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In first, fed’l appeals court rules anti-gay bias barred under current law

Panel finds sexual orientation bias barred under Title VII

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same-sex marriage, gay news, Washington Blade
same-sex marriage, gay news, Washington Blade

For the first tine, a federal appeals court has ruled anti-gay bias is illegal under current law.

For the first time, a federal appeals court has determined discrimination based on sexual orientation amounts to sex discrimination and is unlawful under current civil rights law.

In a 69-page decision, the U.S. 7th Circuit Court of Appeals in Chicago ruled Tuesday in the case of Hively v. Ivy Tech Community College anti-gay workplace bias is unlawful under Title VII of the Civil Rights Act of 1964, reversing an earlier decision from a three-judge panel finding precedent precludes the court from making that determination.

Writing for the majority in the 8-3 decision, U.S. Chief Judge Diane Wood, a Clinton appointee, finds discrimination based on sexual orientation constitutes discrimination based on one’s perception of gender stereotypes, which the U.S. Supreme Court has determined is unlawful under Title VII.

“Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man— dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” Wood writes. “That means that it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.”

Wood also relies heavily on the reasoning in the 1967 U.S. Supreme Court decision in the case of Loving v. Virginia, which struck down bans on interracial marriage and served as a basis for the court’s ruling in favor of marriage equality in 2015.

“Changing the race of one partner made a difference in determining the legality of the conduct, and so the law rested on distinctions drawn according to race, which were unjustifiable and racially discriminatory,” Wood writes. “So too, here. If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex.”

Wood cautions the ruling “decided only the issue put before us” and not, for example, whether Ivy Tech is a religious institution and therefore entitled to the religious exemption under Title VII, nor the legality of anti-gay discrimination “in the context of the provision of social or public services.”

“We hold only that a person who alleges that she experienced employment dis- crimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes,” Wood concludes. “It was therefore wrong to dismiss Hively’s complaint for failure to state a claim.”

In a new trend, a number of district courts have begun to rule anti-gay discrimination violates federal laws against sex discrimination, but federal appeals courts — including the 11th Circuit and the 2nd Circuit — had continued to reject that interpretation of Title VII until now. The 7th Circuit ruling marks the first time a federal court has reached that conclusion after decades of gay, lesbian and bisexual plaintiffs filing complaints before federal courts under that law.

The ruling reverses and remands the lower court ruling in the case, which was filed in 2014 by Kimberly Hively against her former employer, the Indiana-based Ivy Tech Community College, where she worked as a part-time professor. The lawsuit alleged the school violated Title VII of the Civil Rights Act of 1964 by denying Hively full-time employment and promotions because she’s a lesbian.

Echoing Wood in a concurring decision is U.S. Circuit Judge Richard Posner, who was responsible for the 7th Circuit’s decision in favor of marriage equality in 2015 and opined in this case changing attitudes toward sex and gender call for a new interpretation of Title VII.

“The position of a woman discriminated against on account of being a lesbian is thus analogous to a woman’s being discriminated against on account of being a woman,” Posner writes. “That woman didn’t choose to be a woman; the lesbian didn’t choose to be a lesbian. I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.”

But Posner cautioned against basing the decision on Supreme Court precedent prohibiting gender stereotyping in Oncale, which he wrote is “rather evasive,” or Loving, which he said was a constitutional case based on race and “had nothing to do with the recently enacted Title VII.”

Despite criticism of the judiciary for allegedly interpreting the law in ways inconsistent with the intentions of Congress, Posner writes that’s not a problem because he says courts do it “fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.”

Also writing a concurring opinion was U.S. Circuit Judge Joel Flaum, a Reagan-appointed judge who writes that sexual orientation discrimination constitutes sex discrimination under Title VII without any need to reinterpret the law.

“So if discriminating against an employee because she is homosexual is equivalent to discriminating against her because she is (A) a woman who is (B) sexually attracted to women, then it is motivated, in part, by an enumerated trait: The employee’s sex,” Flaum writes. “That is all an employee must show to successfully allege a Title VII claim.”

Writing the dissent in the case was U.S. Circuit Judge Diane Sykes, a George W. Bush-appointed judge who writes the majority “deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.”

“Respect for the constraints imposed on the judiciary by a system of written law must begin with fidelity to the traditional first principle of statutory interpretation: When a statute supplies the rule of decision, our role is to give effect to the enacted text, interpreting the statutory language as a reasonable person would have understood it at the time of enactment,” Sykes writes. “We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.”

Sykes was on the list of judges from which President Trump said during his campaign he’d make appointments to the U.S. Supreme Court and reportedly was one of the three picks on the short list for the late U.S. Associate Justice Antonin Scalia’s seat before Trump nominated U.S. Circuit Judge Neil Gorsuch.

The decision was a source of joy for LGBT rights supporters, who for decades have made a priority of protecting LGBT workers from discrimination.

Greg Nevins, employment fairness program director for Lambda Legal and attorney for the plaintiff, said in a statement the decision is a “gamechanger” for gay people facing workplace discrimination and “sends a clear message to employers: It is against the law to discriminate on the basis of sexual orientation.”

“In many cities and states across the country, lesbian and gay workers are being fired because of who they love,” Nevins said. “But, with this decision, federal law is catching up to public opinion: ninety-percent of Americans already believe that LGBT employees should be valued for how well they do their jobs—not who they love or who they are. Now, through this case and others, that principle is backed up by the courts.”

The U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal employment civil rights law, determined in its 2015 decision in the case of Baldwin v. Foxx that discrimination against workers for being gay, lesbian or bisexual violates Title VII.

Chad Feldblum, a lesbian and commissioner of the EEOC, said in reaction to the Hively ruling she hopes the decision will serve as model for outside the 7th Circuit in sexual-orientation discrimination cases.

“I am gratified to see that the Seventh Circuit has adopted the simple logic that sexual orientation discrimination is a form of sex discrimination and I hope its reasoning can serve as a model for other courts,” Feldblum said.

The 7th Circuit is composed of Wisconsin, Illinois and Indiana. Wisconsin and Illinois already had state laws against sexual-orientation discrimination in employment, but the ruling assures for the first-time gay, lesbian and bisexual workers have recourse if they face discrimination in Indiana.

Shannon Minter, legal director for the National Center for Lesbian Rights, said the decision “opens the door to a new era for LGBTQ plaintiffs under federal sex discrimination law.”

“With this historic decision, the 7th Circuit is the first federal appellate court to acknowledge that discrimination because a person is gay, lesbian or bisexual can only reasonably be understood as discrimination based on sex,” Minter said. “The court deserves credit for rejecting the tortured rationales of older decisions and undertaking a principled analysis, based on the Supreme Court’s affirmation in Price Waterhouse and other cases, that Title VII of the Civil Rights Act of 1964 must be broadly construed to prohibit the full range of sex-based discrimination.”

Although Ivy Tech Community College could file a petition for certiorari to urge the U.S. Supreme Court to reverse the 7th Circuit decision, the school has indicated it won’t pursue that route.

“Ivy Tech Community College rejects discrimination of all types, sexual-orientation discrimination is specifically barred by our policies,” said Jeff Fanter, an Ivy Tech spokesperson. “Ivy Tech respects and appreciates the opinions rendered by the judges of the Seventh Circuit Court of Appeals and does not intend to seek Supreme Court review. The college denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court.”

With the 7th Circuit decision, workplace protections for gay, lesbian and bisexual people are catching up to those of transgender people. For years, federal appeals courts have determined discrimination against workers for being transgender amounts to sex discrimination under Title VII, but haven’t done so for sexual orientation discrimination. In 2012, the U.S. EEOC affirmed anti-trans discrimination is unlawful under Title VII in the case of Macy v. Holder.

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Congress

Takano: Asian Development Bank LGBTQ, intersex safeguards are an ‘opportunity’

‘It’s not a radical thing’

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U.S. Rep. Mark Takano (D-Calif.) (Washington Blade photo by Michael Key)

California Congressman Mark Takano on Dec. 2 told the Washington Blade he is hopeful the Asian Development Bank will add sexual orientation and gender identity to the institution’s safeguards.

“I am optimistic that something like this can be done,” said Takano during a Zoom interview. “It’s not a radical thing. It’s very modest.”

The ADB, which is based in the Philippines, seeks to promote economic and social development through the Asia-Pacific Region.

Ambassador Chantale Wong, who is the ADB’s U.S. director, is the first openly lesbian American ambassador. Takano, a Democrat who will represent California’s 39th Congressional District in the next Congress, is openly gay.

The Treasury Department has endorsed the safeguard that Takano said he expects “to come to a head” in the spring of 2023. Takano and other members of the Congressional Asian Pacific American Caucus and the Congressional LGBT+ Equality Caucus — U.S. Reps. Judy Chu (D-Calif.), Ro Khanna (D-Calif.), Raja Krishnamoorthi (D-Ill.), Grace Meng (D-N.Y.), Pramila Jayapal (D-Wash.), Andy Kim (D-N.J.) and Ted Liu (D-Calif.) — in an Oct. 14 letter to ADB President Masatsugu Asakawa expressed their “strong support for the creation of a standalone gender and sexual orientation, gender identity and expression and sex characteristics (SOGIESC) safeguard in the Asian Development Bank (ADB)’s updated Safeguard Policy Statement.”

“The inclusion of such a safeguard presents an opportunity for the ADB to lead by example among multilateral development banks (MDBs) in a region of the world where civil society has been at the fore of pushing positive change for sexual minorities,” reads the letter.

“The explicit inclusion and protections for sexual and gender minorities in this proposed safeguard are not only beneficial for the economic and social development of the region, but would also open further opportunities for investment,” it adds.  

Takano noted the ADB would be the first multilateral development bank to add sexual orientation and gender identity to its safeguards.

“This is an opportunity for the ADB to be a leader among MDBs globally,” reads the letter. “As Asian Americans and advocates for the LGBTQI+ population here in the United States, we are eager to see the ADB spearhead the establishment of necessary protections for the international LGBTQI+ community that will allow them to participate in civic life more fully.”

President Joe Biden in 2021 issued a memo that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of his administration’s overall foreign policy.

Wong and Takano were both at the American Chamber of Commerce in Singapore on Aug. 1 when U.S. House Speaker Nancy Pelosi (D-Calif.) spoke in support of LGBTQ and intersex rights.

The speech coincided with a Congressional delegation to Singapore, Malaysia, Taiwan, South Korea and Japan that Pelosi led. Singapore Prime Minister Lee Hsien Loong on Aug. 21 announced his country will decriminalize consensual same-sex sexual relations. Lawmakers in the Southeast Asian city-state late last month repealed the colonial-era sodomy law, and approved a constitutional amendment that defines marriage as between a man and a woman. 

Same-sex couples have been able to legally marry in Taiwan since 2019. Lawmakers in Indonesia on Tuesday approved a new Criminal Code that would, among other things, criminalize sex outside of marriage.

Qatar, which is hosting the 2022 World Cup, is among the countries in which consensual same-sex sexual relations remain punishable by death. 

Takano over the Thanksgiving holiday led a Congressional delegation to Jordan, Kuwait, Iraq and Lebanon. The Council for Global Equality notes homosexuality is still criminalized in Kuwait and Lebanon. Discrimination and persecution based on sexual orientation and gender identity remains commonplace in all four of the Middle Eastern countries that Takano visited.    

“Different parts of Asia are showing signs of huge progress in terms of governance and recognizing LGBTQIA+ minorities and recognizing their humanity,” Takano told the Blade, while noting 60 percent of the world’s population lives in Asia. “Being able to embed safeguards into Asian Development Bank standards and how they approve projects and implement projects could be a huge leap forward in terms of achieving new standards in all these countries with regards to LGBTQ people in Asian nations.”

“This is very exciting,” he added.

Takano also specifically praised the Biden administration, American diplomats and Wong herself for their efforts to advance LGBTQ and intersex rights

“(U.S. foreign missions) find ways to create safe spaces for LGBTQ people in those countries to be able to come together, to talk,” said Takano. “To have someone like Ambassador Wong lead that is very important and that the administration supports the efforts of Ambassador Wong is not surprising.”

“What a difference it makes to have President Biden and Vice President Harris, but not only have they with their words said they support our community, they’ve also appointed people like Amb. Wong, who is actually taking actions,” he added. “She’s using the levers and dials of her office to take a step forward.”

GOP support for Respect for Marriage Act ‘an unexpected turn’

Takano spoke with the Blade two days after the Respect for Marriage Act passed in the U.S. Senate by a 61-36 vote margin, with 12 Republicans supporting it.

More than 40 Republicans in the U.S. House of Representatives voted for the Respect for Marriage Act in July. A final vote could take place in the chamber as early as Thursday.

“We were reeling from that Supreme Court decision on Roe and the comments in Justice Thomas’ concurring opinion,” said Takano. “Boy oh boy did we in Congress say that we need to protect what we can. The Respect for Marriage Act is making sure we protect same-sex marriages, but also protect interracial marriages.”

Takano conceded Republican support for the bill “is kind of an unexpected turn in this Congress,” even though a majority of GOP lawmakers opposed it. Takano also acknowledged public opinion has shifted significantly in support of marriage equality over the last decade.

“This court has shown it’s pretty radical,” he said. “I’m happy that we have a way to make sure that existing marriages are protected.”

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Florida

Author of Fla. ‘Don’t Say Gay’ law indicted for wire fraud

Joseph Harding allegedly obtained pandemic loans fraudulently

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(Screenshot from Harding YouTube campaign video)

A federal grand jury has returned a 6-count indictment against Florida state Rep. Joseph Harding (R-Williston).

The indictment was announced by Jason R. Coody, the U.S. Attorney for the Northern District of Florida.

Harding, 35, represents Florida’s House District 24. He wrote the state’s infamous “Don’t Say Gay” law, titled the “Parental Rights in Education,” passed in March of this year by the Republican-controlled Legislature and signed into law by Gov. Ron DeSantis.

The U.S. Attorney’s Office for the Northern District of Florida stated:

The indictment alleges that between Dec. 1, 2020, and March 1, 2021, Harding committed two acts of wire fraud by participating in a scheme to defraud the Small Business Administration (SBA) and for obtaining coronavirus-related small business loans by means of materially false and fraudulent pretenses, representations, and promises, and for the purpose of executing such scheme, caused wire communications to be transmitted in interstate commerce.

The indictment alleges that Harding made and caused to be made false and fraudulent SBA Economic Injury Disaster Loan (EIDL) applications, and made false representations in supporting loan documentation, in the names of dormant business entities, submitted to the SBA. 

The indictment further alleges that Harding obtained fraudulently created bank statements for one of the dormant business entities which were used as supporting documentation for one of his fraudulent EIDL loan applications. By this conduct, the indictment alleges that Harding fraudulently obtained and attempted to obtain more than $150,000 in funds from the SBA to which he was not entitled. 

Harding is also charged with two counts of engaging in monetary transactions with funds derived from unlawful activity related to his transfer of the fraudulently obtained EIDL proceeds into two bank accounts, and two counts of making false statements to the SBA.

The investigation was jointly conducted by the Federal Bureau of Investigation, the Internal Revenue Service-Criminal Investigation, the Federal Deposit Insurance Corporation (FDIC) Office of Inspector General and the SBA’s Office of Inspector General. 

Harding’s trial is scheduled for Jan. 11 at 8:30 a.m., at the U.S. Courthouse in Gainesville before U.S. District Judge Allen Winsor.

The maximum terms of imprisonment for the offenses are as follows:

  • 20 years: Wire Fraud
  • 10 years: Money Laundering
  • 5 years: Making False Statements

Florida Politics reported that according to Politico’s Gary Fineout, Harding has already been released on bond, and the government did not look to detain Harding.

Harding has already lost his committee assignments for the upcoming legislative term.

“After consultation with Representative Harding regarding his indictment, I am temporarily removing him from his committee assignments to allow him time to focus on this matter,” House Speaker Paul Renner said Wednesday in a written statement.

“In America we adhere to the rule of law, and as such, Representative Harding is presumed innocent and will have the opportunity to plead his case before a court. Since the indictment does not relate to any aspect of his legislative duties, any further questions should be directed to his legal counsel.”

The governor cannot remove a lawmaker from office, even if arrested. The Florida Constitution states that “each house shall be the sole judge of the qualifications” of members. To expel a lawmaker, each chamber needs a two-thirds majority vote.

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Congress

Raphael Warnock wins Ga. runoff

Democrats now control U.S. Senate by 51-49 margin

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(Public domain photo)

U.S. Sen. Rev. Raphael Warnock (D-Ga.) defeated Republican challenger Herschel Walker Tuesday night in a run-off election.

In last month’s election, Warnock led Walker by 37,000 votes out of almost 4 million cast, but fell short of the 50 percent threshold needed to avoid the runoff.

Warnock’s victory means Democrats gain the outright majority in the Senate, with 51 seats to the Republicans’ 49, freeing them from a power-sharing agreement for committee assignments and diminishing the power of moderate Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.

Political commentator and journalist Jacob Rubashkin, reflecting on Warnock’s victory noted on Twitter; “In 1934, no Democratic senators lost re-election. But since 1934, every president, Democrat and Republican, has seen at least one senator from their party lose re-election in every single midterm cycle. Biden becomes the first president since FDR not to lose a single senator.”

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