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DOJ Asks Supreme Court to Rule Against Transgender Workplace Discrimination Protection

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  • The Department of Justice filed a brief on Friday asking the Supreme Court to rule that Title VII of the Civil Rights Act of 1964 does not protect workplace discrimination on the basis of being transgender.
  • The DOJ filed the brief in response to a case against Harris Funeral Homes brought by Aimee Stephens, a transgender funeral director who says she was fired after coming out to her boss and saying she would wear a female uniform.
  • Harris Funeral Homes and the DOJ argue Title VII protects against discrimination based on biological sex only, while the Equal Employment Opportunity Commission says LGBTQ+ workers should be protected under sex-based discrimination.

DOJ Submits Brief Against Trans Protection

On Friday, the U.S. Department of Justice submitted a brief asking the Supreme Court to rule that Title VII of the Civil Rights Act of 1964 does not protect transgender individuals in the workplace.

The brief comes in response to an upcoming case the Supreme Court will hear in October concerning a transgender funeral director who was fired after coming out to her boss in 2013.

Title VII protects workers from employment discrimination on the basis of sex, race, color, religion, and national origin.

While some argue sexual orientation and gender identity are protected under the term “sex,” the DOJ argued “sex” only refers to a person’s biological sex. It said when the Civil Rights Act of 1964 was passed, the interpretation rested on the basis of biological sex.

In the brief, the DOJ stated “[Title VII] simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”

Instead, it argued Title VII prohibits discrimination of people in similar positions and of the opposite biological sex.

The DOJ asserted any changes in the law should be made through Congress, not through the judicial system. Currently, no federal laws prohibit workplace discrimination on the basis of being transgender; however, in 2017, former Attorney General Jeff Sessions rescinded an Obama-era policy that included LGBTQ+ identities in the “sex” category.

“While the issue that the Supreme Court took up is a narrow one, whether civil rights protections against ‘sex’ discrimination passed in 1964 should include ‘gender identity’ and transgender rights, it will have vast implications for religious groups,” said Craig Parshall, General Counsel for National Religious Broadcasters. “There is an increasing movement to force faith-based employers to bend to the newly-minted doctrine that a person’s subjective ideas of how they think of their own gender should always prevail, regardless of the religious conscience of employers, businesses, and ministries.”

Meanwhile, the Human Rights Campaign and the American Civil Liberties Union have condemned the action.

“The Trump-Pence administration’s filing today is both legally and morally unjustifiable,” said HRC Legal Director Sarah Warbelow in a Friday statement“Their argument is un-American, anti-business, and flies in the face of decades of federal case law, including established Supreme Court precedent. There can be no justification for such a narrow interpretation of the term ‘sex.’ Our community will not be silent, and we will not be erased.” 

R.G. and G.R. Harris Funeral Homes V. EEOC & Aimee Stephens

Aimee Stephens worked for R.G and G.R. Harris Funeral Homes in Michigan as a funeral director from 2007 to 2013, presenting as a man for the six years of her employment.

In 2013, she decided to come out to her boss, Thomas Rost, in a letter where she stated she would begin wearing a woman’s uniform and start her transitioning process.

She said the decision came after many years of struggling to accept her identity. At one point in her life, she said she considered killing herself.

Though she said she hoped her job performance over the years would help ease her transition, she was fired soon after.

She then filed a complaint with the Equal Employment Opportunity Commission, which in turn, sued the funeral home for discrimination, sending the case to district court.

In court, the funeral home argued Stephens needed to wear a man’s uniform, saying that “[m]aintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.”

Rost, who is a devout Christian, also said he does not believe people can change their gender and defended his firing of Stephens under the protection of the Religious Freedom Restoration Act.

The district ruled in favor of the funeral home on both points, concluding Title VII does not extend to discrimination on the basis of being transgender.

In 2018, Stephens and the EEOC appealed the case in circuit court, where it overturned the district decision and ruled in their favor.

“Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII,” the decision states. “The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex.”

The circuit also struck down the district’s religious freedom ruling.

This time, the funeral home sought to overturn the decision, arguing that the circuit court had over-reached its authority, and particularly, that it had expanded the definition of what it means to be a man or woman. It asked the U.S. Supreme Court to hear the case. In April, the Supreme Court agreed to hold a hearing.

“Harris Homes ‘administers its dress code based on [its] employees’ biological sex, not based on their subjective gender identity,’ the DOJ’s Friday brief states. “Rost has stated that he ‘believe[s] that the Bible teaches that a person’s sex is an immutable God-given gift,’ and he would ‘violat[e] God’s commands’ by ‘permit[ting] one of [Harris Homes’] funeral directors to deny their sex while acting as a representative of [the] organization’ or by permitting a funeral director of either sex to ‘wear the uniform for’ funeral directors of the opposite sex ‘at work.’”

The Supreme Court will also hear two LGBTQ+ other cases involving “sex” discrimination in relation to Title VII and sexual orientation.

See what others are saying: (CNN) (Time) (NBC)

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Federal Court Orders Immigration Officers to Stop Enforcing Trump’s Asylum Ban

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  • On Tuesday, a U.S. Circuit Judge in D.C. ruled that the Trump administration’s third-country asylum rule is illegal.
  • That rule went into effect last year and bars immigrants from claiming asylum in the United States if they pass through another country on their way to the U.S.
  • In his decision, Judge Timothy Kelly said the administration violated the Administrative Procedure Act by not giving Americans enough time and opportunity to weigh in on policy changes. 
  • On Wednesday, the Department of Homeland Security ordered asylum officers to stop applying the policy for new applicants, as well as those currently awaiting a decision.

Judge Rules Third-Country Asylum Rule Illegal

The Department of Homeland Security on Wednesday ordered asylum officers to stop applying a controversial asylum policy meant to greatly diminish the number of migrants seeking refuge at the United States’ southern border.

The announcement came a day after Timothy J. Kelly, a judge for the U.S. District Court for the District of Columbia, ruled that the policy is illegal. 

The policy, imposed by the Trump administration in July 2019, was aimed predominantly at Central Americans crossing through “third” countries to get to the U.S. border. For example, to get to the U.S. from Guatemala, migrants would first need to cross through Mexico.

Under that policy, if a migrant crossed through Mexico to get to the U.S. border, they would not be able to immediately qualify for asylum. In fact, to be able to even potentially qualify for U.S. asylum, they would first have to apply for and be denied asylum in Mexico.

Immigrant nonprofits and asylum seekers argued that the rule violated a number of laws, including the Immigration and Nationality Act. That act generally allows anyone arriving to the U.S. to apply for asylum, though there are some exceptions for people with criminal records.

In his ruling, Kelly didn’t give a decision either way on the Immigration and Nationality Act. Instead, he agreed with immigrant rights groups that the Trump administration violated the federal Administrative Procedure Act, which requires that Americans be given ample time and opportunity to voice their opinions on policy changes. 

In fact, Kelly ruled that the administration also gave an insufficient explanation as to why it didn’t allow the public to see and comment on a draft of the policy before it was enacted.

For its part, the Trump administration argued that it didn’t give advance notice of the third-country requirement because that would have triggered a surge of applicants seeking to evade the rule before it took effect. 

However, Kelly said almost all of the government’s argument was based on one newspaper article from October 2018. That article suggests that when the Trump administration ended its policy of separating immigrant families at the border, the proportion of asylum seekers with children increased.

“There are many circumstances in which courts appropriately defer to the national security judgments of the Executive,” Kelly said in his decision. “But determining the scope of an APA exception is not one of them.” 

This is not the first time Trump’s third-country restriction has been halted. Last July, a federal judge in San Francisco entered a preliminary injunction against the ban because of a “mountain” of evidence suggesting migrants couldn’t safely seek asylum in Mexico. In September, the Supreme Court then reversed that injunction and allowed the administration to keep enforcing the policy.

Praise From Immigrant Rights Groups

Following this ruling, ACLU attorney Lee Gelernt praised Kelly’s decision.

“The court properly recognized that the Trump administration has once again skipped important steps mandated by Congress to ensure transparency and input from the public,” Gelernt said. “This is yet another instance in which this administration has sought to bypass Congress where the lives of asylum seekers are at stake.” 

Human Rights First executive Hardy Vieux also praised the outcome, saying that Kelly’s ruling “is proof that the administration cannot do an end-run around the law. In the United States of America, we follow the rule of law, even when it benefits asylum-seekers demonized by this administration.” 

Conversely, the Justice Department stressed that Kelly’s ruling was “a matter of procedural mechanics.”

“It was not a ruling on the substance of the asylum policy,” an official added.

That much seems to be backed up by the basis of Kelly’s ruling, which was made because the Trump administration failed to follow procedure when announcing the policy. Therefore, the administration will likely try to appeal this decision.

Impact of New Ruling May Be Limited

The order handed down from DHS on Wednesday applies not only to new asylum applicants but also to applicants waiting to receive their final decisions.

Still, even as Kelly noted in his decision on Tuesday, the impact of this ruling appears to be limited—at least for now. That’s because DHS has already been turning away thousands of asylum seekers at the border. 

Those restrictions began earlier this year in response to the coronavirus outbreak. In May, the Trump administration then extended the measure indefinitely, arguing that the move was necessary to prevent the spread of the coronavirus.

In fact, according to The Washington Post, between March 21 and May 13, the U.S. granted asylum to just two people.

See what others are saying: (CBS News) (NBC News) (The Los Angeles Times)

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Despite Limited Polling Stations, Kentucky Is On Track for Record-Breaking Voter Turnout

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  • Kentucky’s state primary is on track to see the highest voter turnout of any primary in the sate’s history, despite the fact the polling locations were slashed by 95%.
  • During a normal election, there are around 3,700 polling locations, but on Tuesday less than 200 were open because of coronavirus precautions.
  • Jefferson County, where Louisville is located, had one polling location for 600,000 voters. Because many of the state’s Black voters live there, some called it an attempt at voter suppression.

High Turnout Despite Limited Locations

Despite hiccups in big cities and incredibly limited polling stations, Kentucky is on track to see its highest voter turnout for a primary election, with Secretary of State Michael Adams projecting that over 1 million ballots were cast.

Prior to this, Kentucky’s largest primary turnout was in 2008 when the state saw 922,000 voters. In 2016, 670,000 voters turned out.

Adams released a statement saying that Tuesday’s election “offered the nation a model for success in conducting an election during a pandemic.” However, not everyone agrees with this.

The state slashed polling locations by 95%, going from 3,700 stations in a regular election to just under 200. Stations were limited due to fear over the coronavirus, but many thought it left the state’s voters with few options.

Much of the state’s Black population lives in  Jefferson County, where Louisville is located. That county was left with just one polling location for its over 600,000 registered voters. Lexington, the second-largest city in the state, was also just left with one polling station. 

Leading up to the election, the choice to limit voting locations so drastically was met with criticism from many politicians who saw this as a tactic of voter suppression that would disproportionately impact Black voters. 

“Voter suppression is no longer billy clubs & Jim Crow. It’s closed polling sites + 6 hr waits w/o pay. COVID is no excuse,” said Georgia’s former gubernatorial candidate Stacey Abrams.

“We must make it easier to vote—not harder,” Senator Bernie Sanders tweeted. “Our job is to fight racist voter suppression everywhere.”

Issues in Lexington and Louisville

Though turnout was strong, voters still saw a variety of issues. Voters in Lexington reported waiting in lines over an hour long. In Louisville, voters saw other issues like parking traffic, and the city’s sole polling station at the Kentucky Exposition Center locking its doors right as polls closed at 6:00 PM.

According to Joe Sonka, a reporter for the Louisville Courier-Journal, around 50 people were outside when the doors were locked. Voters eventually started banging on doors, demanding to be let in, as traffic made them slightly late to the location. 

The Courier-Journal spoke to Don Hardison, a voter who was left outside. He told the paper that he spent 45 minutes in traffic before he could park.

“It’s our constitutional right that is being infringed on right now. I think it’s disingenuous at best that this is the only polling place in Jefferson County,” Hardison said. “It’s not (a) coincidence that this is a large urban population.”

It was not long until those voters were let inside the Exposition Center to vote. Charles Booker, a candidate for the U.S. Senate Democratic nomination, encouraged the voters to stay in line while he filed an injunction. Booker asked that the polls stay open until 9:00 PM, but the judge granted just a 30 minute extentsion.

According to CNN, this allowed another 100 voters to cast their ballots. Amy McGrath, who is running against Booker for the Democratic nomination, later tweeted that she was filing for the polls to stay open even later.

However, nothing more than the initial 30-minute extension was granted. 

Results to be Called June 30

Results for Kentucky’s primary are still being counted. Many counties, including Jefferson County, have no results yet. The state also saw an influx of absentee voting. Over 800,000 were requested, and over 500,000 were received by Tuesday, with more on the way.

The races are expected to be called on June 30, when more of those absentee ballots are in. As of Wednesday afternoon, the New York Times projected that the presumptive Democratic nominee, Joe Biden, was well ahead of Sen. Sanders for the presidential race. 

The race between McGrath and Booker, which is more highly anticipated, is much closer. McGrath appeared to be around 8% ahead of Booker by Wednesday, though too few votes are in to call. The winner of this race will face Senate Majority Leader Mitch McConnell in November.

See what others are saying: (Courier-Journal) (CBS News) (NPR)

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Trump Suspends Multiple Work Visas That Could Have Allowed up to 525,000 to Work in the U.S.

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  • President Donald Trump signed an executive order Monday suspending multiple visa programs that allow foreign workers to enter the country. 
  • Notably, those suspensions will affect high-skilled tech workers, many healthcare professionals, students on work-study, and international business workers. 
  • Some of those visas exist as lottery systems, but the Trump administration wants to restructure them so that only the highest-paid applicants receive visas.
  • Additionally, the Trump administration is also moving to prevent asylum seekers who illegally cross the border from receiving work authorization in the United States.

Trump Suspends Multiple Work Visas

President Donald Trump signed an executive order Monday that extends a halt on the issuing of green cards and now suspends several visa programs until the end of the year.

It’s a move that officials said could keep as many as 525,000 workers out of the country for the rest of the year.

In April, Trump signed an order suspending the issuance of green cards to most foreigners for 60 days. At the time, he said the order was a response to the “invisible enemy” (COVID-19) and “the need to protect the jobs of our GREAT American Citizens.”

Trump stopped short of any broader immigration ban, but with this green card suspension having been set to expire on Monday, Trump sought to change that.

When suspending those visa programs Monday, Trump reiterated his original arguments, saying that these suspensions will ensure Americans are first in line for scarce jobs.

“Under the extraordinary circumstances of the economic contraction resulting from the Covid-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers,” Trump said of the coronavirus in the order.

Who Will These Suspensions Affect?

Most notably, visa program H-1B was suspended in the executive order. That program includes a variety of skilled worker positions such as computer programmers for big tech companies.

Another visa program that is now suspended is known as H-2B. That suspension will affect seasonal workers like those in the hospitality industry; however, it won’t affect farm workers or workers in the food processing industry.

While some medical workers can also get an exemption for H-2B, that’s going to be a narrow window only allowed if they’re specifically conducting coronavirus research.

Additionally, J-1 short-term exchange visas are being suspended. Those include university students on work-study summer programs as well as au pairs who provide childcare. Professors and other scholars are not included in the order, and there will be a provision to request some exemptions.

Still, some critics have noted that even if a person is eligible to potentially apply for an exemption, there’s no assurance they’ll be approved for one.

The order also blocks L visas, which include managers and other key employees of multinational corporations. For example, American companies with global operations or international companies with U.S. branches will be unable to transfer foreign executives into the U.S.

None of these suspensions will affect workers who have already received a green card for these programs—even if those workers aren’t currently within the country. That said, their spouses will still be barred from coming into the country if they also don’t currently have a green card.

Business Leaders Push Back

Since signing the bill, a number of business leaders have pushed back against Trump. In fact, they’ve been lobbying to keep these visa programs active since the Trump administration first floated the idea of them.

One of the reasons Trump hadn’t suspended these programs earlier was because he abandoned the idea in April when he signed his original suspension after fierce backlash from business groups. 

Many businesses have argued these suspensions block the United States’ ability to recruit critical workers from overseas, especially for jobs that have a lack of qualified American applicants.

“Very much disagree with this action,” Tesla CEO Elon Musk—an immigrant himself—said. “In my experience, these skillsets are net job creators. Visa reform makes sense, but this is too broad.” 

Other Big Tech executives such as Apple CEO Tim Cook, Microsoft president Brad Smith, and Google CEO Sundar Pichai—also an immigrant—have also spoken out against the suspensions.

Others have argued that an outright suspension of these visas doesn’t mean they’ll suddenly be beneficial to American workers.

“Putting up a ‘not welcome’ sign for engineers, executives, IT experts, doctors, nurses and other workers won’t help our country, it will hold us back,” Thomas Donohue, the chief executive of the Chamber of Commerce, said after Trump signed the order. “Restrictive changes to our nation’s immigration system will push investment and economic activity abroad, slow growth and reduce job creation.” 

Immigration advocates have also hit back, saying that the “Americans first” idea doesn’t really reflect the reality of a dynamic and changing workforce.

Even Senator Lindsey Graham (R-SC), known to be a fierce defender of Trump’s policies, broke with the president in a lengthy Twitter thread.

“Legal immigration is a positive for the American economy, and visa programs allowing American companies to secure qualified, legal labor throughout the world have benefitted economic growth in the United States,” he said.

“Those who believe legal immigration, particularly work visas, are harmful to the American worker do not understand the American economy,” he added. 

“Before coronavirus, legal immigration and programs like these played an important role in helping President Trump create the strongest economy in generations. I have little doubt that programs like these would help him build it again.” 

“Unfortunately, I fear the President’s decision today to temporarily shut down these programs will create a drag on our economic recovery.”

At the same time, advocates for restricting immigration have applauded  the president. 

The work visa suspensions will put the thumb on the labor market scale in favor of U.S. workers,” Jessica Vaughan, the policy director at the Center for Immigration Studies, said according to The New York Times. 

“It’s really heartening to see the president stand up to the special interests that pull out the stops to lobby for these visa programs,” she added. 

How Does Trump Want to Revise Immigration?

Reportedly, Trump doesn’t want to stop at suspending those visa programs. According to senior administration officials, he is working to make substantial, permanent changes to a wide array of immigration regulations. 

Notably, that includes scrapping the current lottery system in which some visas are awarded and replacing it with more of a merit-based one. Part of the intent with that change is, according to officials, to prevent companies from contracting midlevel foreign workers, thus making accounting, programming, and other technology-based jobs more likely to go to U.S. citizens.

“This will drive both the wage level and the skill level of the H-1B applicants up,” a senior administration official said. “It will eliminate competition with Americans.”

Reportedly, the Department of Labor has also been instructed by Trump to set higher wages for H-1B holders and to probe potential abuses in the program. This is because foreign workers are typically paid lower wages. 

Another major change that is set to be enacted by the administration will bar asylum seekers who illegally cross the border from receiving work authorization. That rule is set to take effect on August 25.

Under it, even if a person legally crossed the border as an asylum seeker, their wait time to be able to apply for a job would jump from 150 days to a year.

See what others are saying: (The New York Times) (CBS News) (BBC)

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