SHoWLE Disappointed Ohio AG David Yost Supports LGBTQA Discrimination

image of Ohio Attorney General David Yost smiling
Ohio Attorney General David Yost

Ohio Attorney General David Yost wait­ed until Friday to announce that Ohio will sign-on to a brief for three US Supreme Court cas­es that will decide if the 1964 Civil Rights Act pro­tects LGBTQA peo­ple. The Secular Humanists of Western Lake Erie are dis­ap­point­ed in Yost’s deci­sion and reject his rea­son­ing.

According to news reports, Ohio Attorney General David Yost held a press con­fer­ence announc­ing he had added Ohio onto a friend-of-the-court brief filed by oth­er states that sup­port­ed not includ­ing LGBTQA peo­ple under the 1964 Civil Rights Act also known as Title VII.

In a state­ment he said:

“This case is about whether the judi­cia­ry gets to write new laws or if that should be left to elect­ed leg­is­la­tors. The plain lan­guage of Title VII pro­hibits employ­ers from dis­crim­i­nat­ing because of sex, not sex­u­al ori­en­ta­tion or gen­der iden­ti­ty. If the law is to be amend­ed, Congress, not the courts, should be the one doing it.”

The brief goes to great length in claim­ing that “sex”, “gen­der iden­ti­ty” and “sex­u­al ori­en­ta­tion” are sep­a­rate and the law passed in 1964 only used the word “sex” to mean it’s bio­log­i­cal mean­ing so Title VII should­n’t include pro­tec­tion for LGBTQA peo­ple.

The brief says:

“But dis­crim­i­na­tion based on sex­u­al ori­en­ta­tion or gen­der iden­ti­ty does not involve a sex-specific stereotype—i.e.,one that applies specif­i­cal­ly to males or females. So Price Waterhouse pro­vides no sup­port for read­ing Title VII to pro­hib­it those forms of dis­crim­i­na­tion. Nor is dis­crim­i­na­tion based on sex­u­al ori­en­ta­tion anal­o­gous to anti-miscegenation laws. The lat­ter are pro­hib­it­ed because they are inher­ent­ly racist. Discrimination based on sex­u­al ori­en­ta­tion, by con­trast, is not inher­ent­ly sex­ist.”

Zarda v. Altitude Express, Inc. ami­cus brief

Gender iden­ti­ty isn’t defined by sex­u­al ori­en­ta­tion just as sex­u­al ori­en­ta­tion isn’t defined by gen­der iden­ti­ty. The two terms are talk­ing about two sep­a­rate things that aren’t all inclu­sive or exclu­sive. Some peo­ple are non-binary or their gen­der may change over time. The Yost brief con­flat­ing gen­der iden­ti­ty and sex­u­al ori­en­ta­tion is a typ­i­cal reli­gious and con­ser­v­a­tive move because they false­ly assume if you were born with a penis and you want to be a woman you must be gay….

They also hold a nar­row idea that sex-specific stereo­typ­ing could­n’t pos­si­bly apply to some­one who was born a man and express­es their gen­der as a woman (for exam­ple). One of the court cas­es being con­sid­ered is because a trans­gen­der woman was fired for DRESSING like a woman — that is what stereo­typ­ing is — the belief women must dress as women and men must dress as men even though that view is entire­ly arbi­trary and only based on reli­gious and cul­tur­al ideas rather than based on any actu­al sci­ence.

Scottish men wear kilts and it is not unheard of for a woman to wear a suit for work but the fab­ric of our democ­ra­cy will col­lapse if a trans­gen­der man or woman are pro­tect­ed from dis­crim­i­na­tion for express­ing their pre­ferred gen­der?? How is that NOT inher­ent­ly sex­ist? Forcing a trans­gen­der man or woman to express the gen­der match­ing their gen­i­talia is inher­ent­ly sex­ist — using the plain mean­ing of the word and excludes peo­ple who don’t fit neat­ly into a gen­der bina­ry.

The courts have added sex­u­al ori­en­ta­tion in Title VII when con­cern­ing same-sex harass­ment. A friend of the court brief from GLBTQ Legal Advocates & Defenders, National Center For Lesbian Rights, Et Al. (which includ­ed Equality Ohio) stat­ed:

“Creating an exclu­sion where none exists in the statute is not a prop­er way to inter­pret Title VII—and it is one this Court has already repu­di­at­ed in bring­ing con­sis­ten­cy to Title VII’s appli­ca­tion. Before Oncale v. Sundowner Offshore Services, Inc., low­er courts had tak­en a “bewil­der­ing vari­ety of stances” with respect to whether hos­tile work envi­ron­ment claims could be based on same-sex harass­ment. 523 U.S. 75, 79 (1998). The Court saw “no jus­ti­fi­ca­tion in the statu­to­ry lan­guage or our prece­dents for a cat­e­gor­i­cal rule exclud­ing same-sex harass­ment claims from the cov­er­age of Title VII,” and so had no dif­fi­cul­ty con­clud­ing that “sex dis­crim­i­na­tion con­sist­ing of same-sex sex­u­al harass­ment is action­able under Title VII.” Id. at 79, 82.”

Brief ami­ci curi­ae of GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, et al.

So if same-sex sex­u­al harass­ment is cov­ered under Title VII then dis­crim­i­na­tion against LGBTQA peo­ple can be pro­hib­it­ed using the same log­ic.

Yost says he believes that Congress should act and not the courts but what do you do when the Congress refus­es to act? Yost’s brief men­tioned all the times laws were pro­posed to add LGBTQA as a pro­tect­ed class only see those attempts fail. In fact the Yost brief says:

“Congress has declined to expand Title VII to include sex­u­al ori­en­ta­tion and gen­der iden­ti­ty dis­crim­i­na­tion.”

Inaction, or in this case fail­ure to act, does­n’t mean the par­tic­u­lar seg­ment of peo­ple deserves to be dis­crim­i­nat­ed against. If a leg­is­la­ture fails to act to pro­tect the civ­il rights of a seg­ment of the pop­u­la­tion then the courts must step in and force the issue.

Public laws and poli­cies should­n’t be based on out­dat­ed views formed from reli­gious or polit­i­cal bias­es about a seg­ment of the pop­u­la­tion. Humanists believe all humans deserve basic dig­ni­ty and worth and fed­er­al law pro­hibit­ing sex dis­crim­i­na­tion includes the LGBTQA com­mu­ni­ty.

Attorney General David Yost is wrong and Ohio is once again on the wrong side of his­to­ry.


About Secular Humanists of Western Lake Erie

The mis­sion of the Secular Humanists of Western Lake Erie is to pro­vide a sup­port­ive local com­mu­ni­ty for human­ists and oth­er non­the­ists, while pro­mot­ing an eth­i­cal, rea­son­able, and sec­u­lar approach to life through edu­ca­tion, com­mu­ni­ty ser­vice, out­reach, activism, and social events.

We envi­sion a Northwest Ohio and Southeast Michigan where sec­u­lar peo­ple are respect­ed and inte­grat­ed in broad­er soci­ety, live val­ues of rea­son and com­pas­sion, and enjoy a friend­ly human­ist com­mu­ni­ty.

Media Contacts

Douglas Berger — President
419–356-8568

Shawn Meagley
419–266-7945

#