Monday, September 25, 2017
Keep the Cameras Rolling: Photographers Lose in Challenge over Refusal to Service Same-Sex Weddings under Minnesota’s Human Rights Act
Last week, a federal district court in Minnesota ruled against plaintiffs Carl and Angel Larsen, and their videography company, TMG, in their suit against Lori Swanson, Minnesota’s Attorney General and Kevin Lindsey, the commissioner of Minnesota’s Department of Human Rights. In Telescope Media Group, Inc. v. Lindsey, the plaintiffs had lodged a “pre-enforcement challenge” to the prohibition on sexual orientation discrimination under the Minnesota’s Human Rights Act (“MHRA”). The plaintiff couple had goals to expand their company into the wedding video industry with a specific purpose of using their wedding video services to express their opposition to same-sex marriages and reify the Christian belief in opposite-sex marriages. To effectuate their goals, they intended not to produce wedding videos of same-sex couples and also intended to post a message on TMG’s website explicitly denying service to same-sex weddings. That posting would have violated Minnesota’s Human Rights Act with civil penalties up to $25,000. In addition, Minnesota legislatively recognized same-sex marriages in 2013. Hence, their challenge arose.
Because the plaintiffs had yet to produce wedding videos and actively discriminate against same-sex couples, justiciability issues were raised. But for the most part, the district court dismissed those challenges by the defendants and ventured into the merits of the plaintiffs’ claims, which were based under a constitutional free speech, right of association, religious exercise, unconstitutional conditions, equal protection, and due process arguments.
The challenges under the First Amendment were untenable. For the free speech argument, the court ruled that the MHRA was a content-neutral regulation and did not violate the plaintiffs’ free speech rights under intermediate scrutiny. The court also found that the plaintiffs had not shown a viable claim under the compelled speech doctrine. Furthermore, the court pronounced that the plaintiffs’ textual challenge against the MHRA for terms that they claimed would lead to unbridled enforcement discretion was not credible. For the right of association arguments, the court quickly dismissed the notion that the MHRA inhibited the plaintiffs’ right to expressive association to an extent that would be constitutionally dangerous. The court also dismissed the plaintiffs’ religious exercise challenge by noting that the MHRA was a regulation of general applicability. Lastly, the plaintiffs’ attempt to restate their First Amendment claims under an unconstitutional conditions argument was seen as merely repackaging what the court already had not favored.
Under the Fourteenth Amendment, the plaintiffs’ equal protection and due process arguments also crumbled—mostly because of unsustainable characterizations of their status or similar repackaging of their free speech arguments.
Already, the most well-noted excerpt of the ruling has been Chief Judge John Tunheim’s analogy that the plaintiffs’ desire to turn down same-sex clients by posting such a disclaimer on their website was “conduct akin to a ‘White Applicants Only’ sign.” No doubt, this lawsuit is likely to be appealed. The plaintiffs’ attorneys, from Alliance Defending Freedom, are part of same team representing the wedding cake maker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, to be argued at SCOTUS this fall. That case involved a professional wedding cake provider’s refusal of business to same-sex couples.
Post-Obergefell, after the extension of marriage to same-sex couples, these cases present an interesting moment for sexual orientation antidiscrimination as the leveraging for full equality by LGBTQ individuals is occurring not only against First Amendment religious exercise arguments but also—now more fully it seems than before—within free speech challenges as well. I write this not because such challenges weren’t previously couched in free speech theories, but because of the recent headline resurgence of free speech controversies. At the same time, the national debate on free speech is taking place on campuses and elsewhere in the media, these cases are quickly being cemented into the larger national dialogue—sometimes violent—over identity, our collective history, and ultimately our national values. Free speech is being used to prop up a reality that does not comport with democratic principles of liberalism and respect for human rights. Rather, free speech is being used to reinforce a world of hierarchy stoked by false nostalgia and collective insecurity.
Not to mention, the vindication of the MHRA in favor of same-sex marriages and weddings in Telescope Media Group, Inc. v. Lindsey has historical resonance for LGBTQ rights. Minnesota was where one of the earliest episodes of the struggle for marriage equality took place. In 1970, two gay students from the University of Minnesota, Richard Baker and James McConnell, applied for a marriage license in Minneapolis. After their application was denied, they sued. Their litigative failures, from state to federal courts, unfolded all the way to SCOTUS where the Court in 1972 summarily dismissed their suit, Baker v. Nelson, with just one line: “The case is dismissed for want of a substantial federal question.”
Whatever outcomes are ahead, I don’t think we’re in one-liner territory anymore.
You may read the judgment here.
Thursday, August 10, 2017
The US record on gender equality is dismal. Rwanda, largely as a consequence of the loss of men in the 1994 genocide, has made significant progress in the legal status of women. At that time, the population of Rwanda was 70% female. The Rwandan constitution ensures gender equality in all matters. In the 2013 elections, 64% of the members of parliament were female. Women are guaranteed three months paid maternity leave.
By contrast, the US guarantees no paid maternity leave. In the recent health care discussions, some men wanted to remove health care coverage for maternity. 86% of Rwandan women participate in the work force compared with 56% of US women. However, despite Rwandan laws requiring equality for women, true equality has not been achieved. Women earn 88 cents for every dollar earned by men. Significantly, Rwandan women experience domestic violence at the high rate of 1 in 3. Recently progress has been made in enforcing laws against abusive men, but the most significant barrier to stopping violence against women universally is men's culture in opposing gender equality. In a story reported in WeNews, woman's advocate Peace Ruzage, of Aspire Rwanda, said "“The problem of violence against women in Rwanda, as with many African countries, is rooted in the cultural beliefs and notions of masculinity reinforced through generations.” True for the US as well.
Sunday, July 2, 2017
June was filled with international Pride events. Let's not lose perspective and forget that public Pride demonstrations still require courage of the LGBTI community. Marriage equality success can present sexual identity freedom and acceptance as a false norm.
Being anything but "straight" remains unsafe.
The criminalization of HIV-AIDS exists in the majority of US jurisdictions, with many of those making it a crime for an individual living with HIV to have sex with another without disclosure of the HIV status and that person's informed consent. These statutes often do not require proof of intent to transmit the disease; and actual inability to transmit the disease due to effective medical intervention presents no defense. The enforcement of these laws primarily against people of color is not unnoticed.
Members of the LGBT community are more likely to be the targets of US hate crimes than any other minority.
While we celebrate the expansion of legal equality, let's remember that the specific "equalities" recognized are more along the path of joining heterosexual norms, rather than a celebration of sexual minorities as respected individuals who may equally participate in our society upon their terms. Those "equalities" remain, in fact, narrow. We must exlore whether what our culture encourages is more than demanding conformity with heterosexually based cultural institutions.
Let's try to correct and avoid heterosexuality as the norm. Whiteness as the norm in fashioning race based remedies has resulted in the endurance of bias, implicit and explicit. We are early in the journey of ensuring effective remedies for members of the LGBTI community. Will we avoid the mistakes of the past in forcing alignment with false norms? We will have some indication from SCOTUS next term.
Wednesday, April 5, 2017
For the first time, the U.S. Court of Appeals ruled, in an 8-3 decision, that the Civil Rights Act of 1964 protects lesbian, gay, bi-sexual, and transgender employees from workplace discrimination. The Seventh Circuit recognized that discrimination based upon one's perceived or actual sexual orientation is a civil rights violation. The decision of Hively v. Ivy Tech was heard en banc after a three judge panel earlier ruled against the Plaintiff, Kimberly Hively, who claimed that she experienced workplace discrimination based upon her identification as a lesbian.
Historically, opponents argued successfully that LGBT individuals could not benefit from discrimination protections because discrimination based upon sexual orientation was not specifically mentioned in the act. As recently as March 10, 2017, the 11th circuit wrote that it was bound by prior case law that limited protections to straight men and women. "Because Congress has not made sexual orientation a protected class, the appropriate venue for pressing the argument [that LGBT individuals are protected] raised by the Commission and the dissent is before Congress, not this court." A dissenting opinion forecast the reasoning used in Hively.
Hively's Judge Wood declared on Tuesday that "For many years, the court of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person's sexual orientation. We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination." Judge Wood continues: "It would take considerable calisthenics to remove the 'sex' from 'sexual orientation'."
Ms. Hively was represented by Lambda Legal who undoubtedly will next argue the case before the US Supreme Court. Watch for more posts on this case.
Thursday, March 30, 2017
by Jeremiah Ho
Today the North Carolina state legislature voted to repeal HB2, the infamous bathroom bill from 2016 that restricted transgender individuals from using the public restrooms that reflected their gender identities. The repeal was completed with a compromise bill that was signed this afternoon by the new governor, Roy Cooper. The repeal was sought, in part, because of the economic threats resulting from big business boycotts in reaction to last year's bill. Observe that North Carolina still does not have antidiscrimination laws protecting LGBTQ individuals.
Here is the New York Times coverage.
This is the second time that threatened economic consequences have been effective in changing North Carolina policy that discriminated against members of the LGBT community. See our prior coverage.
Monday, March 20, 2017
Over the course of the past few weeks, women's organizations have reviewed Judge Gorsuch's record in an attempt to determine his understanding of the myriad legal issues women face. Judge Gorsuch by and large has not appreciated the difficulties of women's lives and how laws and policies can have a disparate impact on them.
The National Association of Women Lawyers found Judge Gorsuch to be "not qualified" on women's issues. The organization's Supreme Court Committee members, of which the author is one, review candidates' opinions and other writings and conduct interviews with a wide number of people who have interacted with the candidate in various capacities. While the committee found that Judge Gorsuch generally treated litigants and lawyers with respect, and that he has the intellectual capacity for the position, his record on issues important to women displays a lack of understanding. In a press release containing the committee's findings, the committee noted concerns around the Judge's giving religious freedom rights deference over women's reproductive rights. Likewise, the committee noted "Judge Gorsuch's writing also exhibits a reluctance to recognize precedent that applies substantive due process to protect the rights of women." The committee further noted concern in other areas, including his failure to recognize transgender women as women thus denying them rights that are afforded to other women.
The National Women's Law Center also issued their report on Judge Gorsuch. Concerned with Judge Gorsuch's lack of support for regulatory authorities, the Center's press release stated: "Judge Gorsuch has explicitly praised Justice Scalia's approach to the law. While he has not opined on Roe v. Wade, he voted to override a woman's coverage of contraception if her boss objected. Justice Scalia was highly skeptical that courts should defer to the interpretations of laws by expert government agencies - and Judge Gorsuch would go even further, making it harder for agencies to implement the laws that have literally opened doors of opportunity for women and girls."
Thursday, February 23, 2017
The Trump administration has withdrawn the Obama administration's directive to the Education and Justice Departments that protected rights of transgender individuals. Specifically, the directives had provided guidance that transgender individuals be permitted to use the bathroom that aligned with their gender identity.
In what may have been a surprise to many, Secretary DeVos opposed the rollback, but Attorney General Sessions, who favored the rollback, had the President's backing. DeVos ultimately relented but with the concession that schools be instructed to respond and prevent bullying of transgender students.
The order is precursor to the government's position in the Gloucester County School Board case scheduled to be heard by SCOTUS on March 28. The hearing had been twice postponed, presumably with Justice Roberts hoping that Trump's nominee would be present for argument.
In a letter sent yesterday to the Supreme Court, the Deputy Solictor General has informed the court that the prior guidance has been withdrawn and the government will rely solely on the legal issues (Title IX) presented by the case.
Sunday, February 19, 2017
by Jeremiah Ho
Criticizing another’s garden—or perhaps wedding bouquet, here—doesn’t keep the weeds out of your own. The Washington Supreme Court has rendered a decision in the case of a florist’s refusal to provide flowers to a same-sex couple for their wedding. The florist had justified her refusal based on her religious beliefs.
The decision responds to allegations that the florist’s refusal to sell flowers to a gay couple, Robert Ingersoll and Curt Freed, for their wedding violated the public accommodations provision of Washington state’s antidiscrimination statute. Previously, the florist, Arlene Stutzman, had defended on First Amendment doctrines of free speech, religious exercise, free association, and hybrid rights, as well as free exercise of religious under the Washington state constitution. She and the floral shop (as corporate entity) had lost below and then appealed.
In 2006, Washington state added “sexual orientation” as a protected class. Also by state referendum, the state legally recognize same-sex marriages beginning in 2012. Although in almost every aspect, Stutzman, claimed narrowly that her justifications for refusal to sell to plaintiffs-respondents, Freed and Ingersoll, were based on her objections to a wedding ceremony that contradicted her religious beliefs and not the same-sex marital status or sexual orientation of the respondents, the court was not persuaded on such narrow grounds. Rather, the court reject such status-versus-conduct distinctions and observed that Washington’s antidiscrimination statute was mandated “to be construed liberally” to decide whether or not her refusal to sell was sexual orientation discrimination. The court also found that the antidiscrimination statute had no requirement for a balancing of religious rights against rights of members of a protected class.
All in all, the ways in which Stutzman legally couched her justifications on religious grounds were not new legal arguments in the court battles between religious freedom and sexual orientation antidiscrimination. The court’s ruling seems to pull the veil down on those tactics to reveal the strawman arguments based on blanket constitutional First Amendment guarantees that religious litigants make when defending against discrimination claims—i.e. religious belief arguments made by the perpetrators of the discrimination that artfully prompt either narrow or broad readings of their discriminatory conduct in order to obfuscate the discriminating nature. For instance, Stutzman narrowly rationalized her refusal to sell flowers as an objection to the wedding ceremony of same-sex couples based on religious grounds rather than a refusal to sell based their sexual orientation. The court declined to entertain that narrow reading by rejecting her conduct-versus-status distinction (same-sex wedding v. sexual orientation) based on recognition by the Washington state statutes that “all discriminatory acts,” including those that have direct or indirect results in any marginalization based on sexual orientation, is a violation. In other words, she couldn’t narrowly reinterpret her conduct to an objection against same-sex wedding ceremonies based on her religious beliefs in order to skirt violations under the anti-discrimination statute. She can’t conveniently “forget” the other half of that equation to dodge discrimination: the fact that the couple in this wedding happened to be gay. Talk about not denying Ingersoll and Creed their dignity and humanity.
Additionally, here’s an example of how Stutzman broadly construed her actions when it suited her. She defended her case by also claiming that the Washington state antidiscrimination statute violated her First Amendment free speech rights because making her sell her flowers to Ingersoll and Creed would have been a coerced endorsement of same-sex marriages that would counter her religious convictions. The court was not persuaded by this “compelled speech” argument because the commercial sale of her floral wedding arrangements could not be viewed as expressive speech “in a literal sense.” Rather, it was conduct that did not intend to communicate a message—i.e. it was not “inherently expressive” conduct that then could be coerced or compelled.
Last week’s decision in this case shows that a discriminatory party cannot use religious beliefs to argue, either narrowly or broadly, to skirt accusations of discrimination. One cannot in such ways hide behind religion by saying one’s religion led to a discriminatory act. It’s still discriminatory, even if it is religious.
But as her attorney alluded since the decision, a request for appeal to SCOTUS is forthcoming. So stay tuned.
Don’t toss that bouquet just yet.
Sunday, January 22, 2017
At first I thought that pussy hats were only the project of well-off white women and one more symbol of liberal futility. But as March preparations moved ahead, I appreciated the brilliance of the project. Women of all colors and religions embraced the project creating a sea of bright color that could not deny whose march this was. I regret that my camera was not easily available in the metro when I spotted three Muslim women studying a large metro map with their backs to travelers, their brilliant pink scarves covering their heads. A moment lost for posterity but one that will be in whatever part of my brain stores beauty, strength and pleasure. Nor will I forget the moment when I left the metro and locked eyes with a young woman of color and we smiled, enjoying the solidarity that our hats symbolized.
Like the march itself, the hats were bold. The shame that can be projected upon women for being female discarded by wearing our vaginas on our heads.
If nothing else, the world-wide women's marches have taught us that we cannot and should not rely upon men to secure our power for us. Our power is unleashed only when we are free to be ourselves. The women marchers were organized, purposeful, kind, peaceful, happy! Gracious and generous in that special female way. Women realize that it is their opinion of themselves that matters. Women's strength comes from other women. It always has.
So pull out your pussy hat and wear it unabashedly. My hat-making is on back order, but here is the pattern.
Monday, January 9, 2017
Martha Davis reported recently on a meeting between Donald Trump and the new UN- Secretary General, Antonio Guterres. Part of Guterres' agenda is to support gender equality. Only a few weeks ago, the Trump transition team requested that the State Department provide information on "gender-related staffing, programming, and funding." The memo that was sent to State specified areas of inquiry, which included efforts to end gender-based violence as well as efforts to promote women's participation in political and economic spheres.
This request raises concerns about what motivated the inquiry. Are these global programs likely to be eliminated in the coming years- or maybe months? The only other agency of which the new administration made a similar inquiry was seeking the names of those at the Energy Department who support measures to halt climate changes. Energy refused to release the names.
Senator Jean Shaheen of New Hampshire, responded "I pledge to work with the incoming administration to advance policies that support and protect women and girls world wide, but I can promise that if the next administration intends to role back programs designed to lift women up, it will very quickly meet stiff opposition in the Senate."
Much will be revealed when we know how then President Trump responds to the Women's March on Washington.
Thursday, November 10, 2016
Wednesday, November 2, 2016
The French National Assembly has eased the pathway for transgender individuals who wish to change their names so that the names conform with their gender identity. The French government eliminated the requirement that medical information be required as a qualification for name change, according to transequality.org. In 2015, the Parliament Assembly of the Council of Europe passed Resolution 2048 on Discrimination Against Transgender People which expressed concern about the invasion of medical privacy of transgender individuals going through legal processes. Several countries, such as Malta, Argentina and Canada do not require a legal process for change of name. Argentina permits individuals to change official records whenever the designated gender is not that with which the individual identifies. New Zealand permits individuals to elect their gender as M, F, or X for passport purposes. Despite the fact that many US states permit an individual to change names so long as fraud is not involved, all states require a formal process in order to change the name on one's birth certificate.
Sunday, October 30, 2016
In what should prove to be a much watched and written about case, the Supreme Court accepted for hearing the North Carolina case Gloucester County School Board v. GG. Gloucester was discussed earlier on this blog, when the case first appeared on the Supreme Court docket requesting a stay of implementation of the N.C. law that would have permitted high school students to use the bathroom of the gender with which they identify. We reported that Justice Breyer wrote at that time that his vote for a stay was a "courtesy". Befuddled at the time, it appears that we may discover the meaning of this "courtesy". The case involves, in part, a Department of Education's interpretation of Title IX that funding recipients must provide separate facilities and treat transgender students consistent with their gender identity.
This case will be significant in the LGBT journey to assign sexual identity suspect classification status.
In the meantime, an Illinois Federal court decided that Title IX protects transgender students in using locker and bathrooms in accordance with their gender identity. Of significance is the Judge's finding that "High school students do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs". This language may be important to SCOTUS' decision if constitutional claims are made.
Tuesday, July 26, 2016
by Jeremiah Ho
When I watch the news in this current election cycle and see reports that the RNC platform includes condemnation of marriage equality successes along with sentiments bolstering traditional marriage, I observe that the RNC seeks to forget the progress in LGBTQ rights from the last several summers, from U.S. v. Windsor to Obergefell v. Hodges. However, I wonder if the rhetoric isn’t a bit stale. After all, the ship is supposed to have sailed on the marriage issue. Last November, the Williams Institute reported that nationally 486,000 same-sex couples were married since Obergefell. I’m sure the numbers have risen since then. Did the RNC forget what happened in 2015?
A platform that advances the extremist American exceptionalism that social conservatives desire seeks to rehash the LGBTQ successes of the recent years—first, as a grudge and then more as an appropriation of the issue of sexual orientation anti-discrimination that stokes the base. The evidence of such LGBTQ opposition in the RNC platform points to just the sort of partisan processing that is required for the idea of marriage equality—and by proxy, sexual orientation antidiscrimination—to finally set within the national imagination. From an incrementalist perspective, this opposition is natural and must be played against the countervailing notions of progress and positive attitudes toward LGBTQ individuals in the public media right now.
Unfortunately, it is the Orlando gay latino nightclub attack that bookended the year of conversation regarding sexual minorities, stemming from Obergefell. But from Kim Davis to the debate over bathroom bills and even to the anti-marriage rhetoric in the RNC platform that brings us into the fall elections, the way to read all of this anti-LGBTQ rhetoric must be from the vantage point of human rights. Out of the countervailing perspectives on sexual minorities must be a continual understanding that all of these anti-LGBTQ ideas, rhetoric, and advances hurt the essential human rights entitlements that sexual minorities deserve. We need more media coverage on how to interpret the subtext of anti-LGBTQ rhetoric that results from the RNC platform and pulls away from human rights sentiments.
Additionally, the anti-LGBTQ rhetoric of the RNC platform provides an opportunity for social conservatives and similar anti-LGBTQ movements to harness back the surge to dignify sexual minorities. Recently, Michelangelo Signorile at the HuffPost Queer Voices section posted an article demonstrating ways in which social conservatives, politically entrenched in the presidential elections, are manipulating the media to seem more “LGBTQ-friendly”. With a published RNC platform that denigrates recent pro-LGBTQ progress, I would agree with Signorile that any LGBTQ-friendliness offers a curious disconnect. In any event, the progress in the last year has given much leverage for sexual minorities and LGBTQ groups to assert their own dignity and respect. What ultimately must happen is public recognition that anti-LGBTQ rhetoric, as currently exemplified by the RNC, is an ugly distraction, and a powerless, irrelevant stance on homophobia. Thus, the human rights angle is a powerful one, helped and advanced by every success within sexual orientation anti-discrimination laws. I hope we continue to ruminate about this critical human rights issue as both party conventions wrap up in this mid-summer, and as the nation prepares for the fall election.
Monday, July 18, 2016
The connection between domestic violence and mass public killings has not been overlooked. The New York Times published an article on the topic which opened the conversation. While the article could be read to say that the link is casual and not correlative, the connection is supported by FBI data that 57% of mass killings involved a current or former intimate partner or other family member.
Nashville saw a near elimination of domestic violence murders, when, under the leadership of Officer Mark Wynn, every domestic violence call was addressed through a SWAT team response. From the bottom up, our culture needs to shift its focus to take domestic violence as seriously Nashville did. But that is not our culture. For example, not every state requires the surrender of firearms when a restraining order enters against a defendant. Yet federal law makes it a crime for someone subject to a restraining order to be in possession of firearms. When federal gun laws go unenforced, the state is empowering violent men to do further harm. Violence prevention is not a valued path in the U.S.
The failure of civil society to aggressively and effectively address intimate partner violence does, not coincidentally, lead to broader societal violence. Failure to curb gender violence empowers those who are violent. Violent men often hate women, gays, those of different races and others who do not match their limited sex and identity characteristics. Confusion over what it means to be a "man" is a common thread for those who harm both women and those who are gender different. Think Orlando. Religion can be the disguise these men use to execute their hate. Think ISIS and its culture of sexual violence.
As a culture we do very little to intervene when we see concerning behaviors developing in our young men. Ending violence is directly related to how we raise our boys. Traumatized boys are at risk of becoming violent men. Traumatized men who are not given the medical, psycho-therapeutic and other supports they need become dangerous to themselves and many others. Think police killings. We need to rethink our notions of privacy when it comes to children. What is now considered intrusive will later be fundamental as preventative.
What if we organized the restorative and therapeutic equivalent of a SWAT team? Imagine how effective intervention might be if children were diverted from thoughts and conditions that lead to violence by a team of loving, skilled professionals and community members focused only on providing the specific needs of an at-risk child and the child's caregivers. This may sound Utopian, but until we alter our present system of crisis only intervention for children, we should expect violence to continue in more and more dangerous forms.
Tuesday, May 31, 2016
by Jeremiah Ho
According to sources at the Human Rights Campaign, there are currently more than 100 anti-LGBTQ bills filed in 29 state legislatures across the country. But the one bill that has gained the most notoriety in the national spotlight is North Carolina’s bill—HB 2—banning transgender individuals from using the bathroom of the gender with which they identify. In the shadow of last year’s marriage equality victory, the controversy of the HB 2 has sparked conversation about transgender rights—a group within the LGBTQ umbrella that previously received the least amount of attention and the group that did not benefit from the repeal of Don’t Ask, Don’t Tell.
Given that one of iconic instances of discrimination that prompted the Civil Rights Movement was the segregation of public restrooms between white and other races, it feels as if the return to the restroom as the stage for discrimination symbolizes a regression from progressive politics. The issue, however, is so much more complex than that. As with racially-segregated public restrooms, the supporters tout a negative essentialist rhetoric that is firmly grounded in the politics of disrespect. For instance, during the Civil Rights Movement, a common reason that pro-segregationists used to resist integration of public restrooms between white and other races was the protection of white women from the venereal diseases carried by African-American women. In comparison, in the contemporary debate, we have supporters of bathroom bills—who also largely denounce expansion of anti-transgender rights—use the protection of young children from child predators as one of the primary reasons for these bathroom bills. Just like venereal disease, here is now another peril that has been brought into the debate without any evidentiary basis—alas pedophilia! But even despite the lack of statistics, the possibility of child predators is enough to gather support from family groups to prevent restroom integration at the expense of the restroom rights of a particular group. Along the way, the ones left out of the stall—i.e. transgender individuals—now have either an inappropriate connotation of pedophilia attached to their image or way of life that facilitates an argument favoring their third-class citizenry. Beyond the segregation, the pro-bathroom bill rhetoric is a cleverly designed campaign that uses anti-transgender essentialism—in the form bodily functions and biological sex—to discredit the pro-transgender constructivist aspects of gender identity. All of this rhetoric and debate reveals the tension and hatred that the supporters of bathroom bills hold for transgender people.
Although in the context of schools, these bathroom bills have been legally challenged on the basis of Title IX violations, much of this debate makes me think of another legal solution to use against bills such as HB 2—that is, animus and rational basis "with bite" in Romer v. Evans. The anti-trans rhetoric here reminds me of the disrespect politics that the supporters of Colorado Amendment 2 in the early-to-mid 1990s employed to get the state voters to pass an ordinance that denied non-discriminatory protections for LGBTQ individuals. That campaign used the AIDS crisis and inaccurate statistics about gay sex to tarnish the image of sexual minorities, leaving them without any dignity in the eyes of other fellow Colorado citizens. Eventually Amendment 2 was overturned by the Supreme Court in 1996 in Romer because the Court found that Amendment 2 was promulgated by an animus against sexual minorities that rendered the law empty of rational basis.
So if we were able to resolve Colorado’s discriminatory Amendment 2 in 1996, why are we not quicker in 2016 to note the hatred and animus that ought to render HB 2 and similar laws that discriminate against transgender individuals irrational as well?
Wednesday, March 2, 2016
by Jeremiah Ho
In the wake of marriage equality at the Supreme Court, pro-gay rights cases that are trying to expand anti-discrimination protections based on sexual orientation have ensued. In the employment realm, there are a few pending cases that are trying to expand Title VII’s protections to include discrimination based on sexual orientation. One of them to watch for is Lively v. Fletcher Hospital, a case that was filed in federal district court in North Carolina on February 10, 2016.
Sandra Lively and Catherine Hipwell have been together as a couple for 15 years. Sandra has been a registered nurse at North Carolina hospital Park Ridge Health since 2012, while Catherine is self-employed. In 2005, Catherine was diagnosed with stage three uterine cancer and has been through intensive treatment. In October 2014, after North Carolina permitted same-sex marriages, Sandra and Catherine were quickly married. Soon afterwards, Sandra sought health care coverage for Catherine through Park Ridge Health, but was rejected repeatedly. Catherine, as a cancer survivor, needs health coverage. However, with Park Ridge Health’s refusal to cover Catherine and cuts in her subsidy through the Affordable Care Act because of her marital status, thousands of dollars were spent out-of-pocket for a private health plan. After Sandra complained through the EEOC in April 2015, Park Ridge Health changed its policy and allowed Catherine to enroll in May. But Park Ridge Health still refuses to reimburse the couple for the expenses they incurred for private coverage while they were denied enrollment in the employee plan. A suit filed by Lambda Legal alleges that Park Ridge Health’s prior policy of denying spousal coverage to married same-sex couples on the basis of sex and religion violated Title VII of the federal Civil Rights Act of 1964 and the Equal Pay Act.
Although Title VII does not explicitly protect sexual orientation, it does protect against sex discrimination. In addition, the EEOC has recently ruled that sexual orientation discrimination is protected under sex discrimination. Among her several Title VII claims (including one for sex discrimination), Lively’s claim tries to extend her sex discrimination claim to also cover discrimination based on sexual orientation. Her complaint reads: “Sexual orientation inherently is a sex-based consideration because sexual orientation cannot be defined or understood without reference to sex. Ms. Lively’s sexual orientation as a lesbian is inseparable from, and inescapably linked to, the fact that she is a woman who fell in love with and married another woman.” In this way, “denying spousal coverage to Ms. Lively based on her sexual orientation denies her spousal coverage based on her sex.”
Now that the same-sex marriage question has been directly resolved by the Supreme Court, will litigation such as Lively’s, which uses marriage, in part, to leverage toward antidiscrimination finally bring actual progress for more protections based on sexual orientation? The question from the federal district court in North Carolina is one to watch.
Saturday, February 27, 2016
Meghana Nayak, a political scientist at Pace University, has written a new book published by Oxford University Press, titled: Who is Worthy of Protection: Gender-Based Asylum and U.S. Immigration Policies. Here's the publisher's description:
A surprisingly understudied topic in international relations is that of gender-based asylum, even though the tactic has been adopted in an increasing number of countries in the global north and west. Those adjudicating gender-based asylum cases must investicate the specific category of gender violence committed against the asylum-seeker, as well as the role of the asylum-seeker's home state in being complicit with such violence. As Nayak argues, it matters not just that but how we respond to gender violence and persecution. Feminist advocates, U.S. governmental officials, and asylum adjudicators have articulated different "frames" for different types of gender violence, promoting ideas about how to categorize violence, its causes, and who counts as its victims. These frames, in turn, may be used successfully to grant asylum to persecuted migrants; however, the frames are also very narrow and limited. This is because the U.S. must negotiate the tension between immigration restriction and human rights obligations to protect refugees from persecution. The effects of the asylum frames are two-fold. First, they leave out or distort the stories and experiences of asylum-seekers who do not "fit" the frames. Second, the frames reflect but also serve as an entry point to deepen, strengthen, and shape the U.S. position of power relative to other countries, international organizations, and immigrant communities. This book explores the politics of gender-based asylum through a comparative examination of asylum policy and cases regarding domestic violence, female circumcision, rape, trafficking, coercive sterilization/abortion, and persecution based on sexual and gender identity.
M. Bob Kao reviewed the book on-line for the London School of Economics Review of Books, calling it an "important contribution."
Monday, February 1, 2016
A recent report from the social sciences field explores the trend of higher gay and lesbian presence in certain fields of labor and careers than others. The title of the report is Concealable Stigma and Occupational Segregation: Toward a Theory of Gay and Lesbian Occupations. It was published by Administrative Science Quarterly, but has been featured separately on the London School of Economics and Political Science’s Business Review Blog and Paul Caron’s TaxProfBlog in the last few weeks.
So why are gay and lesbians overrepresented in certain fields such as psychology, social work, law, and higher ed teaching? Are there truthful correlations in age-old stereotypes regarding the type of careers that gays and lesbians take on in the workplace (e.g., gay hairdressers and lesbian truck drivers)?
In assessing, what the title of the report calls, “concealable stigma” and its link to occupational segregation of sexual minorities into certain jobs, the authors of the report, András Tilcsik (University of Toronto), Michael Anteby (Boston University), and Carly R. Knight (Harvard), have observed that sexual minorities tend to hold occupations that allow them to rely on their experiences of discrimination and social stigma. Gay men and lesbians tend to be drawn to occupations that require task independence—the ability to perform tasks without large dependence on coworkers—because it allows concealment of sexual orientation and reduces negative consequences of being “out.” They also tend to hold occupations that require high social perceptiveness—of being able to accurately read, anticipate and gauge others’ reactions. A table of empirical data regarding the types of occupations with high numbers of gay and lesbian workers from the report with observations regarding whether such occupations require task independence and/or social perceptiveness is reproduced here:
Occupations with the Highest Joint Proportion of Gay and Lesbian Workers
1. Psychologists (S*, T**)
2. Training and development specialists and managers (S)
3. Social and community service managers (S, T)
4. Technical writers (T)
5. Occupational therapists (S, T)
6. Massage therapists (S, T)
7. Urban and regional planners (S, T)
8. Producers and directors (S, T)
9. Postsecondary teachers (S, T)
10. Probation officers and correctional treatment specialists (S, T)
11. Morticians, undertakers, and funeral directors (S)
12. Physical therapists and exercise physiologists (S, T)
13. Computer and information systems managers (S, T)
14. Lawyers, and judges, magistrates, and other judicial workers (S, T)
15. Web developers (T)
*S = Occupation requires above-average social perceptiveness
**T = Above-average task independence is associated with the occupation
The authors theorize that eventually such occupational trends might change as sexual minorities become more visible and accepted due to the visibility of same-sex relationships. Gay and lesbians might lose their social perceptiveness. But for now, the authors believe that there will continue to be strong correlation between social stigma and discrimination and the career paths that gays and lesbians pick.
What’s interesting for this writer of the HRAH blog is how social stigma of sexual minorities is characterized by this report as a strong but invisible influence for career choices and how it contributes to segregation and hierarchy in the workplace. Occupational choices are complicated for the livelihoods of gays and lesbian just as they are for everyone else. But as the report seems to suggest, the choice of career paths for gays and lesbians consists of influences and skills obtained from their history of societal marginalization and segregation. Whether the truth is as emphatic as the authors present here, their ideas are fascinating considering the substantial amount of time that we all spend in our lifetimes at work.
Friday, December 4, 2015
Yesterday, the government announced that women will be permitted to apply for or be assigned to any position within the armed forces. This includes combat based positions. In one of the last situations of overt sex discrimination, women were excluded from consideration for many combat positions, even though many found themselves in combat situations. With the latest policy change, women may apply for all combat positions, including front line ones. Similarly, they may be assigned to combat by the chain of command.
While the Marines, through now Chair of the Joint Chiefs of Staff Joseph Dunford, requested discretion to determine which positions would be open to women soldiers, Secretary of Defense Carter made clear that there would be no exceptions to the policy change.
The removal of this disqualification raises the issue of whether or not women will be subject to selective service requirements. That will be a discussion for another day and one on which Secretary Carter refused to comment.
Secretary Carter said that the Pentagon "can't afford to omit half of America's population from consideration".
He added that since the 1970s, women have been able to attend U.S. service academies, and that in the early 1990s women's military roles were expanded, with each branch allowed to make some exceptions that kept women out of combat.
Ultimately, we can thank four courageous servicewomen who sued then Secretary of Defense Panetta for the failure of the armed forces to permit women in combat roles. Within a few months of suit being filed, Panetta agreed that gradually women would be allowed in combat positions. Yesterday the end to this particular discrimination became final.