LGBT issues

  • 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).

  • March 6, 2017
    Guest Post

    by Yuvraj Joshi, Fair Courts Project Fellow at Lambda Legal

    The Supreme Court announced on Monday that it would no longer hear a case brought by Gavin Grimm, a transgender high school student whose school has refused to let him use the boys’ bathroom.

    Gavin’s fight is not over, only taking a legal detour. The Supreme Court has sent the case back to the Fourth Circuit for further review in light of the new guidance from the Trump administration, which rescinded the Obama administration’s guidance that federal laws require schools to allow transgender students to use bathrooms that match their gender identities.

    Should Gavin Grimm, or any of the other transgender students with cases pending on this issue, wind up in the nation’s highest court, they could face a man who has already ruled twice against transgender rights: Neil Gorsuch, Trump’s nominee to the Supreme Court.

    Judge Gorsuch’s most recent rejection of transgender rights came in 2015, by which time several federal courts had already issued decisions supporting coverage for discrimination against transgender individuals as sex discrimination.

    Judge Gorsuch joined an opinion of the Tenth Circuit rejecting arguments made by Jeanne Marie Druley, a transgender woman who was incarcerated, that the Oklahoma Department of Corrections had violated her constitutional rights by denying her medically necessary hormone treatment and her request to wear feminine clothing. The Tenth Circuit opinion Judge Gorsuch joined stated:

    “To date, this court has not held that a transsexual plaintiff is a member of a protected suspect class for purposes of Equal Protection claims. . . . Ms. Druley did not allege any facts suggesting the ODOC defendants' decisions concerning her clothing or housing do not bear a rational relation to a legitimate state purpose. Thus, she has not demonstrated a likelihood of success on her Equal Protection claims.”

  • March 6, 2017
    BookTalk
    Sex and the Constitution
    Sex, Religion, and Law from America's Origins to the Twenty-First Century
    By: 
    Geoffrey Stone
    by Geoffrey Stone, ACS Board of Advisors Member and Edward H. Levi Distinguished Service Professor at the University of Chicago Law School
     
    My new book, Sex and the Constitution, will officially be released on March 21, but is now available for pre-order on Amazon at a discount. I have worked on this book, on-and-off, for roughly a decade. My goal was to explore the history of sex, religion, law and constitutional law from the ancient world to the 21st century. It was probably a crazy goal, which is no doubt at least partly why it took so long to complete. Now that it is complete, though, I have to admit that I am quite pleased with the result, and the early reviews have been glowing, including from such folks as Lawrence Tribe, Linda Greenhouse, Cass Sunstein, Erwin Chemerinsky, David Cole and George Chauncey.
     
    I have been invited to write this ACS BookTalk in order to inform readers about the work and, hopefully, to entice your curiosity. Rather than writing something “new” for this purpose, I decided that the best way to accomplish the goal is simply to set forth below the opening paragraphs of the Prologue. Hopefully, that will give you a sense of what this work is all about.
     
    We are in the midst of a constitutional revolution. It is a revolution that tests the most fundamental values of the American people and that has shaken constitutional law to its roots. It has bitterly divided citizens, politicians and judges. It is a battle that has dominated politics, inflamed religious passions and challenged Americans to rethink and reexamine their positions on issues they once thought settled. It is a story that has never before been told in its full sweep. And, best of all, it is about sex.