North Carolina's governor launched a two-part strategy Wednesday that could end protracted litigation over the state's so-called bathroom bill and its replacement, while expanding LGBT protections lawmakers aren't inclined to endorse.

Plaintiffs who had sued the state claiming discrimination asked a judge to approve a settlement with the governor that would ensure transgender people can use restrooms corresponding to their gender identity in facilities run by executive branch agencies that oversee the environment, transportation and Medicaid, among others.

Democratic Gov. Roy Cooper also issued an executive order prohibiting Cabinet-level departments under his control, including their contractors, from discriminating on the basis of sexual orientation and gender identity.

Plaintiffs said that if the judge agrees with the consent decree's interpretation of the law, they would drop claims against the governor and other defendants.

But Republican legislative leaders are likely to oppose the consent decree that essentially rescinds a key part of a compromise law hammered out with Cooper in March. The legislative leaders and the state university system, also defendants in the case, didn't sign the proposed consent decree.

Spokespeople for Senate leader Phil Berger and House Speaker Tim Moore said their offices needed more time to review Cooper's actions.

A lawyer for the American Civil Liberties Union said that the federal judge has leeway to approve the interpretation of the law contained in the consent decree even if legislative leaders oppose it. But cooperation by the remaining defendants would ensure an end to the legal fight.

"The ball is in their court now," ACLU lawyer Chris Brook said. "Do they want to defend discrimination? Do they want to continue this litigation? Those are questions that need to be answered by the UNC System and the legislative leadership."

The UNC system believes the case should be dismissed outright and reiterated its commitment to nondiscrimination policies, spokesman Josh Ellis said.

The state took the "bathroom bill," also known as HB2, off the books in late March after a yearlong backlash that hurt North Carolina's reputation and caused businesses and sports leagues to back out of lucrative events and projects. But in July, LGBT activists announced that they were revamping their lawsuit to target the replacement law, known as HB142, saying it continued the harms of its predecessor.

HB142 eliminated the "bathroom bill" requirement that transgender people use restrooms in many public buildings corresponding to the sex on their birth certificates.

But the new law makes clear that only the General Assembly — not local government or school officials — can make rules for public restrooms from now on. Local governments are also prohibited from enacting new nondiscrimination ordinances for workplaces, hotels and restaurants until December 2020.

The executive order issued late Wednesday was several months in the making. Cooper told Democratic activists in May that he would improve LGBT protections on his own, even as he compromised with GOP legislators on a partial repeal of HB2.

The executive order and consent decree "are important steps toward fighting discrimination and enacting protections throughout state government and across our state," Cooper said in a release. "We've worked with the business community, advocates for the LGBT community and other North Carolinians who know our state is stronger because of our diversity, and I will keep working to make our state a welcoming and inclusive place."

Cooper's office said the order would affect 55,000 state employees and 3,000 vendors for up to $1.5 billion in contracts. The governor said the vendor language would let the state protect more members of the LGBT community outside of state government. The executive order doesn't specifically address bathrooms, leaving it to the proposed decree to resolve.

Aside from fighting the proposed consent decree in court, the General Assembly could pass a law canceling the executive order. Legislators left Raleigh on Tuesday and aren't scheduled to return for three months, however.

Cooper's agreement to "reset" HB2 led to strong criticism of Cooper by gay rights activists who worked for him and spent campaign money toward defeating Republican incumbent Pat McCrory, who signed HB2. The 2016 law required transgender people to use restrooms corresponding to the sex on their birth certificates in many public buildings. It also limited anti-discrimination protections for lesbian, gay, bisexual and transgender people.

Some gay rights groups gave lukewarm support to the executive order.

It "may represent some narrow improvements for LGBTQ North Carolinians, by no means does it offer full protections or rectify the tremendous harm caused by the previous laws," Human Rights Campaign Senior Vice President JoDee Winterhof said.

Meanwhile, the conservative North Carolina Values Coalition issued a statement slamming the governor's moves as "a massive power grab, with sweeping changes that only the legislative branch has the authority to enact." Executive director Tami Fitzgerald said the actions would make restrooms across the state less safe.

WASHINGTON — The Justice Department has dispatched an experienced federal hate crimes lawyer to Iowa to help prosecute a man charged with murdering a transgender high school student last year, a highly unusual move that officials said was personally initiated by Attorney General Jeff Sessions.

In taking the step, Mr. Sessions, a staunch conservative, is sending a signal that he has made a priority of fighting violence against transgender people individually, even as he has rolled back legal protections for them collectively.

The Justice Department rarely assigns its lawyers to serve as local prosecutors, and only in cases in which they can provide expertise in areas that the federal government views as significant. By doing so in this instance, Mr. Sessions put the weight of the government behind a small-city murder case with overtones of gender identity and sexuality.

Kedarie Johnson, a 16-year-old student in Burlington, Iowa, was shot to death in March 2016. Family and friends told local newspapers that he was gay, identified as both male and femaleand occasionally went by the name Kandicee. Christopher Perras, a Justice Department lawyer, will serve as a county prosecutor in the case, according to court documents filed on Friday.

“This is just one example of the attorney general’s commitment to enforcing the laws enacted by Congress and to protecting the civil rights of all individuals,” said Devin O’Malley, a spokesman for the Justice Department.

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Kedarie Johnson, a 16-year-old Iowan who identified as both male and female, was killed last year. The Justice Department is sending an experienced hate crimes lawyer to help prosecute the case.

Nine months into his tenure as the nation’s top law enforcement official, the nuances of Mr. Sessions’s civil rights policy are coming into focus. As a senator from Alabama, Mr. Sessions had spoken out against same-sex marriage and voted against expanding federal hate crimes laws to protect transgender people, and civil rights groups were livid when President Trump nominated him to be attorney general. They predicted he would reverse policies on discrimination, police abuses and other areas.

In many ways, Mr. Sessions has fulfilled those predictions. He declared that the Justice Department no longer considered gay or transgender people to be protected from workplace discriminationand reversed a policy encouraging schools to let transgender students use bathrooms that fit their gender identities. He abandoned objections to voter identification requirements in Texas and signaled that he would not try to force federal oversight on police departments suspected of abuses.

But he has also brought several hate crime cases, including one against a man accused of burning a mosque. He condemned white supremacist violence in Charlottesville, Va., far more forcefully than the president. And he has vowed tough action against hate crimes, speaking aggressively in ways that few of his most ardent opponents could have predicted. He has tied enforcement of those crimes to his tough stance against violence, a cornerstone of his policies as attorney general.

“Hate crimes are violent crimes,” Mr. Sessions said in a speech in June. He has publicly applauded aggressive hate crime prosecutions, including one in which a Mississippi man received a 49-year prison sentence in the death of a transgender woman. That case was brought in the final weeks of the Obama administration. “No person should have to fear being violently attacked because of who they are, what they believe, or how they worship,” Mr. Sessions said.

During the Obama administration, the Justice Department pushed the boundaries of civil rights, routinely arguing for a broad reading of the law. Mr. Sessions takes a much narrower view. When civil rights laws say “sex,” Mr. Sessions argues, they mean only that — not gender identity or sexual orientation.

Critics and supporters agree that Mr. Sessions is more likely to pursue civil rights matters in individual cases, rather than trying to address larger, systemic issues, as the Obama administration did. He has promised to “punish any police conduct that violates civil rights,” for example, but is skeptical of efforts to force department-wide overhauls. He supports prosecuting those who commit violence against transgender victims but opposes reading the law in a way that broadly extends discrimination protection for transgender people.“He has no problem with discrimination against L.G.B.T.Q. people in jobs, education and other facets of life, but will lean forward in this one case where a transgender individual has been killed,” said Vanita Gupta, the president of the Leadership Conference on Civil and Human Rights and the head of the Justice Department’s civil rights division in the Obama administration. “While it is of course good that D.O.J. is aggressively pursuing this case, it would behoove Sessions to connect the dots between his policies that promote discrimination and hate that can result in death.”

In March, six House members wrote Mr. Sessions and implored him to investigate a spate of killings of transgender black women. The letter got his attention, and he summoned one of his top civil rights prosecutors to a meeting about it.

Federal law — the one Mr. Sessions opposed in the Senate — makes it a crime to attack someone based on gender identity. Typically, civil rights prosecutors monitor news reports and other public information, looking for signs of a hate crime that would give them reason to investigate.

“That may not be good enough,” Mr. Sessions said, according to an official in attendance.

He ordered civil rights prosecutors and the F.B.I. to review each of the seven cases lawmakers had asked about and to contact local authorities to offer assistance. “A lot of concerns and questions were out there about how this was occurring and what we were doing about it,” Mr. Sessions recalled in his June speech.

At his Senate confirmation hearing, Mr. Sessions faced pointed questions from some of his former Judiciary Committee colleagues about his views on hate crimes, particularly those involving transgender victims. “The law has been passed. The Congress has spoken,” Mr. Sessions said. “You can be sure I will enforce it.”

Mr. Sessions has invoked that testimony in discussions at the Justice Department, saying that he gave Congress his word and that he intended to keep it, according to one person present, who spoke on the condition of anonymity to describe private conversations.

As part of its review, the Justice Department opened at least one hate crime investigation, helped process evidence in another case and sent Mr. Perras to Iowa to help prosecute a man, Jorge Sanders-Galvez, accused in Kedarie Johnson’s killing.

The local authorities have not publicly disclosed a motive in that case but have said they do not believe it was related to gender or sexual orientation. The victim’s family disagrees. The county attorney, Amy K. Beavers, did not respond to email and phone messages.

A high-profile test of Mr. Sessions’s views on individual accountability is looming. Last year, Attorney General Loretta Lynch authorized prosecutors to seek civil rights charges against a New York City police officer over the death of Eric Garner. Mr. Garner died in 2014 after the officer put him in a chokehold. His gasps of “I can’t breathe” became a nationwide rallying cry for protesters criticizing police abuses — a movement that Mr. Sessions criticized.

Prosecutors have been building their case before a grand jury, with an eye toward what would be one of the highest-profile police abuse indictments in years.

The National Council of Jewish Women/Essex is sponsoring a Lunch and Learn, “Free to Be He, She, They: Children and Gender Identity,’’ featuring Jamie Bruesehoff, a writer, speaker and mother of a 10-year-old transgender child and an advocate for transgender youth and adults, and Nicole Davis, a licensed clinical social work and clinical associate with the Gender and Family Project in New York, on Wednesday, Nov. 8, from noon to 2 p.m. in Livingston.
“Our program will be a unique opportunity to learn about what life is like for families with a transgender child,” said Shari Harrison, president, NCJW/Essex. “We are thrilled to welcome Jamie Bruesehoff and Nicole Davis to educate and inspire us to look at children and gender identity from different perspectives.”
Bruesehoff, an activist mother, and Davis, a family therapist, are leading advocates for transgender children. 
The event will be held at Temple B’nai Abraham, Livingston. Pre-registration is required. The fee is $20 for members, $25 for nonmembers. It includes a buffet lunch. To register, call 973-740-0588 or visit www.ncjwessex.org.

About 100 people gathered Sunday night at the GLO Center in Springfield to honor the life of Ally Steinfeld, a transgender teen killed last month.

Steinfeld's mutilated and burned remains were found in a chicken coop near Cabool. Three young people have been charged with first-degree murder, armed criminal action and abandonment of a corpse. A fourth has been charged with tampering with evidence and abandonment of a corpse.

Krista Moncado, executive director of the GLO Center, said the vigil gave the local community a chance to "mourn the loss of one of our transgender youth."

Moncado said it's also an opportunity for a call to action.

"Specifically, calling out hate speech when you hear it," Moncado said. "Even when it's somebody you love and respect, then it's even more important to be able to call them out and say, 'We don't say those things here.' 

"Because our lives depend on it," she continued. "The lives of our LGBTQ family depend on our allies being brave and speaking out."

Mandy Monsees, a transgender woman from Springfield, was among those in attendance.Monsees said she appreciated learning about the loving and accepting relationship Steinfeld had with her parents. 

Derrick King sings "The Arms of an Angel" in honor of slain trans teen Ally Steinfeld, who was killed last month, on Oct. 8, 2017. Jackie Rehwald/News-Leader

"Them supporting her for who she was, even though it ended tragically for her, still allowed her to have some happy moments in her life," Monsees said. 

A woman from Texas County, where Steinfeld's body was found, also attended the event. She asked her name not be used, but said many folks there are struggling.

She came to the event with the hope of connecting with people from the GLO Center. She would like to create a GLO Center in Mountain Grove. 

She said if anyone in the Texas County region reads this and would like to reach out, contact the Springfield GLO Center at 417-869-3978 or email Moncado at This email address is being protected from spambots. You need JavaScript enabled to view it..

By Tom Holbrook

 

Editor's note: Tim Holbrook is a professor of law at Emory University School of Law. He is a member of the boards of directors of the Transgender Legal Defense and Education Fund and the Stonewall Bar Association of Georgia. The views expressed are his and his alone.

(CNN) -- Attorney General Jeff Sessions has struck again, as the Trump administration makes another move to withdraw hard-earned legal protections for the lesbian, gay bisexual, transgender, and queer (LGBTQ) community.

Since January, the administration has opposed federal non-discrimination protections based on sexual orientation in federal court, withdrawn guidance to schools designed to protect transgender students, and is set to ban all transgender persons from serving in the military.

Sessions' statement is also just wrong.

The attorney general and Department of Justice do not get to decide what "is a conclusion of law." The courts do. And the courts have recognized that federal law does protect transgender people as a form of discrimination based on sex.

The roots of these protections can be found in the Supreme Court's 1989 decision, Price Waterhouse v. Hopkins. In that case, the court held that the law protects persons from discrimination based on sex stereotyping. It also concluded it would be illegal to fail to promote a woman because she acts "too masculine" or otherwise fails to otherwise act like a woman.

The extension to transgender persons is clear. The gender identity of transgender people does not correspond with the sex assigned to them at birth. Their expression of their authentic gender will be incongruent with their assigned sex. If an employee transitions at work, or if the employer is aware of that person's birth-assigned sex (such as by having a birth certificate that the transgender person has not been able to correct), then the transgender person could be viewed as not comporting to traditional gender norms.

Federal courts have held that transgender persons are protected for this reason. And these cases are not even recent. Seventeen years ago, the federal appellate court in Boston concluded that discrimination against a transgender person could violate law as a form of sex discrimination. Even the conservative US Court of Appeals for the 11th Circuit, which hears appeals from Georgia, Florida, and Sessions' own Alabama, has concluded that discrimination against a transgender persons is illegal sex discrimination. So as a "conclusion of law," Sessions is just wrong.

The Supreme Court has not squarely addressed this issue yet. Ultimately, the justices may disagree with the lower courts. But, at present, the conclusion as to the law is that transgender people are protected.

The Sessions letter's language about "per se" protections is also odd and, if taken to its logical conclusion, would lead to perverse results. The memo acknowledges that "Although federal law ... provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se."

First, in the area of discrimination and civil rights law, nothing is "per se." Courts must assess what someone's intent was and whether there were legitimate, non-discriminatory reasons for taking certain actions.

Second, if taken seriously, the Sessions letter could eviscerate transgender protections, notwithstanding that the letter acknowledges some protections for transgender persons. If taken literally, it would mean, for example, that employers can't fire transgender persons because of their gender non-conformity, but they could simply because they are transgender.

That would privilege overt discrimination in a way that is antithetical to our conceptions of non-discrimination and equal protection. It would truly gut federal non-discrimination protections for transgender persons. That very well may be what Sessions wants. And that would be reprehensible.

The timing of this letter could not be more ironic. October 11 is National Coming Out Day, where the LGBTQ community celebrates living one's life openly and authentically. The Sessions Department of Justice is now putting those persons at the greatest risk of losing their jobs or homes. So much for Trump's promise to protect LGBT persons.

 

 

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