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DOJ slammed for ducking on trans exclusion in ADA

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



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.



HRC invests $15 million in six battleground states ahead of November elections

Group made announcement on Monday



Human Rights Campaign President Kelley Robinson (Washington Blade photo by Michael Key)

The Human Rights Campaign will target a record-high 75 million pro-LGBTQ voters nationwide with a public education and mobilization campaign ahead of the 2024 elections, which includes a $15 million investment in six key battleground states, the group announced on Monday.

The initiative will focus on voters in states like Pennsylvania, Arizona, Michigan, Wisconsin, Georgia, and Nevada with “hired staff, field efforts, events, paid advertising, mobilization, and grassroots engagement,” HRC wrote in a press release announcing the campaign, which is titled “We Show Up: Equality Wins.”

HRC defines Equality Voters as constituents who are “united by the advancement of LGBTQ+ equality, and are younger, more racially diverse, and more female than the general electorate.”

Among those who would vote for third-party candidates if the election were held today — 22 percent, or 16.5 million people — survey results show half would support President Joe Biden if they reach the understanding that their third-party vote would support Donald Trump’s bid for the White House.

Along with re-electing Biden and Vice President Kamala Harris, HRC’s campaign will work “to defeat escalating anti-trans attacks” and “electing historic LGBTQ+ and pro-equality candidates down-the-ballot,” the group wrote.

HRC will support LGBTQ candidates in California, Texas, New York, and Delaware with the aim of helping to elect a pro-equality majority in the U.S. House of Representatives.  

“Trump and his MAGA allies are promising a hate-filled agenda that hurts everyone who doesn’t look and live like them,” HRC President Kelley Robinson said. “They think they can bully and scare us and take away our fundamental freedoms. But the LGBTQ+ community has won these hard fights before — and we refuse to go back.”

HRC noted “Trump has promised to not just undo all the progress made by the Biden-Harris administration; but to erase LGTBQ+ people from federal law, further dismantle access to health care for transgender people, and dictate curriculum for school children.” 

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U.S. Supreme Court

Supreme Court declines to hear lawsuit against Montgomery County schools gender guidelines

4th Circuit last August dismissed parents’ case



U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Monday declined to hear a lawsuit against Montgomery County Public Schools guidelines that allow schools to create plans in support of transgender or gender nonconfirming students without their parents’ knowledge or consent.

Three parents of students in the school district — none of whom have trans or gender nonconfirming children — filed the lawsuit. 

A judge on the 4th U.S. Circuit Court of Appeals last August dismissed the case. The plaintiffs appealed the decision to the Supreme Court.

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Pope Francis: Priests can bless gays and lesbians, not same-sex unions

’60 Minutes’ broadcast Norah O’Donnell’s interview with pontiff on Sunday



Pope Francis (Photo by palinchak via Bigstock)

Pope Francis said priests can bless gays and lesbians who are couples, as opposed to their unions, during an interview that “60 Minutes” broadcast on Sunday.

“What I allowed was not to bless the union. That cannot be done because that is not the sacrament. I cannot. The Lord made it that way. But to bless each person, yes. The blessing is for everyone,” he told CBS Evening News anchor Norah O’Donnell.

Francis spoke with O’Donnell at Casa Santa Marta, his official residence at the Vatican.

“To bless a homosexual-type union, however, goes against the given right, against the law of the church. But to bless each person, why not?,” added Francis. “The blessing is for all. Some people were scandalized by this. But why? Everyone! Everyone!”

The Vatican’s Dicastery for the Doctrine of the Faith late last year released a new document that elaborates on a letter Francis sent earlier in 2023 to five cardinals who urged him to reaffirm church teaching on homosexuality. 

Francis in the letter the Dicastery for the Doctrine of the Faith released in October 2023 suggested priests could offer blessings to same-sex couples under some circumstances “if they didn’t confuse the blessing with sacramental marriage.”

“Ultimately, a blessing offers people a means to increase their trust in God,” reads the document. “The request for a blessing, thus, expresses and nurtures openness to the transcendence, mercy and closeness to God in a thousand concrete circumstances of life, which is no small thing in the world in which we live.”

Francis was the archbishop of Buenos Aires when Argentina’s marriage equality law took effect in 2010. He was among those who vehemently opposed the statute before then-President Cristina Fernández de Kirchner signed it.

Francis has publicly endorsed civil unions for same-sex couples. He has also spoken out against laws that criminalize consensual same-sex sexual relations.

“It is a human fact,” Francis told O’Donnell.

The Vatican’s tone towards LGBTQ issues has softened since Francis assumed the papacy in 2013, even though church teachings on gender identity and other topics has not changed. Francis during the interview sharply criticized conservative American bishops who “oppose” his “new efforts to revisit teachings and traditions.” 

“You used an adjective, ‘conservative.’ That is, conservative is one who clings to something and does not want to see beyond that. It is a suicidal attitude,” he told O’Donnell. “Because one thing is to take tradition into account, to consider situations from the past, but quite another is to be closed up inside a dogmatic box.” 

CBS will broadcast O’Donnell’s full interview with Francis on Monday at 10 p.m. ET.

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