The homophobic thread :>

[Vrede too]

Did Seth Milner really need to have the difference between sexual orientation and gender identity explained to him? Wow.

... (CaitlynJenner) said she has never been sexually attracted to men, but has instead always been sexually attracted to women, and that, keeping in mind the difficulty people have understanding the difference between sexual orientation and gender identity, she will identify as asexual for now.

[Seth Milner]

Did Seth Milner really need to have the difference between sexual orientation and gender identity explained to him? Wow!

No, I know the difference; however, not everyone is alike nor have the same desires. Look at yourself for example . . .

[O Really]

...typical meme....

"In living Color" was a great show - lots of people you'd call famous today got their start there, like Jim Carrey, Carrie Ann Inaba, and Jennifer Lopez, in addition to the primary stars of the show.

But the pic reminds me of a question - Why aren't kilts considered to be skirts, and why aren't men who wear them considered to be dressing in drag? Could you take a nice LBD and call it something else and wear it without ridicule to a sporting event?

[Vrede too]

An Alabama lawmaker has the creepiest response to transgender bathroom hysteria

Woman Harassed in Bathroom for Appearing Transgender — and She’s Not Alone

[Vrede too]

Violinist Itzhak Perlman cancels performance over LGBT law

[Vrede too]

HRC Hails (latest) Suspension of Alabama Supreme Court Chief Justice Roy Moore

HRC Alabama Celebrates Defeat of Seven Anti-LGBT Bills this Legislative Session

NC is now worse than AL. At least there's still MS.

[billy.pilgrim]

An Alabama lawmaker has the creepiest response to transgender bathroom hysteria

Woman Harassed in Bathroom for Appearing Transgender — and She’s Not Alone

Rainbow City?


Alabama Sen. Phil Williams, a Republican from Rainbow City, proposed a bill that would let trans people use unisex bathrooms — overseen by an attendant staffed at the door of every unisex facility.

[Vrede too]

Rainbow City? ...

I had missed that.

[O Really]

Transgender Bathroom Debate: What's The Deference?
Law360, New York (May 18, 2016, 1:07 PM ET) --

Whether an individual has a right under federal law to use the bathroom or locker room corresponding to their gender identity is the question at the heart of an ongoing civil rights debate between the Obama administration and the states. On May 13, the U.S. Department of Education and U.S. Department of Justice issued a joint letter to all public schools receiving funding under Title IX of the Education Amendments of 1972, threatening to withhold federal funding from any school that restricts a student from using the bathroom or locker room corresponding to that student's gender identity.

A few days prior, on May 9, the DOJ sued North Carolina officials, including the University of North Carolina, alleging that the state's passage of North Carolina Session Law 2016-3, House Bill 2 (H.B. 2), which requires all North Carolina public agencies to designate multiple occupancy bathrooms or changing facilities to be for and only allow use by individuals based on their "biological sex," violates Title VII of the Civil Rights Act of 1964, Title IX and the Violence Against Women Act (VAWA). That same day, North Carolina officials filed their own suit against the DOJ seeking declaratory judgment on the grounds that transgendered persons are not a protected class under federal law.

The legal arguments underpinning the opposing sides of this debate are relatively straightforward. Title VII prohibits discrimination in the workplace on the basis of "sex," while Title IX prohibits discrimination in public schools on the basis of "sex." The DOJ is seeking to enforce both statutes against public schools and state officials on the grounds that the term "sex" includes the concept of "gender identity." North Carolina officials disagree, and in Illinois a group of concerned parents have filed suit against school officials seeking to prevent such an interpretation of Title IX.

Which side is right? Is the concept of "gender identity" included within the concept of "sex" under Title VII and Title IX? Or, as North Carolina argues, is "sex" distinct from "gender identity," and therefore not covered under either statute? The answer to these questions may come from an unusual source — the canons of judicial deference.

Deference Canons

Title VII is interpreted and enforced by the U.S. Equal Employment Opportunity Commission. Title IX is interpreted and enforced by the DOE. Both agencies have endorsed the position that "sex" under each statute includes the concept of "gender identity." Congress has yet to address the definition of "sex." Thus, whether federal courts will endorse these positions likely depends upon the level of judicial deference applied to the EEOC and DOE pronouncements.

When examining the weight of agency interpretations, federal courts are generally guided by three levels of deference: (1) Chevron deference, as articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984); (2) Auer deference, detailed in Auer v. Robbins, 519 U.S. 452 (1997); and (3) the Skidmore deference of Skidmore v. Swift & Co., 323 U.S. 134 (1944).

Under Chevron, an agency's interpretation of a statute will be given substantial deference if the agency has been delegated rulemaking authority by Congress. Under Auer, substantial deference is given to an agency interpreting its own promulgated regulations. And under Skidmore, if the agency has no delegated rulemaking authority, and is not interpreting its own promulgated regulations, the agency's guidance will only be given deference if the guidance is persuasive in light of its scope and purpose. As explained below, assessing matching positions on the same term, courts will most likely grant the EEOC's interpretation of Title VII Skidmore deference while according the DOE's interpretation of Title IX Auer deference.

Title VII and the EEOC's Interpretation of "Sex"

It is already decided that the EEOC's Title VII interpretations do not have the force of law, and are therefore not entitled to Chevron deference in court. See Amtrak v. Morgan, 536 U.S. 101, 110 n. 6 (2002). Instead, the EEOC's Title VII interpretations are generally given Skidmore deference — i.e., they are "entitled to respect" but "only to the extent that they have the power to persuade." Skidmore, 323 U.S. at 140.

When it comes to the term "sex" under Title VII, federal courts have been resistant to extend the meaning to include "gender identity." See, e.g., Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1221 (10th Cir. 2007); Ulane v. E. Airlines Inc., 742 F.2d 1081, 1082 (7th Cir. 1984). That said, courts have expanded the concept of "sex" under Title VII to include actions for sex-stereotyping (e.g., adverse employment actions taken against an employee for not exhibiting stereotypical male or female characteristics). See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011).

The EEOC has taken a broader view. In 2012, the EEOC ruled for the first time in Macy v. Holder that discrimination based on gender identity is discrimination "because of sex" under Title VII. Shortly thereafter, the EEOC published its 2013-2016 Strategic Enforcement Plan, listing as an "emerging and developing" issue, the "coverage" of "transgender individuals under Title VII's sex discrimination provisions[.]" In September 2015, the EEOC ruled for the first time in Lusardi v. McHugh that Title VII extends to transgender bathroom access. And earlier this month, the EEOC released a "fact sheet" explaining that transgender bathroom access is protected under the "sex" provision of Title VII.

Fast forward to the dueling positions in North Carolina, and the question facing that district court is whether, and to what extent, the EEOC's broad interpretation of Title VII should be given deference. As explained above, the EEOC's guidance will not be entitled to Chevron or Auer deference because the EEOC does not have regulatory power. Instead, the court will most likely grant the EEOC's interpretation Skidmore deference, depending on the persuasiveness of the EEOC's argument. Under the Skidmore standard of deference, an agency interpretation is entitled to "respect proportional to its power to persuade," with such power determined by the interpretation's "thoroughness, logic and expertness," its "fit with prior interpretations," and "any other sources of weight" the court chooses to consider. Skidmore, 323 U.S. at 140.

The persuasiveness of the EEOC's argument has not yet been decided. In its 2012 Macy v. Holder decision, the EEOC explained that "gender identity" should be included within the meaning of "sex" under Title VII because treating a transgender employee based on that person's gender identity is making a "gender-based evaluation, thus violating the U.S. Supreme Court's admonition that an 'employer may not take gender into account in making an employment decision.'" This position was expressly endorsed by the DOJ in its complaint filed against North Carolina officials:


[¶ ] 31. An individual's "sex" consists of multiple factors, which may not always be in alignment. Among those factors are hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual's internal sense of being male or female.

[¶ ] 32. For individuals who have aspects of their sex that are not in alignment, the person's gender identity is the primary factor in terms of establishing that person's sex. External genitalia are, therefore, but one component of sex and not always determinative of a person's sex.

Is this argument persuasive? Is "gender identity" just one of many factors, such as hormones, external genitalia, internal reproductive organs and chromosomes? The DOJ appears to argue yes: "Although there is not yet one definitive explanation for what determines gender identity, biological factors, most notably sexual differentiation in the brain, have a role in gender identity development.” But what if gender identity is not biological? What if it is not an innate characteristic? Does that change the persuasiveness of the argument? The answer to this question may be the key to whether a federal court endorses the EEOC / DOJ formulation of Title VII.

Opponents of this argument will likely point to the myriad federal and state statutes that separately call out "sex" and "gender identity" as protected characteristics. The VAWA is just one example. So if Congress had intended "gender identity" to be included within the definition of "sex," why would Congress include "gender identity" as a separate, protected category under the VAWA? The same argument can be made examining state laws, such as those in California, that include gender identity, and in some cases gender expression, as a separate protected category in addition to "sex."

And what about the argument from North Carolina that its law does not actually discriminate against transgender persons because it treats everyone equally? Although North Carolina argues its law treats all persons the same by requiring them to use the bathroom of their biological sex, one could argue the law is, in practice, discriminatory by allowing persons whose gender identity aligns with their sex assigned at birth to use the bathroom of their gender identity, while prohibiting transgender persons from doing the same.

Title IX and the DOE's Interpretation of "Sex"

The arguments relating to Title IX are a bit more straightforward. Title IX's implementing regulations provide that a school may not treat individuals differently on the basis of sex with regard to any aspect of services, benefits or opportunities it provides (34 C.F.R. §§ 106.31(a)-(b)), or subject students to separate or different rules of behavior, sanctions or other treatment (34 C.F.R. § 106.31(b)(4)). But, "nothing contained [within Title IX] shall be construed to prohibit any educational institution receiving funds under this act, from maintaining separate living facilities for the different sexes[.]" 20 U.S.C. § 1686.

And schools may "provide separate toilet, locker room and shower facilities on the basis of sex, [as long as] such facilities provided for students of one sex [are] comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33. Of course, the critical inquiry under Title IX is whether the phrases "one sex" and "other sex" under Title IX's implementing regulations include transgendered persons.

According to the DOE's Office for Civil Rights (OCR), they do. In a January 2015 opinion letter, the DOE OCR wrote: "[w]hen a school elects to separate or treat students differently on the basis of sex ... a school generally must treat transgender students consistent with their gender identity.” That opinion letter cites to the OCR's December 2014 "Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities," which endorses the same principle and has been labeled a "significant guidance document" by theOffice of Management and Budget. This past Friday, the DOE's letter to all public schools endorses the same position.

Unlike the EEOC's Title VII guidance, the DOE's interpretation of Title IX will most likely be given Auer deference in the North Carolina district court. That is because the Fourth Circuit Court of Appeals, of which the North Carolina district court is a part, recently gave the DOE's interpretation of Title IX Auer deference in G.G. v. Gloucester County School Board. There, a transgender high school student was denied access to the bathroom and/or locker room of his gender identity. The lower court dismissed the complaint on the grounds that Title IX does not include "gender identity" as a separate, protected characteristic. The court of appeals reversed, directing the lower court to give the DOE's interpretation of Title IX Auer deference. Auer requires that an agency's interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute. Auer, 519 U.S. at 461.

According to the Fourth Circuit, 34 C.F.R. § 106.33 is ambiguous as it pertains to transgender students, and the DOE's interpretation is not plainly erroneous or inconsistent with the regulation. The court specifically noted that the DOE's interpretation of Title IX, although "perhaps not the intuitive one, is permitted by the varying physical, psychological and social aspects — or, in the words of an older dictionary, 'the morphological, physiological and behavioral peculiarities' included in the term 'sex.'"

Whether the North Carolina district court will adopt the Auer deference standard when reviewing the DOJ's claims under Title IX will largely depend on whether the district court agrees with the circuit court's interpretation of the DOE's reasoning behind its Title IX guidance. Because the Fourth Circuit's reasoning was in depth, the district court is likely to adopt the same position. And the recent nationwide letter issued by the DOE and DOJ demonstrates the confidence both the DOE and DOJ have in this position.

Final Thoughts

This issue is not going away anytime soon. There are multiple lawsuits throughout the country under Title IX, challenging and defending the DOE's interpretation. The North Carolina lawsuits may provide clarity as to the EEOC's interpretation. And until there is clarity in the courts on the issue, there is little doubt the tension between the Obama administration and the states on this hot button issue will only increase as the country moves past the summer and into the final stretch of the presidential election. Stay tuned.

—By Jim S. McNeill and Peter Stockburger, Dentons

Jim S. McNeill is a partner in Dentons' San Diego and Los Angeles offices. He concentrates primarily on employment litigation, complex business/commercial disputes, insurance coverage, class actions, and cross-border issues for clients with interests in Central and South America.Peter Stockburger is a managing associate in Dentons' San Diego office. He is a member of the firm’s litigation and dispute resolution and employment and labor practices,

[billy.pilgrim]

Rainbow City? ...

I had missed that.

We should send them a flag.

[Seth Milner]

[Vrede too]

Maniac Attacks Dad With Daughter in Men’s Room at (Utah) Walmart
Christopher Adams was suckerpunched by a hate-filled shopper for letting his 5-year-old daughter use the boy’s room in an eerie echo of the trans panic sweeping America.

In NC the 5-year-old daughter and her dad could have been cited, too.

[billy.pilgrim]

Rep. Louie Gohmert, R-Texas, put a new spin on his “gay island” story, arguing on the House floor that the push for LGBT rights is wrong because we would never choose to send gay couples or gay animals into space to start a new colony like in the Matt Damon movie “The Martian.”

http://www.rightwingwatch.org/content/l ... ies?utm_me...


He said that if lawmakers had to decide “whether humanity would go forward or not” in case of an imminent asteroid collision by putting people in a “space ship that can go, as Matt Damon did in the movie, plant a colony somewhere, we can have humans survive this terrible disaster about to befall, if you could decide what 40 people you put on the spacecraft that would save humanity, how many of those would be same-sex couples? You’re wanting to save humankind for posterity, basically a modern-day Noah, you have that ability to be a modern day Noah, you can preserve life. How many same-sex couples would you take from the animal kingdom and from humans to put on a spacecraft to perpetuate humanity and the wildlife kingdom?”


Yeah, how many? louie wants to know

[O Really]

Right-wing UNC system President Margaret Spellings, put in her job by the right-wing idiots in the legislature earlier in the year over the protests of many faculty, staff, and students, tells the aforementioned legislature to shove HB2 up their own asses.

"University system President Margaret Spellings wrote in an affidavit that, pending the outcome of the North Carolina case: “I have no intent to exercise my authority to promulgate any guidelines or regulations that require transgender students to use the restrooms consistent with their biological sex.”

https://www.washingtonpost.com/national ... story.html

[Vrede too]

I'm not sure she's that heroic.

Margaret Spellings: House Bill 2

On April 7, 2016, Spellings sent instructions to all elements of the North Carolina University system to comply with the controversial new North Carolina law, the Public Facilities Privacy & Security Act (HB2), which requires transgender people to use the bathroom of their birth sex. Spellings said the next day that her instructions to comply with the bill did not imply her endorsement of the law. Students around the state protested the law.

On May 4, the U.S. Department of Justice informed Spellings that the University of North Carolina system was in violation of Title IX of the Education Amendments of 1972 because of her previous declaration that she would enforce HB2.

Sounds to me like she just bends to the superior authority. When she was that authority:

Postcards from Buster controversy

On January 21, 2005, one day after being confirmed as Secretary of Education, Spellings wrote a letter to the Public Broadcasting System warning the network not to air an episode of the children's program Postcards from Buster. In that episode, the animated bunny Buster visits Vermont to learn about maple sugar production and meets real-life children who have lesbian parents. The children tell Buster they have a "mom and stepmom." A child explains that one of the women is her stepmother whom she loves. No other comment is made about the family.

Spellings' letter reminded Pat Mitchell, CEO of PBS that Postcards from Buster was funded in part by the Department of Education and "that many parents would not want their young children exposed to the life-styles portrayed in the episode." PBS decided not to distribute this episode, but WGBH, the public radio station in Boston, said it would air it and offered it to any station "willing to defy the Education Department."

On her first day at work!

[Vrede too]

Ironically, the theoretical need for a new colony in space would most likely be because the breeders depleted and/or wrecked this planet.

[O Really]

I'm not sure she's that heroic.
...
On her first day at work!

Oh I think she's overall despicable, but you gotta admit it's funny that for whatever reason she's biting the hand that fed her.

[Vrede too]

Court denies motion to reconsider transgender bathroom ruling

A U.S. appeals court on Tuesday denied a motion to reconsider its ruling that gave a Virginia transgender high school student access to the bathroom of his gender identity.

The Gloucester County School Board had asked the full U.S. Fourth Circuit Court of Appeals to review the decision by a three-judge panel last month in favor of Gavin Grimm, a student at the local high school.

The request was denied since none of court's 15 judges asked for a vote on the rehearing, the court said....

NC is in the Fourth Circuit.

[O Really]

Yes, and they're trying to bump it to the Supremes, who will either (1) decline and leave the ruling in place; (2) uphold the ruling because it follows deference rules previously defined by Scalia; (3) tie and leave the ruling intact.

Fat lady is warming up.

[Seth Milner]

Why would a girl dressed like a boy want to pee in the boys room anyway? Looks like a setup to make some money off the school if some "good 'ole' redneck boys" jumped his/her ass; which could be what the school hoped to avoid.