Saks backs down from claim on trans people and Title VII

Leyth Jamal

Leyth Jamal

The National Center for Lesbian Rights reported today (Monday, Jan. 26), that Saks Fifth Avenue has withdrawn a motion to dismiss a discrimination lawsuit filed by a former employee on the grounds that Title VII of the Civil Rights Act of 1964 does not protect transgender workers. In addition, an NCLR spokesman noted, the U.S. Department of Justice has filed an historic statement in that same case declaring that Title VII does, indeed, protect trans people.

This is the first time the DOJ has stated without a doubt that Title VII prohibits any time of discrimination against transgender people, not just discrimination based on gender stereotypes.

Saks’ action and the statement from the DOJ are both connected to the lawsuit filed by Leyth Jamal, a trans woman, who claims that she faced extensive discrimination and was eventually fired from Saks in Houston because of her gender identity. NCLR and the Human Rights Campaign became involved in the case after Saks filed its brief saying trans worker are not covered under Title VII.

In a statement announcing that the company was withdrawing the motion to dismiss, Saks officials again denied having discriminated against Jamal:

“We have decided to withdraw our motion to dismiss because important concerns about transgender rights under the current law are overshadowing a clear case of employee misconduct. Our position is, and always has been, that it is unacceptable to discriminate against transgender individuals.  Saks does not, and will not, tolerate discrimination and legal strategy should not obscure that bedrock commitment.  We did not discriminate against this former Associate. And we want to see all individuals protected under the law.”

Saks said Jamal and another former associate were fired for using “inappropriate and offensive language on the selling floor” in front of a customer. The other person fired does not identify as LGBT, the Saks statement said.

Sarah Warbelow, legal director for HRC, said, “We are pleased that the case can now be resolved on the merits of the claims and not a sweeping negation of basic Title VII protections.” And NCLR Legal Director Shannon Minter credited Saks with “correcting its position and recognizing that it has a legal obligation to treat transgender workers equally.”

The Equal Employment Opportunity Commission in 2012 ruled in Macy v Holder that discrimination based on an individual’s gender identity is sex discrimination and so constituents a violation of the Civil Rights Act of 1964. The EEOC filed complaints in federal courts in Florida and Michigan in 2014 against two separate companies accused of discriminating against trans employees (Aimee Stephens and Brandi Branson). And last December, U.S. Attorney General Eric Holder announced that the DOJ will no longer assert that Title VII’s prohibition against discrimination based on sex “does not encompass gender identity per se (including transgender discrimination).”

 

—  Tammye Nash

AG Holder says DOJ will file briefs with SCOTUS supporting equality

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U.S. Attorney General Eric Holder

U.S. Attorney General Eric Holder has issued this statement regarding the U.S. Supreme Court’s decision to hear cases on marriage equality and the Justice Department’s intention to file “friend of the court” briefs in support of marriage equality:

“After the Justice Department’s decision not to defend the constitutionality of Section 3 of the Defense of Marriage Act, the Supreme Court sent a powerful message that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This landmark decision marked a historic step toward equality for all American families.

“The Supreme Court has announced that it will soon hear several cases raising core questions concerning the constitutionality of same-sex marriages. As these cases proceed, the Department of Justice will remain committed to ensuring that the benefits of marriage are available as broadly as possible. And we will keep striving to secure equal treatment for all members of society — regardless of sexual orientation.

“As such, we expect to file a ‘friend of the court’ brief in these cases that will urge the Supreme Court to make marriage equality a reality for all Americans. It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans — no matter who they are, where they come from, or whom they love.”

—  Tammye Nash

Justice Department rules transgender is included under Title VII

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Atty. Gen. Eric Holder

Attorney General Eric Holder said sex discrimination listed in Title VII of the Civil Rights Act of 1964 should be interpreted to include transgender.

“I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status,” Holder wrote in his letter.

He said the most straightforward reading of discrimination “because of sex” includes whether a person is a member of a particular sex or is transitioning or has transitioned to another sex.

“For these reasons, the Department will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se,” Holder wrote.

He wrote that he was not encouraging any course of litigation, but that gender identity is part of sex discrimination.

—  David Taffet

UPDATE: Justice Department releases new policy to curb police profiling

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Update:

The Justice Department released today, Dec. 8, new policies aimed to curb profiling by law enforcement based on sexual orientation, gender identity, religion and national origin, expanding on a 2003 decision to bar profiling based on race and ethnicity. You can read the new policy here.

“As Attorney General, I have repeatedly made clear that profiling by law enforcement is not only wrong, it is profoundly misguided and ineffective – because it wastes precious resources and undermines the public trust,” Attorney General Eric Holder said in a statement.

Holder said the policy is necessary especially in light of numerous recent incidents involving police brutality. “It brings enhanced training, oversight, and accountability to federal law enforcement across the country, so that isolated acts of discrimination do not tarnish the exemplary work that’s performed by the overwhelming majority of America’s hard-working law enforcement officials each and every day.”

The new guidance also applies to state and local law enforcement law officers who participate in federal law enforcement task forces.

The National Center for Transgender Equality in a statement welcomed the extension but criticized its numerous loopholes. “Discrimination is not something we need to keep us safe— it’s bad police work, it’s unconstitutional, and it makes us all less safe,” said NCTE Executive Director Mara Keisling.

According to the National Transgender Discrimination Survey, 46% of transgender people say they would feel somewhat or very uncomfortable seeking police assistance, while only 35% said they would feel comfortable doing so. 22% of all trans people and 38% of Black trans people report experiencing transphobic police harassment—while 6% of all trans people, 9% of trans Latinos, and 15% of Black trans people report having experienced a transphobic assault by police.

Holder announced his resignation last month. President Obama nominated federal prosecutor Loretta Lynch of Brooklyn to replace him.

Original story:

Attorney General Eric Holder is set to announce today, Dec. 8, a new policy barring law enforcement officials from profiling based on sexual orientation, gender identity and expression, national origin and religion, The Washington Blade reports.

The policy expands a 2003 decision to bar profiling based on race and ethnicity.

The policy has been in five years in the making.

“With this new guidance, we take a major and important step forward to ensure effective policing by federal law enforcement officials and state and local law enforcement participating in federal task forces throughout the nation,” Holder said in a statement.

—  James Russell

WATCH: President Obama announces personnel change

Stay tuned for a 3:30 p.m. announcement by President Obama about what is widely assumed to be about Eric Holder’s resignation as Attorney General.

—  James Russell

UPDATED: Human Rights Campaign praises outgoing AG Eric Holder

eric holder.smallFollowing reports that United States Attorney General Eric Holder will announce his resignation today, the Human Rights Campaign released a statement praising him while calling for President Obama to nominate an out LGBT cabinet member.

“Some Attorneys General wait for history, others make history happen. Attorney General Holder made history for the LGBT community,” said Chad Griffin, president of HRC. “He was our Robert F. Kennedy, lightening the burden of every American who faces legal discrimination and social oppression. We owe him a profound debt of gratitude for his legacy of advocacy and service.”

“The President has expressed a commitment to appointing a cabinet that reflects the full diversity of the American people, and there are many richly-qualified candidates available to serve as the first openly-LGBT cabinet secretary. It would be a natural extension of this administration’s enduring commitment to equality to send a message of visibility and inclusion by nominating such a candidate to serve in this historic role,” Griffin added.

You can read the full statement here.

According to NPR, the nation’s first black attorney general is one of the longest-serving Obama appointees and “ranks as the fourth longest tenured AG in history.”

Holder is well-known for refusing to defend DOMA and suing Texas over its voter ID law.

He plans to serve until a successor is nominated and approved by the Senate.

Check out Instant Tea throughout the day as details come in.

—  James Russell

Holder: DOJ will file brief in favor of same-sex marriage

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U.S. Attorney General Eric Holder

U.S. Attorney General Eric Holder told ABC News’ Pierre Thomas on Monday that the Justice Department will be filing a brief in the Utah same-sex marriage case urging the U.S. Supreme Court to uphold a lower-court ruling and block states from banning same-sex marriage.

District Judge Robert J. Shelby ruled last December that Utah’s same-sex marriage ban is unconstitutional. A three-judge panel of the 10th Circuit Court of Appeals upheld the ruling last month, and Utah Attorney General Sean Reyes announced that instead of asking the full 10th Circuit Court to review the case, he would appeal directly to the U.S. Supreme Court.

Holder said that filing the brief would be “consistent with the actions we have taken over the past couple of years,” in which the Justice Department has refused to defend the federal Defense of Marriage Act. Holder said that decision was “vindicated by the Supreme Court,” which ruled last year in Windsor vs. United States that the sections of DOMA allowing the federal government not to recognize same-sex marriages performed in jurisdictions that recognize such marriages are unconstitutional.

Holder told Thomas that he believes banning same-sex marriage is unconstitutional and that such bans cannot survive the standard of heightened scrutiny. He called the fight for LGBT rights “a defining civil rights challenge of our time,” and that LGBT people are waiting for an “unequivocal declaration that separate is inherently unequal.”

 

—  Tammye Nash

Federal government will recognize Utah same-sex marriages

Screen shot 2014-01-10 at 12.21.53 PMAttorney General Eric Holder said for the purpose of receiving federal benefits, the more than 1,000 marriages performed in Utah are valid.

He said that since the Windsor decision issued in June 2013, the Justice Department has been working tirelessly to implement it.

“These couples should not be asked to endure uncertainty regarding their status as the litigation unfolds,” he said.

Same-sex marriage became legal in Utah after a court ruling on Dec. 20. It remained legal until Jan. 6 when the state obtained an injunction.

Today, Utah Attorney General Sean Reyes instructed county clerks to finish the paperwork for those marriages that had been solemnized despite the injunction. He said the paperwork is an administrative function, not a legal one, so the state will continue not to recognize those marriages as valid.

View the video of Eric Holder here.

—  David Taffet

Justice department changes definition of rape

Atty. Gen. Eric Holder

In the first change to the definition of rape since 1927, the U.S. Justice Department has annoounced it will now include men as victims, according to Attorney General Eric Holder.

The definition used for almost a century was, “The carnal knowledge of a female, forcibly and against her will.”

The new definition released in a press release today is, “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

“These long overdue updates to the definition of rape will help ensure justice for those whose lives have been devastated by sexual violence and reflect the Department of Justice’s commitment to standing with rape victims,” Attorney General Holder wrote in his press release. “This new, more inclusive definition will provide us with a more accurate understanding of the scope and volume of these crimes.”

—  David Taffet

2011: an ‘epic’ year for marriage equality

Gay marriage advocates saw some setbacks, but progress, especially in opinion polls, is encouraging

Wolfson.Evan

Evan Wolfson

Dana Rudolph  |  Keen News Service
lisakeen@mac.com

One leading advocate has called 2011 an “epic” year for marriage equality. But was it really?

While only one state — New York — enacted full marriage rights for same-sex couples, it was the most populous state to have done so thus far.

Five other states also moved closer to marriage equality than ever before. Public opinion shifted dramatically toward supporting equality. And the Obama administration announced that it no longer considers a key part of the Defense of Marriage Act constitutional.

On the negative side, however, three states failed to pass marriage equality bills that had been introduced in their legislatures, and two states passed bills to put measures on their ballots in 2012 that will seek to ban marriage for same-sex couples under their state constitutions.

Despite the negatives, Evan Wolfson, president of the national Freedom to Marry group, said in an interview that 2011 was “an epic year of real transformation.”

Successes
On the federal level, Attorney General Eric Holder wrote a letter to Congress in February, stating that the administration believes Section 3 of the Defense of Marriage Act is unconstitutional and that the federal Justice Department will no longer defend the law in court.

Section 3 of DOMA states that the federal government will not, for any federal purposes, recognize the marriages of same-sex couples.

Holder’s letter said the administration believes laws disfavoring persons based on sexual orientation should have to pass the most stringent judicial review — heightened scrutiny. And he said the administration would argue so in two cases challenging DOMA in the 2nd Circuit.

LGBT legal advocacy group Lambda Legal, in its December “State of the Law 2011” report, called Holder’s letter “game changing.” Wolfson said it represented “an immense historical shift.”

Another sign of this shift, Wolfson said, was the repeal of “don’t ask, don’t tell,” the military’s ban on openly gay servicemembers. DADT repeal will help fuel the marriage equality effort, Wolfson said, “because Americans are now going to see the women and men serving our country as openly gay members of couples and openly gay members of families.”

On the state level, the biggest win in 2011 came in New York, where lawmakers passed a marriage equality bill in June. When Gov. Andrew Cuomo, Dem., signed the bill, he doubled the percentage of same-sex couples living in states that allow them to marry.

New York is also the only state to have passed marriage equality through a Republican-led legislative chamber, its state Senate.

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Andrew Cuomo

Cuomo, by adding his vocal support to the bill, “put his political capital on the line,” Wolfson said. His success prompted Politico.com to call him a “national contender” and leader of the Democratic Party’s progressive base.

The Washington Post said his triumph made him “a first among equals when it comes to the jockeying for the 2016 Democratic presidential nomination.”
Wolfson said, “The freedom to marry went from being a perceived and presumed ‘third rail’ that politicians ran from to now being a pathway to political gain.”

Five other states came closer to marriage equality than ever before. Maryland for the first time passed a marriage equality bill out of a legislative chamber, its Senate, although the measure fell short of winning in the House. And Delaware, Hawaii, Illinois and Rhode Island each passed civil union legislation.

Setbacks
But there were disappointments, too.

In Colorado, a civil unions bill was killed on a party-line vote in the Republican-led House  Judiciary Committee, after passing the Democrat-controlled Senate.

And in Rhode Island, the civil unions bill disappointed many because a bill for full marriage equality had been on the legislature’s agenda. It was dropped after it failed to gain enough support, despite large Democratic majorities in both chambers and  Independent Gov. Lincoln Chafee’s promise to sign it.

LGBT groups were also disappointed with a provision in Rhode Island’s civil unions bill providing extensive exemptions on religious grounds for those who don’t wish to recognize those unions. Chafee himself said the civil unions law “fails to fully achieve” the goal of providing same-sex couples with equal rights.

In the courts
Two states saw progress in lawsuits that could lead to marriage equality. In New Jersey, marriage equality advocates have sued the state, claiming that the state’s existing civil unions laws do not provide them with full equality — an equality the state Supreme Court said in October 2006 is guaranteed by the state Constitution.

In California, a three-judge panel of the federal 9th Circuit Court of Appeals heard oral arguments Dec. 8 on procedural matters related to the case to determine the constitutionality of Proposition 8, the state’s ban on marriage for same-sex couples. Regardless of the outcome, the case will almost certainly be appealed to the full 9th Circuit court and/or the U.S. Supreme Court.

Ups and downs in states
Three states successfully played defense in 2011.

Iowa, New Mexico and Wyoming held firm against attempts to pass bills for ballot measures that sought to ban marriage for same-sex couples under their state constitutions. If passed, Iowa’s bill would have taken away the right to marry that same-sex couples gained in 2009.

But there were some clear setbacks in 2011 as well.

North Carolina and Minnesota passed bills for ballot measures in 2012 that seek to ban marriage for same-sex couples under the state constitutions. And Indiana and Pennsylvania started the process for such ballot measures, which could see further action in 2012.

In Maine, however, LGBT advocates gained enough signatures to place a measure in favor of marriage equality before voters on the 2012 ballot — although advocates in California and Oregon decided to postpone such attempts and continue to build support.

These ballot measures could be impacted by what was perhaps the most significant win in 2011: a shift in public opinion towards support for marriage equality.

The polls
Support for marriage equality nationwide rose about 1 percent per year between 1996 and 2009, but jumped to a rate of 5 percent per year in 2010 and 2011, according to a July analysis of over a decade’s worth of polling data by Joel Benenson, President Barack Obama’s lead pollster, and  Jan van Lohuizen, President George W. Bush’s lead pollster.

Freedom to Marry commissioned the study.

The average level of support for marriage equality was 41 percent in 2009, but 51 percent in 2011, based on four leading national polls — CNN-ORC International, Gallup, Pew and Washington Post-ABC News.

This change is driven in part by “overwhelming generational momentum,” Wolfson explained, with almost 70 percent of voters under 40 supporting marriage equality.

But the analysis also concluded that since 2006, support has risen 15 percent among seniors, 13 percent among Independents and 8 percent among Republicans.

Additionally, it found that marriage equality supporters now hold their views as strongly as opponents, which was not the case in the past.

“The politics of the freedom to marry have changed dramatically, as has public support,” said Wolfson.
All told, he said, the events of 2011 mean that “We now have real wind in our sails as we go forward.”

© 2011 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition December 16, 2011.

—  Kevin Thomas