Expanding the LGBTQ Conversation

Feb. 21 2017 11:12 AM

Podcasters Jesse and Theresa Thorn on Parenting a Gender-Nonconforming Child

A couple weeks ago I was listening to my favorite podcast, Jordan, Jesse, Go, when I heard host Jesse Thorn explain that his 5-year-old is gender-nonconforming and had asked to be addressed as Grace and to use female pronouns. Intrigued by Thorn's open, humble, nonjudgmental response to this news, I asked if he and Theresa Thorn—his wife, who is also a podcaster who had spoken about Grace on her podcast One Bad Mother—would be willing to talk about their experience parenting a gender-nonconforming child. The resulting interview has been condensed and lightly edited.

Feb. 20 2017 8:30 AM

Saying Goodbye to Jeannie Made Us Even More of a Family Than Creating Children Together Did

Ethan, just shy of 2, is thrilled to be on a plane. Outside of that, he has no idea why this trip is such a big deal. He doesn’t yet know that our family is complicated or worry about ownership and identity the way his father and I do. To him the world is simple: love, hugs, and magic.

This isn’t a vacation. We’re racing to get to Odessa, Texas, before Jeannie, my friend Eddie’s mother, dies. Jeannie is genetically Ethan’s grandmother, though until now, we’ve been reluctant to consider her one. Her dying wish is to meet Ethan.

My husband, Doug, is transgender, so when we wanted to have kids, we couldn’t do it on our own. Not being able to genetically father our child was painful for Doug, like nature’s middle finger, saying, “No matter how you change your body, it will never be enough. There will always be another man out there whose DNA runs through your child’s blood.”

Feb. 16 2017 3:18 PM

Washington Supreme Court Rules Against Florist Who Refused to Serve Same-Sex Couple

On Thursday, the Washington Supreme Court unanimously rejected a florist’s assertion that she had not discriminated against a same-sex couple when she refused to provide flowers for their wedding—and that, even if she had, she held a constitutional right to do so.

The florist, Barronelle Stutzman, rose to fame in 2013 after she informed Robert Ingersoll, a gay customer, that she would not sell him flowers for his upcoming wedding because of “her relationship with Jesus Christ.” Stutzman explained that her religious beliefs precluded her from providing flowers for same-sex ceremonies. Ingersoll and his partner sued under Washington nondiscrimination law, which prohibits discrimination on the basis of sexual orientation, and the state attorney general asked Stutzman to stop discriminating against gay customers. Stutzman refused, and the state sued as well. A trial court ruled against Stutzman, fining her $1001 and ordering her to stop discriminating. She appealed all the way to the state Supreme Court, which has now affirmed the trial court’s judgment.

Feb. 16 2017 2:34 PM

A Normal Lost Phone Offers Players an Encounter With the Queer Experience

Spoiler warning: This article reveals surprise elements of the games A Normal Lost Phone, Dragon Age: Inquisition, and Gone Home.

At first, the game A Normal Lost Phone looks like a series of simple puzzles: The player is presented with a lost phone, and must snoop through it to learn about its owner. But there's something more happening under the surface.

Poking through emails, texts, and dating apps, a story begins to emerge. “I'm getting a little tired of my family telling me ‘you’re a man now,’ ” writes Sam, the phone’s 18-year-old owner. That sounds like a fairly normal complaint for a teenager, but then the player finds a second account in a dating app. Sam’s been presenting as a girl whose description is similar to Sam’s male appearance. Later, players find a text message that threatens, “Don’t ever set foot back in this club or I’ll have to tell your little secret to everybody.”

By the time the player discovers a forum for gender-questioning teens in the browser, it’s no surprise to see that Sam wrote, “I don’t really know what I am, and I’m feeling kinda lost at the moment.”

Feb. 16 2017 12:46 PM

Federal Judge Orders South Carolina to List Same-Sex Parents on Birth Certificates

In 2015’s Obergefell v. Hodges, the Supreme Court ruled that states must provide marriage rights to same-sex couples “on the same terms and conditions as opposite-sex couples.” So it may be rather surprising that in 2017, some conservative states continue to insist that they can deny gay couples the rights and benefits granted to heterosexual couples—simply because same-sex spouses are of the same sex. One particular flashpoint is birth certificates, and the latest battle occurred in South Carolina, where the government claimed it need not list same-sex parents on their child’s birth certificate. Fortunately, on Wednesday, a federal judge shot down this bizarre assertion, ordering the state to list same-sex couples on birth certificates. But this battle is far from over, and its final resolution will likely have to come from the Supreme Court itself.

Before we get into the meat of Wednesday’s ruling, a quick primer on birth certificates is in order. In the United States today, birth certificates are not some mystical recognition of an immutable genetic truth. They are a legal document whose primary purpose is identification of both the individual who was born and the family unit in which he or she belongs. That is why states list adoptive couples on their adopted child’s birth certificate, and why states have long listed the birth mother’s husband as the baby’s parent—even if he is known not to be the child’s biological father. These certificates are vital records, and the government views them as proof of a child’s actual parentage, not a literal indication of who sired and birthed the baby.

With that in mind, let’s turn to the South Carolina case, which arose after Jacqueline Carson gave birth to twins. Jacqueline is lawfully married to a woman, Casy Carson. South Carolina typically lists a birth mother’s spouse as the child’s second parent—again, even if that spouse is known not to be the child’s biological parent. But because Casy Carson is a woman, the state refused to list her as the twins’ second parent. The couple sued in federal court, alleging a violation of their Due Process and Equal Protection rights under the 14th Amendment as interpreted in Obergefell.

Feb. 13 2017 2:21 PM

Trump Isn’t the Sole Decider of Trans Students’ Rights

On Friday, President Donald Trump’s Justice Department signaled that it may be reversing the Obama administration’s position on whether transgender students should be permitted to use facilities consistent with their gender identity. In a filing with the 5th Circuit Court of Appeals, the Justice Department withdrew a motion seeking to partially stay a Texas federal district court injunction to guidance issued by the Obama administration that treated a student’s gender identity as the student’s sex for purposes of Title IX and its regulations. More explicit repudiations of protections for transgender people are likely on the horizon, despite Trump’s campaign rhetoric suggesting that transgender people should be permitted to use bathrooms consistent with their gender identity.

But as Trump has been learning in other contexts, a change in position by the executive branch is not the final word on this issue. The Title IX statute, as interpreted by the courts, controls the outcome. As numerous cases have already recognized, the prohibitions on sex discrimination contained within federal civil rights statutes do extend to protect transgender individuals—irrespective of what the Trump administration may say about it.

Feb. 13 2017 11:46 AM

Neil Gorsuch Has Gay Friends. Who Cares?

On Saturday, the New York Times published a very strange story by Sheryl Gay Stolberg titled “Gorsuch Not Easy to Pigeonhole on Gay Rights, Friends Say.” The article notes that Neil Gorsuch, the federal appeals court judge whom Donald Trump nominated to sit on the Supreme Court, has gay friends and is not outwardly homophobic in his interactions with them. Indeed, Stolberg explains at length, Gorsuch is actually friendly with these gay friends, congratulating them on their marriages and inviting them to stay in his guest room. Even better, he lives in Boulder, Colorado—a liberal city!—and goes to a church that “welcomes gay members.”

“That leads some friends to wonder if his jurisprudence might be closer to that of Justice Anthony Kennedy,” Stolberg writes, “who has carved out a name for himself as the court’s conservative defender of gay rights.”

The thesis here appears to be that Gorsuch, unlike his friend and idol Antonin Scalia, is very close with several openly gay people—and that these relationships might lead him to rule in favor of gay rights. This conflation of personal and jurisprudential views is misguided and befuddling. There is little reason to think that Gorsuch’s friendships with gay people will affect his legal views one way or the other. And it is especially unwise, in the run-up to his confirmation battle, to pretend that Gorsuch’s associations will somehow push him toward a more progressive stance on LGBTQ rights.

Feb. 10 2017 11:39 AM

What the Military Gay Ban Can Teach Us About Trump’s Abuse of the “National Security” Rationale

On Thursday, an appeals court in San Francisco rejected a request by the Trump administration to re-instate its sweeping executive order banning travel by individuals from seven predominantly Muslim countries. In denying the request, the three-judge panel of the 9th Circuit Court of Appeals unanimously found that “the Government has not shown that the Executive Order provides what due process requires,” and that “the Government’s authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.”

In its legal brief, the Trump Justice Department claimed that the lower court’s restraining order blocking the ban’s enforcement “immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.” In oral arguments, August Flentje, the Justice Department lawyer defending Trump’s ban, called it “extraordinary” and “troubling” for the courts to engage in “second-guessing of the national security decision made by the president. The administration mentioned “national security” 15 times in its 24-page brief, doing all it could to hammer home the point that courts owe special deference to the executive branch when national security is at stake. Trump himself weighed in on Wednesday, calling the hearing itself “disgraceful” since our nation’s “security is at risk.”

Feb. 8 2017 3:13 PM

Gays, Trump Agree: D Should Be Easy!

Donald Trump revealed today on Twitter that he, like all of us, is just waiting for that easy D.

Feb. 7 2017 9:59 AM

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.