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Gender Identity and in Today’s Workplaces, Schools, Shelters, and Other Environments: An Overview

Christine Michelle Duffy, Esq. Pro Bono Partnership Parsippany, NJ

Editor-in-Chief, AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE (Bloomberg BNA 2014) www.bna.com/bnabooks/giso

Member, Board of Visitors, Fenway Health ______

Updated as of May 28, 2015

Please Note: This handout is provided as a general informational service to the attendees of this Pro Bono Partnership webinar. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does this handout create an attorney-client relationship. You should seek advice based on your particular circumstances from an independent legal advisor.

Copyright Notice: Copyright 2016 Christine Michelle Duffy. All rights reserved. No further use, copying, dissemination, distribution, or publication is permitted without the express written permission of the author.

Handout: Mary R. Lauby (Executive Director) & Maureen L. Gallagher (Director of Policy), from Jane Doe Inc. – The Massachusetts Coalition Against Sexual Assault and Domestic Violence, The “Bathroom Bill” Security Concerns Debunked, Chapter 42 in GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE

1 FYI: Gender-affirmed and/or gender diverse = Transgender

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June 26

Lawrence v. Texas (June 26, 2003)1

U.S. v. Windsor (June 26, 2013)2

Obergefell v. Hodges (June 26, 2015)3

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.

—Justice Anthony M. Kennedy

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1 Lawrence v. Texas, 539 U.S. 558 (2003), at www.supremecourt.gov/opinions/boundvolumes/539bv.pdf, www.oyez.org/cases/2002/02- 102, and www.lambdalegal.org/in-court/cases/lawrence-v-texas.

2 United States v. Windsor, 570 U.S. ---, 133 S. Ct. 2675, 118 FEP 1417 (2013), at www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf, www.oyez.org/cases/2012/12-307, www.scotusblog.com/case-files/cases/windsor-v-united-states-2, and www.glad.org/doma/documents.

3 Obergefell v. Hodges, 576 U.S. ---, 135 S. Ct. 2584, 99 Empl. Prac. Dec. (CCH) ¶45,341

(2015), at www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf, 2 www.oyez.org/cases/2014/14-556, www.scotusblog.com/case-files/cases/obergefell-v- hodges, and www.glad.org/work/cases/deboer-v.-snyder.

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OUTLINE OF TOPICS COVERED IN THIS HANDOUT

Overview of GISO Employment Law

I. Federal Laws Relating To Employment Discrimination

 Title VII of the (Title VII): Discrimination Based on “Sex”

 Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973: Discrimination Based on “Disability”

 Federal Equal Protection

II. State Laws Relating To Employment Discrimination

III. Shifting Political Sands

IV. Additional Evidence That The Tide Has Turned

Recent Federal Government Developments Relating To Gender Identity and Transgender/Gender-Affirmed/Gender-Diverse People

Information Relating To: GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE

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OVERVIEW OF GISO EMPLOYMENT LAW

I. FEDERAL LAWS RELATING TO EMPLOYMENT DISCRIMINATION

 Title VII of the Civil Rights Act of 1964 (Title VII): Discrimination Based on “Sex”

o As explained by U.S. Equal Employment Opportunity Commission (EEOC) Commissioner Chai R. Feldblum in Chapter 39 (Law and Culture in the Making of Macy v. Holder)4 and by Christine Michelle Duffy and Robyn B. Gigl in

3 4 Chapter 39 is available at http://chaifeldblum.com/wp-content/uploads/2015/10/CH39-Law- and-Culture-in-the-Making-of-Macy-v.-DOJ.pdf.

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Chapter 14 (Title VII of the Civil Rights Act of 1964) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE, Title VII litigation has gone through three stages of development:

o The Beginning: The Statute Can’t Possibly Mean What It Says

• Initially, discrimination based on “sex” was limited to just discrimination against a woman as compared to a man, or vice versa, and nothing else. For example, judges held that Title VII did not bar:

• Discrimination against pregnant women or married women

• Paying higher wages to married men (because they were the breadwinners)

• Not hiring female applicants with preschool-age children

• Terminating just women who had extramarital affairs and/or children out of wedlock

• Paying female employees a lesser monthly pension benefit because women, on average, live longer than men

• The EEOC and the courts were extremely hostile to claims that involved any mention of an employee’s gender identity, homosexuality, sexual orientation, or transsexualism

• Grossman v. New Jersey Commissioner of Education, EEOC Decision No. 75-030 (CCH) ¶6499 (EEOC Sept. 24, 1974) (overruled by Macy v. Holder, No. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012)), which held that Title VII’s prohibition against sex discrimination did not protect an employee terminated because of a sex reassignment surgery.

• Grossman v. Bernards Township Board of Education, 11 FEP 1196, 1198, 1975 WL 302, at *4 (D.N.J. Sept. 10, 1975), aff’d without opinion, 538 F.2d 319, 13 FEP 1360 (3d Cir.), cert. denied, 429 U.S. 897 (1976), where Judge George Herbert Barlow observed that “[Paula Grossman] was discharged by the defendant school board not because of her status as a female, but rather because of her change in sex from the male to the female gender.”5

4 5 Paula Grossman is the subject of two essays in GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE. In Chapter 4, The Shattering of

Page Page Illusion: The Case of Paula Grossman, Pioneering Transgender Plaintiff, Richard

• Ulane v. Eastern Airlines, 581 F. Supp. 821, 823, 825, 35 FEP 1332, 1333, 1335 (N.D. Ill. 1983), rev’d, 742 F.2d 1081, 35 FEP 1348 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (emphasis added), where Judge John F. Grady observed:

Prior to my participation in this case, I would have had no doubt that the question of sex was a very straightforward matter of whether you are male or female. That there could be any doubt about that question had simply never occurred to me. I had never been exposed to the arguments or to the problem. After listening to the evidence in this case, it is clear to me that there is no settled definition in the medical community as to what we mean by sex.

. . . .

I find by the greater weight of the evidence that sex is not a cut-and-dried matter of chromosomes, and that while there may be some argument about the matter in the medical community, the evidence in this record satisfies me that the term, “sex,” as used in any scientific sense and as used in the statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII.

• Ulane v. Eastern Airlines, 742 F.2d 1081, 1085–1087, 35 FEP 1348, 1351–53 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (footnote omitted and emphasis added), where the U.S. Court of Appeals for the Seventh Circuit, in an opinion authored by Judge Harlington Wood, Jr., reversed Judge Grady:6

Schachter, a lawyer with Norris McLaughlin & Marcus in Bridgewater, NJ, discusses representing Paula in state court litigation after Paula was fired. In Chapter 5, Why the Fuss? My Best Grammar School Teacher Was Fired Simply Because She Was a “Transsexual”, Scott Keeler, a photojournalist for the Tampa Bay Times, discusses how Paula’s grammar school students, including Scott, were adversely impacted by the termination. In an interesting twist, it was Scott’s father who terminated Paula.

5 6 Other judges have favorably cited Judge Grady’s analysis. See, e.g., Schroer v. Billington, 424 F. Supp. 2d 203, 212–13, 97 FEP 1506, 1512–13 (D.D.C. 2006) (“Without

Page Page good reasons to oppose it, and with numerous courts now joining its conclusion – albeit

The total lack of legislative history supporting this sex amendment coupled with the circumstances of the amendment’s adoption clearly indicates that Congress never considered nor intended that this 1964 legislation apply to anything other than the traditional concept of sex. Had Congress intended more, surely the legislative history would have at least mentioned its intended broad coverage of homosexuals, transvestites, or transsexuals, and would no doubt have sparked an interesting debate. There is not the slightest suggestion in the legislative record to support an all-encompassing interpretation.

. . . .

Congress has a right to deliberate on whether it wants such a broad sweeping of the untraditional and unusual within the term “sex” as used in Title VII. Only Congress can consider all the ramifications to society of such a broad view. . . .

. . . .

Ulane is entitled to any personal belief about her sexual identity she desires. After the surgery, hormones, appearance changes, and a new Illinois birth certificate and FAA pilot’s certificate, it may be that society, as the trial judge found, considers Ulane to be female. But even if one believes that a woman can be so easily created from what remains of a man, that does

under the Price Waterhouse framework – it may be time to revisit Judge Grady's conclusion in Ulane I that discrimination against transsexuals because they are transsexuals is ‘literally’ discrimination ‘because of...sex.’ . . . That approach strikes me as a straightforward way to deal with the factual complexities that underlie human sexual identity. These complexities stem from real variations in how the different components of biological sexuality – chromosomal, gonadal, hormonal, and neurological – interact with each other, and in turn, with social, psychological, and legal conceptions of gender.”); Fabian v. Hospital of Central Connecticut, --- F. Supp. ---, 128 FEP 1786, 1798, 2016 WL 1089178, at *12 (D. Conn. Mar. 18, 2016) (“Judge Grady’s analysis was correct. The narrower view

relies on the notion that the word “sex” simply and only means ‘male or female.’ That notion 6 is not closely examined in any of the cases, but it is mistaken.”), at https://ecf.ctd.uscourts.gov/cgi-bin/show_public_doc?2012cv1154-58

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not decide this case. If Eastern had considered Ulane to be female and had discriminated against her because she was female (i.e., Eastern treated females less favorably than males), then the argument might be made that Title VII applied, . . . but that is not this case. It is clear from the evidence that if Eastern did discriminate against Ulane, it was not because she is female, but because Ulane is a transsexual—a biological male who takes female hormones, cross- dresses, and has surgically altered parts of her body to make it appear to be female.

o The Middle: Maybe the Statute Means a Bit of What It Says

• Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 49 FEP 954, 963 (1989) (emphasis added),7 where Justice William J. Brennan, Jr., observed:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

• Oncale v. Sundowner Offshore Services, 523 U.S. 75, 79, 76 FEP 221, 223 (1998) (emphasis added),8 where Justice Antonin Scalia observed:

[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

7 The Price Waterhouse decision is at http://caselaw.findlaw.com/us-supreme- court/490/228.html and www.oyez.org/cases/1988/87-1167.

7 8 The Oncale decision is at www.supremecourt.gov/opinions/boundvolumes/523bv.pdf and www.oyez.org/cases/1997/96-568.

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 Note: The Supreme Court created a higher burden of proof in cases involving same-sex sexual harassment because in different-sex sexual harassment cases, sexual orientation is “hiding in plain view”9

 As Christine Michelle Duffy and Robyn B. Gigl observed in Chapter 14 (Title VII of the Civil Rights Act of 1964) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE:

Why was it reasonable for the Court [in Oncale] “to assume [. . . sexual] proposals would not have been made to someone of the same sex?” Because the Court assumed that a harasser will seek a heterosexual encounter based on the Court’s implicit acceptance of the majoritarian social expectation—the gender stereotype—that was prevalent at the time of its decision (and still is the expectation, to a lesser extent today) that males engage in sex with women and vice versa. That is, in the case of different-sex sexual harassment, the male harasser is presumed to conform to the gender stereotype or gender role premised on heterosexuality being the acceptable social norm. The Court also made it irrelevant whether the normative male harasser would harass men as there was no requirement for a female plaintiff . . . to prove that a male harasser . . . was heterosexual or that he did not harass men. Based on these implicit gender stereotypes, one safely could assume prior to Oncale that a male who engaged in sexually charged behavior with both men and women might well have his conduct treated as sexual harassment with respect to women and mere horseplay or acceptable behavior among men—because he was assumed to be a heterosexual male. [Page 14-209 (footnote omitted)]

• Smith v. City of Salem, 378 F.3d 566, 574–75, 94 FEP 273, 279– 80 (6th Cir. 2004) (citation omitted and emphasis added), where the

8 9 Zachary A. Kramer, Heterosexuality and Title VII, 103 NW. U. L. REV. 205, 229 (2009), at http://ssrn.com/abstract=1103095.

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U.S. Court of Appeals for the Sixth Circuit, in an opinion written by Judge R. Guy Cole, Jr., observed:

After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup[] is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.

Yet some courts have held that this latter form of discrimination is of a different and somehow more permissible kind. For instance, the man who acts in ways typically associated with women is not described as engaging in the same activity as a woman who acts in ways typically associated with women, but is instead described as engaging in the different activity of being a transsexual (or in some instances, a homosexual or transvestite). Discrimination against the transsexual is then found not to be discrimination “because of . . . sex,” but rather, discrimination against the plaintiff’s unprotected status or mode of self-identification. In other words, these courts superimpose classifications such as “transsexual” on a plaintiff, and then legitimize discrimination based on the plaintiff’s gender non- conformity by formalizing the nonconformity into an ostensibly unprotected classification. . . .

. . . .

Such analyses cannot be reconciled with Price Waterhouse, which does not make Title VII protection against sex stereotyping conditional or provide any reason to exclude Title VII coverage for non sex- stereotypical behavior simply because the person is a transsexual. As such, discrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her [assigned-at-birth] gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman. Sex stereotyping based

on a person’s gender non-conforming behavior is 9 impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not Page Page

fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.

• EEOC v. Boh Bros. Construction Co., 731 F.3d 444, 120 FEP 15 (5th Cir. 2013) (en banc), where the U.S. Court of Appeals for the Fifth Circuit, in an opinion authored by Judge Jennifer Walker Elrod, held that a jury had a sufficient basis to conclude that iron worker Kerry Woods was subjected to severe or pervasive same- sex sexual harassment at the hands of Chuck Wolfe, the superintendent of an all-male crew. As Christine Michelle Duffy and Robyn B. Gigl explained in Chapter 14 (Title VII of the Civil Rights Act of 1964) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE, the Fifth Circuit

concluded that “the EEOC offered evidence that Wolfe . . . thought that Woods was not a manly-enough man and taunted him tirelessly. Wolfe called Woods sex- based epithets like ‘fa—ot,’ ‘pu—y,’ and ‘princess,’ often ‘two to three times’ per day. Wolfe himself admitted that these epithets were directed at Woods’s masculinity.” “These insults lend themselves to a reasonable inference on the part of the jury that Wolfe viewed Woods as insufficiently masculine.” The insults, coupled with the “sexualized acts” Wolfe engaged in were sufficient to bring Wolfe’s conduct “far beyond isolated insults and occasional horseplay.” As a result, “a jury [reasonably] could view Wolfe’s behavior as an attempt to denigrate Woods because—at least in Wolfe’s view—Woods fell outside of Wolfe’s manly-man stereotype.” [Page 14-120 (footnotes omitted and emphasis added)]

o The Present: The Statute Means What It Says

• Some tribunals—particularly the EEOC—have begun to recognize that adverse feelings toward LGBT people ultimately are premised on stereotypes regarding the acceptable gender roles for men and women, including “proper” roles in the context of dating, marriage, and sexual activity

• The discrimination may be linked to comments or views about the person’s gendered appearance or about stereotypes of sexuality linked to a person’s sex (e.g., a man

10 should only form physical and emotional attachments to a woman) and/or marriage (e.g., a woman should marry a man) Page Page

• Religious beliefs about same-sex attraction are fundamentally tied to gender stereotypes. As Rev. Jean Southard10 observed in Chapter 45 (Faith Communities and LGBT Justice) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE:

For LGBT individuals, religious affiliation may be problematic because many were raised in faith communities where they were taught that to deviate from the gender roles accepted by their faith communities is to be unacceptable to God. In these particular communities, living one’s life as a gay or lesbian person is a prime example of deviating from acceptable gender roles for men and women in terms of dating, marriage, sexual activity, and raising children. [Page 45-4]

• For gender-affirmed and gender diverse individuals, the discrimination may be linked to stereotypes about the physical manifestations of gender identity (e.g., a person assigned the sex of male at birth should not have a body or appearance congruent with that of someone who is female)

10 Rev. Southard was tried by the Presbyterian Church (U.S.A.) for having performed an unauthorized same-sex marriage. She was acquitted after an arduous, three-year journey through the church’s judicial process. See Thy Will Be Done: A Transsexual Woman’s Journey Through Family and Faith, a documentary film by Alice Dungan Bouvrie (Mineral King Productions & New Day Films 2011), at www.worldcat.org/title/thy-will-be-done-a- transsexual-womans-journey-through-family-and-faith/oclc/760903047; Michael J. Adee, Breaking News! Rev. Jean Southard Acquitted by GAPJC in Marriage Equality Trial, More Light Presbyterians (Feb. 8, 2011), http://archive.mlp.org/article.php/SouthardMarriageEquality or http://presbyvoicesforjustice.org/2010/marriage_equality_2010.htm; Jerry L. Van Marter, GAPJC Reinstates “Not Guilty” Verdict in Southard Same-Sex Marriage Case, Presbyterian Church (U.S.A.) (Feb. 9, 2011), at www.pcusa.org/news/2011/2/9/gapjc-reinstates-not- guilty-verdict-southard-same-; Jean K. Southard v. Presbyterian Church (U.S.A.) Through the Presbytery of Boston, Disciplinary Case No. GAPJC 220-02 (Permanent Judicial Commission of the General Assembly of the Presbyterian Church (U.S.A.) Feb. 7, 2011) (Decision and Order), at http://oga.pcusa.org/media/uploads/oga/pdf/pjc22002.pdf.

On March 17, 2015, the Presbyterian Church (U.S.A.) approved a change to its BOOK OF ORDER to officially recognize same-sex marriages. See Presbyterian Church (U.S.A.) Approves Marriage Amendment, Presbyterian Church (U.S.A.) (Mar. 17, 2015), at www.pcusa.org/news/2015/3/17/presbyterian-church-us-approves-marriage-amendment; Advisory Opinion: Approved Amendment of W-4.9000, Presbyterian Church (U.S.A.) (Mar.

17, 2015) (FAQs re impact of amendment), at 11 http://oga.pcusa.org/site_media/media/uploads/oga/pdf/advisory_opinion_marriage_passag e.pdf.

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or stereotypes about the permanence of an individual’s assigned sex (e.g., that persons should not change their sex from their assigned birth sex)

• Schroer v. Billington, 577 F. Supp. 2d 293, 306– 307, 104 FEP 628, 639 (D.D.C. 2008) (emphasis added), where Judge James Robertson observed:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies 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. Discrimination “because of religion” easily encompasses discrimination because of a change of religion. But in cases where the plaintiff has changed her sex, and faces discrimination because of the decision to stop presenting as a man and to start appearing as a woman, courts have traditionally carved such persons out of the statute by concluding that “transsexuality” is unprotected by Title VII. In other words, courts have allowed their focus on the label “transsexual” to blind them to the statutory language itself.

• Glenn v. Brumby, 663 F.3d 1312, 1316–17, 113 FEP 1543, 1546 (11th Cir. 2011) (emphasis and footnote added), at www.lambdalegal.org/in-court/legal- docs/glenn_ga_20111206_decision-us-court-of- appeals, where Judge Rosemary Barkett observed:

A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. . . .

Accordingly, discrimination against a

transgender individual because of her 12 Page Page

gender-nonconformity is sex discrimination . . . .11

• Macy v. Holder, No. 0120120821, 2012 WL 1435995, at *1, 11 (EEOC Apr. 20, 2012), at www.eeoc.gov/decisions/0120120821%20Macy%20v %20DOJ%20ATF.txt or www.washingtonblade.com/content/files/2012/04/909 10497-EEOC-Ruling.pdf, where the EEOC held:

[D]iscrimination based on gender identity, change of sex, and/or transgender status is . . ., by definition, discrimination “based on . . . sex,” and such discrimination therefore violates Title VII.

• Note: The analogy to a change in religion was also relied on in a 2001 decision by the Massachusetts Commission Against Discrimination. In holding that discriminating against a transsexual is discrimination based on sex in violation of the Massachusetts’ fair employment practices law, the Commission observed:

While the current state of federal law is that discrimination based on change of sex is not the same thing as discrimination based on sex, the rationale of these cases is utterly unsatisfying to us.

Millett v. Lutco, Inc., 23 Mass. Discr. L. Rep. 231, 2001 WL 1602800, at *5 (Comm’n Ag. Discr. Oct. 10, 2001).

• Lusardi v. McHugh (Dept. of the Army), No. 0120133395, at 9–11, 13, 2015 WL 1607756, at *8– 10 (EEOC Apr. 1, 2015) (emphasis added), at www.eeoc.gov/decisions/0120133395.txt or http://transgenderlawcenter.org/wp- content/uploads/2015/04/EEOC-Lusardi-Decision.pdf, where the EEOC held:

On this record, there is no cause to question that Complainant – who was

11 Vandy Beth Glenn discusses the litigation in Chapter 6 (Glenn v. Brumby: Forty Years After

Grossman) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE 13 WORKPLACE: A PRACTICAL GUIDE, at http://vandybethglenn.com/wp/wp- content/uploads/CH06-Glenn-v.-Brumby-Glenn.pdf.

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assigned the sex of male at birth but identifies as female – is female. And certainly where, as here, a transgender female has notified her employer that she has begun living and working full- time as a woman, the agency must allow her access to the women's restrooms.

. . . .

The Agency states that it would not allow Complainant to use the common female restroom because co-workers would feel uncomfortable with this approach. We recognize that certain employees may object – some vigorously – to allowing a transgender individual to use the restroom consistent with his or her gender identity. Some, like the Agency decision makers in this case, may not believe a transgender woman is truly female, and thus entitled or eligible to use a female bathroom, unless she has had gender reassignment surgery. Some co-workers may be confused or uncertain about what it means to be transgender, and/or embarrassed or even afraid to share a restroom with a transgender co-worker.

But supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort. . . . .

. . . .

But the harm to the Complainant goes beyond simply denying her access to a resource open to others. The decision to restrict Complainant to a [single user]

restroom isolated and segregated her from 14 other persons of her gender. It perpetuated the sense that she was not worthy of equal Page Page

treatment and respect . . . . The Agency's actions deprived Complainant of equal status, respect, and dignity in the workplace, and, as a result, deprived her of equal employment opportunities. In restricting her access to the restroom consistent with her gender identity, the Agency refused to recognize Complainant's very identity. Treatment of this kind by one's employer is most certainly adverse.

o The Future: Recognition That Gender Is Not Binary

o The fifth edition of the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-5), published in 2013, recognizes that normal “[e]xperienced gender may include alternative gender identities beyond binary stereotypes” and replaces the phraseology “the other sex” with “the other gender” or “some alternative gender.” American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 452–53, 814 (5th ed. 2013) (emphasis added).

o The India Supreme Court, in its 2014 decision in National Legal Services Authority v. Union of India, Writ Petition (Civil) No. 400 of 2012, at ¶¶64–65, 76–77, 129 (India Sup. Ct. Apr. 15, 2014) (emphasis added), at http://supremecourtofindia.nic.in/outtoday/wc40012.pdf, which held that transgender individuals have a constitutional right to self-identify and present as female, male, or a “third gender”

• The Court relied on Doe v. Yunits, 2000 WL 33162199 (Mass. Super. Ct. Oct. 11, 2000), aff’d sub nom. Doe v. Brockton Sch. Comm., 2000 WL 33342399 (Mass. App. Ct. Nov. 30, 2000), subsequent proceeding sub nom. Doe v. Yunits, 15 Mass. L. Rep. 278, 2001 WL 664947 (Super. Ct. Feb. 26, 2001)

o As Christine Michelle Duffy and Robyn B. Gigl observed in Chapter 14 (Title VII of the Civil Rights Act of 1964) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE:

[T]he evolving medical understanding of the mosaic, nonbinary nature of sex, coupled with the social reality that gender diversity/nonconformity is here to stay, likely will require courts eventually to hold that discrimination because of sex is not merely discrimination against females when compared to males,

or vice versa, but rather

15 [includes] discrimination against one representation of gender as compared to other representations of gender on a gender continuum—similar Page Page

to the way claims of color discrimination can be established based on differences in skin tone among individuals from the same race or ancestry. [Page 14-8 (footnote omitted and emphasis added)]

 Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973: Discrimination Based on “Disability”

o Both laws expressly exclude the following conditions:

o “For purposes of the definition of ‘disability’ . . . , homosexuality and bisexuality are not impairments and as such are not disabilities . . . .” [42 U.S.C. §12211(a) (emphasis added)]

o “[T]he term ‘disabled’ or ‘disability’ shall not apply to an individual solely because that individual is a transvestite.” [42 U.S.C. §12208 (emphasis added)]

o “Certain conditions”: “[T]he term ‘disability’ shall not include

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(2) compulsive gambling, kleptomania, or pyromania; or

(3) psychoactive substance use disorders resulting from current illegal use of drugs.” [42 U.S.C. §12211(b) (emphasis added)]

o Kate Lynn Blatt v. Cabela's Retail, No. 5:14-CV-04822 (U.S. Dist. Ct. E.D. Pa.)

o August 15, 2014: Complaint filed:

• Alleged violations of Title VII and ADA

• Alleged disability is gender dysphoria

o October 22, 2014 and November 18, 2014: Cabela’s moved to dismiss the case

o January 20, 2015: Blatt filed a brief arguing that the ADA’s “transgender exclusions” violate the Equal Protection Clause of the Fifth Amendment to the U.S. Constitution – the brief is at

www.glad.org/uploads/docs/cases/blatt-v-cabelas/blatt-v-cabelas-plaintiff- 16 memo-in-opposition-to-defendants-partial-motion-to-dismiss-01-20- 2015.pdf Page Page

o January 23, 2015: The GLBTQ Legal Advocates & Defenders (formerly known as the Gay & Lesbian Advocates & Defenders (GLAD)), Mazzoni Center, National Center for Lesbian Rights, National Center for Transgender Equality, National LGBTQ Task Force, and Transgender Law Center filed an amici brief in support of Blatt – the brief and appendix are at www.glad.org/uploads/docs/cases/blatt-v-cabelas/blatt-v-cabelas-glad- amicus-brief.pdf and www.glad.org/uploads/docs/cases/blatt-v- cabelas/blatt-v-cabelas-glad-amicus-brief-appendix.pdf

o On November 16, 2015, the U.S. Department of Justice (DOJ) filed a Statement of Interest (SOI), at www.glad.org/uploads/docs/cases/blatt-v- cabelas/blatt-v-cabelas-doj-soi-11-16-15.pdf, setting forth the following position of the United States:

Th[e] statutory and regulatory background makes clear that, as used in the GID Exclusion, the phrase “resulting from a physical impairment” broadly encompasses GIDs rooted in biology or physiology, even if the precise etiology is not yet definitively understood.12 . . . In light of the evolving scientific evidence suggesting that gender dysphoria may have a physical basis, along with the remedial nature of the ADA and the relevant statutory and regulatory provisions directing that the terms “disability” and “physical impairment” be read broadly, the GID Exclusion should be construed narrowly such that gender dysphoria falls outside its scope.” [SOI, at pages 3, 5 (footnote added)]

o Blatt, amici, and the DOJ relied on the ADA legislative history, the extensive discussion of the etiology of gender dysphoria, and the arguments set forth by Christine Michelle Duffy in Chapter 16 (The Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE, at www.bna.com/uploadedFiles/BNA_V2/Legal/Products/Books/Employment

12 See also Hubbard v. Day & Zimmermann Hawthorne Corp., 31 A.D. Cases 685, 689 & n. 6, 2015 WL 1281629, at *4-5 & n.6 (D. Nev. 2015) (in denying defendant employers’ motion for summary judgment, the court held that (1) a hormonal imbalance that “‘cause[s] a change in her mood balance, an endocrine function, which in turn cause[s] lack of control over emotions, adversely affected Plaintiff’s comprehension and ability to interact with others, with extreme mood swings, and cause[s] insomnia with resulting fatigue,’” could be an ADA-protected disability and (2) defendant’s argument that plaintiff’s symptoms cannot be deemed disabling unless “a physician is … certain as to the reason for the symptoms” “is absurd. Science does what it can, but not all of the mysteries of the human body have been

solved. Sometimes a doctor cannot determine what causes a disabling symptom, but that 17 does not mean the symptom does not exist.”), at http://cases.justia.com/federal/district- courts/nevada/nvdce/3:2012cv00681/91869/32/0.pdf.

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_and_Labor_Law/CH16%20Americans%20with%20Disabilities%20(Duffy) .pdf

o As of May 28, 2016, the trial court has not issued its decision on this issue

o For updates, see GLAD’s web page on the case, at www.glad.org/work/cases/blatt-v-cabelas-retail-inc

 Federal Equal Protection

o 42 U.S.C. §1983 or Section 1983 Claims – statutory liability for the deprivation of constitutional rights

o Section 1 of the Fourteenth Amendment to the U.S. Constitution: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

o Fifth Amendment: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .”

o Unlike Title VII, there is no need to point to an expressly enumerated protected characteristic (e.g., sex) – the Equal Protection Clause protects similarly situated individuals from invidious and irrational discrimination

o The U.S. Supreme Court has yet to articulate what level of “scrutiny” applies to classifications based on sexual orientation:

• Lowest level: rational basis – applies, e.g., to classifications based on disability

• Middle level: intermediate scrutiny – applies, e.g., to classifications based on sex

• Highest level: strict scrutiny – applies, e.g., to classifications based on race

• Some have suggested that with respect to sexual orientation the Supreme Court has used “rational basis with a bite”

• Lower federal courts have applied differing levels of scrutiny to classifications based on sexual orientation, with the more recent cases applying intermediate scrutiny

In November 2015, a federal court held that “transgender people are a o

18 quasi-suspect class” and, therefore, intermediate scrutiny applies to equal protection claims based on transgender status. Adkins v. City of New York, Civil Action No. 14–cv–7519 (JSR), --- F. Supp.3d ---, 2015 WL Page Page

7076956, at *4 (S.D.N.Y. Nov. 16, 2015), at http://lawprofessors.typepad.com/files/adkins.pdf. This lawsuit settled in March 2016.

o See Taylor Flynn, with Jennifer L. Levi and Irina Vaynerman, Federal Equal Protection, in GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE, at http://digitalcommons.law.wne.edu/facschol/299 or http://ssrn.com/abstract=2609113

II. STATE LAWS RELATING TO EMPLOYMENT DISCRIMINATION

 Nineteen (19) States, District of Columbia, Puerto Rico, and over 200 local counties/municipalities expressly prohibit discrimination based on gender identity/expression or sexual orientation:

o California o Colorado o Connecticut o Delaware o Hawai‘i o Illinois o Iowa o Maine o Maryland o Massachusetts o Minnesota o Nevada o New Jersey o New Mexico o Oregon o Rhode Island o Utah – law enacted in 2015

“[The] Church [of Jesus Christ of Latter-day Saints] Applauds Passage of Utah Senate Bill 296” [(Mar. 12, 2015), at www.mormonnewsroom.org/article/church-issues- statement-on-utah-house-bill-296]

o Vermont o Washington

 Three (3) Additional States expressly prohibit discrimination based on sexual

:

19 orientation

o New Hampshire Page Page

o New York o Wisconsin

 Timeline Factoids:

o Laws Expressly Barring Gender Identity/Expression Discrimination: The laws in 18 of the 19 states, the District of Columbia, and Puerto Rico were enacted and/or went into effect during the 15-year period from 2001 to 2015. Minnesota’s law went into effect in 1993.

o Laws Expressly Barring Sexual Orientation Discrimination: Prior to 2001, it took 23 years (1977 to 1999) before just 11 states (including Minnesota) and the District of Columbia had enacted their laws, and an additional 16 years (2000 to 2015) to pass those laws in the remaining 11 states and Puerto Rico.

 Four (4) Additional States prohibit discrimination against transgender individuals as the result of case law or administrative guidance relating to disability and/or sex discrimination:

o Florida (conflicting decisions relating to gender dysphoria) o New Hampshire (gender dysphoria) o New York (gender dysphoria, and gender identity as part of “sex”) o Pennsylvania (conflicting decisions relating to gender dysphoria)

 Other possibly applicable protected characteristics in some jurisdictions: personal appearance; civil union/domestic partner/marital status; and off-duty conduct

III. SHIFTING POLITICAL SANDS

 In 2012, Vice President , whose public support for same-sex marriage forced President Obama to publicly support such marriages a few days later,13 called the fight for transgender rights the “civil rights issue of our time.”14

13 See Steve Clemons, No, Biden Never Apologized to Obama for Getting Out Ahead on Gay Marriage, HUFFPOST POLITICS (July 13, 2012) (“[W]hen the history of gay rights and the Obama administration is written and the president’s pivotal leadership on Don’t Ask Don’t Tell is explored, along with the Obama team’s decision to abandon legal defense of the (DOMA), and the president’s important endorsement of gay marriage, it will be contestable (and wrong) to include the vignette that Biden apologized to Obama for a principled and important civil rights view that Biden personally held.”), at

www.huffingtonpost.com/steve-clemons/no-biden-never-apologized_b_1671800.html; 20 Jennifer Bendery, Obama: Biden “Got Out A Little Bit Over His Skis” On Gay Marriage, HUFFPOST POLITICS (May 10, 2012) (“President conceded Thursday that

Page Page Vice President Joe Biden forced his hand in endorsing same-sex marriage sooner than he

 In 2013, former President publicly expressed support for same-sex marriage.15 This represented a sea change in position for Clinton, who, while president, had signed into law both the Defense of Marriage Act (DOMA),16 which had denied legally married same-sex couples the same federal benefits afforded to married different-sex couples and permitted states to avoid recognizing same-sex marriages performed elsewhere; and the bill that codified the military’s Don’t Ask, Don’t Tell (DADT) policy,17 which provided that service members would be separated from the military if they had engaged or attempted to engage in homosexual acts, stated that they are homosexuals or bisexuals, or married or attempted to marry a person of the same sex.

 As governors change, often so do protections for LGBT individuals:

o “Arkansas Governor [Asa Hutchinson (R)] Lets Bill Become Law Barring Expanded Local Anti-Bias Ordinances” [39 DAILY LABOR REPORT A-8 (Feb. 27, 2015), at http://laborandemploymentlaw.bna.com/lerc/2453/split_display.adp?fedfid=64051 486&vname=dlrnotallissues&jd=a0g2x9a3v1&split=0]

would have preferred.”), at www.huffingtonpost.com/2012/05/10/obama-biden-gay- marriage_n_1505697.html.

14 Donovan Slack, Biden Says Transgender Discrimination “Civil Rights Issue of Our Time,” POLITICO (Oct. 30, 2012), at www.politico.com/blogs/politico44/2012/10/biden-says- transgender-discrimination-civil-rights-issue-of-our-time-147761. See also Editorial Board, The Next Civil Rights Frontier, N.Y. TIMES (July 31, 2013) (calling the efforts to provide equality to transgender students “the next civil rights frontier”), at www.nytimes.com/2013/08/01/opinion/the-next-civil-rights-frontier.html; Katy Steinmetz, The Transgender Tipping Point: America’s Next Civil Rights Frontier, TIME (June 9, 2014), at http://time.com/135480/transgender-tipping-point.

15 Bill Clinton, It’s Time to Overturn DOMA, WASH. POST (Mar. 7, 2013), at http://articles.washingtonpost.com/2013-03-07/opinions/37528448_1_doma-defense-of- marriage-act-marriage-equality; Peter Baker, Now in Defense of Gay Marriage, Bill Clinton, N.Y. TIMES (Mar. 25, 2013), at www.nytimes.com/2013/03/26/us/politics/bill-clintons- decision-and-regret-on-defense-of-marriage-act.html (noting that President Clinton first signaled his evolving views in 2009).

16 Pub. L. No. 104-199 (Sept. 21, 1996) (codified at 1 U.S.C. §7 and 28 U.S.C. §1738C).

17 National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, §571(a)(1) 21 (Nov. 30, 1993) (codified at 10 U.S.C. §654), repealed by Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, §2(f)(1)(A) (Dec. 22, 2010).

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o “Kansas Governor [Sam Brownback (R)] Signs [Executive] Order [15-02] to Revoke Job Protections for Gay State Employees . . . established by an of his predecessor, Gov. Kathleen Sebelius (D)” [29 DAILY LABOR REPORT A-6 (Feb. 12, 2015), at http://laborandemploymentlaw.bna.com/lerc/2453/split_display.adp?fedfid=63069 202&vname=dlrnotallissues&jd=a0g2k4p8x4&split=0]

o “[Massachusetts Governor] Charlie Baker [(R)] Opposes Expansion of Transgender Anti-Discrimination Rules, Supports Current Law” [MASSLIVE.COM (Dec. 16, 2014), at www.masslive.com/politics/index.ssf/2014/12/charlie_baker_opposes_expansio.h tml]

o But see “Baker Sends Signals He Wouldn’t Veto Transgender Bill” [BOSTON GLOBE (Apr. 21, 2016) (“[This] morning, Republican presidential front-runner Donald Trump said on TV that transgender people ought to be able to use whatever bathroom they feel is appropriate, apparently knocking a law in North Carolina that mandates people can use only the bathroom that matches the sex stated on their birth certificate. Asked what Baker, a Republican, thought of Trump’s remarks on NBC, [Lizzy Guyton,] a spokeswoman for the governor replied in an e-mail [that] . . . ‘Governor Baker believes people should use the restroom facility they feel comfortable using.’”), at www.bostonglobe.com/metro/2016/04/21/baker-sends-signals-won-veto- transgender-bill/sJkCWAmAEDp7tXJCrvdfTJ/story.html]

 Some conservative judges still block positive law changes:

o “[Federal] 1st Circuit [Court of Appeals] Rejects Sex-Reassignment Surgery for Michelle Kosilek” [ART LEONARD OBSERVATIONS (Dec. 21, 2014), at www.artleonardobservations.com/1st-circuit-rejects-sex-reassignment-surgery- for-michelle-kosilek; the 12/16/14 decision at http://media.ca1.uscourts.gov/pdf.opinions/12-2194P2-01A.pdf]

o On March 16, 2015, a petition for review by the U.S. Supreme Court was filed by Michelle Kosilek – see Advocates Ask Supreme Court to Hear Case Concerning Medical Care for Transgender Woman in Prison, at www.glad.org/current/item/advocates-ask-supreme-court-to-hear-case- concerning-medical-care; the petition is at www.glad.org/uploads/docs/cases/kosilek-v-spencer/cert-petition.pdf

o On May 4, 2015, the Supreme Court declined to review the First Circuit’s decision – see U.S. Supreme Court Will Not Hear Case Concerning

Medical Care of Transgender Woman in Prison, at 22 www.glad.org/current/item/supreme-court-will-not-hear-case-concerning- Page Page

medical-care; the order denying the petition is at www.supremecourt.gov/orders/courtorders/050415zor_7648.pdf

 However, other conservative judges on occasion do not block positive change:

o In Chapter 6 (Glenn v. Brumby: Forty Years After Grossman) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE, at http://vandybethglenn.com/wp/wp-content/uploads/CH06-Glenn-v.-Brumby- Glenn.pdf, Vandy Beth Glenn recounted her disappointment upon learning that one of the three judges of the U.S. Court of Appeals for the Eleventh Circuit who would be deciding whether she was impermissibly fired because of her gender identity was Judge William H. Pryor Jr.:

[He] was the one judge on the whole court I was 100 percent certain I did not want serving on our panel. Several things I knew about his biography informed my apprehension. I’ll mention two.

First, he was a George W. Bush appointee from 2004. Before his appointment to the federal bench, he was Alabama’s Attorney General, and in that role he filed an amicus brief in Lawrence v. Texas in which the Supreme Court declared that states cannot ban gay sex. Attorney General Pryor’s brief had urged the Court not to declare “homosexual sodomy as a fundamental constitutional right,” arguing that acceptance of “a constitutional right that protects ‘the choice of one’s partner’ and ‘whether and how to connect sexually’ must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.”

Second, during a contentious U.S. Senate confirmation hearing on his nomination to the Eleventh Circuit, he admitted that as a result of “a value judgment,” he and his wife rescheduled a family vacation to avoid the annual “Gay Day” at Disney World. [Page 6-5 (footnotes omitted)]

o Just a mere five days after oral argument, the Eleventh Circuit, issued its unanimous decision in favor of Vandy Beth, in Glenn v. Brumby, 663 F.3d 1312, 113 FEP 1543 (11th Cir. 2011), discussed above

IV. ADDITIONAL EVIDENCE THAT THE TIDE HAS TURNED

 Now: “Mike Bowers [Advised the Georgia Legislature]: Only Purpose of Proposed Georgia ‘Religious Freedom’ Bills Is ‘Unequivocally an Excuse to Discriminate’ Against LGBT People, Others” [GA. VOICE (Feb. 24, 2015), at

http://thegavoice.com/michael-bowers-purpose-proposed-georgia-religious-freedom- 23 bills-unequivocally-excuse-discriminate--people-others]

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o Then: Michael J. BOWERS, Attorney General of Georgia v. Michael HARDWICK, 478 U.S. 186, 190, 193–94 (1986) (subsequently overruled by Lawrence v. Texas, 539 U.S. 558 (2003)), holding that “the Federal Constitution [does not confer] a fundamental right upon homosexuals to engage in sodomy and hence . . . the laws of the [24] States[, including Georgia,] that still make such conduct illegal [are constitutional].”18

 Leyth O. Jamal v. Saks & Co., No. 4:14-cv-02782 (U.S. Dist. Ct. S.D. Tex.)

o September 30, 2014: Complaint filed – alleged violations of Title VII

o December 29, 2014: Saks moved to dismiss case

o January 20, 2015: and National Center for Lesbian Rights filed an amici brief – the brief is at http://jtweisslaw.com/wp- content/uploads/2015/01/Amicus-brief.pdf

o January 22, 2015: EEOC filed an amicus brief, arguing that “transgender discrimination” is cognizable as discrimination because of “sex” under Title VII – the brief is at http://jtweisslaw.com/wp-content/uploads/2015/01/EEOC- Brief.pdf

o January 26, 2015: U.S. Department of Justice filed a Statement of Interest on behalf of the United States of America, arguing that Title VII protects all persons, including transgender individuals, against sex discrimination in employment – the statement is at www.justice.gov/sites/default/files/crt/legacy/2015/02/27/jamalsoi.pdf

o January 26, 2015: Saks withdrew its motion to dismiss

o March 10, 2015: Case dismissed upon settlement between Jamal and Saks

*****************************************************************************

24 18 Bowers v. Hardwick, 478 U.S. 186, 193–94 (1986), at http://caselaw.findlaw.com/us- supreme-court/478/186.html or www.oyez.org/cases/1985/85-140.

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RECENT FEDERAL GOVERNMENT DEVELOPMENTS RELATING TO GENDER IDENTITY AND TRANSGENDER/GENDER-AFFIRMED/GENDER-DIVERSE PEOPLE19

1983 – 2010

• December 28, 1983: Judge John F. Grady’s decision in Ulane v. Eastern Airlines, 581 F. Supp. 821, 825, 35 FEP 1332, 1335 (N.D. Ill. 1983), rev’d, 742 F.2d 1081, 35 FEP 1348 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (emphasis added), where Judge Grady found “by the greater weight of the evidence that sex is not a cut-and-dried matter of chromosomes, and that while there may be some argument about the matter in the medical community, the evidence in this record satisfies me that the term, ‘sex,’ as used in any scientific sense and as used in the statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII.” On August 29, 1984, the Seventh Circuit Court of Appeals reversed, concluding that protecting transsexuals under Title VII would “untraditional and unusual.” Ulane v. Eastern Airlines, 742 F.2d 1081, 1086, 35 FEP 1348, 1352 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985).

• May 1, 1989: The U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 49 FEP 954 (1989),20 which held that discrimination based on sex stereotypes is sex discrimination under Title VII.

• May 20, 1996: The U.S. Supreme Court’s decision in Romer v. Evans, 517 U.S. 620, 624, 70 FEP 1180, 1183 (1996),21 which invalidated on equal protection grounds an amendment to the Colorado Constitution that “prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect . . . homosexual persons or gays and lesbians.”

19 I have taken the liberty of including in this listing (1) a few non-federal developments that I think are worthy of special note due to their transformative importance and (2) some very recent developments in the evolution of Title VII jurisprudence relating to discrimination based on sexual orientation being treated as sex discrimination.

20 The Price Waterhouse decision is at http://caselaw.findlaw.com/us-supreme- court/490/228.html and www.oyez.org/cases/1988/87-1167.

21 The Romer decision is at www.supremecourt.gov/opinions/boundvolumes/517bv.pdf, 25 www.oyez.org/cases/1995/94-1039, and www.lambdalegal.org/in-court/cases/romer-v- evans.

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• March 4, 1998: The U.S. Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75, 79, 76 FEP 221, 223 (1998),22 which held that same-sex harassment is actionable as sex discrimination under Title VII.

• February 29, 2000: The Ninth Circuit Court of Appeals’ decision in Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), which held that a transsexual is protected by the federal Gender Motivated Violence Act. The court looked to Title VII case law, noting that “‘sex’ under Title VII encompasses both sex—that is, the biological differences between men and women—and gender. Discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.” 204 F.3d at 1202.

• June 8, 2000: The First Circuit Court of Appeals’ decision in Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 214–16 (1st Cir. 2000), which held that if the defendant bank refused to give a loan application to the plaintiff, a biological male dressed in “traditionally feminine attire,” because the plaintiff’s attire “did not accord with [the plaintiff’s] male gender,” then the plaintiff would have an actionable claim of sex discrimination under the federal Equal Credit Opportunity Act.”

• June 26, 2003: The U.S. Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003),23 which invalidated on due process grounds a Texas law that criminalized consensual same-sex sexual conduct.

• August 5, 2004: The Sixth Circuit Court of Appeals’ decision in Smith v. City of Salem, 378 F.3d 566, 574–75, 94 FEP 273, 279–80 (6th Cir. 2004), which held “that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex. . . . [A] a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”

• March 31, 2006: Judge James Robertson’s first decision in Schroer v. Billington, 424 F. Supp. 2d 203, 212–13, 97 FEP 1506, 1513 (D.D.C. 2006), where Judge Robertson noted that “it may be time to revisit Judge Grady's conclusion in Ulane I that discrimination against transsexuals because they are transsexuals is ‘literally’ discrimination ‘because of . . . sex.” . . . That approach strikes me as a straightforward way to deal with the factual complexities that underlie human sexual identity. These complexities stem from

22 The Oncale decision is at www.supremecourt.gov/opinions/boundvolumes/523bv.pdf and www.oyez.org/cases/1997/96-568.

23 The Lawrence decision is at www.supremecourt.gov/opinions/boundvolumes/539bv.pdf, 26 www.oyez.org/cases/2002/02-102, and www.lambdalegal.org/in-court/cases/lawrence-v- texas.

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real variations in how the different components of biological sexuality— chromosomal, gonadal, hormonal, and neurological—interact with each other, and in turn, with social, psychological, and legal conceptions of gender.”

• April 27, 2007: Barbara Walters’ transformative one-hour 20/20 documentary, My Secret Self ... A Story of Transgender Kids, which features three gender- affirmed children and their parents. The video (see www.transkidspurplerainbow.org/im-a-girl-understanding-transgender-children (link to video within article) or www.youtube.com/watch?v=YfqmEYC_rMI&feature=player_embedded) was accompanied by several ABC News online stories: Alan B. Goldberg and Joneil Adriano, “I'm a Girl” - Understanding Transgender Children (Apr. 27, 2007) (Jazz’ story), at http://abcnews.go.com/2020/story?id=3088298; Alan B. Goldberg and Joneil Adriano, “I Want to Be Seen as Male” (Apr. 26, 2007) (Jeremy’s story), at http://abcnews.go.com/2020/story?id=3077906; Jeremy's Letter to His Parents, at http://abcnews.go.com/2020/story?id=3078716; Alan B. Goldberg, Born With the Wrong Body (Apr. 25, 2007) (Riley’s story), at http://abcnews.go.com/2020/story?id=3072518; Joneil Adriano, Transgender Children Face Unique Challenges (Apr. 27, 2007), at http://abcnews.go.com/2020/story?id=3091754. Jazz Jennings, the youngest child featured by Walters, has a website focused on helping other transgender children (www.transkidspurplerainbow.org) and a reality TV show, I Am Jazz (www.tlc.com/tv-shows/i-am-jazz).

• September 19, 2008: Judge James Robertson’s third decision in Schroer v. Billington, 577 F. Supp. 2d 293, 308, 104 FEP 628, 640 (D.D.C. 2008), where Judge Robertson held that “the [Library of Congress’] refusal to hire [the plaintiff] after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination ‘because of ... sex.’”

• October 26, 2010: The U.S. Department of Education’s (DOE) Dear Colleagues: Harassment and Bullying, at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf, which states that under Title IX of the Education Amendments of 1972 (Title IX) “it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity. Title IX also prohibits sexual harassment and gender‐based harassment of all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.”24

24 On May 25, 2016, the State of Texas and 10 other states sued the DOE, the U.S.

Department of Justice (DOJ), the U.S. Equal Employment Opportunity Commission (EEOC), 27 and the U.S. Department of Labor (DOL) in federal court, challenging the legality of this guidance document. See the May 25, 2016 entry below.

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2011 – 2013

• May 27, 2011: The U.S. Office of Personnel Management’s (OPM) Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, at www.opm.gov/diversity/transgender/guidance.asp or www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference- materials/gender-identity-guidance, which was the first comprehensive guidance document issued by a federal agency regarding the fair treatment of gender-affirmed and gender-diverse people in the workplace.

• December 6, 2011: The Eleventh Circuit Court of Appeals’ decision in Glenn v. Brumby, 663 F.3d 1312, 1316–17, 113 FEP 1543, 1546 (11th Cir. 2011), at www.lambdalegal.org/in-court/legal-docs/glenn_ga_20111206_decision-us- court-of-appeals, which held that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. . . . Accordingly, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender.”

• March 27, 2012: The U.S. Department of Health and Human Services (HHS) final rule under the Patient Protection and Affordable Care Act (ACA), which provides that in order to participate in an ACA health insurance exchange, a qualified health plan (QHP) “issuer must not, with respect to its QHP, discriminate on the basis of . . . disability, . . . sex, gender identity or sexual orientation.”25

• April 20, 2012: The U.S. Equal Employment Opportunity Commission’s (EEOC) decision in Macy v. Holder, No. 0120120821, 2012 WL 1435995, at *11 (EEOC Apr. 20, 2012), at www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt or www.washingtonblade.com/content/files/2012/04/90910497-EEOC-Ruling.pdf, which held that “discrimination based on gender identity, change of sex, and/or transgender status is . . ., by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.”

• July 12, 2012: The HHS’s Letter from Leon Rodriguez, Office of Civil Rights Director, Office of Civil Rights, to Maya Rupert, Federal Policy Director, National Center for Lesbian Rights, at www.nachc.com/client//OCRLetterJuly2012.pdf, which explains that Section 1557 of the ACA, which prohibits sex discrimination, (1) protects LGBT individuals from discrimination based on their “gender identity or failure to

25 U.S. Department of Health and Human Services, Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans; Exchange Standards for Employers; Final Rule and Interim Final Rule, 45 C.F.R. §156.200(e), 77 Fed. Reg. 18310,

18469 (Mar. 27, 2012), at www.federalregister.gov/articles/2012/03/27/2012-6125/patient- 28 protection-and-affordable-care-act-establishment-of-exchanges-and-qualified-health-plans or www.gpo.gov/fdsys/pkg/FR-2012-03-27/pdf/2012-6125.pdf.

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conform to stereotypical notions of masculinity or femininity” and (2) forbids “sexual harassment and discrimination regardless of the actual or perceived sexual orientation or gender identity of the individuals involved.”

• May 18, 2013: The American Psychiatric Association releases DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS—FIFTH EDITION (DSM-5), which explains that normal “[e]xperienced gender may include alternative gender identities beyond binary stereotypes” and replaces the phraseology “the other sex” with “the other gender” or “some alternative gender.”

• June 26, 2013: The U.S. Supreme Court’s decision in United States v. Windsor, 570 U.S. ---, 133 S. Ct. 2675, 118 FEP 1417 (2013),26 which invalidated on due process and equal protection grounds Section 3 of the Defense of Marriage Act (DOMA), which, among other things, denied equality of federal benefits to married same-sex couples.

• July 24, 2013: The DOE and the U.S. Department of Justice’s (DOJ) settlement agreement with the Arcadia Unified School District, at www.justice.gov/crt/about/edu/documents/arcadiaagree.pdf, which required the district to provide a student “access to sex-specific facilities designated for male students at [school and] all District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity.”

• December 19, 2013: Connecticut Insurance Bulletin IC-37 (renumbered as IC-34), at http://ct.gov/cid/lib/cid/Bulletin_IC- 37_Gender_Identity_Nondiscrimination_Requirements.pdf, which advised insurers “that discrimination against an individual because of the individual's gender identity or expression is prohibited. This prohibition extends to the availability of health insurance coverage and the provision of health insurance benefits.”

2014

• January 30, 2014: The Maine Supreme Judicial Court’s decision in Doe v. Regional Sch. Unit 26, 2014 ME 11, 86 A.3d 600 (Me. 2014), at http://courts.maine.gov/opinions_orders/supreme/lawcourt/2014/14me11do.pdf, which held that a gender-affirmed grammar school student was subjected to discrimination based on gender identity and should have been permitted to use the girls’ restrooms in view of her female gender identity, regardless of the public’s potential discomfort with that decision. This was the first decision by

26 The Windsor decision is at www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf, 29 www.oyez.org/cases/2012/12-307, www.scotusblog.com/case-files/cases/windsor-v-united- states-2, and www.glad.org/doma/documents.

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the highest court of any state that upheld the right of transgender people to use gender identity-appropriate restrooms.27

• April 9, 2014: The DOJ’s Nondiscrimination Grant Condition in the Violence Against Women Reauthorization Act of 2013: Frequently Asked Questions, at www.ovw.usdoj.gov/docs/faqs-ngc-vawa.pdf or www.justice.gov/sites/default/files/ovw/legacy/2014/06/20/faqs-ngc-vawa.pdf, which explains that “[f]or the purpose of assigning a beneficiary to sex- segregated or sex-specific services, best practices dictate that the recipient should ask a transgender beneficiary which group or service the beneficiary wishes to join. The recipient may not, however, ask questions about the beneficiary’s anatomy or medical history or make burdensome demands for identity documents.”

• April 29, 2014: The DOE’s Questions and Answers on Title IX and Sexual Violence, at www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf, which explains that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity . . . . Similarly, the actual or perceived

27 In contrast to all of the other justices of the Maine Supreme Judicial Court, the lone dissenting justice never referred to the student by her name or as a girl. In fact, he never referred to her at all and instead wrote generically about transgender individuals. In essence, the dissenting justice focused on “transgender” in “transgender girl,” whereas the other justices focused on “girl”—which is precisely how Susan views herself and others should view her. Indeed, to make this point to the Supreme Judicial Court, both the GLBTQ Legal Advocates & Defenders (GLAD) and the Maine Human Rights Commission followed the adage that a picture is worth a thousand words and included photographs of Susan in their appellate briefs. See Brief of Appellants John and Jane Doe as Parents and Next Friend of Susan Doe, Doe v. Clenchy, Law Docket No. PEN-12-582 (Me. Sup. Jud. Ct. filed Mar. 14, 2013), at www.glad.org/uploads/docs/cases/doe-v-clenchy/2013-03-14-doe-v- clenchy-brief-of-appellants.pdf; Brief of Appellant Maine Human Rights Commission, Doe v. Clenchy, Law Docket No. PEN-12-582 (Me. Sup. Jud. Ct. filed Mar. 14, 2013), at www.glad.org/uploads/docs/cases/doe-v-clenchy/2013-03-14-doe-v-clenchy-mhrc-brief.pdf.

To read more about this case, see GLAD’s web page at www.glad.org/work/cases/doe-v.- clenchy. Susan Doe, whose real name is Nicole Maines, and her parents have gone public in an effort to educate the public about gender identity and the discrimination transgender people confront. To learn more about the Maines family, see the following BOSTON GLOBE feature article and two videos featuring Nicole and her father Wayne’s speeches at GLAD’s 2011 Spirit of Justice Award Dinner. Bella English, Identical Twin Boys, One Transgendered, Become Brother and Sister, BOSTON GLOBE (Dec. 11, 2011), at http://articles.boston.com/2011-12-11/lifestyle/30512365_1_twin-boys-transgender-jonas or www.boston.com/lifestyle/family/articles/2011/12/11/led_by_the_child_who_simply_knew; Nicole Maines’ Remarks (Oct. 21, 2011), at www.youtube.com/watch?feature=player_detailpage&v=XJQmdw-JCu8; Wayne Maines’ Remarks (Oct. 21, 2011), at

www.youtube.com/watch?feature=player_detailpage&v=8sXid19HrwY. Nicole’s story and 30 her family’s litigation ordeal are recounted in Amy Ellis Nutt, BECOMING NICOLE: THE TRANSFORMATION OF AN AMERICAN FAMILY (Random House 2015).

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sexual orientation or gender identity of the parties does not change a school’s obligations . . . [to] investigate and resolve allegations of sexual violence regarding LGBT students using the same procedures and standards that it uses in all complaints involving sexual violence.”28

• May 30, 2014: The HHS’s Departmental Appeals Board’s (DAB) In re National Coverage Determination for Transsexual Surgery, Docket No. A- 13-87, Decision No. 2576, 2014 WL 2558402 (HHS DAB May 30, 2014), at www.hhs.gov/dab/decisions/dabdecisions/dab2576.pdf, which overturned its 1989 decision – which was based on a highly questionable 1981 report – that had held that “transsexual surgery” is both experimental and controversial and thus should not be covered by Medicare. The DAB’s 2014 decision held that the undisputed evidence clearly established that such surgery is a safe, effective, widely accepted, nonexperimental, medically necessary treatment for gender dysphoria and therefore is covered by Medicare. The DAB closed its decision by observing that in 1989 it erroneously relied on the controversial nature of the surgery as a basis for denying coverage: “Considerations of social acceptability (or nonacceptability) of medical procedures appear on their face to be antithetical to Medicare’s ‘medical necessity’ inquiry, which is based in science . . . .”

• July 21, 2014: President Obama’s Executive Order No. 13672, at www.federalregister.gov/articles/2014/07/23/2014-17522/further-amendments- to-executive-order-11478-equal-employment-opportunity-in-the-federal- government or www.gpo.gov/fdsys/pkg/FR-2014-07-23/pdf/2014-17522.pdf, which added gender identity and sexual orientation to the list of protected classes under (which applies to federal contractors29) and added a ban on gender identity discrimination to the existing ban on sexual orientation discrimination under Executive Order 11478 (which applies to federal employees).

• August 19, 2014: The Office of Federal Contract Compliance Programs’ (OFCCP) Directive 2014-02, Gender Identity and Sex Discrimination, at www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html, which clarifies that sex discrimination under Executive Order 11246 – which applies to federal

28 On May 4, 2016, the “Students and Parents for Privacy” and several minor students sued the DOE, the DOJ, and the Palatine Township (Illinois) High School District 211, challenging the legality of this guidance document. See the May 4, 2016 entry below.

On May 25, 2016, the State of Texas and 10 other states sued the DOE, the DOJ, the EEOC, and the DOL in federal court, challenging the legality of this guidance document. See the May 25, 2016 entry below.

29 As discussed below, on December 9, 2014, the Office of Federal Contract Compliance 31 Programs (OFCCP) issued a final rule implementing the federal contractor aspects of Executive Order No. 13672.

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contractors – includes discrimination based on gender identity and transgender status.

• August 28, 2014: The U.S. Office of Special Counsel’s (OSC) Report of Prohibited Personnel Practices in In re Tamara Lusardi, File No. MA-11- 3846 (OSC Aug. 28, 2014), at https://osc.gov/Resources/2014-08- 28_Lusardi_PPP_Report.pdf, which held that the Army violated the Civil Service Reform Act of 1978 – which prohibits discrimination based on conduct that does not adversely affect job performance, including sexual orientation and gender identity discrimination – by improperly denying a gender-affirmed woman the right to use the women’s restroom, repeatedly referring to her by her birth name and male pronouns, and excessively monitoring her workplace conversations with unusual scrutiny.

• September 25, 2014: The EEOC filed its first two Title VII lawsuits on behalf of transgender employees: EEOC v. Lakeland Eye Clinic (M.D. Fla. filed Sept. 25, 2014),30 at www.employmentandlaborinsider.com/wp- content/uploads/sites/328/2014/09/9.25.14.EEOC-v.-Lakeland-Eye-Clinic.pdf; and EEOC v. R.G. & G.R. Harris Funeral Homes (E.D. Mich. filed Sept. 25, 2014),31 at www.employmentandlaborinsider.com/wp- content/uploads/sites/328/2014/09/9.25.14.EEOC-v-Harris-Funeral-Homes.pdf.

• October 8, 2014: The DOE’s settlement agreement with the Downey Unified School District, OCR Case No. 09-12-1095, at www2.ed.gov/documents/press-releases/downey-school-district-agreement.pdf, which required the district to treat a student “the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students at school, and at all District-sponsored activities, including overnight events, try-outs and participation in extracurricular activities on and off campus, consistent with her gender identity.”

30 As discussed below, this case settled in April 2015.

31 On April 21, 2015, the federal district court granted in part and denied in part the defendant employer’s motion to dismiss the EEOC’s lawsuit. In EEOC v. R.G. & G.R. Harris Funeral Homes, 100 F. Supp.3d 594, 126 FEP 1573 (E.D. Mich. 2015), at http://law.justia.com/cases/federal/district- courts/michigan/miedce/2:2014cv13710/295088/13/, the court held that the transgender plaintiff could proceed with her gender stereotyping claim based on the theory approved by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 49 FEP 954 (1989) (discussed above). However, the court rejected the EEOC’s theory that discrimination against employees because they are transgender is per se sex discrimination under Title VII. The EEOC had set forth this theory in its Macy v. Holder, No. 0120120821, 2012 WL 1435995, at *1, 4 (EEOC Apr. 20, 2012) (holding that claims of discrimination based on “gender identity, change of sex, and/or transgender status” are cognizable under Title VII’s

sex discrimination prohibition). As noted elsewhere in this overview, other courts and 32 agencies have agreed with the EEOC that discrimination against employees because they are transgender is per se sex discrimination under Title VII.

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• December 1, 2014: The DOE’s Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, at www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex- 201412.pdf, which explains that “[a]ll students, including transgender students and students who do not conform to sex stereotypes, are protected from sex- based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single- sex classes.”32

• December 9, 2014: The OFCCP’s Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors: Final Rule, at www.federalregister.gov/articles/2014/12/09/2014-28902/implementation-of- executive-order-13672-prohibiting-discrimination-based-on-sexual-orientation- and or www.gpo.gov/fdsys/pkg/FR-2014-12-09/pdf/2014-28902.pdf.

• December 11, 2014: New York Insurance Circular Letter No. 7 (2014), at www.dfs.ny.gov/insurance/circltr/2014/cl2014_07.pdf, which advised insurers that they “may not deny medically necessary treatment otherwise covered by a health insurance policy or contract . . . solely on the basis that the treatment is for gender dysphoria.”

• December 15, 2014: Attorney General Holder’s memo, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964, at www.justice.gov/sites/default/files/opa/press- releases/attachments/2014/12/18/title_vii_memo.pdf, which explains “that the best reading of Title VII' s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination ‘because of ... sex’ includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”33

2015

• January 7, 2015: The DOE’s Letter from James A. Ferg-Cadima, Office for Civil Rights Acting Deputy Assistant Secretary of Policy, which explains that “[t]he [DOE’s] Title IX regulations permit schools to provide sex-segregated

32 On May 4, 2016, the “Students and Parents for Privacy” and several minor students sued the DOE, the DOJ, and the Palatine Township (Illinois) High School District 211, challenging the legality of this guidance document. See the May 4, 2016 entry below.

33 On May 25, 2016, the State of Texas and 10 other states sued the DOE, the DOJ, the 33 EEOC, and the DOL in federal court, challenging the legality of this guidance document. See the May 25, 2016 entry below.

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restrooms, locker rooms, shower facilities, housing, athletic teams, and single- sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual- user facilities to any student who does not want to use shared sex-segregated facilities.”34 (footnote omitted from quote)

• January 22, 2015: The EEOC amicus brief and the January 26, 2015 DOJ Statement of Interest in the Title VII case Jamal v. Saks & Co., Civil Action No. 4:14-cv-02782 (S.D. Tex.), at www.scribd.com/doc/253459816/4-14-cv- 02782-17 and www.scribd.com/doc/253807046/Justice-Department-Filing-in- Jamal-v-Saks, a case that involved the denial of restroom access to and the harassment of a transgender employee. The intervention of the EEOC and the DOJ, as well as significant adverse publicity, forced Saks to quickly settle the case. This outcome sends a very strong message to employers and their outside counsel about treating gender-affirmed and gender-diverse employees with respect and in accordance with their gender identity.

• January 30, 2015: The OFCCP’s proposed revisions to its Sex Discrimination Guidelines, at www.federalregister.gov/articles/2015/01/30/2015-01422/discrimination-on-the- basis-of-sex or www.gpo.gov/fdsys/pkg/FR-2015-01-30/pdf/2015-01422.pdf, which clarify that sex discrimination includes discrimination based on actual or perceived gender identity or transgender status. On May 18, 2016, in its Spring 2016 update on its regulatory agenda, the OFCCP advised that it expects to publish the final version of the revised guidelines in May 2016, though this date is subject to change. As of May 27, 2016, the final version of the revised Guidelines had not been published. See https://resources.regulations.gov/public/component/main?main=UnifiedAgenda or https://www.dol.gov/asp/regs/agenda.htm and search for Regulatory Identification Number (RIN) “1250-AA05”.

• February 6, 2015: The U.S. Department of Housing and Urban Development’s (HUD) Notice H 2015-01, Notice of Program Eligibility for HUD Assisted and Insured Housing Programs for All People Regardless of Sexual Orientation, Gender Identity or Marital Status as Required by HUD’s Equal Access Rule, at http://portal.hud.gov/hudportal/documents/huddoc?id=15-01hsgn.pdf, which states “that housing across HUD programs [must be] open to all eligible

34 The DOE’s letter was issued in response to a written request for information on this topic. The request and the response are Exhibits A and B, respectively, to the DOJ’s June 29, 2015 Statement of Interest in G.G. v. Gloucester County School Board, Civil No.

4:15cv54 (E.D. Va.), at 34 www.justice.gov/sites/default/files/crt/legacy/2015/07/09/gloucestersoi.pdf. The Gloucester County case is discussed below.

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individuals regardless of actual or perceived sexual orientation, gender identity, or marital status.”

• February 20, 2015: HUD’s Notice CPD-15-02, Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities, at http://portal.hud.gov/hudportal/documents/huddoc?id=15- 02cpdn.pdf, which explains that “[t]here generally is no legitimate reason . . . for [a shelter] provider to request documentation of a person’s sex in order to determine appropriate placement, nor should the provider have any basis to deny access to a single-sex emergency shelter or facility solely because the provider possesses identity documents indicating a sex different than the gender with which the client or potential client identifies. The provider may not ask questions or otherwise seek information or documentation concerning the person’s anatomy or medical history. Nor may the provider consider the client or potential client ineligible for an emergency shelter or other facility because his or her appearance or behavior does not conform to gender stereotypes.”

• February 24, 2015: The DOJ and the DOE’s Statement of Interest in Tooley v. Van Buren Public Schools, Case No. 2:14-cv-13466-AC-DRG (E.D. Mich. filed Feb. 24, 2015), at www.justice.gov/sites/default/files/crt/legacy/2015/02/27/tooleysoi.pdf, a Title IX case involving harassment of and denial of restroom access to a transgender student. The DOJ and the DOE advised the court that it is the position of the United States that discrimination based on a person’s nonconformity to sex stereotypes, a person’s gender identity, or a person’s transgender status constitutes sex discrimination.35

35 On March 31, 2015, in a different case, the U.S. District Court for the Western District of Pennsylvania rejected the rationale of the DOJ and the DOE in the Tooley case. Johnston v. University of Pittsburgh, 97 F. Supp.3d 657, 323 Ed. Law Rep. 152 (W.D. Pa. 2015) (basing access to restrooms based on sex assigned at birth does not violate Title IX or Equal Protection Clause of the U.S. Constitution), at www.gpo.gov/fdsys/pkg/USCOURTS- pawd-3_13-cv-00213/pdf/USCOURTS-pawd-3_13-cv-00213-0.pdf. The student appealed to the federal Third Circuit Court of Appeals. Johnston v. University of Pittsburgh, No. 15- 2022 (3d Cir. appeal filed Apr. 24, 2015). The appeal was dismissed on March 30, 2016 as a result of a settlement. The joint press release issued by the student and university stated:

As part of the University’s continued efforts to ensure that all students have an on-campus experience that is inclusive and respectful of students’ rights, including their gender identity, the University, through its newly-appointed Associate Vice-Chancellor for Diversity and Inclusion, will establish a working group, which will include student leadership, to continue to study, evaluate and make recommendations regarding the implementation of best practices for institutions of higher education vis-à-vis transgender individuals, particularly with respect to transgender individuals’ access to gender-specific spaces in accordance with their gender identity.

35 The University also notes that, independent of the lawsuit, the University recently made available gender-neutral housing at Ruskin Hall on its Oakland Campus,

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• February 25, 2015: The U.S. Department of Labor’s (DOL) Definition of Spouse Under the Family and Medical Leave Act: Final Rule, at www.federalregister.gov/articles/2015/02/25/2015-03569/definition-of-spouse- under-the-family-and-medical-leave-act or www.gpo.gov/fdsys/pkg/FR-2015- 02-25/pdf/2015-03569.pdf, which revised the FMLA regulation defining “spouse” in light of the Supreme Court's Windsor decision (discussed above).

• March 16, 2015: The federal court decision in Rumble v. Fairview Health Services, Civil Action No. 14–cv–2037 (SRN/FLN), 2015 WL 1197415 (D. Minn. Mar. 16, 2015), at www.washingtonblade.com/content/files/2015/03/259302140-0-14-cv-02037- 31.pdf, which held that the plaintiff patient adequately pled a claim of sex discrimination under Section 1557 of the ACA where plaintiff alleged plaintiff was mistreated by a hospital and its outsourced emergency room medical staff based on plaintiff’s gender identity or transgender status.

• March 30, 2015: The DOJ’s complaint in United States v. Southeastern Oklahoma State Univ., Civil Action No. 15-324-C (W.D. Okla. filed Mar. 30, 2015), at www.justice.gov/sites/default/files/opa/press- releases/attachments/2015/03/30/doj-eeoc_complaint.pdf, wherein the DOJ asserted that a transgender professor was denied tenure based on her gender identity, in contravention of Title VII.36

Also representing the University’s leadership on these issues, the University’s website now provides that “[f]aculty, staff, and students are welcome to use … any restroom that corresponds to their gender identity.”

Joint Statement from the University of Pittsburgh and Seamus Johnston (Mar. 29, 2016) (emphasis added), at www.news.pitt.edu/news/joint-statement-university-pittsburgh-and- seamus-johnston or http://transgenderlawcenter.org/archives/12692.

On April 19, 2016, the Fourth Circuit Court of Appeals, in “a case similar in most material facts” to Johnston, rejected the holding in Johnston, stating: “we find the Title IX analysis in Johnston to be unpersuasive,” and deferred to the reasoning of the DOE and the DOJ. G.G. v. Gloucester County School Board, No. 15-2056, --- F.3d ---, --- n.9, 2016 WL 1567467, at *8 n.9 (4th Cir. Apr. 19, 2016), at www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf, petition for rehearing en banc pending, No. 15-2056 (4th Cir. filed May 3, 2016). The Gloucester County case is discussed below.

36 On May 5, 2015, the professor, Rachel Tudor, filed a Complaint in Intervention. On July 10, 2015, the federal district court denied the defendants’ motion to dismiss Tudor’s complaint. The court held: “Here, it is clear that Defendants’ actions as alleged by Dr. Tudor occurred because she was female, yet Defendants regarded her as male. Thus, the actions Dr.

Tudor alleges Defendants took against her were based upon their dislike of her presented 36 gender. . . . Consequently, the Court finds that the [alleged] discrimination occurred because of Dr. Tudor’s gender, and she falls within a protected class.” U.S. v.

Page Page Southeastern Oklahoma State Univ., Civil Action No. CIV–15–324–C, 2015 WL 4606079,

• April 1, 2015: The EEOC’s decision in the Title VII case Tamara Lusardi v. John M. McHugh (Dept. of the Army), No. 0120133395, at 9–13, 15, 2015 WL 1607756, at *8–12 (EEOC Apr. 1, 2015), at www.eeoc.gov/decisions/0120133395.txt or http://transgenderlawcenter.org/wp-content/uploads/2015/04/EEOC-Lusardi- Decision.pdf, which held:

A. “An [employer] may not condition access to facilities – or to other terms, conditions, or privileges of employment – on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual's gender identity. . . . [T]here is no cause to question that Complainant – who was assigned the sex of male at birth but identifies as female – is female. And certainly where, as here, a transgender female has notified her employer that she has begun living and working full-time as a woman, the [employer] must allow her access to the women's restrooms. . . . [Access to] the common female restroom [cannot be denied] because co-workers would feel uncomfortable …. . . . In restricting her access to the restroom consistent with her gender identity, the [employer] refused to recognize Complainant's very identity. Treatment of this kind by one's employer is most certainly adverse.”

B. “Persistent failure to use the employee's correct name and pronoun may constitute unlawful, sex-based harassment if such conduct is either severe or pervasive enough to create a hostile work environment when "judged from the perspective of a reasonable person in the employee's position.”

C. “[The employer] publicly segregated and isolated Complainant from other employees of her gender and communicated that she was not equal to those other employees because she is transgender. [Her team leader’s misgendering] comments compounded that discrimination and sent the message that Complainant was unworthy of basic respect and dignity because she is a transgender individual. Additionally, [as] a team leader[,] … his actions sometimes occurred in the presence of other employees and during meetings, signaling that such conduct was endorsed by [the employer’s] leadership.”

• April 3, 2015: The DOJ’s Statement of Interest in the Eighth Amendment case Diamond v. Owens, Case No. 5:15-cv-50-MTT-CHW (M.D. Ga. filed Apr. 3, 2015), at www.justice.gov/sites/default/files/opa/press- releases/attachments/2015/04/03/diamond_statement_of_interest.pdf. The DOJ advised the court that it is the position of the United States that the

37 at *2, 99 Empl. Prac. Dec. (CCH) ¶45,354 (W.D. Okla. July 10, 2015), at http://hr.cch.com/ELD/USASoutheastern.pdf.

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“[f]ailure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria violates the Eighth Amendment’s prohibition on cruel and unusual punishment.”37

• April 9, 2015: The EEOC’s $150,000 settlement in EEOC v. Lakeland Eye Clinic, Civil Action No. 8:14-cv-2421-T-35AEP (M.D. Fla.) (Joint Motion for Approval of Consent Decree filed Apr. 1, 2015), at https://genderidentitywatch.files.wordpress.com/2015/04/branson- settlement.pdf and www.eeoc.gov/eeoc/newsroom/release/4-13-15.cfm, where the employer “agreed to implement a new gender discrimination policy and to provide training to its management and employees regarding transgender/gender stereotype discrimination.”

• April 22, 2015: The DOL’s revised and expanded Policies on Gender Identity: Rights and Responsibilities, at www.dol.gov/oasam/programs/crc/20150422GenderIdentity.pdf or www.dol.gov/oasam/programs/crc/20150422GenderIdentity.htm.

• April 24, 2015: The DOE’s Title IX Resource Guide, at http://www2.ed.gov/about/offices/list/ocr/docs/dcl-title-ix-coordinators-guide- 201504.pdf, which explains that “Title IX protects all students from sex-based harassment, regardless of the sex of the alleged perpetrator or complainant, including when they are members of the same sex. Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity, and a recipient must accept and appropriately respond to all complaints of sex discrimination. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a recipient’s obligations. A recipient should investigate and resolve allegations of sexual or gender-based harassment of lesbian, gay, bisexual, and transgender students using the same procedures and standards that it uses in all complaints involving sex-based

37 The litigation settled before the trial court had the opportunity to issue a decision on the merits of the plaintiff’s claims. See Settlement Reached in SPLC Case That Highlighted Plight of Transgender Prisoners (Feb. 12, 2016), at www.splcenter.org/news/2016/02/12/settlement-reached-splc-case-highlighted-plight- transgender-prisoners.

On May 4, 2015, the U.S. Supreme Court declined to review the en banc decision of the First Circuit Court of Appeals in Kosilek v. Spencer, 774 F.3d 63, 68, 91 (1st Cir. 2014) (although holding that “the district court erred in concluding that the Massachusetts Department of Correction … violated the Cruel and Unusual Punishment Clause of the Eighth Amendment by providing allegedly inadequate medical care to [transgender] prisoner Michelle Kosilek,” the Third Circuit noted that the Eighth Amendment “require[s] that medical care be individualized based on a particular prisoner’s serious medical needs”), cert. denied sub nom. Kosilek v. O’Brien, 575 U.S. ---, 135 S. Ct. 2059 (2015). The First Circuit’s opinion

is at http://media.ca1.uscourts.gov/pdf.opinions/12-2194P2-01A.pdf. To read more about the 38 Kosilek case, see GLAD’s web page relating to the case at www.glad.org/work/cases/kosilek-v.-spencer.

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harassment. The fact that an incident of sex-based harassment may be accompanied by anti-gay comments or be partly based on a student’s actual or perceived sexual orientation does not relieve a recipient of its obligation under Title IX to investigate and remedy such an incident. . . . The Title IX coordinator should also help ensure that transgender students are treated consistent with their gender identity in the context of single-sex classes.”38

• April 27, 2015: The Occupational Safety and Health Administration (OSHA) and National Center for Transgender Equality Alliance, at www.osha.gov/dcsp/alliances/ncte/ncte.html, to “[r]eview, promote and disseminate the OSHA-developed bulletin of recommended best practices for restroom access for transgender workers.”

• May 15, 2015: The Illinois Human Rights Commission’s decision in Sommerville v. Hobby Lobby Stores, Charge Nos. 2011CN2993 & 2011CP2994, slip op. at 8–12 (Ill. Hum. Rts. Comm’n May 15, 2015), at www.windycitymediagroup.com/pdf/Sommervilleruling.pdf , which held that (1) Hobby Lobby violated the Illinois Human Rights Act prohibition against discrimination based sexual orientation (including gender identity) by not permitting a transgender female employee to use the women’s restroom; (2) an employer may not require a transgender employee to use a unisex bathroom or to undergo any surgical procedures in order to use a restroom that matched the employee’s gender identity; (3) coworker discomfort or prejudice is no defense to discrimination; and (4) the “absence of male genitalia does not make a female.”

• June 1, 2015: OSHA’s Best Practices: A Guide to Restroom Access for Transgender Workers, at www.dol.gov/asp/policy- development/TransgenderBathroomAccessBestPractices.pdf, which explains that it is a “core principle” that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”39

• June 1, 2015: The DOL’s Advancing LGBT Workplace Rights, at www.dol.gov/asp/policy-development/lgbt-report.pdf, which notes that “[c]ourts, as well as DOL and other federal agencies, have recognized that discrimination on the basis of gender identity is sex discrimination.”

• June 3, 2015: The OPM, the EEOC, the OSC, and the U.S. Merit Systems Protection Board’s (MSPB) Addressing Sexual Orientation and Gender

38 On May 4, 2016, the “Students and Parents for Privacy” and several minor students sued the DOE, the DOJ, and the Palatine Township (Illinois) High School District 211, challenging the legality of this guidance document. See the May 4, 2016 entry below.

39 On May 25, 2016, the State of Texas and 10 other states sued the DOE, the DOJ, the 39 EEOC, and the DOL in federal court, challenging the legality of this guidance document. See the May 25, 2016 entry below.

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Identity Discrimination in Federal Civilian Employment: A Guide to Employment Rights, Protections, and Responsibilities, at www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference- materials/addressing-sexual-orientation-and-gender-identity-discrimination-in- federal-civilian-employment.pdf, which states: “As the nation’s largest employer, the Federal Government should set an example for other employers that employment discrimination based on sexual orientation or gender identity is not acceptable.”

• June 4, 2015: The EEOC filed its third Title VII lawsuit involving a transgender employee. EEOC v. Deluxe Financial Services, Civil Action No. 0:15-cv- 02646-ADM-SER (D. Ariz. filed June 4, 2015),40 at https://genderidentitywatch.files.wordpress.com/2015/06/lawsuit.pdf and www.eeoc.gov/eeoc/newsroom/release/6-5-15.cfm.

• June 23, 2015: The OPM’s Federal Employees Health Benefits Program (FEHB) Program Carrier Letter 2015-12, at www.opm.gov/healthcare- insurance/healthcare/carriers/2015/2015-12.pdf, which advised that “[e]ffective January 1, 2016, no carrier participating in the [FEHB] Program may have a general exclusion of services, drugs or supplies related to gender transition or ‘sex transformations,’” and reiterated OPM’s prior “recogni[tion of] the evolving professional consensus that treatment may be medically necessary to address a diagnosis of gender dysphoria.”

• June 25, 2015: Nevada Insurance Bulletin 15-002, at http://doi.nv.gov/uploadedFiles/doinvgov/_public-documents/News- Notices/Bulletins/Bulletin%2015-002.pdf, which advised insurers Nevada law prohibits “the denial, exclusion, or limitation of benefits relating to coverage of medically necessary health care services . . . as it relates to gender identity or expression.”

• June 26, 2015: The U.S. Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. ---, 135 S. Ct. 2584, 2604, 99 Empl. Prac. Dec. (CCH) ¶45,341 (2015),41 which held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”

• June 29, 2015: The DOJ and the DOE’s Statement of Interest in G.G. v. Gloucester County School Board, Civil No. 4:15cv54 (E.D. Va. filed June 29, 2015), at

40 As discussed below, this case settled in January 2016.

41 The Obergefell decision is at www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf, 40 www.oyez.org/cases/2014/14-556, www.scotusblog.com/case-files/cases/obergefell-v- hodges, and www.glad.org/work/cases/deboer-v.-snyder.

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www.justice.gov/sites/default/files/crt/legacy/2015/07/09/gloucestersoi.pdf, a Title IX case involving denial of restroom access. The DOJ and the DOE advised the court that it is the position of the United States that that discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity to sex stereotypes constitutes sex discrimination.42

• July 1, 2015: The Illinois Department of Insurance’s amended regulation, Prohibited Gender Identity Discrimination, 39 Ill. Reg. 409, 417–18, at https://www.cyberdriveillinois.com/departments/index/register/register_volume3 9_issue1.pdf, went into effect and barred group health insurance plan from “discriminate[ing] on the basis of an insured's or prospective insured's actual or perceived gender identity, or on the basis that the insured or prospective insured is a transgender person.”

• July 13, 2015: U.S. Department of Defense Secretary Ash Carter’s Directive that (a) established a working group to study implications of elimination the military’s regulatory ban on transgender service members and (b) explained, at www.defense.gov/News/News-Releases/News-Release-View/Article/612778, that “current regulations . . . are outdated and are causing uncertainty that distracts commanders from our core missions. . . . Moreover, we have transgender soldiers, sailors, airmen, and Marines – real, patriotic Americans – who I know are being hurt by an outdated, confusing, inconsistent approach that's contrary to our value of service and individual merit.”

• July 13, 2015: HUD’s Notice H 2015-06, Program Eligibility in Multifamily Assisted and Insured Housing Programs in Accordance with HUD’s Equal Access Rule, at http://portal.hud.gov/hudportal/documents/huddoc?id=15- 06hsgn.pdf, which states that “such housing shall be made available without

42 On September 17, 2015, the U.S. District Court for the Eastern District of Virginia rejected the rationale of the DOJ and DOE in the G.G. case. G.G. v. Gloucester County School Board, 132 F. Supp.3d 736 (E.D. Va. 2015) (basing access to restrooms based on sex assigned at birth does not violate Title IX or Equal Protection Clause), at https://acluva.org/wp-content/uploads/2015/10/MemOp20150917.pdf.

On appeal to the Fourth Circuit Court of Appeals, the DOJ and the DOE filed an amicus brief, arguing that the district court wrongly decided the case. G.G. v. Gloucester County School Board, No. 15-2056 (4th Cir. filed Oct. 28, 2015), at https://acluva.org/wp- content/uploads/2015/06/DOJAmicusBrief.pdf. On April 19, 2016, the Fourth Circuit reversed the district court and directed the lower court to defer to the DOE’s interpretation of its own regulation governing sex-segregated facilities such as restrooms, which interpretation, in the words of the Fourth Circuit, holds that “Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity.” G.G. v. Gloucester County School Board, No. 15-2056, --- F.3d ---, ---, 2016 WL 1567467, at *1 (4th Cir. Apr. 19, 2016), at

www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf, petition for rehearing en banc 41 pending, No. 15-2056 (4th Cir. filed May 3, 2016). The Fourth Circuit’s opinion is discussed further below.

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regard to actual or perceived sexual orientation, gender identity, or marital status.”

• July 15, 2015: The EEOC’s decision in Baldwin v. Foxx, No. 0120133080, at 6, 2015 WL 4397641, at *5 (EEOC July 15, 2015), at www.eeoc.gov/decisions/0120133080.pdf, which held that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account. Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”43

• July 27, 2015: The federal court’s decision in Roberts v. United Parcel Service, Inc., 115 F. Supp.3d 344, 348, 363–66,127 FEP 1457, 1457, 1472–78 (E.D.N.Y. 2015), at www.gpo.gov/fdsys/pkg/USCOURTS-nyed-1_13-cv- 06161/pdf/USCOURTS-nyed-1_13-cv-06161-0.pdf, which upheld a jury verdict in favor of the plaintiff employee under New York City’s Human Rights Law. The court, which quoted at length the EEOC’s Baldwin decision (discussed above), opened its decision by observing: “As the nation’s understanding and acceptance of sexual orientation evolve, so does the law’s definition of appropriate behavior in the workplace. A jury, comprised of a cross-section of our heterogeneous community, is best placed to determine what is appropriate at the moment. . . . The jury found improper under the law repeated advice from plaintiff’s supervisor that her sexual orientation as a lesbian was evil and needed to be changed in accordance with religious dictates. Appeal to the bible, or theology generally, cannot justify management’s condoning the harassing of a lesbian in the workplace. Defendant’s central administration failed to protect plaintiff from such abuse.”

• August 3, 2015: The National Center for Lesbian Rights, Gender Spectrum, the National Education Association, the ACLU, and the Human Rights Campaign released Schools in Transition: A Guide for Supporting Transgender Students, at www.nclrights.org/press-room/press-release/first-of-its-kind- publication-provides-schools-with-guidance-to-ensure-safe-and-supportive- environments-for-transgender-students, which provides an easy-to-follow guide for schools to accommodating the needs of gender-affirmed and gender- diverse students.

43 On October 21, 2015, David Baldwin decided to move the Title VII case from the EEOC to 42 federal court. See Baldwin v. Foxx, Civil Action No. 1:15-cv-23825 (S.D. Fla. filed Oct. 13, 2015), at https://assets.documentcloud.org/documents/2465323/baldwin-complaint.pdf.

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• September 8, 2015: The HHS’s proposed rule to effectuate Section 1557 of the ACA, which, among other things, would prohibit discrimination on the basis of sex in certain health programs and activities.44

• September 15, 2015: The federal court’s decision in Dawson v. H&H Electric, Inc., 128 FEP 124, 128, 2015 WL 5437101, at *4 (E.D. Ark. Sept. 15, 2015), at www.aclu.org/sites/default/files/field_document/doc_32_opinion.pdf, where the court denied the employer’s motion for summary judgment, holding that the terminated employee presented “ample evidence” that the employee’s termination was due to the employee’s gender transition, which the employee’s supervisor allegedly deemed to be “too much of a distraction.”

• October 29, 2015: The federal court’s Title VII decision in Isaacs v. Felder Services, Inc., --- F. Supp.3d ---, 128 FEP 365, 2015 WL 6560655 (M.D. Ala. Oct. 29, 2015), at www.gpo.gov/fdsys/pkg/USCOURTS-almd-2_13-cv- 00693/pdf/USCOURTS-almd-2_13-cv-00693-2.pdf, which agreed with the EEOC’s decision in Baldwin v. Foxx (discussed above) – discrimination based on sexual orientation is per se sex discrimination.

• November 16, 2015: The federal court’s decision in Adkins v. City of New York, Civil Action No. 14–cv–7519 (JSR), --- F. Supp.3d ---, 2015 WL 7076956, at *4 (S.D.N.Y. Nov. 16, 2015), at http://lawprofessors.typepad.com/files/adkins.pdf, which held, for purpose of an equal protection claim brought by an individual who was arrested during the Occupy Wall Street protests, “that transgender people are a quasi-suspect class. Accordingly, the Court must apply intermediate scrutiny to defendants’ treatment of plaintiff.” This lawsuit settled in March 2016.

• November 16, 2015: The DOJ’s Second Statement of Interest (SOI), at www.glad.org/uploads/docs/cases/blatt-v-cabelas/blatt-v-cabelas-doj-soi-11-16- 15.pdf, in the Americans with Disabilities Act (ADA) case Blatt v. Cabela’s Retail, Civil Action No. 5:14-cv-4822 (E.D. Pa. file Nov. 16, 2015), which challenges the constitutionality of the ADA’s exclusion of transsexualism and gender identity disorders (GIDs) not resulting from a physical impairment. The DOJ advised the court that it is the position of the United States that gender dysphoria is a disability protected by the ADA. This is the first time such a constitutional challenge to the ADA has been fully briefed and argued in court. The DOJ’s SOI and the briefs of the plaintiff and amici extensively cite Chapter 16 of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE. In Chapter 16, Christine Michelle Duffy sets forth the legislative history of the ADA exclusions (which reflects the morality-

44 U.S. Department of Health and Human Services, Nondiscrimination in Health Programs and Activities: Proposed Rule, 80 Fed. Reg. 54172 (Sept. 8, 2015), at

www.federalregister.gov/articles/2015/09/08/2015-22043/nondiscrimination-in-health- 43 programs-and-activities or www.gpo.gov/fdsys/pkg/FR-2015-09-08/pdf/2015-22043.pdf. As discussed below, the HHS published the final version of the rule on May 18, 2016.

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based animus against transgender people), the medical etiology of GIDs and gender dysphoria, and the constitutional arguments. See generally www.glad.org/work/cases/blatt-v-cabelas-retail-inc for background on this litigation.

• November 23, 2015: Rhode Island Insurance Bulletin 2015-3, at www.ohic.ri.gov/documents/Bulletin-2015-3-Guidance-Regarding-Prohibited- Discrimination.pdf, which advised insurers that “discrimination against an individual in the context of health insurance because of the individual’s gender identity or expression constitutes sex discrimination prohibited by Rhode Island law. This prohibition extends both to the availability of health insurance coverage and to the provision of health insurance benefits, including medically necessary transgender surgery and gender identity or gender dysphoria related health care services.”

• November 24, 2015: Minnesota Departments of Commerce and Health Administrative Bulletin 2015-5, at http://mn.gov/commerce-stat/pdfs/bulletin- insurance-2015-5.pdf, which advised health insurers that the ACA bars “discrimination against an individual because of the individual’s gender identity or expression is prohibited. This prohibition extends to the availability of health insurance coverage and the provision of health insurance benefits.”

• December 2, 2015: The DOE’s settlement agreement with Palatine Township (Illinois) High School District 211, at www2.ed.gov/documents/press-releases/township-high-211-agreement.pdf, which required the district to permit Student A to access locker rooms and other sex-segregated facilities in accordance with Student A’s gender identity, gender transition, or transgender status.45

• December 7, 2015: The federal court’s Title VII decision in Versace v. Starwood Hotels, Civil Action No. 6:14-cv-1003-Orl-31KRS (M.D. Fla. Dec. 7, 2015), at http://hr.cch.com/ELD/VersaceStarwood120715.pdf, where the court granted the employer’s motion for summary judgment with respect to the former employee’s hostile work environment claim, holding that “[t]hree or four relatively minor incidents [of misgendering] . . . does not amount to frequent conduct. While the conduct in question may be considered upsetting, the use of the wrong pronoun is not profane. Furthermore, Plaintiff received apologies from those individuals.”

• December 10, 2015: Maryland Insurance Administration Bulletin 15-33, at http://insurance.maryland.gov/Insurer/Documents/bulletins/15-33_2017-ACA- Rate-Form-Filing-Deadlines-and-Substitution-Rules.pdf, which advised insurance carriers that “[t]he formerly permissible exclusion [for] ‘treatment

45 On May 4, 2016, the “Students and Parents for Privacy” and several minor students sued 44 the DOE, the DOJ, and the Palatine Township High School District 211, to enjoin enforcement of the settlement agreement. See the May 4, 2016 entry below.

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leading to or in connection with transsexualism, or sex changes or modifications, including, but not limited to surgery,’ . . . is required to be deleted as federal guidance has determined that this type of exclusion is a discriminatory benefit design prohibited by” the ACA.

• December 15, 2015: The federal court’s decision in Videckis v. Pepperdine University, Civil Action No. CV 15-00298 DDP, --- F. Supp.3d ---, 2015 WL 8916764, at *5–7 (C.D. Cal. Dec. 15, 2015), at https://assets.documentcloud.org/documents/2653397/Judge-Pregerson-Order- Pepperdine-TitleIX.pdf, a Title IX case, which explained: “This Court, in [a prior decision,] stated that ‘the line between discrimination based on gender stereotyping and discrimination based on sexual orientation is blurry, at best.’ . . . After further briefing and argument, the Court concludes that the distinction is illusory and artificial, and that sexual orientation discrimination is not a category distinct from sex or gender discrimination. Thus, claims of discrimination based on sexual orientation are covered by Title VII and [Title] IX, but not as a category of independent claims separate from sex and gender stereotype. Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”

2016

• January 11, 2016: The federal court’s decision in Roberts v. Clark County School District, Civil Action No. 2:15-cv-00388-JAD-PAL, 312 F.R.D. 594, 604–606, 2016 FEP ---, 327 Ed. Law Rep. 340 (D. Nev. 2016), at https://genderidentitywatch.files.wordpress.com/2016/01/roberts-v-clark-cnty- sch-dist.pdf, which held, in case under Title VII and Nevada’s fair employment practices law, that the intimate details, including medical records, of the plaintiff employee’s gender transition were not relevant to a claim of gender discrimination based on transgender status. The court noted that “[t]he phrase ‘private parts’ has been in my vocabulary for more than 50 years for good and common sense reasons. It is difficult to fathom a subject more likely to cause embarrassment than requesting proof of one’s genitalia.”

• January 14, 2016: The Eleventh Circuit Court of Appeal’s decision in Chavez v. Credit Nation Auto Sales, --- Fed. App’x ---, 128 FEP 1049, 1050, 1055, 2016 WL 158820, at *1, 6–7 (11th Cir. Jan. 14, 2016), at http://media.ca11.uscourts.gov/opinions/unpub/files/201414596.pdf, which reinstated a lawsuit by a transgender employee, who had been terminated allegedly because the employee’s gender transition would “negatively impact [the] business” and “be disruptive,” and held that “sex discrimination includes discrimination against a transgender person for gender nonconformity.”

• January 20, 2016: The $115,000 settlement in the EEOC’s Title VII lawsuit

EEOC v. Deluxe Financial Services, Case No. 0:15-cv-02646 (D. Minn.),

45 where the EEOC alleged the defendant employer discriminated against a transgender employee based on sex, including denial of access to restrooms Page Page

that matched the employee’s gender identity.46 The EEOC’s press release is at www.eeoc.gov/eeoc/newsroom/release/1-21-16.cfm.

46 Based on the terms of the Deluxe Financial Services Consent Decree, a leading labor and employment law firm summarized as follows the 10 action items the EEOC expects employers to take in order to avoid similar sex discrimination lawsuits:

1) Include gender identity in your non-discrimination and no-harassment policies. . . .

2) Make sure your policies provide that discrimination against or harassment of individuals because of their transgender (and related) status will not be tolerated, whether the behavior comes from “employees, customers, agents, contractors, sub-contractors, clients,” or anyone else.

3) Make sure that employees understand that deliberately referring to a transgender person by his or her “biological” gender, or by his or her original name, is considered discrimination and harassment by the EEOC.

4) If a transgender employee requests a change to his or her name or designation as “male” or “female” in company records, the EEOC’s position is that the employer should do it, and do it completely, without asking to see medical records or otherwise probing into the employee’s medical details. (Presumably it’s ok to ask for documentation that the employee’s name has legally been changed. Otherwise, you could have big problems with the IRS and the Social Security Administration.)

5) A transgender employee should be allowed to use the restroom “commensurate with their gender identity” without any limitations. Again, the EEOC’s position is that the employer may not ask for the medical records of the transgender employee, or otherwise probe into his or her medical details before doing so. (This means an employer cannot make the employee wait to change restrooms until after he or she has had gender-reassignment surgery.) . . .

6) The employer’s health benefits plan should not have exclusions based only on sex (including transgender status) or gender dysphoria. As an example, if your health insurance covers hormone replacement therapy (such as estrogen for post-menopausal women), it should also cover hormone therapy for individuals who are transitioning to another gender.

7) The employer should conduct annual training for rank-and-file employees that includes discrimination based on gender identity, sex stereotyping, and gender dysphoria, and should penalize any employee who fails to complete the training on an annual basis. . . .

8) The employer should conduct more-intensive annual training on these issues, as well as discriminatory harassment, for supervisors and managers.

9) The employer should conduct even-more-intensive training for all employees 46 who work in a Human Resources capacity, including training on documentation and preservation of evidence. New HR employees should receive this training

Page Page within 30 days of hire. This would presumably include HR assistants and

• January 21, 2016: The HHS’s Medicare Appeals Council’s decision in In re United Healthcare/AARP Medicare Complete (HMO), Docket No. M-15-1069, 2016 WL 1470038 (HHS DAB MAC Jan. 21, 2016), at www.hhs.gov/dab/divisions/medicareoperations/macdecisions/m-15-1069.pdf, which held that UnitedHealthcare was obligated to cover gender reassignment surgery for a Medicare Advantage enrollee “Because It Is Reasonable and Necessary to Treat the Enrollee’s Transsexualism and Gender Identity Disorder.”

• March 1, 2016: The EEOC filed two Title VII lawsuits on behalf of gay and lesbian employees, wherein it asserted for the first time that “sexual orientation discrimination necessarily entails treating an employee less favorably because of [the employee’s] sex.” For the complaints, see EEOC v. Pallet Companies, Civil Action No. 1:16-cv-00595-RDB (D. Md. filed Mar. 1, 2016), at http://files.eqcf.org/wp-content/uploads/2016/03/1-Complaint.pdf; and EEOC v. Scott Medical Health Center, Civil Action No. 2:16-cv-00225-CB (W.D. Pa. filed Mar. 1, 2016), at http://hr.cch.com/ELD/ScottMedicalComplaint.pdf. The EEOC’s press release is at www.eeoc.gov/eeoc/newsroom/release/3-1-16.cfm.

• March 1, 2016: District of Columbia Department of Health Care Finance Gender Reassignment Surgery Policy No. 001-16, at http://dhcf.dc.gov/sites/default/files/dc/sites/dhcf/release_content/attachments/P olicy%20%23001- 16_Gender%20Reassignment%20Surgery%20Policy%20(final%20executed).p df, which confirmed that such surgery is covered by the state’s Medicaid program. In 2013, the District of Columbia Department of Insurance, Securities and Banking had already advised insurance companies that the District’s insurance law prohibits insurers from refusing to insure or denying benefits based on a person sexual orientation or gender identity or expression. In particular, carriers may not exclude from otherwise covered benefits any “treatment or procedure designed to alter an individual’s physical

coordinators, and other non-exempt HR employees in addition to HR management and executives.

10) Those who investigate discrimination or harassment complaints should have annual training that includes “accepted professional standards for identifying possible discrimination or retaliation, receiving and investigating complaints of discrimination, including such matters as witness interview techniques, other evidence-gathering techniques, maintaining investigative notes and records, legal analysis of the evidence,” and ways to prevent and resolve discrimination.

Robin Shea, Transgender Roadmap: 10 Steps the EEOC Thinks Employers Should Take, THE CONSTANGY, BROOKS, SMITH & PROPHETE EMPLOYMENT & LABOR INSIDER (Jan. 22,

2016) (formatting modified), at 47 www.employmentandlaborinsider.com/discrimination/transgender-roadmap-10-steps-the- eeoc-thinks-employers-should-take.

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characteristics to those of the opposite sex,” including surgery and hormone treatment.

• March 8, 2016: The federal court’s decision in Conde-Vidal v. García-Padilla, Civil Action No. 3:14-cv-01253, --- F. Supp.3d ---, 2016 WL 901899 (D.P.R. Mar. 8, 2016), at www.scotusblog.com/wp-content/uploads/2016/03/PRico- same-sex-marriage-denial-3-8-16.pdf, which ignored the First Circuit Court of Appeal’s judgment, issued days after the Supreme Court’s Obergefell decision (discussed above), wherein the appellate court stated that it “agree[d] with the parties' joint position that [Puerto Rico’s] ban [on same-sex marriage] is unconstitutional.” Conde-Vidal v. Rius-Armendariz, No. 14–2184, 2015 WL 10574261 (1st Cir. July 8, 2015), at www.lambdalegal.org/sites/default/files/conde_pr_20150708_judgment.pdf, rev’g and remanding sub nom. Conde-Vidal v. García-Padilla, 54 F. Supp.3d 157 (D.P.R. Oct. 8, 2014). On March 9, 2016, Puerto Rico Governor Alejandro García Padilla announced that Puerto Rico would permit and recognize same- sex marriages. On March 21, 2016, the plaintiffs filed a petition for a writ of mandamus with the First Circuit. On April 7, 2016, the First Circuit, after noting that “[t]he district court's ruling errs in so many respects that it is hard to know where to begin,” issued the writ and ordered the district court to promptly enter judgment in favor of the plaintiffs. In re Conde-Vidal, No. 16-1313, --- F.3d ---, 2016 WL 1391897, at *1 (1st Cir. Apr. 7, 2016), at http://media.ca1.uscourts.gov/pdf.opinions/16-1313P-01A.pdf. On April 7, 2016, a different district court judge complied with the First Circuit’s directive and declared Puerto Rico’s same-sex marriage ban unconstitutional. Conde- Vidal v. García-Padilla, Civil Action No. 3:14-cv-01253, --- F. Supp.3d ---, (D.P.R. Apr. 7, 2016), at www.lambdalegal.org/sites/default/files/conde_pr_20160407_order.pdf.

• March 9, 2016: The federal court’s decision in Christiansen v. Omnicom Group, --- F. Supp.3d ---, 128 FEP 1553, 1567–68, 2016 WL 951581, at *14– 15 (S.D.N.Y. Mar. 9, 2016), at www.theemployerhandbook.com/files/2016/03/Christiansen-v-Omnicom- Group.pdf, where the district court judge reluctantly held that, regardless of the EEOC’s Baldwin v. Foxx decision (discussed above), it was bound by prior decisions of the federal Second Circuit Court of Appeals that held that discrimination based on sexual orientation is not sex discrimination.47 The

47 In Magnusson v. County of Suffolk, Civil Action No. 14-CV-3449 (SJF)(ARL), --- FEP ---, 2016 WL 2889002, at *8 (E.D.N.Y. May 17, 2016), at http://scholar.google.com/scholar_case?case=10118579647598564765&hl=en&as_sdt=6,3 3, the district judge, without citing any of the recent cases (including Baldwin), held that in the Second Circuit “[s]exual orientation discrimination is not actionable under Title VII, and plaintiffs may not shoehorn what are truly claims of sexual orientation discrimination into Title VII by framing them as claims of discrimination based on gender stereotypes.”

48 To the same effect is Burrows v. College of Central Florida, Civil Action No. 5:14–cv– 197–OC–30PRL, 2015 WL 5257135, at *2 (M.D. Fla. Sept. 9, 2015) (holding that “[u]ntil the

Page Page Supreme Court or Eleventh Circuit recognizes the opinion expressed in the EEOC’s

court observed that “[t]he lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims. . . . [O]ne might reasonably ask—and, lest there be any doubt, this Court is asking—whether that line should be erased.” On March 9, 2016, the plaintiff employee filed an appeal with the Second Circuit. Christiansen v. Omnicom Group, No. 16-748 (2nd Cir. appeal filed Mar. 9, 2016).

• March 14, 2016: Michigan Insurance and Financial Services Bulletin 2016- 10-INS, at www.michigan.gov/documents/difs/Bulletin_2016-10- INS_516961_7.pdf, which advised insurers that for purposes of essential health benefits under the ACA insurer are “prohibit[ed] . . . from categorically excluding all health services related to gender transition, and from denying or limiting coverage for gender transition if doing so results in discrimination against a transgender individual.”

• March 18, 2016: The federal court’s decision in Fabian v. Hospital of Central Connecticut, --- F. Supp.3d ---, 128 FEP 1786, 1799, 2016 WL 1089178, at *13 (D. Conn. Mar. 18, 2016), at https://ecf.ctd.uscourts.gov/cgi-

decision as the prevailing legal opinion, the Court declines to reconsider in light of the EEOC’s decision.”), at www.leagle.com/decision/In%20FDCO%2020150909F08/BURROWS%20v.%20COLLEGE %20OF%20CENTRAL%20FLORIDA, appeal filed, No. 15-14554 (11th Cir. filed Oct. 14, 2015). On January 6, 2016, the EEOC filed an amicus brief, at http://chaifeldblum.com/wp- content/uploads/2016/01/EEOC-Brief-to-CA11-in-Burrows.pdf, with the Eleventh Circuit, urging the court to hold that discrimination based on sexual orientation is sex discrimination. The appeal was dismissed in April 2016 because the parties reached an undisclosed settlement.

Another district court within the Eleventh Circuit reached the same result, thought it too did not cite the Baldwin decision. Evans v. Georgia Regional Hospital, Civil Action No. CV415–103, 2015 WL 5316694 (S.D. Ga. Sept. 10, 2015) (magistrate judge), at https://cases.justia.com/federal/district-courts/georgia/gasdce/4:2015cv00103/66290/4/0.pdf, report and recommendations adopted, 2015 WL 6555440 (S.D. Ga. Oct. 29, 2015), at https://cases.justia.com/federal/district- courts/georgia/gasdce/4:2015cv00103/66290/12/0.pdf, appeal filed, No. 15-15234 (11th Cir. filed Nov. 19, 2015). On January 11, 2016, the EEOC filed an amicus brief, at http://chaifeldblum.com/wp-content/uploads/2016/01/EEOC-Evans-Brief-CA11.pdf, with the Eleventh Circuit, arguing that the court should hold that discrimination based on sexual orientation is sex discrimination.

Similarly, in Hinton v. Virginia Union University, Civil Action No. 3:15cv569, --- F. Supp.3d ---, --- FEP ---, 2016 WL 2621967, at *3–5 (E.D. Va. May 5, 2016), at http://cases.justia.com/federal/district- courts/virginia/vaedce/3:2015cv00569/329389/10/0.pdf, the court declined to give any deference to the EEOC’s Baldwin decision, noting that within the Fourth Circuit Court of

Appeals “Title VII does not encompass sexual orientation discrimination claims,” and stated 49 that it is up to Congress, not “unelected jurists,” to amended Title VII to bar discrimination based on sexual orientation.

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bin/show_public_doc?2012cv1154-58, which explained that “discrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes discrimination on the basis of the properties or characteristics typically manifested in sum as male and female—and that discrimination is literally discrimination ‘because of sex.'” The court noted that Judge Grady, in Ulane v. Eastern Airlines (discussed above), correctly held 33 years earlier that sex discrimination includes discrimination based on an individual’s transgender status.

• March 21, 2016: The federal court’s decision in Doe v. State of Arizona, --- F. Supp.3d ---, 128 FEP 1754, 1754–58, 2016 WL 1089743, at *1–2, 4–5 (D. Ariz. Mar. 21, 2016), at http://cases.justia.com/federal/district- courts/arizona/azdce/2:2015cv02399/954137/26/0.pdf, which held that discrimination based on gender identity or transgender status is sex discrimination under Title VII and that referring to the plaintiff corrections officer as “‘a ‘he/she,’ ‘it,’ and ‘whatever’” and telling prisoners about his gender transition could constitute adverse action.

• March 23, 2016: Delaware Domestic and Foreign Insurers Bulletin No. 86, at www.delawareinsurance.gov/departments/documents/bulletins/domestic- foreign-insurers-bulletin-no86.pdf, which advised insurers that the Delaware Gender Identity Nondiscrimination Act and Section 1557 of the ACA prohibit unlawful discrimination in the provision of health insurance coverage and benefits because of a person’s gender identity or transgender status.

• March 23, 2016: The North Carolina legislature held an emergency one-day session to enact and the North Carolina governor signed into law the Public Facilities Privacy & Security Act (a/k/a H.B.2), at www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf, which:

. “[R]equires all government entities to designate multiple-occupancy bathrooms and changing facilities (i.e., restrooms, locker rooms, or other facilities where more than one person may be undressing) for use by people based on their ‘biological sex.’ The law defines ‘biological sex’ as the [physical] gender listed on a person’s birth certificate.”48

. Amended the North Carolina Equal Employment Practices Act to (1) limit “sex” discrimination to discrimination based on “biological sex” and (2) prohibit local ordinances that bar discrimination based on gender identity or expression, marital or familial status, or sexual orientation.

48 Julie Adams & Denise Visconti, What Does North Carolina's New Public Facilities Law Mean for Employers?, LITTLER ASAP (Mar. 28. 2016), at www.littler.com/publication- press/publication/what-does-north-carolinas-new-public-facilities-law-mean-employers.

Denise Visconti is the State Laws Executive Editor of and the author of, among other 50 things, the North Carolina law summary in GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE.

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• March 28, 2016: The ACLU of North Carolina and several LGBT individuals filed a federal court lawsuit challenging the constitutionality of North Carolina’s Public Facilities Privacy & Security Act (a/k/a H.B.2), discussed above. The complaint in Carcaño v. McCrory, Civil Action No. 1:16-cv-00236 (M.D.N.C. filed Mar. 28, 2016), is at http://files.eqcf.org/wp- content/uploads/2016/03/1-Complaint-3.pdf.

. On March 29, 2016, North Carolina Attorney General Roy Cooper announced that the North Carolina Department of Justice “will not defend the constitutionality of the discrimination in HB 2,” calling the bill “a national embarrassment.” See Press Release (Mar. 29, 2016), at www.ncdoj.gov/News-and-Alerts/News-Releases-and-Advisories/Press- Releases/Comments-on-House-Bill-2.aspx.

. On May 16, 2016, the plaintiffs moved for a preliminary injunction against the defendants. See Motion, at http://files.eqcf.org/wp- content/uploads/2016/05/21-Ps-Motion-for-Preliminary-Injunction.pdf, and supporting Memorandum, at http://files.eqcf.org/wp- content/uploads/2016/05/22-Memo-iso-Ps-Motion-for-Preliminary- Injunction.pdf. The supporting declarations from a group of experts are at www.aclu.org/cases/carcano-et-al-v-mccrory-et-al:

o Expert Declaration of Deanna Adkins, M.D., Director of the Center for Child and Adolescent Gender Care at the Duke University Children’s Hospital & Health Center, at www.aclu.org/legal-document/expert-declaration-deanna-adkins- md, which notes, among other things, that:

 “Individuals who are intersex (also known as having ‘differences of sex development’) have sex characteristics that are a mixture of those typically associated with both ‘male’ and ‘female’ sex designations.”

 “Gender identity cannot be voluntarily altered including for individuals whose gender identity does not align with their birth-assigned sex.”

 “Although research regarding the precise determinant of gender identity is still ongoing, evidence strongly suggests that gender identity is innate or fixed at a young age and that gender identity has a strong biological basis.”

 “From a medical perspective, the appropriate determinant of sex is gender identity.”

51 “Medicine and science require that where a more careful consideration of sex assignment is needed that it be based on gender identity rather than other sex characteristics.” Page Page

 “It is harmful to make sex assignments based on characteristics other than gender identity.”

 “Today, medical and mental health care providers who specialize in the treatment of these individuals with gender dysphoria recognize that being transgender is a normal developmental variation.”

 “For individuals with gender dysphoria and individuals with differences of sex development, gender identity is the only medically supported determinant of sex when sex assignment as male or female is necessary. It would be unethical and extremely harmful to, for example, force a man with congenital adrenal hyperplasia . . . to be classified as a woman simply because he was classified as female at birth. Likewise it would be unethical and extremely harmful to force a man who has gender dysphoria to be classified as female simply because he was assigned female at birth.”

 “With the exception of some serious childhood cancers, gender dysphoria is the most fatal condition that I treat because of the harms that flow from not properly recognizing gender identity.”

 “Although we generally label infants as ‘male’ or ‘female’ based on observing their external genitalia at birth, external genitalia do not account for the full spectrum of sex-related characteristics nor do they ‘determine’ one’s sex. Instead, sex-related characteristics include external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics and genes. These sex-related characteristics do not always align as completely male or completely female in a single individual.”

 “Many individuals, including individuals who have intersex traits or gender dysphoria, have biological, sex-related characteristics that are typically associated with both men and women.”

o Expert Declaration of Randi Ettner, Ph.D., Chief Psychologist at the Chicago Gender Center, at www.aclu.org/legal- document/expert-declaration-randi-ettner-phd, which notes, among other things, that:

 “Social transition remains a critical part of treatment for 52 transgender individuals [who have gender dysphoria] and it is important that the social transition occur in all aspects of Page Page

the individual’s life. For a gender dysphoric young person or adult to be considered male in one situation, for example, but not in another is inconsistent with evidence-based medical practice and detrimental to the health and well-being of the individual, regardless of age. The integration of a consolidated identity into the daily activities of life is the aim of treatment. Thus, it is critical that the social transition be complete and unqualified—including with respect to the use of restrooms and other spaces and activities separated by sex.”

 “Access to the same restrooms and other facilities available to others is an undeniable necessity for transgender individuals. Restrooms and locker rooms, unlike other settings (e.g., the library or kitchen), categorize people according to gender. When it comes to sex-specific public restrooms and locker rooms, there are generally two, and only two, such categories designated: male and female. To deny a transgender individual access to such a facility consistent with that person’s gender identity, or to insist that a transgender individual use a separate restroom, communicates that such a person is not a ‘real’ man or women; or that the person is some undifferentiated ‘other.’ Such segregation and identification of the individual as ‘other’ interferes with the person’s ability to consolidate identity and undermines the social-transition process.”

 “Sending the message that a person is different from peers, and needs to be segregated, triggers shame. External attempts to negate a person’s gender identity constitute identity threat. Developing and integrating a positive sense of self-identity formation is a developmental task for all human beings. For the transgender individual, the process is more complex, as the ‘self’ violates society’s norms and expectations. Attempts to negate a person’s identity—such as excluding transgender people from gendered restrooms— challenge[] the legitimacy of identity, erodes resilience and poses health risks, including depression, posttraumatic stress disorder, hypertension and self-harm.”

o Expert Declaration of Aran C. Mull, Assistant Chief of Police at the University at Albany (State University of New York), at www.aclu.org/legal-document/expert-declaration-assistant-chief- university-police-aran-c-mull, which notes, among other things, that “I am aware of no evidence or information to support the notion that

individuals will use non-discrimination ordinances to engage in, or 53 justify, predatory or criminal behavior. I have never personally observed, or heard any reports from subordinates or officers in Page Page

other jurisdictions, of any individual citing a nondiscrimination ordinance or law as an excuse to commit a crime.”

• March 31, 2016: Montana Commissioner of Securities & Insurance Advisory Memorandum, at http://csimt.gov/wp- content/uploads/2017formfilingmemo.pdf, which advised insurers that “[h]ealth care services related to the treatment of gender dysphoria are medically necessary for transgender people and are not ‘cosmetic,’” and, therefore, health insurance carriers in the state cannot exclude coverage for such services. The Commissioner noted that “[t]here is ample evidence to show that the cost of transgender services have a negligible effect on premium.”

• April 7, 2016: In response to new laws in North Carolina (discussed above) and Mississippi, Pennsylvania Governor Tom Wolf’s two executive orders barring discrimination based on gender identity and sexual orientation in state government and state contracts, issued in response to new anti-LGBT laws in North Carolina (discussed above) and Mississippi: Executive Order No. 2016- 04 – Equal Employment Opportunity,49 at www.governor.pa.gov/wp- content/uploads/2016/04/2016_04.pdf, and Executive Order No. 2016-05 – Contract Compliance, at www.governor.pa.gov/wp- content/uploads/2016/04/2016_05.pdf.

• April 10, 2016: Lesley Stahl’s 60 Minutes piece, Switching Teams, which features Schuyler Bailar and the men’s and women’s swim teams at Harvard University. The video and transcript are at www.cbsnews.com/news/60- minutes-harvard-transgender-swimmer-schuyler-bailar.

• April 18, 2016: A federal jury in Franchina v. City of Providence, Civil Action No. 1:12-cv-00517-M-LDA (D.R.I. jury verdict form filed Apr. 18, 2016), at http://hr.cch.com/eld/FranchinaProvidence041816.pdf, awarded a plaintiff $806,000 for sexual harassment and retaliation, including $100,000 in punitive damages. In a ruling prior to trial, the trial judge held that Title VII does not prohibit sexual orientation discrimination in view of prior case law from the First Circuit Court of Appeals that is binding on the lower court. However, the judge also held the plaintiff could proceed with “[her] claims that the Defendant discriminated against a sub-set of the protected class [of women], that is, women who are lesbians. Therefore, evidence of the sexual orientation of employees of the Providence Fire Department may be relevant to Plaintiff's claims of sex-plus discrimination.” Franchina v. City of Providence, Civil Action No. 1:12-cv-00517-M-LDA, --- FEP ---, --- WL --- (D.R.I. Mar. 31, 2016), at http://hr.cch.com/ELD/FranchinaProvidence033116.pdf or

49 Executive Order 2016-04 built upon, expanded, and rescinded Governor Edward G. Rendell’s earlier Executive Order No. 2003-10 (July 28, 2003), at http://web.archive.org/web/20151001045704/http://www.portal.state.pa.us/portal/server.pt?o

pen=512&objID=708&PageID=224602&mode=2&contentid=http://pubcontent.state.pa.us/pu 54 blishedcontent/publish/cop_general_government_operations/oa/oa_portal/omd/p_and_p/exe cutive_orders/2000_2009/items/2003_10_equal_employment_opportunity.html.

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www.leagle.com/decision/In%20FDCO%2020160419847/FRANCHINA%20v.% 20CITY%20OF%20PROVIDENCE.

• April 19, 2016: The Fourth Circuit Court of Appeals’ decision in G.G. v. Gloucester County School Board, No. 15-2056, --- F.3d ---, ---, 2016 WL 1567467, at *1 (4th Cir. Apr. 19, 2016), at www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf, petition for rehearing en banc pending, No. 15-2056 (4th Cir. filed May 3, 2016), which agreed with the DOE and the DOJ that “Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity.” The court:

. Highlighted the vitriolic comments made at the public meetings that led to the school board to deny a transgender high school student access to the boys’ restrooms. For example, “[o]ne speaker called [the student] a ‘freak’ and compared him to a person who thinks he is a ‘dog’ and wants to urinate on fire hydrants.” --- F.3d ---, ---, 2016 WL 1567467, at *2.

. Rejected as unfounded the “safety concern” arguments that opponents of gender-identity based restroom access raised, noting that “[t]he same safety concern would seem to require segregated restrooms for gay boys and girls who would, under the dissent’s formulation, present a safety risk because of the ‘sexual responses prompted’ by their exposure to the private body parts of other students of the same sex in sex-segregated restrooms.”50 --- F.3d ---, --- n.11, 2016 WL 1567467, at *8 n.11.

• April 21, 2016: The National Task Force to End Sexual and Domestic Violence Against Women’s National Consensus Statement of Anti-Sexual Assault and Domestic Violence Organizations in Support of Full and Equal Access for the Transgender Community, at http://4vawa.org/4vawa/2016/4/21/full-and-equal-access-for-the-transgender- community, which states that “[w]e, the undersigned [288 national, state, and local] sexual assault and domestic violence organizations, oppose anti- transgender initiatives. These initiatives utilize and perpetuate the myth that protecting transgender people’s access to restrooms and locker rooms

50 This same point was made by Christine Michelle Duffy and Natalie F. Hrubos in Chapter 36 (Gender-Segregated Facilities) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE, at pages 36-17 to 36-18 (footnote omitted):

Some employees are uncomfortable with gay and lesbian coworkers. Yet it would be a rare workplace where gay men are barred from using the same bathroom as non-gay men or where lesbian women are barred from using the same bathroom as non-lesbian women. And this is despite the fact that non- workplace same-sex rapes occur. At one time, racially segregated bathrooms

were common in the United States. Thankfully, this is no longer the case. 55 Employers should avoid making the same mistake with gender identity and expression.

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endangers the safety or privacy of others. As organizations that care about reducing assault and violence, we favor laws and policies that protect transgender people from discrimination, including in accessing facilities that match the gender they live every day.”51

• April 22, 2016: The Indiana Supreme Court’s decision in Gaff v. Indiana- Purdue Univ. of Fort Wayne, --- N.E.3d ---, 129 FEP 19, 2016 WL 1619358 (Ind. Apr. 22, 2016), at www.in.gov/judiciary/opinions/pdf/04221601bed.pdf, which held, without any analysis or citations, that derogatory names relating to sexual orientation do not constitute sex discrimination under Title VII.

• April 26, 2016: The federal court’s Title VII decision in Deneffe v. SkyWest, Inc., --- F. Supp.3d ---, 129 FEP 62, 71, 2016 WL 1643061, *11 (D. Colo. Apr. 26, 2016), at www.leagle.com/decision/In%20FDCO%2020160427B86/DENEFFE%20v.%20 SKYWEST,%20INC., where the court stated: “Deneffe . . . argues that SkyWest ‘fostered an environment of discriminatory animus for gender stereotyping’ in that its captains ‘referred to men they perceived to not conform to heterosexual gender stereotypes as “faggots” and “Susie.”’ The Court is skeptical that the captains' comments (assuming they were made) ‘fostered an environment of discriminatory animus’ where Deneffe testified that it was only one captain (someone who did not perform his evaluations) who used the term, ‘faggot,’ in his presence and he was not offended by it . . . , and where he testified that ‘Susie’ was used ‘not more than five [times], but a few times’ and is ‘not a term that upsets me’ . . . . Nevertheless, while sex stereotyping may constitute evidence of sex discrimination, ‘[r]emarks at work that are based on sex- stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on [the plaintiff's] gender in making its decision.’”

51 This same point was made by Mary R. Lauby, Executive Director, and Maureen L. Gallagher, Director of Policy, Jane Doe Inc.—The Massachusetts Coalition Against Sexual Assault and Domestic Violence, in Chapter 42 (The ‘Bathroom Bill’ Security Concern Debunked) of GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE, at page 42-6 (footnotes omitted):

Opposing arguments to legislation [barring discrimination based on gender identity or expression] have included the manufacturing of fear of sexual violence at the hands of transgender individuals. This kind of fear-mongering is offensive to victims and survivors of sexual violence and those of us working in the movement, because we know that sexual violence is not commonly committed by a stranger in a bathroom, but by someone that a victim knows and often trusts. Research has shown that 73% of sexual assaults are perpetrated by non- strangers. In fact, by perpetuating the myth that women and girls are at most risk

for sexual assault by transgender people, those who oppose this bill encourage 56 hate and transphobia, detracting from the factors that actually contribute to sexual violence.

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• April 30, 2016: Pennsylvania Insurance Department Notice 2016-05 – Notice Regarding Nondiscrimination, at www.pabulletin.com/secure/data/vol46/46-18/762.html, which advised insurers that pursuant to state law and Section 1557 of the ACA health insurance policies must “not exclude services based on gender identity[,] . . . [can]not contain a categorical exclusion of coverage for all health services related to gender transition, . . . and also [must] affirmatively provide that medically necessary covered services will be available to a policyholder regardless of their gender identity.”

• May 2, 2016: The EEOC’s Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964, at www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm, which reaffirms the EEOC’s position that “denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination,” and notes:

Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.52

• May 4, 2016: The DOJ’s Letters to North Carolina Governor Pat McCrory and University of North Carolina Officials, at https://assets.documentcloud.org/documents/2823410/Civil-Rights-Division- letter-on-HB2.pdf and www.charlotteobserver.com/news/politics- government/article75647942.ece/BINARY/Read:%20DOJ%20letter%20to%20 UNC, advising that North Carolina’s Public Facilities Privacy & Security Act (a/k/a H.B.2), discussed above, violates Title VII, Title IX, and the Violence Against Women Reauthorization Act of 2013 because it treats transgender individuals differently from similarly situated nontransgender people.

• May 4, 2016: The EEOC entered into a settlement with Ellucian Company, a provider of higher education technology services, which agreed to pay $140,000 to resolve a charge of discrimination filed by an employee who alleged that Ellucian bowed to pressure from a client to “bar[] the employee from access to her workplace on a college campus the day after she informed her co-workers she planned to transition from male to female.” Ellucian agreed “to modify its code of conduct to include gender identity as a protected basis in its anti-discrimination provisions and distribute the new code of conduct to all employees. It will also provide training for all of its employees in the U.S. on gender identity discrimination, with additional training and coaching for all

52 On May 25, 2016, the State of Texas and 10 other states sued the DOE, the DOJ, the 57 EEOC, and the DOL in federal court, challenging the legality of this guidance document. See the May 25, 2016 entry below.

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personnel who may receive removal requests from clients.” See EEOC Press Release, Ellucian to Pay $140,000 to Resolve Discrimination against Transgender Employee (May 5, 2016), at www.eeoc.gov/eeoc/newsroom/release/5-5-16.cfm.

• May 4, 2016: The “Students and Parents for Privacy” and several minor students sued the DOE, the DOJ, and the Palatine Township (Illinois) High School District 211 in federal court, challenging (1) the legality of the DOE’s position with respect to transgender students and the DOJ’s enforcement of that position, and (2) seeking to enjoin enforcement of the December 2, 2015 settlement agreement between High School District 211 and the DOE (discussed above). The complaint in Students and Parents for Privacy v. U.S. Department of Education, Civil Action No. 1:16-cv-04945 (N.D. Ill. filed May 4, 2016), is at http://files.eqcf.org/wp-content/uploads/2016/05/1- Complaint.pdf.

• May 9, 2016: The DOJ and several North Carolina officials filed dueling federal court lawsuits regarding the legality of North Carolina’s Public Facilities Privacy & Security Act (a/k/a H.B.2), discussed above. For the complaints, see U.S. v. North Carolina, Civil Action No. 1:16-cv-00425 (M.D.N.C. filed May 9, 2016), at http://files.eqcf.org/wp- content/uploads/2016/05/1-Complaint-2.pdf; McCrory v. U.S., Civil Action No. 5:16-cv-00238-BO (E.D.N.C. filed May 9, 2016) (filed by the Governor and the Secretary of the North Carolina Department of Public Safety), at http://files.eqcf.org/wp-content/uploads/2016/05/1-Complaint-1.pdf; Berger v. U.S., Civil Action No. 5:16-cv-00240-FL (E.D.N.C. filed May 9, 2016) (filed by the President of the North Carolina Senate and the Speaker of the North Carolina House of Representatives), at http://files.eqcf.org/wp- content/uploads/2016/05/1-Complaint-3.pdf.

• May 10, 2016: Virginia Attorney General Advisory Opinion No. 15-070, 2016 WL 2940460 (May 10, 2016), at http://ag.virginia.gov/files/Opinions/2016/15- 070Messrs_GarrettPlumLaRock.pdf, which concludes that various Virginia laws that bar discrimination based on sex “most likely prohibit discriminatory conduct against LGBT Virginians when that conduct is based on sex-stereotyping or on treating them less favorably on account of their gender. That conclusion is particularly well-founded with respect to the Virginia Human Rights Act, the scope of which includes all discriminatory conduct prohibited under federal law. Additionally, while a strong argument could be made that discrimination on the basis of gender identity or sexual orientation is always sex discrimination within the meaning of Virginia’s anti-discrimination statutes, the Supreme Court of Virginia has not considered and resolved that question. . . . I am aware that some persons argue that those who enacted the Commonwealth’s

antidiscrimination statutes did not intend for their prohibitions on sex-based

58 discrimination to protect LGBT individuals. What has expanded is not the definition of ‘sex,’ but instead courts’ recognition that many instances of Page Page

discriminatory conduct against LGBT individuals are fundamentally ‘based on’ sex.”

• May 13, 2016: The DOJ and the DOE’s Dear Colleague Letter: Transgender Students, at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605- title-ix-transgender.pdf, which reiterates, among other things, that:

. The DOJ and the DOE “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”

. “[T]here is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”

. A school cannot justify discrimination against transgender students based on other persons’ discomfort with those students.

. “[A] school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex.”

. “When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”

. “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.”

. Schools must “take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.”53

53 On May 4, 2016, the “Students and Parents for Privacy” and several minor students sued the DOE, the DOJ, and the Palatine Township (Illinois) High School District 211, challenging the legality of the DOE’s position with respect to transgender students and the DOJ’s enforcement of that position. See the May 4, 2016 entry above for more information about this litigation. In their May 23, 2016 application for a preliminary injunction, the plaintiffs also challenge the legality of the May 13, 2016 Dear Colleague Letter: Transgender Students.

On May 25, 2016, the State of Texas and 10 other states sued the DOE, the DOJ, the 59 EEOC, and the DOL in federal court, challenging the legality of this guidance document. See the May 25, 2016 entry below.

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The DOJ and the DOE also issued a compilation of illustrative policies and practices, Examples of Policies and Emerging Practices for Supporting Transgender Students, at http://www2.ed.gov/about/offices/list/oese/oshs/emergingpractices.pdf.

• May 18, 2016: The HHS’s final rule to effectuate Section 1557 of the ACA, which, among other things, prohibits discrimination on the basis of sex in certain health programs and activities.54

54 U.S. Department of Health and Human Services, Nondiscrimination in Health Programs and Activities: Final Rule, 81 Fed. Reg. 31376 (May 18, 2016), at www.federalregister.gov/articles/2016/05/18/2016-11458/nondiscrimination-in-health- programs-and-activities or www.gpo.gov/fdsys/pkg/FR-2016-05-18/pdf/2016-11458.pdf.

Among other things, the final rule provides: “A covered entity shall provide individuals equal access to its health programs or activities without discrimination on the basis of sex; and a covered entity shall treat individuals consistent with their gender identity, except that a covered entity may not deny or limit health services that are ordinarily or exclusively available to individuals of one sex, to a transgender individual based on the fact that the individual’s sex assigned at birth, gender identity, or gender otherwise recorded is different from the one to which such health services are ordinarily or exclusively available.” 45 C.F.R. §92.206, 81 Fed. Reg. at 31471. This means that issuers are no longer permitted to, among other things, (1) “[h]ave or implement a categorical coverage exclusion or limitation for all health services related to gender transition” or (2) “[o]therwise deny or limit coverage, deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions on coverage, for specific health services related to gender transition if such denial, limitation, or restriction results in discrimination against a transgender individual.” 45 C.F.R. §92.207(b)(4)–(5), 81 Fed. Reg. at 31472.

In addition, according to the preamble of the final rule, HHS states:

Under the final rule, if an entity that receives Federal financial assistance is principally engaged in providing or administering health services, health insurance coverage, or other health coverage, then, consistent with the approach taken under the civil rights laws referenced in Section 1557 . . ., . . . all of its operations are covered. Thus, if an issuer that receives Federal financial assistance is principally engaged in providing health insurance and also provides third party administrator services, there is no principled basis on which to exclude the law’s application to the third party administrator services or to treat them differently from other entities and services covered by the rule.

* * *

[W]here the alleged discrimination is related to the administration of the plan by a third party administrator that is a covered entity, [the HHS’s Office for Civil Rights (OCR)] will process the complaint against the third party administrator because it is that entity that is responsible for the decision or other action being challenged

in the complaint. . . . Where, by contrast, the alleged discrimination relates to 60 the benefit design of a self-insured plan [for which the third party administrator was not responsible for designing] – for example, where a plan excludes

Page Page coverage for all health services related to gender transition – . . . [then instead

• May 25, 2016: The State of Texas and 10 other states55 sued the DOE, the DOJ, the EEOC, and DOL in federal court, arguing that these federal agencies and their highest-level executives, in issuing a series of guidance documents mandating that individuals be allowed to use the sex-segregated facilities that correspond to their gender identity but not their sex as assigned at birth, “have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. The complaint in Texas v. U.S., Civil Action No. 7:16-cv-00054-O (N.D. Tex. filed May 25, 2016), is at www.texasattorneygeneral.gov/files/epress/files/2016/complaint_FM.pdf.

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GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE (Christine Michelle Duffy ed. Bloomberg BNA 2014) www.bna.com/bnabooks/giso

Because of the unfinished nature of the business [of providing justice and economic equality for all], this treatise is at once groundbreaking and a

the] OCR typically will refer or transfer the matter to the EEOC and allow that agency to address the matter.

Preamble for § 92.207, Nondiscrimination in Health Programs and Activities: Final Rule, 81 Fed. Reg. at 31432. See also Tovar v. Essentia Health, Civil Action No. 16-100 (RHK/LIB), --- F. Supp.3d ---, --- EBC ---, 2016 WL 2745816 (D. Minn. May 11, 2016) (third party administrator of a self-insured employee health benefit plan not liable under Section 1557 for plan design decision that previously excluded coverage for gender reassignment services and surgery; in addition, plaintiff employee has no standing to sue for sex discrimination under Title VII for health plan’s earlier refusal to provide such services and surgery to plaintiff’s son), at www.gpo.gov/fdsys/pkg/USCOURTS-mnd-0_16-cv- 00100/pdf/USCOURTS-mnd-0_16-cv-00100-0.pdf.

The final rule is effective on July 18, 2016, “except to the extent that provisions of [the final rule] require changes to health insurance or group health plan benefit design (including covered benefits, benefits limitations or restrictions, and cost-sharing mechanisms, such as coinsurance, copayments, and deductibles), such provisions, as they apply to health insurance or group health plan benefit design, have an applicability date of the first day of the first plan year (in the individual market, policy year) beginning on or after January 1, 2017. 45 C.F.R. §92.1, 81 Fed. Reg. at 31466.

61 55 The other states are: Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin.

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work in progress. . . . Lawyers, social workers, scholars, and ordinary citizens alike will return to this volume again and again not only for knowledge but for inspiration, and perhaps even to inform the next battle for civil rights, whatever that may be.

— Virginia Long, Justice (ret.), New Jersey Supreme Court, and Asaf Orr, Staff Attorney, National Center for Lesbian Rights

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Christine Duffy has put together what will surely be the bible for bringing fair treatment to LGBT people. Furthermore, this work has the potential to accomplish the higher purpose of why Ms. Duffy spent over three years of her life on this project—namely, to help people humanize those who are unlike them.

—W. Michael Hoffman, Ph.D. Executive Director, Center for Business Ethics, and Hieken Professor of Business and Professional Ethics, Bentley University

______

Every once in a while . . . someone drops a gift in our lap which makes everything much easier to comprehend. Christine Michelle Duffy has done just that with her Gender Identity and Sexual Orientation Discrimination in the Workplace. In one remarkable, easy to read treatise, Ms. Duffy attacks and conquers all issues related to federal and state law requirements in one easy to use volume. . . . This tome is a must have for human resources professionals and lawyers.

—Mark Theodore, Co-Chair, Labor-Management and Collective Bargaining Practice Group, Proskauer Rose LLP

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BNA’s new book Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide offers a comprehensive and authoritative survey of these rapidly developing areas of the law. . . . This is a truly extraordinary, groundbreaking publication for a rapidly growing area of the law that will be a work in progress for the foreseeable future. It will be a handy desk reference for every employment law practitioner and a “must” addition to the libraries of all human resources professionals.

62 —Gerald D. Skoning, Retired partner, Seyfarth Shaw, LLP Page Page

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Christine Michelle Duffy has compiled a thorough examination of the key issues pertaining to gender identity and sexual orientation in the workplace, as I knew only she could! For any human resource or legal professional, the message to not discriminate in the workplace is loud and clear. . . . Her treatise is a solid reference guide for any size of firm . . . .

—Joy M. Gaetano, SPHR, retired Director of Human Resources, North Allegheny, PA, School District

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The issue of gender identity and sexual orientation discrimination has moved quickly to the forefront of progressive social movements. This new volume will show where that movement came from, including personal stories of the movement's development, where it is now, where the movement is going in law, in workplaces and society more generally but also what still needs to be done to guarantee full equality.

—Michael J. Zimmer, Esq., Professor of Law, Loyola University Chicago, and Coauthor, Cases and Materials on Employment Discrimination (8th ed. 2013)

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This comprehensive book will be an invaluable resource for practitioners across the country as we continue to fight for full equality for our community.

—D'Arcy Kemnitz, Executive Director, The National LGBT Bar Association

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Several portions of the treatise are available for free download at:

Summary Table of Contents: www.bna.com/uploadedFiles/BNA_V2/Legal/Products/Books/Employment_and_ Labor_Law/gidTocSummary.pdf

Detailed Table of Contents: www.bna.com/uploadedFiles/BNA_V2/Legal/Products/Books/Employment_and_

Labor_Law/gidTocDetailed.pdf

63 Page Page

Contributors (by Chapter): www.bna.com/uploadedFiles/BNA_V2/Legal/Products/Books/Employment_and_ Labor_Law/gidContributors.pdf

Preface (which includes an explanation for why Christine selected the GLBTQ Legal Advocates & Defenders (www.GLAD.org) to receive the royalties): www.bna.com/uploadedFiles/BNA_V2/Legal/Products/Books/Employment_and_ Labor_Law/gidPreface.pdf

Foreword 1: Unfinished Business, by retired New Jersey Supreme Court Justice Virginia Long and National Center for Lesbian Rights Staff Attorney Asaf Orr: www.bna.com/uploadedFiles/BNA_V2/Legal/Products/Books/Employment_and_ Labor_Law/gidForeword_1.pdf

Foreword 2: With Fairness for All, by Delaware Governor Jack Markell: www.bna.com/uploadedFiles/BNA_V2/Legal/Products/Books/Employment_and_ Labor_Law/gidForeword2.pdf

Chapter 6: Vandy Beth Glenn, Glenn v. Brumby: Forty Years After Grossman: http://vandybethglenn.com/wp/wp-content/uploads/CH06-Glenn-v.-Brumby- Glenn.pdf

Chapter 9: Cheryl McCormick, Living an Ordinary Life: http://vandybethglenn.com/wp/wp-content/uploads/CH09-Living-an-Ordinary- Life.pdf

Chapter 12: Alexis Grant, A Parent’s Perspective on Gender Affirmations: http://vandybethglenn.com/wp/wp-content/uploads/CH12-A-Parents- Perspective.pdf

Chapter 13: Catherine E. Reuben, Why I Support Transgender Rights: An Employer-Side Lawyer’s Story: www.hrwlawyers.com/assets/Ch13-Why-I- Support-Transgender-Rights.pdf

Chapter 15: Taylor Flynn, with Jennifer L. Levi and Irina Vaynerman, Federal Equal Protection: http://digitalcommons.law.wne.edu/facschol/299 or http://ssrn.com/abstract=2609113

Chapter 16: Christine Michelle Duffy, The Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973: www.bna.com/uploadedFiles/BNA_V2/Legal/Products/Books/Employment_and_ Labor_Law/CH16%20Americans%20with%20Disabilities%20(Duffy).pdf

Chapter 19: Suzanne B. Goldberg, Terra Hittson, and Kevin Hu, with Christine Michelle Duffy, The Employment Non-Discrimination Act: Its Scope, History, and

Prospects: 64 www.law.columbia.edu/null/download?&exclusive=filemgr.download&file_id=613 695 Page Page

Chapter 39: Chai R. Feldblum, Law and Culture in the Making of Macy v. Holder: http://chaifeldblum.com/wp-content/uploads/2015/10/CH39-Law-and-Culture-in- the-Making-of-Macy-v.-DOJ.pdf

Chapter 40: Brad Sears and Christy Mallory, Employment Discrimination Against LGBT People: Existence and Impact: http://williamsinstitute.law.ucla.edu/wp- content/uploads/CH40-Discrimination-Against-LGBT-People-Sears-Mallory.pdf or http://escholarship.org/uc/item/9qs0n354

Chapter 41: Brad Sears and Christy Mallory, How LGBT-Related Workplace Policies Can Have a Positive Impact on the Corporate Bottom Line: http://williamsinstitute.law.ucla.edu/wp-content/uploads/CH41-LGBT-Related- Workplace-Policies-Sears-Mallory.pdf or http://escholarship.org/uc/item/2fh9x0zv

Chapter 44: Susan B. Marine, A Millennial Moment: Understanding Twenty-First Century LGBT Workers and Their Allies: http://scholarworks.merrimack.edu/soe_facpub/80/

Chapter 46: Julie A. Greenberg, Interacting in the Workplace With Individuals Who Have an Intersex Condition: http://ssrn.com/abstract=2569403

Chapter 47: Jennifer L. Levi, Clothes Don’t Make the Man (or Woman), But Gender Identity Might: http://digitalcommons.law.wne.edu/facschol/298 or http://ssrn.com/abstract=2608609

About the Editor-in-Chief, Christine Michelle Duffy: www.bna.com/uploadedFiles/BNA_V2/Legal/Products/Books/Employment_and_ Labor_Law/gidEditorInChief.pdf

The treatise is available many major libraries, including those listed at www.worldcat.org/title/gender-identity-and-sexual-orientation-discrimination-in-the- workplace-a-practical-guide/oclc/883749063&referer=brief_results.

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