By Ann Rostow–
Fifth Circuit Examines Bostock
As the last issue went to press, the U.S. Court of Appeals for the Fifth Circuit (not exactly friends of ours) heard oral arguments in a case that pits religious employers against civil rights laws. It’s bad enough that actual churches and, let’s say, Catholic hospitals can ignore workplace protections with ease these days. But can a business owner just announce that he or she is “devoutly religious” and use that as an excuse to require the staff to be heterosexual and cisgender?
In late 2021, the lower court thought that this was just fine, basing the decision on the Hobby Lobby contraceptive case and on the novel theory that when exceptions are made in enforcing a law, religious freedom cases must also have a special carve out. Title VII of the Civil Rights Act of 1964 only governs employment discrimination at larger companies, those with 15 or more employees. Does that mean that because exceptions are being made for small businesses, exceptions must also be made for religious business owners? The High Court has been pushing this notion, particularly in the fight between Philadelphia and the Catholic foster care agency that refused to place kids with gay parents. (In that case, the Court noticed that Philadelphia authorities sometimes intervened to adjust a foster placement after the fact for various reasons, and concluded that these “exceptions” to policy meant that the Catholics could devise their own blanket exclusions. Go figure.)
As I suggested, the Fifth Circuit is a conservative court. But we do have the 2020 precedent of Bostock v. Clayton County on our side, in which Justice Gorsuch and five others ruled that gay and trans workers were protected under Title VII. At least one Trump judge on the panel asked how the folks at Braidwood Management could use faith to avoid Title VII without throwing Bostock completely under the bus. Was this just a rhetorical inquiry, or could the Fifth Circuit actually stand up for civil rights? The case seems to have a standing problem as well, since Braidwood Management is preemptively suing the U.S. government and does not have any actual dispute with a gay or trans staffer.
On the Bench
Meanwhile, over at the Second Circuit, the full court has decided to review the recent panel decision that upheld Connecticut’s right to defend transgender athletes against discrimination. Speaking of Bostock, Connecticut’s policy is based in part on the same notion, to wit that the category of “sex discrimination” by definition includes transgender and gay bias. While Bostock concerned Title VII’s ban on sex discrimination in the workplace, Soule v. Connecticut concerns Title IX, the well-known ban on sex discrimination in public education. Clearly (to some of us more rational thinkers) if trans bias is illegal under Title VII’s ban on sex discrimination, it is just as illegal under Title IX’s ban and any other statute that forbids sex discrimination. At least, that’s what the unanimous three-judge panel thought in this case, when it ruled back in mid-December.
I remember being struck, when Bostock was released, by some odd comments in Gorsuch’s opinion. “Under Title VII too,” he wrote, “we do not purport to address bathrooms, locker rooms, or anything else of the kind.” Really? Of course, Title VII doesn’t necessarily focus on transgender access to bathrooms, but was Gorsuch saying that his ruling would have no impact on these other areas of sex-based discrimination? How come?
Making matters slightly opaquer is the fact that having separate bathrooms based on gender is not considered “sex discrimination,” and nor are certain types of gender-based dress codes. At any rate, the ambiguity has opened the doors to conservative courts and lawyers who insist that the Bostock ruling has absolutely zero relevance to transgender bias under Title IX or to anything but the most narrow and secular employment claims.
I gather that the Second Circuit rarely decides to hear a case en banc, a review that is reserved for important matters and for those rulings with which some other judges on the court might disagree. The Second Circuit has a one-vote edge in Democratic appointees, so that’s good. Still, this is nail-biting time. You recall that the full U.S. Court of Appeals for the Eleventh Circuit recently overturned one of its panel decisions that went in favor of a transgender high school student who fought to use the boys’ bathrooms. Also sitting en banc, that 7–4 court upheld the school district’s anti trans policies, setting the stage for a showdown on this question before the U.S. Supreme Court.
Two other appellate courts have ruled in favor of transgender school plaintiffs, so we now have a Title IX conflict that only the High Court can resolve. The Second Circuit’s opinion a few months from now will add to the mix as the justices decide whether or not to step into the arena. Most people think they will.
Bizarre Report From Queer ‘Ally’ Raises Questions
This is all pretty dismal stuff. And we haven’t even started on state legislative news. Actually, I think I’ll skip that topic, since I can summarize it by telling you that red state lawmakers are piling on the anti-GLBT proposals everywhere you turn. Every red state either has a Don’t Say Gay bill, or is working on one. We have a proposal in Kansas to repeal local civil rights laws. There are anti-trans sports bans, hits to transgender health, and new laws that protect a teacher’s right to misgender trans students. You get the picture, and it’s turned into a panorama shot.
But I want to talk about a related phenomenon. One of the reasons the far right has zeroed in on transgender issues is that they are legitimately complex. That allows them to simplify their positions into comic book memes and hammer home the most outrageous scenarios.
Does anyone want actual men to play on women’s teams or parade naked in the ladies’ locker rooms? Um, that would be no. Do you think a ten-year-old boy should have his genitals surgically removed? I don’t. I don’t care if he, or she, is transgender. That is indisputably a decision for a transgender adult.
But it’s like arguing for choice and having to insist you don’t approve of infanticide. Or, as we did back in the day, trying to explain that gay men aren’t pedophiles. When we wind up defending against these absurd extremes, we lose. And when we try to reframe the debate, we get accused of grooming or wanting babies to die or wanting to disband police departments or wanting kids to read pornography—and we’re back to square one.
No wonder many of us find ourselves reflexively firing back at those on the other side. I know I do. Remember the story about the transwoman in the YMCA changing room the other day? When I first read about it, it sounded as if a pre-op transwoman had been walking around with a swinging dick, and my first reaction was “oh, s–t.” Because that’s just not cool and it feeds into the far-right scenario. It quickly became clear that the woman had fully transitioned years earlier and showed nothing more than her backside while changing. My world was restored. Plus, the ammunition was back on our side since the teenaged girl who reported this “violation” was called out. Phew!
Now this week, I encountered a disturbing account of what sounded like a rogue transgender health clinic in St. Louis, where young girls and boys and their parents had only to snap their fingers to be given the green light for all kinds of invasive medical procedures. No real psych evaluations took place and no one was told to think carefully or transition without intervention for a time. Normally, I’d dismiss such an article and check for a rightwing source, but this writer, Jamie Reed, claimed to be a “queer woman” married to a transgender man who totally supports GLBT rights but could not in good conscience carry on working at this careless facility without taking action.
Say what?!
I was preparing to reread the piece and consider how I would write about it, when I saw that Reed is now represented by Vernadette Broyles, a lawyer who has not only worked for the anti-GLBT Alliance Defending Freedom but also founded the virulently anti-trans Child and Parental Rights Campaign. Another Campaign-affiliated lawyer is also helping Reed, according to an article in the St. Louis Post Dispatch. It’s not clear why Reed has picked up lawyers, but she is now knee deep in Missouri rightwing politics, as lawmakers consider several anti-trans proposals.
Indeed, the timing of her explosive article (in the online publication The Free Press) is suspect. According to the Post Dispatch, Missouri lawmakers heard emotional testimony from trans kids and their parents at a hearing on several bills that would outlaw hormone therapy and other treatments. The testimony was reportedly compelling and the outcome of the hearing was in doubt. Two weeks later, conservatives were waving Reed’s essay about and the bills passed out of committee on a 7–4 vote. Reed has also notified the state attorney general about her concerns and Josh Hawley has introduced a bill in the Senate called the “Protecting Our Kids from Child Abuse Act,” prohibiting federal funds for gender clinics that serve minors and allowing clients to sue hospitals or universities affiliated with gender clinics.
The clinic where Reed worked from 2018 to 2022 was the Washington University Transgender Center at St. Louis Children’s Hospital. It is under investigation and has launched its own inquiry. I’ll be interested in their conclusions.
Grey Areas
I intended to look closely at the brouhaha that developed at The New York Times over the last week or so, but I just could not bring myself to reread various letters to the editors and complaints and statements. The gist of it is that my favorite newspaper published several comments, including a piece in defense of J K Rowling, who in turn is another subject I avoid out of sheer indifference. People accused the Times of being trans-phobic and others accused the accusers of being overly woke and the matter escalated.
I said earlier that transgender issues were complex, and they are. So are matters of gender, race, and sexual orientation. We should be able to talk about ourselves with a degree of nuance. We should be able to acknowledge unusual phenomena without shutting down communication. There are people who stop being gay or regret transitioning. There are Black racists, homophobic gays, misogynistic women. You can be an ally of the transgender community without using strained terms like “people who menstruate” or “chest feeding.”
We should also be able to wonder why we’ve seen a sudden surge in girls with gender dysphoria as well as girls with anxiety, depression, and suicidal thoughts. What’s going on? Is it social media? The articles I’ve read suggest that this is a serious upheaval, not just a case of generational growing pains. If there are destructive underlying factors in society, how are they impacting girls’ sense of gender? Or are they? Some of the studies I’ve seen don’t show a significant gap between boys and girls. Meanwhile, several studies indicate that teens and preteens of both genders are more likely to be trans than older cohorts. Is that increasing social acceptance? Culture? Just a different generation?
And what percentage of preteen and early teen kids are just trying it on, whether “it” is being trans, non-binary, or gay? There’s nothing wrong with that; it’s what childhood is for. But it’s also a stage when irreversible treatments are not appropriate. Puberty blockers are not irreversible, but they have side effects like every other serious medication and they should be careful prescribed and monitored.
Are these topics off limits? They shouldn’t be. As for The New York Times, if I had a dollar for every Times op-ed I disagreed with I’d be a rich woman. David Brooks? Bret Stephens? I do my best to plow through their smug opinions regardless of my disapproval. Every six months or so, I’ll actually agree with something they write.
arostow@aol.com
GLBT Fortnight in Review
Published on February 23, 2023
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