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HISTORIC: Supreme Court rules firing workers for being LGBTQ is illegal

Gorsuch extends nationwide protections to LGBTQ workers

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anti-discrimination laws, gay news, Washington Blade
The U.S. Supreme Court has ruled firing workers for LGBTQ is illegal. (Washington Blade file photo by Michael Key)

In a historic development, the U.S. Supreme Court ruled on Monday that existing federal law bars discrimination against workers for being LGBTQ, affirming long-sought federal protections for LGBTQ people in the workplace.

The 6-3 decision, written by U.S. Associate Justice Neil Gorsuch, determines anti-LGBTQ discrimination is a form of sex discrimination, thus prohibited under Title VII of the Civil Rights Act of 1964.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch writes. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Joining Gorsuch in the majority was U.S Chief Justice John Roberts as well as U.S. Associate Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer.

Dissenting were U.S. Associate Justices Brett Kavanaugh, Samuel Alito and Clarence Thomas.

The ruling doesn’t merely uphold the status quo, despite the widespread misconception anti-LGBTQ discrimination is already illegal. For the 29 states that lack state laws banning anti-LGBTQ discrimination in the workforce, the ruling affirms discrimination based on sexual orientation and gender identity in the workplace is now illegal in those places and nationwide.

The decision was issued in three consolidated cases, Bostock v. Clayton County and Zarda v. Altitude Express, which sought to clarify whether anti-gay discrimination is a form of sex discrimination, and Harris Funeral Homes v. EEOC, which sought to clarify whether anti-trans discrimination was sex discrimination.

The transgender worker in the Harris case, Aimee Stephens, a funeral home director, passed away last month before she could learn of the decision to come from the Supreme Court. The gay worker in the Zarda case, Donald Zarda, a skydiver, had passed away before his case reached the Supreme Court. The gay worker in the Bostock case, Gerald Bostock, is still living.

In each of these cases, LGBTQ workers argued they were unlawfully fired because of their sexual orientation, but the employers argued that was perfectly legal because no federal law explicitly bans anti-LGBTQ discrimination.

Although employers argued before the Supreme Court Congress didn’t intend to include LGBTQ people when it enacted the Civil Rights Act of 1964, Gorsuch throws cold water on that argument.

“The employers assert ‘no one’ in 1964 or for some time after would have anticipated today’s result,” Gorsuch writes. “But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.”

Gorsuch cites several cases establishing precedent on the scope of Title VII to reach the conclusion it bars anti-LGBTQ discrimination. Among them is the 1998 decision in Oncale v. Sundowner Offshore Services, Inc. — a decision written by the late U.S. Associate Justice Antonia Scalia that determined sexual harassment from same-sex workers amounts to sex discrimination under the law.

Kavanaugh, who elected to write his own dissent, said justices are overriding the scope of Title VII by interpreting it to prohibit anti-LGBTQ discrimination.

“In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views,” Kavanaugh writes. “Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.”

Alito, in a dissent joined by Thomas, takes to Webster’s Dictionary to dispute the meaning of “sex” includes LGBTQ people, then forecast dire consequences for the Supreme Court reading too much into Title VII.

“Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long,” Alito writes. “The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”

LGBTQ rights advocates, many of whom had been fighting for decades to win LGBTQ non-discrimination protections at the federal level, hailed the Supreme Court ruling as a historic milestone.

Tico Almeida, an attorney at WilmerHale who represented more than 200 businesses – including Apple, Facebook, Google, Univision, and Warner Media – in an amicus brief supporting the LGBTQ workers, said the decision “affirms the legal protections that give LGBTQ Americans the freedom to work without discrimination.”

“The major businesses that signed our pro-LGBTQ amicus brief to the Supreme Court employ millions of workers, comprise over $5 trillion in revenue, and share a common interest in equality because they know that ending discrimination in the workplace is good for the U.S. economy as a whole,” Almeida said.

In terms of federal law, the decision dramatically expands civil rights protections by assuring Title VII prohibits discrimination against LGBTQ people.

Only two federal judicial circuits — the Second and the Seventh — had previously determined anti-gay discrimination is sex discrimination. The idea anti-trans discrimination is a form of sex discrimination is more established in the U.S. jurisprudence, but the Supreme Court ruling now guarantees those protections nationwide.

Shannon Minter, a transgender civil rights attorney and legal director for the National Center for Lesbian Rights, said the ruling comes at an appropriate time for the nation.

“This is a huge victory not just for LGBTQ people, but for our country, which benefits enormously when LGBTQ people are permitted to participate and contribute on equal terms,” Minter said. “Today’s decision will be remembered as a watershed in the history of LGBTQ rights, even as our country continues to grapple with the brutal legacy of racism.”

The Trump administration, through U.S. Solicitor General Noel Francisco, argued before justices firing workers for being LGBTQ is permitted under Title VII.

It remains be to seen how the Trump administration will implement the decision now that the court has ruled the other way. The White House and Justice Department didn’t immediately respond to the Washington Blade’s request for comment.

The U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal workplace laws, had been accepting charges from LGBTQ people alleging discrimination in the workforce under Title VII.

Although that practice during the Trump administration was in question before the Supreme Court decision, accepting and pursuing those LGBTQ charges will likely continue uncontested in the aftermath of the ruling.

Kimberly Smith-Brown, a spokesperson for the EEOC, said the Supreme Court decision is important, but the agency is still reviewing its scope.

“The Supreme Court decision today provides important clarity for both workers and employers about their rights and responsibilities in the workplace,” Smith-Brown said. “We are reviewing the decision to determine how it will impact EEOC’s enforcement of Title VII.”

In theory, the ruling should apply to laws other than Title VII banning discrimination on the basis of sex in the workforce, including the Fair Housing Act, the Affordable Care Act and Title IX of the Education Amendments of 1964. That would mean LGBTQ people now have federal protections not only in employment, but also in housing, health care and school systems.

Because no federal law prohibits discrimination on the basis of sex in public accommodations or federal programs, the ruling does nothing for LGBTQ protections in those areas. As an example, Colorado baker Jack Phillips of Masterpiece Cakeshop, who refused to make a custom-made wedding cake for a same-sex couple and narrowly won a previous case before the Supreme Court, would still be able refuse to service to LGBTQ people under this latest ruling.

No federal law also prohibits discrimination on the basis of sex in the U.S. military, so President Trump’s ban on transgender military service will remain in effect.

For most cases, the ruling should put to rest fears that led to the adage of LGBTQ people being married on one day and fired the next, but a series of other cases accepted by the Supreme Court may soon undermine the Title VII decision if the rulings come out against LGBTQ people.

Last month, the court heard arguments in the cases of Our Lady of Guadalupe School v. Morrissey-Berru, Agnes and St. James School v. Darryl Biel. In those cases, Catholic schools are seeking a wider religious exemption under federal law to discriminate in hiring. If the court rules in favor of the schools, it would allow them to refuse to hire or fire LGBTQ teachers over religious objections.

The Supreme Court has also agreed to take up the case of Fulton v. Philadelphia in which Catholic adoption agencies are seeking a First Amendment right to refuse child placement into LGBTQ homes. A ruling in favor of Catholic Social Services could undercut the Supreme Court’s ruling the Title VII cases.

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D.C. mayor to lift all restrictions on bars, nightclubs on June 11

‘We will definitely be celebrating Pride’ next month

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Mayor Muriel Bowser announced Monday that she will fully lift capacity and other restrictions on most businesses, including restaurants and places of worship, on May 21. (Washington Blade file photo by Michael Key)

D.C. Mayor Muriel Bowser announced at a news conference on Monday that a continuing trend of significantly lower numbers of coronavirus cases and deaths in the city has enabled her to fully lift capacity and other restrictions on most businesses, including restaurants and places of worship, on May 21.

The mayor said bars and nightclubs will be allowed to increase indoor capacity from the current 25 percent to 50 percent on May 21, with all capacity restrictions for bars and nightclubs to be removed on June 11.

The mayor’s announcement came after representatives of the city’s nightlife businesses, including the city’s gay bars and restaurants, expressed concern that D.C. had yet to lift its capacity restrictions beyond 25 percent while surrounding jurisdictions in Maryland and Virginia had already lifted most restrictions.

“On May 21, restrictions on public and commercial activity, including capacity limits, types of activities, and time restrictions, will be lifted,” the mayor’s directive says.

It says restrictions for bars and nightclubs would continue at a 50 percent capacity from May 21 through June 11. The directive says restrictions for large sports and entertainment venues would also continue from May 21 to June 11, which includes a requirement such events apply for a waiver of the restrictions on a case-by-case basis.

“On June 11, capacity limits and restrictions will be lifted on those venues that cannot fully reopen on May 21,” the directive says.

In response to a question at the news conference, Bowser said the June 11 date would essentially end all restrictions on nightclubs and bars, including the current requirement that they close at midnight rather than the pre-epidemic closing times of 2 a.m. on weekdays and 3 a.m. on weekends.

In a development that could have a major impact on plans for D.C.’s LGBTQ Pride events, the mayor’s revised health directive announced on Monday includes the lifting of all capacity restrictions on large outdoor and indoor sports and entertainment events beginning on June 11.

That change would remove restrictions that have, up until now, prevented D.C.’s Capital Pride Alliance from holding its annual Pride Parade and Festival in June during Pride Month.

Capital Pride Executive Director Ryan Bos told the Washington Blade shortly after the mayor’s announcement that Capital Pride is assessing its options for expanding its current plans for in-person events in June.

“We will definitely be celebrating Pride in June,” Bos said. “We just received this information as well. So, we will be getting further information,” he said. “We have not been informed that they will be issuing any permits yet, so at this time we are moving forward with our original plans for doing things.”

Bos was referring to a city requirement for obtaining permits for street closings and use of other public spaces for events such as a parade or street festival. He said existing plans, among other things, call for an informal parade of cars and other vehicles on June 12 that will drive throughout the city to view homes and businesses that will be decorated with Pride displays such as signs, photos, and other symbols of Pride.

Those familiar with the city’s past Pride events don’t think there will be enough time for Capital Pride to organize the traditional large parade and street festival in time for June. But Capital Pride officials have talked about holding a possible parade and festival in October, and the lifting of the capacity restrictions announced by Bowser on Monday would likely make that possible.

In addition to lifting all capacity restrictions on May 21 for restaurants, the mayor’s May 21 timeframe for lifting restrictions includes these additional venues and events:

  • Weddings and special events
  • Business meetings and seated conventions
  • Places of worship
  • Non-essential retail
  • Personal services
  • Private at-home gatherings
  • Libraries, museums, galleries
  • Recreation Centers
  • Gyms and fitness centers
  • Pools
  • Office space
  • Schools
  • Childcare

“We’re very pleased that over the last several days, we have seen our case spread, our community spread numbers, venture out of the red into the yellow and fast approaching the green,” Bowser said in referring to a health department chart that shows the changes in coronavirus cases in the city.

“You might remember that our daily case rate peaked in January at 45.9. And today you can see it’s down to 6.6,” she said at her news conference on Monday.

“Throughout this process I have said how proud I am of D.C. residents and businesses who have responded, who have followed health guidance and have worked together to help protect our community throughout the pandemic. And we see it in these numbers today,” she said.

“Containing the virus will continue to require all of us to be focused on maintaining a robust health system,” the mayor said, adding that while over 200,000 D.C. residents have been fully vaccinated since December 2020, “many more thousands” still need to be vaccinated. “Vaccines are free and available on demand at walk-up sites across the District,” she said.

The mayor also noted that the city will continue to require residents and visitors to use a mask in accordance with existing and updated guidance set by the U.S. Centers for Disease Control and Prevention.

Mark Lee, coordinator of the D.C. Nightlife Council, an association that represents restaurants, bars, nightclubs and other entertainment venues, said the mayor’s directive on May 10 leaves some details to be addressed but will open the way to bring nightlife businesses back to life.

“What we do know is that on Friday, May 21, businesses begin returning to normal operations and, three weeks later, on June 11, all restrictions for all businesses in the District will end,” Lee said. “It’s a day we’ve long awaited and one that will save much of our community enterprise from financial ruin.”

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Family code bill to be introduced in Cuban Parliament in July

CENESEX made announcement during May 4 press conference

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Mariela Castro at a CENESEX press conference

 

Tremenda Nota is the Washington Blade’s media partner in Cuba. A Spanish version of this story was published on May 6.

HAVANA — The National Center for Sexual Education on May 4 during a press conference in which it unveiled the program for the 14th annual International Day Against Homophobia, Transphobia and Biphobia events in Cuba announced a bill to amend the family code will be introduced in Parliament in July.

CENESEX Director Mariela Castro Espín said during a meeting with official and foreign media outlets at the International Press Center that this year’s events are part of the process of amending the family code.

She added that this legal change will reflect several rights guaranteed in the constitution, which is why it is necessary to sensitize and educate the Cuban population to avoid prejudice and discrimination.

“I was able to appreciate that the majority of the population … is in favor of recognizing the rights of LGBTI+ people and especially the rights in the family sphere that include the possibility, the option, of marriage,” said Mariela Castro during the press conference.

The official referred to the results of the National Survey on Gender Equality in Cuba, conducted in 2016 and published in 2019. According to this official study, 77 percent of the Cuban population between 15 and 74-years-old said that gays, lesbians, bisexuals and transgender people should have the same rights as any other citizen.

CENESEX’s director, however, did not use this information in the 2018 parliamentary debates sparked by Article 68 of the bill to amend the constitution. The idea that it was not the appropriate time to implement same-gender marriage in Cuba eventually won out.

Mariela Castro told Tremenda Nota a few days before the referendum in which Cuban voters approved the current constitution that she was aware of the survey, but she did not explain why she did not use the data it revealed as an argument (in favor of marriage equality.)

“It was a wasted tool that now we can only use in the next referendum,” then-MP Luis Ángel Adán Roble told Tremenda Nota during a February 2019 interview, as did Mariela Castro.

The moment that Adán Roble mentioned has arrived.

It became known during the May 4 press conference that the family code will be introduced in the scheduled parliamentary session in July. The Council of State on March 22 appointed a commission that will be in charge of preparing the bill, but the list of its members was not made public until April 30. None of them are openly LGBTI+.

Activists over the last few weeks have demanded that Parliament reveal the identities of those who make up the commission and the deadline they have to prevent the Family Code. The May 4 press conference resolved the last outstanding point.

The Cuban IDAHOBiT program

Mariela Castro and CENESEX Deputy Director Manuel Vázquez Seijido explained that numerous activities with the goal of making visible and fighting against all types of discrimination based on sexual orientation and gender identity will virtually take place from May 4 through May 30.

The IDAHOBiT events in Cuba have a program that includes academic dialogue, social activism and artistic presentations from virtual spaces.

Forum debates are among the activities. The Juventud Rebelde newspaper will host the first one with the theme “Deconstructing myths around same-sex families and partners” and Cubadebate will hold the second called “Constitution and Sexual Rights in Cuba: Progress and Main challenges.”

They also announced at the press conference the books “Paquito el de Cuba: A Decade of Online Activism” and “Non-Heteronormative Sexualities and Gender Identities. Tensions and Challenges for Human Rights” will be presented.

There will be virtual panels titled “Diverse Families: Histories of Non-Hegemonic Lives,” “National Program for the Advancement of Women: Opportunities to Confront Homophobia and Transphobia,” “Keys for Inclusive Communication” and “Sexual Rights and Religious Fundamentalisms.”

Castro Espín explained that CENESEX will use its social media accounts to promote the program, contribute to the sexual education of Cubans and the recognition of rights for all people, regardless of gender or sexual orientation.

A show against homophobia and transphobia that will officially end the events will be broadcast on social media and on television.

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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards

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Puerto Rico Pulse nightclub victims, gay news, Washington Blade

 

A Puerto Rico Senate committee on Thursday killed a bill that would have banned so-called conversion therapy on the island.

Members of the Senate Community Initiatives, Mental Health and Addiction Committee voted against Senate Bill 184 by an 8-7 vote margin. Three senators abstained.

Amárilis Pagán Jiménez, a spokesperson for Comité Amplio para la Búsqueda de la Equidad, a coalition of Puerto Rican human rights groups, in a statement sharply criticized the senators who opposed the measure.

“If they publicly recognize that conversion therapies are abuse, if they even voted for a similar bill in the past, if the hearings clearly established that the bill was well-written and was supported by more than 78 professional and civil entities and that it did not interfere with freedom of religion or with the right of fathers and mothers to raise their children, voting against it is therefore one of two things: You are either a hopeless coward or you have the same homophobic and abusive mentality of the hate groups that oppose the bill,” said Pagán in a statement.

Thursday’s vote comes against the backdrop of continued anti-LGBTQ discrimination and violence in Puerto Rico.

Six of the 44 transgender and gender non-conforming people who were reported murdered in the U.S. in 2020 were from Puerto Rico.

A state of emergency over gender-based violence that Gov. Pedro Pierluisi declared earlier this year is LGBTQ-inclusive. Then-Gov. Ricardo Rosselló in 2019 signed an executive order that banned conversion therapy for minors in Puerto Rico.

“These therapies lack scientific basis,” he said. “They cause pain and unnecessary suffering.”

Rosselló issued the order less than two weeks after members of the New Progressive Party, a pro-statehood party  he chaired at the time, blocked a vote in the Puerto Rico House of Representatives on a bill that would have banned conversion therapy for minors in the U.S. commonwealth. Seven out of the 11 New Progressive Party members who are on the Senate Community Initiatives, Mental Health and Addiction Committee voted against SB 184.

“It’s appalling. It’s shameful that the senators didn’t have the strength and the courage that our LGBTQ youth have, and it’s to be brave and to defend our dignity and our humanity as people who live on this island,” said Pedro Julio Serrano, founder of Puerto Rico Para [email protected], a Puerto Rican LGBTQ rights group, in a video. “It’s disgraceful that the senators decided to vote down this measure that would prevent child abuse.”

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