By Ann Rostow
Trans Bias Violates Federal Law. Who Knew? (We did!)
What just happened? Did President Obama just “decree” that gender identity discrimination was illegal? Can he do that? Judging from the reaction from the right to a letter released by the Administration to that effect, you would think the apocalypse was nigh.
For most Americans, it seemed last week as if Obama pulled one of his famous executive orders out of his back pocket, banged a giant golden gavel on his desk and announced that transgender rights were now the law of the land. Wheee! Take that, North Carolina! I’ve only got a few months left in my presidency, so to Hell with courts and congresses. Executive power rules!
In fact, he did nothing of the sort. Instead, both the Justice Department and the Department of Education issued a letter providing “significant guidance” to employers and schools, many of whom are (not surprisingly) confused about the scope of federal civil rights law. No one disputes that sex discrimination is illegal under Title VII in the workplace and Title IX in public education. But does that automatically mean that discrimination on the basis of gender identity is also forbidden under these crucial laws? The answer, says the administration, is yes.
You’d never know it from the crazed hoopla from our foes, but that answer did not come out of the blue, and it was not decided last week. It evolved out of court precedent, and it became administration policy for Title VII in 2012 and for Title IX the following year. (Both laws are interpreted under the same legal analysis, so it’s understood that what’s right for employment law is right for education law.) The Equal Employment Opportunity Commission, the agency empowered to adjudicate employment discrimination, ruled four years ago that gender identity is covered under Title VII’s ban on sex bias in the workplace. Likewise, the Education Department’s Office of Civil Rights, the agency that enforces Title IX, came to the same determination for public schools in 2014. Those conclusions evolved through a combination of case law, advocacy and political will.
So, you might ask, if it’s all been decided, what’s the fuss about? And here’s where some nuance enters the picture. For every case you can cite that favors transgender rights, you can easily find another that goes in the opposite direction, particularly when you start reaching back more than a decade or so into the archives. Our adversaries then ask, short of the High Court, who’s to say what Title VII or Title IX actually means? How come, they continue, some civil rights agency here or there can just “decide” legal interpretations for itself, particularly when, by definition, the agency is under the direction of an elected partisan administration? How is that fair?
Well short of a crystal clear High Court precedent, this kind of interpretation is exactly what the EEOC and the Office of Civil Rights are supposed to provide. Three weeks ago, in a ruling that is absolutely crucial to the entire debate now roiling North Carolina and American politics, the U.S. Court of Appeals for the Fourth Circuit looked at the case of a trans student who was banned from the locker rooms in his Virginia school. Taking its cue from the Education Department’s Office of Civil Rights, the split panel ruled that Title IX did indeed cover gender identity and that, in an ambiguous context, agency directives should guide the courts.
And here’s the clincher. On Monday, May 16, the Supreme Court decided to reject a completely separate case that had nothing to do with GLBT rights, but that centered on the question of whether and when courts must follow agency policies such as the ones we’re discussing now. Over the objection of Clarence Thomas, the justices let that case stand, effectively supporting the deference accorded to the Department of Education by the Fourth Circuit in its defense of transrights earlier this month.
For those people who reject our case law, we can note that our case law is much stronger than theirs is (true). For those who reject Obama’s right to set legal policy for his administration and its agencies, we can say it is part of his power (true). And for those who say the guidelines of government agencies shouldn’t count, we can say tough, they mean something (hah!).
Meanwhile, this is all about to be hashed out in a half dozen court cases. Keep in mind as well that the opinions of the Fourth Circuit, one rung down from the Supreme Court, are binding law throughout its jurisdiction—which happens to include North Carolina. That means that the aforementioned transrights victory will govern all these cases, and we will win them all.
In the main case, Carcano v McCrory, the ACLU, Lambda and ACLU of North Carolina are suing the Tobacco State for violations of Title IX and several constitutional claims. On May 17, the Carcano plaintiffs asked the court to issue a preliminary injunction preventing the Tobacco State from putting HB2 into effect while litigation proceeds, so I think we can expect HB2 to start collecting dust on the shelf for the duration. Meanwhile, Governor McCrory has sued the Justice Department in a different federal district, and the Justice Department has sued North Carolina in the Middle District where Carcano was also filed. One Carcano plaintiff has also filed a Title VII claim with the EEOC. Some lawmakers have jumped into the fray with a stupid lawsuit of their own, and some other rightwing busybodies have filed their own case for whatever reason. It’s too much to keep up with, particularly when it’s clear that a) we will win and b) the law will likely become moot in the interim (maybe by the time you read this column).
Finally, we can’t cover trans law without noting that the High Court has arguably already decided the issue, ruling in 1989 that discrimination based on gender presentation was a form of sex discrimination. In the case of a woman denied partnership at Price Waterhouse because she was not feminine enough, the Supremes determined that imposing gender stereotypes violated Title VII. This precedent, which seemed to speak directly to transgender bias, was basically ignored by lower courts for a couple decades before our advocates gradually began to succeed in putting it to use. It’s a major legal weapon, but we will need a modern version of the Price Waterhouse ruling if we want to end debate on the subject once and for all.
The Truth Is Out There
Speaking of ending debate, I could run through the rest of my word count with stories of North Carolina, discussions of lawsuits (there are two against Mississippi), and talk of transrights in general (the far right still can’t grasp that some transgender people are men). I could write a whole column on the significance of the stirring press conference given by Attorney General Loretta Lynch and the historic impact of this administration’s unexpectedly full-throated defense of transmen and women.
But I’m tired after my discursive journey through the jurisprudence of gender. I’d like to mention instead that I gather Hillary Clinton, if elected, has promised to tell us what the government knows about aliens!
It’s true. I don’t know why this has not gotten more airtime, but apparently Clinton has always been somewhat curious about Area 51 and the other secrets shared by astronauts to small groups of men in black. And she’s told the press that she would make the information public—assuming, I imagine, that we’re not in danger of an invasion.
Hey, it’s about time! I personally don’t believe aliens have landed, but I think there are some mysteries in the government files. I also don’t blame the government for putting the lid on possible sightings of little green men. For God’s sake, we had riots over a fictional radio show. Imagine what could have happened if we had released inconclusive, but scary-sounding, reports of extra terrestrial oddities! But, that said, I think it’s time that we all get to read the classified documents from the fifties and sixties. We’re not scared anymore. Not after fifty years of Star Trek and seven years of the Kepler mission.
Speaking of Hillary, I am grossed out by my favorite political website, fivethirtyeight dot com, where the editors have decided to devote an entire week to stories about human digestion, with articles that include: “Everybody is Constipated, Nobody is Constipated,” and “What Your Poop Says About You.” Nate? Was this really necessary? Did you have to add graphics?
The Place For Politics
I’ve been vaguely watching MSNBC with the sound low, as is my wont during a presidential election year, and I’d like to make a few pubic complaints. First, will people on TV stop interviewing random voters and drawing generalized conclusions from their meaningless comments?
Bill: “Donna, we’ve been talking about Hillary Clinton’s ‘likeability’ problem. I’m speaking to Jim Dennison who is leaning towards Trump…Jim, what do you think of Hillary Clinton?”
Jim: “I don’t trust her.”
Bill: “And is that why you think you might vote for Trump?”
Jim: “I think he knows what he’s doing.”
Bill: “There you have it, Donna. The Clinton campaign is battling a perception of dishonesty and she’s going to have to up her game to win over people like Jim here… .”
Donna: “Thanks, Bill. A lot to think about.”
Second, why is it that each new one-hour segment features a new host who invariably presents some insipid exchange that aired an hour or so earlier as an actual news segment?
New Host: “And now some breaking news from our own Bill Richards, who spoke to Jim Dennison, a Trump voter in western Kentucky earlier today…”
Bill: “Jim, what do you think of Hillary Clinton?”
Jim: “I don’t trust her.”
Third, I hate it when they go to commercial, air three minutes of ads, return for ten seconds and say, “Does Hillary have a trust issue? We’ll be discussing it next,” and then go to another three minutes of ads. Come on!
Oh yes, there’s a fourth and a fifth, but I’m not going to belabor the point. The bottom line is that I’m addicted to an extremely annoying genre of cable news, and there’s nothing I can do about it. I have to have my fix.
The Girl Who Cried Bigot
What else is new?
Thumbs up to the Massachusetts senate for passing a transrights bill that now heads to the house. Partial congratulations to couples in Italy who finally won the right to get some kind of domestic partnership thing. The Canadian government has introduced a proposal to add gender identity to federal civil rights laws, a proposal that I think has a good shot at passage. Because it’s Canada! And Mexico’s president will introduce a national legislative package that includes the freedom to marry. At present, although the Mexican Supreme Court ruled in favor of marriage equality last year, marriage law still has to be litigated state by state and is only available in certain areas. A national bill would speed things up down south.
Do you remember the story about how someone at Whole Foods in Austin wrote “fag” on a cake? Even at the time, the story seemed odd, given the fact that the bakery clerk was gay and that Whole Foods came out with an angry defense. The customer, a gay pastor, held a press conference and sued our favorite over-priced but politically correct grocery chain, but Whole Foods hit back, counter-suing the pastor for whatever it would be that you counter-sue for under the circumstances.
Now, the pastor has apologized and withdrawn his legal complaint. He didn’t actually cop to an extortion charge, but clearly that’s what he was trying to do, the rat. This time, the con job failed, although it still leaves a smudge on our community, doesn’t it?
I recall an incident where some rightwing people left a mean note on a restaurant bill with no tip for a gay server, and I think the publicity inspired some readers to send a few bucks to the waiter. But not too long after that came a similar incident that turned out to be a false story contrived by a lesbian New York waitress, who eventually ended up with two or three grand in her scheming pocket.
You know where this goes, right? The next time we hear about a slur painted here or a Bible verse written on the back of the dinner check, we’ll be wondering: Did that really happen? Most of the time, the answer’s yes, but we still let a little of our compassion dissipate while suspicion takes a turn around our heads. That’s thank to people like you, lyin’ pastor.
arostow@aol.com
Recent Comments