hunter of justice

Essence Magazine: Defend the sisters in uniform

From Essence:

"Don't Ask, Don't Tell" (DADT) poses an imminent threat to gay and straight black women. So, where is the outrage?

Black women have taken up arms alongside their male counterparts for decades, dedicating their lives to defending our freedoms even at the expense of their own. Today, however, our sisters in the military are under attack, not just from ominous enemies abroad but by discriminatory practices at home that put them in harm's way and lead to career-ending discharges.

The military's DADT policy, which bans gays and lesbians from serving openly, threatens all servicewomen regardless of their sexual orientation. But Black women are bearing the brunt. Pentagon data shows that DADT has been used to kick Black women out of the military at a much higher rate than any other group. 

The military has served as a pathway to economic empowerment for minorities and women for generations. It offers health care and housing benefits that support their children, helps them to afford college, and secures stable civilian careers.

So imagine the hardship faced by Black servicewomen who are unduly targeted for dishonorable discharge from the military because they are gay or simply accused of being gay. Many of them are also mothers and heads of households. Their careers are shattered, and their children and families suffer.

Even when Black servicewomen play by the rules they fall prey to the perils of the DADT policy regardless of their real or perceived sexual orientation. Fellow servicemen, male and female, have exploited this policy to discredit superior officers, and they've used it as a gag order to retaliate against women who have rebuffed their sexual advances.

Throughout history Black women have been degraded and forced to exchange their bodies to safeguard their families. Under the guise of DADT, our sisters in the military today continue to be subjected to sexual blackmail and harassment, and forced to trade their personal freedoms to protect their honor, livelihood and jobs.

A telling case in point is the tragic story of African-American Army Sgt. Tracey L. Cooper-Harris, who wrote to President Barack Obama earlier this year appealing for an end to DADT. In her letter, Sgt. Cooper-Harris relayed the horrendous ordeal she experienced as a teenage guard.

"The signal from command was clear: being gay was a far more serious offense in the military than sexually harassing a fellow service member," she wrote. "I ultimately chose what I believed was the best decision for me at the time. I let these men have their way with me in exchange for their silence."

The facts are clear, and the statistics are undeniable. Black servicewomen are losing their dignity, their jobs, and their opportunity to pursue the American dream because of the legalized discrimination that is DADT.

Where is the outrage?

Time and time again, when members of the Black community have been disproportionately harmed by public policy or faced with institutionalized discrimination, we have rallied around the victims. Yet with DADT, the Black community's silence has been deafening.

Sgt. Cooper-Harris' silence did not protect her from the harassment she endured, and our silence does not protect the hundreds of Black women who are victimized each year under DADT. We can no longer sit idly by while our military sisters are singled out for discrimination. It is time for us to stand up and defend our sisters who defend us on the front lines each day.

HT: Sharon Daly

Real women don't wobble

From the NY Times:

When the Berlin Wall collapsed and Germany became one again, women in the former Communist East seemed to be the big losers.They lost their jobs and their maternity and child-care benefits. And they lost the form of equality that Communism had brought: Raised in a culture where women drove cranes and studied physics, they were reduced to clichés depicting them as oversexed.

The assumption was that as with everything else, East German women would become more “Western” — more domesticated and somehow more docile. But as Germany celebrates 20 years of reunification, it is Western women who, in many ways, strive to be more like their Eastern sisters.

Eastern women are more self-confident, better-educated and more mobile, recent studies show. They have children earlier and are more likely to work full time. More of them are happy with their looks and their sexuality, and fewer of them diet. If Western women earn 24 percent less than men, the pay gap in the East is a mere 6 percent (though overall levels of pay are lower)...

Jutta Allmendiger, a West German sociologist and author of “Women on the March,” a survey on young German women’s attitudes, said “women in the East are more holistic,” and “combine their children and their careers and their sexuality in a completely matter-or-fact way.”

“West German women wobble,” she said. “Eastern women have no fear.”

When the Cold War split Germany in two, the country became a living experiment in social engineering. East and West had the same history — a history in which women principally raised children and kept the home according to the mantra “kinder, küche, kirche,” or “children, kitchen, church.”

Four decades of radically different socialization led to two very different sets of attitudes, illustrating how politics can shape gender relations. In the East, a Communist state losing male labor to the West set up free day care centers and all-day schools so that women could work. Women had an extra vacation day per month, a year of paid maternity leave and shorter work hours after the second child. In the West, they could be divorced for being a “bad housewife” until the 1960s. They needed their husbands’ permission to work until 1977. Schools finished at lunchtime, and nurseries were scarce. Until reunification, single mothers were assigned a legal guardian.

Equality Act takes effect in Britain, modernizing civil rights law

Britain's new Equality Law has now taken effect. As I described in greater detail earlier, the Equality Law seeks to integrate and harmonize multiple civil rights statutes into one law with both fundamental requirements that cut across categories, as well as specific provisions geared to particular forms of discrimination. (This summary describes each of its provisions and the changes from current law.)

Regarding an issue with which Americans are quite familiar, the new law forbids discrimination based on gender identity in a range of areas. For both sex/o and g/i, discrimination is prohibited in the provision of goods and services (what we classify as public accommodations), as well as in employment. Another familiar theme in the debates on the bill was the conflict between equality principles and the practice of religion. One of the most controversial aspects of the new law concerned pay equity; the original provisions were watered down after lobbying by business. 

Professor Maleiha Malek of Kings College School of Law (London) has critiqued the conceptualization of equality that the new law represents on the ground that it is unlikely to be effective in countering structural discrimination. ["Modernising Discrimination Law: Proposals for a Single Equality Act for Great Britain," 9 International Journal of Discrimination and the Law 73 (2007)] That seems correct to me. And although some of the provisions are no more progressive than those in American law (such as the quandary over intersectional claims), the integrated approach nonetheless looks quite intriguing, even if not ideal. 

Australia is reportedly considering a similar move.

Who is most hurt by DADT?

A key Senate vote looms tomorrow in the effort to repeal DADT. Meanwhile, the Williams Institute has just released a new report on discharges documenting that women and persons of color are disproportionately affected by the military's policy and that the racial and gender skewing has increased over time.

Since the policy took effect, more than 13,000 service members have been discharged. Not surprisingly, the rate has decreased since the wars in Iraq and Afghanistan began. As the annual number of discharges fell, however, the proportion of women and persons of color rose.

• For women, who comprise 14 to 15% of military personnel, the share of DADT discharges rose from 22% in 1997 to 39% in 2009.  
• For non-white, non-Hispanic members, who comprise about one-third of personnel, the share of discharges rose from 23% in 1997 to 45% in 2008.

How many reasons do we need to end this policy?

More recognition for the importance of the sex discrimination analysis in Perry

Judge Walker's analysis of the sex discrimination issue in his decision in Perry is getting more attention, as it should. Although not the focus of the evidence presented at trial, the sex discrimination question was prominent at oral argument for a good reason: the constitutional standard for testing a law that discriminates based on sex is tougher than what any federal court has ever applied to sexual orientation discrimination. So the plaintiffs' lawyers argued that banning gay marriage enacted a distinction based on the sex of one's partner, and the defendants argued that because marriage is all and only about procreation, the sex differential is not bad, but essential.

The significance of the link between gender, marriage and sexuality, however, runs much deeper than that. Here's what Judge Walker wrote:

The evidence did not show any historical purpose for excluding same-sex couples from marriage...Rather the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed...

Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines... Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.

Gender no longer forms an essential part of marriage; marriage under law is a union of equals....

Sexual orientation discrimination can take the form of sex discrimination. ...The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation....Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.

In my view, this was the most creative part of his analysis. Linda Greenhouse at the NY Times agreed:

Of the many smart moves Judge Walker made in his 136-page opinion last week, the smartest was his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails...

There is much more to Judge Walker’s analysis, but it seems to me that this revelation is the heart of it: that while we have been fussing about same-sex marriage, marriage itself has undergone profound change as the result of forces completely independent of federal judges...

If Judge Walker’s opinion survives on appeal in its full sweep, I think it will be on this basis...

BU Law Professor Linda McClain pointed out that another important aspect of the analysis was its highlighting of the irrelevance of gender to parenting.

Going a step further, Loyola Law Professor Doug Nejaime highlights the channeling function that the ban on gay marriage serves and offers an explanation for why the question got a more extensive examination in Perry:

Marriage equality advocates have pointed out the connection between marriage restrictions and gender roles in earlier litigations. But state courts considering same-sex couples' right to marry have consistently rejected or neglected the way in which marriage restrictions rely on and perpetuate sex stereotypes that subordinate women. While disappointing, this hardly seems surprising; state officials defending the restrictions increasingly refuse to explicitly rely on gender norms, and arguments about sex stereotypes are often buried in amicus briefs.

But Proposition 8 proponents' direct role in the Perry litigation forced Judge Walker to fully consider the sex-based implications of Proposition 8. Arguments based on sex stereotypes now constituted part of the principal case put forward by the proposition's defenders. And where Proposition 8 supporters saw legitimate justifications for the amendment, Judge Walker saw impermissible sex stereotypes, concluding that "Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage."

For all the confusion introduced by Proposition 8 proponents' role in the litigation, their presence has made one thing crystal clear: Laws that prohibit marriage for same-sex couples constitute just one part of a broader normative framework of the family that harms individuals based on both sex and sexual orientation.

I agree with Doug that Perry unmasked the kind of heteronormative "marriage culture" that is at base what the conservative true believers want.  Unfortunately for them, it's no longer what most Americans want. And that is a huge part of the reason why public opinion is shifting about gay marriage.

Minow: Expect issue of sex segregated schools to reach Supreme Court

Harvard Law Dean Martha Minow has just published In Brown's Wake, a book that analyzes the multiple legacies of Brown v. Board of Education - including in litigation over non-race issues, social science and beyond the U.S.

From an interview of her at SCOTUSblog:

Which big issues concerning school integration – racial or otherwise – do you think are likely to come before the Court next?

Minow: I think that the treatment of gender separation in schools is on its way to the [Supreme] Court.  There are an escalating number of single-sex classrooms and single-sex schools operated by public school systems or with public dollars.  And there’s confusion, even among advocates, about what is the best interpretation of statutory as well as constitutional law with regard to those programs, including whether there must be a comparable alternative offered to people of the other sex.  That was a question that was left open in the Virginia Military Institute case [United States v. Virginia (1996)], and I think that there will be further litigation on that question in the federal courts.  It may well make its way up to the Supreme Court.