Lesbian couple wins housing discrimination suit in Colorado

Tonya and Rachel Smith and their children (Photo courtesy of Lambda Legal)

Today (Wednesday, April 5), just a day after Lambda Legal lawyers and their client Kimberly Hively won a 7th Circuit Court ruling declaring that federal law — Title VII — protects lesbians and gays from employment discrimination — a district court judge in Colorado has ruled that the federal Fair Housing Act protects LGBT people against discrimination, too.

Lambda Legal Staff Attorney Omar Gonzalez-Pagan said it is the first time a federal court has ruled that the Fair Housing Act’s sex discrimination prohibitions apply to discrimination based on stereotypes about sexual orientation and gender identity.

U.S District Judge Raymond P. Moore ruled that a Boulder County property owner violated both the federal Fair Housing Act and the Colorado Anti-Discrimination Act by refusing to rent a housing unit to Rachel and Tonya Smith, a same-sex couple, one of whom is transgender, and their children, because she worried their “uniqueness” would jeopardize her standing in the community.

“This is a tremendous victory for Rachel and Tonya, their children, and LGBT people, couples and families across the country,” Gonzalez-Pagan said. “This is two federal courts two days in a row that have said that laws prohibiting sex discrimination protect LGBT people. It sends a strong message: discrimination against LGBT Americans in housing and employment is illegal and will not be tolerated.”

Gonzalez-Pagan said the facts in the case “are indisputable: Deepika Avanti refused to rent to Tonya and Rachel Smith because they are women in a same-sex relationship raising children together and Rachel is transgender.

“Her concerns about Rachel and Tonya’s ‘uniqueness’ and ‘unique relationship’ were discrimination, pure and simple, and we are grateful that the judge agreed,” he added.

In the court’s opinion Judge Moore wrote:

“In this case, the Smiths contend that discrimination against women (like them) for failure to conform to stereotype norms concerning to or with whom a woman should be attracted, should marry and/or should have children is discrimination on the basis of sex under the FHA. The court agrees. Such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.”

Tonya Smith said she and her family are “delighted with this ruling. We were so shocked and upset by Deepika’s emails, that simply because of who we are she wouldn’t rent to us. … No one should ever have to go through what we went through, and hopefully this ruling will protect other couples like us who are trying to provide safe homes for their families.”

Gonzalez-Pagan said that while anti-LGBT discrimination is housing is a pervasive problem “it is very much underreported. In many instances, LGBT people who are either overtly or subtly discriminated against in housing do not report the discrimination because of their immediate need to find housing or due to the costs of pursuing a claim. Property owners who engage in this kind of discrimination must be held accountable.”

In addition to Kimberly Hively’s victory in the 7th Circuit Court on Tuesday, Lambda Legal is currently appealing a suit against an Illinois senior living facility for failing to protect a resident from sex- and sexual orientation-based harassment.

 

—  Tammye Nash

7th Circuit: Title VII prohibits anti-LGBT bias in employment

 

Ruling by full panel overturns 7th Circuit’s previous decisions

Lisa Keen | Keen News Service
lisakeen@mac.com

Kimberly Hively

For the first time ever, a federal appeals court has ruled that a federal law prohibiting sex discrimination in employment also prohibits sexual orientation discrimination.

In an 8-to-3 decision handed down Tuesday, April 4, the 7th Circuit U.S. Court of Appeals, which covers the states of Illinois, Indiana and Wisconsin, reversed a district court’s dismissal of a lawsuit in which an employee alleged her employer discriminated against her because she is a lesbian.

The appeals court remanded the case back to district court.

“We hold only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes,” the court concluded.

But that was a big “only.”

Title VII of the federal Civil Rights Act prohibits discrimination based on sex in employment. Though some district courts have made similar rulings, no other federal appeals court has done so, according to Jon Davidson of Lambda Legal, which represented the employee in this case.

And Davidson has speculated that, if the question goes to the Supreme Court, its ultimate resolution “will control other federal laws barring sex discrimination, including Title IX — which governs discrimination in federally-funded educational programs — along with the Fair Housing Act, the Equal Pay Act, section 1557 of the Affordable Care Act — which bars discrimination in health care and health care insurance — and the Equal Credit Opportunity Act.”

Writing for the majority, the 7th Circuit’s Chief Judge Diane Wood, a Clinton appointee, acknowledged that the decision in Hively v. Ivy Tech required taking a “fresh look” at previous rulings by federal appeals courts “in light of developments at the Supreme Court extending over two decades.”

The case was brought by Kimberly Hively, a part-time math teacher for a small community college in Indiana.

Over the course of her 13 years at Ivy Tech Community College, Hively applied for a full-time position six times and was rejected each time. In 2014, the college declined to renew her part-time contract.

Hively said she believed she was being discriminated against because she is a lesbian.

The district court judge, a Reagan appointee, dismissed the lawsuit, saying that Title VII of the Civil Rights Act — which prohibits sex discrimination — does not prohibit discrimination based on sexual orientation. The lower court judge noted that the 7th Circuit, acting in previous cases, had ruled “Congress intended the term ‘sex’ to mean ‘biological male or biological female,’ and not one’s sexuality or sexual orientation.”

A 7th Circuit panel upheld that decision, saying it was “presumptively bound” by that same precedent.

The majority’s decision acknowledged that the lower courts were bound by precedent and made clear it did not have the authority to add “sexual orientation” to the list of protected categories in Title VII. But the majority opinion said it “must decide what it means to discriminate on the basis of sex … .”

In looking to Supreme Court decisions for guidance, the 7th Circuit relied heavily on Oncale v. Sundowner, a case in which the high court said that Title VII’s prohibition of sex discrimination (and sexual harassment) includes same-sex sexual harassment.

It also relied heavily on Price Waterhouse v. Hopkins, in which the high court ruled that Title VII’s prohibition of discrimination because of “sex” included discrimination against an employee based on expectations for an employee’s appearance and behavior based on their biological sex.

“Any discomfort, disapproval or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” wrote the majority.

The majority said it also considered strongly the Supreme Court’s rulings in several landmark LGBT-related cases: Romer v. Evans, which struck down a state ban on local ordinances prohibiting sexual orientation discrimination; Lawrence v. Texas, which struck down state laws banning consensual sexual relations between same-sex adults; U.S. v. Windsor, which struck down the federal law that prohibited any recognition of marriage between same-sex couples for federal purposes; and Obergefell v. Hodges, which struck down state laws banning marriage between same-sex partners.

“The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuades us,” wrote the majority, “that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said the decision “opens the door to a new era for LGBTQ plaintiffs under federal sex discrimination law.”

“With this historic decision, the 7th Circuit is the first federal appellate court to acknowledge that discrimination because a person is gay, lesbian or bisexual can only reasonably be understood as discrimination based on sex,” Minter continued. “The court deserves credit for rejecting the tortured rationales of older decisions and undertaking a principled analysis, based on the Supreme Court’s affirmation in Price Waterhouse and other cases, that Title VII of the Civil Rights Act of 1964 must be broadly construed to prohibit the full range of sex-based discrimination.”

Greg Nivens, employment fairness program director for Lambda Legal, noted, “In many cities and states across the country, lesbian and gay workers are being fired because of who they love. But with this decision, federal law is catching up to public opinion — 90 percent of Americans already believe that LGBT employees should be valued for how well they do their jobs, no who they love or who they are. Now through this case and others, that principle is backed up by the courts.

“This decision is a game-changer for lesbian and gay employees facing discrimination in the workplace, and it sends a clear message to employers: It is against the law to discriminate on the basis of sexual orientation,” Nevins said.

Lambda Legal CEO Rachel Tivens added, “Love won again today. … Our movement is about love and pride — pride in yourself and your work, and the freedom to love and to be treated equally.”

Hively, who now takes her case back to the district court for a trial on the merits, said, “I have been saying all this time that what happened to me wasn’t right and was illegal. Now I will have my day in court … . No one should be fired for being lesbian, gay or transgender, like happened to me, and it’s incredibly powerful to know that the law now protects me and other LGBT workers.”

Selise Berry, founder and Ceo of Out & Equal Workplace Advocates, said that the 7th Circuit’s ruling proves that “checks and balances set up in this country are working just as they should,” and she noted that the 7th Circuit is “one of our most conservative courts.”

“The courts ruled in line with what our country’s largest corporations have known for decades — that having a diverse and authentic workforce is not just the smart thing to do, it’s the right thing to do,” Berry said.

© 2017 Keen News Service. All rights reserved.

 

 

 

—  Tammye Nash

Lambda Legal sues nursing facility for elder abuse

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Marsha Wetzel (Photo courtesy of Lambda Legal)

Lambda Legal filed suit today, Wednesday, July 27, against Glen St. Andrew Living Community in Niles, Ill. for failing to protect Marsha Wetzel, a lesbian senior who is a resident of the facility. In her suit, she claims the facility and its administrators failed to protect her from “harassment, discrimination and violence she has endured at the hands of other residents because of her sex and sexual orientation.”

From Karen Loewy, Lambda Legal Senior Attorney and Seniors Program Strategist:

Glen St. Andrew calls itself ‘a community of caring,’ but when the staff ignores the harassment and violence directed at Marsha, they are not caring at all.

There is a clear pattern of discrimination here. The facility and its staff have ignored our client’s pleas for help after being harassed and attacked because she is a lesbian and because she is a woman who loved and created a family with another woman for 30 years.

Marsha deserves the same compassionate care and safety provided for all the other seniors at Glen St. Andrew but instead, the staff have created an environment where it is acceptable to isolate, harass and attack someone because of who they are and who they loved.

Over the weekend, the Coalition for Aging LGBT held a conference at the SMU campus in Plano to discuss issues that included treatment of LGBT elderly in assisted living and nursing facilities.

—  David Taffet

Lambda Legal offers advice for LGBT Mississippians

Governor_Phil_Bryant

Gov. Phil Bryant

The discrimination law Mississippi passed and Gov. Phil Bryant signed into law this week is more draconian than the North Carolina law. There’s also less businesses and people in other states can do.

North Carolina is headquarters for a number of prominent businesses. Bank of America, the country’s largest bank, is based there. Charlotte is American Airline’s largest hub.

But Mississippi? New York’s governor banned official state travel to Mississippi by New York state employees. Nice gesture, but why would anyone from New York be traveling to Tupelo. They’re not. And businesses? Nissan and Ashley Furniture. That’s about it. Nissan manufactures there and Ashley, well, if that’s where you buy your furniture, please return your gay card. A boycott won’t be effective. Number 3: Choctaw Indians. They run casinos across the state. Boycotting Native Americans won’t exactly hurt the bigoted white guys that passed this law.

But for the LGBT community, the new law will cause a number of problems. It allows county clerks to stop issuing marriage licenses to same-sex couples without offering alternatives. While no state law protects against discrimination based on sexual orientation or gender identity, this law reinforces companies’ ability to fire at will.

Lambda Legal has come out with some guidance to help the state’s LGBT community navigate the legal waters. They discuss whether you can still get married in the state to what to do if your health-care provider decides to stop providing hormone therapy.

A more helpful approach might have been this:

Step 1: Call U-Haul.

Step 2: Get the hell out of that hell hole.

—  David Taffet

Lambda Legal, ACLU to sue N.C. over discriminatory law

McCrory.Deal

North Carolina Gov. Pat McCrory, left, and Georgia Gov. Nathan Dean

Lisa Keen | Keen News Service
lisakeen@mac.com

Lambda Legal and the ACLU announced Monday they are filing a lawsuit to challenge the constitutionality of a law passed by North Carolina last week to prevent local governments from protecting LGBT people against discrimination.

The announcement came the same day that Georgia Gov. Nathan Deal announced that he will veto House Bill 757, a so-called “religious freedom bill” passed earlier this month by the Georgia Assembly. HB 757 would have allowed religious officials to refuse to perform “marriage ceremonies in violation of their legal right to free exercise of religion.”

The North Carolina law also prohibits transgender people from using a public restroom for the gender they are living, is one of two anti-gay measures under consideration by several other states.

The state’s Republican governor, Pat McCrory, on March 23 signed the two-punch law that effectively bars transgender people from using public restrooms that match their gender identity and bars any local government from having an ordinance that prohibits discrimination based on sexual orientation and gender identity.

Kansas’ Republican Gov. Sam Brownback on March 22 signed a bill that prohibits colleges and universities from denying to any “religious student association” any benefit available to other student groups because the religious group requires members to “comply with the association’s sincerely held religious beliefs” and “standards of conduct.”

The North Carolina law drew the most media attention and response, going to a new extreme to limit the civil rights of LGBT people. The National Basketball Association and the National Collegiate Athletic Association have both issued statements saying the state’s new law might prompt them to withdraw upcoming major events from Charlotte. Carolina’s National Hockey League team issued a statement saying it is “devoted to providing a welcoming and respectful environment for all fans.”

American Airlines, which has a hub in Charlotte, said, “Laws that allow such discrimination go against our fundamental belief of equality and are bad for the economies of the states in which they are enacted.” Even the mayor of San Francisco has banned city employees from any publicly funded travel to North Carolina on city business.

Lambda Legal, the ACLU, and Equality North Carolina issued a press release Sunday night, March 27,saying they would challenge the law in federal court.

The Carolina law requires that all public schools facilities have bathrooms or changing facilities “designated for and used only by students based on their biological sex.” Biological sex is defined by what gender is indicated on a person’s birth certificate.

It also declares that state law concerning “discriminatory practices” will “supersede and pre-empt any ordinance” or regulation of any local government. North Carolina state law does not prohibit discrimination based on sexual orientation or gender identity.

“This outrageous new law not only strips away the ability of local jurisdictions to protect LGBT people from discrimination, but it goes further and targets transgender students who deserve to be treated equally at school — not harassed and excluded,” said Human Rights Campaign President Chad Griffin.

McCrory allowed the state legislature to hold a special session just to consider the measure, aimed specifically at an ordinance approved by the Charlotte City Council in February. The city sought to prohibit discrimination based on their gender identity. But the new state law, “Public Facilities Privacy and Security Act,” prohibits any local government from passing non-discrimination ordinances.

HRC said legislators had only five minutes to review the bill before voting on it and that Democrats in the Senate walked out, rather than vote on the measure.

In a statement released Wednesday, McCrory called Charlotte’s ordinance a “radical breach of trust and security under the false argument of equal access” and said it endangered the “basic expectation of privacy in the most personal of settings, a restroom or locker room.”

Mara Keisling, executive director of the National Center for Transgender Equality, said 76 percent of transgender people do not have an updated birth certificate. Jenny Pizer, law and policy director for Lambda Legal, said the law makes it impossible for transgender people to stay in school, hold jobs or access public services because “as a practical and safety matter” they are barred from using bathroom facilities.

The legislature’s debate echoed remarks heard frequently during the recent battle over a non-discrimination ordinance in Houston, where a referendum overturned the city’s non-discrimination law, HERO, which prohibited numerous categories of discrimination, including race, religion, sexual orientation, and gender identity.

But in Houston, the referendum simply repealed the ordinance. In North Carolina, the new law repeals all existing local ordinances that prohibit sexual orientation and gender identity discrimination and forecloses any future local ordinances.

According to HRC, North Carolina is the first state “to enact such a law attacking transgender students.” Kansas is bucking to be next. Kansas legislators on March 16 introduced bills to the House and Senate that call for all public schools to label restrooms by gender and enables students who encounter “a person of the opposite sex” in their restroom or locker to sue the school for $2,500 for “each instance” and monetary damages for “all psychological, emotional, and physical harm suffered.”

Earlier this month, South Dakota’s Republican governor, Dennis Daugaard, vetoed a bill similar to North Carolina’s, though it required transgender people to use “single-occupancy” restrooms or locker rooms.

But a number of states are still considering such legislation. The Illinois legislature has a similar bill pending before a House committee. Other states considering laws relating to gender identity and/or religious justifications for discrimination against LGBT people include Indiana, Mississippi, Missouri, Oklahoma, Washington and Wisconsin.

Two bills seeking to limit use of public bathrooms by transgender people failed in the Virginia legislature last month, including one that sought to fine students $50 if they used the wrong bathroom.

Similar bills died in Kentucky and Tennessee.

Massachusetts is considering a pro-trans bill; to provide “equal access to public places regardless of gender identity.”

© 2016 Keen News Service. All rights reserved.

—  David Taffet

Lambda Legal wins Texas Social Security case

lambda legalLambda Legal announced today (Tuesday, March 8) that it has won a case against Social Security Administration brought on behalf of a Texas widow.

Kathy Murphy was denied survivors benefits after her wife died in 2012. She and her wife were together 30 years and married in Massachusetts in 2010. Because Texas didn’t recognize the marriage and Social Security is based on place of residence, she was denied benefits.

But the U.S. Supreme Court ruling legalizing same-sex marriage allows couples to filed amended tax returns and now to update their retirement benefits.

In it’s announcement of the ruling, Lambda Legal wrote:

“We are also pleased to announce that the SSA has finally updated its instructions to its staff in accordance with the historic Obergefell v. Hodges ruling last June. SSA has also issued other guidance to staff to manage claims from the LGBT community.”

Social Security is now instructing its staff to recognize the date of marriage no matter where the couple married or where the couple now lives.

 

—  David Taffet

Ed-U-Care presents compassion fatigue symposium

Fein.Sharyn

Ed-U-Care CEO Sharyn Fein

Ed-U-Care, an organization that provides programs and volunteer opportunities for groups and families that have traditionally been marginalized or neglected including older LGBT adults, presents “Compassion Fatigue Awareness, Education Cultural Humility Training for Caregivers.”

According to Ed-U-Care CEO Sharyn Fein, the program is designed to educate and teach seal-healing methods for those who provide care. The day is designed for professionals who can receive CEU credits for the day as well as individuals who are caring for an elderly parent or a partner with an ongoing condition.

Burnout can be so severe, Fein said, the caregiver dies before the person being cared for in some cases.

Fein said the sessions will be fun with presenters who including a music therapist, Nia practitioner and trainer, QiGong Master and more.

“Find what makes us happy,” she said. “Live without guilt.”

AIDS Arms and Lambda Legal are among the sponsors. The Dallas area Alzheimer’s Association, Parkinson’s Society and Senior Source are some of the others presenting the symposium.

The event takes place from 8 a.m.-5 p.m. on April 1 at Lovers Lane United Methodist Church, 9200 Inwood Road. Early bird registration is $30 until March 1. After that it’s $35. The price includes two catered meals.

Get tickets here.

—  David Taffet

Lambda Legal, AMPA drop lawsuit after VA updates benefits policies

Screen shot 2016-01-20 at 2.55.12 PMLambda Legal and the American Military Partner Association announced today (Wednesday, Jan. 20), that they are ending their lawsuit against the U.S. Department of Veterans Affairs in light of the VA’s changes to benefits policies that effectively ended discrimination against U.S. military veterans and their same-sex spouses.

The new policies, according to a Lambda Legal statement, “are consistent with” the U.S. Supreme Court’s Obergefell ruling legalizing marriage equality.

“We are very pleased that now, nationwide, gay and lesbian veterans who have served their country and risked the ultimate sacrifice for their nation — all while facing discrimination against them — will have access to deserved and long-awaited benefits,” said Susan Sommer, Lambda Legal’s director of constitutional litigation. “Married veterans and their spouses, regardless of their sexual orientation or where they live, will now have the critical veterans’ benefits they need to take care of their families.”

Lambda Legal filed the lawsuit on AMPA’s behalf in federal circuit court in August 2014, arguing that refusing veterans’ benefits to same-sex spouses based on states’ non-recognition of their marriages was unconstitutional.

VA officials recently issued internal guidance to staff and updated its website to reflect policy changes that bring the agency into compliance with the Obergefell ruling. The agency has also urged married gay and lesbian veterans “who believe they are entitled to benefits (including those whose claims were previously denied on a ground related to their marriage) to promptly apply for benefits.”

Read the VA’s guidance for the public here, and its internal guidance to staff here.

AMPA President Ashley Broadway-Mack said the new policies “pave the way for veterans and their same-sex spouses, no matter where they live, to access such important rights as survivors benefits, home loan guarantees, and burial together in national cemeteries. We are happy to see more barriers to equality for LGBT servicemembers, veterans and their families fall.”

Those with questions or concerns about discrimination or denial of a protection to which they are entitled can contact Lambda Legal’s Help Desk at 1-866-542-8336 or visit the organization’s website.

—  Tammye Nash

SSA will apply marriage benefits retroactively, grant pending spousal benefits

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Lambda Legal plaintiff Kathy Murphy of Texas

The U.S. Department of Justice announced today (Thursday, Aug. 20), that the Social Security Administration will apply the U.S. Supreme Court decision legalizing same-sex marriage nationwide retroactively and process pending spousal benefits claims for couples that lived in jurisdictions that didn’t recognize their marriages prior to the ruling.

The announcement came in a status conference with Lambda Legal in a Chicago federal court. The DOJ said the new policy will apply to previously filed claims still pending in the administrative process or litigation.

Lambda Legal filed federal lawsuits last year on behalf of widower Dave Williams, formerly of Arkansas and now living in Chicago, Texas widow Kathy Murphy, and the National Committee to Preserve Social Security and Medicare. Williams and Murphy were both denied benefits after the deaths of their spouses because although they were legally married, they lived in jurisdictions that did not legally recognize those marriages.

Susan Sommer, director of constitutional litigation for Lambda Legal, said today that her organization is pleased to have gotten this confirmation from the SSA, and although SSA has not announced when the policy change will be posted and implemented, “we look forward to reviewing the details and working with the agency to ensure that those who had been wrongly denied in the pas will not have to wait longer to have their relationships treated with dignity by the federal government. … We urge the SSA to move quickly to right the injustice to same-sex spouses whose marriages were unconstitutionally disrespected and who await Social Security protections.”

—  Tammye Nash

EEOC rules federal law prohibits discrimination based on a sexual orientation

US-EEOC-Seal_380w_crop380wThe Equal Employment Opportunity Commission ruled this week existing civil rights laws protect discrimination based on sexual orientation.

In the 3-2 decision, commissioners ruled the sex discrimination provisions of Title VII of the 1964 Civil Rights Act protect employees from discrimination because of their sexual orientation.

The independent federal commission is one of the nation’s enforcers and interpreters of federal nondiscrimination laws.

“This landmark opinion from the EEOC confirms what we have long argued in our cases: discriminating against gay, lesbian and bisexual employees violates federal law. This ruling is likely to have enormous positive effects because EEOC interpretations of Title VII are highly persuasive to the courts — they tend to be predictive,” said Greg Nevins, Counsel and Employment Fairness Strategist for Lambda Legal in a statement.

The decision should serve as precedent for future court decisions, he said.

“Given the clarity and logic of this opinion, most courts are likely to stop simply referring to old, illogical rulings about Title VII coverage. A few may disagree, but most probably will be guided by the Commission’s straightforward approach.”

In 2012, the EEOC ruled discrimination against a transgender individual is also protected under Title VII in the case Macy v. Department of Justice.

“Freedom to Work applauds this historic decision by the EEOC, and we encourage gay men, lesbians, and bisexuals who face harassment or discrimination on the job to consult an attorney and file Title VII claims with the EEOC and eventually the federal courts,” Tico Almeida, the group’s president said in a statement.

He urged LGBT activists to take further claims of nondiscrimination to the federal courts “to win workplace protections in all fifty states.”

Currently 31 states, including Texas, lack employment and housing protections based on sexual orientation and gender identity, according to a new report from the Human Rights Campaign.

Rea Carey, National LGBTQ Task Force Executive Director agreed with Almeida.

“This is another historic victory for LGBTQ people and their families. We need to further attack the scourge of discrimination in a comprehensive manner — and while LGBTQ people may file employment discrimination cases with the EEOC, we still need more. We must push for legislation that provides clear and strong protections for all LGBTQ people in every area of life — from housing to health care,” she said in a statement.

—  James Russell