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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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Biden names civil rights veteran to U.S. Education Dept.

Catherine Lhamon’s portfolio will include LGBTQ rights, sexual misconduct, racial discrimination

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Nominee for Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education Catherine Lhamon. (Photo public domain))

The White House announced Thursday that President Joe Biden has nominated Catherine Lhamon to serve as the Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education.

Lhamon currently serves as a Deputy Assistant to the President and Deputy Director of the Domestic Policy Council for Racial Justice and Equity at the White House, where she manages the President’s equity policy portfolio. She is a former attorney for the American Civil Liberties Union, (ACLU) and served as chair of the U.S. Commission on Civil Rights from 2017 to 2021.

She has also served as Legal Affairs Secretary to California Governor Gavin Newsom.

Her portfolio at Education, where she previously served in the same position under former President Barack Obama, will include LGBTQ rights, sexual misconduct and racial discrimination in the nation’s K-12 schools, universities and colleges. Lhamon was Assistant Secretary for Civil Rights at the Department of Education, to which President Obama nominated her and the Senate confirmed her in 2013.

“I am thrilled that President Biden is nominating Catherine Lhamon to serve as Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education. Catherine has devoted her career to ensuring equity is at the core of all her work,” U.S. Secretary of Education Miguel Cardona said in a statement released by his office Thursday.

“She has a strong record of fighting for communities of color and underserved communities, whether as the current Deputy Director of the Domestic Policy Council, the former chair of the U.S. Commission on Civil Rights, or as a civil rights educator at Georgetown University. We are thrilled to have Catherine serving as Assistant Secretary for Civil Rights and know she will continue to fight for fairness, equity, and justice for all of America’s students.”

Lhamon has also litigated civil rights cases at National Center for Youth Law, Public Counsel Law Center, and the ACLU Foundation of Southern California.  Lhamon taught federal civil rights appeals at Georgetown University Law Center in the Appellate Litigation Program and clerked for the Honorable William A. Norris on the United States Court of Appeals for the Ninth Circuit.

“Catherine Lhamon is the right choice to lead the Department of Education’s civil rights division at such a critical time for the country and the agency. There is much work to do in order to roll back the harmful policies and legacies of Betsy DeVos, from her attacks on transgender students to her unconscionable revocation of discriminatory discipline guidance and rewrite of Title IX rules,” Adele Kimmel, Director of the Students’ Civil Rights Project at Public Justice told the Blade in an email.

“During her previous tenure in the same job, Catherine embraced equality, enforced Title IX and ensured students had an ally inside the federal government. She will do so again, and the Senate should move to quickly confirm her so she can begin the work of restoring the Department’s commitment to protecting the civil rights and dignity of students and implementing the Biden Administration’s pledge to undo the damage that DeVos has done,” Kimmel added.

Born in Virginia and raised in California, Lhamon graduated from Amherst College and Yale Law School. Lhamon and her husband and two daughters are transitioning between California and Maryland.

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Family of transgender woman who died in ICE custody sues federal government

Roxsana Hernández passed away in N.M. in 2018

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A picture of Roxsana Hernández, a transgender Honduran woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018, hangs on a wall inside the offices of Colectivo Unidad Color Rosa, an LGBTQ advocacy group in San Pedro Sula, Honduras. (Washington Blade photo by Michael K. Lavers)

 

The family of a transgender woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018 has sued the federal government.

The Transgender Law Center and two immigration lawyers — Daniel Yohalem and R. Andrew Free — in 2020 filed a lawsuit in U.S. District for the District of New Mexico against five private companies who were responsible for Roxsana Hernández’s care.

The lawsuit named Management and Training Corporation, LaSalle Corrections, Global Precision Systems, TransCor America and CoreCivic as defendants. The Transgender Law Center, Yohalem and Grant and Eisenhofer Law on Wednesday petitioned the court to add the federal government to the lawsuit.

“This amended complaint adds the United States, including U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and the United States Department of Homeland Security (DHS) to the list of entities who had a direct role in Roxsana’s death,” said the Transgender Law Center in a press release.

Hernández, who was from Honduras, entered CBP custody on May 9, 2018, when she asked for asylum at the San Ysidro Port of Entry in San Diego. She arrived at the Cibola County Correctional Center, a facility in Milan N.M., that CoreCivic operates, a week later.

Hernández was admitted to Cibola General Hospital in Grants, N.M., shortly after she arrived at the privately-run detention center. Hernández died at Lovelace Medical Center in Albuquerque, N.M., on May 25, 2018.

The lawsuit, among other things, alleges Management and Training Corporation personnel “denied Roxsana and her fellow detainees food, water and restroom access throughout their transfer” from California to a facility in San Luis, Ariz., that LaSalle Corporations operates. The lawsuit also states Hernández did not receive necessary medical care from LaSalle Corporations, Global Precision Systems and TransCor personnel as they transported her to the Cibola County Correctional Center.

CoreCivic officers, according to the lawsuit, delayed Hernández’s medical care once she was hospitalized.

An autopsy the New Mexico Office of the Medical Investigator performed concluded Hernández died from Castleman disease associated with AIDS.

A second autopsy that former Georgia Chief Medical Examiner Kris Sperry performed at the Transgender Law Center’s request concluded the cause of death was “most probably severe complications of dehydration superimposed upon HIV infection, with the probable presence of one or more opportunistic infections.” The second autopsy also found “evidence of physical abuse” that included bruising on Hernández’s rib cage and contusions on her body.

“Defendants’ discriminatory, negligent, and reckless acts and omissions: (a) caused Roxsana to suffer severe emotional and physical distress; (b) created an unreasonable risk that Roxsana’s condition would deteriorate, especially in light of her known HIV-positive status; (c) caused Roxsana’s condition to deteriorate; (d) diminished the opportunity for Roxsana’s condition to improve; (e) caused her to lose her chance to survive and participate in the federal immigration process; and (f) ultimately, caused her death,” reads the motion the Transgender Law Center filed on Wednesday.

“My sister came to the U.S. in search of safety and protection from the horrific violence she experienced as a trans woman in Honduras, and what she found instead was abuse, discrimination and neglect,” said Hernández’s sister, Jenny Hernández Rodríquez, in the Transgender Law Center press release. “The tragic fact that she is no longer with us is a direct result of that discrimination and neglect.”

A spokesperson for the Department of Homeland Security — which oversees ICE and CBP — with whom the Washington Blade spoke on Thursday declined to comment.

The Cibola County Correctional Center in Milan, N.M. (Photo courtesy of U.S. Immigration and Customs Enforcement)

Hernández’s death sparked widespread outrage among immigration advocates. Her case also intensified calls for ICE to release all trans women in their custody.

The Transgender Law Center, the Rapid Defense Network and the Ballard Spahr law firm in April 2020 filed a class action lawsuit that demanded the release of all trans people in ICE custody.

More than 40 Democratic members of the U.S. House of Representatives in January 2020 called for ICE to release all trans people in their custody. Illinois Congressman Mike Quigley on Thursday during a House Appropriations Committee hearing asked Acting ICE Director Tae Johnson about the treatment of trans people in his agency’s custody.

“We have made some efforts on sort of improving our training and identifying specific facilities which would focus on housing these individuals in a less restrictive environment but there’s always more work we can do,” said Johnson. “We’re looking at all aspects of our vulnerable population to include transgender, and this is going to continue to be a priority for us as we move forward in assessing our detention framework.”

A unit for trans women in ICE custody opened at the Cibola County Correctional Center in 2017. It closed in 2020.

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Biden administration to ban discrimination against LGBTQ patients

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The Biden administration announced on Monday it would enforce civil rights protections under Obamacare to prohibit discrimination in health care against patients for being LGBTQ, reversing policy during the Trump years excluding transgender status as a protected characteristic under the law.

The Department of Health & Human Services declared it would enforce Section 1557 of the Affordable Care Act, which prohibits discrimination in health care on the basis of sex, and begin to take up cases of discrimination based on sexual orientation and gender identity.

HHS Secretary Xavier Becerra said in a statement the Supreme Court has “made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation.”

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said. “It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”

The move is consistent with the executive order President Biden signed on his first day in office directing federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the furthest extent possible. Federal agencies were directed to comply within 100 days of the executive order, which is about now and a short time after Biden’s first 100 days in office.

The announcement with respect to Section 1557 comes on the same day as the hearing took place this morning in Bagly v. HHS, a case before a federal court in Massachusetts challenging Trump’s undoing of transgender protections under the law. An attorney with the U.S. Justice Department announced a new notice of proposed rule-making is coming with respect to Section 1557.

Sharita Gruberg, vice president for the LGBTQ Research and Communications Project at the Center for American Progress, said in a statement the change “assures LGBTQ people that their rights will be upheld at the doctor’s office, vaccine sites, and everywhere else they seek health care and coverage.”

“The administration’s announcement that it will enforce these protections are a critical step toward addressing vaccine hesitancy among LGBTQ people, a population that has been disproportionately impacted by the pandemic and seriously harmed by the previous administration’s attempts to permit discrimination against LGBTQ patients, Gruberg added.

The past three administrations have instituted policy on LGBTQ protections based on their interpretation of Section 1557. Each move had varying implications and directions for LGBTQ patients.

The Obama administration issued a rule in 2016 interpreting Section 1557 to apply to cases of anti-transgender discrimination and discrimination against women who have had abortions, which was consistent with court rulings at the time. However, that move was enjoined by a nationwide court order in Texas as a result of litigation filed by Texas Attorney General Ken Paxton.

The Trump administration, shortly after the Supreme Court’s ruling in Bostock, made final a regulation proposed last year rescinding the Obama administration’s transgender protections under Section 1557. Faced with criticism, the Trump administration defended itself by saying its move was consistent with the court order in Texas, although it seemed to ignore the decision from the higher court.

The new rule from HHS goes above and the beyond the Obama administration by instituting protections based on both sexual orientation and gender identity. It wasn’t immediately clear whether the proposed rule would be a new regulation entirely, or seek to modify the changes that were made in the two previous administrations. The Blade has placed a request seeking comment with HHS.

Susan Bailey, president of the American Medical Association, said in a statement the new HHS rule is a welcome change after the Trump administration rescinded protections for transgender patients.

“It’s unfortunate that such an obvious step had to be taken; the AMA welcomes this common-sense understanding of the law,” Bailey said. “This move is a victory for health equity and ends a dismal chapter in which a federal agency sought to remove civil rights protections.”

Discrimination in health care is an experience transgender people commonly report. The U.S. Transgender Survey in 2015 found one-third of responders said they had at least one negative experience in health care related to being transgender. Further, 23 percent of responders said they didn’t seek health care because they feared being mistreated and one-third said they didn’t go to a provider because they couldn’t afford it.

A Center for American Progress survey from 2018 had similar findings with respect to transgender people and patients with being gay, lesbian and bisexual or queer. Eight percent of responders said a doctor refused to see them because of their perceived or actual sexual orientation, while 28 percent of providers said a doctor refused to see them because of their actual or perceived sexual orientation.

Hospitals, especially religiously affiliated providers, refusing to provide transition-related care, including gender assignment surgery, is another frequently reported incident for transgender patients. The American Civil Liberties Union, for example, has filed litigation against hospitals under Section 1557 for refusing to perform the procedure.

Rachel Levine, assistant secretary of health and the first openly transgender presidential appointee to obtain Senate confirmation, hailed the HHS rule change in a statement.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Levine said. “No one should be discriminated against when seeking medical services because of who they are.”

Although the Biden administration’s announcement is a welcome move for LGBTQ advocacy groups, the change is not without critics.

John Banzhaf, a law professor at George Washington University who declares himself a supporter of transgender rights, said the policy could have unintended consequences, which he said has become evident in the British health system.

“[Transgender] individuals with a penis but no vagina are being asked to have medical tests on their non-existent cervices, while [transgender] persons with a vagina and cervix will not be asked, under new guidelines which appear to place lives at risk and encourage a physically impossible medical exam on organs which simply do not exist,” Banzhaf said. “And, carrying this absurdity to its totally illogical conclusion, a patient with a penis and a full beard was offered a cervical test because, despite his clearly masculine appearance and style of dress, he registered himself as being gender neutral.”

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