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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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2 Comments

2 Comments

  1. Sage

    April 4, 2017 at 8:07 pm

    When we stand together, we the people can do anything, because we are we the people.

  2. lnm3921

    April 4, 2017 at 11:01 pm

    Well, this likely will reach the SCOTUS at some point just like the question of whether religious liberty can “trump” anti-discrimination laws. The battle is unfortunately far from over. But this is a good start.

    Again, the courts have been our best hope for equality. The GOP controlled Congress and the Trump Administration cannot be relied upon. In particular in employment matters, I doubt that Trump would side with employees!

    Trump is an opportunist wanting more a win at any costs to point to than supporting what is right. Look how he’s working with the devil of the So-called Freedom Caucus to deny people healthcare that includes pre-existing conditions, emergency room access or covered check ups! It’s Wrong and obnoxious and what you can expect from Conservatives! Callous and selfish as always!

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National

Alarming numbers of Texas Trans kids in crisis over litany of anti-Trans bills

“Under the guise of protecting children- Texas legislators are directly harming thousands of transgender & nonbinary youth”

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LGBTQ youth protest anti-Trans bills at the Texas Capitol building (Photo Credit: Equality Texas)

NEW YORK – The Trevor Project received nearly 4,000 crisis contacts from transgender and nonbinary youth in Texas in 2021, with many directly stating that they are feeling stressed and considering suicide due to anti-trans laws being debated in their state.

This new data comes during a year when Texas lawmakers have proposed nearly 70 anti-LGBTQ bills, including more than 40 bills that specifically target transgender and nonbinary youth — far more than any other state.

The Texas State Senate passed its anti-trans sports ban SB3 this week, and the companion bill HB10 is now moving forward in the Texas House. 

Republican Texas Governor Abbott has prioritized SB 3 and called for a third consecutive special session of the legislature to consider this bill, which would ban transgender student-athletes from playing on sports teams consistent with their gender identity.

“The Trevor Project’s crisis counselors have been hearing from transgender and nonbinary youth in Texas who are scared and worried about anti-trans laws being debated in their state — and some have even expressed suicidal thoughts. This is a crisis. We urge Texas lawmakers to consider the weight of their words and actions — and to reject HB10/SB3,” said Amit Paley, CEO and Executive Director of The Trevor Project.

  • Between January 1 and August 30, 2021, The Trevor Project received more than 10,800 crisis contacts (calls, texts, and chats) from LGBTQ young people in Texas looking for support. More than 3,900 of those crisis contacts (36%) came from transgender or nonbinary youth.
  • Crisis contacts from LGBTQ young people in Texas seeking support have grown over 150% when compared to the same time period in 2020.
  • While this volume of crisis contacts can not be attributed to any one factor (or bill), a qualitative analysis of the crisis contacts found that:
  • Transgender and nonbinary youth in Texas have directly stated that they are feeling stressed, using self-harm, and considering suicide due to anti-LGBTQ laws being debated in their state.
  • Some transgender and nonbinary youth have expressed fear over losing access to sports that provide important acceptance in their lives.

“As a transgender young person in Texas, this new data from the Trevor Project is not surprising, but it’s nonetheless harrowing and alarming to see this representation of the detrimental impact Texas Lege is having on our community — especially our kids. Lawmakers and proponents of bills like SB3 and HB10 should be alarmed by these statistics, too,” Landon Richie a Trans youth activist and GenderCool Youth Leader from Houston told the Los Angeles Blade.

“Under the guise of protecting children and promoting fairness, Texas legislators are directly harming thousands of transgender and nonbinary youth, denying them the dignity, respect, and childhoods that they deserve. It’s never an exaggeration to say that the passage — and merely debate — of these bills will cost lives,”  Richie added.

National mental health organizations like The Trevor Project and state LGBTQ equality groups including Equality Texas and Transgender Education Network of Texas (TENT) are raising concerns about the impact of such legislation on the mental health and wellbeing of transgender and nonbinary youth.

The Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health found that more than half (52%) of transgender and nonbinary youth seriously considered suicide in the past year and 1 in 5 attempted suicide. Further, Trevor released a new research brief earlier this month on LGBTQ youth participation in sports, which found that a majority of LGBTQ young people (nearly 66%) do not actively participate in sports — with many citing fear of bullying and discrimination as a key factor for not participating.

If you or someone you know needs help or support, The Trevor Project’s trained crisis counselors are available 24/7 at 1-866-488-7386, via chat at TheTrevorProject.org/Help, or by texting START to 678678. 

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2nd largest school district in Utah bans Pride & BLM flags as ‘too political’

“We have to have a politically neutral classroom, and we’re going to educate the students in the best possible way that we can”

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Davis School District Offices in Farmington Utah (Photo Credit: Davis School District)

FARMINGTON, Ut. – Administrators this week in the Davis School District, which is Utah’s 2nd largest school district with 72,987 students, banned LGBTQ Pride and Black Lives Matter flags, saying they are ‘politically charged.’

According to the Salt Lake City Tribune, Davis Schools spokesperson Chris Williams told the paper; “No flags fly in our schools except for the flag of the United States of America.” Williams later walked that statement back adding a clarification that some of the Districts schools have flags from sports team or international countries which are considered “unrelated to politics.”

“What we’re doing is we’re following state law,” said Williams. “State law says that we have to have a classroom that’s politically neutral.”

Amanda Darrow, Director of Youth, Family, and Education at the Utah Pride Center in Salt Lake City, told multiple media outlets the school district is “politicizing the rainbow flag” which doesn’t belong on a political list.

“That flag for us is so much more,” said Darrow. “It is just telling us we’re included in the schools, we are being seen in the schools, and we belong in these schools.”

KUTV CBS2 News in Salt Lake City checked with the Utah State Board of Education. In an email, spokesman Mark Peterson said, “There is nothing in code that specifically defines a rainbow flag as a political statement so it would be up to district or charter school policies to make that determination.”

The local Utah chapter of the American Civil Liberties Union also weighed in saying in a statement;

Whether or not a school district has the legal ability to ban inclusive and supportive symbols from classrooms, it is bad policy for them to do so,” the advocacy organization said in a statement. “Utah schools have an obligation to ensure that all students, regardless of their sexual orientation or gender identify, feel welcome inside a classroom. We urge school administrators and teachers to adopt policies that make all students feel safe and included.”

Williams insisted the policy is not meant to exclude anyone and that all students are loved and welcomed – they just want to keep politics out of school he told the Tribune and KUTV.

“We have to have a politically neutral classroom, and we’re going to educate the students in the best possible way that we can,” said Williams.

A Utah based veteran freelance journalist, writer, editor, and food photographer weighed in on Twitter highlighting the negative impact of the Davis Schools decision on its LGBTQ youth.

Davis County School District bans LGTBQ and BLM flags as ‘too political’

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Non-binary person reports assault by Proud Boys near Portland

‘They nearly killed me’

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Juniper Simonis (Photo by Mariah Harris)

It was a typical day for Juniper Simonis. The freelance ecologist decided to break from work for lunch at about 3 p.m. to take their service dog, Wallace, to the local dog park and grab a bite to eat.  

But a planned peaceful afternoon quickly turned ugly. Simonis says they survived a gang assault of about 30 perpetrators in Gresham, Ore., a suburb outside of Portland. The Oregon resident encountered the group for only minutes but suffered a concussion, sprained jaw, extensive car damage and verbal assaults, they said. 

“They nearly killed me,” they said.

Simonis said they turned into a parking lot to pick up lunch in Gresham, Ore., and stumbled upon a rally that included several members of the Proud Boys — a far-right, ultra-nationalist organization known for its anti-LGBTQ, anti-feminism and neo-fascist ideologies. 

There was a “Flag Ride” right-wing rally in a parking lot earlier that day. Simonis was under the impression the event had ended after checking reports on Twitter. After pulling into the lot, originally to look for lunch options, Simonis saw a large gathering still in the lot. 

Simonis decided to take pictures of what was happening to post online to warn others and was intentional in keeping their distance, they said. As Simonis was preparing to leave the area, they yelled from inside the car, “Fuck you, fascists, go home.” 

“I did not expect this to escalate into violence,” they said. 

The attack itself only lasted about three minutes, Simonis said. Simonis was quickly surrounded by several people and physically blocked from leaving the lot. People stepped in front of the parking lot exit, then a car was moved to barricade Simonis. People began to shout homophobic slurs at Simonis, they said. 

“I’m in serious trouble now and I know it,” they said. 

Simonis was then punched while inside their vehicle and was briefly knocked out. They regained consciousness a few seconds later, and a cinder block was thrown at the car and shattered the back window of their car inches away from their service dog, Wallace. 

Simonis got out of the car to assess the damage and make sure their service dog was safe. They quickly got back in their car and was able to leave the lot by maneuvering around the blocked exit, Simonis said. 

Wallace, Juniper Simonis’ service dog. (Photo by Mariah Harris)

Looking back at the photos and videos Simonis took before the assault, Simonis said they saw people looking into the camera and acknowledging them taking photos. 

“I honestly don’t know if I hadn’t said anything, that … things would have gone any different,” they said. 

Last year, Simonis was targeted and arrested by federal police in Portland during the tumultuous Black Lives Matter protests in the city. They were denied medical attention, misgendered, jumped and aggressively handcuffed while taken into custody. 

Simonis is still working through legal proceedings in a multi-plaintiff lawsuit. 

A witness to the event called the Gresham Police Department, which was only a few blocks away from the incident. But the call went to voicemail and the witness did not leave a message, Simonis said. 

Another witness called 911, Simonis said, which led to an officer calling Simonis about 45 minutes after the accident to take a report.   

In the police report obtained by the Blade, Simonis is consistently misgendered. Simonis’ sex is also listed as “unknown” in the report. The incident was labeled as vehicle vandalism. 

Simonis said the conversation with the officer was filled with victim-blaming and the officer wrote in the report that Simonis should avoid “approaching groups of this nature.”  

“At no point in this conversation does he treat me as an actual victim of a crime,” Simonis said.

The Gresham Police Department did not respond to a request for comment. 

Weeks after the assault, Simonis is struggling mentally and physically, they said. 

The concussion makes working on a computer virtually impossible because of light sensitivity and trouble focusing, Simonis said. The pain caused by the sprained jaw makes it difficult to focus, as well. 

Simonis is not able to begin physical therapy for their jaw until November because of long medical wait times, they said. The cost to repair the car damages will be about $8,000, as well, they said.  

The times where Simonis is able to focus are usually taken up by piecing together what happened that day, they said. 

“The part of my brain that I use for work has been hijacked functionally by the part of the brain that needed to know what happened to me,” they said. “There is such a painful need to understand what happened to me.”

Because of past traumatic events, like the experience of being in federal custody last year, Simonis said processing and living with the trauma is a bit easier to handle. But their ability to work will be forever changed yet again, they said. 

“I’m not able to work at the pace that I used to work at before I was assaulted by DHS. I’ll never be,” they said. “And this is just a further knockdown.” 

The trauma of the event has increased Simonis’ hyper-vigilance, as well. 

“Every time I hear a car go by, I’m double-checking,” they said. 

Even though Simonis has the tools to process and live with the immense trauma, they will never be the same person, they said. 

“They fucking changed my life forever. Point blank,” they said. “Not just mentally, but physically and physiologically. I can’t go back to where I was before. I’m lucky that I survived.”

Simonis has reported the attack to the FBI and is pursuing legal action with two specific goals in mind: to heal and to prevent similar crimes from happening.

“I am somebody who believes in abolishing the carceral system and the justice system as it exists and policing,” Simonis said. “But also a 37-year-old trans and disabled person who somehow managed to survive this long. And so naturally has become pragmatic about the world.”

Because of the reaction of the Gresham Police Department, Simonis did not want to work with local officers and instead went to the federal level. But because of the alleged assault by agents in Portland last year, this decision wasn’t easy for them.

Perpetrators in the assault threatened to call the police on Simonis,  even though Simonis did not commit a crime. Reporting the crime to the federal level is also a layer of protection, they said. 

“All of this is forcing my hand,” they said. There is no easy decision in the situation, they added. 

“We all know that crimes are underreported. We hear about it all the time,” they said. And there are reasons why people don’t report crimes and they’re totally understandable. A lot of victims are very concerned about what will happen if they break anonymity. In my situation, I’ve already broken anonymity.”

With recent arrests and crackdowns on the Proud Boys and other hate groups in the United States, Simonis is bracing for a long process. 

“This isn’t just going to go on a shelf,” they said. 

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