Connect with us

homepage news

2nd Circuit (again) finds anti-gay discrimination legal under Title VII

Gay skydiver alleged sexual-orientation discrimination in the workplace

Published

on

The Second Circuit has declined to anti-gay discrimination is illegal under Title VII.

In a case filed by a now deceased gay skydiver who alleged sexual-orientation discrimination in the workforce, the U.S. Second Circuit Court of Appeals on Tuesday declined to accept the legal argument that anti-gay discrimination is prohibited under current federal civil rights law.

In a 13-page decision, the three-judge panel cites a 2000 decision in the Simonton case, a 2nd Circuit ruling that determined Title VII of the Civil Rights Act of the 1964, which bars sex discrimination in the workforce, doesn’t apply to sexual orientation. As a result of that precedent, the panel concludes Title VII cannot be applied in the pending case, named Zarda v. Altitude Express.

The unanimous ruling concludes that precedent “can only be overturned by the entire Court sitting en banc,” which would require consideration of the case by the full court as opposed to the three-judge panel.

It’s the second time within a month the 2nd Circuit has found sexual-orientation discrimination is permitted under federal civil rights law. Last month in the case Christiansen v. Omnicom Group, a different three-judge panel found that precedent precluded the court from determining that anti-gay bias is illegal, although the judges still ruled in favor of the plaintiff on the basis that the nature of the discrimination he faced was sex stereotyping.

The decision stands in contrast to the recent groundbreaking “en banc” decision by the U.S. Seventh Circuit Court of Appeals that determined anti-gay discrimination in the workforce amounts to sex discrimination under current law. A growing number of trial courts and the U.S. Equal Employment Opportunity Commission have also reached that conclusion.

The 2nd Circuit case was filed by Donald Zarda, a gay skydiver who alleged he was terminated from his position at Altitude Express for disclosing his sexual orientation to his client. In response, the company maintained the client “had various complaints about Zarda’s behavior” other than disclosure of his sexual orientation and he was fired because “he failed to provide an enjoyable experience for a customer.” According to media reports, the client accused him of fondling her in mid-air.

According to the ruling, Zarda died in a skydiving accident before the case went to trial, and two executors of his estate have replaced him as plaintiff. Zarda’s obituary states he died in Switzerland in 2014 as he was pursuing European Union citizenship.

At trial court, Zarda contended his firing was illegal both under Title VII and New York state law, which explicitly bars discrimination on the basis of sexual orientation. The trial court rejected his Title VII claim and also ruled in favor of Altitude Express under state law, saying Zarda didn’t meet the burden of proof he could keep his job if only he wasn’t gay.

The Second Circuit determines Zarda may be qualified for relief under Title VII because federal law has a less stringent “motivating-factor” test of causation, but nonetheless the judges say they can’t rule for him because of precedent within the circuit.

Although judges in the Christiansen case granted the plaintiff relief on the basis that he suffered discrimination on sex-stereotyping claims, the Second Circuit in the Zarda case determines it cannot reach a similar conclusion.

“That route is unavailable to Zarda, since, as explained above, the district court found that Zarda failed to establish the requisite proximity between his termination and his failure to conform to gender stereotypes, and Zarda did not challenge that determination on appeal,” the decision says. “Consequently, Zarda may receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation — a result foreclosed by Simonton.”

The three-judge panel consists of U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee; U.S. Circuit Judge Robert Sack, a Clinton appointee; and U.S. Senior Judge Gerard Lynch, an Obama appointee.

Gregory Antollino, the New York-based attorney representing the Zarda estate, told the Washington Blade his legal team intends to file for “en banc” review of the decision before the full Second Circuit.

h/t Equality Case Files

Continue Reading
Advertisement

homepage news

100th anniversary celebration of Dupont Circle fountain set for May 17

GWU student creates tribute video

Published

on

Dupont Circle Fountain, Russian news agency, gay news, Washington Blade
The iconic Dupont Circle fountain turns 100 this month. (Washington Blade file photo by Michael Key)

LGBTQ residents and longtime visitors to D.C.’s Dupont Circle neighborhood are expected to be among the participants in the 100th anniversary celebration of the installation of the Dupont Circle fountain scheduled to be held at the circle on Monday, May 17.

Aaron DeNu, president of Dupont Festival, a nonprofit arts and cultural programming group that’s organizing the celebration, says it will take place from noon to at least sunset inside Dupont Circle.

The celebration will take place one week after the May 10 release of a YouTube video, “How Dupont Circle Evolved as a Hub for LGBTQ+ Life in the District,” produced by George Washington University student Dante Schulz. Schulz is the video editor for the G.W. student newspaper The Hatchet.

Among those appearing in the documentary video are veteran LGBTQ rights activists Deacon Maccubbin and his husband Jim Bennett, who owned and operated the Dupont Circle LGBTQ bookstore Lambda Rising beginning in the 1970s, which is credited with contributing to Dupont Circle’s reputation as the epicenter of D.C.’s LGBTQ community for many years.

Also appearing in the video is longtime D.C. gay activist and Dupont Circle area resident Craig Howell, a former president of the Gay and Lesbian Activists Alliance.

“At this point in time due to COVID restrictions we’re not going to be doing any particular formal gathering of folks,” DeNu told the Washington Blade in describing the May 17 celebration. “But we’ll have a soundtrack that’s playing throughout the day from that original ceremony – the same songs they used in the original dedication a hundred years ago,” he said.

DeNu said the event will also feature “historic imagery” related to Dupont Circle and the people who have gathered there over the years.

“So, we’re really just inviting people to come and have lunch, stop by the park after work, and just stop and reflect on 100 years of Dupont Circle fountain, take a look at the imagery and see some old friends and hopefully stop by and see the Dupont businesses that are around the area,” DeNu said.

The LGBTQ video produced by Dante Schultz can be accessed here.

Continue Reading

homepage news

Trans woman sues D.C. Jail for placing her in men’s unit

Lawsuit charges city with exposing inmates to ‘risk of sexual violence’

Published

on

Sunday Hinton (Photo courtesy of the American Civil Liberties Union of D.C.)

The American Civil Liberties Union of D.C. and the D.C. Public Defender Service filed a class action lawsuit on May 11 on behalf of a transgender woman being held in the D.C. Jail on grounds that the city violated its own Human Rights Act and the woman’s constitutional rights by placing her in the men’s housing facility at the jail.

The lawsuit charges that D.C. Department of Corrections officials violated local and federal law by placing D.C. resident Sunday Hinton in the men’s unit at the D.C. Jail against her wishes without following a longstanding DOC policy of bringing the decision of where she should be placed before the DOC’s Transgender Housing Committee.

The committee, which includes members of the public, including transgender members, makes recommendations on whether a transgender inmate should be placed in either the men’s or the women’s housing unit based on their gender identity along with other considerations, including whether a trans inmate’s safety could be at risk. Under the policy, DOC officials must give strong consideration to the recommendations of the committee.

The lawsuit, which was filed in U.S. District Court for the District of Columbia, says the committee has not met or acted on any trans-related jail housing matter since January 2020.

It says Hinton was taken to the D.C. Jail on April 26 after a judge ordered her held following an arrest for an alleged unarmed burglary in which she attempted to take $20.

It notes that the Department of Corrections has a “default” policy of placing transgender inmates in either the male or female housing unit at the D.C. Jail and other city detention holding facilities based on the inmate’s “anatomy.” If a female transgender inmate is anatomically male, the inmate – barring other mitigating circumstances – is placed in the male housing facility under the default policy. Similarly, a male transgender inmate who is anatomically female is placed by default in the women’s housing unit under the DOC policy.

“DOC’s policy of focusing on anatomy rather than gender identity is both discriminatory and dangerous,” the ACLU says in a statement released on the day it filed the lawsuit on Hinton’s behalf. “It forces trans individuals, particularly trans women, to choose between a heightened risk of sexual violence and a near-certain mental health crisis,” ACLU attorney Megan Yan said in the statement.

Yan was referring to yet another DOC policy that sometimes gives a transgender inmate placed in a housing unit contrary to their gender identity the option of being placed in “protective custody,” which the lawsuit calls another name for solitary confinement. The ACLU and the Public Defender Service have said solitary confinement in prisons is known to result in serious psychological harm to inmates placed in such confinement.

“Because DOC’s unconstitutional policy exposes every transgender individual in its custody to discrimination, degradation, and risk of sexual violence, Ms. Hinton seeks, on behalf of a class of similarly situated individuals, a court order that strikes down DOC’s unlawful focus on anatomy as the touchstone for its housing decisions regarding transgender individuals,” the lawsuit states.

It further calls on the DOC to use “gender identity, not anatomy, as the default basis for housing assignments” for transgender inmates and to provide all trans individuals a prompt hearing by the DOC Transgender Housing Committee.

It calls for the DOC to be required to implement the recommendations of the Housing Committee “so that each person is housed as safely as possible and without discrimination.”

In addition to the lawsuit, Hinton’s attorneys filed an application for a temporary restraining order to immediately require the DOC to transfer Hinton to the D.C. Jail’s women’s housing facility. The attorneys also filed a motion for a preliminary injunction to stop the DOC from using a transgender person’s anatomy as the default or sole criteria in making housing assignments at the jail.

In response to a request from the Washington Blade, DOC spokesperson Dr. Keena Blackmon sent the Blade a DOC statement responding to the lawsuit.

“The Department of Corrections is dedicated to the safety and security of all residents in its care and custody,” the statement says. “DOC is committed to following its policies and procedures relating to housing transgender residents,” it says. “Ms. Hinton recently arrived in DOC custody and, per the agency’s COVID-19 protocols, was placed into single-occupancy quarantine for 14 days.”

The statement adds, “Once that quarantine ends, Ms. Hinton will go before the Transgender Housing Committee to determine her housing based on safety needs, housing availability, and gender identity. D.C. DOC is sensitive to Ms. Hinton’s concerns and will continue to ensure that its residents’ needs are met.”

DOC spokesperson Blackmon didn’t immediately respond to a follow-up question from the Blade asking why the Transgender Housing Committee has not met for over a year, which the ACLU has said resulted in all transgender female inmates being placed in the male housing facility.

Blackmon also couldn’t immediately be reached for a second follow-up question asking for DOC’s response to the lawsuit’s claim that DOC officials told Hinton’s lawyers that she was being placed in the men’s housing facility because she was anatomically male.

The lawsuit says the DOC default policy of placing Hinton in the jail’s male housing unit violates the D.C. Human Rights Act, which bans discrimination based on gender identity. The act has been interpreted to mean private businesses or the city government cannot prevent a transgender person from using facilities such as bathrooms or locker rooms that are in accordance with their gender identity.

D.C. Superior Court records show that Hinton has been arrested a total of 24 times in D.C. between 2006 and 2018. All except three of those arrests are listed as misdemeanor offenses, with just three listed as alleged felony offenses. One of the arrests is listed as a traffic offense.

In nearly all of the prior arrests, the court records identify Hinton by her birth first name, with her last name of Hinton used in all of the arrest records.

The burglary offense for which Hinton was charged on April 26 of this year and for which she is currently being held the D.C. Jail would  normally not result in a defendant being held in jail while awaiting trial. The fact that Hinton is being held rather than released pending trial suggests her prior arrest record may have prompted a judge to order her incarceration.

ACLU attorney Yan, who is among the attorneys representing Hinton in the lawsuit, said Hinton’s prior arrest record should not be a factor in the lawsuit.

“We don’t think any of the underlying things are relevant to her claim in this lawsuit, which is based on her identity and the fact that her constitutional and statutory rights to be free from discrimination are being violated,” Yan said. “At the end of the day, Sunday is a transgender woman and she’s a woman and she deserves to be held according to her gender identity as she desires.”

Continue Reading

homepage news

Gay Iranian man murdered in so-called honor killing

State Department describes Ali Fazeli Monfared’s death as ‘appalling’

Published

on

Ali Fazeli Monfared (Photo courtesy of Facebook)

Reports indicate an Iranian man’s relatives killed him after they discovered he was gay.

The Iranian Lesbian and Transgender Network wrote on its website that Ali Fazeli Monfared, 20, was kidnapped in Ahvaz, a city in Iran’s Khuzestan’s province on May 4.

The advocacy group said Monfared, who was known as Alireza, was beheaded. His body was reportedly found on May 5, the day after he was kidnapped.

The Iranian Revolutionary Guard Corps had exempted Monfared from military service because he is gay, even though consensual same-sex sexual acts remain punishable by death in the country. An activist who has known Monfared since late 2019 told the Iranian Lesbian and Transgender Network his half-brother discovered he was gay when he opened an envelope from the Iranian Revolutionary Guard Corps that contained his military exemption card.

Masih Alinejad, an Iranian journalist and activist, reported Monfared at the time of his murder was planning to flee Iran and live with his boyfriend, who previously sought refuge in Turkey. Alinejad said Monfared’s half-brother and cousins killed him “as part of an honor killing.”

The Iranian Lesbian and Transgender Network says authorities have arrested Monfared’s half-brother and cousins and charged them with first-degree murder. A State Department spokesperson on Tuesday in a statement to the Washington Blade described the Fazeli Monfared’s murder as “appalling.”

“The United States firmly opposes abuses against LGBTQI+ persons. The struggle to end violence, discrimination, criminalization and stigma against LGBTQI+ persons is a global challenge, and one that remains central to our commitment to promote human rights and fundamental freedoms for all individuals,” said the spokesperson.

“Iran must do more to ensure the human rights of LGBTQI+ persons are protected,” added the spokesperson. “We extend our deepest sympathies to Mr. Monfared’s loved ones.”

Continue Reading
Advertisement
Advertisement

Follow Us @washblade

Sign Up for Blade eBlasts

Trending