transgender rights

  • May 16, 2016

    by Jim Thompson

    Today, the Supreme Court vacated judgments in Zubik v. Burwell, instructing both parties involved to go back to the lower courts and make “tweaks in the contraceptive mandate to eliminate any faith-based concerns ‘while still ensuring that the affected women receive contraceptive coverage seamlessly,’” reports Sarah Ferris at The Hill.

    The Obama administration on Friday issued a directive telling every public school district to allow transgender students to use bathrooms that correspond with their gender identity, report Julie Hirschfeld and Matt Apuzzo at The New York Times.

    A federal district judge in Washington, D.C., ruled Thursday that the Obama administration had improperly funded a major subsidy of the Affordable Care Act, dealing a surprise blow to President Obama’s signature legislative achievement, writes Matt Ford in The Atlantic

    P.R. Lockhart at The American Prospect says a new Mississippi law that legalizes discrimination against LGBT individuals on religious grounds “could have sweeping implications well beyond the realm of gay marriage.”

  • May 11, 2016

    Thomas Tobin, a member of the Harvard Law ACS chapter and online editor for the Harvard Law & Policy Review, writes about how Senate obstruction of judicial nominations is threatening the federal judiciary and harming Americans in The News&Observer.

    Harry Bruinius examines the concept of gender identity in The Christian Science Monitor and quotes ACSblog contributor Steve Sanders, who says “the phenomenon of gender identity is still frequently misunderstood—just like the phenomenon of sexual orientation was misunderstood.”

    Fredrick Kunkle in The Washington Post writes about a new Uber drivers’ association in New York and links to a recent ACSblog post by Catherine Fisk.

  • May 10, 2016
    Guest Post

    by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law, and affiliated faculty member in the IU Department of Gender Studies and the Kinsey Institute.  

    Why did the United States sue the governor and various state agencies of North Carolina?

    As an employer, sponsor of public universities, and provider of federally funded public safety programs and services, North Carolina’s state government is obligated to comply with the non-discrimination requirements of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Violence Against Women Act (“VAWA”).  All of these federal civil rights laws prohibit discrimination on the basis of sex. VAWA also prohibits discrimination by federal grant recipients like North Carolina on the basis of gender identity.  

    North Carolina’s recently enacted H.B. 2 requires that multiple-occupancy bathrooms and changing facilities located in North Carolina public agencies “be designated for and only used by individuals … based on their biological sex.”  “Biological sex” is defined as ““[t]he physical condition of being male or female, which is stated on a person’s birth certificate.” 

    On behalf of the United States, the Department of Justice (“DOJ”) alleges that this so-called “bathroom law,” as enforced against transgender persons, is illegal discrimination on the basis of sex.  (Other provisions of H.B. 2, such as its preemption of Charlotte’s city ordinance prohibiting discrimination on the basis of sexual orientation and gender identity, are not at issue in the suit.)

    Why did North Carolina Governor McCrory sue the United States?

    McCrory’s lawsuit asked for a declaratory judgment that North Carolina was not in violation of federal civil rights laws as the DOJ alleges.  Essentially, it was a preemptive strike in the face of warnings by the DOJ.  The legal questions in both suits are essentially the same. 

  • May 9, 2016

    by Jim Thompson

    The Lawyers’ Committee for Civil Rights Under Law on Friday released a report examining Chief Judge Merrick Garland’s record in civil rights cases and urging the Senate to hold a hearing for the Supreme Court nominee. Lydia Wheeler provides commentary on the report in The Hill.

    In The Atlantic, Richard L. Hasen considers whether the Supreme Court will hear a challenge to the 2002 McCain-Feingold Act, a measure that prohibits political parties from raising unlimited funds in the form of soft money.  

    According to an analysis by lawyers at the University of California, Los Angeles Law School, North Carolina could lose as much as $4.8 billion in federal funding if the state does not pull back from implementing its discriminatory law on public bathroom access for transgender individuals, reports Julia Harte at Reuters.   

  • May 5, 2016
    Guest Post

    by Julie Wilensky, Director of the California Office of the Civil Rights Education and Enforcement Center (CREEC) and member, National Employment Lawyers Association (NELA)

    On March 26, the North Carolina General Assembly convened a special legislative session to preempt a local ordinance passed by the city of Charlotte, which had amended its antidiscrimination law to explicitly include protections based on sexual orientation and gender identity. The state legislature introduced and rapidly passed HB 2, North Carolina’s extraordinarily broad “Bathroom Bill,” which Governor Pat McCrory signed into law the same day. The focus of HB 2, and much of the debate and dialogue surrounding it, is about forcing transgender people to use sex-segregated restrooms according to the sex listed on their birth certificate, instead of the restrooms corresponding to their gender identity. HB 2 also prohibits local governments in North Carolina from enacting their own anti-discrimination protections based on sexual orientation and gender identity and from establishing minimum wages other than for the local government’s own employees.

    Advocates have filed suit challenging aspects of HB 2 as violating the U.S. Constitution as well as Title IX, a claim vindicated by the Fourth Circuit’s April 19 decision in G.G. v. Gloucester County School Board. That decision confirms that Title IX, which prohibits sex discrimination in educational programs receiving federal funding, protects the rights of transgender students to use sex-segregated facilities consistent with their gender identity. Quite simply, HB 2 requires North Carolina’s local governments and schools receiving federal funding to discriminate against transgender and gender nonconforming people in violation of federal law.

    HB 2 also takes the extreme step of expressly revoking the right for workers to bring state-law discrimination claims in state court North Carolina Equal Employment Practices Act. For many years, the North Carolina courts have recognized a common law right to file suit for wrongful termination based on the public policy under the Act. Taking this right away is an unprecedented and extreme step. While HB 2 states that North Carolina’s Human Relations Commission will have the authority to “investigate and conciliate charges of discrimination,” state officials have not provided guidance on how this will be implemented, and this is no substitute for a worker being able to file a lawsuit in state court.