Podcast: LGBTQ rights won’t lead to frivolous lawsuits

The United States Supreme Court deemed it illegal for employers to discriminate against employees for sexual orientation or transgender status. In this episode, Kyle Velte, associate professor of law, explains why the SCOTUS ruling is a “landmark case that will transform the American workplace.” She also recounts her own experiences at the Supreme Court and tells us how the highest court in the land conducts its business in the age of COVID-19.


New sex-and-age bias ruling signals reach of LGBT worker case

  • Tenth Circuit recognizes “sex-plus-age” discrimination claims
  • Ruling influenced by Supreme Court’s Bostock decision

Older men and women can sue their employers for discrimination based on a combination of their sex and age, the Tenth Circuit said in a recent decision showing the broad reach of the U.S. Supreme Court’s landmark ruling on LGBT worker rights.

‘Nobody else for them to pick on’ KS Senate candidates scuffle over transgender rights

Three of the Republicans running for U.S. Senate in Kansas have launched ads in the last week attacking transgender rights, a strategy intended to galvanize social conservatives in the competitive August primary.

Former Kansas Secretary of State Kris Kobach announced Tuesday that if elected he would offer legislation to withhold Title IX federal funds from institutions that allow transgender students to participate in women’s sports.

KU discrimination law expert says Supreme Court ruling on LGBTQ workers is ‘historic,’ but ‘there’s still a lot of work to do’

The U.S. Supreme Court on Monday issued a ruling protecting as many as 13 million Americans from being fired solely because of their sexual orientation or gender identity.

Though it was a landmark decision, a professor and expert in discrimination law at the University of Kansas School of Law said a gap still needs to be addressed in the 28 states, including Kansas, that don’t offer protections for LGBTQ workers.

Podcast: Kyle Velte discusses how Title IX applies to transgender students

Seg. 1: Title IX + Transgender Students | Seg. 2: A People's History

Segment 1: How Title IX applies to transgender students.

With the background of a couple of court cases currently in progress, a KU law professor has created a guide for using Title IX to protect transgender students from discrimination in schools. 

  • Kyle Velte, associate professor of law, University of Kansas School of Law

Segment 2, beginning at 27:00: Season 1, Episode 4, A People's History of Kansas City.

The government doesn’t know much about LGBTQ people. Here’s what we know about N.J.

The U.S. Census is really bad at counting LGBTQ people.

In fact, the government has never had an accurate counting of states’ lesbian, gay, bisexual, trans or other queer residents.

That means the $675 billion allocated from the federal budget to states each year for anti-poverty programs likely isn’t reaching as many LGBTQ people as it could because the government doesn’t collect accurate data on them. As one of the larger states in the country — and as a state with a significant LGBTQ population — that could mean New Jersey is missing out on funding for its residents.

Law professor first to outline how Title IX protects transgender students

Monday, January 13, 2020

LAWRENCE — Transgender rights have made significant progress in recent years thanks to court decisions and high-profile transgender individuals putting a spotlight on the issue. Much discrimination still exists, though, especially for young people without political power. 

Kyle Velte, associate professor of law at the University of Kansas, argues that combining the efforts to ensure Title IX’s protections of transgender students with ongoing work to challenge birth certificate correction statutes holds transformative potential for both movements. The requirements for gender confirmation surgery to change birth certificates are especially burdensome.
“A lot of transgender folks don’t want to have gender confirmation surgery for a variety of reasons, or they can’t afford it,” Velte said. “That opens them up to a variety of problems in life, especially for young people. I think there’s still a lot of transphobia in society. I’m trying to connect how Title IX protecting students and changing birth certificate requirements can work together. I think students can help lend emotional appeal to these stories, and adults can help with the political side.”
Velte has written an article published in the American University Washington College of Law’s Journal of Gender, Social Policy & the Law that is the first to document how Title IX protects transgender students and connects it to the effort to change laws making it difficult to change gender assignment on birth certificates. 

Numerous situations in life require a person to show ID, whether it is at a job interview, voting, boarding a flight, buying alcohol or many others. That can present problems for transgender individuals, especially minors who are required to present birth certificates to schools. More youths are coming out as transgender, yet 16 states require gender confirmation surgery before one may correct the gender marker on a birth certificate. Three states don’t allow correction of gender under any circumstance. That results in students facing many problems at school, chiefly use of restrooms and locker rooms that match their gender identification.

In the article, Velte presents detailed arguments about how Title IX’s federal protection of students on the basis of sex prevents discrimination against transgender students. However, across the country, schools require transgender students to use bathrooms and locker rooms that match their gender at birth. Such policies can be extremely harmful, leading to students attempting to avoid using bathrooms at all, which in turn leads to negative health outcomes such as dehydration and kidney or bladder infections. Those risks, in addition to the bullying transgender students may face, can result in suicide.

The article’s second part summarizes the legal landscape for both movements, outlining decisions and cases currently in the courts. It also points out the importance of identity documents in society for all and the unique challenges that result for transgender individuals. Additionally, it documents the origins of sex-separated facilities in the early 19th century as a means of protecting the virtue of women who were increasingly entering the workplace. Velte also gives in-depth analysis of Title IX, constitutional equal protection, state anti-discrimination laws and school district policies.

Through the article, Velte argued that “the surgical requirement is counterfactual, unconstitutional, unlawful and unethical.” In the article’s third part, she outlined how modern science shows the requirement is counterfactual and argues it violates the First Amendment protections of the right to refrain from speaking and right to be free from endorsing a government message. The requirement also violates due process rights to liberty, dignity, bodily autonomy, gender autonomy and privacy.

The article’s final part presents a proposal to advance the interests of both transgender K-12 schoolchildren and transgender adults challenging surgical requirements for correcting identity documents. Velte points out the strategic benefits of a coalition, how to build such a coalition and how to avoid the disconnect between those fighting for gay and lesbian rights from the movement for transgender rights.

Allowing individuals to change the gender status on birth certificates without requiring surgery is not only the right legal thing to do, but policies requiring students to use facilities matching their gender at birth are unnecessary, Velte said. There are no biological or health reasons for such policies, and there have been zero cases of transgender individuals assaulting someone in a public bathroom, counter to frequent arguments made in support of the policies. In fact, transgender individuals are much more likely to be the victim of such attacks.

“Things are changing for the better as science and society realize gender is not a binary construct,” Velte said. “Medical professionals and psychologists would say these are ridiculous requirements, and I’d like to see the law reflect that as well.”

Kansas schools protect LGBTQ students as legal experts dismiss lawsuit concerns

A Wichita teacher accused the district’s school board of moving slowly on passing protections for LGBTQ students at the start of its December meeting.

Later in the meeting, after the district did pass such a statement, one of the board’s longest serving members announced his resignation.

Kansas schools have been adding gender identity and sexual orientation to their nondiscrimination policies. Olathe and Manhattan updated their policies this past year while Topeka did so about a decade ago.

KU professor writes brief for Supreme Court arguing Title VII protects against transgender discrimination

Tuesday, October 01, 2019

LAWRENCE — In one of the first cases of its upcoming term, the U.S. Supreme Court will hear the case of a transgender woman who was fired from her job and determine if Title VII protects against discrimination against transgender individuals. A University of Kansas law professor has co-written an amicus brief, or friend of the court brief, arguing that both law and history are on the side of the respondent.

Aimee Stephens was fired from her job at Harris Funeral Homes on the basis of being transgender. She sued, and the Sixth Circuit Court of Appeals ruled she was dismissed for illegal reasons. Title VII, passed in 1964, prevents employment discrimination based on race, color, religion, sex and national origin. The legal team for the funeral home argues transgender status is not covered. Kyle Velte, associate professor of law at KU, and her co-authors argue Title VII does, in fact, protect transgender individuals.

“Our friend of the court brief is trying to debunk that idea that Congress couldn’t have considered transgender people,” Velte said. “It’s saying you have to know your history. There were many examples of transgender individuals in society at the time, and we’ve included many of them. It’s not as much about legal arguments as it is about history.”

Among the examples cited are media accounts of transgender individuals, such as the story of Christine Jorgensen, a World War II veteran who returned to Europe to undergo what was then known as “sex reassignment surgery” and today is known as gender confirmation surgery. Jorgensen’s story made front-page news in the New York Daily News in 1953, even amid reporting on the Korean War and King George VI of England’s death. Jorgensen was only one transgender person to receive extensive media coverage prior to 1964, and the authors include news clips of stories from major media outlets including Time, Newsweek, the New York Daily News, African American publications such as Sepia and Ebony, and cult tabloid publications including Mr. and Whisper.

In addition to history, Velte and co-authors claim the law is on Stephens’ side as well. Because of that, speculation about what Congress intended in writing Title VII in 1964 is irrelevant.

“Because the plain text of Title VII unambiguously prohibits the employment discrimination Stephens suffered because of her sex, it is inapposite to speculate about the intent of enacting and amending Congresses with respect to whether transgender individuals are covered under the statute,” the authors write. “However, even if this court sought to divine unitary intent among the various members of Congress that enacted and amended Title VII, there is no indication that Congress sought to exclude transgender individuals.”

Furthermore, had Congress not been aware of transgender individuals in 1964, lawmakers who passed amendments to Title VII in 1991 and 2009 most certainly would have been.

Stephens’ case is one of three the Supreme Court will hear this fall on sexual orientation, gender identity and employment discrimination. Velte, who teaches classes on employment discrimination, evidence, and gender, sexuality and the law, has also filed or co-written amicus briefs on notable Supreme Court cases including Obergefell v. Hodges, the case that affirmed marriage equality for same-sex couples; Masterpiece Cakeshop v. Colorado Civil Rights Commission; and United States v. Windsor, the case that determined the 1996 Defense of Marriage Act was a violation of the due process clause of the Fifth Amendment.

Velte also cites Price Waterhouse v. Hopkins, a 1989 Supreme Court case that ruled employers cannot take action against employees for not conforming to gender stereotypes.

“It’s going to be hard to get out of this, unless the court simply overturns Price Waterhouse, which would be very harmful to heterosexual ‘masculine’ women or men who are considered effeminate. Or it would simply be mental gymnastics,” Velte said.

Though while she’s sure the high court should uphold the lower court’s ruling, it is by no means a guarantee. Should they overturn the ruling, Velte said Congress could add new amendments to Title VII or pass a new employment discrimination law to protect LGBT employees. Federal law, either through a Supreme Court decision or action by Congress, is required to ensure uniform protections from sexual orientation and gender identity employment discrimination nationwide. While many states have state laws that prohibit such discrimination, there are still 28 states that allow employers to fire or refuse to hire employees based on sexual orientation and gender identity. This means that until the Supreme Court or Congress acts, 44 percent of the LGBT population lives in states that do not prohibit employment discrimination based on sexual orientation or gender identity.

Photo credit: Pexels.com

Judges who wed couples can’t refuse same-sex unions, ABA ethics opinion says

Judges who perform marriages may not refuse to perform them for same-sex couples, according to a Formal Ethics Opinion from the ABA’s Standing Committee on Ethics and Professional Responsibility released Feb. 14. Judges not only must follow the law but also must act impartially and free from bias or prejudice, the opinion explains.


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