National
Court finds anti-gay workforce bias legal, still rules for gay plaintiff
Judges cite sex stereotyping prohibition in decision
A federal appeals court ruled for a gay plaintiff despite finding anti-gay workforce bias is lawful.
A federal appeals court ruled Monday anti-gay bias in the workplace is legal under current federal civil rights law barring discrimination based on sex, but nonetheless handed a victory to a gay plaintiff on the basis that the discrimination she faced amounted to illegal sex-stereotyping.
In a 15-page opinion, a three-judge panel on the U.S. 2nd Circuit Court of Appeals unanimously found precedent bars the court from concluding the global DDB Worldwide Communications Group illegally discriminated against Matthew Christiansen for being gay under the Title VII of the Civil Rights of Act.
The per curiam opinion found a district court handling the Christiansen v. Omnicom Group erred in its conclusion sexual-orientation discrimination constitutes sex discrimination under federal civil rights law, citing the 2000 decision in Simonton v. Runyon and the 2005 decision in Dawson v. Bumble & Bumble.
“Because we are ‘bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court…it [is] ordinarily…neither appropriate nor possible for [a panel] to reverse an existing Circuit precedent,'” the decision says. “We thus lack the power to reconsider Simonton and Dawson.”
However, the court concluded Christiansen, who’s openly gay and HIV positive, made a compelling case he faced discrimination based on sex-stereotyping, which the U.S. Supreme Court determined is unlawful in the 1989 decision of Price Waterhouse v. Coopers.
“Christiansen’s complaint identifies multiple instances of gender stereotyping discrimination,” the decision says. “His complaint alleges that his supervisor described him as ‘effeminate’ to others in the office…and depicted him in tights and a low‐cut shirt ‘prancing around.’ The complaint further alleges that the ‘Muscle Beach Party’ party poster, depicting Christiansen’s head attached to a bikini‐clad female body lying on the ground with her legs in the air, was seen by at least one coworker as portraying Christiansen ‘as a submissive sissy.'”
As a result, the court reverses the district court decision rejecting Christiansen’s allegations of sex-stereotyping in the workforce, remanding the decision for reconsideration.
The three-judge panel consisted of U.S. Chief Judge Robert Katzmann, a Clinton appointee; U.S. Circuit Judge Debra Ann Livingston, a George W. Bush appointee; and U.S. District Judge Margo Brodie, an Obama appointee sitting on the court by designation.
In a concurring opinion, Katzmann and Brodie examine the evolution of the understanding of sexual orientation in the legal landscape. Although the judges say precedent prevents them from determining sexual-orientation discrimination is sex discrimination, they conclude the time has come for reconsideration by the full court under “en banc” review.
“I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII,” Katzmann writes. “Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”
A number of cases are percolating federal appeals court urging the judiciary to determine sexual-orientation discrimination is sex discrimination under current law. In a new trend, district courts and the U.S. Equal Employment Opportunity Commission have found Title VII bars anti-gay bias in the workforce, although no federal appeals court has reached that conclusion.
Had the 2nd Circuit ruled that sexual-orientation discrimination is unlawful under Title VII, it would have been the first federal appeals court to determine existing civil rights law extends to gay, lesbian and bisexual people in the workforce.
Shannon Minter, legal director for the National Center for Lesbian Rights, said the ruling had promise even though judges concluded the sexual-orientation discrimination isn’t unlawful under Title VII.
“I am actually encouraged by the court’s recognition that there is no principled reason to exclude sexual orientation discrimination from Title VII, and by their support for ‘en banc’ review,” Minter said. “Courts are finally taking these claims seriously, and I expect that we will see more and more positive decisions, hopefully including a positive ‘en banc’ decision from the 11th Circuit.”
Federal Government
US Census Bureau testing survey on LGBTQ households
Agency proposing questions about sexual orientation and gender identity
The U.S. Census Bureau is seeking public comment on a proposed test of sexual orientation and gender identity questions on the American Community Survey. The test would begin this summer and continue into next year.
The Census Bureau published the request as a Federal Register notice. In its press release the agency noted that the ACS is an ongoing survey that collects detailed housing and socioeconomic data. It allows the Census Bureau to provide timely and relevant housing and socioeconomic statistics, even for low levels of geography.
As part of the process for adding new questions to the ACS, the Census Bureau tests potential questions to evaluate the quality of the data collected.
The Census Bureau proposes testing questions about sexual orientation and gender identity to meet the needs of other federal agencies that have expressed interest in or have identified legal uses for the information, such as enforcing civil rights and equal employment measures.
The test would follow the protocols of the actual ACS — with one person asked to respond to the survey on behalf of the entire household. These particular questions are asked about people 15 years of age or older. Households are invited to respond to the survey online, by paper questionnaire or by phone.
The current Federal Register notice gives the public a final opportunity to provide feedback before the Census Bureau submits its recommendations to the Office of Management and Budget for approval. The public may provide feedback through May 30 online.
The White House
Judy Shepard to receive Presidential Medal of Freedom
Nancy Pelosi is also among this year’s honorees
Beloved LGBTQ advocate Judy Shepard is among the 19 honorees who will receive the Presidential Medal of Freedom, the highest civilian award in the U.S., the White House announced on Friday.
The mother of Matthew Shepard, who was killed in 1998 in the country’s most notorious anti-gay hate crime, she co-founded the Matthew Shepard Foundation with her husband Dennis to raise awareness about anti-LGBTQ violence.
The organization runs education, outreach, and advocacy programs, many focused on schools.
In a statement shared via the Human Rights Campaign, Shepard said, “This unexpected honor has been very humbling for me, Dennis, and our family. What makes us proud is knowing our President and our nation share our lifelong commitment to making this world a safer, more loving, more respectful, and more peaceful place for everyone.
“I am grateful to everyone whose love and support for our work through the years has sustained me.
“If I had the power to change one thing, I can only dream of the example that Matt’s life and purpose would have shown, had he lived. This honor reminds the world that his life, and every life, is precious.”
Shepard was instrumental in working with then-President Barack Obama for passage of the landmark Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in 2009, which was led in the House by then-Speaker Nancy Pelosi (D-Calif.), who will also be honored with a Presidential Medal of Freedom during the ceremony on Friday.
Also in 2009, Shepard published a memoir, “The Meaning of Matthew: My Son’s Murder in Laramie, and a World Transformed,” and was honored with the Black Tie Dinner Elizabeth Birch Equality Award.
“Judy Shepard has been a champion for equality and President Biden’s choice to honor her with the Presidential Medal of Freedom is a testament to what she’s done to be a force of good in the world,” HRC President Kelley Robinson said in a statement.
“A mother who turned unspeakable grief over the loss of her son into a decades-long fight against anti-LGBTQ+ hatred and violence, Judy continues to make a lasting impact in the lives of the LGBTQ+ community,” she said.
“It is because of her advocacy that the first federal hate crimes legislation became law and that countless life-saving trainings, resources and conversations about equality and acceptance are provided each year by the Matthew Shepard Foundation,” Robinson said. “We are honored that Judy is a member of the HRC family and know that her work to create a more inclusive and just world will only continue.”
Other awardees who will be honored by the White House this year are: Actor Michelle Yeoh, entrepreneur and former New York Mayor Michael Bloomberg, Jesuit Catholic priest Gregory Boyle, Assistant House Democratic Leader Jim Clyburn (D-S.C.), former Labor and Education Secretary and former U.S. Sen. Elizabeth Dole (R-N.C.), journalist and former daytime talkshow host Phil Donahue, World War II veteran and civil rights activist Medgar Evers (posthumous), former Vice President Al Gore, civil rights activist and lawyer Clarence B. Jones, former Secretary of State and U.S. Sen. John Kerry (D-Mass.), former U.S. Sen. Frank Lautenberg (D-N.J.) (posthumous), Olympic swimmer Katie Ledecky, educator and activist Opal Lee, astronaut and former director of NASA’s Johnson Space Center Ellen Ochoa, astronomer Jane Rigby, United Farm Workers President Teresa Romero, and Olympic athlete Jim Thorpe (posthumous).
National
United Methodist Church removes 40-year ban on gay clergy
Delegates also voted for other LGBTQ-inclusive measures
The United Methodist Church on Wednesday removed a ban on gay clergy that was in place for more than 40 years, voting to also allow LGBTQ weddings and end prohibitions on the use of United Methodist funds to “promote acceptance of homosexuality.”
Overturning the policy forbidding the church from ordaining “self-avowed practicing homosexuals” effectively formalized a practice that had caused an estimated quarter of U.S. congregations to leave the church.
The New York Times notes additional votes “affirming L.G.B.T.Q. inclusion in the church are expected before the meeting adjourns on Friday.” Wednesday’s measures were passed overwhelmingly and without debate. Delegates met in Charlotte, N.C.
According to the church’s General Council on Finance and Administration, there were 5,424,175 members in the U.S. in 2022 with an estimated global membership approaching 10 million.
The Times notes that other matters of business last week included a “regionalization” plan, which gave autonomy to different regions such that they can establish their own rules on matters including issues of sexuality — about which international factions are likelier to have more conservative views.
Rev. Kipp Nelson of St. Johns’s on the Lake Methodist Church in Miami shared a statement praising the new developments:
“It is a glorious day in the United Methodist Church. As a worldwide denomination, we have now publicly proclaimed the boundless love of God and finally slung open the doors of our church so that all people, no matter their identities or orientations, may pursue the calling of their hearts.
“Truly, all are loved and belong here among us. I am honored to serve as a pastor in the United Methodist Church for such a time as this, for our future is bright and filled with hope. Praise be, praise be.”
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