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    Ann Rostow: Once More unto the Breach

    By Ann Rostow–

    Once More unto the Breach

    As this issue goes to press, the House is poised to pass our signature civil rights legislation, the Equality Act, for a second time. Last session’s efforts went nowhere in the Republican controlled Senate, where the Act was not brought to committee. But this time around we should at the very least get some hearings and attention. 

    Will we get the required 60 Senate votes to defeat a filibuster? Well, you can count, can’t you? The answer to that is no. Even our friendly “moderate” Republicans are reluctant to support us. Mitt Romney worries about “religious freedom,” while our hardcore opponents hint at a range of anti-trans horrors featuring tough high school boys who barge in on the girls’ tennis team and prance around the locker room. These little bruisers, our adversaries imply, may be able to present themselves as trans-girls on their say-so alone, giving themselves legal permission to violate the full range of privacy issues like the kids in those summer camp movies who sneak peaks at the hot counselor in the shower. There are many other absurd scenarios that play out in the minds of anti-GLBT lawmakers, much as the notion of marriage equality triggered fears of marrying animals or several people at a time. 

    Indeed, part of the difficulty in passing the Equality Act lies in its admirable breadth and power. The Act will amend the Civil Rights Act of 1964 to add sexual orientation and gender identity to those sections that outlaw discrimination in the workplace, in public accommodations, in education, and elsewhere. It will also amend the Fair Housing Act to prohibit GLBT bias in housing. And it makes clear that the federal Religious Freedom Restoration Act cannot be used as a defense against violations. (Recall that the infamous Hobby Lobby case, which allowed the crafts chain to avoid providing birth control under Obamacare, was based on that statute and its state-based progeny.) 

    All this suggests that the Equality Act, like much of the Biden agenda, will require Congress to remove the filibuster and allow legislation to pass with a bare majority. That, in turn, requires conservative Democrats like Joe Manchin and Kyrtsen Sinema to change their minds about the idea, which itself requires a simple majority. 

    There is also some talk of revising the filibuster rules to make it easier to sidestep rather than killing it outright. As you know, the Senate is already allowed to use a simple majority for budget-based legislation and for nominees. What if the filibuster required the old-fashioned speechifying, Frank Capra-style, and forced opponents to actually stand up in the Senate and hold the floor? For now, it just requires a few motions or something, I’m not really sure, but it’s an easy process.

    There are other tweaks to the rules that could open the door to passing partisan bills without leaving Democrats vulnerable to a future Republican majority. Perhaps Joe and Kyrsten would be more amenable to different types of revisions. After all, Democrats will be trying to pass a cascade of bills, from immigration to infrastructure, with no votes to spare and perhaps only two years to achieve our goals. Wasting time on fruitless Senate hearings is to no one’s advantage, and although Mitt Romney and Susan Collins might swing our way now and then, a sixty-vote decision on major bills is unlikely.

    Waiting for Congress

    The Equality Act is critical for a number of reasons. We were all pleased as punch when the Obama administration put GLBT civil rights in place throughout the federal government by executive order. Our happy faces turned to frowny ones when Trump reversed most of Obama’s helpful policies. Now, we’re smiling again after Biden reversed most of Trump’s nasty handiwork. You can see that this is not a sustainable pattern. 

    Second, I’m sure you haven’t forgotten our incredible Supreme Court victory from last June, when the 6–3 Court in Bostock v Clayton County ruled that GLBT people were covered by laws that outlawed sex discrimination. Surely, that opinion provided much of the civil rights protections we need, right?

    Well, yes. That is to say yes, if you want to file a federal lawsuit every time some agency or company fails to interpret this Supreme Court precedent the way we prefer. Keep in mind that the Trump administration simply ignored the Bostock ruling for the duration of its term. And keep in mind as well that Bostock’s author, Justice Gorsuch, left his opinion ambiguous when it comes to things like transgender access to facilities.  

    But, more importantly, look at the rules on public accommodation, where sex discrimination isn’t a thing. Public accommodation, the right to do business with bakers and butchers and candlestick makers, is probably our major battlefield in the years ahead. The Equality Act will add us to the list of those protected under the Civil Rights Act of 1964 for access to the public marketplace. And here, Mitt Romney and his ilk will likely draw the battlelines. While the law makes clear that you can’t refuse to serve someone based on race, God forbid an uber-Christian business might be forced to accept a gay or trans client.

    In 2019, Republicans came up with a “compromise” to the Equality Act called the “Fairness for All Act,” which creates huge loopholes for religious actors in all aspects of GLBT civil rights. Sure, we’d be protected against discrimination. But anyone with a Bible and a “Jesus Take the Wheel” bumper sticker could opt out. And these are the very same people we need protection from in the first place. It’s like a race-based civil rights package that excludes Klan members and white power groups. Hello? No thanks. I’m guessing that this toothless alternative might be brought up for discussion in the weeks ahead.  

    Trans Is the New Gay

    It’s open season on transgender men and women, who are taking the brunt of society’s residual disdain for GLBT people. I say residual because gay men and women, particularly straight-acting Mayor Pete-type gays and lesbians, are out of the shadows. As long as someone’s not a complete nutcase, they probably no longer look down on regular old gay people. We’re fun and good neighbors! (Hey, I love Mayor Pete, but you know what I mean.)

    Remaining on the margins are those who defy stereotypes, including super femme men, super butch lesbians, anyone transgender, and anyone non-binary. Mess with the hard borders of gender and you’ll have a red state legislature on your tail as quick as a bunny. I guess there are some 20 or more bills now pending across the land purporting to protect women’s sports or women’s bathrooms against the predations of their transgender sisters. 

    People aren’t so scared of transmen, oddly. I don’t really care who joins me in the public bathroom, but I’d be a little taken aback by a burly bearded transman at the next sink. And yet he’s the one those red state lawmakers want to allow in the ladies’ room, while a transwoman is supposed to fix her makeup next to the urinals. 

    One exception to that rule are the owners of the Camp Boomerang RV park in Orleans, Michigan, who won’t let transmen into their gay campground. Only people with penises and male-gendered paperwork are allowed to enjoy the many delights of Camp Boomerang. 

    “Let’s be real here,” said owner Bryan Quinn on the Camp website. “If we let women that act like men in, and they go naked at the pool, that’s when it’s obvious that there’s no penis. Sorry to put it bluntly. But if you don’t like the rules, quietly leave.” 

    Not surprisingly, the rules have drawn a backlash. What is it with Michigan and transgender men and women, anyway? It’s tough enough to fight for transgender rights without battling discrimination in our own community, but our own discrimination remains entrenched. Let’s be real, Bryan. Even the most straight-acting, church going, family man or lesbian mom is violating gender norms in his or her own way. This is what all GLBT people have in common and this is why the fight for transgender rights belongs to all of us. 

    Whither Amy Coney Barrett?

    So, here’s a possible big story. The school district in Gloucester County, Virginia, has asked the High Court to hear the appeal of our old friend, the Gavin Grimm case. I know it rings a bell, right? To make a very long story short, the case asks whether or not a public high school is obliged to let transgender students use the facilities that match their gender identity. 

    This is a question the Court has not addressed, and it’s one that is very much up in the air. As I said, Justice Gorsuch left the whole issue of transgender rights outside the workplace for another day in his Bostock opinion. Even so, the U.S. Court of Appeals for the Fourth Circuit relied on Bostock in ruling in favor of Grimm, the transgender former high school student who has been suing for a donkey’s age. The Fourth Circuit reasoned that if sex discrimination protections in the workplace include transgender people (as Bostock dictates), then sex discrimination protections in education likewise include transgender people regardless of Justice Gorsuch’s reticence on the matter. Makes sense, right?

    At any rate, if the Court accepts review, it will be a huge deal. Actually, it will be a pretty huge deal if they avoid review, which would imply that they agree with the Fourth Circuit’s legal logic. We’ll see. 

    Meanwhile, we’re waiting for a High Court decision in the case that pit the city of Philadelphia against a Catholic services group that discriminates against gay foster parents. The case was argued in early November, just in time for Justice Barrett to have been seated, and the ruling will clarify where this Court may go on questions of religious freedom and GLBT rights. 

    Are you excited? I know, I know! Giddy times.

    Cray Cray

    Let’s see what else. I should have found room in my comments about state legislators to tell you about one lunkhead from Arizona, state senator John Fillmore, who is sponsoring a bill to make clear that state identification papers must designate male or female, and cannot reflect non-binary status.

    “What’s going to happen when someday someone wakes up and they want to go to a far extreme and identify as a chicken or something, for crying out loud,” Fillmore asked in a recent hearing. “Where do we draw the line?” 

    You know what bugs me about guys like this? It’s not even the ridiculous remarks. It’s the energy they expend on pointless legislative showboating. Just the other day, the QAnon congresswoman, Marjorie Taylor Greene, co-sponsored a bill called the “Old Glory Only Act,” which will prohibit U.S. consulates and embassies from flying anything other than the American flag. I’m not sure who initiated this waste of time, but, for the record, no flag is ever allowed to replace or surmount the stars and stripes. On the other hand, American outposts have often flown other flags below the main one, including Pride flags during June. So, I guess Greene and company think it’s worth spending some political capital to ban that innocuous practice. 

    Speaking of QAnon, I must confess that I ignored them for a long time, assuming that the ideology represented only a tiny fraction of damaged people, who were getting a lot more media attention than they deserved. But, given the number of articles I’ve read about people struggling with a QAnon adherent in their families, it seems as if a disturbingly large chunk of Americans are dipping into this menu of conspiracy theories. I’ve read about normal individuals being sucked into sheer lunacy like fragile teenagers—parents, siblings, or spouses gradually losing their grip on reality and entering a world that cannot be reached through reason, facts, or evidence. And it’s happened quickly. Over the last year or so.

    Is this what we’re coming to?

    Published on February 25, 2021