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On LGBT Job Discrimination, The Courts Are Finally Correcting Congress

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Courts May Finally Prohibit Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity

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The difficulty in passing a national bill protecting LGBT workers from employment discrimination highlights the dysfunction of American government. Despite the fact that a large majority of Americans supports such legislation, Republicans have steadfastly blocked proposed nondiscrimination laws through a variety of tactical maneuvers or poison pill amendments. However, the courts may finally do what Congress has been unwilling to do.

Currently, LGBT people are partially protected from employment discrimination by a patchwork of state and local laws, executive orders, and court rulings.

Although there is no federal law explicitly addressing employment discrimination based on sexual orientation and gender identity, executive orders–the first of which was issued in 1995 by President Bill Clinton–prohibit discrimination on the basis of sexual orientation and gender identity in federal employment and–thanks to President Obama–by government contractors.

While most “blue states” have passed nondiscrimination laws that cover sexual orientation and gender identity, most “red states” provide no state-wide protection for LGBT employees, though cities in many of them provide limited protection.

Courts have generally ruled on equal protection grounds that public employees are protected from discrimination on the basis of sexual orientation and gender identity, but have been reluctant to extend such protection to employees in the private sector absent state statutes or municipal ordinances.

While most large businesses have voluntarily adopted nondiscrimination policies that cover sexual orientation and gender identity, most small businesses in red states have not.

However, recent interpretations of Title VII of the Civil Rights Act of 1964 by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal laws that make it illegal to discriminate against employees and job applicants, provide hope that LGBT individuals will soon enjoy protection against discrimination even in red states and even by private employers.

The EEOC has determined that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. The determination is binding on all federal agencies and departments and governs EEOC enforcement and litigation activities throughout the country. Although courts are not bound by the EEOC’s interpretations, they often give deference to them.

The EEOC has recently announced that sexual orientation and gender identity is now a strategic enforcement priority for the agency. They are expected to mount an aggressive program of litigation on behalf of LGBT people who have experienced employment discrimination.

Gender Identity As a Protected Classification

Recent court rulings, at both the district and appellate levels, have affirmed that transgender people are protected from discrimination in employment.

For example, on December 6, 2011, the Eleventh Circuit Court of Appeals in Glenn v. Brumby upheld a lower court ruling that the Georgia General Assembly discriminated against Vandy Beth Glenn, a transgender woman who was fired from her job as Legislative Editor after she told her supervisor that she planned to transition from male to female.

In a forceful opinion authored by Judge Rosemary Barkett for a unanimous three-judge panel, which included one of the most conservative judges on the federal bench, Judge William Pryor, the Court declared, “An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. . . . A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”

The decision stated unequivocally: “We conclude that a government agent violates the Equal Protection Clause’s prohibition on sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”

The victory was the first ruling on transgender rights from the Eleventh Circuit, considered one of the most conservative circuits. The ruling brought the Eleventh Circuit in line with other circuits in applying to transgender individuals the U.S. Supreme Court ruling in Price Waterhouse v. Hopkins (1989) that said that gender non-conformity is included in the Civil Rights Act’s prohibition of discrimination on the basis of sex.

The plaintiff in the case, Vandy Beth Glenn, worked for two years in the Georgia General Assembly’s Office of Legislative Counsel as an editor and proofreader. In 2007, Glenn informed her immediate supervisor, Beth Yinger, that she planned to transition from male to female, and showed Yinger photographs of herself in professional female attire. Yinger passed the information on to her boss, the General Assembly’s Legislative Counsel, Sewell Brumby, who promptly fired her.

A 2012 ruling by the EEOC itself also held that gender identity discrimination is prohibited by Title VII of the Civil Rights Act of 1964. The decision was issued in Macy v. Holder, a case in which Mia Macy, a transgender woman who was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after she revealed her intention to transition from male to female, claimed that she suffered discrimination because of her gender identity.

Issued without dissent by the five-member, bipartisan Commission, the decision states unambiguously “that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”

“When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim. This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”

Masen Davis, then head of the Transgender Law Center (TLC), which brought the case on behalf of Mia Macy, described the decision as a “big leap forward,” because now “transgender people who feel they have faced employment discrimination can go into any of [the Commission’s] 53 offices and the EEOC will consider their claims. What’s more, the EEOC could take action itself to sue the employer for discrimination.”

He added, “Given that transgender people do not have employment protections in the vast majority of states, this creates a whole new fabric of legal support for our community.”

The TLC first pursued Macy’s complaint through the Office of Equal Opportunity of the ATF, which is responsible for considering complaints of discrimination by the agency. When the ATF’s equal opportunity officer denied that Title VII applied to transgender employees, the TLC filed suit, asking the EEOC to clarify the law.

https://www.youtube.com/watch?v=hMp0D4bAnokÂ

Sexual Orientation as a Protected Classification

Although it is now clear that Title VII’s prohibition of sex discrimination covers discrimination on the basis of gender stereotypes and gender identity, it is not yet firmly established that it also covers discrimination on the basis of sexual orientation.

At least two federal lawsuits are currently underway that may clarify the question.

One is Baldwin v. Foxx, a suit in which David Baldwin, a former Federal Aviation Administration employee, alleges that he was denied a promotion and suffered harassment based on his sexual orientation.  Baldwin first filed a complaint with the EEOC in 2012; finally, in July 2015, the EEOC ruled that sexual orientation is indeed covered by Title VII and permitted the lawsuit to go forward. It is currently pending in the U.S. District Court for the Southern District of Florida.

The uncertainty about whether sexual orientation is a protected classification was also recently confronted in an extraordinary ruling in the U.S. Court of Appeals for the Seventh Circuit issued on July 28, 2016 in a case known as Hively v. Ivy Tech. Judge Ilana Rovner, writing for a three-judge panel, called attention to the dilemma the court faced in considering the case of a lesbian, Kimberly Hively, who alleged that she had been discriminated against by Ivy Tech Community College in South Bend, Indiana.

Hively, who worked as a part-time adjunct professor for many years, claimed that she had repeatedly been passed over for full-time employment and promotions because of her sexual orientation. Her claim was dismissed by the district court in response to a motion by Ivy Tech, which claimed that Title VII does not ban discrimination on the basis of sexual orientation, a holding that the Seventh Circuit had made in other cases decided several years ago.

Feeling bound by Seventh Circuit precedent, the appellate panel affirmed the district court’s ruling, but Judge Rovner spent the great bulk of her opinion describing the changing legal landscape for LGBT people. She noted that the EEOC recently declared that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination is necessarily an allegation of sex discrimination under Title VII.”

She also observed that district and appellate courts have handled the question of whether Title VII prohibits sexual orientation discrimination very differently. Some have disallowed any claims where sexual orientation and gender non-conformity are intertwined, while others have tried to tease apart the sexual orientation and gender non-conformity claims and look only at those that appear to address gender-nonconformity, which the Supreme Court has held is protected under Title VII.

“Whether the line is nonexistent or merely exceedingly difficult to find, it is certainly true that the attempt to draw and observe a line between the two types of discrimination results in a jumble of inconsistent precedents,” she wrote.Â

Noting that since the EEOC ruling that sexual orientation discrimination is sex discrimination, many district courts, which she described as the “laboratories on which the Supreme Court relies to work through cutting-edge legal problems,” are beginning “to ask whether the sexual orientation-denying emperor of Title VII has no clothes.”

Judge Rovner also pointed out that the U.S. Supreme Court rulings in Windsor, which struck down the Defense of Marriage Act in 2013, and in Obergefell, which in 2015 mandated that same-sex couples had a constitutional right to marry, created “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.”

She observed that “Discrimination against gay, lesbian, and bisexual employees comes about because their behavior is seen as failing to comply with the quintessential gender stereotype about what men and women ought to do—for example, that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men.” Thus, she implied, following the reasoning of Price Waterhouse, sexual orientation discrimination as well as gender identity discrimination should be prohibited.

She characterized the Seventh Circuit precedents that bound her as leading to “the absurd conclusion . . . that the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals.”

She added: “our [circuit’s] understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up—but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman.”

The law, she concluded, “protects ‘flamboyant’ gay men and ‘butch’ lesbians but not the lesbian or gay employee who act or appear straight.”

The unusual decision, which pointed out the absurdity of the current position in the Seventh Circuit, seemed to be begging for the plaintiff to ask for an en banc hearing to reconsider the case. Outdated precedents within a circuit can be overturned only by a Supreme Court ruling or by an en banc review by all the active judges within the circuit.

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In response, Lambda Legal, representing Kimberly Hively, quickly filed a request for an en banc review, which was promptly granted on October 6, 2016. Oral arguments in the case have been scheduled for November 30.Â

Inasmuch as en banc reviews are rarely granted, and seldom expedited as this case apparently has been, it seems likely that the Seventh Circuit will reverse the finding in favor of Ivy Tech and adopt the position of the EEOC that discrimination on the basis of sexual orientation is forbidden by Title VII of the Civil Rights Act.Â

If the Seventh Circuit does reverse, their decision will probably be appealed to the Supreme Court, which may accept it for review in order to render a final decision as to whether Title VII prohibits discrimination on the basis of sexual orientation.

Ian Milhiser, who has described Hively v. Ivy Tech as “the most important gay rights case since marriage equality was won,” has pointed out that if Hillary Clinton is elected president and appoints a liberal justice to replace the late Justice Antonin Scalia on the Supreme Court, SCOTUS will soon be the most liberal court in history. “That opens up the very real possibility that workplace discrimination on the basis of sexual orientation will be illegal throughout the entire nation.”

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Supreme Court ‘Puppetmaster’ Slammed Over Report He’s Flying Alito’s ‘Theocratic’ Flag Again

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The bombshells over the past few weeks revealing U.S. Supreme Court Justice Samuel Alito flew flags associated with the January 6, 2021 insurrection and Christian nationalism over two of his homes were followed by a report that Leonard Leo, the right-wing legal activist behind Donald Trump’s Supreme Court nominees, also flew one of those flags.

The “Appeal to Heaven” flag has a “close association with both far-right Christian nationalists and the insurrectionists who stormed the Capitol on Jan. 6,” Rolling Stone reported last week, adding it “raises serious questions about Alito’s ability to rule impartially.”

“The conservative court on which Alito sits is largely the product of right-wing dark-money overlord Leonard Leo, and — wouldn’t you know it — Leo flew the same ‘Appeal to Heaven‘ flag outside of his house in Maine,” Rolling Stone also reported.

On social media Rolling Stone noted: “Justice Samuel Alito is under fire for flying the far-right ‘Appeal to Heaven’ flag outside his home. Turns out Supreme Court puppetmaster Leonard Leo has flown it too, according to an image provided to Rolling Stone.”

READ MORE: Pence Defense of Alito’s Insurrectionist Flag Highlights Its Ties to Violent Government Overthrow

Rolling Stone editor Andrew Perez on Memorial Day via social media added: “Some of Leo’s neighbors send pics from his house today — he is back to flying this flag.”

Alex Aronson is the former Chief Counsel, U.S. Senate Judiciary Committee for Senator Sheldon Whitehouse (D-RI) who now serves as Executive Director of the non-profit organization Court Accountability.

“Leo’s decision to re-hoist this theocrat flag is two things at once,” Aronson wrote on Monday. “1) an arrogant Alito-esque display of impunity, and 2) recognition of a strategic misstep in ever removing it, as he and his goons now lean into the gaslighting claim that it’s an innocent revolutionary banner.”

READ MORE: ‘You Just Don’t Do It’: Federal Judge Denounces Alito’s Flags as ‘Stop the Steal’ Stickers

In 2019, even before Trump appointed Amy Coney Barrett to the nation’s highest court, The Washington Post reported, “few people outside government have more influence over judicial appointments now than Leo.”

Leo has served on the Board of Governors of the Council for National Policy (CNP), a highly-secretive right-wing organization that has been described as a “pluto-theocracy.” In 2021 Americans United for Separation of Church and State called CNP “The Scariest Christian Nationalist Group You’ve Never Heard Of.”

CNP’s members have included far-right activist Charlie Kirk and the heads of at least a half-dozen groups that appear on the Southern Poverty Law Center’s list of hate or extremist groups.

Last year ProPublica branded Leo as “The Man Behind the Right’s Supreme Court Supermajority” who “built a machine that remade the American legal system.”

Leo also served as a vice president for the Federalist Society for many years, and has worked to support the nominations of every right wing justice on today’s Supreme Court, including Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

See the social media posts above or at this link.

READ MORE: Trump’s Bronx Rally Attendance Claim Fuels Mockery as Aerial Images Show a Different Story

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Trump’s Scheme for Absolute Immunity From State Prosecutions Forever: Report

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Having successfully obtained delays in his federal trials and his state trial in Georgia, possibly until after the November election, Donald Trump is now seeking an “insurance policy” to protect him from any future state prosecutions if he again becomes president.

The indicted ex-president who turns 78 next month “seems convinced that if he wins another four years in the White House, state prosecutors will still be waiting for him on the other side of his term — ready to put him on trial, or even in prison, just as they are now,” Rolling Stone reports.

“To avoid such risks, the former and perhaps future president of the United States wants Congress to create a very specific insurance policy that would help keep him out of prison forever, two sources familiar with the matter tell Rolling Stone. Trump vaguely alluded to this idea last week outside his New York criminal hush money trial, when he said he has urged Republican lawmakers to pass ‘laws to stop things like this.'”

Trump “has pressured” Republican lawmakers on Capitol Hill to do so, describing it as imperative that he signs such a bill into law, if he again ascends to the Oval Office.”

READ MORE: Pence Defense of Alito’s Insurrectionist Flag Highlights Its Ties to Violent Government Overthrow

Rolling Stone also notes, “Trump appears fixated on the idea of passing a law to give former American presidents the option of moving state or local prosecutions into a federal court instead, the two sources add.”

Trump “has hinted at a legislative push to limit his exposure to such criminal charges. In an improvised press conference outside the Manhattan courthouse on Tuesday, Trump said he’s been telling the Republican lawmakers who want to attend his trial and show solidarity to focus on legislation instead.”

“We have a lot of ’em. They want to come. I say, ‘Just stay back and pass lots of laws to stop things like this.’”

In 1973, while still President but under the cloud of the Watergate scandal, Richard Nixon said, “People have got to know whether or not their President is a crook.”

If Trump is elected in November, he can have his Attorney General drop any federal prosecutions he is currently facing. That may call into question, for some legal experts, the actions of the far-right justices on the U.S. Supreme Court who have delayed ruling on his immunity claim, and U.S. District Judge Aileen Cannon.

On May 7, Judge Cannon indefinitely suspended the Espionage Act case, also known as the classified documents case, against Donald Trump.

READ MORE: ‘You Just Don’t Do It’: Federal Judge Denounces Alito’s Flags as ‘Stop the Steal’ Stickers

Foreign policy, national security, and political affairs analyst and commentator David Rothkopf this week blasted the judge:

“Judge Cannon is not, as commentators and cartoonists would have it, just working on behalf of Trump. She is actively working on behalf of the enemies of the US who have and would benefit from the national security breaches she is effectively defending and making more likely.”

U.S. Rep. Adam Schiff (D-CA) earlier this month declared, “The courts are deliberately delaying justice — and effectively denying it.”

This coming week Americans may get a verdict in the New York criminal case against the ex-president. If it comes, it may be “guilty” or “not guilty,” but it could also be a hung jury, forcing another trial which also would not likely come before the election.

If Trump is elected in November, and can get his “insurance policy” legislation passed, he could possibly avoid all criminal trials for the rest of his life.

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‘Will You Accept the Results?’: Cruz’s Election Denialism Shut Down in ‘Brutal’ Interview

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U.S. Senator Ted Cruz (R-TX) promoted Donald Trump’s false election denialism and was challenged by a CNN anchor in an interview being praised by several media watchers.

During the Wednesday interview Cruz suggested to host Kaitlan Collins that Democrats or Hillary Clinton criticizing election results was equivalent to Donald Trump’s “Big Lie” campaign, which included over 60 legal challenges and countless false allegations of massive fraud. He also insisted there was a “peaceful transfer of power” after the 2020 presidential election despite the violent and deadly January 6 insurrection for which more than 1200 people have been criminally charged and for which the ex-president is facing several indictments. In the end, Collins appeared to cut the interview short.

“Will you certify the election results?” in the November election, Collins asked the Texas Republican on Wednesday, noting he was the first in the Senate to say he would not certify the 2020 election results. “Do you plan to object or will you accept the results regardless of who wins the election?”

“So Kaitlan,” Cruz replied, “I gotta say, I think that’s actually a ridiculous question.”

“It’s a yes or no question,” Collins replied.

“No it’s not that let me explain why it’s a ridiculous question,” Cruz alleged combatively. “It’s not a question – have you ever asked Democrat that?”

READ MORE: ‘Investigate Now’: As Alito Scandal Grows Pressure Mounts on ‘MIA’ and ‘AWOL’ Judiciary Chair

“Of course,” Collins replied.

“What Democrat?” Cruz demanded to know.

After a short back-and-forth, Collins said, “I know, I know, I’ve been on this road many, many times, but no Democrat – you can not compare the two situations. We have talked about that, we’ve seen the audio of that when they protested,” Collins said,  appearing to refer to Hillary Clinton having called the 2016 presidential election “stolen,” which she did three years after the election, in 2019.

“Have you ever had a sitting president who refused to facilitate the peaceful transition of power refused to acknowledge that his successor won the presidency?” Collins asked Cruz.

“So, A, we did have a peaceful transfer of power. I was there on January 20. I was there on the swearing in,” Cruz insisted, ignoring the January 6 insurrection.

“Barely,” Collins replied..

Cruz continued to refer to individual “objections” Democrats have made about results of elections – not formal, legal objections (except Al Gore in 2000) but comments or remarks, or individual objections to one state elections – not organized campaigns.

So you’re asking, ‘Will you promise no matter what to agree an election is illegitimate regardless of what happens?’ and that would be an absurd thing to claim,” Cruz said.

Again, after some back-and forth, Collins said, “This isn’t a game. There was no widespread voter fraud.”

“It is a game,” Cruz responded. “You only ask Republicans that.”

It November of 2022, the right-wing Cato Institute published an opinion piece titled, “Yes, Democrats Have Called Some Elections Illegitimate. GOP Election Denialism Is Far Worse,” and added: “It’s not even close.”

READ MORE: ‘Contemptuous’: Justice Alito’s Actions ‘Close to Treason’ Suggests Constitutional Scholar

Collins later pointed out that it is only Republicans who have “tried to block the transition of power. You have to acknowledge that.”

“So my question for you again: free and fair election. Will you accept the results regardless of who wins?” Collins again asked.

“Look, if the Democrats win, I will accept the result, but I’m not going to ignore fraud regardless of what happens.”

“Was there fraud in 202o?” Collins pressed.

“Of course there was fraud,” Cruz insisted.

“No, that wasn’t and you still objected,” Collins pointed out.

“Oh, you know, for a fact there was zero voter fraud really? What’s your basis for that? Show me your evidence,” Cruz demanded, inserting “zero” when Collins meant fraud “that would have changed the outcome,” as she noted later.

Commenting on the interview, writer Charlotte Clymer, a former press secretary for the Human Rights Campaign said, “This is brilliant.”

“I seriously cannot remember the last time any journalist on cable news confronted the bad faith of a MAGA politician this insistently,” Clymer remarked. “For five minutes (!), Kaitlin Collins pressed Ted Cruz and demanded a good faith answer.”

Democratic strategist and former DNC official Adam Parkhomenko commented, “this is just brutal.” He added Cruz was “being humiliated.”

Calling it, “Well done,” journalist Ahmed Baba wrote: “Kaitlan Collins interjecting with fact-checks multiple times and ending the interview after Ted Cruz refused to engage in the facts and continued to spread his propaganda.”

Watch below or at this link.

READ MORE: Trump Adviser Scanned and Saved Contents of Box That Had Classified Docs: Report

 

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