For the second time, a Trump-appointed judge has upheld the legality of Florida’s Don’t Say Gay law.
Lambda Legal, the Southern Legal Counsel, and the Southern Poverty Law Center joined together with a group of LGBTQ students and their families to advocate for a preliminary injunction on H.B. 1557 – which prohibits K-3 teachers from talking about sexual orientation and gender identity issues with their students. The lawsuit argued that the law restricts free speech and encourages bullying.
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But U.S. District Judge Wendy Berger dismissed their request.
“Plaintiffs have not directed this Court to any fact that would lead a reasonable person to believe that the law prohibits students from discussing their families and vacations at school or even on a school assignment,” Berger reportedly wrote in the decision, “or that it would prohibit a parent from attending a school function in a ‘pride’ t-shirt or generally discussing their family structure in front of other people.”
Lambda Legal staff attorney Kell Olson called Berger’s decision “wrong on the law and disrespectful to LGBTQ+ families and students.”
“H.B. 1557 suppresses wholesale the speech and identities of LGBTQ+ students and their families. It sends a message of shame and stigma that has no place in schools and puts LGBTQ+ students and families at risk,” Olson continued.
“The students and families at the heart of this case have experienced more bullying in the months since the law went into effect than ever before in their lives, but the court dismissed their experiences of bullying as ‘a fact of life.’ The court’s decision defies decades of precedent establishing schools’ constitutional obligations to protect student speech, and to protect students from targeted bullying and harassment based on who they are.”
Berger acknowledged some of the plaintiff’s bullying worries but said that “it is simply a fact of life that many middle school students will face the criticism and harsh judgment of their peers.”
“Indeed, middle school children bully and belittle their classmates for a whole host of reasons,” Berger continued, “all of which are unacceptable, and many of which have nothing to do with a classmate’s gender identity.”
A challenge to the Don’t Say Gay law was dismissed by another Trump-nominated judge, Allen Cothrel Winsor, in early October.
The Don’t Say Gay law, which went into effect on July 1, continues to make its mark on Florida schools.
Based on the law, the Florida Board of Education recently instituted a new rule that says any K-3 teacher who is found to have taught their students about LGBTQ issues can have their licenses suspended or revoked.
And in September, the Miami-Dade School Board voted against recognizing October as LGBTQ History Month over fears that it would violate the Don’t Say Gay law.
A Florida sheriff’s office has cleared an officer of wrongdoing after he was caught on a body camera footage choking a Guatemalan transgender woman and calling her “it.”
In November 2020, Sean Bush, a deputy from the Hillsborough County Sheriff’s Office (HCSO), said that a then-24-year-old trans woman named Jenny DeLeon had provoked his forceful arrest after she allegedly grabbed him by the wrist and knocked him off balance while he investigated a domestic disturbance on her property.
However, attorney Katherine Viker recently uncovered Bush’s body cam footage while conducting an unrelated allegation of another HCSO deputy using excessive force, The Huffington Post reported.
The November 2020 body cam video shows DeLeon greeting Bush with a fist bump and then refusing Bush’s instruction for her to sit down. DeLeon then says that no one in the home called for him to come and asked Bush to go back to his patrol car. Soon after, she asks Bush to please stay six feet away due to COVID-19 concerns. She then tells the officer, “You’re so awesome. Thank you for your service.”
However, when Bush moves towards her car, DeLeon raises her arm and asks him not to touch the vehicle because of fears of possible COVID-19 transmission. Such transmissions are rare, according to the U.S. Centers for Disease Control and Prevention (CDC).
Bush then says, “Don’t touch me,” before grabbing the woman’s arm, shirt, and neck and pushing her to the ground in a chokehold. Bush then pulls out his stun gun as DeLeon says, “I’m epileptic!” Bush uses the stun gun on her, even though stun guns can trigger seizures in epileptic people.
Later on, he grabs her by the throat again and then shoves her into some plants before using the stun gun on her again. He then rolls her onto her stomach and began handcuffing her.
As two other deputies arrived, Bush tells them, “Just keep whatever it is down,” referring to DeLeon as an “it,” a dehumanizing transphobic slur.
After the HCSO received a complaint about Bush’s use of force and a slur, the office conducted an investigation which began on December 2, 2020. The investigation ended one month later, and by March 2021, the HCSO sent Bush a letter saying that it found neither evidence of “excessive or unnecessary force,” nor of Bush making derogatory remarks. It also called Bush’s chokehold “brief and unintentional.”
Chokeholds violate the HCSO’s use-of-force policy, according to its website. Bush remains an HSCO deputy.
In a statement issued last week, HCSO wrote, “Following review of body-worn camera video… it was determined that … the suspect continuously refused to follow commands on scene and was physically combative with the deputy…. The deputy unintentionally briefly used techniques that are not in line with HCSO’s procedures.”
After her interaction with Bush, DeLeon was charged with battery, battery on a law enforcement officer, depriving an officer of means of protection or communication, and resisting an officer with violence. She was sentenced to 30 days in jail.
One year later, DeLeon was fatally stabbed. A 40-year-old man named Damien Marshall has been arrested in connection to her murder. Marshall said he slept with DeLeon but denied killing her.
“You see the video; what they said happened compared to what actually happened is not true,” Viker told The Huffington Post in a statement. “The video is the best representation of what actually occurred. Videos don’t lie.”
Viker isn’t representing DeLeon’s family members. It’s unclear if the family will take any actions in response to the newly uncovered video.
A March 2020 study by the National Center for Transgender Equality found that half of transgender people reported discomfort with seeking police assistance. About 22 percent of trans people who had interacted with police reported police harassment, and 6 percent of transgender individuals reported that they experienced bias-motivated assault by officers.
When asked to confirm his age, Out Democrat Robert Zimmerman replied with an easy and emphatic laugh: “No.”
For the record, the out Long Island Democrat – who is running for an open seat to represent New York’s 3rd Congressional District – is 68. It’s not a young age to hold elective office for the very first time, let alone to fight off an unrepentant MAGA opponent, who, at 34, is exactly half Zimmerman’s age.
But the New York native, who graduated cum laude from Brandeis University and earned an MBA at Fordham, is a seasoned politico and strategist.
He has served on Capitol Hill as a senior congressional aide and advisor to successive reps for his district, and also as the owner of a communications strategy firm he founded there in the late 1980s.
Zimmerman is also an elected member of the Democratic National Committee, a former president of the American Jewish Congress on Long Island, and a longtime media advocate for candidates and causes, appearing regularly on all the major cable news networks, and on broadcast venues like The View.
“I’m the only Democrat running for Congress in New York who has been nationally denounced by Donald Trump,” said Zimmerman proudly. In 2016, “He called me ‘a disgusting Hillary flunky.’”
Zimmerman is up against Republican MAGA standard-bearer George Devolder-Santos, a Wall Street executive who’s earned the endorsements of far-right congressional Republicans like Marjorie Taylor Greene and Matt Gaetz.
Devolder-Santos was at Donald Trump’s ellipse rally on January 6 and contributed to the insurrectionists’ defense fund. After losing in 2020 to NY3’s current rep by 13 points, Devolder-Santos claimed, to no effect, that the election was rigged.
“George Santos is gay,” said Zimmerman. “That’s where his commitment ends. He actually has publicly endorsed the Don’t Say Gay legislation that has been put forward in Florida and in 19 states. He actually uses words like ‘grooming’, and he chooses to embrace and stand with homophobes and bigots like Matt Gaetz and Marjorie Taylor Greene.”
“Yes, I hope I have the privilege and honor of making that local history by being a first member of our community in Congress,” said Zimmerman.”The bigger point is making sure we have a member of Congress who’s going to stand up for our community. I’ll do that. George Santos repeatedly has shown quite the opposite, that he stands with the homophobic agenda.”
Like many in his generation, coming out was an evolving proposition for Zimmerman.
“I grew up in the suburbs of Long Island in the 70s. That was a very isolating time to be gay. Jeez, I’ve never really talked about it much before, but I used to hang out at the diner on Friday night. I didn’t want to tip my parents I didn’t have a date, or a date for the school dance, or something like that,” Zimmerman remembers with a quiet laugh. “Sounds minor to say that, but I remember those times.”
Zimmerman recounted being counseled by a trusted former teacher that conversion therapy was an option for young men like him.
“I knew I wasn’t going to do that, but that was a mindset in those days and, of course, was very isolating, because you felt very unseen. You felt you were very much unheard in the crowd, if you will.”
Political activism, said Zimmerman, “gave me my voice.”
One place he learned to use it was on-air at the height of the cable news era. “My first segment was with Pat Buchanan, actually,” said Zimmerman, referring to the one-time CNN Crossfire host and the man who gave the term “culture war” its provenance at the 1992 Republican National Convention.
“He put his arm around me, and he looked at me and said, ‘Let me tell you how this works, kid. If you’re coherent and you show up on time, they’ll keep booking you.’ He wasn’t entirely wrong. And then we began this segment, and he blew me away,” recounted Zimmerman, laughing. “It was a rite of passage.”
And after being the voice for so many others, Zimmerman decided to advocate for his own candidacy.
Asked if his opponent is just a grandstanding MAGA provocateur, he shot back, “Let me tell you something. This is a toss-up district, ‘leaning’ Democrat. We do not have this nailed down. Not by a long shot. This is not a district that’s won. This is not a ‘safe seat.’ I don’t want anyone who’s reading this to think that someone this extreme can’t win. Extremists win all the time.”
“They’re relentless and you’ve got to be equally determined to fight back,” he continued. “Clarence Thomas said in his opinion on Dobbs [the decision overturning Roe v. Wade], that marriage equality is on the line. He isn’t kidding around, and he often speaks for the majority of that court. He’s saying what we all know is on their mind. He’s saying what’s on their agenda. Dammit, we have to make sure people wake up to understand it and take action to address it.”
For Zimmerman, making it to Congress means “standing up a whole series of legislation to deal with homeless gay youth, the traumas our transgender young people are facing, making sure we finally outlaw, federally, conversion therapy. In the same way, passing the Women’s Health Protection Act and codifying Roe. This is legislative action we can take. We’ve got to be focused on doing it on many different fronts. And that includes state legislatures.”
Asked about the young people protesting Don’t Say Gay in Florida, Zimmerman replied thoughtfully to the contrast with his own time growing up, in the 1970’s.
“I love their openness. I love their passion. I love the fact that gay and straight kids are coming together,” said Zimmerman. “I’m just not going to let another generation of young, LGBTQ+ young people be put back in the closet. Not on my watch. I know what’s at stake, and the heartbreak that can lead to.”
Gerald Bostock – the namesake for the 2020 historic Supreme Court decision in Bostock v. ClaytonCounty that made anti-LGBTQ discrimination illegal in the workplace – has finally settled his own discrimination lawsuit.
Bostock spent over ten years working for Clayton County, Georgia as an advocate for victims of child abuse and neglect. He was abruptly fired in 2013, six months after he joined a gay softball league and subsequently endured homophobic comments from colleagues. When he was let go, his employer cited “conduct unbecoming a county employee” as the reason. Bostock believes his termination was directly related to his sexual orientation.
In conjunction with two others, Bostock’s case led the Supreme Court to declare that Title VII of the Civil Rights Act of 1964 – which bans workplace discrimination on the basis of sex – applies to LGBTQ people.
That victory, however, did not mean Bostock’s personal case against Clayton County was over. Once the Supreme Court declared anti-LGBTQ discrimination against employees to be illegal, he then had to go back to court to determine whether or not he was actually the victim of it.
The case was settled on October 5, according to court documents obtained by Law & Crime, though the terms of the settlement are not yet public.
The Supreme Court’s decision in Bostock v. Clayton County has already had significant ripple effects.
In its wake, President Biden signed two executive orders that said federal agencies should “fully implement” the decision by applying the reasoning that anti-LGBTQ discrimination inherently involves sex discrimination.
His actions included Title IX’s protections in education. The decision has been used to protect LGBTQ students in court.
Famed trans activist Gavin Grimm, for example, won in federal court against a Virginia school district that banned him from the boys’ bathroom. The court said that based on the reasoning in Bostock, the school was in violation of Title IX.
Also using Bostock, The U.S. Court of Appeals for the Fourth Circuit ruled in 2020 that another transgender boy, Drew Adams, had to be allowed to use boys’ restrooms.
Another federal judge cited Bostock when blocking a Trump administration rule that would have made it easier for medical professionals to claim a religious exemption and refuse to treat transgender people.
And this year, out Michigan Attorney General Dana Nessel (D), and the ACLU cited Bostock in their case before the Michigan Supreme Court which led to the decision that businesses, landlords, and others cannot discriminate based on sexual orientation or gender identity, even though the state’s civil rights legislation doesn’t specifically mention those categories.
A major policy change from the U.S. Department of Veterans Affairs (VA) allows certain same-sex spouses of veterans to qualify for survivor benefits.
The VA requires couples to be married for one year for surviving spouses to qualify for survivor benefits and eight years for a higher rate of benefits.
Prior to the policy change, which was announced last week, many surviving spouses of LGBTQ veterans did not meet those requirements due to bans on same-sex marriages prior to the Supreme Court’s 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage in the U.S.
According to the VA, “This wrongly precluded many survivors of those LGBTQ+ Veterans from becoming eligible for survivor benefits because their Veteran spouse died before the marriage met VA’s length-of-marriage requirements.”
Under the new policy, the VA will now count the duration of those same-sex marriages from the point at which the surviving spouse can establish a “marriage-type” relationship. Commitment ceremonies, joint banking accounts, or joint purchase of a home all qualify as proof of a “marriage-type” relationship.
According to Military.com, anyone who applies within the next year will get benefits backdated to October 11, 2022, but the benefits are not retroactive beyond that.
“VA is closing a gap in benefits for surviving spouses of LGBTQ+ Veterans, righting a wrong that is a legacy of the discriminatory federal ban on same-sex marriages,” Veterans Affairs Secretary Denis McDonough in the announcement. “It is VA’s mission to serve all veterans — including LGTBQ+ veterans — as well as they’ve served our country, and this decision is a key part of that effort.”
In July, 41 senate Democrats sent a letter to McDonough calling on the VA to ensure that same-sex spouses who were unable to marry before the Obergefell decision would be eligible for survivor benefits.
“It’s unacceptable to me that surviving partners of veterans have been denied the VA care, benefits, and services they deserve because they did not have the right to marry,” Sen. Patty Murray (D-WA) said in a statement following the announcement of the policy change. “I’ve been fighting for years to tear down barriers like these for our veterans, and I’m glad VA took this important step — but our work is not done.”
Lawyers for Larry Vilord, who appealed to the U.S. Court of Appeals for Veterans Claims last year after being denied enhanced survivor benefits given to those married at least eight years, said that the VA’s announcement left open questions and that the lack of retroactivity leaves out same-sex survivors who were never legally married.
“We are particularly concerned about LGBTQ+ survivors establishing ‘marriage-like’ relationships if they were never allowed to marry in the first place,” said Harvard Law School’s Veterans Legal Clinic staff attorney Peter Perkowski.
Last week’s policy change follows the VA’s announcement last year that veterans given other-than-honorable discharges due to their sexual orientation under “Don’t Ask, Don’t Tell” would be eligible to receive full benefits.
Meta, the parent company of Facebook and Instagram, said its policies prohibit any reference to LGBTQ people being “groomers,” a term for would-be child rapists that conservatives have applied to LGBTQ people and allies – especially teachers and doctors – this past year.
The slur has increasingly been used by conservatives to oppose LGBTQ content in schools and gender-affirming care for transgender youth, leading to an increase in threats and harassment.
However, Facebook has continued to make money from at least 150 ads using the slur, even though the media watchdog group Media Matters alerted Meta to the issue. These ads have been seen over one million times, Media Matters reported.
On September 6, Media Matters told Meta about 134 ads using the slur. Meta removed only 40 of the ads from their platform. Now, Media Matters has discovered 19 more ads using the slur. Collectively, the advertisers paid Meta $13,600 to display these ads.
One ad, purchased by the conservative student group Turning Point USA featured a tweet from conservative pundit Candace Owen stating that she has “no patience for this child groomer movement.” The ad read, “Protect your kids.”
Another ad from The Dallas Express, one site of many in a right-wing propaganda network, purchased an ad referring to the anti-trans group “Gays Against Groomers” as an “an organization against the sexualization, indoctrination, and medicalization of children.”
New Jersey’s Holmdel Republican Party ran an ad asking people to support political candidates who “publicly state their opposition to the States [sic] new sex education curriculum which sexualizes our children to advance the agenda of groomers.”
Yet another ad by Republican Illinois state senate candidate Philip Nagel featured him stating that he is “fed up and pissed off with the sick perversion that is being pushed on our children” by “a political class full of pedophiles and groomers.”
Meta has also allowed several ads falsely linking LGBTQ rights to “the supposed normalization of pedophilia in society.”
Kayla Gogarty, deputy research director at Media Matters, told The Daily Dot that Meta’s policies against the slur don’t apparently matter.
“Those are just empty words when we see them turn a blind eye to the anti-LGBTQ rhetoric on their platform,” Gogarty said. “It’s really just another instance of Meta putting profit and engagement over the safety of its users.”
That was the message from Brett Perry and his husband John Michael Schert while they surveyed the remnants of a Progress Pride hanging on their front porch that was burned overnight last week.
The couple has lived on their street in the North End neighborhood of Boise since 2011. In 2020, the first of three Pride flags the couple has hung on their porch was stolen. A second was defaced. On October 5, the third was set on fire.
“This is our progress flag,” said Perry in a video posted to Instagram on his husband’s account. “This is our third time getting targeted. Someone burned it, it looks like in the middle of the night. There’s melted pieces on the floor, and unfortunately the camera didn’t catch it.” After the first two flags were stolen and vandalized, the couple didn’t report the episodes to police. This time, Schert says, it felt like the vandalism was spiraling.
“We reported this incident because burning feels like so much of an escalation,” Schert told the Idaho Statesman. “It’s quite dangerous and our house could have caught on fire. This feels much more hateful — someone knowing how to cover your camera and then defacing your flag on your property. That feels aggressive and it feels scary because they knew what they were doing.”
Schert says an LGBTQ liaison officer with Boise Police Department responded within minutes, took statements from the couple and neighbors and collected evidence. According to the department, North End residents have reported damaged or stolen pride flags to police seven times in 2022.
Schert and Perry say they’ve been humbled by the support they received from officials and neighbors.
“Two elderly neighbors just knocked on our door, delivering a prayer shawl made by loving hands at the Cathedral of the Rockies,” Schert posted to Instagram. “We don’t know these neighbors all that well, but they wanted us to know they are here to protect us. A care package arrived from Alabama with goods to heal and brighten our home. A Boise 10 year-old tried to surreptitiously leave a gorgeous watering can on our front stoop (good to know the doorbell camera works sometimes) letting us know we are loved.”
Schert had a message for the vandals, as well. “You, the domestic terrorists who committed this act, have failed, for we will never stop living and loving in Boise. And now, hundreds of new progress flags are going up in response to your cowardly actions. Love wins. Humanity wins. Community is stronger than you and your fear.”
Herschel Walker – the former NFL player running for a U.S. Senate seat in Georgia as a Republican – mocked transgender people who serve in the military.
“Hey, just think about it: Pronoun? In our military?” he joked at a campaign event on Tuesday. “How do you identify? In our military? These are war times. What happened to push-ups? Sit-ups?”
“Because I can tell you right now, China, Iran, and Russia are not talking about pronouns,” Walker said, referring to three countries with poor records on human rights, especially when it comes to LGBTQ people.
“They got us believing we can bring wokeness into our military,” Walker continued. “We should never bring wokeness into our military.”
Then Walker suggested that “the people on the left” are going to “take your kids” to Hell.
“You’ve gotten a little bit too smart,” he said. “You don’t fall for it. You don’t let them take you in that elevator [to Hell]. So they’re going to take your kids now. They’re going to take your kids down now.”
“But they want to tell the white kids, ‘You’re an oppressor.’ They want to tell the Black kids, ‘You’re a victim.’ No. All of them are victorious.”
Walker has never served in the military, despite his recent claims to the contrary.
In September, he told Rolling Out: “I’ve been very fortunate in the business world. I’ve been very fortunate in my military, uh, career – that I was doing a lot of things in the military.”
CNN said that he may have been referring to how he worked as a paid spokesperson for a business that runs mental health programs for veterans. That is not the same as having a military career or being “in the military.”
This isn’t the first time that Walker has attacked transgender people as part of his Senate bid. In September, he said that his opponent, Sen. Rev. Raphael Warnock (D-GA), “voted to put men in women’s sports,” which also isn’t true.
Warnock didn’t vote in favor of any measure concerning gender and sports. Rather he voted against a last-minute amendment to cut funding to school districts that allow transgender girls to participate in school sports that Sen. Tommy Tuberville (R-AL) tried to insert into the 2021 COVID relief bill.
Moreover, no schools are allowing grown, cisgender men – much less professional athletes like Walker – to compete in school sports on girls’ teams. Herschel Walker is not a transgender schoolgirl and Warnock’s vote didn’t allow him to participate in high school girls’ volleyball.
The Supreme Court has agreed to hear 303 Creative LLC v. Elenis, a case that could determine the future of LGBTQ rights nationwide.
The case involves Lorie Smith, a Christian woman in Colorado who makes wedding announcement websites. Smith wanted to post a message on her professional website stating that she wouldn’t make websites for same-sex marriages because it would be against her faith.
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When she found out that such a notice would violate Colorado’s anti-discrimination laws, she preemptively sued her state’s government, saying that the laws violated her First Amendment right to free speech. Her lawsuit sought to block enforcement of the law.
A district court ruled against Smith in 2019 saying that she lacked legal standing to oppose the law because the state hadn’t actually investigated her, and so she hadn’t been harmed by it – factors usually required in order for a person to claim legal standing to oppose a law.
She appealed to the 10th Circuit Court of Appeals, and it also ruled against her in a 2-1 ruling, stating that such laws are “essential” to maintaining “democratic ideals.”
Smith’s case sounds very similar to the 2018 Supreme Court case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a cake shop owner who refused to make a cake for a same-sex marriage because it violated his rights to free speech and religious freedom. Both Smith and the cake shop owner sued over the same law and both are legally represented by Alliance Defending Freedom, a Christian and anti-LGBTQ legal group. But Smith’s case differs in two key ways.
First, no same-sex couples actually asked Smith to design their website. So, the Supreme Court could agree with the district court’s decision that she lacks legal standing to challenge the law.
Second, the Supreme Court only agreed to hear Smith’s free speech argument. That means the court’s final ruling won’t necessarily decide whether it’s legal for people to discriminate against LGBTQ people on religious grounds.
Rather, the central question in Smith’s case — according to her supporters — is whether states can use public accommodation and non-discrimination laws to compel business owners to create speech that they personally disagree with, such as a website that promotes a same-sex marriage when its creator would never promote such an event otherwise.
However, LGBTQ advocates say that the effects of this case will go far beyond free-speech, and could hollow out LGBTQ protections by essentially allowing any employee to deny service to LGBTQ people or those whose identities they disagree with.
Some amicus briefs filed to the court said that its nine justices should decide whether the First Amendment applies to goods and services that are uniquely expressive forms of speech, like creative works.
However, it might be difficult for the court to decide which works are “uniquely expressive” arts. After all, some might argue that medicine, teaching, or serving are all “arts,” potentially leaving the door open for medical providers, educators, and customer service workers to all discriminate against LGBTQ people.
Jennifer Pizer, acting chief legal officer of Lambda Legal, told The Los Angeles Blade, “This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person — if that were to be accepted, that would be a profound change in the law.”
“And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you,” she added.
“It’s not too much to say an immeasurably huge amount is at stake,” Pizer said.
In its Masterpiece Cakeshop decision, the court ruled narrowly in favor of the cakeshop, saying that it hadn’t gotten a fair and impartial hearing in lower decisions and dodging the larger question about whether it should be legal to discriminate based on speech or religious grounds.
Considering the Supreme Court’s current 6-to-3 conservative majority, and its willingness last year to overturn the 40-year old right to an abortion, the court could declare a right to discriminate, effectively setting the fight for LGBTQ rights back several decades and ushering in a new generation of people willing to deny services to anyone they find morally objectionable.
A conservative judge in Texas has issued a ruling against a federal guidance ensuring workplace non-discrimination protections for transgender, non-binary, and gender non-conforming employees.
In an October 1 ruling, Matthew Kacsmaryk, a judge in the U.S. District Court for the Northern District of Texas, declared that, in June 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance that incorrectly interpreted the June 2020 Supreme Court ruling Bostock v. Clayton County.
The 2020 Supreme Court decision found that discrimination against gay and transgender employees is a form of sex discrimination forbidden by Title VII of the 1964 Civil Rights Act.
One year later, the EEOC issued a guidance stating that the ruling required workplaces with more than 15 employees to allow all transgender, non-binary, and gender non-conforming workers to use the pronouns, dress codes, facilities, and healthcare practices matching their gender identities.
In response, the state of Texas sued the EEOC, and Judge Kacsmaryk just ruled in the state’s favor. He ruled that although the 2020 Supreme Court decision declared that employers can’t discriminate against workers for their sexuality or gender identity, it doesn’t protect an employee’s “correlated conduct.”
As such, Kacsmaryk declared the EEOC’s guidance unlawful and said that Texas doesn’t have to follow it. However, the matter is far from settled.
That’s because 20 Republican-led states have also sued the EEOC over the guidance, alleging that the federal agency violated the Administrative Procedure Act by not following the required process for making new rules and also the Constitution’s 10th Amendment by trampling on states’ authority over privacy expectations in workplaces.
Kacsmaryk’s ruling isn’t entirely surprising considering that he once served as the deputy general counsel for the First Liberty Institute (FLI), a legal organization that generally represents conservative Christians, attacks the separation of church and state, and opposes LGBTQ rights.
“Five justices of the Supreme Court found an unwritten ‘fundamental right’ to same-sex marriage hiding in the due process clause of the Fourteenth Amendment — a secret knowledge so cleverly concealed in the nineteenth-century amendment that it took almost 150 years to find,” he wrote.