Gender Identity

Both sexual orientation and gender identity discrimination are forms of sex discrimination

/ Antidiscrimination Law, Gender Identity, Religious Freedom, Sexual Orientation

Although decided under Title VII (employment discrimination) rather than the Fair Housing Act, the Supreme Court’s 5-4 ruling in Bostock v. Clayton County, 140 S.Ct. 1731 (2020) that both sexual orientation and gender identity discrimination are forms of sex discrimination is quite likely to be extended to the housing context. Justice Gorsuch’s majority opinion focused on a textual reading of the statute and the so-called comparative or but for theory to the effect that an employer who fires a man for being attracted to other men but would not do so if he were a woman has necessarily discriminated against that men just because of his sex. It does not matter if his motives were related to his views of homosexuality or same-sex marriage or religion or anything else. While this argument is likely to extend to claims under the Fair Housing Act, 42 USC §3601 et seq., it will not …

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Federal court allows public accommodation to refuse to create custom videos of same-sex weddings

/ Antidiscrimination Law, Consumer Protection, Free Speech, Gender Identity, Religious Freedom, Sexual Orientation

In a 2 to 1 vote, the Eight Circuit has held that the First Amendment prohibits a state from enforcing its public accommodations law if it requires videographers to create custom videotapes of same-sex weddings even though they provide this service to opposite-sex weddings. Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320 (8th Cir. 2019). Because the videos will be edited and posted on the videographer’s website, the majority accepted the defendant’s argument that they would convey a message of support for same-sex marriage contrary to the views of the regulated entity. Judges David Stras and Bobby Shepherd found this to be “compelled speech” that violates the business’s constitutionally-protected right to freedom of speech. Dissenting judge Jane Kelly found no compelled speech, just a statutory duty to provide the same services to both same-sex and opposite sex couples.

Seventh Circuit holds that the Fair Housing Act prohibits discrimination based on sexual orientation

/ Antidiscrimination Law, Concurrent or Common Ownership, Fair Housing Act, Gender Identity, Sexual Orientation

Extending a former precedent concerning employment discrimination, Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), a three judge panel of the Seventh Circuit has held that discrimination based on sexual orientation in housing is a form of sex discrimination prohibited by the Fair Housing Act. Wetzel v. Glen St. Andrew Living Community, LLC, 2018 U.S. App. LEXIS 24193 (7th Cir. 2018). The case involves a continuing care retirement community which failed to protect one of its residents from harassment by other residents directed at her because she is a lesbian. The court held that a landlord is liable for tenant-on-tenant harassment when it has actual notice of it but chooses not to take any reasonable steps to stop that harassment. Harassment is outlawed if it is severe or pervasive and that is the case where the harassment objectively interferes with teh enjoyment of the premises …

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No sex discrimination or violation of privacy rights when trans students use bathrooms corresponding to their gender identity

/ Antidiscrimination Law, Due Process, Gender Identity, Sexual Orientation

The Third Circuit entertained and rejected a claim by cisgender students (whose gender identity corresponds to the gender assigned at birth) that their constitutional rights to privacy and their statutory rights to be free from sex discrimination were violated when trans students were allowed to use bathrooms corresponding to their gender identity. Doe v. Boyertown Area School District,2018 U.S. App. LEXIS 16323 (3d Cir. 2018). The court found that cisgender students were not deprived of a right to privacy when they had to change clothes in view of transgender students because the presence of the transgender students in bathroom and locker rooms according with their gender identity furthered an important government interest in preventing sex discrimination. Further, the court found that it would constitute sex discrimination not to treat transgender students in accord with their gender identity so that allowing them to do so could not constitute sex discrimination against cisgender …

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Another federal court rules that transgender discrimination is a form of sex discrimination

/ Antidiscrimination Law, Gender Identity, Sexual Orientation

Gavin Grimm is a man who was denied the right to use the men’s restrooms in a public school in Virginia because the school classified him as a woman based on his birth designation. U.S. District Court Judge Judge Arenda l. Wright Allen held that this constituted discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §1681-1688, the federal law that prohibits sex discrimination in any educational institution receiving federal funds. Grimm v. Gloucester County School Board, 2018 U.S. Dist. LEXIS 88638 (D.Va. 2018). The court applied the gender stereotyping theory of Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989), and agreed with the First, Sixth, Ninth, and Eleventh Circuits that discrimination based on gender identity constitutes “sex” discrimination. It concluded that “”discrimination on the basis of transgender status constitutes gender stereotyping because ‘by definition, transgender persons do not conform to …

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