LGBT issues

  • July 1, 2016
    Guest Post

    by Caroline Mala Corbin, Professor of Law, University of Miami School of Law

    The United States has made tremendous progress on LGBTQ rights. We are, after all, celebrating the one-year anniversary of Obergefell v. Hodges and marriage equality. White House executive orders and EEOC guidelines have also expanded anti-discrimination protections. At the same time, there is still much that needs to be done.  Congress has not amended civil rights law to bar LGBTQ discrimination in employment, education, housing, or public accommodations. Even when such protection exists, individual, organizations and businesses have claimed they have a religious right to discriminate against the LGBTQ community. In particular, the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. expanded the Religious Freedom Restoration Act (RFRA), raising concerns about RFRA’s use as a means to discriminate in the name of religious freedom.

    Hobby Lobby was a challenge to the Affordable Care Act requirement that large employers include FDA-approved contraception in their health care plans. Hobby Lobby Stores, Inc., a billion-dollar chain of arts and crafts stores with thousands of employees, argued that it was religiously opposed to certain forms of contraception and that consequently this contraception benefit violated its RFRA rights. Under RFRA, “persons” are entitled to exemptions from federal laws that impose a substantial burden on their religious conscience unless the challenged law passes strict scrutiny. A law passes strict scrutiny if it advances a compelling state goal in a narrowly tailored way. While RFRA itself applies to federal law, many states have counterparts that apply to state law.

  • April 22, 2016
    Guest Post

    by Lauren A. Khouri, Associate Attorney at Correia & Puth, PLLC, where she dedicates her practice to the civil rights of employees and students in the workplace and in school

    Earlier this week, the U.S. Court of Appeals for the Fourth Circuit held that a Virginia school board’s policy barring a transgender boy from using the boy’s restrooms at his school violates Title IX’s ban on discrimination on the basis of sex. The decision overturned the lower court’s dismissal of the student’s Title IX claim and makes clear that trans students who are barred from using the right restroom are protected by Title IX. The school’s policy of allowing the student to use the boy’s bathroom was in place for seven weeks without incident prior to being overturned by the local school board. The Fourth Circuit’s decision against the school board has major implications for the transgender population, not just under Title IX but also for other statutes protecting against sex discrimination in the workplace and public accommodations.

    Title IX of the Education Amendments of 1972 prohibits sex-based discrimination and retaliation in education. Title IX applies to education programs or activities that receive federal financial assistance, and protects students and school employees at educational institutions at all levels, from kindergarten through postgraduate schools. Increasingly, courts and federal agencies have determined that the protections of Title IX extend beyond traditional understandings of sex discrimination and sex stereotyping to include discrimination based on an individual’s transgender status. This decision by the Fourth Circuit marks the first federal appeals court to hold that transgender people are protected under federal law from discrimination in education.

    In G.G. v. Gloucester County School Board, the majority opinion written by Judge Henry Floyd held that the U.S. Department of Education’s interpretation of its own regulations is entitled to deference. The Department of Education interpretation concluded that when schools separate students on the basis of gender, generally schools must treat transgender students consistent with their gender identity. The lower court had dismissed G.G.’s claims, finding that the Department of Education’s interpretation was entitled to no deference and Title IX did not protect against gender identity discrimination.

  • February 9, 2016
    Video Interview

    by Nanya Springer

    Last June in Obergefell v. Hodges, the U.S. Supreme Court issued a landmark ruling granting marriage equality to LGBT couples nationwide. Last week, the named plaintiff in the case, Jim Obergefell, spoke to the Indiana University Maurer School of Law Student Chapter about his status as a civil rights icon and how he unwittingly became the modern face of the fight for LGBT rights.

    Obergefell, before a packed auditorium, recounted the events that spurred him to file a federal lawsuit to force the state of Ohio to recognize his marriage to his ailing longtime partner John Arthur. The couple had decided to marry after the U.S. Supreme Court ruled in United States v. Windsor that the federal government must recognize same-sex marriages performed in states where such unions were legal. Obergefell told the audience he proposed to Arthur because “that was the first time in our almost 21 years together that suddenly at least one level of our government would say, ‘You exist. We acknowledge you. Your relationship matters.’” The couple famously flew to BWI Thurgood Marshall Airport in Maryland, where same-sex marriage was already legal, and tied the knot on the tarmac in a brief ceremony before immediately flying back to Ohio.

    When asked by moderator Steve Sanders, co-counsel on a brief in favor of the Obergefell plaintiffs, whether he foresaw a legal battle for recognition of the marriage in his home state, Obergefell replied, “When we decided to marry, we made that decision solely to get married. We had no plans to do anything else. We simply wanted to live out John’s remaining days as husband and husband.” As the case gained national attention, however, Obergefell realized the case was “a lot bigger than just us.” Nevertheless, following Arthur’s death mere months after their marriage, Obergefell quit his job and spent a year traveling and “running away from life” before reengaging in the movement for LGBT equality.

    Consistently humble, Obergefell expressed some guilt about his designation as the lead plaintiff, which was due to the low number of his federal case, and his resulting celebrity. “I felt guilty. I really did, because it isn’t just me. It’s my name and my face that’s out there so much, but I’m not the only one. . . . There are thirty-some plaintiffs in our case,” he said. After the blockbuster decision, though, his attention was refocused on the gravity of the plaintiffs’ achievement. “Wow. We really do matter,” he remembered thinking. He added, “I have the utmost respect for [the legal] profession and the court system.”

    Watch the full conversation below.

  • September 4, 2015

    by Nanya Springer

    On The Huffington Post BlogJudith E. Schaeffer of the Constitutional Accountability Center weighs in on the controversy in Rowan County, Kentucky, arguing that obtaining a marriage license should be hassle-free for everyone.

    In a press release, Demos announced that the U.S. Court of Appeals for the Ninth Circuit on Thursday reinstated a case challenging Nevada’s failure to provide voter registration services to its low-income citizens. The decision comes after the case was thrown out by the U.S. District Court for the District of Nevada.

    Sam Ross-Brown and Amanda Teuscher report in The American Prospect that the Department of Labor’s new rules allowing workers at higher income levels to qualify for overtime pay will not only result in an effective raise for millions of people, but will also give workers more control over their work hours and personal lives.

    The Center for Reproductive Rights announced in a press release yesterday that it has petitioned the U.S. Supreme Court for review of a decision by the U.S. Court of Appeals for the Fifth Circuit. In June, the Fifth Circuit upheld onerous restrictions on abortion clinic access in Texas which, if allowed to stand, would close more than 75 percent of clinics in the state.

  • August 20, 2015
    Guest Post

    by Michael Vargas, Associate, Rimon, PC. Vargas is programming co-chair of the Bay Area Lawyer Chapter.

    When President Obama nominated then-Georgetown law professor Chai Feldblum for a seat on the Equal Employment Opportunity Commission (EEOC) in 2009, it was clear that the former counsel to the Employment Non-Discrimination Act (ENDA) was going to shake up the Commission. As the first openly LGBT person to sit on the Commission, she did not disappoint. In 2012, the Commission announced its unanimous decision in Macy v. Holder (ATF), holding that discrimination against transgender employees was sex discrimination and actionable under Title VII. On July 16, 2015, the Commission issued an even more revolutionary decision in Complainant v. Foxx (FAA), holding that discrimination on the basis of sexual orientation is also sex discrimination and, therefore, must also be actionable under Title VII.

    In the EEOC’s decision, an unnamed complainant filed a complaint alleging that his supervisor would say things like “we don’t need to hear about that gay stuff” whenever the claimant would talk about his partner, and that he was subsequently denied a promotion. In dismissing the case, the FAA treated the complainant’s sexual orientation claim as separate from his sex discrimination claim and therefore not appealable to the EEOC.

    The EEOC summarily reversed the FAA, holding that sexual orientation was “inherently a sex-based consideration” and therefore was “necessarily an allegation of sex discrimination under Title VII.” The EEOC rested their decision on three different theories:

    First, the EEOC argued that sexual orientation necessarily involves treating employees differently because of their sex. To illustrate, the Commission gave the example of a male employee who is fired for having a picture of his husband on his desk when female employees with pictures of their husbands on their desks are not. This, the Commission declared, would be a classic case of sex discrimination.

    Second, the Commission found that sexual orientation discrimination was essentially associational discrimination, which is already recognized in the race discrimination context. If a person cannot be discriminated against because of the race of their spouse, then so too should they be protected from discrimination because of the gender of their spouse.

    Finally, the Commission recognized that discrimination against gays and lesbians is tinged with sex stereotypes, or expectations about what men or women should or should not do, which is yet another form of prohibited sex discrimination.