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Pushed Beyond the Margin, and Silence is the Response

February 17th, 2011 No comments

In today’s 365gay.com column, I dig (not as deeply as I’d like) into an issue that often paralyzes the gay and lesbian community as often as it does straight folks: the massive inequalities and injustices that transgendered and other gender-non-conforming people must live with each day.

Posted early this morning, it drew an unprecedented number of comments: zero. (That changed within the past hour.) Write about marriage equality, or religious accommodations, or any of the mainstream gay and lesbian community and expect many thoughtful and animated responses. Write about the trans-community and….

Why?

National Legal Panel at Equality Forum: Opening Wide for a Fire Hose of Information

April 29th, 2010 No comments

Did Lambda Legal’s Executive Director, Kevin Cathcart, really “start the LGBT movement for legal rights,” as National Law Panel moderator Brad Sears playfully suggested at the opening of last night’s Equality Forum event?

If he didn’t, he certainly has a deep understanding of what most people think of as the legal “movement” – the litigation that’s been waged for the past several decades in an effort to give LGBT people liberty and equality. Cathcart and Sears, who is Executive Director of the Williams Institute, the LGBT think tank at UCLA School of Law, were half of a predictably stellarly credentialed and excellent panel that’s always a well-attended highlight of Equality Forum. (I’d guess there were easily 100 people present for the discussion).

Sears, who certainly could have added much of substance himself, rarely used his prerogative to do so and instead devoted himself to effective moderating. On the one occasion that he stepped out of role, it was to commend the Obama Administration for “taking a chip out of DOMA” by making a real effort at counting LGBT households in the current census.

Cathcart, of course, focused mostly on the impact litigation that Lambda currently has underway. Among the highlights is a recently filed case in New Jersey, asking the state’s supreme court to declare that the civil union compromise they had permitted several years ago doesn’t confer true equality, and that full marriage rights are therefore needed.  There’s also a case in the court of appeals asking whether the DC marriage equality law can be placed on the ballot, and another in Hawaii asking the court to recognize civil unions for LGBT couples (since a constitutional amendment in that state prohibits full marriage equality).

During a second round of questions focusing on emerging issues, Cathcart found himself in a good mood after yesterday’s oral argument before the US. Supreme Court in Doe v. Reed, in which the losing side in the recent Washington State ballot initiative to remove full domestic partnership rights for gay couples sought to keep private the signatures on the ballot petitions.

“Butch up!”, Cathcart said in summarizing “Justice” Scalia’s reaction to the side that sought privacy. Politics is rough and tumble, and if you’re signing ballot petitions, you should expect some criticism. No big deal.

In this woe-is-us context, Cathcart spent some time dissecting the anti-equality force’s latest strategy, which is to argue that they are the ones being discriminated against and harassed,  and seeking to turn us into the aggressors. He aptly summarized this tactic as an effort to “turn around the facts of real life.”

James Esseks, who is Director of the ACLU’s LGBT and AIDS Project, summarized his work on challenging foster and adoption bans in Florida and Arkansas, and noted that it’s important to win these cases on constitutional grounds so that other legislatures don’t get the idea that these kinds of pernicious laws can work.

He then spent some time on the very hot case of Christian Legal Society v. Martinez, in which the University of California is pitted against CLS in a case that balances the equality interest of the LGBT (and non-believing) students excluded against CLS’s effort to keep them from full voting membership. (California stands with the excluded student by refusing to fully sponsor any group, including CLS, that discriminates.) Esseks’s worry – and mine – is that a decision favoring CLS could in principle, lead to the end of all anti-discrimination laws. Things look ominous in that case, although Esseks thought that the Court might find that the liberty and equality issues hadn’t been “well teed-up” and might punt the case back downfield (OK, not a very effective or comprehensible sports metaphor).

Esseks also mentioned the ACLU’s role in defending the vile Westboro Baptist Church in a case where the father of a soldier whose funeral was protested by these sociopaths had won a judgment for emotional distress. Soon, I’m going to write a post that might be titled: “How I Learned to Hate the First Amendment.” For now, I’ll just refer you to this excellent criticism of the way that freedom of speech has become a sort of secular religion. I don’t like it and I don’t buy it.

Toni Broaddus, who is the Executive Director of Equality Federation, which is described as a national network of more than 60 statea-based LGBT organizations, naturally focused on the level where much of the real action in marriage equality and non-discrimination has been taking place.

One of her sobering points is that it’s getting harder to pass LGBT legislation, like anti-discrimination laws, in part because the “easier” states have already been accounted for. She also noted that it’s been very tough to get gender identity protection passed as a “stand alone” – it works better when it’s folded into broader legislation for the entire LGBT community.  That lesson, she noted, was passed along to ENDA advocates, who belatedly saw the light and came to insist on protection for trans-people in this law, which, you may happen to know, still has not been enacted.

She also noted that LGBT legislation is increasingly building in broad religious exemptions, and that now such exemptions are global – notably in an Ohio law that says, quite directly, that “religious organizations may discriminate.” It perhaps goes without saying that such an exemption would be laughed at in the context of legislation protecting any other historically despised minority, but never mind.

There were also discussions of litigation challenging DOMA, the likelihood of ENDA passing this year (maybe), and a law that would repeal DOMA entirely (don’t hold your breath, but it does have more than 100 sponsors in the House).

I could go on (yes, there was still more), but that’s about enough for a blog post, don’t you think? I do want to close by saying that even though I teach law for a living, blog obsessively and now do a weekly column on legal issues of importance to our community, I always learn a great deal from this panel. There’s so much going on, and so many good people doing so much, that it’s hard to keep up. But that’s a good thing, right?

Anti-Gay Violence in Senegal and Throughout Africa

April 12th, 2010 2 comments

There I was, listening to Kiki Dee on iTunes, when I came across this horrific story, posted by the AP this morning. Here’s how it starts:

(Thies, Senegal) Even death cannot stop the violence against gays in this corner of the world any more.

Madieye Diallo’s body had only been in the ground for a few hours when the mob descended on the weedy cemetery with shovels. They yanked out the corpse, spit on its torso, dragged it away and dumped it in front of the home of his elderly parents.

And from there the story spirals outward to describe a culture of fear and violence against the gay community, fueled by religious nuts tapping into economic uncertainty, and carried out by fearful and ignorant citizens of many African countries.

The story paints with a broad brush, and it would be helpful to know, from a population perspective, just how widespread the problem truly is. The story quotes only Brit activist Peter Tatchell’s statement that anti-gay violence is up over the past year, and I’m more than willing to believe that’s true. But I couldn’t find any evidence on Tatchell’s website (which is kind of a mess, really; if anyone can find anything useful on this point there, let me know), and it would be good to have some hard numbers.

But whether the situation is getting worse or not, it’s plenty bad enough. The lead story is about a man whose family wouldn’t tell hospital personnel that he had AIDS, and therefore hastened his death by depriving him of appropriate medical care. Read the entire story and be appalled.

Although it would be irresponsible to compare what’s going on in much of Africa with events here in the U.S., we’re no strangers to scape-goating and incitements to violence — whether it be against abortion providers; politicians who voted for health care reform; or “transgressing” people like the LGBT community. Yet accounts like this make my blood run cold:

In March 2008, Senegal hosted an international summit of Muslim nations, which prompted a nationwide crackdown on behaviors deemed un-Islamic, including homosexuality.

The crackdown also coincided with spiraling food prices. Niang says political and religious leaders saw an easy way to reach constituents through the inflammatory topic of homosexuality.

“They found a way to explain the difficulties people are facing as a deviation from religious life,” says Niang. “So if people are poor – it’s because there are prostitutes in the street. If they don’t have enough to eat, it’s because there are homosexuals.”

Imams began using Friday sermons to preach against homosexuality.

“During the time of the Prophet, anytime two men were found together, they were taken to the top of a mountain and thrown off,” says Massamba Diop, the imam of a mosque in Pikine and the head of Jamra, an Islamic lobby linked to a political party in Senegal’s parliament.

“If they didn’t die when they hit the ground, then rocks would be thrown on them until they were killed,” says Diop, whose mosque is so packed during Friday prayer that people bring their own carpets and line up outside on the asphalt.

My neighbors were Peace Corps workers in Senegal several years ago, and were unpleasantly surprised by hearing about the new intolerance there. But there will always be someone to blame, and these days “the homosexuals” are the ones with the bull’s-eye on their backs in parts of Africa.

A great deal might be said about what to do about this: Withhold aid from any nation whose government doesn’t act aggressively enough to crack down on the violence? Inhumane, given the burden of poverty and disease in many of these places. But it should be possible for the global community to strong-arm the leadership into dealing with the violence, using a “carrot” rather than a “stick” approach. I’m in favor of incentives here, although how they’d work and what would need to be shown in order to qualify would be tricky. But we can’t stand by and let this happen. The world community is much better at exerting pressure (to some effect, if still maddeningly limited) to protect women and children. Why not our LGBT brothers and sisters?

This Won’t Help

April 11th, 2010 No comments

Issues involving the proper and respectful treatment of transgendered people are inherently difficult in a few situations. A recent story on FOX News (hardly a trustworthy source) about a proposal by the Maine Human Rights Commission to extend the ban on discrimination against the TG community to virtually every school-related context can’t be the best approach. If ultimately adopted, the guidance document would recognize no criteria for deciding when a student’s non-conforming gender identity should or should not be recognized; require the school to allow the student to compete in sports with members of the chosen (as opposed to birth) sex; and require the schools to “figure out” how to accommodate privacy concerns.

Is is enough for a student to simply announce, without more, a chosen gender? Maybe, because the document doesn’t require any particular “test” or even “factors” for deciding the question, and gives school officials only this unhelpful guidance for deciding what to do:

[I]f a school has an objective basis to question whether a student’s gender identity or expression is bona fide, it may ask for information to show that the gender identity is sincerely held. No particular type of information (such as medical) may be required.

This policy, however well-intentioned, is likely to lead to exactly the kind of nastiness it’s trying to avoid. In its effort to avoid the essentializing impulse of rules and laws that declare, brainlessly, that one’s sex at birth determines one gender identity forevermore, the Commission has simply thrown up its hands. But surely this isn’t the right answer. Should a college athlete, born male and with no hormone treatment or surgery be able to compete against women? Unless we’re talking about the University of Connecticut’s women’s basketball team, this isn’t fair (and would be poor sportsmanship, to boot).

The Commission deserves credit for trying to show respect for one of the most horribly vilified and mistreated groups of people around. But just as tests have been developed for all kinds of other difficult calls, some kind of criteria need to be applied here, too. Otherwise everyone loses.

Judicial Difficulty with Gender

March 26th, 2010 No comments

A day late (not my fault! really!), here is my column over at 365gay.com. Toggle on over and give it a look. The post examines a few cases in which courts were called upon to decide whether to give legal recognition to someone’s sexual reassignment surgery. In service of a larger point about the difficulties that the law has with gender non-conformists, I also discuss the recent goings-on in Malawi, where a gay couple is in a maximum security prison for conducing a formal engagement ceremony.

Most of the results show that courts need a great deal of education on these issues.

Nepal Votes for Equality

January 20th, 2010 No comments

As states throughout the U.S. have moved to impale discrimination into their constitutions by banning same-sex marriages, other countries are sprinting in the other direction.

This just in: Nepal is about to join South Africa in explicitly guaranteeing equality to its gay and lesbian citizens. Same-sex couples will be able to marry.

Meanwhile, in Cuba sex-change operations are now being funded by the government. Raul Castro’s daughter continues her leadership on issues affecting sexual minorities.

Tuesday was a day to worry about the U.S. being left behind in a number of areas.

More on William and Mary’s Trans-Line

October 24th, 2009 1 comment

Judging from the origin of incoming traffic, many people looking for further information on gender-queer Jessee Vasold,  who was honored earlier today as William and Mary’s Homecoming Queen, found last night’s post. This is just a quick nudge to go the school’s paper, The Flat Hat, to read the full range of comments the story has, er, engendered.

You’ll find some anger, but more compassion, understanding, and even humor. There’s useful information there, too: One reader writes that Old English had a gender-neutral pronoun (“hir”), which would surely come in handy in cases like this, where Vasold’s request for gender-neutral pronouns produced some amount of distracting ridicule.

Many of my friends, especially from the swim team, were on hand for this year’s Homecoming. I’m going to find out how important and discussed this whole issue was for those in attendance, and I’ll report back. If anyone has any insights, please pass them along to me. (For example, one reader commented to my earlier post that my wish for parade-goers’ mouths to be agape would  likely not be fulfilled, because Jessee is very convincing as a woman.)    

More Fun with the Trans-Line: William and Mary Students Elect a Gender-Queer as Homecoming Queen

October 23rd, 2009 4 comments

A friend and fellow William and Mary alum emailed me earlier today, responding to my earlier post on the scariness of messing with the gender line, and informing me that our alma mater had just elected a self-identified gender-queer as Homecoming Queen. Read all about it, right here in the school’s daily paper, The Flat Hat.

The student, one Jessee Vasold, is apparently a biological male who prefers not to identify as of either gender, but whose gender is nonetheless seen as sufficiently female for the students to have picked “zir” (the pronoun Vasold prefers to “him” or  “her”) as Queen, not King.

Go, Tribe! The students, who apparently only regained the right to cast direct votes for these silly positions this year, likely have the governing Board of Visitors in a tizzy, already thinking about how they can prevent a similar trans-gression from taking place again. (Go to the Board’s site, and you’ll find men with III’s after their names — which, if I had to guess, wouldn’t usually be a number associated with much trans-contact. On the other hand, Bruce Hornsby’s wife (an alumna) is also a member.)

Oh, to be present at tomorrow’s Homecoming parade! Atop all of the parade watchers’ smart outfits, mouths will yawn agape and eyes will pop, cartoon-style, out of their sockets, as the college-donation-stopping Vasold floats past. (One commenter on the Flat Hat’s site made this point — angrily — about the spigot shutting off. I think, though, that most alums will get over it.)

Were the students being supportive, or ironic? Both, I’d say, but the whole thing is delightfully performative in the wise-guy tradition that I found appealing as a student. (Jon Stewart is the contemporary example of a W&M-educated smart aleck, but he has nothing on Thomas Jefferson, the Know-it-All who mooned the College by founding the competing UVA.) If you can’t send up Homecoming, what can you have fun with?

Prowel v. Wise Business Forms, Gender Stereotyping, and Caster Semenya

September 10th, 2009 1 comment

This just in: the South African track star,  Caster Semenya, turns out to be of ambiguous gender. Testing reveals that the athlete, who competed in the recent World Championships and easily won the 800-metre run, has internal testes that produce a large amount of testosterone. There are currently no plans to strip Caster of the gold  medal, but there’s talk about awarding a second  gold medal to the runner-up, presumably on the basis that the winner enjoyed an unfair advantage over the other competitors, though not intentionally. (I’m assuming that Caster’s visible sex organs are female; in any event, she and her family raised her as female and have always considered her so.)

As I wrote previously, this may be one of the cases where we do need to make a determination about gender, because sports competitions are generally divided by sex because of the physical advantages that men possess in most (not all) sports. So going forward, my guess is that Caster Semenya will be required to compete as a male.

But whom should she be allowed to marry? Should the gender chosen, as a matter of necessity, for the limited purpose of athletic competition extend into every aspect of her life? Since her gender is decidedly ambiguous, should she be able to marry the person of her choice, male or female?

In South Africa, the question won’t arise, because that country’s constitutional commitment to equality, which expressly extends to matters of sexual orientation, has been interpreted to embrace the right of gays and lesbians — and, I assume, folks like Caster Semenya — to marry the person of their choice.

Here in the U.S., of course, we’re much more committted to sniffing out gender unambiguously. I’d guess that where that can’t comfortably be done, those who recite the mantra that “children need a mother and a father” would prefer that Caster Semenya not be permitted to marry anyone. Too weird.

As a recent decision by the federal appellate court for the Third Circuit reveals, though, this boxing and commitment to gender has all sorts of strange consequences. In a case arising in Western Pennsylvania, Prowel v. Wise Business Forms, the appellate judges had to sift through a gay man’s allegations of workplace harassment to determine whether the mistreatment he complained of was because of his sex or because of his sexual orientation. Why bother? And what’s the difference, you (non-lawyers) may be asking?

Well, federal law protects against sex-based discrimination but not against discrimination based on sexual orientation. The seminal(?) case involved a woman who alleged discrimination because of her non-conformance to the gender role she was expected to fill. (She “wasn’t charming,” for example.) That kind of gender stereotyping, the Supreme Court ruled in Price Waterhouse, was sex-based discrimination and therefore prohibited by Title VII, the federal law that applies to such actions. So if Prowel can show that he was harassed because he wasn’t “typically” male, he’s got a claim —  even though he also “happens” to be gay.

Both his behavior and that of the “real men” who harassed him are the stuff of easy parody. While he “filed” his nails, the other guys “ripped them off with utility knives.” What? Really? Utility knives? Oh, and he pushed the buttons on his work gizmo “with pizzazz”! What kind of real man does that?

So now the lower court must let the jury decide whether Prowel was harassed because of his failure to  conform to gender stereotypes. If so, the court seems to say, then any mistreatment because of his sexual orientation is beside the point — he’s got a claim. But if the mistreatment were because of sexual orientation only, no claim is stated. There’s still no federal law prohibiting discrimination on that basis.

This is just silly. If Prowel’s allegations are true, he was harassed because gay men, especially but not only effeminate gay men, make some straight men uncomfortable to the point where they feel a need to…rip their nails off with utility knives. Sexual orientation is itself a failure to conform to gender stereotypes, but somehow that most basic point isn’t legally cognizable. The law only protects against sex-based discrimination, so claimants and juries are tasked with separating out two things that…are really one.

Before long, these legal niceties and the more general obsession with gender will come to be seen as historical curiosities — except perhaps in those few cases, like sports, where what’s being measured is something quite specific. We like sports because results are clean and clear, and because there’s an unambiguous finality to the outcomes. But the rest of life isn’t like that, however much some wish it otherwise.

Bash Back!

August 27th, 2009 No comments

How much of this is theater — angry theater — and how much is meant as true, violent threat, I don’t know. But Bash Back! seems to be the spiritual descendant of ACT UP!, mixing a radical (not always clear) political message with performance. Read the whole article to get a sense of who these radical, gender-nonconforming queers are, and how they understand the world.

But here are two telling quotes, one from a story in Details magazine, and the other from a comment on the article:

“We’re not trying to change people’s minds, we’re not trying to bend straight people to give us freedom—we’re fighting back,” says Milwaukee member Tristyn Trailer-Trash. “We’re going to stop them from preaching hate, stop them from creating an environment that’s unfriendly to gay, queer, and trans people. We’re not going to be nice about it—they’re not being nice about it!”

“I condone all violence that is in the name of gay rights. There is a difference between murder and killing….The forces of homophobia need to be destroyed BY ANY MEANS NECESSARY. Nonviolence has gone as far as it can.”

If you want to be taken seriously, it’s probably best to avoid last names like Trailer-Trash (especially if hyphenated). But one has to admit that the mainstream gay community’s treatment of gender non-conformists has often been little better than that of the broader society, and some kind of aggressive action seems called for; too long have we been willing to throw these people under the bus. But terrorism and violence are always…terrorism and violence. Me, I prefer the theater. Bring on Trailer-Trash.