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The National Center for Lesbian Rights reported today (Monday, Jan. 26), that Saks Fifth Avenue has withdrawn a motion to dismiss a discrimination lawsuit filed by a former employee on the grounds that Title VII of the Civil Rights Act of 1964 does not protect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

‘A landmark moment’ for trans Americans, but there’s so far left to go

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President Barack Obama

President Barack Obama made history Tuesday night (Jan. 20), when he actually said the words “lesbian,” “bisexual” and “transgender” during the his State of the Union speech. It was the first time those words had ever been uttered in a SOTU address.

President Obama said: “As Americans, we respect human dignity. … That’s why we defend free speech, and advocate for political prisoners, and condemn the persecution of women, or religious minorities, or people who are lesbian, gay, bisexual or transgender. We do these things not only because they are the right thing to do, but because ultimately they will make us safer.”

It was, I think, an especially sweet moment for the thousands and thousands of transgender Americans. We are making progress toward full equality every day, but still, our trans brothers and sisters are the ones still being left behind. So hearing the president of the United States truly acknowledge them had to be a great moment.

The press releases and written statements I found flooding my email inbox this morning reinforced what I already believed:

Mara Keisling, executive director of the National Center for Transgender Equality, said: “What President Obama said about trans people last night … he actually said it. …. His mention of us [last night] let’s us know that whenever he’s spoken of children, he has meant transgender children too. Or when he’s spoken out about immigrants, he’s meant transgender immigrants too. And when he’s talked about service members and veterans, he meant transgender service members too.”

A statement from the Transgender Legal Defense and Education Fund called the mention “a landmark moment,” adding: “This is a moment of promise for transgender people, who before now, had never been mentioned in a State of the Union address. We are grateful to President Obama for including our entire community in his speech, and for highlighting and condemning the persecution of LGBT people. Through his stirring and heartfelt words, the president has again demonstrated his commitment to creating a world where people are treated equally regardless of who we are or who we love.”

As uplifting and empowering as that moment was, though, my email inbox also provided ample proof that we still have a very long way to go, especially in protecting transgender Americans — their rights, their freedoms and their very lives.

A press release from the National Center for Lesbian Rights notes that NCLR and the Human Rights Campaign on Tuesday filed a joint friend of the court brief in the United States District Court for the Southern District of Texas, supporting a former Saks Fifth Avenue employee, Leyth Jamal, who says the company discriminated against her because she is trans.

Saks attorneys have asked the court to dismiss the lawsuit because Title VII of the Civil Rights Act of 1964 does not protect transgender workers.

I also had an email from a group called Care2, “a community of 27 million standing together for good,” taking to task InTouch Weekly for its horrendous cover story speculating on the gender identity of Olympic champion Bruce Jenner.

I saw that cover while standing in the check-out line at the grocery store; it made me sick, and it made me angry. It depicts a heavily altered photo of Jenner to show what he would look like as a woman. I didn’t read the article — although Care2’s statement says it was full of speculation and nothing else. Us Magazine reports Jenner himself is “upset” with the cover and story.

According to the press release, there is a new Care2 petition by Julie Mastrine demanding that “David Perel, editorial director of InTouch Weekly, be more sensitive to the struggles that actual transgender people face and refrain from gossipy speculation about someone’s gender identity.”

Mastrine said: “Publicly speculating as to whether or not someone will be coming out as transgender illustrates a flippant lack of empathy toward people who actually struggle with making a gender transition. It robs Jenner of his right to identify as he wishes.”

BuzzFeed says the magazine likely imposed Jenner’s face over British actress Stephanie Beacham’s body, and even comedian/actor Russell Brand condemned InTouch, calling it “bullying.”

 

—  Tammye Nash

Obama uses ‘lesbian,’ ‘bisexual,’ ‘transgender’ in SOTU for the first time ever

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President Barack Obama

Tonight wasn’t the first time that President Barack Obama has mentioned LGBT rights in his State of the Union Address; last year he took a brief moment to reiterate his commitment to LGBT rights around the world. He was the first to use the word “gay” in a State of the Union Address in 2010 when he talked about Don’t Ask, Don’t Tell.

But the 2015 State of the Union Address on Tuesday night, Jan. 20 did mark an historic event for the LGBT community: For the first time ever in a State of the Union Address, a U.S. president used the words “bisexual” and “transgender.” UPDATE: I just discovered this is apparently the first time the word “lesbian” has been used in a State of the Union speech, too.

The historic moment came near the end of the president’s speech, when he said that Americans “condemn the persecution of women, or religious minorities, or people who are lesbian, gay, bisexual or transgender.”

The president on Tuesday also called the ongoing battle for marriage equality “a story of freedom across our country” and “a civil right.” And he said that Americans now “value the dignity and worth” of gay people.

—  Tammye Nash

Tickets to see Laverne Cox at UNT go on sale tomorrow

Laverne-CoxLaverne Cox, the first transgender person to be nominated for an acting Emmy Award and a vocal advocate for LGBT issues, will present her talk “Ain’t I a Woman: My Journey to Womanhood,” at the University of North Texas Super Pit coliseum in Denton on Feb. 24. A Time magazine cover model, Cox is a co-star on the Netflix hit series Orange is the New Black, and will discuss the racism, classism and gender bias she have dealt with. She’s being presented through the Mary Jo and V. Lane Rawlins Fine Arts Series of UNT.

Tickets go on sale Tuesday: $10 for the general public, $5 for UNT staff, and free for UNT students. Go here to get yours.

—  Arnold Wayne Jones

Ask Lambda Legal: Prison Rape Elimination Act

By Jael Humphrey

Staff Attorney for Lambda Legal

 

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Jael Humphrey, staff attorney with Lambda Legal

Q: My friend was recently incarcerated in prison in Florida and I’m worried about her safety because she’s transgender. Are there laws that can protect her?

A: Unfortunately, the situation your friend is in is all too common — prisons incarcerate a transgender woman in a male, rather than a female, facility where she is at constant risk of sexual abuse and other violence. When someone is incarcerated, their health and safety becomes the responsibility of the state. But not all prisons protect the people in their custody, tolerating a culture where staff threaten, beat or sexually assault some people in custody or permit other incarcerated people to do so, just because they are transgender.

If your friend is threatened or abused, it is important that she file as soon as possible an “administrative grievance,” or complaint, that puts the facility on notice that she believes her rights have been violated. Under the Prison Litigation Reform Act, a federal law passed in 1996, people in custody who wish to file a lawsuit in federal court must first exhaust all administrative remedies available to them, sometimes within very short deadlines.

This step is crucial, because correctional facilities use the failure to exhaust administrative remedies as a reason to ask courts to throw out cases filed by people in their custody.

If she first exhausts, she may be able to sue in federal court. In October of last year, Lambda Legal filed a federal lawsuit on behalf of Passion Star, a transgender woman currently in the custody of the Texas Department of Criminal Justice, arguing that TDCJ officials are deliberately indifferent to her safety.  Passion is in constant danger of sexual assault, but TDCJ officials have ignored or made her problems worse, even though she has filed dozens of grievances, complaints and requests to be placed in safekeeping.

The Prison Rape Elimination Act, a federal law to eliminate sexual abuse of people in custody, has provisions to protect incarcerated transgender people, if it is implemented fully. Among other things, the PREA standards instruct prison officials to screen and separate particularly vulnerable people — such as transgender women in male facilities — from likely aggressors and make individualized housing decisions prioritizing gender identity and safety, not merely genital characteristics.

While most states are working to implement PREA, some states — like Texas, Florida and Indiana, instead decided to pass up funding earmarked for the prevention of sexual assault. Perhaps not coincidentally, Texas is home to five of the 10 prisons with the highest rates of reported rapes in the country.

Sign our petition urging Texas to fully implement and abide by the Prison Rape Elimination Act. See more at here.

For more information about transgender prisoners in crisis, see here.

If you have questions, or feel you have been discriminated against because of your gender identity, sexual orientation, or HIV status, contact Lambda Legal’s Help Desk at 1-866-542-8336, or see here.

 

—  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

First Circuit denies gender reassignment surgery to transgender inmate

michelle-kosilek1The full First Circuit Court of Appeals today (Tuesday, Dec. 16) reversed an earlier ruling that Massachusetts must provide Michelle Kosilek, an incarcerated transgender woman, medically-necessary gender reassignment surgery.

Jennifer Levi, director of the Transgender Rights Project of Gay & Lesbian Advocates & Defenders, said, “I am appalled by this decision, which means that Michelle Kosilek will continue to be denied the life-saving medical care she needs and has been seeking for years.  It is difficult or impossible to imagine a decision like this one – that second-guesses every factual determination made by the trial court – in the context of any other prisoner health care case.  This decision is a testament to how much work remains to be done to get transgender people’s health care needs on par with others in the general public. ”

A three-judge panel of the Court of Appeals issued an initial ruling Jan. 17, upholding the finding of District Court Judge Mark L. Wolf that the Massachusetts Department of Corrections engaged in a pattern of “pretense, pretext and prevarication” to deny Kosilek treatment, in violation of her 8th Amendment right to freedom from cruel and unusual punishment. The commonwealth requested and was granted a rehearing of the case before the full bench. Oral arguments took place on May 8.

Kosilek was denied gender reassignment surgery by the department against the recommendations of multiple doctors.

“There is no scientific or medical basis for denying transgender people their health care needs,” Levi said. “The consensus position of the medical community is that surgery may sometimes be essential treatment.”

Kosilek is serving a lifetime sentence for the 1990 murder of her wife, Cheryl McCaul.

—  James Russell

Mom ‘corrects’ birth announcement for trans son

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Kai Bogert, center, with his mom, Yolanda Bogert, and Guy Kershaw

Some 19 years ago, Yolanda Bogert of Jimboomba in Australia had a birth announcement for her daughter, Elizabeth Anne, published in her local newspaper.

But when her “daughter” came out to her recently as transgender, Yolanda Bogert published a new birth announcement in Australia’s Courier-Mail for her son:Screen shot 2014-12-02 at 12.15.38 PM

“In 1995, we announced the arrival of our sprogget, Elizabeth Anne, as a daughter. He informs us that were were mistaken. Oops! Our bad. We would now like to present our wonderful son — Kai Bogert.”

Yolanda Bogert told the Courier-Mail that publishing the “birth” announcement was a “no-brainer” because “I needed to show my son I support him 100 per cent and wanted to let the world know that.”

We could stop right there and the story would be perfect. But as the parent of two teenage boys — ages 18 and 15 — I have to say it was the rest of the ad that really really made me smile. After the “present our wonderful son” line, Yolanda Bogert added: “Loving you is the easiest thing in the world. Tidy your room.”

 

—  Tammye Nash

Here’s to the day we no longer need TDOR

By Rizi Xavier Timane

13th

Rizi Xavier Timane

Every year on Nov. 20, transgender individuals and their allies around the world commemorate the Transgender Day of Remembrance.

But make no mistake: This is not a holiday, and the ceremonies we hold are certainly not celebrations.

Rather, the Day of Remembrance is a solemn time when we can come together and reflect on the battles we have fought and continue to fight and those individuals we have lost — the transgender and other gender-nonconforming individuals who were innocent victims of violence because of who they were, because they had the audacity to live as their authentic selves.

I would like to say I’ve never experienced this extreme sort of prejudice before, but like most trans people, I have my stories. While I thank God there have never been any attempts on my life, there have been people around me who thought I would be better off — or they would be better off — if I were dead. While I was a university student in London, another young person studying there passed away, and some of my fellow African students (I am from Nigeria) made a point of saying, loudly and closely enough that they knew I would hear, that it should have been me instead.

Besides the defeating personal implications of hearing such a thing, this incident continues to be a sad reminder to me of how deeply many people undervalue transgender lives and how, at any moment, someone out there could hate us enough to kill us. It reminds me that it could easily be our pictures shown at memorial services on the Transgender Day of Remembrance.

But this is part of what the day is for: to remind us that we all share this heavy burden, that we are not alone in our persecution and suffering.

Is this comforting? In some ways, yes. It’s always a comfort to know someone else feels as we do.

But it’s also problematic. That we even have to have such a day is, in my opinion, shameful not for those of us who participate or those we remember but for society as a whole — for the culture of conformity and hatred that keeps us hidden within ourselves, afraid to come out for fear of rejection and outright violence.

I don’t want a day of remembrance. I want a Pride day, like the LGB community has. Or no day at all because the murders of transgender individuals have ended in every nation around the world.

How can we make this happen? How can we eradicate the need for a Transgender Day of Remembrance?

In general we need more allies, more compassion, more understanding and more tolerance. We need more safe spaces in which we can raise our voices and share our stories. We need mandatory diversity training in schools and universities, police departments, hospitals and businesses so everyone will be aware of and understand transgender individuals and issues. We need nationwide laws to ban discrimination based on gender identity and presentation.

We need all this for our safety. Most of all, we simply need the deaths to stop.

Rizi Xavier Timane is a transgender minister, author, recording artist and outspoken advocate for the LGBT community. He has performed his positive, LGB-inclusive inspirational music at venues all across the U.S. and internationally. In his memoir, An Unspoken Compromise, Timane shares his journey to self-acceptance as a trans man of faith; he also writes for the Southern Poverty Law Center’s Teaching Tolerance blog, is a sought-after public speaker on the intersection of religion and LGBT civil rights, and holds a master’s in social work and a Ph.D. in Christian counseling.  As the founder of Rizi Timane Ministries and The Happy Transgender Center, he provides affirming spiritual support to people of all faiths, sexual orientations and gender identities. Having been subjected to what he terms, “involuntary religious-based abuse” in the form of multiple exorcisms to pray the gay or trans away and the subsequent self-loathing and drug/alcohol abuse that resulted from that Timane is a firm believer in spiritual affirmation for the trans community. His greatest accomplishment has been the establishment of an annual transgender surgery and hormones scholarship for trans-persons who, for whatever reason, cannot afford the surgery or hormone therapy they want and need.

—  Tammye Nash

Elton John AIDS Foundation funds transgender HIV project

AIDS ribbonElton John AIDS Foundation and Transgender Law Center will partner for a one year pilot program to identify the structural inequities that drive high rates of HIV incidents in transgender communities.

The Transgender Law Center will use the funds to form a national advisory board of eight to ten trans people living with HIV, with a strong focus on trans women of color. The advisory board will assist in a systems gap assessment, identify best and promising practices in community response to HIV and issue recommendations.

“With the support of the advisory board, Transgender Law Center will engage the community meaningfully in the examination of how systemic barriers and social conditions  (such as discrimination, transphobia, criminalization and violence) drive the HIV epidemic and negatively impact health outcomes.” said Cecilia Chung, Senior Strategist of Transgender Law Center. “This will also give us an opportunity to support and strengthen the leadership of some of the most vulnerable members in the transgender community.”

—  James Russell