LGBT issues

  • July 31, 2017

    by Caroline Fredrickson

    First came schools, next came the military.  Four months after the U.S. Department of Education withdrew guidance aimed at protecting transgender students’ rights to use the bathrooms of their choice, President Trump this week tweeted a surprise announcement that banned transgender people from serving in the military.

  • May 3, 2017
    Guest Post

    *This piece originally appeared on Lambda Legal’s blog.

    by Eric Lesh, Fair Courts Project Director, Lambda Legal

    Yesterday, Lambda Legal filed a friend-of-the-court brief with the Oregon Supreme Court arguing that it was unlawful for Judge Vance D. Day to devise a scheme to avoid marrying same-sex couples.

    Judge Day directed court staff to use the court record system to investigate whether couples wishing to marry were of the same sex and, if so, to represent that he was unavailable, rather than unwilling, to marry them.

    “A judge puts on a robe—not a clerical collar—and has a duty to administer the law impartially,” said Peter Renn, senior attorney for Lambda Legal. “No public servant, whether a judge or county clerk, has the right to ‘screen out’ same-sex couples seeking to marry from access to government services on the basis of personal religious beliefs. Everyone who comes before a judge is entitled to receive fair and impartial treatment.”

    “As public servants, judges are required to serve all people, including same-sex couples, without bias or prejudice. When they break that promise, the public loses trust in the courts,” said Eric Lesh, director of Lambda Legal’s Fair Courts Project. “LGBT people and other marginalized communities depend on the courts for justice when they encounter discrimination. But how can they believe they’ll get a fair shake when judges go rogue and themselves engage in discrimination—and defend their right to do so?”

  • April 7, 2017
    Guest Post

    by Katie Eyer, Associate Professor, Rutgers Law School             

    Since the 1970s, gay and lesbian plaintiffs have raised the argument that discrimination on the basis of sexual orientation is, inherently and necessarily, sex discrimination under Title VII. Such arguments have long had strong doctrinal support. As early as 1978, the Supreme Court made clear that "treatment of a person in a manner which, but for that person's sex, would be different" is discriminatory and prohibited under Title VII. This standard is satisfied in each and every case of sexual orientation discrimination—since by definition in a sexual orientation discrimination case sex-based disparate treatment has occurred (a woman who is fired for marrying a woman would not have been fired for the same conduct had she been a man). Other arguments founded in well-established anti-discrimination doctrine, such as associational discrimination and gender stereotyping, have also been put forward.

    And yet even after the Supreme Court’s decision in Price Waterhouse v. Hopkins—recognizing the doctrine of gender stereotyping, and holding categorically that an employer “may not take gender into account”—most courts have continued to reject the notion that sexual orientation discrimination could be considered a form of sex discrimination. Thus, while most courts did allow gay plaintiffs to bring narrower sex discrimination claims—focused on discrimination targeting deviations from gender-stereotypical appearance or mannerisms—every Court of Appeals until this week had held that sexual orientation itself was not categorically protected under Title VII.

    On Tuesday, breaking from this history, the Seventh Circuit, sitting en banc, took a fresh look at the doctrine and concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

    Thus, the Court observed inter alia:

    “Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her… This describes paradigmatic sex discrimination.

  • April 7, 2017
    Guest Post

    by Steve Sanders, Associate Professor of Law, Maurer School of Law, and affiliated faculty in political science, Indiana University Bloomington

    Going back at least to 1977, majorities of Americans have agreed that gays and lesbians “should … have equal rights in terms of job opportunities.”  The number hit 89 percent in 2004. Gallup apparently stopped asking the question in 2008, perhaps because the social consensus was so overwhelming that there was nothing useful to be learned from further polling.

    If American government operated the way civics books tell us it does, Congress, acting on such an overwhelming public preference, would long ago have enacted federal legislation outlawing employment discrimination against gays and lesbians. 

    But Congress does not work this way. Constituent preferences do not always get translated into policy. For example, Congress has shown a longstanding and “persistent bias against constituent will on LGB rights,” and “Republicans consistently oppose” such rights “regardless of constituent preferences.” Legislators also know most people don’t pay much attention (except in the most extraordinary situations, such as Ryan/Trumpcare) to what Congress does or does not do. And as Ilya Somin has been documenting for years, too many Americans are ignorant about politics and public affairs. 

    Moreover, Congress is broken. Partisan gerrymandering subverts principles of fair representation. And the current Republican majority is an “insurgent outlier” that is incapable of governing

  • April 4, 2017
    Guest Post

    by Katie Eyer, Associate Professor of Law at Rutgers Law School

    *Professor Eyer was a panelist on our March 23 event, Trans Rights in the Trump Era

    On March 30, under the pressure of significant economic boycotts, the North Carolina legislature purported to repeal its so-called bathroom bill, HB 2. Enacted in 2016, HB2 responded to a local ordinance that had adopted LGBT-inclusive anti-discrimination protections by preempting (i.e., invalidating) all such local ordinances. Most famously, HB2 went further in specifically mandating that state facilities exclude transgender people from gender identity appropriate restroom access.

    While framed as a repeal, the legislation enacted last week did not simply restore the status quo. Rather, HB 142 replaced HB2 with a moratorium on new or amended local anti-discrimination laws and legislatively preempted local or executive regulation of access to multiple occupancy restrooms, showers and changing facilities. 

    Absent knowledge of its background, HB 142 could be taken for a compromise, and that is how North Carolina’s Democratic governor and some progressive legislators, have defended their acquiescence in its enactment. But for those familiar with the history of HB2 and of LGBT equality struggles, HB 142 is a transparent attempt to suspend the mechanisms of progress for LGBT equality in the state. Just as limited state-level marriage equality victories helped to pave the way for broader marriage equality gains, incremental, local level enactment of LGBT equality has been one of the lynchpins of LGBT success in the employment, education and public accommodations realms. There can be no doubt that HB 142 is an attempt to forestall this highly effective strategy by precluding localities from demonstrating—on an incremental, locality by locality basis—that LGBT equality works (and conversely, that the claims of LGBT rights opponents lack any basis in reality).