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

Pennsylvania

Pa. House passes bill to codify marriage equality in state law

Governor supports gay state Rep. Malcolm Kenyatta’s measure

Published

on

Pennsylvania Capitol Building (Washington Blade file photo by Michael Key)

The Pennsylvania House of Representatives on Wednesday passed a bill that would codify marriage equality in state law.

House Bill 1800 passed by a 127-72 vote margin. Twenty-six Republicans voted for the measure.

The Republican-controlled Pennsylvania Senate will now consider the bill that state Rep. Malcolm Kenyatta (D-Philadelphia), who is the first openly gay person of color elected to the state’s General Assembly, introduced. Democratic Gov. Josh Shapiro supports the measure.

“Here in Pennsylvania, we believe in your freedom to marry who you love,” said Shapiro on Wednesday. “Today, the House has stepped up to protect that right.”

Continue Reading

Florida

DeSantis signs emergency bill that restores Fla. ADAP funding

Temporary funds to last through June 30

Published

on

Republican Florida Gov. Ron DeSantis (Screen capture/NBC News)

After the Florida Department of Health made huge cuts to the AIDS Drug Assistance Program in January, Republican Gov. Ron DeSantis has signed emergency legislation restoring HIV access to more than 12,000 Floridians.

Two months ago, as the Washington Blade reported, the Sunshine State cut the vast majority of those in ADAP by shifting the income levels required for eligibility — without following standard procedure when changing government policy outside of legislative or executive action.

The bill, signed by DeSantis on Tuesday, passed both chambers of the Florida Legislature unanimously and appropriates $30.9 million in emergency bridge funding through June 30, 2026. It restores Florida’s ADAP income eligibility to 400 percent of the Federal Poverty Level — the level it was prior to the January cuts. The legislation also requires the FDOH to submit detailed monthly financial reports to legislative leadership beginning April 1.

Under the old policy, eligibility would have been limited to those making no more than 130 percent of the federal poverty level, or $20,345 per year.

“For 10 weeks, 12,000 Floridians living with HIV did not know if they could fill their next prescription. Today, they can,” Esteban Wood, director of advocacy and legislative affairs at AIDS Healthcare Foundation, said in a statement.

The detailed reports now required to be sent to legislative leadership must include all federal revenues and expenditures, including manufacturer rebates; enrollment figures by county and insurance status; prescription utilization by drug class; and any projected funding shortfalls. This is the first time the Legislature has required this level of financial transparency from the program.

DeSantis signed the legislation one day after a Leon County Circuit Court judge denied AIDS Healthcare Foundation’s request for an injunction to block the significant changes the DeSantis administration is making to the program, which it claims faces a $120 million shortfall for calendar year 2026.

AIDS Healthcare Foundation, a national organization focused on protecting and expanding HIV healthcare access and prevention methods, filed a lawsuit over the change in eligibility, arguing the Florida Department of Health did not follow the laid out path for formally changing policy and was acting outside established procedures.

Typically, altering eligibility for a statewide program requires either legislative action or adherence to a multistep rule-making process, including: publishing a Notice of Proposed Rule; providing a statement of estimated regulatory costs; allowing public comment; holding hearings if requested; responding to challenges; and formally adopting the rule. According to AIDS Healthcare Foundation, none of these steps occurred.

The long-term structure of ADAP will be determined by the 2026–2027 fiscal year state budget, something that lawmakers have until June 30 to finish.

Continue Reading

India

Menaka Guruswamy celebrated as India’s first openly LGBTQ MP

Constitutional lawyer elected to Rajya Sabha on March 9

Published

on

Menaka Guruswamy (Screen capture via OxfordUnion/YouTube)

India’s LGBTQ community has found renewed hope in the election of Menaka Guruswamy, a lawyer who has argued before the Supreme Court, as the country’s first openly LGBTQ MP.

Guruswamy was declared elected unopposed to the Rajya Sabha, the upper house of Parliament, on March 9, representing West Bengal. The All India Trinamool Congress, the regional party that governs the state, nominated her.

Guruswamy is a constitutional lawyer who studied at Oxford University, Harvard Law School, and the National Law School of India University. She has argued several significant cases before the Supreme Court and is widely known for her work on constitutional law, civil liberties, and LGBTQ rights. 

Guruswamy was part of the legal team that successfully challenged Section 377 of the Indian Penal Code, a colonial-era law that criminalized consensual same-sex sexual relations, which the Supreme Court struck down in 2018. She has also written and spoken extensively on issues of democracy, rights and institutional accountability.

Ankit Bhupatani, a global diversity, equity and inclusion leader and LGBTQ activist, welcomed Guruswamy’s election. 

“This is significant not because Parliament needed a queer person, but because a queer person needed Parliament,” Bhupatani told the Washington Blade.

India has seen LGBTQ representation in elected office at the state and local levels, though it has remained limited. 

In 1998, Shabnam Mausi was elected to the Madhya Pradesh Legislative Assembly from the Sohagpur constituency, becoming one of the first openly transgender people to hold public office in India. Mausi’s election marked a rare moment of visibility for trans people in the country’s political system, where representation has historically been sparse. Since then, a small number of openly trans candidates have contested and, in some cases, won local and state elections, but no openly LGBTQ person had been elected to Parliament before Guruswamy.

Guruswamy and her partner, Arundhati Katju, who is also a lawyer, were part of the legal team that played a central role in the Section 377 decision.

Representing one of the plaintiffs, the two lawyers helped frame the case around constitutional guarantees of equality, dignity, and privacy. The Navtej Singh Johar v. Union of India ruling marked a watershed moment for LGBTQ rights in India.

“For too long, we have fought our battles only in courtrooms and on streets. Now, there is a seat at the table where laws are written,” said Bhupatani. “Whether that seat produces change depends entirely on how it is used. Representation without substance is decoration. But as a beginning, yes. This matters.”

Guruswamy later represented the plaintiffs in the Supreme Court’s 2023 marriage equality case, Supriyo v. Union of India, which a 5-judge panel heard in the spring of 2023. 

Along with other lawyers representing same-sex couples, she advanced arguments rooted in constitutional guarantees of equality, dignity, and personal liberty. The Supreme Court in a 3-2 decision on Oct. 17, 2023, declined to recognize same-sex marriage — holding that such a change falls within Parliament’s domain — but did acknowledge LGBTQ people face discrimination. The Blade previously reported the ruling underscored the court’s view that it could interpret the law, but could not create a new legal framework for marriage rights.

Bhupatani said Guruswamy’s election should not be seen as an immediate shift toward legislative action on LGBTQ rights, cautioning that such expectations may not align with political realities. He said her presence in Parliament could help sustain the issue in a way it has not been before, even as broader legal change is likely to take time.

“What she can do is keep the question alive inside Parliament in a way that it hasn’t been before,” Bhupatani said. “Legislative change in India on social questions usually takes longer than advocates want and shorter than skeptics predict. The 377 decriminalization seemed impossible until it wasn’t. Partnership rights will follow the same pattern eventually.”

Bhupatani added that while Guruswamy’s election may influence the pace of change, it does not, on its own, constitute a broader political movement.

“One person in Parliament, however extraordinary, is not a movement. She is an opening,” he said. “The 2023 ruling created a responsibility. Guruswamy’s election creates an opportunity to fulfill it from inside. Whether opportunity becomes outcome is entirely a question of human will.”

Guruswamy has served as a visiting faculty member at leading American institutions that include Yale Law School, Columbia Law School, and New York University School of Law. She has also worked with international organizations, advising the U.N. Development Fund for Women in New York and the U.N. Children’s Fund in both New York and South Sudan.

According to her professional profile, Guruswamy has been involved in a range of significant cases before the Indian Supreme Court that include matters related to bureaucratic reform and accountability. 

One case is connected to the AgustaWestland helicopter deal, an investigation into alleged bribery in a multimillion-dollar defense procurement contract; litigation arising from the Salwa Judum case, in which the court examined the state-backed use of civilian militias in counterinsurgency operations in central India; and cases involving the implementation of the Right to Education Act, a law guaranteeing free and compulsory education for children between the ages of six and 14.

More recently, Guruswamy represented the All India Trinamool Congress in legal proceedings challenging searches conducted by India’s Enforcement Directorate, a federal agency responsible for investigating financial crimes, including money laundering and violations of foreign exchange laws. The searches were carried out at the offices of the Indian Political Action Committee, or I-PAC, a political consulting firm that provides data-driven campaign strategy and election management services to political parties. The case raised questions about the scope of investigative powers and the use of federal agencies in politically sensitive matters.

Guruswamy’s engagement with LGBTQ rights has extended beyond courtroom advocacy into public constitutional discourse. 

On July 11, 2018, during hearings in the Section 377 case, she argued the criminalization law could not be justified on the basis of “social morality,” describing it as subjective and incompatible with constitutional guarantees, and framing the case as one fundamentally about “our humanity.” The Thomas Jefferson Foundation Medal in Law at the University of Virginia in February 2023 recognized Guruswamy and Katju for their work on LGBTQ rights.

Guruswamy has not responded to the Blade’s multiple requests for comment about her election.

Continue Reading

Popular