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the administration has opposed federal non-discrimination protections based on sexual orientation in federal court, withdrawn guidance to schools designed to protect transgender students, and is set to ban all transgender persons from serving in the military.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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The Lynchburg Police Department has charged a Lynchburg man with second degree murder in connection with a July homicide of a transgender woman.

Kenneth Allen Kelley Jr., 22, has been charged with second degree murder and use of a firearm in a felony in connection with the death of Ebony Morgan, 28, whose legal name was Phineas Rufus Neville.

The police are seeking the public’s help to find Kelley, whose whereabouts are unknown.

Morgan suffered multiple gunshot wounds in a shooting during the early morning hours of July 2 on Rivermont Avenue and was transported to Lynchburg General Hospital, where she later died.

Kelley was named a person of interest in the case a day after Morgan died, and the Lynchburg Police Department later stated Kelley is wanted on drug charges. Police have released few details in this case, including any connection between Kelley and the victim.

A news release from the Office of the Commonwealth’s Attorney states that Chief Deputy Commonwealth’s Attorney Bethany Harrison and Assistant Commonwealth’s Attorney Matt Vordermark are assigned to be prosecutors in the case.

Anyone with information as to Kelley’s whereabouts is asked to contact Lynchburg Police Detective A. O. Kittrell by calling (434) 455-6170 or contact Crime Stoppers by calling 1-888-798-5900, visiting www.cvcrimestoppers.org or texting “CVCS” and a message to 274637.

Attorney General Jeff Sessions has reversed an Obama-era policy explicitly defining transgender workers as protected under employment discrimination laws, CBS News' Paula Reid reports.

The Wednesday policy reversal of what qualifies as employment discrimination under Title VII of the Civil Rights Act comes down to an idealogical disagreement over whether "sex" is decided by a person's birth certificate, or whether sexual discrimination includes broader gender identity. Title VII prohibits any employment discrimination based on race, color, religion, sex and national origin. Former Attorney General Eric Holder in 2014 interpreted "sex" discrimination to apply to discrimination based on gender identity, while Sessions' DOJ interprets that it only applies to discrimination between men and women. 

Sessions' DOJ argues Holder went beyond the definition of the 1964 law by including transgender discrimination. 

"The Department of Justice cannot expand the law beyond what Congress has provided," DOJ spokesperson Devin O'Malley said. Unfortunately, the last administration abandoned that fundamental principle, which necessitated today's action. This Department remains committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation." 

The move comes after President Trump has announced he will prohibit transgender individuals from serving in the military, a decision that shocked his own party and caused backlash from Democrats and civil liberties groups.

Sessions' latest policy shift could very well could end up in court, Reid reports. Already, it's under fire from civil liberties groups like the American Civil Liberties Union (ACLU).

"Today marks another low point for a Department of Justice, which has been cruelly consistent in its hostility towards the LGBT community and in particular its inability to treat transgender people with basic dignity and respect," James Esseks, director of the ACLU's LGBT & HIV Project, said in a statement. 

"This Department of Justice under Jeff Sessions has time and time again made it clear that its explicit agenda is to attack and undermine the civil rights of our most vulnerable communities, rather than standing up for them as they should be doing," Esseks continued. "Discrimination against transgender people is sex discrimination, just as DOJ recognized years ago. We are confident that the courts will continue to agree and will reject the politically driven decision by Attorney General Sessions."

A Cambridge University college has agreed to change its rules to ensure transgender women are welcome.

Murray Edwards college, founded in 1954, will now allow any self-identifying woman to attend the college.

The new rules will be applied to any student who has taken steps to identify as a woman, regardless of the gender on their birth certificate or other official documentation.

The esteemed college has previously educated the likes of out comedian Sue Perkins, Strictly Come Dancing host Claudia Winkleman and actress Tilda Swinton.Dame Barbara Stocking, president of the college, said: “We are a college that is open to all outstanding young women and so it is absolutely right, both legally and within our set of values, for anyone who identifies as female to be able to apply to study with us.

"Society is changing and there is now a greater understanding of the complexities of gender.”

An official statement by Murray Edwards said existing Cambridge students will also be permitted to move into the college if they transition to female while there.

“Many of us within the college have sympathy with the idea that gender is not binary, and have concerns that narrow gender identities and the expectations associated with them are damaging both to individuals and to wider society.

“The college is also supportive of students who do not wish to define themselves as either female or male.

“At the admissions level, we will consider any student who, at the point of application, identifies as female and, where they have been identified as male at birth, has taken steps to live in the female gender (or has been legally recognised as female via the Gender Recognition Act 2004).

“Similarly, just as we would consider any other female student seeking to transfer to this college during their degree, we would consider any student who, at the point of requesting the transfer, identifies as female.”

The new rules will also allow students who transition to male to move to mixed colleges.

“Should the student decide that they would prefer to be in a mixed college if transitioning to male or if rejecting a binary gender category, the college would be fully supportive of a transfer and do all that was possible to bring one about,” they said.

 

Fans worldwide are in mourning, after the announcement that rock icon Tom Petty died last night, of a heart attack in his home in California.

It came as a shock to many, as Petty had only recently finished his latest tour, a 40th Anniversary celebration with his band The Heartbreakers

He had hinted that this may be his last circuit, saying “I’d be lying if I didn’t say I was thinking this might be the last big one,” but many believed it to be an empty threat.

Midway through the tour, however, Petty made news for what was seen as a show of support for transgender rights.

In the performance of one of his most famous songs, “American Girl,” Petty regularly projected pictures of a diverse group of women.

On this tour, the video footage included a photo of transgender actress and activist Alexis Arquette.

Arquette came out as transgender in her late 30s, and died last year, aged 47, from complications after having lived for almost 30 years with HIV.

The photo took on particular significance when Petty played a sold-out show in New York on July 26, just hours after Trump announced his transgender military ban.

Many hailed Petty’s inclusion of Arquette as a strong political statement, considering the timing.

David Arquette, Alexis’ brother, thanked Petty on Instagram for the gesture.

Petty hadn’t been shy about expressing his opinion on other political topics. In an interview with Billboard in 2014, he lashed out at members of the Catholic community.

“I’m fine with whatever religion you want to have, but it can’t tell anybody it’s OK to kill people, and it can’t abuse children systematically for God knows how many years.”

“It seems to me that no one’s got Christ more wrong than the Christians,” he continued.

He also notoriously refused the rights of his songs to a number of Republican political candidates, even going so far as to file a cease-and-desist when George W. Bush tried to use Petty’s song “I Won’t Back Down,” in his Presidential campaign.

In contrast, Petty was glad to let then-President Obama walk onstage to the song at the 2012 Democratic National Convention, saying he “got chills.”

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