Friday, October 06, 2017

No It Is Not, It Is Bigotry

The other day it was reported that the U.S. Attorney General reversed the protections for us under Title VII, he stated that it was based on law… well Mr. Attorney General the former ruling was based on law and your ruling is based on hate and bigotry.
Jeff Sessions Just Reversed A Policy That Protects Transgender Workers From Discrimination
The Justice Department under Obama decreed that Title VII of the Civil Rights Act of 1964 banned transgender discrimination in the workplace. But in a new memo, the attorney general rescinded the policy.
BuzzFeed News
By Dominic Holden
October 5, 2017

US Attorney General Jeff Sessions has reversed a federal government policy that said transgender workers were protected from discrimination under a 1964 civil rights law, according to a memo dated Wednesday and sent to US attorneys around the country and heads of federal agencies.

Sessions’ memo, obtained by BuzzFeed News, says, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”

It adds that the government will take this position in pending and future matters, which could have far-reaching implications across the federal government and may result in the Justice Department fighting against transgender workers in court.

“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” Sessions writes.

“This is a conclusion of law, not policy," his memo adds. "As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.”
That was not what over a dozen federal courts including federal Appeals courts.

On the EEOC website (at least for now) they list the ruling that they decided justified Title VII coverage for us. Some of them are,
Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII

Supreme Court Decisions on the Scope of Title VII's Sex Discrimination ProvisionOncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998). The Supreme Court held that same-sex harassment is sex discrimination under Title VII. Justice Scalia noted in the majority opinion that, while same-sex harassment was "assuredly not the principal evil Congress was concerned with when it enacted Title VII . . .statutory prohibitions often go beyond the principal evil [they were passed to combat] 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. Title VII prohibits 'discriminat[ion] . . . because of . . . sex.' [This] . . . must extend to [sex-based] discrimination of any kind that meets the statutory requirements." Id. at 79-80.

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. Price Waterhouse had denied Ann Hopkins a promotion in part because other partners at the firm felt that she did not act as woman should act. She was told, among other things, that she needed to "walk more femininely, talk more femininely, [and] dress more femininely" in order to secure a partnership. Id. at 230-31, 235. The Court found that this constituted evidence of sex discrimination as "[i]n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Id. at 250. The Court further explained that Title VII's "because of sex" provision strikes at the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Id. (quoting City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)).
They also list lower court rulings and Some of the important cases were...
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). The plaintiff, a transgender female, was offered a position as a terrorism research analyst before she had changed her name and begun presenting herself as a woman. After the plaintiff notified the employer that she was under a doctor's care for gender dysphoria and would be undergoing gender transition, the employer withdrew the offer, explaining that the plaintiff would not be a "good fit." The court stated that since the employer refused to hire the plaintiff because she planned to change her anatomical sex by undergoing sex reassignment surgery, the employer's decision was literally discrimination "because of ... sex." The court analogized the plaintiff's claim to one in which an employee is fired because she converted from Christianity to Judaism, even though the employer does not discriminate against Christians or Jews generally but only "converts." Since such an action would be a clear case of discrimination "because of religion," Title VII's prohibition of discrimination "because of sex" must correspondingly encompass discrimination because of a change of sex. The court concluded that decisions rejecting claims by transgender individuals "represent an elevation of 'judge-supposed legislative intent over clear statutory text,'" which is "no longer a tenable approach to statutory construction."

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). The plaintiff, a transgender female, brought a claim under 42 U.S.C. § 1983 alleging unlawful discrimination based on sex in violation of the Equal Protection Clause when she was terminated from her position with the Georgia General Assembly. Relying on Price Waterhouse and other Title VII precedent, the court concluded that the defendant discriminated against the plaintiff based on her sex by terminating her because she was transitioning from male to female. The court stated that a person is considered transgender "precisely because of the perception that his or her behavior transgresses gender stereotypes." As a result, there is "congruence" between discriminating against transgender individuals and discrimination on the basis of "gender-based behavioral norms." Because everyone is protected against discrimination based on sex stereotypes, such protections cannot be denied to transgender individuals. "The nature of the discrimination is the same; it may differ in degree but not in kind." The court further concluded that discrimination based on sex stereotypes is subject to heightened scrutiny under the Equal Protection Clause, and government termination of a transgender person for his or her gender nonconformity is unconstitutional sex discrimination. Although in this case the defendant asserted that it fired the plaintiff because of potential lawsuits if she used the women's restroom, the record showed that the plaintiff's office had only single-use unisex restrooms, and therefore there was no evidence that the defendant was actually motivated by litigation concerns about restroom use. The defendant provided no other justification for its action, and therefore, the plaintiff was entitled to summary judgment.
I particularly like how the judge drew an analogy between changing gender and changing religion in the Schroer case, Law360 said,
In his analysis of Schroer's “discrimination because of sex” theory, Judge Robertson compared a transgender person to a religious convert, writing, “No court would take seriously the notion that 'converts' are not covered by the statute.”

“Discrimination 'because of religion' easily encompasses discrimination because of a change of religion,” the court wrote. “But in cases where the plaintiff has changed her sex, and faced discrimination because of the decision to stop presenting as a man and to start appearing as a woman ... courts have allowed their focus on the label 'transsexual' to blind them to the statutory language itself.
The EEOC list goes on and on…
Federal Court Decisions Supporting Coverage for Transgender Individuals as Sex Discrimination

Chavez v. Credit Nation Auto Sales, L.L.C
., 2016 WL 158820 (11th Cir. Jan. 14, 2016).  Reversing summary judgment for the employer on the plaintiff's claim that she was terminated from her job as an auto mechanic because she is transgender, the court remanded the case for trial because there was sufficient circumstantial evidence to create a triable issue of fact as to whether gender bias was a motivating factor.  The employer asserted that the plaintiff was fired for sleeping on the job and noted that other employees had been fired for the same offense.  However, less than two months before the plaintiff's termination, her supervisor had said that her transgender status made him "nervous" and would negatively impact the business and coworkers.  Moreover, the plaintiff had received an excellent performance appraisal prior to disclosing her gender transition, and the employer deviated from its progressive disciplinary policy in imposing termination in the plaintiff's case.

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). Plaintiff, who "was a male-to-female transsexual who was living as a male while on duty but often lived as a woman off duty [and] had a reputation throughout the police department as a homosexual, bisexual or cross-dresser," alleged he was demoted because of his failure to conform to sex stereotypes. The court held that this stated a claim of sex discrimination under Title VII.

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). The plaintiff alleged that he was suspended based on sex after he began to express a more feminine appearance and notified his employer that he would eventually undergo a complete physical transformation from male to female. The court held that Title VII prohibits discrimination against transgender individuals based on gender stereotyping. The court determined that discrimination against an individual for gender-nonconforming behavior violates Title VII irrespective of the cause of the behavior. The court reasoned that the "narrow view" of the term "sex" in prior case law denying Title VII protection to transgender employees was "eviscerated" by Price Waterhouse, in which the Supreme Court held that Title VII protected a woman who failed to conform to social expectations about how women should look and behave.

Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000). Citing Title VII case law, the court concluded that a transgender plaintiff, who was biologically male, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that he was denied a loan application because he was dressed in traditionally female attire.

Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000). Citing Title VII case law, the court concluded that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a "man who 'failed to act like one.'" The court noted that "the initial approach" taken in earlier federal appellate Title VII cases rejecting claims by transgender plaintiffs "has been overruled by the language and logic of Price Waterhouse."

Baker v. Aetna Life Ins., et al., __ F. Supp. 3d __, 2017 WL 131658 (N.D. Tex. Jan. 13, 2017).  The court ruled that an employee stated a claim against her employer for sex discrimination in violation of Title VII based on denial of coverage under employer-provided health insurance plan for costs associated with surgery related to gender transition.

Mickens v. General Electric Co., No. 3:16CV-00603-JHM, 2016 WL 7015665 (W.D. Ky.  Nov. 29, 2016).  The court denied the employer's motion to dismiss a Title VII sex discrimination claim in which a transgender plaintiff alleged he was unlawfully denied use of the male bathroom close to his work station, and then was fired for attendance issues resulting from having to go to a bathroom farther away.  He also alleged that once his supervisor learned of his transgender status, he was singled out for reprimands, and no action was taken in response to his reports of coworker harassment.   Rejecting the employer's argument that discrimination based on transgender status is not actionable under Title VII, the court cited Sixth Circuit precedent recognizing that, in light of Price Waterhouse, the prohibition against gender discrimination in Title VII "can extend to certain situations where the plaintiff fails to conform to stereotypical gender norms."  The court held that the complaint sufficiently pled a Title VII sex discrimination claim, noting that "[s]ignificantly, plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female should look and act like."
So when you read that US Attorney General Jeff Sessions says that “sex” doesn’t cover gender identity/expression and not on legal precedent he is coming from a place of bias, hate and bigotry that ignores many, many court cases that has found otherwise.


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