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‘Because of sex’ approach to protecting trans people

Many analyses of Bostock decision missed the real history

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(Washington Blade file photo by Michael Key)

“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado

The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.

It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.

Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).

So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.

How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.

The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.

Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.

The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.

It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”

It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.

So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.

Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”

This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.

Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.

People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.

Dana Beyer is a longtime D.C.-based advocate for transgender equality.

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Opinions

‘Don’t Ask, Don’t Tell’ clouds Powell’s legacy

A final act of redemption

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Former Secretary of State Colin Powell (Photo by Susan Montgomery via Bigstock)

The legacy of General Colin Powell is complicated for those in the LGBTQ community. On the one hand, we celebrate that Powell was the first African-American chairman of the Joint Chiefs of Staff and Secretary of State. On the other, he is also the person who disobeyed the strategic choice of his Commander in Chief, Bill Clinton, on gays in the military. 

Powell stood on the steps of the Pentagon reporting how many calls had been received opposing lifting the ban. He testified before the Senate Armed Services Committee that the service of openly gay troops would harm unit cohesion. He argued that race was a “benign characteristic” and being gay was not. Congress codified into statute what had been a regulatory ban on gays in the military, making the law that much harder to change. Almost 14,000 lesbian, gay and bisexual service members were dismissed under “Don’t Ask, Don’t Tell,” a rate of two-four service members every day. Some were subjects of witch hunts. Others faced criminal charges. Many endured harassment, assault and threats. Private First Class Barry Winchell was murdered.

Michelle Benecke and I knew when we founded Servicemembers Legal Defense Network that for “Don’t Ask, Don’t Tell” to be repealed, we would have to either win the support or neutralize the opposition of Powell, one of the previously undisclosed strategies described in my new book, “Mission Possible.” Michelle and I first met him at the Arlington, Va., headquarters of America’s Promise. We offered to brief him on the ban’s implementation as he was being asked on the Sunday shows about the law’s efficacy. He agreed to see us.

The question was whether we could find common ground on which to build a new consensus. My theory was that Powell genuinely believed that “Don’t Ask, Don’t Tell” was a better policy than the one before it. After all, he had testified before the Senate, “We will not ask, we will not witch-hunt, we will not seek to learn orientation.” 

“General Powell,” I said, “we have received nearly a thousand calls from service members who have been impacted by ‘Don’t Ask, Don’t Tell.’ We have documented that most are being asked point blank about their sexual orientation in contravention of ‘Don’t Ask.’” 

“That’s not supposed to happen,” he said.

That was our first conversation. We might have been able to better enforce some of the meager gains under “Don’t Ask, Don’t Tell” if we had been able to prevail upon Powell to help us, but he wasn’t ready. 

In 2003, he told Teen Ink magazine that while discrimination is wrong, “I think it’s a different matter with respect to the military, because you’re essentially told who you’re going to live with, who you’re going to sleep next to.”

Four years later, he called me, prompted by an opinion essay in The New York Times that I had sent him. “Second Thoughts on Gays in the Military”—written by retired Army General John Shalikashvili, Powell’s successor as chairman of the Joint Chiefs—called for repeal of “Don’t Ask, Don’t Tell.” Powell and I spoke for 45 minutes. “I agree with General Shalikashvili that America has changed and is ready for gays to serve openly,” he said. My heart leapt. “I am not convinced, however, that military commanders are ready for that change.” My heart sunk.

It was clear to me, though, that he was moving in the right direction.  I put it on the line. “Sir, you will be a critical voice on ‘Don’t Ask, Don’t Tell’ when it comes up for debate again. I need you to support repeal if we are going to win. Do you know that?”

“Yes,” he said.

Finally, on Feb. 5, 2010, 10 months before final repeal of “Don’t Ask, Don’t Tell,” and days after Admiral Mike Mullen had testified before the Senate that he supported repeal of “Don’t Ask, Don’t Tell,” Powell released a statement. “If the chiefs and commanders are comfortable with moving to change the policy, then I support it. Attitudes and circumstances have changed. Society is reflected in the military. It’s where we get our soldiers from.” The stage was set for final repeal.

We too often look for heroes and villains when the record can be complicated. Powell deserves opprobrium for defying Clinton, rallying opposition, and allowing 60,000 troops under his command to suffer the indignity of “Don’t Ask, Don’t Tell.” He deserves credit, though, for changing his mind. I admired his willingness to speak with me over nearly two decades. I find that the best leaders engage in a lifelong process of learning and challenging assumptions. Powell will receive deserved accolades for his service to our nation, but for us, his legacy includes a profound betrayal with a final act of redemption.

C. Dixon Osburn is author of ‘Mission Possible: The Story of Repealing ‘Don’t Ask, Don’t Tell.’’

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‘Don’t Ask, Don’t Tell’ repeal serves as a guide for enacting equality legislation

Equality Act supporters should take cues from Senate moderates

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Equality legislation is close to passing in Congress, but close isn’t good enough. “Close” won’t change anything for the LGBTQ Americans who face discrimination every day. Senate Democrats and Republicans must make a push to negotiate. With a reach on both sides to find common ground, we can move equality legislation from “close” to “done deal.”

Some Democrats are waiting for the filibuster to end—despite clear evidence that they lack the votes to end it. Some Republicans are practicing a tried-and-true brand of obstructionism. To break this deadlock, we should look to the successful, bipartisan repeal of “Don’t Ask, Don’t Tell” (DADT) as a guide.

The DADT repeal is the single reference point for LGBTQ advocates for overcoming the Senate filibuster. Other victories have been in the courts; notably, the Supreme Court’s 2015 Obergefell decision that made gay marriage legal nationwide.

Before Obergefell, advocates had success in the state legislatures. I worked on campaigns for the freedom to marry in Minnesota, New Hampshire, New York and elsewhere, finding common ground between Democrats and Republicans who thought it was impossible to negotiate on marriage. Eventually, enough people from both parties came together to pass marriage laws in a majority of states.

Working together at the state level is one thing. Congress is another.

Despite Democrats’ control of the White House, Senate and House, negotiations are failing at the federal level. So, we lets look to ancient history—the 2010 repeal of DADT—for guidance on reaching 60 votes in the Senate.

The most important lesson from the DADT repeal is that Senate moderates must champion the cause and lead negotiations. The more partisan figures on both sides need to step back. Overcoming the filibuster is a job for moderates, not ideologues.

As it happens, the hero of the DADT repeal is still a senator and can help. Republican Sen. Susan Collins of Maine led the negotiations on DADT repeal.

Senator Collins supports the Equality Act in principle and even sponsored a version of the bill in past. However, the current version is too extreme for Sen. Collins, as a result, she has withdrawn as a co-sponsor. The current bill has also foundered with Sen. Lisa Murkowski, another important figure in the repeal of DADT.

The fact that moderate, pro-LGBTQ senators are unable to back the current version of the Equality Act should send a clear message to Democrats that we need to make reasonable changes to the bill. So far, the message is being ignored.

On the Democratic side, independent Sen. Joe Lieberman was essential to the repeal of DADT. There certainly were passionate, liberal Democrats who could have asserted themselves during the debate. But then, the bill would have taken longer to pass, or even might have failed.

The lesson is clear. Listen to the moderates. Let them lead this charge.

Another important lesson from the repeal of DADT is to be flexible in the legislative strategy. DADT repeal was originally an amendment to a large defense authorization bill. Rather than give up, Collins and Lieberman fought and saved DADT repeal from defeat by pulling out key provisions they knew could pass on their own and making them a standalone measure. Repeal passed with bipartisan support.

The current version of the Equality Act tries to do too much. That’s why it can’t win support from moderate Republicans who have legitimate concerns the bill might suppress free speech or shut down religious charities.  

Over 60 senators can agree on the basic premise of the Equality Act. They would gladly vote to prohibit discrimination against LGBTQ Americans in employment, housing, and public accommodations, so long as the law didn’t intrude on the First Amendment.

If the far left believes that our country has too much religious liberty, they can deal with that in future legislation. But so long as we have a filibuster—and, there’s no indication it will end any time soon—the Equality Act needs to reflect our society’s current views on religious liberty.  

The DADT repeal passed with 65 votes in the Senate, overcoming the filibuster. Let’s replicate that victory by using the same playbook. Moderates: Take the lead.

Tyler Deaton is the senior advisor to the American Unity Fund, a conservative nonprofit organization working to advance LGBTQ freedom and religious freedom

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Commentary

LGBTQ people are being hunted down in Afghanistan

Homosexuality punishable by death under Taliban Sharia law interpretation

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Two men in Kabul, Afghanistan, in July 2021 (Photo courtesy of Dr. Ahmad Qais Munzahim)

Kabul was known as one of the few “liberal” cities in Afghanistan. The word liberal is in quotation marks, and inflected, because it is liberal compared to the rest of the country. Now that the Taliban has taken over, most people who expressed themselves differently and openly are forced to adhere to Sharia law, completely change their ways, hide their identity, or be killed.

The U.S. State Department reported in 2020 that even before the Taliban took power in August, LGBTQ people in Afghanistan faced “discrimination, assault and rape” and “homosexuality was widely seen as taboo and indecent.” Laws against lesbian, gay and transgender people made their existence illegal and punishable by up to two years in jail. Those laws were not always enforced, but they did leave LGBTQ people at risk of extortion and abuse by authorities, as reported by the U.K. government.

Even with the discrimination and abuse, LGBTQ people still had a sliver of space in society. Nemat Sadat, an LGBTQ Afghan author living in the United States said that gay, lesbian and transgender people helped the country’s cultural life develop since the Taliban’s last rule 20 years ago. But, most of these people built their lives quietly.

Now with the Taliban regime, their sliver of space in society is gone, there is no room to live quietly as an openly LGBTQ person. Under the Taliban’s interpretation of Sharia law, homosexuality is punished by death.

In an interview with Reuters, Waheedullah Hashimi, a top decision maker for the Taliban said, “there will be no democratic system at all because it does not have a base in our country,” and continued to say, “what type of political system should we apply in Afghanistan is clear. It is sharia law and that is it.”

One source spoke to a 20-year-old university student who is lesbian in Afghanistan. Her family accepted her as a lesbian, but now the new Taliban leadership has put the lives of all of her family at risk. There is a new surge of violence against any lesbian, gay and transgender people. This includes anyone speculated of being lesbian, gay, or trans, and those who support them.

This young lesbian woman has gone into hiding. She is part of hundreds of LGBTQ people in Afghanistan who are pleading with advocates and organizations outside Afghanistan for help to escape the Taliban tyranny.

Nemat Sadat shares stories of lesbian, gay and trans people in hiding. He shared a story of a gay man who watched from his hiding place in the ceiling as Taliban fighters beat the friend who refused to disclose his location.  

LGBTQ people in Afghanistan fear the risk of being arrested, beaten and killed. The Taliban made it clear that it is enforcing its strict religious laws against Afghanistan’s LGBTQ citizens. In an interview with Germany’s Bild newspaper, one Taliban judge said there were only two punishments for homosexuality: “stoning or being crushed under a wall.”

LGBTQ people in Afghanistan are reporting that their friends, partners and members of their community are being attacked and raped. They also stated that Islamic fundamentalists and riotous groups are encouraged by the new tyranny and are on the hunt for LGBTQ people.

Another source shared that a gay man was targeted for his sexuality and then raped by his male attackers. That is a terrible paradox. He was raped by his male attackers, who criminalizing him for having same sex relations.

LGBTQ people are in hiding, desperately trying to get out of the country, and trying to erase any proof of their queer identity.

They feel abandoned by the international LGBTQ community. The Taliban is proving that the Western nations have normalized relations to their government. The Taliban and their supporters see this a proof of their victory. This leaves LGBTQ people defeated and fearing torture and death.

The U.S. government and other Western countries evacuated many people out of Afghanistan, including journalists, women’s rights activists and those who worked with foreigners. But, LGBTQ activists said that nothing has been done for them. A source says about her situation, “we will definitely be killed. We are asking to be evacuated immediately from Afghanistan.” To date, no safe route has been found.

Even underground measures to help LGBTQ people are challenging and near impossible. The Rainbow Railroad is a non-governmental organization helping LGBTQ people around the world escape persecution. Executive Director Kimahli Powell said evacuating LGBTQ people from Afghanistan is especially hard as they are often alone, in hiding, and unable to contact each other. If routes to get them out is nearly impossible, that still means those routes are somewhat possible. As difficult as it may be, we must find pathways to save these people and get them out.

The Taliban regime has established itself, knowing with certainty that the world will stand aside, albeit condemning and protesting, but not intervening. This is empowering jihadists across the world, especially in the Middle East. The Taliban has many allies and admirers, including the Palestinian Islamic Jihad (PIJ) and Hamas. 

The leader of Hamas, Ismail Haniyeh, travelled from Palestinian territories to meet with Taliban leaders in Qatar. The Palestinian Islamic Jihad has a history of ties to the Taliban, even with radicals joining each other’s organizations. Very public statements of congratulations were made between leaders of the Taliban, Hamas, and Palestinian Islamic Jihad, and all with full Iranian support.

The increase in brazen forcefulness of these groups reaches beyond Afghanistan, and spreads to the lands dominated by other similar groups. This causes an escalation of the threats to anyone who opposes Sharia law or who lives differently than what Sharia law allows. LGBTQ people in these lands are in peril. 

If we do not help LGBTQ people in Afghanistan, the lives of LGBTQ people under other similar tyrannies face increased uncertainty and danger.

Since posting this video, I have been receiving direct messages from LGBTQ people in hiding in Afghanistan, and those who are seeking to be evacuated. They all share harrowing experiences of being attacked, raped, and threatened by Taliban, Islamic State and bullying groups.

Yuval David is an innovative actor, host and filmmaker with a creative mantra to entertain, uplift and inspire. He is a captivating performer and compelling storyteller who uses his platform for sharing narratives that affect social change, specifically on behalf of highly respected U.S. and international organizations that raise awareness for the marginalized and under-represented, inspired by his LGBTQ+ and Jewish identity, and his Israeli-American roots.

He can be reached through social media

YouTube.com/YuvalDavid

Instagram.com/Yuval_David_

Facebook.com/YuvalDavid

Twitter.com/YuvalDavid

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