By Ann Rostow
Tobacco Roadtrip
As our last issue went to press, the big question was whether or not Georgia Governor Nathan Deal would sign a law that could open the doors to wide discrimination throughout the Peach State. Then, in the course of a day, North Carolina’s legislature went into special session, introduced a horrendous Frankenstein monster of a bill, passed the thing, and got it signed that same night by Governor Pat McCrory. By the time Governor Deal vetoed his state’s antigay bill a few days later, he was already old news.
Not really, by the way. Nathan Deal deserves credit as do the many activists and corporations and others who rallied for his veto. A week after Deal took out the red pen, Virginia Governor Terry McAuliffe struck a “religious liberty” bill that would have allowed service providers in the Loving State to nix gays. A Democrat and a friend to our community, we expected no less.
But these vetoes, along with an earlier “no” on an anti-trans bill from South Dakota’s Governor Dennis Daugaard, merely put the despicable Tar Heel Chief Executive into a hotter spotlight. Keep in mind that no one had even seen the text of the North Carolina bill until it was presented on March 23, and according to reports, even some of the lawmakers voted without having read the damn thing. (Note that in the state senate, all of the Democrats walked out of the session, leaving the GOP to pass the bill on their own.)
The bill is not only the worst of its kind to pass any state legislature, it’s the most convoluted. First, it requires bathrooms and locker facilities in state institutions, including public schools and universities, to be restricted by birth certificate gender. Second, it limits the categories of people protected by local nondiscrimination policies to those identified under state law, which does not include the GLBT community (and some others like veterans). Third, it prohibits raising the minimum wage or adjusting workplace benefits beyond state-level standards. Fourth, I forget the other features. but I think it bans the sale of Compari-based cocktails in metropolitan areas with populations over 100,000. It’s just beyond bizarre.
But here’s the good news in my view. Let me take a step back and point out that several states have passed less dramatic antigay laws over the last year, laws that have not been able to trigger the massive backlash that we saw in Indiana and that we are now seeing in North Carolina. I’m thinking, for example, of the (voter ratified) law in Arkansas that—like part of the North Carolina bill—prohibits local entities from passing anti bias ordinances inconsistent with the state. (There’s news about that law this week, and the governor of Mississippi just signed an Okay to Discriminate measure, but let’s remain in North Carolina for the moment.)
A steady progression of these lower-radar piecemeal attacks could have left us sputtering in frustration, but not doing much more than that. Now, however, the Tobacco State overreach has created a firestorm of corporate activism and incited a fervor in a GLBT community that many feared was becoming complacent. Importantly, the law has been met with a federal lawsuit by Lambda Legal and the American Civil Liberties Union that could theoretically bring us yet another major court victory. And finally, no less than five U.S. cabinet departments are evaluating whether or not North Carolina has made itself ineligible for certain federal funds. The fight is on!
Does Mississippi Even Count?
So, as mentioned above, on Tuesday, Governor Phil Bryant of Mississippi signed a law that will allow businesses and organizations to deny service based on religious faith, a law that is phrased in a way that gives a green light to bias against same-sex couples and that allows (but does not compel) schools and employers to regulate bathrooms. To say that this measure is not quite as bad as the North Carolina effort is to say that thirty lashes are not as bad as having boiling water poured on your head (something, by the way, that happened to two sleeping gay men in Georgia a few weeks ago).
Clearly, Governor Bryant was not dissuaded by the growing backlash against North Carolina, and it remains to be seen if corporate activists add Mississippi to their boycotts and threats or if they keep the focus on Tobacco Road. It’s worth pointing out as well that states like Mississippi don’t carry protections against gay bias to begin with, ergo businesses are already perfectly free to kick gay customers to the curb under current state law. That said, they are still subject to federal law (such as it is) and they are also vulnerable to the public outrage and loss of revenue that usually greets these types of shenanigans.
Finally, before we return to Raleigh, it’s worth mentioning that every state seems to have discovered its own version or combination of anti-GLBT legislation. Trans-bashing here, “protecting” religious organizations there, letting businesses discriminate over yonder, or mixing and matching as you will. That’s another reason why North Carolina, in its panoply of hateful machinations, has made itself the perfect target.
Nice Job, Villanova
Let’s talk law. I know how you love that. But first, let’s venture into the side street of college basketball. I was once, like many of you, bored stiff by the whole March madness phenomenon and tired of switching from channel to channel only to stumble on one game after another as if in a bad dream. Marriage to a Jayhawk changed me, but this year, our beloved team lost tragically in the round of sixteen, and I was ready to forget the whole damn business for another year.
But then North Carolina passed its nasty law and Pat McCrory even quipped that he would be looking forward to watching the University of North Carolina’s basketball team play for the national championship in a city (Houston) where voters recently repealed an LGBT civil rights bill that protected people against discrimination in public accommodation.
Suddenly, my passion returned, this time as an ardent foe of the Blue and White. How satisfying it was to watch the favorites, not just lose, but lose at the buzzer after seemingly sending the game to overtime with a basket of their own with four seconds left. I don’t really believe God interferes in humanity’s sports contests, but there just might have been a little divine intervention at work in this case.
Rule of Law
At present, it is sort of against federal law to discriminate in the workplace or in public educational settings on the basis of sexual orientation or gender identity—emphasis on “sort of.” Federal courts are increasingly interpreting Title VII of the Civil Rights Law (workplace bias) and Title IX of the Education Amendments to cover our community. Further, the (Obama run) government agencies that set standards for litigation under these two half-century old statutes have determined that gender presentation and sexual orientation are both protected categories.
And yet other courts have come to different conclusions, pointing out that nowhere in the text of these laws do the terms “sexual orientation” or “gender identity” appear. It’s an interpretation, not a dictate.
But the interpretations did not come out of nowhere. Nor are they simply a sign of the times. They are rooted in what is now becoming settled GLBT rights law, and if tested by the appellate courts, or by the Clinton-era Supreme Court, we could finally see our protections guaranteed by Constitutional precedent. That’s why the suit against North Carolina is so promising. A victory, which of course could take a few years, would bring down not just the Carolina statute, but its buddies in Arkansas, Mississippi and wherever else.
And here’s a word on Arkansas and other bills that purport to pre-empt nondiscrimination laws. You remember that, in Romer v Evans, the Supreme Court struck down Colorado’s Amendment II, a law that explicitly banned gay rights bills. Well part of the reason that law got its just desserts was that it specifically mentioned gays and lesbians. Arkansas and North Carolina avoided a direct violation by simply limiting bias laws to categories covered by the state without naming names.
In Arkansas, a state judge recently ruled that Fayetteville’s GLBT rights law was perfectly fine because, in fact, sexual orientation and gender identity were indeed protected in various state statutes, albeit not the formal state anti-discrimination laws. Now, the Attorney General has asked the state supreme court to review that ruling, so we’ll see how it ends up.
It’s hard to imagine that any of these Romer laws would stand up to scrutiny anywhere but the most conservative federal court, let alone before a High Court with a ninth Clinton justice. But in confirming the implications of Romer, and/or articulating the jurisprudence that supports including GLBTs in current federal law, the Court would finally be in a position to rule that sexual orientation and gender identity are protected classes like race and religion. This is a step that our Court champion, Justice Kennedy, has deliberately danced around in his valiant efforts to support our humanity without actually pronouncing us truly equal.
Let’s Do This
Had enough? There’s actually one more important topic swirling around the tornadic winds of North Carolina. It seems obvious that the most compelling response to the bathroom bills would be personified by a parade of transmen standing in line at the ladies room as required by law. I saw a conservative on TV the other day actually defending North Carolina by remarking that obviously, we can’t have masculine looking transwomen in the bathroom with girls. Masculine transwomen? How about masculine transmen? And why don’t moderators, I think it was Chris Cuomo, ask these fools about forcing bearded men into the facilities against their will?
No wait, I’m not just repeating the rant, because I’ve been reading that some trans activists believe that this line of attack should be avoided because it glamorizes transgender people who can easily pass as male or female, and leaves in the dust those who can’t. I agree that this is a problem, but I also think that it’s far more important to pound this nail into the general public’s clueless thick skull with a sledgehammer. Have you read the comment boards? Every third maniac is squealing about “men” in the ladies room, apparently without the slightest awareness that transmen exist, let alone any the recognition that they are men and look like men and should remain in the men’s room where they have been doing their business without adverse consequences for years.
I’ve seen a few posts and tweets by transman making this point, but it hasn’t caught on for some reason and the “debate” continues when it seems as if we could put an end to it in short order. Am I missing something?
Schocking!
I don’t really have enough room for a new subject, so I’ll just vent about unrelated aspects of life. For example, there’s an insipid Panera Bread commercial going around that makes me want to put my fist through the TV screen for reasons unclear. And I’m not a violent person, my friends. It’s narrated by a nasal female who repeats the phrase “soup and sandwich” as if in a trance, and tells us that Panera is offering “good clean food.” What? Clean food? There’s just something off about it. Something vaguely repellent.
And does it bother you that Secretary of State John Kerry insists on calling ISIS “Daesh” as if he’s from Europe? I know that ISIS does not like the name “Daesh,” so there’s a good reason to use it. But when Kerry’s talking on TV to an American host, why confuse everyone? We get that “ISIL” and “ISIS” are the same. “Daesh” is just pretentious.
Oh, and what’s the story with former Congressman Republican Aaron Schock? I think he’s on trial for some kind of money juggling, but recently his lawyers asked the judge to seal the trial records which could otherwise damage Schock’s reputation. Hmmm. Really? The man set off gaydars everywhere by decorating his office a la Downton Abbey and wearing a pink checked shirt and turquoise belt to a DC event. Unseal the records!
annrostow@gmail.com
Recent Comments