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Abercrombie Religious Freedom Ruling a Victory for Social Justice Movements

June 11, 2015

On June 1, the Supreme Court championed two values at the core of our social justice work — religious freedom and workplace non-discrimination protections. In EEOC v. Abercrombie & Fitch, a Muslim woman was denied employment at the retail clothing store because her headscarf violated the store’s policy against “caps” and other headwear. Writing for the majority, Justice Scalia held that “if the applicant actually requires an accommodation of [her] religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates [Title VII’s prohibition against intentional discrimination]”. In other words, an employer cannot avoid granting religious accommodations by simply not hiring someone it suspects would need the accommodation.

Samantha Elauf, plaintiff (Photo: Reuters/Jim Bourg)

Samantha Elauf, plaintiff in EEOC v Abercrombie & Fitch (Photo: Reuters/Jim Bourg)

By highlighting the core purpose of religious freedom – to protect people against discrimination – this decision affirms the values of the LGBTQ community. Upholding workplace protection for religious minorities reinforces the importance of similar protections for queer, trans, and gender non-conforming employees.

In particular, the Court’s clarification of the mens rea requirement for Title VII Intentional Discrimination claims bodes especially well for LGBTQ employees. The court held that an “unsubstantiated suspicion” of one’s religious affiliation is sufficient to constitute an improper motive in violation of the statute. Actual knowledge of a person’s religious affiliation is not necessary for a claim. Applying this to the LGBTQ context, prospective employees would not need to “out” themselves in order to state a claim for discrimination in hiring. Refusing to hire someone due to a mere suspicion of his or her queer, trans, or gender non-conforming status violates Title VII.

The Abercrombie decision is a form of religious freedom that should be celebrated. Laws that support a right to express one’s religious identity safeguards religious liberty by protecting people against discrimination. Employees can “be themselves” so long as their religious identity and practices do not unduly burden their employer.

This genre of religious freedom, however, stands in stark contrast to other kinds of religious accommodations, wherein people use their religious beliefs to exclude others from a good, service, or right. The magistrate opt-out provision (SB2) that just passed in North Carolina, for example, allows magistrates with religious objections to refuse to perform same-sex marriages. It does not protect magistrates from discrimination, nor does it reflect a desire to express one’s religious identity. As Governor McCrory articulated before he vetoed the bill–and before his veto was overriden by the House–, magistrates are simply being asked to do their jobs.

Instead, the opt-out provision recently passed in North Carolina perpetuates discrimination against the LGBTQ community and potentially many others.

Social justice requires that we distinguish between two kinds of religious freedoms: those that protect people from discrimination and those that are harmful to others. Accommodations that prevent discrimination and allow people to express their religious identities are important victories in the fight for social justice. Those that subvert this intention and inflict harm on others are missteps on this path. Let us celebrate the Court for supporting the former.

by Courtney Miller,Holley Law Fellow, National LGBTQ Task Force and Beckham Rivera, Holley Law Fellow, National LGBTQ Task Force

Equal Pay–for all Women and LGBTQ People

June 10, 2015

Today marks the 52nd anniversary of the passage of the Equal Pay Act, the law that finally forbid employers from paying certain workers less on the basis of their sex. While the EPA was groundbreaking legislation for its time, its promise — to bring economic equality to the sexes — has yet to be fulfilled.

While the average woman made 62% as much as the average man at the time the EPA was passed, today, as a white woman, I can expect to earn 78 cents for each dollar that a white man makes. Although“78 cents to the dollar” is often the rallying cry for equal pay, this number doesn’t paint the full picture. White women and Asian women earn 78% as much as white men. Black women, however, can expect to earn 64% as much as white men while Latinas can expect to make only 54% as much. (1)

equal pay thinkprogress

This conflation of white women’s experiences with that of all women is harmful to everyone. Kimberly Freeman Brown, the author of And Still I Rise: Black Women Labor Leaders Voices, Power and Promise identifies Black women as “miners’ canaries.” (2) Like canaries that warned miners of poisonous gasses before the workers were affected, “Black women have [long] experienced many of the economic and social ills now faced by others.” Colorblindness not only fails to pinpoint social and economic issues that affect us all, but also, in the words of Freeman Brown, “reinforces [a] belief that the experiences of black women are not important enough unless attached to others.”

Economic inequality is only compounded as marginalized identities intersect. Queer and trans people — particularly queer and trans people of color — are more likely to be living in poverty than straight and cisgender people (3). Trans women are four times more likely to earn less than $10,000 annually than the general population. (4)(5) Moreover, while sex and race are both demographic categories that receive legal protection, queer and trans identities lack federal protection and are often overlooked in state and local laws.

Equal Pay Trans

The Equal Pay Act was only the first step; over fifty years later, it’s time to carry on the work that it was intended to start. On a policy level, passing the Paycheck Fairness Act and Senator Merkley’s soon-to-be-introduced comprehensive LGBT Non-Discrimination Bill (6) may help close the wage gaps that persist. Legislation that creates opportunities for affordable education and accessible childcare can continue removing barriers to equal pay that anti-discrimination policies can’t reach. Companies can do their part by proactively monitoring their payroll for disparities and promoting diversity in hiring and promoting. Individuals looking to promote equal pay can educate themselves and others on equal pay issues and contact their representatives to advocate for the passage of legislation that can help break down pay gaps.

For more information on equal pay, stay tuned for updates on Black Women’s Equal Pay Day (July 28), Native American Women’s Equal Pay Day (September 8). and Latinas’ Equal Pay Date (October 8).

By Laura Wooley, National LGBTQ Task Force Holley Law Fellow

TPP Fast-Track Bill Raises Serious LGBTQ Concerns

June 10, 2015

The upcoming Trans-Pacific Partnership (TPP) Fast-Track bill is stirring much controversy as it works its way to the House floor; the bill could be voted on this week. If passed, the bill would create special rules empowering the White House to negotiate and sign trade agreements without Congressional oversight. This means that international trade deals could be made relatively in “secret” with limited ability for Congress to accept or reject it.

TPP Fast-Track impacts not only international trade, but also raises significant concerns for human rights. Specifically, the bill would open the door for agreements with countries who are actively against LGBTQ rights such as Brunei and Malaysia. Last year, the sultan of Brunei implemented a law that made “homosexual acts” punishable by stoning and Malaysia punishes LGBTQ sexual acts by imprisonment and whipping.

Just yesterday, June 9, the White House issued a fact sheet to address the many human rights concerns associated with the TPP. In it, the White House discusses that it plans to work with TPP-included countries to conform to the “uniformly recognized human rights and fundamental freedoms.” The fact sheet states that the TPP will enforce many labor, anti-trafficking, and transparency standards.

The bill could also pose substantial healthcare ramifications. According to the New York Times, pharmaceutical companies, insurers, and large manufacturers are among those who stand to benefit best from bill. By giving countries more trade leeway, companies may restrict access, skyrocket prices, or eliminate lower-cost HIV medications for those who need it most.

A broad coalition of advocates have spoken their opposition to the bill, including Feminist Majority, Communications Workers of America, and Pride at Work. Last February, five members of the LGBT Equality Caucus wrote the President a letter, showing opposition to Brunei and Malaysia’s inclusion in the bill. Here is the letter:

TPP Letter1TPP Letter 2

Congressmen Jared Polis also communicated his concerns in a letter to the President. You can find his letter here:

The United States has made great strides to recognize LGBTQ rights both domestically and internationally, but many claim that TPP Fast-Track appears to be a serious step in the wrong direction.

As the TPP Fast-Track bill is under review in the House of Representatives, we urge you to contact your local Congressman and share your concerns.

by Beckham Rivera, National LGBTQ Task Force Holley Law Fellow

Ban the Box: Create LGBTQ Employment Opportunities

June 10, 2015

Imagine being held in a prison cell for 23 hours a day with no access to classes, programs, or communal meals. The only choice, other than this isolation, is prison general population. General population is a place of terror for LGBTQ prisoners, as almost a majority of LGBTQ prisoners report being raped or sexually assaulted.

And then the day you’re released from prison should be a day of relief.

Except that it isn’t for many people reentering their communities. They’re met with challenges accessing jobs, housing, and health care.

Francesca Rebecca Acocella, Holley Law Fellow

Francesca Rebecca Acocella, Holley Law Fellow

That’s why we need to support formerly incarcerated people. We must help them access education, employment, and housing. Only then can we help them break the cycle of poverty and violence that lead to high prison recidivism rates.   Statistics indicate that more than two-thirds of state prisoners are rearrested within three years of their release and half are re-incarcerated.

Reentering LGBTQ people face particular challenges: homophobic or transphobic parole or probation officers, lack of access to transition related or HIV-related medical care, sex-segregated housing in community corrections centers or shelters, and lack of resources for LGBTQ survivors of intimate partner violence. But they also face the same challenges most reentering people face: finding a job, finding housing, and accessing health care.

In most states, reentering people, who need jobs to meet the terms of their probation, are legally discriminated against in hiring practices. Private and public sector employers in a majority of states are permitted to ask about an applicant’s arrest record—employers regularly include a “box” on job applications that applicants are required to check if they’ve ever been convicted of a felony.Ban-the-Box-300x300

At the state and local levels, advocates are working to ensure reentering people have access to employment opportunities and are not placed in programs that will make successful reentry nearly impossible. Those programs affect LGBTQ formerly incarcerated people, who face additional institutional challenges in reentering.

On the federal level, federal contractors currently deny reentering people a fair chance in hiring by asking about prior arrests. President Obama could issue an executive order that would “ban the box” on job applications, granting new opportunities to reentering people and contributing to economic growth for us all.

That’s why we ask you to join us in urging President Obama to ban the box on job applications for federal contractors. The box is a barrier to employment and self-sufficiency.

Already, seventeen states and the District of Columbia have banned the box for state government contractors, in addition to corporations like Koch Industries, Target, Wal-Mart, and Bed, Bath & Beyond. Banning the box means committing to fair chance hiring and economic growth. The federal government needs to join these states and companies and be a leader in providing resources and opportunities for formerly incarcerated people, to treating them with respect, humanity, and dignity, and to committing to economic growth that will benefit us all.

Join us today, Wednesday, June 10, 2015 in a Ban the Box Day of Action as we urge President Obama to issue an executive order banning the box in federal contractor job applications. Tweet, send a Facebook message, or write a letter telling President Obama to require all companies that are federal contractors to ban the box. Click here for more information on how to tell President Obama you support formerly incarcerated people and their families.

Let’s work together to make the day formerly incarcerated people leave prison is a happy day in their lives, a day when they know they’ll be greeted by structures in place to build them up, not send them back to prisons and jails, and that will give them the fair chances they deserve.

By Francesca Rebecca Acocella, National LGBTQ Task Force Holley Law Fellow


King, the Royal Pain to the Affordable Care Act

June 3, 2015

Hormones get expensive. When I first started hormone replacement therapy in 2011, I gladly paid $300 a month for my testosterone. I didn’t have insurance at the time, but I picked up additional shifts to pay the care I needed. Classes got tougher, so work was on the back burner for a little bit. At the time, insurance definitely wasn’t the answer either. I just couldn’t add another bill to the pile. I asked some of my transgender friends how they went about obtaining their “livelihood in a bottle.” One shared that she had great insurance through her job, another said that he’d been off hormones for some time. He continued to tell me that he used to buy his testosterone on the street, what some refer to as “Street T,” until his friends convinced him that it wasn’t worth the risk.

Graphs: The Affordable Care Act Makes a Difference for LGBT Communities

In 2010, the Affordable Care Act (ACA), also known as Obamacare, was implemented to give millions of uninsured individuals and families affordable healthcare insurance. The ACA required states to set up an “exchange” for its residents to obtain health insurance. States that didn’t create the exchange directed residents to a federally created one. Also, the Act required people to obtain coverage or pay a tax penalty unless they fell within an unaffordability exemption: either Medicaid, or an insurance subsidy. Medicaid ineligible individuals who fall within 100-400% below the federal poverty line, are eligible to receive a substantial discount on their premium thanks to the subsidy (1).

This month, the U.S. Supreme Court (SCOTUS) will be rendering their decision on King v. Burwell, a case that could strip subsidies from millions of insured individuals and families. Under the ACA’s language, insurance subsidies are available to state markets, leaving it unclear whether they are available to states running through the federal exchange. The IRS bridged the gap with regulation making the same subsidies available to federal exchange shoppers.

This is a particularly important issue for the LGBTQ community. In King, petitioners argue that the IRS regulation is unconstitutional, and therefore should not be enforced against those who sign up on the federal exchange. Why is this important? Currently, 34 states lead residents to the federal exchange. This amounts to approximately 5.5 million insured on the verge of losing their healthcare incentive (2). If SCOTUS finds the petitioners have it right, these 34 states are left to choose whether to start their own exchange, which they chose not to do in the first place, or force those with subsidized premiums to lose their government-funded discount.

According to the Center for American Progress, 1.12 million uninsured LGBTQ individuals are eligible to receive insurance subsidies (3). These subsidies help pay for much needed care such as: HIV treatment, mental health, substance abuse, and some transition-related services. If the court finds that the IRS regulation cannot extend the subsidies to the federal exchange, many newly-insured individuals will be forced to drop their insurance if they cannot pay the unsubsidized premium. Furthermore, those who cannot afford to keep their coverage will be faced with another penalty; the tax for failing to maintain coverage.

If SCOTUS rules for the petitioners, this case could just be the start to dismantling the ACA as an institution. States that have previously chosen against establishing a state exchange will likely maintain this stance, further burdening their low-income residents.

Since 2011, when I took my trip to the marketplace and became insured, I have also benefited from the ACA’s insurance subsidy. As we anxiously await the King decision, I can’t help but remember my friend who had to go to the street for the care he needed. I hope that he, and the millions of others who benefit from the ACA, can maintain their access to healthcare post-King.

by Beckham Rivera, National LGBTQ Task Force Holley Law Fellow

Creating Change with my 70-year-old Indian parents

May 14, 2015

After I told my parents I was gay at 18, our relationship went through several difficult years. And while I grew up in Southern California, what people perceive as a liberal stronghold, my parents were the quintessential super-strict Indian parents. But after their own glacially-paced (or so it seemed in my American-born eyes) coming out, they have become the amazingly cool parents I would have never imagined. They have marched in San Francisco Pride three times (twice with more enthusiasm than me), been to a couple of queer weddings, and often enough ask me if I have met the perfect man.

Shobha Bajaj, Shiv Bajaj and Saurabh Bajaj

Shobha Bajaj, Shiv Bajaj and Saurabh Bajaj

So there we were at the Saturday afternoon plenary in Denver earlier this year, for Rea Carey’s State of the Movement speech. The Ferguson organizers took the stage as planned, and in true Creating Change fashion, stayed on stage for many more minutes protesting the need for community recognition of black lives and black trans lives.

My parents absolutely abhor cursing. I once said “piss” in front of Mummy and thought I would need to vacate the premises immediately. And now we were at the plenary, and on stage a million “fucks” were being thrown.

I listened carefully to what my fellow people of color had to say about the need for all of us to recognize the struggle and demands of black LGB and black trans folks within our own progressive LGBTQ movement.  One woman’s words about the epidemic of violence against trans women of color brought me to tears: “Remember [my] name: Raquel. Because if something happens to me for loving a person I love, that’s the death I face.” Her courage was breathtaking, and the need for it, heartbreaking.

I also listened in horror to all the “adult” words, wanting to sink through the floor, as I thought about how offended my parents must be. I honestly thought about asking them to turn their hearing aids down.

The plenary finally came to an end and we left the hall. I was exhausted. The difficulty of hearing the choice in words was far behind the difficulty of hearing the pain and anger in the voices and stories of black folks on stage.

My parents looked just as exhausted, but then again, they’re 70 plus. When I asked Mums how she felt, she surprisingly said “refreshed.” She hadn’t liked the language on stage, but thought that people had said what they needed to express, and she was glad to have heard it. Then Pops spoke up: “The woman at the end was so nice, so sweet.”

Over the years, my parents and I have talked about the many challenges transgender people face. They know real equality for me means full lived freedom for all, including trans people. They had questions, of course, but also drew on their knowledge of hijras in India. I remember one year Mummy came back from a visit in Delhi and relayed with excitement how the city was treating hijras with more dignity and respect.

And now my parents both were sharing their admiration of Aaryn Lang, a black trans woman, who to them had spoken so beautifully on stage (and to their pleasure, with few curse words). Aaryn said, “Helping trans people is so simple; it’s treating us like you want to be treated out in the streets.” The words had resonated with Mummy and Papa, who had endured prejudice when told to “go back where you came from” many times as young immigrants in Los Angeles county.

All of our journeys are incredible. My parents’ journey took them from fleeing what is now Pakistan during the Partition of India, to their arranged marriage in Delhi, to a move all on their own to California to raise three kids, to being out and proud parents of a very out son. And now, in their seventh decade, they have changed and become the advocates I wouldn’t have expected them to be.

Positive and lasting change can often seem like a slow and difficult process. And while there is still more work to be done to end anti-transgender violence, eliminate racially biased policing, and secure full freedom, justice, and equality for LGBTQ people, it is important to acknowledge significant changes we have already made. For me, I have been lucky enough to create change alongside my parents.

By Saurabh Bajaj, Director of Individual Giving, National LGBTQ Task Force

Donation, Not Discrimination: Lift The Blood Donor Ban

May 13, 2015

For years, I helped save lives and brought joy to my life by donating blood. My blood type is needed and sometimes in short supply. Yet the FDA’s decision to ban gay and bisexual men from donating blood in the 1980s ended my ability to help others through this simple act.

Picture of Russell Roybal

Russell Roybal, Task Force Deputy Executive Director

 The FDAs decision in the early 80s was partly ignorance. But ultimately, it was a political move that was intentionally discriminatory. I was far from the only person impacted. Millions of gay and bisexual men were blocked from donating lifesaving blood, despite the fact that screening for HIV had become a standard part of the donation process. The ban targeted every man who had sex with men, regardless of risk behaviors. It didn’t matter whether you used protection, how frequently you were tested for HIV, and if you had one partner or multiple.

And that’s not even the whole story. The FDA at the same time also banned donations by people who injected drugs and people who at any point in their life exchanged sex for money – again, regardless of frequency, risk behavior, or how long it had been since the person had engaged in those behaviors. In practice (and by some reports, in policy), the FDA bans donation by all transgender people who have had sex with men. Each of these bans is grounded in stigma. They create whole classes of people who are marked as irresponsible and dangerous.

Though the ability to test for HIV and scientific understanding of transmission risk has been available for many years, the FDA waited for 30 years to begin to lift the ban against some gay men donating blood. While this decision by the FDA is a step forward, it is far from a victory. The “lifting” only applies to gay and bisexual men who haven’t had sex with men in the previous year, and doesn’t change any of the other discriminatory bans. The science exists to protect the blood supply, and the way forward is clear: it is time to stop discriminating against gay and bisexual men, people who’ve engaged in sex work, and people who’ve injected drugs.

Donation not discrimination.001  Join us in calling on the FDA to lift the ban completely.You can do so by submitting your own thoughts online through their public commenting portal here.

By Russell Roybal, Deputy Executive Director, National LGBTQ Task Force 


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