By Ann Rostow
Big Victory For Trans Rights in the Fourth Circuit
Sometimes change happens in a single dramatic moment, such as the moment the High Court ruled in favor of marriage last summer. Sometimes, like Sandburg’s fog, it comes on little cat feet. A president, who happens to be a constitutional lawyer, authorizes changes in agency policy. The Department of Education’s Office of Civil Rights determines that gender identity is protected as part of the category of “sex” in a 1975 civil rights statute. A federal appellate court, one step down from the nine Supremes, decides that this agency policy controls the law in an ambiguous setting. What do you get? Change, or at least a big step forward for transgender rights, and a hard slap in the face to politicians and others in power who would impose craziness on the young men and women of our public schools and universities who happen to be trans.
On April 19, a divided panel of the U.S. Court of Appeals for the Fourth Circuit ruled that a Virginia transgender boy, Gavin Grimm, could pursue his case against the Gloucester County School Board, and that Title IX should protect him from bathroom discrimination. The ruling overturned a lower court that had tossed Grimm’s case and upheld the district’s decision to force the boy into the girls’ room or a separate unisex toilet. The appellate majority decided that the Department of Education’s interpretation of Title IX was controlling law in this case, illustrating that these agency policy revisions are worth much more than the paper they’re written on.
The decision puts teeth into the threat that states like North Carolina could indeed lose federal education funding if they persist in what is now, clearly, a violation of the famous law that prohibits sexism in education facilities and programs. It’s not just idle talk or speculation, my friend. A federal appellate court has now confirmed that Title IX covers gender identity in educational settings and forbids school authorities from sending transboys or transgirls to the outhouse.
We’re also reminded of the fact that a different administration can still walk back agency policy. A Trump Justice Department could not just delete us again from Title IX, but could also reverse the EEOC’s determination that Title VII protects LGBT workers against bias as well. Indeed, the Fourth Circuit acknowledged that the guiding policy directive from the Department of Education represented administration policy rather than written law, but ruled that this policy controlled the outcome of the case nonetheless. Clearly a different administration could come up with a different policy that could become controlling law for a different appellate court. Let’s make sure that doesn’t happen, my dear fellow voters.
North Carolina Low Point
So. The backlash against North Carolina’s new anti-GLBT law shows no sign of slowing down. Pearl Jam, Springsteen, Boston, Cirque du Soleil, Paypal, Deutsche Bank, and major cities across the country are canceling travel and investment plans. And while few of us have ever heard of the “High Point Furniture Market,” this six-day twice a year spectacle brings over five billion– billion with a “b”– dollars to the state’s economy. High Point is the largest convention for the international home furnishings industry, and has been operating for over a century. This month, the show will go on, of course, but the money and participation are down thanks to HB2.
Governor Pat McCrory has been haplessly pleading his case with various television interviewers, and recently signed an executive order protecting North Carolina’s state workers against gay bias. The order, which McCrory probably expected would mitigate the public outrage, was instead widely viewed as a Band-Aid over a gaping wound. A few days later, Louisiana’s new Democratic governor, Jon Bel Edwards, won praise for signing a similar order, a contrast that left McCrory sputtering in frustrated disbelief.
As the last San Francisco Bay Times went to press, Mississippi became the second state to enact an anti-gay statute, passing a law that allows businesses and institutions to discriminate against citizens based on a religious belief in traditional marriage, traditional views of sexual morality and/or traditional views of gender. The negative reaction has been similar to what we’ve seen in North Carolina, but there are a couple of differences.
First, Mississippi has nothing close to North Carolina’s high tech business environment. It’s not as if Apple will reconsider whether or not to put a software think tank in Hattiesburg. Second, this type of discrimination is already just fine under current Mississippi law, which does not protect against gay bias in jobs or housing or public accommodation. In the Tar Heel state, by contrast, HB2 effectively repealed Charlotte’s new civil rights ordinance, and pre-empted local anti-discrimination efforts throughout the state. HB2 also requires transmen and transwomen to use their birth certificate bathrooms in all public buildings. For good measure, the North Carolina law also prohibits local labor laws and bans the use of state courts for discrimination complaints.
Still, Mississippi’s law is a hot mess, and like North Carolina’s, arguably violates federal statutes and the Constitution. It was no wonder, amidst the continuing and almost universal condemnation, that Tennessee lawmakers just shelved a bathroom bill that once seemed headed for passage.
Corporations Are Activists Too
If the North Carolina boycott consisted of us and a bunch of movie stars and rock bands, we would not be witnessing the true panic that appears to have overtaken the governor and the legislature. For that, we have the corporate world to thank, a world that has gradually become a major champion of our civil rights. I’m fond of denigrating the Human Rights Campaign for fundraising from the sidelines while lawyers and state activists do the heavy lifting in our fight for civil rights. But among its achievements, HRC has worked for decades ranking America’s companies and advocating for improvement in hiring and employee policies. The business community has also reacted intuitively to the social progress that has built gradually through the turn of the millennium, recognizing that they cannot succeed if they limit their staff and customers to the shrinking faction of the Christian right.
For some on the political left, a corporation is an inherent evil. But that’s naive. Some are better than others, but most are just businesses. When Mitt Romney was excoriated for saying “corporations are people too,” he was referring (I think) to the fact that they are run by human beings and that many other human beings rely on them for a paycheck. I would add that corporations have always been considered “people” for certain constitutional rights, and that for example, while commercial speech is less valued than individual speech, it is still protected by the First Amendment.
I’m off on this tangent because I happen to be very fond of many corporations these days, specifically the long list of those who have told the government of North Carolina to repeal HB2 or face the consequences. The legislature is scheduled to come back into session April 25, and appears to be ready to tinker with at least some parts of the law. They will have to do more than tinker, however, in order to stop the bleeding and begin to repair the reputation of the state.
Finally, I noticed that rising Republican star, New Mexico governor Susana Martinez, has just cancelled a May 7 speech in North Carolina, citing “scheduling conflicts.” Scheduling conflicts? I doubt it. The woman’s no dummy. The speech was to be part of the festivities at the North Carolina Republican Party convention.
Who Dunnit?
So, my town is in the news this week. For real! A local Austin pastor is accusing Whole Foods of packaging a cake that reads “Love Wins” on the top (as requested) and adds the word “Fag” in the middle (not requested). Whole Foods insists this could never happen, and says the bakery clerk responsible for fixing up the cake is a member of the LGBT community.
According to the press, pastor Jordon Brown, who happens to be gay, picked out a plain cake and asked the bakery clerk to write “Love Wins” on the blank area. The clerk did so, boxed it up, sealed it with the price sticker and Pastor Brown went off with the cake, only to discover the non sequitur when he opened the box. Now he’s suing.
Here’s the thing. Whole Foods, which is headquartered here in liberal Austin, is not antigay, period. I also believe they wouldn’t lie about the orientation of the bakery clerk. But the word “Fag” is written in the same style, in the same teal blue icing, as the “Love Wins” part. Is it possible that Brown could have matched the word so perfectly as part of an insidious plot? Would he do such a thing to contrive a fake lawsuit? Against Whole Foods? Why?
But why would the bakery clerk sink so low? Was his or her attention diverted while a gay basher snuck in with the teal blue icing can and vandalized the cake? The word “FAG” is done quite meticulously, so that seems unlikely. Is the bakery clerk unhinged? Why would Whole Foods issue such a strong defense without checking into the incident further?
A mystery! I’ll keep on it.
Can’t We All Just Get Along? (Um, No.)
Do you know who’s starting to bother me? John Kasich, the quintessential also-ran who recently suggested that LGBT people who object to North Carolina’s HB2 should chill out. When asked about religious freedom laws and the reaction from the community, Kasich told CNN: “What I like to say is, just relax; if you don’t like what somebody is doing, pray for them. And if you feel as though somebody is doing something wrong against you, can you just for a second get over it?”
Kasich has positioned himself as the nice guy in the Republican race, not a difficult maneuver when juxtaposed with the most despised man in Washington on one hand and Donald Trump on the other. And a couple of times I recall being pleasantly surprised when he told debate moder
ators that someone who owns a business should not be allowed to pick and choose their customers based on their own particular religious views.
But then, on another occasion, he came out with the same kind of “can’t we all just get along” palaver that basically nullified his previous remarks. His solution for the “religious freedom” debate is for us to shrug our shoulders and for religious businesses to be nicer and for everyone to pray. I also read that Mr. Smarm has a short temper and that part of the reason he has not drawn establishment support is that the Never Trump men in the smoky rooms actually like Cruz better than him. As a person. Think about that.
Speaking of the election, I’m an enthusiastic Clinton supporter, although I also like Bernie’s overarching goals, as do most of my ilk. But one of my main criticisms of Bernie’s candidacy is that the man is too damn old. Why doesn’t this subject every come up in the media discussions? The guy is what, 74? 75? Yes he’s been active on the hustings, but that’s just not something you can keep up for four years straight, let alone eight. I know Clinton’s no spring chicken, but even after a four-year term, she would still be younger than Bernie is now.
The modern presidency demands a 70 or 80-hour week (I’m guessing), not to mention a general readiness 24/7 and the ability to turn on a dime. It requires sustained energy, late night calls, mental juggling acts, endless meetings one after another, simultaneous pursuit of long and short term goals, formal events, speeches, military emergencies, conferences, multiple negotiations, foreign travel, constant motion, tremendous stamina. It’s one thing to get through successive campaign events, but the pressure of the presidency in measured in a far higher order of magnitude. The guy’s too old, period.
I have to add that I read a poll somewhere that ironically indicated that people under 40 thought his age was no problem, while people over 60 disagreed. (Now I can’t find this poll, so you’ll have to trust me.) Does this mean that the younger generation is less ageist and more enlightened? Hell no. It means that the older generation recognizes how hard it can be to put seven or eight decades in your rear mirror and keep your foot on the gas. I mean there’s a reason the senior dinner special starts at five thirty. People get tired!
arostow@aol.com
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