DOJ to use gender bias laws to pursue some Gay cases
by Lou Chibbaro Jr.

In a significant move, the U.S. Justice Department announced last week that it will use existing federal civil rights laws to take legal action against businesses and state and local governments that engage in employment discrimination against Gay and transgender persons.

"This reflects a significant response on the part of the Justice Department generally to seriously apply existing laws in ways that can remedy current injustices against Gay people and gender-non-conforming people," said Lesbian-activist attorney Chai Feldblum, who heads a legislative clinic at Georgetown University Law School. Feldblum said the Justice Department's response was prompted by recent U.S. Supreme Court decisions, such as one in a case involving same-sex sexual harassment, and that "the actual impact of this change will depend on the results we get in court." 

Justice Department official Aaron Schuham said DOJ believes that existing U.S. civil rights statutes that explicitly ban discrimination based on sex can be applied to cases of anti-Gay discrimination in a number of circumstances.   Schuham, an attorney with DOJ's civil rights division, said high-level DOJ officials, including Attorney General Janet Reno and Assistant Attorney General for Civil Rights Bill Lann Lee, approved the DOJ "initiative" to take on such cases, even though no federal civil rights law explicitly bans discrimination based on sexual orientation.

Helen Norton, deputy assistant attorney general for civil rights, emphasized, in an interview with the Blade, that the DOJ efforts described by Schuham cannot be used to assist Gays or transgendered people who suffer discrimination based solely on their sexual orientation.   "Civil rights laws don't cover Gays," she said. "But all Americans are entitled to protection under existing laws that cover them.   If a Gay [or
transgender] person is discriminated against for some reason other than their sexual orientation," such as gender non-conformity which could be considered a form of sex discrimination, DOJ "may be able to go after that." 

Feldblum, who praised the DOJ for adopting the policy, said it could have the effect of providing more protection for the segment of the Gay community that most often faces discrimination - women who are perceived to be masculine and men who are perceived to be effeminate.   "There's more protection for Gay men, Lesbians, and transgender folks who are non-conforming to gender stereotypes," said Feldblum, a professor of
law at Georgetown.

Schuham announced the new DOJ policy on Nov. 14, while speaking on a panel at the National Gay and Lesbian Task Force's Creating Change Conference in Pittsburgh, Pa. More than 1,800 people attended the conference.   Schuham said Lee put the policy into place "several months ago," although neither Lee nor the DOJ formally announced the change.   "It's a very serious commitment that has been directed by everyone from Janet Reno all the way down," Schuham said. "We can really bring our
resources to bear on this."

"We intend to work on cases … [where] an employer fails to hire you, promote you, or fires you or retaliates against you because you don't live up to the employer's expectation of what a male employee should act like, or how he should hold himself out," Schuham said. He said the department will take similar action against an employer that discriminates against a female because she doesn't conform to "sex stereotyping."

Schuham said DOJ plans to apply the gender stereotyping strategy to a number of other instances where Gays and transgendered persons commonly face discrimination or harassment.  Among them, he said, are anti-Gay harassment of students in public schools and anti-Gay discrimination or harassment in prisons.   He said DOJ will also consider taking action against local police departments that fail to provide adequate protection for Gay and transgendered people.

Schuham said that under standard procedures for enforcing civil rights laws, the Justice Department has authority to force employers to end discriminatory practices through civil litigation.   He said the department represents the person or persons facing discrimination in such civil litigation free of charge.

Schuham said anyone with information about possible Gay or transgender-related discrimination at the workplace can reach him at (202) 514-3878.

Feldblum said the adoption of the Justice Department policy follows several years of discussion on the matter between Gay civil rights attorneys and Justice Department officials.   Feldblum said groups such as the transgender organization Gender PAC and the legal groups of Lambda Legal Defense and Education Fund, the American Civil Liberties Union, and the National Center for Lesbian Rights have worked on the effort over the past year.   "This is an excellent step forward," Feldblum said. However, Feldblum said the policy should not be considered a substitute for a national Gay civil rights law, which Congress has so far declined to pass.   Lambda's Managing Attorney Beatrice Dohrn echoed Feldblum's assessment, characterizing the DOJ action "a very sound interpretation" and "application" of existing laws.

Dohrn said Justice Department officials have indicated they will use Title VII of the U.S. Civil Rights Act of 1964 and Title IX of the U.S. Civil Rights Act Amendments of 1972 as part of their arsenal of laws to crack down on sex discrimination against Gay people.   Title VII bans discrimination in employment, and Title IX bans sexual harassment at the work place.

Dorhn said the DOJ is also expected to use provisions in the U.S. Constitution which the Supreme Court has held to ban local, state, and federal government entities from engaging in discrimination based on the same categories as Titles VII and IX.  She said the DOJ is expected to buttress its linkage of sexual orientation discrimination and sex discrimination by invoking the 1997 Supreme Court decision in Oncale v.
Sundowner.  That decision established that same-sex sexual harassment is illegal under existing law. In addition, Dorhn said, the DOJ is expected to use the 1989 Supreme Court ruling of Hopkins v. Price Waterhouse, which established that gender role discrimination and gender stereotyping is covered under Title VII as a form of sex discrimination.

Dohrn noted that the plaintiff in the Hopkins case was a woman who was denied a partnership in the Price Waterhouse accounting firm because her superiors believed she dressed and acted in a way that was inappropriate for a woman. The woman's sexual orientation was not identified in the case and did not become an overt issue.

"No one said she was a Lesbian," said Dorhn. "But they accused her of having traits not characteristic of a woman and said that was inappropriate for her work."

Dana Priesing, an official with Gender PAC, a national group that lobbies Congress on transgender issues, called the Justice Department action a "very important" development that could provide job protection for transgendered persons. 

"We believe this is well grounded in case law," Priesing said. "We believe they clearly have the authority to do this."