Posts tagged with "Solicitor General Noel Francisco"

Senator Kamala Harris slams Supremes on transgender ruling

January 23, 2019

Following her announcement on ABC-TV’s Good Morning America on January 21 that she will make a run for the U.S. presidency; early on Tuesday, Senator Kamala Harris (D-California) castigated the Supreme Court for allowing the Trump administration to temporarily enforce its restrictions on transgender military personnel.

Transgender military members have the courage to serve our country and deserve to do so. We have to fight back to reverse this,” Harris tweeted at 10:45 a.m.

Her tweet came shortly after the high court said it would allow the White House to briefly enforce a ban on transgender service members—until the 9th Circuit Court of Appeals in California hears a case to determine its legality, The Hill reported.

The case was considered by the Supreme Court after Solicitor General Noel Francisco leapfrogged the usual legal process in November—bypassing the regional court in the belief that the higher court would rule in favor of the White House.

Francisco implored the justices to immediately take the case and issue a ruling this term, according to the political news outlet—arguing that the lower court’s decision blocked a policy that’s “necessary to place the Department of Defense in the strongest position to protect the American people.”

He said that the Department of Defense review found that continuing to allow transgender people who have transitioned or seek to transition to serve in the military poses a threat to military effectiveness and readiness.

However, in a blow to Francisco and the administration, the Supreme Court declined to hear arguments on the case’s legality. The justices prefer the appeals courts to have considered a case before they weigh in, and even then are selective, The Hill said. It takes four justices to agree to hear a case, and often they only agree to step in if the appeals courts are deeply divided on an issue.

It takes five justices to agree to stay a lower court ruling. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, of the court’s liberal wing, said they would have denied the application, according to the news outlet.

Trump announced the ban on transgender service members on March 23, stating that transgender applicants are “disqualified from military service except under limited circumstances.”

White House press secretary Sarah Huckabee Sanders said at the time that the decision was based upon “extensive study by senior uniformed and civilian leaders, including combat veterans

In her announcement on January 21, Senator Harris stated, “My entire career has been focused on keeping people safe. When I look at this moment in time, I know the American people deserve to have someone who is going to fight for them … and put them in front of self-interest.”

Research contact: @jabowden4

DoJ argues businesses can legally discriminate against transgender workers

October 26. 2018

The Department of Justice argued in the Supreme Court on October 24 that businesses can discriminate against employees based on their gender identity without violating federal sex discrimination laws, Bloomberg Law reported.

“The court of appeals misread the statute and this Court’s decisions in concluding that Title VII encompasses discrimination on the basis of gender identity,” Solicitor General Noel Francisco wrote in a brief regarding a case against a Michigan funeral home. R&G Harris and G&R Harris Funeral Homes, a family-owned business in the Detroit area, is accused of violating federal employment laws when it fired transgender worker Aimee Stephens in 2013.

Specifically, after Stephens said she was transitioning, her boss—a devout Christian, according to CNN—told her the situation was “not going to work out,” according to court documents. She was offered a severance package, but she declined to accept it—instead filing a complaint with the Equal Employment Opportunity Commission, which sued the funeral home.

The EEOC, which enforces civil rights law in the workplace, successfully sued on Stephens’ behalf in the Sixth Circuit Court of Appeals. But the Michigan funeral home has appealed the case to the Supreme Court, where the Justice Department represents the government.

The Justice Department’s argument that federal civil rights law does not apply to transgender workers comes after The New York Times reported on October 21  that the Department of Health and Human Services was moving ahead with efforts to limit the definition of gender—saying that gender can only be defined by the genitals a person had at birth.

A leading transgender advocate called the government’s reported action a “super aggressive, dismissive, dangerous move,” according to the Times.

“They are saying we don’t exist,” said Mara Keisling, director of the National Center for Transgender Rights, in an interview.

What’s more, this is not the first time that the rights of transgender people have been challenged by the current administration. The Trump administration also has attempted to ban transgender individuals from serving in the military — a move that was blocked by the courts in November 2017.

Research contact: copfer@bloomberglaw.com