Human Rights at Home Blog

Judge Gorsuch and Women

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."

Trump Moves to Block Transgender Rights

The Trump administration has withdrawn the Obama administration's directive to the Education and Justice Departments that protected rights of transgender individuals.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.

No Flowers for You: The Washington Supreme Court Sides with Same-Sex Couple in Flower Shop Case

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. 

Pussy Hats and Protest

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.

 

Gender Equality and Mr. Trump

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.

 

The New Dignity Conversation

by Jeremiah Ho

 

I would agree with a recent NPR article online about the disjointed, state-by-state progress for gay rights in 2016, a year after marriage equality had prevailed at the Supreme Court. (See 2016 Has Been a Mixed Bag for LGBT Politics)  In part, that’s understandable as we have been preoccupied with electoral politics since that time.  It's also very much in line with how the incremental politics of gay rights progresses in general when a state has obtained marriage equality.  Things slow down for a little bit for gay rights.

 

But that's not to say that this slowing is excusable.  The divisive Presidential election is over.  LGBTQ individuals still deserve the full equality and anti-discrimination protections that they do not yet fully possess.  In the year after marriage equality, we have seen the backlash toward LGBTQ people in various context from healthcare to bathrooms.  Last week, the most recent case to be taken up by the Supreme Court hopefully is our next wake-up to moving on with what is left to be done in fulfilling advances for sexual minority protections and rights under the Constitution.  The Gloucester County case, which we recently posted on, has now crystallized into our next step. However, several challenges do exist to affect whether or not a victory will be eminent for transgender individuals facing public discrimination over the right to access the bathroom that reflects the gender with which they identify. The composition of the High Court with only eight Justices is one possibility that whatever ruling they give will not necessarily be as solid as if there were a full Court of nine Justices.  What if the Court reaches a decision where the eight justices were to divide evenly on the doctrinal resolution of this issue?

 

Despite that uncertainty for doctrinal progress in that event, incremental politics of LGBTQ equality and rights advancement must continue to urge that sexual minorities are seen in the politics of dignity and respect.  The last major words that the Supreme Court had in regards to the rights of sexual minorities--meaning from the decision to extend the fundamental right to marry same-sex couples--were written in a politics and a connotation of subdued and restrained respect for same-sex couples.  Despite the legal significance for same-sex couples, the Obergefell v. Hodges decision couched their rights within a reverence for traditional marriage. Sure that did  give gay couples the right to marry. But it was done in a way that showed how much they qualified for traditional marriage--instead of saying that same sex couples could create their own merits for unions without qualification. But only because under equality principles they always should have been allowed to do so.

 

Now with transgender bathroom rights, we have a new opportunity to use the existing dignity rhetoric from cases such as Lawrence v. Texas (and not the marriage cases, Windsor or Obergefell) to articulate the respect for sexual minorities for inherently who they are.  Even if doctrinally the advancement for LGBTQ anti-discrimination were to receive a less stable and lasting treatment because of a gridlocked 4-4 decision by the High Court, I hope that the conversation about the right for transgender individuals to choose their own bathrooms will be framed within a discussion of respect and dignity for inherently who they are and not the respectability rhetoric left over from Justice Kennedy's marriage equality decision.  A new conversation of respect and dignity in this context free from the marriage decisions would hopefully give us a restart toward the preferred inherent dignity and respect that will more easily move us to further progress for the advancement of sexual minority rights without and away from the lens of heteronormativity.  Even if that is the only thing that comes from the Gloucester case, I would find that as a welcomed victory because it'll set us up better for the next challenge.

International Transgender Human Rights - Will the US Follow?

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. 

To check out name change document requirements in your state, go to The National Center for Transgender Equality's Document Center.

 

SCOTUS TO HEAR N.C. TRANSGENDER CASE

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.

 

 

 

 

RNC - LBGTQ - And Human Rights for Sexual Minorities

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.                     

In-Home Made Terrorism

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.

 

 

 

The Irrationality of Anti-LGBTQ Legislation

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?          

Lively v Parkside: A Case to Watch

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.

The complaint in the case can be found here.  More on the Lively case can be found on the Lambda Legal website.  

 

From the Human Rights Bookshelf: Gender-Based Asylum and US Immigration Policies

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."

Does Bias Influence the Career Paths of Gays & Lesbians?

by Jeremiah Ho   Jeremiah Ho - University of Massachusetts School of Law

 

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.

 

Women in Combat

  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.

 

 

Utah and the Dignity Discussion

by Jeremiah Ho 

Last week’s developments in Utah directed against same-sex relationships are reminders that the movement toward equality based on sexual identity continues after the marriage victory this past summer at the Supreme Court. First, the Mormon Church promulgated new policies that declare same-sex couples apostates and limited their children from baptism and other church rites.  Such policies have engendered much harsh rebuke—even from within the Mormon community—and led this past Sunday to a mass resignation of 1,000 church members. 

            The second event in Utah involved April Hoagland and Beckie Peirce, a married lesbian couple, who was ordered by a juvenile court judge to have their 1-year old baby foster daughter be removed from their home and sent to a “traditional” home.  The judge’s rationale for his decision was based on unsupported assumptions that children fare better in homes with opposite-sex parents rather than same-sex parents.  However, by the end of the week, the judge reversed his order  and the couple was allowed to keep their foster daughter.

            Now that same-sex couples have the right to marry and the legal benefits that come with marriage, it has become easier to see how the struggle for equality heavily involves the violation of human dignity.  In both Utah situations, same-sex relationships have been singled out for the kind of denigration described by Justice Kennedy in Obergefell v. Hodges:  the kind that results   in a strong stigmatizing effect for sexual minorities.  It would not be hard to see that the Mormon Church policies convey a lesser worth in the relationships of same-sex couples if their children were punished because of their parents’ sexual orientation.  Likewise, in disallowing the Hoagland and Peirce petition to keep their foster daughter, Judge Scott Johansen singled out the couple in a way that denigrated and placed a negative value on their relationship

            Both situations demonstrate Kennedy’s animus-dignity premise in the Windsor and Obergefell opinions: that the narrative of marriage discrimination for sexual minorities has been one that correlates animus with indignity.   Both attack same-sex relationships from a place of disdain for sexual minorities (animus) and singled out same-sex relationships with the effect of tarnishing them (violations of dignity).  In this way, these two recent cases in Utah demonstrate how Kennedy was very much on point in the description of sexual orientation discrimination.   

            But with these two repeated incidents of the animus-dignity pattern of discrimination occurring in the aftermath of Obergefell, one might ask, why bother?  In the Mormon Church scenario, the purpose itself for the new policies was to make a second-class citizenry out of the families created and maintained by same-sex couples.  While in Haigland and Peirce’s situation, the order to remove their foster child denigrated their relationship. Don’t the actors in these situations understand how this all works? 

            In some ways, I would argue that we need situations like this in Utah to continue to create progress for sexual orientation nondiscrimination.  From an incrementalist perspective, these prejudicial and discriminatory moments—like the denial of services to gay couples by small business owners, like the Kim Davis, county clerk controversy in Kentucky—are necessary to keep the conversation for nondiscrimination alive.  This is not just because such incidents of prejudice and discrimination stoke the conversation regarding sexual identity inequality, but because as far as the conversation is concerned, we have reached a tipping point socially and politically.  The new church policies have been singled out by constituents in the Mormon Church as completely intolerable—even by its own members.  And after controversial media coverage that condemned the Utah judge’s decision, he back tracked on his decision to remove the foster child from Hoagland and Peirce’s care.  At some point, hopefully these instances that marginalize same-sex couples and sexual minorities will be fewer and fewer—particularly when we reach the next tipping point in the conversation.  But for now,  each time such an instance occurs, the conversation around these moments and about discrimination generally should be framed in a way so that the narrative of animus and indignity is exposed.               

Getting Real on Sexual Assault

 

Guest Author Prof. Margo Lindauer contributes the following discussion on sexual violence:

Are we ready to have a real conversation about sexual assault? The Harvard Crimson reported on September 19, 2015 that more than twenty nine percent of surveyed Harvard senior women experienced unwanted touching or penetration. Coupled with the recent guilty finding of Owen Labrie from St. Paul’s School, sexual assault on elite campuses is now front-page news. Are we ready to really talk?

 Much of the response to both the guilty finding and survey has been to slice and dice. Innumerable articles have been written about Owen Labrie with one headline announcing that he was found not guilty of felony sexual assault. There have been few, if any, written with a headline of how he was found guilty of three counts of statutory rape, which happens to be a misdemeanor in New Hampshire (but not in all states) and a felony count of using a computer to entice a minor.  A jury found Labrie guilty of serious crimes.

 Hundreds of comments appear in the Crimson report. In addition comments abound regarding a NY Times Article reporting on the survey on sexual assault on campuses commissioned by the Association of American Universities (NY Times, September 22, 2015). The article discusses the faults in the survey procurement. Many of the comments begin with “I am a feminist, but…”, or are a plea to disregard the data because of what some claim to be ambiguous language in the questions asked. Is this another way of trying to see a certain reality?

Critics suggest that the survey respondents were self-selecting, which potentially skewed the reporting towards a higher percentage of affirmative responses. Even if the actual statistic of assualted Harvard women was ¼ as opposed to nearly 1/3, would that make the issue less compelling? Would we be relieved of an obligation to find a solution? To be specific, sixteen percent of women surveyed at Harvard reported penetration without their consent during the time that they were in school. As a society, we have decided that no one deserves to be hit, punched or otherwise assaulted by anyone, including an intimate partner. But why are we reluctant to hold perpetrators of sexual violence accountable?

 The secrecy and acceptance of the unspeakable has gone on unchecked for centuries. The structures of privilege and power on campuses have silenced women and men . Further, our culture seems to have accepted the reality of older boys and men preying on younger women. The notion that men make aggressive sexual advances is assumed to be  an accepted reality. But this survey and Labrie’s guilty finding give us the opportunity to change our reality.

Much of the response by educational institutions has been to change the structure of their reporting and service protocol. While that is an important step, let’s make our goals loftier. With an increased understanding of the historical practices that allow and support violent behavior, we now are able to change the dialogue. Let us talk and create a new normal where we not only provide services and support for individuals who survive sexual assault, but we educate all individuals so that sex or force touching is not acceptable, is criminal and no longer the norm.

To change the conversation, we must start one early.

Learning about healthy relationships and risk factors for domestic and sexual violence must be mandatory in middle schools. There is now evidence that there is a direct correlation between bullying in school settings with school-aged children and exposure to domestic violence in the home. Further, those who experience or perpetrate bullying as young children with no resolution may learn to normalize and mimic similar behaviors later in life. We must develop curriculum that is age appropriate at the middle school, high school and university levels that teach and talk about healthy relationships, the notion of power and control, risk factors for violence and trends in dating violence such as the current conundrum of online abuse. Educators in middle, high schools and in university settings must be given training, support and resources to be able to identify warning signs, talk about the issues safely and refer students to appropriate resources found through up-to-date, accessible and geographically relevant information. And finally, universities must institute polices related to affirmative consent.  Though hotly debated, affirmative consent is a useful tool, particularly on university campuses where much of the socializing inevitably occurs under the haze of alcohol and darkness. Let’s talk about it, learn about it, and feed students with information about their rights and what is healthy dating. Let us not allow perpetrators to normalize abusive behaviors. We must establish protocol within institutions in order to hold perpetrators accountable. And let us support survivors to find safety and give assurance that they are believed.

 

 

 

Routine Denial of the Human Right to Work Safely

Boston columnist Joan Vennochi has given us insight into some of the cases that are being dismissed when women bring claims of a hostile work environment. In 2012, a TSA employee in Boston filed suit against Homeland Security.  Her boss wielded a baseball bat. The boss routinely engaged a swinging stance, raising the bat when he spoke to the Plaintiff.  The same boss changed the female employee's work assignments, citing concerns about the employee's family- friendly work hours.   Witnesses testified that the switch was related to the boss' attitude toward women.  The judge hearing the case dismissed it finding that while the atmosphere was likely uncomfortable, it did not rise to the level of severe or pervasive discrimination. The judge wrote, that the supervisor did not threaten the employee with the bat.  The statement reflects nothing less than a misunderstanding by the court on how threats happen and the psychological damage that threats can have.  

 In another case reported by Vennochi, a supervisor called the Plaintiff a "whore, stupid bitch and hooker." That case was dismissed because the conduct, according to the court, was "general vulgarity" not speech regulated by law.

Former federal District Judge Nancy Gertner said that plaintiffs alleging a racially hostile environment do not have better results than the women who claim a hostile work environment based on sex..  "Gertner cites Johnson v. Freese, a Georgia case in which the white owners of a nightclub directed the N-word toward their African-American employees. The boss asked someone wearing a shirt with a monkey on it, “Are the Obama shirts in?” Black workers suffered other indignities as well. Yet in granting summary judgment, the judge said that while the white owners were “racist, bigoted and/or offensive people” the judge found that none of the incidents went beyond the “ordinary tribulations of the work place.”  If that is the case then we as a nation tolerate a high level of abusive behavior as customary.

When President Obama announced that empathy would be an important quality in a Supreme Court Justice, some found empathy to be inapplicable to the position.  Apparently not.

The influence of  the human rights principle of maintaining individual dignity has not made its way to employment law cases.   We cannot expect human behavior to be perfect.  Most of us will have days when our behavior could have been better.  But some instances of racist and sexist behavior are so disturbing that a logical conclusion is that the speaker has acted out of a place of deep prejudice.  In other cases, a pattern of disrespectful behavior is engaged.  Neither a serious incident or a pattern of discriminatory action or speech should be tolerated.  If being called a "stupid bitch" is insufficient to trigger a hostile work environment finding,  we need to change the standard of proof to match human rights principles. 

 

 

Justice Kennedy's Human Rights Decision

Yesterday's post by Jeremiah Ho analyzed the majority and dissenting Obergefell opinions.  Today's post discusses why the majority opinion is part of the progression of Human Rights Law in U.S:

LGBTQ advocates need not contort Kennedy’s emotive reasoning in order to align the majority opinion with the “logic-based” styles of the dissenters.  Legal bases for Kennedy’s arguments exist in human rights law and language, dignity being a fundamental human rights principle.

 The opening to the Preamble to the Universal Declaration of Human Rights underscores that  “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”   Those who disavow using  sources other than American statutes and case law in deciding U.S. based issues fail to recognize that the Universal Declaration inherently embraces U.S. principles contained in the Declaration of Independence and supported in the Bill of Rights.  The “pursuit of happiness” is intimately tied to the ability to be educated, employed, suitably housed, and fed, while being safe.  Equal access to societal institutions and their implied or express benefits are inherent in the American notions of equality and expressed in human rights doctrine.  The right to participate in social benefits, with equal participation in resulting burdens that participation brings, is what creates individual and cultural dignity.   The American principle of equality cannot be realized without recognizing the fundamental rights embodied in the Universal Declaration.  Human rights cannot be separated from human existence.  These principles are not aspirational but are, in the quintessential American lexicon, “unalienable.” 

In Obergefell,Kennedy embraced human rights concepts through references to and reliance upon notions of “dignity.”  That which irrationally deprives individuals’ access to civil society’s institutions based upon the individuals’ “immutable nature” denies dignity:  “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Unspoken, but implicit, in Obergefell’smajority opinion is that one consequence of exclusion from cultural institutions is shame, historically a tool of oppression when those who are victimized by denied access internalize legal and cultural deprivation.   Denying individuals’ access to fundamental institutional benefits based upon immutable characteristics creates cultural beliefs that those excluded are unworthy.  The deprived individuals carry a belief that somehow they are responsible for the exclusions.  Along with other often excluded groups in the U.S., such as women and African Americans,  this shame has been documented in the LGBTQ community.

Cultural judgment based upon immutable characteristics is the starter for animus.  In Obergefell, Kennedy recognizes animus as the essence of deprivation.  The Universal Declaration demands that individuals be free from this sort of harassment:   “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor or reputation.”  The animus-dignity dichotomy originates in human rights concepts embedded in U.S. legislation, such as the Fourteenth Amendment, as well as more universal applications.  The resolution of animus restores dignity, leading to acknowledgement of complete personhood so that  “[e]veryone has the rights to recognition everywhere as a person before the law.”

Kennedy does not limit his benefits analysis to legal concepts:  “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.  This is true for all persons, whatever their sexual orientation.”  Kennedy cites Loving in recognizing that the choice to marry is something that resides within the individual and cannot be deprived by the state.  In embracing the intangible, Kennedy incorporates fundamental human rights concepts as support for his legal conclusions.  Likewise, incorporating reference to the limitations and obligations of the state embraces fundamental human rights law.

Justice Kennedy’s decision is based in law, although his critics ignore the importance of dignity as foundational in U.S. jurisprudence.  Obergefell will weather time, as human rights language and concepts become more widely recognized in American law. 

 

#Love Wins

    By Jeremiah Ho  

    There has been much criticism over the emotional rhetoric of Justice Kennedy’s majority decision in Obergefell v. Hodges—especially when comparing it to the seemingly more rigorous language in the dissenting opinions.  But the crux of this tension in Obergefell lies at the framing of its inquiry.  In granting certiorari, the Court asked the litigants to address their issues within the Fourteenth Amendment.  Thus, petitioners latched onto the ongoing successes in marriage equality to argue more consistently for extending the existing fundamental right to marriage to same-sex couples.  Contrariwise, respondents insisted that the litigation involved the ongoing creation of a new fundamental right to same-sex marriage that had no consensus amongst the states.

           Such differing views are taken up respectively by the Obergefell majority and dissents.   Kennedy’s decision resolves the marriage controversy by extending to same-sex couples the already-existing fundamental right to marry under the Fourteenth Amendment.  Meanwhile, the dissenters—Roberts, Scalia, Thomas, and Alito—vigorously insisted that petitioners were seeking constitutional creation of a new and specific fundamental right to same-sex marriage. 

            For the majority, extending the existing fundamental right to marry resulted in an opinion with broad emotive rhetoric that consequently seemed to upstage the doctrinal gestures.  If the fundamental right to marriage ought to be available to same-sex couples, Kennedy needed to demonstrate justification.  Accordingly, he dramatized justification by creating a narrative of exclusion through use of animus and human dignity concepts that had appeared either separately or together in his previous gay rights Supreme Court opinions.  By entwining the two concepts into an anti-stereotyping principle that frames the narrative of marriage exclusion, Kennedy describes how the exclusion was borne from a prejudicial animus that led to indignities against same-sex couples.  In fact, the way in which Kennedy phrases the historical reason for exclusion unveils a bias against same-sex relationships because the traditional belief was “it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.”  By contrast, from petitioners’ perspective, this rationale was unfounded because they only sought marriage to bolster “the enduring importance of marriage” out of “their respect—and need—for its privileges and responsibilities.  And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”

    In using animus and dignity to further his narrative to support same-sex right to marry, Kennedy also humanizes marriage exclusion through personal accounts from the petitioner’s private lives.  The most gripping example involves the one from petitioner Obergefell where Ohio state’s refusal to recognize his out-of-state marriage and his now deceased spouse, Arthur, relegates them to “strangers even in death, a state-imposed separation Obergefell deems ‘hurtful for the rest of time.’ ”  The rhetoric is heightened but not doctrinal.  The personified injustice provokes collective outrage as it centers on why this animus-filled exclusion violates human dignity, leading the opinion to become much more emotionally resonant.  Because the majority is not creating a new fundamental right, but extends an existing one, Kennedy’s rhetoric resonates with decisions in equity, relying on principles—which he does with concepts such as dignity, animus, and autonomy—rather than decisions at law. 

    By contrast, the Obergefell dissents are seemingly more grounded in law, if only because they see the case as creating a novel right to same-sex marriage.  This narrower perspective demanded a more logic-based, erudite rhetoric.  Chief Justice Roberts was not subtle when he attacked the majority for creation of this new right, arguing substantively that such a right was not deeply-rooted in our nation’s history and criticizing procedurally Kennedy’s supposed creation of the new fundamental right as an act reminiscent of now-defunct Lochner.  By framing the issue similarly, Justice Thomas uses logic to articulate his dissent—except he perceived the alleged creation of the new right to same-sex marriage as anathema to due process jurisprudence, which, he argues, should adjudicate only violations of negative liberty where freedom was deprived by governmental action.  Since Thomas frames the issue as an attempt to create a new fundamental right, he argues there could not be any governmental action against it so far and thus no rights were deprived.  Justice Alito argues that the majority’s supposed creation of a new fundamental right drives against the democratic process because the legislature and the public should dictate such creation, not a judicial counter-majoritarian act.  The logic, history, and politics of the dissenters are rigorously articulated and rely more on doctrine than Kennedy’s principled but humanistic majority decision.  But by framing the issue too narrowly at the outset, the dissenters misconstrued it.  What logical and doctrinal arguments followed—however intellectual—originated from a false premise.  As a result, the dissents do not challenge Kennedy’s opinion in any logical way, they are just legalistic.