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Lesbian, gay, bisexual, & transgender (LGBT) topics:

2020-JUN-15:
A major U.S. Supreme Court issues
a decision
that broadens the legal
definition of the word "sex" to
mean much more than biological
sex, at least in the U.S.
Trump Administration terminates
health care protections for
transgender individuals.

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Introduction:

Back in 1964, Congress passed a very important bill called the 1964 Civil Rights Act. President Lyndon B. Johnson (D) later signed it into law. It continues in force until the present day and into our future. Title VII in the act bars employment discrimination on the basis of sex, race, color, national origin, or religion.

At the time the law was passed, "sex" was interpreted by most Americans to refer to a person's biological sex. The presence of a "Y" sex chromosome in their DNA identified the person as male; its lack defined the person as female. Males and females were guaranteed to have protection against gender discrimination in the workplace. The Act did not offer equal rights for lesbian, gay, bisexual or transgender persons. That development was to be delayed for more than a half century.

On Monday, 2020-JUN-15, the U.S. Supreme Court (SCOTUS) issued a ruling that significantly broadened the scope of the term "sex" in the Civil Rights Act. In a 6 to 3 decision, they determined that "sex" prohibits discrimination at work for all heterosexual persons, all cisgender persons, and the entire LGBT community: Lesbians, Gays, Bisexuals, and Transgender persons.

One of the individuals that SCOTUS considered in the case was Gerald Bostock, a child welfare officer in Clayton County, GA. He had joined a gay softball league and was later fired because his sexual orientation became known through his club affiliation. Another was Donald Zarda, a skydiving instructor who sometimes told female clients he was gay so that they would feel more comfortable when they were strapped together when jumping from a plane. He was also fired because of his sexual orientation. 3

Amy Howe, writing for ScotusBlog.org, commented:

"In their briefs in the Supreme Court, Bostock and Zarda argue that the text of Title VII clearly applies to discrimination based on sexual orientation: Someone who is fired or otherwise the victim of discrimination because of his sexual orientation -- in their cases, for being men who are attracted to men -- is undoubtedly a victim of discrimination because of his sex. After all, they reason, a woman would not have been fired for being attracted to men. Moreover, Title VII also bars employers from discriminating against individuals who do not conform to conventional gender stereotypes such as the idea that women should be attracted to men and men should be attracted to women," 3

More than 35 "friend of the court" briefs were filed in support of Bostock and Zarda. One included a submission by 206 companies! There were just over 25 briefs that opposed the defendants, including one from the Trump administration which took a very narrow view of the meaning of "sex" in the Civil Rights Act.

Usually SCOTUS's rulings involving sexual matters are decided by a 5 to 4 vote: All four liberal Justices on the Court tend to vote as a group, and the four conservative Justices vote in the opposite direction. A single swing Justice issues the deciding vote. However, this case was a rare exception. It was decided with a 6 to 3 vote. Conservative Justice Neil Gorsuch joined Chief Justice John Roberts and the court's four liberal justices. The remaining three Justices -- all reliably conservative -- voted against it. 1

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Justice Neil Gorsuch wrote:

"Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law." 1

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Reactions from news outlets, religious groups, and LGBT groups:

During the fall of 2019, Laura Thompson, writing in Mother Jones, said:

"According to the Movement Advancement Project, a nonprofit think tank that studies local, state and federal LGBTQ policies across the country, only 48 percent of LGBTQ Americans live in states that have employment non-discrimination laws that explicitly apply to them" prior to the High Court's mid-2020 ruling." 2

Russell Moore of the Southern Baptist Convention wrote on his website:

"The ruling … will have seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles, about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality." 4

Alphonso David, president of the Human Rights Campaign, said that the court's ruling is:

"... a landmark victory [for gay and transgender rights]. The Supreme Court's ruling, should hardly be surprising, given how much has changed culturally on the meanings of sex and sexuality. That the 'sexual revolution' is supported here by both 'conservatives' and 'progressives' on the court should also be of little surprise to those who have watched developments in each of these ideological corners of American life."

Tony Perkins, president of the Family Research Council, said:

"Allowing judges to rewrite the Civil Rights Act to add gender identity and sexual orientation as protected classes poses a grave threat to religious liberty. We've already witnessed in recent years how courts have used the redefinition of words as a battering ram to crush faith-based businesses and organizations." 4

The conservative Christian site LifeSiteNews wrote:

“Conservatives warn that today’s ruling will not merely protect homosexual or gender-confused Americans from tangible harm. Rather, it will require churches to recognize same-sex “marriages”; force photographers, florists, and bakers to participate in same-sex “weddings”; compel employers to fund drugs and surgeries to help people imitate members of the opposite sex; and make women and girls to share sleeping quarters, showers, changing areas, and restrooms with gender-confused males (or men simply claiming trans status to get close to vulnerable women).”

The term "gender confused" refers to a widespread belief among many conservative Christians that transgender persons are simply confused about their gender and can be cured through therapy. However, some scientific researchers have traced the conflict between biological sex and gender identification of transgender persons to physical structures in their brain.

Kelly Shackelford, president of First Liberty Institute,commented.

"We are grateful that the Supreme Court was clear in the opinion that this federal statute does not overrule peoples’ religious freedoms. We will find out in the very near future whether this is a hollow promise or a truthful assurance that the religious liberty of all Americans will be protected."

Unfortunately, the term "religious freedom" has two very different definitions. Many religious liberals interpret it as granting people freedom to follow their religious beliefs concerning God, humanity, and the rest of the universe. Many conservatives define it as including the freedom of religious persons to discriminate against sexual minorities and other groups in employment and in providing services.

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Reactions from the Court Justices and News media:

Writing for the majority, Justice Gorsuch -- one of two nominees by President Trump on the court -- said:

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." 1

Justice Gorsuch acknowledged the congressional members who supported Title VII 56 years ago might not have expected the court's ruling, but he said:

"The limits of the drafters' imagination supply no reason to ignore the law's demands. ... An employer who fires a male employee for an attraction to men while tolerating it in a female worker is guilty of [sexual] discrimination. [The male worker's] "sex plays an unmistakable and impermissible role in the discharge decision."

Justice Alito took issue with the court's opinion in a sharp dissent, describing it as "legislation" instead of a "judicial opinion. ... A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. [T]he question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not."

On 2020-JUN-15, Margot Sanger-Katz and Erica L. Green of the New York Times wrote:

"The administration has been working to pursue a narrow definition of sex as biologically determined at birth, and to tailor its civil rights laws to meet it. Access to school bathrooms would be determined by biology, not gender identity. The military would no longer be open to transgender service members. Civil rights protections would not extend to transgender people in hospitals and ambulances.

But the administration’s definition is now firmly at odds with how the court views 'sex' discrimination. In each of those settings, transgender Americans now probably have a stronger case to bring before the courts.

'Any law, and I think there are dozens, that says you can’t discriminate because of sex is going to have a reckoning with this ruling,” said Paul Smith, a professor at Georgetown Law School, who argued the landmark gay rights case Lawrence v. Texas before the Supreme Court in 2003'." 5 That case legalized private same-sex sexual activity across the U.S.

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A second major decision by the US Supreme Court during the same week:

The U.S. Supreme Court issued a major ruling that preserves the "Deferred Action for Childhood Arrivals" (DACA) program. This program protects the "Dreamers" -- children of an average of 7 who were brought into the U.S. informally and lack citizenship status. More information.

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2020-JUN-29: Trump Administration revoked health care protections for transgender persons:

Time magazine reported that the new regulation defines "gender" as a person's biological sex. President Obama had earlier protected transgender individuals by defining "gender" as one's internal sense of being male, female, neither, or both.

Fatima Goss Graves, president of the National Women’s Law Center, said:

"No one should fear being turned away by a medical provider because of who they are or the personal health decisions they have made."

Both the Law Center and the American Civil Liberties Union are considering legal action against the regulation.

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