by Kyla Bishop
The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
Arkansas has continued its attack on its transgender citizens as Attorney General Leslie Rutledge joined 15 other state attorney generals and governors in an effort to allow employers to fire their transgender employees.
On March 7, 2018, the United States Court of Appeals for the Sixth Circuit ruled that R.G. & G.R. Harris Funeral Homes unlawfully discriminated against its employee, Aimee Stephens, when it fired her after she told them she intended to transition and would begin dressing as a woman while at work. In its opinion, the Court stated, “Title VII requires ‘gender [to] be irrelevant to employment decisions. Gender (or sex) is not being treated as irrelevant to employment decisions” if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision . . . [A]n employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Harris Funeral Homes appealed the Sixth Circuit’s decision, but the Supreme Court has not yet decided whether it will hear the case.
Rutledge added her name to an amici curiae (friend of the court) brief that argues “’sex’ under the plain, unambiguous meaning of Title VII does not mean anything other than biological status.” The brief further accuses the Sixth Circuit of “rewriting Title VII to its own liking” and “[ignoring] the will of Congress.”
This is not the first time Arkansas has evoked criticism for its treatment of LGBT individuals. In 2015, in an apparent attempt to prevent LGBT protection, the Arkansas legislature passed Act 137, a law that prohibited municipalities from enacting any law that “creates a protected classification or prohibits discrimination on a basis not contained in state law.” In response, the city of Fayetteville passed an ordinance that protected its LGBT residents from discrimination. Groups opposed to the ordinance sued the city, and the Supreme Court of Arkansas held that Fayetteville’s ordinance violated Act 137.
Recent years show that anti-discrimination LGBT protections are crucially needed. According to a report published by the National Coalition of Anti-Violence Programs (NCAVP), 2017 was the deadliest year in recent history for LGBT individuals. The report tracked at least one homicide of an LGBT individual each week and a significant spike in individual reports of LGBT violence from 2016 to 2017. Additionally, an article written by Professor Dustin T. Duncan of the NYU School of Medicine found that in “hot spot” areas of LGBT bigotry, LGBT youth were more likely to attempt suicide.
Pro-LGBT groups and businesses are finding ways to fight back. In 2017, North Carolina rescinded a law that prohibited transgender individuals from using bathrooms that corresponded with their gender identity because of boycotts. Specifically, PayPal Holdings, Inc. canceled expansion plans it had for the state, and Bruce Springsteen was one of many entertainers to cancel a scheduled concert. California actually blocked state-funded travel to Kentucky, Texas, Alabama, and Dakota because of their anti-LGBT legislation. And now, 18 states and the District of Columbia have laws addressing hate crimes based on sexual orientation or gender identity.
One can only hope that Arkansas begins electing lawmakers committed to the safety and protection of its LGBT citizens. Until that time comes, please consider donating to various LGBT support groups in Arkansas.