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02/15/2017

Acceptance of our lesbian, gay, bi-sexual and transgender (LGBT) community is at an all-time high. One month after the Supreme Court ruled that gays and lesbians have the right to wed, in July of 2015, the Boy Scouts of America reversed its position on gay scout leaders, permitting them to participate in the organization after years of exclusion. Last week, the Cub Scouts welcomed its first transgender member, a nine year old boy from New Jersey who was born a girl, who was previously told he could not continue as a member of his pack because of his sex (click here to read The USA Today article).

But, will this momentum of treating our LGBT community fairly and compassionately continue under the new White House administration? Concerns are high, and legitimate. As soon as Donald Trump became President, his administration took down the White House’s LGBT page. Soon thereafter, he replaced Equal Employment Opportunity Commission (EEOC) Chair Jenny Yang, who was actively fighting in our appellate court system for workplace rights of transgender employees, with Nancy Lipnic, who voted against the EEOC’s July 2015 decision that said sexual orientation discrimination is gender discrimination prohibited by federal law. Now more than ever, it is important that we are cognizant of LGBT rights, and fight to preserve and expand them.

Recognizing that it is wrong, twenty states—including Minnesota—explicitly prohibit discrimination based on gender identity or sexual orientation. For example, Nichols Kaster, PLLP represents an employee who, after fourteen years of working for her railroad-employer, transitioned from male to female and then found herself terminated for a pre-textual reason. Such discrimination violates the Minnesota Human Rights Act, meaning the railroad employee can sue to get her job back, plus compensation for the wages she has lost and the other damages she has suffered.

In the remaining states, the LGBT community must rely on federal law. While federal law does not explicitly prohibit discrimination based on gender identity or sexual orientation, it does prohibit discrimination on the basis of sex, and courts are starting to characterize an individual’s transgender status as part of his or her sex. See, e.g., Rumble v. Fairview Health Servs., 2015 WL 1197415, at *2 (D. Minn. Mar. 16, 2015) (citing Smith v. City of Salem, Ohio, 378 F.3d 566, 572–73 (6th Cir. 2004) (holding that a plaintiff with gender identity disorder sufficiently stated constitutional and Title VII sex discrimination claims based on his allegations that he was discriminated against because of his gender nonconforming behavior and appearance)). This means that regardless of the state in which an LGBT member resides, federal law may protect him or her.

While the new administration may be able to take down the White House’s LGBT page, it can neither force federal judges to ignore the above-referenced precedent nor erase the state laws that protect LGBT members. As the Boy Scouts have shown us, Bob Dylan eloquently put, “the times are a changing.” It is important that we perpetuate that change by being cognizant of LGBT rights, and fighting to preserve and expand them.

By Associate Nicholas D. Thompson