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    Ann Rostow: Kids Say the Darnedest Things!

    By Ann Rostow–

    Kids Say the Darnedest Things!

    Here’s a situation that reminds me why I enjoy legal news. On the surface, it’s a made for TV movie, a little girl in South Carolina who has a GLBT grandfather writes a short essay about trans rights for a school project. The mean teacher won’t include it in the booklet, and the girl’s mother sues in federal court on First Amendment and other grounds.

    What’s not to like?

    Earlier this month, the U.S. Court of Appeals for the Fourth Circuit ruled in favor of the school censors in a decision that, frankly, makes sense to me. Much as I find this little girl’s story charming and touching, I also think public schools must have the ability to control the content of their sponsored communications. After years of reporting on school issues, I can tell you that, for every sweet GLBT-supportive ten-year-old, there is an adorable antigay eight-year-old out there trying to spread The Word on campus. 

    Public schools, as we have seen this past year, act “in local parentis,” legally acting as parents, charged with navigating a world where children must follow school rules and teachers must care for them all. This school decided that age ten was too young to discuss transgender issues, even in a short paragraph. Even if we might disagree, it’s not a crazy decision and the school did not seem anti-gay. Presumably, the same authorities would reject an essay about how transgender people are horrible from the ten-year-old at the next desk with a bigoted grandmother. And, keep in mind, no one told the girl not to have these opinions; she was only prohibited from including them in the school-published essay collection for mass distribution under the school’s authority. 

    No one said her views were wrong, and indeed, she was allowed to amend her essay to protest bullying in general rather than anti-trans discrimination. The case became complicated, but, in the end, what would you have the court do? And if you think they should have overruled the school district, again I ask you: what about the pre-teen kid who wants to write about how God says marriage is between a man and women and put his or her essay in the school handout? 

    Non sequitur, but speaking of South Carolina, did you read that they’re thinking about bringing back firing squads for capital punishment? What’s next? A guillotine? 

    Sleeping Cats

    There are a couple of things I’d like to say before we really start this week. How on Earth could that repellent Borat movie win several Golden Globes? It was not just ridiculous; it was gratuitously gross. And it wasn’t even funny.

    Second, I just saw a commercial for “Lemonade Health,” some online service that delivers medical services. Really? Would you trust your health decisions to a company that deliberately selects a “fun” fruit name? Would you delegate your legal problem to “Blueberry Law?” Would you spend serious tuition to attend “Pineapple University?” I don’t think so!

    Also, before I launched into this column, I spent 30 minutes watching videos of cats sleeping in awkward positions. I wondered why when it was over. It was one of those presentations where I had to repeatedly hit “next,” and I think I thought there were only a few more. But they continued ad infinitum. In the end, I had to wrench myself away. I’m not addicted to online media, but sometimes it scares me to see huge chunks of time simply vanish after a mindless visit to cyberspace. And what do I have to show for it? At least when I spend time on a news site or reading an article, I might learn something. Honestly, it was more like 45 minutes. Not just watching cats. Watching cats sleeping. 

    Let the Games Continue

    So, usually around this time I make a point to say that anti-GLBT state legislative efforts are a lot of sound and fury, signifying nothing. Year after year, lawmakers propose absurd bills, gay rights groups send out crazed fundraising emails, and nothing happens. One or two bad bills get through, and are usually brought before a federal court before they can do much damage.

    This year, it feels as if we’ll see many more anti-GLBT proposals actually become law, particularly two types of anti-trans laws: laws against playing sports for the team with which you identify, and laws against drugs that temporarily block puberty.

    The other day, Mississippi’s governor signed the first anti-trans law of the season, a measure that bans trans athletes from competing according to their gender identity in public education. As I understand it, transgender college athletes are already required to complete a certain amount of hormone therapy before hitting the courts with their cis-teammates, but increasingly, states like Mississippi are trying to keep them out of sports altogether unless they revert to their birth sex. Much like those who push bathroom bills without considering the impact of forcing transmen into the ladies’ lounge, few people seem to recognize that making transmen and boys play against cisgender females (as I assume these bills must do) will upset the competitive spirit of girls’ games far more than allowing trans girls and women on the field.

    You might remember Mack Beggs, a trans boy who was forced by Texas high school policies to wrestle with the girls’ team after he transitioned in his last two years. Beggs won every match during this period of time, amid nasty articles and jeers from the audiences. He recently told the press that many people who saw photographs of him wrestling at the time lacked such an understanding of transgender kids that they thought he himself was a heavily muscled transgender female, unfairly being allowed to overrun the sport. (He now wrestles on the men’s team in college.)  

    Last summer, Idaho passed one of these sports bans, which was put on hold by a federal court. And in Utah, where a bill is stalled in the state senate, the governor, Republican Spencer Cox, has said he will not sign it if it reaches his desk. 

    “These kids are … they’re just trying to stay alive,” Cox said at a recent news conference. “I just think there’s a better way. And I hope there will be enough grace in our state to find a better solution. I don’t understand all of this. I don’t. But I’m trying to understand more. I’m trying to listen and learn and, again, trying to help kids figure out who they are and keep them alive.”

    Keep in mind as well that Republicans tried to sneak a trans sports ban into the coronavirus rescue package during the marathon debates on amendments earlier this month. Although it failed to win the required 60 votes, Joe Manchin voted yes to it, as did Susan Collins, who has been our ally in other contexts. On the positive side, Lisa Murkowski voted against the measure.

    Low T?

    Interestingly, I just had a conversation with my brilliant stepdaughter, who has a doctorate in sports economics, and who immediately disturbed my complacent happiness at having finished the relatively simplistic segment above by reminding me that the entire subject of sport and gender is a fraught pile of difficult complexities. Thanks for that, Sarah. I was going to ignore my vague feelings of “not doing enough” and move on to another subject when I stumbled over news that 800-meter gold medal track star Caster Semenya has just filed another legal appeal over gender, this time with the European Court of Human Rights. 

    Semenya is intersex, or a DSD athlete (athletes with differences in sex development) and has higher than average levels of testosterone. According to ground rules seemingly invented just for her, she is now required to take drugs to reduce her testosterone levels in order to compete in events in the 400-meter range and up. 

    And here’s the dilemma. Let’s say we all agree that it’s not discriminatory to place men and women in separate categories for sports. Given that, let’s say it also makes sense to ask transgender athletes to wait until their hormone levels at least begin to match their gender identity before competing against their gender peers. So, why shouldn’t the authorities ask someone like Semenya to put a damper on her testosterone levels before she takes the track?

    There are several overlapping issues here. As Sarah pointed out the obvious, Semenya is not transgender; she is a woman, has always been so, and has never questioned her gender. Unlike a transitioning trans athlete who is deliberately taking hormones to begin with, Semenya is being asked to physically mess around with her own body against her will.

    Further, the fact that she has extra testosterone does not automatically translate into an advantage. It’s not clear, for example, that her body uses testosterone the same way it would if she were biologically male. Plus, there are a range of non-genetic conditions that increase testosterone in women that are not subject to the rules that are being imposed on Semenya. As one commentator put it, she is being treated as if she is a man in a woman’s body, while other females are given a pass. 

    Finally, testosterone levels are just one of many sex features that contribute to advantage in sports. Semenya’s times are about 2 percent higher than most, while men generally operate at a 12 percent advantage. Indeed, there are numerous physical distinctions that might make a person stand out as an athlete, such as extra lung capacity, or a natural increase in red blood cells. No one is penalized for this sort of thing just as the NBA is not going to put a height limit on basketball players. Leveling the playing field does not put every athlete on an equal footing, nor should it.

    Bye, Felicia!

    In unrelated animal news, I just read about animal sanctuaries where you can relieve your pandemic stress with a “cow cuddle.” According to The Washington Post, “cow cuddling is also popular in the Netherlands, where it is called “koe knuffelen.” Indeed, the phenomenon is not a one-off invention by some farmer with some particularly affectionate cows. It’s an actual thing, much like the goats we wrote about that you can arrange to join your Zoom meeting. The practice involves friendly cows who enjoy people and will put their head in your lap and look at you with their big brown eyes as you wrap your arms around their thick necks. It sounds like fun, although it might put you off cheeseburgers for a week or so.

    And finally, it’s with some satisfaction we learn that Biden has fired EEOC general counsel Sharon Gustafson, a religious freedom activist of the Trump years who was technically appointed to a four-year term in 2019. For some reason, Gustafson seemed to believe that she was entitled to remain in place, overseeing the legal arm of the agency that litigates and sets policy on behalf of victims of workplace bias. According to The Washington Post (which seems to have replaced The New York Times this week as our favorite source), Gustafson was asked to resign but refused, forcing Biden’s hand.  

    In an email to staff on her last day, March 5, Gustafson conflated her dismissal with that of a typical Title VII plaintiff. “I have for the first time, after 50 years of employment, had my first opportunity to experience what my terminated clients experience,” she wrote. “Whatever else it is, it’s good to have this firsthand perspective.”

    Really? In her relatively short term, Gustafson initiated a “Religious Discrimination Work Group” that, in turn, organized a series of “Listening Sessions,” which included a mix of religious actors. She then posted a final report on this subject to a government website that was promptly removed when Biden and company took office. Last month, she posted an 8-minute podcast on the subject that was also removed, in her view as “a suppression of our work promoting religious freedom.” 

    The term “religious freedom,” once a clarion call to acceptance of all faiths, has devolved into a carryall for those who are upset that they can no longer “freely” discriminate on the basis of sexual orientation and gender identity in the workplace and the public square. So, yes, suppress that all you want, Joe. Meanwhile, I think Sharon needs a koe knuffelen.  

    arostow@aol.com

    Published on March 11, 2021