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    Ann Rostow: Send in the Clones

    By Ann Rostow

    Send in the Clones

    At some point last week, I reached a cable news breaking point. I think I may have been watching Rachel. The details are sketchy. She was talking about Mueller, who may or may not have asked for certain documents from either the Trump campaign or the Trump organization. She started going down side streets even as her main news highway had already become too narrow for me to navigate, and I just lost it. I saw her lips move and I heard English words emanating from the TV, but they were unintelligible.

    It’s starting to become a little dreamlike, don’t you think? Have you noticed that two men who have been fired from the White House both looked like identical Ken dolls? Do you think that there are others like them in the West Wing? Because I had never seen those first two Ken doll guys before. What if there are six or seven of them? Where might they have come from with their wife beating and gambling addictions? Are they clones with genetic defects? 

    And why do cable news producers allow the people on their shows to speculate on top of speculation to the point where their fellow panelists are gravely nodding about whether or not Mike Pence might replace Jeff Sessions as Attorney General if Trump were to resign. Oh my God, dear Readers, I want to scream.  

    “And now we’re grateful to have GLBT news writer Ann Rostow here to discuss the latest West Wing staff shakeups. Ann has an interesting theory … .”

    “Yes, Mika, thanks for having me. I was thinking that some of these staffers might be clones, and that some of the clones might have problems, like the wife beating guy who looks like the other gambling addict.”

    “Oh God, I hope not! Willie, what do you think?”

    “Well, they did look alike.”

    “And I saw a Star Trek episode where they cloned clones and eventually the clones had a number of defects.”

    “Well, you can’t make this stuff up! We really have to take a break. Ann Rostow, thank you very much!” 

    Rabbit Redux

    Before we start on serious GLBT news, I was reminded, speaking of Mike Pence, that John Oliver has published a book about Mike Pence’s family rabbit, Marlon Bundo. I gather that the Pences were poised to release their book, Marlon Bundo’s A Day in the Life of the Vice President, written by Second Daughter Charlotte Pence and illustrated by Second Lady Karen “Mother” Pence. However, Oliver got the hop on the Veep-sters, and published his own A Day in the Life of Marlon Bundo one day before the Pence release.

    In Oliver’s book, the eponymous bunny sports a bow tie and is in love with another male rabbit. For a time, at least, the gay version topped Amazon best-sellers list, while the Pence book lagged at fourth. I just checked the list myself and noticed that Jim Comey’s book is listed at number two, even though it will not be released until mid-April. I also noticed that gay Marlon Bundo has over 3,000 reviews, while the Pence’s pet has just 64. 

    The proceeds of both books go to charity: the Pence profits to kids with cancer and a group that fights human trafficking; the Oliver receipts to the (anti-bullying) Trevor Project and an AIDS group. When asked for her reaction, Charlotte Pence graciously said the more money raised for these important causes the better.

    EEOC Still on Our Side

    I have important subjects to discuss on a day when I’m in a silly mood. Not only are they important, but they’re also confusing, which adds to my personal annoyance. 

    One concerns the Equal Employment Opportunity Commission (EEOC), the hugely important federal civil rights agency, led by five members, appointed for five-year terms by the administration, with no more than three members representing the same political party. (I told you it was confusing!) Under Obama, the agency was a powerful champion of gay and trans rights so, of course, we fully expected the agency to turn sour, much as the Justice Department has predictably reversed itself on gay rights from Obama to Trump.

    Interestingly, the EEOC was still on our side last fall when the full U.S. Court of Appeals for the Second Circuit heard arguments in the Title VII sex discrimination case brought by the estate of a dead gay skydiver. You remember that case. Zarda! (Cue sound of slashing sword). We won a fantastic 10–3 victory a few weeks back when the appellate judges ruled that gay discrimination is inherently a form of illegal sex discrimination. I remind you today only to point out that the EEOC argued in favor of the gay plaintiff, while the Justice Department entered the case to explain why sexual orientation is not covered by the federal statute. In other words, the government argued both sides of the debate, which did not go unnoticed by the court.

    So, it turns out that we have had two vacancies on the Commission for some time, leaving the EEOC with a 2–1 Democratic slant, and without a permanent top litigator (General Counsel). To date, the Senate has declined to confirm the two Trump nominees, neither of whom has shown any friendliness to our community. I’m guessing that the craziness of this administration has hampered the ability of Congress to take regular action on regular things. You know what? I haven’t the slightest idea as to why the EEOC has remained Democratic over a year into the Trump administration. It’s just nice, that’s all.

    On March 20, Trump nominated Sharon Fast Gustafson to become the General Counsel of the EEOC, an ominous development for the gay community, given what looks like her conservative bent. But until the Senate takes action, we still enjoy a progressive EEOC, one which just filed a friend of the court brief in favor of a gay Missouri man, Mark Horton, who claims his job offer was pulled on account of sexual orientation. That case, yet another Big Gay Title VII case at the federal appellate level, is pending at the U.S. Court of Appeals for the Eighth Circuit.

    Old Man Donald Had a Farm, Eeiiy EEOC

    Perhaps you skipped that last story. Perhaps you think that the mindset of some federal agency doesn’t really matter in the grand scheme of things. Oh, but you’re so wrong. I was just reading, for example, about yet another federal appellate court ruling in our favor (they just don’t stop) and this one in a case that was actually filed by the EEOC itself. The case involves a transgender Michigan woman who was fired for transitioning at the funeral business where she was a director. And let me repeat, this case was filed by the EEOC, which lost at the district court level. The fired woman was given permission to intervene as a co-plaintiff during the appeal at the U.S. Court of Appeals for the Sixth Circuit.

    Do any of you think Sharon Gustafson, or either of Trump’s two EEOC nominees, are likely to take it upon themselves to file suit on behalf of a transgender employee? Correct answer: No. 

    In this case, which could well be petitioned to the Supreme Court, the funeral home tried to wave the flag of the federal Religious Freedom Restoration Act (RFRA). (I like to pronounce it Scooby Doo-style. “Ruhf Roooow!”) You may remember that our friends at Hobby Lobby relied on the Ruhf Rooow! in their unfortunate High Court victory over the Obama Administration, successfully arguing that the U.S. government had overstepped in forcing an organization owned by people of faith to facilitate access to contraception. 

    Here, the unanimous three-judge panel ruled first, that transgender discrimination is not simply impermissible gender stereotyping, but it is also inherently a form of sex discrimination—and ergo illegal under Title VII of the Civil Rights Act. As for the RFRA (Ruhf Rooow!) it does not protect a religious actor against a law that is narrowly tailored to serve a compelling state interest. Title VII’s civil rights guarantee is not only compelling, said the court, but it is also precise. 

    In the Hobby Lobby case, Justice Alito ruled that the Obama Administration had made an exception for religious employers and should grant the same exception to closely held companies with religious owners. But there’s no special version of Title VII for religious people who own companies. 

    Keep Your Clothes On, Pal

    My attention was just caught by a link to Towleroad, that read: “19-Year-Old Gay City Councilman’s Nude Grindr Photos Mailed to City Hall in Shaming Attempt: WATCH.” Turns out our young politician, Cross Coburn, a councilman in Groves, Texas, has a profile on Grindr and has been grinding around for dates. Nothing wrong with that, except when your nude selfies and penis shots are sent to the local press, along with your sexty messages about how horny you are. 

    The gay press might call that a “shaming attempt,” but I call it par for the course if you make yourself a public figure, if you run for office, and if you ask to represent people on a city council. It’s a nasty thing to do to the average man about the town. But if you want to be a politician, you simply have to keep your junk out of cyberspace. You can’t have it both ways.

    The photos were sent anonymously, with a note that said: “Is this in any way proper behavior of a councilman to represent himself online or a ‘dating’ app? I felt the city council should be made aware of the situation.”

    You know what? If this anonymous citizen had taken secret pictures or stalked Mr. Coburn, or followed him into the bars with an iPhone, that would be one thing. But Coburn posted these images in what everyone must admit today is a public space. Is that any way a councilman should represent himself online? Actually, no.


    Finally, Kate Kendell, head of the National Center for Lesbian Rights, just announced she will leave the organization at the end of the year after more than two decades of leadership. Oh, my. (See the related story on page 10.)

    I’m not sad. It’s like the tennis champion waving to the crowd after her 22nd grand slam title. The four-term senator stepping down to write novels or travel the world. The Fortune 50 CEO turning over the reins after tripling the stock price and quadrupling revenues. Kate, we were lucky to have you as long as we did, and most importantly—when we did. 

    After a couple of years as Legal Director, Kendell became Executive director of NCLR in 1996, just in time to help our community make the shift from defense to offense. 

    Remember that back then, over two dozen states still considered us criminals; indeed, the Supreme Court had upheld the right to criminalize gay unions just ten years earlier. We had been fighting an epidemic for years. Our relationships were extra-legal and vulnerable to a wide range of tragic turns: we were denied hospital visitation, kicked out of our homes when a partner died, separated from our children by a hostile ex. We were forced into the closet by a pervasive shroud of antigay sentiment that still hung over much of the country. We were on defense.

    Not only were we on defense, but it suited us. Many of our allies saw us as a mistreated minority, deserving of a hand up, a little fair play. During the 1996 fight against the Defense of Marriage Act, the Human Rights Campaign’s Elizabeth Birch told lawmakers that gay people didn’t even want marriage rights, we just wanted to be treated fairly, we wanted to be free from discrimination. The ban on same-sex marriage, she argued, was a solution to a problem that didn’t exist.

    Readers, I can’t tell you how infuriating it was to see our national spokespeople sidestep the question of whether gay people deserved marriage equality. Yes, it was politically dicey at that time. But that’s exactly when you need courage, diplomacy, leadership, talent and grace. We didn’t have that at the HRC, but we had that in San Francisco when Kate Kendell took charge. Kendell helped to lead us through some of our darkest days, the days when we lost something like 32 antigay state ballot measures in a row. She never played the victim card. She and the effective organization she built worked strategically, cooperatively, pragmatically and relentlessly—always with their eyes on the prize. 

    Finally, what I really admire is that while she was busy saving the world for GLBT rights, Kate Kendell managed to create a major organization. I remember the little wine and cheese fundraiser I attended at the NCLR offices in the pre-Kendell 1990s. A couple dozen women milling about. Someone taking checks, someone saying a few words. I don’t have to tell San Francisco Bay Times readers what the NCLR has since become. A powerhouse of integrity and purpose.

    Good luck to whoever takes over.