September 28, 2007
Larry Craig's First Amendment Claim
Truth is stranger than fiction. I was thinking about asserting that Larry Craig should challenge his guilty plea on first amendment grounds, but I decided I should conduct a web search on the topic first. At the ACLU web site, I found a copy of the amicus brief that they have filed on Craig's behalf (link opens a PDF file).
According to the brief, the Minnesota Supreme Court declared long ago that the statute Craig allegedly violated was unconstitutionally broad, saving it by restricting its operation to "fighting words." Now, I would be the last person to insist that a solicitation for sex cannot constitute fighting words. Many legal authors have written about the "homosexual panic" defense, which some criminal defendants use to assert that their murderous rampages resulted from revulsion at a "homosexual" advance. It hasn't been all that long since most states eliminated the marriage exception to their rape laws -- that no man, by legal definition, can rape his lawfully wedded wife because he always has a right to her sexual services -- and some venues will still overlook murder so long as the victim was an undisciplined queer.
But I wasn't thinking of fighting words under the decisions of the Minnesota Supreme Court (since I won't actually file a brief in the case). I was thinking of the speech/conduct distinction in Rumsfeld v. FAIR, 547 U.S. 47 (2006) and the expressive mission concept in BSA v. Dale, 530 U.S. 640 (2000).
In Rumsfeld, the Court held that the statute in question regulated conduct, not speech. The statute allows the Department of Defense to cut off most types of federal funds to any university that restricts access to military recruiters at its law schools, which they want to do because of the military's policy of discriminating on the basis of sexual orientation.
In BSA, the Court granted a special right to the Boy Scouts to flout New Jersey's antidiscrimination statute by discarding an openly gay scout leader. The claim was that opposition to "homosexuality" is part of the Boy Scouts' "expressive mission," such that government action requiring them to accept an openly gay member violates their rights under the First Amendment.
But Senator Craig (R-Idaho) cannot afford to make any of these arguments. There are legal problems -- if he was engaging in speech by peeking into the stall of the arresting officer (the ACLU brief contains a fascinating excerpt from the arrest report, btw), tapping his foot ever closer to the foot of the arresting officer, and running his hand under the stall divider (and all of this going on for several minutes, mind you), what was he saying? "I want to fellate you"? Or, "Boy the cleaning staff at this airport does a poor job"?
I would argue, of course, that "I want to fellate you" is protected speech under the First Amendment under almost any circumstance, but the one thing Larry Craig cannot admit in this whole situation is that he was just after a quick blow job. I think this illustrates an interesting point about the First Amendment -- in some sense, it clearly does protect only political speech, as Robert Bork has argued. The only problem with Bork's argument is that he thinks blow jobs aren't political. Often they're not, but they can be, and what makes them political is their legal status. It's not relevant anymore, but I always used to say that anyone who doesn't want to hear me talk about sodomy in public can just agree to stop regulating it. Then I can stop talking about it and go back to doing it.
Larry Craig's predicament is obviously political, but he desperately wants to avoid any claim that his "speech" in the men's room was political. I'm curious even what he thinks about the ACLU amicus brief.
If he claims that his men's room "speech" was political (think about adding it to collections of the great orations of human history), then he necessarily aligns himself with the lesbian/gay civil rights movement, which is the one thing he can't do.
September 27, 2007
Transgender Inclusion in ENDA
The Triangle Foundation, the statewide LGBT civil rights group in Michigan, reports that some members of Congress want to remove protection for gender presentation, or transgender persons, from the Employment Nondiscrimination Act (ENDA). (I received an e-mail from them on this topic, but I see that they have not yet put it on their web site as of this writing.) Please feel free to think, "deja vu all over again."
The issue of trans inclusion in ENDA brought considerable debate, including bitter denunciations of the Human Rights Campaign by transgender activists, during the late 1990s, the last time ENDA had even a remotely serious possibility of passing.
Opponents of trans inclusion assert that prohibiting employment discrimination on the basis of gender identity makes the bill unpassable.
Proponents insist that such discrimination is common and assert that they will not support any bill that does not prohibit it. Triangle Foundation takes this position in its e-mail. Trans activists also assert that much discrimination in employment on the basis of sexual orientation manifests as objections to the individual's gender presentation -- lesbians too butch, gay men too femme -- such that the lack of protection for gender identity leaves a large, inviting loophole even in the prohibition on sexual-orientation discrimination.
Let us recall that, in Spearman v. Ford Motor Co., 231 F.3d 1080, 1085-86 (CA7 2000), the court held that the plaintiff could not make out a claim of discrimination based on gender stereotypes because the real basis for discrimination was his sexual orientation. Rather than seeing the need to get around the evidence, the court cited in support of its position the fact that the plaintiff's co-workers had called him "bitch" and "drag queen" -- overwhelming evidence of the sharp distinction between discrimination based on gender stereotypes and discrimination based on sexual orientation.
Hate Crimes Act Passes in Senate
Thank you to Elizabeth Schmitz for her helpful comment post--noting that the Hate Crimes Act Passed in the Senate today by a vote of 60-39. See abc news for additional details.
The Case for Unisex Toilets
What do the last two posts have in common?
A transgender bus driver gets fired from her job for using public toilets bearing the label, "women's," while a United States Senator stands in danger of losing his job because of "shoe tapping and hand gestures under a men's room stall divider."
It would cost a bit more, but is there really any good reason not to enclose stalls completely in public restrooms? Odor accumulation, I suppose. But fully enclosed stalls might make unisex bathrooms more publicly acceptable, solving a number of problems in law and public policy.
Fully enclosed individual stalls would have prevented the Larry Craig episode entirely. That is not to say that no one would have sex in fully enclosed bathroom stalls. It is to say that they would have to negotiate the transaction before entering the stall, probably making the business of avoiding law enforcement officers easier ("hmmm... he's so hot, he must be a cop"). This approach probably wouldn't have worked for Senator Craig, for whom the apparent anonymity of faceless negotiations underneath the divider was part of the appeal.
On the other hand, fully enclosed bathroom stalls might facilitate more heterosexual sex in public bathrooms. This could be a boon especially in airports, where traveling couples may have gone for some time without and have no other viable option, except perhaps the toilets on the airplane.
How this would solve the transgender issue is not as clear, but ensuring maximum privacy and security (assuming lockable doors) to individual users might help reduce the apprehensions of women who see persons with masculine secondary sex characteristics using their bathroom. Indeed, insofar as fully enclosed stalls leads to unisex bathrooms, no member of either gender could claim the bathroom as hers or his in the first place.
I just asked my class on Monday if anyone favored unisex bathrooms. As I suspected, the women who said they did had no brothers, while the women who opposed unisex bathrooms did have brothers and objected primarily on the basis of cleanliness. Anyone who is invested in finding a universal basis for gender difference should explore the differences between men and women in attitudes toward restroom cleanliness.
In closing, let me encourage you to participate in the toilet survey by Mary Anne Case, law professor at the University of Chicago.
Larry Craig, Accidental Gay Rights Activist
"[Larry] Craig's lawyer, Billy Martin, said it is 'near impossible, and it should be' for Craig to withdraw his plea. But he said his client's conduct -- shoe tapping and hand gestures under a men's room stall divider -- was not criminal." Craig to Stay in Office for Time Being, NY Times, Sept. 27, 2007.
I think one should oppose discrimination on the basis of sexual orientation because such discrimination is unjust. For anyone who does not find this claim persuasive, there are numerous very specific arguments against sexual-orientation discrimination that fall under the broad rubric of practical problems with enforcement.
Larry Craig seems, dare I say it, hell-bent on parading as many of those enforcement problems as he can in front of the general public. You go, Larry.
Or, Senator Craig -- might as well continue to emphasize that he is a United States Senator as long as he refuses to resign.
Granting that it can be disconcerting, even unpleasant, to try to use a men's room for elimination when others are using it for sex, one has to ask about the priorities of the law enforcement agency. They had received complaints, according to most news accounts, and I think one can make a strong case for the proposition that agencies have a responsibility to take their priorities from the tax-payers who pay their salaries.
On the other hand, couldn't that same officer have been out watching for shop lifters in the lovely retail outlets of the Minneapolis airport, or helping little old ladies and gentlemen through the TSA security screening process? If I owned one of the stores in the airport, I would be upset about this. Shop lifting imposes a direct economic cost on store owners. Men having sex in the bathroom imposes no real cost on anyone, unless they become so common that no stalls are left for elimination. Indeed, they might increase sales, if they dirty or damage their clothes during the crawl under the divider -- they can just go buy a new shirt or new pair of pants.
Of course, given our nation's fine tradition of wearing clothing that bears the stains of famous, powerful semen, anyone who caught a glob of Larry Craig's ejaculate and knew him to be a United States Senator might want to tell the story loudly on the plane, showing off the stained garment for extra effect.
But Craig's effort to withdraw his plea, successful or not, illustrates the cost of hypocrisy. Craig has lived so long and so successfully by dissembling on the topic of his sexual practices that he just can't stop it. First he hoped it would all go away if he just signed the plea agreement and went on.
Then that tactic blew up in his face, so he announced his resignation. Apparently Craig and a few of his family members and closest advisors are the only persons on the planet who cannot see how transparently silly and sad Craig looks now that he has decided to try to withdraw his guilty plea.
How much easier, more rational, and less costly just to eliminate discrimination based on sexual orientation.
Committed conservatives will not want to admit this lesson since they continue to believe that discrimination against lesbians and gay men is essential to the social order, but the rest of us should watch the Larry Craig episode for vivid indications of how not to enforce the law.
September 26, 2007
10th Circuit Denies Title VII Protection to Transsexual Plaintiff
In Etsitty v. Utah Transit Authority, 2007 WL 2774160 (10th Cir. Sept. 20, 2007), the Tenth Circuit ruled that a transsexual is not protected by Title VII as a class and that this particular plaintiff could not establish "Price Waterhouse" gender non-conformity discrimination.
Krystal Etsitty worked for the Utah Transit Authority as a bus driver when she began to transition from male to female. She could not afford genital reassignment surgery, so she retained her male genitalia while she began to dress in a more feminine manner and started using women's restrooms. Id. at *1-2. Etsitty's trouble stems from her use of women's restrooms along her bus routes, which ultimately led to termination of her employment. Id. at *2. Her supervisors claimed that she was fired due to their concern about the possibility of public concern and potential liability stemming from Etsitty's use of women's restrooms while retaining male genitalia. Id.
First, the court held that Title VII's prohibition against workplace discrimination on the basis of "sex" does not include transsexuals because it only protects against discrimination discrimination against '"women because they are women and men because they are men.'" Id. at *4 (quoting Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)). The court noted, however, that "[s]cientific research may someday cause a shift in the plain meaning of the term 'sex' so that it extends beyond the two starkly defined categories of male and female." Id. at *5 (emphasis added).
Perhaps the Tenth Circuit is unaware of current data specifically explaining that "sex" (at least on a biological level) is not binary. In other words, intersex individuals (with both male and female biological characteristics) exist and clear scientific and medical research provides positive proof of this fact. See, e.g., Clinical Guidelines for the Management of Disorders of Sex Development in Childhood. See also Sara R. Benson, Hacking the Gender Binary Myth: Recognizing Fundamental Rights for the Intersexed, 12 Cardozo J. L. & Gender 31 (2005). In fact, courts have recognized this fact as well when addressing marriage and name changes for transgendered individuals. See, e.g., In re Heilig, 816 A.2d 68, 72 (Md. 2002) (citing Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 Ariz. L. Rev. 265 (1999)).
Thus, the Tenth Circuit's reasoning seems flawed, especially due to the fact that it relies so heavily on the claim that there are only two sexes when excluding transsexuals from Title VII protection.
Next, the court decided not to address the gender nonconformity issue as Etsitty failed to establish an issue of material fact as to whether the reason proffered by UTA in support of firing her was pretextual. Etsitty, 2007 WL 2774160, at *6.
This element of Title VII (pretext) is meant to allow the plaintiff's claim to survive summary judgment so long as he or she can demonstrate that the employer's '"proffered explanation is unworthy of credence.'" Id. at *8 (quoting Stinnett v. Safeway, Inc., 337 F.3d 1213, 1218 (10th Cir. 2003)).
Here, UTA management claims that they are afraid of liability due to Etsitty's use of women's restrooms. This potential "liability" would stem from the fact that women using such restrooms would observe a "UTA employee with male genitalia . . . using the female restroom." Id. at *2.
Honestly, how would such a thing happen? I have never viewed another woman's private parts while using the restroom. Why not? Because women's restrooms have stalls! Unlike male restrooms, where individuals use either a stall or standing urinal (where genitalia might be public), women's restroom stalls are quite private. Are the employers in this case suggesting that this transsexual must be a exhibitionist due to her transsexual status? In other words, do they think that simply because she is in transition she will flaunt her male genitalia for all to view in the restroom? I think not. Why? Because transsexuals generally would rather be seen as their transition sex/gender, not a mix. In fact, Etsitty clearly states that she would have had the operation already, but she could not afford it (which is no surprise as the operation itself is very expensive and generally not covered by health insurance companies). Id.
In my humble opinion, Etsitty has established pretext and should be permitted to pursue her claim past the summary judgment stage.
Interestingly, UTA management said that they would gladly give Etsitty her job back once she has fully transitioned (ie. after the surgery). Id. However, she could not afford the surgery when she had a job, so how will she afford the surgery after her dismissal?
Unsurprisingly, the court also dismisses her equal protection claim based on the analysis of her Title VII claim. Id. at *10.
September 25, 2007
Transgender Employment Rights--Progress in Florida
As noted by our fellow lawprofessorblogs blogger, at the Workplace Prof Blog, Palm Beach and Broward counties might extend anti-discrimination protection to transgendered individuals in the workforce. A comprehensive list of cities, counties, and states protecting workers for gender expression and identity can be found on the Transgender Law and Policy Institute website.
Florida became entangled in a discussion about transgendered individuals at work due to the highly publicized firing last March of "Largo City Manager Susan Stanton, who transitioned from male to female . . . ." See South Florida Sun-Sentinel Article.
Workplace rights for transgendered individuals are particularly salient, as many transgendered individuals live in poverty (either they cannot get hired due to discrimination or they cannot keep the job they have due to discrimination, as demonstrated by the Stanton case). It will be interesting to follow the developments in Florida in particular, as the laws of the state are generally non-supportive of LGBT individuals in the area of marriage and employment discrimination. See Lambda Legal's summary of Florida Laws.
Why are Republicans Opposed to Discrimination at Work?
If, as William points out, Republicans do not favor legislation prohibiting discrimination based on sexual orientation in employment, why do they express distaste for such discrimination at work?
The answer could come down to simple economics. If a worker is producing money for the company or industry and is the best one for the job, then, regardless of race, gender, or sexual orientation, that person should be promoted. This kind of economic-based logic seems to hold quite a bit of clout with Republicans, who tend to be fiscal conservatives.
Just a thought . . .
On the Other Hand...
If 77% of Republicans now oppose employment discrimination based on sexual orientation, that is probably a new high. It is not, however, as unusual as it might seem. Significant majorities of Americans have opposed employment discrimination based on sexual orientation since at least the 1970s. For an overview that is now somewhat dated but still accurate on its own terms, see Alan Yang, From Wrongs to Rights, 1973 to 1999: Public Opinion on Gay and Lesbian Americans Moves Toward Equality (this link leads to a PDF file).
Such stated opposition to sexual orientation discrimination in employment does not necessarily translate to support for legislation to prohibit the practice, however. As Gregory Lewis and Marc Rogers reported, also in 1999, a significant percentage of Americans who claim to oppose sexual orientation discrimination in employment still do not support legislation prohibiting the practice. Presumably this position reflects a belief that federal regulation is simply not an appropriate remedy. See Gregory B. Lewis and Marc A. Rogers, Does the Public Support Equal Employment Rights for Gays and Lesbians?, Gays and Lesbians in the Democratic Process: Public Policy, Public Opinion, and Political Representation (Ellen D.B. Riggle and Barry Tadlock, eds. 1999). See also, Jeni Loftus, America's Liberalization in Attitudes toward Homosexuality, 1973 to 1998, 66 AMERICAN SOCIOLOGICAL REV. 762-82 (2001).
Although the focus of the present and previous posts is employment discrimination, it is also worth noting, as these authors make clear, that opposition to employment discrimination on the basis of sexual orientation does not necessarily indicate support for any other lesbian/gay civil rights claim. The existing data indicates that many of the 77% of Republicans who claim to oppose sexual orientation discrimination in employment would also oppose recognition of same-sex marriages.
September 24, 2007
New Support for HR 2015
A study conducted this summer by Fabrizio, McLaughlin and Associates shows that even Republican voters believe that firing someone simply due to sexual orientation status is wrong. 77% of the Republican voters polled believe that such discrimination at work is wrong. The most fascinating part of the study is that 67% of "moral" voters, including born again christians and evangelical christians agree. See Houston Chronicle Article from Sept. 21.
This lends even more support for HR 2015, a bill that would prohibit workplace discrimination based on sexual orientation. See my earlier post on HR 2015. Hopefully, this evidence will persuade legislators to pass the bill, however, in my opinion, it is unlikely that these Republican voters feel strongly enough about the issue to mobilize in support of the bill.
September 23, 2007
San Diego's Mayor Changes Tune
The Republican Mayor of San Diego recently changed his mind about gay marriage. He was determined to oppose same-sex marriage rights, but now he has changed his tune. His daughter, Lisa, is gay and he thinks that she should have the same rights as anyone else. See Article in USA Today.
It is nice to know that when the issue hits close to home, even the most conservative minds can change. However, it shouldn't take a gay son or daughter to help a politician recognize that preventing same-sex marriage is discriminatory and unconstituional.
At least the citizens of San Diego, under a new City Council Resolution passed by a 5-3 vote on Tuesday, Sept. 18, will be able to marry (for now). San Diego now joins many other California cities in voicing support for same-sex marriage to demonstrate a climate of support for gay marriage in wake of the pending state Supreme Court case.