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43 posts from August 2008

August 29, 2008

The oval office marriage

Like pretty much everyone else, I know almost nothing about Sarah Palin. As an Obama supporter, I'm generally happy about  McCain choosing her, since the qualifications gap is gargantuan. Ultimately, I don't think that this strategy will work to bring in Clinton supporters, but I do think it's going to be fascinating to watch how women's reactions unfold.

The blogosphere is vibrating with intense responses to the selection of Palin, mostly predictable, but at least some from women who think that attacks on Palin by Dems and media white boys will remind women of the misogyny directed against Clinton's campaign, moving them to skip the top of the ticket or even vote Republican. I hope they're wrong.

What worries me are the visuals. It's a pretty common dynamic for a male and female co-worker to team up in an "office marriage," psychologically as well as for instrumental reasons. I think it will look and feel familiar to a lot of voters. The gender "optics" are good, as politicos love to say, especially when the senior executive of the pair is the man, and the woman, a rising star in middle management. In truth, this kind of mentoring is how a lot of women in corporate jobs break through the glass ceiling. It's neoliberal feminism in a snapshot.

If the Dems (and the liberal media pundits) go all frat boy, joking about the dumb beauty queen; and if Palin turns out to be genuinely smart and impressive even if inexperienced, Obama could blow the election that is still his to lose. Please, guys, don't be that stupid.

August 28, 2008

A queen is a terrible thing to waste

A few weeks ago, gay press sources were reporting that Obama had a 60-point lead over McCain among gay voters. Who knows what that number was based on, but just assume for a moment that it's real. Consider what it means: that 8 out of every 10 (we're just goofing around here) (male) hairdressers, interior designers, and assorted fashionistas support Obama -  we're talking style, spice, wit, pizzazz, glamour, endless good taste, and flawless dinner parties.

Now consider the sad excuse for political theater that we have been watching all week. Star speeches and a bit of music aside, all those other long, long hours of earnest, nice, extremely boring people giving excruciatingly predictable, pedantic speeches. Speeches that make you wonder if you're watching the Democratic National Convention, or an SNL parody of the Democratic Convention. I won't give examples; that would be mean. But whenever I was tempted to watch anything other than the big five (Michelle, Hillary, Bill, Al, and Barack), I felt like I was trapped in a really, really bad faculty meeting: people making the same arguments, over and over and over ...

WHERE WERE THE HOMOSEXUALS?  What is the point of endorsing LGBT-positive political positions and paying whatever the current political price is for that, if you don't let gay men design the show? Would the world end if something original was done, if every ethnic and interest group on the planet lost its 3 minutes on stage, and instead the voters you were trying to reach actually wanted to watch what was happening?  I'm not saying the show has to be mindless; how about a cool video explaining what the hell the subprime mortgage crisis is and why it ate our economy and your job? With all respect to the parade of admirable teachers, nurses, union members, repro rights activists, hardworking moms, military servicemembers, out gay people, elected officials high and low, and everyone else who was put on stage to fill up the hours...surely we can do better than this. I mean, the MTV generation is already 20 years ago -- where have these people been?

Just don't think about him while you're doing it

Broadsheet - Salon.com

Jill Stanek

Planned Parenthood is handing out more than 700 pounds of rubbers [at the Democratic National Convention] encased in a racy pink matchbook that reads: "Protect Yourself From John McCain (In This Election)." The back reads, "10 Things Everyone Should Know About John McCain," and includes one of 10 frightening facts about the presidential hopeful's record on reproductive rights. For example, No. 10: "Has voted against women's reproductive rights and privacy 125 times in his 25 years in Washington, D.C." ...

Mccain condom

Supreme Court of Mexico upholds liberal abortion law

UPDATE  - The court upheld Mexico City's liberal abortion law. The justices voted 8 to 3 that the new law was valid.

Original post:

The NY Times has reported that the Supreme Court of Mexico is scheduled to vote Thursday on whether to invalidate a Mexico City law that allows unrestricted abortions in the first trimester of pregnancy. During the court's deliberations, which apparently are conducted in public in what seems to resemble a legislative hearing, 8 of the 11 justices indicated that they would vote to uphold the law.

The federal attorney general had challenged the Mexico City law as beyond the scope of the local government's powers. The case has been in litigation since shortly after the law was enacted, in April 2007.

If the Mexico City law stands, it will become one of the most progressive in Latin America. The precedent would also open up the possibility of other state-level governments in Mexico adopting similar laws.

The new law was strongly supported by Mexico City's mayor, Marcelo Ebrard, who is reported to be positioning himself for the 2012 presidential race.

According to the Associated Press:

"Since the law took effect, more than 12,000 women have had abortions at the 14 Mexico City hospitals providing them, according to the city health department.

"'Of those, 20 percent have been from outside the capital,' said Raffaela Schiavon, the director of the international abortion rights group [Ipas] who has been advising the city government."

The AP report Includes a telling echo of the bogus psychological harm argument being used now in South Dakota by supporters of a ballot initiative that would prohibit most abortions. AP quotes one pro-life protester as saying, "They are not thinking about the psychological damage that the girls who have abortions go through." An American Psychological Association task force report has debunked that myth, but the harm argument clearly has become part of the trans-national anti-choice rhetorical toolkit. The same argument is being used in Britain, where a proposal to limit access to abortions is scheduled for debate in the House of Commons in October. And of course, Justice Kennedy used it in Gonzales v. Carhart, 127 S. Ct. at 1634, sparking a feisty rejoinder from Justice Ginsberg.

There's quite an irony in the backdrop for this story out of Mexico, since professional, well-run and illegal abortion clinics have operated there for decades.  Before Roe v. Wade, thousands of American women who could not obtain abortions in the U.S. (talk about psychological harm!) went to Mexico. 

For better or worse, it appears that abortion has become part of the discourse of constitutional law and entered the realm of the judiciary in our neighbor to the south. Let's hope their legal culture does a better job of handling it than ours has.

August 27, 2008

Barney Frank: 15 more Dem seats = ENDA with transgender

From an interview with Barney Frank at the Democratic National Convention, on congressional races in the coming election:

"It’s most important that we increase [the number of Democrats] in the Senate and I believe we will by at least five, maybe seven or eight and that’s going to be very important because that is where we’ve had blockages.

"Secondly, the House will pick up 10-15 seats. Getting rid of “Don’t Ask, Don’t Tell” is important, but I think that the first thing that the new president will have to do is set us on the course to get out of Iraq. There are only so many things we want to test the military with.

"The hate-crimes bill is an easy one. Both houses have passed it. We can get a hate-crimes bill signed. Then we will get to ENDA.

"The question now is whether enough lobbying has been done to include people who are transgender. In my own home state of Massachusetts, I sent testimony in favor. There was a proposal to add transgender discrimination to the [state anti-discrimination law], and it failed. There’s still a political problem there that some of the leadership doesn’t want to confront. We need more lobbying on that. We had a very good hearing on that issue [before the House Education and Labor Committee] and it helped. Previously, we were running into problems getting it out of committee, and I think the hearing [] had a major impact on that. It also depends on if we get more Democrats.

"The more Democrats we have, [although] obviously not every Democrat votes with us, the better we’ll do. If we can pick up 15 Democratic seats, then I think we are in a good position to pass a transgender-inclusive ENDA."

AR to vote on gay foster, adoption ban

Adoption, foster ban cleared for Ark. ballot - Washington Blade

A proposal to ban unmarried couples living together from fostering or adopting children will appear on this fall's ballot.

Secretary of State Charlie Daniels certified the proposed initiated act for the Nov. 4 ballot after verifying that the Arkansas Family Council Action Committee had submitted 85,389 valid signatures from registered voters. Supporters needed to turn in at least 61,974 valid signatures.

"Arkansas needs to affirm the importance of married mothers and fathers," Family Council President Jerry Cox said. "We need to publicly affirm the gold standard of rearing children whenever we can. The state standard should be as close to that gold standard of married mom and dad homes as possible."...

Arkansas Families First, a group campaigning against the measure, has said it plans to file a lawsuit to keep the measure from appearing on the November ballot. Debbie Willhite, a lead consultant for the group, said last week the group has found numerous signatures that should have been rejected by the state as invalid and that the group also plans to challenge the constitutionality of the measure....

The Family Council campaign is a response to a 2006 Arkansas Supreme Court decision striking down a state policy that specifically banned gays and lesbians from becoming foster parents. State policy currently bars unmarried couples living together from serving as foster parents....

Schroer trial ends; outcome turns on meaning of "sex"

Following is a post from Matt Coles, Director of the ACLU LGBT Rights Project, whose earlier post described the opening of the trial in U.S. District Court for the District of Columbia in which Diane Schroer, a MTF transgender person, challenged the decision by the Library of Congress to rescind a job offer to her, despite her obvious qualifications for the job:

The trial in Diane Schroer’s case against the Library of Congress came to a close on Friday afternoon in federal court in Washington, D.C. Ms. Schroer is the decorated Special Forces Colonel who, after retiring, was offered a job as a terrorism researcher for the Library, only to have it snatched away when she told her boss she planned to start work as Diane, not David.

Reading the tea leaves of a judge’s comments during a trial is always a risky business. It is easy to read too much into casual questions, into annoyance that can really be about pace or focus, and so on. And sometimes, things look very different after a trial ends and you begin to think about how to decide.

With that warning, though, by the end of the trial here, the case seemed pretty clear. No one really thought Diane Schroer was "dishonest" or "lacked integrity" for not saying when she applied for the job that she was going to become Diane. (The Library had suggested it had lost confidence in her honesty and integrity since she didn’t.) And no one really tried to find out if she’d have any trouble holding on to her security clearance after she transitioned (the Library said it was very worried, but it did nothing to find out if there could be a problem).The Library wouldn’t hire Ms. Schroer because she was becoming Diane.

So in the end, it all seems to come down to what we mean by sex and sex discrimination. Or, to put it a little more precisely, whether a person’s sex includes gender identity, and whether sex discrimination includes gender identity discrimination.

The judge heard expert witnesses from both sides on what sex means. Ms. Schroer’s was Dr. Walter Bockting, who testified that sex is made up of several factors, including chromosomes, anatomy, and a person’s sense of their sex—their gender identity. To the government’s expert, Dr. Chester Schmidt, sex is chromosomes. He said only biologically determined factors could be a part of sex. It would, according to him, be too messy otherwise. Gender identity, Dr. Schmidt said, could be biological, but there’s too little evidence to know yet.

So now it’s up to the judge to figure out just what that simple, charged, deeply important word sex means.

To the government, sex meant men and women by either biology or body (they aren’t clear about which) when the 1964 Civil Rights Act passed. It has to mean that forever unless Congress changes it.

To Ms. Schroer and the ACLU, gender identity — a man’s sense of himself as a man and a woman’s sense of herself as a woman — has always been a part of a person’s sex. Congress may not have thought about people for whom chromosomes, anatomy and identity did not line up, the ACLU says, but that’s beside the point. We don’t refuse to apply laws to unanticipated situations; if we did, we couldn’t function as a society.

We should know what the judge thinks fairly soon. Stay tuned.

--Matt Coles

August 25, 2008

All conventions are political

As has happened this year with the upcoming AALS annual conference, professional organizations often find themselves having to navigate local politics and calls for boycotts when selecting a location for their annual meetings. The American Political Science Association is in the midst of such a debate now, over whether to proceed with the choice of New Orleans for its 2012 convention (these things are scheduled years in advance), despite the adoption by  Louisiana voters in 2004 of a state constitutional ban on recognizing any relationship status other than marriage. The Louisiana constitution states that "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman."

Ken Sherrill (Poli Sci, CUNY) is circulating a background memo arguing that these broadly worded anti-gay marriage bans are particularly insidious, because not only do they bar recognition of out-of-state marriages, they also can be used to preclude recognition of any non-marital relationship, including civil unions, domestic partnerships and registration systems from outside the U.S. For couples attending a conference in Louisiana (or 18 other states with similar constitutional provisions*), there is literally nothing they can do to provide adequately for each other's rights in a possible emergency such as hospitalization. [It's an excellent legal memo, btw. Its primary author,Julie Novkov (Poli Sci and Women's Studies, SUNY-Albany), is a lawyer as well as a potlical scientist.]

Sherrill's group has succeeded in getting APSA to adopt the following policy: "In locating its future meetings, APSA presumes that states with legal restrictions on rights afforded recognized same-sex unions and partnerships create an unwelcoming environment for our members in cities where we might meet....APSA would closely examine practices on a case-by-case basis in cities within these states to assess whether demonstrated positive local practices or other Association goals warrant holding our conferences there."  Sherrill and others are upset that, despite this policy, the 2012 conference is still set for New Orleans.

Question to readers: For those who belong to a professional association, do you know what its policy is or even whether it has a policy comparable to that of APSA? If it doesn't, maybe you should initiate one.

Note to law profs: The 2010 AALS conference is scheduled to be held in New Orleans. I'm sure it's too late to cancel or relocate, plus I confess that I feel a tug in the direction of supporting New Orleans economically with law professor dollars rather than boycotting that particular city.  But surely there is something that a gaggle of law professors could do while we're there to try to bring home the point. How about a SO/GI inquiry asking all New Orleans hospitals to adopt protocols for same-sex couples and to insure that hospital staff understand them? For any institutions that are reluctant, a friendly squad of law profs could offer to sit down with their GCs for mint julips and a chat.

* In addition to Louisiana, these states ban recognition of ALL non-marital unions, gay and straight: Alabama, Arkansas, Georgia, Idaho, Kansas, Kentucky, Michigan, Nebraska, N.D., Ohio, Oklahoma, S.C., S.D., Tennessee, Texas, Utah, Virginia and Wisconsin.  Among the more obvious convention cities affected would be Atlanta, Houston, Dallas, San Antonio, Detroit, Cleveland, and Nashville.

August 24, 2008

Subtract one executive order from the anti-discrimination list

Gov. Bobby Jindal (R-LA), a rumored short-lister as Sen. McCain's running mate, has let an executive order prohibiting discrimination by state agencies and contractors lapse.  The order, signed by former Gov. Kathleen Blanco, included sexual orientation along with other protected characteristics.  Jindal stated that he believed that federal anti-discrimination law, which does not include sex/o protection, was adequate. He also said that dropping the executive order eliminated a potential barrier for the state to contract with religious organizations.

August 23, 2008

Delaware ecstatic over O/Joe ticket

Masses of Delawareans turn out at entrance to New Castle County airport to cheer Biden's departure for the big speech in Springfield:

Biden send off
HT: delawareonline.com: Supporters gather at airport for Biden send-off

August 22, 2008

Transgender employment discrimination trial: Day One

Following is a report on the first day of trial in Schroer v. Library of Congress, from ACLU LGBT Project Director Matt Coles:

            Diane Schroer’s case against the Library of Congress went to trial on Tuesday in U.S. District Court in D.C.  The basics of the case are pretty well known.  As David, Schroer spent 25 years in the Army, and retired as a decorated full Colonel in the Special Forces.  Her specialty at the end was counter-terrorism. 

After retiring, she applied for a job as a Research Specialist in Terrorism and International Crime at the Library of Congress.  She got it.  But when she told her prospective boss that she was transitioning from David to Diane, and wanted to start work as Diane to minimize any fuss, things changed.  The Library decided that as it turned out, she was “not a good fit” and yanked the job away.  Diane came to the ACLU LGBT Project and we sued.

             There’s not much dispute about what happened, just about what it means.  First, there is a disagreement about the law.  The government insists that the law allows it to refuse to hire someone because she or he is transgender.  The ACLU says (to simplify a bit) that what the Library did is sex discrimination because the Library was more than happy to hire Dave, but wouldn’t hire Diane with the exact same abilities and qualifications. 

             Three times, the Library has asked the judge to throw the case out on the basis that what it did is not sex discrimination.  So far, he has refused.  More about that later.

             The other disagreement, more subtle but ultimately very similar, is over how people should think about sex and gender identity.  That dispute is what has been unfolding during the trial.              

             The trial is being held in the William Bryant Annex to the U.S. District Court in D.C.  The Annex is a new building, and a clear attempt to get away from the “massive block” type of architecture that defined federal buildings in Washington from the 30s through the 70s.  But if the Annex presents the world a façade of hemispheres and broken surfaces, it is no Beijing Bird’s Nest.  It’s a distinct but still tentative step away from old D.C. 

            The trial began with an opening statement from the ACLU’s Sharon McGowan for Ms. Schroer.  She laid out Schroer’s version of what happened, and why the government’s attempts to justify it don’t make sense.  It was to the point and easy to follow.

             In its opening, the Library of Congress essentially protested having to go to trial at all, insisting again that it has legal right to fire or refuse to hire transgender people.  The Library again asked the judge to throw the case out, and the judge again declined. 

             The first witness was Diane Schroer herself.  Under questioning by McGowan and on a stunningly short cross-examination, her testimony was crisp, clear and logical.  No long dissertations here.  But no memory failures, artful evasions or government double talk either.  She walked us through her military career, full of bureaucratic titles and military operations, and made it all seem pretty understandable. 

             That career is even more impressive than it seemed from reading the news accounts.  How many had successfully graduated from Ranger school with her?  7 out of 325.  Had she gotten any honors in the studies that qualified her to be a Ranger, to be a Jumpmaster, to be in the Special Forces?  Actually, she made honors in all of them. 

             Just what was it that she did in the military?  She did Special Operations in Haiti, where she ran the northern half of the country for a few years.  She ran de-mining operations in southern Africa.  She organized the humanitarian aid operation once the U.S. finally responded to the genocide in Rwanda.  Finally, in her last position, she was director of a 120-person classified organization charged with tracking and targeting high-threat international terrorist organizations.  She briefed the Secretary of Defense and usually the Joint Chiefs every two weeks. 

             She remained calm and direct as she began to talk about herself.  She described what it meant to her to be transgender with disarming simplicity: “I didn’t understand why I wasn’t a girl.”  She talked about deciding to come to grips with that, and devising a plan for transition with her counselor.

             As you listen to this careful, calm, capable woman describe her work and her life, you realize this is the kind of person you want on your team—no, running your team—in a crisis.  How different the world might be if the people making decisions about responding to terrorism—or running the Justice Department for that matter—thought like she does.  

             She approached transitioning and the Library of Congress job the same way.  In the same call where she was offered the job, she asked for a meeting with Charlotte Preece, who would make the hiring decision.  At the meeting a few days later, she explained that she was transgender.  She said she thought she could minimize the issue by starting work as Diane, so there would be no on-the-job transition.  She’d scheduled facial surgery so that she could make the Library’s planned start date.  She had pictures of herself presenting as a woman.  She had a counselor ready to come in to explain and answer questions. 

             On the stand, Preece said she felt “set up.”  But the only thing Preece was “set up” to do was to make a decision on the merits.  Ms. Schroer did not inject gender identity into the hiring process, keeping it focused on background and ability.  But once the decision on the merits had been made, she moved immediately to tell Preece, and give her the time and information she needed to stay focused on ability and make the hire work. 

            That isn’t what happened.  On the stand, Charlotte Preece was a vivid reminder that, so very often, the face of wrongdoing turns out to be not evil but ignorance.  Under a classic surgical cross-examination by James Esseks, Litigation Director at the ACLU’s LGBT Project, Preece basically confirmed Ms. Schroer’s story.  Schroer had the best qualifications and performed best in the interview.  Schroer was the best person for the job.  Schroer had the job; had it, that is, until she told Preece she was transgender. 

 Preece confirms she was bewildered when Schroer told her he was becoming Diane.  “Why would you want to do that?” she asked. 

 It is not so hard to understand Preece’s surprise that this classic “man’s man” turned out to be a woman.  Preece had never met anyone transgender before. But it’s at this point that ignorance turns to wrongdoing.  Preece says she worried that Diane wouldn’t get a security clearance, that she’d lose her contacts in the military, that she’d have no credibility working on terrorism for the Library. 

 She may have felt that.  But instead of trying to find out if her worries were justified, she simply gave into them.  There’s a legal issue here.  The government is not supposed to simply capitulate in the face of prejudice, imagined or real.  But the more interesting issue is the human failure.  Preece didn’t ask Schroer’s references—almost all of them military and Special Forces veterans—if they’d still respect Schroer as Diane.  And it turned out, many of them already knew.  Knew and considered Diane, not Dave, at the “top of the list” when it came to counter-terrorism.  

 Preece didn’t find out if transitioning by itself created a problem with security clearances.  It turns out that it doesn’t, and in fact Diane’s clearance—the highest—has been renewed.

 The way Preece assumed what seemed to be her own reaction—loss of respect—on to the military and veterans was almost comic.  It turns out that after the job was taken away, Diane created her own consulting business.  She did it with the help of, and she is now working with, the very people Preece assumed wouldn’t respect her. 

 And that—Charlotte Preece’s reaction to the news of Diane Schroer’s transition—is the heart of the case.  Is it okay, today, for an employer to refuse to hire somebody who can do the job, and do it well, because the employer doesn’t respect something about their identity that has nothing to do with the job?

            In the America of the past, we’d likely have said that Charlotte Preece’s assumptions were enough to justify taking away the job.  In the past, failing to live up to society’s expectations about who men are and who women are, would surely have been taken as a sign of instability.  But in the America we aspire to be, we won’t be willing to accept stereotypes as shorthand for capacity.  Knowing how wrong that kind of shorthand has been, and how much people have been hurt by it, we’ll insist on keeping our eyes on what really counts: ability.

             The question posed by what the Library of Congress did to Diane Schroer is just how far we have, if you’ll pardon the expression, transitioned from the America we have been to the America we hope to be. 

             That question about where we are on the path to a society that truly reflects our ideals is also the question posed by the legal issue the Library keeps coming back to.   When the law says you cannot discriminate on the basis of sex, the Library says, it means something certain, genetic and unchangeable.  It is okay to discriminate against someone because their gender identity is different from their genetic gender, the Library says, because gender identity isn’t part of sex. 

             In the careful hands of ACLU lawyer Ken Choe, also representing Ms. Schroer, Dr. Walter Bockting, the incoming head of the World Professional Association for Transgender Health, explained that science doesn’t support the Library.  Sex as we understand it today isn’t just chromosomes, it’s anatomy, it’s the physiology of the brain, and it is, above all gender identity.  While at one time, we may have thought of sex as “one thing,” today we understand that sex is made up of many things, and most profoundly, our own sense of who each of us is.

             Science doesn’t matter, the Library insists, it’s what Congress was thinking of when it passed the 1964 Civil Rights Act.  “Everett Dirksen,” a reporter said to me in the hall outside court, “wasn’t thinking of Diane Schroer when he helped pass the Civil Rights Act.”  “Probably true,” I said as she headed off to meet her cameraman, “but James Madison wasn’t thinking of TV when he penned the First Amendment either.” 

             The issue isn’t the way someone who wrote or voted for a law was thinking it would apply; the issue is the concept embodied in the law.  What was the idea?  The flip answer is that on this point, Congress didn’t have an idea; many of those who voted to put sex into the 1964 Civil Rights Act were hoping it would kill the bill. 

             But in 1964, as today, it is hard to believe that anyone thought sex was just about chromosomes or even just anatomy.  It was about the whole package.  The issue in the case is how does that idea apply in a world where the package is different than we thought in 1964, a reflection of more things than we thought, maybe not including a lot of things we thought, maybe more fluid than we thought.

             You don’t have to get too deeply into the science of sex and gender to see that what happened here is sex discrimination.  The Library may have been willing, in the abstract, to hire either a man or a woman.  But it was not willing to hire someone who, identified by parents and doctors at birth as a man, turned out to have the gender identity of a woman.  It was, in short, not willing to hire this person because she turned out to be a woman and not the man people thought. 

             In the America we aspire to be, that has to be sex discrimination.

             But as is sometimes the case, the legal lens may not be the best way to look at what happened to Diane Schroer.  One of people who testified for her yesterday was Dr. Kalev I. Sepp, Deputy Assistant Secretary of Defense for Special Operations Capabilities.  

 Sepp gave powerful testimony about how smart, strategic and intellectually focused Schroer was as David and is as Diane.  He also told the court that several years ago, Schroer asked to see him to talk about a big problem.  When they met, Schroer explained that he was transgender, and that he was on the path to becoming Diane.  Sepp listened, and when Schroer finished, he said, “that’s all fine, but what’s the big problem we need to talk about?” 

 These men who have spent their lives in the military, in Special Forces, parachuting in to dirty little wars all over the world, may have been surprised to learn that Dave was Diane.  But after getting past the initial surprise, they have had remarkably little trouble seeing that Diane is the same person they’ve relied on, trusted, respected.  The Library of Congress, on the other hand, couldn’t see. 

 Americans, who, like Charlotte Preece, think they’ve never met anyone transgender, might think her reaction was not only understandable, but acceptable.  Diane Schroer is the powerful counterargument.  How could we let someone this good, this dedicated, with skills we need so badly, slip through our fingers? 

            Diane Schroer’s story tells us that we can’t afford to live in the America of the past much longer.  For our own sake, we have to become the America we aspire to be.

 Matt Coles

– cross-posted at the ACLU LGBT Project blog.  If you want to read more about the case, you can find a summary and most of the court papers here.



August 21, 2008

Gay porn site users embarrassed by donation to McCain

The Bay Area Reporter Online | McCain donation irks Manhunt subscribers

by Seth Hemmelgarn

A number of subscribers to the gay hook-up site Manhunt have been disturbed by the $2,300 contribution Jonathan Crutchley, one of the site's co-founders, made to the campaign of presumptive Republican presidential candidate Senator John McCain....

Manhunt has nearly 1 million members, according to an article about the site that was recently published in Out magazine. Michael Joseph Gross, the author of that piece, entitled "Has Manhunt Destroyed Gay Culture?", wrote that the site receives more than 400,000 unique visitors per month, dwarfing other gay male hook-up sites....

Scott Smith, 44, of Dallas, said he included what he knew about the situation on his Manhunt profile "to alert people," and his profile was removed.

Smith said he's "absolutely disgusted and horrified" by Crutchley's contribution

August 19, 2008

Law profs debate marriage

The Federalist Society has posted an online debate  on same-sex marriage featuring Dale Carpenter (Minnesota), Andy Koppelman (Northwestern), Bob Nagel (Colorado), and Amy Wax (Penn).  Nothing new, but all the arguments are sane, and that alone qualifies it as a rare example of the genre.

California Supreme Court: no religious exemption for providing medical care to LGBT patients

Sometimes a case grabs attention less because of how it changes the law than because the parties or the context seem saturated with symbolic or cultural resonance. North_Coast_Women's_Medical Care Group_v_San Diego Superior_Court falls into that second category.

In this case, the California Supreme Court ruled yesterday that doctors have no religious liberty right to deny treatment because of a patient's sexual orientation.  The case arose when Guadalupe Benitez sought fertility treatment. The physician whom they consulted told Benitez and her partner that she would not, for religious reasons, perform intrauterine insemination (IUI) on Benitez. Instead, what ensued was a year of treatment using medication, with Benitez continuing attempts to self-inseminate at home. When it became clear that this was not working, and during a period when the initial physician was away, Benitez sought IUI from another doctor at the same clinic, who informed her that he, too, had religious objections to treating her. She was referred to a third doctor, outside of that practice, who eventually performed successful IVF.

The importance of the case comes from the defendants' claim that they had a First Amendment right not to treat Benitez, thus trumping her rights under a California statute that prohibits sexual orientation discrimination. Under federal law, the doctors had little chance because the state needs to show only a rational basis for a neutral law of general applicability, in order to defeat the claim for an exemption based on religious belief. The more interesting religious liberty claim was under state law, because the standard of review question had not been decided.

On that point, the court held that even under the most searching review, the physicians had no viable religious liberty claim because the state's interest in preventing discrimination based on sexual orientation rose to the level of compelling. This holding as to the importance of the public's interest in  ending sex/o discrimination conceptually rounds out the same court's ruling in the Marriage Cases, 43 Cal. 4th 757, that such discrimination is inherently suspect. As in that case, the primary precedential value is for state law, binding for California and potentially persuasive precedent for other states.

Does this decision extinguish all possibilities for doctors to assert religious objections to providing care? No - the court said that doctors in such situations had two options.  First, they could decline to perform a specific procedure, an act not forbidden by the anti-discrimination law, so long as they decline to perform it for all patients. Second, they could avoid a personal conflict "by ensuring that every patient requiring IUI receives full and equal access to that medical procedure through a North Coast [medical group] physician lacking the defendants' religious objections."

The second option requires that doctors genuinely prioritize the needs of patients, including patients who live different lives and hold different values than the doctors treating them. Its effect would be to insure that a medical practice opens for business only when it is sufficiently staffed to provide care to every category of patient, not just the ones the doctors feel are "deserving" of it.  The last time I checked, that was called ethics.

August 18, 2008

Social construction of harassment

A new study in Law & Social Inquiry shows that how people define sexual harassment is directly related to the extent to which they view sexual harassment rules as ambiguous and threatening to workplace norms.

Justine E. Tinkler of Louisiana State University used data from a nationwide study of sexual harassment in the United States' federal workplace to investigate how policy knowledge, attitudes about the legal regulation of sexual harassment, and the social locations and experiences of employees affect their likelihood to label uninvited sexual teasing as sexual harassment.

How men and women define sexual harassment is related to the degree towhich they view sexualharassment rules as ambiguous and threatening to the workplace.

Women, particularly women supervisors, resist defining sexual joking or remarks as harassment. This may be due to the fact that women recognizethat taking less serious forms of unwanted sexual attention too seriously can have negative effects on the way women are perceived.

Men with college or postgraduate degrees were significantly less likely to define sexual jokes or remarks as harassment than were men with a high school degree or less.

Among people whose workplace norms are threatened by anti-harassment enforcement, workplace training magnifies their resistance to defining sexual joking as harassment.

"By locating variation in how people define injurious behavior in both the content of the law, the social status of the groups it aims to protect, and how people think about its regulation, future research may be better equipped to understand why some laws never change the social order while others have an enormous impact," Tinkler concludes.

This study is published in the June 2008 issue of Law & Social Inquiry.


courtesy of clinicians with not enough to do