The Bilerico Project

Undoing Griswold: Rick Santorum's America

Dr. Jillian T. Weiss — Fri, 17 Feb 2012 14:30:00 -0500

Foster Friess, a prominent backer of Republican presidential candidate Rick Santorum, raised eyebrows Thursday when he offered up his own idea for a possible contraceptive method: "This contraceptive thing, my gosh, it's so... inexpensive. Back in my days, they used Bayer aspirin for contraceptives."

Friess's implication is that if women hold aspirin between their legs, they won't open them.

"The gals put it between their knees, and it wasn't that costly," he told MSNBC's Andrea Mitchell.

This report, and the video that accompanied it, have been at the top of the news yesterday and today.

The last time that contraception was illegal in the United States was 1965, immediately prior to the United States Supreme Court decision in the case of Griswold v. Connecticut.

This case, which is studied by every law student, is the basis for the Constitutional principle that the Bill of Rights safeguards the right of privacy of the people, whether or not the specific details of that privacy are explicitly illustrated in the Bill of Rights. Griswold is the basis for, among others, Roe v. Wade, which declared that it cannot be made a crime for a woman to exercise a right of privacy over her body to make decisions regarding whether to give birth or have an abortion, Katz v. United States, which declared that government agents do not have a right to invade a person's privacy using electronic surveillance, even in a place open to the public, for purposes of charging them with a crime. and Lawrence v. Texas, which declared that it cannot be made a crime for a person to exercise a right of privacy over his or her intimate relationships to decide whether to engage in a relationship with a person of the same sex.

Rick Santorum, and a certain segment of the extreme right wing of the Republican Party, want to undo all that. It is worth re-reading the ringing words of Justice William O. Douglas, writing for the majority of the Supreme Court in the case of Griswold v. Connecticut, so that we understand and remember the nature of the freedoms we gained on a warm summer day in June, 1965, and so that we understand and remember what it would mean to lose those freedoms on a cold winter's day in January, 2013.

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GetEqual Hosts New York Event

Dr. Jillian T. Weiss — Thu, 16 Feb 2012 11:30:00 -0500

GetEQUAL's been busy lately, organizing actions across the country at marriage counters on Valentine's Day, protesting Dallas Mayor Mike Rawlings' refusal to sign the marriage equality pledge signed by over 100 mayors around the country, and protesting against hate at Republican debates, among other things. It has organized an event in New York City on Wednesday, March 7 (6-8pm) called "Owning Our Equality: The Past, Present, and Future of LGBT Direct Action."

I strongly believe that direct action has a role in the many issues facing our community, as a complement to other forms of advocacy, in issues like LGBT non-discrimination laws, inclusion in health care, and marriage equality. We saw last year how direct action made a difference in the fight to repeal Don't Ask, Don't Tell, an area that many said wasn't ready for equality. There's a lot more to do to get full equality, and GetEqual is on the forefront of the direct action part of our movement.

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Ninth Circuit Charts Its Own Course To Marriage Equality in Perry v. Brown

Dr. Jillian T. Weiss — Wed, 08 Feb 2012 12:00:00 -0500

The Ninth Circuit has ruled on Judge Walker's extremely well written opinion from 2010 in Perry v. Schwartznegger, striking down Prop 8, the California ballot initiative that amended the California Constitution to cut out the marriage equality that the California Supreme Court had found in its Constitution. (You can see my summary of Judge Walker's opinion here.)

The Ninth Circuit opinion, now called Perry v. Brown (because Gov. Brown is now the Governor of California), is as fascinating as Judge Walker's opinion, as much for what it leaves out as for what it says. First of all, it disposes of the silly argument that Judge Walker should have taken himself off the case because he's gay. Second, it lets the appeal go through even though the California Governor, the nominal defendant in the case, decided not to press the appeal.

But the really fascinating thing is that the Ninth Circuit redefined this case. They charted their own course, reinterpreted the facts and the law, and came up with a totally different explanation of why Prop 8 is unconstitutional. It's not about the constitutionality of same sex marriage. In fact, they go out of their way at the very beginning of the opinion to point out that they are not saying that same sex marriage must be granted under the Constitution. Wha? Aren't all the news media saying that the Ninth Circuit upheld the constitutional right to same sex marriage? Well yeah, but they're wrong. Since when have the news media understood the law?

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Supreme Court: Churches Don't Need To Follow The Law

Dr. Jillian T. Weiss — Thu, 12 Jan 2012 11:00:00 -0500

In a unanimous decision in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, handed down yesterday, the Supreme Court laid a wrecking ball to the First Amendment, placing a large shield around religious employers that violate workplace laws.

Cheryl Petich was employed by the Hosanna Tabor Evangelical Lutheran Church as a kindergarten teacher in Redford, Michigan in 1999. She did well, and was promoted to "called teacher," and the Church bestowed on her a certificate designating her a "commissioned minister." Her "religious duties," like leading prayers with the kids, consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects. Several years later, unfortunately, Ms. Petich fell ill, and was disabled.

Normally, when an employee goes out on disability, the law requires that, if his or her job is filled, it must be filled temporarily, so that the disabled person may return to work when their condition improves. There are limits to this job retention law, and it leaves employers sometimes questioning how long they must wait, but they have learned to accommodate it, and avoids the problems faced by people when they become temporarily disabled and then immediately lose their job and their health insurance at the worst possible time.

After being out for the 2004 fall term, Ms. Petich gave the school her doctor's note that she would be able to return to work on February 22, 2005. The school administrators, however, decided that, despite the doctor's determination, Ms. Petich was unlikely to be physically capable of returning to work that school year or the next. They asked her to resign. Ms. Petich, pointing to her doctor's note, said there was no need for her to resign.

Ms. Petich came to school on February 22, the first day she was medically cleared to do so, but the principal told her to leave the premises. The principal called her later that day and told her that she would likely be fired. Ms. Petich noted that she had spoken to an attorney, and intended to assert her legal rights. The outraged school board then brought up at a Church congregation meeting the issue of her intent to rely on the law, which they denounced as "insubordination and disruptive behavior," the congregation voted to strip her of her religious certification, and she was fired the next day.

When the Equal Employment Opportunity Commission came calling, after Ms. Petich had filed a claim for discrimination based on disability, the school said that Ms. Petich had not been fired because of her disability. No, they were fine with her disability. Rather, she had been fired because of religious law. Ms. Petich had violated the beliefs of their Church. What beliefs of the Hosassa-Tabor Evangelical Lutheran Church had Ms. Petich violated so flagrantly? Why, the belief of the Church that its members should never resort to the law to protect their rights against Church members.

No, I'm serious. The Church said that anyone who threatens litigation is violating God's law. Since Ms. Petich mentioned that she "planned to assert her legal rights," she had to be fired because she violated God's law. I mean, seriously?

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Planning for the Third Transgender Law Institute

Dr. Jillian T. Weiss — Tue, 10 Jan 2012 11:30:00 -0500

It seems like just yesterday that I volunteered to chair a planning committee in 2010 to create a Transgender Law Institute to be held at the National LGBT Bar Association Conference. And now, we've just started planning the third annual Transgender Law Institute, to be held at the National LGBT Bar Association, August 23-25, 2012 at the Washington Hilton Hotel in Washington, D.C.

To some extent, the Institute has now become an institution. I believe that institution-building for the trans community is the most important issue and most important challenge we face. To the extent and at the rate that we build institutions that can bring more prominence to the cause of trans rights, to that extent and at that rate we will overcome the prejudice and discrimination that plague us.

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Loved One

Dr. Jillian T. Weiss — Thu, 05 Jan 2012 10:00:00 -0500

I have been off the air the past few weeks, busy with what we in this degenerate age languidly call "caring for your loved ones."

My partner, S., is a very private person, and I will choose to keep her and private details mostly out of it. But I feel impelled and commanded to take a break from the political and speak of the personal before I can resume my usual discussions. Indeed, I am burning to vent the raw personal experience of caring for my partner through a surgical operation that involves impaired mobility and weeks of pain, spending long days at the hospital arguing with nurses, staying at her apartment and walking her dog, bringing her home afterwards and staying with her to help navigate the painful initial recovery, and broaching the difficult (yet undeniably like escaping from a caregiver's prison) separation when it comes time to get back to my own house and my own life.

Yes, it's true that the personal is the political, but in this instance, it feels entirely too personal to say or even think anything political about it, and, frankly, I'm not too entirely sure what I'm feeling.

Except to say that I believe this is what love is.

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Lesbian Wins Federal Employment Discrimination Case

Dr. Jillian T. Weiss — Tue, 13 Dec 2011 15:00:00 -0500

On the heels of the announcement of a stunning victory for trans employees in the United States Circuit Court of Appeals for the 11th Circuit comes news of a major six-figure settlement in the Shari Hutchinson case. The Ohio woman, a Support Officer for the Cuyahoga County Child Support Enforcement Agency, had significant private sector experience and an Executive MBA. However, after her co-workers and managers learned that Shari is lesbian, they spread false rumors about her and repeatedly passed her over for promotions that went to significantly less qualified applicants, including heterosexual candidates who did not even pass the required tests or comply with the Agency's application procedures.

Neither Ohio nor the city have any law prohibiting sexual orientation discrimination, so ordinarily, Ms. Hutchinson would have been out of luck. However, because she is a public employee, the constitutional guarantee of equal protection of the laws is applicable to her employer. This is similar to the tack taken by the lawyers for Vandy Beth Glenn, the trans employee who was found to be entitled to protection under the Equal Protection Clause by the 11th Circuit last week. However, while there is now a rather substantial body of precedent for the proposition that a trans employee, discriminated against due to their gender identity or gender expression, is entitled to protection based on the category of "sex discrimination," the courts have been much more reluctant to do so for gay and lesbian employees.

That is now, I am thankful to see, beginning to change.

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Georgia Trans Employee Wins for All the Right Reasons

Dr. Jillian T. Weiss — Thu, 08 Dec 2011 12:00:00 -0500

Two days ago, the United States Court of Appeals for the 11th Circuit handed a significant win to a transsexual employee in the case of Glenn v. Brumby. What makes this decision significant is not only that the 11th Circuit covers one of the most conservative parts of the country (Georgia, Alabama and Florida), but more significantly that it adopted the idea that discrimination against a trans employee is sex discrimination, under the federal sex discrimination statute, the third U.S. Court of Appeals to do so. (This case itself is premised on a different legal theory, but the decision specifically mentions the federal statute as comparable.) As the old saying goes, once is happenstance, twice is a coincidence, but three times is a pattern. The fact that three U.S. appeals courts have now ruled in favor of transgender employees is very, very significant.

Congratulations to plaintiff Vandy Beth Glenn, and kudos to Lambda Legal and to attorney Greg Nevins, who did an excellent job of shepherding this case through the 11th Circuit. This decision could be appealed to the U.S. Supreme Court, but some observers have suggested that this is not the type of case the Supreme Court is likely to take, nor one that employers would like to see in that Court, and I agree with those observations.

But what makes the Glenn appeals court decision particularly fascinating is how it subtly shifts the ground of decision away from a growing list of employer defenses like bathroom usage concerns and so-called "business necessity."

While I applauded the District Court's decision in this case, I was left with a number of concerns about how the decision was worded, as I explained in a post at the time.

The new decision alleviates my concerns, at least in the 11th Circuit.

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GL vs BT: Why We Aren't A Real LGBT Movement Yet

Dr. Jillian T. Weiss — Mon, 05 Dec 2011 12:00:00 -0500

Several years ago, I wrote an article entitled "GL versus BT: The Archaeology of Biphobia and Transphobia Within the U.S. Gay and Lesbian Community" for the Journal of Bisexuality's special 2003 issue called InterSEXions Of The Others. I was pleased to receive a call from the Journal noting that the article was one of the top downloads cited from their site, and requesting a reflective paper on how subsequent events have impacted the issues I discussed.

The original paper made the point that heterosexism against bisexuals and transgenders exists not only in the straight community but in the gay and lesbian community as well. Are 'biphobia' and 'transphobia' examples of 'phobias'--irrational fears? No, such heterosexist attitudes are all too rational, mirroring social tensions, which only appear to be an ahistorical psychological phenomenon. Rather, as the gay, lesbian, bisexual, transgender (GLBT) community developed, power relations arose which resulted in the four different groups (G/L/B/T), assigning them different social locations. Prejudice in gay and lesbian communities against bisexuals and transgenders is heterosexism because it is, among other things, an accommodationist attempt to discover these more 'radical' forms of sexuality.

This idea that the issue is one of power relations stands in contrast to other popular beliefs about the divide between gays and lesbians, on the one hand, and bisexuals and transgenders on the other, such as the idea that it is related to phobias, insufficient education, elitism, a smaller number of bisexual and transgender people, or that bisexual and transgender people are insufficiently politically active.

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Public Accommodations Law Misconceptions and Trans Rights

Dr. Jillian T. Weiss — Thu, 01 Dec 2011 13:00:00 -0500

There has been a lot of discussion over the past year in the trans community regarding the effect of "public accommodations" non-discrimination laws. The law professor in me is very happy to see that, as it shows that the trans community is becoming more and more educated about the law and how it can help or hurt us. At the same time, I think some misconceptions have crept into the discussion, and since I mentioned this issue in my last post, I thought it would be a good time to address it.

The context of this discussion is the introduction of state non-discrimination laws, most notably in Maryland last year and Massachusetts this year, which seek to include "gender identity" as a ground of non-discrimination. Skipping over the many important complexities, I will define it here as discrimination based on one's gender-related identity, appearance or behavior, regardless of sex at birth. This includes everyone, whether transgender or not.

Laws against discrimination have traditionally included many areas of public life, such as public accommodations, employment, housing, credit, etc. Non-discrimination in public accommodations was originally planned to be part of the bill in both Maryland and Massachusetts, but then was taken out. The Massachusetts bill was recently signed into law. It's my understanding that the Maryland bill, not passed last year, is set to be reintroduced with the public accommodations language in the new bill.

Trans activists expressed some concerns about the removal of the "public accommodations" protection. Public accommodations non-discrimination includes important areas of life, such as hotels, restaurants, gas stations, and federal and state hospitals and government offices. Some argue that public accommodations language would protect trans people from discrimination in the use of public lavatories. Further, it has been suggested that the removal of public accommodations language from a trans civil rights bill would give rise to an argument that trans people, regardless of gender identity, transition status or lived experience, are required to use a public lavatory of the sex assigned at birth in all places and situations, where restrooms are segregated into male and female spaces. That argument would state that the removal of public accommodations language shows a "legislative intent" to exclude trans people from restrooms of their gender identity. Judges might use such an argument against trans plaintiffs who complain about an improper exclusion or arrest in regard to public bathroom usage.

These are serious concerns to consider, but there are also some serious flaws in the legal reasoning. While reasonable people can differ, it is my opinion that failure to include public accommodations language in a trans civil rights law does not necessarily create a barrier to appropriate public restroom usage by trans people.

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Transgender Political Trends

Dr. Jillian T. Weiss — Mon, 28 Nov 2011 12:00:00 -0500

My reader and my inbox are stuffed full of the usual: a transgender rights bill, getting fired because of transition, trans children, another murder, questions about the legal status of a marriage involving a transsexual person, abstruse arguments of gender theory about spectra, continuua and polarity. These themes are as familiar to me as the back of my hand, a long line of memories from the dawn of my consciousness as a transsexual, when I began trolling the nascent internet twenty-something years ago for anything related to my esoteric and ineffable desire. To some extent it seems all the same, as if things are going nowhere fast on a furious merry-go-round, particularly when one compares the state of the trans polity to the gains made by our lesbian and gay community. And yet, much has changed, even if the themes are enduring.

The pointers are moving, but the meters are difficult to read. Trans issues are moving forwards and backwards on dozens of fronts, and there are multiple sides to every issue, with trans people on every side, as well as GLB and straight people espousing opinions right and left. And yet, there are trends, even if the multitudes of events are confusing. Bismarck famously said that "politics is the art of the possible," but the "possible" is often a moving target. It's possible that Newt Gingrich will be the Republican nominee, but that was unthinkable last month. What's "possible" for the trans community politically? Here's my top three "possibilities".

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Transgender Day of Remembrance 2011: Nothing to Say

Dr. Jillian T. Weiss — Sun, 20 Nov 2011 11:30:00 -0500

On the Transgender Day of Remembrance, I can find no fitting words of my own to say. Who's going to listen, anyway? I am too far from the days when I wanted to die, when people stopped to point and laugh at me on the street, when I lost my job and took anything I could find after months of joblessness threatened to put me on the street, when the need for human companionship led me down dangerous streets, when I felt the imminence of violence in the air. I only have the memory of fear.

I remember the gun leaning against the wall in the house of a man I had only recently met, and knowing that I would not live to see the morning.

Our dead come most often from our most marginalized and vulnerable populations, the economically disadvantaged, people of color, sex workers. The world takes little notice of their deaths, except to scoff.

We are not heard, and they know that no one will listen. When Duanna Johnson was beaten by that thug-like police officer in front of the cameras, punched her in the face as hard as he could with handcuffs across his knuckles, he knew in his soul that he could do it with impunity and he did. She later turned up dead. The jury couldn't agree on whether he'd done anything wrong. He later pled guilty and received only 24 months, and part of that was for tax evasion.

If the police, who are the protectors of our society, can do this, there is a lesson for the brutes of our world -- no one is listening to their cries. There are thousands of stories like this. What is there to say in the face of this? What soothing words can we pour forth to assuage our guilt? Did the Roman citizens complain about the people torn to pieces by lions as the crowds watched? They did not; what would have been the point? There is no one to hear us. There is no one to hear us.

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Changing Trans Employee Name and Gender In Corporate Records

Dr. Jillian T. Weiss — Mon, 14 Nov 2011 13:00:00 -0500

As an attorney and professor specializing in the employment issues of trans employees, I am often asked what organizations should do, when facing an employee transition, about records showing a different name and gender.

Certainly, the employee database, business cards, wall and desk placards, email and voicemail information should be updated with the new information. One problem, however, is it may not be possible to change all personnel and administrative records. If the employee has been with the organization for a long time, there are years of previous records, which would be burdensome to change. This can be a difficult administrative problem to address.

A less onerous suggestion is to change the company database to reflect the new name and gender prospectively for the future only. This could, however, result in a discrepancy in the future, causing inquiry and some distress to a transgender employee. Some thought should be given by the organization to which records in its particular system are most likely to pop up later on.

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New Equality MD Director Carrie Evans And Trans Rights

Dr. Jillian T. Weiss — Thu, 10 Nov 2011 13:00:00 -0500

The Washington Blade has a story about the appointment of Carrie Evans as the Executive Director of Equality Maryland.

After the debacle last year of the failure of both a marriage equality bill and a trans rights bill, and a divisive split in the trans community about whether to support or oppose the trans employment rights bill because it failed to include public accommodations, as well as the meltdown experienced by Equality Maryland afterwards, this story caught my eye.

I'm glad to see that Equality Maryland has found someone to lead, and Ms. Evans sounds like a competent leader. What will this mean for trans civil rights protections in Maryland?

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Why I'm Impressed By Jamie Clayton

Dr. Jillian T. Weiss — Mon, 07 Nov 2011 12:00:00 -0500

Jamie Clayton is an actor appearing in the popular HBO drama series "Hung." The show is about a male prostitute, and Clayton, who is openly trans, plays the role of a transsexual woman in the show seeking the main character's services. There are so many ways for this to go wrong, as I nervously opined over the summer when I first heard about Ms. Clayton's upcoming role.

But in her recent interview with The Insider about her role (h/t TransGriot), she shows that she is not only a pretty face, but understands how to position herself as an actor who happens to be trans to a wider community that often sees us in stereotypes.

This is no mean feat, made so much more tricky by the politics both inside and outside the community. She manages to stake her territory without falling into unthinking adoption of either mealy-mouthed or strident memes ("it shouldn't matter" or "there's so much prejudice"). At the same time, she manages to communicate both of these concepts with grace. They're both true, but wearisome, and said baldly they position one as either an elitist or playing the victim card. It takes a smart cookie to communicate such deep and complex issues in accessible, nonverbal ways, and perhaps that is the definition of acting.

Her interview is after the jump.

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