Category: Civil Rights

Privacy Tip #309 – Women Poised to Fill Gap of Cybersecurity Talent

I have been advocating for gender equality in Cybersecurity for years [related podcast and post].

The statistics on the participation of women in the field of cybersecurity continue to be bleak, despite significant outreach efforts, including “Girls Who Code” and programs to encourage girls to explore STEM (Science, Technology, Engineering and Mathematics) subjects.

Women are just now rising to positions from which they can help other women break into the field, land high-paying jobs, and combat the dearth of talent in technology. Judy Dinn, the new Chief Information Officer of TD Bank NA, is doing just that. One of her priorities is to encourage women to pursue tech careers. She recently told the Wall Street Journal that she “really, really always wants to make sure that female representation—whether they’re in grade school, high school, universities—that that funnel is always full.”

The Wall Street Journal article states that a study by AnitaB.org found that “women made up about 29% of the U.S. tech workforce in 2020.”  It is well known that companies are fighting for tech and cybersecurity talent and that there are many more open positions than talent to fill them. The tech and cybersecurity fields are growing with unlimited possibilities.

This is where women should step in. With increased support, and prioritized recruiting efforts that encourage women to enter fields focused on technology, we can tap more talent and begin to fill the gap of cybersecurity talent in the U.S.

Article By Linn F. Freedman of Robinson & Cole LLP

For more privacy and cybersecurity legal news, click here to visit the National Law Review.

Copyright © 2021 Robinson & Cole LLP. All rights reserved.

Federal Judge Blocks Enforcement of Tennessee’s Bathroom Signage Law

On July 9, 2021, a federal district court in Nashville, Tennessee, granted a preliminary injunction, halting enforcement of a new Tennessee law on bathroom signage. That law mandates that businesses post specific signs next to their public bathrooms, if they allow people to use the bathroom that conforms with their gender identity. The first-of-its-kind law went into effect on July 1, 2021. It requires that any

public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.

The law specifies the size, font, color, and content of the sign, which must state the following:

THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM

The act gives any entity or business that is in violation of its edict 30 days from being “notified that it is not in compliance” to post the required signage, after which “action” may be “taken against the entity or business.” Failure to remedy the violation would constitute a Class B criminal misdemeanor.

Two businesses in Nashville and Chattanooga have filed a lawsuit challenging the law. They assert that being forced to place these signs on their premises violates their rights under the First Amendment of the U.S. Constitution. Both argue that the act requires them to engage in a form of speech that they find offensive and that is contrary to their beliefs on diversity, inclusion, and mutual respect.

The Court’s Analysis

District Judge Aleta Trauger of the U.S. District Court for the Middle District of Tennessee agreed with businesses, holding that they were likely to succeed in their lawsuit. When granting the preliminary injunction precluding the enforcement of the law, Judge Trauger did not mince words. She noted that the Supreme Court of the United States has held that “‘[c]ompelling individuals to mouth support for views they find objectionable violates [a] cardinal constitutional command’ unless justified by the strongest of rationales.”

Judge Trauger wrote that “[p]articularly repugnant to the First Amendment is when the government forces a private party to voice the government’s compelled message, not merely in private or in direct dealings with government itself, but ‘in public,’ as an involuntary ‘instrument for fostering public adherence to an ideological point of view.’” Judge Trauger found that the government had failed to plausibly articulate any legitimate rationale for the law, let alone one that would survive strict-scrutiny review.

Judge Trauger concluded her memorandum opinion by observing that

“[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” That rule is not founded simply on an abstract love of unfettered and uncompelled speech. The First Amendment holds its privileged place in our constitutional system because, “[w]henever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines” both “our democratic form of government” and the very “search for truth” necessary for a thriving society to persist.

(Internal citations omitted.)

Key Takeaways

The court’s ruling provides a measure of clarity to Tennessee business owners and managers who were concerned about compliance with the law and worried about criminal liability for violating its mandates. Since the Tennessee General Assembly’s passage of bathroom signage legislation at the conclusion of the 2021 session, and Tennessee Governor Bill Lee’s signing the legislation into law, employers had expressed concern regarding the potential consequences resulting from noncompliance with the law. Some employers had expressed dismay at the effect that such a law could have on their employees who are members of the LGBTQ community. For the time being at least, while this case works its way through the courts, it appears that Tennessee businesses may have a reprieve from enforcement of the law.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on bathroom laws, visit the NLRCivil Rights section.

Making the Roster: Conflicting Title IX Interpretations Present Challenges for Transgendered Athlete Participation

Nationwide, college athletic programs are facing a dilemma: can they roster transgendered athletes on teams that conform with their gender identity? The answer is: it depends on where the team is located. In recent years, presidential administrations, Congress, states, and federal courts have weighed in on this issue. School athletics must not only take into account the guidelines and bylaws of the NCAA, but also must consider the federal guidance of the Department of Justice and the Department of Education, the recent rash of state laws that prohibit the participation of trans athletes in sports, and judicial decisions that interpret federal and state law. This is a daunting task as the four sets of rules (NCAA, federal law, state law, and judicial decisions) appear to be in conflict in interpreting the right to roster transgendered athletes to conform to the athletes’ gender identity.  These conflicting policies create risk for athletic departments of colleges and universities.

NCAA Guidelines

The NCAA has had a trans-inclusion policy in place for years, predating the current legal debate. The NCAA bylaws allow for transgendered athletes to participate on teams that conform with their gender identity if certain conditions are met regarding hormone therapy. Additionally, in August 2011, the NCAA issued guidelines (the “NCAA Guidelines”) on trans-inclusive policies for intercollegiate athletic teams. The NCAA Guidelines’ purpose was “to provide guidance to NCAA athletic programs about how to ensure transgendered student-athletes fair, respectful, and legal access to collegiate sports teams based on current medical and legal knowledge.” The NCAA Guidelines, among other things, advise institutions that “all members of the school community should receive information about transgender identities, non-discrimination policies, the use of pronouns and chosen names, and expectations for creating a respectful school and team climate for all students, including transgender students.” Further, they recommend that transgendered athletes be afforded access to the locker room and other facilities in accordance with their gender identity and that transgender student-athletes should be assigned hotel rooms according to their identified gender in the same manner that other members of the team are assigned rooms. The NCAA Guidelines’ purpose is to treat transgendered athletes the same way as their cisgendered teammates.

The NCAA recently reaffirmed its trans-inclusive policies, partly in response to the ongoing legal battles, and stated that it “regularly assesses its practices related to transgender participation and solicits feedback” from not only medical community experts and inclusion thought leaders, but also current and former student-athletes.  The NCAA included an educational session on transgender and nonbinary student-athlete participation in its annual Inclusion Forum, which took place June 2–4, 2021.

Federal Law and the Biden Administration’s Trans-Inclusive Policies

Titles VII and IX protect against sex discrimination.  Until recently, however, the scope of that protection to gay and transgender people was uncertain as court decisions were mixed and the previous administration did not include gay and transgender persons within the scope of sex discrimination under federal law.

In June 2020, the United States Supreme Court clarified that homosexual and transgender individuals are entitled to the protections of Title VII.[1]  In an affirmance of the Supreme Court’s Bostock decision, on his first day in office, President Biden issued an Executive Order, entitled, Preventing and Combating Discrimination Based on Gender Identity or Sexual Orientation. Among other declarations, the Executive Order asserts that “[a]ll persons should receive equal treatment under the law without regard to their gender identity or sexual orientation”, including that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, locker room, or school sports.” This Executive Order changed the federal government’s position on transgender rights from that which existed under the prior administration.

Since January 21, 2021, the Department of Justice’s Civil Rights Division issued a memo to all federal agencies extending the protection to gay and transgender people under Title IX as well.  The Civil Rights Division wrote that based on the Bostock decision, Title IX also should be read as protecting the status of gay and transgender students. In its memo, the Division wrote: “After considering the text of Title IX, Supreme Court case law, and developing jurisprudence in this area, the Division has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation.”

On April 6, 2021, the Department of Education’s Office for Civil Rights, which is responsible for enforcing Title IX, announced it would undertake a comprehensive review of its Title IX regulations.  It announced that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence and including discrimination on the basis of sexual orientation or gender identity.”

On June 16, 2021, the Office for Civil Rights issued a Notice of Interpretation, which states that the Department of Education interprets Title IX’s prohibition on discrimination to include discrimination on the basis of sexual orientation and gender identity and based that interpretation on the Supreme Court’s decision in Bostock. The Office for Civil Rights concluded that such interpretation “is most consistent with the purpose of Title IX, which is to ensure equal opportunity and to protect individuals from the harms of sex discrimination.”[2]

Recent Anti-Transgender State Legislation

Transgendered athletes also face legal challenges on a state level. Eight states have passed laws prohibiting women from participating in sports outside of their birth gender[3] and over 30 states have introduced some form of bill that prohibits transgendered athletes from participating on single-sex sports teams. For example, in Arkansas, Governor Asa Hutchinson signed Senate Bill 354, which bans transgender women and girls from participating in school sports. The decision comes two weeks after Mississippi Governor Tate Reeves signed a similar bill, which will go into effect July 1, 2021. Arkansas Attorney General Leslie Rutledge stated, “We don’t want common sense to be overshadowed by so-called political correctness, and this bill will ensure the integrity of girls and women in sports.” Florida’s law would require any athlete whose biological sex is disputed to have a health official examine the athlete’s reproductive anatomy.

North Carolina’s bill, known as the “Save Women’s Sports Act,” would prevent transgendered women from playing on women’s sports teams at public schools or universities as well. Texas’s legislature took a similar approach, introducing a bill that would prohibit transgendered athletes from participating on single-sex sports teams in public high schools, colleges, and universities. This week, Texas’ Governor called the legislature back into special session to vote on this bill.

Supreme Court’s Decisions on Sex Discrimination

In Bostock, the United States Supreme Court held that homosexual and transgender individuals are a protected class under Title VII. Bostock came to the Court as a consolidation of three Title VII appeals—two cases of which involved employees being fired for being gay and the third involved the firing of an employee who intended to undergo gender affirmation surgery. In a 6–3 ruling, the Supreme Court found that homosexual and transgender individuals were afforded “protected class” status under Title VII.  It found that the employers’ conduct constituted illegal discrimination. The majority, analyzing Title VII’s language that prohibits discrimination on the basis of sex, concluded that sex was so intertwined with sexual orientation and gender identity, that any discrimination based on sexual orientation or gender identity is necessarily, in part, discrimination based on sex.[4]

The majority made clear that its definition of “sex” only should be applied to Title VII and employment matters. However, the Bostock ruling does seem to open the door to similar interpretation of Title IX. Such application might have, as Justice Alito mused in his dissenting opinion, unintended consequences, especially for college and university Athletic Departments.

This week, the Supreme Court determined that there are legitimate religious objections to the treatment of lesbian, gay, bisexual, and transgender people and these objections are entitled to First Amendment protection against statutes to the contrary.  In Fulton v. City of Philadelphia, ___ S.Ct. ___, 2021 WL 2459253 (June 17, 2021), the Court unanimously held that Philadelphia’s anti-discrimination laws (which were included in its foster care contracts) did not apply to a Catholic social services agency’s policy to exclude same-sex couples from foster placement. The Court determined the agency’s religious beliefs were entitled to First Amendment protection from Philadelphia’s local laws.  It held that the Catholic-based foster care agency was allowed to maintain its contract with the city and continue to bar same-sex couples from fostering.

While the Court focused on the wording of Philadelphia’s anti-discrimination ordinance in the Fulton decision, it may be read to exempt faith-based opposition to laws precluding discrimination against gay and transgendered individuals. Indeed, future rulings may allow religious colleges and universities to bar transgendered student-athletes.

Federal Courts Take Up the Debate

Other federal courts have decided cases involving transgendered athletes’ rights.[5]  In Hecox v. Little, two transgender women sued the state of Idaho over its Fairness in Women’s Sports Act, which prohibits transgendered women from competing on women’s sports teams at public schools. The plaintiffs sought to apply Title IX anti-discrimination protections to declare the state law unconstitutional. The federal judge granted the plaintiffs’ preliminary injunction, temporarily prohibiting the law from becoming effective. The Ninth Circuit is now deliberating the constitutionality of the state law, following Idaho’s appeal of the district court’s injunction.

And, in Soule v. Connecticut, some cisgendered female high school athletes in Connecticut sued the Connecticut Interscholastic Athletic Conference for violating Title IX.  The plaintiffs claimed the conference’s policies allowed transgendered athletes to unfairly dominate track and field events when those events were meant for cisgendered female competitors.  The Trump administration, which issued guidance that interpreted Title IX in line with the Connecticut plaintiffs’ arguments, supported the lawsuit. The court dismissed the Connecticut action on the ground of mootness.  The court held that because the transgendered athletes in question had already graduated from high school and would not be participating in CIAC events, there was nothing left to decide. The court did not decide the case on the merits.  The ACLU issued a statement that it intended to challenge any legislation that prohibited transgendered athletes from participating in interscholastic sports, so future litigation is likely.

Conclusion

Colleges and universities face risks and opportunities with regard to transgendered athletes. The NCAA by-laws and guidelines permit transgendered athletes to compete on teams that conform with their gender identity.  The federal government has issued administrative guidance, Executive Orders, and a Notice of Interpretation that would preclude institutions from discriminating against transgendered individuals, under Title VII or Title IX.  A number of states—eight and increasing —have enacted legislation that not only conflicts with federal guidance but also limits the rights of transgendered athletes. While courts so far have found restrictions on gay and transgendered persons to violate Title VII and Title IX, the United States Supreme Court may have limited the applicability of those decisions where there is a religious issue.  In short, courts are struggling to balance equal protection and Titles VII and IX guarantee with other constitutional protections.  And, of course, colleges and universities need to be able to articulate policies that are compliant with the law and their core values.

The resolution of these issues has real consequences on colleges and universities.  The resolution may affect the institution’s core values and donations.  It also may, in the athletic department, affect the ability to recruit and retain athletes.  The institution may find that its policies may conflict with those of the NCAA, and thereby risk eligibility or media rights revenues.   And, the institution’s policies may put it at the center of disagreements between its state and the federal government.

[1] See Bostock v. Clayton County, 140 S.Ct. 1731 (2020) and the discussion in section 4 below.

[2] Notably, the Executive Orders, DOJ Memo, and the Notice of Interpretation are all silent as to any potential enforcement actions the Biden administration and its agencies would take against non-compliant institutions. Colleges and universities should be on the lookout for further guidance from the Department of Education on compliance with its Title IX interpretation—and consequences of noncompliance.

[3] Alabama, Arkansas, Florida, Idaho, Mississippi, Montana, Tennessee and West Virginia.

[4] In a dissent, Justice Alito pondered the effect the majority’s ruling would have on other matters involving sex discrimination, specifically whether the Court’s interpretation of Title VII—which focuses on employment—would impact Title IX, which applies to sex discrimination in educational and athletic programs.

[5] Hecox v. Little, 479 F.Supp.3d 930 (D. Idaho 2020); Soule v. Conn. Ass’n of Pub. Sch.,  No. 3:20-CV-00201-RNC, 2021 WL 1617206 (D. Conn. April 25, 2021) .

2021 Goulston & Storrs PC.
For more articles on Title IX, visit the NLR Public Education & Services section.

U.S. Department of Education Says Title IX Protects LGBTQ Students

Yesterday, the Office of Civil Rights (OCR) for the U.S. Department of Education released a new Notice of Interpretation clarifying the Department’s position that Title IX prohibits discrimination against gay and transgender students. The interpretation, applicable to both colleges and universities and K-12 institutions which accept federal funding, follows the U.S. Supreme Court’s holding in Bostock v. Clayton County that Title VII prohibits workplace discrimination based on sexual orientation or gender identity. OCR’s announcement is a departure from the previous administration’s position, which declined to extend Title IX’s protections to transgender students. While the Notice does not have the effect of law, it signals OCR’s intentions as it enforces Title IX going forward. “We just want to double down on our expectations,” said DOE Secretary Miguel A. Cardona. “Students cannot be discriminated against because of their sexual orientation or their gender identity.”

OCR’s Notice states that its interpretation is meant to align Title VII and Title IX, acknowledging that courts regularly rely on interpretations of Title VII to inform decisions based on Title IX. The interpretation also follows a March 2021 memorandum from the U.S. Department of Justice, which similarly interpreted the Bostock decision to apply to Title IX. OCR’s announcement has been welcomed by many schools, which had been forced to juggle conflicting Title IX and Title VII standards in the wake of the Bostock decision. Still others have questioned the interpretation’s impact, including schools in locations where the interpretation is in conflict with state or local law. And OCR’s Notice expressly acknowledges that the interpretation does not change the Title IX exemption for education institutions controlled by a religious organization to the extent that the law is not consistent with the organization’s religious tenets.

OCR’s announcement comes during the summer months—as many schools are updating their policies and procedures—and while many institutions anxiously await OCR’s announcement of further guidance and regulations related to Title IX, particularly regarding further guidance regarding the 2020 Title IX regulations. The interpretation also leaves open several key questions including, for example, its impact on single sex institutions or campus affinity groups or how broadly the department will define gender identity. But as schools prepare for the 2021 fall semester, administrators should be ready to address allegations of discrimination based on sexual orientation or gender identity as part of Title IX compliance efforts.

OCR’s Notice of Interpretation may be found in its entirety here.

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.
For more articles on the OCR, visit the NLRCivil Rights section.

Transgender Students and Title IX: Biden Administration Signals Shift

President Biden issued Executive Order (EO) on Preventing and Combating Discrimination Based on Gender Identity or Sexual Orientation on Jan. 20, 2021.[1] While the EO itself is a high level policy statement and does not, in and of itself, immediately change any practices for public school districts, it likely signals a significant shift in how the Biden administration will interpret and enforce the rights of transgender and other LGBTQ students.

What policy is asserted in the EO?

The Executive Order asserts that “[a]ll persons should receive equal treatment under the law without regard to their gender identity or sexual orientation”, including that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, locker room, or school sports.” Additionally the EO provides: “[e]very person should be treated with respect and dignity without regard to who they are or whom they love; “[a]dults should be able to earn a living without worrying about being fired or demoted because of who they go home to or whether their dress conforms to sex-based stereotypes”; and “[p]eople should have access to healthcare and be able to put a roof over their heads without being subjected to sex discrimination.”

The EO bases its reasoning on Title VII of the Civil Rights Act of 1964 and the Supreme Court’s recent case of Bostock v. Clayton County, which held that Title VII’s prohibition against “sex discrimination” includes a prohibition against discrimination based on sexual orientation and gender identity. The EO asserts that Bostock’s reasoning also applies to other laws, including Title IX, that prohibit sex discrimination.

What does the EO require federal entities to do?

It requires the head of every federal agency (including the U.S. Department of Education) to:

  • Consult with the United States Attorney General as soon as practicable;
  • Review all existing orders, regulations, guidance documents, policies, programs, or other agency actions under any statute or regulation that prohibits sex discrimination and determine whether those items are consistent with the EO; and
  • Within 100 days of the Order, work with the Attorney General to implement an action plan to carry out the actions identified in its review of its policies, programs, guidance, rules, or regulations and that may be inconsistent with the Order’s stated policy.

How are the stated policy and required action different from the past?

The EO’s language stands in direct contrast with the prior administration’s stance on legal protections for students based on sexual orientation and gender identity. For example, under the prior administration, the U.S. Department of Education took the position that Bostock’s reasoning did not apply to Title IX and specifically reaffirmed its position that public school districts may exclude students from athletic teams based on gender identity and could require students to use bathrooms based on biological sex, rather than gender identity.

In fact, the prior administration issued correspondence explicitly disagreeing with how two federal circuit courts interpreted Title IX. In Grimm v. Gloucester County School Board and in Adams v. School Board of St. Johns County, the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) and Eleventh Circuit (covering Alabama, Florida, and Georgia) held that public school students have the right, under both Title IX and the Equal Protection Clause of the Fourteenth Amendment, to use bathrooms consistent with their gender identity. The Eleventh Circuit, in particular, relied on Bostock to interpret Title IX’s prohibition against sex discrimination.[2] The new EO rejects the previous administration’s assertion that the Bostock decision does not apply to agency interpretation of Title IX.

While the EO does not specifically rescind any specific order or action, its broad mandate that agencies review existing programs and policies likely will lead to updated guidance, enforcement priorities, and rules implementing Title IX and other laws prohibiting sex discrimination.

What should schools do now?

The current administration will likely implement major changes related to discrimination on the basis of sexual orientation or transgender status. This may include requiring schools to allow students to use bathrooms and locker rooms that are consistent with their gender identity, and to play on athletic teams that are consistent with their gender identity. Additionally, schools can expect more robust federal agency investigation of complaints of discrimination based on gender identity and sexual orientation.

In light of Bostock, all schools subject to Title VII of the Civil Rights Act should ensure that their employment policies prohibit discrimination on the basis of sexual orientation and gender identity, in conformity with Bostock. In addition, all colleges and universities, as well as all public K-12 school districts, in the Fourth and Eleventh circuits should ensure that their bathroom policies allow students to use bathrooms consistent with their gender identity.

Finally, colleges and universities, as well as public K-12 school districts, should review their practices and procedures to determine how to best support the rights of transgender students in their programs and activities. They should prepare for greater scrutiny at the federal level and be prepared to defend their practices.

[1] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/

[2] Note, though, that the School Board of St. Johns County has petitioned for an en banc hearing. That petition has not yet been ruled upon.

Copyright ©2021 Nelson Mullins Riley & Scarborough LLP

ARTICLE BY Neeru “Nina” Gupta and Suzann M. Wilcox of Nelson Mullins
For more, visit the NLR Public Education & Services section.

Transgender Students and Title IX: Biden Administration Signals Shift

President Biden issued Executive Order (EO) on Preventing and Combating Discrimination Based on Gender Identity or Sexual Orientation on Jan. 20, 2021.[1] While the EO itself is a high level policy statement and does not, in and of itself, immediately change any practices for public school districts, it likely signals a significant shift in how the Biden administration will interpret and enforce the rights of transgender and other LGBTQ students.

What policy is asserted in the EO?

The Executive Order asserts that “[a]ll persons should receive equal treatment under the law without regard to their gender identity or sexual orientation”, including that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, locker room, or school sports.” Additionally the EO provides: “[e]very person should be treated with respect and dignity without regard to who they are or whom they love; “[a]dults should be able to earn a living without worrying about being fired or demoted because of who they go home to or whether their dress conforms to sex-based stereotypes”; and “[p]eople should have access to healthcare and be able to put a roof over their heads without being subjected to sex discrimination.”

The EO bases its reasoning on Title VII of the Civil Rights Act of 1964 and the Supreme Court’s recent case of Bostock v. Clayton County, which held that Title VII’s prohibition against “sex discrimination” includes a prohibition against discrimination based on sexual orientation and gender identity. The EO asserts that Bostock’s reasoning also applies to other laws, including Title IX, that prohibit sex discrimination.

What does the EO require federal entities to do?

It requires the head of every federal agency (including the U.S. Department of Education) to:

  • Consult with the United States Attorney General as soon as practicable;
  • Review all existing orders, regulations, guidance documents, policies, programs, or other agency actions under any statute or regulation that prohibits sex discrimination and determine whether those items are consistent with the EO; and
  • Within 100 days of the Order, work with the Attorney General to implement an action plan to carry out the actions identified in its review of its policies, programs, guidance, rules, or regulations and that may be inconsistent with the Order’s stated policy.

How are the stated policy and required action different from the past?

The EO’s language stands in direct contrast with the prior administration’s stance on legal protections for students based on sexual orientation and gender identity. For example, under the prior administration, the U.S. Department of Education took the position that Bostock’s reasoning did not apply to Title IX and specifically reaffirmed its position that public school districts may exclude students from athletic teams based on gender identity and could require students to use bathrooms based on biological sex, rather than gender identity.

In fact, the prior administration issued correspondence explicitly disagreeing with how two federal circuit courts interpreted Title IX. In Grimm v. Gloucester County School Board and in Adams v. School Board of St. Johns County, the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) and Eleventh Circuit (covering Alabama, Florida, and Georgia) held that public school students have the right, under both Title IX and the Equal Protection Clause of the Fourteenth Amendment, to use bathrooms consistent with their gender identity. The Eleventh Circuit, in particular, relied on Bostock to interpret Title IX’s prohibition against sex discrimination.[2] The new EO rejects the previous administration’s assertion that the Bostock decision does not apply to agency interpretation of Title IX.

While the EO does not specifically rescind any specific order or action, its broad mandate that agencies review existing programs and policies likely will lead to updated guidance, enforcement priorities, and rules implementing Title IX and other laws prohibiting sex discrimination.

What should schools do now?

The current administration will likely implement major changes related to discrimination on the basis of sexual orientation or transgender status. This may include requiring schools to allow students to use bathrooms and locker rooms that are consistent with their gender identity, and to play on athletic teams that are consistent with their gender identity. Additionally, schools can expect more robust federal agency investigation of complaints of discrimination based on gender identity and sexual orientation.

In light of Bostock, all schools subject to Title VII of the Civil Rights Act should ensure that their employment policies prohibit discrimination on the basis of sexual orientation and gender identity, in conformity with Bostock. In addition, all colleges and universities, as well as all public K-12 school districts, in the Fourth and Eleventh circuits should ensure that their bathroom policies allow students to use bathrooms consistent with their gender identity.

Finally, colleges and universities, as well as public K-12 school districts, should review their practices and procedures to determine how to best support the rights of transgender students in their programs and activities. They should prepare for greater scrutiny at the federal level and be prepared to defend their practices.

[1] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/

[2] Note, though, that the School Board of St. Johns County has petitioned for an en banc hearing. That petition has not yet been ruled upon.

Copyright ©2021 Nelson Mullins Riley & Scarborough LLP

For more, visit the NLR Civil Rights section.

Supreme Court Considers Religious Exemptions to Nondiscrimination Laws

On November 4, the Supreme Court heard oral arguments in Fulton v. City of Philadelphia, the most recent case to address how the First Amendment’s Religious Free Exercise Clause interacts with antidiscrimination laws as applied to religious entities. The case centers on foster care and certification of couples to be foster parents, but the case could have wide-ranging impacts on public accommodation and employment law, especially in the field of government contracts.

When the City of Philadelphia’s Department of Human Services removes children from their parents’ homes, it seeks to place those children temporarily with foster parents. But the city does not find those foster parents itself. Rather, it contracts with private agencies like Catholic Social Services to find suitable foster parents. The private organizations are responsible for doing home visits and the other steps necessary to approve individuals and couples as foster parents, and the city pays them for these services. In 2018, Catholic Social Services admitted to the City that it would not consider any same-sex couples as potential foster parents, which the City concluded was a violation of both its Fair Practices Ordinance and the terms of the contract between the City and Catholic Social Services. Thus, the City stated that it would only renew Catholic Social Services’ contract for certifying foster parents if the organization agreed to consider same-sex couples on the same grounds as opposite-sex couples. Catholic Social Services refused and sued the City, claiming that the City infringed on its right to free exercise of religion under the First Amendment.

The City won in both the federal district and appeals courts, and the Supreme Court agreed to hear the case to answer three questions relating to what a free exercise plaintiff must prove to win a discrimination case, whether the Supreme Court should overturn its prior case Employment Division v. Smith, and what conditions a government agency can place on its contracts with private agencies.

Employment Division v. Smith and the Current State of Free Exercise Law

Employment Division v. Smith, decided in 1990, dealt with two men who were fired from their jobs at a drug rehabilitation center because they had used peyote, which was against state law, and were then denied unemployment benefits since they had been fired for misconduct. But the men had used peyote as part of a religious ceremony, and claimed that the state violated the First Amendment when it denied them unemployment benefits based on their religious use of peyote. In an opinion written by Justice Scalia, the Supreme Court held that the Free Exercise Clause of the First Amendment prohibited governments from singling out religious conduct for regulation, but did not require governments to create religious exemptions from all of its laws. As long as the law was generally applicable to all religious and non-religious individuals alike, and neutral toward religion, meaning not intended to interfere with religious practice, the law met the requirements of the Free Exercise Clause. In other words, as long as Oregon’s peyote ban applied to all citizens, not just members of a certain religious group, and as long as that law was written for a neutral reason like promoting health and safety as opposed to a legislative desire to stop a religious practice, the law was constitutional and could be applied to both religious and non-religious individuals. The fact that the law incidentally infringed on religious practice did not make it invalid.

Congress responded to Employment Division v. Smith by passing the Religious Freedom Restoration Act of 1993, or RFRA. This bill stated that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” It introduced a requirement that a person with a religious objection to a law must be exempted from that law unless the government had a compelling interest in passing the law, and the law was the least restrictive means of achieving that goal. This test is known as strict scrutiny, and is very difficult to meet, although religious employers do not always win when they invoke RFRA. For example in Bostock v. Clayton County Georgia, where the Supreme Court held that Title VII prohibits employers from discriminating on the basis of sexual orientation or gender identity, one of the employers had made a RFRA claim which failed in the lower court because Title VII did not substantially burden the employer’s religious exercise and met strict scrutiny regardless. Additionally, many federal circuits only apply RFRA to cases in which the federal government is a party, such as when the Equal Employment Opportunity Commission brings the action to enforce Title VII, but not when a private employee files the lawsuit.

While RFRA originally applied to both state and federal laws, the Supreme Court later said that it could only apply to federal laws. This meant that while federal laws would have to either meet RFRA’s strict scrutiny test or create religious exemptions, state laws only had to meet Employment Division v. Smith’s test that they be neutral toward religion and generally applicable to everyone—or whatever higher standard the state sets for its own laws.

Revisiting Employment Division v. Smith

In Fulton v. City of Philadelphia, both sides argue that they can win under Employment Division v. Smith. The City of Philadelphia argues that its requirements that foster care agencies not discriminate against potential parents based on sexual orientation, as contained in its Fair Practices Ordinance and the service contracts, are generally applicable to all foster care agencies, and have the neutral goal of stopping discrimination as opposed to infringing on religious practice. Catholic Social Services claims that the nondiscrimination provisions are intended to infringe on religious practices, and that they are not generally applied by the city, which allows foster care agencies to consider other protected categories like race and disability in narrow circumstances, but do not provide an exception to the sexual orientation nondiscrimination policy for religious objectors.

But in the event that argument fails, Catholic Social Services also asked the Supreme Court to revisit its decision in Employment Division v. Smith, and to replace that precedent with the strict scrutiny standard established by RFRA. A decision by the Supreme Court that the First Amendment requires religious exemptions from neutral laws of general applicability unless the law is the least restrictive means of serving a compelling governmental interest would not only extend the strict scrutiny test to state and local laws like the Philadelphia Fair Practices Ordinance, it would elevate it from a legislative mandate that any future Congress can overturn to a constitutional holding that only the Supreme Court or a constitutional amendment could undo. It would also go against legislative and judicial history tracing back to our country’s founding, which traditionally indicates that the Free Exercise Clause does not require religious exemptions from neutral and generally applicable laws, as First Amendment scholars argued in an amicus brief, and as Justice Scalia noted in Employment Division v. Smith itself.

Control over Government Contracts

Another dimension of the Fulton v. City of Philadelphia case is that the City is acting not only as a regulator enforcing its Fair Practices Ordinance, but also as a market participant paying—or not paying—Catholic Social Services to perform a vital function on behalf of the city government. And the Supreme Court has stated in various cases that a government has the power to decide how it wants its work to be carried out by private contractors, even if there is some conflict with religious exercise. So, if that principle is followed, even if the Fair Practices Ordinance were required to include an exemption for those who religiously oppose same-sex marriage, the City could still grant contracts for its foster care program only to those organizations that agree not to discriminate against same-sex couples. Catholic Social Services argues that this too would violate the First Amendment, and that governments must grant exceptions to contractors based on honestly held religious beliefs.

Possible Impacts of Fulton v. City of Philadelphia on Employment Law

With a six to three conservative majority on the high Court, it is likely that Catholic Social Services will win this case, although it is far from clear on what ground the Court will base its decision. At oral argument the Justices spent little time asking about whether they should overrule Employment Division v. Smith, which indicates that they may take a more moderate approach such as narrowing the situations in which Smith applies or introducing some sort of balancing test for courts to apply when religious beliefs conflict with nondiscrimination laws. But whatever ground it rules on, the decision is likely to chip away at employment protections for workers in at least some contexts, as the decision will apply not only to organizations discriminating against clients, but also against employers discriminating against employees, based on their religious beliefs.

A full overruling of Smith would mean that all state, local, and federal employment nondiscrimination laws must include exemptions for religious employers based on their firmly held religious beliefs. A ruling that governments must provide such exceptions in their contracts with private entities would allow greater discrimination in a huge portion of the economy. In fiscal year 2019 the federal government entered into nearly six million contracts for services from private entities, spending almost $600 billion on those contracts. The federal, state, and local governments contract with private entities for a huge range of things, from production of military supplies and energy to provision of day care through Head Start and running private prisons. As a group of businesses ranging from tech giants Apple and Google to retailers Macy’s and Levi Strauss argued in an amicus brief, a ruling for Catholic Social Services could create unfair competition for government contracts where employers with religious objections—ranging from entities like Catholic Social Services, which is run by the Archdiocese of Philadelphia, to corporations like Hobby Lobby that are owned by a small number of religious adherents—are not required to comply with all neutral laws, and could make it difficult to recruit employees to locations where those employees might be denied public services by the only government contractor in town. And as 160 members of Congress argued, an expansion of religious exemptions would greatly infringe on Congress’s ability to eradicate discrimination, especially in the contracts it funds through taxpayer money.

And as the City of Philadelphia stressed at oral argument, these exemptions for religious employers and service providers would not only pertain to sexual orientation discrimination. Rather, religious entities would be allowed to discriminate against employees and clients based on any sincerely held religious belief, including beliefs about the superiority of certain religions, genders, or races. And while everyone was in agreement that the government has a compelling interest in eradicating racial discrimination, meaning that a ban on race discrimination would pass strict scrutiny against religious objections, the attorneys representing Catholic Social Services would not state whether the government had a compelling interest in eradicating other forms of discrimination, a question that is less clear from prior Supreme Court cases. The Supreme Court’s decisions on the “Ministerial Exception” already allow religious employers to discriminate on any grounds against those employees they consider ministers, such as teachers in a Catholic school who play a role in spreading the faith, but this decision could expand the license to discriminate beyond those who qualify as “ministers.” The Supreme Court explicitly declined to address the employer’s religious objections to Title VII in Bostock v. Clayton County, Georgia, but a ruling in Fulton could fill in that gap now that the question of religious objections to neutral laws is properly before the Court.

Decisions from the Supreme Court involving LGBTQ rights typically come out at the end of the term in June, but the Court’s decision could be published any time between now and then.

Katz, Marshall & Banks, LLP
For more articles on SCOTUS, visit the National Law Review Litigation / Trial Practice section

Balancing Hospital Visitations and Religious Freedoms During a Pandemic

On October 20, 2020, the Office for Civil Rights (“OCR”) settled two religious discrimination complaints involving access to clergy during the Public Health Emergency. Both complaints arose from a hospital’s failure to permit visits by religious clergy due to COVID-19 visitor restrictions. In the first complaint, a COVID-19 positive new mother requested that a priest visit her newborn son and baptize him. Due to its restrictive visitor’s policy, the hospital refused. In the second complaint, a priest was denied ICU access in order to provide Catholic religious sacraments to an end-of-life patient. 

In connection with resolution of the complaints, OCR provided technical assistance and guidance to the hospitals in order to strike a balance between protecting the hospital’s staff, visitors, and patients and respecting the patient’s right to religious support. OCR approved the following requirements for visiting clergy:

  • Visiting clergy must follow all safety policies put in place by the hospital, including COVID-19 screening protocols;
  • Visiting clergy must adhere to proper infection prevention practices, such as hand washing, physical distancing and wearing a mask;
  • Visiting clergy must complete infection control training;
  • Visiting clergy must use fit-tested Personal Protective Equipment (“PPE”);
  • Visiting clergy must sign an acknowledgment of the risks associated with visiting a patient who tested positive for COVID-19; and
  • In urgent end-of-life situations, an exception to the controls listed above may be made but visiting clergy must self-quarantine for 14 days following the visit.

Hospitals are encouraged to review their visitation policies for compliance with a patient’s right to religious support.

© Steptoe & Johnson PLLC. All Rights Reserved.
For more articles on civil rights and COVID-19, visit the National Law Review Civil Rights section.

Advocating for Transgender, Intersex, and Gender Nonconforming People’s Equal Access to Homeless Shelters

Nearly one-third of transgender individuals experience homelessness at some point in their life, and 70% of those who have stayed in a homeless shelter have reported some form of mistreatment, including harassment and refusal of service, due to their gender identity.  Transgender individuals are significantly more likely to end up homeless than the general population because they often face rejection by their family members and discrimination in employment and housing.  The levels of discrimination and income inequality are even higher for transgender women of color, and the COVID-19 pandemic has further exacerbated the rates of unemployment, poverty, and homelessness among the transgender population.

On September 22, 2020, pro bono attorneys filed a public comment letter on behalf of The National LGBT Bar Association and Foundation urging the withdrawal of a Proposed Rule issued by the U.S. Department of Housing and Urban Development (HUD) that would severely harm homeless transgender, intersex, and gender nonconforming individuals by allowing federally funded homeless shelters to discriminate against them on the basis of their gender identity.  The Proposed Rule would eliminate key non-discrimination protections previously afforded to transgender shelter-seekers under HUD’s 2016 Equal Access Rule and would permit single-sex shelters to turn away transgender, intersex, and gender nonconforming individuals if the shelter operator determines that the individual is not of the same “biological sex” as the other shelter residents.

The Proposed Rule is premised on the medically and legally indefensible presumption that an individual’s sex can be determined solely on the basis of their external physical characteristics.   In reality, an individual’s “biological sex” is complex, multi-faceted, and primarily determined not by external physical characteristics, but by an individual’s gender identity—which is sometimes referred to as one’s “brain sex.”  The Proposed Rule’s reduction of “biological sex” to physical sex stereotypes such as “height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics,” would not only result in discrimination on the basis of gender identity and transgender status, but would also enable single-sex shelters to arbitrarily provide or deny shelter based solely on a shelter worker’s assessment of whether an individual appears sufficiently “male” or “female” enough to enter.   Denying shelter to transgender, intersex, or gender nonconforming individuals on the basis of such physical sex stereotypes constitutes a type of gender discrimination that numerous courts have found unlawful.

HUD’s justifications for the Proposed Rule are rooted not in fact, but in transphobia and harmful gender stereotyping.  HUD claims that the Equal Access Rule burdens faith-based shelter providers, but provides no evidence of this.  HUD also claims that the Proposed Rule is necessary to protect the privacy and safety of cisgender (that is, non-transgender) shelter residents, again with no evidence that the Equal Access Rule has resulted in any harm to these residents.  Rather, HUD posits a hypothetical fear that “non-transgender, biological men” may pretend to be transgender women “to obtain access to women’s shelters” where they will harm cisgender women.  In so doing, HUD perpetuates what courts have identified as the “transgender predator myth,” a harmful, false, and unsubstantiated belief that laws protecting the rights of transgender people to access public accommodations such as restrooms will cause cisgender men to pose as transgender women to enter women’s facilities and assault cisgender women.

If enacted, the Proposed Rule will present transgender, intersex, and gender nonconforming individuals with the untenable “choice” of either being placed in a homeless shelter inconsistent with their gender identity or sleeping on the street.  Those who opt for shelter at a single-sex facility that does not match their gender identity will be subjected to the psychological trauma of being misgendered and will face the high risk of physical violence that has been documented in various settings in which transgender people have been forced into facilities inconsistent with their gender identities.  Those who opt to go unsheltered will also face a serious risk of harm, as studies have found as many as 66% of homeless transgender individuals have experienced a physical assault, and 33% have experienced sexual violence.  While a staggering 47% of transgender people report being sexually assaulted during their lifetime, the number climbs to 65% among transgender individuals who have experienced homelessness.  These grim statistics are symptomatic of a growing epidemic of violence against transgender individuals, as recent FBI data shows hate crimes against transgender people are on the rise.

We are proud to support The National LGBT Bar Association and Foundation in challenging this Proposed Rule and championing the rights of transgender, intersex, and gender nonconforming people who need access to emergency shelter.  HUD must protect homeless transgender individuals, who are among the most vulnerable members of the LGBTQ community, by ensuring that homeless shelters provide them with safe and equal access in accordance with their gender identities.

To read the public comment letter in full, click here.

© 2020 Proskauer Rose LLP.
ARTICLE BY Erin M. Meyer  of Proskauer Rose LLP
For more articles on civil rights, visit the National Law Review Civil Rights section.

Striking for Black Lives While Striking a Balance Between Business Needs and Employee Concerns

Plans are underway in multiple cities across the country for employees to participate in a Strike for Black Lives on Monday, July 20. The initiative encompasses the efforts of Black Lives Matter, the Movement 4 Black Lives, and a union-organizing effort by the Service Employees International Union. Strike for Black Lives encourages employees to “rise up for Black Lives” by walking off their jobs to march; and for those who can’t march, to take an “8:46 Pledge” in recognition of the death of George Floyd. The 8:46 Pledge asks supporters to take 8 minutes and 46 seconds at noon on July 20 to either take a knee, walk off the job, or observe a moment of silence.

Challenged by the threats of COVID-19, economic uncertainty, and now striking employees, employers should be prepared. As a reminder, the National Labor Relations Act (NLRA), which governs both union and non-union workplaces, protects most private sector employees who engage in concerted, protected activities to object to working conditions or terms of employment. On the other hand, employees who miss work without a good reason or for one’s own personal grievances may be subject to companies’ regular policies. Regardless, it is prudent for employers to proceed with caution in taking action against employees who join the Strike for Black Lives. If you have questions or doubts, consult with counsel.

Meanwhile, the Strike for Black Lives and similar events present opportunities for businesses to bolster their commitments to diversity and inclusion beyond standard statements of support. A recent Harvard Business Review article outlines recommendations for employers standing against racism. Others suggest allowing time off on short notice for last-minute marches and demonstrations. Showing flexibility in the application of company policies reflects a willingness to identify with employees’ concerns and reinforces a business’s own support for racial justice.

Although the convergence of extraordinary events in 2020 presents challenges for employers, in the words of John Adams, “Every challenge is an opportunity in disguise.”

© 2020 BARNES & THORNBURG LLP

For more on Black Lives Matter, see the National Law Review Civil Rights law section.