SB 49 Passes the Tennessee Senate

On May 20th, the Tennessee Senate passed Senate Bill 49, known in the media as the "Don't Say Gay Bill".  The bill would limit sexual education in Tennessee elementary and middle schools exclusively to heterosexuality.  

The bill was passed with an amendment ("Amendment 5") that altered the language from "heterosexuality" to "natural human reproduction science".  The new phrase was argued to be narrower, and would even further limit the scope of what could be taught, excluding such things as "artificial insemination".  

Previously:  "Notwithstanding any other law to the contrary, no public elementary or middle school shall provide any instruction or material that discusses sexual orientation other than heterosexuality."

As passed: "Notwithstanding any other law to the contrary, any instruction or materials made available or provided at or to a public elementary or middle school shall be limited exclusively to natural human reproduction science.  The provisions of this subdivision shall also apply to a group or organization that provides instruction in natural human reproduction science in public elementary or middle schools."

The new language (though vague) when combined with the legislature's expressed intent on its meaning, would exclude educational material mentioning transgender people as well as gay people.

My paraphrase: Strictly the biological facts.  Don't say gay.  Don't say transgender.
 

Senator Andy Berke from Chattanooga pointed out that sex education in elementary and middle schools not approved both by the state board of education and the local school board is currently a misdemeanor under a different law (Tennessee Statute 49-6-1005). He asked if SB 49 would inadvertently permit "age inappropriate" heterosexual sex education where this previous law had forbidden it.  Senator Stacey Campfield, the sponsor of SB 49, reassured him it wouldn't.  He said it would merely clarify what can be taught, when otherwise permitted by the state and local boards of education.

Other senators worried that the new language in Amendment 5 was so narrow it would unintentionally bar the teaching of abstinence and sexual ethics.  

Here is 49-6-1005:

(a) It is unlawful for any person in any manner to teach courses in sex education pertaining to homo sapiens in the public, elementary, junior high or high schools in this state unless the courses are approved by the state board of education and the local school board involved, and taught by qualified instructors as determined by the local school board involved. Any such course in sex education shall, in addition to teaching facts concerning human reproduction, hygiene and health concerns, include presentations encouraging abstinence from sexual intercourse during the teen and pre-teen years. With respect to sex education courses otherwise offered in accordance with the requirements of this subsection (a), no instructor shall be construed to be in violation of this section for answering in good faith any question, or series of questions, germane and material to the course, asked of the instructor and initiated by a student or students enrolled in the course.

(b) This section shall not apply to general high school courses in biology, physiology, health, physical education or home economics taught to classes. 

(c) A violation of this section is a Class C misdemeanor.

The page for SB 49 in the Tennessee Legislature's well-organized site, here.

Price Waterhouse v. Hopkins

Perhaps the most famous case in American transgender law--the US Supreme Court's sex stereotyping decision, Price Waterhouse v. Hopkins (in which, ironically, there are no transgender characters).

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Quotes from Ann Hopkins:

"Discrimination cases tend to get very personal, very fast."

"I offer advice reluctantly. That said, I suggested to most of the potential [discrimination case] litigants that they ask themselves: If I win, will the prize be worth the price? At what cost is litigation worth it? Is one more grade or step in the civil service hierarchy worth a year of life struggling through internal administrative processes and the EEOC? What’s the human cost in time lost to self, family, and career? Considered in the greater context of life, is this the hill to die on?"

(This quote neatly sums up the heavy personal cost of fighting discrimination in the courts and administrative tribunals.  For transgender people, however, I think the answer would be "yes", because our battle isn't for one higher civil service grade.  It's to be able to have a career at all--and a family, and a self.)

*          *          *          *

Price Waterhouse v. Hopkins, 490 US 228 (1989).

Summary: 

Hopkins was female.  Hopkins was a very successful manager at a large Accounting Firm.  For example, Hopkins got the State Department as a client for  the Accounting Firm--a $25 million dollar contract.  Clients, including people from the State Department, praised Hopkins' work, professionalism, and intellectual ability.  However, Hopkins could also be "hard to work with", "brusque", and "abrasive", in particular to staff.  The firm partners had told Hopkins that she needed to improve her interpersonal skills.  

Every year, managers in the firm from around the country would be nominated and evaluated for partnership.  One year, Hopkins was nominated, along with 88 other people from other offices.  None had a record of securing big contracts like Hopkins did. 

There was a process to follow: Partners in a local office would nominate a candidate.  All partners in Accounting Firm could then submit comments on the candidate.  If they knew the candidate well, they could submit their comments on a "long form".  If not, they could submit a "short form".  An "Admissions Committee" would evaluate the comments and then make a recommendation to a "Policy Board".  The Policy Board would then accept, deny, or put the candidacy on hold.

There was a lot of evidence that many partners weren't so much bothered by Hopkins' aggressive personality as by the fact that she was both aggressive and female.  Partners said she was "macho", that she "overcompensated for being a woman", and that she "needed to take a course at charm school".  One partner disliked that Hopkins swore, "because it's a lady using foul language".  Another partner said that Hopkins had "matured from a tough-talking somewhat masculine hard-nosed manager to an authoritative, formidable, but much more appealing lady partner candidate".  Another told Hopkins directly that if she wanted to make partner, she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry".

Hopkins' candidacy was "placed on hold".  The following year, her candidacy was not re-submitted.  Hopkins brought a lawsuit against Accounting Firm under Title VII of the Civil Rights Act of 1964, claiming discrimination on the basis of sex.  The District Court ruled in favor of Hopkins, holding that if Accounting Firm showed by "clear and convincing" evidence that it would have made the same decision regarding Hopkins' candidacy, in the absence of discriminatory motives, Hopkins would not be entitled to relief.  Appeals Court affirmed, upholding the clear and convincing standard.  The Supreme Court granted cert.    

Plurality Opinion: Affirmed in part; reversed in part.  Reversed on standard of proof required for employers to show they would have made the same employment decision in the absence of discriminatory motives.

Title VII of the Civil Rights Act of 1964 bars employment decisions (hiring, firing, compensation, etc.) made because of sex, race, religion, and national origin.

Accounting Firm says that in a sex discrimination case under Title VII, the plaintiff has to show that there was discrimination, and has to show that the employer would have made a different decision if the discrimination had not been present.  Hopkins argues that an employer violates Title VII whenever discrimination is present in the employment decision, even if it doesn't play a decisive role.

Accounting Firm's argument is that the statute requires plaintiff to show "but for" causation--but for the discrimination, the employment decision would have been different. That's not correct.  Title VII was meant to eliminate discrimination both when discrimination was the decisive cause and when it was part of a mix of legitimate and illegitimate causes.  Gender may not be taken into account at all when making employment decisions (except where it's a "bona fide occupational requirement").

In order to preserve employers' freedom to evaluate employees, however, the employer has an affirmative defense.  If the employer can show that it would still have made the same decision for other reasons, regardless of having also inappropriately taken gender into account, then the employer will not be liable.

Other cases are in line with this decision.  For example, in Dothard v. Rawlinson, 433 US 321 (1977), the Court "assumed" that it was the employer that must show why gender was a bona fide occupational requirement.  In a decision interpreting the Equal Pay Act (which allows different wages for employees when the pay difference is not based on sex) the Court held that it was the employer who had to show that the wage difference was not connected to their gender.

In a parallel interpretation of the National Labor Relations Act (NLRB v. Transportation Management Corp., 462 U.S. 393, 400 (1983)), the Court said: "The employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute.  It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing."

Sex discrimination under Title VII isn't the mere fact of being male or female.  It also includes stereotypes about one's sex:                                                                          

"We are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.  An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.  Title VII lifts women out of this bind."

Comments at work that show sex stereotyping aren't sufficient for relief.  Plaintiff has to show that the stereotyping was part of the decision-making by the employer.  Here, Hopkins did so--Accounting Firm asked partners to submit comments on forms as part of its process for accepting new partners, and some of the comments were based on sex stereotypes.

The standard of proof for the employer's defense, that it would have made the same decision anyway, should not be "clear and convincing".  It should be "preponderance of the evidence" (greater than fifty percent).  Usually in civil litigation, like in Title VII cases, where money damages or other conventional relief is sought, standard of proof is preponderance of the evidence.  Clear and convincing standard is more appropriate for circumstances in which "coercive action" is sought, such as termination of parental rights, involuntary commitment, deportation or denaturalization.

This case can be found on Google here.

Ann Hopkins' very well-written & fascinating personal account, here.

And a nice summary of the case, from Time magazine, here.

[I will include the concurring opinions soon.] 

Burnaby, B.C. Schools' Sexual Minority Policy

Burnaby, B.C. schools put together a new draft policy, called Policy #5.45, to make sure all sexual minorities feel safe and welcome in Burnaby schools.  The policy made a splash in the news after it aroused both the enthusiasm and support of some parents and the concern and opposition of others.  The policy has not been adopted yet.

The two most interesting, specific, and practical parts of the policy (to me) are:

1. Requiring schools to include, in student conduct codes, prohibitions on student use of denigrating language.  I assume it's already unthinkable to make prejudiced comments about other categories of people.  It was in my US high school in the 1980s, but comments demeaning sexual minorities were an ordinary part of daily speech.  My high school's current conduct code includes "sexual orientation".  It certainly didn't include sexual orientation when I attended.    

2. Appointing a staff person to be a safe contact for sexual minority students and making this known to the students.  The University of Winnipeg study showed that 1 in 4 sexual minority students has no safe person to talk to in their lives, inside or outside of school.  I didn't either, when I was in high school.  The NCTE's statistics on transgender life in education in the States were even more appalling.
  

My favorite part, from the definitions section:

"Heterosexism refers to the mistaken assumption that all people are heterosexual and that heterosexuality is superior and the norm by which all other sexual orientation and gender identities are measured."

I liked this sentence so much I put it at the top of this blog.        

Seventeenth Century Transgender People

I've been looking for seventeenth century transgender people--in Colonial America--because that refutes the view commonly held by most American conservatives that America in the past was a place of pristine heterosexuality, until the 1960s came along and ruined it all.

Transgender history is also fascinating.  

It's not so easy to find source material online.  Most of the information is from seventeenth century county court records, but I can't find whole, searchable versions of these on the Internet.  

I understand it's not wise to assume that every cross-dressing person who appears in historical records was necessarily transgender.  This writer carefully describes alternative reasons why people may have cross-dressed in the past.

I think historians may be underestimating the continuity of human character across time periods.  They may also be underestimating the power of prejudice to force people to channel their feelings into acceptable roles, and the elaborate separate realities of deceit that sexual minorities have often had to create to keep ourselves beyond suspicion.  

Was the real purpose of the Massachusetts law against cross dressing to "preserve order and the social hierarchy", as one historian suggests?  Maybe from bird's eye view of anthropology it was, but in the minds of the people who enacted it at the time, isn't it more likely that they were just trying to stop cross dressing?  

Here's what I found so far (all of it is from Massachusetts):

1. In Haverhill, in 1652, Joseph Davis was convicted of putting on women's clothes.  Bodies in Doubt, An American History of Intersex, by Elizabeth Reis.

The following came from another source (at this website):

"From the History of Haverhill, p. 54 [a modern book quoting seventeenth century court records]: 'Whereas it doth appear that Joseph Davis of Haverhill was presented for putting on women's apparel and going from house to house in the night time with a female and whereas the said parties being removed from Haverhill into this jurisdiction, and being apprehended and brought into the Court of Strawberry Bank; the said Joseph Davis is judged to pay a fine of eight shillings and is also to make public acknowledgment of his fault on a lecture day, before the next Court, in default of which he shall forfeit forty shillings more.'"

2. In 1677, Dorothy Hoyt was convicted of wearing men's clothes.  Bodies in Doubt.

Someone posted a fuller version, drawn from the Essex County Court records, here. Dorothy apparently fled the county after she was charged.  Her father went to court for her and said that she had repented.  The court wanted "40s" (shillings?) from her father on the spot, or they would have Dorothy apprehended and whipped.

3. Mary Henly was in the Middlesex County Court, in 1692 charged with wearing men's clothing.  Bodies in Doubt.

4. Massachusetts adopted an anti-cross dressing law in 1696.  Bodies in Doubt.  (What law did they charge them under before that?)

5. This isn't related to transgender people, but it's just too awesome not to include.  A 1642 sentence from the Essex County Court:

"Elizabeth Johnson, servant to Mr. Jos. Yonge, [is] to be severely whipped and fined 5 li. [pounds] for unseemly practices betwixt her and another maid; also, for stubbornness to her mistress answering rudely and unmannerly; and also for stopping her ears with her hands when the Word of God was read..." (from Outhistory.org) (My emphasis.)

Go Elizabeth!

Republican versus Republican

An article I read yesterday by a gay author expressed disgust toward the Log Cabin Republicans, belittled their (successful) lawsuit against DADT, and called them "irrelevant".  Anything but the mainstream Democratic Party-connected activist groups, the author sarcastically implied, was weird.  I think the opposite--that sexual minority Republicans are part of the cutting edge in the push for equality in this era and that the internal Republican versus Republican conflicts that have emerged (the people involved, the different character of Republican-Republican debates) are actually more fascinating (party labels being my shorthand both for actual party members and for like-minded people). Here's an example (by way of roundabout description):

New York recognizes same sex marriages from other jurisdictions (e.g., Massachusetts, Vermont, or Ontario), but doesn't have same sex marriage itself.

A marriage equality bill failed last year in the New York legislature. A marriage equality bill was re-introduced into the New York Assembly, on May 10th.

Section 1 of the bill, setting out the "legislative intent", is the most interesting part:

"Marriage is a fundamental human right. Same-sex couples and their children should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage. Stable family relationships help build a stronger society. For the welfare of the community and in fairness to all New Yorkers, this act formally recognizes otherwise-valid marriages without regard to whether the parties are of the same or different sex."

The bill can be seen in its entirety here. 

Groups working for marriage equality (such as Human Rights Campaign and Log Cabin Republicans) have formed a coalition called New Yorkers United for Marriage. According to a New York Times article, 2/3 of the coalition's funds have come from Republican donors.

The donors' arguments were that equality is a matter of "social justice", a right that government should not be interfering in, and also that it would be good for the New York economy by making New York more business friendly.

Advocate.com says New Yorkers United for Marriage sent out a mailer last week:

"The mailer features a [picture of] Nassau County couple, Paul and Iris Blumenthal, who want to see their son Jonathan marry.  'We’d love to invite you to our son’s wedding,' reads the mailer. 'Sadly, he’s not allowed to get married.'"

Apparently, the biggest organization opposing marriage equality is National Organization for Marriage (presumably all Republicans).  Some interesting things from NOM's web site: 

1. NOM wants people to send e-postcards to their congresspeople asking them to support a House resolution condemning the Obama administration's decision to stop defending DOMA in federal court.  

2. NOM "praises" the recent motions filed in Perry v. Brown (the federal lawsuit seeking to overturn California's Proposition 8 and to find a federal constitutional right to same sex marriage, fka Perry v. Schwarzenegger) requesting that the decision be vacated because the judge who presided over the trial, Vaughn Walker, did not disclose that he has been in a same sex relationship for the last ten years.

3. NOM says in its "talking points" section, that "extensive and repeated polling" has shown that the most effective, one line argument against same sex marriage, is, "Gays and lesbians have a right to live as they choose.  They don't have a right to redefine marriage for all of us."

So, there's the roundabout description, but the main point is, as of this week, in New York, it's wealthy Republican donors financing a marriage equality campaign, contending against a large national activist organization, also Republicans, that fights marriage equality.   

In the Matter of Jose Mauricio Lovo-Lara

A DOMA transgender immigration law decision.  Nice case, but it gives me survivor's guilt.

What would the result have been had it been a Texas couple (with Littleton v. Prange hovering about in Texas case law) rather than a North Carolina couple?

(Note: This is an administrative agency decision from the "Board of Immigration Appeals". The BIA reviews decisions by immigration judges, etc. Appeal from here is to the area federal district court or the area federal appeals court.  In the citation, "I&N Dec." means "Immigration and Naturalization Decision".)

In the Matter of Jose Mauricio Lovo-Lara, 23 I&N Dec. 746 (BIA 2005).

Summary: U.S. citizen ("Citizen") was a post-operative male to female transsexual. Citizen married a man from El Salvador ("Salvadoran") in North Carolina.  Citizen applied for a visa for Salvadoran, based on the fact that Citizen and Salvadoran were married. Along with the visa application, Citizen submitted other documents.  These were a North Carolina birth certificate saying Citizen was female, an affidavit from a doctor saying that Citizen had had sex change surgery, a North Carolina state court order changing Citizen's name, the North Carolina "Register of Deeds" record showing that Citizen and Salvadoran had married, and a North Carolina driver's license showing Citizen's new name, and listing her sex as female.  The immigration office said that (1) both Citizen and Salvadoran were born male; (2) Congress has not recognized marriages involving transgender people; and (3) DOMA requires "marriage" to be interpreted under immigration law as being only between a man and a woman; so (4) Citizen's application for a spousal visa was based on an unrecognized same sex marriage. The application was therefore denied.  Citizen appealed.

Decision: Visa application approved.  

I.  Citizen and Salvadoran's marriage was valid under North Carolina law.  North Carolina does not permit same-sex marriages, but it does permit altering birth certificates to reflect changes of sex (if you submitted an affidavit from a doctor), which North Carolina did here, and recorded the marriage, as well.  

II.  DOMA doesn't address post-operative transsexuals, so BIA must "look to the rules of statutory construction":  Plain language of statute bars same sex marriages.  Legislative history of DOMA indicates it was passed in response to the possibility of same sex marriages becoming legal in Hawaii.  Legislative history of DOMA indicates it was passed only with concern about marriages between homosexuals, not marriages involving transsexuals.  Legislative history frequently mentions "homosexuals", and uses that word interchangeably with "same sex".  Legislative history does not indicate that Congress mentioned MT v. JT, 355 A2d 204, a New Jersey case from 1976 recognizing transsexual marriage.  Congress did not mention, in legislative history of DOMA, state statutes that existed at the time DOMA was passed that allowed for "legal recognition of changes of sex".  Legislative history also contains sentence that says, "Prior to the Hawaii lawsuit, no State has ever permitted homosexual couples to marry", despite existence of MT v. JT, and despite existence of trans-marriage favorable statutes.  Therefore reasonable to conclude that with DOMA, Congress only intended to invalidate marriages between homosexuals (for purposes of federal law), not transgender marriages considered heterosexual marriages under state law.  Also, except for DOMA's narrow exception, marriage continues "exclusively" to be a state law matter.  Therefore, state determinations of marital status must continue to be deferred to, and it's the wrong approach to say that Congress must legislate on transsexual marriage before it can be recognized, if North Carolina recognizes it.      

III.  Opposing counsel argued that meaning of "man" and "woman" under DOMA should be defined by chromosomes and assigned sex at birth.  However, chromosomes are not necessarily controlling because (1) "medical experts" say there are actually "eight criteria" for determining male and female (chromosomes, gonads, internal sex organs, external sex organs, hormones, secondary sex characteristics, assigned sex and gender reared as, and sexual identity); and (2) the chromosomes of intersex people may not match their sex.  Assigned sex at birth is not controlling because it may (for example at puberty) prove later to be wrong.

This case is on the Justice Department's web site, here.  

University of Winnipeg Study

Researchers at the University of Winnipeg published the results of a comprehensive study (three years long, nationwide, several thousand kids) of the social environment in schools for sexual minority youth.  

The study's authors say it far better than I can.  What they describe sounds exactly like my own experience in a US high school in the 1980s.  (Nothing's changed in 25 years.) Two things in particular stood out:

1. "One in four [LGBT] students said they could not talk to one person in their lives about LGBTQ issues, period, let alone confide that they are LGBTQ themselves."  (Emphasis mine.)

2. "Apart from the personal attack targeting particular LGBTQ students or students perceived to be LGBTQ, there’s the generalized kind. We found what you might expect—students hear “that’s gay” and “faggot” and “lezbo” every day at school, mostly from other students. It’s the air they breathe, the sea of language they swim in. Most students go along with it—some of the LGBTQ students even use this language sometimes, and not in a fun way. The vast majority of LGBTQ students find it upsetting, as you might expect. It’s not just the one-shot, offhand “that sweater’s gay!” that produces this level of distress. It’s the day-in, day-out saturation of school culture with such language that undermines the spirits of LGBTQ kids. It’s hearing a word that applies to a core aspect of your identity used as a synonym for “stupid” 50 times a day. As educators, sometimes we tell ourselves, “It’s not serious. Kids don’t even mean homosexual. They just mean stupid.” “Just” stupid? How would we like hearing “teacher” or “parent” used as a synonym for “stupid” 50 times a day."  (Emphasis mine again.)

See for yourself, here.  

Reference Post: Transgender Discrimination Statistics

On February 4, 2011, the National Center for Transgender Equality and the National Gay and Lesbian Task Force issued a report on discrimination against transgender people in the United States.  They issued a full report, and a summary of the full report.  The report was called "Injustice at Every Turn".

Report based on survey question answers from 6,450 transgender people, from all 50 states, D.C., Puerto Rico, Guam, and Virgin Islands.

Useful statistics for advocacy letters, etc. (the numbers and most of the language is drawn directly from the summary):

Kindergarten to 12th grade education:
1. 78% of transgender respondents reported some form of harassment for being transgender.
2. 35% were physically assaulted.
3. 12% were sexually assaulted.
4. 15% left school because of harassment.

Employment:
1. 90% of transgender respondents reported harassment, discrimination, or mistreatment at work.
2. 47% reported being fired, not hired, or denied a promotion.
3. 26% lost their job.
4. 71% hid their gender transition to avoid discrimination.
5. 57% delayed their transition.
6. 16% compelled to do illegal work, such as prostitution or selling drugs.

Housing:
1. 19% of transgender respondents refused a home or apartment.
2. 11% evicted.
3. 19% experienced homelessness at some point.
4. 2% currently homeless (double national rate of 1%)
5. Among those seeking access to a homeless shelter, 55% harassed by shelter staff or residents, 29% turned away, and 22% sexually assaulted by residents or staff.

Public Accomodations (hotels, restaurants, airports, government agencies, etc.):
1. 53% of transgender respondents harassed.
2. 22% denied equal treatment by a government agency.
3. 29% harassed by police.

Health Care:
1. 19% of transgender respondents refused medical care.
2. 50% had to teach doctors about transgender care.
3. Rate of HIV infection is quadruple national average.
3. 28% postponed medical care to avoid discrimination.
4. 48% couldn't afford medical care.

Family:
1. 57% of transgender respondents experienced family rejection.

Impact of Family Rejection:
1. A. Accepting families: 9% of transgender respondents from accepting families experienced homelessness.
    B. Rejecting families: 26% experienced homelessness.

2. A. Accepting families: 11% had been incarcerated.
    B. Rejecting families: 19% had been incarcerated.

3. A. Accepting families: 11% did sex work (or other illegal work).
    B. Rejecting families: 19% did sex work.

4. A. Accepting families: 32% attempted suicide.
    B. Rejecting families: 51% had attempted suicide.

5. A. Accepting families: 27% smoke.
    B. Rejecting families: 32% smoke.

6. A. Accepting families: 19% used alcohol or drugs to cope with mistreatment.
    B. Rejecting families: 32% used alcohol or drugs to cope with mistreatment.

The summary also has encouraging statistics on the resilience of transgender people--how they pursued employment, education, and hormone therapy in spite of the barriers.

Challenged Books

The American Library Association has a lot of interesting information on its web pages about "challenged" books.

The information on their site that is significant for sexual minorities:

The most "challenged" book (i.e., someone wanted it removed from the school or library) of 2010 was And Tango Makes Three, the children's book about two male penguins raising a baby chick. This book was published in 2005 and was also the most challenged book of 2006, 2007, and 2008. In 2009 it was second on the list. The book was the fourth most challenged book between 2000 and 2009.

The ALA says a challenge "is defined as a formal, written complaint, filed with a library or school requesting that materials be removed because of content or appropriateness". They also "estimate that for every reported challenge, four or five go unreported".

Books with sexual minority content made the "top ten" list of challenged books every year since 2002. A book with sexual minority content was also in the number one spot in 2005. Between 1990 and 2010, there were 892 challenges based on books with "homosexual" content. Presumably that category includes books with transgender content as well.

The number of challenges is far lower than I would have guessed (even when you account for unreported challenges), given a population of about 250 million in 1990, and 310 million in 2010.

Daddy's Roommate was the second most challenged book of the 1990s. Heather Has Two Mommies was the ninth. Both of these children's books figured prominently in a controversy in New York City in 1993. New York City, under a recently-hired school official named Joseph Fernandez, had developed a multicultural curriculum which included sexual minorities, called Children of the Rainbow. The curriculum ended up not being implemented after a conservative school district revolted, and other conservative school districts, emboldened by the first, revolted as well.

Defending Marriage, Respecting Marriage

DOMA, the federal Defense of Marriage Act, which affects both gay and transgender people, has been the biggest sexual minority news story from the United States in the past week, because of drama surrounding lawsuits challenging it.

A summary of the events:

1. DOMA is under attack from multiple lawsuits around the United States.

2. The Justice Department traditionally defends legal challenges to federal laws.  (I don't understand this.)  However, the Justice Department decided no longer to defend DOMA, leaving it up to the House of Representatives to hire an independent law firm to do so, which it did.  (I don't understand this, either.)

3. The House of Representatives hired King & Spalding, an old and venerated law firm, to defend DOMA.  Human Rights Campaign, the largest sexual minority advocacy organization in the United States, then contacted King & Spalding's other clients, informing them that King & Spalding were defending a law that denied civil rights to millions of people.

4. King & Spalding felt pressured to drop the House of Representatives as a client, but King & Spalding's lawyer decided that he was required by legal ethical rules to maintain representation, in spite of his law firm's decision to withdraw, so he stayed on as the lawyer defending DOMA, but moved to another law firm.

5. The lawyer was hailed by the media as an ethical hero, and HRC was demonized as a bully engaged in unfair play.  The situation spawned hundreds of news articles and opinion pieces about the nature of lawyering, the importance of respecting the legal process, and the necessity of having lawyers defend unpopular clients.

DOMA was passed in 1996 when same sex marriage seemed imminent in Hawaii. It has three sections. Section I just says what its name is. Section II says that states aren't required to recognize same-sex marriages from other states. Section III says that the federal government does not recognize same-sex marriages.

Section II tracks the language of the Full Faith and Credit Clause of the Constitution. Most of the legal challenges seem to focus on Section III.  

Section III means that whenever marriage matters for federal law (taxes, immigration, public benefits), a same-sex spouse (in a marriage valid under state law) is treated as not married, even though (1) marriage had formerly always been a state law issue, and (2) the federal government had previously always deferred to state determinations of marital status.

A cleaned-up, more readable version of DOMA (with unnecessary punctuation, section numbers, etc., deleted):

The Defense of Marriage Act

SECTION 1

This Act may be cited as the ‘‘Defense of Marriage Act’’.

SECTION 2

The United States Code is amended by adding the following:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

SECTION 3

The United States Code is amended by adding the following:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

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Currently there is a bill before Congress called the Respect for Marriage Act, which would repeal DOMA. The important part:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

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Some of the fact situations that have become the bases of current lawsuits against DOMA: 

1. A federal agency denied federal health insurance coverage to homosexual spouses of employees that were available to spouses of heterosexual employees.  

2. A surviving spouse of a former congressman was denied federal government pension benefits available to surviving heterosexual spouses. 

3. A married couple was unable to select a married category ("married filing jointly") on their federal tax form that would have significantly lowered their tax payments, and was available to heterosexual married couples.  

4. A surviving spouse was forced to pay $350,000 federal inheritance tax on property inherited from spouse who had passed away, that she wouldn't have had to pay had their marriage been heterosexual.

One Eleven Wines & Liquors v. Division of Alcoholic Beverages Control

A New Jersey case from 1967, in which the New Jersey Supreme Court reverses a lower court ruling upholding the suspension and revocation of  the liquor licenses of three bars for allowing gay people to congregate in them.  The Mattachine Society, an early gay rights organization in the United States, is listed as having filed a "friend of the court" brief.

Sexual minorities still have a long way to go, but as this case shows, we really have come a long way.

(Relevant note: New Jersey's consensual sodomy law was apparently repealed in 1978.)

One Eleven Wines & Liquors, Inc. v. Div. Alcoholic Bev. Control, 235 A.2d 12 (N.J. 1967)

Summary:  When prohibition ended with the adoption of the 21st Amendment in 1933, New Jersey created the Division of Alcoholic Beverage Control (the "Department"), a state agency for regulating the sale of alcohol in New Jersey.  Department's authority included issuing licenses to bars allowing them to sell alcohol.  In 1934, Department adopted Rules 4 and 5.  Rule 4 said bars were not allowed to let in "any known criminals, gangsters, racketeers, pick-pockets, swindlers, confidence men, prostitutes, female impersonators, or other persons of ill repute".  Rule 5 said bars should not allow themselves to become "nuisances", by letting brawls, noise, or "lewd", "indecent" or "immoral activities" happen in them, including "obscene language and conduct".

Prior to 1954, the Department had suspended or revoked the licenses of bars where homosexuals gathered under Rule 4.  Investigators would be sent to bars to gather evidence, apparently stretching the meaning of "female impersonator" in Rule 4 to include "effeminate behavior".  In one case, the Department wrote in its decision, among other things, that the "presence of female impersonators in and upon licensed premises presents a definite social problem", and "the mere thought of such perverts is repugnant to the normal person".

From 1954, the Department started bringing proceedings under Rule 5--not under the "immoral conduct" language of Rule 5, but, under its "nuisance" language--for allowing gay people to congregate them.  The Department said it would not allow its licensees to become "havens for deviates".  In one case, a licensee introduced expert testimony that homosexuality was not contagious, but the bar's license was still suspended.

In this case, the Department brought separate proceedings under the "nuisance" language of Rule 5 against three bars--One Eleven, Murphy's and Val's.

In the One Eleven case, an investigator gave the following account of what he observed:
"They were conversing and some of them in a lisping tone of voice, and during certain parts of their conversations they used limp-wrist movements to each other. One man would stick his tongue out at another and they would laugh and they would giggle. They were very, very chummy and close. When they drank their drinks, they extended their pinkies in a very dainty manner. They took short sips from their straws; took them quite a long time to finish their drink.  They were very, very endearing to one another, very, very delicate to each other.  They looked in each other's eyes when they conversed. They spoke in low tones like an effeminate male. When walking, getting up from the stools, they very politely excused each other, hold on to the arm and swish and sway down to the other end of the bar and come back.  Their actions and mannerisms and demeanor appeared to me to be males impersonating females, they appeared to be homosexuals commonly known as queers, fags, fruits and other names."

In the Val's Bar case, the investigators reported that the patrons were "normally dressed", and showed "good behavior".  An expert witness called by Val's in its case said that non-homosexuals would not be harmed by being in the presence of homosexuals and if homosexuals did not have a place to get together, they'd be forced into "clandestine, unregulated" places.

The lower courts affirmed the Department's decision to suspend or revoke the licenses of the three bars.  The bars appealed.  The Supreme Court combined the cases into a single decision.

Holding: Reversed.  Homosexuals have the right to congregate in public places, so long as they don't otherwise engage in offensive sexual conduct.  Other state court cases have held that the mere gathering, or congregation of homosexuals, in the absence of evidence of "lewd" conduct, is insufficient to suspend or revoke a bar's license, even holding that a statute aimed at preventing homosexuals from assembling was unconstitutional.  The lower court said it was concerned with the bar's violation of Rule 5, not the right of its patrons to congregate, but the two issues are "intertwined".  The bars have standing to assert the rights of their patrons, so that the court's decision can adequately address the entire issue.  Department's evidence was inadequate to support argument that gay bars would harm non-gay people.  Also, its argument that "offensive conduct" by gays inside gay bars would cause non-gay people to be violent towards them ignores the fact that it's the bar's responsibility to keep its premises orderly, and its argument that allowing gay bars would bring disrepute on the liquor industry, respect for which Department has been striving to increase, ignores the social trend toward greater acceptance of homosexuality.

The Department can adopt "lesser" regulations that do not "impair the rights" of "well-behaved homosexuals" to congregate.

Concurring Opinion: Agree that "well-behaved homosexuals" cannot be forbidden to patronize bars, but there was evidence in the One Eleven and Murphy cases that men were kissing each other on the lips, and this would have been sufficient if the bars had been charged with permitting "lewd" or "immoral" conduct, rather than just "nuisance".

This case is on Google, here.

Sexual Minority History Bill

While the Tennessee legislature has been moving in the direction of banning all mention of homosexuality in its primary and middle schools, the California legislature has been moving in the opposite direction. The most talked about part of California Senate Bill 48 would require teaching the historical contributions of sexual minorities:

"Instruction in social sciences shall include the early history of California and a study of the role and contributions of ... lesbian, gay, bisexual, and transgender Americans ... to the economic, political, and social development of California and the United States of America, with the particular emphasis on portraying [their] role ... in contemporary society."

Other parts of the bill would require that schools not sponsor activities nor adopt teaching material that portray sexual minorities in a negative light.

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There are several YouTube videos of the hearing in which the public was invited to give their opinion of the bill.  In one of the videos, an articulate, pleasantly-dressed, and sincere young woman gives a brief speech describing her experience of having cross-gender feelings from a very early age and homosexual feelings at the beginning of puberty, but upon her conversion to a religious faith at the age of 15, her transformation into a heterosexual with a female gender identity.  She argues that if Senate Bill 48 became law, transgender children would be less likely to find out that being transgender is a lifestyle they can escape from, as she did.  This video is being passed around anti-gay and anti-transgender web sites.

A Google search turns up a web site maintained by this woman, with a video she has put up of her life story, and another of her appearance on a religion-themed talk show.  On these videos, she reveals that her mother miscarried a boy child before she was born, that her parents had always desperately wanted a male child, and that they exerted intense unspoken pressure on her to be male throughout her early childhood.  She includes none of this information in the video of her testimony before the California legislature.

Because it appears that her cross-gender feelings originated with her parents' desire for a boy instead of originating within her, the complete version of her life story--far from demonstrating that transsexuality and homosexuality are choices--looks more like evidence that gender identity and sexual orientation are immutable: They tried to impose a male identity on her.  It failed.

California legislature's bill search page: http://www.leginfo.ca.gov/bilinfo.html

Enriquez v. West Jersey Health Systems

This New Jersey Superior Court decision has two parts.  The more interesting part is the holding that discrimination against transgender people is discrimination based on stereotypes about how one or the other sex should act.

The unwholesome part is the holding that "gender dysphoria" is a disability under New Jersey's anti-discrimination law, no matter how broad minded that statute and its interpreting case law were intended to be.  Being transgender is not a disorder; it shouldn't have a special name; it shouldn't be in the American Psychiatric Association's diagnostic manual; and it shouldn't be appearing in New Jersey case law as anything but an ordinary way of being human.  

Enriquez v. West Jersey Health Systems, 777 A.2d 365 (New Jersey Superior Court 2001).

Summary: Doctor was born male.  Hospital hired Doctor to be the director of its outpatient facility. Doctor and Hospital signed a contract, which either party could terminate with 90 days notice. About a year later, Doctor began to transition from male to female. Three Hospital Executives confronted Doctor regarding their discomfort over his changing appearance. One Hospital Executive demanded Doctor resume previous male appearance. Doctor was diagnosed with gender identity disorder. Hospital gave Doctor ninety-day notice of termination, saying that outpatient facility was going to be under control of Other Corporate Group, and that Doctor would be contacted about signing a new contract with Other Corporate Group. Other staff all became employees of Other Corporate Group. Doctor contacted Hospital Executive about signing a new contract, but was given mixed signals. Hospital Executive said, "No one is going to sign a contract with you unless you stop this business that you're doing", but also said that he, Hospital Executive, would "try to work things out". Shortly thereafter, Hospital Executive gave Doctor a termination letter. Doctor had sex change operation and changed her name. Doctor brought lawsuit against Hospital for (1) disability discrimination, and (2) gender discrimination, both under New Jersey's Law Against Discrimination (LAD). Hospital moved for summary judgment to dismiss disability discrimination claim. Trial court granted motion, holding that transsexualism is not a disability under LAD. Hospital moved for summary judgment again, on the gender discrimination claim. Trial court again granted the motion, holding that LAD doesn't protect transsexuals. Doctor appealed.

Holding: Reversed and remanded to trial court.

(1) Discrimination against people with "gender dysphoria" under LAD is impermissible discrimination on the basis of a disability. LAD requires (a) a mental disability (b) that prevents normal use of bodily or mental functions, or (c) is provable by "accepted diagnostic techniques". Gender dysphoria is a "mental disorder". The recognition of gender dysphoria in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders is proof that it can be "diagnosed by accepted clinical techniques". (LAD does permit discrimination against people with disabilities if the disabilities render them "reasonably" unable to do their jobs. Here, gender dysphoria did not interfere with Doctor's job performance.) Under LAD, the disability need not be severe. LAD proscribes discrimination "against those suffering from any disability".  LAD, unlike anti-discrimination laws in other states, does not require that a disability restrict "major life activities". LAD also recognizes obesity, alcoholism, and substance abuse as disabilities.  [Court also says there must be proof of distress, in order to meet "mental disability" element of statute.]

(2) Discrimination against transgender people is sex stereotyping, and is discrimination on the basis of sex under LAD.

     (a) LAD bars sex discrimination. Title VII of the federal Civil Rights Act of 1964 also bars sex discrimination. The US Supreme Court at first interpreted "sex" (in Title VII) only to mean discrimination based on the fact of being male or female, and did not include discrimination based on stereotypes. However, in 1988, in a case significant for transgender law, the U.S. Supreme Court decided in Price Waterhouse v. Hopkins, that sex discrimination includes sex stereotyping. LAD should be interpreted that way, too.  (In Price Waterhouse, a woman was denied partnership in a large accounting firm because she didn't act in a way other partners regarded as feminine.)

     (b) Other state courts are split on whether sex discrimination includes transgender people, under their own anti-discrimination statutes. One court said discrimination against transgender people is impermissible sex discrimination because it is like discrimination on the basis of secondary sexual characteristics.  Those cases holding that transgender people are included are more persuasive.

     (c) There are previous New Jersey court decisions on sex stereotyping. In Zalewski v. Overlook Hospital, 692 A.2d 131, the court found sex discrimination when a group of heterosexual males harassed another heterosexual male for not being masculine enough. In MT v. JT, 355 A.2d 204, the court wrote that sex included the idea of gender, and that gender was broader than anatomical sex.  These cases point in the direction of interpreting "sex" to include sex stereotyping. 


This case is on Google here.     

Don't Say Gay: Tennessee Senate Bill 49

A Tennessee state senator has introduced a bill into the Tennessee legislature, that would bar, in Tennessee schools, teaching or teaching material that mentions homosexuality. The media is calling it the Don't Say Gay Bill.  Here is the text of the bill:    

"1. The general assembly recognizes the sensitivity of particular subjects that are best explained and discussed in the home.  Human sexuality is a complex subject with societal, scientific, psychological, and historical implications; those implications are best understood by children with sufficient maturity to grasp their complexity.

2. Notwithstanding any other law to the contrary, no public elementary or middle school shall provide any instruction or material that discusses sexual orientation other than heterosexuality."

Time Magazine reports that when this same senator was a member of the Tennessee House  of Representatives, he "pushed this bill for six years".

(The bill number is Tennessee Senate Bill 49 and House Bill 229.  This is the Tennessee Legislature's bill search page.)