WEBVTT - Louisiana LGBT Worker Protections Turned Down by Court (Audio)

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<v Speaker 1>The governor of Louisiana has lost another battle in court

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<v Speaker 1>over his executive order protecting lesbian, gay, bisexual, and transgender

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<v Speaker 1>people in state government from discrimination and harassment. Louisiana's first

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<v Speaker 1>circuit Court of Appeal found Governor John Bell Edwards overstepped

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<v Speaker 1>his authority by including sexual orientation and gender identity among

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<v Speaker 1>the list of protected classes in the state. The unanimous

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<v Speaker 1>appellate court panel sided with a lower court judge who

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<v Speaker 1>blocked enforcement of the order in December after a challenge

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<v Speaker 1>by Attorney General Jeff Landry, joining us as Anthony christ

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<v Speaker 1>a professor at Chicago Kent College of Law. Anthony Edwards

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<v Speaker 1>attorneys argued that nothing prevents the governor from establishing policy

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<v Speaker 1>by executive order as long as it doesn't conflict with

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<v Speaker 1>existing law, and Edwards said, even President Trump agrees, as

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<v Speaker 1>he has kept in place a federal executive order which

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<v Speaker 1>is virtually identical to the order I put in place.

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<v Speaker 1>What was the court's answer to that arguments? So the

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<v Speaker 1>court ultimately sided with the Louisiana Attorney General um and

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<v Speaker 1>said that what the governor was doing was not um

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<v Speaker 1>not just implementing current policy and current law, but was

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<v Speaker 1>actually um in effect lawmaking, so so basically taking the

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<v Speaker 1>legislature's role um and and making creating law. UM. And

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<v Speaker 1>so the court, based you know, looked to federal law

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<v Speaker 1>and state law, which neither expressly protect against sex orientation

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<v Speaker 1>or gender identity discrimination. And they looked to federal interpretation

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<v Speaker 1>or federal courts interpretation or federal law, which in Louisiana

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<v Speaker 1>have yet to recognize that sexual orientation or gender identity

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<v Speaker 1>discrimination is a form of sex discrimination. And um, because

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<v Speaker 1>they because they said, um, Louisiana law doesn't recognize that

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<v Speaker 1>this kind of discrimination is unlawful. Um. It really basically

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<v Speaker 1>validated the Attorney General's position that the governor was making

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<v Speaker 1>a law and not just imple meaning current law and policy.

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<v Speaker 1>But Anthony, the governor is the head state official. Couldn't

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<v Speaker 1>he isn't it within his purview under Louisiana law to say, Look,

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<v Speaker 1>the government that I run is not going to discriminate

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<v Speaker 1>against people based on their sexual identity, and we're not

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<v Speaker 1>going to contracts with companies that do that. What Why

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<v Speaker 1>is it that under Louisiana law he can't do that? Um.

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<v Speaker 1>You know, I think that ultimately it will be up

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<v Speaker 1>to Louisiana Court to to really settle this UM. A

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<v Speaker 1>number of governors and you know, again President Obama have

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<v Speaker 1>done similar things in North Carolina. Just this last month,

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<v Speaker 1>Governor Cooper um initiated a similar executive order UM. And

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<v Speaker 1>and so it'll be remain remain to be seen. UM.

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<v Speaker 1>You know what exactly the Louisiana State Supreme Court will

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<v Speaker 1>will do. UM. But generally speaking, governors and you know,

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<v Speaker 1>the executive branch has a decent amount of of latitude

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<v Speaker 1>UM to create policies, personnel policies for the executive branch

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<v Speaker 1>and for the state government UM employees. UM. Again, so

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<v Speaker 1>long as they're not inconsistent with state law. And if

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<v Speaker 1>the governor, you know, if the governor's executive order is

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<v Speaker 1>unpalatable to the state legislators, they have the authority to

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<v Speaker 1>override it by statute UM as well. So UM, I

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<v Speaker 1>think most people would have assumed that this kind of

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<v Speaker 1>executive order would have been, you know, within the governor's prerogative. UM.

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<v Speaker 1>And so this decision, to me strikes me as as

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<v Speaker 1>as a step with what most states and the federal

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<v Speaker 1>government allows in this area. But UM, it will ultimately

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<v Speaker 1>be up to the Louisiana State Supreme Court. Let's talk

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<v Speaker 1>about the Supreme Court. There's a case before the Supreme

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<v Speaker 1>Court involving the firing of a lesbian hospital security guard

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<v Speaker 1>in Georgia, and the attorneys general of seventeen states and

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<v Speaker 1>the District of Columbia are urging the justices to decide

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<v Speaker 1>if Title seven of the Civil Rights Act protects LGBT

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<v Speaker 1>individuals from discrimination on the job. And it's something that

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<v Speaker 1>the E E O C and the Justice Department are

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<v Speaker 1>in opposition on. Would that taking that case be an

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<v Speaker 1>important step in understanding this? Yeah? So so Ultimately, UM,

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<v Speaker 1>the the Louisiana Pelate Court UM noted that if federal

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<v Speaker 1>law was interpreted in such a way that to recognize

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<v Speaker 1>a sex discrimination or sexual orientation discrimination is a form

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<v Speaker 1>of sex discrimination, as those Attorneys General UM are asking

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<v Speaker 1>the Supreme Court United States Supreme Court to do. UM,

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<v Speaker 1>then the governor's executive order would be merely uh, the

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<v Speaker 1>implementation of of federal federal law and and perhaps state

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<v Speaker 1>uh state employment law UM, and his executive order would

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<v Speaker 1>be would be lawful under the Louisiana Constitution. So UM

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<v Speaker 1>in that sense, Uh, you know that that's an incredibly

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<v Speaker 1>or the Evans case UM could help resolve the issue

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<v Speaker 1>UM in Louisiana enough, but UM Devin's case has a

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<v Speaker 1>lot more promise in the sense that it can protect

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<v Speaker 1>people in private employment UM, in the private employment sector

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<v Speaker 1>and the public appointment sector across the country. UM. If

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<v Speaker 1>Title seven is ruled or interpreted in such a way

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<v Speaker 1>that LGBT people are protected under the sex discrimination ban,

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<v Speaker 1>Anthony in about thirty seconds, what's your opinion of whether

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<v Speaker 1>LGBT should be protected under Title seven? UM, I absolutely

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<v Speaker 1>think that that LGBT employees have a have a cognizable

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<v Speaker 1>claim under Title seven. UM. You can't really discriminate against

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<v Speaker 1>sex orientation or someone's gender identity with really taking their

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<v Speaker 1>sex into account. And at the end of the day,

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<v Speaker 1>Title seven is meant to end sex discrimination in all

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<v Speaker 1>its forms. Thank you, Anthony, as always for being on

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<v Speaker 1>Bloomberg Law. That's Anthony christ He's a professor at Chicago

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<v Speaker 1>Kent College of Law.