The importance of the gay and transgender employment discrimination cases being argued before the Supreme Court on October 8 is demonstrated by the wide array of amicus briefs submitted by legal groups, civil rights groups, advocates, academics, labor unions, religious groups, 21 states and the District of Columbia.
Lacking space to list, much less analyze, them all, I will discuss just one brief affirming that Title VII of the Civil Rights Act of 1964, specifically its prohibition against discrimination “because of…sex,” protects LGBTQ employees. The brief was written by Laurence Tribe and Joshua Matz (a member of Roberta Kaplan’s law firm) for four former Solicitors General and Acting Solicitors General and a former Associate White House Counsel.
Tribe and Matz ground their argument in textualism and cite Justice Scalia in Oncale, regarding a man sexually harassed on an oil rig. They quote Justice Kagan, “we’re all textualists now.” Regarding claims that Congress did not have LGBTQ folk in mind when it passed Title VII, they write, “A statute’s meaning is distinct from how people may have expected the statute would apply when it was enacted.” They quote Justice Scalia and Bryan Garner explaining that “the presumed point of using general words is to produce general coverage—not to leave room for courts to recognize ad hoc exceptions.”
Tribe and Matz defend gender identity coverage: “Few forms of sex-based discrimination are more fundamental than firing someone on the premise that they have misapprehended their own sex.” They defend sexual orientation coverage: “Even if Title VII is read as prohibiting only discrimination because of a person’s ‘sex’—understood as the status of being male or female—it bars employment discrimination based on sexual orientation because a person’s ‘sex’ (and that of his or her desired partners) is a motivating factor in such discrimination.”
Despite a clear textualist basis for applying Title VII to LGBTQ cases, I fear the Court as currently constituted will apply an “original expectations” approach that better serves its conservative members’ animus, barring another legacy-preserving moment from Chief Justice Roberts or an unlikely epiphany in one of the Trump-appointed justices from Georgetown Prep (Gorsuch and Kavanaugh).
The work that LGBTQ advocates are doing on these cases matters regardless of the hazardous prospects caused by Sen. McConnell’s refusal to consider Obama’s nomination of Judge Merrick Garland and Trump’s Electoral College victory in 2016. The law lives, if at all, in its defenders and interpreters, as it does in those who seek its protection.
Justice Blackmun’s bracing dissent from the Court’s anti-gay 1986 ruling in Bowers v. Hardwick ultimately prevailed 17 years later in Lawrence v. Texas. A decade later came marriage equality. Now we face a renewed backlash. As Langston Hughes asked, “What happens to a dream deferred?” Fifty years after Stonewall, black trans women are murdered, and cyberbullied students kill themselves. They have no timeless Shangri-La where they can wait, as Billy Porter recently quoted James Baldwin, to “walk around this earth like I had the right to be here.”
America will be a long time recovering from Trump-era vandalism, especially if Justices Ginsburg and Breyer are replaced with right-wing justices half their age, as would almost certainly happen in a second Trump term. In that case many of us will not live to see the victory. Let us remember that the National Museum of African American History and Culture has artifacts that were passed down by six, seven, and eight generations before reaching the hands of its founder, Lonnie Bunch, who surely felt the ancestors with him as he was named Secretary of the Smithsonian.
45 and his mob would plunge us into a dark age of know-nothingism and civil strife. I imagine a future explorer discovering forgotten legal battles, reading, wondering, nodding, experiencing a flash of recognition—an old light flickering on again. We never know when the time will come to pass the torch. Let it suffice that we carry it for a time, like those who plant trees in whose shade they will never sit.
But as Monty Python said, we are not dead yet. Duty beckons. Win or lose, we have a country to defend.
Richard J. Rosendall is a writer and activist. He can be reached at [email protected].
Copyright © 2019 by Richard J. Rosendall. All rights reserved.
Trend of banning books threatens our freedom
‘History has taught you nothing if you think you can kill ideas’
I knew Helen Keller was a DeafBlind activist. But, until recently, I didn’t know that some of her books were torched.
Nearly 90 years ago, in 1933 Germany, the Nazis added “How I Became a Socialist,” by Keller to a list of “degenerate” books. Keller’s book, along with works by authors from H.G. Wells to Einstein were burned.
The Nazi book burnings were horrific, you might think, but what does this have to do with the queer community now?
I speak of this because a nano-sec of the news tells us that book censorship, if not from literal fires, but from the removal from school libraries, is alive and well. Nationwide, in small towns and suburbs, school boards, reacting to pressure from parents and politicians, are removing books from school libraries. Many of these books are by queer authors and feature LGBTQ+ characters.
Until recently, I didn’t worry that much about books being banned. My ears have pricked up, every year, in September when Banned Books Week is observed. Growing up, my parents instilled in me their belief that reading was one of life’s great pleasures as well as a chance to learn about new ideas – especially, those we disagreed with. The freedom to read what we choose is vital to democracy, my folks taught me.
“I don’t care if it’s ‘Mein Kampf,’” my Dad who was Jewish told me, “I’ll defend to my death against its being banned.”
“Teachers should be allowed to teach it,” he added, “so kids can learn what a monster Hitler was.”
In this country, there have always been people who wanted to ban books from “Uncle Tom’s Cabin” by writer and abolitionist Harriet Beecher Stowe to gay poet Allen Ginsberg’s “Howl.”
In the 1920s, in the Scopes trial, a Tennessee science teacher was fined $100 for teaching evolution. (The law against teaching evolution in Tennessee was later repealed.)
But, these folks, generally, seemed to be on “the fringe” of society. We didn’t expect that book banning would be endorsed by mainstream politicians.
Take just one example of the uptake in book-banning: In September, the Blade reported, Fairfax County, Virginia public school officials said at a school board meeting that two books had been removed from school libraries to “reassess their suitability for high school students.”
Both books – “Lawn Boy” a novel by Jonathan Evison and “Gender Queer: A Memoir” by non-binary author Maia Koabe feature queer characters and themes, along with graphic descriptions of sex.
Opponents of the books say the books contain descriptions of pedophilia. But, many book reviewers and LGBTQ students as well as the American Library Association dispute this false claim.
The American Library Association honored both books with its Alex Award, the Associated Press reported. The award recognizes the year’s “10 books written for adults that have special appeal to young adults ages 12 through 18.”
Given how things have changed for us queers in recent years – from marriage equality to Pete Buttigieg running for president – it’s not surprising that there’s been a backlash. As part of the blowback, books by queer authors with LGBTQ+ characters have become a flashpoint in the culture wars.
As a writer, it’s easy for me to joke that book banning is fabulous for writers. Nothing improves sales more than censorship.
Yet, there’s nothing funny about this for queer youth. My friend Penny has a queer son. “LGBTQ kids need to read about people like themselves,” she told me. “It’s horrible if queer kids can’t find these books. They could become depressed or even suicidal.”
If we allow books to be banned, our freedom to think and learn will be erased.
“History has taught you nothing if you think you can kill ideas,” Keller wrote in a letter to students in Nazi Germany.
Anti-queer officials may remove LGBTQ books from school libraries. But, our thoughts will not be unshelved.
Kathi Wolfe, a writer and a poet, is a regular contributor to the Blade.
Thanksgiving is a time to share
Take a moment to think about what you can do to help others
This Thanksgiving, many of us will once again celebrate with family and friends around the dinner table. Sadly at too many tables friends and family members will be missing. They will be one of the over 766,000 Americans who lost their lives to coronavirus. May the shared grief over lost loved ones cause us to try to bridge our differences and lift each other. As those of us with plenty sit down for dinner let us not forget the many in the world not so fortunate and think of what we can do to make their lives better.
In the midst of the pandemic we defeated a president who through his words and actions tore our country apart — a president who managed to poison relationships among family and friends. We elected a president who we felt would try to unite the nation. But we know that has yet to happen and the recent reaction to the not-guilty verdict in the Kyle Rittenhouse trial shows us that. The use of race-baiting in the recent Virginia governor’s election shows us that. We still suffer from the implicit permission the former president gave to some Americans to once again give public voice to their sexism, homophobia, racism, and anti-Semitism. That didn’t suddenly end with his loss. While we cannot pretend those feelings weren’t always there it seemed we had reached a point in American society where people understood you couldn’t voice them in public without rebuke. While it will take many years to put that genie back in the bottle we need to try if we are to move forward again. Around our Thanksgiving table is a place to begin. I am an optimist and believe we can do that even while recognizing it won’t be easy.
Thanksgiving should be a time to look within ourselves and determine who we are as individuals and what we can do to make life better for ourselves, our families, and others here in the United States and around the world.
Around our Thanksgiving table we should take a moment to think about what we can do to help feed the hungry, house the homeless, and give equal opportunity to everyone who wants to work hard. Maybe even give some thought as to how we change policies causing institutional racism to ones giving everyone a chance to succeed. It is a moment to think about how we can open up the eyes of the world to understand how racism, homophobia, and sexism hurt everyone, not just those who are discriminated against.
We must renew our efforts to heal the rifts in our own families and make an effort to try to see each other in a more positive light. If we start to do that with those closest to us we might have a fighting chance to do it with others.
I recognize my life is privileged having just returned from a 14-day transatlantic cruise. My Thanksgiving weekend will be spent with friends in Rehoboth Beach, Del., and we will remember our experiences over the past year. For many it also begins the Christmas season and the Friday of Thanksgiving weekend each year Rehoboth Beach lights its community Christmas tree. So surely we will talk about what that season means to each of us.
For me each year it means thinking about which charities I can support as the requests for end-of-year gifts arrive. It is a time to think about volunteering some precious time for a cause you care about.
Wherever you live, there are many chances to volunteer and do your part to make a difference for others. The rewards of doing so will come back to you in abundance. As anyone who has helped someone else will tell you the feeling you get for having done so is wonderful.
So wishing all my friends and those of you who I may be lucky enough to call friends in the future, a very happy Thanksgiving. May this holiday find you happy, healthy and sharing peaceful times with those you love.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.
Fighting for equality for decades, trans elders still face endless hardships
Lisa Oakley rejected by 60 long-term care facilities in Colo.
November 20 will mark the 22nd International Transgender Day of Remembrance, an international event honoring and commemorating the many transgender people murdered in transphobic hate crimes every year.
Since 2013, at least 200 transgender people have been murdered in the United States alone, 80 percent being Black and Latinx women. This number is undoubtedly an underestimate, as many murders go unreported and trans victims often are misgendered by law enforcement.
These murders are not isolated crime statistics. They grow out of a culture of violence against transgender and non-binary (TGNB) people that encompasses stigma, exclusion, discrimination, poverty, and lack of access to essential resources, including health care, employment and housing.
These challenges result in early death. In Latin America, for example, it has been reported that the average life expectancy of a transgender person is only 35 years.
This climate of stigma and transphobia is particularly challenging for TGNB older people, who face extraordinary hardships due both to the cumulative impact of lifetimes of discrimination and regular mistreatment in their elder years. Due to isolation from family and greater medical and financial needs, trans older people are more likely to require professionalized elder services and care.
Unfortunately, these services and the facilities that provide them are often either unavailable to TGNB elders, or hostile to them. A national survey of LGBTQ+ older people by AARP found that more than 60 percent of those surveyed were concerned about how they would be treated in a long-term care setting. This includes the fear of being refused or receiving limited care, in danger of neglect or abuse, facing verbal or physical harassment, or being forced to hide or deny their identity once again.
This is a sobering reality. In October, GLBTQ Legal Advocates and Defenders filed a claim against Sunrise Assisted Living in Maine, which openly denied admission to an older transgender woman because of her gender identity.
In Colorado, Lisa Oakley was, astonishingly, rejected by 60 long-term care facilities, which her caseworker ascribes to Lisa’s gender identity. One facility that agreed to admit Lisa would only house her with a male roommate.
After waiting far too long for welcoming care, Lisa eventually got help from SAGE and other community supporters and found a home in Eagle Ridge of Grand Valley. Fortunately, Eagle Ridge has participated in specialized training to be LGBTQ+-welcoming. While Lisa feels welcomed at Eagle Ridge and has made friends, she has been forced to live far from a community she loves.
These cases in Maine and Colorado are just the tip of the iceberg regarding the discrimination faced by TGNB elders. That’s why it’s so important that Congress pass the Equality Act, which would once and for all prohibit discrimination based on gender identity in key areas like employment, housing, and care and services.
And while legal progress is important, it’s not enough. TGNB elders need more equity in their day to day lives. Older transgender people are more likely to experience financial barriers than non-transgender elders, regardless of age, income and education.
They’re also at a higher risk of disability, general poor mental and physical health, and loneliness, compared to their cisgender counterparts.
These experiences have been part of everyday life for trans elders for far too long. We continue to see them struggle with the long-term effects of transphobia and violence every day. That’s why organizations like SAGE are stepping up our support for TGNB elders by investing $1 million to support TGNB-focused services and advocacy both in New York and nationwide.
And we are continually amazed by the resilience of TGNB elders, creating communities built on their strength and courage.
Their resilience is nothing new. It dates back generations and was evident during the Stonewall Uprising. Over the years, trans luminaries like Marsha P. Johnson, Sylvia Rivera, Victoria Cruz—leaders of the modern LGBTQ+ civil rights movement—and countless others have repeatedly proved that they will not be invisible.
We see this determination in so many programs and activities led by trans elders at SAGE.
For example, the TransGenerational Theater Project brings together transgender people of all ages to create theater from their experiences and perspectives. These types of elder-driven programs serve as powerful reminders that transgender older people are leading their lives with resilience, creativity, and perseverance, despite the dangers they face.
Transgender and non-binary elders have survived and fought for equality for decades. They are brave. They are strong. They are leaders. Here at SAGE, we will continue to walk side-by-side with them as we continue the fight to ensure TGNB elders get the respect, change, and acceptance they deserve.
Michael Adams is the CEO of SAGE, the world’s largest and oldest organization dedicated to improving the lives of LGBTQ+ elders.
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