By Ann Rostow
Trump Sinks to New Low
I guess none of us can tell what’s going to happen to the ten or fifteen thousand transgender members of the U.S. Armed Forces. According to Karen Ocamb, writing for the L.A. Blade, the White House is set to release some guidance in the wake of the bizarre July 26 presidential tweet calling for the end of transgender military service.
The pending announcement, “A Guidance Policy for Open Transgender Service Phase Out,” will reportedly recommend that authorities attempt (somehow) to encourage transgender troops to leave the military, while trans officers up for promotion would simply be fired for no reason. Meanwhile, we still don’t know exactly what prompted Trump to target the careers of these patriotic volunteers, many of whom are on active duty risking their lives in Afghanistan and elsewhere.
Although Trump claimed the decision was based on cost and military advice, there is no particular cost for transgender troops, and the military has expressed surprise and mistrust for the move. (Indeed, firing highly trained troops is itself extremely expensive.) One gets the feeling Trump believed that a) there aren’t any transgender troops at present so a decision of whether or not to “allow” transgender service could be made, and b) transgender service members are all poised to undergo expensive transition surgeries immediately upon enlisting. In other words, one gets the feeling that Trump is an ignorant brute.
As Ocamb reports, Defense Secretary General Jim Mattis issued a memo August 4 calling for military leaders to remember their training and honor in dealing with the repercussions of this policy change. “Never forget, our willingness to take the Oath of Office and to accept the associated responsibilities means that even citizens who have never met us trust us to do the right thing, never abusing our position nor looking the other way when we see something wrong,” wrote Mattis to all defense personnel. “I am proud to serve alongside you.”
Shoe to Drop Shortly
Not surprisingly, Lambda Legal Defense as well as Outserve-Servicemembers Legal Defense Network are planning to challenge the upcoming trans ban in federal court as soon as it rears its ugly head
Look, you can’t fire transgender soldiers without cause. Most courts look kindly on the U.S. government anytime it claims that “national security” mandates a military policy. But still, there has to be some connection between the stated policy and a threat to the country’s safety.
For decades, the ban on open gay service was justified by the notion that unit cohesion would dissolve if gay and straight troops were forced to mix. That canard finally quacked its last with help from active gay service members themselves, as well as the examples of foreign militaries where discrimination had long ended. It was also useful to recall the relatively recent racial integration of the services, and the lessons from the increased participation of women in the fighting force.
The prohibition on transgender servicemen and women has also been dying a slow death over the last few years. After a thorough review, the Obama administration announced that trans soldiers could serve openly as of about a year ago, while a fully pro-trans policy would be instituted in the summer of 2017. That deadline was delayed for six months by the Trump administration, and has now been totally reversed. But Trump and company will have a hard time explaining to a judge why the U.S. security environment has mysteriously transformed itself from one year to the next in this regard.
With next to no support from generals or politicians alike, with no financial impact of note, and against the backdrop of our transgender friendly military policies of the last few years, Trump has absolutely no excuse for evicting able bodied sailors and soldiers from the armed services. No judge or justice would give him a green light, and it could actually be interesting to see him try to make a case. It would be interesting were it not so cruel.
Down Under Insanity Redux
For the record, the expression “waiting for the other shoe to drop” is said to originate in the New York City of the early to mid-20th century when the thin walls and ceilings of tenements allowed you to hear your neighbors come home late at night, take off their shoes and drop them on the floor one at a time.
Now, you should know that something is happening in regards to marriage in Australia, a topic that you may recall I have refused to cover in view of the gratuitously convoluted and deeply annoying political machinations that have surrounded the process for oh these many years.
But, seeing the recent headlines, I felt a little guilty. Why should my readers suffer on account of my personal impatience with spineless Aussie lawmakers? So, I started reading the articles, and Hello! It’s the same old impenetrable nonsense about non-binding plebiscites and free votes on marriage and this party and that party and this activist and that politician and blah blah blah and meanwhile, nothing is being done about the fact that Australia is the largest so-called First World country to maintain a legal ban on recognizing gay couples! The insanity continues and so, once again, I will retreat and return to this subject only after the country has legalized marriage equality. No more exceptions. It’s insane!
I’ll just leave you with three words to give you an idea of the situation in Canberra: “Non-binding postal vote.”
Meanwhile, a 16-year-old boy got attacked by “sea lice” while wading on the beach near Melbourne and emerged from the water covered in blood from the knees down. This grotesque sideshow provided me with yet another reason to steer clear of Australian news. But also, I had to wonder why the teen was at the beach in the middle of winter. It’s the equivalent of our February down under, right?
Braveheart’s
Did I mention I am in Scotland? Specifically, I am in Stirling, home to the royal castle of numerous kings named James, along with Mary Queen of Scots. It’s also the place where, centuries earlier, Mel Gibson defeated the English king Edward I and liberated his countrymen. Mel Gibson, William Wallace, you know who I’m talking about. “They can take our lives, but they will never take our freedom!”
It’s lovely, gray and cold. Oh, except today, of course, when it is warm and sunny and I’m indoors writing to you all alone with the dog and cat.
Do you care that A’s right fielder Matt Joyce yelled a “gay slur” at a fan and later apologized? For some reason, I don’t. I don’t even know the guy. I can’t find the slur (which I’m guessing is “faggot”) but he said he was deeply sorry and claimed it came out in the heat of an argument, etc. I think my indifference has something to do with Trump. I have been forced to shift my level of outrage, and outbursts from people like Matt Joyce don’t top the bar anymore.
In other news of scant interest out of California, Doug Manchester is reportedly in line for U.S. Ambassador to the Bahamas, which is what nearly a million bucks in GOP campaign contributions will get you these days, I suppose. If the name rings a bell, as it should, it’s because Manchester and his San Diego hotels were the subject of a GLBT boycott after the man gave six figures to the anti-marriage Prop 8 campaign back in 2008.
Speaking to a Senate panel for his confirmation the other day, Manchester said he regretted coughing up big bucks for the marriage ban, insisting that he did it as a favor to Catholic mucky mucks, and that now he is 100 percent in favor of marriage equality. Okay then! Ambassador to the Bahamas? Really? I hope he gets sea lice.
Circuit Circus
I’ve been mildly confused by the goings on in the U.S. Court of Appeals for the Second Circuit when it comes to (Title VII) cases of workplace discrimination against gay employees. Like many federal appellate courts, the Second Circuit has a binding precedent in place that dictates against gay or lesbian plaintiffs. The only way to overcome this kind of precedent is for the full appellate court, a half dozen or more judges depending on the circuit, to hear a case and reverse their old precedent. And, of course, the Supreme Court can overturn old case law as well.
I’ve had no problem with the more straightforward Title VII cases. Since Title VII bans sex discrimination on the job, we’ve been arguing that gay and trans bias is at heart another version of impermissible sex discrimination. As I mentioned, we have to surmount bad case law while we make our case, but we’re doing well. In the (Midwestern-based) U.S. Court of Appeals for the Seventh Circuit, the full court overturned its own precedent to rule that, yes, sexual orientation discrimination is against federal law. That case went back to lower court for further litigation on the merits.
In the Eleventh Circuit (Florida, Georgia, Alabama), however, a three-judge panel ruled against a lesbian plaintiff, but the entire court declined to review the case. Here, our lawyers at Lambda Legal plan to appeal this case to the Supreme Court at their earliest opportunity.
Why, I ask myself, do I even need to figure out what’s going on in the Second Circuit (New York, Connecticut and Vermont) considering we’ve got a case en route to the nine justices? Well, I’ll tell you in a minute.
I’m not sure how many federal judges in the Second Circuit have ruled on gay Title VII cases, but two such cases have reached the three-judge appellate level, and they’ve had somewhat different outcomes. The full court declined to hear the case of a gay ad executive, but then they turned around and accepted review of a deceased sky diving instructor, who may or may not have filed the necessary paperwork to pursue a Title VII case in the first place.
The sky diver, Donald Zarda, died BASE jumping in Switzerland in 2014, but his litigation lives on. Now, the Trump Justice Department has filed a friend of the court brief arguing that Title VII does not cover gay or lesbian victims of discrimination, exactly opposite of the stance taken by the Obama administration. Making matters more confusing, the Equal Employment Opportunity Commission (EEOC) has filed a brief that takes the pro-gay position which the agency has held for many years now. I gather that the Commission still has a majority of Obama-appointed commissioners, and that—you guessed it—that status quo will not last forever. As soon as Trump commissioners take control, we can expect the EEOC (which interprets Title VII) will flip over to an antigay stance.
Confusing!
Bottoms Up
Everyone’s back and they are preparing to go for late afternoon “tea” on an outdoor patio at the charming hotel on the high street! I have exactly 23 minutes to finish my column if I am to join them, and yet my remaining news items all revolve around Title IX cases. Title IX cases are confusing sex discrimination lawsuits, much like the Title VII cases, except the protagonists emerge from our public schools and colleges. If I go down that road, I’ll be two more hours at least and I will forego the libations and family camaraderie. I am here with my wife, step daughter, son-in-law and granddaughters. (The six of us are a dangerous subgroup amid our larger extended family.)
But seriously, Title IX of the Education Amendments of 1972 (even the damn name is confusing) prohibits sex discrimination in public schools and has been construed to prohibit transgender bias in the process. It is this law that protects transgender students against barred bathroom doors, and it is this law that was at stake in the aborted case of Gavin Grimm, a student who was about to present his case to the Supreme Court when the Trump administration upset the apple cart with new agency directives. Gavin Grimm is now at risk of graduating before his case is decided.
Meanwhile, keep an eye on a similar ruling out of the Seventh Circuit, where transgender student Ashton Whitaker won the right to use the facilities at his Wisconsin high school. That case may be appealed to the High Court next session.
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