UPDATE ON LGBTQ LEGAL ISSUES

2019 NEA Representative Assembly

Eric Harrington, NEA Office of General Counsel

EMPLOYMENT—Sexual Orientation and Gender Identity Discrimination

I. The Supreme Court will hear and decide a series of Title VII cases that will
determine whether sexual orientation and gender identity discrimination violate Title
VII of the Civil Rights Act of 1964.
a. Cases will be argued on October 8, 2019; decision expected by June 2020.
b. NEA is leading a coalition of education groups filing an amicus curiae brief arguing
that sexual orientation and gender identity discrimination are forms of sex
discrimination. Coalition includes AFT and the National Schools Board Association,
who has never filed a SCOTUS brief supporting employee rights.
II. THE STAKES--The Supreme Court’s decision in the Bostock cases will affect all
federal sex discrimination law
a. If the Court concludes that sexual orientation and gender identity discrimination are
forms of sex discrimination, our LGBTQ members and students will be protected
under federal civil rights law. A favorable ruling would essentially recognize that the
Civil Rights Act of 1964 already does what the proposed Equality Act aspires to do.
b. Should the Court conclude that sexual orientation and transgender discrimination
are not forms of sex discrimination, our members and our LGBTQ members and
students will have virtually no protection under federal law.
c. A bad Court ruling can be overturned by Congress, making Equality Act necessary.
d. Bad Court ruling can be remedied by states passing LGBTQ protections or
recognizing that sexual orientation and gender identity discrimination are forms of
sex discrimination under their current sex discrimination laws.
III. BACKGROUND
a. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on
the basis of “sex.”
b. For decades, courts, including the Supreme Court, have concluded that Title VII’s
prohibition on discrimination “because of sex” means that discrimination based on
gender stereotypes is also unlawful sex discrimination.
c. Starting around 2010, lower federal courts and the enforcing federal agencies,
including the EEOC, and the United States Labor, Justice, and Education
Departments started to conclude that sexual orientation and gender identity
discrimination are forms of sex discrimination.
d. In December 2017, the Supreme Court declined to hear a case from the Eleventh
Circuit, which concluded that Title VII does not protect against sexual orientation
discrimination. Evans v. Georgia Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017).
e. But in 2018, two federal appeals court ruled that Title VII prohibits sexual
orientation discrimination, and the Supreme Court has agreed to hear one of them.
f. In Altitude Express v. Zarda, the Court will decide whether federal laws banning
employment discrimination protect gay and lesbian employees. The employer is a
New York skydiving company, Altitude Express. The company fired Donald Zarda,
who worked as an instructor for the company, and Zarda sued, alleging that he was

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 terminated because he was gay – violating Title VII’s bars of discrimination “because
of sex.”
i. The trial court dismissed Zarda’s Title VII claim, reasoning that Title VII
does not prohibit sexual orientation discrimination. But the full U.S. Court of
Appeals for the Second Circuit reversed, concluding that Title VII does
prohibit sexual orientation discrimination because such discrimination “is a
subset of sex discrimination.”
g. Altitude Express’ case is consolidated with another case involving the rights of gay
and lesbian employees: Bostock v. Clayton County, Georgia. In that case, Gerald Bostock,
worked as a child-welfare-services coordinator in a Georgia county. Bostock argued
that after the county learned that he was gay, it falsely accused him of mismanaging
public money so that it could fire him for being gay.
h. Bostock also sued in federal court, arguing that his firing violated Title VII. The
district court dismissed his suit, concluding that Title VII does not apply to
discrimination based on sexual orientation but this time, the U.S. Court of Appeals
for the Eleventh Circuit upheld that ruling.
i. The third LGBTQ employment case, R.G. & G.R. Harris Funeral Homes v. EEOC,
presents whether Title VII’s protections apply to transgender employees. The
employer in that case is a small funeral home in Michigan, whose owner, Rost,
describes himself as a devout Christian. The funeral home hired Aimee Stephens,
who then presented as a man. Six years later, Stephens told the owner that she
identified as a woman and wanted to wear women’s clothing to work. Rost fired
Stephens; Rost claimed he believed both that he would be “violating God’s
commands” by allowing Stephens to dress in women’s clothing.
j. The federal Equal Employment Opportunity Commission filed a lawsuit on
Stephens’ behalf, and the U.S. Court of Appeals for the 6th Circuit ruled for the
EEOC and Stephens. The Supreme Court will consider whether Title VII bars
discrimination against transgender people based on either their status as transgender
or under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which
holds that employers can’t discriminate based on stereotypes of how a man or
woman should appear or behave.
k. The United States Court of Appeals for the Seventh Circuit has previously ruled that
Title VII prohibits sexual orientation discrimination in Hively v. Ivy Tech Cmty. College,
853 F.3d 339 (7th Cir. 2017). That case was not appealed to the Supreme Court.
IV. Lower federal courts are letting suits based on Zarda and Hively proceed
a. Dollinger v. New York State Ins. Fund, 2018 WL 4895845 (N.D.N.Y. Oct. 9, 2018)
(reversing previous dismissal of gay plaintiff’s hostile environment case under Title
VII); Herr v. Am. Kennel Club, 2018 WL 4565386 (E.D.N.C. Sept. 24, 2018)
(discrimination against straight people because they are straight is sex
discrimination); Varner v. APG Media of Ohio, LLC, 2019 WL 145542, at *3 (S.D.
Ohio Jan. 9, 2019) (sexual orientation discrimination under Title VII); Guess v.
Philadelphia Hous. Auth., 354 F. Supp. 3d 596, 600 (E.D. Pa. 2019) (encouraging Third
Circuit to revisit holding that sexual orientation discrimination is not sex

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 discrimination because distinguishing gender stereotyping from sexual orientation is
impossible); McDonough v. New York City Dep't of Educ., 2018 WL 4636834 (S.D.N.Y.
Sept. 27, 2018) (concluding that discrimination against a straight teacher who was
hired because he was perceived to be gay violates Title VII); Nelis v. Gepa Hotel
Operator Indianapolis LLC, 340 F. Supp. 3d 751 (S.D. Ind. 2018) (recognizing gender
non-conformity discrimination as sex discrimination under Title VII).
V. But lower federal courts in other circuits continue to dismiss federal Title VII suits
asserting sexual orientation or gender identity discrimination
a. Brown v. Walmart Stores E., LLP, 2018 WL 4903254 (E.D.N.C. Oct. 9, 2018)
(dismissing Title VII claim based on sexual orientation discrimination); Briener v. Bd.
of Educ. of Montgomery Cty., No. CV 5:18-351-KKC, 2019 WL 454117, at *1 (E.D. Ky.
Jan. 25, 2019) (ruling that until the U.S. Court of Appeals for the Sixth Circuit
decides to reconsider prior rulings that sexual orientation discrimination claims may
not be brought under Title VII, a district court is required to dismiss any such
claims); Wittmer v. Phillips 66 Co., 915 F.3d 328 (5th Cir. Feb. 6, 2019) (Ho, J.,
concurring) (criticizing the notion that gender identity discrimination is a form of sex
discrimination); Senegal v. Yum! Brands, Inc., 2019 WL 448943, at *4 (S.D. Tex. Feb. 5,
2019) (“[U]nder Fifth Circuit precedent, Title VII does not protect against sexual
orientation discrimination.”).
VI. Lower courts also continue to split on whether sexual orientation and gender identity
discrimination violate the constitution’s equal protection clause
a. Evans v. Georgia Dep't of Behavioral Health & Developmental Disabilities, 2018 WL
4610630 (S.D. Ga. Sept. 25, 2018) (“sex discrimination based on gender
nonconformity was clearly established [constitutional] law”).
VII. Missouri Supreme Court recognizes that sex stereotyping sex discrimination applies
to LGBTQ plaintiffs too
a. Lampley v. Missouri Comm'n on Human Rights, 570 S.W.3d 16 (Mo. 2019); R.M.A. by
Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420 (Mo. 2019), reh'g denied (Apr.
2, 2019) (sharply split Court failed to hold that sexual orientation or gender identity
discrimination claims, as such, may be brought under the state’s Human Rights Law,
but a majority of the seven judges agreed in both cases that being gay or transgender
does not bar an individual from making a sex discrimination claim).
VIII. Houston same-sex benefits policy continues to be challenged, but benefits are being
provided
a. A lawsuit filed by two Houston Republican activists, challenging the Mayor of
Houston extending benefits rights to same-sex spouses of city workers after DOMA
was struck down is still alive.

EDUCATION—LGBTQ Issues in Schools and LGBTQ Youth

I. The Supreme Court’s decision in the Bostock Cases will likely determine whether
sexual orientation and gender identity discrimination are illegal under Title IX of the
Education Amendments of 1972.

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 a. Courts construe Title IX’s prohibition on “sex” discrimination, the same as Title
VII’s.
II. Meanwhile, federal courts continue to recognize that sexual orientation and
transgender discrimination violates Title IX of the Education Amendments of 1972
a. Sexual orientation: J.R. v. Lakeport Unified School District, 2019 WL 174557 (N.D.
Cal., Jan. 10, 2019) (denying a motion to dismiss a Title IX lawsuit against a
California school district that was brought by two middle school students who had
been sexually harassed and abused by a fellow student); Estate of Olsen v. Fairfield City
School District, 2018 WL 4539440 (S.D. Ohio, Sept. 21, 2018) (“[A] female Asian-
American, suffered bullying, harassment, assault, battery, and discrimination because
of her race, national origin, and gender, and her association with Caucasian students,
and also based upon sex stereotyping and upon her perceived sexual orientation and
practices[.]”).
b. Gender identity: Adams by & through Kasper v. Sch. Bd. of St. Johns Cty., Fla., 318 F.
Supp. 3d 1293 (M.D. Fla. 2018) (“Title IX includes ‘gender identity’ for purposes of
its application to transgender students.”); J.A.W. v. Evansville Vanderburgh Sch. Corp.,
323 F. Supp. 3d 1030 (S.D. Ind. 2018) (same).
c. Non-conformance. McCann v. York Sch. Dep’t, 2019 WL 542284 (D. Me., Feb. 11,
2019) (bullying and harassment by classmates in middle and high school because of
student’s perceived gender nonconformance constitute violations of Title IX of the
Education Amendments Act of 1972).
d. But not all lower federal courts.
i. I.V. v. Wenatchee Sch. Dist. No. 246, 342 F. Supp. 3d 1083, 1096 (E.D. Wash.
2018) (dismissing Title IX suit, concluding that student failed to show bullied
because of sex, even though bully used homophobic language).
III. Cisgender students – backed by far-right hate groups – are challenging trans-
inclusive school policies, but have largely been unsuccessful
a. NEA is standing with the trans students.
b. U.S. Supreme Court declined to review U.S. Third Circuit Court of Appeals decision
denying suit by cisgender student opposed to trans-inclusive policies. Doe by &
through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3d Cir. 2018), cert. denied sub
nom. Doe v. Boyertown Area Sch. Dist., No. 18-658, 2019 WL 2257330 (U.S. May 28,
2019)
i. NEA filed an amicus brief in Doe that the Third Circuit relied on extensively.
c. Other lower courts are likewise rejecting challenges by cisgender students
against trans-inclusive school policies
i. Parents for Privacy v. Dallas Sch. Dist. No. 2, 326 F. Supp. 3d 1075 (D. Or.
2018).
ii. NEA filed an amicus brief in the Ninth Circuit in Parents for Privacy,
which will be argued in July 2019.
IV. Some courts are denying Title IX lawsuits because of bad circuit precedent but are
allowing suits asserting constitutional violations
a. Black v. Metropolitan School District of New Durham Township, 2018 WL 4352629 (N.D.
Ind. September 12, 2018) (bisexual high school student who served on the
cheerleading team and as the school’s mascot brought Equal Protection and Title IX
claims; court allowed the constitutional claim to proceed but not the Title IX claim).

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 V. A Texas federal judge in Houston rejected a suit that attempted to end a Drag Queen
storytime at a public library
a. Christopher v. Lawson, 2019 WL 93300 (S.D. Tex. Houston Div. Jan. 3, 2019).
VI. Litigation flowing from North Carolina’s notorious “Bathroom Bill” and later
Amendments continues
a. Carcaño v. Cooper, 2018 WL 4717897 (M.D.N.C.).
VII. PA federal court reconsiders dismissed claims alleging damages from school’s anti-
gay animus and attempted conversion therapy
a. Dobson v. Milton Hershey Sch., 356 F. Supp. 3d 428, 440 (M.D. Pa. 2018) (reversing
own opinion from last year and reinstated claim that, while he was a student at the
school, the school violated its duty to protect the student from harm by “expelling
him due to his inpatient mental health treatment . . . and causing further harm to him
by implementing ‘conversion therapy’ after learning of his homosexual orientation”)
VIII. NEW JERSEY – Governor Phil Murphy signed into law LGBT-inclusive curriculum
legislation on January 31, making New Jersey the second state “requiring Boards of
Education to include instruction, and adopt instructional materials, that accurately portray
persons with disabilities and LGBTQ individuals.”
a. Illinois recently passed similar legislation.

HOUSING: LGBTQ Discrimination in Housing

I. United State Court of Appeals for the Seventh Circuit rules Fair Housing Act (FHA)
violated by harassment on basis of sexual orientation
a. Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 859 (7th Cir. 2018), cert.
dismissed sub nom. Glen St. Andrew Living Com. v. Wetzel, 139 S. Ct. 1249 (2019).
b. Other suits are asserting similar theories.
i. Walsh and Nance v. Friendship Village of South County, No. 4:18-cv-1222 (E.D.
Mo., filed July 25, 2018).
II. But federal district court in Eighth Circuit dismisses Fair Housing Act claim by
married lesbian couple
a. Walsh v. Friendship Vill. of S. Cty., 352 F. Supp. 3d 920, 926 (E.D. Mo. 2019) (holding
that since under Eight Circuit law, “Title VII does not prohibit discrimination against
homosexuals,” a sex discrimination claim under the FHA brought by a married
lesbian couple denied admission to a senior group home because their marriage was
not recognized as “biblical” had to be dismissed).

TRUMP ADMINISTRATION CONTINUES TARGETING OF LGBTQ PEOPLE

I. Opposing employees in Bostock cases, arguing for no protection for LGBTQ

discrimination under Title VII.
II. Opposed to Equality Act.
III. Trump’s transgender military ban, announced in a tweet in July 2017, has taken effect
despite earlier injunctions, but litigation challenging the ban is still ongoing.
IV. Trump Administration issues directive authorizing federal contractors to
discriminate based on religious beliefs.

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 V. Trump Administration issues “Conscience Rule,” but rule is delayed until at least
November 2019
a. On May 21, 2019, the Trump administration enacted a final rule called "Protecting
Statutory Conscience Rights in Health Care; Delegations of Authority." The rule was
scheduled to take effect on July 22, 2019, but several lawsuits have led to a delay.
b. The rule authorizes federal funded health care facilities (read, nearly all health care
facilities) and health care workers from providing certain services that they find
objectionable. Specifically, the rule
i. Allows healthcare entities and employees that have conscience or religious
objections to refuse to perform or cover services such as abortion,
sterilization, or assisted suicide, or to LGBTQ people;
ii. Allows healthcare professionals to decline to receive training in abortion or
attend medical schools that do not require abortion training;
iii. Allows individuals in a health service or research activity funded by an HHS
program to decline to perform or assist in part of that program because of
the individual’s religious beliefs or moral convictions; and
iv. Allows patients, including parents, to object to certain procedures such as
screenings and mental health treatment of children.
c. In short, the rule allows virtually any health care worker to deny care based on the
health care worker’s specific religious or conscience objections.
d. The rule is being challenged in several lawsuits in New York and California, and
Trump Administration agreed to delay the rule in response to litigation.
VI. Trump State Department is refusing to issue non-binary passports
a. But a federal court has ordered State Department to issue gender-neutral
passport to intersex applicant. Zzyym v. Pompeo, 341 F. Supp. 3d 1248 (D. Colo.
2018)
VII. Trump State Department cancelled visas for the unmarried same-sex partners of
diplomats to the United States.
VIII. No State Department recognition of Pride Month.
IX. Trump continues to appoint anti-LGBTQ people to Executive and LIFETIME
Judicial Positions
a. Howard Nielsen, Chad Readler, Matthew J. Kacsmaryk
X. Trump Administration continues to grant waivers to license discrimination
a. On January 23, (HHS) granted a waiver to federally funded child welfare contract
agencies in South Carolina to act on their religious beliefs in making placement
decisions into foster or adoptive care.

HEALTH CARE:

I. ACA includes provisions banning sex discrimination by health insurance providers

and HHS and the courts have construed those provisions to LGBTQ discrimination.
II. Trump Administration seeks to strike down the entire Act; such a ruling endangers
health coverage for LGBTQ people

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 a. Texas v. United States, 340 F. Supp. 3d 579(N.D. Tex. 2018) (declaring the ACA
unconstitutional).
b. Case will be heard by the United States Court of Appeals for the Fifth Circuit July
2019.
III. Meanwhile courts continue to enforce the ACA’s anti-discrimination provisions in
favor of LGBTQ rights
a. Flack v. Wis. Dep't of Health Servs., 328 F. Supp. 3d 931 (W.D. Wis. 2018) (ordering
state Medicaid to cover gender confirmation surgery); Boyden v. Conlin, 341 F. Supp.
3d 979 (W.D. Wis. 2018) (ordering Wisconsin to cover transition medical costs for
trans state employees; holding that Wisconsin’s refusal to cover “procedures,
services, and supplies related to surgery and sex hormones associated with gender
reassignment” for its transgender state employees violates the ban on sex
discrimination in Title VII of the Civil Rights Act of 1964 and in the Affordable Care
Act, as well as the Equal Protection Clause of the 14th Amendment); Tovar v. Essentia
Health, 342 F. Supp. 3d 947 (D. Minn. 2018) (finding that ACA may require
employer’s self-funded health plan to cover gender transition costs.

FAMILY LAW

I. State and federal courts continue to grapple with fully equal family rights post-
Obergefell
a. Pennsylvania district court rules Catholic adoption agency cannot
discriminate against same-sex foster and adoptive parents
i. Fulton v. City of Philadelphia, 320 F. Supp. 3d 661 (E.D. Pa. 2018), aff'd, 922
F.3d 140 (3d Cir. 2019)
b. Indiana state court of appeals affirms denial of lesbian’s petition for third-
party visitation
i. J.S. v. M.C., 107 N.E.3d 1118 (Ind. Ct. App. 2018)
c. NY appellate division reverses dismissal of alleged co parent’s visitation and
joint custody claim
i. Demarc v. Goodyear, 163 A.D.3d 1430 (N.Y. App. Div. 2018).
d. NJ appeals court rules lesbian co-parent may seek “bystander” emotional
distress compensation for death of child she was raising with same-sex
partner
i. Moreland v. Parks, 456 N.J. Super. 71, 191 A.3d 729 (App. Div. 2018)
e. Pennsylvania supreme court refuses to recognize standing for non-biological
mother in same-sex relationship
i. C.G. v. J.H., 193 A.3d 891 (Pa. 2018)
f. Michigan federal court allows same-sex couples’ suit challenging Michigan’s
discriminatory adoption practices to move forward
i. Dumont v. Lyon, 341 F. Supp. 3d 706, 752 (E.D. Mich. 2018)
ii. Two married lesbian couples —alleged that they were rejected as prospective
foster and adoptive parents by state-contracted faith-based child placement
agencies, because of the religious objections of those agencies to placing
children with gay and lesbian couples.

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 g. Hawaii supreme court says marital presumption of legitimacy applies to
children born to same sex spouses
i. LC v. MG & Child Support Enf't Agency, 143 Haw. 302, 430 P.3d 400 (2018)
h. Texas appeals court denies attempt to block same-sex divorce proceeding for
an alleged pre-Obergefell common law same-sex marriage
i. In re LaFredo, No. 05-18-01034-CV, 2018 WL 4561215 (Tex. App. Sept. 24,
2018)
i. Colorado court of appeals holds that same-sex couples may allege a common
law marriage existed pre-Obergefell
i. In re Marriage of Hogsett & Neale, 2018 COA 176 (Colo. Ct. App., Dec. 13,
2018).
j. U.S. district court finds child born in Canada through gestational surrogacy to
same-sex couple entitled to U.S. citizenship at birth
i. Dvash-Banks v. Pompeo, 2019 WL 911799 (C.D. Cal., Feb. 21, 2019)
k. Washington appeals court affirms termination of gay biological father’s
parental rights
i. In re Dependency of G.M., 2019 WL 296188 (Wash. Ct. App. Div. 1).

STATE ADMINSTRATIVE ACTIONS

I. New governors have issued executive orders banning sexual orientation and gender
identity discrimination in state employment
a. Governor Gretchen Whitmer of Michigan and Governor Tony Evers of Wisconsin,
both Democrats taking over state houses from Republican predecessors, issued non-
discrimination orders that cover the employment practices of government
contractors as well as state agencies and departments.
b. Michigan Governor Whitmer, following the lead of the Michigan Civil Rights
Commission, concluded that the state’s statutory ban on sex discrimination “includes
sexual orientation and gender identity or expression.”
c. Mike DeWine, Ohio’s new Republican governor, preserved the protections adopted
by his Republican predecessor, John Kasich.
d. Kansas Governor Laura Kelly, a Democrat, restored the ban on sexual orientation
discrimination that had been withdrawn by her two Republican predecessors, and
expanded it to include gender identity and extended to government contractors.
e. But newly-elected Florida Governor Ron DeSantis omitted sexual orientation or
gender identity from the forbidden grounds of discrimination by the state.
II. States are being compelled to allow for correction of birth certificates and other state
documents
a. Transgender people born in Kansas will now be able to correct the gender marker on
their birth certificates under a consent judgment. (June 21, 2019). Foster v. Andersen
(D. Kan.).