The Uncertain Future of Title VII LGBTQ Rights

Under Title VII of the Civil Rights Act of 1964 (Title VII), employers may not discriminate against individuals based on their gender.  Whether Title VII protections extend to sexual orientation and gender identity is less clear.  Numerous federal courts have taken the position that sexual orientation and gender identity are not covered and it is up to the legislature to amend Title VII to explicitly provide protection from or redress for discrimination on these bases. Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000).

The Equal Employment Opportunity Commission (EEOC) has been critical of the federal courts’ position.  Beginning in 2013, the EEOC issued a number of decisions finding that gender identity and sexual orientation discrimination were forms of “sex discrimination.” In the recent past, the EEOC has been the driving force behind seeking protection for employees from discrimination based on their sexual orientation and gender identity.  For this reason, many people expressed concern that the Department of Labor (DOL) took down the EEOC’s “Advancing LGBT Workplace Rights” document from their website the day President Donald Trump was elected.   Activists worry that the EEOC will not continue to advance LGBTQ protections under the new administration.  It is unlikely that Congress will advance any express protections based on gender identity or sexual orientation.

Reprieve may come from the courts.

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A New Era: The Rule of Law in the Trump Administration

Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.

As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.

Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate.

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There Is Real Election Fraud (Just Not What You Think)

stamp_us_1977_3c_americanaI have been working on elections since 2000, when I helped organize a team to defend a potential recount of Wisconsin’s narrow victory for Al Gore (never happened; see Bush v. Gore).  Since 2004, I have trained thousands of attorneys to observe at polling places to ensure every eligible voter is allowed to cast a regular ballot.  That is, and should be, the only goal of our election laws: enfranchisement!

In 2005 I testified before Congress about Wisconsin’s voting laws, the lack of any actual voter fraud, and the many real administrative problems caused by running a national election in one day.  In subsequent years, I helped compile reports of Election Day issues, defended individuals accused of voting irregularities, and was part of the GAB committee to create formal rules for observers.

So, I have some background in election law.

To put it mildly, I was surprised to hear a candidate for President state: “Voter fraud is very, very common.”  Not just common, but VERY, VERY common.

The statement, if meant to suggest rampant fraudulent voting, is categorically false.  Fraudulent conduct by voters is exceedingly rare.  A comprehensive study published in 2014 confirmed 31 cases of in-person voter fraud from 2000 to 2014, out of more than a billion votes.  In stark numerical terms, that is one act of fraud for every 32 million votes.  When defending Wisconsin’s harsh Voter ID law, the State “could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”  Frank v. Walker.  In other words, voter fraud is very, very, very uncommon.

There is, however, an election fraud that has become common in the past decade: the suggestion that voting laws need to be tightened to combat voter fraud.  This is the BIG LIE. It has been used across the country to justify a stunning array of laws designed to make it harder to vote.

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