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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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Is Nigeria’s anti-LGBTQ crackdown only meant for the poor?

Wealth and fame can shield one from prosecution in the country

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(Bigstock photo)

The Nigeria Police Force in Delta State a few weeks ago arrested more than 67 suspected gay men for attending an alleged gay wedding. Authorities received a tip, they interrogated those arrested and suspicions were cemented on the basis that some of these young men crossed-dressed. 

“We’re bringing this out to the world to note, especially Nigerians, that we’re in Africa and Nigeria. We cannot copy the Western world,” Deputy Police Supt. Bright Edafe said. “We’re in Nigeria, and I can guarantee that the suspects will be charged to court.” 

Although these young men have since been released, this situation in Nigeria underscores a glaring paradox: A country that boasts a growing number of queer celebrities — many of whom have embraced crossdressing as part of their persona — maintains harsh legal actions against less privileged queer youths who express their identities. This unequal treatment sends a damaging message to the broader queer community; perpetuating a cycle of discrimination, fear and inequality.

In a nation marked by its vibrant culture and diversity, Nigeria’s anti-gay laws stand as a stark contradiction to the principles of tolerance and inclusivity. These laws not only criminalize same-sex relationships, but have also given rise to a troubling disparity in their enforcement. It has disproportionately targeted the poor, transgender individuals and crossdressers, while seemingly ignoring high-profile celebrities who freely express their identities.

Bobrisky, one of Nigeria’s most popular crossdressers who built a large following off of this lifestyle, went on their social media to probe the arrested crossdressers for openly presenting that way. 

“I strongly believe you guys can learn from those A-list,” they wrote. “Firstly, there’s a law passed against you guys that you can’t marry yourselves in this country, why the hell did you call yourselves together to organize a wedding?”

“That is the dumbest news I have ever read this week. You all deserve how you all were treated, sad truth. If you feel you are in love with your partner and you want to be together, why not relocate to where you are welcome,” they continued. 

One would think that they were able to make comments like this because they didn’t crossdress; but when you have enough financial and social privilege to wriggle your way out of situations for which your counterparts would otherwise be prosecuted, you would think that the law doesn’t apply to you. 

Then-President Goodluck Jonathan in February 2014 passed the Same-Sex Marriage (Prohibition) Act, which legalized the prosecution of anyone who shows sexual relations with the same sex. Nigerian MPs in April 2022 pushed to update the SSMPA with a bill that would essentially criminalize crossdressers and force them to face six months in prison, or pay a fine of $1,200. 

The measure has yet to become law.

This targeting of transgender people and crossdressers by the Nigerian government is a distressing reality. These individuals often find themselves marginalized, not just socially, but also legally. Raids, arrests and harassment are commonplace for them, making it a daily struggle to live authentically. In a nation where gender expression should be celebrated as a testament to its cultural diversity, it is disheartening to witness these citizens ostracized and penalized for embracing their true selves.

On the other hand, the celebrities who have made crossdressing a part of their public image appear to exist in a different realm. They enjoy a level of visibility and fame that grants them an element of protection. Whether it’s due to their financial resources or their connections, they often escape the legal consequences that ordinary queer Nigerians face. This glaring contrast between the treatment of high-profile celebrities and everyday individuals exposes the systemic inequalities that persist in Nigeria’s legal system.

The implications of this disparity are profound. It sends a troubling message that wealth and fame can shield one from persecution, while those without such privileges bear the brunt of discriminatory laws. This perpetuates a culture of fear and silence among the less privileged queer community, preventing them from fully expressing their identities and participating in society without the constant threat of persecution.

Nigeria must engage in a profound societal dialogue surrounding the unequal treatment of its queer citizens to address this issue. It is crucial to question the legitimacy of laws that infringe upon the fundamental human rights of individuals based on their sexual orientation or gender identity. By sparking these meaningful conversations, we can begin to dismantle the harmful stereotypes and prejudices that fuel this disparity in treatment.

Nigeria’s anti-gay laws not only defy the principles of tolerance and inclusivity, but also expose a disconcerting imbalance in their enforcement. The stark contrast between the leniency shown to high-profile celebrities who embrace crossdressing and the harsh legal actions taken against less privileged queer youths sends a damaging message to the broader queer community. It is time for Nigeria to address this injustice, fostering a more inclusive and equitable society where all its citizens can embrace their identities without fear of persecution.

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Medicaid cuts will lead to an uptick in STIs

Move threatens progress to end HIV epidemic

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We have come a long way from the days when HIV was an almost certain death sentence. But our work is far from over. The COVID-19 pandemic led to an uptick in rates of sexually transmitted infections (STIs), including HIV, and low-income communities, LGBTQ+ communities, and communities of color continue to be impacted at alarming and disproportionately high rates.

These communities are also more likely to be served by Medicaid. Medicaid is the largest source of insurance coverage for people living with HIV in the United States, covering an estimated 40 percent of nonelderly adults with HIV, and Medicaid accounted for 45 percent of all federal HIV spending in 2022. During September, Sexual Health Awareness Month, it is worth examining the crucial ways Medicaid works to keep people healthy — and what threatens our progress today.

In recent weeks, we have seen a troubling trend develop. Five million Americans have been removed from Medicaid rolls, and many millions more are on the verge of losing coverage as a result of the Medicaid enrollment cuts. This represents the single greatest threat to our progress toward ending the HIV epidemic in years.   

During the pandemic, Medicaid enrollment grew by an estimated 20 million people, contributing to the uninsured rate dropping to the lowest level on record in early 2022. But, after a three-year period during which states provided continuous enrollment in exchange for enhanced federal funding, some states resumed dis-enrolling people from Medicaid on April 1. A recent KFF survey found that 17 million people could lose Medicaid coverage as a result of this process, referred to as the Medicaid “unwinding.”

Many states are not doing enough to ensure that Medicaid-eligible residents don’t lose their coverage. While some have been removed from the rolls because they are newly ineligible, procedural issues account for 74 percent of people losing coverage. An unacceptably high number of FloridaTexas, and Virginia residents who are still eligible for Medicaid are losing coverage because of procedural reasons, such as failing to confirm proof of income or household size.

Our goal should be to ensure that no one who qualifies for Medicaid loses their coverage. The U.S. Centers for Medicare and Medicaid Services (CMS) gave states the option to use a 12-month grace period, along with other flexibilities, to prepare for the unwinding and make sure residents had what they needed to recertify. So why are some states so eager to remove their residents from Medicaid rolls?

New York, on the other hand, has made equity a cornerstone of recertification work and provides a template for what states can do to help their residents remain covered. The state maximizes the flexibilities offered by CMS and works directly with providers, health plans, and recipients to minimize procedural disenrollments and ensure that people retain health care coverage, either through Medicaid, the state’s health exchange, or private insurance. New York is among the nation’s top-performing states in terms of call center wait times, call drop rates, and average time it takes to make an eligibility determination, according to the Center on Budget and Policy Priorities. New York’s call center is also able to produce materials in 26 languages. In June 2023 alone, New York State certified renewals for more than 400,000 residents.

At Amida Care in New York, we know firsthand that gaps in care for people living with or placed at elevated risk of contracting HIV can be especially devastating. When people lose access to PrEP medication to prevent HIV, they are left vulnerable to contracting HIV, and when people living with HIV lose access to antiretroviral therapy, they risk becoming seriously ill and transmitting HIV to others. We support and guide our members through the recertification process with dedicated outreach efforts that include phone calls, mailings, text messages, and home visits to limit loss of coverage and interruptions in life-saving treatments. 

We cannot begin to address health inequity or end the HIV epidemic without strengthening Medicaid. The recent moves by some states to strip their residents of Medicaid coverage will undermine the progress we’ve made.

Doug Wirth is president and CEO of Amida Care, a Medicaid Special Needs Health Plan for people affected by HIV.

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Jann Wenner’s racist, sexist take on musicians isn’t surprising

New book ‘The Masters’ excludes Black, women pioneers

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Jann Wenner (Screen capture via CBS Mornings YouTube)

I enjoyed sharing my birthday with Bruce Springsteen, until I read the bigoted remarks made by his friend Jann Wenner in a recent New York Times interview.

Then I wasn’t so glad to have the same b-day as Bruce.

Springsteen didn’t make the comments. I’m a fan of his music. But, as I write this, Springsteen, as well as some of Wenner’s other friends, hasn’t spoken out against Wenner’s hurtful comments.

As the saying goes: Some gifts keep on giving. Wenner, who was removed from the Rock and Roll Hall of Fame Foundation board after making sexist and racist remarks in a Sept. 15 interview with the Times, keeps on giving. But what’s he’s giving isn’t a gift. Not to Black people, women, music lovers, or queer folk.

Wenner’s one of us. He’s gay. 

I’m fine with his sexuality, but you’d hope that Wenner, for decades a gatekeeper of music and culture, would be a source of queer pride. But, that’s not the case with Wenner, a co-founder of the Rock the Roll Hall of Fame.

The fallout from Wenner’s Times interview is a needed wake-up call for queers.

Too often, we give ourselves a pass. We believe that because we live with homophobia, bi-erasure and transphobia, we know the score. That we’re not sexist, racist, ageist, ableist – we’re free of prejudice. Paragons of virtue.

Wenner, with his demeaning comments, is, I hope, getting us (especially, we who are Boomers) to look in the mirror. To check ourselves (as we examine our dogs for ticks) for our own prejudices, and for our virtue-signaling.

The controversy around Wenner began when he sat for the interview with David Marchese of the Times on Sept. 15 to promote his new book “The Masters,” released by Little Brown and Company on Sept. 26.

“The Masters” is a compilation of seven interviews that Wenner conducted with acclaimed musicians who are (or were before their death) his friends: Bob Dylan, John Lennon, Mick Jagger, Pete Townshend, Jerry Garcia, Bono, and Springsteen. All of the interviewees are white, male and Boomers.

“That there are no women or Black musicians in this collection is obvious,” Wenner writes, according to Kirkus Reviews, in “The Masters.” “This is reflective of the prejudices and practices of the times.”

It’s hard to describe how bigoted and absurd this is. As many have noted, rock ‘n’ roll was invented by Black people.

You have to wonder what Wenner was thinking. Had he never heard of Jimi Hendrix or Janis Joplin? Stevie Wonder? Joni Mitchell? Madonna?

Though too much racism and sexism exist today, the culture has gotten somewhat better. Attitudes have evolved. We’ve become more aware of our biases. 

Unfortunately, this isn’t so for Wenner. Marchese asked Wenner why every musician he talked with in “The Masters” is white and male. “Insofar as the women,” Wenner responded, “just none of them were as articulate enough on this intellectual level.”

When pressed by Marchese, who wondered how he could say Joni Mitchell wasn’t “articulate enough,” Wenner said, “Joni was not a philosopher of rock ‘n’ roll.”

“I mean, they just didn’t articulate at that level,” Wenner said of Black musicians.

Reading the interview, I wondered if he’d read Rolling Stone, the magazine he edited for decades. Had he missed the covers with Melissa Etheridge, Joplin, and Tina Turner (to name a few of the women and Black artists featured on the magazine’s cover)?

Sadly, Wenner’s condescending, racist and sexist take on Black and women musicians isn’t surprising. Often, people with power (rich white men) believe they’re smarter, more talented, and more entitled to be cultural gatekeepers than those from marginalized groups. They’re convinced they’re more talented and “articulate” than those who don’t have power. 

Forget “The Masters.” Check out Etheridge’s new memoir “Talking to My Angels.” That’s a good read.

Kathi Wolfe, a writer and a poet, is a regular contributor to the Blade.

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