SUPREME COURT NOTEBOOK: Gender pronouns part of LGBT fight

Legal Issues

Dozens of legal briefs supporting fired funeral director Aimee Stephens at the Supreme Court use “she” and “her” to refer to the transgender woman.

So does the appeals court ruling in favor of Stephens that held that workplace discrimination against transgender people is illegal under federal civil rights law.

But in more than 110 pages urging the Supreme Court to reverse that decision, the Trump administration and the Michigan funeral home where Stephens worked avoid gender pronouns, repeatedly using Stephens’ name.

Stephens’ case is one of two major fights over LGBT rights that will be argued at the high court on Oct. 8. The other tests whether discrimination on the basis of sexual orientation also violates the provision of the landmark Civil Rights Act of 1964, known as Title 7, that prohibits employers from discriminating on the basis of sex. The cases are expected to be decided by next spring, during the presidential election campaign.

Decisions about gender pronouns may seem minor, but they appear to reflect the larger issues involved in this high-stakes battle.

John Bursch, the Alliance Defending Freedom lawyer who will argue on behalf of Harris Funeral Homes, wrote, “Out of respect for Stephens and following this Court’s lead in Farmer v. Brennan ... Harris tries to avoid use of pronouns and sex-specific terms when referring to Stephens.” Farmer v. Brennan was a 1994 decision that did not use gender pronouns to describe a transsexual prison inmate who had been assaulted by other inmates.

The administration’s court filing arguing that Title 7 “does not prohibit discrimination against transgender persons based on their transgender status” offers no explanation for the absence of gender pronouns for Stephens. A Justice Department spokeswoman did not respond to an email seeking comment.

“It’s sad that neither the funeral home nor the Department of Justice can bring themselves to be minimally respectful of Aimee. But the real tragedy is that our government is urging the Supreme Court to rule that firing workers because they are transgender is perfectly legal,” said James Esseks, director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & HIV Project. The ACLU represents Stephens at the Supreme Court.

Many organizations, including The Associated Press, use the gender pronouns an individual prefers.

That was the case when the 6th U.S. Circuit Court of Appeals ruled in Stephens’ favor. “We refer to Stephens using female pronouns, in accordance with the preference she has expressed,” Judge Karen Moore wrote.

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USCIS Issues Clarifying Guidance on NAFTA TN Status Eligibility for Economists

U.S. Citizenship and Immigration Services (USCIS) announced today that it is clarifying policy guidance (PDF, 71 KB) on the specific work activities its officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist.

The North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the U.S. to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, resulting in inconsistent decisions on whether certain analysts and financial professionals qualify for TN status as economists.

TN nonimmigrant status is intended to allow a limited number of professionals and specialists to work temporarily in certain specifically identified occupations in the United States. This updated guidance provides USCIS officers with a specific definition of one such category – economists – allowing them to adjudicate applications in a way that complies with the intent of the agreement. This policy update clarifies that professional economists requesting TN status must engage primarily in activities consistent with the profession of an economist. Individuals who work primarily in other occupations related to the field of economics — such as financial analysts, marketing analysts, and market research analysts — are not eligible for classification as a TN economist.

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