LGBTQ Breaking News Service

The legal impact of the U.S. Supreme Court’s year-old expansion of LGBT worker rights has stretched into a wide range of employment discrimination areas and driven attempts to push legal boundaries in education and health care.

More than 300 cases have cited to the high court’s decision in Bostock v. Clayton County, Ga., in the past year, according to Bloomberg Law’s BCITE analysis tool. These include litigation outside of the LGBT realm, with one of the more prominent issues focusing on how employees prove race, age, and other discrimination.

An ongoing lawsuit against Whole Foods Market Inc., for example, has raised Bostock in the context of whether workers who wore Black Lives Matter face masks and attire were unlawfully disciplined because of race.

The ruling under Title VII of the 1964 Civil Rights Act also has been used to bolster arguments in favor of “intersectional” bias claims that involve two or more statuses protected by federal law, or brand new claims such as caste discrimination or immigration-status bias.

“The next question is, what is the effect on other areas of the law?” asked Todd Anten, a partner at Quinn Emanuel Urquhart & Sullivan LLP, who has represented companies that support LGBT workers. “How has Bostock had its tendrils in other places? There have been many.”

Title VII’s sex discrimination protections also parallel several other statutes, including in education and health care. The Biden administration has backed interpretations that would expand Bostock to these spheres. The ruling also could influence litigation against a wave of anti-transgender legislation in conservative states, attorneys and academics say.

“The Supreme Court decision put an end to litigation around who was covered under Title VII, but the areas that are open are about whether the definition of sex will carry over to other areas,” said Minna Kotkin, a law professor and director of Brooklyn Law School’s Employment Law Clinic.

U.S. Supreme Court Justice Neil Gorsuch

Andrew Harrer/Bloomberg via Getty Images

Proving Discrimination

Justice Neil Gorsuch’s majority opinion in Bostock explored discrimination “because of sex,” an analysis that attorneys say can influence how workers prove bias based on race, color, national origin, religion, age, and other characteristics.

Gorsuch acknowledged that Congress allowed workers to meet a less stringent standard in Title VII discrimination cases by showing that a protected trait was one of several motivating factors leading to a firing, discipline, or other adverse employment action.

But he also discussed a stricter standard known as “but for” causation, which applies in Title VII retaliation cases, as well as bias claims under the Age Discrimination in Employment Act and other laws. This means workers must establish they wouldn’t have been fired without their employer’s bias.

“One of the under-appreciated features of the opinion is what the ‘but for’ causation standard means,” said Sandra Sperino, a University of Cincinnati law professor who’s written extensively on discrimination law. “I think courts will continue to look at the case for clarification of other statutes.”

Some lower courts have interpreted “but for” to mean discrimination must be the sole cause of an adverse act. Gorsuch noted that there can be multiple causes under but-for causation, Sperino said, adding that a year is too early to see the full effect reflected in opinions.

Two appeals courts, however, declined to extend Bostock’s “but-for causation” analysis outside the context of Title VII. The U.S. Court of Appeals for the Sixth Circuit earlier this year ruled that an older bank teller needed to prove that her age was the sole cause of her termination.

In a Voting Rights Act case in the Second Circuit, the court rejected the causation standard, saying that Congress’ intent was clear that it shouldn’t require a showing of racial animus to prove that a policy disenfranchised minority voters.

“So far we have seen very few decisions, not as many as we’d like, to reassess when you prove your case ‘but for’ your sex,” said Greg Nevins, senior counsel with Lambda Legal, an LGBT civil rights organization. “That has the potential to simplify employment law and get rid of a bunch of hurdles and tests for workers.”

Gorsuch also discussed intersectional or “sex-plus” claims in the court’s opinion without expressly using those terms. Instead, he raised hypothetical situations, including an employment policy calling for the firing of female workers who are fans of the Yankees.

The Tenth Circuit used this framing in ruling that older men and women can sue their employers based on a combination of sex and age. In a recent paper from the American Bar Association on the impact of Bostock, academics and attorneys predicted that this type of case could be useful for discrimination cases brought by caregivers.

State Law Challenges

In the wake of Bostock, Nevins of Lambda Legal said several federal appeals courts have ruled in favor of transgender plaintiffs who were raising claims of sex discrimination in health care, schools, and sports—all outside of the employment realm.

These have come as several conservative state legislatures passed laws prohibiting transgender students from competing on sports teams that align with their gender identity, targeting bathroom policies at schools, and limiting medical benefits.

“There are important ramifications for transgender and gay individuals beyond the Title VII context,” said Cathryn Oakley, the Human Rights Campaign’s state legislative director and senior counsel.

HRC and the American Civil Liberties Union have threatened to file or already have filed lawsuits against what they view as anti-transgender legislation.

Bostock could play a role in this litigation to support arguments that LGBT worker protections can extend to students. It’ll depend on the specific legal challenge, Nevins said.

Even if the ruling isn’t cited, it may still be influential, said Brooklyn Law School’s Kotkin. Bostock has parallels to cases outside of the workplace context involving transgender students or individuals, she said.

“It’s the most obvious argument moving forward in areas where transgender students are excluded,” she said.

Desmond Napoles emerges from behind the curtain onto the red carpet catwalk stretched between crowds of onlooking adults who hoot and holler as the entertainer swirls pink-tinged hair and hips seductively. Desmond is an 11-year-old boy. His parents smile approvingly from the front row of the “Good Morning America” set.

“I’m very proud of him. I’m proud that he’s found his path so early,” says the father of the boy, who is known by his drag queen stage name Desmond is Amazing, in an interview for the 2018 segment. “My greatest joy in this is just seeing Desmond happy,” his mother adds.

The juvenile star plops down on a chair in front of the studio audience, and the hosts surprise him with secret drag queen guests, who shower the child with gifts and praise for being “inspirational,” “brave,” and “courageous.”

Thanks to the help of his parents and our LGBT-obsessed culture, Desmond, who is now a young teen, has amassed quite the following and market, with more than 160,000 followers on Instagram, Pride merchandise, media hits, and magazine photoshoots, and now even a book and an original song debuted in April called “We Are Amazing.”

“If you can just let go of that, and just love your child unconditionally as you should, no matter what … there really isn’t a problem,” Desmond’s mother declared in a different television interview that year.

Contra the drag child’s mother, there is a problem, and it’s a big one. There’s nothing inspirational, brave, or courageous about a child being lauded for sexual divergence. Children are by nature shameless and imaginative in ways that make dressing up in vibrant clothing and face paint adventurous and innocent. These displays become brave and inspirational only after their parents or other adults opt to capitalize on them.

Led by children like Desmond and Jazz Jennings, whose parents are at best complicit and at worst goading, or by celebrity parents such as Dwayne Wade and Gabrielle Union who have publicly endorsed the gender confusion of their children, the sexualization of children has been accelerating for the better part of a decade. A brick of misguided approval and ignorance on the cultural gas pedal threatens to plunge the whole perverted enterprise right off a cliff.

We deserve it — because at the core of all the rainbow flag-waving and “love is love is love” sloganeering is the sick reality that any Pride activism involving children is the result of adults sexualizing them, fetishizing them, and exploiting them for political or social gain. When a parent posits that their child’s happiness is more important than their security and a drag queen heralds a kid’s gender whims as brave and inspiring, they project their perverted sexual ethics on a generation of innocents who become casualties of the culture war. Children don’t think in terms of sexuality and gender expression, meaning divergence from the biological binary isn’t a “statement” or an “identity” — until an adult decides to market it as such.

The body count is increasing, which is why a 2018 Desmond segment is so relevant today. It’s instructive about how adults have propelled this issue. If it isn’t Blues Clues forcing gender dogma down the throats of pre-schoolers in the form of an animated drag queen co-opting a familiar tune for a messed-up Pride parade song, it’s a real-life drag queen rapping about the colors of the rainbow flag for the kids on Nickelodeon.

Last month, a TikToker proudly posted a video of adults in New York City encouraging a little girl to twerk and cheering as the tiny child gyrated for their amusement. This is to say nothing of the adults who celebrate the genital mutilation and sterilization of kids.

Same-sex couples began adopting and commissioning the artificial production of kids without regard for children’s parenting needs, drag queens began reading to tots in public places, Facebook fast-tracked the so-called gender lexicon, schools started referring to students by their preferred pronouns regardless of parents’ wishes, and worst of all, doctors who took the Hippocratic Oath began castrating minors. Children are paying the price for all of it.

In one New York City private school, a video shown to first-graders talked explicitly about masturbation. In the cartoon, created for five- and six-year-olds, cartoon characters talk about touching themselves “because it feels good.”

“Hey, how come my penis gets big sometimes and points up in the air?” a young boy cartoon character says in the video.“Sometimes I touch my penis because it feels good.”

“Sometimes when I’m in my bath or when mom puts me to bed, I like to touch my vulva too,” a young girl character replies.

This type of sexualized content for children, branded deceptively under “education,” is truly masturbatory for adults. In inculcating sexual curiosity in prepubescent minds, they’re really stroking their own interests and deriving pleasure from the resulting ideological stimulation of children — often against the will of their parents — which they believe serves their political and social ends.

If they can sexualize kids before their parents have a chance to instill a mature and moral sexual ethic, progressive leaders can mold them into more promiscuous adults who give a thumbs-up to scientifically untethered gender theory and approve of hedonistic policy.

Conservatives love to talk about the culture war, and for very good reason, but we shouldn’t allow the sexual exploitation of innocent children to become an imprecise political talking point under the banner of “LGBT issues.” Two consenting adults in the bedroom is an “LGBT issue.” Parents pimping out their children for entertainment and political points is a disgusting league all its own.

Aside from merely keeping their offspring alive, parents have one primary job: to instill truth in their children. Up is up and down is down, 1+1=2, boys and girls are different — and eventually, boys are girls are marvelous sexual beings who reproduce for human flourishing.

Too many modern parents have left this job of instilling truth to schools and peers, and it’s creating a generation of sexualized children raised by amoral educators who scoff at traditional values and morality and affirm minors who agree to parrot the left’s preferred political ideology. It isn’t enough for parents not to sexualize their children. In not actively fighting against the exploitation of our youth, we become complicit in it and therefore grant approval and legitimacy.

In Romans 1, Paul warns Christians against a litany of sexual sins, including same-sex gratification. He says, “And since they did not see fit to acknowledge God, God gave them up to a debased mind to do what ought not to be done.” In the list of transgressions, he includes “inventors of evil” and goes on to say: “Though they know God’s righteous decree that those who practice such things deserve to die, they not only do them but give approval to those who practice them.”

Don’t give approval to those who invent sexually debased content that seeks to consume our children by becoming numb to it. Actively fight against it, lest we be destroyed — as a country that pimps out its own children for entertainment and political points deserves to be.

HAYFIELD TOWNSHIP — Three weeks after a PENNCREST School Board member referred to an LGBT-themed library display as “totally evil,” approximately 175 people came out on Monday to the first board meeting held in the aftermath of the controversy.

Anyone who expected board member David Valesky to dial back his comments critical of about a half-dozen books displayed in anticipation of June being Pride Month, however, was disappointed — and they will likely remain disappointed.

During the meeting, Valesky spoke repeatedly to explain his opposition to an anticipated tax increase that the board will vote to approve on Wednesday, but he did not address the controversy that resulted when he wrote in reference to the book display, “Besides the point of being totally evil, this is not what we need to be teaching kids. They aren’t at school to be brainwashed into thinking homosexuality is okay. Its [sic] actually being promoted to the point where it’s even ‘cool.’”

In an interview following the meeting, Valesky told the Tribune, “I definitely do plan to follow up” on the controversy during the board’s voting meeting, which takes place Wednesday instead of the usual Thursday.

“I’m not taking anything back, but I guess I would like to clarify on it,” Valesky said. “I don’t regret anything I said.”

The controversy has provoked an online petition calling for Valesky and board Vice President Luigi DeFrancesco to be removed from office. Both men shared a Facebook post that drew attention to the LGBT-themed books, which were part of a larger display of approximately 70 books on various themes.

DeFrancesco shared the post without comment; Valesky stated, in part, “This is not what we need to be teaching kids. They aren’t at school to be brainwashed into thinking homosexuality is okay.”

By late Monday the petition at Change.org, which was open to people around the world, not just district residents, had more than 4,500 signatures.

The audience drawn to the meeting largely by the controversy was approximately 20 times larger than that of a typical PENNCREST board meeting. While those members of the public did not hear from Valesky on the topic, the board did hear directly from six members of the public and indirectly from many more.

Several dozen audience members displayed their support for Valesky by wearing large stickers affixed to their clothing with the phrase “I stand with David” in all-caps. About two dozen more showed their opposition to Valesky’s comments and support for gay rights with various signs, T-shirts and other pride symbols.

Four speakers voiced their support for the library staff that had created the display of books at Saegertown Junior-Senior high, for gay students in the district and for freedom of expression generally. Two of the speakers were critical of the display and said that the apparent endorsement of a “worldview” represented by the books was inappropriate in a public school.

Rising Saegertown sophomore LaWrynn Edwards, the social media editor for Saegertown Pride Alliance, a club at the school, cited the Constitution’s guarantees of freedom of expression and equal protection under the laws in addressing the board and calling on them to represent all students in the district.

“Public schools cannot single out students that are LGBTQ+ for negative treatment,” she said.

Saegertown English teacher Stacey Hetrick told the board that “books are not evil.”

“The only problem with books is when people perceive a threat that doesn’t exist and behave accordingly.

“If you don’t want your child to read particular books, then your child will not sign out those books,” Hetrick said. “As a parent you have control over them. Books sitting on top of a shelf are a threat to no one.”

Centerville resident Ryan Weingard said he had not followed the controversy on social media but had read about it in the news and had not seen “any people being called evil.” Instead, Weingard said, “people are confusing a worldview with a personal attack.”

“I would encourage the school board to return to foundational principles in what you bring before our children,” Weingard added. “The principles of the Christian worldview are in fact what this nation was founded upon. It’s what sustained the nation.”

Superintendent Timothy Glasspool said that 12 speakers are already registered to address the board at its Wednesday meeting. Regarding Valesky’s comments about the book display, Glasspool noted that in making the comments Valesky did not speak for the board and said he did not anticipate the board taking any action. The display, Glasspool added, remained in place until the library closed at the end of the school year.

In response to numerous issues, including the social media controversy, a disagreement with Valesky over the proposed tax increase, and board member absences from recent meetings and district graduations, board member Jeff Brooks proposed a retreat that could allow members to work through some of their differences.

“It’s embarrassing to be a part of this school board the way we’re operating and the way we’re doing things,” Brooks said.

Mike Crowley can be reached at (814) 724-6370 or by email at mcrowley@meadvilletribune.com.

I’m pretty sure time has stopped. Or maybe it’s simply that my heart has been forced to cease its beating. I feel as though I’m watching myself from afar, observing my eyes widen as they read the word before me over and over and over. Six letters strung together to form one of the most destructive words in the English language. One of the most painful words in any language.

“N—–.”

I sit at our kitchen table, a freshman in high school. A gay, African American male, about to go to a high school dance, reading the word sent over instant messenger by two of my classmates. Part of my heart breaks. The word used specifically to remind Black people of their supposed place in society. I’m not that word but now I am viewed as that word. I’ll never have the luxury of forgetting this first that I never wanted; this first that I did not deserve.

Alone at the table, I ignore the crack that word causes within. Instead, I give in to the fury that is bubbling up within. Something inside me twists permanently.

As I reflect on this moment in 2021, a year after the heart-shattering murder of George Floyd sparked national and international outcry, I’m inevitably reminded of how much it took to activate parts of our society into caring about Black people and the atrocious treatment we have faced for so long.

I’m also reminded of my relationship with anger as a Black, gay male living in America; a country where righteous anger as a minoritized person can lead to your death; a country where simply being born Black, simply existing with the “wrong” skin color can mean you don’t make it to adulthood.

Sadly, that online message wasn’t the last time I was called the n-word in high school. Far from it. It happened so many times I was forever on-guard. It was the same with homophobic slurs. And though I had friends, I kept the verbal assaults to myself because of the shame. I believed I was the problem.

As a young teenager, anger consumed me. There were times I felt as though I was a receptacle overflowing with the malice others had, without my consent, shoved into me. I had experienced depression and suicidal thoughts that began in seventh grade due to bullying and lack of acceptance, and so, to survive high school, I transformed myself.

I did what I could to control the pitch of my voice and I limited my expressive hand motions. I learned quickly to be friends with the “right” people, and how that somehow protected me. Blending in naturally was a luxury I didn’t have, but I tried my hardest. When I came out officially junior year it did help because people couldn’t gossip as much, asking, “Is he or isn’t he?” or “Of course he is, just look at him!” But the self-loathing remained.

Then I ran.

At age 18, I left Seattle and flew across the country to college in the hopes that it would be a fresh start; a place where I could not only study science, but openly express who I truly was. I hoped it would be a place where I could let go of anger.

Within the first weeks I was rejected from a fraternity because I was gay. Some fraternity brothers later told me how my being openly gay had led to me being “blacklisted” by two people in the fraternity at the end of voting for bids. Staff got involved. I had to relive what had happened and was told they would handle it.

Eventually, it was relayed back to me by staff that the fraternity claimed I hadn’t gotten a bid because I “didn’t get along with other people.” I was told the best that could be done was to have the fraternity brothers do “sensitivity training.”

I went on to have panic attacks—though I wouldn’t know what crying during exams or feeling unable to breathe was actually called until medical school—and failed all my first exams. I was sure I was going to fail college. At times, I sat in the shower contemplating suicide.

I furiously vowed to become friends with every person on campus. I would show those who said I “didn’t get along with people” that they had messed with the wrong Black, gay person. I succeeded in making friends, but that didn’t stop the panic attacks, the suicidal thoughts or the nightmares where I woke screaming and crying. But, harnessing my fury helped me survive.

And those friends in college saved my life. Each one shared their own stories and anger. Whether it was the treatment of women in science, racism, homophobia, xenophobia, societal inequities; we sat in the chaos of the world together. They validated my feelings as I validated theirs. Just as importantly, they encouraged me to be a better person. That happened in the little moments when we stayed up with each other until dawn talking, when sharing our stories united our hearts. It was the bigger moments when friends publicly called out others for homophobic slurs, or when I then realized I could speak up against such words too. It was two friends taking the time to sit me down one day during the summer after freshman year and saying, “You can do better. We see such power in you, and you can help others. We know you’re hurting, your anger is valid, but you can also be so much more.”

These people told me they loved me for me.

By the time I entered graduate school to study biological engineering in 2013, my anger had abated and my depression had dissipated. Now when I heard the n-word or a homophobic slur, I often rolled my eyes before taking the person to task. I set boundaries with more ease. During those two years of graduate school, I felt I was living in America as my true self: a Black, gay man who was also seen as so much more. I was known for being gay and that was seen as a beautiful aspect of my overall self. I dated—a lot. I wore crimson pants to classes and lab and I was no longer afraid to be truest myself. I mentored younger classmates and worked to improve the lives of minoritized friends on campus. I had the life I had always wanted.

And yet, less than six months later, after matriculating into medical school in the fall of 2013, I was drowning. I became class president and immediately heard some of the most disgusting and disparaging comments about myself and other minoritized students I’d ever heard in my entire life. I heard them from classmates and faculty. It felt like high school all over again and it seemed that who I was—a Black, gay man—could not exist within the medical system.

Why were my classmates allowed to use discriminatory words, but the second I calmly spoke up for myself or others, it caused “friction”? Why were my words to administrators about these issues ignored by many, while white colleagues who actually made the comments were continuously praised? Why was I unprofessional for advocating for people as class president, but white colleagues being racist was fine? Near the end of my third year of medical school, I realized I could no longer excuse the imbalance. As a Black, gay man in America, it was not my job to forever subdue my anger. I chose to use it and it empowered me.

Once, a white classmate who had used the n-word during our first months of medical school said that dealing with me was like dealing with a patient exhibiting mania. I spoke with them privately and made it clear that kind of joking was not acceptable. But having to constantly set limits hollowed me out. By the time I left medical school, I felt like a shell of the person who had been flourishing at graduate school.

I longed to return to that sense of strength and confidence, but residency had other plans. First it was being called the name of the only other Black physician in our program. Then I received a grading far below others. I strongly believe this was because I had told my attending that how she was asking questions—a process in medicine known as “pimping” where senior medical staff sometimes ask difficult questions during rounds to embarrass— was causing me to have panic attacks, amongst other instances of her biases playing out. I was called unprofessional for not wearing a tie, but I observed as white attendings would openly disparage me and other minoritized trainees. Only three months in I grasped that I’d chosen the wrong university.

Because I had managed my anger before and turned it into a powerful tool to shield me, I began to do so again. I mapped out what I could change. I worked on helping one senior staff member see how toxic the environment was, and a year after I began training they apologized for how they had purposefully ignored my words about discriminatory events, and for the hand they had in them. After that, we had weekly meetings where we spoke about how to change the training program to benefit minoritized trainees, and implemented many of those changes.

At the end of three years, I made the choice to graduate early and start my fellowship in child and adolescent psychiatry elsewhere. Now, almost a year into fellowship in California, I’m happy and I’m healing. Being at a university that supports my voice and who I am as a person, has changed my life.

That fury that was once overwhelming has mainly faded. There are times it flares, appropriately so: when I read about Asian Americans experiencing higher rates of depression and anxiety because of bigotry around coronavirus. When literary agents say that the memoir I wrote about medical school, to help the minoritized, “isn’t for them,” sometimes with racially-charged comments. Watching our government debate if people “deserve” a living wage. But, overall, my mind is calmer. I feel supported and I ride the wave when those moments happen. I remember that I can do something about some of these inequities; I can engender change. I have the strength and power to help other minoritized people have a different journey and a different relationship with anger.

I am now a qualified physician able to work with adolescents and kids around their anger and their feelings. We sit together and they learn how to navigate their rage in a space where they aren’t alone, where their anger is validated, and we speak about how to safely express their righteous ire. I have the opportunity to hold their feelings with them and help them figure out how to move forward while embracing all parts of who they are and how to stay safe in this world.

And that makes my personal journey eternally worth it.

Chase T.M. Anderson MD is a fellow in child and adolescent psychiatry at The University of California, San Francisco. You can follow him on Twitter @ChaseTMAnderson.

All views expressed in this article are the author’s own.

If you have thoughts of suicide, confidential help is available for free at the National Suicide Prevention Lifeline. Call 1-800-273-8255. The line is available 24 hours every day.