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Another court rules anti-gay bias barred under current law

Gay employee called ‘fag’ before being forced to resign

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 A federal judge has determined anti-gay discrimination is barred under current law.

A federal judge has determined anti-gay bias is barred under current law.

A federal court in Pennsylvania has become the latest to determine discrimination against gay people in the workplace is barred under current law, despite the lack of explicit protections in U.S. code based on sexual orientation.

In a 14-page decision announced on Friday, U.S. District Judge Cathy Bissoon, an Obama appointee, rejected a request to dismiss a case filed by the U.S. Equal Employment Opportunity Commission on behalf of Dale Baxley, a former telemarketer at the Pittsburgh-based Scott Medical Health Center who says he was harassed on the job for being gay and forced to resign.

Bissoon cites as the reason to allow the case to go forward Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of gender, becoming the latest in a series of court rulings to determine that law applies to lesbian, gay and bisexual people.

“The Court holds Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation,” Bissoon writes. “Accordingly, the EEOC’s Complaint stating that Mr. Baxley was discriminated against for being gay properly states a claim for relief. The Court sees no meaningful difference between sexual orientation discrimination and discrimination ‘because of sex.'”

According to the complaint filed by EEOC, when Baxley worked at Scott Medical Health Center in 2013, his supervisor, Robert McClendon, referred to him at least three to four times a week with anti-gay epithets, calling him “fag,” “faggot,” “fucking faggot” and “queer.” EEOC also alleges McClendon made statements like “fucking queer can’t do your job.”

Upon learning Baxley had a male partner, McClendon allegedly made offensive statements to him about the relationship, such as saying, “I always wondered how you fags have sex,” “I don’t understand how you fucking fags have sex,” and “Who’s the butch and who is the bitch?” In August 2013, Baxley resigned as a result of the harassment.

EEOC, the U.S. agency charged with enforcing federal employment civil rights law, filed a lawsuit after an effort to reach a conciliation agreement with Scott Medical Health Center failed. Last year, EEOC determined in the case of Baldwin v. Foxx that sexual orientation discrimination is gender discrimination, and thus lesbian, gay and bisexual workers are protected under Title VII. EEOC reached the same conclusion in 2012 for transgender workers in the case of Macy v. Holder.

Attorneys for Scott Medical Health Center urged the court to dismiss the lawsuit based on a number of claims, arguing EEOC didn’t follow proper process in filing the complaint and filed the claim too late, but the court rejected each of those claims.

Scott Medical Health Center also contends EEOC lacks grounds to file the complaint because Title VII doesn’t bar discrimination based on sexual orientation, citing as precedent in the Third Circuit for that legal determination Prowel v. Wise Business Forms, Inc., and Bibby v. Philadelphia Coca-Cola Bottling, Co.

Finding those cases aren’t dispositive, Bissoon gets around that precedent by noting EEOC filed its claim on the basis that sexual orientation discrimination is a form of gender discrimination. Bissoon also cites the 1989 U.S. Supreme Court decision in the Price Waterhouse case, which determined sex stereotyping amounts to gender discrimination.

“There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality,” Bissoon writes. “As the EEOC states, ‘[d]iscriminating against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about ‘proper’ roles in sexual relationships – that men are and should only be sexually attracted to women, not men.’ This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse. Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

Bissoon also cites a changing legal landscape with regard to court rulings on sexual orientation, citing the recent U.S. Supreme Court decision extending same-sex marriage nationwide.

“That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate,” Bissoon concludes.

Sarah Warbelow, legal director for the Human Rights Campaign, called Bissoon’s determination anti-gay employment discrimination is barred under current law an “important win for LGBTQ equality.”

“Judge Bissoon’s decision affirms that discrimination against an individual based on their sexual orientation is fundamentally a form of discrimination based on sex — which is prohibited by federal law,” Warbelow added. “We congratulate the EEOC and the plaintiff on this victory.”

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The White House

Biden, Harris, deliver remarks for White House Office of Gun Violence Prevention

Pulse survivor Brandon Wolf among those who spoke

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President Joe Biden and Vice President Kamala Harris listen as U.S. Rep. Maxwell Alejandro Frost (D-Fla.) addresses an audience in the Rose Garden including federal, state and local officials, survivors and family members, and gun violence prevention advocates on Sept. 22, 2023. (Photo courtesy of Brandon Wolf)

President Joe Biden, Vice President Kamala Harris, and U.S. Rep. Maxwell Frost (D-Fla.) addressed an audience from the Rose Garden of the White House on Friday to honor the establishment of a first-ever White House Office of Gun Violence Prevention.

In a press release Thursday announcing the move, the administration said its aim is to implement and expand the provisions of last year’s Bipartisan Safer Communities Act along with those contained in the president’s executive orders targeting issues of gun violence.

Additionally, Biden explained in his remarks, the office will coordinate more support for survivors, families and communities, including mental health services and financial aid; identify new avenues for executive action; and “expand our coalition of partners in states and cities across America” given the need for legislative solutions on the local and state level.

Harris, who will oversee the office, pledged to “use the full power of the federal government to strengthen the coalition of survivors and advocates and students and teachers and elected leaders to save lives and fight for the right of all people to be safe from fear and to be able to live a life where they understand that they are supported in that desire and that right.”

The vice president noted her close experiences with the devastating consequences of gun violence in her work as a federal prosecutor, San Francisco district attorney, California attorney general and in her current role.

Biden’s comments also included highlights of his administration’s accomplishments combatting gun violence and a call to action for Congress to do more. “It’s time again to ban assault weapons and high capacity magazines,” he told lawmakers.

The president also credited the the work of advocates including those who were gathered at the White House on Friday: “all of you here today, all across the country, survivors, families, advocates — especially young people who demand our nation do better to protect all; who protested, organized, voted, and ran for office, and, yes, marched for their lives.”

Taking the stage before introducing Biden, Frost noted that “Right before I was elected to Congress, I served as the national organizing director for March for Our Lives, a movement that inspired young people across the nation to demand safe communities.”

“The president understands that this issue especially for young people, especially for marginalized communities, is a matter of survival,” the congressman said. And the formation of this office, “comes from Pulse to Parkland,” he said, adding, “we fight because we love.”

Human Rights Campaign National Press Secretary Brandon Wolf, a survivor of the 2016 Pulse nightclub shooting, which was America’s second deadliest mass shooting and the deadliest against the LGBTQ community, shared a comment with the Washington Blade after Friday’s ceremony:

“Seven years ago, when my best friends and 47 others were murdered at our safe place — Pulse Nightclub — we promised to honor them with action. This is what that looks like. This deep investment in the fight to end gun violence matters, and I cannot wait to see Vice President Harris lead these efforts. We can blaze the path toward a future free of gun violence. And today marked an important step in that direction.”

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U.S. Federal Courts

Federal judge: drag is ‘vulgar and lewd,’ ‘sexualized conduct’

Ruling ‘bristles with hostility toward LGBTQ people’

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J. Marvin Jones Federal Building, U.S. Courthouse in Amarillo, Texas (Photo: Library of Congress)

Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas issued a ruling Thursday denying relief to a group of university students who sought to host a drag show over the objections of their school’s president.

A Trump appointed jurist with deep ties to anti-LGBTQ and anti-abortion conservative legal activists, Kacsmaryk argued that drag performances probably do not constitute speech protected by the First Amendment.

As Slate Senior Writer Mark Joseph Stern wrote on X, this conclusion “conflicts with decisions from Texas, Florida, Tennessee and Montana which held that drag is constitutionally protected expression.”

“It also bristles with undisguised hostility toward LGBTQ people,” he added.

Kacsmaryk’s 26-page decision describes drag performances as lewd and licentious, obscene and sexually prurient, despite arguments the plaintiffs had presented about the social, political, and artistic merit of this art form.

As the Human Rights Campaign recently wrote, “drag artists and the spaces that host their performances have long served as a communal environment for queer expression.”

The group added, “It is a form of art and entertainment, but, historically, the performances haven’t only served to entertain, but also to truly advance the empowerment and visibility of LGBTQ+ people.”

Nevertheless, anti-LGBTQ conservative activists and organizations have perpetuated conspiracy theories about members of the community targeting children for sexual abuse including by bringing them to drag performances.

Among these is a group with ties to the Proud Boys that was cited by Kacsmaryk in his ruling: Gays Against Groomers, an anti-LGBTQ and anti-transgender extremist group, according to the Anti-Defamation League and Southern Poverty Law Center.

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The White House

Harris to oversee White House Office of Gun Violence Prevention

Goal is to implement and expand upon legislation, executive actions

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U.S. Vice President Kamala Harris, September 2023. (Official White House photograph by Lawrence Jackson)

The White House announced Thursday evening that President Joe Biden on Friday will establish the first-ever White House Office of Gun Violence Prevention, to be overseen by Vice President Kamala Harris.

The office will focus on implementing and expanding upon executive and legislative actions, including the Bipartisan Safer Communities Act, “to reduce gun violence, which has ravaged communities across the country.”

Serving under Harris will be Stefanie Feldman, “a longtime policy advisor to President Biden on gun violence prevention,” and “leading gun violence prevention advocates Greg Jackson and Rob Wilcox.”

“Every time I’ve met with families impacted by gun violence as they mourn their loved ones, and I’ve met with so many throughout the country, they all have the same message for their elected officials: ‘do something,'” Biden said in a statement.

The president noted his signing of last year’s bipartisan gun violence prevention law, a flagship legislative accomplishment for the administration, along with his issuance of more executive actions than any president in history to address this problem.

Calling these “just the first steps,” Biden said the establishment of the White House Office on Gun Violence Prevention will “build upon these measures and keep Americans safe.”

He also urged Congress to do more by passing legislation requiring universal background checks, and baning assault weapons and high capacity magazines.

In a statement, Harris said, “This epidemic of gun violence requires urgent leadership to end the fear and trauma that Americans experience every day.”

“The new Office of Gun Violence Prevention will play a critical role in implementing President Biden’s and my efforts to reduce violence to the fullest extent under the law,” she said, “while also engaging and encouraging Congressional leaders, state and local leaders, and advocates to come together to build upon the meaningful progress that we have made to save lives.”

“Our promise to the American people is this: we will not stop working to end the epidemic of gun violence in every community, because we do not have a moment, nor a life to spare,” the vice president said.

Then Vice President Biden hugs Brandon J. Wolf as he talks with family members of the victims and survivors in the June 12th mass shooting at the Pulse nightclub in Orlando, at the Amway Center in Orlando, Florida, June 16, 2016.
Wolf, a Pulse survivor, was recently appointed National Press Secretary of the Human Rights Campaign.
(Official White House Photo by David Lienemann)
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