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    Ann Rostow: Send in The Penguins

    annboxBy Ann Rostow

    Send in The Penguins

    Remember a long time ago when North Carolina passed its antigay and anti-trans law “HB2?” That was roughly five months ago, and yes, I know, it’s extraordinary how time flies. (We must have been having fun, right?)

    Well, one of the first things our community did in response to the passage of HB2 was to file a lawsuit in federal court. Leading the charge on behalf of two trans-men and a lesbian plaintiff were Lambda Legal, the American Civil Liberties Union of North Carolina and Equality North Carolina, all arguing that the law was unconstitutional and also violated Title IX, the federal ban on sex discrimination in publicly funded schools and colleges.

    Now, the judge in that case has given the three plaintiffs a temporary injunction, freezing the application of HB2 for the duration of their lawsuit. The injunction does not put a hold on the law for other residents of North Carolina, but Lambda has asked the judge to expand his injunction to cover everyone.

    The three plaintiffs are all associated with the University of North Carolina system; one man is a student in Greensboro, another is an employee in Chapel Hill, and the lesbian plaintiff is a dean at NC Central Law School. In granting their injunction, Judge Thomas Schroeder said that the trio are likely to prevail on their Title IX claim, given that the U.S. Court of Appeals for the Fourth Circuit has recently ruled that Title IX’s ban on sex bias implicitly covers transgender bias as well. The Fourth Circuit (and, by extension, Judge Schroeder) relied on the U.S. Department of Education’s interpretation of Title IX to reach their conclusions.

    So, I can hear your reactions out there in Reader Land!

    Several of you are pointing out that we seem to have dozens of related lawsuits circulating lazily in the ether. Every week or so, one or the other makes news as some judge responds to some preliminary motion here or there. “Ann,” you ask, “why can’t you make sense of these separate cases, clarify their relationships and report these developments plainly and in context? Instead you seem to provide little more than a senseless jumble of piecemeal legal news items. What gives?”

    Other readers are even less kind. “Ann,” they say, “we are fed up with this barrage of transgender legal news. We can’t follow it and we’d prefer to read about Anthony Weiner’s latest sexting scandal or even some gay animal news. Frisky penguins. Sexy swans. Naughty monkeys. You know what we want.”

    Finally, there exists a tiny niche of gay law aficionados who are now wondering: “Hmmm. How could Judge Schroeder rely on the Fourth Circuit’s ruling in GG v Gloucester when the Supreme Court has just agreed to stay that decision pending appeal? Doesn’t the High Court’s action render this case moot for the time being?”

    Hah! Good question. You remember that we spent quite a bit of our last column bemoaning the fact that the High Court stepped in to put a hold on a pro-transgender ruling out of the Fourth Circuit that was announced just days after North Carolina passed HB2. That timing was coincidental, but since North Carolina operates under the jurisdiction of the Fourth Circuit, it was as if the Tarheels passed HB2 and then, two days later, their governing federal appellate court ruled against the new law, skipping the lower court and the two or three years of litigation that would normally have ensued. Take that, North Carolina Legislature! Naturally, the Fourth Circuit case and all the cases surrounding HB2 itself have now become intermingled from a news standpoint.

    But back to your question! Judge Schroeder wrote that the Supreme Court simply issued a stay in GG v Gloucester. The justices did not overrule the Fourth Circuit’s decision itself, so the decision remains binding law on all federal courts under the Fourth Circuit’s jurisdiction.

    Before I leave this subject, let me connect a few more dots. We have the aforementioned Fourth Circuit case, (a ruling on behalf of a trans student who sought to use the boys’ bathroom and locker rooms in his Virginia high school). Then we have several cases challenging or defending HB2, including the GLBT case discussed above. But we also have a third string of related cases:

    In the midst of all the hoopla, the Obama administration issued a letter stating that Title IX should be construed as a ban, not just on sex discrimination, but on transgender discrimination as well, and that public schools and colleges should, um, keep this in mind. Even though the letter had no specific legal power, a couple dozen states are now suing the administration, insisting that the executive branch has no business dictating the scope of an ambiguous statute. Texas leads one group (which recently won a motion before a very conservative judge) while Nebraska leads another group in a similar suit.

    Oh, and there are a few other types of related cases that I can’t think of at present, so for all of you who would condemn me for my failure to tie up the current state of transgender litigation in a nice big bow—you try it!

    This topic to be continued… .

    Goodbye to the Canicular Doldrums

    September is a strange month, don’t you think? It’s the end of summer, but it’s still summer. I’m always surprised when September 20 arrives and everyone announces “the last day of summer” when school has already been in session for a month and we’ve gone through several weeks of college football. Summer’s been over for a while, folks!

    As for the heat, here in central Texas it will be 70s and 80s for another three months. We’re just entering one of our best periods, the end of stifling humidity, the start of convertible weather. Neither summer nor fall, September will lead us through the transition.

    I may have mentioned in previous years that Austin Pride is scheduled for different, seemingly random, weekends and I never can figure out when the damn celebration is supposed to occur. At first we moved from late June to sometime in September in order to beat the heat. That’s fine, but somehow we have moved it back to late August, which is far hotter than late June. We also have a nighttime parade, which helps, but again, we could have done that in June as well.

    At any rate, Mel and I dutifully trekked over to the festival the other day, only to learn that we’d have to pay $20 each in order to wander aimlessly around collecting keychains and pens from our local real estate agents and financial planners. Oh, and let’s not forget signing up for “contests” that trigger a year or so of spam and winding up with a dozen fliers about lesbians who save gorillas or GLBT projects in Appalachia—all of which are great, by the way, but hello? Don’t they want people to attend in order to make it worthwhile for the people who buy booth space? Am I crazy, or wouldn’t you expect to pay five dollars or maximum ten in order to enter a pride festival? It’s not as if some fabulous entertainment was lurking within.

    Hey, I’ve been to enough of these for one lifetime, and we’re happy to support the community, but this was extortion. We left on principle, and since we saved $40 we had some oysters and a couple of glasses of wine for “free.”

    I’ve just noticed that a running theme in my descriptions of pride weekends in Austin over the years is our inevitable retreat to a restaurant and/or bar. I’m not sure what this says about our pride spirit. Like I said, it’s usually very hot and refreshments are essential.

    Let’s Get Sirius

    You may have noticed in the previous headline, my annual use of the word “canicular,” an adjective describing the heavy summer days under the dog star from mid-July to early September. It’s one of those words that you can only use in a highly specific context and that you can’t use more than, say, once a year without being pretentious. So there it is, another year come and gone. Poof!

    What now, my friends? Shall we talk about the prospects for marriage equality in Australia?

    It’s complicated, but we may soon see an effort to pass an equality bill through the Parliament. It’s unlikely to pass, but if it does, the story’s over and the complications disappear. There’s a parallel effort to initiate a non-binding public vote on the subject; some say the vote is a necessary preliminary to finally force Parliament to act; others call it a useless distraction that could harm the GLBT community and the fight for marriage by triggering a nasty campaign. Not only might they lose, marriage activists say, but even if they win, the vote is non-binding, so why bother with it?

    Like the straight yes or no vote, the vote to call a referendum is also not likely to pass. And if nothing passes, who knows what happens? Maybe another few years of … nothing.

    Have any of you ever been to Australia? I’ve always wanted to go. I’d like to barbecue some shrimp.

    O Say Can You See?

    I guess Colin Kaepernick has every right to keep his seat for the national anthem. Indeed, that kind of freedom is intrinsic to what it means to be an American, much as burning the flag is protected by the core principles that the flag itself represents. I’m not a big fan of either form of protest. They seem to condemn the entire country with all its citizens and institutions and history in a single hopeless gesture of rejection, rather than contribute to progress in any way. Plus, I think there’s more than a hint of egotism in dramatic statements of this sort. Again, that said, he has every right to choose his posture.

    I mention this because I was just reading about a big hate speech lawsuit filed in Canada against a guy who passed around some antigay fliers at Toronto Pride. According to the activist Christopher Hudspeth, the $104 million (Canadian) lawsuit against William Whatcott is to put an end to Whatcott spreading his “hateful and disgusting message.” Hudspeth’s lawyer says they seek an injunction to prevent Whatcott and company from “further distribution of hate speech and from attempting to participate in any future pride parades anywhere in Canada.”

    Every time I read about hate speech laws in Canada or Britain or wherever, I am reminded of how some American values are so deeply ingrained that you don’t even think about them until you see some contrasting viewpoint. We protect hate speech. It’s what the First Amendment is really all about, because no one really needs to protect nice acceptable speech. We need to protect the Nazi rally in Skokie and the antigay guy with the fliers who might try to make trouble at the San Francisco Pride Parade. Let him try. It’s not illegal, but free speech brings its own repercussions—the contrary free speech of those who oppose you.

    Likewise, as our community continues its ongoing legal and political “discussion,” shall we say, on the nature of religious freedom in our Constitution, I think all Americans look to the shores of the Cote d’Azur with some astonishment as the French police seek to force Muslim women to remove their beach burqas, while taking no action against Catholic nuns in the same situation. I know a French court has finally put an end to the ugly enforcement of the burqini ban, but the French still outlaw the hijab in schools and elsewhere in a vain effort to jam round pegs into square holes. Assimilation happens or it doesn’t. It can’t be enacted.

    We don’t do things like this. We don’t criminalize speech or religious attire. It’s simply un-American, which is why I stand up for the anthem even as I agree that there are tons of problems for our country to fix.

    By the way, I wish we had a more melodic anthem—every time the Olympics comes around, I am reminded that the Russians have the most beautiful anthem of all. I called it up on YouTube and made Mel listen to it the other day to prove this point.

    arostow@aol.com