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    Ann Rostow: Slouching Towards Sacramento

    1-Ann-RostowBy Ann Rostow

    Slouching Towards Sacramento

    I don’t imagine any of us are particularly sympathetic to “faith-based” hostility towards gays and lesbians, right? That said, you can somewhat understand why an older generation of traditional Christians came to the conclusion that homosexuality was against church law. After all, they grew up in a world where everyone thought gays and lesbians were deviants. Second, they grew up in a church that restricted all things sexual to the marriage bed. Third, they bolstered these ideas by cherry picking bits and pieces of scripture that backed them up.

    That explains a religious opposition to gay people, but why are transgender people, by their very existence, a threat to Christian faith? They are not defined by a naughty sexual act. They are not associated with criminal or unethical behavior. There is no mention of transgender men and women in the Bible (that I know of). So, on what basis are Christian schools and colleges suddenly requesting “faith-based” exemptions to Title IX’s effective ban on trans discrimination?

    They don’t have a religious basis at all. Instead, they are lumping transgender rights in with gay rights and civil rights and all the progressive causes that they oppose based on their conservative political principles. That’s fine. But while there is indeed a loophole to allow religious exemptions to Title IX, there is no exemption for right wing ideology. You can’t simply opt out of Title IX because transgender people are strange and you don’t like them. You have to have a religious reason for your request. Title IX must violate your spiritual convictions, not your politics.

    My question is why religious loopholes in general are opened wide, allowing anyone to waltz through without being required to make a faith-based case for themselves. This is true not only for loopholes and exemptions, but also for constitutional claims of religious freedom. Just read, for example, Justice Alito’s opinion in the Hobby Lobby case, where he explains that courts are not in a position to judge whether or not a religious feeling is legitimate, or whether or not it conforms to the general tenets of one faith or another. It’s enough that a First Amendment plaintiff presents himself as a religious actor.

    Don’t you find this infuriating?

    I do. I support religious freedom and religious exemptions in theory, because religious freedom is a core American value and making allowances for deep spiritual beliefs is the decent thing to do. But when hatred parades as faith and gets away with it, that undermines the entire system.

    The California legislature has been working on a couple of bills that address the issue of these Title IX exemptions. One bill (now dead) would have barred these oh so religious schools from receiving certain state funds. Another will require that schools that go out of their way to obtain the right to discriminate must make their status public. In other words, such schools should not be able to hide their anti-trans positions.

    Sound innocuous? Here’s the reaction of the rightwing “Advocates for Faith and Freedom,” as reported in the Christian Times:

    “The punitive laws would undermine federal protections that have long exempted religious colleges from adopting anti-discrimination laws that violate the tenets of their faith. The consequences of these bills are so dire that one pro-family watchdog group has warned that their passage would usher in Armageddon for those seeking higher education from a biblical perspective.”

    Armageddon? Really?

    Gender Rules

    Oh, can I just point out that eleven people were just killed by a car bomb in the middle of Istanbul and none of the cable news channels have said one word about it? This is not some scary place in Syria. It’s a major tourist destination. Yet you know that if one nutcase in downtown Des Moines were to fire off a round or two while yelling, “Allah Akbar!” we’d be in for a ten-hour barrage of non-stop media hysteria.

    Moving on, I imagine you noticed that a dozen states filed suit against the Obama administration a week or so ago, accusing the government of wrongly threatening their access to federal education funds based on the official interpretation of Title IX. Since no federal funds have actually been withheld, there’s an argument to be made that this case is premature and that these states lack standing to sue.

    Some of you may remember this argument was used against us when we were challenging various state’s sodomy laws. Well, our opponents said, unless you’ve been charged with violating the sodomy law, you’re not in a position to sue. After all, our legal system requires that lawsuits be based on actual cases, not legal theories. In our case, we were able to convince courts that statutes effectively criminalizing being gay are damaging simply by being on the books, even when the threat of enforcement is low. But will the plaintiff states in this new lawsuit be able to make a similar claim? After all, the Obama administration sent around a letter of “significant guidance,” warning that schools that discriminate against transgender students run the risk of losing their federal funds. Could that threat alone meet the threshold for litigation? Maybe. I don’t know.

    What seems clear is that one or more of the six or seven lawsuits that now contest the definition of “sex” in federal civil rights statutes will eventually coalesce into a clean case for High Court review. The Supreme Court has already said that workplace discrimination “because of…sex” in the Civil Rights Law of 1964 implicitly includes discrimination based on sexual stereotyping. Firing or harassing a masculine woman or an effeminate man based on her or his gender presentation is illegal, period. Does that mean that transgender bias is illegal as well? What about gay bias? What about bias directed at a lipstick lesbian, or a gay man who appears classically straight?

    Piggy backing on these questions is the fact that charges of sex discrimination currently require courts to examine cases with extra legal scrutiny. As you know, our legal eagles have long called for courts to treat GLBT bias with a high level of legal review as well, a goal that remains elusive. Although some appellate courts have agreed that gays should be treated as a protected minority class, the High Court has sidestepped the question.

    But if sexual orientation and gender identity were to be subsumed in the class of “sex,” we would automatically become a protected category throughout our nation’s legal system. The bottom line is that we are headed towards the Supreme Court once more, slowly but surely, and once again we have everything on the line.

    Hodgepodge Ahead

    I read the other day that the word “moist” is considered the most disgusting word in the English language. Interesting, n’est-ce pas? I’ve never had anything against the word “moist,” and I also wonder how such a generalized distaste for specific vocabulary can be identified, let alone quantified and ranked. But once I thought about it, I detected something misogynistic in this alleged mass disgust. Men aren’t “moist.” There’s something intrinsically female in the adjective and, by extension, something in its popular rejection that harkens back to a fear of women’s sexuality, and women’s physical energies in general. I won’t belabor the point.

    And here’s a nice item. Last fall, we reported on the story of two lesbians from L.A. who were on vacation in Hawaii. They were holding hands in a Honolulu convenience store and kissed one or two times, drawing outrage from a cop who told them to “take it somewhere else.” Officer Bobby Harrison, who was also shopping in the store, was not satisfied with the response to his gratuitous “order,” and he arrested the women for “felony assault on an officer.”

    Courtney Wilson and Taylor Guerrero spent three days—count them, three days—in jail, before the charges were investigated and thrown out. They sued, and the city has now settled for $80,000. Wilson returned to L.A. during the process, but Guerrero wound up staying in Honolulu and liked it. The two are no longer a couple, but remain friends and will split the money after their lawyers get their cut. As part of the settlement, Officer Harrison was dropped from the suit.

    Speaking of Hawaii, I just read the strangest article about a 37-year-old woman who deliberately drove her car over a steep cliff in Maui, surviving the crash but killing her twin sister who was in the passenger seat. Witnesses saw the two of them arguing, with the soon-to-be-dead twin trying to grab her sister’s hair. Then, the car took a sharp left and accelerated over the edge onto the rocks below. The surviving sister was rescued and sent to the hospital, where she recovered within a week or so. She tried to leave, but police stopped her and charged her with murder.

    That story is dramatic enough but what caught my eye was the fact that the sisters, Alison and Ann Dadow, changed their names to Alexandra and Anastasia Duval, for reasons unknown. Then they started a yoga business, went bankrupt and moved to Hawaii, where they were both arrested at some point for public intoxication.

    I know it’s not gay related. But why change their names? Why select such absurdly pretentious alternatives? Why move to Hawaii? And what could possibly have led Alison/Alexandra to drive over that cliff? Was she drunk? Why were they fighting?

    And what went through her mind when she woke up in that hospital?

    Gay Man Wins Forty-Year Fight For Recognition

    Finally, here’s a story that represents a remarkable set of bookends on each end of our fight for marriage equality. Those of you who followed the marriage movement in detail may remember that a Boulder clerk issued a handful of marriage licenses to same-sex couples back in 1975. One of those licenses went to Richard Adams and his Australian husband-to-be, Anthony Sullivan. At a time when homosexuals were considered mentally ill and not allowed to enter the U.S., Adams and Sullivan had been driving from their home in L.A. to Mexico to renew Sullivan’s visa every 90 days. Now, they thought, Adams could apply for a spousal green card.

    The reply from the Immigration and Naturalization office was terse: “You have failed to establish that a bona fide marital relationship can exist between two faggots.”

    In a second letter, the Justice Department noted that “neither party can perform the female functions in the marriage.”

    The publicity led Adams to lose his job, while Sullivan’s mother in Australia disinherited her son and never spoke to him again.

    The men appealed the denial of marriage recognition, losing in the federal courts and unable to convince the Supreme Court to hear the case. They then filed another immigration appeal, ending up arguing before the U.S. Court of Appeals for the Ninth Circuit. In an extraordinary irony, their case was dismissed by none other than future justice Anthony Kennedy, who found that Adams would suffer no great hardship if Sullivan were to be deported, because they were not related.

    Faced with exile, both men left Los Angeles, spending a period of time wandering abroad before deciding to take their chances and return to L.A. in secret. For many years Sullivan kept a low profile, living illegally while progress in gay civil rights gradually improved his prospects. In late 2012, Adams and Sullivan prepared to re-marry in Washington State, but Adams died of cancer before they could make the trip.

    In June of 2014, Sullivan wrote to President Obama, asking him to apologize for the ugly language issued by the U.S. government four decades earlier. Obama’s Director of U.S. Citizenship and Immigration Services wrote back, apologizing and offering sympathy for Sullivan’s loss. On April 21 of this year, the government issued a green card to Anthony Sullivan, making him a permanent resident of the United States and recognizing his 1975 marriage to Richard Adams, 41 years after the fact. This story was reported by Troy Masters in the latest issue of The Pride, and it’s worth reading the entire touching article. (http://thepridela.com/2016/06/united-states-government-says-gay-couples-1975-marriage-is-valid/)

    arostow@aol.com