Wednesday, May 27, 2009

Prop 8 - The End?

When I first addressed this subject I thought the California constitutional challenge would be pretty much a slam-dunk. Prop 8 proposed to alter a California constitutional fundamental right (to marry) aimed solely against a despised minority recognized as a suspect class (gay people) and thus would constitute a 'revision' rather than a mere 'amendment' and as such could not be accomplished by a mere majority vote of the general electorate, right?

Well, not so quick. I should have known better. I am, after all, a lawyer, and I've seen just how mendacious the courts can be. It never occurred to me the California Supreme Court would be this mendacious.

I mean, I've seen some fancy judicial footwork before. We all have. Remember Bush v. Gore? Author: Tony Scalia. Need I say more? But at least that Court (U.S. Supreme) split 5 to 4. Yesterday, the California Supreme Court went 6:1 to hold that Prop 8 really didn't reduce gay people to second-class citizens. They still have civil unions, right? Hey, that's pretty much the same thing as marriage, so if we don't allow gays to 'marry' what's the big deal? Where's the harm? It is, after all, just a word. No kidding - that's what they said.

To put it in scholarly legal context, the California Supreme Court handed-down its own version of Plessy v. Ferguson. That's the 1898 U.S. Supreme Court case that upheld segregated schools because they're "separate but equal."

Top add insult to injury, the six justices (how dare they call themselves that!) collectively wrote 150 pages of pure garbage. We, the taxpayers, have to pay for that. It's tough reading, not because it's too wordy or the insights require too fine a juridical mind to comprehend, but because it's just so much garbage that reading it is a guaranteed headache.

Only one California Justice got it right. Carlos Moreno was the only dissenter, the only one of seven to tell the world plainly that the emperor has no clothes. Read his 25 page dissent. He says it all. And it's easy reading - because it makes sense. The majority opinion does not. That's why it's so hard to read. They have to dress up all their bullshit in fancy language so you won't figure out the obvious - that they're just blowing smoke up your nose.

On the one hand, I'm angry. The courts scream to us how 'fair' they are. But the bottom line is that they're a corrupt cesspool of stinking, lying, back-stabbing scum and Huey Newton was right -- there is no "justice," there's only "just us" - and fuck you.

On the other hand (lawyers always need two hands - have you even seen a lawyer with just one?) I still have one tenuous foot somewhat planted in the real world and it tells me the world is an imperfect place, starting with the courts. It's The Golden Rule - the guy with the gold makes the rules, and our treasury is kinds low on yellow metal.

It took the U.S. Supreme Court 56 years to redress Plessy and hold that "separate but equal" is unconstitutional. How long will it take to do the same with the right to marry in California?

This decision is so bad that the two lead lawyers who were on opposite sides of Bush v. Gore are teaming-up to challenge this decision in the Federal district court. That's right - David Boies and Ted Olsen(!)This isn't the first time a Federal court struck down a patently anti-gay voter initiative that amended a state constitution. It happened in 1996 in Colorado.

But I'm not looking to the courts for help. Maybe Scalia, Roberts, Alito and what's-his-face will all conveniently off themselves and Obama will pack the U.S. Supreme Court with liberal judges who will turn things around, for a while at least until the pendulum swings back the other way again. I'm a student of history and that is human history.

In the meantime, the most plausible solution is yet another California ballot initiative, this time to amend the California Constitution to undo Prop 8.

We shouldn't have to be in this mess now in the first place. We shouldn't have lost the fight last November but the gay leadership has proven itself hopelessly inept. We'll be saved, if at all, by the inexorable demographic shift toward younger voters, the kind of people who increasingly aren't buying into their parents' homophobia. Maybe.

Monday, May 18, 2009

Vive la France!

Again, trust the French to get it right.

On May 16th the French Health Ministry (formally, "la Haute autorité de la Santé (HAS)") declassified transsexuality from the list of "psychiatric disorders of long duration." Hallelujah.

And the status change should be accomplishable without surgery. I believe that so far, only Spain allows this. The proponents invite the World Health Organization (WHO) to take the next step to similarly declassify transsexuality.

It should be noted that in so classifying transsexuality, the WHO looked to the American Psychiatric Association's Diagnostic and Statistical Manual (DSM). Significantly, the APA is holding its annual meeting this week in San Francisco. Today, May 18th, transgender activists protested the proposed DSM revisions that would continue to stigmatize us with mental illness diagnoses.

Cynically, HRC President Joe Solmonese is shouting louder than ever his support for the trans community, even though he's persona non grata with us. In September 2007 he swore to a cheering crowd at the Southern Comfort trans conference in Atlanta that HRC would never support an Employment Non-Discrimination Act (ENDA) that did not include trans people. Just three weeks later Nancy Pelosi and Barney Frank sold the trans community down the river by removing us from ENDA. None of Solmonese's fancy footwork and obfuscations could paper-over the fact that he wholesale forgot his promise and went along with this patent betrayal.

Some trans folk worry that removal of transsexuality from the DSM will mean that they will lose out on things like insurance coverages that rely on the DSM's mental illness diagnosis. That may be but it's likely they will retain coverage as transsexuality is increasingly recognized as a straightforward medical/health issue. The AMA is already of this opinion. It's the better way. The current mental illness diagnosis is simply too stigmatizing and carries too many detractors to be worth holding onto. It has to go because it's simply factually wrong.