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    Ann Rostow: It’s Bad, But Not That Bad, I Guess

    By Ann Rostow–

    It’s Bad, But Not That Bad, I Guess

    Let’s all take a breath before taking to the streets over last spring’s draft memo on sex discrimination from the Department of Health and Human Services. Discovered by The New York Times, it was reported in an October 21 article under the headline: “Transgender Could Be Defined Out of Existence By Trump.” 

    That’s just wrong. Much as I love the succeeding New York Times, that’s not just wrong, but that’s ridiculous, and, I might add, needlessly provocative.

    As loyal readers might recall from our frequent colloquies on the subject of sex discrimination in federal law, there has long been a hard push from our side to convince courts that existing laws against sex discrimination (think Title VII on the job or Title IX in school) should also inherently cover transgender and gay bias.

    Many courts agree with us. 

    Obama agreed with us, as did all of his cabinet offices and as did all of the government agencies that for up to eight years were staffed with like-minded allies.

    Trump disagreed. Or actually, since the President does not have opinions on complex issues, Trump’s conservative minions disagreed, and they have busily tried to reverse or rewrite the Obama-era policies. This latest memo is not the first of its kind. The Justice Department issued a similarly retrograde set of policies last year, including a definition of sex discrimination that does not cover anyone in our acronym. It’s not fake news. It’s old news. No longer does the Education Department’s office of civil rights go to bat for trans kids in schools. No longer does the Justice Department write legal briefs on our behalf. Instead, these groups and the firebrands that pop through the whack-a-mole board that is this administration, have gone in the other direction. In fact, I’m a little surprised that the damage they have inflicted to date has not been worse.

    This memo seemed triggered by antigay provocateur Roger Severino, who once accused the Obama administration of attempting “to impose a new definition of what it means to be a man or a woman on the entire nation.” Severino is the head of the Office of Civil Rights at the Department of Health and Human Services, which means we rely on this bozo to defend us against discrimination in health care, including, let’s say, coverage of medical care related to gender transition. 

    Just last month, you may recall, a federal judge ordered the state of Wisconsin to cover medical bills for two transgender public employees at the University of Wisconsin. U.S. District Court Judge William Conley based his decision on the Equal Protection Clause of the Constitution, as well as Title VII workplace protections and civil rights language in the Affordable Care Act. I’m not sure what Severino and company can do about the Constitution, but they can certainly argue that neither Title VII nor Obamacare should cover transgender claims, since these do not fit the definition of “sex discrimination,” nor were they articulated when these laws were debated in Congress. Judge Conley and many others would not agree, but I’m sure that more conservative judges might, including the dozens of federal judges approved by Trump and McConnell over the last year or so (53 district court judges, 29 appellate court judges and two High Court justices).

    Keep in mind, however, that just as Obama’s policies weren’t enough on their own to cement our civil rights victories into permanent law, nor is the rhetoric of the Trumpians enough to “define us out of existence” or even out of federal protections. Remember, we are not technically covered by federal law in the first place. We are trying to win that coverage through the courts, ergo the elevation of Brett Kavanaugh and the aforementioned hard right jurists to the federal bench is far more dangerous to our civil rights than an isolated draft from some nasty piece of work at the Department of Health and Human Services.

    I don’t mean to minimize the dark shadows cast by these evil bureaucrats. This memo will be felt even more sharply if it is formalized and then more so if joined by other cabinet departments. It’s just that we have so much to worry about, first as Americans and second as GLBTers, that we don’t have much time for traveling the side roads.

    Life in These United States

    Are you a patriot? 

    I rolled my eyes at that idea through most of my 20s, and later developed a far more nuanced view. But I still recoiled at the whole “America, love it or leave it” mentality.

    Then I lived in France for seven years, and after a while, found myself bragging about the U.S.: the foundational law that protects you from being asked for papers out of the blue by men in uniform; the bipartisanship that leads vanquished political foes to congratulate the victors on election night; the lack of overt racism and the disapproval of the same that means people do not tolerate racist jokes and statements; and the respect for women. (Don’t laugh. This all seemed true at the time.)

    France had food, wine and beauty. But you could be stopped for no reason. Its politics were insane. Black people were looked upon as misplaced immigrants rather than as fellow French citizens. Women were demeaned. 

    I came to believe as well in American exceptionalism, the notion that our nation stood out from others through its identity as an idea rather than a place. Yes, we had faults, but we struggled to fix them and heal. And at our core, we were united.

    Now, I find myself as discouraged as I have ever been as a citizen. The concept of an American “nationalist,” personified by Trump and glommed onto by people on the right (including the insufferable David Brooks), is antithetical to the country I believe in; the country that is an idea, not a place. Not a trading post. Not a gated community, but a welcoming community of ideals and principles. Oddly, I think I’m more patriotic than ever, now that it might be too late.

    Earlier, I made a note to myself to make fun of the “ScottiVest,” a heavily advertised garment that allows you to walk down the street with a sizable collection of electronic devices in different compartments. In typical infomercial style, the commercial shows us the trials and tribulations of a regularly dressed person, who deals with a chaotic scramble as she tries to juggle her phone and tablet and whatever else she decided to stuff in her tiny useless jacket pockets.

    It’s like the untucked shirt guy. Who thinks of this stuff? I guess they are all multimillionaires by now, so we shouldn’t be laughing. But you know what? We’re not laughing. Because the gun-toting and bomb-making nut cases who have crawled out from under their rocks have taken laughter out of the picture for us. I almost crossed off ScottiVest from my list of topics for this reason, when I thought: “No. I will not let our national descent into unchecked hatred stop me from shining a spotlight on these ludicrous entrepreneurs.” 

    I think I did the right thing. 

    Masterpiece Redux

    So, guess who is trying to work her way to the Supreme Court? It’s none other than Melissa, from Sweetcakes by Melissa, and her husband Aaron Klein. These were two of the earliest antigay bakers, rejecting a couple of Oregon women back in January of 2013, nearly six years ago.

    Melissa sucked a good deal of publicity out of the traumatic persecution and fine levied by the state. She and Aaron managed at one point to publish the names and addresses of the two women, who were promptly inundated with hate mail. In the end, the bakers were ordered to pay $135,000 in fees and compensation for emotional distress, and as is their wont, they appealed up to the Oregon Supreme Court, which declined to hear the case. 

    Now they are asking the High Court to review the damage award, arguing among other things, that they did not discriminate based on sexual orientation since they had made a cake for these women previously (for a heterosexual wedding). The Kleins also make the absurd claim that a wedding cake is a piece of art that carries the baker/artist’s speech into the event itself, forcing her to violate her cherished religious principles in the process. 

    Also, according to New York Law professor Arthur Leonard, the Kleins would like the Court to reconsider their 1990 precedent Employment Division v Smith, the famous case of the guys who illegally smoked peyote for their religious rites, lost their jobs and were not allowed unemployment benefits. Writing for a somewhat conflicted majority, Justice Scalia ruled that you can’t complain if a general law inadvertently conflicts with religious expression, and that the “unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” 

    Even though three liberals were in the minority, including Thurgood Marshall, and even though the ACLU was appalled, it certainly has always seemed to me that this logic makes perfect sense. You can find a religious excuse for just about any premise. Who’s to say that your Sunday ritual at the Church of Cocaine and Champagne isn’t as worthy as my local Methodist services? 

    These days, the religious actors are the far-right antigay Christians, not the courageous minority native Americans. All the more reason to support the premise that generally applicable laws that were not targeted against any particular religion may not be sidestepped with a faith-based excuse. Particularly not civil rights laws, which, in any event, serve a compelling government interest that will always win out against an individual claim. 

    The fact that Melissa is aiming for High Court review also emphasizes the uselessness of the Masterpiece Cakeshop opinion, issued last year in the case of Colorado baker Jack Phillips. Decided on a technicality in favor of Phillips, Justice Kennedy went on to say that laws like Colorado’s gay-inclusive anti-discrimination statute could not be ignored at will and that religious business owners might be curtailed by generally applicable regulations. This element of the decision seems to have been drowned out by the tone of the Trump administration and diminished by Kennedy’s own lack of emphasis. It’s no wonder that people like Melissa Klein and (maybe) florist Barronelle Stutzman feel free to present the identical issue to the newly conservative Court. 

    Send in the Clowns

    Oh, there are a half dozen other GLBT cases waiting for possible Supreme Court review, and I feel sure that I have already mentioned them at one point or another (Zarda!) Also, we continue to litigate the several challenges to Trump’s attempt to ban transgender men and women from serving in the military. So far, I think we have four federal lawsuits, of which several have been popping back and forth to their respective appellate courts for the resolution or this or that motion. I know we have won everything so far, but I don’t know where each of these cases stands.

    I was going to check on some of our transgender military cases just now when I was distracted by a listicle claiming to warn me about 45 famous tourist attractions that weren’t worth the effort. Of course, I had to look at them all, including the French Quarter of New Orleans, the Palace of Versailles, the Taj Mahal, Red Square, the White House, Mt. Denali and Christ statue on that mountain over Rio. Really? Old town Prague is on this “don’t bother” list, as is Sacre Coeur and Vatican City. How jaded are these writers? Most of their complaints involved crowds and tackiness.

    There’s plenty see at the Vatican, they admit, “but frankly, it’s depressing to experience this much wealth in one place. Everything not nailed down seems to have been plated with gold, and there are enough tapestries and velvets and jewels to make you think you’ve wandered into Liberace’s closet.”

    At the White House, “the tour itself is a bit of a snooze, unless you happen to snag a ticket during the winter holiday season when the decorations are pretty enough.” 

    As if that wasn’t bad enough, I then skimmed an article at New York Magazine online headlined: “12 Young People on Why They Probably Won’t Vote.” I recommend reading it, walking over to the wall and banging your head against it several times in succession.