Friday, March 09, 2018

Yale Trans Legal

There is a seminar at Yale Law about trans health coming up…
Challenges in Trans Health: Legal Framings, Advocacy, and Barriers to Care
Thursday, March 22, 2018 at 5:30PM - 7:00PM
Sterling Law Building Room 129
Open to the Public

Please join the Solomon Center for Health Law and Policy, YLS's OutLaws, and Outpatient @YSM, and Yale Health Law and Policy Socity (YHeLPS) for a panel discussion on challenges in trans health.

Transgender Americans have long experienced great disparities in health care, with higher rates of suicide attempts, lower rates of insurance coverage, and high rates of delaying care for fear of discrimination. The Trump administration has made many headlines for its attacks on transgender health care, pressuring the CDC to remove the word “transgender” from its budget proposals and eliminating questions about LGBTQ individuals from national surveys. This panel brings together a lawyer, a doctor, an LGBTQ health policy expert, and member of Stonewall Speakers to discuss barriers to care for transgender Americans and policy options to reduce these health disparities.


  • Sean Cahill, PhD: Director of Health Policy Research at the Fenway Institute, Affiliate Associate Clinical Professor at Northeastern University’s Bouve College of Health Sciences, and Adjunct Associate Professor of the Practice in Health Law, Policy and Management at Boston University School of Public Health
  • AC Demidont, DO: Chief Medical Officer, Anchor Health Initiative
  • Pooja Gehi, JD, Executive Director of the National Lawyers Guild
  • Participant from the Stonewall Speakers Speakers' Bureau
  • Moderated by Katherine Kraschel, Executive Director of the Solomon Center for Health Law and Policy and Lecturer in Law at Yale Law School

Yesterday I wrote about the 6th U.S. Circuit Court of Appeals ruling about the Civil Rights Act of 1964 Title VII coving us and not being superseded by Religious Freedom Restoration Act, well Slate had a good summary of the reasoning behind the ruling…
This, the 6th Circuit explained in an opinion by Judge Karen Nelson Moore, cannot be right. First, she held that Title VII does outlaw anti-trans employment discrimination, for two independent reasons. First, Title VII bars sex stereotyping—punishing an employer for her failure to conform to gender norms. When Rost fired Stephens for transitioning, Moore explained, he penalized her for failing to conform to the sex assigned to her at birth. “[A]n employer cannot discriminate on the basis of transgender status,” she concluded, “without imposing its stereotypical notions of how sexual organs and gender identity ought to align.”

Second, Moore wrote, anti-trans discrimination is inherently sex based. “[I]t is analytically impossible,” she noted, “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.” Any business that mistreats a worker on the basis of her “transgender or transitioning status,” then, is taking sex into account—in violation of Title VII.

Moore then turned to the RFRA, which states that any “substantial burden” on “religious exercise” must be “in furtherance of a compelling government interest” and “the least restrictive means of furthering” that interest. Here, the funeral home alleged two burdens: It claimed that the presence of a transgender employee would “often create distractions for the deceased’s loved ones” and force Rost to leave the industry, because working with a trans person infringes on his religious beliefs.

Neither of these, Moore held, qualify as substantial burdens. Regarding the first burden, Moore wrote that employers cannot skirt Title VII by making assumptions about customers’ “presumed biases.” A company may fear that its customers will be put off by a trans employee, or a black one, or a Muslim one. But these fears do not give it license to discriminate in violation of Title VII. Regarding the second burden, Moore wrote that “tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.” Stephens did not ask Rost to endorse or aid her transition; she only wished to remain on staff. Allowing her to remain employed does not “substantially burden his religious practice.”
Let’s hope that the Supreme Court sees it the same way.

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