HHS Adopts Amended Rules Reducing LQBTQ Anti-Discrimination Protections

The Department of Health and Human Services yesterday adopted final rules (full text of Release adopting rules) which narrow LGBTQ non-discrimination protections.  Previously, 45 CFR 75.300(c) barred discrimination on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation in receiving benefits of HHS programs or in administering funded programs. The newly amended rule instead reads:

It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.

Previously 45 CFR 75.300(d) required grant recipients to treat same-sex marriages as valid. The newly amended rule instead reads:

HHS will follow all applicable Supreme Court decisions in administering its award programs.

In its 86-page release adopting the rule, HHS said that enforcing the prior rule may violate the Religious Freedom Restoration Act. ADF issued a press release announcing the adoption of the new rules. Americans United issued a press release criticizing the new rule.

Religious Education Companies Face No Threat Under Indiana Cities' Anti-Discrimination Law

 In Indiana Family Institute, Inc. v. City of Carmel, (IN App., Sept. 10, 2020), an Indiana state appellate court dismissed a suit brought by two companies offering religion-based education programs against four Indiana cities. Plaintiffs claim that their exclusion of same-sex married couples from their events would subject them to various penalties under the cities' non-discrimination ordinances, and that protections in Indiana's RFRA are not broad enough to cover them. The court however found that the companies face no threat of injury, saying in part:

The Companies do not require event attendees to share the same religious beliefs, and the Companies’ own designated evidence demonstrates that they have permitted “many gay people” to attend their programs....

Although the Companies claim that their rights to hold events in the Cites are chilled because of the ordinances’ failure to exempt their activities from enforcement, none of the Companies have been the subject of a complaint or investigation; nor have they been threatened with sanctions or penalties.... 

[T]he Companies have failed to show how the ordinances subjected them to an imminent threat of harm or that they faced a credible threat of prosecution.

Suit Challenges Rollback of Health Care Anti-Discrimination Rule

Suit was filed today in a New York federal district court by two transgender women of color challenging the Department of Health and Human Services' recent rule revisions that roll back health care anti-discrimination coverage for gay and transgender individuals. The complaint (full text) in Walker v. Azar, (ED NY, filed 6/26/2020), alleges in part:

2. The 2020 Rule directly contravenes the Supreme Court of the United States’ recent holding in Bostock v. Clayton Cty., Georgia ... (June 15, 2020), that discrimination “on the basis of sex” includes, without reservation, discrimination based on an individual’s gender identity, including transgender status, or sexual orientation.

3. If allowed to take effect, the 2020 Rule will directly threaten the ability of members of the LGBTQ community to access medically necessary, potentially life-saving medical and health care by removing clear prohibitions against discrimination. And even if members of the LGBTQ community are able to access such health care, the 2020 Rule puts them at grave risk of inadequate care wrought with discrimination solely on account of their identities, which the 2020 Rule makes permissible.

Human Right Campaign issued a press release announcing the filing of the lawsuit and providing additional background.

Texas Sues California In Supreme Court Over Travel Ban To States Allowing LGBTQ Discrimination

This week, the state of Texas filed an original suit in the U.S. Supreme Court against the state of California challenging California's ban on the state paying for travel by its employees to other states that allow discrimination against LGBTQ individuals or families. The complaint (full text of complaint and brief in support) in State  of Texas v. State of California, (US Sup. Ct., filed/2/10/2020) reads in part:

California has enacted and is enforcing economic sanctions against Texas, Texas citizens,and Texas businesses. California has targeted Texas and its residents because To Texas protects the religious freedom of faith-based child welfare providers within its borders....

California’s sanctions against Texas and Texans are born of religious animus and violate the Constitution’s Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1; Interstate Commerce Clause, id. art. I, § 8, cl. 3; and guarantee of Equal Protection, id. amend. XIV, § 1.

The complaint and brief in support of the state's motion for leave to file a bill of complaint which is attached to the complaint seeks an order forcing California to take down its travel ban or remove Texas from it. Texas Attorney General's office has issued a press release announcing the filing of the suit.

Court Dismisses Challenges To Indiana's RFRA

Last week an Indiana state trial court judge ruled that three Christian educational and advocacy organizations lack standing to challenge the constitutionality of Indiana's version of the Religious Freedom Restoration Act that excludes from its coverage conduct that discriminates, among other things, on the basis of sexual orientation or gender identity. The court also held that plaintiffs' claims are not ripe for adjudication. WIBC News reports on the decision. Here is the complaint filed in the case.

Virginia School Board Expands Non-Discrimination Policy

The Stafford County, Virginia school board yesterday voted 4-3 to update its anti-discrimination policy to cover discrimination on the basis of race, color, national origin, political affiliation, religion, sex, pregnancy, childbirth or related medical conditions, marital status, mental or physical disability, genetic information, sexual orientation, gender identity, or any other characteristic prohibited by state and/or federal law. (Full text of updated policy). As reported by Shareblue Media, the expanded policy resulted from the school's handling of an active shooter drill last year. While other students were sent to wait in their locker rooms, the transgender student was left to wait in the gym because staff did not know which locker room to assign her to.

House Passes Equality Act To Ban LGBTQ Discrimination

The U.S. House of Representatives last Friday passed H.R. 5, the Equality Act (full text) by a vote of  236-173 (largely along party lines). The bill, which now goes to the Senate, amends various federal anti-discrimination laws to provide that the ban on sex discrimination includes sexual orientation and gender identity. Roll Call reports on the House action.

Court Says Fair Housing Act Does Not Bar Sexual Orientation Discrimination

In Walsh v. Friendship Village of South County, (ED MO, Jan. 16. 2019), a Missouri federal district court, relying on a 1989 decision by the 8th Circuit under Title VII, held that sexual orientation discrimination is not covered by the federal Fair Housing Act. At issue was the refusal, on religious grounds, of a senior living community to rent an apartment to a married lesbian couple. Courthouse News Service reports on the decision.

Churches Win Exemption From Anti-Discrimination Ordinance

The Green Bay Press Gazette reports that on Friday a Wisconsin state trial court held that De Pere, Wisconsin's anti-discrimination ordinance infringes the free exercise rights of churches and that churches should not be considered public accommodations under the statute.The ordinance prohibits discrimination in housing, employment and public accommodations on the basis of sex, marital status, sexual orientation or gender identity, (See prior posting.)

Religious Adoption Agency Sues Over Nondiscriminaton Rule

A suit was filed this week in New York federal district court challenging a New York regulation that (Title 18 NYCCR Sec.421.3) that adoption agencies may not discriminate against applicants for adoption services on various grounds, including sexual orientation, gender identity and marital status.  New Hope Family Services, a faith based adoption agency, refuses to recommend or place children with unmarried couples or same-sex couples.  The complaint (full text) in New Hope Family Services, Inc. v. Poole, (ND NY, filed 12/6/2018) contends that this regulation violates the agency's free exercise, free expression and equal protection rights. ADF issued a press release announcing the filing of the lawsuit.

Michigan AG and Civil Rights Commission At Odds Over Coverage of LGBTQ Discrimination

In May, the Michigan Civil Rights Commission issued an Interpretive Statement declaring that the protection against discrimination because of sex in the state's Elliott Larsen Civil Rights Act includes protection against discrimination on the basis of sexual orientation and gender identity.  On July 20, Michigan's Attorney General Bill Schuette issued Opinion No. 7305 concluding that the Civil Rights Commission's interpretation "is invalid because it conflicts with the original intent of the Legislature as expressed in the plain language of the Act, and as interpreted by Michigan’s courts." The Opinion elaborates:

The word “sex” was understood in 1976, when ELCRA was enacted, to refer to the biological differences between males and females, not to refer to the concepts of sexual orientation or gender identity.

Yesterday the Civil Rights Commission issued a press release taking issue with the Attorney General and reaffirming its earlier Interpretive Statement, saying in part:

The Michigan Civil Rights Commission is an independent, constitutionally created and established body.... The Commission is not bound by the opinion of the Attorney General.

Church Sued By Manager of Its Event Space Over LGBTQ Access

A suit seeking $2.375 million in damages against a Portland, Oregon Catholic church was filed in an Oregon state court two weeks ago by a company which alleges that its business relationship with the church was wrongfully terminated.  The complaint (full text) in Holiday Investors, Inc. v. Holy Rosary Church of  Portland, Oregon, Inc., (Cir. Ct., filed 5/22/2018), alleges that plaintiff contracted to operate the Ambridge Event Center, a social hall owned by the church.  Under a morals clause in its contract with the church, plaintiff was not permitted to rent out the event center to persons or organizations affiliated with the LGBTQ community.  When plaintiff, pursuant to this requirement, refused to rent space to an African-American LGBTQ support group for its annual party, it suffered extensive negative publicity.  In an attempt to rehabilitate its reputation, plaintiff, among other things, hired an openly gay man as its events coordinator.  This resulted in the church terminating its contract with plaintiff. Plaintiff sued alleging breach of contract and violation of state anti-discrimination laws.  The Oregonian reports on the lawsuit and sets out further background.  [Thanks to Dusty Hoesly for the lead.]

Michigan Civil Rights Commission Says Existing Law Covers LGBT Discrimination

The Detroit Free Press reports that at its meeting today, the Michigan Civil Rights Commission, by a vote of 5-0-1, agreed to expand its interpretation of the state's Larsen Civil Rights Act to cover discrimination based on sexual orientation or gender identity.  The Commission will treat discrimination on these grounds in employment, education, housing, real estate, public accommodations and public service as violations of the existing law. The Commission will begin accepting complaints reflecting this new interpretation starting tomorrow.  The state attorney general's office, however, takes the position that this kind of expansion of coverage required legislative action.

Missouri Supreme Court Hears Oral Arguments On Sexual Orientation and Gender Identity Discrimination

Yesterday, the Missouri Supreme Court heard oral arguments in two cases posing the question of whether the prohibition on "sex" discrimination in the state's civil rights laws includes discrimination on the basis of gender identity or sexual orientation. The first case, R.M.A. v. Blue Springs R-IV School District (audio of full arguments), involves discrimination claims by a middle school student who was born a female but transitioned to male, who has not been allowed by his school to use the boy's rest rooms or locker room.  Because of his female genitalia, the school required him to use a unisex bathroom.

The second case, Lampley v. Missouri Commission on Human Rights (audio of full arguments), Harold Lampley, a state department of social services employee, alleged discrimination and retaliation because he is gay and does not exhibit stereotypical attributes of male appearance and behavior. A second employee alleged discrimination and retaliation because of her association with Lampley.

The Missouri Supreme Court's Docket Summaries page includes more information on the cases and links to briefs (including amicus briefs) filed in each case case [scroll down to SC96683 and SC 96828.  AP reports on the oral arguments.

2nd Circuit En Banc: Title VII Covers Sexual Orientation Discrimination

In a 10-3 en banc decision yesterday, the U.S. 2nd Circuit Court of Appeals, overturning prior 2nd Circuit precedent, held that "sexual orientation discrimination constitutes a form of discrimination 'because of . . . sex,' in violation of Title VII" of the 1964 Civil Rights Act.  In Zarda v. Altitude Express, Inc., (2d Cir., Feb. 26, 2018), Chief Judge Katzmann filed the majority opinion which concluded that (1) sexual orientation discrimination is motivated in part by sex and thus is a subset of sex discrimination; (2) sexual orientation discrimination involves gender stereotyping; and (3) sexual orientation discrimination involves associational discrimination.  Only four other judges joined this opinion in full.

Judge Pooler, without a separate opinion, joined the gender stereotyping and associational discrimination rationales.  In concurring opinions, Judge Jacobs and Judge Sack agreed only with the associational discrimination approach.  Judge Cabranes concurred only in the judgment, saying sexual orientation is a function of sex.  Judge Lohier concurred on the basis of the majority's textualist approach.
Judges Lynch, Livingston and Raggi dissented based largely on legislative history and the intent of the drafters of Title VII. 

In the case, the Justice Department and the EEOC had filed amicus briefs taking opposite positions from each other.  (See prior posting.)  AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Michigan Civil Rights Commission Stymied In Effort To Issue Interpretive Opinion On Law's Coverage

In June, Equality Michigan wrote the Michigan Civil Rights Commission asking it to issue an interpretative statement finding that the ban on sex discrimination in employment, housing, and public accommodations in Michigan’s Elliott-Larsen Civil Rights Act covers discrimination based on gender identity and sexual orientation. (Full text of letter.)  As reported by MLive, on Monday the Commission held a lengthy hearing on the request, but took no final action after an Assistant Attorney General told the Commission that lacks legal authority to issue an interpretive statement. A frustrated Commission voted 5-2 to ask the Attorney General for a formal opinion on its authority.

DOJ, EEOC File Opposing Briefs On Title VII and LGBT Discrimination

On Wednesday, the Department of Justice filed an amicus brief (full text) with the U.S. Second Circuit Court of Appeals in the court's en banc rehearing in Zarda v. Altitude Express, Inc.  In the case the Justice Department argued that "Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination."  That position directly contradicts the position taken by the EEOC in an amicus brief (full text) filed last month in the same case.  The EEOC argued that sexual orientation discrimination claims "fall squarely within Title VII’s prohibition against discrimination on the basis of sex." BuzzFeed reports on the Justice Department's brief.

West Virginia Supreme Court: Sexual Orientation Not Covered By Civil Rights Law

In State of West Virginia v. Butler, (Sup. Ct. WV, May 9, 2017), the West Virginia Supreme Court of Appeals in a 3-2 decision held that "sex" in the state's civil rights statute does not include sexual orientation.  At issue is defendant's indictment for assaulting a same-sex couple.  The Court said in part:

In 1987, our Legislature exercised its right to define crimes when it enacted West Virginia Code § 61-6-21(b) through which it became a felony to violate a person’s civil rights by threat, intimidation and/or injury to another person or another person’s property because of specifically enumerated characteristics, including the victim’s “sex.” W.Va. Code § 61-6-21(b). In determining what is meant by the word “sex,” we are mindful that “‘[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.’ 

Justice Workman joined by Justice Davis filed a dissenting opinion.

11th Circuit: Title VII Does Not Bar Sexual Orientation Discrimination

In Evans v. Georgia Regional Hospital, (11th Cir., March 10, 2017), the U.S. 11th Circuit Court of Appeals in a 2-1 decision held that Title VII of the 1964 Civil rights Act does not protect against employment discrimination on the basis of sexual orientation. Jude Martinez, in his majority opinion, held:

Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)4 (“Discharge for homosexuality is not prohibited by Title VII . . . .”). “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.”

Judge Pryor concurring wrote in part:

I write separately to explain the error of the argument of the Equal Employment Opportunity Commission and the dissent that a person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes.  Although a person who experiences the former will sometimes also experience the latter, the two concepts are legally distinct. And the insistence otherwise by the Commission and the dissent relies on false stereotypes of gay individuals.

Judge Rosenbaum, dissenting in part, wrote:

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), and it clearly violates Title VII under Price Waterhouse [v. Hopkins, 490 U.S. 228 (1989)].

Atlanta Journal Constitution reports on the decision.

Suit Says City Misled Public About Scope of Ordinance Adding LGBT Protections

Liberty Counsel announced yesterday that it has filed a lawsuit challenging the validity of recent amendments to the Jacksonville, Florida Human Rights Ordinance.  The complaint (full text) in Parsons v. City of Jacksonville, Florida, (FL Cir. Ct., filed 3/1/2017), alleges that amendments adding "sexual orientation" and "gender identity" to the "protected categories" in the Jacksonville's existing nondiscrimination laws were improperly adopted.  Florida state law provides:

No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection.

The new lawsuit contends that the amendments to the Human Rights Ordinance failed to set out the provisions that were being amended, and charges that "the violations result from the intentional omission of plain and obvious legal requirements, by the ordinance authors and sponsors, to deceive the Jacksonville public, City Council, and Mayor as to the true contents and scope of the HRO."