Kate Brumback | Associated Press
ATLANTA — In a setback for gay rights advocates hoping for an expansion of workplace discrimination protections, a federal appeals court in Atlanta has ruled that employers aren’t prohibited from discriminating against employees because of sexual orientation.
A three-judge panel of the 11th U.S. Circuit Court of Appeals on Friday, March 10, ruled 2-1 that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on a variety of factors, doesn’t protect against workplace discrimination based on sexual orientation.
The case was one of two that Lambda Legal had pending before federal appeals courts — along with an Indiana case at the 7th U.S. Circuit Court of Appeals in Chicago — that the LGBT rights group had hoped would mark a significant step forward for gay rights.
Jameka Evans in April 2015 sued her former employer, Georgia Regional Hospital in Savannah, alleging that she was discriminated against and effectively forced from her job as a security guard because she is a lesbian and didn’t conform to gender norms.
Visiting Judge Jose E. Martinez wrote in the majority opinion that the court was bound by precedent set by a 1979 case that said Title VII doesn’t prohibit “discharge for homosexuality.” Other circuits have also found that sexual orientation is not a protected class under that law, Martinez wrote.
An 11th Circuit decision from 2011 said discrimination against a transgender employee because of gender non-conformity amounted to sex discrimination and was not allowed, and Evans’ attorneys argued it should also protect gays and lesbians who claimed discrimination based on their sexual orientation.
Circuit Judge William Pryor, who was a party to that opinion, argued in a concurring opinion that the transgender case, which involved a legislative aide who was fired after telling her boss she planned to undergo a gender transition, was based on behavior rather than status.
“A gay individual may establish with enough factual evidence that she experienced sex discrimination because her behavior deviated from a gender stereotype held by an employer, but our review of that claim would rest on behavior alone,” Pryor wrote.
Pryor also argued that it was up to Congress, not the courts, to declare sexual orientation a protected class.
Circuit Judge Robin Rosenbaum wrote in a dissenting opinion that it is time for the court to recognize that the law prohibits workplace discrimination based on an employee’s sexual orientation because that is discrimination based on sex.
“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,” Rosenbaum wrote.
Evans’ lawsuit also included a claim that she was targeted because of gender-based behavior, notably dressing like a man and having a male haircut. The majority opinion said that could amount to a claim that’s not based on her sexual orientation and instructed the lower court to allow her to amend her initial lawsuit to try to bolster that claim.
In a similar case, a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago in July upheld a lower court’s dismissal of a 2014 lawsuit filed by Kimberly Hively of South Bend, Indiana, a former part-time instructor who said Ivy Tech Community College in her hometown didn’t hire her full time because she is a lesbian.
The full 7th Circuit vacated that panel’s decision, and all 11 of the court’s judges reheard the case in November. The ruling has not yet been announced, but several of the judges seemed to signal during oral arguments that they were ready to broaden the scope of the 53-year-old civil rights law.
Lambda Legal attorneys said they plan to ask the 11th Circuit to vacate the Evans ruling and have the full 11-judge court rehear the case, like the 7th Circuit did in the Hively case.
“This is not the end of the road for us and certainly not for Jameka,” attorney Greg Nevins said in an emailed statement. “There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity because not being straight is gender-nonconforming, period.”
N.C. senator’s staff restricts his Twitter use after he posts dog GIF
CHARLOTTE, N.C. — A North Carolina state senator who’s running for mayor of Charlotte has had his Twitter use restricted by his campaign manager after he posted an animated image of a defecating dog in response to critics of his LGBT stance.
WFAE-FM in Charlotte reports that campaign manager Dakota Cary confirmed the tweet was sent Tuesday, March 7, by Democratic state Sen. Joel Ford.
The offending tweet was a response to criticism from local gay activist Matt Comer, who attacked Ford for his record on lesbian, gay, bisexual and transgender issues. Comer said Ford later called to apologize.
Cary said Ford used the GIF image because when he’s targeted on Twitter, it’s easier than “typing out the same response each time.”
Cary said the campaign might create a list of pre-approved GIFs for Ford.
Court expects to rule quickly on whether Moore can return tobench
MONTGOMERY, Ala. — Judges have said they will issue a decision quickly on whether suspended Alabama Chief Justice Roy Moore can return to the bench. A specially appointed appellate court last week granted Moore’s request for an expedited decision in his appeal. The court canceled oral arguments that had been scheduled for April and will make the decision based on court filings.
A judicial discipline panel in September ruled that Moore directed probate judges to flout the U.S. Supreme Court landmark decision on same-sex marriage. The Alabama Court of the Judiciary, the state panel that hears complaints against judges, suspended Moore for the remainder of his term.
The Alabama Judicial Inquiry Commission, which brought the accusations against Moore, did not object to fast-tracking the decision.
Moore is trying to win his position back after the ruling that he violated standards of judicial ethics with his actions regarding gay marriage. His attorney argued Moore shouldn’t have been removed and that the Court of the Judiciary exceeded its authority by suspending Moore for the remainder of his term.
“Chief Justice Moore did nothing wrong and should have never been charged. To allow a precedent that punishes Alabama judges based on political whims will completely undermine our system of justice,” Moore’s lawyer, Mat Staver said in a statement.
The Judicial Inquiry Commission, in a brief filed with the court, argued Moore’s punishment should stand. Lawyers for the commission said Moore urged probate judges to defy the federal courts by telling them they remained bound by a court order to deny marriage licenses to gay couples.
“This is a case is about the rule of law, and Chief Justice Moore’s continued flouting of it,” lawyers for the commission wrote.
UA committee advocates for gender transition benefits
FAYETTEVILLE, Ark. — A University of Arkansas benefits committee that advocates for faculty and staff is asking that gender-transition treatments be reinstated in the employee health care plan.
The request in a March 7 letter came after the University of Arkansas System suspended the coverage, which was briefly offered earlier this year, the Arkansas Democrat-Gazette reported. The system oversees a self-funded health care plan enrolling approximately 35,900 employees and family members from Fayetteville and other campuses.
“As a committee, we wholly support the transgender members of our University of Arkansas campus and system and feel as though the situation they face is deeply upsetting. We request that the coverage promised be immediately reinstated,” the letter states.
A Dec. 31 injunction from a Texas judge halted federal enforcement of regulations developed under the Affordable Care Act that prohibited health plans from automatically excluding gender-transition treatments from coverage.
University officials said the coverage that began Jan. 1 was in compliance with the regulations, but that it was suspended after March 6 “given the most current court ruling.”
They also said the benefits suspension could continue “pending the final legal outcome of the injunction or further clarification of the ACA coverage guidelines.”
University of Arkansas spokesman Mark Rushing didn’t respond to questions about whether campus leadership had taken a position in favor of restoring the benefits.
Sean Cahill, a Boston-based researcher who studies LGBT health policy issues, said covering gender-transition treatments “really doesn’t increase the cost of health care coverage for the general population” because the number of transgender people is small.
The Williams Institute at the UCLA School of Law estimated last year that the U.S. transgender adult population as about 1.4 million of the country’s adult population.
Florida businessman establishing scholarship in honor of Pulse victims
ORLANDO, Fla. — A Florida businessman is raising scholarship money for gay students to honor the 49 patrons killed last June in Orlando’s gay nightclub shooting massacre.
Barry Miller said Monday, March 13, that The 49 Fund is to award 10 scholarships annually, each worth $4,900. Students would have to self-identify as “out,” have a GPA of 3.0 and attend an institution of higher learning fulltime.
Survivors of the Pulse nightclub attack or deceased victims’ relatives would receive special consideration, said Miller, who is working on the project with the GLBT Community Center of Central Florida and the Central Florida Foundation.
The shooting, which happened in the early morning hours of June 12, was the deadliest mass shooting in recent U.S. history. It also left dozens wounded in addition to the 49 killed.
Also on Monday, the U.S. Justice Department said Monday, March 13, that it was giving the money to the state of Florida to pay for grief counseling and reimburse the costs of running an assistance center after the massacre.
This article appeared in the Dallas Voice print edition March 17, 2017.