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Election 2020: Revisiting Why We Marched 2017 - What Really Happened?

Posted by Giovanna A. D'Orazio | Nov 02, 2020 | 0 Comments

With the 2020 Presidential election tomorrow (!!), we are revisiting a blog post we wrote in 2017 after the Women's March.  While it's no secret that our beliefs align more with the democratic party, we also were not in despair after President Trump was elected in 2016.  But, now, after almost four years of watching things unfold, we are taking a look at the issues we care about and why that means we will be voting blue on November 3.  The original blog post is in regular type, with our updates in italics.

To be honest, some of our optimism in the original post feels a little naïve at this point.  On many of the issues we care about, much of what we feared came true.  But we feel hope because we know that others, who also entered 2017 with optimism, are troubled by what they have seen and are using their voices and mobilizing their friends and loved ones.  We acknowledge that the issues that inform our vote are not necessarily the issues that inform your vote, but we thank you for taking the time to learn about what informs our decision.

We marched in Albany on Saturday, January 21, 2017 in support of the Women's March on Washington and the sister marches that took place all over the world.  The vibe was peaceful, hopeful, determined, positive.  There were lots of kids and people from all walks of life.

Why did we march?

Like it or not, there was a lot of troubling rhetoric in the campaign that made many groups of people feel like their rights are at risk.  Women, LGBTQ, people of color, immigrants, Muslims, the disabled, the list goes on.  So we marched in solidarity with these groups.  For our clients. For ourselves. For our kids.  For our neighbors.  

Why aren't we waiting for the new administration or Congress to take concrete action on these issues before we march? 

Because we're sending a message.  Because why wait until it's too late?  Because some action has already been taken and it's troubling for many, including for individuals who voted for President Trump. 

Because, maybe, when the administration sees an outpouring of support for the LGBTQ community, existing Department of Labor rules protecting sexual orientation and transgender individuals will be left alone.  Maybe they won't interfere with the EEOC's activism on sexual orientation discrimination.  Maybe they will support legislation to amend Title VII to include sexual orientation. Maybe they will leave executive orders on discrimination by federal contractors alone.

What Actually Happened: LGBTQ Rights.

  • The Justice Department argued at the federal appellate level, and at the Supreme Court, that sexual orientation and transgender status are not protected by Title VII, in direct contradiction to the EEOC's position on this issue. This position was rejected by the Supreme Court in a landmark LGBTQ rights case.
    • Justice Department also argued in its brief to the Supreme Court that there is no such thing as a “gender stereotyping” theory of sex discrimination, which would impact anyone who does not conform to traditional gender norms, even if not a member of the LGBTQ community.
  • The Justice Department argued at the Supreme Court that businesses and places of public accommodation may refuse to provide services to same sex couples based on their religious beliefs. 
  • Administration finalized a rule removing civil rights protections for transgender patients in healthcare. 
  • Justice Department submitted a brief on the Supreme Court arguing against LGBT adoptions. 
  • Revoked President Obama's Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation and identity.
  • Executive Order banning transgender troops from the military.
  • Education Department revoked President Obama's guidance on how to treat transgender students in schools, including by allowing them to use the bathroom consistent with their gender identity.
  • Education Department takes position that complaints by transgender students are not within the jurisdiction of its civil rights department.
  • Republican led Senate refuses to bring the Equality Act which was passed by the House in a historic vote – to a vote. This legislation would amend Title VII to include sexual orientation discrimination.  Even though the Supreme Court addressed this issue, the legislation would also protected LGBTQ people in places of public accommodation and housing.

Because, maybe, when they see support for stronger women's workplace rights with respect to equal pay, pregnancy and paid family leave, they will make that a priority.  Are there women who believe they already have equal rights? Sure.  But that doesn't mean laws can't be strengthened or that we shouldn't identify loopholes and areas where there is no protection – like accommodations for pregnancy-related conditions. 

What Actually Happened: Women's Rights.

  • GOOD NEWS: The Pregnant Workers Fairness Act passed the House with bipartisan support, but the Republican led Senate has not brought it to a vote. This would require reasonable accommodations for pregnancy related medical conditions.
  • Administration revoked Obama-era rule requiring companies to report pay data to the EEOC so that the EEOC could more easily determine whether companies are paying women employees unequally. This rule also applied to pay based upon race.  (This was reinstated after litigation).
  • No legislation regarding paid family leave.
  • Made a rule that employers can refuse to provide contraceptive coverage to employees based on vague alleged religious or moral beliefs.  This was upheld by the Supreme Court. 
  • Department of Education revoked Obama-era guidelines on handling sexual assault on college campuses under Title IX.
  • Senate has refused to bring Paycheck Fairness Act – which passed the House – to a vote. This would, among other things, allow employees to share salary information so that women can determine whether they are being paid unfairly and pursue recourse.  Currently, under federal law, employers may require employees to keep salary information confidential.
  • Senate has refused to bring Forced Arbitration Injustice Repeal (“FAIR”) Act to a vote. This law, which passed the House, would prohibit employers from requiring workers to give up their rights to lawsuits and jury trials. Currently, your employer can force you to sign an arbitration agreement, depriving you of your day in court. This affects women and all protected classes.
  • Justice Department concludes that the time to ratify the Equal Rights Amendment has passed and that, therefore, states continuing to approve it would not result in a constitutional amendment. The ERA would add a prohibition of sex discrimination to the US Constitution.  This is necessary because under current constitutional law sex discrimination is not subject to the highest level of judicial scrutiny (as is, for example, race).
  • As noted above, arguments made in the context of the Supreme Court Title VII case would also impact women who do not conform to traditional gender stereotypes (and men as well).
  • Executive Order prohibiting certain types of sex bias training
  • See below on Reproductive Rights.

Because we want to show how many of us care about healthcare and reproductive rights.  Who care about equality in the justice system.

What Actually Happened: Healthcare & Gun Violence.

  • Regulation allowing employers to refuse to provide contraceptive coverage to employees based on vague alleged religious or “moral” beliefs. Under the Affordable Care Act, contraceptives were considered preventative care to be provided at no cost. Upheld by Supreme Court. 
  • Did you know that respected medical associations consider gun violence to be a public health issue?
    • GOOD NEWS: The Trump Administration banned bump stocks via ATF rule making. Bump stocks are basically a way to turn a semi-automatic weapon into a fully automatic weapon which are already illegal under federal law.
    • BAD NEWS: Still no meaningful gun safety legislation including for noncontroversial issues like background checks. The Protection of Lawful Commerce in Arms Act (opposed by VP Biden) protects gun manufacturers and dealers from civil liability.
    • Republican congress people including, locally, Representative Elise Stefanik, are cosponsoring concealed carry reciprocity laws which would allow individuals from states with lax gun laws to cross state lines with concealed weapons.
    • President Trump did not condemn armed protestors at State Capitols during coronavirus lockdown, and armed counter-protestors at Black Lives Matter demonstrations have been applauded (some even spoke at the Republican National Convention). 
  • Allowed CHIP (healthcare program for children) to expire (it was later renewed).
  • Numerous, albeit unsuccessful, attempts to revoke the Affordable Care Act.
  • Creation of new “Division of Conscience and Religious Freedom” at Health and Human Services which will support a policy allowing healthcare workers to refuse services based upon their religious beliefs. 

What Actually Happened: Reproductive Rights.

  • See above on employer contraceptive coverage.
  • Justice Department has attempted to prevent immigrant women from obtaining abortions. But, detention centers have been accused of performing forced hysterectomies.
  • Implemented Global Gag Rule
  • At this point, above Division of Conscience and Religious freedom appears primarily directed to abortion services.
  • Around the country various states have been emboldened to pass what are essentially abortion bans which, while likely unconstitutional under Roe v. Wade, are intended to make to the Supreme Court where that decision can be challenged. President Trump's Supreme Court nominees, including Amy Coney Barrett, are considered to be anti-choice.

What Actually Happened: Race and Criminal Justice System Issues.

  • Republican led Senate inaction on equal rights legislation.
  • President Trump and Vice President Pence condemned NFL players for peacefully protesting police brutality. 
  • President Trump has been criticized for not denouncing white supremacist organizations.
  • President Trump exacerbated divisiveness during Black Lives Matter protests, invoked racist dog whistles in his tweets, and encouraged troubling speech and protest suppression tactics by federal law enforcement. Armed vigilantes were applauded.
  • President Trump issued an executive order preventing federal agencies or contractors from combating race and sex bias using methods his administration deems divisive. 

Because, even if you haven't seen it or experienced it in your own life, in our practice, we see the real life consequences of racism, sexism, ageism, disability and national origin discrimination, and every other –ism and form of bias you can think of.  It happens. It's not a made up concern.  And losing one's job because of discrimination can have serious ramifications in every facet of someone's life.  So, we march for our clients.

What Actually Happened: National Origin and Religion Issues.

  • Family separation policy at the border and inhuman conditions suffered by children in detention are of grave concern.
    • Zero tolerance policy was later revoked due to strong public outcry, but it was too late for many families that were separated. ACLU just reported over 500 parents cannot be found
  • Ended DACA program which allowed certain undocumented immigrants (“DREAMERS”) who were brought to this country as children to obtain citizenship. Upheld by the Supreme Court in a good news story of 2020. 
  • Three versions of a travel/immigration ban from Muslim countries each of which has been declared unconstitutional and discriminatory, but the third version of which remains in effect pending full litigation.

When we hear that marching is pointless or is not the same as taking action, we say that using your voice is action.  Stepping outside your comfort zone to stand up for others or for yourself or your children is action.  And, of course, many who marched have been taking more concrete “action” since the day after the election - by donating money, joining organizations, making plans to run for office, volunteering, calling our representatives, organizing, or – in our case – refocusing some of our areas of practice.

Parting thought.  We get that there are people out there seeing these marches who are feeling defensive.  Feeling like the marches are sending you a message that you don't care – particularly to other women that you don't care about women's rights or you're not supporting the sisterhood. To them we say, these marches are not anti-you.  For many they are not even anti-Trump.  They are pro-the causes and the individuals who have been threatened.  

Because we talk to people from all walks of life and political standpoints on a daily basis as part of our job, we get that there are supporters of President Trump who care about equal rights, who care about women's rights, who have gay friends and have joyfully attended same-sex weddings, who are themselves immigrants and people of color.  Especially in the age of the social media, everything can seem so black and white.  There's no room to have diverse opinions or points of view anymore.  We are libtards and snowflakes.  You are racist pussy grabbers. 

Well, to our family, friends and clients who voted for President Trump, we say march with us.  If not literally, then in spirit by speaking out in favor of the causes championed by the Women's March that you do care about.  And we will do our part to give credit when credit is due.

If you've made it this far, thanks for listening to our perspective!  We will continue to use our practice and our voice to help our clients, from all walks of life and political points of view.  And if you are with us on some of these issues, even if you are planning to vote for President Trump – we hope you will use your voice too! There is no reason why many of these issues have to be so partisan.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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