Human Rights at Home Blog

New Article: Colonizing Queerness

Jeremiah Ho, Colonizing Queerness, University of Colorado Law Review (forthcoming 2023). Abstract below.

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives continually privilege white heteropatriarchal structures that dominate over non-normative sexualities.

Through covert demands upon queer identities to assimilate with the status quo, such settler colonialist motivations are visible in the way Supreme Court gay rights advancements have facilitated a conditional but normative path to mainstream citizenship for queer identities. By employing concepts from critical race theory, queer studies, and settler colonial theory, this Article illuminates on how the Court’s cases are indeed part of American settler colonialism’s sexuality project and answers why such legal advancements always appear monumental, but ultimately remain in the control of a discriminatory status quo. Only if queer legal advancements are accompanied by essential shifts from the normative structures of white settler heteropatriarchy will such victories live up to their liberatory claims. Otherwise, such apparent progress will continually attempt to marginalize—indeed, colonize—queerness.

Event 10/14: Harvard Law Webinar on the UN General Assembly Report on Peace, Security, Sexual Orientation and Gender Identity

On October 14, 2022 at 12:40pm EST, Victor Madrigal-Borloz, Senior Visiting Researcher at Harvard Law School’s Human Rights Program and United Nations Independent Expert on Sexual Orientation and Gender Identity, will speak at Harvard Law School previewing his report on peace, security, sexual orientation and gender identity to the 77th General Assembly of the United Nations.

In his report, Victor Madrigal-Borloz calls for greater awareness of how gender and sexual orientation and gender identity dynamics operate in the context of armed conflict, and within peacebuilding and peacekeeping. He aims to provide insight on the application of a comprehensive set of legal resources to foster prevention, participation, protection, relief and sustainable peace for persons, communities and peoples suffering from violence and discrimination in war-torn contexts. The report seeks to establish a basis for expanding existing policies within the United Nations system.

Register for this webinar here.

New Article: Defining Sexual Orientation: A Proposal for a New Definition

Andrew Park, Defining Sexual Orientation: A Proposal for a New Definition, Michigan Journal of Gender and Law, Volume 29 (2022). Abstract below.

Laws prohibiting discrimination based on sexual orientation are becoming more common in all parts of the world. Few of these laws provide useful definitions of the term sexual orientation. As a result, the meaning and impact of these laws remains unclear. This article reviews past and current definitions of sexual orientation according to how well they incorporate current empirical knowledge of sexual orientation, and how their use in human rights laws impacts the dignity, right to equality, and human development of sexual minorities. The Article gives particular attention to the definition of sexual orientation found in the Yogyakarta Principles which has been adopted by a number of jurisdictions throughout the world. Because this definition views sexual orientation through a heteronormative lens, its use restricts sexual freedoms and undermines the dignity of individuals with non-conforming sexual orientations. The Article proposes a multidimensional definition of sexual orientation grounded in current scientific knowledge of how sexual orientation is manifested in the lives of sexual minorities.

Florida’s “Don’t Say Gay” Bill and Conditional Progress

By Co-Editor Prof. Jeremiah A. Ho | 何嘉霖 | 副教授

In the very first episode of Netflix’s House of Cards, when the upstart journalist Zoe Barnes, played by Kate Mara, guesses correctly that the new presidential administration’s first legislative agenda was an education bill, she succinctly reasons that it’s because “Everyone can get behind children.”

On the surface, standing behind children is the motivation behind the passage of Florida’s recent “Parental Rights in Education” Bill (House Bill 1557)—or more colloquially-dubbed, “Don’t Say Gay” Bill. As many have noted, the bill is not written clearly. Here, I’ll summarize a few key things that it tries to accomplish:

• Limits on teaching gender and sexuality in all grades
• Parental notification when children receive services covering mental, emotional, or physical health with exceptions for circumstances where school officials believe a risk of abuse, abandonment, and neglect exists
• Opt-out option that allows parents to pull their children from counseling and health service
• Legal recourse for parents if schools violate House Bill 1557

The Florida state legislature passed the bill a few weeks ago and Governor Ron DeSantis is expected to sign the bill into law. In its passage, however, genuine protection of children is not really the intent behind the bill. But it’s rather animus against LGBTQ+ people and their lived experiences, and protectionism of a discriminatory heteropatriarchal status quo.

We’ve been down this road before. Such anti-gay curriculum laws or “No Promo Homo” laws aren’t new. This is not the first time that legislatures have doubled-down on education to erase or stigmatize queer youth and identities. There’s also a likely connection here to the flurry of anti-CRT legislation that caught traction in state houses nationwide recently. Analyzing these legislations separately is probably less resonate and effective than seeing these efforts as closely-twined to one structural offense—one massive race-gender-sexuality project of our settler colonial condition: white heteropatriarchy.

The other observation I have here is the cognitive dissonance that seems to appear with this bill in an era that is supposedly more gay-friendly than ever before. But a closer scrutiny would show us that the mainstream’s “gay-friendliness” is conditional. So there is no true dissonance here. Yes, queer and trans people have some extraordinary visibility these days and enjoy some great legal recognition in their lives and relationships. Last weekend, as I showed some out-of-town friends the bohemian spectacle of Venice Beach in Southern California, we kept seeing same-sex couples holding hands as they strolled down the boardwalk—something I doubt I would have seen 20 years ago, even in blue-state California. But such progress has qualifications. One most glaring shortfall is how many of the major LGBTQ+ advancements in recent years have obtained legal recognition and protections for queer identities without more substantial normative follow-through. Professor Kathrine Franke’s criticism of Lawrence v. Texas as “domesticated liberty” comes to mind as an example. While Lawrence decriminalized same-sex intimacy, the Supreme Court’s 2003 ruling brought queer sex into a sanitized, domesticated sphere that resembled more stereotypically “conventional” heteronormative relationships. The recent 2020 Title VII decision, Bostock v. Clayton County, that brought SOGI employment protections under Title VII’s “because of sex” category is another example of what I mean. The ruling created SOGI protections simply through Justice Gorsuch’s textualist reading of “because of sex.” However, the decision lacked any frank discussions that would externalize the values of inclusiveness or would unveil the harms placed upon marginalizing queer lived experiences in the workplace. It obtained employment protections for LGBTQ+ people without discussing LGBTQ+ queer lived experiences. Bostock “didn’t say gay” in that sense. That silence in Bostock, like Lawrence’s “domesticated liberty,” serves—even if unintentionally—to preserve the norms of a heteropatriarchal status quo. Thus, queer visibility and progress are limited and conditioned on establishment terms.   

Conditional progress is why Florida’s “Don’t Say Gay” Bill and the new wedding vendor case (303 Creative LLC v. Elenis) being heard next term at the Supreme Court both appear to me as déjà vu. We’ve been down this road before (and before). Progress is on the status quo’s terms. The conversation is being controlled from there. 

A lot of critical discussion has been raised about the harms and legalities of Florida’s “Don’t Say Gay” Bill. Such harms and legalities are both funneled into the bill’s vagueness on key operative terms and how the bill would be interpreted in practice. For instance, inconsistencies with the bill’s scope between its preamble and text poses much confusion. The preamble states that the goal of the bill is to preclude “classroom discussion about sexual orientation or gender identity.” Yet, the text of the bill provides that “classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur.” Would it put a schoolteacher in a same-sex marriage in violation with the bill if he were to accidentally reveal the gender of his spouse in a classroom conversation? Ian Millhauser poses answers to this hypothetical in his article at Vox (https://www.vox.com/2022/3/15/22976868/dont-say-gay-florida-unconstitutional-ron-desantis-supreme-court-first-amendment-schools-parents). And would such vagueness pass constitutionally muster? Millhauser says not likely. But aside from these practical and legal considerations, the design of this proposed law is clear and unwavering. The bill prolongs mainstream debate about the lives of queer and trans people while simultaneously bullying, marginalizing, and silencing them. It reveals that our recent legal advancements have not gone far enough—and may never go far enough—so long as the norms of heteropatriarchy are not simultaneously challenged when these advances occur. That might be a tall order for legal strategists. But without it, we will continue to go down the same roads over and over again.

Texas Politicians Confuse Parental Support of Gender-Affirming Care with Child Abuse

By Bailey Bickford, 2L and Research Assistant at the Program on Human Rights and the Global Economy (PHRGE) at Northeastern Law

After two bills that would have banned gender-affirming care for trans youth in Texas did not pass the state’s legislature last year, Texas politicians took the matter into their own hands. Governor Greg Abbott (R), State Representative Matt Krause (R), and Attorney General Ken Paxton are plowing ahead and attempting to label gender-affirming care as child abuse under chapter 261 of the Texas Family Code.

In a February 18 opinion issued at the request of Representative Krause, Attorney General Paxton stated that puberty-blockers and hormone replacement therapy are not medically beneficial and can constitute child abuse under Texas law. In addition, he falsely equated gender-affirming care and non-consensual sterilization, claiming that these treatments deprive children of their fundamental right to procreate.

In response to Attorney General Paxton’s opinion, Governor Abbott ordered the Texas Department of Family and Protective Services (DFPS) to open child abuse investigations into the parents of children who are “subjected to these abusive gender-transitioning procedures.” He also ordered the investigation of medical facilities known to provide this care. Governor Abbott’s order has been condemned by organizations including The Texas Pediatric Society, The American Academy of Pediatrics, and The National Association of Social Workers.

Neither Attorney General Paxton’s opinion nor Governor Abbott’s order are legally binding, and five Texas District Attorneys have publicly stated they will not enforce the order. While the opinion and order carry no legal weight, they increase already rampant transphobia and create more challenges for Texas youth who have been diagnosed with gender dysphoria. Furthermore, the Attorney General and Governor’s actions have created panic among young people in Texas, who fear they will be separated from their loving and supportive families by the DFPS and lose access to the care they need from their doctors.

The ACLU has filed a law suit challenging Governor Abbott’s order to the DFPS. The plaintiffs include Mary Doe, a minor who has been undergoing gender-affirming care, her mother and father, and Dr. Megan Mooney, a psychologist whose clients include a number of trans youth in Texas. Mary Doe’s mother is employed by the DFPS and has been placed on leave while the family is investigated by her employer because of her daughter’s ongoing care. The ACLU argues that Governor Abbott’s order creates a Catch-22 for Dr. Mooney and others in her position. Under the Governor’s order, healthcare providers would face severe penalties for failing to report clients who come to them for gender-affirming care but stopping care and reporting these clients would violate ethical and professional obligations to cause no harm.

The ACLU’s petition also highlights the chilling effect of the Governor’s order. Parents feel unsafe sending their children to school or to the doctor’s office because they would encounter mandatory reporters, who are obligated to report “child abuse.”  Some doctors have ceased prescribing gender-affirming care for fear of the professional and criminal consequences. Texas Children’s Hospital, the nation’s largest pediatric hospital, has stopped providing gender-affirming care in response to the order.

On March 2, a Travis County judge granted a temporary restraining order (TRO) that enjoins the state from continuing the child abuse investigation of the Doe family, citing the irreparable harm that the investigation would cause the family. The TRO also enjoins the state from taking any action against Dr. Mooney. Attorney General Paxton promptly appealed the decision.

The Governor’s stated intention of protecting young Texans is intellectually dishonest. He desires to weaponize the DFPS and use it as a tool to break up families and send trans children into foster care, where their mental and physical health are virtually guaranteed to suffer. He further desires to coerce doctors into acting against their own ethical obligations. The Governor is using his position of power to promote a transphobic agenda that is traumatizing trans youth in his state.

Members of the cis-gendered male political elite seek to use their platforms to enshrine patriarchal norms into the legal system in order to protect their own privilege. A privilege that is seemingly so fragile that their enemy of choice is children.

Decisions about medically necessary and often life-saving gender-affirming care must be left to families and their doctors. LGBTQ+ advocacy organizations in Texas, which will be working hard in the coming weeks to protect this principle, could use your support. The status of transgender individuals and the law varies state to state and issues such as access to gender-affirming care have become battle grounds in several states, including Texas and Arkansas.

Trans kids matter.

Inter-American Court of Human Rights Finds Honduras Responsible for Trans Killing

By Chris Hegwood, 2L at St. Louis University School of Law

The Inter-American Court of Human Rights set new protections for trans people throughout the Americas in its judgment in the case of Vicky Hernández et al. v. Honduras.  In its ruling, the Inter-American Court of Human Rights found the State of Honduras to be responsible for the death of Vicky Hernández, a transgender sex worker woman and activist who was found murdered following her evasion of an attempted arrest by police patrol the night of June 28, 2009.

The Court found numerous indications of the State’s role in the violating Vicky Hernández’s right to life, personal integrity, and her right to gender identity. The Court found a lack of due diligence in the authority’s investigation into the murder, failure to consider the context of discriminatory practices and police violence against LGBTI persons and trans women sex workers. The Court also found that Vicky Hernández’s relatives right to a life free of violence was violated.

In response to these violations, the Court ordered eight reparations that included promoting and continuing Vicky Hernández’s murder investigation, performing a public act of recognition of international responsibility, establishing a scholarship in Vicky Hernández’s name for trans women, and several procedural undertakings which are enumerated in the Court’s press release.

The Uneasy Detente of Fulton v. City of Philadelphia

By Shirley Lin, Co-Editor

On Thursday June 17, 2021, the Supreme Court issued its ruling in Fulton vs. City of Philadelphia, extending a temporary legal detente as religious groups seek to advance counter-rights in response to widespread recognition of the rights of LGBTQIA+ communities.  The City had ceased to contract with a Catholic agency, Catholic Social Services, once CSS acknowledged that it discriminates against same-sex couples when certifying families for foster-care children.  Philadelphia justified the refusal on the non-discrimination provisions in its contracts and its own anti-discrimination law.  CSS challenged this decision as a violation of the Free Exercise Clause of the First Amendment.  

In a unanimous decision the Court agreed with CSS, but on narrow grounds specific to the contract's inclusion of exceptions and the City's denial of an exception to CSS.  Yet the Justices also signaled that the City "discriminate[d] against religion," in a turn reminiscent of Masterpiece Cakeshop.  Put less acerbically, of course, the City declined to contract with an agency that discriminated in violation of civil rights law.  The Court avoided weighing in on this central question, as it declined CSS's invitation to overrule precedent that generally upholds anti-discrimination laws that may conflict with religious practice if the law is generally applicable (Employment Div., Dep't of Hum. Res. of Ore. v. Smith).  Fulton leaves civil rights susceptible to future attack, as its splintered concurrences hint at the fragile compromise of the final opinion.

At least five Justices (Barrett, Kavanaugh, Alito, Thomas, and Gorsuch) would overrule Smith, although two (Justices Barrett and Kavanagh) would reject the categorical approach of applying the precedent that existed before Smith deferential to religion.  Justice Breyer declined to join the portion of Justice Barrett's concurrence that argues that the Free Exercise Clause should not be limited to a negative freedom from discrimination, but concurred in her discussion of the difficulty of replacing Smith.  

Also concerning is that, by upholding the ability of this religious agency to access government contracts to vital social services, Fulton does not prevent future religious entities from discriminating on the basis of race, disability, and other grounds.  It requires no stretch of the imagination to consider a locality where (unlike Philadelphia) religious social service contractors predominate in delivering vital social services.  Fulton leaves the Court in the dubious position of deciding the acceptability of social harm, at a time when it has openly shifted its baseline for neutrality.

Bostock Ripples

This blog has commented on the Bostock decision in several posts.  Now the ripple effects of the decision are protecting those who benefit from the non-discrimination holding of the case .

The Trump administration attempted to prevent trans individuals from receiving healthcare.  The administration attempted to  "to erase protections for transgender patients against discrimination by doctors, hospitals and health insurance companies, dealing a blow to the broader legal reasoning it has used to try to roll back transgender rights across the government."  Judge Block of the Federal District Court (Brooklyn) found that the proposed roll back was unconstitutional under the Bostock case.  

While the ruling is only a preliminary injunction, Bostock made clear that the definition of sex discrimination includes trans individuals.  Hooray!

 

Queering Justice Gorsuch’s Textualism in Bostock

By Co-Editor Prof. Jeremiah Ho

It’s amusing to note that the recent collection of major Supreme Court decisions regarding the rights of LGBTQ people has often dropped upon us during Pride Month.  Whether or not it’s a positive decision in the Lawrence, Windsor, or Obergefell camps, or a negative one, such as Masterpiece Cakeshop, the month of June always feels especially weighted in a year when a LGBTQ case is up for resolution at the Court.  With Bostock this June, it was good to see the Court handing down a decision to protect LGBTQ employees under Title VII, shoring up once and for all the debate whether “because of . . . sex” affords sexual orientation and gender identity protections in the employment context.       

Being a fairly optimistic person (though tested recently in these COVID-19 times), I don’t question the potential of Bostock v. Clayton County, and its far-reaching protections for LGBTQ employees under Title VII.  Writing for the majority, Justice Gorsuch seems to have given us a textualist interpretation of “because of sex” that is definite and broad in determining the scope of SOGI protections under Title VII.  My colleagues John Rice and Shirley Lin have written terrific posts analyzing the implications of Bostock, especially for the previously unsettled case law surrounding LGBTQ litigants in the federal circuits.  However, after dwelling on Bostock for a few weeks now, there are implications from the decision that appear less hopeful in my mind.

Although the textualist interpretation is likely one of the most direct approaches toward including sexual orientation and gender identity as categories protected by “sex” in Title VII, and has been one that lower courts have used, this approach had to contend with the assumption that “sex” is a stable concept.  As Justice Gorsuch writes on p. 5 of the slip-op, “we proceed on the assumption that ‘sex’ signified what the employers suggest, referring only to the biological distinctions between male and female.”  This statement is the first and foremost observation I have about Bostock that gives me pause because this view of “sex” might continue to perpetuate rigid binaries, cis-genderism, and anti-classificationist perspectives on equality.  If one were to approach Bostock with a queering analysis or from a queer theory angle, Justice Gorsuch’s denotation of “sex” might not be the best reflection of a modern reality, where the concept of “sex” can bear more instability than the narrow dictionary meanings that he used.        

Rather, the more empowering and animating term that Gorsuch’s textualist approach examines in Bostock is the phrase “because of.”  Through Gorsuch’s interpretation, “because of” conjures the “but-for” causation test that allows for the comparator approach to showing how the firing of Gerald Bostock, Don Zarda, and Aimee Stephens all encompassed “because of sex” discrimination under Title VII.  Under textualism, the broad reaches of “because of” permits the connection between the sexual orientation and/or gender identities of a person to be linked to the biological male-female binary for the purposes of finding a Title VII violation here. 

In its functionalist way, Justice Gorsuch’s approach gets us to the desired result of protecting LGBTQ individuals from workplace discrimination.  However, pragmatism here also decreased the ability in Bostock to explicitly reinforce the counter- or anti-stereotyping policies of Title VII that could have applied to restricting homophobia and transphobia, and bolstered the positive recognition of LGBTQ people even more.  The actual legislative history behind including “sex” in Title VII is sparse (and often anecdotal) and lacking any indication to protect LGBTQ individuals in 1964.  However, as William Eskridge, Cary Franklin, and others have expressed in writing about Title VII, since the 1960s, the developed interpretation and importance of Title VII protections reflect anti-stereotyping principles and policies against workplace discrimination based on biases toward one’s sex.  Bostock’s interpretation of “sex” as a stable concept renders mixed results.  First, to presume and declare that “sex” is a stable concept rather than one that is fluid or ambiguous was indeed an important judicial interpretative gesture for Justice Gorsuch because.  This declaration foreclosed any real need for him to look at legislative history or intent behind Title VII—and in fact, it allowed him to avoid even raising the kind of exegetical discussions regarding legislative intent that Justices Alito and Kavanaugh used to support their dissenting opinions.  That got us to a good doctrinal result for Title VII SOGI protections in Bostock.  It even allowed Justice Gorsuch to call out the employers’ justifications for the discriminatory firings of Bostock, Zarda, and Stephens based on adherence to legislative intent as “naked policy appeals.”  But the ability to not have to examine one side’s legislative history or intent arguments also allowed him to gloss over mentioning the anti-stereotyping disposition that prior Title VII cases have carved out for “because of sex” discrimination over the years—an anti-stereotyping disposition that could have bode well for the image of LGBTQ people in the workplace and beyond.  Here, Justice Gorsuch was able to resist the opportunities to discuss why sexual orientation and gender identity are categories that need to be protected from discrimination in general; instead, such protections are merely a consequence in the textualist link to the category of “sex” in Title VII.  That’s a squandered opportunity for publicly elevating LGBTQ individuals.                    

            Additionally, Gorsuch’s sole textualist focus in Bostock to reach favorable results for LGBTQ workers, but overlooked any attempt for discussing the dignitary harms that the litigants in the consolidated cases suffered for being fired­ because of how aspects of their identities were perceived with animus by their former employers and not because of any on-the-job incompetence.  We didn’t get to read about the various ways in which Bostock, Zarda, and Stephens were mistreated by their former employers, what kind of hateful ways in which their employment were terminated, and what harms they suffered as a result of losing their livelihoods all on account of targeted aspects of their identities that had nothing to do with their job competence but much to do with their personal dignity.  Queering the textuality of Justice Gorsuch’s written opinion in this way, we note that much of those facts remained closeted.  This missed opportunity shortens the decision’s potential to raise the significance of Title VII’s anti-stereotyping disposition for showing exactly why discriminating against one’s sexual orientation or gender identity in the workplace is nothing but an act of homophobia or transphobia—an animus that has no rational status in society.  Comparing Bostock to Justice Kennedy’s pro-LGBTQ decisions, which did assert litigant facts in ways that helped the mainstream see LGBTQ individuals in a more humanized light (albeit in problematic ways sometime), we might see that again Justice Gorsuch’s opinion missed the opportunity for recognizing LGBTQ individuals similarly—for actually addressing the weight of discrimination that Justice Kennedy’s LGBTQ rights opinions often dwelled upon.  Unlike Obergefell, the individual facts about each litigant, Bostock, Zarda, and Stephens, were sparse compared to Justice Kennedy’s notable renditions of representative litigant facts in the marriage equality decision.  Bostock was going to accomplish LGBTQ protections by textualism and textualism alone.   

            Lastly, Justice Gorsuch’s reliance on textualism in Bostock also helps him evade discussing another anti-stereotyping potential as the decision drops any intertextual play with the prior pro-LGBTQ decisions.  Given that these cases in Bostock were Title VII employment cases and not marriage or privacy cases, the boundaries were necessarily drawn by context.  However, this decision could have celebrated more of the humanity of LGBTQ employees, and thus grasped onto the anti-stereotyping potential of Title VII by alluding to previous pro-LGBTQ cases at the Court.  Instead, the one allusion toward a prior LGBTQ case that Gorsuch makes in Bostock is to the Masterpiece Cakeshop decision—not in name or citation, but by raising religious exemptions at the end of Bostock:

We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society  But worries about how Title VII may intersect with religious liberties are nothing new; they even predate [Title VII’s] passage.  As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations.  This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” (quoting Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC)

In effect, this passage in Bostock is reminiscent of Justice Gorsuch’s concurrence in Masterpiece Cakeshop:  “[W]hen the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble.  Then the government can prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a compelling interest and are narrowly tailored.”  In both passages from these LGBTQ cases, he carves out areas in the law that tolerates religious freedom over discriminatory practices.  Incidentally, Justice Gorsuch’s concurrence in Masterpiece was replete with facts about the Christian baker that allowed him to not only draw favorable inferences to justify the baker’s discriminatory acts against the same-sex couple in Masterpiece but also imply that the treatment the baker received from the Colorado Civil Rights Commission was not respectful toward the baker’s religious beliefs—in essence, violating the baker’s personal dignity.  Thus, here in Bostock, despite its textualist approach, religion is still potentially prioritized.

            Still, the Bostock decision is a watershed moment for the LGBTQ community.  To find that Title VII protects LGBTQ individuals is a terrific development.  But as a brief queer analysis of Bostock can show, Justice Gorsuch missed several opportunities to elevate LGBTQ individuals further by underscoring the anti-stereotyping disposition of Title VII and/or the anti-stereotyping themes in prior pro-LGBTQ rights cases at the Court.  That task will just have to be taken up by LGBTQ litigants and their smart advocates in future cases.       

A Victory For Equality and The Rule of Law

Guest Blogger Professor John Rice, UMass Law School, shares his thoughts on Bostock v Clayton County, Ga.

On June 15, 2020, the Supreme Court announced its opinion in the Title VII trifecta—Bostock v. Clayton County., Ga.; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. At the outset, I acknowledge the roles that Aimee Stevens and Donald Zarda played in this litigation. Both litigants passed away prior to the Court’s ruling in their cases. I thank both of these individuals for their courage and veracity in bring these suits, and I offer warm wishes of peace and comfort to their loved ones.

 This opinion has been hailed—rightly—by many as a significant civil rights victory, particularly regarding equality for the LGBTQIA+ community. Captioned Bostock (Bostock was the first of the three cases docketed), the Court considered whether the prohibition of “discrimination on the basis of . . . sex” set forth in Title VII of the Civil Rights Act of 1964 extended to prohibit discrimination of the basis of sexual orientation or gender identity. The Court presented what it characterized as a simple answer to a simple question: “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex[.]” Thus, an employer who engages in such discrimination violates Title VII.

I receive this victory with cautious optimism. Much should, can, and will be written about the “next” issues arising and the inherent limits of the moment. The Court was construing Title VII, which only applies to employers who have more than 15 employees and from which religious organizations are exempt. Relatedly, it’s hard to avoid noticing that Justice Gorsuch allocated almost two pages (out of thirty-three) discussing what issues are not before the Court, including any purported tension between non-discrimination and an employer’s religious convictions. Indeed, a case in the Court’s pipeline—Fulton v. City of Philadelphia—will soon explore that precise issue. Additionally, Bostock only addressed the term “sex” in the context of a single statute; it remains unseen whether the term “sex” likewise encompasses sexual orientation and gender identity for purposes of heightened constitutional scrutiny. Likewise, across the country, the federal executive and state governments are engaged in a barrage of attacks against the LGBTQIA+ community, including rolling back healthcare protections and permitting adoption discrimination. Without doubt, the fight continues. But for now, let us take a moment to celebrate and breathe a sigh of relief.  

I join with those who offer praise for the Court’s ruling. While, for most, the jubilation is over the victory for the equality movement, we should also celebrate this opinion as significant in advancing the rule of law and promoting public confidence in the judiciary. The principles underlying the rule of law can generally be framed as three core values: first, that no one is above the law and no one is beneath it; second, that law is formed through a public and transparent process—there is no such thing as “secret” law; and finally, that the institutions that make, interpret, and enforce our laws are consistent and predictable. In Bostock, the Court fulfilled each of these promises.

Most notably, Bostock is about statutory interpretation. Here, the Court engaged in one of its most foundational duties and employed familiar canons of statutory construction to arrive at its conclusion. While acknowledging that the statute’s drafters may not have anticipated this particular application of the law, the letter of the law still necessitated the conclusion. In fact, the majority reasoned that adoption of the employers’ positions would be a deviation from the plain language of the statute. Despite sharp criticism from the dissents that the Court was expanding the plain language of the statue, “legislating from the bench,” the majority made it clear: “homosexuality and transgender status are inextricably bound up with sex.” Thus, discrimination based on sexual orientation or gender identity is discrimination based on sex, which is prohibited by Title VII.

            Next, Bostock was consistent with the Court’s precedent and offered an analytical framework for moving forward. The Court primarily relied on three of its past Title VII rulings: Phillips v. Martin Marietta Corp., L.A. Dept. of Water & Power v. Manhart, and Oncale v. Sundower Offshore Services, Inc. Each of these cases involved “sex plus” discrimination—that is, discrimination on the basis of sex “plus” something else (e.g., having young children, a longer life expectancy, or being of the same sex as one’s harasser). Although the discrimination may have been primarily motivated by the non-sex factor, each instance nevertheless still involved sex, and was therefore prohibited under Title VII.

            Similarly, Bostock offered a framework for legal analysis in future cases. Unlike some of the Court’s past monumental opinions, Bostock did not rely on evasive principles such as “dignity,” “intimate association,” “[safeguarding] children and families,” or “the Obergefell v. Hodges, 576 U.S. 644 (2015), or United States v. Windsor. Of course, this may be attributable to Bostock’s presentation of a different sort of legal issue, one that is more technical and separate and apart from issues of fundamental rights under the Constitution. But still, Bostock offers sound insight into how courts may in the future analyze other prohibitions of discrimination based on sex, such as in the context of healthcare, education, or adoption.

            Finally, the Court soundly rejected the notion of “secret” law or the idea that a legislature’s subjective intent—or perhaps even just the subjective intent of a few legislators—could supersede the plain language of a statute. Certainly not. In a line that sent chills up my spine, the majority reminded us: “Only the written word is the law, and all persons are entitled to its benefit.”

Indeed, your Honors. Indeed.

Queer Sacrifice

 

In his most recent article"Queer Sacrifice in Masterpiece Cakeshop" (31 Yale J. L.and Feminism 249) co-editor Prof. Jeremiah Ho considers that the legal advancements by members of the LGBTQ community, for example with same-sex marriage, rested upon the litigants’ assimilation into mainstream culture.  Prof. Ho further analyzes cases with rulings adverse to LGBTQ concerns and the role of plaintiffs who do not fit into mainstream heteronormative culture and expectations.

 

 

Abstract

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and the Court’s interest in affirming the primacy of marriage. Masterpiece, however, demonstrates that when the litigants’ sexual identities seem less assimilated and more destabilizing to the status quo, the Court becomes much less inclined to protect them from discrimination and, in turn, reacts by reinforcing its interest to preserve the status quo—one that relies on religious freedoms to fortify heteronormativity. To push this observation further, this Article explores how such failure of interest convergence in Masterpiece extends Derrick Bell’s thesis on involuntary racial sacrifice and fortuity into the LGBTQ context—arguing that essentially Masterpiece is an example of queer sacrifice. Thus, using the appositeness of critical race thinking, this Article regards the reversal in Masterpiece as part of the contours of interest convergence, queer sacrifice, and fortuity in the LGBTQ movement. Such observations ultimately prompt this Article to propose specific liberationist strategies that the movement ought to adopt in forging ahead.

 

Victory for Military Members Living With HIV!

On Friday the Court of Appeals for the Fourth Circuit upheld an injunction prohibiting implementation of a policy preventing the deployment of Air Force members living with HIV.  The case of Roe and Voe v. United States Department of Defense was argued for Plaintiffs by Scott Schoettes of the Lambda Legal Defense and Education Fund and others.   The decision prevents the discharge of the Plaintiffs and other similarly situated Air Force members.

Quoting the lower court the addressed the vulnerability of those living with HIV and the need to include similarly situated members in the protections ordered by the court:

 "Because of the longstanding stigma and discrimination facing those living with HIV, it may be difficult to identify potential plaintiffs in a case of this nature. Granting relief to all similarly situated servicemembers is thus the only way to ensure uniform, fair, rational treatment of individuals who       belong to a vulnerable, and often invisible, class."

Importantly, the court addressed the failure of policy to incorporate medical advances.

A ban on deployment may have been justified at a time when HIV treatment was less effective  at managing the virus and reducing transmission risks. But any understanding of HIV that could justify this ban is outmoded and at odds with current science.  Such obsolete understandings cannot justify this ban, even under a deferential standard of review and even according appropriate deference to the military's professional judgments."

Addressing the current state of science is desperately needed in legal opinions involving HIV.  Laws criminalizing HIV are not based upon science but on the fear of contraction common among those unfamiliar with medical advances.  Perhaps state courts will follow and find spitting laws, unprotected sex laws and other statutes based on fear, not science. no longer serving any public interest and instead discriminating against a vulnerable population.

         

           

A Question of Pride - Will Legal Advances Stand?

By Prof. Jeremiah Ho

This year’s June LGBTQ Pride Month is distinctive because it marks the 50^th anniversary of the Stonewall Riots.  A half-century ago, New York City police raided the Stonewall Inn, a cramped gay bar in Greenwich Village.  That harassment incited a six-day riot from gay patrons and neighborhood sympathizers.  In LGBTQ history, the Stonewall Riots represents a defining moment of acting up and symbolizes the threshold of the gay liberation movement of the 1970s, which ultimately transformed LGBTQ visibility.    

This past year has brought other LGBTQ anniversaries.  Last October was the 30^th anniversary of National Coming Out Day.  This past February marked 15 years since Massachusetts first legalized same-sex marriage.  There is much to commemorate. 

Yet, not all anniversaries this June are celebratory.  A year ago, the Supreme Court reversed a Colorado ruling that a Christian baker’s refusal to sell a wedding cake to a same-sex couple was discriminatory.  In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court protected the baker’s religious freedom by finding that the lower proceedings had been tainted by religious hostility—even when the same-sex couple’s sexual orientation discrimination claim was sound.  Some legal commentators have since questioned the Court’s grounds for finding religious hostility.  

Before Masterpiece, full equality for LGBTQ individuals seemed inevitable.  The Supreme Court had protected LGBTQ people from legislative animus, de-criminalized their sexual relationships, and overturned the Defense of Marriage Act.  In 2010, Congress repealed Don’t Ask, Don’t Tell.  Progress culminated in 2015 when the Supreme Court recognized same-sex marriages in Obergefell v. Hodges.  Love won—as the popular saying went.

But Masterpiece and the current lack of full equality loom over this Pride Month, especially as Stonewall’s anniversary approaches. 

Aside from the Supreme Court’s questionable interpretation of religious hostility in Masterpiece, the problem with last year’s wedding cake case reveals a hurdle for current LGBTQ activism.  This hurdle was one that Stonewall, in part, externalized and what turned the conformist style of gay rights activism of the 1960s into its 1970s radical liberationist incarnation.  In the quest for equality, some gays, unfortunately, tend to get ahead of others.  

To win marriage equality in 2015, the same-sex couples in Obergefell had to show that their interests in marrying converged with the interests of mainstream America to uphold traditional marriage.  In his studies on American racial progress, the late Derrick Bell, NYU legal scholar, had called this strategy “interest convergence.” 

• Achieving interest convergence in Obergefell meant that the same-sex couples could not threaten the mainstream status quo of America while seeking one of its most prized institutions.  The strategy was conformance, assimilation, and respectability.  The couples resembled mainstream straight married couples by exhibiting cultural, economic, and gender norms that aligned with the status quo.  A 2015 Yale Law paper explored just how assimilated these same-sex couples were in Obergefell.  See Cynthia Godsoe, Perfect Plaintiffs, 125 Yale L.J. F. 136 (2015).  The couples looked all-American in the upper-middle class, mostly-white, professional, and family-oriented sense, and made marriage equality an issue seemingly confined to a small, elite segment of the LGBTQ population.  That strategy worked.  Love did win. 

But the strategy also relied on gay elite privilege to overcome a legal struggle for equality.

Last year, the same-sex couple in Masterpiece did not resemble the same-sex couples in Obergefell.  Without children and upper middle-class professions, they didn’t seem as “all-American” or mainstream.  In public, their hairstyles and clothing blurred gender lines.  The two men, Charlie Craig and David Mullins, even dared to kiss outside the Supreme Court building.  Culturally, they were queer, not assimilated.  And their plight against discrimination pitted their queerness directly against anti-gay Christian beliefs—threatening another status quo institution:  religion.  Interests didn’t converge then.  Instead, the status quo felt threatened and so the baker won.    

Thus, equality bears a conditional message for gays:  resemble the mainstream or your chances for equal treatment are attenuated. 

In spirit, Stonewall and the gay liberation movement of the 1970s urged against surrendering visible, authentic lives for compromises that assimilation and respectability might bring.  The LGBTQ movement must do better to show mainstream America that there are others to recognize.  In my forthcoming article from the Yale Journal of Law & Feminism, I detail further the status quo anxiety in Masterpiece and propose a shift away from identity politics to broad coalitions premised on democratic values.  A preview of the piece is available here.

Moreover, in the next Supreme Court term, three cases of employment discrimination against gay and transgender individuals will also allow the movement to re-examine its strategies.

Yes, marriage equality provided progress and the Obergefell plaintiffs were true to their own struggles.  But when discrimination in employment, housing, and public accommodations still affect LGBTQ individuals, marriage equality was not full equality. 

So this Pride Month when we see those “Love Wins” signs again, we must also ask:  when will queer win? 

 

The Past Is Prologue

The Netflix production When They See Us tells the story of the young men, mostly minors, charged with the rape and attempted murder of a white woman who was jogging in central park. The defendants were males of color.  It would not be a spoiler to discuss that the five men were later exonerated.   Another man confessed to the crimes and his DNA matched that found at the scene.  

The film shows video recordings of Donal Trump calling for the return of New York's death penalty.  During the frenzy surrounding the 1989 trial,  President Trump took out advertisements in several New York newspapers calling for the death penalty.   The New York Times reported that in the ads Mr. Trump quoted Mayor Koch as stating "hate and rancor have no place in our hearts."  ''I want to hate these muggers and murderers,'' Mr. Trump wrote. ''They should be forced to suffer and, when they kill, they should be executed for their crimes.''  The "they" of course, were people of color.

''We must not confuse tough punishment with hatred,'' Mr. Koch responded, ''I think he's on the wrong track. He has a right to express his opinion. He's expressing hatred and I'm expressing anger. There's a big difference.''

Mr. Trump has consistently refused to apologize for the ad.  As recent as this week, the President not only refused to apologize but criticized New York City's settlement with the wrongly convicted men.  

The past is prologue indeed.  

 

 

Pride Events - Beyond Parades

The month of June presents wonderful opportunities to learn more about the historical oppression of sexual minorities in the United States.  On June 18th PBS will air The Lavender Scare

The documentary tells the story of federal workers who were either fired or denied employment because they were gay.  The time was the 1950's and President Eisenhower signed an order barring gays from federal employment.   One of the people featured in the film is Frank Kameny who had organized the Mattachine Society, an early gay advocacy organization.   When a Texas congressman introduced a bill that would ban the Mattchine Society,   Kameny insisted upon testifying before congress.  Kamely became the first openly gay man to do so.

Joan Cassidy is a retired Navy captain who tells the story of living in fear that she would be discovered to be a lesbian.   Her story is featured in the documentary.

Pride parades will be held world-wide. Pride events will be held throughout the year. A listing of US and International Pride events can be found here.

In New York City tours of sites significant to LGBT history are available. Sites include the Stonewall Inn and the Gay Liberation Monumen

CNN Travel lists happenings beyond parades including Chicago's Pride Run, a Queer Family Portrait Exhibit in San Francisco, and a July 5th Niagra Falls celebration featuring the Buffalo Philharmonic Orchestra performing show tunes with a backdrop of a pride light show, and a Queer Art Walk in Seattle.  

 

Pride and Stonewall

This year celebrates the 50th anniversary of the Stonewall uprising.  Pride parades across the country celebrated the anniversary. 

Lost in some of the celebrations and certainly in the awareness of the non-LGBTQ community is the context of the revolt.  One survivor estimates that 70% of the Stonewall participants were people of color or Latinx.  One observer stated that "You have people such as Marsha P. Johnson and Sylvia (Rivera) who were very critical in that movement that started this off. They stood up for it. So many times we don’t recognize those particular leaders. They were African-American and other people of color who were really strong leaders."  While other protests had occurred, it was Stonewall that set off what was then known as the "Gay Liberation" movement.  The time was ripe.  A movement to advance equality of treatment for the LGBTQ community was due in an era that had seen the civil rights movement make strong inroads and the "Women's Liberation" movement was forming.  As with other social movements,  gay communities of color soon felt excluded from the Pride movement and formed communities of their own.

The laws in place in 1968 NYC that led to arrests of gay and trans people were specifically designed to target sexual minorities.  One law required that each patron wear three pieces of clothing identified with their birth gender if they were to avoid arrest.  Other laws, while seemingly neutral, were enforced against owners of gay bars, such as a law that prohibited serving alcohol where there was "disorderly conduct."  Gay bars were de facto considered disorderly.  

The first night of the Stonewall revolt, police began harassing, including pushing, the patrons.  This was not typical police conduct who were being paid by the bar owner to look the other way.  But this night was different in that the patrons did not remain passive. Like that one last act of aggression that pushes someone to react, enough was enough and patrons began fighting back.  The LGBTQ community at the time of Stonewall, was looking for equality of treatment.  They were far from making marriage equality a primary focus.  Indeed, their focus was human rights-centered, promoting individual dignity.  Some believe that the later focus on marriage equality subsumed the original broader and more critical human rights concerns although dignity was a major theme in Justice Kennedy's opinion in Obergfell.  

No matter what the criticism of post-1969 developments, there is no question that Stonewall ignited public and individual pride, even though at the time, those involved could not appreciate the long-term impact of their acts

Human Rights Campaign: 2019 Corporate Equality Index for LGBTQ

The Human Rights Foundation, the educational arm of the Human Rights Campaign, issued its 2019 Corporate Equality Index.  

517 business earned the top score, noting advances for members of the LGBTQ community.  Of note was health care advances for transgender individuals. The survey included major corporations and law firms.  The press release notes:  “The top-scoring companies on this year’s CEI are not only establishing policies that affirm and include employees here in the United States, they are applying these policies to their global operations and impacting millions of people beyond our shores,” said HRC President Chad Griffin. “Many of these companies have also become vocal advocates for equality in the public square, including the dozens that have signed on to amicus briefs in vital Supreme Court cases and the more than 170 that have joined HRC’s Business Coalition for the Equality Act. Time and again, leading American businesses have shown that protecting their employees and customers from discrimination isn’t just the right thing to do -- it’s also good for business.”

The three foundations of the survey are:

         ● Non-discrimination policies across business entities;
            ● Equitable benefits for LGBTQ workers and their families;
                ● Supporting an inclusive culture and corporate social responsibility. 

The report also notes those businesses that support the Equality Act which will provide explicit protections for LGBTQ individuals under the nation's civil rights laws.

The full report may be read here.  

 

The LGBTQ State of the Union

Actor Billy Porter gave his State of the Union address discussing successes and failures of LGBTQ individuals over the past year.

Porter began and ended on a hopeful note.  “While our rights are under threat and the sanctity of our identities is in peril, let me be clear,” Porter said, “The state of our union is strong.” 

Porter catalogued the many indignities experienced by the community over the past twelve months. Addressing statistics compiled by Human Rights Watch and  the Anti-Violence Project, Porter said that the rise in hate crimes against members of the LGBTQ community is the highest it has been in years, particularly against transgender women.  While the address was primarily intended for US residents Porter addressed the violent anti-queer attacks happening in Chechnya and the increase in violence in Brazil following the election of President Bolsonaro. 

Porter concluded that “While our rights are under threat and the sanctity of our identities is in peril, let me be clear,the state of our union is strong.”

 

 

Endangering LGBT Individuals- In The US and Abroad

Those who identify as other than straight are increasingly endangered, both within and without the US.  Readers are likely aware that transgender individuals who wish to serve in the military will not receive court relief from the President's proposed ban.  In a recent 5-4 decision, the US Supreme Court opened the way for the administration to ban transgender men and women from enlisting.  Unknown is the impact that the ban will have on currently serving transgender soldiers.  While cases are winding their ways through the lower courts, the high court refused to accelerate hearing on the underlying issues.  But in refusing to continue a stay of the policy  the high court signaled that the court will ultimately approve the ban. 

Last week, the North Dakota Senate once again refused to consider a bill that would protect LGBT individuals from discrimination.  Advocates have been promoting the non-discrimination bill for ten years. 

Internationally, Chechnya continues its purge of LGBT people.  According to the Russian LGBT Network, recently 40 LGBT were detained and two killed.  While Norway called for  a human rights investigation, Russia refused to participate.  In South Korea 1000 anti-gay demonstrators attacked 300 members of the gay pride parade. This is just the latest deliberate policy designed to deny human rights to LGBT residents. 

All to say that anti-LGBT sentiments are accelerating internationally.  Despite marriage equality, it is homophobes who have government support in the US. and elsewhere. 

 

Boy Erased and the Age of Authenticity

By Professor Jeremiah Ho

In recently reading Garrard Conley’s 2014 memoir, Boy Erased, and then watching the film adaptation by the same title currently in the theaters, what struck me as disturbing was the length to which the gay conversion therapy depicted in both book and film had promised to fundamentally cure a person’s same-sex sexual orientation by resorting to nothing but a pseudoscientific process—one akin to some sort of medieval torture for the mind and self. For those who haven’t read the memoir or seen the film, both book and film portray the experiences of a college-aged son of a Baptist preacher after, against his wishes, his secret gay identity is revealed.He is then coerced into conversion therapy.

In Boy Erased, the depiction of gay conversion therapy and its underlying tenets sticks to the traditional philosophy of such therapies—that same-gender preference is a pathology, a curable disease that was a result of some personal and/or familial moral failing. In essence, the assumption underscores that queerness is a manifestation of a moral failing and if those who are “afflicted” really put in the hard effort to work on eradicating their preferences, then they can be cured and rejoin society with good, meaningful straight lives.

Despite the huge process in LGBTQ rights in recent years, both the book and movie adaptation of Boy Erased are timely for two specific reasons that came to mind as I read the memoir and watched the film. First, the narrative of Boy Erased reminds us of a past age when gay conversion represented one of the negative and dangerous consequences when sexual minorities tried to live authentically in society. Set in 2004, the events of Boy Erased took place the same year same-sex marriage was first recognized in Massachusetts and right before the short period when some other states—particularly in state supreme courts, such as Iowa, Connecticut, and California—started recognizing marriage equality. As such, Boy Erased is a reminder of that era, where attitudes about homosexuality were shifting, but the subscription to the idea of being cured through gay conversion therapy was still strong. After all, the historical rejection of sexual minorities included consequences for sexual minorities of facing persecution and violence, converting themselves to heterosexuality, or pretending to be heterosexual. And attitudes about sexual minorities hadn’t shifted enough to reach the kind of recognition that brought about Windsor and Obergefell. Though contemporaneous with the Goodridge v. Department of Health , Boy Erased was set four-years before California’s Proposition 8's about-face and was during the time of Don’t Ask, Don’t Tell.

Currently in 2018, there are 14 states that have banned gay conversion therapy for minors (California, Connecticut, D.C., Delaware, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington). An overwhelming consensus exists in the medical community that gay conversion therapy——is harmful and should not be practiced. In this way, Boy Erased was timely because the narrative serves as a marker of where we have been in recent gay rights incrementalism. The year 2004 was in the age of conversion, but not yet in the age where we are now.

An overwhelming consensus exists in the medical community that gay conversion therapy is harmful and should not be practiced. In this way, Boy Erased was timely because the narrative serves as a marker of where we have been in recent gay rights incrementalism. The year 2004 was in the age of conversion, but not yet in the age where we are now.

In Part II, Prof. Ho will address the struggle for authenticity and the risks of assimilation.