Trump Administration Argues Federal Civil Rights Law Does Not Protect Gay Employees
On Wednesday, the Department of Justice filed an amicus brief in the 2nd U.S. Circuit Court of Appeals arguing that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination against gay and bisexual employees. The DOJ’s brief was not solicited by the court or any party to the case. Rather, in an unusual move, the Trump administration elected to weigh in with an aggressively anti-gay stance, arguing that gay Americans have no protection against workplace discrimination under federal law. Its decision is unsurprising in light of Attorney General Jeff Sessions’ vigorous opposition to LGBTQ rights.
Title VII does not explicitly outlaw sexual orientation discrimination in employment. However, it does forbid “discrimination … because of sex.” which the Equal Employment Opportunity Commission interprets to encompass anti-gay discrimination. For at least 15 years, many federal courts have agreed, and in April, the 7th U.S. Circuit Court of Appeals ruled that Title VII does, indeed, protect gay employees. Both the 7th Circuit and the EEOC relied on three theories of sex discrimination:
1. “But-for” sex discrimination
This theory holds that anti-gay discrimination qualifies as sex discrimination because, but for the gay person’s sex, she would not be discriminated against. Imagine, for example, that a homophobic employer fires a female worker because she marries a woman. But for that worker’s sex, she wouldn’t have been fired: Her boss has no issue with men marrying women, only women marrying women. The employee’s sex was fundamental to the discrimination she suffered—so it can therefore aptly be described as sex discrimination.
2. Sex stereotyping
The Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex stereotyping is a form of sex discrimination. Thus, when an employer mistreats a worker because she fails to conform to certain gender norms, it has engaged in discrimination “because of sex.” Initially, sex stereotyping was applied to masculine women and feminine men. But as the 7th Circuit pointed out, gay people are “the ultimate case of failure to conform” to sex stereotypes, which, in America, have historically held that men should date only women and women should date only men. By intimately associating with people of the same sex, gay individuals violate this stereotype. And so, when they are discriminated against because of their sexual orientation, they have suffered sex stereotyping.
How Giving Up a Pet Raised Particular Concerns for One Queer Family
“We have to put her down.” That thought hung thickly between David and me, moments after our dog bit one of our kids’ friends. The weeks following that harrowing incident involved tears, research, and second-guessing—all leading to the most difficult conversations we’ve yet had with our 12-year-old twin daughters.
In a Stunningly Cruel and Unjustified Move, Trump Bans Transgender Military Service
On Wednesday morning, Donald Trump announced in a series of tweets that he would bar transgender people from serving openly in the United States military. As justification, Trump cited “the tremendous medical costs and disruption that transgender in the military would entail.” The Pentagon was reportedly not briefed about Trump’s decision in advance.
In fact, the cost of transgender service is known to be quite low, and the integration of transgender troops in foreign militaries has had no effect on unit cohesion, morale, or force readiness. That is why, in 2016, then–Secretary of Defense Ash Carter established a plan to let openly transgender individuals enroll in the military and allowed already-serving transgender troops to come out without fear of discharge. The enrollment part of the plan was meant to be “completely implemented no later than July 1, 2017.” Once Trump took office, though, religious conservatives lobbied him to bar trans troops, arguing that they posed an immoral and expensive threat to the military. The anti-LGBTQ Family Research Council and some congressional Republicans reminded Trump that his socially conservative base opposed Carter’s policy. In late June, Secretary of Defense James Mattis approved a six-month delay, citing the “views of the military leadership and of the senior civilian officials now arriving in the Department.”
At that point, it was clear that Carter’s plan was in serious trouble. On July 13, the House of Representatives narrowly voted down an amendment that would bar the military from providing transition-related medical treatment to transgender troops. Vice President Mike Pence championed the amendment but Mattis, who supports trans service, vigorously lobbied against it. Two dozen Republicans ultimately opposed the measure, drawing ire from evangelicals and anti-LGBTQ activists. (Every Democrat also voted no.) It seems likely that following this vote, Trump realized he could seize upon the issue to rally his base.
A New Survey Claiming That LGBT People Are Less Racist Misses the Reality of Racism in the Queer Community
For black and brown people in the U.S., racism is sadly a part of our daily experience. Whether we choose to cope with it, ignore it, or aggressively fight back, it’s always there—at work, in school, and in our own neighborhoods. But as a queer black man, nothing is more frustrating than when the racist rhetoric and actions come from within my own LGBT community—and believe me, it happens all the time. A recent article, however, would have us believe that there is minimal racism within the LGBT community, at least when compared to our heterosexual counterparts. While the author’s analysis comports with the survey he draws from, it does not reflect the reality of queer people of color’s experience. And worse, it may give white queers a false sense of accomplishment, when they should be focused on ridding themselves of their own indoctrinated biases that harm LGBT people of color.
What the Appointment of LGBTQ-Friendly Anthony Scaramucci Means for the White House
The appointment of Anthony Scaramucci as White House communications director introduces a weird and interesting wrinkle into Donald Trump’s sporadic efforts to position himself as a champion of gay rights. It could also be an indication that the administration’s social conservatives, led by Vice President Mike Pence, will see themselves increasingly marginalized.
It’s easy to forget now, but at certain points during the 2016 campaign, Trump presented himself as more LGBTQ-friendly than Hillary Clinton. Following the Pulse shooting in June 2016, Trump tweeted: “Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs.” A few months later, he held up an upside-down rainbow flag that read “LGBTs for TRUMP” at an event. He declaredthat transgender people should “use the bathroom they feel is appropriate” and said that Caitlyn Jenner could use whatever bathroom she preferred at Trump Tower. And he had his friend Peter Thiel speak at the GOP convention.
None of this was particularly surprising, since Trump seems to hold no clear personal animus toward LGBTQ people and professed his support for gay rights laws as early as 2000. But after his November victory, Trump outsourced many personnel decisions to the Republican Party and Vice President Pence. An outspoken evangelical conservative, Pence stacked the transition team with anti-LGBTQ zealots (and Thiel, probably to appease Trump). When Trump began appointing White House advisers like Steve Bannon and cabinet members like Jeff Sessions, it became clear that an aversion to LGBTQ rights would not be disqualifying in this administration.
The Senate Just Confirmed an Anti-Gay Blogger to the Federal Judiciary
The Trump administration’s assault on LGBTQ rights scored a major victory on Thursday when the Senate confirmed John K. Bush to the powerful 6th U.S. Circuit Court of Appeals. Bush, perhaps Trump’s most controversial nominee to the lower courts, has a long history of making homophobic and sexist comments during his years as an anonymous blogger. Yet every Republican senator (except the absent John McCain) voted to confirm him. Bush, who is 52, will serve a lifetime appointment.
Bush’s record overflows with offensive, archaic, and bizarre comments, many directed toward women and sexual minorities. In 2005, he used the word “faggot” in a speech to a private club, quoting Hunter S. Thompson. In 2008, he referred to then–Speaker of the House Nancy Pelosi as “Mama Pelosi” and urged Congress to “gag the House speaker.” When the State Department introduced gender-neutral passport applications to accommodate same-sex couples, Bush complained in a 2011 blog post that the move was worthy of “outrage”—though “not Obamacare-level outrage.” He added that the change means “both parents are subservient to the nanny state—more precisely, a nanny Secretary of State.” Bush also credulously reported a story from World Net Daily, the discredited promulgator of birther conspiracies, alleging that then-Sen. Barack Obama played a role in the detention of a WND reporter in Kenya who’d been investigating the future president’s half-brother.
The Lonely, Heroic Work of a Gay Libyan Refugee Living in America
Late last week, in a West Village townhome, Hass Agili scrolled past the Facebook messages containing death threats and hate speech, past the harrowing notes disgracing him and his family, and tapped on a message from a college student living outside Tripoli. For privacy reasons, we’ll call him Ali. He’s 18 years old, and the cover photo on his Facebook profile is an image of Hass standing in front of the Statue of Liberty.
Their message chain is written in both Arabic and English, mixed with heart emojis and screenshots from secret LGBTQ Facebook pages with posts praising Hass. Exchanging messages with Hass, a gay Libyan who successfully gained refugee status and resettled in the United States, is like talking to a celebrity, says Ali. Ali asks Hass for advice on how he, too, can escape Libya, and wants to know what the U.S. Supreme Court ruling partially reinstating the travel ban means for potential refugees like him. Ali risks his life by sharing so much with Hass about how he survives as a gay person in Libya. If anyone were to find these messages, he would be outed and likely killed. Ali is just one of many gay Libyans now coming to Hass for help.
“They are really scared and desperate to get out,” said Hass.
Out of the nearly 85,000 refugees admitted to the US in 2016, Hass was the only Libyan, and there hasn’t been another since. He’s now 34 years old, living in New York City with a Social Security number and refugee status that expires this month. As required by law, Hass applied for a green card, and now he waits on the status of his application.
“I worry that the Trump administration and repercussions from the travel ban might affect my application. But nobody will tell you anything. There’s nothing I can do but wait and see,” said Hass.
Liberals Have Turned Trump Into a Gay Villain Because Our Worst Villains Must Be Gay
Now that Donald Trump and Vladimir Putin have met in the flesh, our obsession with imagining the president as a gay man has reached a climax. Frank Bruni used his Thursday column in the New York Times to publish a work of fan fiction, “Donnie and Vlad: A Love Story,” about the “irrepressible,” unrequited, and ultimately “gross” affection of the commander in chief for the leader of Russia. As the men talked behind closed doors for over two hours at the G-20 summit, Twitter got to work.
The joke is not that old, but it feels ancient. The Lithuanian mural atop Bruni’s piece of Trump and Putin kissing went viral over a year ago; Trump smooched a shirtless Putin on Saturday Night Live in November; and Stephen Colbert was assailed for calling Trump Putin’s “cock holster” in May. In the press, where it’s generally untoward to tease a president in explicitly sexual terms, Trump is said to have many “bromances”—attempted, “budding,” ongoing, and failed: with Tom Brady, with James Comey, with Rodrigo Duterte, with Andrew Jackson (d. 1845), with Morning Joe, with Kim Jong-un, with Narendra Modi (actually a romance, no b), with Rupert Murdoch, with Elon Musk, with Benjamin Netanyahu, with Abdel-Fattah al-Sisi, with Xi Jinping. And with Qatar Airways CEO Akbar El-Baker. And, of course, with Putin. (Trump has not, according to the press, had a ro- or bromance with Peter Thiel, who is gay and just his “tech pal.”) These references occur regularly in straight news coverage as ostensibly neutral descriptions. They’re also very, very popular with political cartoonists.
The trope is deployed not because it is novel but because it is not. It is hammered like a schoolyard taunt, with a smug assurance that Trump has been duly “trolled.” Like a lot of liberal comedy right now, it serves a fantasy of resistance through snark. (Think of Seth Rogen’s dumb Twitter messages to Donald Jr., recently glorified on Colbert’s show, or the news—ecstatically received in February and then chronicled as legend only three months later—that Melissa McCarthy had humiliated Sean Spicer.) Sexual politics aside, our glee in calling Trump gay says more about us than it does about him.
The Silliest Advice in That Asinine New York Times Op-Ed Promoting Democratic “Centrism”
On Thursday, failed campaign strategist Mark Penn and money-laundering Trump supporter Andrew Stein declared in a New York Times op-ed that the Democratic Party must “move to the center and reject the siren calls of the left.” Penn and Stein’s ornery manifesto urges Democrats to imprison more opioid addicts, champion “tough anti-crime measures,” end sanctuary cities, and crack down on undocumented immigrants. The whole op-ed is really just an endorsement of centrist white nationalism filled with catastrophically asinine proposals that, if adopted, would enrage most Democratic voters. (Why, after all, should the diverse and progressive Democratic base cater to the prejudices of white ethno-nationalists who are already fleeing the party?) Yet the silliest line in the whole affair involves not race but gender: Penn and Stein exhort Democrats to abandon “transgender bathroom issues” for their own good.
We’ve seen this advice before. Shortly after the presidential election, the Times published an op-ed by Mark Lilla calling for “the end of identity liberalism.” Lilla criticized Clinton for her “rhetoric of diversity,” as well as her focus on the concerns of “African-American, Latino, L.G.B.T. and women voters.” To drive home his point, Lilla proclaimed that “America is sick and tired of hearing about liberals’ damn bathrooms.” Straight white men who’ve never had to think twice about using the bathroom in safety are obviously very perturbed that the Democratic Party backs transgender rights.
What’s so strange about this particular complaint, however, is that trans bathroom access is a winning issue for Democrats—even in red-leaning states. A February poll by the Public Religion Research Institute found that 53 percent of Americans oppose laws forcing trans individuals to use the bathroom that corresponds to the sex assigned to them at birth. Only 39 percent of respondents approved of such measures. Meanwhile, 65 percent of Democrats and 57 percent of independents oppose regulations limiting trans bathroom access. Summarizing the data, PRRI Chief Executive Robert P. Jones explained: “This is a case where it really is Republicans kind of pulling away and being more of an outlier to the rest of the country.”
We May Be One Step Away From a “Don’t Ask, Don’t Tell” Policy for Trans Troops
In 1992, Bill Clinton won the White House having assured an LGBTQ audience, “I have a vision, and you’re a part of it.” Included in Clinton’s pledge was a promise to lift the ban on military service by gay, lesbian, and bisexual Americans “with the stroke of a pen.” Surprised by the strength of opposition to inclusive service, the new president instructed his defense secretary to announce a six-month “cooling off” period to allow for consultations with the Joint Chiefs of Staff, who led the resistance to open service. Smelling blood, social and political conservatives used this window to launch a massive culture war battle that cast gay people as immoral hedonists who, as sexual predators, threatened to undermine our military and hence the nation’s security and the survival of the republic.
Late last week, President Trump’s Defense Secretary, James Mattis, announced a six-month delay of a year-old plan to allow capable transgender Americans to enter the military and serve our country in uniform. In a memo that cites the “readiness and lethality of our armed forces” as the overriding standard for determining who may serve in the military, Mattis nevertheless gestured at the real reasonfor the delay, which was, once again, sought by the service chiefs: to incorporate the “views of the military leadership and of the senior civilian officials now arriving in the Department.” That is, to allow for the crass politicization of military personnel policy.
Although Trump promised in his campaign that no one would be a better “friend” to the LGBTQ community than he would, the president has now capitulated without a fight to what amounts to clear obstructionism by the service chiefs.
Once again, social conservatives smell blood. The Family Research Council released a statement praising the delay as “a good first step” toward derailing inclusive policy altogether—at the hands of Congress. Its vice president, a retired Army general, used the occasion to toss out wholly unfounded and even made-up figures about how much a trans-inclusive policy could cost the military in expenses for “new body parts.” (To see the most reputable estimates for the actual cost, in contrast to the “alternative facts” asserted by the far right, see here or here.) FRC argued that somehow a policy of equal treatment will “create an unfairness that will undermine unit cohesion and morale.”