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3/29 Open thread and news updates

Community/Meta Right-wing Transgender Rights

– The Trump administration has issued an executive order that ends the requirement that federal contractors disclose whether they’ve discriminated against LGBT people in the past.

– The Trump administration has also eliminated a policy that would have tracked the number LGBT people in the census.

– The Trump administration has also proposed major cuts to the National Institutes of Health that will negatively affect funding for HIV/AIDS research.

– The Seventh Circuit Court of Appeals hears arguments today in Whitaker v. Kenosha Unified School District, a case involving a transgender student. The posted link goes to a case history that includes all the filings and lower court decision.

Thanks to for these filings


  • 1. JayJonson  |  March 29, 2017 at 9:08 am

    On Monday, a three-judge panel of the Second Court of Appeals unanimously ruled in favor of a gay man who alleged that he had been discriminated against on the basis of sexual stereotyping. While the panel said they could not rule in favor of him on the basis of sexual orientation discrimination because there is no precedent in the circuit for such a ruling, two of them urged in a concurrence that the time has come for an en banc review of the question.

    From the Washington Blade:

    In a 15-page opinion, a three-judge panel on the U.S. 2nd Circuit Court of Appeals unanimously found precedent bars the court from concluding the global DDB Worldwide Communications Group illegally discriminated against Matthew Christiansen for being gay under the Title VII of the Civil Rights of Act.

    The per curiam opinion found a district court handling the Christiansen v. Omnicom Group erred in its conclusion that sexual-orientation discrimination constitutes sex discrimination under federal civil rights law, citing the 2000 decision in Simonton v. Runyon and the 2005 decision in Dawson v. Bumble & Bumble.

    “Because we are ‘bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court…it [is] ordinarily…neither appropriate nor possible for [a panel] to reverse an existing Circuit precedent,'” the decision says.
    “We thus lack the power to reconsider Simonton and Dawson.”

    However, the court concluded Christiansen, who’s openly gay and HIV positive, made a compelling case he faced discrimination based on sex-stereotyping, which the U.S. Supreme Court determined is unlawful in the 1989 decision of Price Waterhouse v. Coopers.

    “Christiansen’s complaint identifies multiple instances of gender stereotyping discrimination,” the decision says. “His complaint alleges that his supervisor described him as ‘effeminate’ to others in the office…and depicted him in tights and a low‐cut shirt ‘prancing around.’ The complaint further alleges that the ‘Muscle Beach Party’ party poster, depicting Christiansen’s head attached to a bikini‐clad female body lying on the ground with her legs in the air, was seen by at least one coworker as portraying Christiansen ‘as a submissive sissy.'”

    As a result, the court reverses the district court decision rejecting Christiansen’s allegations of sex-stereotyping in the workforce, remanding the decision for reconsideration.

    The three-judge panel consisted of U.S. Chief Judge Robert Katzmann, a Clinton appointee; U.S. Circuit Judge Debra Ann Livingston, a George W. Bush appointee; and U.S. District Judge Margo Brodie, an Obama appointee sitting on the court by designation.

    In a concurring opinion, Katzmann and Brodie examine the evolution of the understanding of sexual orientation in the legal landscape. Although the judges say precedent prevents them from determining sexual-orientation discrimination is sex discrimination, they conclude the time has come for reconsideration by the full court under “en banc” review.

    “I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII,” Katzmann writes. “Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”

    The concurrence may be found here:

  • 2. VIRick  |  March 29, 2017 at 7:45 pm

    Jay, thank you for posting this summary of the very complex, 3-part decision of the 3-judge panel of the 2nd Circuit Court of Appeals, decided on Monday, 27 March 2017, as the "Washington Blade" explanation is the most accurate I have yet encountered. Basically put, they stated:

    1. At the present moment, the court's hands are tied by binding precedent in disallowing a claim of sexual orientation discrimination to be sex discrimination.

    2. However, the court saw adequate evidence of sexual stereotyping, and remanded this aspect back to the district court for further adjudication (in effect, politely but firmly telling that court to reverse its original ruling on this specific matter).

    3. In the additional concurrence, the court then went on to suggest that the entire court, sitting en banc, ought re-hear the entire issue of sexual orientation discrimination as sex discrimination, thus reversing their current binding precedent.

    All of that was Monday,– but wait!! There's more, a lot more:

    Per Equality Case Files:

    Later that same day, Monday, 27 March 2017, the plaintiffs in a second case in the same circuit, already argued, but as yet undecided, "Zarda v. Altitude Express," a claim for sexual orientation employment discrimination under Title VII and NY State Human Rights Law, filed a motion to intervene in "Christiansen."

    Plaintiff-Appellants (in "Zarda") also filed a motion to consolidate with "Christiansen v. Omnicom" "for the federal question and en banc consideration."

    "'Zarda' and 'Christiansen' were both heard in January 2017 with one identical issue pertaining to the continuing viability of 'Simonton v. Runyon.' 'Christiansen' was decided on 27 March 2017, without overruling 'Simonton', for lack of an en banc decision. Appellant in 'Christiansen' is not petitioning for en banc consideration, which affects appellant's rights (in 'Zarda'). I separately move in 'Christiansen' to intervene and combine and here simply to combine given the common question." "Zarda" was argued on 5 January 2017.

    Motion of "Zarda" appellants to intervene for the purpose of petitioning for a rehearing en banc is here:

    Appellant’s motion to combine this case for consideration, en banc, of the federal question posed in this case, ("Zarda v. Altitude Express"), – as yet undecided – and "Christiansen v. Omnicom," 16-648, is here:

  • 3. JayJonson  |  March 30, 2017 at 7:16 am

    Thanks, Rick, for the additional information. I hope the judiciary will finally rule conclusively that sexual orientation discrimination is illegal before Trump gets to pack the courts (especially SCOTUS) against justice.

  • 4. VIRick  |  March 29, 2017 at 12:53 pm

    Texas: Gay Candidate for Congress

    A gay HIV/AIDS activist has launched a bid for a Texas congressional seat currently held by a 16-term Republican member of Congress who recently gained notoriety for instructing a constituent to “shut up” during a town hall meeting. Currently the compliance officer at Prism Health North Texas, the largest non-profit HIV/AIDS service organization in the area, John H. Duncan declared in a statement on Monday, 27 March 2017, his intention to seek the Democratic nomination to run for the seat representing Texas’ 6th congressional district.

    Duncan faces significant odds in defeating Rep. Joe Barton (R), a 32-year incumbent who currently holds the seat in the safe Republican district. Last year, Barton won that race with 58.3 percent of the vote compared to the 39 percent won by Democrat Ruby Fay Woolridge.

    According to his campaign website, Duncan lives in Arlington, Texas with his husband, Tim, who’s a Christian minister.

  • 5. VIRick  |  March 29, 2017 at 2:20 pm

    Texas: GOP House Speaker Blocks "Bathroom" Bill Rider

    The "Austin Statesman" reports:

    Flexing his parliamentary muscle and flashing his antipathy to efforts to regulate the use of bathrooms by transgender people, House Speaker Joe Straus prevented amendments on the matter from reaching the House floor on Tuesday, 28 March 2017. In a showdown with his most socially-conservative members, Speaker Joe Straus ended debate on a bill about the fate of the Texas Railroad Commission, which regulates oil and gas operations, by announcing there were no further amendments to consider.

    But at least two amendments had been filed before the debate seeking to fold the contentious transgender bathroom issue into the relatively tame oil and gas bill had been ended. Still, Straus said he had determined the proposed amendments “were not germane” to the bill.

    However, the "bathroom" bill is still alive and the haters will surely press on, but it and they will have to do so on their own separate "merits," and not hide it/themselves behind something else.

  • 6. ianbirmingham  |  March 30, 2017 at 2:44 am

    NC: Compromise arrangement to repeal bathroom bill denounced as a "dirty deal"

  • 7. JayJonson  |  March 30, 2017 at 7:18 am

    I am really disappointed that Cooper supports this sham "compromise." Although I am not a North Carolinian, I sent money to Cooper's campaign as a protest against McCrory. Now Cooper is supporting a bill that McCrory has also endorsed. Shameful.

  • 8. FredDorner  |  March 30, 2017 at 5:52 pm

    I understand that Cooper is between a rock and a hard place, but a veto would have been the right thing to do along with a statement that civil rights shouldn't be compromised.
    But with the T-baggers fully in control of the NC legislature I seriously doubt a better outcome was possible, and if he hopes to be reelected he needs to be seen as having tried to mitigate the economic harm which HB2 caused.

  • 9. allan120102  |  March 30, 2017 at 7:41 pm

    I agree, even if its not perfect by far its something. I am more disappoint that non discrimination laws cannot be pass through cities and counties in NC but its something. The state house and state senate have the full control of both with supermajorities in both so even if he wants to repeal it completely it will not happen until the composition of the state senate house and senate change.

  • 10. FredDorner  |  March 30, 2017 at 8:51 pm

    The issue of non-discrimination laws is an interesting one in that while no red state has any statewide protections in this area, I think HB2 might have been vulnerable to the Romer v Evans precedent. By repealing it and passing a moratorium the bigots avoid what they would see as a rather adverse outcome in SCOTUS.

    But regardless of what happens in the courts, the bigots have already lost on this issue big time……..the public and big business will no longer stand for this crap. In fact ex-governor McCrory has been whining that no one will hire him because of his advocacy for HB2.

  • 11. VIRick  |  March 30, 2017 at 3:37 pm

    North Carolina: Governor Signs Bill "Replacing" HB2

    Calling it a “repeal,” Democratic Gov. Roy Cooper signed House Bill 142 into law on Thursday, 30 March 2017. The swiftly-drafted compromise bill, crafted to "repeal" HB2, cleared the Senate and the House by mid-afternoon.

    HB142 initially dealt with occupational licensing boards, but was gutted and replaced with language "repealing" HB2. However, it was not a clean repeal in that it states that only the General Assembly can regulate access to multiple-occupancy bathrooms, locker rooms, and changing facilities. It also prohibits local governments from enacting or amending ordinances regulating private employment practices or public accommodations until 1 December 2020.

  • 12. VIRick  |  March 30, 2017 at 3:49 pm

    Lambda Legal's Press Release Re: "Repeal" of North Carolina's HB2

    Per Equality Case Files:

    Raleigh NC — The North Carolina General Assembly today (30 March 2017) passed a bill that does not repeal the discriminatory HB 2 law. Instead, it keeps in place the most harmful parts of the law.

    The new bill bars any protections for transgender people using restrooms or other facilities in schools or other state or local government buildings. This means schools, court houses, city halls, government agencies, and more cannot allow transgender people to use the right restroom.

    It also prevents cities from passing any protections for employment discrimination or discrimination by places of public accommodation — for LGBT people or anyone — until after 1 Decemebr 2020.

    The ACLU, ACLU of North Carolina, and Lambda Legal will continue to defend the right of transgender people to use restrooms and changing facilities consistent with their gender identity, as federal law requires. The lawsuit, which includes claims for the damages inflicted by HB2, will continue, and the legal team will seek to amend the lawsuit to challenge HB142 as well.

    The ACLU of North Carolina is delivering a letter to Gov. Roy Cooper urging him to veto the measure — although Cooper has voiced his support for the proposal and is expected to sign the bill into law (and apparently has already signed it).

    Lambda Legal's full press release is linked here:

  • 13. VIRick  |  March 30, 2017 at 3:26 pm

    Ohio: Moving to Protect the LGBT Community

    There’s some good news coming out of Ohio lately: not only has the city of Columbus (and Toledo) taken steps toward banning abusive “conversion therapy,” but the state is quickly moving toward banning employment discrimination against LGBTQ people. A new bill has been introduced by Representative Nickie Antonio, and although Gov. John Kasich hasn’t said that he’ll sign it, he hasn’t said he’ll veto it — a significant step for a Republican official.

    Speaking to reporters this week, Kasich said, “I don’t want anybody to be discriminated against because they happen to be gay… I haven’t heard much about this but if it’s happening we have to deal with it.” It’s a bit of a surprise that Kasich hasn’t heard about discrimination against LGBTQ people, considering how popular it is within his own party.

    Still, Antonio's bill will have an uphill battle in Ohio; previous legislation has been defeated within the past year. But Antonio has promised that the latest version reaffirms robust protections for religious officials — protections that already exist, but are often used to sow confusion about the effect of non-discrimination laws — and her hope is that this will quash previous misinformation campaigns.

    Ohio has also taken significant steps to affirm equal access to facilities for trans citizens. Last month, Toledo banned “conversion therapy,” while also improving existing non-discrimination laws to include transgender people. The city joins fifteen others in the state that require businesses to treat trans customers the same as any others.

    Grant Stancliff, the Communications Director for Equality Ohio, pointed out that the state currently has a patchwork of protections which means citizens gain or lose coverage as they drive from one town to another. Recent polling indicates that about seventy percent of Ohio citizens supports non-discrimination protection. That strong public opinion will likely help officials like Gov. Kasich support laws like those proposed by Rep. Antonio.

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