No, the Pentagon Did Not Overrule Trump on the Trans Troops Ban
At 1:07 p.m. on Monday, the Associated Press tweeted a stunning claim:
BREAKING: Pentagon says it will allow transgender people to enlist in the military beginning Jan. 1, despite Trump's opposition.— The Associated Press (@AP) December 11, 2017
The tweet seems to contain two pieces of information: First, the Pentagon will permit openly transgender individuals to enlist in the armed forces beginning in January; second, that the Pentagon made this decision in spite of President Trump’s ban on transgender troops. The first claim is uncertain and premature; the second implication is flat-out wrong. There is still a decent chance that the trans troops ban will be in effect come Jan. 1, 2018. And if the ban is not in effect, it will be because of a court order—not because the Pentagon went rogue.
Here’s where things stand with regard to the trans troops ban. In June 2016, the Department of Defense invited transgender troops already serving in the armed forces to come out, after commissioning and conducting multiple studies on the matter. The DOD concluded that open transgender service posed no threat to military readiness or unit cohesion. A RAND study also found that the health care costs of transgender troops would be negligible. So the DOD let transgender troops serve openly—but it did not allow openly transgender people to enlist in the military. Instead, it decided that the enlistment ban would end in July 2017.
In July, however, Secretary of Defense James Mattis delayed the termination of the enlistment ban once again, pushing it back to Jan. 1, 2018. A few weeks later, Trump tweeted his total ban on transgender service. The announcement was a double defeat for transgender people: Not only did it scrap the termination date for the enlistment ban, meaning trans people were indefinitely barred from joining the armed forces; it also reversed the military’s acceptance of already-serving transgender troops.
Civil rights advocates, fearing an imminent purge, sued to block the ban. In lawsuits filed in different federal courts across the country, they argued that the ban discriminated on the basis of sex and transgender status in violation of equal protection. On Oct. 30, U.S. District Judge Colleen Kollar-Kotelly agreed, ruling that the government may not implement the proposed policy. Instead, Kollar-Kotelly instructed the government to revert to the status quo with regard to transgender military service. Obviously, that prevented the Pentagon from purging already-serving transgender troops. But the Trump administration wasn’t sure whether the ruling also revived Jan. 1 as the termination date of the enlistment ban. It asked Kollar-Kotelly for a clarification, and she explained that, indeed, the Pentagon must permit trans enlistment on New Year’s Day of 2018. (Meanwhile, a different federal court blocked the trans ban, calling it “capricious,” “arbitrary,” and “outrageous.”)
The Trump administration wasn’t pleased that Kollar-Kotelly revived the Jan. 1 termination date, so it asked her to put this part of her ruling on hold while it appealed her decision. On Monday, she refused to do so. That means that, unless a higher court weighs in, the Pentagon is obligated to follow Kollar-Kotelly’s order on Jan. 1 and allow enlistment of openly transgender individuals. It seems that the AP was trying to express this fact in its tweet. But even then, it leaves out crucial information: A higher court may well put Kollar-Kotelly’s order on hold before the new year arrives. The Trump administration will almost certainly seek a stay; it filed a notice of appeal in both cases, indicating that it plans to fight these rulings aggressively. And there is still ample time for a higher court—perhaps even the Supreme Court—to intervene and stay Kollar-Kotelly’s decision.
To summarize: Trump wants to prohibit all transgender people from serving in the military. The Pentagon is trying to follow his orders. But two federal courts have prohibited the Pentagon from discriminating against transgender people. Their rulings require the armed forces to permit transgender enlistment starting Jan. 1. And even if they aren’t, the uncertainty surrounding trans service may dissuade many trans people from enlisting until the legal questions are resolved.
A Case in Mississippi Raises Questions About the Legal Security of Nontraditional Families
Hey, Daddy! is a monthly column exploring the joys and struggles of parenting from a gay father’s perspective. Got a topic idea or question for Daddy? Send your letter along to email@example.com.
Are our same-sex-parented families as legally secure today as we imagine them to be? Sadly, no. The 2015 marriage equality decision in Obergefell v. Hodges hasn’t stopped some courts and policymakers from trying to diminish the impact of that case, often by trying to fence the nonbiological parent off from any children the couple might have. The situation is sadder—and unforgiveable—when gay and lesbian former spouses try to exploit these outdated views against each other. A case currently before the Mississippi Supreme Court is the latest example of this damnable tactic, which diminishes every nontraditional family—straight and gay alike.
By Supporting Roy Moore, Evangelicals Exposed the Hollow Bigotry of Their Homophobia
Watching the religious community from your childhood make a bonfire of its moral authority is a sight to see.
In my case, the community in question was made up of evangelical Christians. I was raised in a deeply conservative church smack in the middle of Missouri. All through the 1980s, I was as active a member as you were likely to find. If the doors were open, chances are good I was there with my family. I attended the vacation Bible school, Christian youth conferences, and I was Camper of the Week at church camp two years running. I memorized all the Bible verses, learned all the hymns, and was a shepherd one year in the live Nativity scene out front.
I was also gay—though I wouldn’t have an understanding of why I felt different from the other boys until I hit puberty. The realization struck me with horrible, nauseating weight.
There was no clearer social message that I absorbed during my time in that church than its opinion of gays, with the exception of its unwavering opposition to abortion. The hatred of gays had its own special heat. Gays were out to deliberately spread disease, I was taught. (This lie still has purchase in the minds of certain famous Christian leaders, lest you think it an unfortunate historical vestige.) Gays belonged on a desert island. Gays were “faggots,” a term I heard used for us in front of a cheering, laughing crowd of evangelical teenagers.
All of those messages I heard at church events, over and over. Eventually, frightened of his possible response but frightened even more for my soul, I confessed my emerging feelings to my youth minister. He was gentle but unambiguous in his reply that this was something I’d need to turn over to God to change. (In the same conversation, he also told me I needed to “stop swishing.”)
How Clueless Straight White Guys Excuse Religious Homophobia
Why does it seem that, every time a national debate erupts about the place of minorities in American life, a gaggle of Straight White Guys with little connection to or understanding of these minorities holds forth on how they should or shouldn’t resolve their grievance about unequal treatment? This week’s version came in response to Masterpiece Cakeshop, the Supreme Court case of Jack Phillips, a Christian baker who refused to sell a wedding cake to a gay couple, Charlie Craig and David Mullins. Phillips is seeking a license to discriminate based on artistic and religious freedom.
This week’s featured culprits: David Brooks writing in the New York Times, and George Will and political scientist Greg Weiner in the Washington Post. Each of their pieces made some reasonable points. But each betrayed a galling inability or unwillingness to truly consider what it might feel like to be a disfavored minority in modern America—to enter a store and be stamped for rejection based on a stigma you’ve already endured your entire life. In other words, they refused to let empathy shape their thinking.
If you write, opine, make policy or rulings or otherwise hold power over others, you can’t do your job well if you don’t practice empathy. This appeal to empathy is not a plea for powerful men to feel sorry for minorities; it’s about creating the moral habits of mind that involve putting yourself in others’ shoes so you can better understand the many sides of an issue that disproportionately affects people who aren’t you. If decent white men should have learned anything from the Trump election, Charlottesville, the police killings of unarmed black men, and the nationwide sexual harassment scandal, it’s that we have a special responsibility to better learn and practice empathy so we can make more informed decisions and wreak less havoc across the world.
With that in mind, I present five arguments advanced by Clueless Straight White Guys about religious-based anti-LGBTQ discrimination, and explain why they’re clueless:
Argument #1: It’s just cake; buy it somewhere else.
Why Do Some Trans Men Freak Out When Other Trans Men Wear Makeup?
Is a man wearing makeup still really a man? While it seems irrational to think a bit of face goo would negate someone’s manhood, no other question is as contentious in the community of trans men. It’s gotten to be such a problem that some Facebook groups for trans men address it directly in their rules for membership. “If a man is wearing makeup, LEAVE HIM BE” is the third rule for one such group with over 15,000 members. Other FTM groups, particularly those with very few rules, host near-daily flame wars between makeup-wearers and trans guys who attempt to enforce a masculine aesthetic through insults and mockery. Dyed hair and feminine clothing can sometimes prompt a similar reaction, but nothing seems to trigger a backlash to the same extent as trans guys who wear makeup.
Lukas Pareika is one of the transgender men who has posted pictures of himself in makeup. When I asked him to describe his makeup wearing, and if he’d been hassled for it online he wrote:
I tend to mainly go for eye and lip makeup when I’m just doing it regularly, nothing too intense. Off the clock, I’ll throw on some foundation and contour if I feel like, and on special occasions I do a full face/get a full face done. I never realized what an art makeup was and being an artistic type, I was instantly drawn to it. I love everything about it, from the application, to the end result, to the occasional compliment. It just feels good to do. In my life outside of the internet, I hardly receive any negative comments. Online however, I’ve had many trans men on pages I follow on Facebook tell me that I’m not a real trans guy for wearing makeup and looking feminine. One guy even told me I couldn’t possibly be trans, because I didn’t look like a guy.
Outside of the trans community, many people still insist on definitions of “man” and “woman” that arbitrarily exclude every single trans person from their post-transition gender, and hurl insults when our appearances are deemed too feminine or masculine for the gender we identify with. So as a trans guy myself, I just don’t go there. If a trans guy wants to wear makeup he has every right—I won’t say a thing about it. Deep down in some cold, conservative part of my soul, however, I have to admit I understand where these particular haters are coming from. I don’t say it; I wish I didn’t feel it; but when a transgender man shares a very feminine looking picture, particularly one in which the femininity of his facial features is enhanced by makeup, it makes me uncomfortable. It reminds me of an earlier time in my life when I’d look into the mirror and see a girl who could never be anything but a girl, a particularly intense form of what’s called gender dysphoria. Damien, a New Jersey trans man who has participated in some of the online dust-ups, described his own similar reaction:
I feel dysphoric since we’re both lumped in under the same label, and it reminds me of how hard I fought to NOT have to look like that, [and of] all the trans guys in unsupportive households who are forced to wear makeup and perform femininity.
It also reminds me of the feminine features I still have that I’m waiting to change. I wonder if the person posting even understands dysphoria the way that I and many other non-makeup-wearing trans guys experience it.
How a Supreme Court Decision for Masterpiece Cakeshop Would Harm Religious Minorities
On Tuesday, lawyers representing Jack Phillips, a baker from Lakewood, Colorado, will argue to the U.S. Supreme Court that religious freedom is under serious, if not mortal, threat. They will urge the court to embrace their interpretation of religious liberty principles, insisting that if they don’t win, the rights of people of faith will be in serious jeopardy.
Phillips and his lawyers have it exactly wrong—it is they who pose a threat to religious freedom. A victory for Phillips would not only harm people of faith, but also those who value our nation’s commitment to religious pluralism and civic equality.
The case being argued before the Supreme Court this week, Masterpiece Cakeshop v. Colorado Civil Rights Commission, raises the important question of whether businesses can rely on religious justifications in order to avoid compliance with state’s non-discrimination laws. As Phillips put it, he declined to bake a wedding cake for a same-sex couple because “using his God-given talents to promote same-sex marriage would go against his religious belief that marriage is between a man and a woman.”
On the surface, Phillips’ argument may appear to advance rights for people of faith. After all, under his view, a small group of religious adherents may gain legal protections. But as we argue in an amicus brief on behalf of fifteen religious minority groups, significantly more people of faith—and religious minorities in particular—stand to suffer if Phillips’ argument prevails. Why? Because non-discrimination laws, such as the Colorado law at issue in this case, often play an indispensable role in protecting the rights of religious communities. These laws serve as a critically important check against discrimination by businesses, employers, landlords, others; without such protections, individuals or groups—especially those outside the mainstream—would not be able to fully participate in civil society, and would be vulnerable to unjust persecution and harassment at every turn.
The United States is more heterogeneous racially and religiously than at any point in our history. As a result, robust non-discrimination laws are all the more crucial for ensuring that people of every faith can live and work together. But if Phillips prevails before the Supreme Court, those who would deny jobs or services to people because of their religious objections will feel even more empowered to do so. For example, a clothing store may choose to refuse to serve or hire Muslim or Jewish women who embrace modesty values because of opposition to their beliefs and practices. This is no idle threat; only two years ago the Supreme Court heard a case in which a Muslim woman was denied a job simply because she was wearing a headscarf.
Vermont Supreme Court Protects the Rights of Same-Sex Parents and Their Children
On Friday, the Vermont State Supreme Court handed down a significant decision in a child custody dispute between an estranged lesbian couple. The ruling in Sinnott v. Peck is one of many recent landmark state court decisions that protect same-sex parents’ rights and preserve the bonds between parents and their children.
Between 2003 and 2010, Sarah Sinnott and Jennifer Peck were in a healthy, loving relationship. The couple shared a home, cared for one another’s elderly parents, enjoyed vacations and meals with each other, and raised two children. Before their relationship began, Jennifer adopted a 1-year-old girl, G.P., from Guatemala. As soon as she could talk, G.P. called Sarah her mother. Jennifer encouraged G.P. to call Sarah as her mother and referred to Sarah as “mom,” as well.
A year later, Sarah and Jennifer decided to adopt another child together. The couple wanted to adopt a child from Guatemala so that both children shared a common cultural background. The adoption process was not smooth. Guatemala’s adoption system was riddled with mass corruption—indeed, the United Nations documented over 3,000 irregular adoptions— prompting the Guatemalan government to pursue legislative reforms. Those anti-corruption measures, however, threatened to shut off all international adoptions.
Further complicating matters, Sarah and Jennifer soon realized the adoption agency could only place an older child with them; the couple wanted to adopt a baby. With the window for adopting a Guatemalan baby closing fast, Sarah and Jennifer decided to return to the adoption agency that Jennifer used for G.P.’s adoption. The agency did not place children with same-sex couples, so Jennifer proceeded with the adoption process alone. Consequently, Sarah stayed home in Vermont to care for G.P. while Jennifer traveled twice to Guatemala to visit the child, M.P., whom the agency was attempting to place with Jennifer. All three members of the family went to Guatemala to visit with M.P. before M.P. was brought to Vermont. At the time of adoption, M.P. was 6 months old.
Remembering One Eleven Wines, a Pre-Stonewall Win Against Homophobic State Surveillance
Fifty years ago this month, the Supreme Court of New Jersey recognized for the first time the right of “well behaved apparent homosexuals” to congregate in bars. This landmark but little-known decision, One Eleven Wines & Liquors, Inc., v. Division of Alcoholic Beverage Control, is worth revisiting on its semi-centennial for several reasons.
First, it reminds us that the iconic 1969 Stonewall rebellion was preceded by many smaller, incremental victories for LGBTQ people. Second, the key role of Murphy’s Tavern in downtown Newark helps recast our memory of urban history. Newark in the year 1967 is mostly recalled for the explosive violence between African American residents and white National Guardsmen that July, but the city also has a rich, multiracial queer history. (The state’s high court consolidated the Murphy’s lawsuit with two other pending cases by the owners of One Eleven Wines in New Brunswick and Val’s Bar in Atlantic City, generating the case name.) Finally, this anniversary reminds us of the sheer perversity of a legal regime in which undercover agents of the state tried to “decode” homosexuality by means that read as laughably clumsy to us now, but were quite harmful at the time.
How Trump May Inadvertently Advance Transgender Rights
Donald Trump’s discriminatory attacks on transgender people have helped to define his early presidency. The president has attempted to ban transgender people from serving in the armed forces and his administration has rescinded Obama-era guidance confirming that Title IX’s protections for students include protections for transgender students. But Trump’s animus-driven actions are having the opposite effect that he envisioned. In a few different ways, Trump’s actions have inadvertently cemented, rather than weakened, the legal rights protecting transgender people.
First, by picking a fight with transgender service members and potential enlistees, Trump has all but ensured that courts evaluating the transgender military ban will ask whether the Constitution’s equal protection guarantees bar government discrimination against transgender people. Prior to this point, many cases challenging trans discrimination have raised equal protection challenges in addition to other claims. Courts have sometimes (but not always) been able to decide these cases on other bases, such as statutory grounds, avoiding the equal protection question entirely. For instance, in Gavin Grimm’s challenge to a Virginia school district’s efforts to prohibit a trans student from using the bathroom consistent with his gender identity, the equal protection challenge took a back seat to the question of whether the school’s actions violated Title IX’s prohibitions on sex discrimination in education.
But uniformed, military service members are not covered by statutory prohibitions on sex discrimination. That means the equal protection claims predominate. Therefore, courts—and the public—have been compelled to address those constitutional claims head on. And, thus far, the two federal district courts to evaluate the trans military ban have easily concluded that the ban likely runs afoul of constitutional equality.
Which highlights the second way in which Trump has inadvertently advanced transgender legal rights: Because Trump’s military policy so obviously and blatantly excludes transgender people without justification, courts have had no problem holding that it likely violates equal protection—either because it is a form of sex discrimination or because transgender status is itself a protected, suspect classification. This analysis is creating very helpful, trans-protective law, further establishing that transgender people are protected under the Equal Protection Clause. And it will aid transgender rights more broadly when equally pernicious but less obvious forms of transgender discrimination are challenged in courts. Indeed, this case law will support the pending constitutional challenges to discriminatory school policies that Trump has sought to undermine now that administrative guidance no longer bolsters a statutory Title IX claim.
Why Do Gays Keep Falling for Call Me by Your Name?
André Aciman’s Call Me by Your Name has twice been hailed as a modern gay classic: in 2007, when the novel, about an unlikely summer romance between two young men in Italy, hit bookstores, and this month, as the languorous film adaptation hits theaters. This is odd, given that the story’s main characters might more accurately be labeled bisexual—if such labels can be applied at all to this Midsummer Night’s Dream–like narrative so insistently aloof from contemporary history or politics.
Still, the fact remains that gay men adore this story about two young scholars, Elio (Timothée Chalamet) and Oliver (Armie Hammer), who embrace under the roof of Elio’s intellectual-bohemian family for a handful of weeks. Ten years ago, we adopted the book as an anthem, feverishly passing copies among ourselves, shaming anyone who hadn’t read it. And now critical praise suggests that we might fall in love with the story all over again when we flock to see it in cinemas.