Tue, 18 Oct 2016 11:30 -0400One of the most significant threats to the LGBT community, women, and religious liberty, we have seen in Congress in years.
This piece originally ran in The Hill.
One of the biggest and most consequential bills on the congressional agenda for the lame duck will be final consideration of the National Defense Authorization Act (NDAA), the annual defense spending bill. An anti-LGBT provision, which in reality is a poison pill, included in the House version of the defense bill is creating complications in reaching final agreement on the legislation. If it is not removed from the final version of the bill, members should oppose the legislation and take a stand for LGBT rights and equality.
Fri, 02 Sep 2016 11:15 -0400The last few weeks have once again demonstrated the need for Congress to pass the Do No Harm Act. Next week, Congress will be back in session in our nation’s capital. With the election right around the corner, we can expect to see a frenzy of legislative activity. The past several weeks have served as a reminder for why reforming the Religious Freedom Restoration Act of 1993 (RFRA) should be on the agenda of every Member of Congress who supports LGBT equality. In 2013, Amiee Stephens gave her employer — R.G. & G.R. Harris Funeral Homes in Detroit — a letter explaining that she is a woman and would transition to presenting full-time as a woman. The letter explained that Amiee would soon start to dress in appropriate business attire at work, consistent with her female gender identity. Two weeks later, the funeral home — which had employed Amiee since 2007 — fired her, saying that her gender transition was “unacceptable.” In 2014, the U.S. Equal Employment Opportunity Commission filed a lawsuit on Amiee’s behalf, alleging that her former employer’s actions resulted in sex discrimination in violation of federal law. The ACLU filed a friend-of-the-court brief in support of the EEOC’s lawsuit. Unfortunately, on August 18 of this year, a federal judge held that the RFRA entitled the funeral home to fire Amiee. Invoking the Supreme Court’s deeply troubling decision in Hobby Lobby, the court reasoned that RFRA required the EEOC to accommodate the funeral home owner’s discriminatory religious beliefs by requesting that the owner adopt a gender-neutral dress code instead of holding the funeral home accountable for its unlawful discrimination. By allowing the funeral home to completely escape liability for its actions, the court’s decision gives employers a dangerous new religious exercise argument to justify discrimination against transgender people. Last week, emboldened anti-trans forces once again invoked RFRA, this time in a lawsuit seeking to discriminate against trans people by denying them health care. On August 23, Texas and four other states — along with the Franciscan Alliance, a Catholic hospital system — filed a lawsuit challenging regulations from the U.S. Department of Health and Human Services that, in part, prohibit discrimination against transgender people in health care. The rule ensures that trans people can access medically necessary treatment and procedures, have those procedures covered by insurance, and be respected for who they are in medical facilities. Arguing that these protections violate RFRA, the states and organizations who filed the lawsuit object to providing services (or even referrals) for transition-related care or providing insurance that covers such care. Those opposed to trans rights specifically — and LGBT equality more broadly (not to mention reproductive freedom) — now see in RFRA a way to undermine and attack laws and regulations that prohibit discrimination. While this was not the intention of those who supported RFRA’s passage in 1993, it is what the law is too often used for today, thanks in large part to the Supreme Court’s Hobby Lobby ruling. Representatives Joe Kennedy (D-Mass.) and Bobby Scott (D-Va.) have introduced legislation in Congress — the Do No Harm Act — that would place a much needed limitation on RFRA to ensure that it can only be used as a shield to protect religious exercise (something the ACLU strongly supports) and not as a sword to harm others. The Do No Harm Act would prevent RFRA from being invoked to justify discrimination, denial of health care, or other harms. We need to continue to build support for this legislation. As the struggle to win full equality for LGBT people under the law continues, we cannot allow RFRA to continue to be used as sword for discrimination. [...]
Mon, 01 Aug 2016 10:15 -0400Today marks a pivotal fight in the restroom wars. Today marks a pivotal fight in the restroom wars. This morning, we will ask a federal judge to suspend North Carolina’s hateful anti-transgender law, known as HB2, which requires transgender people in all public buildings to use restrooms that accord with the gender on their birth certificate, regardless of their gender identity. Simply put, the law bars transgender people from participation in public life. For our client, Joaquín Carcaño, a project coordinator at the University of North Carolina at Chapel Hill, HB2 means he can’t use the men’s room at work. As a man, Joaquin can’t use the women’s room without causing confusion and consternation among the women there, as well as undermining his very identity. But because he is transgender and lives in North Carolina, HB2 requires that he use a restroom that matches his birth certificate – the female restroom. So, like many other transgender people, Joaquin avoids drinking liquids during the day so he doesn’t have to pee at work. Imagine trying to do that. Joaquín is one of several plaintiffs in Carcaño v. McCrory, the legal challenge to HB2 brought by the ACLU, the ACLU of North Carolina, and Lambda Legal. Today the judge hears argument on our motion for a preliminary injunction, and trial is set for November. The restroom debates are not just a battleground for the LGBT movement, they are an opportunity. For a long time, LGBT advocates avoided conversations about single-sex spaces. But we must engage America about restrooms if we’re going to make progress on protecting transgender people from discrimination. This is our chance to explain to the country who transgender people are, why restroom restrictions bar them from full participation in public life, and how no privacy or safety interests are violated in the process. That’s where Joaquín and his fellow plaintiffs come in – they can humanize this issue and help people get the problem. The ACLU is fighting the restroom wars on several fronts. Earlier this year, we helped defeat over 40 anti-trans restroom bills in state legislatures. We are working to educate the country about the issue. And we are suing, not just in Carcaño, but in these other cases as well: GG v. Gloucester County School Board – The ACLU represents Gavin Grimm, who is about to start his senior year in high school in Gloucester, Virginia. The school board barred him from using the men’s room, but a federal appeals court ruled in April that the exclusion violates federal sex discrimination law. The school board is asking the Supreme Court to review the case, and we’ll find out this fall whether it does. Students and Parents for Privacy v. U.S. Dep’t of Education – The ACLU represents Student A, a girl attending high school in suburban Chicago. Because she is transgender, the school refused to let her use the girls’ locker room with the rest of her sports team. In response to our complaint, the U.S. Department of Education ordered that Student A have access to the locker room, but then a group of students and parents have sued the district, arguing that their privacy rights have been violated. Jesse Vroegh v. State of Iowa – Jesse Vroegh has worked as a nurse at an Iowa prison for seven years. The prison has refused to let him use the men’s restroom or to cover his medically necessary transition-related health care, so Jesse, with help from the ACLU, has filed a complaint of gender identity discrimination before the Iowa Civil Rights Commission. Texas v. United States – Officials in 11 states, led by Texas, have sued the U.S. Department of Education over its guidance that school districts should allow transgender students to use single-sex facilities consistent with their gender identity. The ACLU and several other LGBT advocacy groups have filed a friend-of-the-court brief in support of the Department of Education. This conversation is just startin[...]
Fri, 15 Jul 2016 14:30 -0400Congress should abandon its discrimination agenda. Congress leaves town for a seven-week recess today. They leave behind plenty of unfinished business, like legislation to address the looming threat of the Zika virus in the U.S. and around the globe. But with so many pressing issues left unresolved, Congress chose to spend its last few days in Washington doubling down on proposals that discriminate against women and LGBT people under the guise of religious liberty. On Tuesday, one month to the day after 49 people were murdered at a gay nightclub in Orlando — in the worst attack on the LGBT community in our nation’s history — the House chose to mark this tragic anniversary in the worst way possible. They did so not by remembering the victims or introducing legislation to protect LGBT people from violence and discrimination, but by holding a hearing on a bill that would permit unprecedented taxpayer-funded discrimination against LGBT people, single mothers and unmarried couples. The so-called “First Amendment Defense Act” is designed to allow anyone — including for-profit businesses – to discriminate based on a religious belief or “moral conviction” against same-sex marriage, or to sexual relationships outside of a heterosexual marriage. This means that the legislation could allow certain social service programs that receive federal funding, including homeless shelters, to turn away anyone who has a sexual relationship outside of a marriage, including single mothers and unmarried couples. It could also allow privately owned businesses to discriminate by refusing to let a gay or lesbian employee care for their sick spouse, in violation of federal family and medical leave laws. Jim Obergefell, a former ACLU client and the lead plaintiff in the Supreme Court’s historic marriage equality ruling, testified against the discriminatory proposal at the hearing. You can read Obergefell’s powerful testimony taking a stand against FADA here. The very next day, the House passed — without so much as a committee hearing to consider it — the Conscience Protection Act. Like FADA, the bill purports to protect religious liberty but in fact empowers discrimination — in this case against women seeking reproductive health care. The bill would dangerously expand the Weldon Amendment, a provision attached to spending bills over the last decade which bars critical federal health and education dollars from any state, local, or federal government body that doesn't allow a health care entity to refuse to provide, pay for, cover, or refer for an abortion. The Weldon Amendment is a barrier to women’s reproductive health that needs to be eliminated — but instead, the House just voted to expand and make it permanent. The result? The Conscience Protection Act would give employers, health insurance companies, and others even more ways to stand between a woman and the health care she needs. A woman’s boss could deny her comprehensive health insurance that covers abortion services and allows her to make her own personal medical decisions without interference. A Catholic hospital governed by religious directives could refuse to “facilitate” or “make arrangements for” an abortion needed to preserve a woman’s health — something that unfortunately already happens all too often. The problem would only become worse if this bill were to become law. In short, the bill would further undermine women’s access to constitutionally-protected health care. Religious liberty is a core American value. It guarantees everyone the freedom to believe what they choose and to act on those beliefs, but it does not allow anyone to discriminate against or harm others in the name of religion. Unfortunately, as the House’s actions this week make clear, not everyone in Congress has gotten the message. [...]
Tue, 12 Jul 2016 11:45 -0400Let’s focus our efforts on protecting LGBT people, women, and others from harm. Obergefell, a former ACLU client, was the lead plaintiff in the Supreme Court’s historic marriage equality ruling. June 2015 was a joyous time for me and LGBT people across the country. The Supreme Court decision extending the freedom to marry to all loving couples was a landmark achievement in the long and ongoing struggle for equality under the law. I was deeply honored to have played a role in helping same-sex couples win this victory. June 2016, just one month ago, was a time of heartbreak for millions around the world, including myself. The murder of 49 people and wounding of 53 others at a gay nightclub in Orlando, Florida, was a devastating tragedy and the worst attack on the LGBT community in our nation’s history. This morning, exactly one month after this horrifying event, I appeared before Congress to discuss a bill, the “First Amendment Defense Act,” that would authorize sweeping, taxpayer-funded discrimination against LGBT people. It is deeply hurtful to a still-grieving LGBT community. This hits particularly close to home for me. My partner and eventual husband of almost 21 years, John Arthur, passed away on October 22, 2013, after a years-long battle with amyotrophic lateral sclerosis (known as ALS). I was lucky to be able to be with John, caring for him, at every difficult stage of his illness. FADA, however, would allow for any privately owned business to refuse a gay or lesbian employee like myself the ability to take time off to care for a sick spouse, even though this would violate federal family and medical leave laws.What could ever justify such a discriminatory and harmful action? John and I had to go to Maryland to get married because our home state of Ohio did not allow same-sex couples to marry. We were only able to do so aboard a medically equipped plane. John’s condition was so fragile that we couldn’t even leave the plane — we had to be married on the airport tarmac. When we returned to Ohio, we learned that I would not be listed on John’s death certificate as his surviving spouse when he died, because the state refused to recognize our marriage for any purpose. We decided to fight back in court against this injustice.Together with partners like the ACLU, we began a legal journey that, sadly, John did not get to see to conclusion. It culminated in a momentous victory for loving and committed couples across the country. I know John would have been proud to have played a role in this historic legal victory for equality. Even though same-sex couples now have the ability to obtain a civil marriage license in any state in the country, our work to achieve full equality is far from over. It is critically important that our constitutional rights are not undermined by proposals, like FADA, that would subject loving couples, like me and John, and others to discrimination. Proponents of FADA argue that it is necessary to protect churches, clergy, and others who oppose marriage equality for religious reasons. But the First Amendment is already clear on this point. Since the founding of this country, no church or member of the clergy has been forced to marry any couple if doing so would violate their religious teachings. That has not changed since same-sex couples won the freedom to marry. Religious liberty is a core American value. Everyone in this country is free to believe (or not believe) and to live out their faith as they see fit, provided that they do not do so in a way that harms other people. As I see it, this legislation turns this value on its head by permitting discrimination and harm under the guise of religious liberty. Given the way that this legislation is drafted, its harms are not limited to LGBT people or same-sex couples. Indeed, women, particularly single mothers, and unmarried couples could also find themselves on the receiving end of discriminatory treatment if this proposa[...]
Tue, 28 Jun 2016 17:30 -0400A case currently under review by the Second Circuit could set the record straight on LGBT protections at work. When Matthew Christiansen took a job at the marketing communications firm DDB, he had no idea he’d walk into a trifecta of discrimination, stereotyping, and retaliation at the hands of his employer because he is a gay man. As soon as Christiansen was hired, his supervisor “immediately commenced a harassment campaign against him by repeatedly accusing him of having AIDS just because he was gay.” His supervisor also drew graphic pictures mocking Christiansen and the gay community, sharing them at the office and on social media. Believe it or not, this kind of discrimination isn’t fully considered illegal by the courts. That is why more than 100 members of Congress on Tuesday urged a federal appeals court in New York City to hold that discrimination based on an individual’s sexual orientation is a violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits sex discrimination in employment and is the crux of this case — Christiansen v. Omnicom Group Inc. — before the Second Circuit. A prior case in the Second Circuit incorrectly held that Title VII did not protect lesbians, gay men, and bisexual people against discrimination. As evidence, the court pointed to a bill in Congress that would have provided explicit protection in federal law against employment discrimination based on sexual orientation. In their friend-of-the-court brief, the members of Congress — all of whom are supporters of the Equality Act and champions of LGBT rights, including House Democratic Leader Nancy Pelosi — powerfully and persuasively argue that the court’s previous interpretation of congressional intent was erroneous. The goal with the Christiansen case is to provide the Second Circuit with an opportunity to make clear that anti-gay discrimination is unlawful under federal law. The recognition that anti-LGBT discrimination is unlawful has gained significant legal traction in recent years. But this fight in the courts and in Congress raises a good question: Why are so many members of Congress working diligently to pass explicit, comprehensive nondiscrimination protections for LGBT people while also urging a court to say that this type of discrimination is already prohibited under federal law? Because it is important to ensure that courts are correctly interpreting federal civil rights laws in a way that robustly protects the dignity and rights of LGBT people across the country. This is especially relevant now that we are seeing proposal after proposal in Congress and in state legislatures to discriminate against LGBT people. The effort to pass these protections remains critically important in order to achieve equality, and one that the ACLU strongly supports at the local, state, and federal level. This work, far from being in conflict, is complementary and essential to securing equal protection under the law for LGBT people. The ACLU is tremendously grateful to Sens. Jeff Merkley (D-Ore.) and Tammy Baldwin (D-Wis.), Rep. David Cicilline (D-R.I.), and all the members of Congress for joining this brief and urging the Second Circuit to recognize the reality that discrimination against lesbians, gay men, and bisexual people is unlawful. We also thank the law firm Cravath, Swaine & Moore, which took on this brief pro bono. The ACLU, together with the NYCLU, filed its own friend-of-the-court brief on behalf of 16 women’s organizations arguing that discrimination because of sex means much more than simply getting rid of “men only” signs on job postings at work and includes discrimination against lesbian, gay, and bisexual workers. We will continue to stand with legislators working to get explicit nondiscrimination protections for LGBT people enacted into law so that there are clear consequences for treating LGBT employees the way Matthew Christiansen was.[...]
Fri, 20 May 2016 15:30 -0400When fear and hatred reign, antitrans discrimination has a way of becoming indiscriminate. Like any good attorney, I enjoy winning and being right. However, as a transgender attorney watching the fallout from antitransgender legislation across the country spin out of control, this is one time I wanted to be wrong. I wanted to be wrong about the prediction that antitrans legislation and rhetoric would spur further discrimination and hostility towards all people, not just trans folks. Sadly, this hatred of trans people has had the exact result we anticipated: increased harassment of all people in bathrooms as well as continued pernicious violence against trans women. Reports are rolling in from across the country of nontransgender women being policed and harassed in bathrooms. A 22-year-old Connecticut cisgender woman was harassed in a Wal-Mart bathroom this week because someone thought she was transgender. In Texas, where Lt. Gov. Dan Patrick has been unapologetic in his transphobia, a Texas woman trying to use a women’s restroom in a hospital was accosted by a man twice her size trying to make sure she was “going in the right place,” all because she was wearing a baseball hat with short hair. And, of course, the violence and harassment of trans women has not stopped or decreased. Earlier this month, trans woman Reese Walker was murdered in Wichita, Kansas, a state that proposed legislation awarding students a $2,500 bounty if they reported trans people in the restroom. In Florida this last week, beloved trans woman Mercedes Successful was found murdered in a huge blow to the LGBT community in Haines City, Florida.In Washington, D.C., this week, where transgender people are protected from discrimination under city law, a trans woman was assaulted by a security guard at a Giant grocery store. “You guys cannot keep coming in here and using our women’s restroom,” the guard told her as she pushed her out of the store. “They did not pass the law yet.” Also, in New York City, trans woman Pearl Love was verbally and physically attacked by a nontranswoman on a subway train in a video that went viral and prompted a response from presidential candidate Hilary Clinton. It seems like things are going to get quite worse for trans people before they get better. Just last night, Oklahoma lawmakers introduced SB1619, which requires schools to provide students a “religious exemption” if they are offended by trans students in school bathrooms. The real kicker to this bill is that a reasonable accommodation for transphobic students is not a single-user bathroom — like trans students have been forced to use — but rather a multi-user “trans-free” restroom, again demonstrating that at the heart of these bills is a devaluation of trans youth’s very existence. Despite the fact that actual problems face many state legislatures, states like Georgia and Tennessee are going out of their way to arrange special sessions to discuss barring trans people from bathrooms in schools and public places. And in Washington State, a hateful ballot initiative is gathering steam that, among other things, would nullify state laws protecting trans people from discrimination and allow students to sue schools for up to $2,500 if they encounter a trans person in a bathroom. If the whirlwind of 2016 has taught us anything, it’s that transphobia hurts all of us. It makes our communities and schools less safe and more heavily policed; it continues to assure the public that violence and exclusion of trans people from public life is the status quo; and it prevents all students from focusing on their education — an education that should arguably include values such as acceptance and compassion. We must continue to fight back against these hateful messages and realize supporting trans people means supporting everyone’s right to dignity and justice.[...]
Thu, 19 May 2016 10:15 -0400The Do No Harm Act would amend RFRA to ensure federal law protects religious liberty without harming others.
This piece originally ran at Religion News Service.
When Congress passed the Religious Freedom Restoration Act in 1993, the American Civil Liberties Union supported it because we believed it would provide important protections for people to practice their faith.
Having fought for religious liberty for decades, we were troubled that the interpretation of the Constitution at the time did not sufficiently protect minority faiths. Over the years, we have used RFRA to fight for religious rights, most recently on behalf of a Sikh student, Iknoor Singh, who was barred from entering the Army Reserve Officers’ Training Corps unless he cut his hair, shaved his beard and removed his turban.
But today RFRA is being used as a vehicle for institutions and individuals to argue that their faith justifies myriad harms — to equality, to dignity, to health and to core American values. For example:
Continue reading here.
Wed, 18 May 2016 17:45 -0400Passing the Do No Harm Act would restore the Religious Freedom Restoration Act to its original intent.
On June 25, 1941, President Franklin D. Roosevelt signed Executive Order 8802, prohibiting discrimination based on race, creed, color, and national origin in the national defense industry. For 75 years since, there has been a bipartisan tradition of prohibiting discrimination with taxpayer dollars throughout federal contracting.
Some in Congress are now fighting to put an end to it.
Last month, in the wee morning hours, Rep. Steve Russell (R-Okla.) offered an amendment to the defense authorization bill that would require every federal agency to allow religiously affiliated contractors and grantees — including large institutions like hospitals and universities — to discriminate in hiring with taxpayer funds. The Russell amendment could gut existing protections that prohibit discrimination against LGBT and women workers, including a historic executive order signed by President Obama in 2014 that prohibits businesses that contract with the federal government from discriminating on the basis of sexual orientation and gender identity.
The Russell amendment could permit religiously affiliated federal contractors and grantees to claim a right to (among other things):
It is for this reason that Reps. Charlie Dent (R-Pa.) and Adam Smith (D-Wash.) offered a bipartisan amendment to strip this discriminatory provision from the defense bill. However, the House Rules Committee blocked the full House from being able to vote on the amendment. Because of this, the provision is almost certain to be included in the bill that is passed by the House this week. This fight, however, is far from over.
In happier news, Reps. Bobby Scott (D-Va.) and Joe Kennedy III (D-Mass.) just introduced legislation — the Do No Harm Act — to amend the Religious Freedom Restoration Act to ensure that it cannot be used to discriminate against or otherwise harm others. The legislation identifies specific circumstances, such as civil rights laws and laws that ensure access to healthcare, where RFRA cannot be invoked to trump the rights of others.
The Do No Harm Act is needed because RFRA is now being used far too often as a tool for institutions and individuals to harm others and undermine core American values. Enacting the Do No Harm Act would restore federal RFRA to its original intent of protecting religious exercise and provide a model for states looking to expand protections for religious freedom without allowing harm to others.
Fri, 13 May 2016 20:45 -0400The federal government just took dramatic action to protect the rights of transgender Americans. Thank President Obama for protecting transgender rights Decades from now, I’m going to look back at the second week of May 2016 as a historic turning point for transgender equality. I have little doubt that it will be remembered as the week transgender Americans had their rights recognized and that our crawl toward equality found surer footing. This morning, the federal government finally released guidelines for public schools on how Title IX protects transgender students. It’s actually pretty simple: Title IX is a federal law that prohibits sex discrimination in education. When schools force transgender students into the wrong bathroom or tell us we have to use a separate bathroom that is sex discrimination plain and simple. But for some reason, state governors and lawmakers just don’t get it — or don’t care.The new guidelines issued by the Departments of Justice and Education remind them of what they should already know: discriminating against transgender students is against the law. These guidelines should send a clear message to lawmakers who ignore the rights of transgender students like me and single us out for harmful discrimination at school, the place where we should all feel most comfortable.Transgender Americans scored another victory today when the federal government announced that medical care for transgender people, including care related to gender transition, cannot be denied under the Affordable Care Act. Transgender people no longer have to worry that we won’t get the healthcare we need simply because of who we are. The victory, however, didn’t just protect the transgender community. The new rule also protects women – cis and trans - and all LGBT patients who previously had no protection from the federal government against discrimination in health care. And last but certainly not least, the federal government announced they would challenge North Carolina’s harmful anti-transgender law in federal court. In a historic show of support for the transgender community, Attorney General Loretta Lynch said she will stand with us in our fight to stop Gov. Pat McCrory and the North Carolina Legislature’s attack on transgender people. North Carolina is on the wrong side of history, and the law should be repealed so that transgender North Carolinians can comfortably use the restroom they have always used without fearing they will be targeted for harassment or even arrest. Attorney General Lynch said it best: “What we must not do — what we must never do — is turn on our neighbors, our family members, and our fellow Americans, for something they cannot control, and deny what makes them human.” A lot has happened since I worked with the ACLU to convince South Dakota’s governor to veto what could have been the country’s first statewide, explicitly anti-transgender law. My home state made the right decision, but transgender students in states like North Carolina were not so lucky and needed the federal government’s protection. No matter where we live, all transgender students deserve to be treated just the same as our classmates. That’s why I am so happy the federal government is beginning to make that clear to public schools all across the country. After a long, painful fight, our lawmakers are finally starting to realize that it’s time to put the awful history of injustice against transgender people behind us. My generation will soon be the leaders of this country and they understand that equality is one of our most sacred values. While the struggle is far from over, I believe this week proves that we are entering a new era where transgender people are treated like human beings with our civil rights firmly in place.[...]