Tuesday Watercooler: Supreme Court divided on discrimination
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This morning’s discussion in the Supreme Court kinda scares me … a lot. The case, Christian Legal Society v. Martinez, is a fight over the right to discriminate, and, of course, money.
“Hastings College of Law, which is part of the University of California, has a general policy barring student groups that receive official recognition and university funding from discriminating,” the American Civil Liberties Union [2] explains. “The Christian Legal Society is a student club that requires its members to sign a Statement of Faith that, among other things, rejects homosexuality as inconsistent with Christian values. CLS is ineligible for official recognition and university funding at Hastings because of its membership requirement, although it is otherwise free to meet on campus.”
Essentially, no gays equals no money. That math seems simple, right?
Now, here’s the scary, though somewhat ironic, part: The right-leaning justices seem to think this is discrimination.
“It is so weird to require the campus Republican club to admit Democrats,” Justice Antonin Scalia said, The Republic reported [3]. “To require the Christian society to allow atheists not just to join, but to conduct Bible classes, that’s crazy.”
Let’s break this down: Essentially, it’s discrimination not to allow a group to discriminate. Um, WTF?
Thankfully Justices Ruth Bader Ginsberg and Sonia Sotomayor inserted some logic into the discussion citing what would happen if women and minorities were banned.
“What is wrong with the purpose of a school to say, ‘We don’t wish (to recognize) any group that discriminates?’ ” Sotomayor asked.
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While the current justices battle it out over discrimination, a separate battle looms for potential Supreme Court nominee Elena Kagan.
The big question seems to be about her sexuality. Is she gay? Well, around the Harvard campus, that appears to be an open secret. It’s not hard to find sites calling her a lesbian [5].
But whether she is gay or straight should not be the issue. If she is gay, she is making a huge effort to keep it quiet – an Internet finds her personal life is strictly under wraps. What is at issue is her stance. Her lack of actual judicial experience leaves little written record of her opinions.
If she is in fact nominated, as can be inferred from the over-the-top “She’s not gay” denials emanating from the White House, much will be made of her anti-Don’t Ask, Don’t Tell stance. Shortly after taking over as dean at Harvard, Kagan shot an e-mail to students over having military recruiters on campus.
“This action causes me deep distress. I abhor the military’s discriminatory recruitment policy,” Kagan wrote. She called DADT “a profound wrong — a moral injustice of the first order.”
She is standing up for the LGBT community and has done so in the past. If she wants to hide in the closet, fine by me. But if that closet starts impeding a potential justice’s judgment, I’ll be the first in line to out her.
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Speaking of standing up for rights, New York City’s Lesbian, Gay, Bisexual and Transgender Community Center refuses to be intimidated after staff discovered a torched rainbow flag last wee [7]k.
“The act of hate demonstrated outside the Lesbian, Gay, Bisexual and Transgender Community Center in the Village is unacceptable,” Christin Quinn said in a statement. “I was angered and deeply disturbed when I heard someone would go to such great lengths to burn a rainbow flag and pin it to the outside of the building.”
In response, the Center plans to unfurl a new 20-foot flag on Wednesday that will drape the building.
“We invite our straight allies to stand with us to demonstrate that LGBT safety and rights are not just an issue for LGBT people. Our city is strong and we need to come together to show that we cannot be intimidated,” the Center said in a message posted on their website.
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And in another example of standing up for rainbow rights, the Tennessee teen who was reprimanded [9] for wearing an “I (heart) Lady Gay Gay” T-shirt, with the help of the ACLU, convinced school officials the T-shirt was acceptable.
The ACLU told The Chattanoogan [10] they have assurances from the school it will not censor gay fashion.
“Students not only have a First Amendment right to be out at school, but the right to an education free from discrimination and harassment,” Tricia Herzfeld, ACLU of Tennessee staff attorney, told the newspaper. “We applaud the school for recognizing this and taking steps to ensure that they are providing a safe and equal learning environment for all students.”
I (heart) teens who stand up for fashion.
[1] http://www.365gay.com/wp-content/uploads/news-supreme-court-top.jpg
[2] http://www.aclu.org/lgbt-rights-religion-belief/christian-legal-society-v-martinez
[3] http://www.therepublic.com/view/story/RELIG-SCOTUS-STUDENTGROUP_2173652/RELIG-SCOTUS-STUDENTGROUP_2173652/
[4] http://www.365gay.com/wp-content/uploads/news-kagan-gay-top.jpg
[5] http://www.epinions.com/review/educ-Law_Schools-All-Harvard_University_Law/content_219010666116
[6] http://www.365gay.com/wp-content/uploads/news-torched-flag-top.jpg
[7] http://www.gaycenter.org/torchedflag
[8] http://www.365gay.com/wp-content/uploads/news-gaga-tshirt-top.jpg
[9] http://www.wsmv.com/video/23072689/
[10] http://www.chattanoogan.com/articles/article_173769.asp
Hearing set in lesbian teen’s suit to force prom
(Jackson, Miss.) School officials in a rural Mississippi county told a lesbian student to get “guys” to take her and her girlfriend to a high school prom and warned the girls against slow dancing with each other because that could “push people’s buttons,” according to documents filed Tuesday in federal court.
The American Civil Liberties Union is suing the Itawamba County School District and some officials at Itawamba Agricultural High School on behalf of Constance McMillen, 18, who wanted to escort her girlfriend to the prom and wear a tuxedo. A hearing is scheduled for Monday to hear an ACLU motion that seeks to force the district to hold the April 2 prom it canceled after McMillen made her requests.
In the court documents, McMillen said Rick Mitchell, the assistant principal at the school, told her she could not attend the prom with her girlfriend but they could go with “guys.” Superintendent Teresa McNeece told the teen that the girls should attend the prom separately, had to wear dresses and couldn’t slow dance with each other because that could “push people’s buttons,” according to court documents.
The school district last week said it wouldn’t host the prom “due to the distractions to the educational process caused by recent events.” District officials said they hoped private citizens would sponsor a dance. The decision came on the same day the ACLU asked the district to act on McMillen’s prom requests.
McMillen said she approached school officials weeks ago about wanting to take her girlfriend to the prom.
“I want my prom experience to be the same as all of the other students, a night to remember with the person I’m dating,” McMillen said.
The district, located in northern Mississippi near the Alabama state line, prohibits same-sex dates at the prom. The ACLU has said that violates the rights of gay and lesbian students.
The school district had not responded to the ACLU filing by Tuesday afternoon.
Christine Sun, a senior counsel with the ACLU’s national gay rights project, said the organization is determined to put the prom back on the school calendar.
Fulton Mayor Paul Walker said he has heard that parents are making plans for a private dance but he didn’t know the details. It’s unclear if gay couples would be welcome at that event.
The ACLU has taken on similar cases in recent months.
In October, the ACLU sent a demand letter to the school district in Copiah County, Miss., after officials refused to let 17-year-old Ceara Sturgis be photographed in a tuxedo for the yearbook. The district stood by its decision and the ACLU said it is still considering litigation.
In November, officials at Tharptown High School in Franklin County, Ala., reversed an earlier decision to bar a lesbian from attending the prom with a female date. After the ACLU issued a demand letter, the decision was reversed, said Gary Smith, superintendent of Franklin County Schools.
“The ACLU told us we were infringing on her rights as a student. In view of that, we had to let her bring her,” Smith recently said.
ACLU files complaint over lesbian’s military dismissal
Two Rapid City, S.D., police officers are accused of playing a part in getting a staff sergeant from Ellsworth Air Force Base expelled from the military under Don’t Ask, Don’t Tell, KOTA reported.
In response, the American Civil Liberties Union of South Dakota filed a complaint, questioning the conduct of the …
Sign petition for Miss. lesbian student barred from prom
Change.org started an online petition Friday in support of a Mississippi teen who sought to go to prom with her girlfriend. School board members decided to cancel prom instead of allow the lesbian student to attend with a same-sex date. On Thursday, the American Civil Liberties union, on behalf of …
Lesbian teen sues to force school to hold prom
(Jackson, Miss.) A lesbian student who wanted to take her girlfriend to her senior prom is asking a federal judge to force her Mississippi school district to reinstate the dance it canceled.
The American Civil Liberties Union of Mississippi on Thursday filed a lawsuit in U.S. District Court in Oxford on …
Gay Rights Groups Seek to Intervene in Federal Challenge to Calif. Same-Sex Marriage Ban
Gay rights groups’ attempt to intervene in a federal challenge of California’s Proposition 8 has created a rift with the high-powered attorneys heading the case, turning erstwhile allies into head-butting competitors.
Both sides have diverging visions of legal strategy. The gay groups are pushing a cautious, narrow approach based on the circumstances of Prop 8, while Theodore Olson, David Boies and their backers are seeking a decisive victory for all gay couples under the U.S. Constitution.
The civil rights groups — the National Center for Lesbian Rights, Lambda Legal Defense and Education Fund and the American Civil Liberties Union — are also worried that the Olson/Boies team is underestimating the importance of U.S. District Chief Judge Vaughn Walker’s insistence on a fully developed factual record. They moved this month to intervene (pdf) so they can present evidence of historic discrimination against gays and lesbians and answer Walker’s questions, such as whether sexual orientation can be changed and whether same-sex marriages destabilize opposite-sex marriages.
See Gay Rights Groups Seek to Intervene in Federal Challenge to Calif …
Above the Law
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DOJ Will Not Appeal Veteran’s VictoryIn Transgender Discrimination Case
Signals Commitment By Obama Administration To Protect Transgender Workers From Discrimination
WASHINGTON, DC – The U.S. Department of Justice decided not to appeal a federal court ruling awarding transgender veteran Diane Schroer the maximum compensation for the discrimination she suffered after being refused a job with the Library of Congress. The deadline for seeking an appeal was June 30. The American Civil Liberties Union has represented Schroer in her case.
The Obama administration’s decision whether to appeal the final ruling in the case has been closely watched in part because the Bush administration defended the case so vigorously, arguing that transgender Americans are not protected by any existing federal laws. The decision not to appeal the verdict is consistent with the Obama administration’s campaign promises to protect transgender workers against discrimination and his administration’s recent order taking steps to bar gender identity discrimination in federal employment.
“I am grateful that the court took the time to examine the case in detail and come to a fair and unbiased decision. In that same light, I am gratified that the current administration saw this for what it was, a case of sex discrimination focused against transgender people, and recognized that it must end in this country,” said Schroer, an Army Special Forces veteran with 25 years service. “The important signal that the administration’s decision sends to all LGBT individuals gives me renewed hope and restores some of my shaken faith in what our country stands for.”
On April 29, 2009, a federal court awarded Schroer maximum damages of $491,190 for back pay, other financial losses and emotional pain and suffering after finding the Library illegally discriminated against Schroer because of her sex. At trial, Schroer testified that she had applied for a position with the Library of Congress as the senior terrorism research analyst and was offered the job. Prior to starting work, she took her future boss to lunch to explain that she was in the process of transitioning and wished to start work presenting as female. The following day, Schroer received a call from her future boss rescinding the offer, telling her that she wasn’t a “good fit” for the Library of Congress.
“We are pleased and relieved that the Obama administration has decided to bring an end not only to years of hard-fought litigation but also to a painful chapter of Ms. Schroer’s extraordinary life,” said Sharon McGowan, a staff attorney with the ACLU LGBT Project. “The administration’s decision not to challenge this important civil rights ruling is a welcome sign that it intends to live up to its commitment to help end transgender discrimination in the workplace.”
The ACLU filed the lawsuit against the Library of Congress on June 2, 2005, charging that the library unlawfully refused to hire Schroer in violation of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace. In an earlier ruling in this case, the court issued a groundbreaking opinion that discriminating against someone who transitions from living as one gender to another is sex discrimination under federal law. In reaching this decision, the court compared the discrimination faced by Schroer to religious-based discrimination, saying, “Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testified that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute.” The court also ruled that the library was guilty of sex stereotyping against Schroer because of its view that she failed to live up to traditional notions of what is male or female.
“This case put employers on notice that discrimination against transgender individuals is like any other form of discrimination – counterproductive and against our principles as a nation,” added Schroer. “But this case alone won’t end the rampant discrimination that transgender people face throughout the country. That’s why we need Congress to pass the Employment Non-Discrimination Act that was introduced last week.”
In addition to McGowan, the legal team consisted of Ken Choe, Senior Staff Attorney for the ACLU LGBT Project, James Esseks, Litigation Director for the ACLU LGBT Project and Arthur Spitzer, Legal Director of the ACLU of the Nation’s Capital.
A copy of the decision, the complaint, a video, a bio and photographs of Diane Schroer are available at: http://www.aclu.org/lgbt/transgender/24969res20050602.html
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Fresno Hospital Bars Lesbian From Visiting Partner And Giving Advice About Her Treatment, ACLU and NCLR Urge Hospital To Adopt Policies Respecting Same-Sex Relationships
“We just couldn’t believe this was happening to us. This was the nightmare that we hoped we’d never have to live through,” said Teresa Rowe, who grew up in Clovis, California, but now lives in the Bay Area with her partner of four years, Kristin Orbin. “Unfortunately, because Kristin suffers from epilepsy, trips to the hospital are pretty common for us, which is why we filled out the legal paper work to make sure I would be able to be with her and make emergency decisions about her care. But the hospital wouldn’t let me see Kristen and ignored my advice about her treatment. They ended up giving her the exact medication I repeatedly asked them not to give her.”
On May 29, 2009, Rowe and Orbin attended the “Meet in the Middle” rally in support of marriage for same-sex couples in Fresno. After the couple completed a 14-mile march in 90 degree heat, Orbin, who suffers from epilepsy, collapsed in a seizure. The couple experienced hostility from the ambulance driver, but Rowe was ultimately allowed to accompany Orbin to Community Regional Medical Center in Fresno. However, when the couple got the hospital, the driver would not allow Rowe to accompany Orbin into the emergency room even though Orbin had been in and out of consciousness, and Rowe was familiar with her medical history and care.
Rowe repeatedly asked hospital employees to allow her to see Orbin and talk to a physician about her care but was refused. She volunteered to have Orbin’s legal paperwork naming Rowe as her health care agent faxed to the hospital but was told that it wouldn’t do any good. When she asked that she at least be allowed to pass along the message that Orbin not be given the drug Ativan, she was told the message would be conveyed. If the message was given to those treating Orbin, it was ignored because Orbin was given the drug, which she didn’t need and which causes her unnecessary pain. Meanwhile, when she was awake, Orbin was also asking to be allowed to see Rowe. Although they were both told that no visitors were allowed in the area where Orbin was being treated, other patients were receiving guests. After being separated for several hours, Orbin finally saw her doctor. She complained to him, and Rowe was eventually allowed to be with her.
“Until the California Supreme Court upheld Prop 8, Kristen and Teresa were planning to get married. In this climate, hospitals must be especially diligent to protect same-sex couples from discrimination,” said Elizabeth Gill, a staff attorney with the ACLU of Northern California. “As these events so painfully demonstrate, no matter what hoops same-sex couples jump through to protect their relationships, these kinds of horrible things will continue to happen as long as couples are denied the recognition and respect that only comes with marriage.”
The letter sent by the ACLU and NCLR charges that it was a violation of state law for the hospital to discriminate against the couple based on their sexual orientation, as well as to refuse to recognize Rowe’s legal authority, which was authorized by Orbin’s advance health care directive. The letter also notes that hospitals must post and follow a patient’s bill of rights that bars discrimination based on sexual orientation and grants patients the ability to designate visitors of their choosing and to decide who is able to make emergency decision about their care. The letter urges Community Medical Centers immediately to affirm their commitment to inclusive and sensitive medical care for LGBT patients, and to take a number of steps to carry out that commitment.
“Discrimination in healthcare settings is still far too common for lesbian, gay, bisexual and transgender people,” said Jason Schneider, MD, President of the Gay and Lesbian Medical Association (GLMA). “No one is served when partners are barred from visitation and kept from participating in conversations about their loved one’s care. It’s bad for doctors who are kept from potentially life threatening information, it’s bad for partners who are left waiting hopelessly in the waiting rooms and it’s especially traumatic for patients who need the love and support that only their partners can provide to help them through health care emergencies.”
A copy of the letter, which gives the hospital until June 22nd to respond, is available at http://www.aclu.org/lgbt/discrim/39854res20090615.html.
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California School Apologizes For Illegally Banning Sixth Grader’s Presentation On Harvey Milk
RAMONA, CA – A California school has apologized to a sixth grader for illegally censoring her classroom presentation about Harvey Milk last month, and school officials promise they won’t engage in unconstitutional restriction of similar free speech in the future. The apology comes after the American Civil Liberties Union sent a letter on May 30 to the Ramona Unified School District about its violation of the student’s free speech rights when it refused to allow her to give the presentation in class. Wrongly citing a school policy on sex education, the school had improperly required classmates to get parental permission to see the presentation during a lunch recess. The student was allowed to give her presentation in class this morning.
“Harvey Milk always stood up for his beliefs and what was right, so I felt like I should do the same thing when my school told me they wouldn’t let me do my presentation,” said Natalie Jones, a sixth grader at Mt. Woodson Elementary School. “I worked really hard on my presentation and I’m glad I’m finally going to get to share it with all of my classmates like everyone else got to.”
The assignment, part of an independent research project class, was to prepare a written report on any topic. Natalie, who was inspired to write about Harvey Milk after watching Sean Penn win an Academy Award for portraying him, got a score of 49 out of a possible 50 points on the written report. Students were then told to make PowerPoint presentations about their reports, which they would show to other students in the class. The day before Natalie was to give her 12-page presentation she was called into the principal’s office and told she couldn’t do so. When her mother spoke with the superintendent about the presentation, she was told Natalie couldn’t give her presentation because of a district board policy on “Family Life/Sex Education.” A few days later, the school sent letters to parents of students in the class, explaining that her presentation would be held during a lunch recess on May 8, and that students could only attend if they had parental permission due to the allegedly “sensitive” nature of the topic.
“Instead of quaking at the mere mention of an LGBT person’s existence, schools must understand that talking about someone who happens to be gay is no more sexual in nature than talking about a person who happens to be heterosexual,” said David Blair-Loy, Legal Director of the ACLU of San Diego and Imperial Counties. “Censoring Natalie’s presentation violated the First Amendment and the California Education Code, and we’re pleased she will finally get to give her presentation on a historical figure who was such a fierce advocate for the rights of not just LGBT Californians but of all people.”
* The school has apologized in writing to Natalie and sent a letter about that apology to all the parents who were sent the school’s letter about the presentation.
* The school allowed Natalie to give her presentation to all the other members of her independent research project class.
* The school has agreed to bring its “Family Life/Sex Education” policy into compliance with state law, and acknowledged that the mention or acknowledgement of a person’s sexual orientation is not sufficient to invoke the statutes and policies on sex education.
“If the school had taken a moment to consider its legal obligation to respect and uphold its students’ free speech rights instead of jumping to erroneous conclusions and trying to justify its actions by wrongly conflating Natalie’s historical presentation with sex education, this would never have happened,” said Elizabeth Gill, a staff attorney with the ACLU national LGBT Project. “There’s a tremendous difference between sex education and writing or talking about someone who happens to be gay, and we’re glad we were able to help the school finally understand that.”
“I’m always proud of my daughter, of course, but I’m even more proud of her for the way she stood up for her rights,” said Bonnie Jones, Natalie’s mother. “We’ve also heard from many people in town and other parents at Natalie’s school who have been amazingly supportive. I think if Harvey Milk were still here today, he’d be happy about how this all worked out.”
Harvey Milk, one of Time Magazine’s “Time 100 Heroes and Icons of the 20th Century” in 1999, has been the subject of several books, an opera, a documentary film that won the 1984 Academy Award for Documentary Feature, and a feature film released last year that won two Academy Awards for Best Original Screenplay and Best Actor. Milk’s birthday is the subject of a bill pending in the California legislature that would make it a state holiday.
For additional information, including a video featuring an interview with Natalie, copies of the school’s apology to Natalie and its letter to parents of students in her class, Natalie’s presentation on Harvey Milk, the school’s letter to parents, and the Ramona U.S.D. “Family Life/Sex Education” policy, can be found online at www.aclu.org/milk
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TSA refuses to hire HIV+ Air Force Vetr to scan luggage, ACLU to sues – wonder if Obama will at lteat fix this?
“I was looking for a way to be able to serve my country once again and to supplement my income through this financial crisis with the possibility of changing my career. But after a lengthy interview and screening process, I was told that I am incapable and unworthy because I have HIV,” said Michael Lamarre, who worked in intelligence for the National Security Administration while serving in the Air Force from 1984 to 1987. “I am a long term HIV survivor, and it has never interfered in my ability to work. As I have learned having lived with HIV for nearly 20 years, people with HIV need to be able to make a living and support themselves just like everyone else as well as have the right to serve their country.”
Lamarre has lived with HIV for 19 years. His viral load is nearly undetectable and he has never had any of the medical conditions associated with AIDS. Just last November he completed a 165 mile bike ride for charity in just 2 days.
Today the ACLU filed a complaint on Lamarre’s behalf with the Equal Employment Opportunity Counselor for the Eastern Region of the TSA charging that the TSA is in violation of its own policy barring discrimination against people with disabilities. A copy of TSA’s non-discrimination policy is available on their website at: http://www.tsa.gov/assets/pdf/civil_rights_policy.pdf. The complaint also charges that the refusal to hire Lamarre violated his equal protection guarantees. It asks the TSA to rescind Lamarre’s disqualification from employment.
“As we have known for quite a while now, people living with HIV can lead long and productive lives and can make significant contributions in all professions, including baggage screeners,” said Dr. Margaret Fischl, MD, director and principal investigator of the AIDS clinical research unit at the University of Miami. “A baggage screener with HIV would pose no risk to others and would be no more likely to become infected with a cold or virus than anyone else working in the airport.”
A copy of the complaint filed by the ACLU as well as the letter notifying Lamarre that he was being disqualified because he has HIV and the paperwork submitted by his doctor stating he is physically capable of performing the duties is available at http://www.aclu.org/hiv/discrim/39827res20090611.html.
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