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Ravnsborg Plays Word Games to Avoid Moral Culpability for Attack on LGBTQ Worker Rights

The American Civil Liberties Union reminds us that South Dakota is on the wrong side of the three big LGBTQ discrimination cases the United States Supreme Court heard yesterday. From the ACLU’s e-mailed press release:

The employees in these cases, including ACLU clients Aimee Stephens who was fired for being transgender and Don Zarda who was fired for being gay, have argued that discrimination against LGBTQ people is unlawful sex discrimination. A victory in these cases would be just one step toward achieving comprehensive nondiscrimination protections for the LGBTQ community nationwide.

But officials in South Dakota filed a brief asking the court to rule against the three individuals who had been fired for being LGBTQ. By choosing to sign on to this brief, Attorney General Jason Ravnsborg is sending a message to LGBTQ South Dakotas that their highest elected government officials don’t believe they should live free from discrimination [ACLU-SD, press release, 2019.10.08].

With his usual penetrating analysis, master debater Ravsnborg responds that he didn’t file the brief; he only signed our state onto it:

But Ravnsborg, a Republican, said he had signed South Dakota onto a brief prepared and filed by the states of Tennessee, Nebraska and Texas.

In a statement, Ravnsborg said he found it “troubling that the ACLU would put out a press release filled with misinformation” [Bob Mercer, “SD A.G. Sides with Employers in LGBTQ Cases Argued at U.S. Supreme Court,” KELO-TV, 2019.10.08].

Of course Ravnsborg only signed onto the brief. If the other A.G.s had put Ravnsborg in charge of actually filing the document, it never would have gotten to the Court on time.

Ravnsborg gets brillianter when he tries to explain his position:

“The ACLU further muddies the waters by stating that the only purpose of the suit is to make it legal to fire LGBTQ people,” Ravnsborg said [Mercer, 2019.10.08].

Jason Ravnsborg
Fighting to deny more worker rights…

Sure, Jason, denying jobs to people who don’t affirm your party’s insecure sense of sexual identity is not the only purpose of your effort (and I use that word lightly). But it is a purpose, and a mean, rotten, immoral purpose.

Ravsnborg wraps this mean, rotten, immoral purpose in the same pedantic and willfully obsolete dictionaryism deployed by a much smarter and hotter South Dakota Attorney General last year.

“The ACLU, in 2019, is trying to read the result they desire into the law from 1964. An actual reading of the brief and its arguments reveals that the basis of this case rests with the definition of ‘sex’ as it exists in Title VII as written in 1964,” Ravnsborg said.

He contends Title VII “prohibits only ‘sex’ discrimination, and the plain meaning of ‘sex’ is biological status as male or female, not sexual orientation or gender identity” [Mercer, 2019.10.08].

Never mind that it’s not just the ACLU but judges of the Sixth Circuit who are able to read protection from gender identity discrimination in the law itself.

It doesn’t matter, Attorney General Ravnsborg, whether you are beating LGBTQ employees with a bat or Merriam-Webster: you’re still beating them, you’re still wrong to do it, and the ACLU and I aren’t muddying any waters to point out that you are doing it.


  1. Realist 2019-10-09 09:20

    Cory – I agree with the substance of the article. However, the pulse that I have gotten from the employer community is that there is a tangible fear to even considering firing an LGBTQ employee due to cause. The reason being that such employees can go straight to the press, and the headline reads “LGBTQ Employee Fired for Being LGBTQ”, which rings louder then the actual cause of the termination. Yes – LGBTQ should be granted the right to work the same as everyone, but claiming termination on that certain class, even when done for cause, should likewise be a part of the conversation as well. There must be equal protection, not elevated protection.

  2. o 2019-10-09 09:40

    Realist, how many jobs in SD (or the US) require “due cause” for dismissal? If more employers were required to respect due process and give due cause — instead of the right to work (for less) at-will employment — would there be less of this contrived discrimination fear?

  3. bearcreekbat 2019-10-09 11:21

    From a technical point of view the State’s position seems completely off base. If I understand this case (correct me if I am wrong), the facts involve only a transgender individual, not anyone who is LG or B. And in looking for a synonym for the term “sex” as used in the statute being reviewed, the most obvious that one jumps out is gender. And it would do some serious damage to the English language to decide the term “gender” is somehow not a critical part of “transgender.”

    While perhaps a rational argument can be made that the term “sex” in the statute does not include choices based sexual preference, the argument that “sex” does not include “gender” and variations of the that term such as “transgender” seems irrational. Not a surprise, however, from the current Republican “anti-everyone different” think tank that seems to control Ravnsborg’s legal mind.

  4. mike from iowa 2019-10-09 11:49

    When people get fired they get referred to as “disgruntled ex-employees” as if their grievance for getting fired doesn’t matter.

    Because of the anti-union card carrying membership of the activist right wing Scotus, all workers should be afraid for their jobs, their pensions, their benfits, especially union members.

  5. o 2019-10-09 12:32

    bearcreekbat, ” . . . statute does not include choices based sexual preference . . .”

    The use of “choice” in sexual preference is not universally accepted. My LGTBQ friends would say that orientation is much an issue of biology as gender identification (even when mis-matched to outward appearance) or even race. Because all this goes far deeper than something like favorite football team (hyperbolic example of “choice”) individual differences should be protected from discrimination — just as we do for race.

  6. Cory Allen Heidelberger Post author | 2019-10-09 12:37

    Realist, I understand the concern about equal protection versus elevated protection… although when dealing with oppressed classes versus privileged classes, one can make a fair case that equal isn’t enough, that targeted and disempowered groups require more protection.

    If there is fear about firing LGBTQ employees because of possible backlash or lawsuits, perhaps the proper response is not to think that LGBTQ employees are getting special treatment. Perhaps the proper response is to ensure that we are following rigorous standards for all employment actions against all employees. If employers feel like they have to be extra careful in firing underperforming LGBTQ or other minority employees, maybe they are simply realizing the standard of care that they should have been exercising in every decision to terminate prior to our age of greater scrutiny.

  7. o 2019-10-09 12:38

    MFI, agreed! What workers really need to fear losing in this current climate is voice. The very act of being able to speak up against the owner-class is being taken away by the Right/GOP/Conservatives on the SC and in legislatures.

    The Supreme Court has expanded the First Amendment to include a prohibition to public sector unions collecting fees for work done on behalf of non-members of those unions.

  8. Cory Allen Heidelberger Post author | 2019-10-09 12:39

    And as O says, a lot of employees have zero protection in South Dakota. The boss drops a pink slip in your box, and as long as the boss doesn’t say anything stupid or deposable, you can’t make any case to say you were unfairly fired. Forget elevated or equal protection: South Dakota workers would enjoy progress if we got just a little protection.

  9. Cory Allen Heidelberger Post author | 2019-10-09 12:40

    “anti-everyone different”—that’s what it boils down to. Republicans like Ravnsborg look for dictionaries and technicalities to hide behind and prosecute them most fully when they get the chance to punish people who don’t look, pray, or love like them.

  10. Realist 2019-10-09 14:55

    Cory – interesting perspective, hadnt thought if it that way. Step one is the cultural and paradigm shift in South Dakota on this issue. I understand the protected class status and how in hind-sight perhaps it should have been done that way. But we’re not there, we are in the present where social media is king and posts get shared on entire context and is one-sided – equally true for any party or person. People take what’s in a post as fact and rarely investigate for themselves. I just want to encourage an honest conversation and mutual understanding about this issue. Jokes and puns aside, active dialogue with people you disagree with has to take place, cant just entrench yourself in one view.

    Side note – this is one of the more meaningful threads Ive seen for a while.

  11. bearcreekbat 2019-10-09 15:31

    O makes an excellent point about “choice” as there is a significant body of evidence that one’s sexual proclivities may well be a result of biology rather than choice.

    But since one can choose whether to act on his or her biologically imposed sexual preferences it seems there may be a rational argument that L,G, and B are simply not included within the term “sex” as it pertains to gender. Being transgender seems quite different as this characteristic is not acting on an inherent biological preference, rather, it is the biological being of a person, or, as used in the statute, it is one’s “sex.”

    And for the record, despite conceding there seems to be a rational technical argument about the meaning of this specific statutory language, I would contend that discrimination against someone because they are L,G or B is harmful and ought to be prohibited.

  12. mike from iowa 2019-10-09 15:36

    The Supreme Court has expanded the First Amendment to include a prohibition to public sector unions collecting fees for work done on behalf of non-members of those unions.

    Very true, O, and Unions HAVE to negotiate on behalf of non-members by law. They get the shaft twice and wingnuts want to go oh, so much further to punish unions.

  13. SDBlue 2019-10-09 15:36

    South Dakota.
    The Land of Infinite Vari…oh wait.
    The Land of Infinite Ignorance and Intolerance.

  14. jerry 2019-10-09 16:03

    South Dakota, where the poorest will immigrate to.

    “As the climate crisis worsens, more Americans will be forced from their homes. Many won’t be able to afford it, and the U.S. isn’t prepared for a massive, government-subsidized migration away from flood-prone areas, according to the first comprehensive analysis of Federal Emergency Management Agency data.

    In the end, it is the nation’s poorest who may be left behind.

    Americans have voluntarily sold more than 43,000 properties in high-risk areas to the government since 1989, according to a new analysis published Wednesday in Science Advances. FEMA’s Hazard Mitigation Grant Program has bought properties sprinkled among one-third of all U.S. counties, spread over 49 states, Puerto Rico, Guam and the U.S. Virgin Islands. After the properties are bought, the structures are demolished and the land remains open, ready to absorb future flood waters.”

    Let’s hope that they’re Democrats. Oh wait, South Dakota is flooding as well, now what? Mexico?

  15. Jenny 2019-10-09 20:20

    I have heard rumors that Ravnsborg is gay, and now my gay radar is really going off. My liberal friends know that the outspoken people that talk the loudest about being antigay – well you know. It’s happened so many times before, the far right conservative men in DC being caught with their pants down with another man. It’s just a shame they can’t be who they really are. Blame the far right for that.

  16. grudznick 2019-10-09 20:37

    Ms. Jenny, I, too, have heard those rumors. I discount them, since he is clearly too ugly and stupid to be gay.

  17. Cory Allen Heidelberger Post author | 2019-10-09 21:17

    Realist, social media is just old-fashioned gossip on steroids, a difference in degree but not in kind. One could start unsubstantiated rumors pre-Internet; one could also tell all of one’s friends what a bigoted jerk one’s boss was pre-Internet.

    One effect of the Internet is that if you screw up, there are a lot more people who can find out and enjoy piling on to call you a screw-up (or at least hit a button that automatically tells everyone else in the button presser’s circle that you’re a screw-up and that the button presser is admirable and virtuous for saying so, at the low low cost of literally lifting a finger).

    But the point remains that bosses may just have to be that much more careful not to screw up… as perhaps they should have been all along.

  18. Cory Allen Heidelberger Post author | 2019-10-09 21:19

    I promise (and we all should promise) not to fire Jason Ravnsborg in 2022 because his his sexual preference. I will fire him strictly because he’s incompetent.

  19. Debbo 2019-10-09 21:58

    Here’s a new place Ravsbutt and NoMa’am can read about their hero, from Axios:

    Two of the biggest names in conservative journalism — Steve Hayes, formerly of the now-defunct Weekly Standard, and Jonah Goldberg, a longtime National Review star — yesterday launched The Dispatch.

    Why it matters: The Dispatch, citing “worrisome” trends in journalism on the right, is plunging into a tough space — conservative, but not a President Trump booster.
    Hayes and Goldberg — along with their senior editor, former National Review senior editor David French — are longtime Trump critics.

    Hayes said The Dispatch will be “Trump-skeptical”: “We think of it as more ‘beyond Trump’ than ‘anti-Trump.'”

  20. Debbo 2019-10-09 23:20

    BCB said, “But since one can choose whether to act on his or her biologically imposed sexual preferences.”

    So if the state decides to allow heterosexual people to act on their biologically imposed sexual preferences with the state’s protection from any repercussions, while withdrawing such protections from LBTG people, isn’t that blatant discrimination?

    Any human being can choose to act sexually, but it appears the state is arbitrarily choosing to make heterosexuals a protected class, while leaving all the other South Dakotans completely vulnerable to the whims of their employer.

    Yup. Sure sounds like discrimination to me.

  21. bearcreekbat 2019-10-10 01:48

    Debbo, just to clarify, my point is not that such action by the state wouldn’t be discrimination, rather, it is that there are rational arguments that the statute in question doesn’t extend to L, G and B behavior. There are also rational arguments that the statutory term “sex” does protect L, G and B behavior. As for transgender, this seems more like a status than a behavior and I’ve yet to hear or read a rational argument that this status doesn’t fall squarely within the plain meaning of the term “sex” as used in the statute.

  22. Jenny 2019-10-10 08:10

    I just wish South Dakota’s politicians would stay out of people’s bedrooms. It’s rather bizarre that they are so obsessed with one’s sexuality, but I understand why. Having grown up in a very very conservative state, they are fascinated with people’s sexual identities. The far right’s oppression to the LGBTQ is sad, since many of them are in the closet and like I say, its just a shame that they can’t be who they really are. Identifying with who you really are, be it lesbian, bisexual, transgender, binary is all very normal biological behavior. Why be someone you are not?
    Don’t ostracize them, they need our love and acceptance.

  23. o 2019-10-10 10:00

    Jenny, you remind me of the old “joke,” conservatives/GOP want to keep government small — enough to fit in your bedroom.

  24. Debbo 2019-10-10 14:19

    O, and small enough to fit into a woman’s uterus.

  25. mike from iowa 2019-10-10 15:27

    Actually, wingnuts wanted to starve the government of tax revenues until it was small enough to drown in a bath tub.

    Anti-tax activist Grover Norquist famously declared, “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.

    That Norquist of the “No New Taxes” pledge.

    But they are all good and pertinent ideas.

  26. Cory Allen Heidelberger Post author | 2019-10-11 18:07

    Realist’s concern about hair-trigger social media backlash tying the hands of bosses who need to get rid of bad workers for good reasons nibbled at me for a while and led me to this thought, which asks for trouble:

    We know the adage, “For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.” Should we apply this principle to the court of public opinion as well? Do all the folks who amplify one aggrieved employee’s allegation that the boss who fired that employee is a bigot violate this principle? Do the rest of us have an obligation to extend all such employers the benefit of the doubt until someone rigorously proves that employer’s guilt? Is social media backlash just electronic vigilanteeism?

  27. leslie 2019-10-11 21:22

    The GOP national strategy is to put underqualified controllable lawyers in top spots.
    Ours just showed his stupidity. The Brief reads: PAGE ONE

    “Nos. 17-1618, 17-1623, 18-107
    IN THE
    Supreme Court of the United States


    P.12 of the Brief then says “… Amici
    States file this brief to urge the Court….”

    So yes, Ravensborg really did file, in black and white, a supreme court brief for the State of South Dakota.

    Ravensborg’s nose is so far up that with the other 23 Republican attorney generals association (RAGA), he jumps onto and files any litigation he can put his name on to pad his resume. Imagine the intelligent conversations he has with his governors, like a Trump campaign speech (vocabulary of a fourth grader).

    For example, RAGA announced a $3.25 million television buy and will run in all media markets that contain Kentucky voters for the Republican attorney general race this fall. ” “RAGA is fully dedicated to helping Kentucky elect its first Republican attorney general since 1948….”

    Republicans must be stopped at every level.

  28. leslie 2019-10-11 22:08

    The author of Friday’s dissent, of Trump v. Mazars, revolves around the House Oversight Committee’s subpoena of Trump’s financial records at Mazars, his former accountants. Neomi Rao, was Trump’s choice to fill Brett Kavanaugh’s old seat on the U.S. Court of Appeals for the District of Columbia Circuit. Her opinion marks a lawless effort to insert the judiciary into the House of Representatives’ investigations into Trump, limiting lawmakers’ ability to access potentially incriminating evidence. It also implies that federal courts could stop the House from impeaching Trump. In short, Rao is running interference for the president who put her on the bench.

    Mark Joseph Stern has excellent law related articles at Slate.

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