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‘Living through history’
EEOC’s Feldblum on her long career and how U.S. might finally ban anti-gay job bias
As the two-year anniversary of a landmark decision granting non-discrimination protections to transgender Americans approaches, Chai Feldblum is ready for the next case that could extend those workplace rules to gays, Ā lesbians and bisexuals.
Feldblum, a lesbian attorney confirmed by the U.S. Senate to her second term as a member of the U.S. Equal Employment Opportunity Commission in December, said a decision affirming that gay, lesbian and bisexual people are protected would provide clarity under the law.
“I think it would benefit everyone, the agency, the development of the law if we got a case that presented the sexual-orientation issue as clearly as the transgender issue,” Feldblum said.
The decision in Mia Macy v. Holder, delivered by EEOC on April 20, 2012, affirmed for the first time that transgender people are protected under Title VII of the Civil Rights of Act of 1964 against job discrimination. From that point forward, it was clear the EEOC ā the federal agency that enforces laws against workplace discrimination ā would take cases for transgender people who say they encountered discrimination, harassment or bias in employment.
But even as she seeks a sexual-orientation case for greater clarity, Feldblum said during an interview with the Washington Blade in her office Monday that historic decision extends not only to claims of gender-identity discrimination, but to sexual-orientation discrimination as well.
“It might also be sexual-orientation discrimination, but for the purposes of the law, that’s sex discrimination,” Feldblum said. “If you have a stereotype that women should be sexually involved with men, that’s a sex stereotype.”
Still, Feldblum tempered the impact of Macy by saying courts could reject EEOC’s interpretation of the law. She insisted that other legal measures, such as an executive order from President Obama barring LGBT workplace discrimination among federal contractors or passage of the Employment Non-Discrimination Act, are needed.
Prior to her confirmation to the EEOC during the Obama administration, Feldblum worked as a longtime advocate for the LGBT community. Starting her work during the AIDS crisis of the 1980s, Feldblum was part of the unsuccessful campaign to stop “Don’t Ask, Don’t Tell” from becoming law in the early 1990s and is credited with drafting the Americans with Disabilities Act and an early version of ENDA.
On the wall in her office is a framed picture of an America flag surrounded by the rainbow colors of the Pride flag ā memorabilia from her time with the Campaign for Military Service against “Don’t Ask, Don’t Tell.” Among the plaques and photos on her desk is a small framed collection of her best quotes in the Washington Blade compiled in the 1990s.
Now that so many of the goals on LGBT issues that she worked toward over decades are coming to fruition within the space of a few years, Feldblum said the feeling is “remarkable and wonderful.”
“I attribute it to a host of things,” Feldblum said. “To people being open and honest, to people being courageous and asking for things inside their workplaces even without ENDA, forming alliances, asking for protections, voluntary protection. I attribute it to municipalities passing laws that say we’re not going to have contracts with you unless you have a non-discrimination policy. I attribute it to some of the legal cases. I attribute it to some of the novels. None of it moves by itself.”
The complete Q&A between the Blade and Feldblum follows:
Washington Blade: Almost two years since the Macy decision, how effective do you think that ruling has been in prohibiting or stopping transgender discrimination?
Chai Feldblum: Well, I think it has been effective in light of the sphere in which that opinion operates. So, the ruling was a ruling in the federal sector that said that federal employees who were discriminated against because of their transgender status could come through the EEOC process because we ruled it was a form of sex discrimination. And, because that was a position of the commission, that was going to be the agency’s position not only for federal employees, but for anyone who would show up at our door.
So, that’s not a ruling that any court is bound by. It’s certainly a ruling that a court could look at to see whether the reasoning makes sense to a particular judge, but mostly it’s about effecting our practices inside the agency. So, I would say, inside the agency, it has done the work it’s supposed to do.
I would say that both before the Macy decision and before our strategic enforcement plan, there were probably transgender and gay people showing up at EEOC, complaining about discrimination and had just been told the agency could not do anything to help them. And now, we have a bit over 200 charges in our system across the country that our investigators are investigating, and my guess is some of these folks knew to come to the EEOC because of the Macy decision. I bet you a lot of other folks didn’t know before that they weren’t covered, got discriminated against, they know that when they’re discriminated against, they go to the EEOC, so they showed up at our doors. And now, they’re not being turned away.
Blade: That sounds like you’re making a distinction. You’re saying that decision made a lot of impact within the agency, but there’s still some question about whether the courts are going to agree with you that there was gender discrimination?Ā
Feldblum: Of course, because courts have the autonomy to decide. But do I think the Macy decision has had and will have an impact on how federal and state courts reason? Absolutely, yes. Because I think we did the smart legal analysis.
So if you look at the TerVeer case that came out in the federal district court just last week, the judge didn’t reference the EEOC, but I know that briefs that were put in that case absolutely referenced the EEOC’s decision not only in Macy, but in other federal sector cases that the commission issued. Veretto, Castello, Baker, I mean, other cases where we explained, in that case that sexual orientation could be covered on sex discrimination.
I absolutely believe it will have an effect; it’s just not an absolute necessary effect. When people say do you still need ENDA if you have TItle VII protection, well, of course, why wouldn’t you want a law that very clearly explicitly says sexual orientation is covered, gender identity is covered? Now, of course, you don’t want that law to be so weak that it gives you less than what you potentially have now. And that is where I think the debate will go in the future.
But it’s important not to underplay the importance of the EEOC’s Macy decision and its other sexual-orientation decision because it’s not affecting just the agency because it set a standard for legal reasoning. It’s important not to underplay the importance of those rulings, but it’s also important not to overplay them.
Blade: What was the deliberation leading to the decision and were you surprised that it ended up being unanimous?
Feldblum: OK, so I can’t talk about the deliberations inside the commission. That’s sort of confidential, but also we actually because of the Sunshine Act, we don’t deliberate as a body sitting down ā the five of us. You can have conversations one on one. So I had one-on-one conversations with folks who were the commissioners. So, I don’t feel comfortable saying anything about the internal deliberations. I will say that I think it’s a very strongly reasoned legal decision, and I’d like to think that that’s why it got the support it got.
Blade: Can you at least say whether or not you were surprised that all five commissioners said, “Yes, this is the way we should go.” Was it a surprise that was the result?
Feldblum: Again, what I can tell you in terms of process is basically this comes sort of a negative option. We have a lot of stuff that we’re doing, including a lot of cases. So, we tend to do these through electronic voting. And so, what happens is someone has to object and ask, call for a vote, in order for everyone to then to be recorded. And in this case, there were various changes that were made, circulated around, and then there was no call for a vote. So when they don’t call for a vote, we just call it unanimous, but it wasn’t like there were actual people like a click of a button, clicking “yes.” But I mean, no one registered a “no” vote, and that’s important.
Blade: As a result of the decision, is it fair to say that transgender Americans have greater protections under the law in terms of employment thanks to Macy than gay, lesbian or bisexual people currently have?Ā
Feldblum: Oh, no, that’s completely wrong because the point of Macy was it said it’s a form of sex discrimination when you’re acting on the basis of a gender stereotype. And we said you’re inherently acting on the basis of gender stereotype when you suddenly don’t like the fact that someone is transgender. We said it’s got to be because you have some stereotype that someone who’s designated male at birth should stay that way.
We also though at the last part of Macy, and, I think one of the most importance pieces of Macy is we explain that the important sentence in the Price Waterhouse decision, which is the basis for the sex stereotyping concept, was that as an employer what you cannot do is take sex into account. That’s what was illegal ā to take sex into account, to have sex matter. That’s what’s illegal under Title VII.
The one way that you can find out if someone is taking sex into account is if they’re acting on a sex stereotype. That is evidence that sex is being taken into account. You don’t even have to go to the sex stereotyping analysis if you can just show straight on that sex has been taken into account. So, the Macy decision happened to have covered a transgender person, so there was no reason for us to talk about how that legal analysis would play out on sexual orientation, but the legal analysis applies whether you’re a transgender person or a gay person.
So, for example, the other federal sector cases that our office of federal operations has decided and, unlike Macy, has not yet come up to the commission for a vote said if you have a sex stereotype that men should be marrying women and not men, that’s sex discrimination. It might also be sexual-orientation discrimination, but for the purposes of the law, that’s sex discrimination. If you have a stereotype that women should be sexually involved with men, that’s a sex stereotype.
And that’s basically what the federal district court decided in the TerVeer case. The only stereotype that played there was the supervisor’s alleged stereotype that this TerVeer wasn’t a real man. It had nothing to do with how he presented, how he walked, how he dressed, how he talked. It happened only when the supervisor found out from his daughter that this employee was gay.
Blade: I was going to ask you if we’ll see another case come up prohibiting sexual-orientation discrimination similar to what Macy did for Mia Macy. But it seems like we’re already there. You don’t think we need to find another case?
Feldblum: It’s a sort of a nuanced thing in terms of commission process. I think it makes sense to have another case that actually lays out the legal logic more clearly. You have to understand, where is [theĀ Office of Federal Operations]? Two floors below? One floor below? They have like 25 lawyers there. They put out something three to 4,000 cases a year. They just cannot in those cases do the type of intense legal analysis that we do as a commission when they come up to us for full analysis and the writing of an opinion.
The year that Macy came out, 2012, we reviewed 13 cases out of the 2[,000] to 3,000, and it’s just that Mia Macy was this very clear jurisdictional case and, I mean, in a way it’s something of a mystery to me as to what cases come and what don’t. But I think the other federal sector cases have applied the sex stereotyping analysis ā both pre-Macy and post-Macy. It hasn’t really been done extensive ā you don’t have six pages of legal analysis in any of these opinions. You have one paragraph basically telling the agency, “No, no, you dismissed this too quickly. Go back and investigate.”
So, yeah, I think it would benefit everyone, the agency, the development of the law, if we got a case that presented the sexual-orientation issue as clearly as the transgender issue.
What I reacted against was the idea that gay people had less protection right now than transgender people, and I don’t believe that’s the case. It’s not like when a gay person walks into our office and a transgender person walks into our office that the gay person is getting less of an investigation. They’re both getting a solid investigation to determine whether sex has been taken into account.
Blade: How and when do you think we’ll see a specific sexual-orientation discrimination case coming up as it relates to Title VII?Ā
Feldblum: Yeah, it’s just hard to know. The cases are ā there are three ways in which the commission speaks, can put it out its views. One is if the case comes from a federal applicant or a federal employee. That’s how Macy came up, and that could be how a sexual-orientation case would come up. It’s like in any court; you don’t know when the case is going to come to you. So that’s one way.
A second way, which the commission used to use a lot in the beginning of its existence up until about the mid-80s were things called “commission decisions.” These were private sector charges when you wanted to explain an aspect of the law, and then the commission just stopped doing those. The last one was in 2000. It issued a commission decision. On that, theoretically, the commission could take any number of any charge that’s currently pending and choose to write a whole commission decision. Since the commission hasn’t done that in 20, 30 years, I’m not sure we will.
And then third, of course, is just to issue guidance through regulation. That’s a long process. For me, I feel it’s just a matter of time in terms of what comes before the commission, but it’s really pretty hard to predict.
Blade: You kind of hit on this, but can we talk more about Peter TerVeer’s case suing the Library of Congress? Do you think that could be the case that would establish definitively that sexual-orientation discrimination is gender discrimination?
Feldblum: There’s a few things about that. In the TerVeer case, the D.C. Circuit Court is the only circuit court that did not have some sentence in one of their circuit court opinions either as a holding as a throwaway line that sexual orientation is not covered under Title VII. Basically, every other circuit has said that. This district court just had more flexibility to just look at the words of the statute and look at the case law.
This is a motion to dismiss, so a motion to dismiss is not going to get appealed. I learned this. I’m such a non-litigator. I’m like, “Oh, is DOJ going to appeal?” Apparently, motion to dismiss, you have to have an interlocutory appeal, which just wouldn’t happen. So all this means now is that Peter TerVeer can have his day in court.
So, either there’ll be a trial and then a result and then that could end up going up, so that will take some time, or the Library of Congress could end up settling with him. So I don’t know what’s going to happen in terms of the TerVeer case, but absolutely it could be if it ends up going to trial and there’s a ruling in his favor and then the Department of Justice appeals it on the grounds that he couldn’t have used this Title VII law in the first place. Yes, D.C. Circuit could end up being a circuit that rules in his favor.
Blade: How does it make you feel that DOJ is saying that he can’t sue on the basis of sex discrimination?
Feldblum: I have no feelings on the matter, and you’ll just have to ask DOJ what their analysis is.
Blade: Let’s talk about some other things. There is using existing law, but people want other things. Most of those efforts are concentrated on the Employment Non-Discrimination Act. Of course, there’s also pressure on President Obama to sign an executive order to add sexual orientation and gender identity to the categories protected under Executive Order 11246. What do you think those can bring to the table that Title VII could not?
Feldblum: The primary thing they could bring, and the reason I’ve always felt that both of those efforts were useful is clarity and certainty. Clarity, because now you’re not having to explain how and when you discriminate against me because you find out that this spouse that I kept talking about, you just assumed was a guy, and suddenly it turned out this spouse was a woman. And then you fire me. I think that’s pretty clear, as I’ve said, you’re taking sex into account. I mean, if I had been a guy married to a woman, you wouldn’t have a problem, but because I’m a woman married to a woman, suddenly there’s a problem. That’s taking sex into account.
So, to me, that seems pretty clear, but it clearly hasn’t been clear to the courts over the years, so what an executive order does for government contractors, what ENDA does for individual employers is make that case. And that clarity then brings certainty because then you have it certain all across the board. So, those two things those actions bring.
I don’t think it means that people are not protected until those actions have taken place. To the contrary, I think it’s a form of sex discrimination. So the only thing to be careful with both of those actions is to make sure that you’re not undercutting what you have in Title VII. That’s, I think, the only thing to be cautious of.
Blade: Regarding those additional protections, White House Press Secretary Jay Carney said the executive order would be “redundant” if ENDA were in place. Were you aware of that and how would you respond to it?
Feldblum: Yeah, I saw that quote. We have Title VII in place right now that prohibits discrimination based on race, but we also have [Executive Order] 11246 that has race in it, and you have an additional whole office, Office of [Federal] Contract Compliance programs that has significant authority over government contractors, being able to do audits, being able to have aspirations of different races and ethnicities. So, I absolutely think the executive order ā it’s duplicative in the sense of saying you can’t discriminate, but it’s not redundant because it just has an entire additional enforcement mechanism through the OFCCP.
Blade: The Human Rights Campaign put out a statement saying it couldn’t disagree more with Jay Carney. Would you say you were unhappy with him for saying it’s redundant?
Feldblum: No. I make it a point of not having feeling in this job.
Blade: One other thing with ENDA … is the religious exemption troubling and should something be done to address that?
Feldblum: I think it behooves any advocacy group that is looking to enact ENDA to look very carefully at any provision in ENDA that provides less protection than TItle VII, including the religious exemption.
Blade: So you think the religious exemption should be narrowed?Ā
Feldblum: What I’m saying is that the advocacy groups that are looking to enact ENDA, and therefore have a responsibility to constituents in terms of what it is they’re asking Congress to enact, have a responsibility to look closely at any provision in ENDA that is less than the protection afforded by Title VII, including the religious exemption.
Blade: Is there anything else? Any other aspect of the executive order or ENDA that could undercut existing law if they were enacted?
Feldblum: Well, we have no idea what an executive order would look like. ENDA’s the only one where there’s a document. ENDA expressly prohibits the bringing of disparate impact cases. ENDA expressly prohibits the EEOC from collecting statistics ā something we can do with every other group. I think those are two besides the religious exemption that come easily to mind.
But again, for many years, it was my job to literally know every single line in ENDA by heart. It’s not my job any more, but it is the job of the legislative lawyers, and I hope they are scouring ENDA line by line.
Blade: Let me ask you the question this way, do you want ENDA in its Senate-approved form to pass into law?
Feldblum: I have no comment.
Blade: Another idea is taking the existing executive order and interpreting that to protect transgender workers in the same way that Macy did. Secretary of Labor Tom Perez said that it’s under review. Has the Labor Department asked EEOC or has EEOC provided any information to DOL for this review?
Feldblum: I have no knowledge of whether anyone has reached out to the chair, which is the way that most people usually ask things of the EEOC. They ask the chair’s office. No one has reached out to me individually, but I would say the Macy decision sort of stands for itself in terms of legal analysis. The Department of Health & Human Services has used Macy as well as the Veretto and Castello cases in deciding how to interpret the sex discrimination provision in the Affordable Care Act. The Department of Education has used the Macy decision as well as the other federal sector decisions.
The Department of Education actually was an agency that asked me to come over and talk to them, so I did talk to them maybe about six months ago. The Office of Civil RIghts just wanted to talk about the Macy decision and the implications for coverage of kids in schools. So, obviously, anyone calls me, I’ll go. But largely I feel the decision stands for itself.
Blade: Would you volunteer information to the Labor Department about the Macy decision?
Feldblum: Another thing I’ve learned in this job is (a) there’s enough to do just sitting in this office dealing with the agency and (b) it’s better to be invited than just to show up.
Blade: Let’s talk about the big picture. A lot of these LGBT issues you’ve been fighting for your entire life are now coming to fruition. How does that feel? A lot of these you’ve been fighting for for decades, and now in a short space of time, they’re all happening. I know you said you won’t talk feelings, but will you make an exception?
Feldblum: I am permitted to have a feeling about that. I’m willing to have a feeling about that. It feels remarkable and wonderful. It’s definitely living through history. We talk about taking lessons from history and it’s not very often that lessons from history are also lessons from one’s own lifespan.
So, I think the culture has done an amazing amount in terms of enabling the changes. I think the AIDS epidemic was horrifying. It’s sort of hard to describe to people who didn’t live through it ā what it was like to have your friends dying all around you. But it also meant that a lot of people were outed to their families not intentionally. People who would never ā the families would never have known, or would never have talked about the fact that they were gay. It would always have been Uncle George who went over to San Francisco or New York.
You now have people across the country, ordinary families who now knew they had a gay son or a gay brother. And that’s when I came into this movement. I graduated law school in ’85 and started working on AIDS issues after two years of clerking, so ’87, ’88. People came out and as the disability grew, as the disability world is learning right now, and it’s something Anupa and I work on together is trying to get people with disabilities to come out, so as to destigmatize.
It’s so important that people can see a competent strong person with something that had been stigmatized. I don’t think we can underestimate the importance of “Will & Grace,” the importance of “Ellen,” just these simple things that made it ordinary.
And so, one of the things, in 2004, I started a enterprise called the Moral Values Project, which was basically just a website and a few ideas. It’s a moral values website that still exists, although I obviously haven’t done anything on it since I came on the commission.
It had three very basic ideas. One, that sexual orientation itself was completely morally neutral. It had no more moral veilance than the color of your eyes or the color of your skin. It was just what it is, sexual orientation. That acting in accordance with your sexual orientation, or acting in accordance with your gender identity was actually a morally good thing. Because the gay rights movement had always tried to stay away from discussions of morality, And I thought that was a losing cause, that people did care about morality, they did care about what seemed right or wrong to them.
I didn’t see how we would ever get a non-discrimination law passed as long as people felt that gay people and straight people were not similarly situated. If you felt they were different in some way, then it’s legitimate to treat them differently. So I just felt that we had to just keep coming out and coming out and coming out, so that people saw there wasn’t a difference.
Not only wasn’t there a difference, so there was no reason not to treat people the same, but there was actually something morally wrong in actually making it a cause for difference. It was morally wrong to have the color of your skin mean anything in your life in anything. Same thing here. If you do things that you stop people from acting on their sexual orientation, when acting in accord with your sexual orientation is morally good, that’s a bad thing. So that’s what I feel is I’ve seen shift.
They still don’t talk about gay people being morally good. No one sort of says it that way. But something shifted in their brain. They don’t think, at least a majority doesn’t think, it’s so morally bad that they should be discriminated against.
Blade: And you attribute that to people being open and honest and positive media coverage?
Feldblum: I attribute it to a host of things. To people being open and honest, to people being courageous and asking for things inside their workplaces even without ENDA, forming alliances, asking for protections, voluntary protection. I attribute it to municipalities passing laws that say we’re not going to have contracts with you unless you have a non-discrimination policy. I attribute it to some of the legal cases. I attribute it to some of the novels. None of it moves by itself.
Blade: Lastly, I want to get personal. Your partner, Nan Hunter, an attorney at Georgetown University is someone I quote quite a bit. Can you share with us any future plans?Ā
Feldblum: I assure you if and when we ever get married, the Blade won’t be the place that people will ever know about it. But we are not married at this pointā¦.Our plans are to continue to support each other and the good work that I think we’re each doing. We certainly do not always agree, and that makes for interesting dinner conversations, but clearly both of us care a lot about these issues. Personally, I feel very lucky that I got to be with the love of my life.
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Honoring the legacy of New Orleansā 1973 UpStairs Lounge fire
Why the arson attack that killed 32 gay men still resonates 50 years later
On June 23 of last year, I held the microphone as a gay man in the New Orleans City Council Chamber and related a lost piece of queer history to the seven council members. I told this story to disabuse all New Orleanians of the notion that silence and accommodation, in the face of institutional and official failures, are a path to healing.
The story I related to them began on a typical Sunday night at a second-story bar on the fringe of New Orleansā French Quarter in 1973, where working-class men would gather around a white baby grand piano and belt out the lyrics to a song that was the anthem of their hidden community, āUnited We Standā by the Brotherhood of Man.
āUnited we stand,ā the men would sing together, ādivided we fallā ā the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to todayās queer safe havens.
Around that piano in the 1970s Deep South, gays and lesbians, white and Black queens, Christians and non-Christians, and even early gender minorities could cast aside the racism, sexism, and homophobia of the times to find acceptance and companionship for a moment.
For regulars, the UpStairs Lounge was a miracle, a small pocket of acceptance in a broader world where their very identities were illegal.
On the Sunday night of June 24, 1973, their voices were silenced in a murderous act of arson that claimed 32 lives and still stands as the deadliest fire in New Orleans history ā and the worst mass killing of gays in 20th century America.
As 13 fire companies struggled to douse the inferno, police refused to question the chief suspect, even though gay witnesses identified and brought the soot-covered man to officers idly standing by. This suspect, an internally conflicted gay-for-pay sex worker named Rodger Dale Nunez, had been ejected from the UpStairs Lounge screaming the word “burn” minutes before, but New Orleans police rebuffed the testimony of fire survivors on the street and allowed Nunez to disappear.
As the fire raged, police denigrated the deceased to reporters on the street: āSome thieves hung out there, and you know this was a queer bar.ā
For days afterward, the carnage met with official silence. With no local gay political leaders willing to step forward, national Gay Liberation-era figures like Rev. Troy Perry of the Metropolitan Community Church flew in to āhelp our bereaved brothers and sistersā ā and shatter officialdomās code of silence.
Perry broke local taboos by holding a press conference as an openly gay man. āItās high time that you people, in New Orleans, Louisiana, got the message and joined the rest of the Union,ā Perry said.
Two days later, on June 26, 1973, as families hesitated to step forward to identify their kin in the morgue, UpStairs Lounge owner Phil Esteve stood in his badly charred bar, the air still foul with death. He rebuffed attempts by Perry to turn the fire into a call for visibility and progress for homosexuals.
āThis fire had very little to do with the gay movement or with anything gay,ā Esteve told a reporter from The Philadelphia Inquirer. āI do not want my bar or this tragedy to be used to further any of their causes.ā
Conspicuously, no photos of Esteve appeared in coverage of the UpStairs Lounge fire or its aftermath ā and the bar owner also remained silent as he witnessed police looting the ashes of his business.
āPhil said the cash register, juke box, cigarette machine and some wallets had money removed,ā recounted Esteveās friend Bob McAnear, a former U.S. Customs officer. āPhil wouldnāt report it because, if he did, police would never allow him to operate a bar in New Orleans again.ā
The next day, gay bar owners, incensed at declining gay bar traffic amid an atmosphere of anxiety, confronted Perry at a clandestine meeting. āHow dare you hold your damn news conferences!ā one business owner shouted.
Ignoring calls for gay self-censorship, Perry held a 250-person memorial for the fire victims the following Sunday, July 1, culminating in mourners defiantly marching out the front door of a French Quarter church into waiting news cameras. āReverend Troy Perry awoke several sleeping giants, me being one of them,ā recalled Charlene Schneider, a lesbian activist who walked out of that front door with Perry.
Esteve doubted the UpStairs Lounge storyās capacity to rouse gay political fervor. As the coroner buried four of his former patrons anonymously on the edge of town, Esteve quietly collected at least $25,000 in fire insurance proceeds. Less than a year later, he used the money to open another gay bar called the Post Office, where patrons of the UpStairs Lounge ā some with visible burn scars ā gathered but were discouraged from singing āUnited We Stand.ā
New Orleans cops neglected to question the chief arson suspect and closed the investigation without answers in late August 1973. Gay elites in the cityās power structure began gaslighting the mourners who marched with Perry into the news cameras, casting suspicion on their memories and re-characterizing their moment of liberation as a stunt.
When a local gay journalist asked in April 1977, āWhere are the gay activists in New Orleans?,ā Esteve responded that there were none, because none were needed. āWe donāt feel weāre discriminated against,ā Esteve said. āNew Orleans gays are different from gays anywhere elseā¦ Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.ā
An attitude of nihilism and disavowal descended upon the memory of the UpStairs Lounge victims, goaded by Esteve and fellow gay entrepreneurs who earned their keep via gay patrons drowning their sorrows each night instead of protesting the injustices that kept them drinking.
Into the 1980s, the story of the UpStairs Lounge all but vanished from conversation ā with the exception of a few sanctuaries for gay political debate such as the local lesbian bar Charleneās, run by the activist Charlene Schneider.
By 1988, the 15th anniversary of the fire, the UpStairs Lounge narrative comprised little more than a call for better fire codes and indoor sprinklers. UpStairs Lounge survivor Stewart Butler summed it up: āA tragedy that, as far as I know, no good came of.ā
Finally, in 1991, at Stewart Butler and Charlene Schneiderās nudging, the UpStairs Lounge story became aligned with the crusade of liberated gays and lesbians seeking equal rights in Louisiana. The halls of power responded with intermittent progress. The New Orleans City Council, horrified by the story but not yet ready to take its look in the mirror, enacted an anti-discrimination ordinance protecting gays and lesbians in housing, employment, and public accommodations that Dec. 12 ā more than 18 years after the fire.
āI believe the fire was the catalyst for the anger to bring us all to the table,ā Schneider told The Times-Picayune, a tacit rebuke to Esteveās strategy of silent accommodation. Even Esteve seemed to change his stance with time, granting a full interview with the first UpStairs Lounge scholar Johnny Townsend sometime around 1989.
Most of the figures in this historic tale are now deceased. Whatās left is an enduring story that refused to go gently. The story now echoes around the world ā a musical about the UpStairs Lounge fire recently played in Tokyo, translating the gay underworld of the 1973 French Quarter for Japanese audiences.
When I finished my presentation to the City Council last June, I looked up to see the seven council members in tears. Unanimously, they approved a resolution acknowledging the historic failures of city leaders in the wake of the UpStairs Lounge fire.
Council members personally apologized to UpStairs Lounge families and survivors seated in the chamber in a symbolic act that, though it could not bring back those who died, still mattered greatly to those whose pain had been denied, leaving them to grieve alone. At long last, official silence and indifference gave way to heartfelt words of healing.
The way Americans remember the past is an active, ongoing process. Our collective memory is malleable, but it matters because it speaks volumes about our maturity as a people, how we acknowledge the pastās influence in our lives, and how it shapes the examples we set for our youth. Do we grapple with difficult truths, or do we duck accountability by defaulting to nostalgia and bluster? Or worse, do we simply ignore the past until it fades into a black hole of ignorance and indifference?
I believe that a factual retelling of the UpStairs Lounge tragedy ā and how, 50 years onward, it became known internationally ā resonates beyond our current divides. It reminds queer and non-queer Americans that ignoring the past holds back the present, and that silence is no cure for what ails a participatory nation.
Silence isolates. Silence gaslights and shrouds. It preserves the power structures that scapegoat the disempowered.
Solidarity, on the other hand, unites. Solidarity illuminates a path forward together. Above all, solidarity transforms the downtrodden into a resounding chorus of citizens ā in the spirit of voices who once gathered āround a white baby grand piano and sang, joyfully and loudly, āUnited We Stand.ā
Robert W. Fieseler is a New Orleans-based journalist and the author of āTinderbox: the Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation.ā
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New Supreme Court term includes critical LGBTQ case with ‘terrifying’ consequences
Business owner seeks to decline services for same-sex weddings
The U.S. Supreme Court, after a decision overturning Roe v. Wade that still leaves many reeling, is starting a new term with justices slated to revisit the issue of LGBTQ rights.
In 303 Creative v. Elenis, the court will return to the issue of whether or not providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds. In this case, the business owner is Lorie Smith, a website designer in Colorado who wants to opt out of providing her graphic design services for same-sex weddings despite the civil rights law in her state.
Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with the Blade, “it’s not too much to say an immeasurably huge amount is at stake” for LGBTQ people depending on the outcome of the case.
“This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person ā if that were to be accepted, that would be a profound change in the law,” Pizer said. “And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having a non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you.”
The upcoming arguments and decision in the 303 Creative case mark a return to LGBTQ rights for the Supreme Court, which had no lawsuit to directly address the issue in its previous term, although many argued the Dobbs decision put LGBTQ rights in peril and threatened access to abortion for LGBTQ people.
And yet, the 303 Creative case is similar to other cases the Supreme Court has previously heard on the providers of services seeking the right to deny services based on First Amendment grounds, such as Masterpiece Cakeshop and Fulton v. City of Philadelphia. In both of those cases, however, the court issued narrow rulings on the facts of litigation, declining to issue sweeping rulings either upholding non-discrimination principles or First Amendment exemptions.
Pizer, who signed one of the friend-of-the-court briefs in opposition to 303 Creative, said the case is “similar in the goals” of the Masterpiece Cakeshop litigation on the basis they both seek exemptions to the same non-discrimination law that governs their business, the Colorado Anti-Discrimination Act, or CADA, and seek “to further the social and political argument that they should be free to refuse same-sex couples or LGBTQ people in particular.”
“So there’s the legal goal, and it connects to the social and political goals and in that sense, it’s the same as Masterpiece,” Pizer said. “And so there are multiple problems with it again, as a legal matter, but also as a social matter, because as with the religion argument, it flows from the idea that having something to do with us is endorsing us.”
One difference: the Masterpiece Cakeshop litigation stemmed from an act of refusal of service after owner, Jack Phillips, declined to make a custom-made wedding cake for a same-sex couple for their upcoming wedding. No act of discrimination in the past, however, is present in the 303 Creative case. The owner seeks to put on her website a disclaimer she won’t provide services for same-sex weddings, signaling an intent to discriminate against same-sex couples rather than having done so.
As such, expect issues of standing ā whether or not either party is personally aggrieved and able bring to a lawsuit ā to be hashed out in arguments as well as whether the litigation is ripe for review as justices consider the case. It’s not hard to see U.S. Chief Justice John Roberts, who has sought to lead the court to reach less sweeping decisions (sometimes successfully, and sometimes in the Dobbs case not successfully) to push for a decision along these lines.
Another key difference: The 303 Creative case hinges on the argument of freedom of speech as opposed to the two-fold argument of freedom of speech and freedom of religious exercise in the Masterpiece Cakeshop litigation. Although 303 Creative requested in its petition to the Supreme Court review of both issues of speech and religion, justices elected only to take up the issue of free speech in granting a writ of certiorari (or agreement to take up a case). Justices also declined to accept another question in the petition request of review of the 1990 precedent in Smith v. Employment Division, which concluded states can enforce neutral generally applicable laws on citizens with religious objections without violating the First Amendment.
Representing 303 Creative in the lawsuit is Alliance Defending Freedom, a law firm that has sought to undermine civil rights laws for LGBTQ people with litigation seeking exemptions based on the First Amendment, such as the Masterpiece Cakeshop case.
Kristen Waggoner, president of Alliance Defending Freedom, wrote in a Sept. 12 legal brief signed by her and other attorneys that a decision in favor of 303 Creative boils down to a clear-cut violation of the First Amendment.
“Colorado and the United States still contend that CADA only regulates sales transactions,” the brief says. “But their cases do not apply because they involve non-expressive activities: selling BBQ, firing employees, restricting school attendance, limiting club memberships, and providing room access. Coloradoās own cases agree that the government may not use public-accommodation laws to affect a commercial actorās speech.”
Pizer, however, pushed back strongly on the idea a decision in favor of 303 Creative would be as focused as Alliance Defending Freedom purports it would be, arguing it could open the door to widespread discrimination against LGBTQ people.
“One way to put it is art tends to be in the eye of the beholder,” Pizer said. “Is something of a craft, or is it art? I feel like I’m channeling Lily Tomlin. Remember ‘soup and art’? We have had an understanding that whether something is beautiful or not is not the determining factor about whether something is protected as artistic expression. There’s a legal test that recognizes if this is speech, whose speech is it, whose message is it? Would anyone who was hearing the speech or seeing the message understand it to be the message of the customer or of the merchants or craftsmen or business person?”
Despite the implications in the case for LGBTQ rights, 303 Creative may have supporters among LGBTQ people who consider themselves proponents of free speech.
One joint friend-of-the-court brief before the Supreme Court, written by Dale Carpenter, a law professor at Southern Methodist University who’s written in favor of LGBTQ rights, and Eugene Volokh, a First Amendment legal scholar at the University of California, Los Angeles, argues the case is an opportunity to affirm the First Amendment applies to goods and services that are uniquely expressive.
“Distinguishing expressive from non-expressive products in some contexts might be hard, but the Tenth Circuit agreed that Smithās product does not present a hard case,” the brief says. “Yet that court (and Colorado) declined to recognize any exemption for products constituting speech. The Tenth Circuit has effectively recognized a state interest in subjecting the creation of speech itself to antidiscrimination laws.”
Oral arguments in the case aren’t yet set, but may be announced soon. Set to defend the state of Colorado and enforcement of its non-discrimination law in the case is Colorado Solicitor General Eric Reuel Olson. Just this week, the U.S. Supreme Court announced it would grant the request to the U.S. solicitor general to present arguments before the justices on behalf of the Biden administration.
With a 6-3 conservative majority on the court that has recently scrapped the super-precedent guaranteeing the right to abortion, supporters of LGBTQ rights may think the outcome of the case is all but lost, especially amid widespread fears same-sex marriage would be next on the chopping block. After the U.S. Tenth Circuit Court of Appeals ruled against 303 Creative in the lawsuit, the simple action by the Supreme Court to grant review in the lawsuit suggests they are primed to issue a reversal and rule in favor of the company.
Pizer, acknowledging the call to action issued by LGBTQ groups in the aftermath of the Dobbs decision, conceded the current Supreme Court issuing the ruling in this case is “a terrifying prospect,” but cautioned the issue isn’t so much the makeup of the court but whether or not justices will continue down the path of abolishing case law.
“I think the question that we’re facing with respect to all of the cases or at least many of the cases that are in front of the court right now, is whether this court is going to continue on this radical sort of wrecking ball to the edifice of settled law and seemingly a goal of setting up whole new structures of what our basic legal principles are going to be. Are we going to have another term of that?” Pizer said. “And if so, that’s terrifying.”
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Kelley Robinson, a Black, queer woman, named president of Human Rights Campaign
Progressive activist a veteran of Planned Parenthood Action Fund
Kelley Robinson, a Black, queer woman and veteran of Planned Parenthood Action Fund, is to become the next president of the Human Rights Campaign, the nation’s leading LGBTQ group announced on Tuesday.
Robinson is set to become the ninth president of the Human Rights Campaign after having served as executive director of Planned Parenthood Action Fund and more than 12 years of experience as a leader in the progressive movement. She’ll be the first Black, queer woman to serve in that role.
āIām honored and ready to lead HRC ā and our more than three million member-advocates ā as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,ā Robinson said. āThis is a pivotal moment in our movement for equality for LGBTQ+ people. We, particularly our trans and BIPOC communities, are quite literally in the fight for our lives and facing unprecedented threats that seek to destroy us.”
The next Human Rights Campaign president is named as Democrats are performing well in polls in the mid-term elections after the U.S. Supreme Court overturned Roe v. Wade, leaving an opening for the LGBTQ group to play a key role amid fears LGBTQ rights are next on the chopping block.
“The overturning of Roe v. Wade reminds us we are just one Supreme Court decision away from losing fundamental freedoms including the freedom to marry, voting rights, and privacy,” Robinson said. “We are facing a generational opportunity to rise to these challenges and create real, sustainable change. I believe that working together this change is possible right now. This next chapter of the Human Rights Campaign is about getting to freedom and liberation without any exceptions ā and today I am making a promise and commitment to carry this work forward.ā
The Human Rights Campaign announces its next president after a nearly year-long search process after the board of directors terminated its former president Alphonso David when he was ensnared in the sexual misconduct scandal that led former New York Gov. Andrew Cuomo to resign. David has denied wrongdoing and filed a lawsuit against the LGBTQ group alleging racial discrimination.
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