By Ann Rostow
Turning in the Widening Gyre
Friends, I have no idea where to start this column (and as a result, I am well behind on my deadline—shhh, don’t tell my editor). My thoughts turn again to Yeats’ iconic ode: “Things fall apart; the centre cannot hold … the best lack all conviction, while the worst are full of passionate intensity.”
I guess what strikes me most as the President slouches towards the first tee in Palm Beach is the backdrop of North Korea aiming four ballistic missiles at our military bases in Japan while our country turns its attention to gutting health care, attacking Muslims, dropping regulations on clean water, providing access to guns by people with mental illness, planning a redundant border wall, undermining sensible trade agreements, slashing discretionary spending, and populating high positions of government with inexperienced ideologues. All of this is under the direction of a barely literate child, a tiny taloned falcon who no longer hears the falconer.
Okay, I think the poetic references have run their course. And by now, you all know that we have a major development on our books this week, to wit the decision by the U.S. Supreme Court to vacate our transgender rights victory and send the case of Gavin Grimm back to the U.S. Court of Appeals for the Fourth Circuit. Grimm, a Virginia high school student, won the right to use the boy’s facilities a year ago in a case that had been picked for review by the High Court and scheduled for arguments on March 28. Not only has the Court dumped the case, but it has also nullified Grimm’s appellate court win and told the Fourth Circuit to start over.
We can’t really blame the justices. One of their main questions was whether or not the Fourth Circuit panel was obligated to follow the Obama administration’s interpretation of sex discrimination under Title IX of the Education Amendments of 1972. Title IX bans sex bias in public schools and colleges, and Obama’s team determined that this ban encompassed transgender bias as well.
Now, Trump’s people have revoked that view, and announced that the scope of Title IX will be subject to further consideration. That decision eviscerates the Fourth Circuit opinion, which said that since the courts were duty bound to follow government guidance when a law is ambiguous, Obama’s analysis dictated their conclusion.
Leaving aside this technical matter of deference, it’s true that federal laws banning discrimination “because of sex” are ambiguous where transgender rights are concerned. Hey, I don’t think they’re ambiguous and neither do our GLBT lawyers, but we still have to make that case before the federal appellate bench and the High Court. We were well on our way before we landed on the black square that sent us back ten moves.
But, we’re still on our way. Now we will be asking the Fourth Circuit to decide for itself whether transgender Americans are protected. The panel can no longer lean on someone else for their assessment, and indeed, the Trump Education Department has offered no formal guidance one way or another; they’ve just retracted Obama’s trans-friendly position. The silver lining is that if the Fourth Circuit rules for us again, they will do so with a much stronger precedent. The cloud is that this process will take a long time (and, of course, we could lose if we get a conservative panel).
Scrutinize This
The Grimm case leads the news, but it’s not the only transgender rights lawsuit that has been lost or hobbled by the Trump administration. In a nutshell, every suit involving the U.S. government is effectively off the table. That includes the two multi-state challenges to the aforementioned Obama Title IX policy, which are now moot, as well as the Obama Justice Department’s suit against North Carolina’s bathroom bill.
We are left, however, with the ACLU/Lambda suit against North Carolina’s anti-trans law, HB2. An injunction in that suit, which goes far beyond Title IX, is tentatively scheduled for review by our buddies in the Fourth Circuit this May.
Meanwhile, a federal court in Pennsylvania recently ruled that transgender students who had long been using the high school bathrooms of their choice could not be summarily banned from those facilities. This ruling was based, not on Title IX, but on the Equal Protection Clause of the U.S. Constitution, in part because the school district could not legally explain away the motive for its sudden change in policy. (Hint: outraged parents coming forward, just as they did in the Grimm case, do not a legitimate public interest make.)
The February 27 ruling is the latest of several federal court transgender victories based both on Title IX and on Equal Protection, and provides hope that our new headwinds will not necessarily forestall our progress. Keep in mind that sex discrimination cases are evaluated with heightened scrutiny under the Equal Protection Clause, a level of review that is difficult for our foes to surmount. Of course, a conservative court can always dismiss the very premise that trans cases amount to sex discrimination, much the way one infamous court ruled back in the day that transgender workers were not harmed because of their “sex,” but because of their “change of sex.”
And lest we assume that the T has crowded the GLB completely out of the judicial venue, the Texas Supreme Court heard arguments March 1 on a krazy kase that I have been loath to cover due to its sheer lunacy. Unfortunately, I have no choice because the case is here, it’s been argued, and it will be decided in June. I am speaking, as you may recall, about the Texas government’s insistence that just because same-sex couples can marry, that doesn’t mean that these couples must be granted the benefits of marriage. My state’s elected leaders argue that the city of Houston has the right to dole out insurance coverage to straight married couples but not gay ones, because the Supreme Court ruled on marriage, but not marriage rights.
Conventional wisdom says the effort is a scheme to get marriage rights back before the Supreme Court, and give the justices a chance to revise or somehow undermine their June, 2015, marriage equality decision. Even with Gorsuch on board, the plan is hopeless. But add another Trump justice and it becomes terrifying.
Pando! Stop Barking!
Why can’t WikiLeaks release Trump’s taxes or the transcript of some nefarious dialogue from the vast rightwing conspirators? I’m tired of CIA and national security leaks and John Podesta’s emails. By the way, did anyone notice that we all perused tens of thousands of emails from Clinton, the DNC and Podesta, without finding one scandal? The worst things we discovered were a few snarky remarks about Bernie Sanders and the news that Donna Brazile told the Clinton camp that someone in a town hall debate was going to ask her about the death penalty.
Do you think that an email dump from Trump, the RNC and Paul Manafort would survive months of evaluation by the American media and come out clean in the end? Wouldn’t you love to put that question to the test?
Every few lines I want to stop what I’m writing and type out a primal scream in all bold caps. Naturally I continue to resist this unprofessional impulse, but I just wanted to make all of you aware of my internal struggle.
Where were we? Gay law, perhaps? You should know that the High Court once again postponed consideration of the antigay bakery case I’ve been mentioning. The Court is deciding whether or not to put this Colorado-based lawsuit on its docket, so we are watching with interest. And mark your calendar for Some Time in April, when the U.S. Court of Appeals for the Fifth Circuit will hear arguments in the case against Mississippi’s so-called religious freedom law. That statute has been blocked by a lower court, and that decision, in turn, will be heard by a three-judge panel.
For the record, my elderly pug has decided to spend the morning yapping at me incessantly. She is deaf, so can’t hear me yelling at her to stop. She thinks she has not been fed, but she has. I love her, but she’s driving me nuts. Ergo, the title of this section.
Make GLBT Programming Great Again
I confess I have taped all four episodes of When We Rise, but I have yet to watch the gay rights docudrama, in part due to some of its terrible reviews. I’m sorry, but the time has gone when our community devotedly tuned in or bought tickets to anything and everything that made even a passing reference to gayness. Back in the day, we even watched a movie like The Boys in the Band, the depressing 1970 sad gay ensemble production—because it had gay people in it!
I think it was the late nineties when the Bay Times was cajoled into sponsoring a showing of Claire of the Moon, a lesbian flick that won (and still holds) my personal “worst movie ever” award. A group of us from the paper sat in the back row with our heads in our hands, groaning, until we realized that the filmmakers were standing right behind us. Ooops. No, they were not amused. But I couldn’t have cared less. There’s no excuse for mediocrity or worse, particularly when it poses as community activism or tries to guilt trip lesbian sisters into undeserved appreciation.
I’m sure I’ll check out When We Rise eventually, but if it’s a rainbow-colored tribute to how wonderful we are and how hard we’ve worked, I’m not going past episode one. I have time to watch excellent shows and entertaining shows, hopefully both at the same time. But I don’t have time for self-congratulatory pats on the back.
I saw one article that used the show’s ratings to bemoan a decline in queer programming. But that’s nonsense. Our programing is subjected to the same commercial standards as any other show, and the problem may be that people in power (whoever they may be) manage to get dull shows on the air while ignoring good ones. And by the way, Doubt was cancelled not because of the sensational transgender actress Laverne Cox, but because Katherine Heigl is unwatchable. She plays the same obnoxious character regardless of the actual role she’s assigned.
A few months ago, I saw the amazing documentary Political Animals, which described the early efforts of the first four lesbians in the California assembly. Does that sound like fun? It doesn’t sound that way, but, in fact, it was riveting and brought tears to my eyes. Great GLBT shows are out there. We just have to watch them when we find them and ignore the rest.
When We Wake
While avoiding When We Rise, I did manage to catch a rerun of the two-part mirror universe episode of Star Trek Enterprise. All of the characters in the mirror universe are evil twins of their regular counterparts, and history has been running amok on account of these bad hombres. Instead of warmly greeting the Vulcans when they first arrived on Earth, the people in the mirror universe killed them all and used their technology to take over the galactic quadrant. Instead of the vibrant and colorful Federation of Planets, they created the violent Terran Empire. All non-humans are subjected to their will, banished, or executed.
Because you can’t trust the non-humans!
And yes, watching Trump install the latest version of the Muslim ban while accusing President Obama of deploying government eavesdroppers to spy on Trump Tower during the campaign made me wonder whether this White House has actually emerged from the mirror universe.
Perhaps we can aim a tetryon beam at 1600 Pennsylvania Avenue and return them all to our reality. President Trump will quickly revoke the Muslim ban and tell Congress to start working on a comprehensive immigration plan. His cabinet members will restore the formal interpretations of Title IX and Title VII, and reiterate the view that sexual orientation bias should be subject to heightened scrutiny by the courts. Or maybe they’ll all go back into the woodwork and it will turn out that, in our reality, Hillary Clinton is President of the United States and the world is once again safe for Democracy.
Lieutenant! Reinitialize the deflector dish. Now!
arostow@aol.com
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