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Tag: Equal Protection

  • Advocates demand that trans youth be protected as cases are argued in Supreme Court

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    This Tuesday, the Supreme Court heard oral arguments regarding two cases about transgender girls in sports: Little v. Hecox and West Virginia v. B.P.J. 

    In 2020, Idaho Governor Brad Little signed into law HB 500, which bans transgender girls and women from participating in school sports. This affected the first case’s respondent: transgender student athlete Lindsay Hecox, who was barred from participating in the track and cross country teams as well as intramural soccer and running clubs.

    In 2021, then-governor of West Virginia, Jim Justice, approved HB 3293, which enacts a similar ban. Becky Pepper-Jackson (B.P.J.), now an incoming high school student, opposed the discriminatory policy when it prevented her from joining her then-middle school’s cross country and track and field teams. Pepper-Jackson has also only undergone female puberty due to gender-affirming care, but West Virginia argues that its anti-transgender policies should be upheld because of her assigned sex at birth. 

    For LGBTQ+ advocates and allies, these cases illustrate the burden and harm transgender people face daily as their rights to privacy, dignity, care, and inclusion are constantly at risk of being eroded and stripped completely. 

    Experts also wonder if these cases could potentially reshape the Constitution’s Equal Protection Clause as well as the civil rights law, Title IX. The former prohibits discrimination on other factors aside from race, though governments have argued that certain “suspect classifications” can be looked at more closely through “heightened scrutiny.” The latter prohibits sex-based discrimination in federally-funded schools.

    What is unfolding and how local advocates are informing change:

    The fight ahead is weary, and experts are certain that the states involved will not concede their points. In a webinar organized yesterday by the Williams Institute, several LGBTQ+ policy experts, including Rutgers Law School professor and anti-discrimination scholar Katie Eyer, examined where these cases may be heading, as well as efforts to muddy the arguments. 

    “It seems possible that the court might try to sidestep that issue here by saying that these laws don’t target transgender people at all,” Eyer said. “I think for most people, this seems bananas: like an upside-down world. We all know these laws were about transgender people.”

    Jenny Pizer, an attorney for the LGBTQ+ civil rights legal organization Lambda Legal and a co-counsel member for the B.P.J. case, affirmed this sentiment at a press conference organized Tuesday by Lambda Legal and AIDS Healthcare Foundation affinity group, FLUX. “They’ve gone to great lengths to say there’s no discrimination,” Pizer said. “[They’re arguing] it’s just technicalities or classifications.” 

    Eyer was one of three Equal Protections scholars who filed an amicus brief to be considered in the Supreme Court cases. An amicus brief is a legal document submitted by someone who is not involved directly in a case but who may offer additional perspectives and information that can inform the ruling process. 

    Eyer’s brief provided historical context that clarified the disadvantages of blanket sex-based policies. These types of laws, according to Eyer, uphold stereotypes over nuance, truth, and equal protection guidelines. For Pepper-Jackson, who has only undergone female puberty and who does not “benefit” from what dissidents define as a sex-based competitive “advantage,” the state should have provided her the ability to argue that she should have the same rights as other girls. 

    “Of course, the state hasn’t done that here,” Eyer said. “Under these precedents, the Supreme Court should invalidate the laws as applied to those trans girls who really don’t have a sex-based competitive advantage.”

    Who are these bills protecting?

    The states argue that their policies are merely “ensuring safety and fairness in girls’ sports.” But queer advocates understand that this is a veneer for the exclusion of transgender people from society. Forcing trans youth out of sports “does not protect anyone,” according to California LGBTQ Health and Human Services Network director Dannie Ceseňa, who spoke at Tuesday’s press conference.

    “It encourages the scrutiny of children’s bodies. It fuels gender policing, and it creates hostile school environments — not safer ones,” said Ceseňa. “Our youth should not inherit a world that treats their existence as a threat.” 

    Transgender people are systemically disempowered 

    At yesterday’s webinar, Distinguished Visiting Scholar at the Williams Institute Andrew Flores discussed his own amicus brief in support of Pepper-Jackson. The brief highlights the need for “heightened judicial scrutiny” in Pepper-Jackson’s case because the majority of political processes “systemically fail” transgender people. 

    For example, the transgender community faces substantial barriers in exercising their voter rights because of voter identification laws and other policies that regulate and define identity. “Even being able to gain access to the franchise is a burden for transgender people,” Flores said. “The court does play an important role there. It can grant legitimacy to arguments…or at least [acknowledge] that these issues are more complicated than maybe how they’ll receive them.” 

    What’s next?

    Experts are hesitant about where the cases stand. “Bottom line: I don’t know what the court is going to do in these cases. They may send them back down for further development,” Pizer said, who thinks future rulings will not shift more overarching policies regarding transgender rights. “I think they will probably decide based only on laws about sports, not laws more broadly about the rights of trans folks.” 

    But whatever is decided, the impacts will trickle down to everyone. While the cases deal specifically with anti-transgender policies, experts warn that LGBTQ+ issues have always been tied to racial, economic, and disability justice. “There’s this looming constitutional campaign to really undermine civil rights,” said Eyer. “That affects LGBTQ people. It affects people of color. It affects people with disabilities. It affects everybody, and it really is concerning.” 

    As transgender inclusion and safety are being argued on the largest legal stage, advocates are asking: “When are you going to step up?” They are also sending a direct message to transgender youth: “We see you, we believe in you, and we are fighting for you,” said Ceseňa. “You deserve joy, community, and care. You deserve a future that reflects who you are and not who anyone or any politician demands you to be. Trans youth deserve better.” 

    Kristie Song is a California Local News Fellow placed with the Los Angeles Blade. The California Local News Fellowship is a state-funded initiative to support and strengthen local news reporting. Learn more about it at fellowships.journalism.berkeley.edu/cafellows.

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    Kristie Song

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  • Georgia woman could lose $30,000 after local government denies her permit to open hair salon

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    When Khalilah Few opened her salon, Creative Crowns Collective, in 2023, she didn’t think her business savvy would put her at odds with the local government. But two years later, she now finds herself in a legal battle with Clayton County, Georgia. 

    After outgrowing her original studio space, Few signed a two-year lease for a new salon housed in an old barbershop in Jonesboro, a city in Clayton County, in March. She invested over $30,000 into the property and applied for a Conditional Use Permit (CUP) in April to open her salon. Despite meeting the legal requirements for a permit, the Clayton County Zoning Advisory Board and the Board of Commissioners denied Few’s application in July. 

    Instead of the law, county officials cited a “saturation” of similar businesses in a 5-mile radius, arguing the salon would not “grow Clayton County smartly.” Commissioner DeMont Davis, whose fourth district includes the new location of the salon, even noted that Few’s plan “does align” with the county’s economic development plan but still voted against it, saying Few’s business was “just in the wrong area.”

    Few has filed a lawsuit against Clayton County, alleging violations of the Due Process and Equal Protection clauses of the Georgia Constitution. Jessica Bigbie, an attorney at the Institute for Justice (I.J.), which is representing Few, tells Reason that “nothing in the ordinance or the law says anything about smart growth being a basis to deny a permit.”

    Throughout the process, Few says county staff gave “vague” responses when asked about requirements and reasons for denial. She tells Reason the first time she heard about “oversaturation” was when she attended her meeting with the zoning advisory board. “What’s frustrating and infuriating about this process is I asked questions, I directly asked, ‘What are some reasons that this application can be denied?’” She says, she “wanted to be prepared.” 

    Clayton County officials did not respond to Reason‘s request for comment.

    Few’s hurdles can be traced back to 2024, when Clayton County amended its municipal code and designated District 4, where the proposed salon is located, as a General Business Zoning District with a Business Corridor Overlay District. This overlay permits some businesses to open without a CUP while requiring one for others. Personal service establishments, such as dry cleaners or watch repair shops, typically do not require a CUP, whereas hair salons do.

    The county’s CUP criteria for District 4 appear arbitrary, as they treat similar businesses unevenly. Day cares and dance/music schools are permitted, but gyms and places of worship are conditional. Counterintuitively, even potentially hazardous companies, such as research labs, are permitted.

    To get a CUP, applicants must meet with the Technical Review Committee, community residents, and the Zoning Advisory Group, then attend a final hearing before the County Board of Commissioners. The board considers the application’s proper filing, the Zoning Advisory Group’s recommendation, compliance with permit conditions, and consistency with the ordinance’s purpose and intent. They also weigh the benefits against potential harm to properties or the county and can impose reasonable conditions to ensure public health, safety, and welfare.

    Few’s salon met the permit conditions, and she provided county staff and the commissioners with not only her application but a presentation detailing her alignment with the county’s 2039 comprehensive development plan as well as Davis’ stated economic priorities. She also had “over 50 letters of support,” yet none of that mattered. “I think you have a fabulous business,” said Davis. “You have a fabulous personality, and I love what you bring, and you actually hurt my heart right now, but we’ve got to deny,” he added. 

    “The Board of Commissioners concedes that the salon fits the plan; it’s a good business, she’s doing the right thing, she is just not doing it where they want her to do it,” says Bigbie. “The government shouldn’t be stopping legitimate businesses from opening to stop them from competing with others.”

    Clayton County officials have denied several other potential salon owners a CUP since the passage of the 2024 ordinance. Lea Bakam, who owned LeNa Braiding, tells Reason she was denied a CUP on June 17 after spending “more than $35,000” fixing up a salon in Clayton County. Like Few, Bakam presented the board of commissioners with her business plan and letters of support. Yet, in denying the permit, Davis again noted that the area was “extremely saturated with salons.” 

    The Georgia Supreme Court has already ruled, in Raffesnber v. Jackson (2023), that it is a violation of due process rights when governments restrict the pursuit of “lawful occupation of their choosing free from unreasonable government interference.” I.J. prevailed in a similar case in Fulton County, Georgia—Diagne v. City of South Fulton (2024)—in which the Fulton County Superior Court struck down the town’s attempt to block Awa Diagne from opening a salon. The court found that the county’s denial of a permit ran “contrary to Georgia’s long history of constitutional jurisprudence.”

    Few has filed for an interlocutory injunction to continue working while her court case is pending. Clayton County must respond to her lawsuit by September 18.

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    Tosin Akintola

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  • Oklahoma Bill Would Specially Target Hispanic Gang Members

    Oklahoma Bill Would Specially Target Hispanic Gang Members

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    From HB 3133, introduced Tuesday by Oklahoma state Rep. Justin Humphrey:

    Any person who:
    1. Is of Hispanic descent living within the state of Oklahoma;
    2. Is a member of a criminal street gang as such term is defined in subsection F of Section 856 of Title 21 of the Oklahoma Statutes; and
    3. Has been convicted of a gang-related offense enumerated in paragraphs one (1) through sixteen (16) of subsection F of Section 856 of Title 21 of the Oklahoma Statutes, shall be deemed to have committed an act of terrorism as such term is defined in Section 1268.1 of Title 21 of the Oklahoma Statutes.

    Any and all property, including real estate and personal property, conveyances, including aircraft, vehicles or vessels, monies, coins and currency, or other instrumentality used or intended to be used, in any manner or part, by said person shall be subject to forfeiture as provided in Section 1738 of Title 21 of the Oklahoma Statutes.

    Though I don’t think it’s particularly helpful to conflate “criminal street gang” membership (bad as it is) with terrorism, a state may indeed do so, and may authorize forfeiture of instruments of crime as well (subject to the usual procedural constraints applicable to forfeiture). But a state certainly may not set up different rules for criminal street gangs run by Hispanics, by whites, by blacks, by Asians, or by any other ethnic or racial group.

    Rep. Humphrey has apologized, and said he would change the language to “undocumented illegals.” But it’s hard to see the explicit ethnic classification in the original bill as just an innocent mistake.

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    Eugene Volokh

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