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Posts Tagged ‘sexual orientation’

Institute of Medicine Report Calls for More Funding for Research into LGBT Health Issues (and Quotes Renowned Expert)

March 31st, 2011 No comments

This ABC News story links to the IOM Report, which is like a blast of warm energy after the Bush Administration’s policy of declining to fund any studies related to LGBT health issues. The Report is a sophisticated effort, even if it does underestimate the challenges in collecting data relating to sexual orientation.

Oh, and the story quotes me.

Another Angry Perspective on Lingle’s Veto of Civil Union Legislation

July 7th, 2010 1 comment

A reader and old friend writes:

Linda Lingle has failed in so many ways, my head is still spinning. When she voiced her commitment to protecting the sanctity of marriage, she failed to mention her 2 divorces.  She failed to fulfill her 2006 campaign promise to not veto legislation on same sex marriage.  She failed as an executive, unable to decide based on her own principles or the arguments of proponents and opponents.  She failed to see the consequences of not deciding on this issue.  She condemned representative democracy and suggested governance by referendum (or legalized “mob rule” in my view), making herself redundant. If the governor should not make a decision on this issue, why should she on any issue?  In so doing, she confirms her failure as a student of history.  Her former place of residence, California, is virtually a failed state due to the limitations that ballot initiatives have imposed on its governments and its citizens.

Don’t overlook the fact that the Hawaii legislation permits “civil unions”, not civil marriage.  Separate but equal is unacceptable when based on race; it is equally unacceptable based on gender or sexual orientation.  We are being worn down arguing with the insane and unreasonable.  We should not lose sight of the notion that we are looking for equality not something like equality.  Accepting something less in one state (Hawaii’s civil union) poses a threat to legal same sex marriage in other states.  It is a constant reminder that something less is okay.

‘Nuff said.

When Conservatives Implode: The McDonnell-Cuccinelli Death Cage Match

March 11th, 2010 No comments

Yesterday, I wrote about the events leading up to Virginia Governor Bob McDonnell’s capitulation on anti-gay discrimination. Here’s a one-sentence recap: First, McDonnell rescinds the Executive Order that protected gays and lesbians from job discrimination in state government; then, emboldened by this action, state attorney general Ken Cuccinelli thunders to the state’s universities that their similar anti-discrimination policies aren’t consistent with state law and “requests” that they be repealed; next, universities, perhaps sick of the fact that the state only notices them these days when they want to cut their already-paltry funding or when they feel like bossing them around, take umbrage; then, yesterday, more than 1,000 people — mostly VCU students — march against the homophobia in the state’s capital (Richmond).

So McDonnell’s people then draft a good document, called an Executive Directive, which creates no new rights but recognizes state and federal policy against anti-gay discrimination. Of course, there is no such statutory policy (either in Virginia or at the federal level), so the Directive speaks of the federal and state constitutional guarantees of equality. 1 More than that, the Directive contains rhetoric that I was both surprised and heartened to see from McDonnell, who is a quick enough study to have understood the political cost of shedding the sheep’s clothing of moderation that got him elected.

But the initial Executive Order showed that, in his heart, McDonnell is the same guy whose 1989 J.D. thesis paper at the Christian Regent University is a confused braid of Republican party swooning, unreconstructed theories of what makes a good family, and, of course, Christianist (not Christian) legal and social arguments.  Arguing for the Family Protection Act of 1981, he wrote glowingly of its:

“traditional family support measures, such as…a restraint of federal intervention with state statutes pertaining to chld abuse, a redefinition of abuse to exclude parental spanking, and a prohibition of funds for homosexual legal services and other anti-family activities. The Act incorporates sound principles of federalism and self-government, while refusing to acknowledge homosexuality…as acceptable behavior and actions.” (emphasis added)

Translation: “Federalism is good except when I don’t like the results. Homosexuality, bad.”

If McDonnell thought that the Virginia Statehouse was his last stop, he likely would have stood his ground. But he knows that ideas about higher office require him to tamp down his homo-hating tendencies, and he’s putting pragmatics over principle. Once the firestorm hit, he’d have taken a hit if, say,  Northrup Grumman decides not to headquarter in Virginia because of the state’s (and McDonnell’s) gay-bashing. Not the image that a pro-business conservative wants to cultivate. Note the order of those mentioned in the following statement McDonnell made to reporters in connection with this new Directive:

“It has caused too much fear and too much uncertainty in the business community and the higher-education establishment and among young people in the commonwealth — and I simply won’t stand for that.”

Translation: “Business comes first. But I’m also worried about turning off a whole generation of younger voters, who might not want me in the Oval Office if I’m seen as too anti-gay.” (As this story shows, even in Mississippi teens are siding with their gay classmates over authorities that would deny them basic equality. Here, a school district canceled a prom rather than allow a lesbian to bring her date.  Sigh.)

Of course, McDonnell is already paying a cost with the true believers. The nut-roots of what’s left of the Republican Party aren’t happy, and are setting up camp with Cuccinelli:

“Steve Waters, a Republican operative closely aligned with the party’s conservatives, said of the McDonnell statement:  ‘There is trouble in the Republican house when the attorney general seems to side with the grass roots of the Republican Party and the governor and lieutenant governor seem to be straying away.'”

Will this lead to legislation protecting against workplace discrimination based on sexual orientation? Don’t count on that happening any time soon, but at least this kind of kerfuffle moves that day a half-step closer.

  1. Quick note: The document states that discrimination based on sexual orientation must only have a “rational basis,” which is likely enoughprotection for job discrimination claims. But the Directive isn’t particularly helpful for more controversial issues like marriage equality,  where the best chance of success is in courts that hold sexual orientation to be a “suspect class” for equal protection purposes, thereby requiring that the state show a substantial justification for discrimination.

“Sleeping Giant” of Student Protests Awakes in VA — McDonnell (Sort of) Backs Down

March 10th, 2010 No comments

As regular readers of this blog know, I’ve been following the story of how the Virginia Governor, Bob McDonnell, and his Attorney General, Ken Cuccinelli, have been working overtime to set the clock back on anti-gay discrimination. First, McDonnell issued an Executive Order that conspicuously omitted “sexual orientation” from the list of classes that the Executive Branch wouldn’t discriminate against (the former two governors had expressly included the category). Then Cuccinelli took the unprecedented step of writing a needless letter to the state’s universities, informing them that their policies against sexual orientation discrimination were in violation of state law. I responded to the first story here, and the second here.)

I’ve been quite gratified by the response over the past couple of days. Yesterday, Taylor Reveley, the President of William and Mary (my alma mater), issued a pitch-perfect letter in response. After noting that the process of reviewing the AG’s letter had just begun, he went into high dudgeon:

For now, let’s be clear that William & Mary neither discriminates against people nor tolerates discrimination on our campus.  Those of us at W&M insist that members of our campus community be people of integrity who have both the capacity to meet their responsibilities to the university and the willingness to engage others with civility and respect.  We do not insist, however, that members of our community possess any other particular characteristics, whether denominated in race, religion, nationality, sex, gender, sexual orientation, gender identity or expression, or any other of the myriad personal characteristics that differentiate human beings.  We certainly do not discriminate against people on such grounds, or tolerate discrimination against them.  This is the way we live our lives together at William & Mary, because we believe this is the way we should live our lives together. This is not going to change (emphasis added).

Then, today’s Richmond Times-Dispatch reported on the protest against these changes by about 1,000 students at Virginia Commonwealth University. (Here’s a link to the accompanying video, which for some evil reason won’t embed.) I’ll confess that I felt somewhat vindicated after I’d gotten into an argument with another W&M alum over at the school newspaper’s website over whether people would actually care enough to protest. (As Marge Simpson once said when seeking confirmation that gloating was wrong: “See?”) Go, VCU!

McDonnell is now channeling one of those cartoon characters that retreats in a panic by running through a succession of doors, leaving cut-out imprints of himself in each ex-door. Just a few hours ago, he issued something called an “Executive Directive” — not the same thing as an “Executive Order”, although the differences between the two are obscure. But the Directive is pretty good, even if it seems to have opened up a fissure between McDonnell and Cuccinelli. From the Directive:

Employment discrimination of any kind will not be tolerated by this Administration. The Virginia Human Rights Act recognizes the unlawfulness of conduct that violates any Virginia or federal statute or regulation governing discrimination against certain enumerated classes of persons. The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited.

Consistent with state and federal law, and the Virginia and United States Constitutions, I hereby direct that the hiring, promotion, compensation, treatment, discipline, and termination of state employees shall be based on an individual’s job qualifications, merit and performance…. Any cabinet member, agency head, manager, supervisor or employee who discriminates against a state employee or prospective employee in violation of the law or this standard of conduct shall be subject to appropriate disciplinary action, ranging from reprimand to termination.

[C]ivility, fair treatment, and mutual respect shall be the standard of conduct expected in state employment.

McDonnell went as far as he could being true to his long-standing, social conservative convictions; convictions that he downplayed during his campaign. But when Cuccinelli’s letter caused people to take to the streets, the President of one of the state’s flagship schools to write a letter in opposition, and a Board member from another (George Mason) to declare the actions “reprehensible,” McDonnell realizes that what he’d unleashed might stand in the way of his political future, which is commonly thought to be extremely bright (and ambitious). So he’s backed down, bailed out, and run.

And really, I don’t care much about his reasons for doing so. I’m just warmed by the political heat that made this go away — at least for now. If the universities are wise, they’ll issue some generic statement in support of McDonnell’s Directive, declare that their anti-discrimination policies are in conformance with it, and essentially ignore Cuccinelli. And then figure out how to survive in a state that doesn’t financially support what they’re doing.

On the Brink of Hate Crimes Law Protecting the LGBT Community

October 27th, 2009 No comments

Tomorrow, President Obama is expected to sign the hate crimes bill (smuggled into an essential military spending measure) that will, at last, extend the reach of protection to those attacked and seriously wounded or killed because of gender, gender identity, sexual orientation, or disability.

Before I offer an opinion on the measure, it’s worth pausing for a moment at the imminent passage of the first significant piece of federal legislation enacted on behalf of the LGBT community. Whatever one’s belief about the value of this law as opposed to others in the pipeline (or not) designed to address the community’s needs, it’s appropriate here to pause and offer thanks and respect for the advocates who worked tirelessly for this, including, of course, Judy Shepard. Of course, this had better not be the only thing the Obama Administration does, but I’ll leave that alone for today.

I’ve likely spent more time thinking about the wisdom of hate crimes legislation than is healthy. For a long time, I had trouble with it; to an extent, I still do. There’s something to the argument that violent crimes are just violent crimes; that, by trying to dig more deeply into impermissible motives, the prosecutor runs the risk of punishing conduct the law didn’t intend to target, or, worse, targeting conduct because of its speech content rather than the serious physical consequences it produces.

Sometimes, those offering these arguments aren’t doing so in good faith — they oppose only this hate crimes bill, but not protecting victims of crimes committed because of race, religion, or national origin. Sorry, but given the prevalence of anti-queer (and I’m using the term advisedly here) violence, this is just a specious assertion: If anyone needs hate crimes protection, it’s the most outrageous gender “outlaws.” Even more “mainstream” gays are targeted at a rate that’s high even among despised groups. Worse, the LGBT community is the victim of a great number of the most serious cases.

Some, though, make the principled  conservative case against hate crimes law. Andrew Sullivan is prominent among these. (He’s addressed the issue on many occasions, but particularly persuasively, on what are really philosophical grounds,   here.) But I’m less concerned about the metaphysical basis of “hate” than he is. Instead, I look at the situation this way: What we (collectively) are saying in bumping up the penalty for a crime against a protected group is that: (1) Words can’t be punished in themselves, but when those words are linked to criminal action, they become something else; and (2) That “something else” is sufficiently upsetting to the community that we want to both stand with the victims and send a message to the those who might engage in similar behavior.

The trick, of course, is to use the words to prove a heightened degree of criminality. But the fact that we’re using words instead of some other indicator of intent shouldn’t be dispositive, unless one is willing to cling to the obvious fiction that we can never punish anything related to “words.” We punish fraud, defamation, and “fighting words,” to name a few. And words are routinely used to define crimes, and to establish motive and intent.

Once that’s out of the way, then we’re in familiar territory: Deciding how culpable particular acts are. And these are judgments we make all the time. Here is David Gibson:

“[T]he law is full of degrees of criminality. Premeditated murder is not viewed in the same way as a crime of passion, just as rape is treated as an especially heinous type of physical attack that is meant to degrade a victim, and so is deserving of appropriate penalties….

“[T]hese attacks can inflict [damage] on an entire community. Just as a serial rapist on the loose sows fear among all women (and their families) and curbs their freedom, so too a hate crime “is meant to terrorize a community, not solely to victimize an individual,” as Judy Shepard, the mother of Matthew Shepard, put it.

“If blacks or Jews or Latinos or Christians — or gays and lesbians — cannot live in a neighborhood or walk the streets without fear of attack, then that climate of fear inhibits the free and full functioning of individuals and society. Laws not only make penalties to inflict on perpetrators who violate societal norms, they also make a statement about what a society values.”

This is pretty good. It’s also, I think, an answer to the charge that hate crimes perpetuate the victimization of the named group. The better argument is that, properly implemented (but will they be?), these laws send the strong message that victimizing Group [N] isn’t tolerated. Over time, this signal can diminish the anti-gay (and other) violence it seeks to address.

I did say earlier that I’m not fully comfortable with hate crimes laws. Although I agree with the Supreme Court that any ‘chilling effect’ on constitutionally protected speech is so minimal as to be of little concern, I do have a concern about prosecutors and jurors becoming overzealous (but this is likelier, I’d bet, with crimes based on almost anything other than sexual orientation or gender identity.) And if there is this tendency to prosecute for political gain, then we can expect the scapegoats to be poor and uneducated people, especially those on the extreme margins, such as transgendered persons of color.

Thus, some radically left groups oppose hate crimes laws, too, and find unexpected common ground with the more conservative voices in the LGBT movement. Here is an especially strong statement of this critical position, expressed by the Sylvia Rivera Law Project in opposition to a proposed New York State bill that included hate crimes protection:

“Hate crime laws are an easy way for the government to act like it is on our communities’ side while continuing to discriminate against us. Liberal politicians and institutions can claim “anti-oppression” legitimacy and win points with communities affected by prejudice, while simultaneously using “sentencing enhancement” to justify building more prisons to lock us up in. Hate crime laws foreground a single accused individual as the “cause” of racism, homophobia, transphobia, misogyny, or any number of other oppressive prejudices.

“Anything that expands the power of a system that damages our communities so severely is against our long-term and short-term interests. Any legal weapon that’s created to make our justice system more harsh and punitive cannot be trusted in the hands of institutions that have shown their prejudices and corruption time and time again.”

Read the full Sullivan article against this letter, and find yourself asking whether the costs are worth whatever benefits might accrue. Reasonable people might disagree.

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.