[Occupymendocino] Supreme Court will deliver election-year rulings

[Richard Karch]

Washington Post  April 23, 2019
Robert Barnes
Speak out about this at our May Day Rally.  Bainbridge Park, 1 pm

spring poster here:  https://mendocino.craigslist.org/eve/d/caspar-may-day-in-fort-bragg/6872925257.html <https://mendocino.craigslist.org/eve/d/caspar-may-day-in-fort-bragg/6872925257.html>



https://www.washingtonpost.com/politics/courts_law/supreme-court-to-decide-if-anti-discrimination-employment-laws-protect-on-basis-of-sexual-orientation-and-gender-identity/2019/04/22/175fca02-6503-11e9-a1b6-b29b90efa879_story.html?utm_term=.6dd4e7adf78d <https://www.washingtonpost.com/politics/courts_law/supreme-court-to-decide-if-anti-discrimination-employment-laws-protect-on-basis-of-sexual-orientation-and-gender-identity/2019/04/22/175fca02-6503-11e9-a1b6-b29b90efa879_story.html?utm_term=.6dd4e7adf78d>


April 22 at 9:02 PM
The Supreme Court will deliver election-year rulings on one of the nation’s most consequential and unsettled civil rights issues: whether federal anti-discrimination laws prevent employers from firing workers because of their sexual orientation and gender identity.

The justices announced Monday that they accepted three cases involving gay and transgender employees for the term that will begin in October. The issue has percolated for years in lower courts, and the justices spent months deciding whether now was the time to review those rulings.

It’s sure to be one of the new docket’s most controversial topics, raising the profiles of the Supreme Court and gay rights as Democrats challenge President Trump for the White House.

The cases involve a transgender funeral home director who won her case after being terminated; a gay skydiving instructor who successfully challenged his firing; and a social worker who was unable to convince a court that he was unlawfully dismissed because of his sexual orientation.

[Supreme Court maintains its low-key term, while signaling an appetite for future controversies <https://www.washingtonpost.com/politics/courts_law/supreme-court-maintains-its-low-key-term-while-signaling-an-appetite-for-future-controversies/2019/01/22/35f82aea-1e6d-11e9-8e21-59a09ff1e2a1_story.html?utm_term=.02d2beb7bf23>]

All share a common question: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.

They will be the Supreme Court’s first major gay rights cases without Justice Anthony M. Kennedy, who was the deciding vote and wrote the majority opinions in all of the landmark victories for gay rights, including the right to marriage <https://www.washingtonpost.com/politics/gay-marriage-and-other-major-rulings-at-the-supreme-court/2015/06/25/ef75a120-1b6d-11e5-bd7f-4611a60dd8e5_story.html?utm_term=.5cc2fdf1224b> in 2015’s Obergefell v. Hodges.

Kennedy’s replacement is Justice Brett M. Kavanaugh, a Trump nominee who, generally, is thought to be more conservative than Kennedy but whose judicial record on gay rights is undeveloped.

The Trump administration is likely to side with employers in the case, having previously disagreed with the Obama administration’s position that the law prohibits discrimination against gay and transgender workers.

Trump officials have reversed guidance to public school systems <https://www.washingtonpost.com/local/education/trump-administration-rolls-back-protections-for-transgender-students/2017/02/22/550a83b4-f913-11e6-bf01-d47f8cf9b643_story.html?utm_term=.b06831aa14ca> that they must accommodate transgender students regarding which restrooms they may use. Similarly, Trump has restricted military service by transgender women and men, a barrier the Pentagon had lifted <https://www.washingtonpost.com/news/checkpoint/wp/2017/07/26/the-pentagons-persistent-resistance-to-transgender-people-in-the-military/?utm_term=.57c27e21c6f7> at President Barack Obama’s direction.

[Trump administration rolls back protections for transgender students <https://www.washingtonpost.com/local/education/trump-administration-rolls-back-protections-for-transgender-students/2017/02/22/550a83b4-f913-11e6-bf01-d47f8cf9b643_story.html?utm_term=.b06831aa14ca>]

LBGT advocates say polls show Americans are surprised to learn that employment protection is not among the rights won by gay and transgender Americans, especially after the victory on same-sex marriage.

But only 22 states and the District of Columbia have laws expressly providing protection, according to the American Civil Liberties Union. About half of gay Americans live in those states, the organization said.

Opponents of court-mandated protections said such decisions should be made by elected officials and that Congress did not have transgender and gay Americans in mind decades ago when it prohibited discrimination on the basis of sex.

But the Equal Employment Opportunity Commission and some appeals courts have said the protection in the law is broad.

For instance, the U.S. Court of Appeals for the 6th Circuit said it was “analytically impossible” not to take into account a person’s sex when deciding whether to fire him or her for being transgender.

“Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court ruled <http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0045p-06.pdf>.

Overturning such rulings “would be disastrous, relegating LGBTQ people around the country to a second-class citizen status,” said James Esseks, director of the ACLU’s LGBT and HIV Project. “The LGBTQ community has fought too long and too hard to go back now, and we are counting on the justices not to reverse that hard-won progress.”

The 6th Circuit was considering the case of Aimee Stephens, who had worked for R.G. and G.R. Harris Funeral Homes for six years as Anthony Stephens. “At the end of my vacation on August 26, 2013, I will return to work as my true self, Amiee [sic] Australia Stephens, in appropriate business attire,” Stephens wrote to co-workers.

But two weeks later, the company’s owner, Thomas Rost, fired Stephens. Rost acknowledged firing Stephens “because he was no longer going to represent himself as a man. He wanted to dress as a woman.”

Alliance Defending Freedom, a conservative legal group, is defending Rost.

“Neither government agencies nor the courts have authority to rewrite federal law by replacing ‘sex’ with ‘gender identity’ — a change with widespread consequences for everyone,” senior counsel John Bursch said in a statement.

“Businesses have the right to rely on what the law is — not what government agencies want it to be — when they create and enforce employment policies. The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves,” Bursch said.

Stephens’s lawyers noted that the 6th Circuit had an alternative reason for ruling for their client: a 1989 Supreme Court decision that said it was illegal to discriminate against workers because they did not conform to gender stereotypes.

The court accepted two cases involving sexual orientation, which will be argued together.

[Employers can’t discriminate based on sexual orientation, court says, dealing loss to Trump administration <https://www.washingtonpost.com/world/national-security/employers-cant-discriminate-based-on-sexual-orientation-court-says-dealing-loss-to-trump-administration/2018/02/26/3e708d4e-1b25-11e8-9de1-147dd2df3829_story.html?utm_term=.8ff132027925>]

One involved Donald Zarda, a gay skydiving instructor. Zarda jokingly told a woman who was going to be strapped to him for a dive not to worry because he was gay. But she and her boyfriend later complained that Zarda had touched her inappropriately. The company, Altitude Express, dismissed him, and Zarda sued.

Zarda died in a 2014 base-jumping accident, and his case was pursued by his sister and a former partner. There were questions about whether the now-dissolved company for which he worked could be held liable.

The U.S. Court of Appeals for the 2nd Circuit did rule, though, that the anti-discrimination law protected Zarda.

“Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” it ruled last year.

“I couldn’t believe you could be fired for being gay,” Melissa Zarda, Donald Zarda’s sister, said in a telephone conference call. “I thought this has to be against the law, and it is against the law.”

The U.S. Court of Appeals for the 11th Circuit in 2018 ruled the other way, in a short order based on circuit precedent. It ruled against Gerald Lynn Bostock, who said he was fired from his job as a social worker after his employers discovered that he was gay. Officials in Clayton County, Ga., said that Bostock’s firing had nothing to do with his sexual orientation.

The cases are Bostock v. Clayton County, Ga.; Altitude Express Inc. v. Zarda, and R.G. and G.R. Harris Funeral Homes Inc. v. EEOCm: It’s surreal knocking on the Supreme Court’s door


The departments wrote that the Trump administration wants to “further and more completely consier the legal issues involved,” and said that there must be “due regard for the primary role of the States and local school districts in establishing educational policy.” Although it offered no clarity or direction to schools that have transgender students, the letter added that “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

Attorney General Jeff Sessions said in a statement that his department “has a duty to enforce the law” and criticized the Obama administration’s guidance as lacking sufficient legal basis. Sessions wrote that the Department of Justice remains committed to the “proper interpretation” of the anti-discrimination law known as Title IX but said deference should be given to lawmakers and localities.

“Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue,” Sessions said.

Education Secretary Betsy DeVos echoed that sentiment, saying that this is an issue “best solved at the state and local level. Schools, communities, and families can find — and in many cases have found — solutions that protect all students.”

DeVos also gave assurances that the department’s Office for Civil Rights “remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools,” and she noted that she considers “protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.”

The decision — delayed in part because DeVos and Sessions hit stalemates regarding timing and specific language — drew immediate condemnation from gay and transgender rights advocates, who accused President Trump of violating past promises to support gay and transgender protections. Advocates said the withdrawal of the federal guidance will create another layer of confusion for schools and will make transgender students, who are already vulnerable, more so.

“Attacking our children . . . is no way to say you support and respect LGBTQ people,” said Mara Keisling, executive director of the National Center for Transgender Equality.


Protesters gather at White House after Trump revokes guidelines on transgender bathrooms (Reuters)
Others said the practical effect on the nation’s schools would be muted, in part because a federal judge already had blocked the Obama guidance in response to a lawsuit from 13 states that argued it violated states’ rights. And it is possible the U.S. Supreme Court could settle the matter soon, as it plans to consider a Virginia case involving a transgender teenager who was barred from using the boys’ bathroom at his high school.

[Gavin Grimm just wanted to use the bathroom. He didn’t think the nation would debate it. <https://www.washingtonpost.com/local/education/gavin-grimm-just-wanted-to-use-the-bathroom-he-didnt-think-the-nation-would-debate-it/2016/08/30/23fc9892-6a26-11e6-ba32-5a4bf5aad4fa_story.html?utm_term=.a006737139fd>]

The Trump administration’s move drew cheers from social conservatives who oppose the idea that a student can identify as a gender that differs from their anatomy at birth.

Vicki Wilson, the mother of a child at Fremd High School in Palatine, Ill., said she sympathizes with children who have “difficult personal issues” to deal with, but thinks that “young men shouldn’t be permitted to deal with those issues in an intimate setting like a locker room with young women.”

School district officials in Palatine, bowing to federal pressure, allowed a transgender girl to change in the girls’ locker room at her school. “No school should impose a policy like this against the will of so many parents,” Wilson said during a news conference organized by the Alliance Defending Freedom, a Christian legal organization.

[Illinois group sues Obama administration over transgender students’ bathroom access <https://www.washingtonpost.com/local/education/ill-group-sues-obama-administration-over-transgender-students-bathroom-access/2016/05/04/5c57ad12-1206-11e6-93ae-50921721165d_story.html?utm_term=.6b2faf58cac6>]

The administration’s letter was the source of some disagreement between the two issuing departments, with Sessions eager to rescind the Obama administration’s guidance as court proceedings in related cases approached, and DeVos keen to leave it in place. Unlike Arne Duncan, Obama’s education secretary for seven years, DeVos does not have a close personal relationship with the president she serves; she also lacks the experience and political capital Sessions garnered as a Republican senator.

Sessions is widely known to oppose expanding gay and transgender rights, and DeVos’s friends say she personally supports those rights. The new letter is sure to ignite another firestorm for DeVos, who is fresh off her contentious nomination fight and has drawn protests from parents and teachers who believe she is unqualified for the job.

The letter also puts Trump squarely in the middle of the civil rights debate: Despite a flurry of activity in the early weeks of his presidency, Trump had not previously waded into the issue of gay and transgender rights.

[Trump: Rescind Obama’s transgender directives, but ‘protect everybody’ <https://www.washingtonpost.com/news/post-politics/wp/2016/05/16/trump-rescind-obamas-transgender-directives-but-protect-everybody/?tid=a_inl&utm_term=.1684c7b39945>]

Trump declined to sign an executive order last month that would have dramatically expanded the rights of people, businesses and organizations of faith to opt out of laws or activities that violate their religion, such as same-sex wedding ceremonies. Many took it as a sign that he would take a more liberal approach on gay issues than his Republican cohorts.

But in an interview with The Washington Post last year, then-candidate Donald Trump had indicated he would rescind the guidance based on the belief that it was a matter best left up to the states.

In the daily news briefing Wednesday, White House spokesman Sean Spicer played down the reports of disagreement within the administration — saying the debate came down to timing and some specific wording — and reiterated the states’ rights argument.

“The president’s made it clear throughout the campaign that he’s a firm believer in states’ rights,” Spicer said.

The Obama administration’s guidance was based on the position that barring students from bathrooms that match their gender identities is a violation of Title IX because it amounts to sex discrimination.

Many advocates contend the guidance merely formalized what courts have increasingly recognized: That discrimination against gay and transgender people is a form of sex discrimination because it is rooted in stereotypes about men and women. As a result, they believe transgender people already have the right under Title IX to use their preferred bathroom.

The new letter scrambles the calculus for a number of lawsuits working their way through the courts, particularly the case of Gavin Grimm, a transgender Virginia teen who sued his school board for barring him from the boys’ restroom. The case is scheduled for oral arguments before the U.S. Supreme Court next month. A lower court cited the Obama administration’s position on transgender student rights in siding with Grimm.

Grimm said he was disheartened that the Trump administration is withdrawing the guidance. The Gloucester, Va., school board continued to bar him from the boys’ bathroom even after the Obama guidance was issued, but Grimm said the directive was “incredibly empowering.”

“It certainly bolstered hope that the future for transgender students was looking up in a way that it hadn’t been previously,” Grimm said.

Amber Briggle, the mother of a 9-year-old transgender boy in Denton, Tex., said she views the Trump administration’s position as a temporary setback and hopes that the Supreme Court will affirm transgender students’ rights. But the withdrawal of the Obama directive is a blow, she said, because the guidance made her feel that Washington cared about children like hers and understood the support they need.

“I just don’t think my family matters to the Trump administration,” she said.

Catherine Lhamon, who headed the Obama Education Department’s Office for Civil Rights, said in a sworn declaration that the administration developed the guidance after receiving discrimination complaints from parents of transgender children and questions from teachers and administrators who were having to develop policies with regard to their transgender students.

In 2011, the Education Department received two complaints of discrimination against transgender students in schools. By 2016, that number had leapt to 84, according to the declaration filed in federal court.

In a kindergarten class where students line up by gender to go to the bathroom, “a student has to decide which line to get into, and the teacher has to decide which line to accept that student into, and both of them have to field questions from other students in the class,” Lhamon said in an interview. “Any of those choices raises potential for discrimination and potential for harm that all of the students and teachers in a school have to navigate. It’s not an abstraction for the people who live it every day.”

Lhamon said the withdrawal of the guidance and the notion that the federal government needs more time to consider the issue of transgender accommodations creates chaos in schools and sends a damaging message to children.

Without federal guidance, schools are likely to look to their state governments for clarity, said Francisco Negron Jr., chief counsel for the National School Boards Association.

That could open up battles across the country similar to one last year in North Carolina, when the legislature voted to require people in public buildings to use the restrooms that correspond with the sex listed on their birth certificates.

Fifteen states have explicit protections for transgender students, according to the Human Rights Campaign, a gay rights group; lawmakers in several other states are working to restrict bathroom access for transgender students. The American Civil Liberties Union, which tracks the legislation, said legislators in 14 states filed 20 bills that could lead to restroom restrictions for transgender people, with some proposing that states penalize schools that violate those restrictions. So far, five of those bills have failed.

Many school districts held off on writing restroom policies as they waited for the outcome of the Grimm case. Among them was Fairfax County, Va., one of the largest districts in the nation, which was preparing to draft regulations on restroom access for transgender students to reflect its nondiscrimination policy.

Elizabeth Schultz, a Fairfax County School Board member who opposes expanding the protections, said she hopes the new Trump administration action will lead the district to abandon its efforts.

If the threat of revoking federal funds “is no longer wielded against our local authority, there’s no precipitating reason to continue,” she said.


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