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2nd Circuit rules Title VII bars anti-gay workplace discrimination

Court finds prohibition on sex discrimination under Title VII applies to gay people

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The U.S. Court of Appeals for the Second Circuit has issued a ruling against anti-gay workplace discrimination. (Photo by Ken Lund; courtesy Flickr)

In a major ruling affirming protections for lesbian, gay and bisexual workers, a federal appeals court in New York City ruled Monday employment discrimination based on sexual orientation is unlawful under Title VII of the Civil Rights Act of 1964.

In a 69-page “en banc” decision from the full court, the Second Circuit finds Donald Zarda, a now deceased skydiver who alleges he was fired from Altitude Express for being gay, can sue under existing civil rights law because sexual orientation discrimination is a form of sex discrimination.

Writing for the court in the 10-3 decision, U.S. Chief Circuit Judge Robert Katzmann, a Clinton appointee, concludes Zarda’s estate is “entitled to bring a Title VII claim for discrimination based on sexual orientation.”

“Zarda has alleged that, by ‘honestly referr[ing] to his sexual orientation,’ he failed to ‘conform to the straight male macho stereotype,'” Katzmann writes. “For this reason, he has alleged a claim of discrimination of the kind we now hold cognizable under Title VII.”

The decision vacates a trial court ruling against Zarda’s claims based on sexual orientation discrimination under Title VII, remanding the case to the court for reconsideration. The “en banc” ruling also overturns Second Circuit precedent against protections for gay workers in the jurisdiction — the 2000 decision in Simonton v. Runyon and the 2005 decision in Dawson v. Bumble & Bumble.

In the past year alone, that precedent formed the basis for two rulings from three-judge panels on the Second Circuit against the idea that sexual orientation discrimination is sex discrimination (although in one case, the court ruled in favor of the gay plaintiff anyway based on sex-stereotyping claims). The latest “en banc” ruling means lesbian, gay and bisexual plaintiffs will now unequivocally be able seek relief in the Second Circuit if they face anti-gay workplace discrimination.

The ruling is also a blow to the Trump administration, which sent Deputy Assistant Attorney General Hashim Mooppan to the court for oral arguments in September to argue employers should be able to fire workers for being gay despite Title VII.

Greg Nevins, an attorney and employment fairness project director for Lambda Legal, argued on behalf of Zarda before the Second Circuit and said the court’s decision is “huge” in the effort to prohibit anti-gay workplace discrimination nationwide.

“It really changes the dynamics about how people talk about who’s winning this argument,” Nevins said. “Nobody can call Hively an outlier. We now have an overwhelming victory in two circuits — out of Chicago, and out of New York now — and both of them were lopsided.”

In the reasoning for the decision, Katzmann finds three separate ways in which sexual orientation discrimination is a subset of sex discrimination.

First, Katzmann finds sexual orientation “is defined by one’s sex in relation to the sex of those to whom one is attracted,” which makes it impossible to discriminate on the basis of sexual orientation without taking sex into account.

“In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,” Katzmann said. “We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

This interpretation is also known as the “but for” argument that anti-gay discrimination is sex discrimination. In this case, Zarda would have been able to keep his job as a skydiver as a man but for his attraction to other men.

Secondly, Katzmann finds anti-gay bias is based on assumptions and stereotypes about gender, which the U.S. Supreme Court has made clear is an unlawful motive for employment discrimination under existing precedent.

“Viewing the relationship between sexual orientation and sex through the lens of gender stereotyping provides yet another basis for concluding that sexual orientation discrimination is a subset of sex discrimination,” Katzmann writes. “Specifically, this framework demonstrates that sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.”

Finally, Katzmann finds anti-gay workplace discrimination is associational discrimination based on sex because the employer is making a judgment about with whom an employee should have a relationship.

“Consistent with the nature of sexual orientation, in most contexts where an employer discriminates based on sexual orientation, the employer’s decision is predicated on opposition to romantic association between particular sexes,” Katzmann writes. “For example, when an employer fires a gay man based on the belief that men should not be attracted to other men, the employer discriminates based on the employee’s own sex.”

Joining Katzmann in the decision were U.S. Circuit Judges Peter Hall, Denny Chin, Susan Carney and Christopher Droney. U.S. Circuit Judge Rosemany Pooler joined the decision, except for the section that determination a termination “but for” an employee’s sexual orientation is unlawful.

Four other judges on the Second Circuit — Dennis Jacobs, Robert Sack, Raymond Lohier and Jose Carbranes — filed concurring opinions in the case that affirmed protections for gay, lesbian and bisexual workers under Title VII, but reached that conclusion differently. The judges picked and chose from the findings presented by Katzmann on sexual orientation discrimination, although none disputed of any the reasoning.

One of the justices who dissented in the decision, the Obama-appointed U.S. Circuit Judge Gerard E. Lynch, objected to the majority opinion on the basis Congress didn’t intend to cover gay people when it passed Title VII in 1964.

“I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964,” Lynch writes. “I am confident that one day — and I hope that day comes soon — I will have that pleasure. I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago — until I actually woke up and realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.”

The two other judges who dissented were U.S. Circuit Judges Debra Ann Livingston, a George W. Bush appointee, and Reena Raggi, another George W. Bush appointee.

The court reached a conclusion in favor of Zarda despite efforts from the Justice Department to convince the court otherwise. In a strange development, one arm of the federal government, the Justice Department, had argued against gay protections, but another arm, the U.S. Equal Employment Opportunity Commission, argued in favor of them.

Devin O’Malley, a Justice Department spokesperson, said the department is committed to upholding civil rights, but argued against the gay plaintiff in this case because the administration believes existing civil rights law doesn’t apply to him.

“The Department of Justice is committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws Congress has enacted that prohibit discrimination on the basis of sexual orientation,” O’Malley said. “We remain committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided. The position that the department advocated in this case has been its longstanding position across administrations and remains the law of nine different courts of appeals.”

Victoria Lipnic, acting chair of the EEOC, had the opposite reaction to the ruling and praised the Second Circuit for the decision.

“Today, the Second Circuit became the second federal court of appeals to hold that Title VII provides legal employment protections for individuals based on their sexual orientation,” Lipnic said. “The EEOC has advanced this legal interpretation for the past few years, and I commend the fine lawyering by the agency that contributed to today’s decision. This is a generous view of the law of employment protections, and a needed one.”

Each of the three states in the Second Circuit — Vermont, Connecticut and New York — already had state laws prohibiting workplace discrimination on the basis of sexual orientation. The ruling, however, adds an additional layer for lesbian, gay and bisexual workers because under Title VII, sex discrimination need only be a motivating factor to meet the threshold for unlawful discrimination as opposed to state law, which requires it to be the only factor.

That’s why Zarda sought to sue under Title VII; his claims of sexual orientation discrimination were deemed insufficient in state court.

Nevins identified other benefits for gay workers in the Second Circuit to sue under Title VII, but pointed out they can still obtain relief under state laws.

“It helps the lawyers and the judges because it’s familiar terrain, and the remedies can be better and the procedural requirements can be clearer and, in this case, easier to satisfy,” Nevins said.

The Second Circuit is the second federal appeals court to find anti-gay discrimination is unlawful under Title VII and contributes an emerging legal consensus that sexual orientation amounts to sex discrimination under current law. In 2015, the EEOC determined in the case of Baldwin v. Foxx it would accept and litigate cases of anti-gay discrimination under Title VII.

Last year, the U.S. Seventh Circuit Court of Appeals in the case of Hively v. Ivy Tech became the first federal appeals court to find anti-gay discrimination is illegal under Title VII. The U.S. Eleventh Circuit Court of Appeals, however, reached the opposite the conclusion and found no protections for gay workers in the case of Evans v. Georgia Regional Hospital.

Despite the circuit split, the U.S. Supreme Court refused to grant a writ of certiorari in the Evans case to iron out once and for all nationwide whether Title VII affords non-discrimination protections for lesbian, gay, bisexual workers.

Eric Lesh, executive director of the LGBT Bar Association of New York, said in a statement “momentum is headed towards justice under the law for LGBT employees” in the aftermath of the Second Circuit ruling.

“Today, the Second Circuit joined many other federal courts in recognizing that Title VII of the Civil Rights Act of 1964 extends to prohibit discrimination based on sexual orientation,” Lesh said. “The LGBT Bar of New York agrees with the full Second Circuit — which sits in our backyard. Everyone has the right to feel safe and protected at work. The U.S. Supreme Court should settle the divide among our appellate courts. LGBT employees need to know that they are protected under federal law. The time is now.”

In what may be the opposite of a silver lining to gay workers, the ruling leaves no opportunity for LGBT rights advocates to seek review from the Supreme Court in hopes of a nationwide decision. The only party that could file the petition is Altitude Express, but the company defended its termination of Zarda based on a technicality and isn’t likely to seek review.

Saul Zabell, an attorney with the Bohemia, N.Y.-based law firm Zabell & Associates, represented Attitude Express and expressed disappointment with the decision, but was non-committal about a decision for filing a petition for certiorari.

“We are extremely proud of the esteemed ‘en banc’ panel of the Second Circuit for curing this glaring legislative gap in fundamental human rights,” Zabell said. “Though we are equally as disappointed that the panel chose to ignore the facts of the underlying matter. In the course of doing so, the panel exceeded their judicial mandate to reach what appears to be a predetermined conclusion. Although we recognize the dire need for this change in the law, the manner in which it was effectuated calls into question the scope of power relative to the branches of government.”

Asked whether that meant Altitude Express would seek review before the Supreme Court, Zabell replied the company is still reviewing options.

Nothing in the Second Circuit explicitly spells out whether Title VII has impact on anti-transgender discrimination in the workforce. No precedent exists one way or the other in the jurisdiction on whether transgender workers are eligible for relief under the law.

Nevins said Katzmann took pains to restrict his ruling the issue of anti-gay discrimination, but his reasoning could just as well apply to transgender people.

“The biggest argument on the other side of this has always been Congress has been asked for these protections pretty explicitly and has not done so,” Nevins said. “To the extent that arguments bites the dust, a rising tide lifts all boats. Any victory for the principle that you interpret the law that you have, not the law you wish you had, is a good day for entire LGBTQ community.”

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Mixed reviews from transgender Republicans on Caitlyn Jenner’s run

Remarks on kids in sport a sore point among LGBTQ advocacy groups

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Caitlyn Jenner was quickly repudiated by LGBTQ advocates after she entered California’s recall election as a gubernatorial candidate — and her fellow transgender Republicans are mixed over whether or not to back her up.

Transgender Republicans are few in number, but some are in high-profile positions and have been working with their party to change its approach and drop its attacks on transgender people, whether it be in the military, public bathrooms, or school sports.

Jordan Evans, a Charlton, Mass.-based transgender Republican who unsuccessfully last year ran to become a Massachusetts Republican State Committee Woman, told the Washington Blade she had high hopes for Jenner as a fellow transgender candidate, but they were quickly dashed after her campaign launched.

“My feelings changed quickly after Caitlyn made it clear that she was less interested in using this opportunity to present the Republican Party and conservative movements with an accessible and high-profile introduction to the trans community and simply wanted to be a trans woman who espoused the same destructive approaches that we just so happen to be seeing all over the country,” Evans said.

Evans said the high hopes she had were based on the transgender advocacy she said Jenner was doing behind the scenes and the potential for two prominent LGBTQ Republicans to run for governor in California. After all, Jenner may soon be joined in the race by Richard Grenell, who was U.S. ambassador to Germany and acting director of national intelligence before becoming the face of LGBTQ outreach for Trump’s failed re-election.

But Jenner’s approach to the gubernatorial recall in California, Evans said, is “putting trans youth at risk for a campaign that isn’t even transformative for Republicans during this volatile time.”

“Even her current messaging is superficial and does nothing to help dispel claims that she’s unqualified,” Evans said. “The only positive thing that I’ve seen come from this is conservative mainstream media using her correct pronouns, but that is not worth the damage that she’s inflicting.”

Much of the disappointment over Jenner’s campaign is the result of her essentially throwing transgender kids under the bus as part of her campaign at a time when state legislatures are advancing legislation against them, including the bills that would essentially bar transgender girls from participating in school sports.

Jenner, declining to push back on these measures and assert transgender kids have a place in sports, instead essentially endorsed the bills shortly after she announced her candidacy.

“If you’re born as a biological boy, you shouldn’t be allowed to compete in girls’ sports,” Jenner told TMZ, which asked her about the hot-button issue during a Sunday morning coffee run.

Jenner dug deeper into MAGA-world at the expense of solidarity with the transgender community. Last week, Jenner retweeted Jenna Ellis, who has a notoriously anti-LGBTQ background and was criticized just last year for refusing to use the personal pronouns of Rachel Levine, who’s now assistant secretary of health and the first openly transgender presidential appointee to win Senate confirmation.

Jennifer Williams, a New Jersey-based transgender Republican who unsuccessfully ran for a seat in the New Jersey General Assembly last year, said via email Jenner “did much good for several years by educating millions of people around the world about transgender folks,” but won’t countenance the candidate’s remarks on transgender kids in sports.

“In regard to her current run for California governor, her recent comments regarding transgender youth playing sports are confusing,” Williams said. “Just last year, she said that she supported transgender female athletes. Caitlyn should consult with tennis great Billie Jean King, soccer star Megan Rapinoe or WNBA legend Candace Parker on the subject of transgender athletes in women’s sports, as they are very well versed on the matter.”

At a time when state legislatures are pushing through legislation targeting transgender youth, restricting their access to sports and transition-related care, Jenner’s refusal to repudiate those measures has become a focal point for opposition to her candidacy from LGBTQ advocacy groups, who say she’s “out of touch” (although none were supporting her even before she made those comments).

The LGBTQ Victory Fund, which supports LGBTQ political candidates and public officials, has signaled it wants nothing to do with Jenner.

Sean Meloy, vice president of political programs for LGBTQ Victory Fund, said Jenner hasn’t applied for an endorsement from the Victory Fund “and she shouldn’t bother to.”

“Her opposition to full trans inclusion – particularly for trans kids in sports – makes her ineligible for the endorsement,” Meloy said. “There are many great trans candidates running this cycle who are champions for equality.”

To be sure, Jenner used her celebrity status as a former reality TV star and Olympic champion on behalf of transgender lobbyists, urging donations to groups like the National Center for Transgender Equality and going to Capitol Hill to lobby Republicans on transgender issues. Jenner has also given money for transgender kids to attend college, giving transgender advocate Blossom Brown a check for $20,000 on “The Ellen Show” in 2015.

Blaire White, a transgender conservative and YouTube personality, drew on these examples of Jenner helping transgender youth in a video earlier this month and said the two once had dinner together, but wasn’t yet ready to make a endorsement.

“I will say that until she lays out all of her policy positions and until she’s more on record in long form really talking about what she wants to do for the state of California, I can’t say for sure I would vote for her and would not vote for her,” White concluded in the video. “What I can say is: I’m interested. And also, being under Gavin Newson’s governorship, I would literally vote for a triple-amputee frog over Gavin Newsom, so she already has that going for her.”

Jenner’s campaign couldn’t be reached for comment for this article on the repudiation of her campaign from LGBTQ advocacy groups.

Gina Roberts, who’s the first transgender Republican elected to public office in California and a member of the San Diego GOP Central Committee, said she’s neutral for the time being as an elected Republican Party leader, but nonetheless had good things to say about Jenner’s candidacy.

“I think it’s awesome,” Roberts said. “It’s kind of indicative of how cool the Republican Party in California is because nobody really cares or it makes any difference. I mean, I was the first elected GOP transgender person in California and I think we’re ready for No. 2.”

Asked whether Jenner’s comments about allowing transgender kids in sports was troubling, Roberts said that wasn’t the case because she has her own reservations.

“I have pretty much the same opinion because … there’s so many nuances in that,” Roberts said. “If somebody transitions after they’ve gone through puberty, there is a big difference, especially in high school. If they transition beforehand, it’s not a big deal.”

A gun enthusiast and supporter of gun owner’s rights, Roberts said she competes in women’s events in shooting sports, but there’s a difference because she doesn’t “really have any advantages all those young, small ladies can pull a lot faster than I do and shoot faster than I do.”

Roberts concluded she’ll personally make a decision about whom she’ll support in the California recall election after Grenell announces whether or not he’ll enter the race, but can’t say anything until the San Diego GOP Central Committee issues an endorsement.

“He’s a good friend of mine, too,” Roberts said. “I know both of them. I think they’d both be certainly better than Gavin Newsom, I have to stay neutral until the county party decides who they’re going to endorse. I will support somebody or another in the endorsement process, but I can’t publicly announce it.”

Although LGBTQ groups want nothing to do with her campaign, Jenner’s approach has garnered the attention of prominent conservatives, who are taking her seriously as a candidate. One of Jenner’s first interviews was on Fox News’ Sean Hannity, a Trump ally with considerable sway among his viewers. Hannity was able to find common ground with Jenner, including agreement on seeing California wildfires as a problem with forest management as opposed to climate change.

Kayleigh McEnany, who served as White House press secretary in Trump’s final year in the White House and defended in the media his efforts to challenge his 2020 election loss in court, signaled her openness to Jenner’s candidacy after the Hannity interview.

“I really enjoyed watching @Caitlyn_Jenner’s interview with @seanhannity,” McEnany tweeted. “I found Caitlyn to be well-informed, sincere, and laser-focused on undoing the socialist, radical, a-scientific policies of Biden & the left. Very good.”

In theory, that support combined with Jenner’s visibility might be enough to propel Jenner to victory. In the recall election, California will answer two questions, whether California Gov. Gavin Newsom should be recalled, and if so, which candidate should replace him. The contender with the plurality of votes would win the election, even if that’s less than a majority vote, and become the next governor. There isn’t a run-off if no candidate fails to obtain a majority.

With Jenner’s name recognition as a celebrity, that achievement could be in her reach. After all, Arnold Schwarzenegger won the 2004 recall election in California as a Republican based on his celebrity status, and ended up becoming a popular governor.

But the modest inroads Jenner has made with the acceptance of conservatives and potential to win isn’t enough for other transgender Republicans.

Evans, for example, said Jenner’s candidacy is not only a disappointment, but threatening the potential candidacies of transgender hopefuls in the future.

“It’s difficult to be in electoral politics, and that’s even more true when you’re a member of a marginalized community,” Evans said. “Caitlyn’s behavior is making it even more challenging for the trans community to be visible in a field where we desperately need to be seen. She’s casting a tall shadow on our ability to have a voice and is giving credibility to lawmakers and local leaders simply unwilling to view us with decency and respect.”

Williams said Jenner should avoid talking about transgender issues over the course of her gubernatorial run “and instead focus on the hard, critical policy issues facing California.”

“It is a state in crisis and she has to run a very serious campaign and not rely on her celebrity or LGBTQ status to win over voters’ hearts and minds — just like all other LGBTQ candidates around the country need to do when they run for public office,” Williams said.

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

GWU student creates tribute video

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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.

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

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

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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.”

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