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    Ann Rostow: Thanks for Nothing, Justice Breyer!

    1-Ann-RostowBy Ann Rostow

    Thanks for Nothing, Justice Breyer!

    As the last issue went to press came the extraordinary news that the U.S. Supreme Court effectively reversed the Fourth Circuit’s ruling in favor of a transgender high school student—albeit temporarily. We’ve talked a lot about this significant case, so I’m sure you recall that the student, Gavin Grimm, had successfully fought for the right to use the boy’s restroom and locker room at his high school in Gloucester, Virginia. The decision in his favor by the U. S. Court of Appeals for the Fourth Circuit was appealed to the full appellate court, which refused to reconsider the case.

    Subsequently, the school district appealed to the U.S. Supreme Court, and asked the Fourth Circuit to hold off its ruling by issuing an injunction pending this appeal. Again the Fourth Circuit refused (yay!) and the school district scurried off to ask the High Court for an injunction while the justices think about whether or not to take the appeal.

    And the High Court said yes!

    Did Antonin Scalia rise from the grave, you ask? He might as well have, because Justice Breyer decided to side with the four conservatives as a matter of “courtesy,” to keep the status quo in place while the underlying issue was examined.

    I simply can’t tell you how annoying this is.

    First, the “status quo,” if you will, was that Gavin had used the boys’ facilities without any problem until a parent complained and the school banned him from the john and the locker room. Gavin sued, won, and the school policy was deemed to violate Title IX, the federal law that guarantees gender equity in public schools. The status quo was restored.

    But by putting a hold on the Fourth Circuit’s decision, the school is once again given the right to bar Gavin from using the male bathrooms. Justice Breyer’s decision implies that he thinks this is the default situation, and that while Gavin’s use of the boy’s room might be required by law, it still presents a departure from the norm. Unless you want to force transgender boys to use the girl’s rooms, the opposite is true.

    Second, an injunction against a ruling is issued when harm will befall the other side if the ruling is enforced. As noted above, Gavin used the boy’s rooms without incident up until the time that the parent complained. I’m not sure how long that was, but his continued use is innocuous.

    Third, an injunction is issued when the party that requests it is likely to win on the merits of the underlying case. Here, the opposite is true, as even Breyer basically admits when he characterizes his vote as a “courtesy” to his colleagues on the right. I’m not saying that the case is a slam dunk in favor of transrights before the Supreme Court. But if any side is “likely” to win, it’s ours.

    Finally, the previous practice of donating a “courtesy vote” to the Court’s minority came in the context of executions, where theoretically the Court could agree to hear someone’s case (which takes four votes) but not agree to stay his or her execution (which takes five). Nobody’s life is at stake here, however, so many of us find Breyer’s gesture quite rude indeed.

    Grindr Games

    I have gotten myself quite angry by writing about Justice Breyer’s gentlemanly b.s., and I was already in a state because my Facebook account just sent around a fake friend request to all my friends. I tried to warn people, but the ones who clicked “yes” are now receiving strange messages, ostensibly from me! I feel badly about this for several reasons.

    But you know what? I reported it. I told my friends. I changed my password. And there’s nothing else I can do about it, so I may as well focus on our shared passion for GLBT news.

    I gather there are about 50 openly gay athletes competing in the Rio Olympics, but considering there are over 11,000 in total, I think we can assume that a few of our closeted brothers and sisters are participating in the Games as well. Many of the countries represented in the Olympics either ban homosexual activity outright, or call for the death penalty. Suffice to say that we Americans are in no position to question a decision to stay in the closet by an athlete from one of these barbaric lands.

    No wonder there was Hell to pay after Daily Beast London editor Nico Hines filed a story about online cruising in the Olympic Village. The heterosexual reporter tried his hand with Tinder and Grindr, and according to press reports he managed to out several closeted athletes by including identifying details in a glib article. The story was pulled fairly quickly, so I did not read it. But the outcry from the gay community and allies was fast and furious. Hines left Rio in a storm of condemnation, while the Daily Beast apologized and the International Olympic Committee called the reportage “unacceptable.”

    No Harm, No Suit

    By rights, I should have followed the lead story in this column with other stories about the many other federal lawsuits that revolve around the interpretation of “sex” in various civil rights laws. This stuff is complicated enough without flitting from one piece of legal news to something about the Olympics and then back to another piece of legal news on the exact same subject as the first!

    But I just wanted to highlight that one story–I wanted to emphasize the perfidy of Justice Breyer!–and I didn’t want his foul decision, disguised as it was as an act of “courtesy,” to go unnoticed.

    Now that I’ve suggested that we’re in for a thorny round of complex legal news, let me simplify it. Back in May, after North Carolina passed its anti-trans law and we began a national debate on where transgender men and women should relieve themselves, the Obama administration issued a policy statement on the scope of Title IX, reminding public schools and colleges that the administration believes Title IX prohibits trans-discrimination.

    This triggered two similar multi-state lawsuits; one led by Texas and one led by Nebraska. The Texas case was just argued before a district court judge in the Houston area on August 12, and here’s the problem:

    You can’t just file a lawsuit because you don’t like something. Someone must suffer actual harm. There has to be a specific problem.

    Texas and a dozen or so other states claim that the government’s position puts their federal education funding in doubt because the states don’t agree that Title IX should cover the trans community. It’s true that failure to follow Title IX can jeopardize federal funding, but that’s a hypothetical dilemma, not a real one. Why file suit when that has yet to occur?

    They also claimed in court, for example, that public schools would have the expense of changing all the signs on all the bathrooms, but it’s unclear exactly why new signs would be required. I tried to look up the transcript of that exchange, but failed. Was Texas planning on adding a transgender stick figure to the bathroom doors? What would that have looked like, and why would they have deemed that necessary?

    So anyway, those lawsuits are going on. I’m not sure why Nebraska and the dozen or so states that went with the Huskers need their own suit, but they have it. Meanwhile, there are two or three lawsuits centered on North Carolina’s anti-trans bill, HB2, (and at least one in Mississippi, where a federal court has struck that state’s anti-gay “religious freedom” bill).

    At issue in much of this litigation is not simply whether or not Title IX’s ban on sex discrimination includes anti-trans bias. The sides are also contesting the relative power of federal agencies like the Equal Employment Opportunity Commission or the Department of Education’s Office of Civil Rights. In the Fourth Circuit case that now heads to the High Court, the 2–1 majority ruled that the Education Department’s trans-friendly interpretation of Title IX should govern the courts, given that the law’s scope was unclear.

    But does that go too far, some wonder? After all, these agencies represent political, not judicial, assessments. Switch Obama with Trump and the Education Department’s view of Title IX might suddenly become very different. On the other hand, why should courts substitute their judgment in ambiguous situations for that of the agencies that are charged with enforcing these laws?

    I just reread this section. I like it a lot. Others might find it tedious, but what do they know?

    Do the Hustle!

    Let’s move on, shall we? I love the story of the GLBT love-in protest at a British grocery store the other day. Two men were told to stop holding hands at a Sainsbury store in East London by a security guard who told them it was inappropriate.

    And you know the rest of the story, right?

    Once the community heard the news, the small grocery was inundated with gay and lesbian couples, kissing and “dancing to music by Diana Ross and Donna Summer,” the Daily Mail reports. Naturally, a Sainsbury spokesperson apologized and said they’d investigate the guard.

    I’ve always wondered why we’re still obsessed with Bach and Mozart to the exclusion of many modern composers. Now I wonder whether our community will, for all time, remain fixated on pre-AIDS disco music. I hope so. Can you hear it in your mind now? “The Hustle” by Van McCoy? Close your eyes and line dance with me.

    Breyer! (Shaking fist at the sky)

    Open your eyes! Open your eyes! I want you to be able to read. Oh, there you are. I thought I’d lost you.

    I guess a group in Arkansas is going to put a gigantic three-ton Ten Commandments monument on the Capitol grounds under the terms of some new state law that I haven’t read or researched. All I know is that this seemingly unconstitutional green light shines thanks to Justice Stephen Breyer, who ruled ten years ago that a similar abomination that now graces the Capitol grounds in Austin was just fine because it had a secular purpose in addition to its religious character. I assume that the Arkansas commandment people have gussied up their display with some token non-Christian ornamentation. Maybe a hog or two.

    Who knows? I’m just mad at Breyer today. I read that a satanic cult is also going to ask the authorities for permission to erect a monument to the Devil on the grounds in Little Rock. Seriously. Now all we need is an application from my own faith community–the church of the flying spaghetti monster. (I am ordained. Cost me $20.)

    And finally, here’s a happy ending to a disturbing episode. You may remember that the head of Pride Cleveland, Todd Saporito, abruptly cancelled August pride celebrations due to vague security concerns in the wake of the Orlando massacre. This despite the fact that major cities like L.A., San Francisco and New York had managed to hold parades and festivals just two weeks after Orlando.

    But soon after this oddball made the surprise announcement, Cleveland activists and leaders got together and organized a pride festival from scratch, in under two weeks. The event, Pride in the CLE, went off without a hitch on August 13, and I guess Saporito was nowhere to be found. As one of the organizers, Nickie Antonio, pointed out:

    “Of course we are always concerned about safety, but that’s why we’ve been doing Pride for all these years in the first place… That’s the whole point, that people in the LGBT community, going back 30 years, did not feel safe. That’s why Pride was so important. It’s a day to be in public, to gather with each other and our allies and say: ‘We’re gay, we’re proud of that, and we are going to walk together in solidarity to stand up to anybody who has a problem with that.”

    Exactly.

    arostow@aol.com