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Court finds anti-gay workforce bias legal, still rules for gay plaintiff

Judges cite sex stereotyping prohibition in decision

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A federal appeals court ruled for a gay plaintiff despite finding anti-gay workforce bias is lawful.

A federal appeals court ruled Monday anti-gay bias in the workplace is legal under current federal civil rights law barring discrimination based on sex, but nonetheless handed a victory to a gay plaintiff on the basis that the discrimination she faced amounted to illegal sex-stereotyping.

In a 15-page opinion, a three-judge panel on the U.S. 2nd Circuit Court of Appeals unanimously found precedent bars the court from concluding the global DDB Worldwide Communications Group illegally discriminated against Matthew Christiansen for being gay under the Title VII of the Civil Rights of Act.

The per curiam opinion found a district court handling the Christiansen v. Omnicom Group erred in its conclusion sexual-orientation discrimination constitutes sex discrimination under federal civil rights law, citing the 2000 decision in Simonton v. Runyon and the 2005 decision in Dawson v. Bumble & Bumble.

“Because we are ‘bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court…it [is] ordinarily…neither appropriate nor possible for [a panel] to reverse an existing Circuit precedent,'” the decision says. “We thus lack the power to reconsider Simonton and Dawson.”

However, the court concluded Christiansen, who’s openly gay and HIV positive, made a compelling case he faced discrimination based on sex-stereotyping, which the U.S. Supreme Court determined is unlawful in the 1989 decision of Price Waterhouse v. Coopers.

“Christiansen’s complaint identifies multiple instances of gender stereotyping discrimination,” the decision says. “His complaint alleges that his supervisor described him as ‘effeminate’ to others in the office…and depicted him in tights and a low‐cut shirt ‘prancing around.’ The complaint further alleges that the ‘Muscle Beach Party’ party poster, depicting Christiansen’s head attached to a bikini‐clad female body lying on the ground with her legs in the air, was seen by at least one coworker as portraying Christiansen ‘as a submissive sissy.'”

As a result, the court reverses the district court decision rejecting Christiansen’s allegations of sex-stereotyping in the workforce, remanding the decision for reconsideration.

The three-judge panel consisted of U.S. Chief Judge Robert Katzmann, a Clinton appointee; U.S. Circuit Judge Debra Ann Livingston, a George W. Bush appointee; and U.S. District Judge Margo Brodie, an Obama appointee sitting on the court by designation.

In a concurring opinion, Katzmann and Brodie examine the evolution of the understanding of sexual orientation in the legal landscape. Although the judges say precedent prevents them from determining sexual-orientation discrimination is sex discrimination, they conclude the time has come for reconsideration by the full court under “en banc” review.

“I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII,” Katzmann writes. “Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”

A number of cases are percolating federal appeals court urging the judiciary to determine sexual-orientation discrimination is sex discrimination under current law. In a new trend, district courts and the U.S. Equal Employment Opportunity Commission have found Title VII bars anti-gay bias in the workforce, although no federal appeals court has reached that conclusion.

Had the 2nd Circuit ruled that sexual-orientation discrimination is unlawful under Title VII, it would have been the first federal appeals court to determine existing civil rights law extends to gay, lesbian and bisexual people in the workforce.

Shannon Minter, legal director for the National Center for Lesbian Rights, said the ruling had promise even though judges concluded the sexual-orientation discrimination isn’t unlawful under Title VII.

“I am actually encouraged by the court’s recognition that there is no principled reason to exclude sexual orientation discrimination from Title VII, and by their support for ‘en banc’ review,” Minter said. “Courts are finally taking these claims seriously, and I expect that we will see more and more positive decisions, hopefully including a positive ‘en banc’ decision from the 11th Circuit.”

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U.S. Supreme Court

Supreme Court to consider bans on trans athletes in school sports

27 states have passed laws limiting participation in athletics programs

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

The U.S. Supreme Court on Thursday agreed to hear two cases involving transgender youth challenging bans prohibiting them from participating in school sports.

In Little v. Hecox, plaintiffs represented by the ACLU, Legal Voice, and the law firm Cooley are challenging Idaho’s 2020 ban, which requires sex testing to adjudicate questions of an athlete’s eligibility.

The 9th U.S. Circuit Court of Appeals described the process in a 2023 decision halting the policy’s enforcement pending an outcome in the litigation. The “sex dispute verification process, whereby any individual can ‘dispute’ the sex of any female student athlete in the state of Idaho,” the court wrote, would “require her to undergo intrusive medical procedures to verify her sex, including gynecological exams.”

In West Virginia v. B.P.J., Lambda Legal, the ACLU, the ACLU of West Virginia, and Cooley are representing a trans middle school student challenging the Mountain State’s 2021 ban on trans athletes.

The plaintiff was participating in cross country when the law was passed, taking puberty blockers that would have significantly reduced the chances that she could have a physiological advantage over cisgender peers.

“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status,” said Joshua Block, senior counsel for the ACLU’s LGBTQ and HIV Project. “Trans kids play sports for the same reasons their peers do — to learn perseverance, dedication, teamwork, and to simply have fun with their friends,” Block said.

He added, “Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth. We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”

“Our client just wants to play sports with her friends and peers,” said Lambda Legal Senior Counsel Tara Borelli. “Everyone understands the value of participating in team athletics, for fitness, leadership, socialization, and myriad other benefits.”

Borelli continued, “The U.S. Court of Appeals for the Fourth Circuit last April issued a thoughtful and thorough ruling allowing B.P.J. to continue participating in track events. That well-reasoned decision should stand the test of time, and we stand ready to defend it.”

Shortly after taking control of both legislative chambers, Republican members of Congress tried — unsuccessfully — to pass a national ban like those now enforced in 27 states since 2020.

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Federal Government

UPenn erases Lia Thomas’s records as part of settlement with White House

University agreed to ban trans women from women’s sports teams

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U.S. Education Secretary Linda McMahon (Screen capture: C-SPAN)

In a settlement with the Trump-Vance administration announced on Tuesday, the University of Pennsylvania will ban transgender athletes from competing and erase swimming records set by transgender former student Lia Thomas.

The U.S. Department of Education’s Office for Civil Rights found the university in violation of Title IX, the federal rights law barring sex based discrimination in educational institutions, by “permitting males to compete in women’s intercollegiate athletics and to occupy women-only intimate facilities.”

The statement issued by University of Pennsylvania President J. Larry Jameson highlighted how the law’s interpretation was changed substantially under President Donald Trump’s second term.

“The Department of Education OCR investigated the participation of one transgender athlete on the women’s swimming team three years ago, during the 2021-2022 swim season,” he wrote. “At that time, Penn was in compliance with NCAA eligibility rules and Title IX as then interpreted.”

Jameson continued, “Penn has always followed — and continues to follow — Title IX and the applicable policy of the NCAA regarding transgender athletes. NCAA eligibility rules changed in February 2025 with Executive Orders 14168 and 14201 and Penn will continue to adhere to these new rules.”

Writing that “we acknowledge that some student-athletes were disadvantaged by these rules” in place while Thomas was allowed to compete, the university president added, “We recognize this and will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time.”

“Today’s resolution agreement with UPenn is yet another example of the Trump effect in action,” Education Secretary Linda McMahon said in a statement. “Thanks to the leadership of President Trump, UPenn has agreed both to apologize for its past Title IX violations and to ensure that women’s sports are protected at the university for future generations of female athletes.”

Under former President Joe Biden, the department’s Office of Civil Rights sought to protect against anti-LGBTQ discrimination in education, bringing investigations and enforcement actions in cases where school officials might, for example, require trans students to use restrooms and facilities consistent with their birth sex or fail to respond to peer harassment over their gender identity.

Much of the legal reasoning behind the Biden-Harris administration’s positions extended from the 2020 U.S. Supreme Court case Bostock v. Clayton County, which found that sex-based discrimination includes that which is based on sexual orientation or gender identity under Title VII rules covering employment practices.

The Trump-Vance administration last week put the state of California on notice that its trans athlete policies were, or once were, in violation of Title IX, which comes amid the ongoing battle with Maine over the same issue.

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New York

Two teens shot steps from Stonewall Inn after NYC Pride parade

One of the victims remains in critical condition

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The Stonewall National Memorial in New York on June 19, 2024. (Washington Blade photo by Michael K. Lavers)

On Sunday night, following the annual NYC Pride March, two girls were shot in Sheridan Square, feet away from the historic Stonewall Inn.

According to an NYPD report, the two girls, aged 16 and 17, were shot around 10:15 p.m. as Pride festivities began to wind down. The 16-year-old was struck in the head and, according to police sources, is said to be in critical condition, while the 17-year-old was said to be in stable condition.

The Washington Blade confirmed with the NYPD the details from the police reports and learned no arrests had been made as of noon Monday.

The shooting took place in the Greenwich Village neighborhood of Manhattan, mere feet away from the most famous gay bar in the city — if not the world — the Stonewall Inn. Earlier that day, hundreds of thousands of people marched down Christopher Street to celebrate 55 years of LGBTQ people standing up for their rights.

In June 1969, after police raided the Stonewall Inn, members of the LGBTQ community pushed back, sparking what became known as the Stonewall riots. Over the course of two days, LGBTQ New Yorkers protested the discriminatory policing of queer spaces across the city and mobilized to speak out — and throw bottles if need be — at officers attempting to suppress their existence.

The following year, LGBTQ people returned to the Stonewall Inn and marched through the same streets where queer New Yorkers had been arrested, marking the first “Gay Pride March” in history and declaring that LGBTQ people were not going anywhere.

New York State Assemblywoman Deborah Glick, whose district includes Greenwich Village, took to social media to comment on the shooting.

“After decades of peaceful Pride celebrations — this year gun fire and two people shot near the Stonewall Inn is a reminder that gun violence is everywhere,” the lesbian lawmaker said on X. “Guns are a problem despite the NRA BS.”

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