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Constitutional foundation laid for trans equality

Ga. case should boost efforts to bar discrimination in Maryland

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Co-authored by Jonathan Shurberg

On Dec. 6, 2011, a three-judge panel of the Eleventh Circuit U.S. Court of Appeals issued a decision in the case of Glenn v. Brumby, a case involving a transgender woman who was fired from her Georgia state government job after disclosing her intention to transition from male to female. Her boss justified the firing by stating, “It’s unsettling to think of someone dressed in women’s clothing with male sex organs inside that clothing” and further concluded that a male in women’s clothing is “unnatural.” The trial court granted relief to Glenn on the basis of sex discrimination under the 14th Amendment to the U.S. Constitution.

There was no reason to think, prior to the opinion being issued, that this decision would be a favorable one. The 11th Circuit is arguably the most conservative in the nation, and one of the three judges on the panel hearing the Glenn case was William H. Pryor, Jr., formerly the attorney general of Alabama. While in that position, Pryor had submitted an amicus brief in support of the State of Texas in Lawrence v. Texas, in which the Supreme Court eventually outlawed anti-sodomy and other anti-gay laws. So Judge Pryor was certainly no friend to the LGBT community.

The Dec. 6 opinion, written by Judge Rosemary Barkett, a 1993 Clinton appointee, not only affirmed the trial judge’s ruling in favor of Glenn, but did so in broad and sweeping fashion. The court began by noting that, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.” After surveying a series of other federal court decisions that support this proposition, the Court in Glenn reached its conclusion:

“An individual cannot be punished because of his or her perceived gender

non-conformity. Because these protections are afforded to everyone, they

cannot be denied to a transgender individual. The nature of the

discrimination is the same; it may differ in degree but not in kind, and

discrimination on this basis is a form of sex-based discrimination that is

subject to heightened scrutiny under the Equal Protection Clause. Ever

since the Supreme Court began to apply heightened scrutiny to sex-based

classifications, its consistent purpose has been to eliminate discrimination

on the basis of gender stereotypes.”

These are sweeping words, clearly and concisely bringing the transgender community under the umbrella of basic equal protection principles.

In addition, the decision effectively undermines the “bathroom panic” argument of the opposition, stating that such fears “hypothesized or invented post hoc in response to litigation” are not genuine justifications.

Although the decision is clearly a positive and welcome one, it’s critical to recognize its limitations. As it is not a ruling based on Title 7 of the 1964 Civil Rights Act, it only applies in cases against government action — equal protection applies against the government, not against private actors such as businesses. However, Title 7 is frequently referenced in the opinion, which should ease the way forward on the next Title 7 case. There have also already been suggestions that state and local transgender protection laws are now either unnecessary or even illegal. We’re scratching our heads about that last one.

The fact is that, as welcome as the Glenn decision is, it sets a floor for basic equal protection coverage, not a ceiling, and even then, it only applies against government discrimination. In order to protect against private acts of discrimination, state and federal statutes banning such acts are necessary, and such statutes certainly may provide more protections than does the constitutional principle of equal protection, “filling in the details,” so to speak. In Maryland, we are poised to pursue such a statute at the state level, and the ringing endorsement of transgender equality under the Constitution set forth in the Glenn decision can only help speed the process of passing a fully inclusive law to protect transgender individuals from discrimination.

Dana Beyer, a retired physician and surgeon, is a trans advocate and executive director of Gender Rights Maryland. Jonathan Shurberg, a board member of Gender Rights Maryland and chair of its legislative committee, is a lawyer in private practice in Silver Spring. Reach them via genderrightsmaryland.org.

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Homophobia wins in the Puerto Rico Senate

Bill to ban conversion therapy died in committee

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(Washington Blade photo by Michael K. Lavers)

It is a sad day for Puerto Rico, and it is a sad day for human rights on the Caribbean island.

Last Thursday, 11 senators decided to turn their backs on children and human rights in Puerto Rico. A new Senate majority proved to be weak and on the wrong side of history, again. Eight senators from the legislative committee reviewing Senate Bill 184 to ban conversation therapy on the island voted against the bill’s report.

Today, thanks to these senators, any mental health professional can freely charge a father for “curing” his son of homosexuality or of a gender identity/expression that does not conform to social standards of “normality.” Although there has been an executive order in Puerto Rico banning conversation therapy since 2018, this order is only applicable to health institutions that have a specific connection with the government. Executive orders state mandatory requirements for the Executive Branch and have the effect of law; however, any governor can revoke them.

Senators received scientific evidence and several testimonies from LGBTQIA people who testified during public hearings. These senators also received evidence of permanent depression and suicide attempts caused by conversion therapy. However, 11 senators decided to condone hate and the intolerance towards the LGBTQIA youth on the island. One of these senators, Wanda Soto, said during one of the public hearings that “… with love anything is possible … ” in reference to her belief that kids’ sexual orientation and gender identity can be changed or cured. This senator even compared a bad personal experience with a dentist she had when she was a kid with LGBTQIA opponents’ testimonies of their experiences of going through conversion therapy.

Suicide and depression rates among LGBTQIA youth are staggering and are the highest in the entire United States compared to other reasons. These indices are a direct consequence of the intolerance, discrimination and lack of validation that our society perpetuates. LGBTQIA youth go through difficult times in their lives, including personal and family acceptance that trigger years of depression and anxiety among LGBTQIA people.

Today again, hatred wins. Today, Puerto Rico demonstrates why it is the number one jurisdiction for hate crimes in the entire United States. Today again, these 11 senators make evident why gender-based crimes continue to dominate local headlines. Today these senators are an example of the ignorance and lack of cultural competence that persist in our island. Today, these senators will be responsible for the depression and the stigma that the LGBTQIA community will continue to suffer. Today these senators are responsible for perpetuating intolerance. We take a step back as a society, demonstrating again that we cannot tolerate those who are different and who do not meet our standards of normality.

Neither the tears of Gustavo nor Elvin or Caleb, who presented their testimonies before the Puerto Rico Senate, were enough to move the hearts of these senators. The hypocritical hugs and words of support that some senators gave to these LGBTQIA people after their testimony and personally meeting them make it much harder to understand how they turned their backs on our children. Today these 11 senators are responsible for perpetuating hate crimes on the island and make our path to be a more inclusive society even harder.

Homophobia won in the Puerto Rico Senate last Thursday. There was no difference when the pro-statehood Senate majority defeated SB 1000 (banning conversion therapy) back in 2018 and now with a new majority lead by the Popular Democratic Party. Different senators, different bills, same result, but the same homophobia. Many Puerto Rican voters believed that furthering human rights would be easier to achieve on the island with a new majority in the legislature. Unfortunately, the reality is that our legislature is just a mirror of our society, and the lack of cultural competence persists among us. But we will keep fighting; this is a single lost battle, a battle among many others yet to come.

These are the 11 senators who voted against SB 184 or didn’t vote:

  1. Sen. Rubén Soto – Against
  2. Sen. Ramón Ruiz – Against
  3. Sen. Albert Torres – Against
  4. Sen. Ada García – Against
  5. Sen. Wanda Soto – Against
  6. Sen. Marissa Jimenez – Against
  7. Sen. Joanne Rodríguez – Against
  8. Sen. Thomas Rivera – Against
  9. Sen. José L. Dalmau – Absent
  10. Sen. Marially González – Absent
  11. Sen. Javier Aponte – Absent
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Biden’s big gay opportunity

The best friend LGBTQ Americans have yet had in the White House

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President Joe Biden (Official White House Photo by Adam Schultz; public domain)

President Joe Biden faces many tough challenges. Foreign adversaries are preparing to test him, rancorous political divisions confront him at home where COVID-19 has ravaged the American economy and spirit. With Washington gridlock threatening to block his most ambitious plans, opportunities for legacy achievements may prove scarce.

Still, in one critical area, Biden can earn an honored place in history: LGBTQ rights. Of all major contemporary American political figures, Biden has been the quickest to take a stand for our rights. He is the best friend LGBTQs have yet had in the White House. I do not say so lightly, I am a lifelong Republican.

From day one, Biden began rolling back the biased policies promoted by Donald Trump’s Marginalizer-in-Chief, Mike Pence. Much damage remains to be undone, especially because the media and many Democrats have gone easy on Pence and his cronies. But Joe himself got off to a fast start placing qualified LGBTQ officials in highly visible positions, including his Cabinet. Secretary of State Tony Blinken set the tone early by flying the rainbow flag at U.S. embassies and naming a special envoy for LGBTQ rights. What a welcome change to have an administration proud of, rather than wary of, its LGBTQ supporters.

Yet much more needs to be done to rid this nation of the cruel blights of LGBTQ stigma and marginalization. There can be neither equality nor equity for people who are systematically stigmatized and marginalized. The cruelty of these violations is evident in a suicide rate among LGBTQ youth five times that of youth in the general population.

A national commission studying patterns, causes, and consequences of LGBTQ stigma, marginalization, and bullying could help awaken Americans to the damage from the prejudices many of us still face. Indeed, older LGBTQs who feel comfortably protected, have a special obligation to defend gay youth who remain vulnerable.

Stigmatization is worse for minority LGBTQs who bear a double burden of bias. BGLM!–Black Gay Lives Matter! Stigma impedes HIV testing and treatment; one consequence is a shocking rate of new HIV-AIDS infections among people of color four times the rate among whites.

Even as we pursue our national struggle to end racial bias, America must recognize our equal moral obligation to expose and repudiate our ugly history of LGBTQ stigmatization and marginalization. How do we stop these evils? Most crucial, we must pass a muscular Equality Act that protects the rights and dignity of all LGBTQs wherever they live in America.

Yet to pass it soon, we must avoid “poison pills” that may doom it to failure. Protection for LGBTQ youth is urgent. Better a bill we can pass now giving us 90% of what we all need, than a failed bill promising 100% of what some wish for.

Education is essential. Students must learn about the sufferings of LGBTQ people and our contributions to humanity and to America. All should be told about LGBTQ civil rights heroes like Bayard Rustin, Harvey Milk, and Barbara Jordan, scientists and thinkers like Alan Turing, George Washington Carver, and Plato, writers like Walt Whitman, James Baldwin, and Henry James, composers like Aaron Copland, Samuel Barber, and Billy Strayhorn, and artists like Michelangelo, Georgia O’Keefe, and Frida Kahlo—the full list is much longer.

Formal recognition of the sufferings and achievements of LGBTQ people is long overdue. As a starter, let’s build an Equality Museum on the Mall to celebrate LGBTQ Americans. No politician has yet ventured to suggest building one; their omission reinforces our marginalized state. President Biden could make history by stepping up.

Although Biden himself has made a strong start on LGBTQ rights, it is a serious mistake for the Democrats to take the gay vote for granted. Polls indicate Trump’s share rose from 16% in 2016 to 28% in 2020. LGBTQs followed a normal tendency to divide more evenly between the parties. In the 2020 campaign Democrats avoided reminding voters that

Trump’s number two, Mike Pence, has been America’s number one stigma super spreader. At the same time, on the QT, they reassured closet Pences among their own. They took us for granted assuming all LGBTQs are Woke Groupthinkers.

In the next election, more LGBTQs who agree with Republicans on issues like Iran, immigration, or taxes will vote GOP if the Democrats fail to raise their ante for us. More Democrats need to follow the leadership Biden is showing on LGBTQ issues.

Biden himself has a big opportunity to become America’s president for LGBTQ rights. But to grasp that opportunity, he will need aggressive initiatives to end stigmatization, celebrate our contributions, and make a crystal clear national commitment to full equality for all LGBTQ peoples.

 

James Driscoll, Ph.D., is a longtime Republican-Libertarian AIDS activist whose most recent book is ‘How AIDS Activists Challenged America.’

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Mayor Bowser and CDC take a wrong turn

We’ve come far in fight against COVID, there’s no reason to rush it

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wear a mask, gay news, Washington Blade

I am a big supporter of D.C. Mayor Muriel Bowser. She is doing a great job for the people of D.C. and working hard fighting for our best interests. But no one is perfect.

On April 30, her administration made a big mistake releasing a policy on masks reported by dcist: “D.C. Mayor Muriel Bowser further lifted mask restrictions for fully vaccinated people in an order published on Friday evening. The order says fully vaccinated people may go maskless in businesses, office buildings and other indoor settings and tasks businesses with enforcing the new rule.” It went on to say, “The businesses, office buildings, or other establishments shall exclude or attempt to eject persons who are not wearing masks or who remove their required masks, except in circumstances where the person is fully vaccinated and is permitted to conduct their activities without wearing a mask.”

It continued: “Businesses are allowed to request to see vaccine cards or other proof that patrons have been vaccinated to determine whether or not they have to wear a mask, per the order. Employers may ‘establish rules for mask-wearing at their offices or facilities that are more stringent’ than the new District regulations.”

Reading this, I felt it made no sense and would cause havoc for restaurants and businesses. Others agreed and spoke up and the policy was rescinded on Saturday, May 1. The Washington Post wrote: “To mask or not to mask? Mayor’s order stokes confusion in D.C.”

The original CDC advice on masks was confusing enough and Bowser made it worse. She isn’t the only one causing confusion. Maryland Gov. Larry Hogan issued a new order on masks, which Montgomery County Executive Elrich immediately said he wouldn’t follow. Clearly this isn’t an easy thing to deal with.

With the CDC telling people for months they need masks everywhere, changing policy is complicated, especially when there will be different requirements for those who have been vaccinated and those yet to be. The administration wanted to show the benefit of being vaccinated but caused confusion. In addition I believe the CDC made a huge mistake by pausing the J&J vaccine. It seems they could have investigated the 15 cases of blood clots, out of the nearly eight million shots given, in the two weeks they did without creating havoc and fear of the vaccine. They could have given information to the medical community and shared it with the public on how to handle such an occurrence without the pause.

As a lay person reading and listening to the various medical experts I’m convinced there is little chance of getting COVID outdoors if you are vaccinated and even if you aren’t and not wearing a mask, unless you stand close with a group who also haven’t been vaccinated. So why not just begin to change mask policy for outside. The basic CDC statement was good: Vaccinated people no longer need a mask outside and it’s suggested if unvaccinated people are in groups without appropriate distance they should continue to wear them. Simple enough.

The real problem occurs when talking about masking indoors in public places like restaurants and other businesses, including grocery stores. How do you separate those who have been vaccinated from those who haven’t and still at major risk indoors being in close proximity to others who aren’t? Wouldn’t it just be simpler to say we all need to continue to wear a mask indoors in public places especially since we are far from herd immunity? According to the D.C. Health Department only 35% are fully vaccinated.

As someone who has been vaccinated, I am happy to continue to wear my mask inside public spaces to help protect others and to encourage everyone who has yet to be vaccinated to continue to wear their mask. Why would we make every restaurant, bar, grocery store or other business have an enforcer at the door checking for proof of vaccination before they let someone in without a mask? It’s not fair to put that burden on businesses that already have so much to do to make their establishments safe for all. The TSA was right when it announced Friday it extended the mask mandate until Sept. 16 at airports, on commercial aircraft, and on all buses and trains.

We have come so far in the fight against COVID there is no reason to rush this. Let’s make the rules as simple as possible. We are one community so we should act like it.

 

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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