46th Annual Conference on Labor Relations and Employment Law

September 29-October 1, 2016

Richmond Omni Hotel, Richmond, VA

Understanding a Shifting Political

Landscape—LGBT Issues in the Workplace

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UNDERSTANDING A SHIFTING POLITICAL LANDSCAPE — LGBT

ISSUES IN THE WORKPLACE

A Brief History of Discrimination Affecting LGBT Individuals

Presented by:

Donna Price, Esq. Arlene F. Klinedinst, Esq. Victor O. Cardwell, Esq.

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TABLE OF CONTENTS

Page

I. INTRODUCTION .............................................................................................................. 3 II. IMPORTANT TERMS ....................................................................................................... 3 III. A HISTORICAL PERSPECTIVE ON LGBT ISSUES ..................................................... 4 IV. SECURITY CLEARANCE ADJUDICATIONS ............................................................... 6 V. LGBTQ RIGHTS IN THE WORKPLACE ...................................................................... 12 VI. RECENT EEOC CASES AND OTHER NEWS .............................................................. 15 VII. MORE NEWS ................................................................................................................... 20 VIII. WHERE WE ARE RIGHT NOW! (AND TITLE IX WILL LEAD THEM). ................. 25 IX. CONCLUSION ................................................................................................................. 26

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UNDERSTANDING A SHIFTING POLITICAL LANDSCAPE — LBGT ISSUES IN THE

WORKPLACE1

A Brief History of Discrimination Affecting LGBT Individuals

Presented by:

Donna Price, Esq. Arlene F. Klinedinst, Esq. Victor O. Cardwell, Esq.

I. INTRODUCTION

In the last year, there have been a number of significant developments regarding the rights of Lesbian, Gay, Bisexual, Transgender and Queer/Questioning (LGBTQ) individuals. This session describes those developments, discusses how they will impact the workplace, and provides insight on incorporating these changes into a non-discriminatory and effective workplace. II. IMPORTANT TERMS

Sex - The physical anatomy of an individual, typically male (penis) or female (vagina), but also those who are intersex or have ambiguous genitalia.

Sexual Orientation - A person’s physical or emotional attraction to another, the most

common of which are to a person of the same (homosexual) or a different (heterosexual) sex. Lesbian, Gay, and Bisexual (LGB) - The most common terms describing a person’s

sexual orientation. Others include, for example, Pansexual, Demisexual. Gender Identity - One’s innate, personal, and psychological identification as a man,

woman, or some other gender (e.g., agender, bigender). Note that gender identity is separate and distinct from sexual orientation and physical anatomy (i.e., sex).

Gender Expression/Presentation - One’s outwards appearance, body language, and

general behavior as categorized under the gender binary by society. Common descriptors of gender expression are female, femme, feminine, twink effeminate, androgynous, male, masculine, macho, butch, and so on.

1 A special thanks to Dean T. Buckius, Anne G. Bibeau, Jessica H. Dixon, John M. Bredehoft, Thomas M. Winn, III, and countless others who offered and provided resource materials and untold assistance.

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Gender non-conforming - Individuals whose gender expression differs from societal expectations based on gender stereotypes.

Transgender (T) - Is a term that is used both as an “umbrella” description for a number of

gender variations (e.g., Drag Queen/King, crossdresser, transvestite, transsexual), as well as to describe an individual person’s innate, personal, and psychological identification with a gender different from the sex assigned at birth. Note that transitioning to a new gender identity is a highly personal process and varies from individual to individual. While there is no one way to transition genders, there are some common social changes transgender people experience that may involve one or more of the following: adopting the appearance of the desired sex through changes in clothing and grooming, adopting a new name, changing sex designation on identity documents, using hormone therapy treatment, and/or undergoing medical procedures that modify the body to conform with gender identity. A transgender person may choose to transition to his/her preferred gender identity without undergoing any medical procedures; in fact, some transgender people never undergo such treatment and there are limitations on what surgery is able to accomplish (e.g., especially for female-to-male). A person’s gender identity is not determined by sex/physical anatomy.

Questioning/Queer (Q) - Some people use the acronym “LGBTQ” rather than “LGBT.”

The “Q” stands for “questioning” or “queer”—but “queer” is not used in the pejorative sense. Rather, it is used as an umbrella term for sexual and gender minorities that are neither heterosexual nor cisgender, particularly those who reject traditional binary (male or female) gender identities and seek a broader, less conformist, and deliberately ambiguous alternative to LGBT.

LGB refer to sexual orientation, while TQ refer to gender identity. A consequence of

combining LGB and TQ together in a single acronym can be the unintended conflation of sexual orientation and gender identity with a resulting confusion of the significant differences between the two. III. A HISTORICAL PERSPECTIVE ON LGBT ISSUES

A. The Weimar Republic of Germany, November 9, 1918 to 1933: Detractors lumped the Jewish influence and gay/lesbian life together resulting in a tremendous backlash against both by the Nazi government and the winning allied powers after World War II.

B. After World War II the Western Powers of the United States, United Kingdom, and France were aligned against the Eastern Powers under the rule of the Soviet Union.

C. The atomic bomb and espionage by the Eastern Powers to gain that information led to the second Red Scare of 1947-57. This was the era of McCarthyism, under Senator Joseph McCarthy from 1950 to 1956.

D. The trial of Ethel and Julius Rosenberg in March 1951, and an era made famous in the speech made by former Prime Minister of Great Britain, Winston Churchill, on March 5, 1946 at Westminster College in Fulton, MO wherein he stated:

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“From Stettin in the Baltic to Trieste in the Adriatic, an iron curtain has descended across the continent.”

E. What is less known by many is the Lavender Scare concerning fear and

persecution of homosexuals in the 1950s in the United States and United Kingdom. The Lavender scare paralleled the anti-communism McCarthyism campaign, and resulted in a widespread belief that gay men and lesbians (G&L, there was not B or T or Q at that point) were often considered to be communist sympathizers (“fellow travelers”) and homosexuals became the chief scapegoats of the Cold War.

F. Essentially the ploy was to associate communism, homosexuality, and psychological imbalance.

G. Starting in early 1950s the Federal government began firing federal government employees for being homosexual.

1. December 15, 1950: Senate report titled “Employment of Homosexuals and Other Sex Perverts in Government.”

2. April 1952: American Psychiatric Association lists homosexuality as a sociopathic personality disturbance in the first publication of the Diagnostic and Statistical Manual of Mental Disorders.

3. April 27, 1953: President Eisenhower signs E.O. 10450 banning homosexuals from working for the federal government or any of its private contractors, listing homosexuals as security risks.

H. This E.O. is then followed by a plethora of Federal, State, and local laws and regulations, as well as corporate policies for and against homosexuals.

1. January 1, 1962: Illinois repeals its sodomy laws, becoming the first U.S. State to decriminalize homosexuality.

2. June 28, 1969: Stonewall Inn, Greenwich Village riot begins gay rights movement in the U.S.

3. December 15, 1973: American Psychiatric Association removes homosexuality from its list of mental illnesses.

4. June 7, 1977: Anita Bryant leads the infamous “Save Our Children” crusade repealing a gay rights ordinance in Dade County, FL.

5. March 2, 1982: Wisconsin becomes first U.S. State to outlaw discrimination on the basis of sexual orientation.

6. December 21, 1993: DoD issues a directive prohibiting the U.S. Military from barring applicants from service based on their sexual orientation: “Don’t Ask, Don’t Tell” (DADT). Ironically, the number of discharges of

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Gays and Lesbians more than doubled in the 8 years following the enactment of DADT.

I. August 2, 1995: President Clinton signs E.O. 12968 specifically including the anti-discrimination statement: “The United States Government does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information,” and that “no inference” about suitability for access to classified information “may be raised solely on the basis of the sexual orientation of the employee.”

1. September 21, 1996: President Clinton signs the “Defense of Marriage Act.”

2. April 26, 2000: Vermont becomes first state in the U.S. to legalize civil unions and registered partnerships between same-sex couples.

3. June 26, 2003: U.S. Supreme Court rules in Lawrence v. Texas, that sodomy laws in the U.S. concerning consensual acts between adults are unconstitutional.

4. May 18, 2004: Massachusetts becomes the first state to legalize gay marriage.

5. May 22, 2013: Diagnostic and Statistical Manual of Mental Disorders (DSM-5): Removes “Gender Identity Disorder” and replaces it with “Gender Dysphoria” – reflecting a change in emphasis from “identity” to the “distress” about the incongruity between the gender identity and the gender (also recognizing that those with ambiguous genitalia or intersex may have this distress).

6. June 25, 2015: Obergefell v. Hodges, U.S. Supreme Court rules marriage equality is the law of the land.

7. November 4, 2015: Houston voters overwhelmingly (61%) reject “Houston Equal Rights Ordinance” (HERO), denying civil rights to 14 different specific categories of discriminated groups almost exclusively based upon “transgender bathroom fears.”

What happens next, will be discussed further.

IV. SECURITY CLEARANCE ADJUDICATIONS

A. Key Terms/Issues

1. Employment Decision (Human Resources - HR) versus Suitability Determination versus Clearance/Access Adjudication or Public Trust Determination

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2. Security Clearance/Restricted Data (RD)/Special Access Program (SAP)/Sensitive Compartmented Information (SCI)

3. Non-Critical Sensitive Positions

4. Personal Clearance versus Facility Clearance

5. Initiation of Background investigation/adjudication – 5 instances: Initial, Higher Level, Periodic Reinvestigation (PR), Reportable Incident, & Reapplication after Denial/Revocation

Generally, three levels of CLEARANCE: Confidential, Secret, Top Secret.

Other Categories of Classified Information: Sensitive Compartmented Information (SCI), Special Access Programs (SAP), Nuclear Data, etc. (about 28 additional categories). Some Agencies use other classifications (e.g., Department of Energy uses “L” [Secret] and “Q” [Top Secret]).

B. Procedurally

Great variation between different Agencies and between Government employees and contractor employees. Using Department of Defense (DoD) as example:

Government Employees: No final adverse administrative action may be taken for loss of a security clearance until the employee has had the opportunity to exercise the following procedural due process rights:

1. DoD Consolidated Adjudications Facility (DoD CAF) issues Letter of Intent (LOI) forwarding Statement of Reasons (SOR).

2. Employee (military or civilian) can get up to 60 days to respond in detail to SOR via chain of command.

3. DoD CAF adjudicates clearance. If denied/revoked then Employee can appeal, either:

(a) In writing directly to Personnel Security Appeals Board (PSAB), or

(b) Through a Personal Appearance before an Administrative Judge (AJ) from the Defense Office of Hearings and Appeals (DOHA). The AJ then issuing a non-binding written recommendation to the PSAB.

4. PSAB renders final decision.

If final decision is adverse, then the employee will almost assuredly be terminated for failure to maintain a condition of employment.

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Contractor Employees: Adjudication actions shall cease upon termination of the applicant’s need for access to classified information (limited exceptions):

1. DoD CAF issues Letter of Instruction (LOI) forwarding SOR

2. Employee given 20 days to submit Answer to SOR (Notice Pleading: Admit/Deny)

3. Employee can either:

(a) Have case adjudicated without Hearing based upon File of Relevant Material (FORM), or

(b) Have case adjudicated at a Hearing before AJ from DOHA.

Losing party has 15 days from date of decision to file notice of intent to Appeal to 3-AJ panel at DOHA Appeal Board.

Employee can be terminated by employer at any time during process, resulting in Loss of Jurisdiction (meaning no adjudication office has jurisdiction to act).

C. Substantively:

1. Adjudicative Process – General Criteria/”Whole Person Concept”

2. Adjudicative Guidelines – Specific Criteria

(a) Adjudicative Process

The Adjudicative Process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk...the careful weighing of a number of variables known as the “whole person concept”:

The nature, extent, and seriousness of the conduct; The circumstances surrounding the conduct, to include

knowledgeable participation; The frequency and recency of the conduct; The individual’s age and maturity at the time of the

conduct; The extent to which the participation is voluntary; The presence or absence of rehabilitation and other

permanent behavioral changes; The motivation for the conduct; The potential for pressure, coercion, exploitation, or duress;

and, The likelihood of continuation or recurrence.

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3. Additional Considerations:

When information of security concern becomes known about an individual who is currently eligible for access to classified information, the adjudicator should consider whether the person:

Voluntarily reported the information; Was truthful and complete in responding to questions; Sought assistance and followed professional guidance,

where appropriate; Resolved or appears likely to favorably resolve the security

concern; Has demonstrated positive changes in behavior and

employment; Should have his or her access temporarily suspended

pending final adjudication of the information.

(b) Adjudicative Guidelines

All Agencies utilize same 13 Adjudicative Guidelines and Intelligence Community Directive (ICD) 704 (ICD 704 applies to SCI):

(i) Allegiance to the United States (ii) Foreign Influence (iii) Foreign Preference (iv) Sexual Behavior (v) Personal Conduct (vi) Financial Considerations (vii) Alcohol Involvement (viii) Drug Involvement (ix) Psychological Considerations (x) Criminal Conduct (xi) Handling Protected Information (xii) Outside Activities (xiii) Use of Information Technology Systems

Sexual Orientation/Gender Identity areas of potential concern regarding the adjudication of a clearance would most likely fall under Adjudicative Guidelines:

1. Sexual Behavior

2. Personal Conduct

3. Financial Considerations

4. Alcohol Involvement

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5. Drug Involvement

6. Psychological Considerations

7. Criminal Conduct

When any behavior is related Sexual Orientation/Gender Identity, it could put a person in a situation where they could be subject to blackmail, coercion, exploitation, or duress.

For many LGBT individuals, the greatest risk regarding their security clearance is when they are struggling with resolving their Sexual Orientation or Gender Identity and engage in: promiscuous sexual behavior, sex-trafficking, public cross-dressing before being easily accepted as a member of the target gender, drinking, drug use, suffering from depression, anxiety, ptsd (lower case), or behavior resulting in interactions with law enforcement (even if ultimately not determined to be criminal in nature); and/or when they are not yet publicly “out” (because you cannot be blackmailed for something that is public/common knowledge).

Because of the reality of the risk of loss of family, friends, employment, housing, etc., many LGBT individuals fight against accepting their true identities. It is during these periods of time that they are most at risk of losing their clearance.

D. Sexual Behavior

The Concern: Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence or coercion, exploitation, or duress can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual

E. Personal Conduct

The Concern: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process

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F. Financial Considerations

The Concern: Failure or inability to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. An individual who is financially over-extended is at risk of having to engage in illegal acts to generate funds. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts

G. Alcohol Involvement

The Concern: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness.

H. Drug Involvement

The Concern: Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.

I. Psychological Considerations

The Concern: Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g., clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline. No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.

Many LGBT individuals do seek mental health counseling to deal with the psychological/mental health impacts of their biological sexual orientation and/or gender identity and, for Transgender individuals, it is required by the World Professional Association for Transgender Health (WPATH) Standards of Care that the individual have an extensive period of mental health counseling before being approved for Gender Confirming Surgery (aka Sexual Reassignment Surgery (SRS)).

The Questionnaire for National Security Positions (SF86/eQIP) specifically requires disclosure of consulting with a mental health provider.

If Psychological Considerations exist, then the adjudicators want to know:

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Does the person have a condition that could impair his or her judgment, reliability, or ability to properly safeguard classified national security information? Yes or No.

If so, describe the nature of the condition and the extent and duration of the impairment or treatment.

What is the prognosis?

Dates of treatment?

J. Criminal Conduct

The Concern: Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules or regulations.

V. LGBTQ RIGHTS IN THE WORKPLACE

A. A Review of the Case Law

1. Sexual stereotyping under Title VII and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

2. The lower-court opinions are reported at 618 F. Supp. 1109 (D.D.C. 1985), aff’d 825 F.2d 458 (D.C. Cir. 1987). A female candidate for partnership in the accounting firm, working in an all-male group, was deferred. Only one of the 88 partnership candidates were female, and the comments and evaluations given to the partnership committee – even the favorable comments that supported her candidacy -- clearly evidenced sexual stereotyping.

3. Price Waterhouse was the font of mixed-motive analysis that led to the addition of the statutory mixed motive provision to Title VII in the Civil Rights Act of 1991. 42 U.S.C. § 2000e-2(m).

4. The sexual stereotyping analysis of Price Waterhouse often has been orientation – where the hostile environment can plausibly be said to be “because of” sex.

B. “Gender Identity” Cases in the Federal Courts

1. Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)

David Schroer applied for a position as Specialist in Terrorism and International Crime with the Congressional Research Service (“CRS”), which is an arm of the Library of Congress. He was magnificently qualified for the position. He received the highest interview score of the eighteen applicants, and was the unanimous choice of the selection committee. He was offered the position, accepted, and the paperwork was put in process. Unfortunately, Schroer called the

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potential supervisor and asked her to lunch; Schroer was dressed in traditionally masculine attire for the lunch appointment, but the purpose of the meeting was to inform the CRS that she was transitioning to female and would begin work presenting as a female. The job offer was rescinded the next day: “After a long and sleepless night, based on our conversation yesterday, I’ve determined that you are not a good fit, not what we want.” The job went to a male, ranked lower in the hiring process.

In rejecting the defense claim that Title VII did not cover transsexuals, the court wrote

that it did not matter “for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently-masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.” Any such decision, the court wrote, was based on impermissible sexual stereotyping and violated Title VII’s existing prohibition against discrimination based on sex.

2. Terveer v. Billington, 34 F. Supp. 3d 100, No. 12-1290 (D.D.C. March 31, 2014)

The employee’s supervisor learned that the employee was homosexual – not due to work behavior, but because the employee confided in the supervisor’s daughter. The supervisor began harassing the employee both based on the employee’s sexual orientation, and the supervisor’s own conservative religious views. (The litany of events included an hour-long, unscheduled counseling session on the nature of suffering in Hell, and the fact that it is a sin to be a homosexual.) The court denied a motion to dismiss; the case was based on the theory that the plaintiff’s status as a homosexual male did not conform to the defendant’s gender stereotypes associated with male employees.

C. Gender Identity Cases Before the EEOC

1. Macy v. Holder, Appeal No. 0120120821 (EEOC April 20, 2012).

The Macy case involved a police detective, male, who made the decision to move to San Francisco for family reasons. Macy was to all appearances highly qualified; he applied for a position with the crime laboratory at the Bureau of Alcohol, Tobacco, Firearms and Explosives in Walnut Creek, California. Macy was told that he would have the position assuming no problems were discovered in a standard background check.

March 29, 2011, Macy sent an e-mail noting that he was in the process of transitioning

from male to female; the Director found out, and five days later Macy was informed that the position was being eliminated due to federal budget restrictions. Of course, some non-transgendered person was promptly hired to fill the position.

The EEOC determination started with the reiteration that “sex” for Title VII purposes

encompasses both biological sex differences, and gender. The Commission relied on Price Waterhouse for the proposition, in the Supreme Court’s words, that Title VII bars “not just discrimination because of biological sex, but also gender stereotyping – failing to act and appear according to expectations defined by gender.” And “gender,” the Commission wrote,

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“encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”

[W]e conclude that intentional discrimination against a transgender individual because

that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.”

D. Other Recent EEOC Activity on Gender Identity

1. EEOC v. Harris Funeral Homes, Inc., No. 2:14-cv-13710 (E.D. Mich.)

(Employee fired after announcing intended gender transition because what she was “proposing to do” was unacceptable; protective order against defendant’s discovery requests concerning employee’s genetalia granted September 24, 2015).

2. EEOC v. Lakeland Eye Clinic, No. 8:14-cv-2421 (M.D. Fla.)

(employee fired when she announced intention to change gender presentation;settled for $150,000 in April 2015).

3. Lusardi v. McHugh, Appeal No. 0120133395. (March 27,2015)

Lusardi began transitioning to female in 2010, changing her name and discussed the matter with her supervisor. She was directed to use the executive restroom. When she used the common, women’s restroom, she was confronted by a manager. After she began presenting as a woman, supervisors continued to address her as “sir” and using male pronouns. The Commission held that the repeated use of name and identity pronouns inconsistent with the employee’s presented gender, as well as the directive against her using the women’s restroom, constituted hostile environment sexual harassment.

4. EEOC v. Deluxe Financial Svcs, (D. Minn. 2016)

(EEOC settled a transgender sexual harassment case arising in a telephone call center at the beginning of this year, for $115,000).

5. EEOC v. Scott Medical Health Center, P.C., No. 2:16-cv-00225-CB (W.D. Pa.); EEOC v. Pallet Companies dba IFCO, No. 1:16-cv-00595-RDB (D. Md.)

On March 1, 2016, the EEOC filed its first two federal court cases under Title VII based on sexual orientation. Both cases plead sexual stereotyping as the underlying legal theory.

E. Other “Sexual Stereotyping” Court Cases of Interest

1. Igasaki v. Illinois Department of Professional Regulation, No. 15-cv-003693 (N.D. Ill. Jan. 20, 2016)

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The plaintiff was caught in the tension between a sexual stereotyping claim and a sexual orientation claim. While the court recognized that harassment based on non-gender-conforming behavior violated Title VII, the claim was dismissed because the employee pled that he had been harassed after the company/manager became aware the employee was a homosexual.

2. Lewis v. High Point Regional Health Center, 79 F. Supp. 3d 588 (E.D.N.C. 2015)

The pro se transitioning plaintiff survived a motion to dismiss (with help from amici). The defendants had relied on, of all things, the old Fourth Circuit Wrightson v. Pizza Hut “no homosexual harassment” decision, which did not survive Oncale.

3. United States v. Southeastern Oklahoma State University, No. CIV-15-324-C (W.D. Ok. July 15, 2015)

Dr. Rachel Tudor, a transitioning male-to-female individual, challenged her denial of tenure. Although the Tenth Circuit had held, in Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007), that “transsexuals may not claim protection under Title VII discrimination based solely on their status as a transsexual,” the district court distinguished this case, Dr. Tudor was not claiming she was discriminated against because she was a transsexual, but because “she was female, yet Defendants regarded her as male.” Motion to dismiss denied.

4. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir., July 28, 2016).

A panel from the 7th Circuit affirmed an Indiana United States District Court ruling that Hively’s claim of sexual orientation discrimination did not state a claim of sex discrimination under Title VI of the Civil Rights Act of 1965. The District Court had granted the College’s Motion to Dismiss Ms. Ivey’s pro se complaint alleging that she had been denied promotion to a full-time instructor’s position six times, without even an interview. The 7th Circuit’s 42-page opinion contains a fascinating analysis of the history of sex discrimination claims under Title VII, and the dichotomy between “gender-stereotyping” cases and “sexual orientation discrimination” cases under the EEOC’s and other courts’ recent decisions. The opinion concluded that, while it does not condone discrimination based on sexual orientation, “…writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.” No. 15-1720 at p. 42.

VI. RECENT EEOC CASES AND OTHER NEWS

A. ABC Phones of North Carolina Sued by EEOC for Same-Sex Harassment

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PRESS RELEASE 3-24-16

Female Sales Consultant Was Subjected to Unwelcome Sexual Comments and Groping by Female Co-Worker, Federal Agency Charges

WILMINGTON, N.C. - ABC Phones of North Carolina, Inc. dba A Wireless, a Greenville, N.C., corporation, violated federal law by subjecting a female employee to a sexually hostile work environment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to EEOC's suit, in 2013, Fredarika Bowden, a sales consultant at the company's store in Lumberton, N.C., was sexually harassed by a female co-worker. The suit charged that the harassment included inappropriate touching and sexual comments. EEOC said that although much of the offensive conduct was witnessed by a member of management, and Bowden also reported the harassment to management several times, the company failed to promptly stop the harassment.

Sexual harassment is a form of sex discrimination, which violates Title VII of the Civil Rights Act of 1964. EEOC filed suit in U.S. District Court for the Eastern District of North Carolina, Southern Division (Equal Employment Opportunity Commission v. ABC Phones of North Carolina, Inc. d/b/a Wireless.; Civil Action No. 7:16-cv-00051-H) after first attempting to reach a voluntary settlement through its conciliation process. The agency seeks back pay for Bowden along with compensatory and punitive damages and injunctive relief.

"Sexual harassment is illegal, regardless of whether the harasser is female or male, or the same or opposite gender as the victim," said Lynette A. Barnes, regional attorney of EEOC's Charlotte District Office. "When employees report a manager's or co-worker's inappropriate behavior, employers must immediately investigate the claims and take steps to stop the harassment."

EEOC is responsible for enforcing federal laws prohibiting discrimination in employment. Further information about EEOC is available on its website at www.eeoc.gov.

B. Achiote Restaurant To Pay $27,500 To Settle EEOC Male-On-Male Sexual Harassment / Retaliation Suit

PRESS RELEASE 4-26-16

Several Young Mexican-American Males Secretly Videotaped in Men's Room, Federal Agency Charged

SAN DIEGO - A San Ysidro, Calif., restaurant will pay $27,500 and furnish remedial relief to settle a male-on-male class sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to EEOC's lawsuit, Salum Revilla Enterprises, L.L.C., doing business as Achiote Restaurant, subjected young, male Mexican-American workers, aged 19-21, to sexual harassment, and retaliated against one of them after he complained. The harasser, a 24-year-old male, secretly videotaped younger male co-workers using the men's bathroom, EEOC charged.

Further, EEOC said, Mario Campos, a harassment victim who complained, was subjected to unlawful retaliation when he was demoted to busing tables from a server position, his work hours were reduced, was given an unfavorable work schedule, and issued excessive and unwarranted discipline.

As part of the settlement by consent decree, in addition to providing $27,500 for the harassment victims, Achiote Restaurant will revise its policies regarding harassment and retaliation; provide

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annual training for all employees and managers on anti-discrimination policies and practices; retain an equal employment monitor to assist with training and revising its policies; post an employee notice; and undertake record keeping and reporting to EEOC.

"We commend this employer for agreeing to implement comprehensive remedial relief to foster a discrimination-free workplace going forward," said Anna Y. Park, EEOC's regional attorney for the Los Angeles District, which oversees San Diego. "Small businesses are encouraged to ensure they know EEO laws. EEOC is particularly mindful of protecting young vulnerable workers from harassment and retaliation like the ones in this case."

EEOC filed its lawsuit in U.S. District Court for the Southern District of California (EEOC v. Salum Revilla Enterprises, LLC dba Achiote Restaurant, Case No. 3:15-cv-01974-LAB-RBB) under Title VII of the Civil Rights Act of 1964 after first attempting to reach a voluntary settlement. Title VII prohibits employment discrimination based on sex and retaliation.

Mario Campos said, "Even though I was afraid of losing my job after complaining about the sexual harassment, I am now glad that I stood up to assert my right to a workplace free of discrimination."

Christopher Green, director of EEOC's San Diego Local Office, said, "Retaliation claims are on the rise, comprising 45% of all EEOC charges filed nationally. It is imperative for employers to effectively stop and remedy workplace harassment and ensure that workers who report it do not suffer retaliation."

Preventing workplace harassment through systemic litigation and investigation is one of the six national priorities identified by the agency's Strategic Enforcement Plan (SEP).

EEOC recently updated its Youth@Work website (at http://www.eeoc.gov/youth/), which presents information for teens and other young workers about employment discrimination. The website also contains curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities in the workforce.

EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.

C. Deluxe Financial to Settle Sex Discrimination Suit on Behalf of Transgender Employee

PRESS RELEASE 1-21-16

Company to Pay $115,000 and Change its Practices Following EEOC Lawsuit

PAUL, Minn. - Deluxe Financial Services Corp. (Deluxe), a Shoreview, Minn.-based check-printing and financial services corporation, has agreed to pay $115,000 as part of the settlement of a sex discrimination and harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. According to EEOC's complaint, Britney Austin was assigned the male sex at birth and presented as male when hired by the company. Ms. Austin performed her duties satisfactorily in the com-pany's Phoenix offices throughout a lengthy tenure. However, after she informed her supervisor that she was transgender and began to present as a woman at work, Deluxe refused to let her use the women's restroom. According to the suit, supervisors and coworkers subjected Austin to a hostile work environment, including hurtful epithets and intentionally using the wrong gender pronouns to refer to her. Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, including that based on transgender status and gender stereotyping. This includes subjecting an employee to different terms and conditions or a hostile work environment because

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of sex. EEOC filed suit (EEOC v. Deluxe Financial Services, Inc., No. 15-cv-02646-ADM-SER) in the United States District Court for the District of Minnesota, after first attempting to reach a pre-litigation settlement through its conciliation process. The suit sought both monetary and injunctive relief. The charging party, Britney Austin, intervened in the lawsuit and asserted additional claims. In addition to requiring that Deluxe pay monetary damages to Ms. Austin, a three-year consent decree provides that Deluxe will issue a letter of apology to Ms. Austin and a letter of reference for future employers. The consent decree also provides that, as of January 1, 2016, Deluxe's national health benefits plan will not include any partial or categorical exclusion for otherwise medically necessary care based on transgender status. The consent decree also provides that Deluxe will revise its equal employment opportunity policies to include a strong and clear commitment to preventing unlawful sex discrimination and harassment, including discrimination and harassment based on transgender status. It will also provide additional annual training for all employees that unlawful sex discrimination includes discrimination based on sex-stereotyping, gender-identity, and transgender status. Deluxe will provide annual reports to EEOC regarding its implementation of these and other terms of the consent decree. "This settlement underscores EEOC's commitment to securing the rights of transgender individuals under Title VII in the federal courts," said EEOC General Counsel David Lopez. "This is our second such resolution and we hope that employers will take notice and begin to take proactive steps to prevent and eliminate discrimination against their transgender workers." This is the third lawsuit filed by EEOC alleging discrimination on the basis of transgender status. In April, 2015, a Florida eye clinic paid $150,000 to settle an EEOC lawsuit seeking relief for an employee who had been transitioning from male to female. EEOC also filed suit seeking relief for an employee of a Detroit area funeral home fired for transitioning from male to female, which is still pending. EEOC's work on sex discrimination on the basis of transgender status and sex stereotyping goes back to 2012 when the Commission issued an opinion in Macy v. Dep't of Justice, in its federal sector enforcement where the same laws apply but EEOC has appellate authority. EEOC ruled that employment discrimination against employees because they are transgender is sex discrimination that violates Title VII. In Lusardi v. McHugh, the Commission ruled that denying employees use of a restroom consistent with their gender identity and subjecting them to intentional use of the wrong gender pronouns constitutes discrimination because of sex, and thus violates Title VII. EEOC Regional Attorney Mary O'Neill said, "Transgender employees and applicants report alarming levels of mistreatment and harassment in the workplace based on their gender identity. We believe this lawsuit and the significant relief obtained in this settlement demonstrate to all employers that EEOC stands ready to enforce the rights of transgender individuals. We are very appreciative of Deluxe's efforts in reaching this resolution. Deluxe came to the table not only to address its past treatment of Ms. Austin, but also to ensure that its transgender employees will be treated with respect and dignity in the future." Acting District Director Elizabeth Cadle added, "EEOC considers protecting transgender, lesbian, gay, and bisexual employees to be a strategic enforcement priority. We will continue to assure that transgender employees receive the full benefit of federal anti-discrimination laws in all industries." EEOC is responsible for enforcing federal laws against employment discrimination. Further information can be found at www.eeoc.gov.

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D. EEOC Files First Suits Challenging Sexual Orientation Discrimination as Sex Discrimination

PRESS RELEASE 3-1-16

In Two Separate Lawsuits, Federal Agency Charges That a Gay Male Employee and a Lesbian Employee Were Subjected to Hostile Work Environments Because of Sex

WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has filed its first two sex discrimination cases based on sexual orientation. The federal agency's Philadelphia District Office filed suit in U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA.

In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee's manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director responded that the manager was "just doing his job," and refused to take any action to stop the harassment, according to the suit. After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment.

In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as "I want to turn you back into a woman" and "You would look good in a dress," according to the suit. At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, EEOC charged.

Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex. As the federal law enforcement agency charged with interpreting and enforcing Title VII, EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination.

On July 15, 2015, EEOC, in a federal sector decision, determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. See Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015). In that case, EEOC explained the reasons why Title VII's prohibition of sex discrimination includes discrimination because of sexual orientation: (1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.

"With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation," said EEOC General Counsel David Lopez. "While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so."

Both lawsuits were brought under Title VII of the Civil Rights Act of 1964, which prohibits

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discrimination on the basis of sex as well as retaliation. In both the case against Scott Medical Health Center (Case 2:16-cv-00225-CB), and the case against IFCO Systems (Case 1:16-cv-00595-RDB), EEOC filed suit after first attempting to reach pre-litigation settlements through its conciliation process.

Addressing emerging and developing issues, especially coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, is one of six national priorities identified by EEOC's Strategic Enforcement Plan (SEP). The agency has posted materials on its website relating to coverage under Title VII for LGBT individuals. In addition, in June 2015, the Commission, in coordination with the Office of Personnel Management, Office of Special Counsel, and the Merit Systems Protection Board, developed a guide for federal agencies on addressing sexual orientation and gender identity discrimination in federal civilian employment.

EEOC enforces the federal laws prohibiting employment discrimination. More information about EEOC is available on its website, www.eeoc.gov.

VII. MORE NEWS

A. Federal Judge Temporarily Halts Obama’s Directive To Schools on Accommodating Transgender Students

By: Emma Brown and Moriah Balingit

A federal judge in Texas has temporarily blocked an Obama administration directive meant to expand bathroom access for transgender students in the nation’s public schools, the latest development in an ongoing battle pitting the federal government and LGBT advocates against those who believe the policy violates student privacy and infringes on states’ rights.

Texas and a dozen other states sued in an attempt to block the federal directive shortly after it was released in May, and in a 38-page opinion issued Sunday, Judge Reed O’Connor of the Northern District of Texas temporarily prohibited the federal government from enforcing it as that lawsuit proceeds. The Obama administration has said that schools must allow transgender students to use the bathrooms and school facilities that match their gender identity, citing it as a civil rights issue protected under the federal sex-discrimination law known as Title IX.

O’Connor also ruled that the federal Education and Justice departments may not launch or complete any investigations based on the Obama administration’s interpretation that Title IX’s “definition of sex includes gender identity.”

The states argued that the federal government had overstepped its authority and effectively issued new regulations for Title IX without going through the proper federal rule-writing process. Opponents of the policy have argued that it abridges student privacy rights and potentially puts them at risk in the assumed safe-spaces of single-sex bathrooms.

[Obama administration directs schools to accommodate transgender students]

In granting a preliminary injunction against the government’s guidance, O’Connor ruled that the states were likely to win the case on the merits of their arguments. O’Connor’s ruling takes effect just as students across the country are returning to class after summer vacation.

The American Civil Liberties Union, which is representing a transgender student in Virginia in a case that so far as brought a higher court ruling from the Fourth Circuit Court of Appeals and might make its way to the U.S. Supreme Court, said Sunday’s ruling should not affect any ongoing cases about transgender rights.

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“A ruling by a single judge in one circuit cannot and does not undo the years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination,” the ACLU said in a statement. “This unfortunate and premature ruling may, however, confuse school districts that are simply trying to support their students, including their transgender students. So let us make it clear to those districts: your obligations under the law have not changed, and you are still not only allowed but required to treat transgender students fairly.”

Other LGBT advocates emphasized that Sunday’s decision does not prevent transgender individuals from suing to protect their rights.

“Students, parents and community groups are still able to — and we expect will continue to — bring lawsuits against schools that discriminate,” said Harper Jean, director of policy for the National Center for Transgender Equality. “And we expect that most schools will continue to do the right thing. Title IX still applies to them no matter what this one judge says.”

Republican officials who opposed the Obama administration’s directive welcomed the court’s decision and said it will protect students and allow individual school districts and states to address the issue in a way appropriate for their communities.

“This President is attempting to rewrite the laws enacted by the elected representatives of the people, and is threatening to take away federal funding from schools to force them to conform,” Texas Attorney General Ken Paxton (R) said in a statement Monday. “That cannot be allowed to continue, which is why we took action to protect States and School Districts, who are charged under state law to establish a safe and disciplined environment conducive to student learning.”

Alabama Attorney General Luther Strange, whose state also is a plaintiff in the case, said he had joined the lawsuit to prevent “social experimenters in Washington” from dictating Alabama schools’ bathroom polices. Strange called the judge’s ruling “a victory for parents and children all across Alabama.”

In Washington, Sen. James Lankford (R-Okla.), who has been critical of the Obama administration’s guidance to schools on transgender students and on sexual assault, said the Texas court had validated his view: “As my office has repeatedly stated, President Obama’s directive on public school bathrooms and locker rooms did not follow proper procedures for creating new regulations or law, just as the President has done on immigration, environmental regulations, and many other issues,” Lankford said in a statement. “No school wants any student to be bullied or discriminated against, but the Department of Education does not have the authority to operate as a national school board and impose their specific solutions on every district.”

Dena Iverson, a spokeswoman for the Justice Department, said in a statement that the agency is disappointed in the court’s decision and reviewing its options.

LGBT advocates and the Obama administration have hailed the transgender guidance as critical for protecting some of the nation’s most vulnerable children. But the Obama administration’s move in May has triggered fierce backlash from parents, politicians and advocates who call it an assault on traditional values and student privacy.

Even as the political and cultural clashes have raged, the courts have yet to offer clear answers about how and whether Title IX protects transgender students. So far, the highest court to weigh in on the issue was the Fourth Circuit Court of Appeals, which in April decided that Gavin Grimm, a transgender high school student who was born as a female can sue his Virginia school board on discrimination grounds because it banned him from the boys’ bathroom.

The appeals court deferred to the Obama administration’s position that Title IX guarantees transgender students the right to use bathrooms that correspond to their gender identity, and also

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ruled that Grimm’s school must allow him to use the boys’ bathroom while the case continues to wend its way through the courts.

The defendants in that case, Virginia’s Gloucester County School Board, plan to ask the Supreme Court to review the case. It is not clear whether the Supreme Court will agree to hear it, but earlier this month, the high court did grant the school district’s request on a separate issue: The district does not have to allow Grimm to use the boys’ bathroom during the upcoming school year.

O’Connor, the Texas judge, alluded to the prospect of a Supreme Court decision on the issue, writing in his decision Sunday that “a Supreme Court in the near future may obviate the issues in this lawsuit.” Mark Berman contributed to this report.

B. Judge Temporarily Blocks Obama School Transgender Bathroom Policy

Washington (CNN) A federal judge in Texas has issued a nationwide injunction barring federal government agencies from taking action against school districts that don't follow the Obama administration's guidance on transgender bathroom policies in schools.

The judge granted a preliminary injunction sought by Texas and several other states challenging the Obama administration's interpretation of Title IX, which prohibits sex discrimination in schools, colleges and universities. The administration interprets Title IX to include discrimination based on gender identity.

The ruling was issued by Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas, late Sunday night before many students across Texas and other states commenced their school year. Supporters of LGBT rights say the administration's guidance was necessary to ensure that transgender students are able to use the bathroom that corresponds with their gender identity.

"This case presents the difficult issue of balancing the protection of students' rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school." O'Connor wrote.

Justice Department spokesperson Dena Iverson said the agency is looking at the ruling. "The department is disappointed in the court's decision, and we are reviewing our options," Iverson said.

Civil Rights groups including Lambda Legal, the ACLU and the National Center for Lesbian Rights issued a joint statement calling the ruling "unfortunate."

"A ruling by a single judge in one circuit cannot and does not undo the years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination," they said.

Paul Castillo of Lambda Legal said Sunday's order should not affect other ongoing cases or attorneys from bringing new cases under Title IX, but it prevents the federal agencies from utilizing the guidance to threaten to revoke federal financial assistance from schools who do not agree that Title IX protects transgender students.

By Ariane de Vogue, CNN Supreme Court Reporter 8-22-16

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C. LGBT Rights: The National Battle of the Bathroom

(CNN) The battle over transgender rights has exploded into the mainstream in 2016, with the issue of bathroom access taking the forefront.

Mississippi and North Carolina sparked anger in the LGBT community and among its supporters by passing legislation restricting access. Last month, Massachusetts became the first state this year to go in the opposite direction.

And Monday, a federal judge in Texas issued a nationwide injunction barring federal government agencies from taking action against school districts that don't follow the Obama administration's guidance on transgender bathroom policies in schools.

Here's where things stand nationwide on this contentious issue:

18 states, Washington, D.C. ban discrimination in public accommodations based on gender identity

California -- A 2011 state law allows transgender individuals their choice of restrooms. A proposal to make all single-user bathrooms gender neutral (AB 1732) has passed the state assembly and is pending in the state senate.

Colorado -- Under a 2008 state law, all public accommodations must "allow individuals the use of gender-segregated facilities that are consistent with their gender identity."

Connecticut -- A 2011 law prohibits discrimination based on transgender status. It does not explicitly discuss bathroom choice, but advocates say they believe it covers the issue.

Delaware -- A 2013 law bans discrimination against transgender individuals in public accommodations.

Hawaii -- In 2006, the state added gender identity to its laws banning discrimination in public accommodations. Since then, state law has given transgender people the right to use restrooms that correspond to the person's gender identity.

Illinois -- The Illinois Human Rights Act allows bathroom use consistent with gender identity.

Iowa -- The Iowa Civil Rights Act has prohibited discrimination in public accommodations, including restrooms, since 2007.

Maine -- Under a 2005 law ratified by voters later that year, discrimination against transgender individuals in public accommodations is prohibited.

Maryland -- The Fairness for All Marylanders Act of 2014 prohibits discrimination on the basis of gender identity in public accommodations.

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Massachusetts -- An anti-discrimination law passed in July and signed by the governor gives transgender people the right to use public restrooms and locker rooms consistent with their gender identities, regardless of their sex at birth.

Minnesota -- The Minnesota legislature passed a bill in 1993 outlawing discrimination in public accommodations on the basis of sexual orientation, which the law defines as including "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness."

Nevada -- The state legislature amended Nevada's anti-discrimination law in 2011 to prohibit discrimination in public accommodations based on gender identity.

New Jersey -- A 2006 state law bans discrimination in public accommodations based on gender identity or expression, but there is some confusion as to whether the law applies to restroom access.

New Mexico -- New Mexico lawmakers amended the state's Human Rights Act in 2003 to ban discrimination in public accommodations based on gender identity.

Oregon -- The Oregon Equality Act, enacted in 2007, prohibits gender identity discrimination in public accommodations.

Rhode Island -- The state amended its anti-discrimination statutes in 2001 to prohibit discrimination in public accommodations based on gender identity.

Vermont -- The state Human Rights Commission interprets Vermont law to require that "an individual be permitted to access restrooms in accordance with his/her gender identity, rather than his/her assigned sex at birth."

Washington -- In 2006, the Washington Law Against Discrimination was amended to include protections for transgender people against discrimination in public accommodations.

Washington, D.C. -- The city's Human Rights Act gives transgender people the right to use the bathroom of their choice. D.C. law also requires that single-stall bathrooms must be gender neutral.

Numerous cities also have passed legislation or policies prohibiting discrimination in public accommodations on the basis of gender identity. They include:

Albany, New York; Atlanta; Austin, Texas; Binghamton, New York; Boise, Idaho; Buffalo, New York; Cincinnati; Dallas; El Paso, Texas; Indianapolis; Ithica, New York; Kansas City, Missouri; Louisville, Kentucky; Milwaukee; New Orleans; New York City, Philadelphia; Phoenix; Pittsburgh; Rochester, New York; San Antonio; San Francisco; and West Hollywood, California.

At least four states have laws that either restrict bathroom access or restrict local jurisdictions from writing laws that would allow it

Arkansas -- A state law passed in 2015 prohibits local jurisdictions from passing anti-discrimination legislation more restrictive than the state's, which does not ban discrimination based on gender identity.

Mississippi -- HB 1523, signed into law in April, does not explicitly regulate bathroom access, but grants immunity to those who wish to set policies.

North Carolina -- HB 2, signed in March, bans individuals from using public bathrooms that do not correspond to their biological sex.

Tennessee -- Legislation signed into law in 2011 prohibits local jurisdictions from passing anti-discrimination legislation more restrictive than the state's, which does not ban discrimination

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based on gender identity.

Legislation has been introduced in many states to regulate bathroom access

While some of these proposals may not be enacted, they help underscore the national scope of the discussion over the issue:

Michigan -- A bill currently in committee would urge the state's Board of Education to ignore recently issued guidance on LGBT students, including allowing them to use the restrooms of their choice.

New York -- Proposed legislation would require schools to segregate restrooms.

Washington -- A ballot initiative would repeal the state's anti-discrimination law.

Oklahoma -- A bill seeks the impeachment of President Barack Obama over the federal Department of Education's recent guidance to school districts on transgender issues, including bathroom access.

Other states where legislation has been proposed or is under consideration include Hawaii, Illinois, Indiana, Kansas, Kentucky, Minnesota, Missouri, Oregon, South Carolina, South Dakota, Tennessee, Virginia, Wisconsin and Wyoming, according to the Transgender Equality Center.

Finally, several states have sued, challenging the federal government over its transgender directive for school districts

They are: Alabama, Georgia, Louisiana, Oklahoma, Tennessee, Texas, Wisconsin and West Virginia. Two school districts in Arizona and Maine Gov. Paul LePage are also listed as plaintiffs suing over the federal guidance.

VIII. WHERE WE ARE RIGHT NOW! (AND TITLE IX WILL LEAD THEM).

A. Gloucester Cnty. School Bd v. GG, 136 S. Ct. 2442, 2016 U.S. Lexis 4361 (Aug. 3, 2016)

G.G., is a seventeen-year-old student at Gloucester High School who was born a female but now identifies as a male. In October 2014, the school principal began to allow G.G. to use the boys’ bathroom. Soon thereafter, following complaints from parents and students, the school board passed a policy requiring students to use either the restroom that corresponds with their biological gender or a private single-stall. The school board voted 6-1 in favor of the new policy, according to the public meeting minutes posted online. The policy also indicated that “students with gender identity issues shall be provided an alternative appropriate facility.”

GG was successful before the 4th Circuit Court of Appeals based on that Court's

deference to the Department of Education's Office of Civil Rights, January 7, 2015, opinion letter which concluded that, if schools opt to separate students in restrooms and locker rooms on the basis of their sex, “a school generally must treat transgender students consistent with their gender identity.”

It was from this action that the Gloucester County School Board sought a temporary stay

from SCOTUS. JusticeBreyer cast the decisive vote stating that " In light of the facts that four Justices voted to grant the application to the Court…and that granting a stay will preserve the

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status quo…until the Court considers the forthcoming petition for certiorari, I will vote to grant

the application as a courtesy."

IX. CONCLUSION

Thus, here we stand with a courteous vote and a nation in disarray as to the rights of a class of people, employees or otherwise, in a state of flux as to their rights to the ultimate privacy.

SLIP SHEET

SLIP SHEET