The Michigan Attorney General’s Sneak Attack on Civil Rights
The ongoing battle for LGBTQ equality in Michigan suffered a significant setback this week. On Monday, after a months-long process, Michigan’s Civil Rights Commission finally seemed set to issue an “interpretive statement” as to whether Michigan law prohibits discrimination against LGBTQ people. Then, just moments before the commission was to vote, Attorney General Bill Schuette’s office derailed the proceedings—orally informing the commission that it lacked the authority to make such a statement.
The attorney general’s last-minute interference leaves Michigan among the states where someone can marry the person they love Saturday and be fired for whom they love on Monday. Yet almost as disturbing as what Schuette did was how he did it. With little legal justification, Schuette, a Republican, effectively barred Michigan’s Civil Rights Commission from speaking on the issue of LGBTQ equality. As a result, Michigan became the latest state in which government actors have been strong-armed as they stand on the cusp of exercising their authority to extend basic civil rights to LGBTQ persons.
A bit of background. By law, Michigan’s Civil Rights Commission is responsible for enforcing Michigan’s Elliot-Larsen Civil Rights Act. That Act seeks to ensure equal treatment in housing, education, employment, and public accommodations. Unfortunately, Michigan’s Civil Rights Act does not expressly prohibit discrimination on the basis of sexual orientation or gender identity. The results are sadly predictable. Hundreds of LGBTQ Michiganders have reported discrimination since 2000. A state-sponsored2013 report concluded that LGBTQ Michiganders have been the victims of “widespread” discrimination in housing and employment. And all of this undermines the Civil Rights Act’s central purpose: protecting civil rights, and prohibiting discriminatory practices.The attorney general’s last-minute interference leaves Michigan among the states where someone can marry the person they love Saturday and be fired for it on Monday. Yet almost as disturbing as what Schuette did was how he did it. With little legal justification, Schuette effectively barred Michigan’s Civil Rights Commission from speaking on the issue of LGBTQ equality. As a result, Michigan became the latest state in which government actors have been strong-armed as they stand on the cusp of exercising their authority to extend basic civil rights to LGBTQ persons.
A bit of background. By law, Michigan’s Civil Rights Commission is responsible for enforcing Michigan’s Elliot-Larsen Civil Rights Act. That Act seeks to ensure equal treatment in housing, education, employment, and public accommodations. Unfortunately, Michigan’s Civil Rights Act does not expressly prohibit discrimination on the basis of sexual orientation or gender identity. The results are sadly predictable. Hundreds of LGBTQ Michiganders have reported discrimination since 2000. A state-sponsored 2013 report concluded that LGBTQ Michiganders have been the victims of “widespread” discrimination in housing and employment. And all of this undermines the Civil Rights Act’s central purpose: protecting civil rights, and prohibiting discriminatory practices.
How Louise Hay’s Spiritual Pseudoscience Harmed a Generation of Gay Men
When the New Age entrepreneur Louise Hay died at 90 on August 30, the internet lit up with people praising her healing powers for often-desperate physical and psychological ailments, prescribing healthy living and major doses of self-love. But the people celebrating Hay largely ignored or brushed past the pernicious side of her prescription—the place where self-love slides into self-blame. Hay’s spiritual schema had its reasons for being, and it helped some people. But it failed to offer its era a genuine and enduring spirit of care, perhaps in no case more so than that of gay men and those who loved them during the desolate early years of AIDS.
Arizona Supreme Court Unanimously Affirms the Equal Rights of Same-Sex Parents
On Tuesday, the Arizona Supreme Court issued a highly anticipated decision unanimously affirming the equal rights of same-sex parents in the state. The ruling will require Arizona to extend the same presumptions of parentage to same-sex and opposite-sex couples, ensuring that the state cannot use the pretext of biology to discriminate against gay residents. It is also an important confirmation of Obergefell v. Hodges at a time when marriage equality is under increasing judicial assault.
Tuesday’s ruling in McLaughlin v. McLaughlin involves an Arizona statute that creates a “presumption of paternity” in opposite-sex relationships. Under the law, the husband of a woman who gives birth is presumed to be the child’s legal parent—even if the birth mother conceived through artificial insemination. But what about married lesbians who conceive via artificial insemination? Two lower courts grappled with that question and reached different conclusions in light of Obergefell. One held that Obergefell required the birth mother’s wife to receive the same presumption of parentage that a husband would. The other held that it did not.
Who Gets to Make Movies About Gay Sexuality?
In the summer haze of the Coney Island boardwalk, a teenage boy begins to wonder, and worry. He easily picks up girls under the fireworks, but he can’t perform when he brings them home. At night, he snaps pictures in front of a mirror, shirtless, jaw and chest contorted, eyes burning forward with a hook-up site beginner’s misplaced aggression. He smokes and partakes in petty crime with the local tank-topped miscreants his own age, but alone, he can’t stop cruising a gay sex site, where he always seems to pause on men many years older than him. Soon he agrees to meet one of them, and his first won’t be his last.
Elegy for Edie
One of the first things that Edie Windsor ever told me was that she only had a few more years left to live. That was more than eight years ago, in 2009. And she wasn’t kidding. After her spouse Thea Spyer passed away, Edie had suffered from a series of heart attacks, which were diagnosed as “broken heart syndrome.” Indeed, Edie asked me and other lawyers on our team to carry her nitroglycerine tablets for her when we attended events—just in case.
Because of her heart condition, I became completely neurotic about making sure that Edie’s case got decided as quickly as possible. I felt like any time we managed to shave off the process, however slight, might be the margin between Edie living to see a victory in her case, or not.
Looking back on this today, I have to admit that the strategy I chose to try to accomplish this goal was somewhat unconventional. Less than two weeks after we filed the complaint in the case that became United States v. Windsor, I wrote the district court judge, Barbara Jones, a letter stating that, “Given Edie’s coronary disease … she seeks to pursue this action as expeditiously as possible.”
And then I sent Judge Jones another letter. This time, I informed the court that Edie was suffering from an allergic reaction. Once again, I asked Judge Jones to expedite the case in any way possible.
And then I sent another letter. And another. And then one more. Believe it or not, over the next year and a half, I would write a dozen of these letters, each time begging Judge Jones to speed up the process. My co-counsel and noted constitutional scholar Pam Karlan aptly characterized them as my “Edie has the sniffles” letters. Although I knew there was a risk that we might be annoying the judge, I kept sending them anyway. As our son says when we catch him eating chocolate first thing in the morning: “I couldn’t help myself.”
Hillary Clinton’s Eulogy for Edie Windsor Is Also an Impassioned Call to Resist Injustice
On Friday, hundreds of people came together at New York City’s Temple Emanu-El for the funeral of Edie Windsor, the “mother of marriage equality” who died on Tuesday at age 88. Windsor sued the United States government when it refused to recognize her marriage to Thea Spyer; her suit ultimately toppled the federal ban on same-sex marriage and paved the way for nationwide marriage equality. Among the luminaries who paid tribute to Windsor was Hillary Clinton, whose beautiful eulogy also functioned as an impassioned call to resist injustice with Windsor’s indomitable positivity and joy.
Clinton began by asking: “Doesn’t it just feel great being here to honor and remember someone who had such a positive, lasting influence on our country and the world?” That might seem like an oddly cheerful start for a eulogy, but Friday’s proceedings had a celebratory air given Windsor’s extraordinary accomplishments and richly lived life. (She remarried last year.) Windsor, Clinton said, “didn’t set out to make history”—but the love she shared with Spyer was “its own quiet revolutionary act.” When Spyer died in 2009 and the government demanded that Windsor pay an immense estate tax, “she knew she had two choices: Accept this painful injustice or fight back. She chose to fight back, all the way to the highest court in the land.”
The day Edie won, much of America cheered with her … with a recognition that a wrong had been righted. Through it all, her strength never wavered. … It is fitting that she will be immortalized in history books in that landmark decision synonymous with equal rights and dignity under the law. But she didn’t stop there. She continued to support the needs and the rights of the LGBT community. She helped change hearts and minds, including mine. And we are forever grateful to her for that.
When Researching Individual Engagement With the “Gay Community,” Numbers Only Tell Half the Story
“Gay community” is a phrase one hears tossed about all the time, from politicians and health officials to activists and everyday gays themselves. But what does it really mean? In some cases, “community” distinctly refers to a physical space, such as a neighborhood or collection of public venues and community gathering places; while in others, the term invokes a constellation of interconnected individuals with shared beliefs, concerns, or cultural reference points. What's more, depending on whom you ask, the “gay community” can be anything from an open-minded, affirming environment where gay people find acceptance and outlets for self-expression, to a judgmental or even hostile one that offers few opportunities for connection and many for frivolous, even self-destructive excess.
Judge: Calling Someone Trans Isn’t Defamatory Because There’s Nothing Wrong With Being Trans
On Aug. 30, transgender Americans achieved a little-noticed but critical legal victory in a California state court. Judge Gregory Keosian announced he will dismiss fitness guru Richard Simmons’ defamation lawsuit in which Simmons claimed reputational harm after the National Enquirer falsely called him a transgender woman.
For the first time in United States history, Keosian declared that misidentifying a person as transgender is not defamatory because it does not subject that individual to “hatred, contempt, ridicule or obloquy.” Keosian further explained that the judicial system should not countenance anti-trans animus, notwithstanding its existence in pockets of society. “While, as a practical matter, [transgender persons can] be held in contempt by a portion of the population,” Keosian said, “the court will not validate those prejudices by legally recognizing them.”
Defamation lawsuits are intended to provide a legal remedy to individuals who are maligned by untrue statements, like wrongful accusations of criminal conduct. But there is a long record of plaintiffs abusing defamation law by piggybacking off social prejudices held against minority groups. Plaintiffs like Simmons effectively ask courts to let the law to reinforce harmful stigmas and stereotypes.
The history of anti-minority libel and slander lawsuits is shocking, but it also reveals a great deal about the odious roots of legal claims like Simmons’. In 1791’s Eden v. Legare, South Carolina’s high court ruled that falsely describing an individual as “mulatto” was actionable “because, if true, the [plaintiff] would be deprived of all civil rights.” False imputations that white persons were nonwhite or otherwise racially “impure” remained actionable in parts of the United States well into the twentieth century.
Why Are Trans Youth Clinics Seeing an Uptick in Trans Boys?
Clinics that treat gender nonconforming youth have noticed two clear trends over the past 20 years or so. First, the number of total youth seeking treatment has steadily increased: What began as a tiny trickle of patients from the 1970s through the ’90s saw an uptick in the early 2000s and has become a steady stream of cases today. Second, during the post-2000 period, the gender balance of youth seeking treatment seems to have changed. According to anecdotal reports from clinicians and a handful of small studies of transgender youth, trans youth clinics in North America and Europe have seen a shift from a majority of transfeminine patients (assigned male at birth) to a majority of transmasculine patients (assigned female) now. In contrast, studies of adult trans patients thus far have either documented a majority of trans women or roughly equal numbers of trans women and trans men.
A Midshipman Explains Why He’s Suing to Block Trump’s Ban on Trans Troops
The fate of President Donald Trump’s ban on transgender troops lies in the federal judiciary. In August, civil rights groups filed three separate lawsuitsagainst the policy, arguing that it violates constitutional guarantees of due process and equal protection. Some of the plaintiffs suing Trump remain anonymous in court filings. But Regan Kibby, a 19-year old transgender midshipman at the United States Naval Academy, has identified himself as a plaintiff in a lawsuit brought by the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders.
Kibby, who wrote a declaration in that lawsuit explaining the devastating effects of the policy on his life and career, will almost certainly be expelled from the academy if the courts allow Trump’s policy to take effect. On Friday, Kibby and I spoke about his decision to join the academy, his reaction to the ban, and his involvement in the lawsuit. Our interview has been edited and condensed.
Why did you decide to attend the Naval Academy?
I lived in San Diego, a big military town, until the fifth grade. I grew up surrounded by Navy ships and people in uniform, and my dad was in the Navy. In high school I joined JROTC [Junior Reserve Officers’ Training Corps]. By the end of my freshman year I knew for sure that I wanted to go into the military. I felt a duty to serve; so many people are able to serve but choose not to, and it felt really important to me that I did.
The summer after junior year, I attended the Air Force, Navy, and Army summer seminars back to back. Then I did a visit at the Coast Guard Academy. At school, I tried to make myself as competitive as possible for admission, just to ensure that I could get into a service academy and go on to serve my country. And during my senior year of high school, I got my acceptance letter to the Naval Academy.