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    Ann Rostow: Only in Oslo

    By Ann Rostow–

    Only in Oslo!

    I know I should begin with the big news that the Supreme Court has decided to review a transgender health care case, specifically the Sixth Circuit decision in support of Tennessee’s ban on trans youth medical treatment. It’s kind of good news, since we like it when the High Court accepts review of an anti-GLBT decision. But it’s kind of bad news since we now run the risk of a bad Supreme Court precedent. 

    But that story will have to wait since I just encountered a click-bait headline that reads “32-Year-Old Woman Arrested After Dead Body Was Found in Her Car Following Accident on Minnesota Highway.” 

    Say what? Tell us more!

    According to People Magazine, an array of first responders were called to a single vehicle accident on IH90 at 7 am on June 22 in Olmsted County. There they found Margot Lewis outside her car with a bystander trying to help. When the police checked the car, they found a 35-year-old woman dead in the back seat, and no, she didn’t die from a car crash. Lewis was treated at a hospital and released into police custody. 

    We need to pause and suddenly find ourselves “Six Days Earlier” as we do on streaming police thrillers. Oh, and we also have to be somewhere in Scandinavia. Now we see Margot coming out of the grocery store and bumping into the Dead Woman, who drops her own grocery bag. “Jeg er så lei meg!” Margot cries. We fumble around to put up the subtitles. It looks cold.

    High Court Tees Up Trans Case

    You and I, dear Reader, have discussed the complexity of transgender youth health policy on many occasions, most recently in the context of England’s two-year study that led the national health mucky mucks to restrict youth treatment to case-by-case evaluations. The new wariness of these and other European medical authorities is based on a dearth of scientific data given that transgender outcomes from puberty to, let’s say, middle age, are not really measured. For one thing, the treatments we now use are relatively new. For another, transgender kids are only about one percent of all kids. And lastly, we’ve only started thinking and talking seriously about gender identity in the last decade or so. 

    So, we don’t really know which treatments work, which treatments do lasting damage, which ones are reversible, and which kids should be treated in the first place. It’s equally wrong, given these circumstances, to ban everything or to allow all, which is why various European governments have settled on dealing with kids on a case-by-case basis. 

    In our country, we don’t go in for compromise! And when it comes to all or nothing policies, there’s nothing like the Supreme Court. So far, it seems as if the Supreme Court has been avoiding tough trans cases, but it seems as if they have finally taken the bit between their teeth. The petition they’ve accepted is (as we already said) an appeal of the Sixth Circuit’s ruling in favor of Tennessee’s anti-trans health care law. The appeal was filed by the U.S. Justice Department, and it asks whether or not the Tennessee law violated the Equal Protection Clause given that puberty blockers cannot be used for transgender treatment but are still considered okay for other patients. 

    There was another challenge to the Sixth Circuit’s Tennessee ruling from the ACLU, Lambda, and others, which additionally argued that the ban violated the Due Process rights of the trans kids’ parents. Parental rights are sacrosanct under the Constitution, and, of course, the state mandated denial of all treatment seems to trample on the rights of those parents that seek happiness and health for their children through proven medical strategies. It’s interesting that the Court deliberately sidestepped this petition, limiting their assignment to a single constitutional inquiry.

    You may recall that a state can violate the Equal Protection Clause when a law is “narrowly tailored to a compelling state interest.” With that in mind, The New York Times informs us that the bill “included language that Tennessee had a ‘compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,’ and in prohibiting procedures ‘that might encourage minors to become disdainful of their sex.’” I don’t know if the Volunteer State had some other compelling interests to justify their possible constitutional trespass, but, if not, I’m not sure preventing children from becoming “disdainful of their sex” would pass muster.

    Qu’est Ce Qu’il A Dit?

    Meanwhile, a lower court federal judge in Tallahassee has blocked Florida’s attempt to ban trans youth treatment in a decision sure to be appealed to the Eleventh Circuit. That appellate court has already ruled in favor of red state lawmakers in a preliminary motion, allowing a health care ban to go ahead during litigation in either Georgia or Alabama. If I had to bet, I’d say that case was out of Alabama, but I will check for you. Yes! I was right! (Cue: theme from Rocky.)

    That judge was one of Bill Clinton’s nominees, and speaking of judges, I just read a really great analysis of the damage inflicted by Trump’s far right appointments to the federal bench. We are always seeing Republican administrations name conservative judges and Democratic administrations rally behind liberal judges. But Trump has pushed unqualified ideologues who can’t even get a “meh” from the bar association. These guys are reprehensible and Chris Geidner of Law Dork just wrote a great article summing up their depressing “accomplishments.” 

    Speaking of transgender news, I spent a long time just now trying to find out exactly what French President Macron said the other day while campaigning for parliamentary elections coming up June 30 and July 7. Macron’s centrist party is fighting a two-front war against the far right Le Pen-like factions and the far left socialists and communists. In an effort to compare the problems coming from both wings, Macron complained that the push from the left to be able to change your gender at the local city hall was “grotesque.” Elsewhere, I saw this comment translated as “crazy.” 
    But I speak French pretty well! I lived in Paris for many years and spoke fluently at the time. I could certainly decide for myself whether or not Macron deserved a sad shake of the head or red-hot anger. But I couldn’t find his exact words in French anywhere. Here’s where I lost a good 30 minutes, googling “Macron verbatim anti-trans comment,” or “Macron anti-trans comment in French,” or words to this effect. And I have to confess; I just wasted another ten minutes on this quest after telling you about my failure. 

    On the other hand, I’ve learned a great deal about the French elections, and will spare you a run down. 

    His Public Idaho

    There was a feel-good Pride story in The Washington Post the other day, a one-man Pride committee who engineered a surprising festival in Nampa, Idaho, the Spud State’s third largest city. According to the Post, Idaho has led the nation in many categories of anti-GLBT legislation and policy. Moreover, this is the state where a frightening group of armed rightwing nutcases threatened a Pride gathering in Coeur D’Ilene a couple of years ago, but were dispersed before they could do any damage.

    None of this seemed to dampen the spirits of 27-year-old Tom Wheeler, who celebrated Pride for the first time back in 2015. Things seemed to be improving for the GLBT community back then, beginning with the High Court’s marriage equality ruling that summer. But lately, it’s been going downhill fast. Wheeler was repeatedly warned against violent protestors and obliged to operate within an outdoor enclosure fenced for the occasion. As the day approached and publicity increased, he started getting mean phone calls. He had used some of the money that was donated to the event to hire security guards.

    In the end, some 2,000 people came to the peaceful day-long festival, overcrowding the enclosure and far surpassing the fifty to a hundred people that Wheeler and his friends expected. A few protesters hung around outside, but eventually left without creating much of a fuss. It was the first Pride event ever mounted in the history of the county, and it seems it came at a time when our beleaguered community needed to feel the type of solidarity we craved at the end of the last century; the type of solidarity we thought we had moved beyond.

    Binding Precedent Unbound

    Finally, I am beyond frustrated by the laborious process of implementing the Supreme Court’s 2020 ruling in Bostock v. Clayton County, the surprising GLBT rights victory, authored by Neil Gorsuch. In Bostock, the 6–3 majority ruled that “sex discrimination” by definition includes “sexual orientation and gender identity discrimination.” Although the decision came in reference to a claim under Title VII of the Civil Rights Act of 1964, its logic clearly would extend to bans on sex discrimination in other federal laws, in particular Title IX of the Education Amendments of 1972, which bans sex discrimination in public education. 

    Fast forward to Day One of the Biden administration, when the new President issued an: “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which reviewed the Bostock ruling and called on each federal agency to report within one hundred days on ways in which the ruling could impact agency policies. The Education Department clearly had much to say, given the scope of Title IX, and the obvious sense that Bostock’s interpretation of sex discrimination in Title VII equally governed Title IX. 

    Since that initial guidance, issued in 2021, we have produced endless rules and opinions and suggestions and reports and God knows what, all of which have been contested by the far right. In late April, we finally received the “Final Rule” guaranteeing trans rights (and gay rights) throughout the federally funded schools and universities, and were promptly met with lawsuits galore. 

    My initial reaction to the fuss and bother that greeted this formal rule was to ignore it based on the naive notion that Gorsuch and the Supreme Court must prevail in any legitimate judicial forum. Um, no. Thanks to legal eagle Chris Geidner, I can tell you that, in recent days, no less than two federal judges have blocked the Final Rule, while a split Sixth Circuit panel has blocked the official guidance that preceded it. (There are many active lawsuits challenging the guidance.) What could they possibly have presented as a legal explanation for failing to follow the requirements of a High Court opinion? 

    As it turns out, a bunch of hooey. The Sixth Circuit ruling was a bit of a technicality, ruling that the people behind the guidance should have required a period of public comment. Geidner noted that the dissenting judge correctly made the point that the guidance was not a new law, but an interpretation of existing law and did not require a comment period. 
    As for the two judges who reviewed the Final Rule, one of them decided that Title VII and Title IX were so different that Bostock didn’t apply to the Title IX case. “Bostock does not apply,” wrote Judge Terry Doughty of Louisiana, “because the purpose of Title VII to prohibit discrimination in hiring is different than Title IX’s purpose to protect biological women from discrimination in education.”  

    The second judge, Danny Reeves of Kentucky, seems simply to believe that the High Court got it wrong in Bostock, normally not an avenue available to a federal judge. “The Department exceeded its statutory authority in redefining ‘on the basis of sex’ for purposes of Title IX,” he wrote. “Like the district court in Louisiana, the undersigned is not persuaded that the ordinary meaning of sex includes subjective gender identity.”

    You know what, Danny? Justice Gorsuch and five other members of the U.S. Supreme Court were persuaded that the ordinary meaning of “discrimination because of sex” as it’s used in these laws, did indeed include gender identity and sexual orientation. So, you can take your personal hesitation and stuff it where the sun don’t shine. Reeves also thought the Final Rule stifled the First Amendment rights of, for example, teachers who might not want to use their students’ preferred pronouns. Let’s just stop there.

    GLBT Fornight in Review
    Published on June 27, 2024