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    Ann Rostow: Justice Denied and Delayed

    By Ann Rostow–

    Justice Denied and Delayed

    The Supreme Court has stalled our success in the fight against the Trump ban on transgender military service, allowing the administration to stop enlisting transgender service members while the underlying lawsuits that challenge the anti-trans policy continue in federal court. On the other hand, at least the justices declined to prematurely grab these ongoing cases from the lower courts (which Trump and company had requested), but their 5–4 decision is ominous. It implies that even if we win all four of our current lawsuits before the appellate courts, we will not win a final High Court showdown on this issue in the end. 

    The four lawsuits, which have confused me during the alcohol drenched holiday season, include two West Coast cases, one in California and one in Washington, the two targets of this week’s High Court action. Both courts had issued injunctions preventing the Trump ban from going into effect during the litigation, and these injunctions were put on hold by the five conservative justices last Friday. A similar injunction was reversed earlier this month in a third lawsuit by the U.S. Court of Appeals for the D.C. Circuit. A fourth injunction is still pending review in Maryland, where we assume it will either be denied, thanks to this signal from the Court, or if granted, quickly fall victim to another High Court stay. 

    Injunctions are granted when courts believe the plaintiffs are likely to win and/or when the injunction is needed to prevent a hardship or to preserve the status quo while a major change is under consideration. Here, by staying the injunctions, the justices are telling us essentially that transgender troops don’t belong in the military and that the government is legally within its power to prohibit their service. This is a complete about face from the prior consensus that Obama-era rules allowing open transgender service have not harmed military readiness and that the arbitrary Trump tweet that ushered in the transgender ban did not deserve deference from the courts.

    Part of the setback is explained by the fact that former Defense Secretary Jim Mattis was ordered to clean up Trump’s incoherent 2017 decision, which seemed based on the false premises that no transgender troops were currently serving (there were thousands) and that any who were about to join would carry along enormous medical bills as they all promptly transitioned on the military’s dime. (It was quickly shown that transgender medical coverage would cost a fraction of the military’s bill for Viagra alone.)

    The Mattis policy grandfathers currently serving transgender troops who may remain on duty, but bans any new recruit with a formal diagnosis of gender dysphoria, and lets other transgender troops join the military if they aren’t transitioning and remain in their birth gender. This ludicrous allowance was apparently enough to satisfy the D.C. Circuit Court, and now seems to satisfy the five conservatives on the Supreme Court as well.

    The Court’s January 18 conference was the last opportunity for the justices to add new cases to the current 2019 docket, so we seem to have ducked several near-term confrontations on the question of whether existing civil rights laws protect GBLT workers from discrimination on the job. One article I read suggested that Chief Justice Roberts, and maybe Brett Kavanaugh, seem inclined to postpone contentious issues for the time being, but who knows? Have we just bought a little time before an antigay Court slaps us back to 20th Century gay rights jurisprudence? Or are there grounds for optimism?

    Travel Advisory

    My news list is filled with random musings about extraneous topics ranging from black holes, to Clinton’s emails, to the Clemson dinner at the White House and how much I hate the Verizon spokes-bro. Where, I ask myself, have I listed the trenchant issues surrounding the vibrant GLBT community? Have I not been paying attention, or have I descended into a miasma of post-gay disfunction, limiting myself to the bright and shiny legal stories that hover over the darkness and catch my eye?

    Horrible things, for example, are happening in Chechnya, where authorities have been rounding up both gay men and gay women, urging families to murder their gay relatives, holding some people for ransom and torturing others. Two people have reportedly died in custody, and the State Department has issued a stern warning to the Russian government:

    “We are deeply disturbed by credible reports out of Chechnya about renewed attacks against individuals perceived to be members of the LGBTI community,” says the release. “Civil society groups report that at least 40 individuals have been illegally detained since December, including two who reportedly died in custody after being tortured. We call on Russia to live up to its international obligations and commitments and its own constitution, and launch an immediate investigation into these human rights abuses. We also urge the Russian Federation to ensure that the rights of all human rights defenders are fully respected in Chechnya, and those illegally detained … be immediately released.”

    I’m sure we can expect a quick response from Putin and company, considering their delicate sensitivity to gay civil rights. 

    Welcome Sphengic

    Meanwhile, gay Australian penguins Magic and Sphen have earned an additional fifteen minutes of fame after becoming the first and only parents in their colony to hatch a chick. The chick, sadly named “Sphengic,” is doing well, and was recently determined to be female after genetic testing. Apparently, it’s difficult to discern a penguin’s gender with the naked eye.

    After the two penguins had been observed collecting ice pebbles for a nest and fussing about, the zookeepers gave them an extra egg that would normally have been abandoned by a heterosexual pair. During the hatching season, while the straight penguins carelessly let their eggs get cold and die, Magic and Sphen stayed on their nest and took care of their egg, which hatched in October. Subsequently, they have been busy teaching the chick about the mysteries of the penguin world, and according to press reports, have done a great job raising the little one, particularly Sphen who is said to be the more responsible parent. Magic, the younger penguin who initially had been seen playing and cavorting instead of role modeling, has since been feeding Sphengic, helping to tuck her into bed and singing to her.

    As for the name Sphengic, this cumbersome portmanteau is an unworthy moniker for such a charming media star. Happily, The New York Times says the name is temporary.

    See You in 2044

    I have a couple of stories about conversion therapists gone rogue, including one from Israel about a guy who sexually abused his “patients,” and one about a Mormon ex-gay who has given up the fight and turned gay-gay once more. (For the record, New York just joined the several states, including California, that ban conversion therapy.) 

    I used to relish these items, as well as the many accounts of hypocritical gay bashers caught on Grindr or traveling incognito with a boy toys, but I find my interest in such shenanigans waning as the years go by. They no longer seem central to our communal life, if there still is such a thing.

    Speaking of time passing, I wrote what I thought was a clever article for the Bay Times back in 1994, when we were celebrating the 25th anniversary of the 1969 Stonewall riots. It was written from the perspective of 2019, purporting to look back at the gay rights movement on the 50th anniversary of Stonewall, and I never kept a copy. Editors? Is it lurking in a file cabinet somewhere?

    I remember that I predicted the High Court had outlawed sodomy prohibitions and passed marriage equality, but first, those weren’t such tough calls, and second, I wrongly predicted a marriage ruling based on the Full Faith and Credit Clause, which was the legal justification du jour. I also wrote that the National Gay and Lesbian Task Force was disbanded and I may have tossed the Human Rights Campaign out as obsolete as well. I can’t remember what other prescient conclusions I boldly put in print, but my main reason for bringing this up is that I can’t believe a quarter century has gone by and I’m still around speculating on GLBT civil rights in these very pages! I’m not sure whether that’s an accomplishment or a sad testament to my obsession with a single, albeit vast, topic. Whichever, the lengthy timespan may hint at why I’m sick of people like Mormon ex-gays. I’ve earned it.

    Judging Karen

    In other news for which I’m having a hard time amping up my enthusiasm, I find myself not caring about Karen Pence and her new teaching position at the antigay evangelical school where she used to work. I should care. I have many emails and links to commentaries that point out how wrong it is for the wife of the Vice President of the United States to align herself with an institution that denounces gays and lesbians as abhorrent and, of course, I agree.

    Indeed, if you read the school’s Biblical policies, it’s evident that the school is not simply “Christian,” whatever that means these days. It’s crazy, verging on cult-like. The notion that this is a case of respect for religion conflates your average churchgoer with a fanatic extreme that believes, “Christ will, prior to the tribulation, catch away His church [sic] and return to rule during the millennium,” and that “there exists a real personality who is the author of sin and god of this age, called Satan.” 

    More importantly for me, we are talking about Karen Pence. Karen can go jump in a lake and baptize herself naked once a week, for all I care. She can wander the grounds of the Naval Observatory screaming like a banshee all night long. She can try the Tide pod challenge, or run out before the Super Bowl and beat on kneeling players with her little fists. I don’t care what she does, period. 

    I was going to write that she could turn the family pet, Marlon Bundo, into lapin a la moutarde, but indeed that would actually bother me, so I suppose I’m not entirely indifferent to the actions of Karen Pence, but it’s very close.

    Black Holes and Hillary

    Finally, I sort of want to cross black holes and the Clinton emails off my random subject list, and I’m sure you all want to know what I may have to say on these matters. First, I’m no physicist, but as far as I know, a black hole is not a “hole,” but a collapsed star so dense that not even light can escape its gravitational pull. Ergo, it will look black since no light will reflect it, and it will suck in and instantly mash to bits anything that hits its event horizon. 

    That said, I’m tired of reading and hearing casual remarks in articles and elsewhere about what’s inside a black hole or whether or not something can survive a black hole or go through it. I’m not talking about the esoteric question of whether information is lost in a black hole, which I’m not equipped to understand. I’m talking about regular people blathering about “the other side of a black hole” as if it’s an actual hole. It’s not!

    Second, I’m annoyed that whenever the issue of “Clinton’s emails” is broached, the media never points out—even in passing—that the FBI looked through 40,000 emails and found only three classified items, two of which had a little “c” next to a paragraph and all three of which were classified after the fact. For this she was investigated for months and months and then accused of carelessness based on the idea that someone could have hacked these non-classified messages, although no one did. 

    The Clinton email debacle is still treated like an actual scandal, when it should be dismissed as a media rabbit hole that was weaponized by her political foes. Let’s add that all her emails were sent or received to or from others, so there were no secrets, nor did any of them elude government records. And finally, for Republicans who continue to shake this tree, what exactly do they think Clinton was “hiding” in what was basically an open database? Why is this two-word phrase still used as a shorthand to describe some suspicious kind of shady operation that we still don’t understand, when the entire sequence of events is public knowledge? As for the personal emails that she deleted (done by attorneys), since when does a candidate owe the electorate a full airing of their personal correspondence? 

    I feel better now.