Swiss Airline Settles Suit By Female Passenger Pressured To Move Seats

As reported this week by Live and Let's Fly, the Swiss airline easyJet has settled a lawsuit brought against it in an Israeli court by a woman passenger who, on a Tel Aviv to London flight, was pressured into moving her seat because a Haredi Jewish passenger refused for religious reasons to sit next to a woman. The airline said that pressuring the woman to move is inconsistent with it policies. [Thanks to Tom Rutledge for the lead.]

DOE Says Bostock Decision Does Not Apply To Title IX

 As reported by Education Week, the U.S. Department of Education has released a Jan. 8, 2021 Memorandum (full text) on the impact of the U.S. Supreme Court's Bostock decision on Title IX. While Bostock held that the ban on sex discrimination in Title VII includes discrimination on the basis of sexual orientation and gender identity, the DOE Memo concludes that Bostock does not apply to Title IX, saying in part:

[T]he Department’s longstanding construction of the term “sex” in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of “sex” at the time of Title IX’s enactment.

The memo goes on to provide that some kinds of discrimination based on a person's homosexuality or transgender status may violate Title IX because the discrimination takes into account the person's biological sex.  Examples are employment discrimination and sexual harassment. However, in other educational situations, Title IX does not protect against sexual orientation or gender identity discrimination:

We believe the ordinary public meaning of controlling statutory and regulatory text requires a recipient providing separate athletic teams to separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality, to comply with Title IX.

Under Title IX and its regulations, a person’s biological sex is relevant for the considerations involving athletics, and distinctions based thereon are permissible and may be required because the sexes are not similarly situated.

Disagreeing with two Circuit Court opinions, the memo states:

[W]e believe the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing “separate toilet, locker room, and shower facilities on the basis of sex” to regulate access based on biological sex.

The Memorandum also recognizes that religious exemptions under Title IX and RFRA still apply.

India's Supreme Court Invalidates Ban On Women In Temple

In Indian Young Lawyers Association v. State of Kerala, (India Sup. Ct., Sept. 28, 2018), the Supreme Court of India by a vote of 4-1 struck down a rule of the Sabarimala Temple that prevents women between the age of 10 and 50 years from entering. Four separate opinions spanning 411 pages were filed. Chief Justice Misra, who began his plurality opinion by quoting Susan B. Anthony, said in part:

The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion.  

Economic Times reports on the decision.

Alaska Christian Women's Shelter Challenges Requirement It Serve Transgender Women

In Anchorage, Alaska, a Christian soup kitchen and women's shelter-- the Hope Center-- has filed a federal lawsuit against the Anchorage Equal Rights Commission seeking to end the Commission's investigation of the Center. According to KTTU News, The controversy grows out of the Hope Center's denial of shelter services to a transgender woman and her filing of a discrimination complaint. The suit seeks to end the Commission's investigation of the Center for violation of the city's anti-discrimination law that protects against discrimination on the basis of gender identity. The Center's complaint alleges in part:

It would not only be dangerous and against common sense, but would violate the Hope Center’s sincerely held religious beliefs to admit biological men into its shelter and allow them to sleep side by side and disrobe next to women, some of whom have been assaulted by men and fear for their safety.

Switzerland Denies Citizenship To Muslim Couple For Their Rejection of Gender Equality

BBC News reported last week that Swiss authorities have denied the citizenship application of a Muslim couple who refused to shake hands with individuals of the opposite sex during their citizenship interview. To obtain citizenship, an applicant must be well integrated into the Swiss community and demonstrate an attachment to the country, its institutions and a respect for its legal order. According to the report:

Officials stressed they were not rejected based on their religion but for their lack of respect for gender equality.

[Thanks to Scott Mange for the lead.]

Israeli Court Says El Al May Not Ask Women To Change Seats To Accommodate Religious Concerns of Male Passengers

According to the New York Times, an Israeli court in Jerusalem yesterday ruled that El Al Airline's policy of asking women passengers to move seats in order to accommodate religious beliefs on modesty of ultra-Orthodox Jewish men violates Israel's anti-discrimination laws.  Requests for seating changes by male passengers who are concerned about inadvertent physical contact have delayed flights in recent years.  According to the Times:

In discussions outside the courtroom, the two sides in the case agreed on a judgment proposed by the judge, declaring that it is forbidden for a crew member to ask a passenger to change seats at the request of another passenger based on gender. El Al agreed to tell its cabin staff in writing about the prohibition within 45 days, and to provide training in how to deal with such situations within six months.

The court also awarded plaintiff, 83-year old Renee Rabinowitz, damages equivalent to $1800(US). [Thanks to Steven H. Sholk for the lead.]

Australian Court Says Sex-Segregated Seating At Muslim Lecture Violates Anti-Discrimination Law

In Bevege v Hizb ut-Tahrir Australia, (NSW Civ & Adm Trib, March 4, 2016), the Civil and Administrative Tribunal of the Australian state of New South Wales held that sex-segregated seating at a lecture sponsored by a Muslim group violates the New South Wales Anti-Discrimination Act of 1977. The sponsor of the lecture, Hizb ut-Tahrir Australia, identifies itself as an 'international political party with a franchise in Australia."  When Alison Bevege attended the group's lecture on American intervention in Iraq and Syria, she was directed to a section of the auditorium reserved for women and children.  Hizb ut-Tahrir argued to the court that separate seating of men and women "is a part of Islam, and Muslims globally are adhering to this practice through choice as part of their belief and culture."

While the Anti-Discrimination Act has an exemption for acts or practices "of a body established to propagate religion that conforms to the doctrine of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion," (Sec. 56(d)), the court concluded that this exemption does not apply.  It was not shown that Hizb ut-Tahrir was established to propagate religion.  Also because Hizb ut-Tahrir argued that Bevege would have been allowed to choose her own seat if she had requested to do so, this shows that separate seating was not necessary to avoid injury to the religious susceptibilities of Muslims attending the lecture.

To avoid similar discrimination in the future, the court ordered that at events sponsored by the organization there must be notices that gender segregated seating is not compulsory, and ushers must be made aware of this.  Law and Religion Australia has more on the decision.

El Al Sued In Israel Over Gender-Based Reseating To Accommodate Religious Objections

A widely anticipated test case has been filed in court in Israel against El Al Airlines over its practice of accommodating Orthodox Jewish men who, for religious reasons, refuse to sit beside unrelated female passengers. New York Times reported Friday on the discrimination suit filed by the Israel Religious Action Center on behalf of 81-year old Renee Rabinowitz who was pressured by a flight attendant to change seats on a flight from Newark to Tel Aviv.  Rabinowitz is described by the Times as "a sharp-witted retired lawyer with a Ph.D. in educational psychology, who escaped the Nazis in Europe as a child." Rabinowitz moved to Israel from the United States some ten years ago.  Both her second and first husbands were rabbis. The Religious Action Center had been looking for at test case where it was clear that flight attendants, as opposed to passengers alone, were involved in the seating change.

NYC Taxi Appeals Unit Says Religious Belief of Driver Does Not Justify Gender Discrimiination

Triggered by a New York Post article, a number of media outlets last week reported on a Sept. 3, 2015 decision of the New York City OATH Taxi and Limousine Tribunal Appeals Unit.  In Taxi & Limousine Commission v. Tamsir Drammeh , the Appeals Unit upheld a hearing officer's decision that a Muslim cab driver violated a Commission rule prohibiting any action that is "against the best interest of the public" when he refused to transport a female passenger in the front seat of his cab for religious reasons. When a family of four hailed the cab, the driver told them that all four could sit in back, or the husband could sit in front, but the wife could not. The Hearing Examiner concluded: "That his religion did not allow him to sit next to a woman is not an acceptable defense in an occupation that is operated to serve the public." Affirming that decision, the Appeals Unit stated:

There is strong public policy which prohibits a TLC licensee from engaging in “invidious discrimination while serving the public” .... In addition, it is well established that a taxicab driver is required to possess sufficient self-restraint to deal in a mature fashion with the everyday conflicts inherent in his job.... This includes a situation where the driver’s religious beliefs may conflict with his obligations and duties as a taxi driver to transport members of the public.

Here, the respondent’s determination that it would be proper for the passenger’s husband to sit in the front seat, but not proper for the passenger to do so solely because of her gender, evidenced a discriminatory attitude and constituted an action against the best interests of the public.

The cabbie was fined $350 and suspended for one day.

Female GITMO Guards File Discrimination Complaints After Judges Grant Prisoners' Accommodation Requests

Muslim defendants in two cases before military commissions at Guantanamo Bay have been objecting to the military's assigning female guards to transfer them to meetings with their attorneys and to hearings.  The transfers result in physical contact between guards and the prisoners.  Military judges have issued at least interim orders barring the practice which violates defendants' religious beliefs. (See prior related postings 1, 2). Now AP reports that female guards at Guantanamo have filed complaints with the Defense Department's Office of Diversity Management and Equal Opportunity claiming that the orders amount to gender discrimination.