Trump Says OK to Anti-LGBT Discrimination

To date Donald Trump's re-election campaign appears to be based on pandering to those who hold hatred towards others and seek to discriminate against or eliminate those they deem "other." On one front, he is fanning the ugly agenda of white supremacists - the El Paso shooter used some of Trump's language in his "manifesto - and one of his spokesmen, Ken Cuccinelli, who was a toxic extremist while attorney general of Virginia, has argued that the poem on the Statute of Liberty only applied to white Europeans.  On a second front, as underscored yesterday, he is fanning the anti-LGBT hatred of evangelical Christians and has given a nod to employers, including government contractors, to discriminate against LGBT individuals in hiring and employment practices if they site religious belief as the basis of their bigotry. Needless to say, Christofascists and professional "Christians" like Franklin Graham, Jerry Falwell, Jr., and Tony Perkins are near orgasmic over the new Department of Labor rule. Nothing in Trump's agenda seeks to unify Americans.  Instead, it is all about playing to his base and sowing hatred and division. A piece in The Advocate looks at how LGBT individuals are being targeted.  Here are excerpts:

Civil rights advocates are enraged by a proposal released by the Department of Labor today to allow federal contractors to discriminate against LGBTQ people and others who offend the contractors’ religious beliefs. 

The action is a notice of proposed rulemaking by the DOL’s Office of Federal Contract Compliance Programs. A DOL press release says a proposed rule on compliance is “intended to clarify the civil rights protections afforded to religious organizations that contract with the federal government” and assure that “conscience and religious freedom are given the broadest protection permitted by law.” But civil rights groups say it weaponizes religious freedom and encourages discrimination.

Basically, any employer, even a for-profit corporation, could claim that sincerely held religious beliefs allow it to deny employment to certain people, including LGBTQ people, single parents, members of other faiths, and more, representatives of several organizations said on the conference call.

The George W. Bush administration had approved an exemption for faith-based contractors, such as, say, Catholic nonprofit organizations, allowing them to favor members of their faith in employment. The Obama order maintained that. But the new proposed rule goes much further, allowing virtually any contractor to claim that religious beliefs allow discrimination against employees who do not follow all of those beliefs, according to the civil rights groups.

The proposal would expand the Bush exemption “by leaps and bounds,” Rachel Laser, president and CEO of Americans United for the Separation of Church and State, said on the conference call. She explained, “Any company could take taxpayer dollars and fire a religious minority” or anyone else to whom it objected. And companies would be taken at their word on whether they’re religious in nature, she said: “If they say they’re religious, they are.”

Today’s news follows on other Labor Department actions. The department issued a memo in August of last year instructing those who enforce antidiscrimination law to take companies’ religious beliefs into account, advising compliance program staff that they “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices” . . . . The proposed rule, which will be published in the Federal Register Thursday, would expand upon and codify the memo, activists said. In both the memo and the proposed rule, the DOL refers to recent Supreme Court decisions involving businesses run by religious conservatives, . . . . But the Labor Department is “cherry-picking” those rulings, which did not establish a broad right to discriminate, the activists said. While business owners have every right to observe their religion in their private lives, when they are engaging in commerce, they should not discriminate, said Steve Freeman, vice president of civil rights for the Anti-Defamation League. “The proposal itself is anti-religious, particularly religious minorities. … We are seeing religious freedom weaponized,” he said.

The move also once again shows that the administration of Donald Trump and Mike Pence “is the most anti-LGBTQ administration in modern history,” Warbelow said.  “At the end of the day, it is those two who are responsible,” added Winnie Stachelberg, executive vice president for external affairs at the Center for American Progress.

Among the administration’s other anti-LGBTQ actions, Tobin said, the Department of Justice is preparing a brief in an upcoming Supreme Court case arguing that a funeral home operator in Michigan had the right to fire an employee because she is transgender. Tobin said she has also learned that the Justice Department has demanded that the Equal Employment Opportunity Commission quit defending trans people who’ve lost their jobs. The EEOC is a semiautonomous federal agency tasked with investigating discrimination.

These come on top of actions involving discrimination in health care. One is a rule, now final, allowing health care workers to opt out of procedures to which they have religious or moral objections, no matter how marginal their involvement in the procedure might be. The administration is also working on a rule aimed at undermining the Affordable Care Act’s prohibition on discrimination against trans people.

“This administration straight-up believes the LGBTQ community should not have rights,” Stachelberg said.

Second Circuit Nixes TV Coverage of Arguments on LGBT Rights

The bigoted Jeff Sessions who opposes GBT protections

While the Trump fueled furor over black pro-athletes exercising their First Amendment right to freedom of speech, the U.S. Court of Appeals is about to hear arguments on another circumstance that shows the promise of America is not currently available to all.  Specifically, the Court will ultimately decide whether or not LGBT citizens are protected from discrimination under existing federal laws.  The case arises out of the firing of an employee due to his sexual orientation. Der Trumpenführer's Department of Justice has intervened in the case to argue against a finding in favor of LGBT employees.  On the opposing side of the case is the EEOC which argues that existing laws do provide non-discrimination protections. Trump, of course, is motivated by his promises to the leaders of many of the most vociferous anti-LGBT hate groups who rallied the modern day Pharisee evangelical followers to vote for Trump. Politico looks at the stakes at hand which one way or another will likely see the case go to the U.S. Supreme Court.  Here are excerpts:

Appeals court arguments on LGBT rights Tuesday will take place without video coverage after a judge objected to C-SPAN's request to televise the rare session, a court official said.

The full 13-judge bench of the New York-based 2nd Circuit U.S. Court of Appeals is set to hear an hour of oral arguments Tuesday afternoon on a case raising the issue of whether existing federal law prohibits discrimination against gays and lesbians.

The case, involving a deceased New York skydiving instructor who claimed he was fired from a skydiving company because he was gay, has drawn unusual attention because different parts of the federal government are taking conflicting positions.

Interest in the 2nd Circuit case has also been piqued by the rarity with which the court grants en banc review. . . . . The 2nd Circuit is considered the stingiest court when it comes to having the full bench rehear a case already decided by a three-judge panel.

The clerk added that audio of the argument will be made public after the session. However, figuring out which of the 13 judges is questioning a lawyer or engaging with a colleague can be challenging from audio alone.

In June, the Equal Employment Opportunity Commission weighed in for Zarda's estate, arguing that existing federal law against sex discrimination offers protection against being fired for being gay. In July, the Trump administration weighed in via the Justice Department, contending that Congress has had dozens of chances to make such protection explicit and has never done so.

For decades, courts have ruled that firing or discriminating against employees because they're gay or lesbian does not violate federal law.

However, the Supreme Court has never ruled on the issue and in recent years, some judges have shown a willingness to reconsider that stance.

In April, the full bench of the Chicago-based U.S. 7th Circuit Court of Appeals voted, 8-3, to overrule that court's prior precedents and hold that there are protections for LGBT status in federal law. Five of the judges who joined in the groundbreaking majority opinion were Republican appointees.

Trump DOJ Continues Attacks on LGBT Americans

While Der Trumpenführer's diktat against transgender members of the military is receiving the most media attention, another sinister effort is being pushed by Trump's Department of Justice that would declare that Title VII of the Civil Rights Act of 1964 does not afford any protections to LGBT individuals targeted for discrimination.  Specifically, Attorney General Jeff Sessions - a man with a long history of both racism and anti-LGBT animus - filed an amicus brief filed in Zarda v. Altitude Express, Inc., pending in the U.S. Court of Appeals for the Second Circuit.  The case involves an employee, Donald Zarda, a skydiving instructor, who filed suit against his employer in federal court in New York, alleging that the company terminated him for his sexual orientation in violation of Title VII.   The Equal Employment Opportunity Commission ("EEOC")  supported Zarda last month in its own court filing.  BuzzFeed looks at the case and Trump/Sessions' effort to leave LGBT with no non-discrimination protections (something that would thrill Christofascists and evangelical Christians). Here are highlights:

The U.S. Justice Department on Wednesday argued in a major federal lawsuit that a 1964 civil rights law doesn’t protect gay workers from discrimination, thereby diverging from a separate, autonomous federal agency that had supported the gay plaintiff’s case.

The Trump administration’s filing is unusual in part because the Justice Department isn’t a party in the case, and the department doesn’t typically weigh in on private employment lawsuits.

But in an amicus brief filed at the US Court of Appeals for the Second Circuit, lawyers under Attorney General Jeff Sessions contend that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, does not cover sexual orientation.

The Justice Department also contends that Title VII only applies if men and women are treated unequally.

"The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect," the brief says.

After a lower court ruled and the case was appealed, the 2nd Circuit invited outside parties to weigh in. Zarda v. Altitude Express is now before before a full panel of judges at the court.

Among Zarda’s boosters is the Equal Employment Opportunity Commission, a largely autonomous federal agency that handles civil rights disputes in the workplace, which supported Zarda last month in its own court filing.

For several years, the EEOC has declared in federal court that Title VII bans anti-gay discrimination, saying it is based on sex stereotyping, and therefor discrimination on the basis of sex.

If Zarda’s argument were to prevail — despite his death in base-jumping accident in 2014 — it would set new precedent in the circuit by overturning two cases from the 2000s.

Further, it would give momentum to the argument as a general matter, given that the 7th Circuit ruled in favor of lesbian in April who made the same claim.

Earlier on Wednesday, Trump announced he would end all transgender military service.

“On the day that will go down in history as Anti-LGBT Day, comes one more gratuitous and extraordinary attack on LGBT people’s civil rights," said a statement from James Esseks, director of the American Civil Liberties Union's LGBT & HIV Project. "The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination."

Let it not be forgotten that every friend, family member or neighbor of an LGBT American voted for this attack on our basic civil rights when they voted for Donald Trump. Do NOT give them a pass or forgive them for the harm that they set in motion and will be continuing to support as long as they continue to support Trump and the GOP more generally.  With "friends" like these Trump supporters, one doesn't need an enemy.   

Obama Administration Considers Cutting Federal Funding to North Carolina

According to a story in the New York Times, North Carolina Republicans may be about to feel severe consequence for their self-prostitution to Christofascists in the form of horrific economic damage to the state's economy and education system.  How so?  Apparently, the Obama administration is considering whether North Carolina’s new anti-LGBT law makes the state ineligible for billions of dollars in federal aid for schools, highways and housing.  Yes, that is billions with a "B".  As previously noted, the EEOC has held that anti-gay and anti-transgender discrimination violates the Civil Rights Act, so there would be precedent for holding North Carolina liable for its state wide discrimination against LGBT citizens.  Personally, I hope all federal funding is cut and North Carolina is brought to its knees economically.  Mississippi should face a similar fate.  Here are story highlights:

The Obama administration is considering whether North Carolina’s new law on gay and transgender rights makes the state ineligible for billions of dollars in federal aid for schools, highways and housing, officials said Friday.

Cutting off any federal money — or even simply threatening to do so — would put major new pressure on North Carolina to repeal the law, which eliminated local protections for gay and transgender people and restricted which bathrooms transgender people can use. A loss of federal money could send the state into a budget crisis and jeopardize services that are central to daily life.

Although experts said such a drastic step was unlikely, at least immediately, the administration’s review puts North Carolina on notice that the new law could have financial consequences. Gov. Pat McCrory of North Carolina had assured residents that the law would not jeopardize federal money for education.

But the law also represents a test for the Obama administration, which has declared that the fight for gay and transgender rights is a continuation of the civil rights era. The North Carolina dispute forces the administration to decide how aggressively to fight on that principle.

Anthony Foxx, the secretary of transportation, first raised the prospect of a review of federal funding in public remarks on Tuesday in North Carolina. The Department of Transportation provides roughly $1 billion a year to North Carolina. The New York Times then asked other federal agencies whether they were conducting similar reviews.

A Department of Education spokeswoman, Dorie Nolt, said on Friday that her agency was also reviewing the North Carolina law “to determine any potential impact on the state’s federal education funding.” She added, “We will not hesitate to act if students’ civil rights are being violated.”

The agency said it provided $4.3 billion to North Carolina last year for kindergarten through 12th grade as well as colleges. Any decision on federal aid would take time, experts said. Federal agencies have used the threat of lost money to pressure a handful of municipal governments in California and Illinois to change their policies and allow transgender students to use the restrooms of the gender they identify with. There is no recent precedent for the federal government’s applying similar pressure to address a state law that it sees as discriminatory. Mr. McCrory, a Republican who is seeking re-election, and other supporters of the law have been aware, but dismissive, of suggestions that the measure might endanger the state’s federal largess. Mr. McCrory’s office did not respond to messages on Friday. The Obama administration would not need to go to court to withhold grant money, but doing so would surely lead to a court fight, especially since the law is unsettled.  

Again, an example needs to be made of North Carolina - and Mississippi - to send a loud message to Republicans that the days of granting special rights to Christian extremists is over and that religious based bigotry will carry a very high cost.

Virginia Equality Bar Association 2016 Spring Symposium

Yours truly with Jim Obergefell

Posting was minimal today since I attended the Virginia Equality Bar Association 2016 Spring Symposium in Richmond at the offices of mega firm, Williams Mullen.  It was a great and informative event that included continuing legal education ("CLE") credits and the chance to meet Jim Obergefell (pictured with me above), lead plaintiff in Obergefell v. Hodges, the equality marriage case before the Supreme Court that brought marriage equality nationwide, and Paul Smith counsel before the Supreme Court in Lawrence v. Texas which struck down the remaining sodomy statues, including Virginia's animus motivated statute. 

While Virginia still has no anti-discrimination statutes that protect LGBT Virginians, the positive news covered on the employment discrimination front is that the Equal Employment Opportunity Commission ("EEOC") has now ruled that Title VII of the Civil Rights Act covers BOTH transgender and gay and lesbian employees and that recourse can be sought through the EEOC which can open the doorway for civil litigation against anti-LGBT employers.  I suspect that many Virginia employers do not realize that they are playing with fire when they discriminate against, allow the harassment of, or fire and LGBT employee. While a lengthy process, a few cases against the right employers could prompt a sea change in the mindset of anti-gay bigots who either own or are in the management of businesses.

Over lunch, there was a panel discussion of the issue of LGBT rights and the myth of Christian persecution that lies behind the push for "religious freedom" laws that are in reality nothing more than attempts to grant a special license to discriminate to right wing Christofascists.  Other than the roughly 3 hours in the car to Richmond and back, it was a 100% enjoyable event.

The Supreme Court Shake-Up and The Future Of LGBT Rights

With the death of Antonin Scalia, the Supreme Court lost one of its most strident anti-gay justices.  Of course, Scalia didn't limit his bigotry to the LGBT community.  Women and minorities were other favorite targets for his discriminatory mind set. And while things are far better for LGBT Americans than even a few years ago, in states like Virginia, one can marry yet be fired the next day - even by state agencies and departments - simply because one is gay.  As a piece in Think Progress lays out, the next member of the Supreme Court is likely to be crucial to furthering an end to anti-LGBT discrimination.  Here are highlights:

The passing of Supreme Court Justice Antonin Scalia has sparked a political firestorm, with a new justice potentially casting deciding votes on issues ranging from abortion to campaign finance reform.  Less than a year after the Court’s historic decision in Obergefell v. Hodges, which ensured a constitutional right to marry for same-sex couples, LGBT Americans are presented with a path forward – again through the Supreme Court – that could expand equal rights beyond the context of marriage, to include employment, housing, and education, among other areas of life.

Though the Supreme Court already had a majority in favor of nationwide marriage equality before the current vacancy, it’s less clear that a majority exists in favor of the next wave of LGBT litigation, which seeks to ban discrimination against LGBT people through arguments surrounding the interpretation of existing federal nondiscrimination laws.

Currently, a majority of states and the federal government lack explicit protections from discrimination based on sexual orientation and gender identity.

LGBT litigator groups believe — and the Equal Opportunity Employment Commission and a growing number of courts have ruled — that because gender is at the core of anti-LGBT discrimination, such discrimination falls within existing sex protections.  If the Supreme Court sided with those arguments, the ramifications would be huge: discrimination against LGBT people would be clearly and undeniably illegal in vital areas of life, from workplaces to schools.

The question at the core of the discrimination cases differs from the one answered in the Court’s majority opinion in Obergefell, meaning that the same coalition of five justices, particularly the inclusion of Justice Anthony Kennedy, may not exist in the context of nondiscrimination protections.

Despite the fact that the Supreme Court has not yet grappled with these cases, LGBT people can file complaints with relevant courts and agencies and are seeing increasing success.  Until the Supreme Court rules definitively, however, a patchwork of protections could develop with more conservative courts and judges disregarding the growing legal consensus.

Most recently, after a transgender student faced discrimination at his local high school, a federal judge in Virginia ruled that Title IX, which bans discrimination based on sex in federally funded education programs, does not include gender identity.  The student’s attorneys are now appealing the judge’s ruling to the Fourth Circuit Court of Appeals and the Obama Administration has weighed in on the side of the student.

The route for LGBT nondiscrimination protections through the judicial branch is not a panacea.  LGBT people would only be able to gain protections from discrimination committed by private (non-governmental) entities in the areas of life where sex is already explicitly included in relevant civil rights laws.

For example, the federal government still lacks nondiscrimination laws based on sex in public accommodations, like restaurants and hotels, which means that legislative action is necessary to secure protections throughout daily life. 
For LGBT people and their families, the next wave of LGBT equality litigation could very well hinge on the upcoming Supreme Court nomination battle.  Protections in employment and housing could hang in the balance.  It’s possible that one of the remaining conservative justices could side with LGBT plaintiffs, but it is far from assured.

Today, it’s likely that there are four firm votes on the Court in favor of including LGBT people in existing nondiscrimination laws.  President Obama’s nominee could be the pivotal fifth vote.

Justice Department Moves Toward Protecting Gays Under Existing Law

Faced with the refusal of Republican lawmakers to allow passage of any bills that would protect LGBT individuals from discrimination, Justice Department lawyers are moving toward finding that  claims of discrimination based on sexual orientation is a type of sex discrimination banned by the Civil Rights Act of 1964. The trend is welcomed in states like Virginia where household pets have more protections against mistreatment than LGBT Virginians.  However, it could unravel if a Republican wins the White House in November and panders to Christofascist demands that be placed above the laws that bar discrimination.  BuzzFeed looks at this development.  Here are highlights:

On Thursday, the Justice Department took the first step toward backing the view of a federal commission that sexual orientation is a type of sex discrimination barred under existing civil rights law.

In response to a lawsuit filed by a former Federal Aviation Administration employee claiming that he was illegally discriminated against on the basis of his sexual orientation, Justice Department attorneys on Thursday chose to answer his complaint rather than seeking to have it dismissed outright.

In his complaint, filed this past October, David Baldwin alleged that he was discriminated against because of his sexual orientation and that such discrimination was illegal because it is a type of sex discrimination barred by Title VII of the Civil Rights Act of 1964.

Although such claims used to regularly fail, advocates — supported by a growing body of law and the Equal Employment Opportunity Commission — have pressed in recent years for the claims to be revisited and for courts to find that sexual orientation discrimination should be barred as a type of sex discrimination.

“The Justice Department made the correct call by defending this case on the facts rather than making the outdated and conservative legal argument that the Civil Rights Act does not protect gays and lesbians from workplace discrimination,” Tico Almeida, the civil rights attorney who founded Freedom to Work, told BuzzFeed News.

This past July, the EEOC — in response to a complaint filed by Baldwin — issued a decision in his favor. The EEOC found that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex” that are barred by Title VII.

From there, Baldwin chose to file suit against the FAA in October. In December, the parties agreed to an extension through Thursday for the Justice Department to respond to the lawsuit.

The move comes in the midst of a significant and growing effort from advocates, the EEOC, and others to provide federal protections for LGBT people under existing laws, as new legislative efforts have stalled in Congress.

On Wednesday, the 4th Circuit Court of Appeals in Richmond, Virginia, heard arguments over the issue of transgender coverage in the context of Title IX’s education protections. The Justice Department backed the transgender student, Gavin Grimm, who is suing his school district for alleged sex discrimination. 

Christofascist Hysteria Over EEOC Pro-Gay Ruling Grows

As noted in two earlier posts, the Equal Employment Opportunity Commission ruling last week that held that employment discrimination based on sexual orientation constitutes gender discrimination under Title VII of the Civil Rights Act of 1964 is a landmark ruling.  Not surprisingly, it is causing hysteria among the Christofascists who believe that they have the right to trample on the rights of others with impunity.  A piece in the Washington Blade provides the take away from the ruling:

The ruling is as significant as people are saying it is. The Commission’s decision that sexual orientation discrimination is always sex discrimination under Title VII now applies across all of the Commission activities, including charges brought to us by employees and applicants who work in the private sector or for state or local governments. While the particular order in this case involves only the Department of Transportation and the complainant, the legal analysis in this opinion affects all of the EEOC’s work – both for federal workers and private sector workers. 

What the EEOC has done is offer a chance to bring cases of LGBT discrimination under existing law. That is a very big deal. But that does not remove the need for an explicit federal law that would give LGBT people and employers across the country absolute certainty that discrimination on the basis of sexual orientation and gender identity will be prohibited. 

Leading the Christofascist lament and claims of coming persecution is Maggie Gallagher, former president of the hate group, National Organization for Marriage, who has never overcome the psychological scars arising from her unwed motherhood while in college.  Gallagher's particular peeve is that the EEOC carved out no special rights for the hate-filled "godly folk."  Here's a sampling of Gallagher's whining rant (as always she wants to make tyranny of the majority the law of the land):  

On Friday, the Equal Employment Opportunity Commission made a remarkably lawless decision: it unilaterally added “sexual orientation” the Civil Rights Act of 1964, . . . . Everyone knows the Civil Rights Act of 1964 does not include sexual orientation.

But why let words, or reality, or democracy, or the rule of law get in the way of the power to achieve your ends?  In the 3-2 party line vote, the majority of unelected regulators just made up that “discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination” because (the three regulators assume) sexual orientation discrimination “is premised on sex-based preferences, assumptions, expectations, stereotypes or norms.” 

Now, unless Congress acts, every religious school, charity, and parachurch organization must hire openly gay people, or face potential backbreaking litigation.

Will Kennedy overturn this ruling?  Don’t count on it.  Will Congress pass a law against it, clarifying the Civil Rights Act of 1964 means what it says?  Don’t count on that either.  But it is a crucial test of whether or not the GOP is going to acquiesce in the redefinition of Christianity as racism.

I hate to say it, but Gallagher needs to wake up and face the reality that, if one looks at the history of racism in America in particular, it has almost always gone hand in glove with conservative Christianity.   Think of the Southern Baptists, think of the right wing denominations that resisted desegregation and think of the religious allegiances of those waving Confederate flags currently. 

 

Why This Week’s EEOC Ruling on Anti-Gay Job Discrimination is So Important

As noted in a previous post, this past week the Equal Employment Opportunity Commission ("EEOC") issued a ruling that discrimination against gay employees violates Title VII of the Civil Rights Act.  While not binding in the manner of a appellate court ruling, an EEOC ruling of this nature is nonetheless very important and can have far reaching positive consequences.  A piece at Towleroad looks at the ruling and what it may portend for gays in states that lack state law protections - states like Virginia.  Here are highlights:

On Friday, in a 3-2 party-line ruling, the Commission held that discrimination against gay persons violates Title VII’s ban on discrimination on the basis of sex. This is potentially groundbreaking: until Friday, there was no federal law protecting gay workers if they are discriminated against because they are gay, and although only the Supreme Court can issue a definitive ruling on the subject, the EEOC’s view is given substantial weight by the courts. Plus, the decision may influence state courts on the matter, as well.

Title VII, part of the Civil Rights Act of 1964, bans discrimination “on the basis of sex.” An employer cannot, for example, treat women different than men. Nor can they allow people to behave in a way that creates an environment hostile to women because they are women.

How discrimination “on the basis of sex” also covers discrimination of gays is pretty simple: discrimination against gays only occurs because of the victim’s gender. That is because the status of someone being gay or lesbian is defined relative to the person he or she loves. I am gay because I love a man; if I were a woman, I would be heterosexual and, thus, not the subject of anti-gay discrimination. Consider this example: Sam works for Big Corp. Last Sunday, Sam married Patrick and their announcement was in the New York Times. Today, Sam is fired because Sam is short for Samuel. If Sam were short for Samantha, he wouldn’t be fired. That’s sex discrimination.

[T]his interpretation of Title VII is on top of a decades-old interpretation that Title VII bans gender expression discrimination. This, too, is discrimination on the basis of sex: Alice, in accordance with her gender expression, dresses more like a man than a woman. Her employer can neither make her work environment hostile by hurling slurs at her nor fire her because she doesn’t wear high heels. But this is only a problem because Alice is a woman. If Alice were named Albert and dressed like a man and didn’t wear high heels, there would be no basis for discrimination.

This is a groundbreaking development because federal judges listen closely to EEOC decisions. The EEOC is the agency in charge of interpreting and implementing Title VII; the Commission is the expert in the law of employment discrimination. And basic principles of administrative law state that the judiciary should give significant deference to agency conclusions because, unlike generalist judges, EEOC commissioners are the experts in this field of law. So, although we would feel better if this ruling were handed down by a federal court, the EEOC has taken an enormous jump in that direction.

[F]or those who work for most private companies, things are not so certain. True, the decision does not directly apply to them and their employers. However, the basis for private companies’ decisions to discriminate against gays is that Title VII allows it. It will be hard to make that argument now: at least according to the EEOC, Title VII does not permit anti-gay discrimination.

Still, more work needs to be done. We need to take this decision to the Supreme Court to ensure it applies to all workers. We also need a comprehensive anti-gay discrimination law passed at the federal level because this decision (and Title VII) only applies to employment discrimination. Gays are discriminated against in the provision of housing, education, and a host of other social services. But remember this EEOC decision. It will pop up again, and again, as we march further toward full equality.

EEOC: Discrimination Based on Sexual Orientation Barred Under Existing Law

In what may proved to be a huge ruling, the Equal Employment Opportunity Commission has ruled that existing law and regulations bar employment discrimination based on sexual orientation.  In states like Virginia which remain anti-gay in many ways (e.g., no express state law employment protections, special privileges for anti-gay adoption agencies, and no fair housing protections), this could have a huge impact on members of the LGBT community who find themselves fired from jobs because their very existence offends the foul sensibilities of the "godly folk."  Personally, I have long argued that since anti-gay discrimination is based on religion, existing laws should protect LGBT individuals.  The Virginia Supreme Court, consistent with its track record of trying to stay a century behind the rest of the country would hear nothing of that argument when I represent Michael Moore who was fired by the Virginia Museum of Natural History by a bigoted executive director.  BuzzFeed looks at this important ruling.  Here are highlights:

WASHINGTON — The Equal Employment Opportunity Commission has ruled that existing civil rights law bars sexual orientation-based employment discrimination — a groundbreaking decision to advance legal protections for gay, lesbian, and bisexual workers.

“[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” the commission concluded in a decision dated July 15.

The independent commission addressed the question of whether the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 bars anti-LGB discrimination in a complaint brought by a Florida-based air traffic control specialist against Transportation Sec. Anthony Foxx.

The ruling — approved by a 3-2 vote of the five-person commission — applies to federal employees’ claims directly, but it also applies to the entire EEOC, which includes its offices across the nation that take and investigate claims of discrimination in private employment.

While only the Supreme Court could issue a definitive ruling on the interpretation, EEOC decisions are given significant deference by federal courts.

In December 2014, the Justice Department announced a similar view of the law — stating that it would apply that interpretation in its cases.

While the EEOC had been pushing toward today’s decision with cases and even field guidance addressing coverage under Title VII of specific types of discrimination faced by gay people, the July 15 decision states that “sexual orientation is inherently a ‘sex-based consideration.’”

“[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not,” the commission found. Instead, the commission stated that the question is the same as in any other Title VII sex discrimination case: “whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.”

The commission found that sexual orientation discrimination is sex discrimination for several reasons. Among the reasons, the commission stated, is because sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and “because it is associational discrimination on the basis of sex.”

“We therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”

Expect more wailing and spittle flecked rants from the Christofascists as their power to abuse those who reject their hate and fear based beliefs shrinks yet again.   Kudos to the EEOC.