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    Ann Rostow: I’m Still Sad

    By Ann Rostow–

    I’m Still Sad

    I admit, I was pretty depressed when I wrote the previous column. The appellate courts have been a vehicle for gay rights ever since I started writing news a couple of decades ago, and now, for the first time, they are effectively flipping to enemy territory. We had a 6–3 gay rights majority on the Supreme Court through Romer v Evans in 1996 and Lawrence v Texas in 2003. We had a 5–4 gay rights majority for our marriage cases in 2014 and 2015. But now we are headed for an indefinite period of time with a 5–4 antigay majority. God help us.

    Yes, we are likely to see a few good appellate court rulings, but how long will they last with five conservative justices ready to slap them down? Then, consider that thanks to Mitch McConnell, Donald Trump has nominated far more appellate judges than his predecessors to date. Given that even a blue wave may not be tall enough to take the Senate this fall, we could be headed for a prolonged setback in our legal fight for civil rights. It’s dispiriting. Surely there is something else to write about.

    Mel went out to the grocery store by herself while I was so busy “working” on this column this morning, and I immediately stopped and hit the play button on Below Deck Mediterranean, one of the rare vices that she and I do not share. I’m back now, and I feel better.

    Hopkins Rolling in Her Grave

    Here’s something. Penn State basketball coach Rene Portman is dead of cancer at 65. Portman was known for her antigay obsessions, and sued by the National Center for Lesbian Rights on behalf of a player, Jen Harris. The suit was settled out of court in 2007, when Portman conveniently retired. According to her obituary in the Washington Post, Portman had three team rules: “no drinking, no drugs, no lesbians.”

    My my my—a depressing set of regulations, indeed. My personal creed is just the reverse.

    And speaking of dead people, we also said goodbye to Ann Hopkins, the star of the High Court ruling in Price Waterhouse v Hopkins, who died last month at 74 of a rare neuropathy. I’ve often written of this case, and yet it was only in the last year that I read about Ann Hopkins in detail, learning a couple of things.

    I used to assume that Hopkins must have been gay but, in fact, she was not. She was denied partnership due to her masculine manner, a rationale that the Supreme Court ruled in 1989 was a violation of the ban on sex discrimination in the workplace under Title VII of the Civil Rights Act of 1964. But she was actually married with children and not just for show. The other thing I learned was that after she won her case, she went back to Price Waterhouse, got her partnership and worked for years, eventually becoming an iconic figure around the office. And she was also brilliant.

    Part of the reason I bring this up is because conservative lawyers recently asked the Supreme Court to reevaluate Price Waterhouse, a precedent that has increasingly been used to protect gender bending gay and transgender employees, fired or harassed for not fitting the stereotype of a man or a woman. Not too long ago, the U.S. Court of Appeals for the Sixth Circuit ruled that a transitioning funeral director could not be fired under Title VII for violating the company dress code. Nor could the funeral owner hide behind the Religious Freedom Restoration Act (the statute that came to the rescue of Hobby Lobby a few years ago).

    In essence, the Sixth Circuit agreed with the Seventh and the Fourth that gender stereotyping, outlawed by the Court via the Price Waterhouse case, embraced transgender plaintiffs in addition to masculine women and feminine men. Further, the full courts of both the Seventh and the Second appellate circuits have also ruled that discrimination against gay men and women is itself another form of this kind of stereotyping, and should be banned under Title VII. After all, these courts reason, what is more of an offense to gender stereotypes than a man who loves another man or a woman who loves another woman?

    As I mentioned, our legal adversaries at the Alliance Defending Freedom, or whatever they’re calling themselves these days, have asked the High Court to review and reverse the Sixth Circuit, and while they’re at it, the Alliance would like the justices to clarify Price Waterhouse and make clear that the 30-year-old precedent does not apply to gay or transgender employees.

    Meanwhile, these same bozos already have a petition in place asking the High Court to reverse the Second Circuit’s aforementioned Title VII ruling in favor of a gay employee, Donald Zarda. (Zarda!)

    And don’t forget the specter of Arlene’s Flowers, another Christian wedding purveyor who claims state anti-discrimination law should not apply. That case, sent back to the Washington Supreme Court for reasons unclear, could come back to the High Court and thumb its nose at us again. Thanks for nothing, Anthony Kennedy. A strong opinion in the Masterpiece Cakeshop case would have settled Arlene’s Flowers as well, but Kennedy could not bring himself to reach a definitive conclusion.

    With a little bad luck, we could be watching gay and trans rights take a long slide down a slippery slope over the next few years. We let the courts advance our civil rights for a couple of decades, but it seems it is now time to pass the baton over to the legislative side. Let’s vote.

    Does the Dog Die?

    In case you think I spend too much time on legal issues, you should know that I have deliberately skipped a Title VII case out of the Eleventh Circuit, where a three-judge panel ruled against us and where lawyers for a gay client have asked the High Court to review that defeat. I skipped it because I’m not sure whether or not these lawyers still think it’s a great idea to have the new, antigay court take a look at Title VII. See the previous section.

    I have also avoided in depth coverage of the transgender military cases. Several federal appellate courts have thus far prevented Mr. Trump from gratuitously dismissing all transgender troops from the military; that pattern continued recently with a ruling against Trump from the U.S. Court of Appeals for the Ninth Circuit. So far, the administration has not contested these losses, but it’s possible that Trump might ask the High Court to overturn these blockades, allowing him to go ahead with his anti-trans policies. It takes five votes to stay, or in these cases “unstay,” the proceedings, so there’s nothing Trump can do until his ninth man is sworn in.

    That said and this said, I’ll have to break myself of my affinity for legal news, because it’s all going to be a downer from here on in. It’s like switching from watching happily ending action movies, to sitting through black and white films with subtitles, a sick little girl and a dying dog.

    You know, there is a website called “does the dog die,” which warns you whether or not an animal will die in a TV show or movie. I found it while typing “does the dog die” in something I was watching a few years ago, because I cannot stand it when a pet is harmed and I have to be prepared in advance for these disturbing developments. The site is very helpful. It’s too bad that we don’t have a futuristic website called “does the GLBT plaintiff win.”

    Actually, I just took a glance at the website and can see that among the many subcategories, they list the 139 films in which a GLBT person dies. Watch out for Closet Monster, Pitchfork and the Harry Potter movies, among others.

    Nyet-on Yahoo

    Israel’s dance to the far, far right is alarming in many respects, but lately it has hit the gay community hard enough to inspire a national strike. On Sunday, July 22, the streets were filled with protesters after Netanyahu reversed himself on the issue of surrogacy rights for single men and same-sex couples. After pledging to support these gay family rights, Netanyahu folded to his far rights allies and voted to allow surrogacy for single women only in a bill that passed the Knesset on Thursday, July 20.

    The response was massive, with most employers granting employees the day off to join the strike. Tens of thousands took to the streets, calling this the last straw in a rightward shift that culminated in a flurry of last-minute legislation before the Knesset recessed. On the 19th, as you may have read, the legislature passed a bill stating that Israel “is the historic homeland of the Jewish people” [who] “have an exclusive right to national self-determination.” The bill, which effectively puts one fifth of Israeli citizens into second-class status, also downgrades Arabic from an official language, to one with a special status. No, I have no idea what that means, but it doesn’t sound good. 

    Arab minority groups will likely challenge the law in court, but I read here in a Time article that “legal experts say it’s not so clear that the court will intervene,” because “several liberal judges have retired in the last few years and have been replaced with conservative ones.” Sound familiar?

    Indian Summer

    So, India’s top court is poised to repeal the nation’s ban on gay sex. I gather that the ban is something of a technicality these days. But that’s all the more reason to get rid of it, particularly since this was the court that went out of its way to reinstate the antigay section of the penal code in late 2013 for reasons that I never understood, mostly because I never bothered to investigate them.

    The sodomy law had been struck down for consenting adults by the Delhi High Court in 2009, only to be revived by the Supreme Court of India a few years later based on the idea that the law could be repealed by the legislature. Last year, the Supreme Court ruled that gay couples have a fundamental right to privacy under the Indian Constitution, which is why the death of the sodomy law is a fait accompli at this point.

    Dumb and Dumber

    Finally, if you need another reason to dislike the University of Nebraska football team, here’s one: they have just rehired the avowedly antigay Ron Brown to serve as head of, um, player development and outreach. What’s that? You had never thought about the “cornhuskers” one way or another? Well, as you can see, it’s time you did. You can add them to your list of teams you would like to see lose.

    And speaking of losers, I have my handsome cousin to thank for some recent “Darwin Award” winners—those being the sorts of people likely to fail the classic test of survival of the fittest. There’s the guy who reached out when his phone rang in the middle of the night, picked up his gun instead and shot himself dead. Or the lawyer who wanted to show some guests how strong the windows were in his office, threw himself at them, crashed through and fell twenty stories.

    Then there was the guy who tried to bash in his girlfriend’s windshield with his shotgun and blew a (fatal) hole in his stomach in the process. And the guy who tried to refill the bird feeder on his upper floor balcony while standing on a wheelchair. Last but not least was the man who decided to clean out his 54-caliber muzzleloader and used his cigarette lighter to get a better view of what was clogging up the barrel. (Hint: It was gunpowder.)

    Guys, I love you. But does everyone notice that there are no females in the 2018 Darwin winners? I’m not saying we have more common sense. But, well we all know that we do.