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    Ann Rostow: Trump Judge Tells Tennessee Where to Stuff Its Drag Ban

    By Ann Rostow–

    Trump Judge Tells Tennessee Where to Stuff Its Drag Ban

    For the first time in many weeks, I have something positive to report at the top of my column. In Tennessee, a federal judge appointed by Donald Trump struck down the state’s vaguely worded ban on drag shows in a definitive 70-page ruling. Released on Friday, June 2, the decision by U.S. District Court Judge Thomas Parker said in no uncertain terms that the Adult Entertainment Act (AEA) violated the free speech rights of drag performers, and could not meet the high bar of strict scrutiny applied to the law.

    Judge Parker wrote that the AEA “reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights. The virulence of the AEA’s overbreadth chills a large amount of speech, and calls for this strong medicine.”

    The Tennessee version of this ban was the first in the country, signed in March by Governor Bill Lee, but barred from taking effect while Judge Parker considered its status. Now, the law has been permanently enjoined pending an expected appeal by the powers that be in the Volunteer State. According to The Washington Post, some 26 state legislatures have targeted drag shows this year, although it’s not clear if they are all as compromised as the Tennessee example. 

    For one thing, the Tennessee law criminalized performers themselves, who could have faced six years behind bars if convicted. Although lawmakers never used the term “drag” in the AEA language, the discussions leading up to passage made clear that the law targeted this specific type of performance; the same dance routine presented by the Tennessee Titan Cheerleaders, for example, could have been a criminal violation if presented by drag artists. Nor did the law make space for drag to continue in venues that were restricted to adults through ID checks or other methods. Just the notion that a 17-year-old could possibly witness such a show could trigger the penalties regardless of how the “minor” gained entry.

    Indeed, in theory, a group of parents doing a drag show for the kids at home would have been liable. 

    When Tennessee claimed their objective was to protect children from sexualized images, Judge Parker waved the excuse aside. “This District Court does not find that the Tennessee General Assembly’s predominate concerns were ‘increase in sexual exploitation.’ Rather, the Court finds that their predominate concerns involved the suppression of unpopular views of those who wish to impersonate a gender that is different from the one with which they were born.”

    This is impermissible viewpoint discrimination, and even in the eyes of a presumably conservative judge, “it cannot be enforced consistently with the supreme law of the land: the United States Constitution.”

    Will this single ruling be enough to stall other anti-drag efforts around the country? It’s not clear, although I assume other states will try to clean up their language to avoid the pitfalls of Tennessee’s bill. Still, it’s encouraging, particularly coming from a Trump judge. Clearly, a judge like our buddy in Northern Texas, Matthew Kacsmaryk of abortion pill fame, would be happy to green light the most extreme anti-GLBT measures, and there are others of his ilk lurking about in federal courts. But Judge Parker was adamant in his rejection of the blatant discrimination found in Tennessee. And there are others ofhis ilk around as well, both in the federal courts and the appellate bench.

    Let’s Not Target Our Buds

    I think I’ve finally gotten to the bottom of the Target story, a mishmash of confusing details and one which, in my view, unfairly gave Target a bad rep. The overview that’s been hitting the press is the idea that Target was selling some pride gear, but caved under rightwing pressure. In fact, Target continued to sell the vast majority of its pride inventory, but removed some things that were designed by the same guy who also designed some Satanic products, which, in fact, were never sold at Target. I guess Target thought they could defuse the rightwing attacks by dropping the Satan-adjacent items, but instead, they got rung up by our side for not standing up to the far right. 

    As far as I’m concerned, Target continued to sell a boatload of rainbow shirts, cups, and whathaveyou, even in the face of our enemy’s boycotts, and I’m on their side. I don’t care about the Satan guy, even if he’s harmless, which I’m sure he is. 

    I’m also a fan of Bud Light, not that I actually like their beer, but I do like the fact that they’ve supported the GLBT community for decades, even when it was far more controversial than it may be these days. Ditto for the Dodgers, whom I oppose when it comes to rooting for the team, but who made the right decision in the end by re-inviting the Sisters of Perpetual Indulgence to Pride Day. 

    Our friends aren’t always perfect, but they deserve our loyalty.

    Exceptional Cases

    We are definitely keeping an eye on a case that was just argued before what sounds like a conservative three-judge panel of the U.S. Court of Appeals for the Seventh Circuit. Two Trump judges and a senior judge nominated to the court by Reagan reviewed whether or not a lesbian guidance counselor at a Catholic school in Indianapolis should be considered a “minister” for the purposes of law. Religious schools and churches, as you probably recall, are allowed to discriminate when dealing with religious staff under the so-called “ministerial exception.” But while we presumably agree that Catholics don’t have to hire Jewish rabbis to lead Sunday School, should this mean that a janitor, a cafeteria worker, or a secular teacher can be fired at will for, let’s say, being gay?

    Michelle Fitzgerald served as a guidance counselor at Roncalli High School, and if the name “Roncalli” sounds familiar, it’s because this is the same school that fired its lesbian music teacher for the same offense for which Fitzgerald is accused; marrying another woman. The music teacher, Lynn Starkey, lost her appeal before the Seventh Circuit last year. But the record suggests that Fitzgerald had even less contact with the religious side of Roncalli than did Starkey, who, for example, had to teach liturgical music and who went to the school mass, shall we say, religiously. 

    By contrast, Fitzgerald seems to have filled a totally secular role. Nonetheless, in 2018 she signed a boilerplate contract that included religious language and was fired three months later after 14 years of stellar personnel reviews. The lower court looked no further than this document, even though it acknowledged that the faith element of Fitzgerald’s duties was in doubt. As Americans United for Separation of Church and State wrote in a brief to the court: “An employer could drop ministerial contracts in every employee’s mailbox on any given day (as Roncalli did to its entire teaching staff) … and in one fell swoop strip them of their fundamental civil rights. And it would not matter whether the employer actually entrusted the employees with those duties, communicated any expectations to them, or evaluated them on performance of ministerial functions … .”

    “This gamesmanship,” the brief went on, “could leave millions of workers without basic legal protections at work.” The ministerial exception “protects religious institutions against governmental intrusion into their internal decisions about who will serve as the ‘chief instrument’ to fulfill their religious purpose … . It does not allow employers to opt out of anti-discrimination laws by merely declaring anyone and everyone a minister.”

    Or does it? Unfortunately, the panel that nailed Lynn Starkey included two of the judges we now see on the Fitzgerald panel, and news reports suggest that the appellate group was leaning in Roncalli’s favor. If Fitzgerald loses this case, we wonder if, unlike Starkey, she will appeal to the full Seventh Circuit, or to the U.S. Supreme Court. And, if so, what will happen then? Are churches and religious schools simply above the law? These days, who the hell knows.

    When Did We Stop Beating Our Wives?

    What else is new? I guess Nikki Haley told a CNN town hall that “the idea that we have biological boys playing in girls sports” is (wait for it) “the women’s issue of our time.”

    “How are we supposed to get our girls used to the fact that biological boys are in their locker rooms,” she mused bizarrely. “And then we wonder why a third of our teenage girls seriously contemplated suicide last year. We should be growing strong girls, confident girls.”

    I have granddaughters, and I too have been worried about the rise in insecurity and depression among teen girls that we’ve seen in the news. Haven’t you? You don’t need to have a daughter or a granddaughter to be concerned. But now I know! Thanks, Nikki. This seems as if it’s a problem we can solve. Get those naughty boys out of the locker room and our girls will be just fine—particularly those scamps who are just pretending to be transgender girls so that they can sneak a peek at the frilly underthings the young gals are wearing these days. 

    Seriously, everyone. Nikki Haley has joined the nut brigade, not that she was challenging the MAGA crowd to begin with. When will someone on that side of the aisle stand up for political sanity? Sure, some of those guys try to ignore or finesse these issues, but they all allow them to fester and infect public debate—which forces us to join them in a no-win conversation that ignores major national problems and critical differences in policy. I say “no-win,” because we can defend trans rights till the sky falls and we’ll just be accused of “grooming” or trying to destroy humanity. No one is discussing gay rights or trans rights or civil rights in general. It’s all devolved into pointless name calling and conspiracy theories and craziness that can’t be countered by reason.

    I just deleted several more ranting paragraphs, because enough is enough.

    Vive La France

    As usual for this time of year, I’ve been watching the French Open and nostalgically recalling the many years I lived in Paris and the lovely afternoons I spent wandering the grounds of Roland Garros, drinking Kronenbourgs in back of Court 11, and sitting in the bleachers of Courts 6 and 7 watching matches with no tiebreaks that could go on for hours. Every now and then a famous star would pass us by, or if we were lucky, we’d catch Martina or Chris playing mixed doubles on a back court.

    We’d line up for tickets the second Monday in May at 6 or 7 am, and wait until the box office opened at 10. We always bought grounds passes for every day except for the women’s semi-finals on the last Thursday, when we bought arena tickets. We parked in a secret back alley in the Bois de Boulogne and walked over a little bridge to a small entrance.

    This is just to tell you that Wednesday, June 7, was “Pride Day” at the tournament to celebrate the 10th anniversary of marriage equality in France. The grounds were festooned in pride colors and the courts were lit with rainbow lights. Visitors were able to get temporary pride tattoos. Good for the French Tennis Federation, and it’s nice to see that there are parts of the world, excluding Florida and Uganda, where being GLBT is cause for celebration.

    And since I find myself on Memory Lane with only sixty words left in my column, I may as well note that, as I write, we are in the week of D-Day, a date that will live in the opposite of infamy, when thousands of Allied forces gave their lives on the beaches on the Normandy to combat the same ideological scourge that we now see flooding a significant sector of our country. I won’t use the N-word, but I don’t have to. It’s hatred of others, jingoism, a cult of personality, and a disdain for the rule of law and democracy. It’s un-American and it spits on the graves of the 9,000-plus U.S. soldiers now lying under the ground of Colleville-Sur-Mer overlooking Omaha Beach.

    GLBT Fortnight in Review
    Published on June 8, 2023