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The current status of transgender legal rights in the U.S.

Posted on: June 8th, 2016 by Art Leonard No Comments

I was invited by Rabbi Sharon Kleinbaum to give a talk at Friday night services at Congregation Beit Simchat Torah on June 3 about the current status of transgender rights in the U.S.  CBST observes Gay Pride Month with a series of guest speakers on Friday nights, and the first Friday of the month was designated as “Trans Pride Shabbat” this year.  Below is a revised version of the text I prepared for that talk, although on Friday night I left this text in my folder and spoke extemporaneously.

This month we mark the anniversary of a major victory for transgender rights in the U.S. which has generally been overlooked. There was much celebration last June 26 when the Supreme Court ruled in Obergefell v. Hodges that same-sex couples were entitled to marry and to have our marriages recognized by state and local governments under the 14th Amendment .  What few mentioned in those celebrations was that this decision implicitly overruled some terrible state court rulings from around the country holding that marriages involving transgender people were invalid under the state bans on same-sex marriage.  By removing any gender requirements for marriage, the Supreme Court was not only opening up marriage nationwide for same-sex couples, it was also making it possible for transgender people to marry the partners they love regardless of their sex, sexual orientation, or gender identity.  This would also cancel out any argument that a married person who was transitioning was no longer validly married or should be required to divorce their spouse. However, since every state now has no-fault divorce, of course if such a transition takes place and the couple decides to end their marriage, there would be no impediment under state law to their doing so.

Let’s consider the current legislative status of transgender rights protections in the U.S. As of today, 17 states expressly prohibit discrimination based on gender identity in employment, housing and public accommodations (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, as well as the District of Columbia and Puerto Rico).  Massachusetts prohibits gender identity discrimination in employment and housing, and the legislature is working on adding public accommodations, with the likely approval of the governor.  Most of these laws have specific exemptions for religious institutions, and some of the states also have Religious Freedom statutes that might be interpreted to provide exemptions for businesses whose owners have religious objections, but the question of such exemptions for businesses is not really settled and heavily argued.

Three states prohibit sexual orientation discrimination by statute but not yet gender identity discrimination: New Hampshire, New York and Wisconsin. In New York, however, the State Division of Human Rights earlier this year published a regulation stating that it interprets the New York Human Rights Law ban on sex discrimination to include discrimination because of gender identity, and the ban on disability discrimination to cover gender dysphoria, thus providing protecting to individuals who have not yet finished transitioning to the gender with which they identify.  That interpretation has not yet been tested in the courts, but it is consistent with some unfolding federal law developments and  also some older decisions by New York trial courts.

In addition, many states have now included specific protection on the basis of gender identity under their Hate Crimes statutes, which authorize enhanced penalties against people who perpetrate violent crimes against people because of their transgender identity. Also, many cities, towns, villages and counties around the country have passed local laws banning gender identity discrimination.  In states that lack such laws, many of the large cities have passed them, although there is a disturbing new trend in some of those states for the state legislatures to pass laws prohibiting localities from going beyond the provisions of the state civil rights laws.  Lawsuits are challenging these limitations.

At the federal level, two statutes, the Matthew Shepard – James Byrd Jr. Hate Crime Prevention Act and the Violence against Women Act, provide for enhanced penalties for those who commit crimes of physical violence against people because of their gender identity, but only when there is some connection to interstate activity.   The interstate activity requirement relates to Congress’s limited power to pass criminal statutes because Article I of the Constitution does not list criminal laws, so federal criminal statues are normally based on Congress’s power to regulate commerce between the states or to enforce other provisions of the Constitution.  In states that do not provide gender identity protection under their hate crimes laws, state prosecutors can refer cases to the US Justice Department, which may prosecute after determining that the crime implicates interstate commerce.  For example, if the weapon used to commit the crime had moved across state lines, or if the crime (such as kidnaping) involved transportation on an interstate highway, the federal Hate Crimes law could come into play.

Congress has not yet approved the Equality Act, which was introduced last year to amend all federal civil rights statutes to list gender identity and sexual orientation as prohibited grounds of discrimination. This would provide protection in the areas of employment, housing, public accommodations, credit, educational institutions, and all programs that receive federal financial assistance or are operated by federal contractors, and would also cover state government employment and federal employment.  The bill enjoys wide co-sponsorship among Democratic members of both houses, but has only a handful of Republican co-sponsors, and the Republican leadership in both houses has denied committee hearings or votes on the bill, so it cannot be passed unless there is a significant change in the political balance of Congress or in the views of the Republican Party.

The Obama Administration adopted executive orders last year that prohibit federal executive branch agencies and federal contractors from discriminating in employment or provision of services because of gender identity or sexual orientation. These orders are enforced administratively within the executive agencies, not in federal courts.  However, there has been recent activity in Congress placing the federal contractor protections into question.  An impasse between Republicans and Democrats has led to a stalemate over adoption of important pending spending bills and has generated substantial debate on the floor of the House of Representatives, because there are enough Republicans who will vote in favor of this protection (which essentially incorporates the terms of the President’s executive order into legislation) to add it to the pending bills as amendments, but then not enough votes from the Republican majority in the House to pass the resulting amended bills, which are generally opposed by the Democrats because they provide insufficient funding for federal agencies or place objectionable restrictions on the agencies’ actions.  This curious situation has brought the legislative authorization process to a temporary halt, and looms as a potential crisis as we move through this hotly contested congressional election cycle.

There are areas where there is much contention now in legislatures and the courts over transgender discrimination claims asserted under existing sex discrimination laws.   Is it possible that gender identity discrimination is already illegal, even when it is not mentioned as a prohibited ground of discrimination?  This is the hot issue of the day that may reach the Supreme Court next term.

In 1964, Congress considered a Civil Rights Act that was mainly intended to ban race and religious discrimination in employment and public services. However, the employment provision, Title VII, was amended in the House of Representatives to add “sex” as a prohibited ground of employment discrimination.  The term “sex” was not defined in the statute, and historical accounts show that the amendment was introduced by a Conservative Virginia representative, possibly as part of a strategy to keep the bill from being passed.  When Title VII went into effect in July 1965, some attempts were made to bring discrimination claims on behalf of gay and transgender people, but they were rejected by the Equal Employment Opportunity Commission (EEOC), the agency in charge of enforcement of Title VII, and in early decisions by the federal courts.

In 1972, Congress enacted Title IX of the Education Amendments Act, which forbids sex discrimination by educational institutions that receive federal funding. The U.S. Department of Education and courts interpreting Title IX have generally followed the interpretation of “sex” under Title VII.  In early cases they refused to use this statute to protect gay and transgender people from discrimination.  Other federal statutes addressing sex discrimination, including the Fair Housing Act and the Equal Credit Opportunity Act, also received narrow interpretations of their sex discrimination provisions.

In 1990, Congress passed the Americans with Disabilities Act. Some opponents of that bill complained that it might be hijacked by sexual minorities claiming that homosexuality or transsexuality could be deemed disabilities.  Republican Senator Jesse Helms from North Carolina obtained an amendment specifically stating that homosexuality  and “transsexualism” would not be considered disabilities for purposes of protection under this statute.

Interpretation of federal sex discrimination laws began to change after 1989, when the Supreme Court decided an important Title VII case, Price Waterhouse v. Hopkins. Ann Hopkins was denied a partnership at a national accounting firm because some of the partners thought she was not adequately feminine in her appearance and conduct.  One said she needed “a course in charm school,” and the head of her office told her she should wear make-up and jewelry and walk, talk and dress more femininely if she wanted to be a partner.  The Supreme Court said that this kind of sexual stereotype was evidence of a discriminatory motive under Title VII, and stated that Congress intended to knock down all such barriers to advancement of women in the workplace, signaling a broad interpretation of sex discrimination.

Over the following two decades, lower federal courts have used the Price Waterhouse decision to adopt a broader interpretation of “sex” under Title VII and other federal sex discrimination provisions. By early in this century federal appeals courts started to extend protection to transgender plaintiffs on the theory that they were suffering discrimination because they failed to conform to sex stereotypes.  Federal circuit and district courts in many different parts of the country have now found gender identity protection in cases under the Violence against Women Act, the Equal Credit Opportunity Act, and Title VII of the Civil Rights Act.  In an important breakthrough, the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled that discrimination against a transgender state employee violated the Equal Protection Clause of the 14th Amendment, finding that the same standard used for sex discrimination claims should be applied to gender identity claims.

One of the key factors advancing this broad interpretation of sex discrimination was President Obama’s appointment of Chai Feldblum, then a law professor at Georgetown University, to be a commissioner at the EEOC during his first term. (She is now serving a second term at the EEOC.)  Commissioner Feldblum, the first openly lesbian or gay EEOC commissioner, argued effectively that the agency should adopt a broad interpretation of “sex” and apply it to discrimination claims by federal employees.  In three important rulings over the last few years, the EEOC held first that gender identity discrimination claims may be brought under Title VII, then that sexual orientation discrimination claims could also be brought under Title VII, and late last year that Title VII requirs federal agencies to allow transgender employees to use workplace restrooms consistent with their gender identity.  Building on these rulings as well as the growing body of federal court rulings, the Justice Department, the Department of Education, and other federal agencies with civil rights enforcement responsibility, have also begun to interpret their statutory sex discrimination laws more broadly.

The EEOC was ruling on internal discrimination claims within the federal government, but the agency has also undertaken an affirmative litigation strategy, filing briefs in cases pending in federal court brought by private litigants against non-governmental employers. In addition, the EEOC has filed its own gender identity and sexual orientation discrimination lawsuits in federal courts on behalf of individuals who filed charges against employers with that agency.

The Department of Education and the Justice Department have become involved in several cases brought by transgender high school students under Title IX, seeking access to restrooms consistent with their gender identity.

In a case that drew national attention last year, the Education and Justice Departments represented a transgender high school student in Illinois who was denied appropriate bathroom access and negotiated a settlement with the school district affirming the student’s rights. That attracted a federal court lawsuit against the government by Alliance Defending Freedom, a right-wing litigation group representing some objecting parents and students.  The lawsuit claims that Title IX does not apply to this situation and that their children’s “fundamental right of bodily privacy” was violated by the terms of the settlement.  It also claims that the Education and Justice Departments did not have authority to adopt this new interpretation of the law without proposing a formal regulation under the procedures established by the Administrative Procedure Act, which include a right of any interested member of the public to challenge a new regulation directly in the federal appeals courts.

This issue burst into wider public discussion when the city of Charlotte, North Carolina, passed an ordinance forbidding sexual orientation and gender identity discrimination, and made clear that transgender people in Charlotte would be allowed to use public and workplace restrooms consistent with their gender identity. The ordinance was set to take effect on April 1, 2016.  This stirred up a storm in the North Carolina legislature, which held a special session late in March to pass H.B. 2, a measure that preempted local anti-discrimination laws and provided that in government-operated buildings the restrooms would be strictly segregated by biological sex, meaning, for example, that a person can’t use a women’s restroom unless their birth certificate indicates that they are female.  This would apply to public colleges, universities and schools at all levels and in all other government buildings.

The main focus of debate was Republican legislators’ argument that allowing transgender women to use women’s restrooms would present a danger to women and children of possible sexual assault by heterosexual men declaring themselves to be transgender in order to gain improper access. The argument is patently ridiculous.  Seventeen states prohibit gender identity discrimination in public facilities, as do several hundred local jurisdictions, but there are no reports that these laws have enabled male sexual predators to gain access to women’s restrooms, and existing criminal laws against public lewdness and sexual assault can easily be used to prosecute such individuals.  In a alternative argument, the opponents of transgender restroom access are now pushing the theory argued in the new Illinois lawsuit: that allowing transgender people into restrooms consistent with their gender identity threatens the “right of bodily privacy” of other users to avoid exposing themselves to the view of transgender people.  Those making this argument reject the proposition that a transgender woman is genuinely a woman and a transgender man is genuinely a man, and argue that there is a tradition of sheltering people in restrooms from the gaze of members of the opposite sex.

A similar rejection of the reality of transgender identity can be found in a law recently passed by the state of Mississippi, which specifically authorizes people whose religious belief rejects transgender identity to refuse to treat transgender people consistent with their gender identity, including in places of business when it comes to things like restroom access. This reverts back to the views that used to be expressed by courts during the 20th century, rejecting the idea of gender transition and insisting that gender must be defined solely by a determination made at someone’s birth and entered on their birth certificate.

North Carolina’s H.B. 2 and the Mississippi law are now both the subject of multiple federal law suits disputing the bodily privacy argument and forcing courts to confront the question whether discrimination against transgender people violates the 14th Amendment of the Constitution, Title IX and Title VII.  While this dispute was pending, the Obama Administration threatened North Carolina with enforcement action under Title VII and Title IX, and distributed a letter in May to educational administrators nationwide advising them of the requirement to respect the rights of transgender students and staff under Title IX.  The administration’s action attracted new lawsuits, including one filed by the State of Texas on behalf of itself and a dozen other states challenging the administration’s interpretation of Title IX.

Meanwhile, during April the Richmond-based U.S. Court of Appeals for the 4th Circuit, ruling in a high school restroom case brought by a transgender boy under Title IX, held that the federal district court should defer to the Education Department’s interpretation of that statute, reversed the district court’s dismissal order, and sent the case back to the district court for further proceedings.  At the end of May, the full bench of the 4th Circuit rejected the School District’s petition for reconsideration of the case, and on June 7 the school district filed a notice with the 4th Circuit that it plans to petition the U.S. Supreme Court to review the decision.   This will probably result in a “stay” of the 4th Circuit’s ruling, which will delay further consideration by the district court of the plaintiff’s request for a preliminary injunction so that he can access the boys’ restroom facilities at his high school when classes resume in the fall.

Although legal commentators have suggested that it is unlikely the Supreme Court will agree to hear this case, it is at least possible. The notice the School Board filed focuses on two arguments: that the district court should not defer to the Education Department’s interpretation of Title IX, and that giving transgender students the restroom access they desire violates the “bodily privacy rights” of other students.  The first argument would require the Supreme Court to overrule a precedent that has been strongly criticized by the Court’s most conservative justices.  The second would require the Court to broaden the right of privacy under the Due Process Clause to encompass a right not to share restroom facilities with transgender people.

We should begin to see decisions in many of the pending lawsuits in the months ahead. One of the complications facing us now in getting a resolution to this controversy is that the Supreme Court is operating with only 8 members since the death of Justice Scalia in February.  Senate Republicans have refused to hold hearings and vote on President Obama’s nominee for the seat, Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.  This vacancy may lead the Supreme Court to avoid taking for review controversial cases as to which it is likely to be sharply divided, such as the case from Virginia involving the transgender student’s discrimination claim under Title IX.  The court of appeals decision in that case was 2-1. The dissenting judge urged the school district to seek review from the Supreme Court.  Although there might be some delays in getting this issue to the Supreme, it appears likely that the next big LGBT rights case to go to that Court will focus on whether gender identity discrimination is a form of “sex” discrimination that can be challenged under existing sex discrimination statutes and the Equal Protection Clause of the 14th Amendment.

Federal Judge Agrees With EEOC that Sexual Orientation Discrimination is Actionable under Title VII

Posted on: October 30th, 2015 by Art Leonard No Comments

At last, a federal district judge has expressly relied on the EEOC’s ruling from July 2015 that sexual orientation discrimination claims can be brought under Title VII of the Civil Rights Act of 1964.

U.S. District Judge Myron H. Thompson of the Middle District of Alabama, rejecting the recommendation of a U.S. Magistrate Judge that a sexual orientation discrimination complaint under Title VII be dismissed on jurisdictional grounds, determined that the Equal Employment Opportunity Commission (EEOC) was correct when it ruled that sexual orientation discrimination is a form of sex discrimination under Title VII.  However, this determination in Isaacs v. Felder, 2015 U.S. Dist. LEXIS 146663 (Oct. 29, 2015), did not do any good for the plaintiff, Roger Isaacs, because the court concluded that his factual allegations included neither direct nor indirect evidence of discriminatory intent in his discharge or treatment by his employer.

Isaacs, a gay man, worked for Felder Services as a dietician for about six months. Felder provides various services to healthcare facilities. Isaacs was assigned to work at Arbor Springs Health and Rehabilitation Center under a contract that Felder had with that organization. He complained that he was subjected to a discriminatory hostile environment at Arbor Springs, and relayed this complaint back to Felder, which asked Arbor to investigate and report.

Meanwhile, Isaacs had also been assigned by Felder to provide dietician services at another facility, in Florala, Alabama, once every three weeks. Isaacs had been injured in a car accident and asked for permission “for a man he identified as his brother but who was actually his husband to drive him to Florala, and for the two to stay overnight there,” wrote Judge Thompson, observing that there was a “dispute” about whether Isaacs was authorized to seek expense reimbursements on behalf of his “brother” for these expeditions. He submitted these expenses, and also brought his mother along on some of these trips and submitted for reimbursement of her expenses as well. An administrative assistant at Felder Services raised questions about these expense reimbursements, leading to an internal investigation at Felder. This investigation led to the conclusion that Isaacs was submitting unauthorized expenses for reimbursement, and then Felder’s human resources director received the result of Arbor’s investigation of Isaacs’ allegations about harassment, which found his charges to be unsubstantiated. The results of the expense reimbursement investigation were brought to Felder’s president by the HR director, and they decided to terminate him “based on the improper reimbursement requests.”

Felder asserted Title VII claims of discrimination (by firing him) on the basis of his sex, gender non-conformity, and sexual orientation, hostile environment sexual harassment, and retaliation for claiming about the harassment. The company’s motion for summary judgment was referred to a magistrate judge, who recommended granting the motion as to all three claims. Among other things, the magistrate judge asserted that the sexual orientation claim should be rejected as not actionable under Title VII.

Judge Thompson, conducting de novo review of the record before the magistrate judge, granted summary judgment to the company on all claims, but for some different reasons from those stated by the magistrate judge. Most importantly, Thompson rejected the contention that a sexual orientation discrimination claim could not be brought under Title VII.

“The court rejects the magistrate judge’s conclusion that ‘sexual orientation discrimination is neither included in nor contemplated by Title VII,” wrote Thompson. “In the Eleventh Circuit, the question is an open one,” he wrote, citing to a recent ruling from the Southern District of Georgia, Evans v. Georgia Regional Hospital, 2015 WL 5316694 (Sept. 10, 2015) (where the judge noted that the 11th Circuit hadn’t decided this issue yet). “This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII,” Thompson wrote, citing the July EEOC decision in Baldwin v. Federal Aviation Administration. In that case, he wrote, “the Commission explains persuasively why ‘an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.’ Particularly compelling is its reliance on Eleventh Circuit precedent,” he continued, noting the EEOC’s invocation of Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986), where the 11th Circuit held that discriminating against an employee based on an interracial marriage or association was a form of race discrimination; Thompson was making an analogy to same-sex marriage or associations as sex discrimination. Judge Thompson also cited a 1994 law review article by Northwestern University Professor Andrew Koppelman titled “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination,” 69 N.Y.U. L. Rev. 197, which made the same argument by analogy to the racial association cases in the wake of the Hawaii Supreme Court’s ruling in Baehr v. Lewin that a ban on same-sex marriage was sex discrimination.

Thompson continued, “To the extent that sexual orientation discrimination occurs not because of the targeted individual’s romantic or sexual attraction to or involvement with people of the same sex, but rather based on her or his perceived deviations from ‘heterosexually defined gender norms,’ this, too, is sex discrimination, of the gender-stereotyping variety,” here again citing Baldwin as well as a concurring opinion in Latta v. Otter, the 9th Circuit’s 2014 marriage equality decision, in which Circuit Judge Marsha Berzon argued that a state ban on same-sex marriage was a form of sex discrimination in violation of the Equal Protection Clause. Judge Thompson quoted a passage from Berzon’s concurring opinion that included a citation to a 1975 law review article by then-professor (now Supreme Court Justice) Ruth Bader Ginsburg titled “Gender and the Constitution” (44 U. Cin. L. Rev. 1), which had helped to provide the theoretical underpinning for the Supreme Court’s subsequent adoption of the view that sex-stereotyping is evidence of sex discrimination.

While determining that the magistrate judge’s recommendation to reject Isaacs’ sex discrimination claim on the basis that Title VII did not apply was incorrect, however, Thompson concluded that Isaacs had failed to allege facts that would give rise to an inference that he was discharged because of his sexual orientation, and he agreed with the magistrate judge that the factual allegations were also insufficient to support Isaacs’ hostile environment and retaliation claims against Felder.

Thompson’s decision is apparently the first by a federal district judge to rely on the EEOC’s Baldwin decision to hold affirmatively that sexual orientation discrimination claims, if supported by sufficient factual allegations, can be brought under Title VII. Since the employer won its motion for summary judgment, there would seem to be no reason for it to seek review of Thompson’s ruling at the 11th Circuit, but the issue might get there if Isaacs were to appeal. He is represented in this lawsuit by Benjamin Howard Cooper of Cooper Law Group LLC, Birmingham, Alabama.

Civil Rights Through Administrative Action: Can It Be Effective?

Posted on: October 23rd, 2015 by Art Leonard No Comments

When legislatures refuse to act on proposals to protect LGBT people from discrimination, can civil rights agencies and executive officials just go ahead and extend the protection on their own?  Some recent events put this question sharply into play.

In July 2014, President Obama signed an executive order requiring federal contractors to adopt policies banning discrimination because of sexual orientation or gender identity and extending protection against gender identity discrimination to applicants and employees in the executive branch of the federal government.  (Prior executive orders first adopted during the Clinton administration by agency heads as well as the president extended protection against sexual orientation discrimination to executive branch employees.)  Even before President Obama’s action, the Equal Employment Opportunity Commission (EEOC) had issued an administrative ruling in 2012 that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 prohibited discrimination because of gender identity, a conclusion that was later confirmed by a Justice Department ruling in the same case, Macy v. Holder.

This past summer, the EEOC took a further step, ruling administratively in the case of a gay air traffic controller who had been denied a permanent position by the Federal Aviation Administration under circumstances suggesting that homophobia may have influenced the decision.  The gay man, David Baldwin, filed an internal discrimination claim within the FAA, asserting a violation of Title VII’s sex discrimination ban.  That agency said Title VII didn’t apply, but the EEOC reversed the ruling, holding that sexual orientation discrimination claims can be raised under Title VII, in an opinion announced on July 15.  This left Baldwin with a choice: he could litigate his discrimination claim administratively, or he could, with the authorization of the EEOC, take his dispute to federal court. Baldwin’s attorney announced recently that he will pursue his Title VII claim in federal court.

Most recently, on October 22, New York Governor Andrew Cuomo announced that the New York State Division of Human Rights will be publishing a proposed regulation in the state register on November 4, interpreting the state’s Human Rights Law ban on discrimination because of sex or disability as providing protection against discrimination for transgender people.  The Division will treat “gender dysphoria” as the kind of diagnosable medical condition that falls within the statutory definition of a disability, and it will take the position that discriminating against somebody because of their gender identity is the same for legal purposes as discriminating because of their sex.

These actions by President Obama, Governor Cuomo, the EEOC and the New York State Division come in the face of the failure by Congress or the New York legislature to approve pending legislative proposals to adopt these policies.  They are arguing, in the face of such legislative inaction, that existing laws already provide a basis for acting against such discrimination. These executive and administrative actions can have concrete consequences.  Companies with substantial federal contracts will have to adopt non-discrimination policies if they want those contracts renewed.  Employees who encounter gender identity discrimination will be able to file charges with the EEOC and the State Division of Human Rights, those agencies will investigate the charges, and if they find them meritorious, may attempt to negotiate settlements on behalf of the individuals, take their claims to court, or authorize them to file their own lawsuits, as Baldwin is doing against the FAA.  In fact, the EEOC recently reported that they had administratively resolved 846 discrimination claims nationwide on behalf of LGBT plaintiffs during 2014, the last year for which they have complete statistics, just on the basis of these internal policy interpretations.

The important question now is whether the courts will cooperate when an alleged discriminator resists the agencies’ interpretations?  After all, both the federal and state constitutions give the power to make new laws to the legislatures, not to elected executives or administrative agencies.  The EEOC and the State Division of Human Rights can interpret existing laws, but they can’t manufacture “new” substantive legal rules.  Some defendants in these lawsuits can be counted on to raise the objection that the relevant statutes do not forbid this kind of discrimination.  Courts will have to determine whether these new interpretations are legitimate, and that will turn heavily on the judicial philosophies of the particular judges deciding these cases.

Shortly after Title VII of the federal civil rights act went into effect in July 1965, the EEOC was faced with the question whether gay or transgender people were protected from discrimination by that statute, and its unequivocal answer was “no,” in line with the response of numerous federal courts in early cases.  The EEOC maintained that position through half a century, even as the courts were “evolving” on the issue in light of a Supreme Court decision in 1989, Price Waterhouse v. Hopkins, finding that “sex stereotyping” by an employer could be evidence of unlawful intentional sex discrimination.  By early in this century, several federal courts — include courts of appeals — had accepted this sex stereotyping theory on behalf of some gay and transgender discrimination plaintiffs, and a consensus seemed to be emerging among federal courts that gender identity discrimination could violate Title VII’s sex discrimination ban.  The EEOC relied on these rulings in 2012 when it issued its opinion in Macy v. Holder.

Over the past few years, a handful of federal trial judges have also used the sex stereotyping theory in discrimination cases brought by gay people, and the EEOC seized upon some these opinions this summer, as it celebrated its 50th anniversary of enforcing Title VII, when it ruled on David Baldwin’s discrimination complaint.

One of the biggest barriers to getting trial judges to accept these new interpretations is the system of precedent followed in the court system.  A trial judge is bound by the rulings of the appellate courts.  A federal district court is bound by the rulings of the court of appeals in the circuit in which it is located.

On September 9, a sexual orientation discrimination plaintiff confronted this problem in a federal lawsuit in Florida.  Barbara Burrows sued the College of Central Florida claiming that her sexual orientation was one of the reasons she was fired and argued that the EEOC’s recent decision supported her claim that Title VII applied to her case.  District Judge James Moody, observed that although “the EEOC’s decision is relevant and would be considered persuasive authority, it is not controlling.”  He evidently considered that he was not free to accept her argument, writing, “Until the Supreme Court or Eleventh Circuit recognizes the opinion expressed in the EEOC’s decision as the prevailing legal opinion, the Court declines to reconsider in light of the EEOC’s decision.”

Several other federal court rulings issued since the EEOC’s July 15 Baldwin opinion have not even mentioned it while reaffirming that sexual orientation discrimination claims cannot be asserted under Title VII.  For example, in a dispute between Julio Rodriguez and the New York City Health and Hospitals Corporation, U.S. District Judge Brian M. Cogan in Brooklyn wrote on September 8, “The Second Circuit has decided the question of whether ‘sex’ under Title VII includes ‘sexual orientation’ as a protected class.  It has explained that ‘the law is well-settled in this circuit and in all others to have reached the question that . . . Title VII does not prohibit harassment or discrimination because of sexual orientation.’  Therefore, plaintiff’s argument that he ‘is clearly a member of a protected class, because he identifies as bisexual,’ is wrong.”

Another federal district judge in Brooklyn, John Gleeson, issued a decision on October 16 in a discrimination case brought by Steven D. Moore against Greyhound Bus Lines.  Moore alleged discrimination because of his “sexual preference” and religion.  While finding that Moore’s factual allegations did not meeting the requirements for a discrimination claim in any event, Judge Gleeson dropped a footnote at the end of his opinion, reminding Moore that “Title VII does not apply to allegations of discrimination on the basis of sexual orientation,” referring to the same 2nd Circuit opinion from 2000 that Judge Cogan relied on in his ruling on Rodriguez’s case.

Similarly, in a suit by Jameka K. Evans against Georgia Regional Hospital in the U.S. District Court for the Southern District of Georgia, decided on September 10, U.S. Magistrate Judge G.R. Smith undertook a lengthy discussion of the numerous federal court rulings rejecting sexual orientation claims under Title VII, not once mentioning the EEOC’s Baldwin decision.

To make some headway on this issue a case has to go to the court of appeals. Lambda Legal announced that they have taken that step, urging the 7th Circuit Court of Appeals in Chicago to reverse a lower court ruling and allow a lesbian, Kimberly Hively, to litigate her discrimination claim against Ivy Tech Community College.  Ivy Tech had persuaded the federal district court in the Northern District of Indiana to dismiss Hively’s Title VII case, successfully arguing that Title VII does not apply to sexual orientation claims.  In a hearing before a three-judge panel of the court held on September 30, Lambda argued that the EEOC opinion, together with a handful of earlier federal trial court decisions cited by the EEOC, provide persuasive reasons for the 7th Circuit to set aside its own prior precedents on this issue and embrace the new approach to interpreting “sex” under Title VII.   A three-judge panel of the 7th Circuit may consider itself bound by prior circuit precedent, but Lambda could then petition for an “en banc” rehearing by the full 7th Circuit bench, which could overrule its old precedent.  Or this case could be the vehicle to get the issue before the Supreme Court.

Federal Discrimination Agency Says Gays Are Protected Against Employment Discrimination

Posted on: July 19th, 2015 by Art Leonard No Comments

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII of the Civil Rights Act of 1964, issued a decision on July 15 holding for the first time that Title VII’s ban on employment discrimination because of sex includes discrimination against somebody because they are gay, lesbian or bisexual.  This marks a complete turnaround by the EEOC from the position taken by the agency throughout all of its 50 year history.  The Commission, acting in its appellate capacity, overruled a 2013 agency decision that had rejected a discrimination claim by a man who had been denied a permanent Front Line Manager position by the Federal Aviation Administration.  As is customary with such administrative rulings by the EEOC, the decision does not give the name of the man, referring throughout to the “Complainant.”   Baldwin v. Foxx (Anthony Foxx, Secretary, Department of Transportation), 2015 WL 4397641 (EEOC, July 15, 2015).

 

The EEOC went into business in July 1965 when Title VII took effect.  That statute was the result of prolonged struggle in Congress, including a lengthy filibuster in the Senate led by southern conservative Democrats opposed to racial integration of the workplace.  Almost all of the attention around Title VII focused on the proposal for a federal ban on race discrimination in employment.  The bill originally introduced in the House of Representatives was limited to race or color, religion and national origin as prohibited grounds of discrimination.  The relevant House committees did study sex discrimination issues, but decided that the Equal Pay Act passed in 1963, which prohibited compensating men and women at different rates for the same work, was sufficient, and proponents of the bill feared that adding a general prohibition on sex discrimination would endanger the bill’s passage.  Nonetheless, on the floor of the House, Rep. Howard Smith of Virginia, a long-time proponent of equal legal rights for women, introduced an amendment to add sex, which was passed by an unlikely alliance of pro-feminist liberals and southern conservatives.  Some of the southerners probably supported the amendment hoping that this would make the final bill more difficult to pass.  Because “sex” was added as a floor amendment, the committee reports on the bill do not discuss it, and Smith’s amendment did not add any definition of sex to the definitional section of the bill, merely adding the word “sex” to the list of prohibited grounds of discrimination wherever that list appeared in the bill.

After the bill passed the House, it went to the Senate under a deal worked out by the leadership to by-pass the committee process, in order to prevent it from being bottled up in committee by the conservative southern Democratic chair of the Judiciary Committee, Senator Eastland, who was a sworn opponent of the bill.  Instead the measure went directly to the Senate floor under a procedure that allowed little opportunity for amendments.  There was some brief discussion about the inclusion of sex but nothing really illuminating, apart from a floor amendment attempting to reconcile the bill with the Equal Pay Act, the meaning of which wasn’t settled until a Supreme Court ruling several years later.

Consequently, the “legislative history” provides no help in figuring out what kind of discrimination Congress intended to ban when it voted to add “sex” to the list of prohibited grounds of employment discrimination.  Without such guidance, the EEOC and the courts were left to their own devices in trying to figure out what this meant, and the conclusion they reached early in the history of Title VII was that it was intended to prohibit discrimination against women because they were women or against men because they were men.  As such, both the EEOC and many courts ruled beginning shortly after the Act went into effect that it did not apply to discrimination because of a person’s sexual orientation or gender identity, both concepts that were largely missing from American jurisprudence during the 1960s.  One commonsense reason usually raised by courts in rejecting such discrimination claims was that if Congress had intended to ban these forms of discrimination, there surely would have been some mention during the debates over the bill. They have also pointed to the fact that bills to add sexual orientation and gender identity to Title VII or to enact a free-standing law addressing such discrimination have been frequently introduced in Congress since the early 1970s, but no such measure has ever been enacted.  Some courts have construed this history to reflect Congress’s view that Title VII does not already ban such discrimination.

A Supreme Court decision from 1989, Price Waterhouse v. Hopkins, initiated a changing landscape for sexuality issues under Title VII.  Ann Hopkins, rejected for a partnership at Price Waterhouse, won a ruling from the Supreme Court that sex stereotypes held by some of the partners who voted against her application violated her rights under Title VII.  Writing for a plurality of the Court, Justice William J. Brennan said that Title VII applied to discrimination because of gender, not just biological sex.  Later courts seized upon this to justify taking a broader view of sex discrimination under Title VII.  By early in this century, there was a growing body of federal court rulings suggesting that LGBT people might be protected to some extent under Title VII, depending on the nature of their case.  If the discrimination they suffered could be described in terms of sex stereotypes, or if they could show that they had been the victim of sexual harassment that turned in some way on their gender, they might be able to maintain a legal claim of discrimination.

Within the past few years, the EEOC has taken a leading role in making these developments more concrete, first by its treatment of discrimination claims within the internal investigative process, and then through its decision-making on discrimination claims brought against federal agencies, where the Commission plays an important appellate role reviewing rulings by federal agencies on internal employment grievances.  In 2012, the EEOC ruled in a case against the Justice Department that a transgender woman who was denied a position because of her gender identity had a valid claim under Title VII.  Macy v. Dep’t of Justice, 2012 Westlaw 1435995 (April 20, 2012).  This ruling echoed many then-recent federal court decisions, including some by courts of appeals, finding that discrimination because of gender identity almost always involves sex stereotyping by the discriminating employer.   Late last year, the agency and then the Justice Department concluded that all gender identity discrimination claims could be investigated and prosecuted under Title VII.  Pushing that position forward, the Justice Department has filed suit on behalf of the EEOC or joined ongoing private cases in federal court seeking to move the courts beyond the stereotyping theory to a straightforward acceptance that gender identity discrimination is sex discrimination.

The new July 15 ruling by the EEOC seeks to achieve the same thing for lesbians, gay men and bisexuals confronting employment discrimination.  While acknowledging the significance of the Supreme Court’s Price Waterhouse decision and sex stereotyping theory in widening the agency’s appreciation of the scope of sex discrimination, this ruling takes things a step further.  “In the case before us,” wrote the Commission, “we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision regarding the permanent FLM position.  The Complainant, therefore, has stated a claim of sex discrimination.  Indeed, we conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.  A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.”

The Commission amplified this conclusion with an extended discussion, grounding its conclusion in rulings by several federal courts and pointing especially to the well-established principle that discriminating against somebody because of the race of their sexual partner has long been deemed by the Commission and the courts to be race discrimination.  Logically, then, discriminating against somebody because of the sex of their sexual partners would be sex discrimination.  The Commission also referenced the recent marriage equality litigation, noting the Supreme Court’s statement in Obergefell v. Hodges that laws prohibiting same-sex marriage “abridge central precepts of equality.”  Of course, the Commission also explained that recent court rulings have made clear that stereotyped thinking about proper gender roles, as well as behavior, underlies much sexual orientation discrimination, thus providing a firm theoretical justification in the Supreme Court’s Price Waterhouse case.

What is the significance of this EEOC ruling?  It is likely to result in the agency initiating federal court litigation, enlisting the Justice Department, to push this interpretation of Title VII into the courts.  Although federal courts are not bound by an administrative agency’s interpretations of their governing statutes, the Supreme Court has frequently deferred to agency interpretations when they are seen as consistent with the statutory language and overall congressional purpose, and constitute a reasonable interpretation of the statute.  Here is where the EEOC’s past rulings may result in less deference than courts otherwise might give.  When an agency “changes its mind” about an issue, courts may be skeptical about whether the new ruling is more political than legalistic.  So it may be premature to assume that this ruling by the EEOC means that we have no need to enact explicit federal protection through a vehicle such as the Employment Non-Discrimination Act (ENDA), which has been pending in one form or another in Congress since 1993.

Ironically, this EEOC action comes at a time when LGBT political leaders have largely abandoned ENDA, finding it too narrowly focused on employment.  Objections have also been raised to the extremely broad religious exemption contained in ENDA.  One of the major lobbying victories last summer was persuading the Obama Administration not to include the broad ENDA-style religious exemption in President Obama’s executive order banning sexual orientation and gender identity discrimination by federal contractors.  Lobbyists are now working with legislators on a broader, comprehensive LGBT civil rights bill, expected to be introduced this summer, that would go beyond employment to cover other areas traditionally covered by federal law, including housing, public services and public accommodations.  In the meantime, however, it will certainly be useful for the federal government’s primary civil rights enforcement agency, the EEOC, to be on record that sexual orientation discrimination is sex discrimination.  EEOC’s view may be influential with the agencies that enforce the Fair Housing Act and the other titles of the Civil Rights Act, and its analysis may prove persuasive to the courts, regardless of the level of deference it receives.

The vote on this decision is not indicated in the opinion (which was drafted by the Commission’s staff), but was reported in the press as a party-line vote of 3-2.  Under the statute, the five-member Commission may not have more than three commissioners who are members of the same political party.  The two Republicans on the Commission voted against this decision, but did not issue a written dissent.  A prime mover behind the EEOC’s expanded view of sex discrimination to encompass gender identity and sexual orientation claims has been Commissioner Chai Feldblum, the first openly gay member of the Commission, who was appointed by President Obama and confirmed by the Senate for a second term last year.

EEOC Rules on Transgender Employee Restroom Rights

Posted on: April 9th, 2015 by Art Leonard No Comments

The Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of federal bans on sex discrimination in employment, has ruled that a transgender woman employed in a civilian position by the U.S. Department of the Army, is entitled to use restroom facilities consistent with her gender identity, despite the agency’s objection to providing such access before the individual has undergone sex-reassignment surgery.  Although the EEOC had previously ruled that refusal to employ somebody because of their gender identity was a form of sex discrimination in violation of federal law, this was its first pronouncement on one of the great looming issues in transgender workplace rights: restroom access.

The case is Lusardi v. McHugh, the complainant being Tamara Lusardi and the named defendant being Secretary of the Army John M. McHugh.  The EEOC designates this as Appeal No. 0120133395.

Lusardi was hired as a male-identified person in 2004, as a civilian employee with the U.S. Army Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.  The case decided by the EEOC relates to events from October 2010 through August 2011 when she was assigned to the AMRDEC Software Engineering Directorate, and was also doing work at the Project Management office, Aircraft Survivability Equipment, as a Software Quality Assurance Lead.

As early as 2007 she had begun to discuss her gender identity issues with the Division Chief, and she began the actual transitioning process in 2010, obtaining a legal name change from an Alabama court in April of that year from a male-identified first-name to her desired name of Tamara.  She requested that the name be changed in Department records, which was effected on October 13, 2010.  Two weeks later, at the request of the supervisor on the Aircraft Survivability Equipment job, she met with that supervisor and the Division Chief to discuss the process of transitioning to presenting herself in conformance with her gender identity, and the issue of how she would relate to co-workers came up, particularly regarding restroom use once she began presenting as a woman.  An agreement of sorts was reached, and memorialized in writing, that she would use a single-user restroom, referred to as the “executive restroom,” until she had undergone sex reassignment surgery.

She generally adhered to that agreement, but there were a few occasions when that restroom was unavailable or out of order, so she used the restroom designated for women, which brought forth objections from the supervisor and it turned into an issue.  There was also a problem of harassment, derived from another supervisor’s  apparent difficulty in accommodating to Lusardi’s gender identity.  This supervisor persisted in referring to Lusari with masculine pronouns or calling her “sir,” using her former first name, and “smirking” and “giggling” in front of others while stating “What is this, [Complainant’s former male name] or Tamara”?

Lusardi initially spoke with an EEO counselor about these issues in September 2011, and filed a formal complaint of disparate treatment and hostile environment with the agency’s EEO office on March 14, 2012.  A final agency decision was issued on September 5, 2013, concluding that she had failed to show a violation of the applicable ban on sex discrimination.  She appealed this ruling to the EEOC a few weeks later.  She also filed a complaint with the Office of Special Counsel, which is charged with ruling on internal executive branch personnel matters.  That office found that the restroom access denial was improper, in a report that ordered training for Army Department staffers but awarded no remedy to Lusardi.

Reversing the Army Department’s decision, the EEOC found that the disparate treatment in restroom access was a direct violation of the ban on sex discrimination.  Following up on the logical implications of its prior decision, it held that a transgender woman who is presenting as a woman is entitled to be treated by her employer as a woman.  This includes access to women’s facilities, regardless whether the individual has had surgery.  “This case represents well the peril of conditioning access to facilities on any medical procedure,” wrote the Commission.  “Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals or anyone else).  An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.”

The EEOC also rejected the agency’s findings on the harassment claim, concluding that the insults to Lusardi were intentional, and ordered the agency to take concrete steps to educate its employees and supervisors on their non-discrimination obligations. The EEOC also ordered the agency to undertake a fact-finding investigation to determine compensatory damages for Lusardi in connection with the findings of sex discrimination and hostile environment.

It will be interesting to see whether the federal courts will fall in line with this ruling, which contradicts older court opinions.