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    Ann Rostow: Again With The Bathrooms

    By Ann Rostow–

    Again With The Bathrooms 

    Remember that big Title IX transgender ruling out of the full U.S. Court of Appeals for the Eleventh Circuit? Oh, come on people! Don’t you even read this column? No? Well, to hell with all of you, non-reading cohort. As for the rest of you (the good people) we discussed this case last issue. To refresh your memories, it was a 7–4 conservative ruling that gave a Jacksonville, Florida, school district the right to prevent a transgender boy from using the boy’s bathroom in seeming violation of Title IX’s ban on sex discrimination in public schools. I say “seeming” because it didn’t seem like a violation to the seven GOP-nominated judges on the Eleventh Circuit, and I’m guessing it won’t seem so to the six rightwing justices of the High Court.

    Writing in the January 23 New York Times, court watcher Adam Liptak speculated that the Supreme Court may be positioned to take on the whole trans students bathroom dispute, now that the appellate courts have ruled in both directions. Both the Seventh Circuit and the Fourth Circuit have ruled in favor of transgender boys in earlier cases, but neither victory was accepted for High Court review. Keep in mind that Lambda Legal has not announced plans for an appeal to the Supremes, and who knows where their strategy will lead them.

    One fallout from the decision is that a federal judge has now reopened a case that challenges Florida’s new ban on female transgender athletes. That case, brought against the state by a transgender athlete, was shelved pending the outcome of the bathroom case. Since Florida is bound by the precedents of the Eleventh Circuit, it seems likely that the so-called “Fairness in Women’s Sports Act” will survive under this appellate court’s interpretation of Title IX. 

    Did We Mention the Bathroom Issue?

    As Liptak pointed out in his piece, it appeared that the High Court had paved the way for gays and transpeople to seek protection under all the federal non-discrimination laws after they ruled in 2020 that GLBT bias was a subset of “sex discrimination.” The gist of that decision, issued in a case about workplace discrimination under Title VII, would seem to extend to any and all laws that outlaw sex discrimination, particularly Title IX of the Education Amendments of 1972 that was enacted solely for that purpose. 

    Justice Gorsuch, who wrote for the 6–3 Court, made clear that the ruling didn’t “purport to address bathrooms, locker rooms, or anything else of the kind.” It’s true that sex-specific bathrooms are not considered “discriminatory,” and to some extent, neither are sex-based dress codes. But does that mean transgender bias in bathroom designations cannot be considered a form of illegal sex discrimination? And what about athletes? How can the Court square its views on sex bias under Title VII with topsy turvy thinking under Title IX? You may as well toss in the language against sex discrimination in Obamacare and ask how laws against administering transgender health services can exist under the 2020 precedent.

    Making matters worse, I’ve been seeing a headline popping up about some transgender woman with a dick in a San Diego YMCA locker room, which I was barely been able to bring myself to read. It’s like those stories during our fight for marriage equality where a reporter would dig up a gay couple who opposed marriage rights and thought the GLBT civil rights movement was assimilationist, and write a full-length feature article on this couple’s random opinions. You can always find some contrarian view or exceptional case, but to highlight it is to skew the truth of the matter. Transgender men and girls have no desire to expose themselves to others, period, yet the specter of ladies’ bathrooms full of scary men with their pants around their ankles seems to dominate what passes for political discussion on this subject. 

    Sure enough, the story described a distressed teenager who hid in the shower until the trans woman was gone and promptly went on the Tucker Carlson show to cry about it. But guess what? The “man” in the locker room was a 60-something woman in one of the swimming classes who had transitioned years ago complete with surgery. (That’s right. No dick.) Christynne Lili Wrene Wood never even noticed the 17-year-old freaked out kid who reported her to the YMCA staff after presumably seeing her naked rear end, if that. She was alerted to the story by sympathetic swim buddies and was astonished at the outcry.

    “I did my water aerobics workout as I always do. I went in with the rest of my aqua sisters. We showered, I dried off, I dressed, I hugged my instructor. I hugged other women and said to all of you: I love you so much. See you next year, and I took off for Palm Springs to visit a friend. That’s it.”

    “I don’t know what’s in the mind of that child.” 

    This Is Why We Can’t Have Fun Things

    I guess Tucker Carlson and his pals over at Fox News have been complaining about M&M “spokescandies,” who have diversified to include a full-figured candy and a lesbian candy. I vaguely recall writing about this not too long ago, but I am now learning that the green M&M used to wear high heels but was recently given more sensible shoes. I can’t remember why, because to be honest, I did not devote my full mental attention to this story as I was reading. However, in view of all the controversy, the company has decided to retire all its spokescandies for the time being.

    Now I can’t find the article I just read! I was going to supply a quote from the Mars Wrigley company, but I can’t be bothered. Ah. Got it! Headline: “M&Ms Pulls Its Mascots After Uproar.” Uproar! Yes, you read it here first (unless you read Tuesday’s Times business section). 

    Actress and SNL star Maya Rudolph will be the new commercial face of M&Ms, and the company is “confident Ms. Rudolph will champion the power of fun to create a world where everyone feels they belong.” I guess Carlson bemoaned the shoe substitution that took place a whole year ago. (Why are we only hearing about it now!?) 

    “M&Ms will not be satisfied until every last cartoon character is deeply unappealing and totally androgynous,” he insisted. “Until the moment when you wouldn’t want to have a drink with any one of them.” There’s much more, but I think we’ve had enough. And who would want to have a drink with a cartoon character, appealing or not?

    Sea Cow County Book Bans

    There are several articles posted about school libraries in Manatee County, Florida, where librarians and teachers have been warned to limit available books to those that have been approved by “certified education media specialists” under a new law. I’m confused as to why Manatee County is getting all the press, since this law applies statewide, but here’s the kicker: teachers who assign an un-certified book could be facing a third-degree felony. That’s a criminal charge for teaching with reading material that the rightwing in Florida doesn’t like. 

    Are you kidding me?

    Books must be free of pornography, and age appropriate. But teachers are also being told to “err on the side of caution,” which seems to mean dumping anything gay or ambiguous. One teacher has dropped Dragons Love Tacos, an absolutely innocuous picture book, as well as Sneezy the Snowman. It’s not clear why, but I’m assuming these were not on the lists of pre-approved books.

    Keep in mind that this library law is not the same as the “Parental Rights” law that bans discussion of sexual orientation and requires teachers to inform parents if a student is gay or trans. It is also not part of the other headline-grabbing “Stop WOKE” law that bans teaching that anyone is “privileged or oppressed” or “inherently racist, sexist, or oppressive” by virtue of “their race, color, sex, or national origin.” These and other vaguely written restrictions are poised to snuff out independent thinking and teaching throughout the state’s public school system over coming years. What in God’s name will Florida look like after a decade or so of government censorship?

    For the record, only half the students in Manatee County are currently reading at grade level or better. So, good luck parents.

    Wither Moldova?

    On January 17, the European Court of Human Rights ruled that Council of Europe member states must recognize same-sex marriages in a ruling that is being hailed as “landmark.” The case involves three Russian couples, but will likely be ignored by Russia, which has been ejected from the Council of Europe and does not consider itself bound by High Court rulings. The Court said marriage discrimination is a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, the founding civil rights framework of the 47-member Council of Europe.

    I have long been confused by the various organizations, councils, and courts hard at work in Strasbourg or The Hague. In the past, I’ve heralded what sounded like important rulings and votes, only to see them reappear or be nullified months later. This sounds important, but I also see that there are 16 Council members that do not recognize same-sex marriages, namely: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Georgia, Latvia, Lithuania, the Republic of Moldova, North Macedonia, Poland, Romania, Serbia, Slovakia, Turkey, and Ukraine. Are they all going to institute marriage equality laws? Marriage recognition laws? If not, why not? If so, when?

    Meanwhile, speaking of book bans, this same court has also just ruled that Lithuania’s restrictions on Amber Heart, a gay-friendly collection of fairy tales, violates the above-mentioned Convention. The court ordered Lithuania to pay a fine of roughly $18,000 to the late author’s daughter as punishment for slapping a warning label on the book. 

    Finally, U.K. Prime Minister, Rishi Sunak, has blocked a newly passed Scottish law that makes it easier to transition, lowering the age limit from 18 to 16 and no longer requiring a formal diagnosis of gender dysphoria. The U.K. claimed that allowing two different sets of regulations could lead to, um, some kind of dysfunctional chaos? It’s not clear. 

    Scotland’s Prime Minister, Nicola Sturgeon, has pledged to challenge the U.K. move in court. As you know, while Scotland is governed independently, it is still part of the United Kingdom, having survived a secession vote in 2014, when 55 percent of citizens voted to remain in the U.K. That said, Scotland was very much opposed to Brexit, and it’s possible that a secession vote would come out differently if held today. Such a vote needs approval from London, however, which is not going to happen.

    Good News, Bad News

    Finally, I should tell you about a couple more court cases. I know! Fun! First, the U.S. Court of Appeals for the Ninth Circuit has let stand a three-judge decision upholding Washington’s ban on conversion therapy. Our adversaries wanted the full court to revisit the unanimous ruling, but the court said no.

    Second, a judge in Oregon has dismissed a suit filed by GLBT students against the Department of Education, challenging religious exemptions to Title IX. The students claimed that religious schools that accept federal money should be bound by non-discrimination rules that arguably include gay and trans bias. A group of these schools intervened in the case as well.

    U.S. District Court Judge Ann Aiken, appointed by Bill Clinton, analyzed what felt like a dozen separate constitutional and statutory challenges, which, of course, I studied in detail in order to present you with a full and cogent account of her thinking. Unfortunately, it seems I have run out of space in my column and won’t be able to do justice, so to speak, to this important piece of jurisprudence. If we’re lucky, the news over the next two weeks will be minimal, and I’ll be able to return to this case and give it a really lengthy review. That said, it’s often true that the currents of time sweep these subjects downstream, we become fixated on the here and now, and we allow ourselves to forget. Let’s hope that doesn’t happen to Judge Aiken’s complicated opinion, given that we invested so much time and energy in digesting her words.

    GLBT Fortnight in Review
    Published on January 26, 2023