Supreme Court Affirms LGBTQ+ Workers Rights

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By Eryn L. Pollard

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We are still mourning the deaths of Black men, Ahmaud Arbery, George Floyd, Rayshard Brooks, Black women, Pamela Turner, Sandra Bland, Breonna Taylor, and Black transgender and non-binary people, Iyanna Dior and Toney McDade, and we will continue to demand justice for the those who have lost their lives to the excessive use of lethal force by law enforcement.

Bust as of Monday June 15, 2020, amidst a global pandemic, what may be an economic crisis, and a revelation that systemic racisms and privilege does exist, as well as an information overload, there is still cause for celebration.

As of June 15, 2020, The Supreme Court of the United States issued an opinion in Bostock v. Clayton County, Georgia, 590 U. S. 1 (2020), protecting employee’s rights, condemning discrimination based on sexual orientation or gender identity under the Title VII of the Civil Rights Act of 1964.

 

This is a hallmark case, as in December of 2012, United States Attorney General Eric Holder issued a memorandum discussing the scope of Title VII of the 1964 Civil Rights Act and whether it was unconstitutional to discriminate in the workplace based on and individual’s “sex”. Thus, providing clarification on the opinion that Title VII of the 1964 Civil Rights Act extends workplace protections to “gender identity” ­– protecting transgender and non-binary American citizens. A.G. Holder wrote, “After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII’ s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.”[1] He then addended, “[t]he most straightforward reading of Title VII is that discrimination “because of … sex” includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.” [2]

 

Despite A.G. Holder’s attempts to clarify the Justice Department’s position on Title VII and its relation to gender-identity and sexual orientation protections, in October of 2017, United States A.G. Jeff Sessions withdraws Holder’s 2014 memorandum. A.G. Sessions asserted that the Justice Department is taking an opposite position and “Title VII expressly prohibits discrimination “because of … sex” and several other protected traits, but it does not refer to gender identity. “Sex” is ordinarily defined to mean biologically male or female [. . .] Accordingly, 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 trans gender status.” [3] Consequently, as of 2016 the Justice Department made it very clear that they were no longer following the board definition of “sex” to include “gender-identity”.

 

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But as of June 15, 2020, The Supreme Court of the United States has made their interpretation of Title VII of the 1964 Civil Rights Act very clear. In Bostock v. Clayton County, Georgia, 590 U. S. 1 (2020), the S.C. assess three cases which all had the common denominator of an employee being fired after reveling his/hers/their sexual orientation and/or gender identity. The S.C. uses a “but for” causation standard in that “[i]f an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.” [4] As such, even if an employer fires an employee because she is homosexual or transgender, and “two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies) [. . . ] Title VII doesn’t care” and liability attaches. The Court goes on to say, “[f]or an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.” 883 F. 3d, at 135 (Cabranes, J., concurring in judgment).” [5] As such, on the grounds that the plain meaning interpretation of the words “sex” in Title VII, gender identity and sexual orientation is included and it is unconstitutional to discriminate in the workplace based on a person’s sexual orientation or gender identity.

 

But, what about other circumstances and environments that are not protected? For example, are transgender and non-binary conformists allowed to use the restrooms that represent their gender-identity? This is an open question and a highly debated social and human rights issue. Not just days before this landmark Supreme Court opinion was published, did we see someone well known in the literary and entertainment industry – J.K. Rowling – giver her opinion on a narrow, biological interpretation of “sex”.[6] The Supreme Court makes it abundantly clear that under “Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” [7]

 

Consequently, although Bostock v. Clayton County, Georgia, 590 U. S. 1 (2020) is a landmark case providing Federal protections to members of the LGBTQ+ community, we as a society, we as a country, we as people, have a long way to go.

 

[1] Memorandum from the United States Att’y Gen. Eric Holder to United States Attorneys Heads of Dep’t Components on Treatment of Transgender Emp’t Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 2014) (on file with justice.gov).

[2] Id.

[3]Memorandum from the United States Att’y Gen. Jeff Sessions to United States Attorneys Heads of Dep’t Components on Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Oct. 4, 2017) (on file with justice.gov).

[4] Bostock v. Clayton County, Georgia, 590 U. S. 1, 11 (2020).

[5] Id. at 12.

[6] J.K. Rowling (@jk_rowling), TWITTER (Jun. 6, 2020) https://twitter.com/jk_rowling/status/1269382518362509313?s=20.

[7] Bostock v. Clayton County, Georgia, 590 U. S. 1, 31 (2020).

 

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Eryn L. Pollard, is a second-year law student at Notre Dame Law School and is the secretary of the Black Law Students Association.

All Black Bodies Matter

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By Eryn L. Pollard 

We Will Not Be Silenced: All Black Lives Matter.

 

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Black bodies have been uniquely compromised and exploited by racial injustices and inequalities. During COVID-19, we have seen how communities of color have been disproportionately affected by unemployment and racial disparities. Due to the social and economic instability of COVID-19, we have seen something occur in America that we have not seen for a long time. A revolution that is spearheaded by Black people for Black people who are unapologetically asserting the truth, Black Lives Matter. In this, we refuse to continue to allow American people to ignore that Black bodies are deserving to be recognized as people and treated with respect, grace, equal opportunity and dignity.

 

As of 2015, “non-Hispanic black males had the highest rate (1.0 per 100,000 population), 2.5 times the rate for non-Hispanic white males (0.4 per 100,000),” to be victims of lethal force in legal interventions.[1] More recently, according to a 2017 Police Violence Report, although Black people were less likely to be armed and less likely to be threatening, Black people are more likely to be killed by the police.[2]

 

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The unjust and brutal killings of Ahmaud Arbery, Breonna Taylor and George Floyd are but three of the thousands upon thousands of Black lives who have been unjustly killed by law enforcement. Michael Brown, Ahmaud Arbery, George Floyd and, as of June 12, 2020, Rayshard Brooks are but four of the thousands upon thousands of Black lives whose death has been recorded and viewed by American citizens, who are now being forced to be uncomfortable and recognize the privilege that comes with the color of their skin, their socio-economic status, their gender, or the intersectionality of all three.

 

When protestors are marching while chanting “Black Lives Matter” it is imperative that those listening recognize that the statement of “Black Lives Matter” is synonymous with “All Black Lives Matter”, in whatever form, shape, color, sexual orientation, or gender-identity. When we shout, “Black Lives Matter”, we are not only demanding justice for Black men, Michael Brown, Ahmaud Arbery and George Floyd. We are also demanding justice for Black women, Pamela Turner, Sandra Bland and Breonna Taylor. We are also demanding justice for Black transgender or non-binary Black people like Iyanna Dior and Toney McDade. According to the US Transgender Survey (USTS), “over half (58%) of transgender people who interacted with law enforcement that knew they were transgender in the last year reported experiences of harassment, abuse or other mistreatment by the police.” [1] Moreover, when we shout “Black Lives Matter”, we are not only demanding complete reform, but also demanding that these legal protections encompass all Black lives, not only cis-gender or gender normative notions of who should be protected and who is a threat to what is “comfortable”.

 

As such, when we shout “Black Lives Matter” we are demanding equality for all Black Lives. We are demanding American institutions to be accountable and assess their part in perpetuating systemic racism. We are demanding that in the pursuit of equality, progress is intersectional and intergenerational, and all Black bodies deserve to be treated as equals, as people.

 

Consequently, when people respond to the truth, “Black Lives Matter” with “All Lives Matter” or use gender normative language to exclude people from the conversation, I encourage you to recognize those words and behaviors only serve to defend the current state of inequality. Remember that yes, all lives do matter, but historically American institutions do not treat every person equally and specific communities and bodies are systemically being ignored, silenced, demonized, brutalized and exploited.

 

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As members of the Black Lives Matter movement, as allies, as well as members of the entertainment industry, we have a duty to stay informed and to fight for equality to protect our colleges, crew members, cast members, writers, directors and so many others. We have a responsibility to be informed and follow the progression of legislation that will address police brutality such as: the Law Enforcement Trust and Integrity Act (seeking to authorize the Department of Justice to work with independent community based organizations to refine accreditation standards for law enforcement), the Commission on the Social Status of Black Men and Boys (seeking to establish a bipartisan commission within the Office of Civil Rights tasked with examining social disparities affecting Black men and recommending changes to improve current government programs)[2], the Resolution Condemning Policy Brutality (condemning all acts of police brutality and the use of excessive force by law enforcement and calling for the end of the targeted profiling policing practices in people of color’s communities)[3], the National Statistics on Deadly Force Transparency Act (requiring any law enforcement agency receiving federal funds to provide data to the DOJ and public on every incident of the use of deadly force including information on the victim, explanation of the force used, and a description of non-lethal efforts)[4], the Justice in Policing Act (calling for a national registry of misconduct to keep record of incidents of excessive or lethal force to make it easier to hold officers accountable)[5]; to only list a few of the Bills that are currently in the House to address police brutality.

 

Furthermore, it is imperative to discuss the current recession of transgender related health care laws. Once again, June 12, 2020 was a sad day for American citizens as not only was Rayshard Brooks killed due to an excessive use of lethal force by law enforcement, but also, on the anniversary of the devastating and cruel shooting of members of the LGBTQ+ community at PULSE nightclub in Orlando, FL in 2016, the current administration and the U.S. Department of Health and Human Services (HHS) finalized a rule under Section 1557 of the Affordable Care Act (ACA) and Title IX regulations. In this, the current administration has effectively decided that discrimination protections are exclusive on the basis of “biological sex” and do not encompass protections for “gender identity”[6]. Effectively, this revision has stripped equal protection laws from those who identify as a different gender then the “sex” they were given biologically. Legislation such as this, is legislation that the Black Lives Matter Movement cares about. We are not simply asking for law enforcement reform, but a complete systemic reformation. Legislation that takes protections away from Black trans men and women or Black non-binary people will not be tolerated. We demand justice for those who have lost their lives due to a false sense of truth and reality and ask you to recognize and comprehend that all Black lives matter. Any form of discrimination, whether it is on the basis of skin color, race, class, gender-identity, sex, religion, etc. is and will not be tolerated.

 

As of June 15, 2020, The Supreme Court of the United States issued an Opinion in case Bostock v. Clayton County, Georgia, 590 U. S. 1 (2020), protecting employee’s rights, condemning discrimination based on sexual orientation or gender identity under the Title VII of the Civil Rights Act of 1964. This is only a first step in providing equal legal protections for all people and any form of discrimination, whether it is on the basis of skin color, race, class, gender-identity, sex, religion, etc. will not be tolerated.

 

It is our duty as people to celebrate Black bodies and to have difficult conversations surrounding Race, Gender, Class and Inequality. It is our duty to speak out against injustice and to be inclusive of all walks of life.

 

Say it with us, “BLACK LIVES MATTER”

 

Written By: Eryn L. Pollard

[1] Failing to Protect and Serve: Police Department Policies Towards Transgender People, National Center for Transgender Inequality (May 7, 2019), https://transequality.org/issues/resources/failing-to-protect-and-serve-police-department-policies-towards-transgender-people.

 

[2] Commission on the Social Status of Black Men and Boys Act, H.R.1636, 116th Cong. (2019).

 

[3] H.R. Res 988, 116th Cong. (2019).

 

[4] National Statistics on Deadly Force Transparency Act of 2019, H.R.119, 116th Cong. (2019).

 

[5] Justice in Policing Act of 2020, H.R. 7120, 116th Cong. (2020).

 

[6] 42 C.F.R. §438, 440, 460 (2020) (scheduled to be published on the Federal Register on June 19, 2020)

 

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Eryn L. Pollard, is a second-year law student at Notre Dame Law School and is the secretary of the Black Law Students Association.