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Posts Tagged ‘gender identity or expression’

Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

Posted on: July 12th, 2017 by Art Leonard No Comments

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

ENDA, Title VII, and Transgender Rights

Posted on: September 19th, 2013 by Art Leonard No Comments

With a new push to get a floor vote in the Senate on the Employment Non-Discrimination Act (ENDA)  which was approved in committee over the summer, it is timely to consider the potential interaction of ENDA with Title VII of the Civil Rights Act of 1964, the main federal employment discrimination statute signed into law by President Lyndon B. Johnson that went into effect in July 1965.   Title VII prohibits employment discrimination by companies with 15 or more employees because of an individual’s race or color, religion, national origin or sex.

From the earliest days after Title VII was passed, the Equal Employment Opportunity Commission (EEOC), the federal agency set up to enforce the law, and the federal courts, both ruled that the statute’s ban on discrimination because of sex did not forbid discrimination because of a person’s sexual orientation or gender identity.  Although the statute did not contain an explicit definition of sex, which would seem to leave open the possibility of a broad interpretation to encompass all discrimination based on sexuality, before the 1990s the courts uniformly gave the term a narrow definition, relying on the idea that statutes should be interpreted in light of what the legislators who enacted them intended to achieve.

In 1964, the issues of anti-gay and anti-transgender discrimination were not on the radar of members of Congress.  In fact, the version of Title VII that was approved in the House committee and sent to the floor for consideration did not even include “sex” as a prohibited ground of discrimination.  The House had investigated the issue of sex discrimination, but the bill’s sponsors feared that including sex would make the bill too controversial, so they decided to present a narrower, less inclusive bill.

Opponents of the bill concurred with this conclusion, and decided to propose an amendment on the floor of the House to add sex as a strategy to defeat the bill.  They thought that if the amendment passed, the more expansive bill would be voted down, if not in the House, then in subsequent consideration in the Senate where a Southern filibuster was widely anticipated.  As soon as Representative Howard Smith of Virginia, a conservative Democrat who opposed the bill, proposed the floor amendment, the word went out to progressives and liberals who streamed onto the House floor to support the amendment.  They were also capable of counting votes and they thought that the bill could pass both houses with sex included. There was no discussion during the debate about whether a ban on sex discrimination would protect “homosexuals” or other “sexual deviants,” as the discourse at that time would have identified us.  The amendment passed, the bill passed the House, and after one of the longest filibusters in the history of Congress, it also passed the Senate.

In light of this history the EEOC and the courts refused to entertain gay and transgender discrimination claims under Title VII, finding that the term “sex” should be construed narrowly as the drafters of Title VII presumably would have intended, since nobody at the time thought that Congress had agreed to ban discrimination against gay and transgender people.

Then in 1989 the Supreme Court ruled for the first time that the ban on sex discrimination could be more broadly interpreted.  The case, Hopkins v. Price Waterhouse, involved a straight woman who was denied a promotion to the partnership at a national accounting firm.  The evidence showed that some partners objected to her candidacy because she was not “feminine” enough to suit their image of a “lady partner,” of which the firm had few.  Her boss told her that she needed to wear makeup and jewelry, dress more femininely, and tone down her act.  She was infamous in the firm for swearing like a top sergeant and riding her subordinates really hard to get projects done, which was why clients loved her.  Justice William J. Brennan wrote that when an employer relied on gender stereotypes in evaluating an employee for promotion, that was evidence of discrimination because of sex.

After this decision, federal courts began to change their tune, interpreting Title VII and other federal statutes banning sex discrimination as providing protection for people who encounter difficulties because they fail to meet society’s stereotypes about how men and women are supposed to present themselves.  These “gender nonconformity” cases tended to arise amidst claims of sexual harassment, which was emerging as a major new area of coverage under Title VII during the 1990s, and gay and transgender employees who encountered difficulties in the workplace began to raise these claims.  After some initial hesitation, the courts and the EEOC began to rule in their favor.

Although a gay or transgender employee subjected to harassment did not necessarily have a valid discrimination claim under Title VII, according to these rulings, they might have a valid claim if they could show that the harassment was because of gender stereotyping.  By the turn of the century, this proposition was well established and some courts began to take the next step, presuming that a transgender employee’s discrimination complaint by necessity incorporates a gender stereotyping claim and is covered by Title VII.   The courts found that a desire to “change sex” was, by definition, a failure to comport with gender stereotypes.

The major breakthrough decision on this was Smith v. City of Salem, Ohio, decided by the 6th Circuit Court of Appeals in Cincinnati in 2004.  When Jimmie Smith, a city firefighter, let it be known that she was transitioning, city officials convened an emergency meeting to plot some way to get her to resign.  When she sued them, the district court dismissed her case on the ground that gender identity discrimination was not covered by Title VII.  On appeal, the 6th Circuit disagreed, finding that gender identity claims come within the theory of gender stereotyping as it had developed since the Hopkins case.   In another case from the 6th Circuit involving a transgender firefighter, the Supreme Court denied review of a similar court of appeals decision.

Since then there have been several other important breakthroughs establishing protection for transgender employees.  The federal court of appeals for the 11th Circuit in Atlanta ruled in the Brumby case, involving a public employee in Georgia, that discrimination based on gender identity by a government employer violates the 14th Amendment’s Equal Protection Clause.  Last year, the EECO ruled in the Macy case, involving an applicant for federal employment that such discrimination, if proven, violates Title VII, citing both the 6th Circuit and other federal court cases and the 11th Circuit’s constitutional case.  A few weeks ago, ruling on the merits in the Macy case, the Justice Department’s internal appellate body approved the EEOC’s reasoning and found that denial of the position to the transgender applicant violated federal law.

Which takes us back to ENDA, now pending in the Senate.  ENDA was first introduced in 1993, amidst the controversial enactment of the Don’t Ask, Don’t Tell military policy.  Prior federal gay rights bills, dating back to the mid-1970s, would have amended Title VII and other federal civil rights laws to add “sexual preference” to the list of prohibited grounds of discrimination.  Gay rights leaders in 1993 decided to narrow the focus and introduce a bill that would only deal with employment discrimination based on sexual orientation, ENDA.  They came within one vote of getting it passed in the Senate in 1996, when it was considered in tandem with the Defense of Marriage Act.  But Republicans controlled both houses of Congress for most of the following decade and the bill never got beyond a committee hearing.

In 2007, after the Democrats won control of the House, Rep. Barney Frank introduced for the first time an inclusive version of ENDA that would cover gender identity and expression as well as sexual orientation.  However, Frank concluded after canvassing his colleagues that a bill that included gender identity could not pass the House.  He decided to withdraw the inclusive version and to introduce the narrower version that had almost passed the Senate a decade earlier.  This set off a furious debate among advocates in the LGBT community, with some organizations opposing passage of this version of ENDA, committed to the view that the gay rights and transgender rights movements must be a united front to vindicate the rights of all sexual minorities to be free of employment discrimination.  But Rep. Frank stuck to his position, arguing that passage of the narrower bill would be an important symbolic step, as no bill banning sexual orientation discrimination had ever been passed by either house at that point, and the politics of the Senate made it virtually impossible to pass ENDA through that chamber anyway so the vote would only be symbolic.  The narrow bill passed.

The election of Barack Obama on a platform that included support for an inclusive version of ENDA in 2008 also brought in Democratic majorities in both houses of Congress.  Rep. Frank reintroduced the inclusive version of ENDA and committed to supporting it.  By then, of course, the 6th Circuit had ruled that gender identity discrimination was covered under Title VII, but the Supreme Court had not ruled on the merits of such a claim, and most other federal circuit courts had not issued rulings.  Also, at that time neither the EEOC nor the Justice Department had ruled in favor of coverage of such discrimination under Title VII.  It was clear that inclusion of gender identity in ENDA was important, as it would put this into statutory law rather than leaving it to interpretations that could be repudiated by later courts or administrations.

This is where things stand at present.  The Obama Administration ranked passage of ENDA below the Hate Crimes Law, repeal of Don’t Ask Don’t Tell, and elimination of the Defense of Marriage Act, on its priority list.  With those accomplished, ENDA rises to the top.  The EEOC, the Justice Department, and an increasing number of federal courts now take the view that gender identity discrimination is forbidden by Title VII under the ban on sex discrimination.  Employers need to know that they have an obligation under federal law to treat transgender job applicants and employees fairly.  But court and administrative interpretations can change over time, and inclusion of gender identity in ENDA remains important because it would place that protection into statutory law in a more permanent way that would be binding on courts and employers without question.

Furthermore, the inclusion of gender identity is much less controversial now than it was in 2007, in light of the subsequent developments. An increasing number of states and municipalities have banned gender identity discrimination in their statutes and ordinances. In some jurisdictions such bans have been in effect for more than a decade, providing information about the effect of such laws that can counter the arguments that opponents have made against passing them.  The sky doesn’t fall in, and there is no indication that public or workplace restrooms and locker rooms have become more dangerous for women in jurisdictions that have banned gender identity discrimination. This data can be helpful in persuading members of Congress (and state and local legislators) that gender identity and sexual orientation should be included together in any anti-discrimination measures under consideration.