Chaos in the House as Republicans Bend Rules to Save Anti-LGBTQ Bill
Remember, way back in July 2014, when President Barack Obama issued an executive order barring federal contractors from discriminating against employees on the basis of sexual orientation and gender identity? You may not, because by 2016 standards, that’s pretty uncontroversial stuff. But Republicans in the House of Representatives certainly do, and many of them are working very hard to reverse it.
In April, Republican Rep. Steve Russell slipped an amendment into the National Defense Authorization Act that would legalize anti-LGBTQ discrimination by government contractors. When the House approved the NDAA on Wednesday, Russell’s provision remained. So, on Thursday, openly gay Democratic Rep. Sean Patrick Maloney put forth an amendment to nullify Russell’s amendment.
One of Trump’s SCOTUS Picks Supported a Revolutionary Pro-Trans Constitutional Ruling
On Wednesday, Donald Trump released a list of judges he might nominate to the Supreme Court, should he win the presidency. Predictably, the list waspacked with reactionary conservatives who would likely use their position to advance the Republican Party’s agenda from the bench. I initially included Judge William Pryor, a George W. Bush appointee on the 11th Circuit, in that group; Pryor has, after all, issued rulings against contraceptive coverage and clean election laws.
But as ACLU attorney Daniel Tilley pointed out to me, Pryor also has one strikingly liberal case under his belt: He supported an absolutely revolutionary opinion in 2011 holding that anti-trans discrimination qualifies as sex discrimination and is thus generally forbidden under the Equal Protection Clause of the U.S. Constitution. Pryor didn’t write the decision—it was authored by Pryor’s 11th Circuit colleague Judge Rosemary Barkett, a liberal firebrand—but he did join it in full, suggesting he endorsed its logic and conclusion. If that’s true, then Pryor, as a Supreme Court justice, would be almost certain to invalidate the recent spate of anti-trans legislation, including North Carolina’s odious bathroom bill.
Gender Dysphoria Is Killing Transgender Teens. Why Aren’t We Talking About It?
A 2011 survey of 6,500 transgender people published by the National Center for Transgender Equality revealed that 41 percent of transgender individuals have attempted suicide at least once. Fifty percent of transgender youth will attempt suicide before their 20th birthday.
In an attempt to make sense of these staggering statistics, I spoke to Michael Mancilla, a licensed clinical social worker at Children’s National Hospital in Washington, D.C. He told me the story of a 15-year-old patient he had seen the previous day. The patient, a transgender male, was admitted following an aspirin overdose, his third suicide attempt. After speaking to him, Mancilla learned that the attempts were temporally linked to the patient’s menstrual periods. The hormonal changes and the physical and emotional dissonance caused by menstruation were severe enough to lead to suicide attempts.
How a 1964 Civil Rights Law Makes North Carolina’s Bathroom Bill Illegal
The United States and North Carolina are currently engaged in the fiercest legal battle over Americans’ civil rights since the era of integration. At issue this time around are the rights of transgender Americans, specifically, the right of trans students and employees to use the bathroom consistent with their gender identity without fear of legal punishment. This battle largely boils down to the meaning of sex discrimination, which federal law forbids in education and employment. The federal government argues that sex discrimination is an expansive concept that encompasses the ways we express our gender. North Carolina insists that sex discrimination is narrow—little more than a ban on mistreatment because of an individual’s “biological sex.”
Gillian Thomas, an attorney with the ACLU’s Women’s Rights Project, is the country’s foremost expert on the meaning of the “sex discrimination” prohibition in Title VII of the Civil Rights Act of 1964, which bars workplace discrimination. Thomas recently published Because of Sex, the definitive account of Title VII’s sex provision. We spoke on Tuesday about the original intent of the law, its evolution in the courts, and its extension to North Carolina’s new measure. Our conversation has been edited and condensed.
How did a ban on sex discrimination in the workplace wind up in the Civil Rights Act of 1964?
In its original form, the law addressed discrimination based on race, national origin, color, and religion. And then, just as the bill was about to be sent to the full House of Representatives for a vote, Congressman Howard Smith of Virginia—a virulent racist who was rabidly opposed to the bill—announced that he wanted to add a sex provision.
It wasn’t a total surprise; Smith had, for many weeks, said he was thinking about adding the amendment. Incongruously, he was a longtime supporter of the Equal Rights Amendment and the National Women’s Party. Women’s groups started pressuring him, saying: Listen, if this bill passes, black women will enjoy more protection in the workplace—by virtue of their race—than white women. So Smith was worried that white women might have less coverage, but he also did have a real, genuine support for women’s rights and believed that if this bill was going to pass, women should be a part of it.
Why Hasn’t Hillary Clinton Come Out in Favor of Trans Bathroom Access?
Hillary Clinton has a choice to make. She needs to decide whether or not she will fight for transgender Americans’ efforts to secure access to the bathrooms that accord with their gender identity. If she fully supports such efforts—which already have a strong ally in President Barack Obama—she will eventually have to say so. Alternatively, she could withhold her full backing while continuing to make vague statements of support for transgender people.
This is the tack she took last Friday. In a statement to the Washington Post, spokeswoman Xochitl Hinojosa said: “Hillary Clinton applauds the Obama administration for taking actions this week to stand up for the rights of LGBT people—and particularly for the rights of transgender people—across the country. As president, she will fight to make sure all Americans can live their lives free from discrimination.” The statement is interesting both for what it says—that she supports trans people and the president—and for the fact that it does not specifically say that she supports trans people using the bathroom that aligns with their gender identity.
North Carolina’s Catch-22
HB2, North Carolina’s law forbidding transgender people from using public restrooms that comport with their gender identity, puts trans people in an impossible double bind and infringes on their autonomous decisions over medical treatment. Although Gov. Pat McCrory claims that trans people who have “undergone a sex change” (his term) will be able to change their birth certificate and therefore use the public bathroom corresponding with their gender identity, transgender people will in fact be impeded from having surgery and will therefore be barred from accessing bathrooms consistent with their gender identity.
How so? HB2 conditions entrance to a multi-occupancy single-sex public restroom on sex as “stated on a person’s birth certificate.” A separateNorth Carolina law provides that the gender marker on a birth certificate can only be modified if an individual has undergone what North Carolina labels “sex reassignment surgery.” (The increasingly preferred term is gender confirmation surgery.) But under the prevailing medical recommendations, a person only qualifies for certain surgeries if they have lived consistently for 12 months in the gender role that conforms with their gender identity. That often includes using the restroom corresponding with one’s gender identity. Therefore, HB2 interferes with the medical requirements for obtaining surgery in the first instance.
Welcome to the Restrooms of the Future
Imagine, if you will, that you feel nature's call one day in a public place.
Following the arrow on the sign marked "Restrooms," you round a corner and come upon two doors. To your mild surprise, neither door carries the traditional "pants" or "dress" emoji that you're used to seeing. You take a moment to examine the doors and consider your next move.
Both doors are marked with the updated version of the accessibility icon, so if you're looking for an accessible stall, you know you're covered either way.
But which of the two doors is the right one for you?
The sign on the door closest to you has an ideogram: of a user. The door is marked "Single" in a language you can read, with a little "lock" icon just to make it clear. That probably means it locks, you think to yourself. Looking around, you might even find there are multiple private rooms available in a busy location.
The sign on the other door shows multiple users. And instead of "Single," it reads "Shared." That one is probably more like other public restrooms I'm already familiar with, you conclude.
But ... Shared? Regardless of gender? What are the implications of that? There could be either men or women in there, you realize. (Or even other genders, it might also occur to you.)
Obama Administration to Schools: Trans Discrimination Will Not Be Tolerated
When the U.S. Department of Justice sued North Carolina over its anti-trans “bathroom bill” on Monday, the suit—and especially Attorney General Loretta Lynch’s powerful explanation of the move—was widely viewed as a watershed moment in the quest for transgender equality. On Friday, President Barack Obama will throw the full weight of the executive branch behind that quest, at least as it manifests in schools: The administration will issue guidance to every district and public university in the country explaining that, under current interpretations of Title IX, they cannot discriminate against trans students.
While the guidance, which comes from the DOJ and the Department of Education, does not carry the force of law, it does put institutions on notice that discriminatory actions toward trans students may result in lawsuits and the withholding of federal money. The letter is clear about its expansive view of trans inclusion: “When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.” In other words, everything from bathrooms and locker rooms to athletic teams and student housing must be equally accessible to trans students based on how they identify. Moreover, the guidance says schools may not require medical diagnoses or changes in birth certificate (which is currently difficult or impossible in many states) before making accommodations; a parent or legal guardian’s indication of the child’s gender identity is enough.
In Italy, a Narrow Definition of Family Means Same-Sex Couples Still Can’t Adopt
When Italy became the final country in Western Europe to recognize the rights of same-sex couples on Wednesday, the reaction broke down along predictable lines. The Italian LGBTQ advocacy group Arcigay objected that the new civil-union status the law created was an unacceptable second-best to marriage, especially since adoption is still not permitted. Those on the right, echoing the influential view of the Catholic Church, complained that the law was still too close to marriage.
By creating the civil union, Italy is moving in the same direction as other Western European countries have already done—just far more slowly. In the Netherlands, France, the United Kingdom, and Scandinavia, variously named laws (domestic partnerships, civil unions, registered partnerships) began by granting an expanding cluster of rights short of marriage to same-sex partners. Crucially, though, these laws generally recognized the couples’ rightsqua couple only, not their legal right to parent. Bans on same-sex adoptions and on surrogacy (which were sometimes part of complete bans on the practice) remained in place, and they were only lifted once a country reached full marriage equality. It’s possible that Italy will follow the same course.
The N.C. School Board Member Behind the Pepper Spray Policy Says LGBT People Weren’t His Concern
When news broke earlier this week that North Carolina’s Rowan–Salisbury Board of Education had voted to allow students to carry pepper spray on campus—seemingly under the logic, as one board member intimated, that they might need it to protect themselves from trans people in bathrooms—it looked like the vigilante gender police state was arriving faster than I had feared. (Well, an invigorated one anyway—plenty of trans and gender–nonconforming people have lived under a version of it forever.) Appropriately, progressive-leaning media and activists threw a spotlight on the story, covering it as yet another sad step of the formerly enlightened Southern state down the slope of bigoted ignominy.
Fortunately, the outcry seems to have worked: As Buzzfeed News reported late Wednesday, the board is now “rethinking” the policy change and will take it up again at the body’s next session on May 23. Pepper spray is expected to move back to the list of prohibited items.
While the about-face itself is good news, it’s particularly important to note that Chuck Hughes, the board member who had offered the offending justification, is leading the reversal. Hughes’ original quote—“Depending on how the courts rule on the bathroom issues, it may be a pretty valuable tool to have on the female students if they go to the bathroom, not knowing who may come in.”—understandably sounded transphobic in light of the furor surrounding HB2. But Hughes later elaborated on his views to Buzzfeed, saying, “I was not thinking about the LGBT issue. Perverts and pedophiles taking advantage of this law in bathrooms was my major concern.”
He went on:
“The LGBT issue has never been a problem to my knowledge,” Hughes said. “People have a different sexual identity, they go about their business. You don’t even know that a transgender is in your bathroom. They’re not there to create havoc. But perverts are.”
Hughes said he was not homophobic and that the LGBT community had rights to be protected. “They’re not the ones to look out for,” he said. “My statement was misinterpreted and when I hear other people talking about it, I can see how it was misinterpreted.”
While it’s impossible to know whether this clarification is genuine or a bit of crisis management, I’m willing to take Hughes at his word—not least because he has promised his own vote to revoke the pepper spray allowance. What concerns me more is that, even for this a guy who seems to basically get that LGBTQ folks are not de facto “perverts,” the fearmongering around bathrooms perpetrated by North Carolina Gov. Pat McCrory and similar potty warriors has been effective. So much so that, in this case, a school board official temporarily thought it was a good idea to approve an easily abused weapon for the use of teenagers.
My heart sinks to think of how many folks like Hughes—well-meaning, generally difference-tolerant, even potential allies—have been riled up against transgender and other queer people in a similar fashion. Because when HB2 is repealed or struck down and the words erased, that emotion will linger—and unlike ink, the stain of fear isn’t so easily removed.