media share false and misleading information targeting individual physicians and hospitals, resulting in a rapid escalation of threats, harassment and disruption of care across multiple jurisdictions.”

The letter has an organizational signature from American Academy of Pediatrics, American Medical Association and Children’s Hospital Association, listing no names as representatives. According to the letter, the group represent 270,000 physicians and medical students and CHA represents more than 220 children’s hospitals across the country.

Major health organizations call on the U.S. Justice Department to take action weeks after Boston Children’s Hospital was forced to evacuate over a bomb threat. Authorities later arrested a woman charged with making the after she reportedly phoned in the threat and called the staff “sickos.”

The threats, the letter says, have had significant impact on providers and services to patients, including a new mother being prevented from being with her preterm infant because of a bomb threat; the need for increased security at children’s hospitals; and staffers facing “increased threats via social media – including to their personal accounts.”

A statement from organizations accompanying the letter urges social media companies — including Twitter, TikTok and Meta, which owns Facebook and Instagram — to “do more to prevent coordinated campaigns of disinformation.”

Jack Resneck, president of the American Medical Association, said in a statement accompanying the letter “individuals in all workplaces have the right to a safe environment, out of harm’s way and free of intimidation or reprisal.”

“As physicians, we condemn groups that promote hate-motivated intolerance and toxic misinformation that can lead to grave real-world violence and extremism and jeopardize patients’ health outcomes,” Resneck said.

The Washington Blade has placed a call in with the Justice Department seeking comment on the letter and the American Medical Association seeking comment on why the letter has organizational signatures as opposed to signatures from any of their representatives.

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