How Gay Rights Decisions Are Helping the Legal Case Against the Muslim Ban
Washington state filed a brief on Monday in response to the Justice Department’s attempt to reinstate Donald Trump’s Muslim ban at the U.S. Court of Appeals for the 9th Circuit. The brief argues persuasively that the executive order imposes “draconian restriction[s]” on lawful immigrants’ liberty in violation of due process and discriminates on the basis of their religion in violation of both equal protection and the First Amendment’s Establishment Clause. But the brief also includes a critical back-up argument—one rooted in the Supreme Court’s gay rights decisions.
“Even if the Order did not make suspect classifications [on the basis of religion],” the brief states, “it would be illegal because ‘its sheer breadth is so discontinuous with the reasons offered for it that the [Order] seems inexplicable by anything but animus toward the class it affects.’ ” That quote comes straight out of Romer v. Evans, in which the Supreme Court struck down a Colorado law that prohibited local gay nondiscrimination ordinances. Colorado argued that the ordinance was meant to protect free association and conserve resources “to fight discrimination against other groups.” The court found these explanations to be pure pretext, holding instead that the law’s sweep “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Washington now makes a similar argument: The government claims that its ban is meant to fight terrorism—but the astonishing scope of the order hints that it is really motivated by animus toward Muslims and refugees.
How Doctors’ Offices—and Queer Culture—Are Failing Autistic LGBTQ People
Every patient presents their medical provider with a unique set of needs.
Even straightforward complaints or concerns can take on added complexity, depending on a person’s circumstances. Checking for an ear infection is simple on the surface, but when the ear in question belongs to an autistic child, measures to make that encounter as reassuring and comfortable as possible often require more attention. Creating a safe environment for gender or sexual minority patients to disclose information they may feel afraid to share anywhere else is essential for any provider who hopes to deliver good care to them.
Autism, a diagnosis that can manifest in a variety of different ways, falls along a spectrum. Autistic people may process sensory experiences differently, have challenges with social interaction, or move in atypical ways, among other common characteristics. Some of these characteristics may be more noticeable in one autistic person and less in another, or pose more difficulties in different settings from one autistic person to the next. Meeting the needs of patients who are both LGBTQ and autistic may require an even greater level of awareness and attention. Unfortunately, that awareness and attention is often lacking.
Lewis Wallace and the Coming Crisis of Identity-as-Advocacy
One way to look at the story of Lewis Wallace—the reporter who was fired from American Public Media’s Marketplace radio show on Monday over concerns about his neutrality as a journalist—is as just another example of the media’s age-old struggle with “objectivity,” and how that relationship may need to evolve under the fact-averse administration of President Donald Trump. For a thorough parsing of that angle, as well as a tick-tock of the events involved—a petite saga of a blog post published, retracted, and republished; a suspension leading to Wallace’s dismissal; and both sides’ statements—check out Laura Hazard Owen’s excellent piece on the fracas over at Nieman Lab.
Here, I just want to tease out another thread: how this foolish decision highlights an emerging phenomenon around identity post-Trump—and one that is probably only going to get worse.
As Owen points out, Wallace’s mistreatment at the hands of APM was more than a little hypocritical. The same people responsible for the reporter’s dismissal had recently touted Marketplace’s institutional rejection of the “view from nowhere,” an investment in a naive objectivity that does not exist. And host Kai Ryssdal himself maintains a fairly opinionated presence on social media—in fact, Wallace says it was his superiors who encouraged his more voice-y blogging and tweeting in the first place, as part of brand building. Until, that is, it became evidence of the “kind of journalism” he really wanted to do, which is to say: advocacy.
At this point, Wallace’s identity as a transgender man comes into play. For Wallace’s bosses, raising (wholly legitimate) questions about what neutrality means under a regime that actively lies to journalists and the public and, more to the point, noting that his identity makes certain claims—say the legitimacy of transgender lives—beyond dispute marked him as an activist. Deborah Clark, the executive producer and VP of Marketplace, evinced this connection in a statement to Owen:
When I talk about not being part of the ‘view from nowhere,’ that doesn’t mean we do advocacy or biased journalism. We do independent, objective reporting that brings forward a balanced point of view on the news we cover. We put real people on air—our interview subjects—and their real life experience is what helps shape that view, not the personal point of view of our journalists.
To be clear, Wallace never said his own point of view should be the focus of Marketplace’s reporting. He simply observed that his identity and position raise productive and important questions about whether “objectivity” is as firm a concept as some journalists would like to pretend. And therein lies the problem: It’s Wallace’s very identity that makes him a liability.
It’s not that Marketplace is being transphobic here. Rather, the decision feels of a piece with the mood, post-election, that “identity politics” was somehow responsible for the result—that, were it not for the “distracting” presence of trans people at bathroom doors or black lives in city streets, Hillary Clinton would have won. Marginalized identities, as subjects of discourse or sites from which demands emanate, have become suspect to many on the center-left. To have a gay or trans person or person of color in a supposedly neutral role speaking about those identities is increasingly a threat to the cause—we have white, working-class voters (those most fragile of creatures!) to woo, after all.
Or, in the case of APM anyway, to convince of their nonpartisanship. But at this point in American history, to employ a trans person—indeed, to pursue the goal of a diverse newsroom at all—is to take a side. It’s a shame that a shop seemingly so committed to its principles proved so cowardly when one of its own simply acknowledged reality. That’s a commodity of which, these days, we have little to spare.
Virginia’s Eloquent Lawsuit Brilliantly Connects the Muslim Ban to Segregation
On Friday, a federal judge allowed Virginia to intervene in ongoing litigation over Donald Trump’s Muslim ban in order to protect Virginians who might be detained, deported, or denied re-entry under the executive order. The state’s complaint eloquently explains why the ban infringes upon immigrants’ due process and equal protection rights while violating the First Amendment’s Establishment Clause. But its most striking section arrives at the end when the state invokes Justice John Marshall Harlan’s famous dissent from the Supreme Court’s decision to uphold segregation in Plessy v. Ferguson:
This is a monumental case involving a monumental abuse of Executive Power. So it is worth remembering another monumental case, Plessy v. Ferguson, that enshrined in American law—for more than a half century—the approval of government-mandated racial segregation. The majority in Plessy reasoned that government-mandated segregation “does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens.” We admire the first Justice Harlan for putting the lie to that claim: “Every one knows” what was being justified, he said. The same is true here.
And what Justice Harlan said next may be even more important for Twenty-First Century Americans to remember: “the seeds of race hate” should not be “planted under the sanction of law.”
In this case, the seeds of hate towards Muslims are “planted under the sanction” of the Executive Order. Those seeds must be rooted out, as soon as possible, lest they germinate and poison more Americans. The Executive Order was conceived in bigotry and does not reflect who we are as a people.
It is altogether fitting for Virginia to cite Harlan’s dissent here given that his words provide a constitutional through line that links the 19th-century struggle for justice with the battles we fight today. The principles Harlan expounded in 1896 are timeless and universal, and they are especially apposite to the modern campaign for equality. Justice Anthony Kennedy opened his opinion in Romer v. Evans—the first decision to protect LGBTQ rights under the Equal Protection Clause—with Harlan’s declaration that the Constitution “neither knows nor tolerates classes among citizens.” The originalist argument for marriage equality is rooted in Harlan’s conception of a Constitution that prohibits second-class citizenship on the basis of identity. After all, as Harlan wrote, “[t]here is no caste here … In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
Just as presciently, Harlan’s dissent warned that when the government discriminates on some illegitimate basis, it does not always announce its intentions. A dubious pretext often accompanies the state’s most vicious attacks on personal liberty. Segregation, the Supreme Court once agreed, was simply meant to separate the races, not to degrade nonwhites. Same-sex marriage bans, their backers insisted, were designed to encourage procreation, not demean gay people. And the Muslim ban, we now learn, is meant to thwart terrorism, not debase and banish Muslims. The pretense, of course, is as false today as it was in the 19th century. Bigotry is bigotry, no matter what deceptive words the government uses to describe it.
Mark Herring, Virginia’s attorney general, served as lead author on the state’s complaint against Trump’s executive order. Before this litigation, he was likely best-known for choosing not to defend Virginia’s same-sex marriage ban and for rolling back draconian regulations on abortion clinics. Herring’s tenure has come to be defined by his Harlan-esque decisions to value individual dignity and equality over arbitrary or insidious state discrimination. His most recent lawsuit furthers that burgeoning legacy. And with luck, it will persuade the courts to reaffirm one of our most basic constitutional principles: There is no caste here—and no president, however powerful he may believe himself to be, has the power to create one.
SCOTUS Nominee Neil Gorsuch’s Reasoning on Speech Should Concern LGBTQ People
Even as an undergraduate student at Columbia University in the late 1980s, Neil Gorsuch—who on Monday became President Trump’s nominee to the Supreme Court—was already showing signs of a vision shaped and narrowed by conservative ideology. As a classmate of his, I saw it firsthand—and, if those early days are any indication, supporters of LGBTQ equality should be wary.
Neil Gorsuch’s Disturbing Record on LGBTQ Rights
Neil Gorsuch, Donald Trump’s Supreme Court nominee, is an ultra-conservative jurist with a sterling resume, a genial wit, and a great shot at becoming our next justice. Gorsuch currently serves on the U.S. Court of Appeals for the 10th Circuit, and his opinions suggest a reliably right-leaning interpretation of the law. But Gorsuch has never penned an LGBTQ rights decision, or spoken at length about his legal views on the matter. That has led some progressives to speculate that Gorsuch might be persuaded to agree with an originalist argument in support of LGBTQ rights.
Optimism is always refreshing in these darks times—but here, I don’t think it’s warranted. It’s easy to fill in the gaps of Gorsuch’s public positions and conclude that he will vote the same way his idol Justice Antonin Scalia did: against the rights of LGBTQ people.
Trans Kids Can Now Join the Boy Scouts—but Should They Want To?
On Monday evening, the Boy Scouts of America announced that the organization, best known for campouts and character education, would begin allowing transgender boys to participate. The move—which broke with a century-old policy of relying on birth certificates to adjudicate the gender of members—followed on similar changes in the past few years, including allowing openly gay scouts in 2013 and, after outside legal pressure, gay adult leaders in 2015.
In a statement, the BSA characterized the shift as helping to “bring the benefits of Scouting to the greatest number of youth possible” and as being a response to larger changes in the country’s understanding of gender identity. Read the statement: “[The old approach] is no longer sufficient as communities and state laws are interpreting gender identity differently, and these laws vary widely from state to state.”
The BSA’s decision is a rare bit of good news—and somewhat surprising, given that you wouldn’t exactly expect a fundamentally conservative organization to feel super driven toward such action given who’s in the White House. (To that point, side-eye credit to the Washington Post for noting in its report on the news that this may have something to do with a discrimination complaint filed in New Jersey against the Scouts on behalf of a barred trans boy just last week.) In any case, trans folks—who are likely to see their nascent progress halted under Trump by a government trending hostile-to-uninterested and a center-left freshly phobic of “identity politics”—deserve every shimmer of joy they can come by right now.
Of course, it’s fair to ask how many trans youths this will actually impact. Joe Maldonado, the 8-year-old New Jersey boy who made headlines when he was kicked out of his Cub Scout troop in 2016, is the most high-profile trans (former) scout, and his case suggested that—unlike the trans-inclusive Girl Scouts—the BSA had not thought through its approach to transgender boys. Now that they are theoretically welcome (I’m curious to see how much autonomy local units will exercise in this matter), will a phalanx of trans kids suddenly show up to meetings?
Perhaps. But speaking as an Eagle Scout, I’m not so sure they should want to. Undoubtedly, there will be some trans boys who find the explicit masculinity of the scouting experience to be affirming of their gender identity, and that’s wonderful. But honestly, if one of the LGBTQ movement’s goals is to loosen the intense strictures that surround gender identity and expression in our society, I’m not sure investing a great deal in an organization whose foundation is built in traditional masculinity and the gender binary is the most useful enterprise. The life skills and general ethical principles that scouting imparts are absolutely worthwhile—I’ve defended them before. But civic leadership can be learned from plenty of sources and knot-tying need not be connected to the religion-inflected gender conservatism that defines most (church-based) troops.
Sorry to throw sand on the campfire, but at this point in queer history, I just can’t get too excited about gaining access to yet another conservative institution—even one that, begrudgingly, I kind of like! That said, if there’s one uncomplicated good to come out of this, it’s yet one more step for trans visibility. Many kids and parents around the country are today, perhaps for the first time, having to discuss the existence of trans people—and while those discussions are surely not all positive, presence tends to have a way of fomenting progress. For that, if nothing else, I salute the BSA.
The Queer Audacity of Throwing Shade
From the electric colors and incongruous visuals of its opening credits, Throwing Shade brings us to camp and lets us stay there. TV Land’s new weekly late night news satire, created by and starring Erin Gibson and Bryan Safi, is the hefty dose of queer joy we need to process politics and culture.
Based on their podcast of the same name, which has been running since 2011, the TV version of Throwing Shade launched Jan. 17 and airs on Tuesdays at 10:30 p.m. It resembles other late night news shows like Last Week Tonight and Full Frontal in that it shifts between live studio segments and pre-taped sketches, but it stands out for its queer and feminist sensibility.
In America, We Don’t Excuse Injustice if Only a Few People Are Affected
“Only 109 people out of 325,000 were detained and held for questioning,” begins a tweet from President Donald Trump, sent Monday morning in defense of the executive order that resulted in legal travelers to the United States being detained in airports across the country, cut off from family members, deprived of access to counsel, and in at least one instance bullied into surrendering lawfully obtained green cards.
Only 109 people. Way less than 1 percent of travelers. A tiny minority. This focus on the small number of people affected has been echoed by many of the administration’s defenders, including White House Chief of Staff Reince Priebus and Press Secretary Sean Spicer. As a line of defense, it’s clearly lacking, but it’s all the administration has to offer, because detaining law-abiding travelers, including elderly grandparents and 5-year-old children, is a clear and undeniable injustice. When something is unfair and indefensible, the last resort of scoundrels is to downplay the number of people who have been unjustly treated. It’s despicable and cowardly, and it contradicts basic American values.
Due to “Administration-Related Changes,” the EEOC May Withdraw From a Trans Rights Case
The Equal Employment Opportunity Commission is preparing to withdraw from a trans discrimination case due to “Administration-related changes” at the agency, Slate has learned.
For several years, the EEOC has represented Amiee Stephens in her lawsuit against her former employer, a funeral home. When Stephens told her manager that she was transitioning from male to female, he fired her, explaining that he could not tolerate her “dress[ing] as a woman” at work. The EEOC argued that this termination was unlawful under Title VII of the Civil Rights Act of 1964, which bars “sex discrimination,” including gender nonconformity. A federal judge, however, ruled that the funeral home had a religious right to fire employees for transitioning under the Religious Freedom Restoration Act, citing the Supreme Court’s Hobby Lobby decision. The EEOC announced its plans to appeal the judge’s dangerously incoherent ruling.
But shortly after taking office, Donald Trump named EEOC Commissioner Victoria Lipnic as acting chair of the agency. Lipnic, a Republican, took over from Commissioner Jenny Yang, a Democrat, and was widely expected to move the agency in a more conservative direction. She appears to have already taken the first step. The EEOC’s opening brief at the U.S. Court of Appeals for the 6th Circuit was due on Thursday—but instead of filing it, the EEOC filed a request for a 30-day extension. It noted tersely that it “requests the extension because of Administration-related changes at the Commission.”