Human Rights at Home Blog

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.

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.

Transgender Update

March 31st was transgender visibility day.  With the national focus on COVID-19, we see and hear less news about the ongoing personal and legislative attacks on sexual minorities. An earlier post addressed the restriction of human rights during the epidemic and the danger that the restricted rights will not be restored.  This is also a time when harmful actions unrelated to COVID-19 are being attempted while the disease diverts our attention.

Idaho is an example of enacting insidious anti-transgender laws. As trans people prepared to celebrate Visibility Day, Indiana Governor Brad Little signed anti-transgender legislation into law.  One bill prohibits transgender women and girls from participating in sports consistent with their gender identity.    The second bill forbids transgender and non-binary people from changing the gender markers on their birth certificates. 

Even if the laws are found to be unconstitutional, they achieve the underlying purpose of raising anti-trans hostility.  Similar bills are introduced in other states. So long as anti-transgender publicity has momentum, discrimination and violence against trans and non-binary people will escalate.  

While our mobility may be determined by COVID-19, our advocacy should not be.  

 

 

Post-Election Advocacy by Women

Women's human rights have been under siege as long as I can remember.  But certainly since Roe v. Wade, eliminating women's autonomy in all aspects of their lives, and particularly in health care decisions, has been the focus of (mostly) white men and particularly those in Congress.

The convergence of sexual assault protests and concerns over abortion restrictions bring autonomy concerns into clearer focus. Both issues highlight many men's belief that they have the right to control female bodies no matter how personal the decision or how criminal the act that a man is perpetrating.  Other issues that may seem disconnected from the issue stem from men's attempts to  control women's bodies.  Restrictions on public breastfeeding is one.  Forcing working women who choose not to abort to return to work prematurely is another.  Before their bodies are fully healed from childbirth, mothers are back on the job because maternity leave of sufficient duration is often lacking, even in the rare instances where leave is paid. Employment harassment is difficult to prove, and often dismissed on summary judgment, even when there is proof of lewd comments or other actions directed toward the woman and her body.

The Trump election has prompted women to public advocacy.  Women's advocacy in the form of public demonstrations has been largely dormant for the past two decades.  That is changing.

On January 21, 2017 women will march on the capitol.  The Women's March on Washington, formerly called the Million Women's March, will take place on the Washington Mall and women and allies are invited.  The demonstration is in response to women's concerns that they will lose rights because of Mr. Trump's election and promises to be the largest protest to date.  Taking place the day after the inauguration, women will voice concerns over the enhanced violence against women, including rape culture, pay equity and the return of women to property status, among other issues.

More information on the march may be found on Facebook.  Since the march is being organized state by state, many states have already set up Facebook pages. 

One significant flaw in US women's movements has been the exclusivity of white leadership.  Indeed, the early violence against women movement barely acknowledged women of color as significant, despite their increased vulnerability to gender based violence.  Last week, women of color held a post-election demonstration in NYC.  Linda Sasour of MyMuslimVote told the demonstrators “We don’t want to be the generation that says ‘never again,’ and then things happen on our watch. Let us be different.”

If you visit the March on Washington facebook page, why not suggest that leadership be turned over to women of color.   Otherwise we perpetuate an unnecessary and disrespectful divide within our gender.

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?          

LGBT Update - Moving Forward With Irony

Last week the federal appeals court for the 4th Circuit ruled that a Virginia student could sue his school board for prohibiting him from using the bathroom matching his gender identity.  The Court found that the prohibition imposed upon Gavin Grimm violated Title IX.  The ruling, in what is generally considered a conservative state, may have influence in other states that are resistant to endorsing bathroom use by gender identity.   Among the states struggling to prevent  gender identity from deciding which bathroom is used are: South Dakota, Illinois, Texas and Mississippi.   A pathway  for the issue to arrive at the US Supreme Court perhaps?

And let's not forget North Carolina where activists against the newly enacted law restricting the rights of LGBT individuals were arrested for refusing to leave a state building where a demonstration was taking place.  However, the arrests could have been a major breakthrough for the activists. Whether intended or not, the situation is not without its irony, if not humor.  Mara Keisling, director of the National Center for Transgender Equality, was among those arrested.  Not only did she describe the arresting officers as respectful,  Ms. Keisling reported that transgender men were put into cells housing males while transgender women were housed in the women's cell.  Also, at the jail, arrestees used bathrooms that matched gender identity. 

All to prove that you cannot make this stuff up.

 

Leveraging Advancement Post-Obergefell

by Jeremiah Ho

Editor's Note: Professor Ho completes his three part series with this discussion of post Obergefell Advancement

As an anti-stereotyping principle, the concepts of animus and dignity interwoven by Kennedy in Obergefell serves to contain the narrative of discrimination and marginalization based on sexual orientation.  Harnessed together by Kennedy for his fourth gay rights opinion at the Supreme Court, the animus-dignity connection in Obergefell arrives at the marriage equality ruling; but more importantly by tying the significance of the marriage right to human dignity, Kennedy is able to make salient that the right to marriage should be legally available to same-sex couples because otherwise it hinders the upholding of  important constitutional ideals.  Specifically in Obergefell Kennedy’s continuous use and reliance on the animus-dignity connection reveals an emphasis on the autonomy of sexual minorities.  One of the reasons exposed by the indignities from state marriage bans that concerned Kennedy was the abridging of private choices that reflect the personal autonomy available for self-determinism.  Ensuring that the fundamental right to marry was available to same-sex couples helped correct that curtailment.  As Kennedy notes in Obergefell, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.” 

Since Lawrence v. Texas, personal autonomy has been a common theme in gay rights cases.  In fact, in Obergefell v. Wymyslo, one of the lower federal district cases eventually consolidated into the appealat the Supreme Court, an emphasis on the personal autonomy in choices reflecting sexual identity was one reason why the Wymyslo court found sexual orientation appropriate for heightened scrutiny.  In its discussion of the immutability of sexual orientation, Wymyslo exhibited a preference for protecting personal autonomy when it adopted a standard for immutability that allowed it to find that sexual orientation was an immutable trait because it was “so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual—even if such a choice could be made.”  In other words, one has the autonomy to make choices that reflect sexual identity.  Obergefell’s two passing mentions of the immutability of sexual orientation seem to concur. 

             Going forth, one of the ultimate leveraging advancements from post-Windsor cases to Obergefell should be the increased recognition between personal autonomy and sexual identity.  Autonomy after all resides significantly in modern theories of democratic rights because individualism and self-invention has figured into the concept of humanity.  Relating all of this back to sexual orientation antidiscrimination, autonomy helps leverage advances within equality because inequality here is still concerned with the distribution of rights—even if the right involves something as intangible as self-determinism but is externalized by personal choice.  In that sense, the recent advances for autonomy in sexual orientation discrimination ought to be expanded for sexual identity in the LGBTQ movement’s next increment of advancement.

            For instance, placing sexual orientation firmly within a protected trait in Title VII could be the next step that constructively leverages developments from the marriage cases to antidiscrimination.  Although Title VII does not expressly protect sexual orientation, there is already some slippage within what “because of sex” means in claims that allows claimants to assert claims that could factually involve sexual orientation discrimination but also qualify as gender-stereotyping. The complex interplay in the characteristics of sex and gender have gradually carved out a line of cases, including Supreme Court precedent in Price Waterhouse v. Hopkins that have adjudicated Title VII cases in situations where gender-stereotyping was at play under the Act’s definition of discrimination “because of sex.” Couching this idea in Judith Butler terms, the performative or expressive aspects of gender have broader—and perhaps fuzzier—borders than biological sex-determinancy or inferences. Although other gender-stereotyping cases have articulated that the gender-stereotyping theory could not be utilized to “bootstrap protection for sexual orientation into Title VII,” sexual minorities have been able to lodge discrimination claims in situations where they were marginalized harmfully when the expressive aspects of their personal identity based on their sexual orientation belied conventional expectations about their biological sex; such results have varied. 

            This notion of marginalization or discrimination of individual gender expression based on dominant expectations of sex—harnassing aspects of essentialism to bolster one idea of what it means “to be a man or a woman” in order to eclipse other ideas—places tolls on personal autonomy.  In this way, there might be some viable overlap existing between these Title VII gender-stereotyping cases and marriage equality cases that may be helpful to future advances in sexual orientation antidiscrimination post-Obergefell.

 

 

From Sex to Gender: The Transformation of Title VII

Last week's EEOC decision against the Department of Transportation resulted in another barrier broken in the LGBT equality movement. The case involved an employee who was not considered for the position as a front line manager at the air traffic control tower at Miami International Airport.  The employee claimed discrimination based on being gay.  Like many LGBT individuals, the employee was subjected to harassment by a supervisor. The Complainant alleged that his supervisor, who was involved in the promotion selection process, "made several negative comments about the Complainant's sexual orientation."  In particular, the supervisor objected to any reference the employee made to the employee's partner.

 The EEOC took great care in explaining its reasoning for interpreting that the straight man's discrimination against the gay employee was properly categorized as sex discrimination.  Essentially, said the agency, the discrimination is based not upon the sex of the employee but the sex of the individual with whom the employee has a romantic relationship.

The agency had precedent for making explicit a form of discrimination that can  be read as encompassed in the intent of Title VII.  In Oncale v. Sundowner, also a Title VII lawsuit, Justice Scalia noted: "Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

While some may find the EEOC's reasoning an administrative stretch, the decision follows a logical argument based upon gender stereotyping.  When the Complainant chose a male partner, the supervisor was offended by his failure to conform to the gender stereotype of men choosing female partners. Human rights advocates, particularly those who advance LGBT rights, are relieved. This decision  is binding on employers who fall under EEOC jurisdiction.  Through this decision, the EEOC has elevated the status of discrimination against same sex individuals and save the movement from what could have been a long and expensive attempt to pass amending or at least clarifying legislation. 

LGBT barriers are falling quickly, and falling in a variety of legal settings.  The cumulative decisions from agencies, state and federal, as well as a series of state and federal executive orders,  added to existing case law, could  eliminate many legal barriers. By the time an LGBT suit specifically seeking suspect class status reaches the U.S. Supreme Court, there could be a plethora of  lower court and administrative decisions that provide support for the ultimate classification LGBT individuals seek.

Human Rights Language Gets a Foothold

Events of the past two weeks were amazing.  From Burwell to Obergefell to the President’s Charleston eulogy, the national energy was higher with each passing day. 

One of the lower keyed but significant changes that happened during the whirlwind of opinions and celebrations was the solidification of human rights language  in official government comments.  Two  branches of our government engaged language of spirituality and human rights principles.

In his Rose Garden comments following the release of the Burwell decision, President Obama noted:  “We finally declared that in America, health care is not a privilege for a few, but a right for all.”  For the moment, the country could focus on our obligation to provide all citizens with basic health care, shifting the perspective from health care as a privilege to a fundamental right.

As has been well reported here and elsewhere, Justice Kennedy continued his theme of dignity in same sex relationships when he referenced dignity as a foundation in recognizing the right of same sex partners to marry.  ‘The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm… They [the plaintiffs] ask for equal dignity in the eyes of the law. The Constitution grants them that right.” 

In his moving eulogy of Celementa Pickney,  President Obama alluded to the everyday affronts to their dignity that African Americans experience.  “That's what the black church means. Our beating heart. The place where our dignity as a people is inviolate.”  

What the President alluded to and what is unstated in Justice Kennedy’s opinion is an accounting of the daily pain suffered by members of excluded communities.  Microagressions are the “small” indignities that are suffered due to bias, implicit or explicit.

Thanks to the human rights references of recent weeks, the language is embedded in the American lexicon.  Language will not bring a sudden end to danger for gays or blacks, or create an immediate political shift toward providing for the poor.  But the language of dignity and community obligation lays the foundation for cultural change. 

Obergefell: An International Perspective

by Noah B. Novogrodsky, guest contributor

 Today’s Supreme Court decision in Obergefell v. Hodges made scant explicit reference to foreign or international law, save for a brief reference in Justice Kennedy’s majority opinion to the traditional gender-differentiated definition of marriage held “here and throughout the world.”  This is perhaps unsurprising because the Court had before it amicus briefs from opposing groups of foreign law experts (unlike Lawrence vs. Texas) and the international human rights treaties binding the United States are silent on the question of whether a state must issue marriage licenses to same-sex couples. 

 Nonetheless, the Court’s marriage equality ruling will interest comparative Constitutional scholars for at least three reasons.  First, the structure.  The majority’s holding that “The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time” rejects any semblance of strict originalism and appears to embrace an analysis of contemporary understandings that is closely akin to the Supreme Court of Canada’s ‘living tree’ doctrine.

 Second, the opinion embraces the notion of human dignity and makes it a central tenet of constitutional interpretation.  “As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

 Third, this decision, like Lawrence and Brown v. Board of Education, is likely to influence courts and legislatures around the world.  Obergefell now aligns the U.S. with a growing number of states that have embraced marriage equality.  Just as the U.S. was riveted by the recent referendum in Ireland, other nations with pending legal cases or legislative activity including Mexico, Colombia and Australia, will surely take note of what has transpired here.

 

 

A Most Remarkable Day - Obergefell v. Hodges

by Jeremiah Ho

They say that June is historically the month of weddings.  But since the 1970s and 1980s, it has also become the national month of pride fests and parades.  And thanks  to a few Supreme Court Justices, June is now the month for landmark same-sex marriage decisions.  Obergefell v. Hodges now makes it three within the last three years.

Today's favorable decision from the Supreme Court on marriage equality is historic to say the least.  Writing for the majority, Justice Kennedy completes another chapter in the Court's gay rights decisions and does so from his broad humanist perspective.  Although many believed that Chief Justice Roberts might have joined the majority's opinion to decide favorably for same-sex couples, the 5-4 decision, with Justice Kennedy at the pen again, gives continuity to addressing issues regarding human dignity in the context of gay rights.  The majority opinion fulfills the goals of state recognition of marriage for same-sex couples from two angles under the 14th Amendment of the U.S. Constitution--from both the amendment's Due Process and Equal Protection Clauses.  In this way, we see the Court being the most complete with the legal doctrine as far as recognizing the rights of same-sex couples on par with the rights of opposite-sex couples.  This doctrinal treatment is by the most thorough--and consequently, the most pro-gay--that we have seen from the Supreme Court and it builds on doctrinal developments from previous the cases, Lawrence v. Texas and U.S. v. Windsor (both written by Justice Kennedy).

In addition, the developments in the 14th Amendment today that allows for same-sex couples to marry or have their marriages recognized by state governments have been justified via the human dignity aspect of marriage discrimination.  We see this in the majority's description of marriage and how basic it is on a human level for couples (same-sex or not) to have their unions legally recognized if they choose to do so because such recognition not only affords legal rights and benefits but also affects how society treats those relationships.  This aspect is particularly highlight by the Court in describing same-sex couples with children and family.  So today's opinion is important because it reaffirms how rights and benefits could be deprived if same-sex couples cannot be given the same marital status that opposite-sex couples can receive, but also contextualizes that deprivation or discrimination from human dignity aspects as well.  By extension, it is one important way in which the Court is recognizing LGBTQ people as members of society and not second-class citizens.

The opinion does seem to have limitations in regards to whether sexual orientation is protected as a trait from discrimination on as high of a level as race or national origin.  Today's decision seems to be accomplishing a lot for same-sex couples nation-wide.  But it did not render the Equal Protection issue based on categorizing sexual orientation within the scrutiny standards.   Thus, there might be some constraints for the application of Obergefell in other legal issues that are forthcoming for LGBTQ rights advocates, such as anti-discrimination.  Still today's opinion is definitely one for the books. 

Editor's Note: This commentary was also published by UMass Dartmouth

The Criminalization of HIV

The trial of Michael Johnson in Missouri has been watched by those living with HIV and their advocates.  Johnson, 23, was charged with one count of recklessly infecting a person with HIV, one count of attempting to recklessly infecting a person with HIV and three counts of recklessly exposing partners to HIV.  It is impossible to separate racism and homophobia from other motivations in the prosecution.

According to a statement issued by Aids United,  Johnson is African American and his accusers are white.  Only one of the 12 jurors was African American.  The vast majority of jury pool members believed homosexuality is a sin.  Half the jury pool believed that homosexuality is a choice.

Even more troubling were prosecution witnesses who called witnesses who referred to HIV as terminal.  Thirty states have laws criminalizing exposure behavior.  "Most states have not updated their laws to reflect our modern understanding of the effectiveness of today’s antiretroviral therapies and prevention strategies like consistent condom usage and pre-exposure prophylaxis (PrEP)"  Some states have laws criminalizing spitting and scratching even though there is no evidence that either action is a method of infection.

Catherine Hansenns is Executive Director of The Center for HIV Law and Policy and has spoken extensively on the criminalization of HIV.  In response to the verdict, which could carry a decades long sentence, she said:  "Michael Johnson's conviction for exposing one of his sex partners to HIV and attempting to expose four others... reinforces public hysteria and misconceptions about HIV."  Hansenns points out that those with human papilloma virus are not held to this criminal standard even though the virus is known cause cancers. 

Dr. Wendy Armstrong of Emory University School of medicine noted that “HIV is no longer a death sentence. Like herpes, it is an incurable but treatable viral infection. With treatment, a person living with HIV will in all likelihood live a normal life span.”

Criminalization raises issues of autonomy.  Absent an abusive relationship, each partner is determined to make his or her own choices around sex, including safe sex.  American discomfort with sex as well as the refusal to accept science is implicated as well.  But more concerning is that criminalization is punitive without regard to consequences. Fewer individuals are likely to be tested.  Without knowledge, one cannot be criminally charged. 

 

 

Transgender Prisoners: Abuse, Lawsuits and "Freeze Frame" Policies

Orange Is The New Black's Sophia (played by LaVerne Cox)  has access to hormone therapy and is assigned to a woman's prison.   Reality for most transgender prisoners is quite different.   For prisoners who have not had male to female surgery, chances are that they will be assigned to a male prison where their risk of violent attacks is heightened. The National Center for Transgender Equality  reports that women in male prisons are thirteen times more likely to be sexually assaulted. A frequently cited California study reports that 59% of transgender incarcerated women report at least one assault.  The federal Bureau of Justice Statistics reports that 40% of transgender prisoners have been sexually assaulted.

Ashley Diamond is one such prisoner.  She had taken hormones for 17 years prior to entering prison in Georgia.  She was nonetheless assigned to a male prison where she was promptly denied all hormone therapy because the admitting prison officials failed to note her transgender status on her intake forms. Many prisons follow a "freeze frame" policy. That is, whatever treatment the transgender prisoner was receiving at the time of incarceration would determine the level of treatment to be provided during the term of incarceration.  Ashley Diamond, represented by the Southern Poverty Law Center, is suing the Georgia Prison system seeking appropriate treatment for herself as well as a change in prison policy. The Justice Department supports her lawsuit and has intervened.  The Obama administration, in settlement of a lawsuit, ended the freeze frame policy in federal prisons.  According to the New York Times article, the administration announced that "hormone therapy to be necessary medical care, saying Georgia, and other states, must treat “gender dysphoria” like any other health condition and provide 'individual assessment and care'." 

Ms.  Diamond has suffered sexual assaults and sexual harassment since her incarceration.  May her bravery in filing suit result in the restoration of proper treatment.

Appointment of The First U.S. Special Envoy on LGBT Individuals

By Jeremiah Ho 

 

This week the U.S. State Department announced the appointment of Randy Berry as the first-ever Special Envoy for the Human Rights of LGBT Persons to advocate globally for the human rights of lesbian, gay, bisexual and transgender people. The creation of this position has broader implications than merely the symbolic. On the one hand, it does align with the Obama administration's historically progressive stance on the rights of LGBT individuals. From Attorney General Eric Holder's 2011 letter to Senator John Boehner that suggested judicially protecting sexual orientation at the same levels as we protect race and gender to the repeal of Don't Ask Don't Tell, this administration has been part of a vast transformation toward recognizing LGBT rights. This is in comparison to more than 60 years ago when President Eisenhower signed an executive order discharging LGBT individuals from working in the federal government.

On the other hand, it is also a step that moves beyond recognizing issues regarding LGBT individuals domestically, and takes the advocacy of the rights of LGBT individuals into foreign policymaking, where serious human rights violations of LGBT peoples are a concern because they still exist in various countries. Having a special envoy would centralize efforts to dialogue with and push countries where homosexuality and consensual same-sex intimacy are not only illegal but the accompanying punishments are very severe (e.g., imprisonment and/or death)--even those countries who are already on good terms with the U.S. It reaffirms the signal that the Obama administration is interested in protecting and preserving the dignity of LGBT people but now broadens that goal by directing protection beyond our borders. And it certainly puts into effect the Obama administration's original intentions of incorporating LGBT rights into U.S. foreign policy.    

It's intriguing to note that Secretary Kerry made it pretty clear that his criteria for filling this appointment were, amongst other requirements, that the person would be a career Foreign Service officer from within the State Department and also a diplomat by training. To me, it seems that there would likely be more sophisticated work that the State Department intends to give to the envoy than had the envoy been someone that would have served a more symbolic function by nature. It will be interesting to see how Randy Berry, who is the envoy and who has diplomat experience, works to pressure countries that act indignantly and even violently against their LGBT citizens.  He might be able to better influence the State Department in its foreign aid decisions, and play a part in pressuring countries from enacting anti-gay legislation. There are also trade implications as well, as the envoy could work with various U.S. government agencies and American companies doing business abroad to see how American economic and development programs could better service the needs of marginalized LGBT individuals internationally.  And lastly, it would also be very interesting to see how the envoy could in turn represent the U.S. in support of foreign leaders and governments that are progressive about its LGBT citizens.  

 One of the basic focuses of human rights law is with the concept of preserving and furthering human dignity because this idea goes to the root of modern concepts of human identity and experience.  Dignity is a reflection on one's right to be a free citizen in society, to be able to express oneself freely, and have ideas that are unencumbered by unnecessarily oppressive forces.  Such rights should also be distributed equally to all members of society.  When a government interferes with that freedom toward a particular group for no such reason other than bias, then there could be a violation of human dignity. An example of this result in the LGBT experience is when state laws in the U.S. before 2003 used to criminalize same-sex consensual sex acts--essentially with the effect of branding sexual minorities as criminals if they engaged in same-sex consensual sex.  In 2003, the Supreme Court in Lawrence v. Texas eventually found such laws unconstitutional.  If you read Justice Kennedy's majority opinion in Lawrence, he connected the idea that laws that interfered with individual privacy between consenting same-sex partners in this way violated their human dignity, and he referenced international case law that found human rights violations in identical circumstances to draw the line between the issues of Lawrence v. Texas with human rights concerns.  We saw this connection between LGBT rights and human rights again in U.S. v. Windsor when DOMA was found to demean or stigmatize the relationships of same-sex couples over opposite-sex couples. We'll likely see this connection between LGBT rights and human rights furthered this summer when the next same-sex marriage case at the Supreme Court (DeBoer v. Snyder) is determined.

The appointment reminds us that there are issues beyond marriage equality that affect LGBT individuals, and that their rights and dignity are still left unprotected in disproportionate ways compared to the protections of other groups in this country.

Bringing a Human Rights Approach to Those Living with HIV

On February 28 and March 1 HIV attorneys, activists and researchers gathered in Atlanta for the biannual HIV conference sponsored by the ABA’s Aids Coordinating Committee.  With 55% of women living with HIV reporting that they experienced intimate partner abuse and with women experiencing a high rate of HIV infection, this year’s conference focused on Women and HIV. This theme has been the focus of committee Chair Dawn Siler Nixon’s tenure.   Since the last conference there has been more attention paid to girls and women living with HIV and their particular difficulties.  In September, 2013, the Interagency Federal Working Group issued its report addressing the intersection of HIV/AIDS, Violence against Women and Girls & Gender-Related Health Disparities.   Among the disparities reported is the “higher rate of women, compared to men, of reporting subsequent impacts of violence on their lives, including posttraumatic stress disorder (PTSD) symptoms, injury, need for healthcare, and need for housing services.   One of the recommendations of the Working Group is for for a coordinated response between those who serve domestic violence survivors and those providing healthcare and other services to women living with HIV. A particular need for housing exists among both HIV positive women and domestic violence survivors.

A second and comprehensive report by the Positive Women’s Network  issued in November, 2013.  Unspoken: Sexuality, Romance, and Reproductive Freedom for Women Living with HIV in the United States.  The report covers what for many is new territory.  For example, when addressing reproductive freedom, the discussion is not simply on lack of availability or political underpinnings of choice, the report addresses sexual and emotional satisfaction in relationships.  In addition, the report discusses sexual and reproductive health for women living with HIV, the current epidemic among women as well as research results and the policy and legal environment for women living with HIV.  The report is rich in information and background research. 

One link between the conference and the PWN report is an emphasis on the  human rights of those living with HIV.  As the Positive Women’s report notes, US laws and policy “create a hostile environment for women living with HIV and have focused on preventing transmission at the expense of abridging the rights of women living with HIV to fulfill their sexual and reproductive rights.” In discussing these rights the report notes the relevance of the International Covenant on Civil and Political Rights (ICCPR),   the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of Persons with Disabilities (CRPD).  I suggest that the foundational Universal Declaration of Human Rights  be considered and used as a tool for advancing the lives of women living with HIV and  with the co-occurrence of intimate partner abuse.  The goal of the human rights approach in addressing HIV and Domestic Violence is to restore dignity to those living with HIV.  Much more will be written on this topic in future blogs as the implementation of a Human Rights approach when working with individuals living with HIV is rich and varied, as documented in the Positive Women’s Network report.

 

Maine Court Supports Transgendered Student under its Human Rights Act

In a case of first impression under the state’s Human Rights Act, the Maine Supreme Judicial Court rendered an opinion in favor of a transgendered girl who had been denied permission to use the girls’ bathroom at her elementary and middle schools.  Brought by the girl’s parents on behalf of their daughter, the case is known as John Doe etal v. Regional School District 26.  The case was the first in which the justices considered several issues involving human rights and education. In fact it was the first case to be decided under the portions of the MHRA that prohibit discrimination based on sexual orientation in public accommodations, educational opportunities, employment, housing, and other areas.    Discrimination based on sexual orientation is strictly prohibited under MHRA.  

The elementary school initially supported of Susan, the transgendered student, and had developed a plan that would encourage Susan’s then fourth grade classmates in accepting her transition.  The students had been encouraged to call Susan by her female name and agreed that Susan should use girls’ bathroom.  The school’s support changed when in Susan’s fifth grade year a young boy twice followed her into the girls’ bathroom claiming that he had a right to use the facility because Susan could.  The boy had been instructed to enter the girl’s bathroom by his grandfather who was also his guardian.  The grandfather was opposed to the school’s decision to support Susan’s use of the girls’ bathroom.  After the second incident the school instructed Susan to use a single stall staff bathroom.

As the court noted, the school developed a plan to support Susan in her gender identity not based just on Susan’s preference but after reviewing professional and determining that Susan’s parents supported her.  It appears that the school withdrew support in order to end controversy, thereby missing an opportunity to inform the male student why his demand could not be supported.   The school could have provided relief to the student in discussing the situation without judgment.  The male student might have been relieved and might have found school a safe place to sort out what his beliefs and behavioral preferences are. In the end all of the children suffered.  Susan and her family moved to a different part of Maine after her middle school also denied her access to the girls’ bathroom.  Susan’s classmates, who had accepted the transition and supported Susan, observed the school administration deviate from its rational and supportive behavior after what could be perceived as bullying.  And one cannot help but feel sad for the young man who was instructed by his grandfather to engage in an activity that resulted in controversy.  I hope there is at least one adult in his life who is giving him the space to be himself, which is what Susan was looking for.

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Maine Supreme Court rules transgender student cannot be denied bathroom access