Archive for the 'Discrimination' Category

Trump Quickly Backs Off on Offer of Protection to DREAMERs

Since well before he was elected, President Trump has left no questions about his positions on immigration. With this in mind, an announcement out of the Department of Homeland Security last week–stating that “the memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect”–came as more than a bit of a shock.

The DACA refers to a 2012 policy directive out of the Obama administration. The directive essentially offered a watered down version of the Development, Relief, and Education for Alien Minors Act, better known as the DREAM Act, to those who would have qualified under the act had it been passed when it was introduced back in 2001. The policy provided a new avenue for those who would have qualified under the DREAM Act to apply for citizenship to instead apply for a stay on deportation and a potential work visa. Those who applied under the policy are called DREAMERs due to the similarities between the DACA and the DREAM Act. As of today, well over 700,000 people have benefitted from the DACA.

However, with the Trump administration taking over all those people had to once again fear that they would be targeted for deportation. To make things worse, there was a strong potential that the very information they had provided to potentially receive aid under the DACA would be used against them in deportation proceedings. Thus, this recent announcement was such cause for celebration that many were left in disbelief considering the approach the Trump administration had taken to immigration so far.

TrumpUnfortunately, disbelief was perhaps the right response. The assistant secretary for public affairs at the Department of Homeland Security, Jonathan Hoffman, was quick to release a statement clarifying–or more accurately muddying–the news release on the DACA. According to Mr. Hoffman, the announcement was meant to state that there has been “no final determination made about the DACA program.” While Hoffman did state that the administration wants a “compassionate” approach to the DACA and only Congress can provide a long term solution, he was notably sparse with details as to how the DACA will be handled going forward.

When comes to those who might apply for the benefits of the DACA, uncertainty is almost worse than outright denial. This sort of waffling leaves DREAMERs in a perilous position. Do you apply for the benefits of the DACA, even knowing that the very information you use to apply may be used against you. Or do you simply continue on in the extremely stressful and risky situation of living life as an illegal immigrant.

Let’s take a look at exactly how the DACA–if its protections still exist–works as well as the information that is required to apply for the protections of the DACA

How Does the DACA Work?

In order to receive the benefits of the DACA, the applicant must fulfill a laundry list of requirements:

  • (1) They must be under 36 years old (as of today);
  • (2) they must have been under 16 years old when they came to this country,
  • (3) they must have lived in the U.S. non-stop from June 15, 2007 to today;
  • (4) they must have entered the country illegally or had their legal status expire before June 15, 2012;
  • (5) they can’t have been convicted of a felony, a significant misdemeanor (domestic violence, sexual abuse, burglary, and the like), any three misdemeanors;
  • (6) have graduated from high school, be in school, received a GED, or have been honorably discharged from the U.S. Armed Forces; and
  • (7) not be considered a threat U.S. national security.

This is obviously a pretty hefty list just to qualify but it covers an enormous number of people and offers a huge change in lifestyle for those people in terms of both personal security and securing work. However, proving this list requires somebody to provide an enormous amount of information about themselves as evidence. Proof of identity, where you went to school, where you live, when and how you got here, etc. So complicated is compiling the necessary evidence that it generally requires hiring a lawyer to make sure you got it all. The prospect of going through all the time and expense of making a DACA application, only to have that stack evidence turned against you is not only a stressful proposition for DREAMERs, it also outright undermines any attempt by the government to reach out to people here illegally.

Uncertainty Under the Law Leaves DREAMERs With a Lose-Lose

Mr. Hoffman describes the desire of the Trump administration to treat DREAMERs with “compassion.” They certainly deserve compassion, many DREAMERs did not even know they entered the country illegally. Often they have attended schools in the U.S. all their life and have no ties whatsoever to anything outside this country.

However, flip flopping on the DACA like this is the opposite of compassion. Under Trump’s own executive orders, privacy protections have been stripped away from illegal immigrants. Immigration and Customs Enforcement agents need only ask to receive the information provided under the DACA and use it to arrest and deport would-be DREAMERs.

This leaves these people in a situation where they are damned if they do and damned if they don’t. Why would somebody in such a situation ever trust the government’s offer of amnesty if it can be so easily turned around on them. Would you? Allowing illegal immigrants to transition to legal status allows for taxation, safety, and more. We need these sort of programs to achieve this. However, when they are undercut as thoroughly as they have been by the Trump administration, it’s hard to see them gaining much traction in the future short of an actual act of Congress.

Offensive Trademarks are Protected Speech, According to the Supreme Court

Ding-dong the disparagement clause is dead. In a trademark law ruling that will substantially expand the amount of acceptable trademarks, the Supreme Court came down against a rule in trademark law which bars disparaging marks.

The disparagement clause specifically barred marks which disparage, bring into contempt or disrepute any person, living or dead, institutions, beliefs, or national symbols. Some examples of marks that have previously been refused protection based on this clause include such gems as “Democrats Shouldn’t Breed”, “Republicans Shouldn’t Breed”, “Have you Heard that Satan is a Republican?”, and a bizarre trademark with the goal of mocking the Boston Red Sox—Sex Rod. Most famously in the last few years, the disparagement clause was used to cancel six trademarks associated with the Washington Redskins. This was due to “Redskins” being a pejorative term for Native Americans.

Another mark which fell prey to the disparagement clause was the mark that led to the case the Supreme Court just ruled on–The Slants. The Slants are an all Asian-American band out of San Francisco. Their name is obviously a pejorative term for Asian people. However, they specifically chose the name with the goal of making their name an ironic reclamation of the offensive term. Despite this, because the term itself disparages those of Asian descent, they were denied the protection of a trademark on their band name.

The Slants chose to challenge this in court, saying that a rule forbidding disparaging marks violates the First Amendment. As we covered previously, the U.S. Court of Appeals agreed with the band members. Now the Supreme Court has done the same, ending the disparagement clause once and for all.

offensive trademarksWhy is the Disparagement Clause Unconstitutional?

The government is generally not allowed to restrict speech based on viewpoint. If this were not the case, the government might be free to silence those who disagree with it with impunity.  However, the government can pass laws that restrict speech where they are content-neutral—not aimed at censoring the content of speech, but instead aimed at restricting the time, place, or manner which speech can be conveyed. Where a law makes a viewpoint based restriction, it will be unconstitutional most of the time.

In deciding whether a law makes a viewpoint based speech restriction the courts look to see if, within any topic, the government has target a certain type of speech for disfavor based on the what that speech is saying. For example, if the government forbade pro-lion taming speech but allowed anti-lion taming speech, that restriction would almost certainly be unconstitutional.

The Supreme Court found that the disparagement clause targeted a subject matter of the people, institutions, beliefs, and national symbols which the clause covers. Inside the subject matter, the clause allowed people to register marks referring to people or groups in a positive or neutral way, but not derogatory ones. Thus, the clause targeted a specific viewpoint and violated the First Amendment. This was exacerbated by the fact that the disparagement clause essentially allowed the government to determine what types of marks were offensive. The entire point of preventing viewpoint based speech restrictions is to prevent the government from choosing which speech to censor and which to allow.

The government defended the disparagement clause by describing trademarks as either government speech, government subsidy, or commercial speech–all types of speech which receive a lower level of protection than your own private speech. The Supreme Court rejected all of these classifications–officially declaring trademarks private speech.

Government speech, speech conveying a message from the government, does not need to be viewpoint neutral. This is because the government is allowed to voice its own position on an issue as opposed to sponsoring both sides of any matter. However, government speech has to actually come from the government. Trademarks don’t meet this requirement. The message from a trademark is communicating a private party’s brand, not the government’s approval or involvement in that brand. As the Supreme Court said, if trademarks represent the government speaking then the “Federal Government is babbling prodigiously and incoherently.”

Similarly to government speech, the government may subsidize one viewpoint over another. However, subsidies come in the form of money or tax breaks, not trademarks. Once again, the Supreme Court wasn’t having it.

Finally, commercial speech receives less protection than private speech. In general, speech is commercial when it is made by a company or individual with the goal of making a profit. However, the amount of protection is not so much less for commercial speech that it would make the disparagement clause constitutional. Restrictions on commercial speech still need to be as narrow as possible to achieve the government’s objective and the Supreme Court ruled that the disparagement clause just wasn’t narrow enough.

What Does The End of the Disparagement Clause Mean?

First and foremost, this ruling means that an enormous number of trademarks have become available. In the coming weeks, there will likely be an enormous boom in applications for the disparaging marks that were once out of reach.

Marks that were previously cancelled under the clause, such as the marks of the Washington Redskins, will likely be revived. In fact, the owner of the team–having filed briefs in support of a ruling like this with the Supreme Court–has been publically celebrating the ruling on social media.

This celebration is the perfect example of why many have found the ruling no cause to party–it allows racially insensitive or outright offensive marks such as the “Redskins” to receive protection. The band members of The Slants have recognized this, and have publically made it known that they are none too happy to be lumped in on the same side as the Redskins. However, the band members said that they pursued the case regardless because they felt that the broader free speech implications were more important.

So this is the central dilemma. Does this ruling mean that racial slurs can receive trademark protection? Yes. However, the flip side to this is that the alternative allows the government to choose what is offensive. As the Supreme Court noted in its ruling, the whole point of forbidding viewpoint based discrimination is to prevent the government from censoring speech. Where the majority gets to choose what speech is acceptable, the minority tends to get the short end of the stick. All the rest of our areas of intellectual property law don’t involve much in the way of morality restrictions, trademark is just catching up.

“Wonder Woman” Screening for Women Only Opens Theater to Lawsuit

The new Wonder Woman movie seems to be a big hit with crowds, but one theater in Austin is drawing sharp criticism.  Alamo Drafthouse unveiled “women only” screenings of the movie, to celebrate the “only woman superhero, directed by a woman, to hit theaters EVER.” Alamo Drafthouse also promised to staff only women at the event. The screenings were scheduled for June 6th and only women were admitted. The screenings sold out within hours of the announcement.

The announcement drew online criticism, mostly from men. One of those men, Stephen Clark, a law professor at Albany Law School and LGBT Rights Advocate, filed an administrative complaint with Austin’s Equal Employment and Fair Housing Office, alleging discrimination against male customers and male employees. The City has promised to investigate the complaints.

wonder womanWill the Complaints Be Successful?

There are two alleged complaints, discrimination against male customers and discrimination against male employees. The latter probably won’t get very far. In order to have a successful employment suit, there must be some injury or loss that the employee suffers, such as a pay cut, termination, or demotion. Although Alamo Drafthouse is only planning to have women serve the female only screenings, the men who would normally work at the Alamo Drafthouse were not removed. There are other movie screenings that the men can work at and they are still working at the same rate and for the same pay as their female counterparts at the women only Wonder Woman screenings. Without further evidence of injury on the part of the employees, the complaint on behalf of the men working at the theater probably won’t get too far.

The more controversial case would be the male customers who feel discriminated against. Alamo Drafthouse claims that there is no discrimination because there are other screenings going on at the same time in the same theater that do not have restrictions on gender. Men can see the same movie at the same time and it would be the same experience as the women only screening. The only difference is that they are held in separate locations.

The problem is that Alamo Drafthouse’s argument sounds too much like “separate but equal,” which was prohibited by the landmark Supreme Court case Brown vs. Board.  Of course, the difference is that the Court found that the segregated institutions of the south had discriminatory intent behind them; the purpose of that segregation was to exclude African Americans. Alamo Drafthouse can try to argue that their purpose is to celebrate and empower women, not to demean men. “This is a celebration of a character that has meant a lot to women since 1940.”

Where Do We Go from Here?

The biggest issue here is probably the marketing. Instead of “women-only” or “no men allowed,” the theater would be on better legal footing if this was sold as an event that celebrated women, but didn’t exclude men. We still live in a world where sex and gender are largely viewed as binary elements. An advantage for one group is often perceived as a disadvantage for the other. This is a big problem when each of the two groups make up half the human race. Like so many other discrimination issues, both sides have divergent understands of “equality and fairness.” One side strives for equality by treating both sides as equal from the present forward. The other believes that equality can be best achieved by acknowledging the past and trying best to correct those prior wrongs.

In this case, many of the men are willing to let women participate in events that once excluded women, but feel that women are not negotiating in good faith when some women demand events that exclude men. The women believe that the past cannot be over until women are not only allowed in to events that they were once excluded from, but also given a space where they feel they will not be discriminated against. Neither side is wrong, but the struggle will continue until both sides feel secure about everyone’s rights.

On This Day: Loving v. Virginia Paves the Way to Our Future

On June 12th, 1967 the United States Supreme Court unanimously declared that the State of Virginia’s anti-miscegenation law, a law that prevents mixed race marriage, was unconstitutional. For Richard and Mildred Loving, and so many others, the Court declared that the law violated their right for Due Process and Equal Protection under the 14th Amendment.

To this day, many legal scholars and writers view this landmark decision as a turning point for civil rights in America. But what happened? What made the Court go against years of “tradition”? What happened to Richard and Mildred Loving, and why does this case affect us today?

Loving v. VirginiaThe Facts Behind Loving v. Virginia

In 1958, while asleep in their bed, Mildred and Richard Loving were raided by the police and then charged with violating Virginia’s Racial Integrity Act of 1924. Their marriage certificate was framed on the wall, but ignored by Virginia officials as they considered their marriage to be invalid within Virginia. Since they were violating the law, they pled guilty, and were offered a suspended sentence so long as they leave Virginia for at least 25 years.

Before they brought their case to the Supreme Court, interracial marriage was not viewed favorably. At the time, over 15 states had active laws against interracial marriage. In fact, interracial marriage was considered a felony and you can even sue successfully for an annulment if your spouse is determined to be of mixed-race. Every case that brought forward the question of whether the law can ban interracial marriage always found in favor of upholding the ban. The legal system only focused on whether an interracial marriage law equally applied and controlled whites and non-whites. So if there was an interracial couple, the legal system only wanted to make sure that the white person was also equally punished as the non-white person. If the white person was let off more leniently, then, and only then, would the Court think the law is unconstitutional.

The reality is that most of the nation moved past banning interracial marriage. But just 12 years earlier, in 1954, did public schools even begin to de-segregate their student population. It was such a slow march to equality, and it wasn’t until Richard and Mildred Loving entered the picture did civil rights leaders realize they had a chance to strike down laws that ban interracial marriage.

The Warren Court and Their Place in the Civil Rights Movement

When their case came before Justice Earl Warren and the other Justices of the United States Supreme Court, the Court once again shocked the nation by declaring Virginia’s interracial ban to be unconstitutional. Warren was famously quoted as saying that:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes…is to surely deprive all State’s citizens of liberty without due process of law… Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

They added that there was “no legitimate overriding purpose” to the law, except to maintain White Supremacy. As the Court could find no other reason for the law, except to limit the freedom of all citizens (including white citizens) they overturned Virginia’s decision and effectively made all interracial marriage bans unenforceable.

How the Story Ends, for the Lovings and for Us

While Richard and Mildred Loving were a legally married couple and their rights restored to them, Richard died in 1975 when a drunk driver struck his car. Mildred survived the crash, and lived until 2008 when she passed away at the age of 68.

Even though they may not have gotten to spend their golden years together, their stance against interracial marriage bans have helped so many other Americans. Many legal scholars and writers think that Loving v. Virginia is what paved the way for same-sex marriage, determined in the case Obergefell v. Hodges in 2015. The opinion of Justice Kennedy invokes the same language, emotion, and determination as the decision in Loving.

Many studies show that interracial marriages are at an all-time high in the U.S. with 1 in 6 married couples considered to be a mixed-race couple. The number of mixed-race children are also rising, giving the way to a future that is not divided by color or ethnicity.

While it is not an officially recognized holiday, Americans across the nation celebrate Loving Day on June 12th to remember how far our nation has come and to be hopeful for a bright future. Every American, even those who are not in a mixed-race relationship and/or not of mixed-race, can be grateful for Richard and Mildred Loving’s courage to stand up against those who tried to infringe and regulate their liberty.

On this day in history, the United States of America made a great step towards liberty and equality for all.

Being Transgender is Covered by ADA, PA Court Decides

When we think of disabilities, being transgender-hopefully-is not something that comes to mind. This is for a simple reason, gender identity is state of being rather than a disorder. However, out in Pennsylvania, Judge Joseph Leeson was recently saddled with the unenviable position of parsing how gender identity should be handled under the Americans With Disabilities (ADA)—the act which provides federal protection against discrimination based on a disability.

This ruling is the first of its type and had some serious hurdles to overcome to include gender identity as a disability under the ADA. When the ADA was first passed gender identity was specifically excluded from being classified as a disability. It wasn’t in particularly good company, other specific exclusions include kleptomania, pyromania, and pedophilia. The unfortunate truth is that the exclusion was a bit of a product of the times when the ADA was passed. At the time, congress specifically railed against the inclusion of so-called “immoral” medical conditions. Thus, gender identity was unfairly lumped in to ADA exceptions. However, the exception remains as part of the law. Truthfully, despite it’s unfortunate conception, being transgender is not a disorder or disability in and of itself. Including it under the ADA seems out of place for that reason. However, like most things in law, the question before Judge Leeson was one of definition. In order to understand the Judge’s ruling, ultimately including gender dysphoria as a disability, let’s look at how a disability is defined and the ruling itself.

What is a Disability Under The ADA?

In 2008, the ADA updated their definitions of what exactly constitutes a disability.  The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The changes also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

transgenderUnderstanding Judge Leeson’s Ruling

So does gender identity constitute a disability? Absolutely not. However, Judge Leeson’s ruling recognized a clear distinction between gender identity and gender dysphoria-the distress created by the differences between a transgender person’s gender and the gender they were assigned at birth. Let’s take a look at the facts of the case to figure out how he got there.

The case involves one Kate Lynn Blatt suing Cabela’s Retail, her former employer, for firing her based on her diagnosed gender dysphoria. Ms. Blatt was not allowed to dress and act as woman while working for Cabela’s. This became a point of contention between her and her employer. Under the ADA, an employer is required to provide reasonable accommodations to a disabled employee. However, Cabela’s refused to let Ms. Blatt dress as a woman and allegedly eventually fired her over it. This led to Ms. Blatt’s ADA retaliation claim. A retaliation claim requires her to show that she engaged in protected activity under the ADA and that adverse employment action was taken against her based on this action.

The ruling in question was on a motion to dismiss the case entirely. Thus, Judge Leeson needed only to find that the facts and law were sufficient to show that Ms. Blatt had a plausible claim under the ADA. The facts were there, Blatt had diagnosed gender dysphoria and it is at least plausible she was fired over her desire to dress as a woman-a very reasonable accommodation to require. The question came down to whether gender dysphoria was a disability under the ADA.

The ADA specifically excludes gender identity. However, Blatt argued that her gender dysphoria substantially limited major life activities for her including how she interacted with other and social and occupational functioning. Ms. Blatt further argued that the outright exclusion of gender identity from the ADA was either not meant to be interpreted as a blanket ban on any element of gender identity or the existence of such a ban violated her equal protection rights.

Judge Leeson agreed to a certain extent. Where the constitutionality of a law is called into question, judges are advised to look for an interpretation of the statute that reads in a constitutional manner. The Judge found this middle ground-the distinction between gender identity and gender dysphoria-a condition clearly associated in the medical community with stress and other disabling impairments. He determined that if the exclusion of gender identity disorders in the ADA excludes gender dysphoria it would undermine the statute itself. Instead, he chose to construe the exclusion of gender identity very narrowly and preserve the intent of the statute.

In a motion to dismiss, this was enough. If gender dysphoria can be a disability then Blatt had given enough facts to get past this initial threshold.

What Does This Ruling Mean?

Gender identity disorders, as opposed to gender identity itself, has had an unfortunate position in the ADA since the law was first passed. This ruling is a huge step for the transgender community. These protections are something that have been unfairly placed out of reach for decades.

However, it is important to recognize what this ruling is and what this ruling is not. First and foremost, it is a ruling on a motion to dismiss. While the analysis of the law from this judge will not change as the lawsuit progresses, a big victory for the LGBT community, this ruling may well be appealed and the lower standard of these type of motions mean that Ms. Blatt is far from a guaranteed victory. Also important to keep in mind, Judge Leeseon’s analysis allows the ruling to bypass a larger issue. By reinterpreting the law in a way that avoids potential constitutional issues, Leeson made it unnecessary to decide whether the exclusion for gender identity disorders violates Blatt’s equal protection rights. This ruling is a big step, but it must be recognized as a step and not a leap. The full implications of this ruling, and whether it will stand up in the long term, still remain to be seen.