Tuesday, November 13, 2018

Can a Fired Transgender Worker Sue for Job Discrimination?

The New York Times reports on the upcoming November 30 Supreme Court conference on whether to accept three job discrimination cases from gay and transgender workers.

“‘It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,’ the [Sixth Circuit U.S. Court of Appeals] court said. “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.’”

 “The Trump administration filed a curious brief in Ms. Stephens’s case, one that said two seemingly contradictory things. The appeals court had gotten things badly wrong on legal issues that were ‘recurring and important,’ Solicitor General Noel J. Francisco told the justices. The ruling, he added, was ‘inconsistent with decisions of other circuits.’”

 In fact, there is no inconsistency, as no modern federal appeals court has issued a ruling stating that trans people are excluded from sex discrimination protections. “Those are precisely the things you say when you want to persuade the Supreme Court to hear a case. But Mr. Francisco went on to urge the court to deny review in the funeral home’s appeal and instead hear one of the cases on whether Title VII bars discrimination based on what he called ‘another non-biological-sex attribute — an individual’s sexual orientation.’”

This position by the US Solicitor General is because the argument for protection of trans people is a much easier argument, logically and based on precedent, than the argument for protection of gay workers. While gay workers are equally entitled to protection from job discrimination, that argument involves the proposition that discrimination based on one’s romantic interests in people of a certain sex is “because of sex,” even though it is based on the generic partner’s sex. That’s why Mr. Francisco urged the Supreme Court to turn down the trans case, surprising court watchers, who assumed the Administration would relish the chance to let its newly-emboldened Supreme Court conservatives loose on the nearly unanimous lower federal court opinions protecting trans people from sex discrimination under the Federal Civil Rights Act. The trans worker’s termination so clearly involved her sex, and the employer’s rejection of her sex, that the Supreme Court conservatives, who have long espoused interpreting words, like “sex,” according to their present meaning rather than the meanings of long-dead legislators, will be hard put to convincingly argue that “gender discrimination” is today unprotected, because sex meant only anatomy in 1964.

Here’s my law review article on that subject: https://ift.tt/2QEkSMq

The funeral home that fired the trans worker made this curious argument that defies the logic of the Trump era, which doubts national identity as much as it does gender identity: “Treating a person whose sex is male as a man is no more stereotyping than is classifying someone born in Canada as Canadian,” the funeral home said in a brief filed last week. Why did they choose to pick on the Canadians? Because the same cannot be said of Americans in the Trump era. The Trump Administration has put all its stock into the argument that birth does not determine one’s identity. But logical consistency is not the Administration’s strong suit, resulting in absurd arguments that no rational judge, even a conservative one, can justify.

 I nonetheless have no desire for the Supreme Court to weigh in now. The Court is clearly in flux, not a good time for any issue that is such a political football. That tends to skew the arguments towards the political, rather than the legal and logical.

Can a Fired Transgender Worker Sue for Job Discrimination? https://nyti.ms/2z6yzgx?smid=nytcore-ios-share

See this link: https://nyti.ms/2z6yzgx?smid=nytcore-ios-share

Wednesday, November 7, 2018

With Democrats winning the House, LGBT advocates have great expectations

Congrats to House Dems. We love you and now that we're one big happy family the LGBTs have big expectations.

"Sarah McBride, a transgender advocate and spokesperson for the Human Rights Campaign, identified the Equality Act as a top priority with Democrats finally in control of the House...Although the Equality Act, which would expand the Civil Rights Act of 1964 to bar anti-LGBT discrimination, is unlikely to become law if Democrats control only one chamber of Congress and President Trump is in the White House, McBride said movement in one chamber would be beneficial."

“It would help build momentum for us to pass the Equality Act and have it signed into law by a pro-equality president when a pro-equality president is elected into office in 2020,” McBride said. “It would help to build momentum for state legislatures and more city councils to pass inclusive non-discrimination protections.”

Yes and yes. Please do this.

Of course, had the timid Dems done so with ENDA in 2009 when they had the chance, we would be in a much better position on the Equality Act.

(Yes, we had the votes. Stop lyin'.) See here: https://ift.tt/2qwNY51 And here: https://ift.tt/2qzSkIA And: https://ift.tt/2qxGi2h In fact, we had majorities in favor of ENDA in both houses. See http://bit.ly/Q5YMJ and http://bit.ly/14TDll

But Dems were scared of their own shadows. And look where all that centrism and incrementalism and pandering got us? Trumpism.

I love you, Congressional Dems, thanks for all your comforting words during a panicky time. We heard you. And now's it's time for you to hear us.

See this link: https://www.washingtonblade.com/2018/11/06/with-dems-in-control-of-the-house-lgbt-advocates-have-great-expectations/

12th Annual Labor and Employment Law Conference

I’m off to educate my colleagues about trans legal rights at the American Bar Association Section on Labor & Employment Conference in SF. The ABA has been a leader in trans non-discrimination with ABA Model Rule 8.4 #abalel https://ift.tt/2SSOXt9

See this link: https://www.americanbar.org/groups/labor_law/events_cle/conference/

Thursday, October 25, 2018

Discussing Trans Rights With Andy Humm and Ann Northrop

Guest LGBT rights attorney Jillian Weiss puts it perspective--the legal threat and how we are fighting back in the courts and legislatures. She remembers even darker times for transgender people and says that no one can now send transgender and non-binary people back into the shadows.

See this link: https://www.youtube.com/watch?v=T1BZxoQ8hGk

Sunday, October 21, 2018

Trump Administration Eyes Defining Transgender Out of Existence

My thoughts on this breathless article:

1. This is not new news. We’ve long known that the Administration wants to wish us out of existence with the stroke of a pen. We’re ready.

2. They will find it very hard to put the genie back in the bottle. Now that we are so far out of the shadows, with young people coming out by the thousands, and millions of Americans recognize our humanity, we have vocal supporters and allies among the people and among the powerful.

3. The call for a return to “science” by defining sex as only “biological” contains the seeds of its own destruction. Every competent scientist recognizes that “sex” is a much more complicated subject than the Administration is stating, and the effort to dispute this is attempting to hold back the ocean with a teaspoon.

4. The conservative judicial philosophy requires interpreting words of a statute, such as “sex,” according to the current meaning. (The Constitution, by contrast, is given its "original" meaning because it is a "fundamental" document.) As Justice Scalia said: "Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Whatever Congressmen may have thought in 1964, “sex” has long been defined to include “gender.” Shall we go back to the days when women not deemed sufficiently feminine by their employers are unprotected from discrimination? Not a good look.

5. If our new Supreme Court retreats from reality and upholds restrictive new definitions of sex, it will cause a severe backlash that will result in trans rights gains in other areas.

6. We have a federal system, and dozens of states have already legislated in our favor. We will continue to have legal rights regardless of what the feds do.

7.  We have long lived and thrived under much harsher conditions, and we are resilient af.

8. We will fight.

See this link: https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html?action=click&module=MoreInSection&pgtype=Article&region=Footer&contentCollection=Politics