Suit Challenges North Carolina's Anti-Transgender Law

The ACLU, Equality North Carolina and three individuals yesterday filed a federal lawsuit challenging a statute enacted last week in North Carolina which bars transgender individuals from using school and public agency bathrooms that correspond with their gender identity.  The law also more broadly pre-empts local anti-discrimination laws. (See prior posting.)  The complaint (full text) in Carcaño v. McCrory, (MD NC, filed 3/28/2016) contends that the law was enacted for the purpose of disadvantaging members of the LGBT community and is based on animus against LGBT people.  Plaintiffs allege that the law violates the Equal Protection Clause and Title IX of the 1964 Civil Rights Act, and infringes their right to privacy and right to refuse unwanted medical treatment.  Wall Street Journal reports on the lawsuit.

UPDATE: North Carolina Attorney General Roy Cooper said at a news conference that he will not defend the state's new law against the challenge in this lawsuit.  He called the law a national embarrassment and unconstitutional.  Cooper is running against incumbent Republican Gov. Pat McCrory who signed the anti-transgender bill. (AP, BuzzFeed, 3/29/2016).

Supreme Court: Alabama Must Recognize Georgia's Order Granting Same-Sex Spouse Adoption Rights [CORRECTED]

The U.S. Supreme Court today in a summary per curiam opinion reversed the Alabama Supreme Court's refusal to recognize a Georgia court's approval of the adoption of one woman's children by her lesbian partner.  In V.L. v. E.L., (Sup. Ct., March 7 2016), the Supreme Court held that the Constitution's full faith and credit clause requires Alabama courts to recognize the Georgia adoption order.  The Alabama Supreme Court had wrongly concluded that Georgia courts lacked jurisdiction to enter the order.  The issue arose in the context of the adoptive mother seeking visitation rights after the couple separated. New York Times reports on the decision. [Note correction-- an earlier version of this posting incorrectly referred to Louisiana instead of Alabama.]

EEOC Files 2 Suits Alleging Title VII Already Covers Sexual Orientation Discrimination

The EEOC announced yesterday that it has filed its first two suits in federal court testing its theory that existing laws barring discrimination on the basis of sex cover discrimination on the basis of sexual orientation. In an administrative decision under Title VII handed down in July, the EEOC held that "Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms." (See prior posting.) Yesterday's suits build on that.  In EEOC v. Scott Medical Health Center, P.C., (WD PA, filed 3/1/2016), the complaint (full text) alleges that a gay male employee's manager repeatedly directed anti-gay epithets at him, as well as other highly offensive comments about his sexuality and sex life. In the other suit, EEOC v. Pallet Companies, (D MD, filed 3/1/2016), the complaint (full text) alleges that a lesbian employee was harassed by her supervisor with comments about her sexual orientation and appearance, and was fired in retaliation for complaining. BuzzFeed reports on the lawsuits.

Indiana City Strengthens LGBT Anti-Discrimination Protections

As reported by the Evansville Courier & Press, Evansville, Indiana city council on Monday, by a 7-2 vote, passed Ordinance G-2016-05 (full text) which expands anti-discrimination protections for gay, lesbian, bisexual and transgender individuals.  Previously the city banned discrimination on the basis of sexual orientation and gender identity, but the city's Human Relations Commission essentially lacked enforcement power. Investigation and mediation were solely voluntary on the part of the parties. The new ordinance gives the Human Relations Commission the same enforcement powers in cases of LGBT discrimination, as in discrimination on other bases. The new ordinance however also enacts new exemptions from the city's anti-discrimination provisions.  It exempts religious and religiously affiliated organizations, as well as private social clubs. City Council rejected proposed broader exemptions for individuals and non-profits with a "religious conscience."

South Dakota Legislature Passes Bill On Transgenders In School Restrooms; 3 Other LGBT Bills Pending

This week the South Dakota legislature passed and sent to  Gov. Dennis Daugaard HB 1008 (full text) that provides:

Every restroom, locker room, and shower room located in a public elementary or secondary school that is designated for student use and is accessible by multiple students at the same time shall be designated for and used only by students of the same biological sex. In addition, any public school student participating in a school sponsored activity off school premises which includes being in a state of undress in the presence of other students shall use those rooms designated for and used only by students of the same biological sex.

"Biological sex" is defined as "the physical condition of being male or female as determined by a person's chromosomes and anatomy as identified at birth."  The bill goes on to provide that transgender students are to be provided with reasonable accommodation, which "may include a single-occupancy restroom, a unisex restroom, or the controlled use of a restroom, locker room, or shower room that is designated for use by faculty."

According to the Christian Science Monitor, the governor has not yet decided whether to sign the bill. The Argus Leader reports that the governor will meet both with transgender students and with the bill's sponsors before making a decision.

Human Rights Campaign says that two other anti-LGBT bills have been passed by the full House of Representatives, and another anti-transgender bill has passed through committee. HB 1112 passed by the House voids the current transgender policies of interscholastic activities associations and requires that their future policies determine sex by a student's chromosomes and the sex recorded on the student's birth certificate.

HB 1107 passed by the House bars the state from taking any action against a person because that person acts in accordance with a sincerely held religious or moral belief that marriage is between one man and one woman, that sexual relations should be reserved to marriage, or that the terms male and female refer to distinct and immutable biological sexes determined by anatomy and genetics by the time of birth.

Finally, HB 1209 which has recently cleared a House Committee provides:

Any public body ... that accepts any information on a South Dakota birth certificate as official and valid shall accept all information on a South Dakota birth certificate as official and valid in carrying out the public body's legal and official duties.

Department of Education Will Publicize Religious Colleges That Have Obtained Title IX Exemptions

As previously reported, over the last two years the U.S. Department of Education has granted a number of religiously-controlled colleges an exemption from Title IX where full compliance would conflict with their religious tenets.  With the exemption, the schools may continue to receive federal funds even though they discriminate in various ways on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion. In a press release yesterday, Human Rights Campaign says that now the Department of Education has agreed to create a searchable database of educational institutions that have applied for and/or received such exemptions. HRC comments:

While the Department of Education has little discretion to deny these requests for exemptions, religiously controlled educational institutions should not be exempt from full transparency.

Proposed Bill In New Mexico Would Amend RFRA To Protect Religiously- Based LGBT Discrimination

While New Mexico already has a Religious Freedom Restoration Act, last week two legislators pre-filed a bill for the new session that would expand the state's RFRA to permit businesses to refuse to conduct business with gay, lesbian and transgender individuals where the business has religious objections to doing so. Think Progress reports that the new House Bill 55, while prohibiting businesses from using religion to justify racial or gender discrimination, does not prohibit using religion to justify LGBT discrimination.  The Bill provides:

Nothing contained in the Human Rights Act shall ... burden a person's free exercise of religion by requiring the person to provide a service or to conduct business in a manner inconsistent with adherence to that person's sincerely held religious belief unless that adherence is based on race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition. 

Supreme Court Stays Alabama Refusal To Recognize Georgia Adoption

On Monday in V.L. v. E.L., (Docket No. 15-648) the U.S. Supreme Court issued a stay of an Alabama Supreme Court decision while it considers whether to grant certiorari in the case. (Order List, 12/14/2015.)  At issue is the Alabama Supreme Court's refusal to grant full faith and credit to a 2007 Georgia adoption decision involving a lesbian couple who were living together in Alabama as partners since 1995.  As reported by the Washington Post, one of the women, E.L., had three children conceived in 2002 and 2004 through donor insemination. The couple moved briefly to Georgia so that V.L. could obtain parental rights.  They then moved back to Alabama.  When the couple broke up in 2011, V.L. sought joint custody or visitation rights, but the Alabama Supreme Court refused holding that Georgia had violated its own laws in granting the initial adoption.  It held it need not recognize the adoption because the Georgia court lacked subject matter jurisdiction when it granted it.

British Columbia Court Requires Law Society Approval of Trinity Western Law School

In Trinity Western University v. Law Society of British Columbia, (BC SC, Dec. 10, 2015), a British Columbia trial court reinstated an April 2014 vote by the Benchers of the Law Society of British Columbia approving graduates of Trinity Western University Law School for entry into the Society's bar admissions program.  In October 2014, the benchers had reversed their earlier approval after a referendum of the full membership disapproved of Trinity Western's required community covenant for students and faculty. The covenant includes a prohibition on sexual intimacy outside of a marriage between a man and a woman. (See prior posting.) The court however concluded that the referendum and subsequent October vote of the Benchers were procedurally flawed:

There is no basis upon which a conclusion could be drawn ... that the LSBC’s membership considered, let alone balanced, the petitioners’ Charter rights against the competing rights of the LGBTQ community....

While the Benchers clearly weighed the competing Charter rights of freedom of religion and equality before voting on the April Motion, the record does not permit such a conclusion to be reached with respect to the Benchers’ vote of October 31, 2014. As the respondent had bound itself to accept the referendum results of its members, I am unable to find that the vote of the LSBC’s members or the impugned decision considered, let alone balanced, the two implicated Charter rights. Further support for this conclusion comes from the fact that opposite results were reached by the Benchers’ votes of April 11 and October 31, 2014, despite the October 31, 2014 vote being conducted without any substantive discussion or debate.

CTV News reports on the decision.

Court Denies Preliminary Injunction In Challenge To Fayetteville Civil Rights Ordinance

In Fayetteville, Arkansas yesterday a state trial court judge refused to issue a temporary injunction to prevent the city's Uniform Civil Rights Protection ordinance from going into effect today. According to the Northwest Arkansas Democrat Gazette, opponents of the ordinance argued that it infringes freedom of conscience and religion of those who have religious objections to the protection of homosexual and transgender rights.  The lawsuit also contends that the Ordinance was improperly approved and submitted to voters, and that it violates Arkansas' recently enacted Act 137 which prohibits cities from enacting civil rights protections "on a basis not contained in state law." (See prior posting.) Voters approved the Ordinance in a referendum this week by a 53% -47% vote.  The court concluded that plaintiffs had failed to show irreparable harm and a likelihood of success on the merits of their claims.

Houston Voters Reject Anti-Discrimination Law In Focus On Transgender Rights

Texas Tribune reports that in Houston, Texas yesterday voters rejected the city's Equal Rights Ordinance by a vote of 61% to 39%.  The Ordinance (full text) barred discrimination on the basis of sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity, or pregnancy.  In a campaign centered in churches to obtain a referendum on the measure (see prior posting), opponents of the measure focused on its sexual orientation and gender identity provisions.  Republican leaders in the state, including the governor and lieutenant governor, supported repeal of the Ordinance.  Yesterday Lt. Governor Dan Patrick, reflecting the predominate theme of the anti-Ordinance campaign, said:

The voters clearly understand that this proposition was never about equality – that is already the law. It was about allowing men to enter women’s restrooms and locker rooms — defying common sense and common decency.

 After the vote, Houston Mayor Annise Parker, the first openly gay mayor of a major U.S. city, said:

Unfortunately, I fear that this will have stained Houston’s reputation as a tolerant, welcoming, global city.  And I absolutely fear that there will be a direct economic backlash as a result of this.

Appeals Court: Sexual Orientation Not Covered By Missouri's Ban On Sex Discrimination In Employment

In Pittman v. Cook Paper Recycling Corp., (MO App., Oct. 27, 2015), a Missouri appeals court in a 2-1 decision held that the Missouri Human Rights Act does not bar employment discrimination on the basis of sexual orientation. At issue was a hostile work environment claim by a former male employee of a recycling company. Judge Welsh's opinion held:

The clear meaning prohibiting discrimination based upon "sex" under the Missouri Human Rights Act intended by the Missouri legislature concerns discrimination based upon a person's gender and has nothing to do with sexual orientation.

Judge Clayton in a brief opinion concurred with the result only.  Judge Gabbert dissented, saying:

Where our legislature used the broad term “sex,” and that term has been defined in many realms and most recently by the EEOC to include sexual orientation, I prefer to believe that if one is looking to the legislature for guidance, the legislature’s failure to exclude sexual orientation is more telling than its failure to act to include.

Columbia Daily Tribune reports on the decision.

Anchorage, Alaska Passes LGBT Anti-Discrimination Law Over Religious Objections

Late Tuesday night, the Anchorage, Alaska Assembly by a vote of  9-2 enacted amendments to the city's equal rights ordinance barring discrimination on the basis of sexual orientation and gender identity in housing, employment, public accommodations and education. (Full text of Ordinance as proposed.) Alaska Dispatch News reporting on the Assembly's actions says that the ordinance will take effect when signed by Assembly Chair Dick Traini, expected on Friday. Mayor Ethan Berkowitz does not plan to veto the ordinance. A package of 17 proposed amendments (full text) were largely rejected. They focused on expanding religious exemptions and rules for gender-segregated restrooms.  According to the Dispatch News:

In the end, only two were approved: a Flynn amendment stating that nothing in the law would trump state and federal First Amendment rights, and an Evans amendment adding a reference to a Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School vs. EOCC, to define a “ministerial exemption.”

The Assembly narrowly rejected Assembly Chair Dick Traini's proposals to extend the city’s existing religious preference law to “nonprofit affiliates,” such as Providence Alaska Medical Center, and to add language that would prevent employers from firing employees for expressing religious views.

Opponents of the law, who argue that it infringes religious liberty, plan to seek a referendum to repeal it. The Assembly rejected a proposal to require a public advisory vote on the measure.  Alaska Public Media reported:

Opposition to the bill came primarily from two socially conservative Assembly Members from the Eagle River Chugiak area, Amy Demboski and Bill Starr, both of whom say it infringes on residents’ religious and free speech rights. Much of the audience was wearing red–a sign of opposition to the measure, called for by a coalition of conservative faith groups. After hours of impassioned testimony that often addressed the crowd instead of fellow Assembly Members, Starr left his seat behind the dais to speak from the floor as a citizen rather than official.

“I buy into that Bible, that book, that says homosexuality and that type of deviant behavior is wrong.”

He then slipped on a red vest before receiving the night’s only standing ovation.

“And I’ll tell you what red is–somebody said ‘well what what are you wearing red for?’ It’s the blood of Jesus Christ folks, that’s what it represents.”

Fayetteville Voters Approve Controversial Anti-Discrimination Law

In Fayetteville, Arkansas on Tuesday voters approved the city's controversial Uniform Civil Rights Protection Ordinance.  According to the Arkansas Democrat-Gazette, complete unofficial returns show 7,666 votes for and 6,860 against the Ordinance that bars discrimination in employment, public accommodations, real estate, contracts and voting on the basis of sexual orientation and gender identity. Opponents, many of whom object that the religious exemptions in the ordinance are too narrow, have filed suit challenging the legality of the Ordinance. They claim it violates free exercise and free speech rights as well as Arkansas' recently enacted Intrastate Commerce Improvement Act that prohibits counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. (See prior posting.)

Suit Challenges Fayetteville, Arkansas Anti-Discrimination Ordinance

In Fayetteville, Arkansas, a group known as Protect Fayetteville filed suit yesterday challenging the city's Uniform Civil Rights Protection Ordinance 5781 which voters are casting ballots on in a referendum this month.  The Ordinance expands civil rights protections to include bans on discrimination on the basis of sexual orientation and gender identity, and creates a city Civil Rights Commission.  The Ordinance contains an exemption for churches, religious schools and daycare facilities, and religious organizations. Opponents, however, complain that there is no exemption for individual clergy. The Ordinance was enacted after voters repealed an earlier anti-discrimination law last year.  (See prior posting.) According to KFSM News, the lawsuit claims that the Ordinance violates Arkansas' recently enacted Intrastate Commerce Improvement Act that bars counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. The lawsuit also claims the Ordinance violates freedom of religion and speech.

Boy Scouts End Ban on Gay Adult Leaders and Employees, But Allow Church-Sponsored Troops To Refuse Gay Leaders

In a press release yesterday, the Boy Scouts of America announced:

On Monday, July 27, the National Executive Board ratified a resolution that removes the national restriction on openly gay adult leaders and employees. Of those present and voting, 79 percent voted in favor of the resolution. The resolution was recommended for ratification by the Executive Committee earlier this month. The resolution is effective immediately.

Chartered organizations will continue to select their adult leaders and religious chartered organizations may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality. This change allows Scouting’s members and parents to select local units, chartered to organizations with similar beliefs, that best meet the needs of their families. This change also respects the right of religious chartered organizations to choose adult volunteer leaders whose beliefs are consistent with their own.

Religion News Service yesterday reported on the 14-page Legal Memo (full text) that the Scouts received from their outside counsel titled Effect of Changes in Adult Leader Standard on Religious Chartered Organizations. The memo reads in part:

The change in the BSA policy would still allow units chartered by religious organizations that as a matter of religious belief consider homosexual conduct inconsistent with their religion to limit adult leadership in accordance with that belief. Units not chartered by religious organizations could not exclude homosexuals who otherwise meet the BSA’s high adult leader standards and the chartered organization’s standards.

All other leader requirements, including “duty to God,” would remain in effect for all chartered organizations....

We understand that some religious organizations are concerned that if they exclude homosexuals from leadership in Scouting units that they charter after the BSA changes its policy they will be vulnerable to lawsuits from the potential leaders they exclude. Those concerns should be allayed by the legal defenses that religious organizations have under place of public accommodation statutes and the First Amendment to the Constitution of the United States.

 The Boy Scouts removed restrictions on gays becoming scout members in 2013. (See prior posting.)

Obama Takes Kenya To Task Over Gay Rights; Kenyan President Responds

At a news conference (full text) yesterday on his visit to Kenya, President Obama criticized Kenya for its treatment of gays and lesbians. Kenyan President Kenyatta responded:

PRESIDENT OBAMA: ... Similarly, with respect to the rights of gays and lesbians, I’ve been consistent all across Africa on this.  I believe in the principle of treating people equally under the law, and that they are deserving of equal protection under the law and that the state should not discriminate against people based on their sexual orientation.  And I say that, recognizing that there may be people who have different religious or cultural beliefs.  But the issue is how does the state operate relative to people.  

If you look at the history of countries around the world, when you start treating people differently -- not because of any harm they’re doing anybody, but because they’re different -- that’s the path whereby freedoms begin to erode and bad things happen.  And when a government gets in the habit of treating people differently, those habits can spread.  

And as an African-American in the United States, I am painfully aware of the history of what happens when people are treated differently, under the law, and there were all sorts of rationalizations that were provided by the power structure for decades in the United States for segregation and Jim Crow and slavery, and they were wrong.  

So I’m unequivocal on this.  If somebody is a law-abiding citizen who is going about their business, and working in a job, an obeying the traffic signs -- (laughter) -- and doing all the other things that good citizens are supposed to do, and not harming anybody -- the idea that they are going to be treated differently or abused because of who they love is wrong.

And the state does not need to weigh in on religious doctrine.  The state just has to say we’re going to treat everybody equally under the law.  And then everybody else can have their own opinions....

PRESIDENT KENYATTA: ... With regard to the second question, just like President Obama, I think we also need to be able to speak frankly about some of these things.  And the fact of the matter is that Kenya and the United States, we share so many values -- our common love for democracy, entrepreneurship, value for families.  These are things that we share.  But there are some things that we must admit we don’t share -- our culture, our societies don’t accept.  It is very difficult for us to be able to impose on people that which they themselves do not accept.  

This is why I repeatedly say that, for Kenyans today, the issue of gay rights is really a non-issue.  We want to focus on other areas that are day-to-day living for our people:  The health issues that we have discussed with President Obama.  These are critical.  Issues of ensuring inclusivity of women, a huge section of society that is normally left out of the mainstream of economic development.  What we can do in terms of infrastructure; what we can do in terms of education; in terms of our roads; in terms of giving our people power, encouraging entrepreneurship.  These are the key focuses.  

Maybe once, like you have overcome some of these challenges, we can begin to look at new ones.  But as of now, the fact remains that this issue is not really an issue that is on the foremost mind of Kenyans, and that is the fact.

Homosexual acts between men are punishable by 14 years (and in some cases 21 years) in prison in Kenya. (Background.)

Texas Supreme Court OK's Referendum Petitions On Houston's Equal Rights Ordinance

As previously reported, in May 2014 the Houston, Texas City Council passed an Equal Rights Ordinance that attracted significant opposition because of its ban on discrimination on the basis of sexual orientation or gender identity. Opponents circulated petitions to get a repeal referendum on the ballot.  The City Secretary certified that there were sufficient signatures on the petitions, but the City Attorney disputed that conclusion and City Council refused to move ahead with the reconsideration of the Ordinance that is required when a valid referendum petition is filed. (See prior posting.) Litigation ensued in various courts.  In In re Jared Woodfill, et. al.,  (TX Sup. Ct., July 24, 2015), the Texas Supreme Court conditionally granted a writ of mandamus to proponents of the referendum, holding:

The Charter ... gives the City Council no discretion to reevaluate the petition; instead, it requires “immediate[]” action by the City Council following the City Secretary’s certification....

The City Council is directed to comply with its duties, as specified in the City Charter, that arise when the City Secretary certifies that a referendum petition has a sufficient number of valid signatures. Any enforcement of the ordinance shall be suspended, and the City Council shall reconsider the ordinance. If the City Council does not repeal the ordinance byAugust 24, 2015, then by that date the City Council must order that the ordinance be put to popular vote during the November 2015 election. The writ will issue only if the City Council does not comply.

Josh Blackman's Blog has more on the decision, as does the Houston Chronicle.

EEOC Holds That Sexual Orientation Discrimination Is Covered Under Title VII

In a July 15 decision (full text), the Equal Employment Opportunity Commission reversed and remanded the Federal Aviation Administration's rejection of an employment discrimination complaint by an FAA employee who claimed he was denied a promotion because he is gay.  In a precedent setting opinion, the EEOC held that:

allegations of discrimination on the basis of his sexual orientation state a claim of discrimination on the basis of sex within the meaning of Title VII.

In reaching its conclusion, the EEOC drew analogies to cases in which courts have held that discrimination on the basis of an employee's association with persons of another race amounts to racial discrimination. It added that sexual orientation discrimination is necessarily based on gender stereotypes. The EEOC also rejected the argument that unsuccessful efforts to obtain passage of legislation in Congress explicitly adding sexual orientation to Title VII should lead it to reject the discrimination claim here. The Washington Blade and Dale Carpenter at Volokh Conspiracy have more on the decision.

Meanwhile the EEOC features a posting on its website titled What You Should Know About EEOC and the Enforcement Protections for LGBT Workers. 

Senate Lacks Votes To Adopt LGBT School Anti-Bullying Amendment

As reported by the Washington Post, the U.S. Senate yesterday failed to pass an anti-bullying amendment (details) offered by Sen. Al Franken to the Every Child Achieves Act of 2015. The amendment would have prohibited discrimination and bullying on the basis of perceived sexual orientation or gender identity in K-12 public schools. While the vote (details) in favor of the amendment was 52-45, the Senate needed 60 votes to approve it. Sen. Lamar Alexander, chairman of the Senate Committee on Health, Education, Labor and Pensions, who is also a former education secretary, urged his colleagues to vote against the amendment because it was an issue better handled at the local level.