By Ann Rostow
Seventh Circuit Victory
The full U.S. Court of Appeals for the Seventh Circuit has ruled that sexual orientation discrimination violates Title VII of the Civil Rights Act of 1964. The 8–3 decision, issued April 4, is a major legal breakthrough, expanding the notion of discrimination “because of sex” to encompass antigay bias. The opinion also has implications for how the federal courts treat gays and lesbians under Title IX, the statute that forbids discrimination “because of sex” in public education. I’ll have more to say about this important decision in future issues.
Tarheel Tap Dance
GLBT groups are crying foul over the so-called repeal of North Carolina’s HB2 anti-trans bathroom law, calling the cure worse than the disease. Indeed, it’s not great. The new law, signed by the Democratic governor on March 30, prohibits localities in the state from passing GLBT civil rights laws through 2020. As for bathrooms, it overturns the ban on transgender use of appropriate public facilities, but keeps control over bathroom policies in the hands of the state. As far as I can gather, this means no local entity or university will have the right to set their own trans-friendly rules even after the 2020 pause expires. It does seem, however, as if the flat ban on public bathroom use by transgendered citizens has been set aside.
I’m somewhat confused, frankly. I think the bottom line is that—in addition to putting an inexplicable four-year moratorium on pro-gay policies—North Carolina has just singled out transgender men and women and made them permanently exempt from certain civil rights protections, a status that seems unconstitutional under the High Court’s ruling in Romer v Evans.
In Romer, the High Court ruled that the state of Colorado could not preempt gay civil rights laws by making their passage illegal. Since that 1996 decision, states have tried to sidestep the Romer Court’s philosophy by doing what Arkansas has done and what North Carolina is doing here through 2020: dictating that local entities may not expand civil rights laws beyond the protections encoded in state law. Since GLBT rights are invariably the only major category missing from state law, these statutes manage to preemptively ban gay rights laws without mentioning our community by name. It’s a clever dodge, but it won’t get by an honest court if we ever get a clean case in place.
When Fayetteville passed a GLBT rights law and challenged the state of Arkansas last year, a judge verified that, indeed, Arkansas mentions sexual orientation in quite a few state statutes, including domestic violence laws. As such, he continued in his ruling that Fayetteville was within its rights to add sexual orientation to its anti discrimination ordinances. Last February, however, the state supreme court overruled, striking Fayetteville’s policy as, essentially, violating the spirit of the statewide ban. Activists will return to the lower court to fight the law on constitutional grounds, and I assume our legal advocates will put the screws to North Carolina in short order as well.
Meanwhile, guess who was about to decide where to schedule future rounds of March Madness? The NCAA, of course. And guess who “reluctantly” withdrew their ban on North Carolina a few days after the repeal and replacement of HB2? The NCAA. Most infuriatingly for a Jayhawk fan, guess who won the national championship last Monday? North Carolina! (Expletive deleted.)
Hi Reader
Have you seen the short video, “Hi Stranger?” (https://www.youtube.com/watch?v=WHH2DFDcpH8)
That is just the most brilliantly creepy thing I’ve encountered in a long time. It’s dreamlike and disturbing and created by an artistic genius. If you don’t know what I’m talking about, maybe you should just forget about it. Or not. The comments on YouTube capture its extraordinary ambiguity. Half the audience is profoundly comforted, while the other half is terrified. Count me in the latter group, terrified but tremendously impressed.
It evokes half forgotten and nearly irretrievable memories of a time in early childhood when I was not completely sure what was real and what was just in my head.
So, as Rachel would say, we have a lot of news to cover this week. Have you noticed Rachel says she has a lot to get to every single night? It’s usually true, although in order to get to it we have to meander down many trails; through 19th Century scandals and obscure Russian oligarchs and the history of steel subsidies and the search for the Northwest Passage and the biography of Marie Curie and the discovery of zero-sum game theory, all while yelling at the top of our lungs at the television: “Rachel, get to the point!”
Hey, it’s usually worth the wait, but honestly, we’re frustrated! I don’t mind the intricate background. What I do mind is repeating that intricate background ten times in a row after it’s already been articulated. We understand. Move on.
What’s that? Have I been guilty of the same device? Have I rehashed the 1989 Price Waterhouse case once too often for your delicate sensibilities? Yes, I know I have, but I was doing that for new readers. Sorry. It was important.
Meanwhile, the “introduction” to this section has grown so long that I can’t launch a major topic. Instead, I’ll just complain about the commercial for the sloppy “UNTUCKit” shirt that you don’t have to tuck in. Guys! Just leave your shirt hanging out or go neat. It’s your choice. The notion that someone “solved the problem” of untucked shirts and created his own business is absurd. It’s like me “solving the problem” of having to wear suits and heels to the corporate office by starting a company that sells designer t-shirts and nice jeans.
And, as a general observation, is it my imagination, or have commercials started trespassing into gross personal areas lately? Mel and I have to scream and then race for the remote to turn off the sound every time we see the guy with opioid constipation who spouts scatological puns. Get him off. Then there’s the “no stink” underwear ad, and those repellent toilet paper bears telling us to “enjoy the go.” Lately I’ve seen a guy in his office who is about to pass gas until he takes a tablet. Why must we put up with this unpleasantness? Isn’t there some kind of government censor that can bring back certain decorum?
Let’s go back to the news.
Simmering Cases Soon to Boil Over
Here’s the thing. There are a lot of GLBT cases filtering through the federal courts, but now they’re not just filtering, they are quickly rising to the top. I know I’ve been mentioning several Title VII cases that examine whether or not sexual orientation and/or gender identity discrimination in the workplace should be protected under federal law.
Keep in mind that activists have a DOA bill in Congress (the Equality Act) that would add GLBTs to existing federal civil rights laws. But, at the same time, our lawyers argue that existing laws implicitly cover our community already. If that argument succeeds, the Equality Act would become moot.
That argument is a powerful one. In 1989 the Supreme Court ruled in Price Waterhouse—just kidding!
I’ve already mentioned that a GLBT Title VII lawsuit is about to be decided by the full U.S. Court of Appeals for the Seventh Circuit. I think it was argued last November. In the last issue I told you that another Title VII case lost before a three-judge panel at the Eleventh Circuit, and that case has now been appealed to the full appellate court. Now, a three-judge panel at the Second Circuit has again followed precedent to rule against a sexual orientation claim under Title VII, and again, the panel agreed that while gay bias is technically legal under federal law, gender stereotyping might well be prohibited.
And this is the ironic thread that we are tugging from the fabric of our current jurisprudence because, after all, isn’t being gay or lesbian the epitome of defying a gender stereotype? And if the High Court has determined that gender stereotyping violates federal law, then are we not implicitly covered by Title VII and Title IX and other statutes?
So now the full Second Circuit might be called upon to consider the question “en banc,” as they say. Note that a hearing from a full federal court of appeals is one step down from a Supreme Court review. Considering that we have two or maybe three cases at this level, it’s inevitable that this, our community’s most significant area of unsettled law, will reach the High Court sooner rather than later.
Gor Such and Such
That brings us to Supreme Court nominee Neil Gorsuch. I don’t understand why our party forced the issue and set up the nuclear option, which I assume will have been triggered by the time you read this column. Gorsuch isn’t our kind of justice, but unfortunately, the Democrats do not control this process. Republicans nominate conservative justices, period. So “changing the nominee,” to use Chuck Schumer’s mantra, would simply deliver another conservative. Meanwhile, we lose the tiny bit of leverage we might have retained in the horrific case of a second Trump pick.
Gorsuch seems no worse than any other generic conservative judge, although the story of the frozen trucker seemed harsh. At least he’s not a confirmed homophobe like some of the other prospects on the Trump short list. As for Merrick Garland, I’ve previously suggested that the time will come when Democrats control the Senate and a GOP president gets a late vacancy at the High Court. That’s when we take revenge for Merrick Garland. Not now.
I’ve been watching the Masterpiece Cakeshop case now pending before the Supreme Court, which has not decided whether or not to accept review of the Colorado baker who refused to serve gay customers on religious grounds. So far, the Court has put this case on its calendar five times, but each time the justices have taken no action. Why? Are they really serious about taking this case and stalling for Gorsuch? Are they torn? Do they not really care and do they therefore wind up talking about other petitions? At one point, the justices requested the lower court files, which seemed to indicate they were interested, right? But nothing has happened. Obviously, if the Supreme Court were to accept review of a straight up “gay rights versus religious rights” lawsuit, the implications would be serious and not good. Gorsuch might not be homophobic per se, but he appears to be something of a rubber stamp for so-called “religious freedom.”
Mississippi Appealing
Finally, the end of the column approaches so we can say goodbye to legal news and indulge ourselves in cocktail recipes and amusing anecdotes from the annals of our colorful and wacky GLBT world. Did you hear, for example, about the Queer Dance Party protest outside the home of Ivanka and Jared? As far as I can tell, these were veteran leaders of GLBT activism, conducting a respectful and peaceful demonstration as befits our country’s democratic principles.
But seriously, why Ivanka and Jared? Aren’t they sort of on our side, emphasis on sort of? Maybe that’s the point.
To be honest, we do indeed have another major piece of legal news, to wit the oral arguments before the U.S. Court of Appeals for the Fifth Circuit regarding the constitutionality of Mississippi’s religious freedom law, one of the most alarming pieces of legislation ever to emerge from a reactionary state. Normally I would look forward to this statute (now on hold) being eviscerated by a federal appellate court. But, in this case, all three judges on the panel are GOP appointees. The law is so draconian, allowing everyone and anyone the right to deny services to gays and lesbians that I have hope that even these judges will rule against it. But if I had to bet money on that outcome, I’d hesitate.
Significantly, other states and Congress are watching for the fate of the Mississippi law. If it passes muster, watch out, ladies and gentlemen, we’re in for a long war. If it loses in court, that would be a tremendous help. I suppose we can expect a decision in three to six months.
That really is it for legal news, and the other items on my list are all sad, but I’m not sad right now and I don’t want to become sad. So how about a cocktail? Let’s ring the bell and ask Jean Philippe for his latest concoction!
It took awhile, but he brought me a combination of Chambord, some dry white wine and a shot of Perrier. It’s like a kir spritzer. I wanted something stronger, but Jean Philippe said it was too early in the day. Damn him!
arostow@aol.com
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