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Supreme Court poised to roll back LGBTQ rights

Rebalance stolen court via expansion, term limits

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LGBTQ advocates were rightly relieved when the Supreme Court handed down Bostock v. Clayton County this past June, a case that extended the prohibition against discrimination in employment to include discrimination based on sexual orientation and gender identity. And with the most LGBTQ-friendly President-elect in U.S. history poised to take office in a matter of days, our community has even more reason to be hopeful.

Despite these positive developments, however, the Supreme Court poses a grave danger to the LGBTQ community. As the court ushers in a new era of conservative dominance—with anti-LGBTQ justices holding a 6-3 supermajority—the fragile judicial coalition on which the movement for equality has relied is at significant risk of being cast aside. 

Justice Amy Coney Barrett’s recent confirmation to the court is deeply concerning. Justice Barrett has defended Justice Roberts’ dissent in Obergefell, indicating that the issue of marriage equality should belong to state legislatures. She has repeatedly used transphobic and homophobic language, and even argued that Title IX does not protect transgender people. Her extremist positions will embolden the anti-LGBTQ conservative justices on the court – Justices Kavanaugh and Alito recently held an inappropriate private meeting with an anti-gay activist who had filed briefs in pending cases — and other Trump-appointed judges, as well as state legislatures to take anti-LGBTQ stances. With equality hanging in the balance, the LGBTQ community cannot afford a Supreme Court that stands to crush any progress made.

Marriage equality: In October, the Supreme Court denied certiorari to a case involving Kentucky woman Kim Davis, who refused to issue marriage licenses to same-sex couples. However, the denial of certiorari came with warning signs: Justices Alito and Thomas wrote a section that cast doubt on the constitutionality of Obergefell, the landmark Supreme Court case in which Justice Kennedy’s opinion that held that marriage is a fundamental right guaranteed to same-sex couples by the Constitution. In the certiorari denial, Justice Thomas wrote: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’” While broad majorities of the American people support marriage equality and opponents of it might not have the votes on the Supreme Court to overturn the precedent, it is nonetheless a troubling sign that two Justices would sign onto discrimination against our fellow citizens.

Discrimination: The currently pending case before the Supreme Court about discrimination is Fulton v. City of Philadelphia. The case emerged from circumstances in 2018: The city of Philadelphia had hired a number of agencies for foster care service. When the city learned that two agencies denied same-sex couples as foster parents, Philadelphia threatened to stop using the agencies unless they agreed to nondiscrimination requirements. While one of the agencies complied, the other, the Catholic Social Services (“CSS”), sued the city in federal district court. The federal district court found in Philadelphia’s favor, which the Third Circuit then unanimously affirmed. Nonetheless, the Supreme Court granted certiorari.

The CSS claims that because the city looks to several factors, including religious and racial factors, in spite of anti-discrimination law, it cannot at the same time prohibit the agency from considering the sexual orientation of foster parents under the guise of “religious belief.” If Philadelphia makes exceptions to its anti-discrimination laws in foster placement, it must also allow religious agencies an exception as well. If Philadelphia does not do so, it violates the First Amendment. The city claims that it can choose not to provide government contracts to organizations that do not adhere to its nondiscriminatory requirements. For the court to decide otherwise, it would mandate that the city discriminate.

The stakes are high, in part because a ruling against equality in Fulton could provide cover for undermining Bostock, which extended Title VII protections to LGBTQ employees. An expansion of the religious liberty to discriminate could eat away at Bostock. Even a 5-4 court with Justice Kennedy ruled against LGBTQ rights in Masterpiece Cakeshop. Now, with a 6-3 conservative supermajority, Fulton could strike a big blow against equality.

Health care and family: If the Supreme Court strikes down the Affordable Care Act (ACA) in California v. Texas, health care protections for the LGBTQ community would be eliminated. Section 1557 of the ACA is the law’s non-discrimination provision, which bans discrimination in health care on the basis of sex. The Obama administration’s rule interpreted Section 1557’s ban on sex discrimination to include discrimination on the basis of sexual orientation and gender identity. In addition to Section 1557, the ACA as a whole has been enormously important for the LGBTQ community. The uninsured rate for lesbian, gay and bisexual Americans fell dramatically due to the ACA and LGBTQ adults have become more likely to report having regular access to health care. For transgender Americans, who are more likely to live in poverty or be unemployed and to face enormous challenges and have negative experiences accessing health care, the ACA’s Medicaid expansion and provision of individual health insurance through the marketplaces are critical. The 6-3 conservative supermajority on the court makes the end of the ACA significantly more likely, with disastrous consequences that will disproportionately affect the LGBTQ community. 

Lawsuits challenging the Obama administration’s interpretation of Section 1557, particularly in regard to its ban on discrimination on the basis of gender identity, have been percolating in the federal courts for years. The Trump administration has attempted to reverse those protections, but it is widely expected that the Biden administration will revert to the Obama-era rule. Even if the ACA survives, this line of litigation could undermine critical protections for transgender individuals in the health care system. While the Supreme Court’s decision in Bostock v. Clayton County last term interpreting similar language in Title VII (discrimination on the basis of sex) to cover gender identity should be definitive, the 6-3 conservative supermajority could decide to distinguish these cases and allow for discrimination against LGBTQ individuals in health care. Since so many of the nation’s hospitals are affiliated with religious organizations such as the Catholic Church, the court could seize on Justice Gorsuch’s language in Bostock suggesting that the Religious Freedom Restoration Act (RFRA) could trump Title VII to require broad religious exemptions from non-discrimination in health care. 

Transgender rights: In addition to the massive blow that a gutted ACA could have for transgender rights, other cases about transgender rights percolating in the lower courts may someday make their way to the Supreme Court. In Saba v. Cuomo, for example, a transgender, nonbinary resident sued the state of New York for refusing to allow Mx. Saba to obtain a driver’s license that accords with Mx. Saba’s gender identity. In August, a lower court preliminarily enjoined Idaho’s law that barred transgender women from participating on women’s sports teams. That decision is currently being appealed.

Just this past year, the Fourth Circuit and the Eleventh Circuit considered whether school bathroom policies violated transgender students’ rights. Though both circuits ruled in favor of the students, the Grimm case briefly reached the Supreme Court in 2017 before being sent back to the lower court. In 2019, the Supreme Court rejected certiorari in a case involving transgender bathrooms, leaving a lower court’s trans-affirming decision in place. But it only takes four votes for the Court to take a case, and with a 6-3 supermajority now firmly in place, there is no telling the havoc it could wreak on transgender rights.

As we celebrate the end of the Trump era, and as we prepare to work with the incoming Biden administration to restore rights that have been destroyed over the past four years while advancing the case for equality, the LGBTQ community must pay attention to the danger posed by anti-LGBTQ justices, and we must advocate forcefully for judicial reforms such as court expansion and term limits that rebalance the stolen, illegitimate court.

 

Aaron Belkin is the director of the Palm Center and of Take Back the Court, and a political science professor at San Francisco State University.

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Words create worlds, so what kind of world do we want to live in?

Free speech comes with incredible responsibility

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It seems that each new day brings a fresh debate around speech and the weight of impact that speech holds. Back in October hundreds of Netflix employees staged a walkout protesting their company’s controversial Dave Chappelle stand-up special. At issue were a number of jokes aimed at the transgender community. The protest happened in response to Netflix CEO Ted Sarandos’ defense of the special, saying that “content doesn’t directly translate to real-world harm.” This statement could not be further from the truth. Not only do words carry impact and directly translate to real-world harm, words form our conception of the world and oftentimes what is seen as truth. The language we use and condone shapes how everything around us is perceived, which is why there is great responsibility in considering the words we use before we put them out into the world. 

We think about this every day at Reading Partners, an organization that places community volunteers in Title I elementary schools to support students in mastering reading skills. Because many of our volunteers do not share racial identity or a similar lived experience of the students we partner with, it is incredibly important to us that they understand that their role is to empower students who need a little extra support rather than coming to “help” or “save” them. The white-savior narrative has historically run rampant in spaces looking to mobilize volunteers for a cause and it is our responsibility to dismantle this narrative. This dismantling starts with the language we use and the stories we share about the communities we have the great privilege to partner with. Given that structural racism and oppression have created the current conditions facing under-resourced students, it is incumbent upon us that we recognize our role within the community and understand that we are here to act as a partner with students and their families whom have already created plans to address gaps in learning.

Because of the impact words yield, it is essential to carefully consider language choice, especially if it could affect marginalized and oppressed groups. Even those who have good intent, like journalists and public figures, often use outdated language and phrases that stigmatize communities or frame them through an othering lens. Some common examples of misguided language often used include phrases like “low-income students,” and “learning loss.” Both of these phrases place responsibility on students for the situation they are in despite the fact that students do not receive income, or have intentionally chosen to miss out on learning opportunities particularly with the disruptions that COVID-19 created. This type of framing has a direct corollary on how these students might be treated by teachers, administrators, and tutors, as well as how they are viewed by leaders, politicians and other people who hold power. It is therefore important that we use terms that accurately describe the situation, which may need to include political or historical context—so instead of “low-income students” we say, “historically under-resourced communities,” while a more accurate substitute for “learning loss” is actually “unfinished learning.” While these are subtle shifts in language, it completely reframes the situation, elucidating who shares responsibility for the current state of things and who does not.

It is also of note that the positive or negative connotations inherent in the language we use are hugely important to how we see those who may have different lived experiences than our own. At Reading Partners, we know that our students are not in fact “struggling” or “suffering from a lack of” something. We highlight our students as they are: “working hard,” “enduring,” “skill builders,” etc. despite growing up in a world where they have been denied access to high-quality literacy education. 

It is a fallacy that words cannot do harm. Language has served to dehumanize and subjugate people for as long as it has existed and it is often those in power who have the loudest voice. We as people, institutions, corporations, media, and otherwise must think through what we say and how it might impact others. Let’s be clear—this is not about censorship or ‘cancelling’ anyone. Language changes all of the time and it can be hard to keep up with. We are simply making the appeal that those in power, and with platforms, continue learning from and listening to those who have been harmed for centuries by systemic injustice. Free speech is a privilege, and with that privilege, there is incredible responsibility to utilize language that truly aligns with and demonstrates the user’s values.

Shukurat Adamoh-Faniyan is executive director of Reading Partners DC, a nonprofit that for more than 20 years has helped empower local students to succeed in reading and in life by engaging community volunteers to provide one-on-one tutoring. If you’re interested in learning more and becoming a volunteer visit readingpartners.org/volunteer-washington-dc.

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Why are gays so terrible at intergenerational friendships?

D.C. should create buddy program for elders

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Let me just start with a question. How many friends outside of your generation do you have? I mean honest-to-god friends. In my friend group, as large and fungible as that can be in the District and in the age of social media, it’s sort of me and a few other Gen Xers, and then just loads of Millennials. They do look to me to pass down some knowledge, but it’s mainly to do with the ins and outs of mortgages and things like that. 

But is it me? Or are gays just really, really terrible at having intergenerational friends? It’s striking. I’ve recently developed a friendship with — let’s call him — Bill. He’s almost 80. Maybe it’s the historian in me, but I just love the stories. But more on that later. For now, to ask another question, just why are gays bad at having friends removed from their respective generations? 

On social media this week I posted an obituary from a Houston paper dating from 1978. It was obviously from a gay man. You can tell from the coded language, “long time resident of this city despite stays on the West Coast.” And if that didn’t give it away, it ended with this rather heartbreaking language, “his parents requested that his friends not attend the memorial services!” Bill told me these sorts of obituaries — terribly vague but also cruelly pointed — were quite common in the dark days of AIDS. And this is succinctly why I think gays are so bad at having intergenerational friends, we’ve simply lost an entire generation of elders. And what was exactly lost with that generation is far more than can be enumerated in this column. 

Back to Bill’s stories for a second. There is a real value in oral histories, the telling and passing down of shared experiences make our culture certainly more valuable and rich, at the very least far more interesting. And again, this is nothing new, as cultures across the globe seek to capture personal stories and first-hand viewpoints of history unfolding. But it’s not just the story itself that’s important. It’s also the perspective and opinions. These remain nuanced between generations. Again, that’s really not saying anything new. But these varied opinions and outlooks, if not shared and debated risk isolating gay men into rigid and unchanging views crafted in echo chambers. 

Also, gays place a large premium on youth. And this, again, is nothing new, nor particularly gay. We just like what we like. But as Bill told me, he’s rather annoyed that any interest he expresses in a younger man is automatically filed under lecherous behavior. Let me just deal with this right here: We all, no matter the age, display to varying degrees lecherous behavior. Just get us a little dehydrated, a little tipsy, and throw us on the sand of Poodle Beach and watch the unwanted flirting unfold. So. But still we have to do better than mistaking anyone displaying interested in us as a simple sexual advance. That seems rather juvenile.  

With contact between our generations low, we are in danger of passing down a culture to future queer Americans that might seem a little lopsided and even a bit, well, shallow. But what’s to be done? I’ve commented in past columns on how we’re failing older LGBTQ Americans, especially in the District. To remedy this, we should use what I call the Chicago model and what is being done at the Center on Halsted, the city’s LGBTQ community center. The Center offers numerous programs geared to the city’s LGBTQ senior population. But one that sticks out is a sort of a buddy program, pairing seniors, even those in care facilities, with younger friends. This would certainly help us here in the District better care for our LGBTQ seniors, and would also of course help with the bridging of our considerable generational divide. So perhaps we could reproduce this here in the District. 

For now, I’ll continue to buddy up and enjoy my time with Bill. 

Brock Thompson is a D.C.-based writer. He contributes regularly to the Blade.

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Texas synagogue attack a reminder to fight anti-Semitism

Supporting Jewish community after latest tragedy

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Congregation Beth Israel (Screen capture via ABC News YouTube)

It was an all-too-familiar moment. A relaxed Saturday afternoon. Until an alert flashed on my screen. A gunman had taken hostages at a synagogue, Congregation Beth Israel, in Colleyville, Texas, a suburb of Dallas. He’d gone into the synagogue during Sabbath services.

It was an hours-long ordeal for the rabbi and three members of the congregation who were held hostage. The police intervened. The hostages emerged safely after 11 hours. The gunman, Malik Faisal Akram, died.

Like so many hearing this news, I was horrified, saddened, frightened, and shocked, but not surprised.

The hostage-taking at the Texas synagogue is part of a pattern of rising anti-Semitism. The Anti-Defamation League has tracked a rise in anti-Semitism in the United States in recent years – from the 2017 “Unite the Right” rally in Charlottesville, Va., where marchers threw Nazi salutes to the 2018 Tree of Life synagogue shooting that killed 11 people in Pittsburgh.

I don’t want to draw a false equivalency. Homophobia, biphobia and transphobia aren’t the same as anti-Semitism. But there are parallels. As I heard about the terrifying attack on the Texas synagogue, I remembered how frightened, enraged and sad we felt in 2016 when 49 LGBTQ people were killed in the Pulse nightclub massacre and how traumatized our community was by this attack.

As I write, much remains unknown about the hostage attack on the Colleyville synagogue. Authorities in the United Kingdom and the FBI are still investigating the situation.

Akram, the attacker at the Texas synagogue, came from Blackburn, England. In 2020, MI5 the U.K.’s counterintelligence and security agency, had investigated Akram, the BBC reported. The agency kept him on a watch list as a “subject of interest,” but determined that he wasn’t a “threat.” The FBI is investigating the hostage-taking at the synagogue as terrorism, the Washington Post reported. The authorities don’t know how Akram was allowed to get to Dallas or to buy a gun.

During the attack, Akram referred to Aafia Siddiqui, an American-educated woman known as “Lady al-Qaeda” and convicted of terrorism. Siddiqui is in a federal prison in Fort Worth for trying to kill U.S. soldiers, the Post reported.

Akram’s brother, Gulbar Akram, told media outlets and authorities that Akram had a mental illness.

Though the attacker’s motive still isn’t known, it’s clear that the Texas synagogue wasn’t randomly targeted, experts say. “It wasn’t a government office. It wasn’t another house of worship by a different faith community,” Holly Huffnagle, the American Jewish Committee’s U.S. Director for Combating Antisemitism, told NPR’s “Morning Edition.” “It was targeting Jews.”

Why should the LGBTQ community care about the attack on the Texas synagogue and the rise of anti-Semitism?

First, of course, because of the Jews in our community.

Those of us who are Jewish and LGBTQ know the double-whammy of encountering anti-Semitism along with homophobia, biphobia and/or transphobia. We run up against this prejudice in everything from slurs to stereotypes to violence.

Those of us who aren’t Jewish don’t know what anti-Semitism is like, though we may have Jewish family members or spouses who have experienced anti-Semitism. But because we’re LGBTQ, we have run into bigotry. We’ve been called names, discriminated against and wounded and killed by anti-queer violence.

Anti-Semitism and anti-queer bigotry aren’t identical, but I’d wager that many who are anti-Semitic are anti-queer.

“Then they came for the Jews,” wrote Martin Niemoller, a Christian pastor who resisted the Nazis in Hitler’s Germany in a poem, “And I did not speak out/Because I was not a Jew/Then they came for me/And there was no one left/To speak out for me.”

Our community needs to look within itself. We should work to expunge any anti-Semitism in our midst. 

Anti-Semitism has been a scourge for centuries. Combating it isn’t easy. But, let’s do all we can to support the Jewish community and to fight anti-Semitism.

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

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