Second careers for lawyers is a growth industry. It's largely about job dissatisfaction. I'm not the only lawyer who signed-up, believing in good faith that the law is a noble profession and that we are indeed a nation of laws. Over the years that faith was eroded by being repeatedly battered to the point where I came to see it all as a great cosmic scam.
What made me such a cynic? I suppose it watching judges up close and personal trampling on the laws, rules and procedures they are sworn to uphold as the front line in the war against injustice.
What am I talking about? Well, take for instance the case of Plessy v. Ferguson. That's the 1898 U.S. Supreme Court case that institutionalized segregated schools on the theory that "separate" could be "equal."
Anyone with half a brain knew that by definition "separate" can never be "equal." That didn't stop the 1898 Supremes. It wasn't until 1954, fifty-six years, two generations and two world wars later, that the Supreme Court (which is to say the country) overruled the travesty and insult to our collective intelligence and integrity that was Plessy.
The problem s that these rulings just can't pass the smell test. When no one with any intelligence can make sense of one of these out-of-control decisions you just know they're pure b.s.
Such was the case in the California Marriage cases after Prop 8 when the California Supreme Court ruled that domestic partnerships are the functional equivalent of marriage. So fifty-five years after the U.S. Supreme Court reversed the breathtakingly disingenuous Plessy the California Supreme Court revived it (and the genre) in a different context -- sex rather than race discrimination.
Now the Supremes - The Republican Supremes (the right-wing Republican poster children) - are at it again. With the addition of Bush appointees Roberts and Alito (hyped by the right-wing's poster children as anti-"judicial activist" judges), the Republican majority created a gloss on the Equal Protection Amendment that no one I know could have dreamt-up.
Section 1 of the 14th Amendment to the U.S. Constitution provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In 2000, the Court came up with the 'class-of-one' theory. It says that the constitutional guarantee of equal treatment under the law applies to every “person.” Therefore, individuals who have been treated unequally by the government can raise an equal protection claim, even if they only represent a class-of-one. The case was Village of Willowbrook v. Olech, 528 U.S. 562 (2000).
Then, in 2008, the Republican majority came up with the idea that the 'class-of-one' theory doesn't apply to public employees. The case is Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008). One commentator wrote: "Therefore, no matter how arbitrary the government’s decision might appear to be, a public employee may not assert a “class of one” claim, based on the theory that government personnel decision making is inherently highly subjective and discretionary." In other words, public employees' equal protection rights must yield to what the Supremes now claim is a government employer's greater right not to be burdened by such lawsuits because there might be too many of them (lawsuits). If government had to worry about being sued for discrimination by employees they'd fucked that would cause the wheels of government to come to a screeching, grinding halt. Well, duh!! In effect, the Court held that the only public employee who may sue his or her employer must be a member of a "protected class" (age, sex, religion, national origin), even though the 14th Amendment doesn't say so or anything like that. Really. I'm not making this up.
Have you ever heard such nonsense? But it's the law now. A majority of the Supremes said so. And then lawyers (and lower court judges) have to join in the dance trying to reconcile these patently bullshit decisions with plain old common sense. Maybe they should write opinions that would have the effect of dissuading malefactoring bosses from breaking the law in the first place, but noooo. Instead, they write decisions that legitimizes what should be illegal discrimination.
Unless you're an employment discrimination lawyer, I doubt you would have heard about the "class of one" doctrine or the 2008 judicial narrowing it. I didn't. I know about it only because I'm interested in a sex/gender discrimination case pending in the Atlanta, Georgia U.S. Federal District Court. Vandy Elizabeth Glenn is a transgendered woman who sued the Georgia legislature (which fired her solely because she announced her plan to transition on-the-job) just one month after Chief Justice Roberts delivered the Engquist decision.
Can there be any clearer case of judicial activism? The Republican Right must really be desperate.
The Georgia legislature moved to dismiss Vandy's complaint, asserting it's a "class of one" case. Fortunately, the trial judge ruled against them. He's Richard W. Story - a local Georgia boy, and a Clinton appointee. Both sides have now moved for summary judgment. Let's hope this one goes the same way as Judge Robertson's ruled for Diane Schroer last year in her case against the U.S. Library of Congress. But wouldn't you love to see it go to trial? Then we could enjoy the spectacle of Vandy's boss, Sewell R. Brumby (what a name - right out of Dickens!) trying to explain that he wasn't engaging in illegal discrimination when he told her transition and presenting as a woman was "immoral" and would make her co-workers "uncomfortable."
Monday, January 4, 2010
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.
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.
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.
Thursday, April 23, 2009
Angie Zapata verdict
The verdict is in - 1st degree murder plus the hate crime conviction - a clean sweep but bittersweet because it won't bring back the life of the young victim.
I caught a few newsfeeds. They're very sketchy. Everyone was wondering how the jury would react. Now we know and the real news story is the jury - not the killer, and not even the victim. Rather, it's how public attitudes have changed because twelve ordinary people said "no" to the 'trans-panic' defense.
The trial went quickly, just four days, and it was largely prosecution. The defense presented a few witnesses, trying to poke little holes in the prosecution's case but to no avail. The perp had confessed to killing the victim. The only issue was why, and for that Allen Ray Adrade's only defense was trans-panic. It had worked before for Gwen Araujo's killers. Perhaps he really thought it would work again, this time for him.
It didn't.
The jury deliberated for just two hours, perhaps less, and the judge pronounced sentence immediately. The alacrity of it all was surreal.
So where do we go from here? Well, I'd like to know more about the jury. Who were these people, eight men and four women in a conservative and largely rural Colorado county, who only took two hours to deliberate before they returned their "guilty on all counts" verdict? I'd like to know. What went on in the jury room? It's important.
I also want to know if they believed anything Andrade said. His story conflicted with the prosecution's account (that at least 36 hours before he killed Angie he knew she was ts.) Unfortunately, every news media outlet reported his version as the facts - that she performed oral sex on him the night before he killed her. Why did they do that? Who knows if that actually happened? It was just his word and now we know that 12 people, a jury of his peers, read him as a lying sack of s**t. Will news accounts continue to print and air his version?
Colorado is very visible on the trannie radar screen. Two years ago we were reading about the flap when a young ts child started attending school as a girl. I later met her and her parents - wonderful people. The mother told me the hateful parent who had made the stink slithered off in to the shadows, where he belongs.
Then Angie Zapata was murdered.
Now we need to attack the 'trans-panic' defense. It's a form of the insanity defense. There are states that significantly delimit it. I read that in Nevada a judge must first rule on whether the insanity defense can be argued to the jury. Ok, let's do that for the trans-panic defense too - no automatic right to present just anything to the jury, no matter how over-the-top, because the mob is inherently susceptible to demagogic appeals to bigotry. Let the accused first convince a judge that it's a good-faith claim. It's constitutional.
Unless someone commissions a study can we ever know for sure what has happened over the course of years to change public attitudes? Would the twelve people on Allan Andrade's jury have convicted Gwen Araujo's killers of first-degree murder? The fact pattern wasn't all that different. How about Fred Martinez? Or any of the others unlucky enough to be listed on the Remembering Our Dead website? Can we finally say that these people did not die in vain?
Has anyone noticed what's missing? There aren't any voices criticizing the prosecution, the verdict or the sentence. I'm not hearing anyone arguing that the victim deserved what she got. No one is criticizing the prosecution for consistently referring to the victim as "she." Maybe I'm not listening but I don't hear anyone singling-out trans people for non-inciusion in a federal hate crime bill, that it would be granting "special rights" to us in particular.
People's attitudes toward transsexuals can be influenced. The evidence is clear - when people get to know us as real people many are dissuaded from their knee-jerk prejudices. Hopefully the fact that a Colorado jury heard the evidence and soundly rejected an appeal to their baser instincts is significant. The jury fled the courthouse after the verdict and sentence and there are no reports that any of them spoke to the press but hopefully they will speak to their families, their friends and their neighbors about what they saw and heard while in the jury box - and what they felt.
This case may be our lever to accelerate our successful efforts to influence and bring the masses into the light and turn them into allies. We can do it.
I caught a few newsfeeds. They're very sketchy. Everyone was wondering how the jury would react. Now we know and the real news story is the jury - not the killer, and not even the victim. Rather, it's how public attitudes have changed because twelve ordinary people said "no" to the 'trans-panic' defense.
The trial went quickly, just four days, and it was largely prosecution. The defense presented a few witnesses, trying to poke little holes in the prosecution's case but to no avail. The perp had confessed to killing the victim. The only issue was why, and for that Allen Ray Adrade's only defense was trans-panic. It had worked before for Gwen Araujo's killers. Perhaps he really thought it would work again, this time for him.
It didn't.
The jury deliberated for just two hours, perhaps less, and the judge pronounced sentence immediately. The alacrity of it all was surreal.
So where do we go from here? Well, I'd like to know more about the jury. Who were these people, eight men and four women in a conservative and largely rural Colorado county, who only took two hours to deliberate before they returned their "guilty on all counts" verdict? I'd like to know. What went on in the jury room? It's important.
I also want to know if they believed anything Andrade said. His story conflicted with the prosecution's account (that at least 36 hours before he killed Angie he knew she was ts.) Unfortunately, every news media outlet reported his version as the facts - that she performed oral sex on him the night before he killed her. Why did they do that? Who knows if that actually happened? It was just his word and now we know that 12 people, a jury of his peers, read him as a lying sack of s**t. Will news accounts continue to print and air his version?
Colorado is very visible on the trannie radar screen. Two years ago we were reading about the flap when a young ts child started attending school as a girl. I later met her and her parents - wonderful people. The mother told me the hateful parent who had made the stink slithered off in to the shadows, where he belongs.
Then Angie Zapata was murdered.
Now we need to attack the 'trans-panic' defense. It's a form of the insanity defense. There are states that significantly delimit it. I read that in Nevada a judge must first rule on whether the insanity defense can be argued to the jury. Ok, let's do that for the trans-panic defense too - no automatic right to present just anything to the jury, no matter how over-the-top, because the mob is inherently susceptible to demagogic appeals to bigotry. Let the accused first convince a judge that it's a good-faith claim. It's constitutional.
Unless someone commissions a study can we ever know for sure what has happened over the course of years to change public attitudes? Would the twelve people on Allan Andrade's jury have convicted Gwen Araujo's killers of first-degree murder? The fact pattern wasn't all that different. How about Fred Martinez? Or any of the others unlucky enough to be listed on the Remembering Our Dead website? Can we finally say that these people did not die in vain?
Has anyone noticed what's missing? There aren't any voices criticizing the prosecution, the verdict or the sentence. I'm not hearing anyone arguing that the victim deserved what she got. No one is criticizing the prosecution for consistently referring to the victim as "she." Maybe I'm not listening but I don't hear anyone singling-out trans people for non-inciusion in a federal hate crime bill, that it would be granting "special rights" to us in particular.
People's attitudes toward transsexuals can be influenced. The evidence is clear - when people get to know us as real people many are dissuaded from their knee-jerk prejudices. Hopefully the fact that a Colorado jury heard the evidence and soundly rejected an appeal to their baser instincts is significant. The jury fled the courthouse after the verdict and sentence and there are no reports that any of them spoke to the press but hopefully they will speak to their families, their friends and their neighbors about what they saw and heard while in the jury box - and what they felt.
This case may be our lever to accelerate our successful efforts to influence and bring the masses into the light and turn them into allies. We can do it.
Thursday, April 16, 2009
Fairness for Angie Zapata
Thank whomever for the Internet. Without it there would be no Google and no Wikipedia, without which I wouldn’t have been reminded that it was Anatole France (née Jacques-Anatole Thibault) who wrote in 1894 in Le Lys Rouge (The Red Lily)), “La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.” (Translated: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”)
A gratuitous reference? No, especially because today marks M. France’s 165th birthday.
I thought of this famous quote as I considered Allen Andrade's murder trial in Greeley, Colorado, which opened today.
Allen killed Angie Zapata. Not “allegedly” – he killed her and he intended to kill her. He hit her twice with a fire extinguisher, thought he'd killed her, then when she tried to get up he finished her off with another blow to the head. The only questions are (i) whether his crime was murder or manslaughter and (ii) in what degree. The State is charging him with first-degree murder. If convicted, he could be executed.
Angie Zapata’s crime? Just wanting to live and love as a woman.
Andrade’s version? The victim deceived him. “It” led him to believe “it” was a woman when in fact “it” had a cock, which makes “it” a man.
His defense: When he learned that "it" had a cock he "lost it" - he went berserk because that meant (to him) he’d had sex (the victim gave him a blow-job) with a man, which, he alleges, makes his skin crawl. He said if people knew they'd think he’s gay, which (he says) he’s not.
It’s the same tired old “trans panic” defense – blame the victim because "it deceived him."
The case is being tried before Judge Marcelo Kopcow. Since we’re a nation of men rather than laws, who's who matters. I don’t know where Judge Kopcow is from but he attended Northeastern University undergrad and New York (not to be confused with NYU) Law School.
NYLS is not a name law school. Like many local law schools, it graduates what some consider a disproportionate number of lawyers who go on to become judges.
Kopcow was appointed to the bench in 2005. My internet search didn’t disclose whether he was recently re-appointed or elected.
Angie Zapata is not the first person beaten to death by men who claimed the trans panic defense. The list of victims is simply too long and too tragic to enumerate. What’s different here is that the perp is also being charged with a hate crime.
In the 2000 presidential debates I watched Bush and Gore field a question about hate crimes. The context was the sensational Texas murder of James Byrd Jr., a black man who was tied to a pick-up truck and dragged to death. The three perps were tried and convicted.
Bush came out against a separate hate crime charge. He argued that justice was amply served by convictions on the base criminal charges. Two of the perps got the death penalty; the third got life in prison.
I didn’t expect more from Bush. I already knew him for what he was and what he still is. But Gore’s answer infuriated me because his long-winded response completely missed the point. Gore never even got close to saying that a hate crime is and should be charged separately because it’s intent is to threaten not victim-at-hand but rather the community-at-large represented by the poor unfortunate victim-at-hand. James Byrd Jr.’s murder was a not-very veiled threat to black people everywhere – get uppity and we’ll kill you too. For that reason, and to dissuade others who might be contemplating similar crimes, enlightened legislatures enact hate crime statutes. Why is that so difficult for some people to articulate?
Judge Kopcow ruled on a number of pre-trial defense challenges. It’s a mixed bag. On the one hand, he upheld the hate crime and first-degree murder charges but he threw-out part of Andrade’s confession and excluded evidence of his gang affiliation.
Regarding the confession, Kopcow ruled that police wrongfully continued questioning Andrade after he told them he didn’t want to talk anymore.
I’m a lawyer and while I never practiced criminal law exclusively I know that this point falls under the Miranda “right to counsel” rule. All the cases I know of that do limit police questioning involve a suspect whom police continue to question after s/he utters the magic words “lawyer” or “attorney.” That’s all it takes. Until then, the police can continue asking questions and the suspect is free to say nothing. Ask the U.S. Supreme Court.
Maybe the law’s changed under successive Republican administrations but I’ve not read any published report that upholds the right to limit questioning and exclude answers obtained after a suspect says s/he doesn’t want to talk anymore – not without first asking for a lawyer.
But Andrade never asked for a lawyer. Did Kopcow bend over backwards to aid a killer? And if so, why? And why no murmer of dissatisfaction with the ruling from the prosecution? Because the victim was transsexual?
Regarding the gang affiliation, Kopcow said that prosecutors wanted a Greeley police gang expert to testify that Andrade was a member of a gang and that any allegation that he had "homosexual sex" would result in severe penalties.
"This type of conduct can result in a 'general hit' by a ranking member of the gang, including death," Kopcow wrote in his order. But the gang investigator "also has never encountered this type of violation to occur where a gang member was 'dubbed' into committing this homosexual act."
Kopcow ruled the gang testimony was “speculative” and “prejudicial” to the jury. Again, the prosecution said nothing.
Speculative? What would be untoward if the expert testified what he knows as a fact about the gang, that this is what he knows about them from their past conduct, and that Andrade was a member of the gang. That’s “speculative?”
Of course Andrade's chances would suffer if the jury were to find out about his gang affiliation but that's the point of a hate crime charge, so how is that “prejudicial?” What exactly does the prosecution have to introduce in evidence to prove a hate crime? Will anything suffice less than a bald-faced statement along the lines of, “I killed “it” because I hate trannie faggots?”
Or do we exclude this highly probative evidence because the victim was transsexual?
So it’s fair to ask: What’s changed since Anatole France wrote his famous quip? The justice system is fair, n’est-ce pas? Transsexuals and the cisgendered are both forbidden to sleep under bridges, to beg in the streets, and to steal bread.
Bon anniversaire, M. France.
A gratuitous reference? No, especially because today marks M. France’s 165th birthday.
I thought of this famous quote as I considered Allen Andrade's murder trial in Greeley, Colorado, which opened today.
Allen killed Angie Zapata. Not “allegedly” – he killed her and he intended to kill her. He hit her twice with a fire extinguisher, thought he'd killed her, then when she tried to get up he finished her off with another blow to the head. The only questions are (i) whether his crime was murder or manslaughter and (ii) in what degree. The State is charging him with first-degree murder. If convicted, he could be executed.
Angie Zapata’s crime? Just wanting to live and love as a woman.
Andrade’s version? The victim deceived him. “It” led him to believe “it” was a woman when in fact “it” had a cock, which makes “it” a man.
His defense: When he learned that "it" had a cock he "lost it" - he went berserk because that meant (to him) he’d had sex (the victim gave him a blow-job) with a man, which, he alleges, makes his skin crawl. He said if people knew they'd think he’s gay, which (he says) he’s not.
It’s the same tired old “trans panic” defense – blame the victim because "it deceived him."
The case is being tried before Judge Marcelo Kopcow. Since we’re a nation of men rather than laws, who's who matters. I don’t know where Judge Kopcow is from but he attended Northeastern University undergrad and New York (not to be confused with NYU) Law School.
NYLS is not a name law school. Like many local law schools, it graduates what some consider a disproportionate number of lawyers who go on to become judges.
Kopcow was appointed to the bench in 2005. My internet search didn’t disclose whether he was recently re-appointed or elected.
Angie Zapata is not the first person beaten to death by men who claimed the trans panic defense. The list of victims is simply too long and too tragic to enumerate. What’s different here is that the perp is also being charged with a hate crime.
In the 2000 presidential debates I watched Bush and Gore field a question about hate crimes. The context was the sensational Texas murder of James Byrd Jr., a black man who was tied to a pick-up truck and dragged to death. The three perps were tried and convicted.
Bush came out against a separate hate crime charge. He argued that justice was amply served by convictions on the base criminal charges. Two of the perps got the death penalty; the third got life in prison.
I didn’t expect more from Bush. I already knew him for what he was and what he still is. But Gore’s answer infuriated me because his long-winded response completely missed the point. Gore never even got close to saying that a hate crime is and should be charged separately because it’s intent is to threaten not victim-at-hand but rather the community-at-large represented by the poor unfortunate victim-at-hand. James Byrd Jr.’s murder was a not-very veiled threat to black people everywhere – get uppity and we’ll kill you too. For that reason, and to dissuade others who might be contemplating similar crimes, enlightened legislatures enact hate crime statutes. Why is that so difficult for some people to articulate?
Judge Kopcow ruled on a number of pre-trial defense challenges. It’s a mixed bag. On the one hand, he upheld the hate crime and first-degree murder charges but he threw-out part of Andrade’s confession and excluded evidence of his gang affiliation.
Regarding the confession, Kopcow ruled that police wrongfully continued questioning Andrade after he told them he didn’t want to talk anymore.
I’m a lawyer and while I never practiced criminal law exclusively I know that this point falls under the Miranda “right to counsel” rule. All the cases I know of that do limit police questioning involve a suspect whom police continue to question after s/he utters the magic words “lawyer” or “attorney.” That’s all it takes. Until then, the police can continue asking questions and the suspect is free to say nothing. Ask the U.S. Supreme Court.
Maybe the law’s changed under successive Republican administrations but I’ve not read any published report that upholds the right to limit questioning and exclude answers obtained after a suspect says s/he doesn’t want to talk anymore – not without first asking for a lawyer.
But Andrade never asked for a lawyer. Did Kopcow bend over backwards to aid a killer? And if so, why? And why no murmer of dissatisfaction with the ruling from the prosecution? Because the victim was transsexual?
Regarding the gang affiliation, Kopcow said that prosecutors wanted a Greeley police gang expert to testify that Andrade was a member of a gang and that any allegation that he had "homosexual sex" would result in severe penalties.
"This type of conduct can result in a 'general hit' by a ranking member of the gang, including death," Kopcow wrote in his order. But the gang investigator "also has never encountered this type of violation to occur where a gang member was 'dubbed' into committing this homosexual act."
Kopcow ruled the gang testimony was “speculative” and “prejudicial” to the jury. Again, the prosecution said nothing.
Speculative? What would be untoward if the expert testified what he knows as a fact about the gang, that this is what he knows about them from their past conduct, and that Andrade was a member of the gang. That’s “speculative?”
Of course Andrade's chances would suffer if the jury were to find out about his gang affiliation but that's the point of a hate crime charge, so how is that “prejudicial?” What exactly does the prosecution have to introduce in evidence to prove a hate crime? Will anything suffice less than a bald-faced statement along the lines of, “I killed “it” because I hate trannie faggots?”
Or do we exclude this highly probative evidence because the victim was transsexual?
So it’s fair to ask: What’s changed since Anatole France wrote his famous quip? The justice system is fair, n’est-ce pas? Transsexuals and the cisgendered are both forbidden to sleep under bridges, to beg in the streets, and to steal bread.
Bon anniversaire, M. France.
Friday, April 3, 2009
Hooray for Iowa!
Over the years I've had a handful of friends who grew up in Iowa.
The first was a military brat. When I met her she was dancing topless at the NAS Oceana officer's club. Then there was Seed, our squadron nickname for a fellow RIO who'd grown-up on a farm. Lastly was a young woman whose divorce I'd handled. She went on to Barnard and then the NY Times.
There was something different about them. Now I know why. Iowans just are more firmly-grounded and seem to embody true American values than most.
Today we have the news that the Iowa Supreme Court has struck-down a 1998 state law that bans same-sex marriage. It figures.
It figures too that an already declared Republican constitutional challenge to the Iowa state constitution is likely to fail. That's because in Iowa the state legislature must first approve a ban on same-sex marriage in two consecutive sessions after which voters would have a chance to weigh in. Compare that to the protocol in supposedly progressive California whose Supreme Court is set to validate the absurd notion that the fundamental right to marry can be denied gay people by a bare 51% of the general electorate -- no intervening legislative vote necessary, thank you.
What a crazy quilt!
Iowa's looking better and better. Did you see "The Bridges Of Madison County?"
The first was a military brat. When I met her she was dancing topless at the NAS Oceana officer's club. Then there was Seed, our squadron nickname for a fellow RIO who'd grown-up on a farm. Lastly was a young woman whose divorce I'd handled. She went on to Barnard and then the NY Times.
There was something different about them. Now I know why. Iowans just are more firmly-grounded and seem to embody true American values than most.
Today we have the news that the Iowa Supreme Court has struck-down a 1998 state law that bans same-sex marriage. It figures.
It figures too that an already declared Republican constitutional challenge to the Iowa state constitution is likely to fail. That's because in Iowa the state legislature must first approve a ban on same-sex marriage in two consecutive sessions after which voters would have a chance to weigh in. Compare that to the protocol in supposedly progressive California whose Supreme Court is set to validate the absurd notion that the fundamental right to marry can be denied gay people by a bare 51% of the general electorate -- no intervening legislative vote necessary, thank you.
What a crazy quilt!
Iowa's looking better and better. Did you see "The Bridges Of Madison County?"
Thursday, March 5, 2009
The final nail in this coffin
I just caught the final minutes of Pro 8 oral argument in the California Supreme Court. It sounded like a valiant effort that's going down in flames. Justice Joyce Kennard was flashing unmistakable signals about which way she's leaning - against us. From the anguish in the voice of a valiant gay woman lawyer who was the last to argue I have the sense that the majority will follow Kennard. This has not been a good day for the GV community.
This country is fucked. I say this even though we elected Barack Obama. Republicans have brought us to the brink of ruin and they're still at it. Just look at the Republican brick wall Obama is facing in Congress and the spectacle Republican leadership genuflecting to kiss the ring of Rush Limbaugh. We're fucked. There are so many stupid, bigoted people it's embarrassing to be an American.
As a transwoman, my consciousness of this issue is particularly acute as I become increasingly aware of how the male-female binary permeates society. OTOH, things are changing, and that's our only hope. If we couldn't persuade the California Supreme Court that a bare 51% majority should not be allowed to limit fundamental rights (like marriage) to a visible, undeniably persecuted minority (gays) then what really separates us from Nazi Germany? What use are is the hifalutin verbiage in which we wrap ourselves, deluding ourselves that we believe in the rule of law and concepts like 'fairness?'
The only hope now is that we can get an anti-Prop 8 voter incentive measure on the ballot soon and that the change in demographics since the last election will signal a different outcome. That means we need to limit the influx of antediluvian Latin American peasantry that continues to flood unabated into our state and to humiliate the superstitious and prejudiced black women who formed the core of 'religious' voters who more than any other voting bloc shot down gay marriage. Maybe they need a little re-education, a little vacation perhaps to a reconstituted slave plantation so they might regain an historical perspective and remember what it's like to live without civil rights.
Then again, I could be wrong. I hope so.
This country is fucked. I say this even though we elected Barack Obama. Republicans have brought us to the brink of ruin and they're still at it. Just look at the Republican brick wall Obama is facing in Congress and the spectacle Republican leadership genuflecting to kiss the ring of Rush Limbaugh. We're fucked. There are so many stupid, bigoted people it's embarrassing to be an American.
As a transwoman, my consciousness of this issue is particularly acute as I become increasingly aware of how the male-female binary permeates society. OTOH, things are changing, and that's our only hope. If we couldn't persuade the California Supreme Court that a bare 51% majority should not be allowed to limit fundamental rights (like marriage) to a visible, undeniably persecuted minority (gays) then what really separates us from Nazi Germany? What use are is the hifalutin verbiage in which we wrap ourselves, deluding ourselves that we believe in the rule of law and concepts like 'fairness?'
The only hope now is that we can get an anti-Prop 8 voter incentive measure on the ballot soon and that the change in demographics since the last election will signal a different outcome. That means we need to limit the influx of antediluvian Latin American peasantry that continues to flood unabated into our state and to humiliate the superstitious and prejudiced black women who formed the core of 'religious' voters who more than any other voting bloc shot down gay marriage. Maybe they need a little re-education, a little vacation perhaps to a reconstituted slave plantation so they might regain an historical perspective and remember what it's like to live without civil rights.
Then again, I could be wrong. I hope so.
Tuesday, February 24, 2009
Menace to Sorority
A recent story of this name in a local Washington D.C. e-paper is about a controversy engendered by a self-declared female-to-male (FTM) person who joined a college sorority.
This story inspired me to think of something else. I would have loved to have been in a sorority but when I attended college I was male-bodied. As female as I might have felt that would have been awkward, and not just for the sorority sisters. But maybe that’s me. Maybe someone else who feels female inside but is still male-bodied would not feel out-of-place. But the other girls might feel uncomfortable.
What if the male-bodied but female-self-identifying applicant wasn’t entirely “male bodied” anymore. What if the person presented well as female – face, clothes, mannerisms, voice – what then? Would it depend on whether or not the person still had male genitalia, or would everyone say it’s ok so long as she’d had sex reassignment surgery (SRS, aka gender reaffirming (or just plain “affirming”) surgery – GRS/GAS), meaning she now had a vagina. Think about it because it’s coming. The number of young male-to-female (MTF) transsexuals having surgery shortly after they turm eighteen is growing rapidly.
A German MTF transsexual just had surgery at age sixteen. When she was twelve she’d already been been rigorously screened by medical doctors and psychologists who diagnosed her definitively as a MTF transsexual. They okayed her hormone treatment to block pubertal testosterone so she never went through male puberty and her body never turned male. She’s a very pretty and totally feminine girl. She’s also just the first of many.
Young postoperative transsexual women are already starting college. Most of them are stealth – no one knows. No one would know. Their documentation has been changed to reflect their female status and there’s no discernible clue that they’ve ever been anything but female. I wouldn’t be surprised if there were already several who’ve done it. Nor would I be surprised if one or more sorority sisters would know and was at ease with it because these ts women are sooo female. Women know these things. I know. I’m a post-op MTF transsexual woman.
But maybe one of these pre-op girls would not be so cloaked in secrecy. What will happen then? Expect her to make the six o’clock news when she applies to join a sorority and is outed.
But a pretty post-op is an easy case. What if she isn’t pretty? What if she doesn’t have all the feminine graces? Another way to express that is to say she doesn’t “vibe” a female very well. What then? Would it be all about looks? Tougher case?
Actually, this has already happened - on Tyra Banks’ “America’s Next Top Model.” Remember Isis King?
Stay tuned… film at 11:00.
This story inspired me to think of something else. I would have loved to have been in a sorority but when I attended college I was male-bodied. As female as I might have felt that would have been awkward, and not just for the sorority sisters. But maybe that’s me. Maybe someone else who feels female inside but is still male-bodied would not feel out-of-place. But the other girls might feel uncomfortable.
What if the male-bodied but female-self-identifying applicant wasn’t entirely “male bodied” anymore. What if the person presented well as female – face, clothes, mannerisms, voice – what then? Would it depend on whether or not the person still had male genitalia, or would everyone say it’s ok so long as she’d had sex reassignment surgery (SRS, aka gender reaffirming (or just plain “affirming”) surgery – GRS/GAS), meaning she now had a vagina. Think about it because it’s coming. The number of young male-to-female (MTF) transsexuals having surgery shortly after they turm eighteen is growing rapidly.
A German MTF transsexual just had surgery at age sixteen. When she was twelve she’d already been been rigorously screened by medical doctors and psychologists who diagnosed her definitively as a MTF transsexual. They okayed her hormone treatment to block pubertal testosterone so she never went through male puberty and her body never turned male. She’s a very pretty and totally feminine girl. She’s also just the first of many.
Young postoperative transsexual women are already starting college. Most of them are stealth – no one knows. No one would know. Their documentation has been changed to reflect their female status and there’s no discernible clue that they’ve ever been anything but female. I wouldn’t be surprised if there were already several who’ve done it. Nor would I be surprised if one or more sorority sisters would know and was at ease with it because these ts women are sooo female. Women know these things. I know. I’m a post-op MTF transsexual woman.
But maybe one of these pre-op girls would not be so cloaked in secrecy. What will happen then? Expect her to make the six o’clock news when she applies to join a sorority and is outed.
But a pretty post-op is an easy case. What if she isn’t pretty? What if she doesn’t have all the feminine graces? Another way to express that is to say she doesn’t “vibe” a female very well. What then? Would it be all about looks? Tougher case?
Actually, this has already happened - on Tyra Banks’ “America’s Next Top Model.” Remember Isis King?
Stay tuned… film at 11:00.
Thursday, January 29, 2009
Transformations 'r Us
I was eight years old when I saw Ava Gardner in "One Touch of Venus." I fell in love with her and the song "Speak Low" was burned into my consciousness.
The film inspired in me a love - no, an obsession with Greek mythology, a genre rife with stories of transformation and metamorphosis. Zeus was forever transforming himself into a swan or a golden rain so as to more easily enter into the chambers of some lucky mortal woman, usually somebody's wife, to copulate with and usually impregnate her.
Teiresias stumbled across Athena while she was bathing so she blinded him. In another story, Teiresias came upon a pair of copulating snakes, struck them, dispeasing Hera, who then punished him by transforming him into a woman. Later he's re-transformed back into a man. When asked which has the greater sexual pleasure (he experienced both) he unhesitatingly declared, "women." For his impiety, Hera struck him blind.
And then there's Actaeon. He stumbled across Artemis bathing and she turned him into a stag. His raging hounds, struck with a 'wolf's frenzy,' tore him apart.
What do we learn from this? Well for one, don't piss-off the Goddess. She's inclined to wield her enormous power to emasculate men. Oooo, kinky...
Societies project their deepest desires into their religious mythologies and the Greeks' have come down to us intact.; They permeate our sensibilities (consider all those Freudian complexes) so it's not a stretch that the idea of transsexual and trans-species transformation is woven into our heritage. Judaism gave us angels - human-formed demigods with wings, which Christianity adopted. The Greeks came up with the idea of men fitting themselves with wings and taking flight - the story of Icarus.
So when I hear transphobes suggesting that allowing people to cross-dress will invite people insisting on their right to change themselves into dogs I just have to roll my eyes.
Now I read that a that Massachusetts state Representative Carl Sciortino is on the same page with me. Here's what he's saying to people of faith in support of transgender rights:
"I’ve been thinking about our religion, all of Christianity, and the Old Testament, too, and it’s full of transformations. And God’s usually behind them," said Provost, prompting laughs from the crowd. "In the Old Testament you had sticks turning into snakes and disobedient women turning into pillars of salt, and you had a recalcitrant guy like Jonah turning into a prophet. And then you get to the New Testament and you’ve got water turning into wine and God turning into human form, and it’s so full of transformation. It makes sense to me, thinking about it, that the church ladies and the Sunday school should say, no big deal."
It's a persuasive message, but will it fly?
The film inspired in me a love - no, an obsession with Greek mythology, a genre rife with stories of transformation and metamorphosis. Zeus was forever transforming himself into a swan or a golden rain so as to more easily enter into the chambers of some lucky mortal woman, usually somebody's wife, to copulate with and usually impregnate her.
Teiresias stumbled across Athena while she was bathing so she blinded him. In another story, Teiresias came upon a pair of copulating snakes, struck them, dispeasing Hera, who then punished him by transforming him into a woman. Later he's re-transformed back into a man. When asked which has the greater sexual pleasure (he experienced both) he unhesitatingly declared, "women." For his impiety, Hera struck him blind.
And then there's Actaeon. He stumbled across Artemis bathing and she turned him into a stag. His raging hounds, struck with a 'wolf's frenzy,' tore him apart.
What do we learn from this? Well for one, don't piss-off the Goddess. She's inclined to wield her enormous power to emasculate men. Oooo, kinky...
Societies project their deepest desires into their religious mythologies and the Greeks' have come down to us intact.; They permeate our sensibilities (consider all those Freudian complexes) so it's not a stretch that the idea of transsexual and trans-species transformation is woven into our heritage. Judaism gave us angels - human-formed demigods with wings, which Christianity adopted. The Greeks came up with the idea of men fitting themselves with wings and taking flight - the story of Icarus.
So when I hear transphobes suggesting that allowing people to cross-dress will invite people insisting on their right to change themselves into dogs I just have to roll my eyes.
Now I read that a that Massachusetts state Representative Carl Sciortino is on the same page with me. Here's what he's saying to people of faith in support of transgender rights:
"I’ve been thinking about our religion, all of Christianity, and the Old Testament, too, and it’s full of transformations. And God’s usually behind them," said Provost, prompting laughs from the crowd. "In the Old Testament you had sticks turning into snakes and disobedient women turning into pillars of salt, and you had a recalcitrant guy like Jonah turning into a prophet. And then you get to the New Testament and you’ve got water turning into wine and God turning into human form, and it’s so full of transformation. It makes sense to me, thinking about it, that the church ladies and the Sunday school should say, no big deal."
It's a persuasive message, but will it fly?
Thursday, January 22, 2009
Post-script
When my father died the synagogue was filled to overflowing. It was quite a sight. By contrast, few people attended my mother's memorial ceremony.
One hopes one does not die alone. One hears of this one and that one dying peacefully, surrounded by loving family listening to the sounds of their grandchildren's laughter.
What's in store for me? To my everlasting shame and regret I wasn't there for either of my parents. Both died alone in hospitals, their bodies invaded by monstrous-looking tubes hooked-up to droning machines, the only witnesses to their last moments on the planet. I'm forever asking myself - do I deserve better? Will my daughter be there for me? Perhaps, but for now the chances seem slim.
Someone sent me a story. Maybe you've seen it. I don't know if it's true or not but it has the ring of truth. I'd like to share it with you.
* * *
Twenty years ago I drove a cab for a living. When I arrived at 2:30 a.m. the building was dark except for a single light in a ground floor window. Under these circumstances, many drivers would just honk once or twice, wait a minute, and then drive away.
But I had seen too many impoverished people who depended on taxis as their only means of transportation. Unless a situation smelled of danger, I always went to the door. This passenger might be someone who needs my assistance, I reasoned to myself.
So I walked to the door and knocked. "Just a minute," answered a frail, elderly voice. I could hear something being dragged across the floor.
After a long pause, the door opened. A small woman in her 80's stood before me. She was wearing a print dress and a pillbox hat with a veil pinned on it, like somebody out of a 1940s movie.
By her side was a small nylon suitcase. The apartment looked as if no one had lived in it for years. All the furniture was covered with sheets.
There were no clocks on the walls, no knickknacks or utensils on the counters. In the corner was a cardboard box filled with photos and glassware.
"Would you carry my bag out to the car?" she said. I took the suitcase to the cab then returned to assist the woman.
She took my arm and we walked slowly toward the curb. She kept thanking me for my kindness. "It's nothing," I told her. "I just try to treat my passengers the way I would want my mother treated."
"Oh, you're such a good boy," she said. When we got in the cab, she gave me an address, and then asked, "Could you drive through downtown?"
"It's not the shortest way," I answered quickly.
"Oh, I don't mind," she said. "I'm in no hurry. I'm on my way to a hospice."
I looked in the rear-view mirror. Her eyes were glistening. "I don't have any family left," she continued. "The doctor says I don't have very long." I quietly reached over and shut off the meter.
“What route would you like me to take?" I asked.
For the next two hours, we drove through the city. She showed me the building where she had once worked as an elevator operator.
We drove through the neighborhood where she and her husband had lived when they were newlyweds. She had me pull up in front of a furniture warehouse that had once been a ballroom where she had gone dancing as a girl.
Sometimes she'd ask me to slow in front of a particular building or corner and would sit staring into the darkness, saying nothing.
As the first hint of sun was creasing the horizon, she suddenly said, "I'm tired. Let's go now."
We drove in silence to the address she had given me. It was a low building, like a small convalescent home, with a driveway that passed under a portico.
Two orderlies came out to the cab as soon as we pulled up. They were solicitous and intent, watching her every move. They must have been expecting her.
I opened the trunk and took the small suitcase to the door. The woman was already seated in a wheelchair.
"How much do I owe you?" she asked, reaching into her purse.
"Nothing," I said.
“You have to make a living," she answered. "There are other passengers," I responded. Almost without thinking, I bent and gave her a hug. She held onto me tightly.
"You gave an old woman a little moment of joy," she said.
“Thank you."
I squeezed her hand, and then walked into the dim morning light. Behind me, a door shut. It was the sound of the closing of a life.
I didn't pick up any more passengers that shift. I drove aimlessly lost in thought. For the rest of that day, I could hardly talk. What if that woman had gotten an angry driver, or one who was impatient to end his shift? What if I had refused to take the run, or had honked once, then driven away?
On a quick review, I don't think that I have done anything more important in my life.
* * *
We're conditioned to think that our lives revolve around great moments. But great moments often catch us unaware - beautifully wrapped in what others may consider a small one.
You won't get any big surprise in 10 days if you send this to ten people. But, you might help make the world a little kinder and more compassionate by sending it on.
One hopes one does not die alone. One hears of this one and that one dying peacefully, surrounded by loving family listening to the sounds of their grandchildren's laughter.
What's in store for me? To my everlasting shame and regret I wasn't there for either of my parents. Both died alone in hospitals, their bodies invaded by monstrous-looking tubes hooked-up to droning machines, the only witnesses to their last moments on the planet. I'm forever asking myself - do I deserve better? Will my daughter be there for me? Perhaps, but for now the chances seem slim.
Someone sent me a story. Maybe you've seen it. I don't know if it's true or not but it has the ring of truth. I'd like to share it with you.
* * *
Twenty years ago I drove a cab for a living. When I arrived at 2:30 a.m. the building was dark except for a single light in a ground floor window. Under these circumstances, many drivers would just honk once or twice, wait a minute, and then drive away.
But I had seen too many impoverished people who depended on taxis as their only means of transportation. Unless a situation smelled of danger, I always went to the door. This passenger might be someone who needs my assistance, I reasoned to myself.
So I walked to the door and knocked. "Just a minute," answered a frail, elderly voice. I could hear something being dragged across the floor.
After a long pause, the door opened. A small woman in her 80's stood before me. She was wearing a print dress and a pillbox hat with a veil pinned on it, like somebody out of a 1940s movie.
By her side was a small nylon suitcase. The apartment looked as if no one had lived in it for years. All the furniture was covered with sheets.
There were no clocks on the walls, no knickknacks or utensils on the counters. In the corner was a cardboard box filled with photos and glassware.
"Would you carry my bag out to the car?" she said. I took the suitcase to the cab then returned to assist the woman.
She took my arm and we walked slowly toward the curb. She kept thanking me for my kindness. "It's nothing," I told her. "I just try to treat my passengers the way I would want my mother treated."
"Oh, you're such a good boy," she said. When we got in the cab, she gave me an address, and then asked, "Could you drive through downtown?"
"It's not the shortest way," I answered quickly.
"Oh, I don't mind," she said. "I'm in no hurry. I'm on my way to a hospice."
I looked in the rear-view mirror. Her eyes were glistening. "I don't have any family left," she continued. "The doctor says I don't have very long." I quietly reached over and shut off the meter.
“What route would you like me to take?" I asked.
For the next two hours, we drove through the city. She showed me the building where she had once worked as an elevator operator.
We drove through the neighborhood where she and her husband had lived when they were newlyweds. She had me pull up in front of a furniture warehouse that had once been a ballroom where she had gone dancing as a girl.
Sometimes she'd ask me to slow in front of a particular building or corner and would sit staring into the darkness, saying nothing.
As the first hint of sun was creasing the horizon, she suddenly said, "I'm tired. Let's go now."
We drove in silence to the address she had given me. It was a low building, like a small convalescent home, with a driveway that passed under a portico.
Two orderlies came out to the cab as soon as we pulled up. They were solicitous and intent, watching her every move. They must have been expecting her.
I opened the trunk and took the small suitcase to the door. The woman was already seated in a wheelchair.
"How much do I owe you?" she asked, reaching into her purse.
"Nothing," I said.
“You have to make a living," she answered. "There are other passengers," I responded. Almost without thinking, I bent and gave her a hug. She held onto me tightly.
"You gave an old woman a little moment of joy," she said.
“Thank you."
I squeezed her hand, and then walked into the dim morning light. Behind me, a door shut. It was the sound of the closing of a life.
I didn't pick up any more passengers that shift. I drove aimlessly lost in thought. For the rest of that day, I could hardly talk. What if that woman had gotten an angry driver, or one who was impatient to end his shift? What if I had refused to take the run, or had honked once, then driven away?
On a quick review, I don't think that I have done anything more important in my life.
* * *
We're conditioned to think that our lives revolve around great moments. But great moments often catch us unaware - beautifully wrapped in what others may consider a small one.
You won't get any big surprise in 10 days if you send this to ten people. But, you might help make the world a little kinder and more compassionate by sending it on.
My Friend Dottie
My friend Dottie died last month.
In 1993 we'd been neighbors when my ex and I moved to Los Angeles. We stayed in touch after my now-ex and I bought a house and moved away - not far, about a mile and a half.
Dottie grew-up very poor. One day she returned from school to her Lower East Side tenement to be greeted by her neighbor shouting out that Mr. _____ was dead. He'd had a heart attack. Dottie was ten.
Her mother, who was functionally illiterate, was a basket case. She could barely support herself, much less Dottie and her sister. They survived only because her father's brother stepped-in to help them.
Dottie graduated high school at fifteen and went to work as a secretary. She was very good. When she was seventeen she'd saved enough to set out on her own by train for California. She found work as a secretary with Paramount.
Dottie was very pretty. It never hurts. She was a top-notch secretary, always in demand by writers, most famously Raymond Chandler. She dated and had affairs with movie stars. She regaled me with wonderful stories from a time gone-by before the freeways, when men and women regularly wore hats and Hollywood was truly glamorous.
Even after we moved I was always dying to tell Dottie my secret but could never come out and do it. We'd speak cordially on the phone and she was an occasional dinner guest but my inability to be open prevented us from moving forward. I knew that if I did not there was no chance we could ever have the friendship I so desperately craved because honesty was an non-negotiable prerequisite. It took me years to build the courage.
In late 2000 I was at a crisis point in my transition. My mother had recently died. My marriage, always strained, was finally moribund and I was being kicked-out. I invited Dottie to lunch. It was the afternoon of Veteran's Day, and we sat on the patio at the Daily Grill in Studio City. I told Dottie I had something I needed to say. I struggled to get the words out and while I don't remember exactly what I said it was probably something as straightforward as "Dottie, I'm transsexual."
There - I'd said it. Her jaw dropped but I just sat there and smiled, settling into my true persona. After just a few minutes, Dottie realized that this is who I truly was and we embarked on a remarkable friendship. Even the food tasted better.
Back then my understanding of transsexuality was still very spotty and I hadn't yet formulated the spiel I have now but she got it and we proceeded to have the first of many truly delightful encounters together. It was a watershed. I learned that more than anything I can tell people, my honesty in baring my soul and their seeing me so natural, so relaxed, so comfortable in my femme self could work the charm. It didn't hurt that by this time my appearance was decidedly feminine, even though I wasn't yet living en femme. I've been blessed. I've never suffered being baited as a 'man.'
Two years later something similar happened on the telephone. After 9/11, I called to check on friends in Manhattan. I told one of them, "Jan, I'm not (my old male name) anymore."
"Who are you?" she asked, and I answered, "Debra."
There was a slight pause, then some brief conversation, and then Jan told me she could hear in my voice my body relaxing. It was so easy. I could almost hear her crying out of happiness for me, or was that me?
Dottie and I starting meeting regularly for lunch every two months or so. She delighted in watching me blossom and she was unstinting in her advice and her loving praise. To be sure, she never held back her appropriate disapproval but her criticism was always constructive. I'm the confident woman I am today in large measure because of her.
Dottie was 82 when she was diagnosed with cancer nearly three years ago. They gave her three months but she confounded them all. She lived another two-and-a-half years, electing to forego treatment - no burning from radiation, no poisoning from chemo, no disfiguring surgeries. Her doctors were astounded when she went into a seeming spontaneous remission. She suffered other ailments but when she'd see me her eyes would light up and everything was ok. I always made a point of dressing nicely for her and she'd tell me how nice I looked. Her approval meant the world to me.
After Dottie's diagnosis we increased the frequency of our rendez-vous's. I'd pick her up since she couldn't drive anymore. More than anything else she hated losing her mobility. We shared a laugh when my back started acting up together with other ailments presaging my older age. It was comforting.
Dottie was a true film afficionada and we has similar tastes. We liked foreign films and we'd take-in a matinee on Wednesdays when it was only $4 for seniors (I fudged - kids work the box office and they can't discern age.) We didn't always agree but even then it was wonderful to sit in the emptied theatre discussing what we'd seen and savoring how it enriched our lives. Then we'd get a bite to eat, usually somewhere one of us had a coupon. It was wonderful.
Dottie left two daughters so there was no chance she'd adopt me but she knew how I felt about her. My mother knew about me but we never had a dialogue. I loved her dearly and miss her terribly but there was always something missing. I found a bit of that connection with Dottie.
I take classes at the Plato Society. It's a continuing education program, part of UCLA Extension. Most of the members are retired. I'm one of the 'kids' ... but with a mouth. Some of them know about me but only if I tell them, mostly women. They're good friends. I hope I'm not fooling myself but I believe their acceptance of me as a woman is sincere but what do I know? We never really know what people think, do we? I did though with Dottie. I know it.
Dottie taught me about life and she taught me about death. She savored the former and faced the latter unafraid. I always told her she never appeared ill, not to me, and it was true. She always looked wonderful.
I called Dottie about a month ago and asked routinely how she was doing and she told me plainly, "Debra, I'm dying." I knew it wasn't idle talk, and I said nothing. I just listened. Dottie never spent a minute fretting about illness or the prospect of death - never. In her quiet, dignified way she was awesome. She was a classy lady, insistently independent without ever losing her femininity. She taught me about choosing one's battles, what's important and what's not, about generosity and when and how to let go.
I would have loved to have been with her, fixing her meals, tending to her just so I could have more time with her. When in our last phone conversation she told me she loved me I knew I wouldn't see and probably would never speak with her again. She'd just said her goodbye to me and that was that. I had to accept it.
Dottie's daughter was with her at the end. She was loved by many.
In 1993 we'd been neighbors when my ex and I moved to Los Angeles. We stayed in touch after my now-ex and I bought a house and moved away - not far, about a mile and a half.
Dottie grew-up very poor. One day she returned from school to her Lower East Side tenement to be greeted by her neighbor shouting out that Mr. _____ was dead. He'd had a heart attack. Dottie was ten.
Her mother, who was functionally illiterate, was a basket case. She could barely support herself, much less Dottie and her sister. They survived only because her father's brother stepped-in to help them.
Dottie graduated high school at fifteen and went to work as a secretary. She was very good. When she was seventeen she'd saved enough to set out on her own by train for California. She found work as a secretary with Paramount.
Dottie was very pretty. It never hurts. She was a top-notch secretary, always in demand by writers, most famously Raymond Chandler. She dated and had affairs with movie stars. She regaled me with wonderful stories from a time gone-by before the freeways, when men and women regularly wore hats and Hollywood was truly glamorous.
Even after we moved I was always dying to tell Dottie my secret but could never come out and do it. We'd speak cordially on the phone and she was an occasional dinner guest but my inability to be open prevented us from moving forward. I knew that if I did not there was no chance we could ever have the friendship I so desperately craved because honesty was an non-negotiable prerequisite. It took me years to build the courage.
In late 2000 I was at a crisis point in my transition. My mother had recently died. My marriage, always strained, was finally moribund and I was being kicked-out. I invited Dottie to lunch. It was the afternoon of Veteran's Day, and we sat on the patio at the Daily Grill in Studio City. I told Dottie I had something I needed to say. I struggled to get the words out and while I don't remember exactly what I said it was probably something as straightforward as "Dottie, I'm transsexual."
There - I'd said it. Her jaw dropped but I just sat there and smiled, settling into my true persona. After just a few minutes, Dottie realized that this is who I truly was and we embarked on a remarkable friendship. Even the food tasted better.
Back then my understanding of transsexuality was still very spotty and I hadn't yet formulated the spiel I have now but she got it and we proceeded to have the first of many truly delightful encounters together. It was a watershed. I learned that more than anything I can tell people, my honesty in baring my soul and their seeing me so natural, so relaxed, so comfortable in my femme self could work the charm. It didn't hurt that by this time my appearance was decidedly feminine, even though I wasn't yet living en femme. I've been blessed. I've never suffered being baited as a 'man.'
Two years later something similar happened on the telephone. After 9/11, I called to check on friends in Manhattan. I told one of them, "Jan, I'm not (my old male name) anymore."
"Who are you?" she asked, and I answered, "Debra."
There was a slight pause, then some brief conversation, and then Jan told me she could hear in my voice my body relaxing. It was so easy. I could almost hear her crying out of happiness for me, or was that me?
Dottie and I starting meeting regularly for lunch every two months or so. She delighted in watching me blossom and she was unstinting in her advice and her loving praise. To be sure, she never held back her appropriate disapproval but her criticism was always constructive. I'm the confident woman I am today in large measure because of her.
Dottie was 82 when she was diagnosed with cancer nearly three years ago. They gave her three months but she confounded them all. She lived another two-and-a-half years, electing to forego treatment - no burning from radiation, no poisoning from chemo, no disfiguring surgeries. Her doctors were astounded when she went into a seeming spontaneous remission. She suffered other ailments but when she'd see me her eyes would light up and everything was ok. I always made a point of dressing nicely for her and she'd tell me how nice I looked. Her approval meant the world to me.
After Dottie's diagnosis we increased the frequency of our rendez-vous's. I'd pick her up since she couldn't drive anymore. More than anything else she hated losing her mobility. We shared a laugh when my back started acting up together with other ailments presaging my older age. It was comforting.
Dottie was a true film afficionada and we has similar tastes. We liked foreign films and we'd take-in a matinee on Wednesdays when it was only $4 for seniors (I fudged - kids work the box office and they can't discern age.) We didn't always agree but even then it was wonderful to sit in the emptied theatre discussing what we'd seen and savoring how it enriched our lives. Then we'd get a bite to eat, usually somewhere one of us had a coupon. It was wonderful.
Dottie left two daughters so there was no chance she'd adopt me but she knew how I felt about her. My mother knew about me but we never had a dialogue. I loved her dearly and miss her terribly but there was always something missing. I found a bit of that connection with Dottie.
I take classes at the Plato Society. It's a continuing education program, part of UCLA Extension. Most of the members are retired. I'm one of the 'kids' ... but with a mouth. Some of them know about me but only if I tell them, mostly women. They're good friends. I hope I'm not fooling myself but I believe their acceptance of me as a woman is sincere but what do I know? We never really know what people think, do we? I did though with Dottie. I know it.
Dottie taught me about life and she taught me about death. She savored the former and faced the latter unafraid. I always told her she never appeared ill, not to me, and it was true. She always looked wonderful.
I called Dottie about a month ago and asked routinely how she was doing and she told me plainly, "Debra, I'm dying." I knew it wasn't idle talk, and I said nothing. I just listened. Dottie never spent a minute fretting about illness or the prospect of death - never. In her quiet, dignified way she was awesome. She was a classy lady, insistently independent without ever losing her femininity. She taught me about choosing one's battles, what's important and what's not, about generosity and when and how to let go.
I would have loved to have been with her, fixing her meals, tending to her just so I could have more time with her. When in our last phone conversation she told me she loved me I knew I wouldn't see and probably would never speak with her again. She'd just said her goodbye to me and that was that. I had to accept it.
Dottie's daughter was with her at the end. She was loved by many.
Saturday, December 27, 2008
Hermaphroditic dogs?
Today, “Fresh Air” re-broadcast Terry Gross’s March 20th interview with veterinarian Nick Trout. Here’s an excerpt:
TG: This is Fresh Air. I’m Terry Gross.
Animal surgeon Nick Trout has noticed that many pet owners feel more like pet parents. The people that bring their animals to him want him to know how much they love their pets. He loves animals although the cats and dogs he treats might not return the sentiment during his examinations.
We’re going to talk about some of his more unusual cases and how the whole field of veterinary medicine has changed in the past few decades.
* * *
TG I want you to tell us of one of your more challenging cases. And this is a case, I would describe this dog as, um, almost a hermaphrodite?
NT Yeah, yeah…
TG It had, it’s a male dog that had become feminized? It it had, uh, you, why don’t you describe what it had.
NT (Sorry) This wa, this wasn’t an easy story to uh convey and get across uh but uh I try my best to basically describe a, a boxer dog who on the outside appeared to be male. This dog only had one descended testicle. And uh the remaining testicle in the side had succumbed to a tumor, a tumor and was secreting feminine hormones. And those feminine hormones were making this male dog become somewhat female in nature. This dog would stand to be mounted by other dogs, had somewhat pendulous breasts and uh and had this real sort of hormonal turmoil going on inside of him. The other problem was, unbeknownst to both me and the owner, that he had a remnant of an embryonic uterus that should have disappeared during his development as a puppy and yet had persisted and so this, this uh increase in female hormones had sort of ‘turned on’ a female reproductive organ within his body and as a result he had developed what is called a pyametrum which is not an uncommon infection of this male dog’s uterus. And so this gave me this very unique once-in-a-lifetime opportunity to end-up actually neutering and spaying one and the same dog.
“That’s just, that’s just really bizarre.”
NT It, it was quite bizarre and you know occasionally these cases do get reported in the veterinary literature. What is more entertaining is how you explain this to a somewhat chauvinistic owner.
TG And how’d it do?
NT Well uh, I um, I like to think that the uh, the feminine side of his male dog brought out the feminine side in him.
TG < laugh> How so?
NT Well because, you know he, um, he did find it difficult. He was um just insistent that this was a male dog and that this couldn’t be happening. This, this hormonally-induced ability to be attracted to the other male dog in the dog park. And so what I ensured the end of the day was that uh he should understand that the man the male side of this dog actually shines through, was the dominant um party, and he seemed to be comfortable with that.
TG You know, one of the supermarkets tabloid seems to specialize in bizarre animal stories. It I wouldn’t be surprised if they picked-up on this one. But they just have a lot of stories about like the biggest cat in the world or half-cat,
NT Right.
TG half-dog.
NT Right.
TG Kind of combine the photos together.
NT Yes.
TG so it’s half-cat, half-dog.
* * *
The point of this piece is to draw show how veterinary medicine is taking on human medical modalities.
This excerpt relates to a dog that had a genetic or perhaps a congenital oddity that Gross identifies with a community of humans that she identifies as “hermaphrodites.”
What do we learn from this?
1. For starters, Gross is misinformed.
The term “hermaphrodite” has long fallen into disuse as objectionable, replaced by the neutral and descriptively correct term “intersexed.” That term has just recently been supplanted (by the medical professionals over the patients’ overwhelming objections) as people with “disorders of sexual development” (DSDs.) But Gross uses the outdated and demeaning term “hermaphrodite.”
2. Gross calls the dog’s condition “bizarre,” and the vet agrees.
But the medical community and society at-large understands that sex and gender variances occur within the human community all the time. Roughly one in 2,000 children are born intersexed.
We’re mammals; so are dogs. If this happens to us with such frequency why should anyone be surprised to see it in a dog? Given the number of canines among us what’s surprising is that the vet has only seen or heard of this one case.
3. Gross is uncomfortable with sex and gender variance.
She punctuates each juncture that she deems sexually amusing, whimsical, titillating or mildly prurient with her signature laugh/guffaw, signaling that it’s a matter we can turn into an off-color joke because it is after all about sex and sex makes us uncomfortable. Why? Fifty-five years into Playboy magazine and we still live in a sexually repressed society?
You’d expect Gross's take from teenagers when they discuss something that makes them nervous – like sex. People do that when they're not fully mature adults.
Maybe Gross just plays it cute for ratings.
4. The vet, who’s a medical professional, doesn’t seem to have a better take on this than does Gross. Toward the end he interjects agreements with her (two rights and a yes) as she trivializes the subject.
5. Gross and the vet’s unease is shared by the men in general if not the public at-large.
The vet relates the dog owner’s discomfort with his hermaphroditic and gender-bending dog. I suspect he sees it as reflecting on him personally. Men who buy fighting animals like pit bulls and tough-looking hyper-masculine dogs like boxers are projecting their animals’ innate aggressiveness. It’s an advertisement – “Don’t mess with me.” It’s the same with their cars – high power and long hood lines to compensate for their likely genital under-endowment. What can be more embarrassing for a macho stud than having a male dog who likes to take it up the ass?
Fathers have the same problem with their less-than-masculine sons.
Too bad Terry Gross missed the larger story. Query whether she could ever have seen it.
TG: This is Fresh Air. I’m Terry Gross.
Animal surgeon Nick Trout has noticed that many pet owners feel more like pet parents. The people that bring their animals to him want him to know how much they love their pets. He loves animals although the cats and dogs he treats might not return the sentiment during his examinations.
We’re going to talk about some of his more unusual cases and how the whole field of veterinary medicine has changed in the past few decades.
* * *
TG I want you to tell us of one of your more challenging cases. And this is a case, I would describe this dog as, um, almost a hermaphrodite?
NT Yeah, yeah…
TG It had, it’s a male dog that had become feminized? It it had, uh, you, why don’t you describe what it had.
NT
NT It, it was quite bizarre and you know occasionally these cases do get reported in the veterinary literature. What is more entertaining is how you explain this to a somewhat chauvinistic owner.
TG And how’d it do?
NT Well uh, I um, I like to think that the uh, the feminine side of his male dog brought out the feminine side in him.
TG < laugh> How so?
NT Well because, you know he, um, he did find it difficult. He was um just insistent that this was a male dog and that this couldn’t be happening. This, this hormonally-induced ability to be attracted to the other male dog in the dog park. And so what I ensured the end of the day was that uh he should understand that the man the male side of this dog actually shines through, was the dominant um party, and he seemed to be comfortable with that.
TG You know, one of the supermarkets tabloid seems to specialize in bizarre animal stories. It
NT Right.
TG half-dog
NT Right.
TG Kind of combine the photos together.
NT Yes.
TG so it’s half-cat, half-dog.
* * *
The point of this piece is to draw show how veterinary medicine is taking on human medical modalities.
This excerpt relates to a dog that had a genetic or perhaps a congenital oddity that Gross identifies with a community of humans that she identifies as “hermaphrodites.”
What do we learn from this?
1. For starters, Gross is misinformed.
The term “hermaphrodite” has long fallen into disuse as objectionable, replaced by the neutral and descriptively correct term “intersexed.” That term has just recently been supplanted (by the medical professionals over the patients’ overwhelming objections) as people with “disorders of sexual development” (DSDs.) But Gross uses the outdated and demeaning term “hermaphrodite.”
2. Gross calls the dog’s condition “bizarre,” and the vet agrees.
But the medical community and society at-large understands that sex and gender variances occur within the human community all the time. Roughly one in 2,000 children are born intersexed.
We’re mammals; so are dogs. If this happens to us with such frequency why should anyone be surprised to see it in a dog? Given the number of canines among us what’s surprising is that the vet has only seen or heard of this one case.
3. Gross is uncomfortable with sex and gender variance.
She punctuates each juncture that she deems sexually amusing, whimsical, titillating or mildly prurient with her signature laugh/guffaw, signaling that it’s a matter we can turn into an off-color joke because it is after all about sex and sex makes us uncomfortable. Why? Fifty-five years into Playboy magazine and we still live in a sexually repressed society?
You’d expect Gross's take from teenagers when they discuss something that makes them nervous – like sex. People do that when they're not fully mature adults.
Maybe Gross just plays it cute for ratings.
4. The vet, who’s a medical professional, doesn’t seem to have a better take on this than does Gross. Toward the end he interjects agreements with her (two rights and a yes) as she trivializes the subject.
5. Gross and the vet’s unease is shared by the men in general if not the public at-large.
The vet relates the dog owner’s discomfort with his hermaphroditic and gender-bending dog. I suspect he sees it as reflecting on him personally. Men who buy fighting animals like pit bulls and tough-looking hyper-masculine dogs like boxers are projecting their animals’ innate aggressiveness. It’s an advertisement – “Don’t mess with me.” It’s the same with their cars – high power and long hood lines to compensate for their likely genital under-endowment. What can be more embarrassing for a macho stud than having a male dog who likes to take it up the ass?
Fathers have the same problem with their less-than-masculine sons.
Too bad Terry Gross missed the larger story. Query whether she could ever have seen it.
Tuesday, December 23, 2008
What did He say?
I can't imagine anyone is surprised that Pope Benedict would attack transsexuals, and how creatively! He speaks so obliquely one could almost confuse him with Alan "what did the Fed chairman say?" Greenspan. Please - someone translate this bit of rhetorical fluff for me:
"The fact that the earth, the cosmos, mirror the creator Spirit, also means that beyond the mathematical order, their rational structures in the experiment become almost palpable, which in itself brings an ethical orientation."
Of course it does.
If we could stick the members of the College of Cardinals in separate rooms and ask them to write out their individual interpretations for us, would anyone be willing to bet that any two of them could come up with the same interpretation?
But isn't it nice to know that the Catholic Church cares. About rain forests. That's why it's leading the charge to save the environment. Or cholera victims in Zimbabwe, a Christian country (except they're black.)
No, it's just anything having to do with sex that disturbs His Holiness' sleep.
And how about this gem:
"Rain forests deserve, yes, our protection but the human being - as a creature which contains a message that is not in contradiction with his freedom but is the condition of his freedom - does not deserve it less."
I always though 'which' is to be preceded by a comma but what do I know?
Does anyone other than the Pontiff really think humanity is threatened by the concept of gender variance? What - people are going to so flock by the droves to change sex/gender (does His Holiness have a clue as to the difference between them?) thus imperiling human reproduction and the continuity of the species? With 6.8 BILLION people on the planet and the Maternal Faithful hard at work popping out more people in ever increasing numbers, is depopulation something we need to worry about?
The rest of us have a lot to worry about - mostly religious fanatics like you-know-who.
"The fact that the earth, the cosmos, mirror the creator Spirit, also means that beyond the mathematical order, their rational structures in the experiment become almost palpable, which in itself brings an ethical orientation."
Of course it does.
If we could stick the members of the College of Cardinals in separate rooms and ask them to write out their individual interpretations for us, would anyone be willing to bet that any two of them could come up with the same interpretation?
But isn't it nice to know that the Catholic Church cares. About rain forests. That's why it's leading the charge to save the environment. Or cholera victims in Zimbabwe, a Christian country (except they're black.)
No, it's just anything having to do with sex that disturbs His Holiness' sleep.
And how about this gem:
"Rain forests deserve, yes, our protection but the human being - as a creature which contains a message that is not in contradiction with his freedom but is the condition of his freedom - does not deserve it less."
I always though 'which' is to be preceded by a comma but what do I know?
Does anyone other than the Pontiff really think humanity is threatened by the concept of gender variance? What - people are going to so flock by the droves to change sex/gender (does His Holiness have a clue as to the difference between them?) thus imperiling human reproduction and the continuity of the species? With 6.8 BILLION people on the planet and the Maternal Faithful hard at work popping out more people in ever increasing numbers, is depopulation something we need to worry about?
The rest of us have a lot to worry about - mostly religious fanatics like you-know-who.
Tuesday, November 25, 2008
Where to from here?
I’m angry. I suspect I’m not alone in this.
A Florida Circuit Court judge (read: trial court judge) has just ruled that the Florida law barring gay couples from adopting is unconstitutional.
I’m not angry about that. That I’m glad about.
No, I’m angry that a lawyer in Orlando who’s allied with the losing side called the judge an “activist judge.”
Let me translate: “activist judge” means “sour grapes.”
Now I’m a lawyer and I don’t like it when a judge rules against me, but it happens. It’s happened to me a lot, especially in my own family law case where three separate judges and a lawyer-arbitrator have each ruled against me. I believe the evidence would prove to any impartial observer that these rulings reflect a shocking degree of gender-based bias but at least the severity of the rulings have been decreasing.
The Religious Right though is something else.
You would think that these people are somewhat chastened by the repudiation they suffered at the polls this past Election Day, but no. They still think they have a god-given right to inject their religious into the civil sphere and subject the rest of us to their theocratic lunacies.
These people are dinosaurs. Perhaps they haven’t heard about the meteor that just hit them. It’s called Barack Obama.
But Obama is just an agent of a larger phenomenon. It’s called The Youth. They are not a monolith but in general as a group they are not buying into their parents’ tired old prejudices.
I wrote about this in a prior blog but in this week’s New Yorker Hendrik Hertzberg encapsulated it very nicely in a piece entitled Eight is Enough. He writes:
“California’s gay activists and their straight allies, judging from their online postmortems, have begun to direct more criticism at themselves than at their opponents. They were complacent: early polls had shown Prop. 8 losing by double digits. Their television ads were timid and ineffective, focussing on worthy abstractions like equality and fairness, while the other side’s were powerfully emotional. (Also dishonest—they implied that gay marriage would threaten churches’ tax exemptions, force church-affiliated adoption agencies to place children with gay couples, and oblige children to attend gay weddings—but that sort of thing was to be expected.)”
I realized the gay leadership was incompetent when I was working with the “No on Prop 8” campaign last spring, going out to shopping centers to sign-up people to pledge not to sign the Prop 8 petition.
I asked for a copy of the Prop 8 Petition I was supposed to ask people not to support. Can you believe the anti-Prop 8 campaign didn’t have one to show me?
And they didn’t want to debate people who said they would support Prop 8.
So I ignored them and I got some of the people who said they would support Prop 8 to change their minds. One was a Jewish poli-sci professor and another was a young black man who had bought into all the biblical nonsense. I let him have it. Of all the people who should have supported gay rights, blacks as a group voted most strongly to further oppress another oppressed minority. Shame on them.
The anti-Prop 8 leadership had to know the Prop 8 proponents were going to pull out all the stops in a last-minute media lying blitz but they did nothing to stop it. Rather than wage an aggressive pre-emptive campaign to confront the Religious Right and nip their lie campaign in the bud before they could gain any traction, the gay leadership pussyfooted around, waging a let’s-be-nice campaign that was a sure loser. It wasn’t until the day after the election they started doing what they should have been doing a month before the election but by then they were literally a day late and tens of millions of wasted dollars short.
As Hertzberg points out, gay (and I feel safe including all LGBT) rights will prevail but I’m angry the loss on Prop 8 will remain a blot, not just on the Religious Right but on the LGBT leadership that failed its constituents.
A Florida Circuit Court judge (read: trial court judge) has just ruled that the Florida law barring gay couples from adopting is unconstitutional.
I’m not angry about that. That I’m glad about.
No, I’m angry that a lawyer in Orlando who’s allied with the losing side called the judge an “activist judge.”
Let me translate: “activist judge” means “sour grapes.”
Now I’m a lawyer and I don’t like it when a judge rules against me, but it happens. It’s happened to me a lot, especially in my own family law case where three separate judges and a lawyer-arbitrator have each ruled against me. I believe the evidence would prove to any impartial observer that these rulings reflect a shocking degree of gender-based bias but at least the severity of the rulings have been decreasing.
The Religious Right though is something else.
You would think that these people are somewhat chastened by the repudiation they suffered at the polls this past Election Day, but no. They still think they have a god-given right to inject their religious into the civil sphere and subject the rest of us to their theocratic lunacies.
These people are dinosaurs. Perhaps they haven’t heard about the meteor that just hit them. It’s called Barack Obama.
But Obama is just an agent of a larger phenomenon. It’s called The Youth. They are not a monolith but in general as a group they are not buying into their parents’ tired old prejudices.
I wrote about this in a prior blog but in this week’s New Yorker Hendrik Hertzberg encapsulated it very nicely in a piece entitled Eight is Enough. He writes:
“California’s gay activists and their straight allies, judging from their online postmortems, have begun to direct more criticism at themselves than at their opponents. They were complacent: early polls had shown Prop. 8 losing by double digits. Their television ads were timid and ineffective, focussing on worthy abstractions like equality and fairness, while the other side’s were powerfully emotional. (Also dishonest—they implied that gay marriage would threaten churches’ tax exemptions, force church-affiliated adoption agencies to place children with gay couples, and oblige children to attend gay weddings—but that sort of thing was to be expected.)”
I realized the gay leadership was incompetent when I was working with the “No on Prop 8” campaign last spring, going out to shopping centers to sign-up people to pledge not to sign the Prop 8 petition.
I asked for a copy of the Prop 8 Petition I was supposed to ask people not to support. Can you believe the anti-Prop 8 campaign didn’t have one to show me?
And they didn’t want to debate people who said they would support Prop 8.
So I ignored them and I got some of the people who said they would support Prop 8 to change their minds. One was a Jewish poli-sci professor and another was a young black man who had bought into all the biblical nonsense. I let him have it. Of all the people who should have supported gay rights, blacks as a group voted most strongly to further oppress another oppressed minority. Shame on them.
The anti-Prop 8 leadership had to know the Prop 8 proponents were going to pull out all the stops in a last-minute media lying blitz but they did nothing to stop it. Rather than wage an aggressive pre-emptive campaign to confront the Religious Right and nip their lie campaign in the bud before they could gain any traction, the gay leadership pussyfooted around, waging a let’s-be-nice campaign that was a sure loser. It wasn’t until the day after the election they started doing what they should have been doing a month before the election but by then they were literally a day late and tens of millions of wasted dollars short.
As Hertzberg points out, gay (and I feel safe including all LGBT) rights will prevail but I’m angry the loss on Prop 8 will remain a blot, not just on the Religious Right but on the LGBT leadership that failed its constituents.
Tuesday, November 11, 2008
What will we ever do about religion?
It’s becoming increasingly clear that religion is the Great Divide, the issue that will make or break us as a species.
Election Night saw Progressives rejoicing across-the-board -- except on the issue of same-sex marriage. Voters in California, Arizona and Florida, who had otherwise voted relatively progressively, skewed to the Right over this sex-driven issue.
Why? Religion. They blindly followed what their church leaders told them – that the Bible (Christian or Jewish – take your pick) commands us to adhere to a strict gender binary – male or female, with no room for anything in-between.
Frankly, I can’t imagine anything more useless than studying theology, not even a business school education (which can be summed up, “buy low, sell high”.) I’m from the Richard Dawkins/George Carlin school on this. Religion is a quaint idea and while I respect anyone’s right to believe in something I personally regard as nonsense, what-the-fuck do I really know about the existence of a deity? I’m just a human, an insignificant mortal to whom no deity has deigned to reveal him/her/itself (I’m covering all the bases – don’t want to piss him/her/it off, just in case he/she/it really does exist) so I’ll suspend judgment on the existence of a deity and just get on with my life, unencumbered by time-wasting theological debates.
But religion is humanity’s answer to a really thorny problem. We’ve fought uncounted battles and slaughtered each other in appalling numbers over whose invisible man-in-the-sky is the real deity, when the answer is “none of the above.” Amazing.
In our society, believers have grown emboldened to believe the rules by which we play as a nation (our federal and state constitutions) allow us to inject personal religious beliefs into the civic discussion. What about the Establishment Clause to the First Amendment? -- “Never heard of it!”
I have to believe the California Supreme Court will rule that the various challenges to the Prop 8 vote are meritorious and it will strike the Prop 8 result. I don’t believe two-thirds of the California Assembly or the State Senate would let Prop 8 be submitted either to the voters or to their representatives in a constitutional convention. With the passage of time, as younger people join the roll of voters, a new LGBT-friendly majority will increasingly define the electorate, especially once the people learn about the full extent of the Prop 8 campaign of lies.
But in the meantime, what do we do about religion?
As it stands, the First Amendment to the U.S. Constitution says that the state shall not establish any religion (the Establishment Clause) and everyone is free to practice his or her own religion (the Free Exercise clause.)
The latter has spawned a curious corollary – the tax deduction for religion. It’s enshrined in Sections 170(a)(1) and 501(c)(3) of the Internal Revenue Code (IRC, or “the Code”.)
Section 170 reads as follows (in pertinent part):
Sec. 170. Charitable, etc., contributions and gifts
(a) Allowance of deduction.
(1) General rule. There shall be allowed as a deduction any charitable contribution
(as defined in subsection (c)) payment of which is made within the taxable year.
Section 501(c)(3) lets a charity avoid paying tax on the income it receives. Religious organizations (like churches) qualify for 501(c)(3) treatment so long as they stick to religion and stay out of things in the civil sphere, like politics.
The question now being hotly debated (and the subject of the many post-election street protests) is whether churches that advocated for Prop 8 overstepped that line.
I think the answer is a no-brainer: Of course they did.
Here’s how the deal works:
My neighbor pays tax on his income. But he doesn’t pay tax on money he gives to his religious organization of choice (his church.) And unlike just about any other recipient of money, the church doesn’t pay tax on its receipt of that money nor does the donor pay a gift tax on the transfer. The result is a tax-exempt flow of cash to the church.
The church doesn’t pay any other taxes either. If it burns the fire department will come out to quell the fire and if there’s a disturbance the police will respond. But the church is exempt from local taxes that would pay for these kinds of things. There’s more but you get the idea.
So who picks up the tab for this subsidy? You guessed it – the rest of us – you and me, whether we believe in their religion or not. Why?
The religious folks have come to believe that this tax subsidy is their right under the Free Exercise clause, that if they’re taxed like the rest of us it’s somehow an unconstitutional imposition or restriction of their right to practice their religion.
Of course it’s not. We’re just asking them to pay their own way without asking us, those who don’t share their religious beliefs, to pick up their tab. They’re still free to indulge their irrational religious beliefs to their hearts’ content. They just have to obey one little law, a quid-pro-quo for this privilege of being tax-exempt – stick to religion and stay out of the public sphere.
But that’s a problem for them. Their religion seems to tell them they have to go out and make their business everyone else’s business. Their god tells them so.
So if their god tells them to discriminate against gay people they feel the entire society in which they live must also obey their religion’s commandment. They believe their religion has got to be everywhere – not just in their churches but in all the businesses their churches might engage in, like hospitals. And not just in their private religious schools but in the public schools that are supported by taxpayer dollars, money collected from people like me who don’t believe in their religion or its curious ideas. They believe it’s their right to inject their religion into areas where the law has been clear – “This is a religion free zone.”
They want to be free to discriminate against people who don’t share their religious beliefs. They don’t want to have to hire them – not just in their churches but everywhere else, even though our laws are increasingly telling them they can’t do that, not in non-religious enterprises.
They’ve convinced themselves (by listening to their clergy, whose ignorance on this is truly appalling) that this country is a Christian country, that the Founding Fathers said so. They ignore and refuse to acknowledge any documentary evidence, proof really, that the Founding Fathers said no such thing, that in fact they said just the opposite. It’s maddening, infuriating.
What’s the solution?
I don’t believe it will ever be possible to disabuse these people, or all of them anyway, of their belief in the Invisible-Man-in-the-Sky. Not gonna happen. Irrational belief in stuff like this may be programmed into our genes, that maybe the ability to believe in a deity conferred a survival advantage on early humans.
Think about it. Early hominids emerging into consciousness were defined in part by their ability to think not just in the present or even the past but into the future, and when they did one of the very first things they realized was that each and every one of them was going to die. They saw it all around them. Animals do too but animals don’t make the logical step into realizing maybe they are next. Humans did, and it probably came as a big shock.
I remember when my daughter came to this realization. She was ten, and she was greatly disturbed.
I had to laugh – not at her but with her because I was her age when I had the very same epiphany. I told her as gently as I could it was ok, that it happens to everyone but that what’s important is to live the life you have as fully and as meaningfully as you can.
One thing I didn’t tell her was that death is part of God’s plan or that any deity had anything to do with it.
But not everyone can deal with this very disturbing fact with such objectivity. The idea that we can’t know what happens after we die, that maybe the lights just go out, that this is it, it’s over and there is no tomorrow – that’s too much for most people. They have to believe that they continue, somehow, somewhere. And they have to believe they’re not alone, that there is a god who loves them and won’t let the terrible things they see and hear of happening in the news each and every day happen to them.
People who don’t believe in a hereafter suffer a multitude of ills. We all know we’re going to die but it’s an easier pill if we know it isn’t The End. I often find myself tempted. I too want to believe but my intellect holds me back. I know I’d probably be happier if I could believe. I’ve tried, really I have, but belief just never happened. The best I can do is admit I’m too insignificant to know. I don’t know why but the deity has just never deigned to speak to me and sorry but I just can’t take anyone else’s word for it, especially if that person or those persons are long, long dead. I adopt their virtue of humility and avow that I’m just too insignificant to know. That’s the message of Job. But still I pledge to “do the right thing” even if I now there is no deity who will judge me when I die and I won’t fear eternal damnation because I don’t believe in him/her/it. I will try to die content knowing that on balance I lived a good life simply because something inside me unrelated to a belief in a deity tells me it’s the right thing to do, that I simply feel good doing the right thing, period.
If I do hope for the existence of a deity it will be so that I may meet that entity and it will then disclose to me the secrets of creation, including quantum mechanics and maybe integral calculus. If there is no deity and the lights really just do go out, that’s ok too. I will be swallowed-up by the Cosmos, whatever that is. There may not be a deity but there is an order to the Universe. Einstein told us so. That’s enough for me.
But I digress.
The flood of Christian (including out-of-state Mormon) money that defeated Prop 8 was subsidized by the rest of us. The dollars themselves were not tax exempt but they were propelled by the voices of their clergy whose livelihoods and employment are tax-exempt, so IRC sections 170(a)(1) and 501(c)(3) were instrumental in defeating Prop 8.
The answer is to get rid of the tax deduction for religion – all of it. Level the playing field. People would still be free to practice their religion. They just would not get a free ride out of my pocketbook to pay for it.
At the same time we should get rid of all the other deductions, like mortgage interest. Get government out of the business of making value judgments about which activity is right and which is wrong. No more incentives, at least not tax-fueled. As the Right would say, let the market decide. That will take care of 90+ percent of all the tax complexities. Keep a graduated tax structure so that the poor are not taxed on money they need just to survive and those who have the most pay the most. That’s not socialism -- it’s how it was in 1913 when Congress enacted the income tax and it persisted until World War II.
But that’s another essay for another day.
Election Night saw Progressives rejoicing across-the-board -- except on the issue of same-sex marriage. Voters in California, Arizona and Florida, who had otherwise voted relatively progressively, skewed to the Right over this sex-driven issue.
Why? Religion. They blindly followed what their church leaders told them – that the Bible (Christian or Jewish – take your pick) commands us to adhere to a strict gender binary – male or female, with no room for anything in-between.
Frankly, I can’t imagine anything more useless than studying theology, not even a business school education (which can be summed up, “buy low, sell high”.) I’m from the Richard Dawkins/George Carlin school on this. Religion is a quaint idea and while I respect anyone’s right to believe in something I personally regard as nonsense, what-the-fuck do I really know about the existence of a deity? I’m just a human, an insignificant mortal to whom no deity has deigned to reveal him/her/itself (I’m covering all the bases – don’t want to piss him/her/it off, just in case he/she/it really does exist) so I’ll suspend judgment on the existence of a deity and just get on with my life, unencumbered by time-wasting theological debates.
But religion is humanity’s answer to a really thorny problem. We’ve fought uncounted battles and slaughtered each other in appalling numbers over whose invisible man-in-the-sky is the real deity, when the answer is “none of the above.” Amazing.
In our society, believers have grown emboldened to believe the rules by which we play as a nation (our federal and state constitutions) allow us to inject personal religious beliefs into the civic discussion. What about the Establishment Clause to the First Amendment? -- “Never heard of it!”
I have to believe the California Supreme Court will rule that the various challenges to the Prop 8 vote are meritorious and it will strike the Prop 8 result. I don’t believe two-thirds of the California Assembly or the State Senate would let Prop 8 be submitted either to the voters or to their representatives in a constitutional convention. With the passage of time, as younger people join the roll of voters, a new LGBT-friendly majority will increasingly define the electorate, especially once the people learn about the full extent of the Prop 8 campaign of lies.
But in the meantime, what do we do about religion?
As it stands, the First Amendment to the U.S. Constitution says that the state shall not establish any religion (the Establishment Clause) and everyone is free to practice his or her own religion (the Free Exercise clause.)
The latter has spawned a curious corollary – the tax deduction for religion. It’s enshrined in Sections 170(a)(1) and 501(c)(3) of the Internal Revenue Code (IRC, or “the Code”.)
Section 170 reads as follows (in pertinent part):
Sec. 170. Charitable, etc., contributions and gifts
(a) Allowance of deduction.
(1) General rule. There shall be allowed as a deduction any charitable contribution
(as defined in subsection (c)) payment of which is made within the taxable year.
Section 501(c)(3) lets a charity avoid paying tax on the income it receives. Religious organizations (like churches) qualify for 501(c)(3) treatment so long as they stick to religion and stay out of things in the civil sphere, like politics.
The question now being hotly debated (and the subject of the many post-election street protests) is whether churches that advocated for Prop 8 overstepped that line.
I think the answer is a no-brainer: Of course they did.
Here’s how the deal works:
My neighbor pays tax on his income. But he doesn’t pay tax on money he gives to his religious organization of choice (his church.) And unlike just about any other recipient of money, the church doesn’t pay tax on its receipt of that money nor does the donor pay a gift tax on the transfer. The result is a tax-exempt flow of cash to the church.
The church doesn’t pay any other taxes either. If it burns the fire department will come out to quell the fire and if there’s a disturbance the police will respond. But the church is exempt from local taxes that would pay for these kinds of things. There’s more but you get the idea.
So who picks up the tab for this subsidy? You guessed it – the rest of us – you and me, whether we believe in their religion or not. Why?
The religious folks have come to believe that this tax subsidy is their right under the Free Exercise clause, that if they’re taxed like the rest of us it’s somehow an unconstitutional imposition or restriction of their right to practice their religion.
Of course it’s not. We’re just asking them to pay their own way without asking us, those who don’t share their religious beliefs, to pick up their tab. They’re still free to indulge their irrational religious beliefs to their hearts’ content. They just have to obey one little law, a quid-pro-quo for this privilege of being tax-exempt – stick to religion and stay out of the public sphere.
But that’s a problem for them. Their religion seems to tell them they have to go out and make their business everyone else’s business. Their god tells them so.
So if their god tells them to discriminate against gay people they feel the entire society in which they live must also obey their religion’s commandment. They believe their religion has got to be everywhere – not just in their churches but in all the businesses their churches might engage in, like hospitals. And not just in their private religious schools but in the public schools that are supported by taxpayer dollars, money collected from people like me who don’t believe in their religion or its curious ideas. They believe it’s their right to inject their religion into areas where the law has been clear – “This is a religion free zone.”
They want to be free to discriminate against people who don’t share their religious beliefs. They don’t want to have to hire them – not just in their churches but everywhere else, even though our laws are increasingly telling them they can’t do that, not in non-religious enterprises.
They’ve convinced themselves (by listening to their clergy, whose ignorance on this is truly appalling) that this country is a Christian country, that the Founding Fathers said so. They ignore and refuse to acknowledge any documentary evidence, proof really, that the Founding Fathers said no such thing, that in fact they said just the opposite. It’s maddening, infuriating.
What’s the solution?
I don’t believe it will ever be possible to disabuse these people, or all of them anyway, of their belief in the Invisible-Man-in-the-Sky. Not gonna happen. Irrational belief in stuff like this may be programmed into our genes, that maybe the ability to believe in a deity conferred a survival advantage on early humans.
Think about it. Early hominids emerging into consciousness were defined in part by their ability to think not just in the present or even the past but into the future, and when they did one of the very first things they realized was that each and every one of them was going to die. They saw it all around them. Animals do too but animals don’t make the logical step into realizing maybe they are next. Humans did, and it probably came as a big shock.
I remember when my daughter came to this realization. She was ten, and she was greatly disturbed.
I had to laugh – not at her but with her because I was her age when I had the very same epiphany. I told her as gently as I could it was ok, that it happens to everyone but that what’s important is to live the life you have as fully and as meaningfully as you can.
One thing I didn’t tell her was that death is part of God’s plan or that any deity had anything to do with it.
But not everyone can deal with this very disturbing fact with such objectivity. The idea that we can’t know what happens after we die, that maybe the lights just go out, that this is it, it’s over and there is no tomorrow – that’s too much for most people. They have to believe that they continue, somehow, somewhere. And they have to believe they’re not alone, that there is a god who loves them and won’t let the terrible things they see and hear of happening in the news each and every day happen to them.
People who don’t believe in a hereafter suffer a multitude of ills. We all know we’re going to die but it’s an easier pill if we know it isn’t The End. I often find myself tempted. I too want to believe but my intellect holds me back. I know I’d probably be happier if I could believe. I’ve tried, really I have, but belief just never happened. The best I can do is admit I’m too insignificant to know. I don’t know why but the deity has just never deigned to speak to me and sorry but I just can’t take anyone else’s word for it, especially if that person or those persons are long, long dead. I adopt their virtue of humility and avow that I’m just too insignificant to know. That’s the message of Job. But still I pledge to “do the right thing” even if I now there is no deity who will judge me when I die and I won’t fear eternal damnation because I don’t believe in him/her/it. I will try to die content knowing that on balance I lived a good life simply because something inside me unrelated to a belief in a deity tells me it’s the right thing to do, that I simply feel good doing the right thing, period.
If I do hope for the existence of a deity it will be so that I may meet that entity and it will then disclose to me the secrets of creation, including quantum mechanics and maybe integral calculus. If there is no deity and the lights really just do go out, that’s ok too. I will be swallowed-up by the Cosmos, whatever that is. There may not be a deity but there is an order to the Universe. Einstein told us so. That’s enough for me.
But I digress.
The flood of Christian (including out-of-state Mormon) money that defeated Prop 8 was subsidized by the rest of us. The dollars themselves were not tax exempt but they were propelled by the voices of their clergy whose livelihoods and employment are tax-exempt, so IRC sections 170(a)(1) and 501(c)(3) were instrumental in defeating Prop 8.
The answer is to get rid of the tax deduction for religion – all of it. Level the playing field. People would still be free to practice their religion. They just would not get a free ride out of my pocketbook to pay for it.
At the same time we should get rid of all the other deductions, like mortgage interest. Get government out of the business of making value judgments about which activity is right and which is wrong. No more incentives, at least not tax-fueled. As the Right would say, let the market decide. That will take care of 90+ percent of all the tax complexities. Keep a graduated tax structure so that the poor are not taxed on money they need just to survive and those who have the most pay the most. That’s not socialism -- it’s how it was in 1913 when Congress enacted the income tax and it persisted until World War II.
But that’s another essay for another day.
Thursday, November 6, 2008
Prop 8 -- the day after
On November 4th Proposition 8 won and for the time being same-sex marriage is no longer an option in California. Voters in Florida and Arizona passed similar state constitutional anti-gay marriage bans, signaling that sex and gender-based discrimination remains the major national culture war hot-button issue.
Another California ballot initiative, Proposition 2, was for the humane treatment of farm animals. It won with 63.3% of the vote – nearly two full points more than Obama’s margin of victory in the California popular vote. By contrast, only 52.2% California voters voted against same-sex marriage. It was a closest margin of any of the twelve California ballot initiatives. Sadly, more people seem inclined to accord rights to animals than to fellow human beings.
Timing is everything.
312 years after the end of the Thirty Years’ War, a Catholic was elected president in Protestant America. Forty-eight years later, we look back on that election and wonder what the big deal. But John Kennedy’s religion was a major issue in the 1960 election. I remember. I was eleven years old and I canvassed my neighborhood for Kennedy.
Try to imagine any attempt ten years ago to limit factory farms and afford some measure of protection against cruelty to animals we eat – it wasn’t gonna happen.
Somehow, sex-based prejudice is harder to end. Why? Probably because of religion. Christian, Jewish and Muslim religious leaders perceived same-sex marriage as an existential threat and banded together to kill it.
The Religious Right got away with lying to Californians (and Arizonans and Floridians) about same-sex marriage. I’ve heard telling that Prop 8 proponents were calling and telling same-sex marriage supporters that a vote for Prop 8 was a vote for same-sex marriage – just the opposite of the initiative’s clear language. At the same time, California voters rejected the McCain/Palin campaign’s massive lies about Obama and the agribusiness lies.
Once upon a time it seems government limited the role of religion in the public sphere. That seems to be over. At least one U.S. Supreme Court justice has declared America to be a Christian nation. Tax-exempt money from religious groups, notably the Knights of Columbus and the Mormon Church, flooded California airwaves with the most outrageous lies to fuel anti-gay hatred to ban civil sector marriages they oppose on religious grounds -- a clear violation of the separation of church and state.
But the same-sex marriage issue isn’t over in California.
How many kids think “democracy” means that a bare majority has the right to dictate to the 49% minority? How many adults? George W. Bush and Dick Cheney do. Barack Obama says he does not.
One of the purposes of any constitution in a democracy is to protect the rights of minorities from the tyranny of the majority. Yet Prop 8 would change the California constitution to allow a bare 50+ percent of the vote to deprive gays and lesbians their right to marry whomever they choose.
The California Supreme Court and the U.S. Supreme Court both recognize marriage to be a fundamental right. Therefore, any attempt to deprive anyone of the right to marry anyone of their choosing is a major big deal. It’s not the kind of thing any society would allow a bare 50+ percentage of voters to do to the other 49%. Therefore, in just about every state and the Federal constitution, it usually takes more than a bare majority, usually a 2/3 vote somewhere along the line, usually in the legislature or a constitutional convention.
The California constitution speaks to two manners of constitutional changes – amendments and revisions. Amendments are for minor matters while revisions are for major changes. Taking away someone’s right to marry someone of their choosing is a major change to basic rights and therefore would not be properly by amendment but rather a revision. The procedure is set out in California Constitution Article 18. The language is anything but straightforward but cases interpret it to require a 2/3 legislative vote to get a measure before the voters who can then pass it by a simple majority vote. Submitting a major change proposal to the voters without a prior ok from both legislative houses is not allowed but that’s what happened.
Prop 8 was put to the voters as an amendment in a simple majority vote without legislative review and 2/3 approval. The day after the election several groups and cities filed for California Supreme Court review to void the result.
Beyond that, the evidence is mounting that Prop 8 proponents relied principally on fraud to make their case. They alleged that same-sex marriage would impinge on religious freedoms, forcing children to learn about homosexuality and accept a homosexual lifestyle.
Lying didn’t work last night for McCain/Palin or for the big agribusiness conglomerates but it did for the Religious Right. And they succeeded in injecting religious considerations into the public sphere. Thus, they were able to bypass the California Supreme Court’s May 2008 ruling that overturned the 2000 California Prop 22 initiative that enacted a law banning same-sex marriage, in part on separation of church and state grounds.
I suppose if I were the Religious Right I would have done the same. Time was not on their side.
Prop 22 was supported by 61% of Californians. Eight years later and that number dropped to 52% and polls were telling the Religious Right that the trend was toward outright majority acceptance of same-sex marriage in coming years as the electorate skewed younger, so 2008 was their decision time. The prospect of an Obama presidential bully pulpit probably fueled their decision as well.
Hopefully, a court challenge will reverse last night’s Prop 8 win and the next anti-gay measure to curtail same-sex marriage will lose decisively, no matter what the deciding forum may be.
Beyond that, one hopes the Obama era will hasten a shift in attitudes about sex-based discrimination, and not just among the young. The first battleground issue may be a fully gender-inclusive ENDA in the next Congressional session.
In September 2007 Barney Frank and Nancy Pelosi threw us under the bus. Their given reason was the lack of votes among Democrats, especially the newly-elected “blue dog” (read: conservative) House members.
A lot has happened in the year since then.
Rahm Emanuel masterminded the 2006 Democratic takeover of the House of Representatives by engineering those thirty “blue dog” Democrats' elections in nominally Republican districts. Pelosi/Frank’s excuse was that these people were not transgender friendly. I never saw any report that anyone ever lobbied these people no one has ever explained what if anything our leadership did to educate them. Instead, we’ve been asked to accept on faith that they did.
I’m from Missouri.
In the year since the ENDA debacle a new scientific study from Australia reports persuasive evidence of a genetic basis for transsexuality. Another issued from UCLA, where Prof. Eric Vilain has been reporting this for years. The press increasingly reports positively on transgender issues, particularly regarding tg-identified children, while our enemies are losing traction as they hew to the same tired old arguments based on slanted psychology and religious prejudice. We won a major battle in Montgomery County, Maryland for a trans-inclusive ordinance and fended-off a similar challenge in Gainesville, Florida.
Emanuel has just accepted the post of Obama’s chief-of-staff. He now has seventeen additional Democrats on top of the majority we got in 2006 and at least fifty-six Democratic senators.
Timing is still everything, and now is our time.
Another California ballot initiative, Proposition 2, was for the humane treatment of farm animals. It won with 63.3% of the vote – nearly two full points more than Obama’s margin of victory in the California popular vote. By contrast, only 52.2% California voters voted against same-sex marriage. It was a closest margin of any of the twelve California ballot initiatives. Sadly, more people seem inclined to accord rights to animals than to fellow human beings.
Timing is everything.
312 years after the end of the Thirty Years’ War, a Catholic was elected president in Protestant America. Forty-eight years later, we look back on that election and wonder what the big deal. But John Kennedy’s religion was a major issue in the 1960 election. I remember. I was eleven years old and I canvassed my neighborhood for Kennedy.
Try to imagine any attempt ten years ago to limit factory farms and afford some measure of protection against cruelty to animals we eat – it wasn’t gonna happen.
Somehow, sex-based prejudice is harder to end. Why? Probably because of religion. Christian, Jewish and Muslim religious leaders perceived same-sex marriage as an existential threat and banded together to kill it.
The Religious Right got away with lying to Californians (and Arizonans and Floridians) about same-sex marriage. I’ve heard telling that Prop 8 proponents were calling and telling same-sex marriage supporters that a vote for Prop 8 was a vote for same-sex marriage – just the opposite of the initiative’s clear language. At the same time, California voters rejected the McCain/Palin campaign’s massive lies about Obama and the agribusiness lies.
Once upon a time it seems government limited the role of religion in the public sphere. That seems to be over. At least one U.S. Supreme Court justice has declared America to be a Christian nation. Tax-exempt money from religious groups, notably the Knights of Columbus and the Mormon Church, flooded California airwaves with the most outrageous lies to fuel anti-gay hatred to ban civil sector marriages they oppose on religious grounds -- a clear violation of the separation of church and state.
But the same-sex marriage issue isn’t over in California.
How many kids think “democracy” means that a bare majority has the right to dictate to the 49% minority? How many adults? George W. Bush and Dick Cheney do. Barack Obama says he does not.
One of the purposes of any constitution in a democracy is to protect the rights of minorities from the tyranny of the majority. Yet Prop 8 would change the California constitution to allow a bare 50+ percent of the vote to deprive gays and lesbians their right to marry whomever they choose.
The California Supreme Court and the U.S. Supreme Court both recognize marriage to be a fundamental right. Therefore, any attempt to deprive anyone of the right to marry anyone of their choosing is a major big deal. It’s not the kind of thing any society would allow a bare 50+ percentage of voters to do to the other 49%. Therefore, in just about every state and the Federal constitution, it usually takes more than a bare majority, usually a 2/3 vote somewhere along the line, usually in the legislature or a constitutional convention.
The California constitution speaks to two manners of constitutional changes – amendments and revisions. Amendments are for minor matters while revisions are for major changes. Taking away someone’s right to marry someone of their choosing is a major change to basic rights and therefore would not be properly by amendment but rather a revision. The procedure is set out in California Constitution Article 18. The language is anything but straightforward but cases interpret it to require a 2/3 legislative vote to get a measure before the voters who can then pass it by a simple majority vote. Submitting a major change proposal to the voters without a prior ok from both legislative houses is not allowed but that’s what happened.
Prop 8 was put to the voters as an amendment in a simple majority vote without legislative review and 2/3 approval. The day after the election several groups and cities filed for California Supreme Court review to void the result.
Beyond that, the evidence is mounting that Prop 8 proponents relied principally on fraud to make their case. They alleged that same-sex marriage would impinge on religious freedoms, forcing children to learn about homosexuality and accept a homosexual lifestyle.
Lying didn’t work last night for McCain/Palin or for the big agribusiness conglomerates but it did for the Religious Right. And they succeeded in injecting religious considerations into the public sphere. Thus, they were able to bypass the California Supreme Court’s May 2008 ruling that overturned the 2000 California Prop 22 initiative that enacted a law banning same-sex marriage, in part on separation of church and state grounds.
I suppose if I were the Religious Right I would have done the same. Time was not on their side.
Prop 22 was supported by 61% of Californians. Eight years later and that number dropped to 52% and polls were telling the Religious Right that the trend was toward outright majority acceptance of same-sex marriage in coming years as the electorate skewed younger, so 2008 was their decision time. The prospect of an Obama presidential bully pulpit probably fueled their decision as well.
Hopefully, a court challenge will reverse last night’s Prop 8 win and the next anti-gay measure to curtail same-sex marriage will lose decisively, no matter what the deciding forum may be.
Beyond that, one hopes the Obama era will hasten a shift in attitudes about sex-based discrimination, and not just among the young. The first battleground issue may be a fully gender-inclusive ENDA in the next Congressional session.
In September 2007 Barney Frank and Nancy Pelosi threw us under the bus. Their given reason was the lack of votes among Democrats, especially the newly-elected “blue dog” (read: conservative) House members.
A lot has happened in the year since then.
Rahm Emanuel masterminded the 2006 Democratic takeover of the House of Representatives by engineering those thirty “blue dog” Democrats' elections in nominally Republican districts. Pelosi/Frank’s excuse was that these people were not transgender friendly. I never saw any report that anyone ever lobbied these people no one has ever explained what if anything our leadership did to educate them. Instead, we’ve been asked to accept on faith that they did.
I’m from Missouri.
In the year since the ENDA debacle a new scientific study from Australia reports persuasive evidence of a genetic basis for transsexuality. Another issued from UCLA, where Prof. Eric Vilain has been reporting this for years. The press increasingly reports positively on transgender issues, particularly regarding tg-identified children, while our enemies are losing traction as they hew to the same tired old arguments based on slanted psychology and religious prejudice. We won a major battle in Montgomery County, Maryland for a trans-inclusive ordinance and fended-off a similar challenge in Gainesville, Florida.
Emanuel has just accepted the post of Obama’s chief-of-staff. He now has seventeen additional Democrats on top of the majority we got in 2006 and at least fifty-six Democratic senators.
Timing is still everything, and now is our time.
Sunday, October 26, 2008
Prop 8, cont.
In June 2003 the U.S. Supreme Court decided Lawrence v. Texas, reversing itself in a 6-3 vote and overturning the Texas statute that criminalized consensual homosexual sodomy.
The gay community had won a major victory. They had tasted a very sweet victory. The media was awash with stories and pictures of gay couples, male and female, embracing, kissing, and generally rejoicing. The gay community was on a roll.
Gay people tend toward exuberance. In this case, it wasn’t irrational. The City of San Francisco started issuing marriage licenses to gay couples.
My own initial reaction was that gay marriage was problematic. Maybe the straights who tied marriage to children had a point, maybe not, but could they be dismissed so easily? I wasn’t sure. Many jurisdictions had enacted civil union laws that addressed the black letter legal discrimination issues gay couples faced. Wasn’t that sufficient?
Didn’t gays understand the political climate in which they lived? As a transgendered woman, I sure did. Couldn’t they see the reaction they would engender among the legions of politically conservative, sexually repressed red-staters? Was that something they could blithely ignore, or did they? Were they just taking a firm, militant stand and declaring that their right to marry was simply non-negotiable?
I thought about this last September when the Democratic House leadership decided that they couldn’t get enough votes to pass a transgender-inclusive ENDA. The gay and lesbian community was split. A lot of them didn’t want to wait for “theirs” while we fought for “ours.” But many others understood that gender expression was their issue too and that without a gender identity inclusive ENDA a sexual-orientation inclusive ENDA victory was hollow and insubstantial.
Eleven months after Lawrence, the Supreme Judicial Court for the Commonwealth of Massachusetts issued yet another landmark decision in Goodridge v. Dept. of Public Health. This one legalized same-sex marriage.
I wasn’t really surprised. Massachusetts is often ahead of the rest of the country, although not necessarily by much. Goodridge was decided 4-3. My own law school criminal law professor had been appointed chief justice by then-governor Mike Dukakis (they’re both Greek-Americans) and I recalled his witty classroom irreverencies. I noticed too the name of the lawyer for the Commonwealth. She had sat three rows behind me in my first-year section. She made law review and was nobody’s fool. But she was no doubt also a good soldier but I wondered how vigorous she’d argued the Commonwealth’s position.
On legal matters I tell people, “When in doubt, read the opinion.” It sounded like good advice here so I read some of the briefs and I read the decision. Legal texts aren’t exactly light reading but sometimes they’re worth the effort. This one was.
The Court analyzed thoroughly every argument, pro and con, ultimately buying into all the arguments made by the proponents of same-sex marriage. They made sense. The other side did not. It was that simple. Basically, denial of same-sex marriage violated every concept of due process and equal protection. The anti-same-sex arguments all boiled down to one thing: religion. That we’d always done it this way. That this is how society’s been for thousands of years. It’s in the Bible.
Fortunately, the Court was firm: Under the Massachusetts constitution and the Establishment Clause of the First Amendment to the U.S. Constitution, religion may not be determine civil policy. Someone please tell that to Tony Scalia.
I felt a little sheepish for having equivocated but it was a valuable lesson. If I could be swayed by prejudice, and I’m a post-op transsexual, what about the Great Unwashed? How could they ever be expected to get it?
And get it they don’t.
One of the untoward but predictable consequences was the media orgy of pictures showing over-the-top gay marriage partners totally out-of-control kissing(!!) on San Francisco City Hall steps followed by the wave of vehement anti-gay backlash expressed in a 2006 raft of anti-same-sex statutes and ballot referenda that enshrined prohibitions against gay marriage in no less than twenty-seven state constitutions. It’s the nuclear option – a prohibition untouchable by state lawmakers, governors and judges.
On the other hand, this year the California and Connecticut state supreme courts followed the Massachusetts lead in decisions that declared same-sex marriage legal in those states. In response, the forces of darkness placed Proposition 8 on the November 4th California ballot. It’s a voter initiative that would add California to the list of states with a constitutional amendment banning same-sex marriage.
Only one state has rejected such a constitutional amendment – Arizona(!!!) – a dyed-in-the-wool red state! Whould’ve thunk it? I’m not sure why.
In April I joined other volunteers on the streets asking people not to sign the ballot petition. We weren’t successful. Now we have to defeat it it the polls, even though there’s a chance that even if we lose the amendment would fail because the proposal is more than a mere amendment – it’s really a “revision,” and therefore can only be effected by either a 2/3 vote in Sacramento or a constitutional convention.
The L.A. Times reports that both sides have spent collectively more than $60 million. The out-of-state money, much of it from right-wing Christian organizations, has closed what had been a comfortable pro-same-sex marriage margin. The race is now too close to call.
I think I understand what the antis are thinking. After all, I used to entertain the same thoughts that drive them, sort of. But I opened my eyes and my mind and I learned better.
Logically, same-sex marriage makes sense. It's the only intellectually honest position. The only argument against it doesn’t stand up to the clear language of the states’ and U.S. constitutions addressing equal protection, due process and separation of church and state. We are not a theocracy – not yet. God help us if that’s what we ever become.
Civil unions don’t hack it either. Marriage is a “fundamental right” for every living person and people just see you differently if you tell them you’re in a civil union rather than a marriage. The denial of equal protection is simply a fact of life and it’s wrong wrong wrong.
I’ve been dating a man for several months now. Last night the subject of marriage came up in conversation. This morning over breakfast he asked me how I felt about it.
My California driver’s license reads “Sex: F.” So does my passport. The Social Security Administration says I’m female. So does the City of New York, which issued me a corrected birth certificate. So I could (if I wanted, and if he were to ask) actually marry this man legally, at least in the State of California – even if Prop 8 were to pass, at least until the yahoos came after me and my community specifically.
Maybe they will, maybe they won’t. In the meantime, hopefully Barack Obama will be elected together with Democratic majorities in the House and Senate, ushering in a new New Deal that will lift the veil of prejudice and repression against gender variance from sea to shining sea. Perhaps the people who passed state constitutional amendments will reconsider and will repeal those amendments. Who knows? Perhaps Newt Gingrich and Bill Clinton will be taking warm showers together. One can only hope.
So this afternoon I’ll rejoin my new MoveOn friends, calling undecided voters in swing states.
The gay community had won a major victory. They had tasted a very sweet victory. The media was awash with stories and pictures of gay couples, male and female, embracing, kissing, and generally rejoicing. The gay community was on a roll.
Gay people tend toward exuberance. In this case, it wasn’t irrational. The City of San Francisco started issuing marriage licenses to gay couples.
My own initial reaction was that gay marriage was problematic. Maybe the straights who tied marriage to children had a point, maybe not, but could they be dismissed so easily? I wasn’t sure. Many jurisdictions had enacted civil union laws that addressed the black letter legal discrimination issues gay couples faced. Wasn’t that sufficient?
Didn’t gays understand the political climate in which they lived? As a transgendered woman, I sure did. Couldn’t they see the reaction they would engender among the legions of politically conservative, sexually repressed red-staters? Was that something they could blithely ignore, or did they? Were they just taking a firm, militant stand and declaring that their right to marry was simply non-negotiable?
I thought about this last September when the Democratic House leadership decided that they couldn’t get enough votes to pass a transgender-inclusive ENDA. The gay and lesbian community was split. A lot of them didn’t want to wait for “theirs” while we fought for “ours.” But many others understood that gender expression was their issue too and that without a gender identity inclusive ENDA a sexual-orientation inclusive ENDA victory was hollow and insubstantial.
Eleven months after Lawrence, the Supreme Judicial Court for the Commonwealth of Massachusetts issued yet another landmark decision in Goodridge v. Dept. of Public Health. This one legalized same-sex marriage.
I wasn’t really surprised. Massachusetts is often ahead of the rest of the country, although not necessarily by much. Goodridge was decided 4-3. My own law school criminal law professor had been appointed chief justice by then-governor Mike Dukakis (they’re both Greek-Americans) and I recalled his witty classroom irreverencies. I noticed too the name of the lawyer for the Commonwealth. She had sat three rows behind me in my first-year section. She made law review and was nobody’s fool. But she was no doubt also a good soldier but I wondered how vigorous she’d argued the Commonwealth’s position.
On legal matters I tell people, “When in doubt, read the opinion.” It sounded like good advice here so I read some of the briefs and I read the decision. Legal texts aren’t exactly light reading but sometimes they’re worth the effort. This one was.
The Court analyzed thoroughly every argument, pro and con, ultimately buying into all the arguments made by the proponents of same-sex marriage. They made sense. The other side did not. It was that simple. Basically, denial of same-sex marriage violated every concept of due process and equal protection. The anti-same-sex arguments all boiled down to one thing: religion. That we’d always done it this way. That this is how society’s been for thousands of years. It’s in the Bible.
Fortunately, the Court was firm: Under the Massachusetts constitution and the Establishment Clause of the First Amendment to the U.S. Constitution, religion may not be determine civil policy. Someone please tell that to Tony Scalia.
I felt a little sheepish for having equivocated but it was a valuable lesson. If I could be swayed by prejudice, and I’m a post-op transsexual, what about the Great Unwashed? How could they ever be expected to get it?
And get it they don’t.
One of the untoward but predictable consequences was the media orgy of pictures showing over-the-top gay marriage partners totally out-of-control kissing(!!) on San Francisco City Hall steps followed by the wave of vehement anti-gay backlash expressed in a 2006 raft of anti-same-sex statutes and ballot referenda that enshrined prohibitions against gay marriage in no less than twenty-seven state constitutions. It’s the nuclear option – a prohibition untouchable by state lawmakers, governors and judges.
On the other hand, this year the California and Connecticut state supreme courts followed the Massachusetts lead in decisions that declared same-sex marriage legal in those states. In response, the forces of darkness placed Proposition 8 on the November 4th California ballot. It’s a voter initiative that would add California to the list of states with a constitutional amendment banning same-sex marriage.
Only one state has rejected such a constitutional amendment – Arizona(!!!) – a dyed-in-the-wool red state! Whould’ve thunk it? I’m not sure why.
In April I joined other volunteers on the streets asking people not to sign the ballot petition. We weren’t successful. Now we have to defeat it it the polls, even though there’s a chance that even if we lose the amendment would fail because the proposal is more than a mere amendment – it’s really a “revision,” and therefore can only be effected by either a 2/3 vote in Sacramento or a constitutional convention.
The L.A. Times reports that both sides have spent collectively more than $60 million. The out-of-state money, much of it from right-wing Christian organizations, has closed what had been a comfortable pro-same-sex marriage margin. The race is now too close to call.
I think I understand what the antis are thinking. After all, I used to entertain the same thoughts that drive them, sort of. But I opened my eyes and my mind and I learned better.
Logically, same-sex marriage makes sense. It's the only intellectually honest position. The only argument against it doesn’t stand up to the clear language of the states’ and U.S. constitutions addressing equal protection, due process and separation of church and state. We are not a theocracy – not yet. God help us if that’s what we ever become.
Civil unions don’t hack it either. Marriage is a “fundamental right” for every living person and people just see you differently if you tell them you’re in a civil union rather than a marriage. The denial of equal protection is simply a fact of life and it’s wrong wrong wrong.
I’ve been dating a man for several months now. Last night the subject of marriage came up in conversation. This morning over breakfast he asked me how I felt about it.
My California driver’s license reads “Sex: F.” So does my passport. The Social Security Administration says I’m female. So does the City of New York, which issued me a corrected birth certificate. So I could (if I wanted, and if he were to ask) actually marry this man legally, at least in the State of California – even if Prop 8 were to pass, at least until the yahoos came after me and my community specifically.
Maybe they will, maybe they won’t. In the meantime, hopefully Barack Obama will be elected together with Democratic majorities in the House and Senate, ushering in a new New Deal that will lift the veil of prejudice and repression against gender variance from sea to shining sea. Perhaps the people who passed state constitutional amendments will reconsider and will repeal those amendments. Who knows? Perhaps Newt Gingrich and Bill Clinton will be taking warm showers together. One can only hope.
So this afternoon I’ll rejoin my new MoveOn friends, calling undecided voters in swing states.
Saturday, October 25, 2008
Prop 8 Dilemma
This Election Day, California will vote on Proposition 8. It would enshrine into the state Constitution a prohibition against same-sex marriage, providing that "only marriage between a man and a woman is valid or recognized in California."
In the wake of the ENDA debacle, several bloggers suggest that transsexuals should not be supporting gay marriage. After all, it’s not our fight, is it?
For some transsexual individuals marriage presents no problem. Perhaps the person never plans to marry. Even if s/he does, several states no longer regard a person who transitions to still be his/her birth sex. In those states, a formerly male-bodied person who transitions to female is legally “female” (or visa-versa) and that person’s later marriage to a man (or woman, as the case may be) is not “same-sex.”
But to put it mildly, the laws are not clear-cut. Rather, the non-“same-sex” marriage characterization is merely implied, and usually only after the state issues to the transitioner a birth certificate reflecting their new sex. Curiously, twenty-some-odd states will do this -- more than the number of states that outlaw gender identity or expression discrimination. And so far, new birth certificates are only issued to someone who presents documentary proof that they had SRS. That means a vaginoplasty for MTF’s and usually sometimes something less than a phalloplasty for FTMs.
But beyond that, the anti same-sex marriage lobby has transsexuals in their sights too.
Prop 8 was just one of four proposed anti-same-sex marriage proposals. Another -- one which didn’t make it to the ballot -- would have banned marriage altogether between any two people who both have XX or XY chromosomes.
These wackos didn’t stop there. Their draft would have disallowed marriage for anyone who would alter his or her genes from XX to XY or visa-versa, even though that’s not possible now or even on the scientific horizon! But they’re busy thinking of new and creative ways to keep marriage sacrosanct.
Only Arizona voters have rejected a state constitutional ban on same-sex marriage. Voters in twenty-seven other states have enacted them, usually by wide margins.
In 2002, Californians voted for Proposition 22, another referendum against same-sex marriage. But Prop 22 wasn’t for a constitutional amendment. It was for a mere law, and this past May the California Supreme Court struck down that law as unconstitutional because (i) it denied a fundamental right (marriage) to some people and (ii) it violated the right to equal protection of the laws. By the way, it was a close (4-3) vote.
So now the proponents are putting the same language to California voters as a constitutional amendment because only a constitutional amendment is immune from legislative, judicial and executive meddling (the latter by a governator.)
Well, sort of. California has a curious constitutional amendment procedural wrinkle that ensures this fight won’t be decided for good this November, no matter how the people vote.
It has to do with whether Prop 8 is an “amendment” or a “revision.”
An “amendment” can be enacted by a mere 51% vote of the electorate. On the other hand, a “revision” requires either a 2/3 vote of the legislature or a constitutional convention. That hurdle is a lot higher than a mere majority vote by knee-jerk voters, or as the Founding Fathers called them, “the rabble.” This is why we have a republic – not a democracy. Hmmm….
If Prop 8 passes, the LGBT community will ask the California Supreme Court to rule that Prop 8 is really a “revision” because it’s so far-reaching and therefore shouldn’t be decided by the voters in a referendum, especially one that can be won by a mere majority vote. Prop 8 proponents (the Religious Right) will argue the opposite.
But back to the present.
In 2002, Proposition 22 passed with sixty-one percent of the vote. That’s nothing to sneeze at. Among Latinos, the percentage was even higher -- more than 70 percent. That’s approaching pneumonia. Similar opinions were expressed in a July survey of 672 likely voters in California.
The Prop 8 campaign is looking to an ecumenical coalition of religious groups to get out the vote against same-sex marriage. Beyond that, they’re counting on Latino voters to put Prop 8 over-the-top. According to a statewide Field poll, 49 percent of the state’s Latino voters said they’d support the amendment, compared to 38 percent who’d vote against it. 13 percent were undecided.
Jennifer Kerns, spokeswoman for the Yes on Prop. 8 campaign, told the Inland Valley Daily Bulletin, "Given their participation in the 2000 election with Prop. 22, the support of the Latino population is critical to the effort. They are a community that is extremely passionate about this issue. At least from what we've seen, they are very committed to upholding the definition of marriage as being between one man and one woman."
There’s no reason to doubt her. According to lsa Valdez, a sociology professor at Cal State San Bernardino, "Latinos are very conservative on same-sex marriage because of the strong influence of the Catholic Church.”
Many Latinos come here claiming asylum from discrimination in their home countries. Of all of them, it’s been my experience as an immigration lawyer that only the gays and transsexuals have rock-solid claims. So why are LGBT groups (and Latino gays and trannies) such fervent supporters of Latin American immigration when the people they champion overwhelmingly hate their guts to the point where Latino immigrants may swing the constitutional referendum against them?
The immigration issue is a burning hot-button, sure to evoke strong feelings whenever and wherever it’s raised, but it has particular poignancy within our community.
It’s not difficult to understand why Latino gays and transsexuals have an identity of immigration interest with their compatriots, but it’s fair to ask whether it’s in our interest (or theirs) to help recreate here the same appallingly repressive conditions they came here to escape.
In the wake of the ENDA debacle, several bloggers suggest that transsexuals should not be supporting gay marriage. After all, it’s not our fight, is it?
For some transsexual individuals marriage presents no problem. Perhaps the person never plans to marry. Even if s/he does, several states no longer regard a person who transitions to still be his/her birth sex. In those states, a formerly male-bodied person who transitions to female is legally “female” (or visa-versa) and that person’s later marriage to a man (or woman, as the case may be) is not “same-sex.”
But to put it mildly, the laws are not clear-cut. Rather, the non-“same-sex” marriage characterization is merely implied, and usually only after the state issues to the transitioner a birth certificate reflecting their new sex. Curiously, twenty-some-odd states will do this -- more than the number of states that outlaw gender identity or expression discrimination. And so far, new birth certificates are only issued to someone who presents documentary proof that they had SRS. That means a vaginoplasty for MTF’s and usually sometimes something less than a phalloplasty for FTMs.
But beyond that, the anti same-sex marriage lobby has transsexuals in their sights too.
Prop 8 was just one of four proposed anti-same-sex marriage proposals. Another -- one which didn’t make it to the ballot -- would have banned marriage altogether between any two people who both have XX or XY chromosomes.
These wackos didn’t stop there. Their draft would have disallowed marriage for anyone who would alter his or her genes from XX to XY or visa-versa, even though that’s not possible now or even on the scientific horizon! But they’re busy thinking of new and creative ways to keep marriage sacrosanct.
Only Arizona voters have rejected a state constitutional ban on same-sex marriage. Voters in twenty-seven other states have enacted them, usually by wide margins.
In 2002, Californians voted for Proposition 22, another referendum against same-sex marriage. But Prop 22 wasn’t for a constitutional amendment. It was for a mere law, and this past May the California Supreme Court struck down that law as unconstitutional because (i) it denied a fundamental right (marriage) to some people and (ii) it violated the right to equal protection of the laws. By the way, it was a close (4-3) vote.
So now the proponents are putting the same language to California voters as a constitutional amendment because only a constitutional amendment is immune from legislative, judicial and executive meddling (the latter by a governator.)
Well, sort of. California has a curious constitutional amendment procedural wrinkle that ensures this fight won’t be decided for good this November, no matter how the people vote.
It has to do with whether Prop 8 is an “amendment” or a “revision.”
An “amendment” can be enacted by a mere 51% vote of the electorate. On the other hand, a “revision” requires either a 2/3 vote of the legislature or a constitutional convention. That hurdle is a lot higher than a mere majority vote by knee-jerk voters, or as the Founding Fathers called them, “the rabble.” This is why we have a republic – not a democracy. Hmmm….
If Prop 8 passes, the LGBT community will ask the California Supreme Court to rule that Prop 8 is really a “revision” because it’s so far-reaching and therefore shouldn’t be decided by the voters in a referendum, especially one that can be won by a mere majority vote. Prop 8 proponents (the Religious Right) will argue the opposite.
But back to the present.
In 2002, Proposition 22 passed with sixty-one percent of the vote. That’s nothing to sneeze at. Among Latinos, the percentage was even higher -- more than 70 percent. That’s approaching pneumonia. Similar opinions were expressed in a July survey of 672 likely voters in California.
The Prop 8 campaign is looking to an ecumenical coalition of religious groups to get out the vote against same-sex marriage. Beyond that, they’re counting on Latino voters to put Prop 8 over-the-top. According to a statewide Field poll, 49 percent of the state’s Latino voters said they’d support the amendment, compared to 38 percent who’d vote against it. 13 percent were undecided.
Jennifer Kerns, spokeswoman for the Yes on Prop. 8 campaign, told the Inland Valley Daily Bulletin, "Given their participation in the 2000 election with Prop. 22, the support of the Latino population is critical to the effort. They are a community that is extremely passionate about this issue. At least from what we've seen, they are very committed to upholding the definition of marriage as being between one man and one woman."
There’s no reason to doubt her. According to lsa Valdez, a sociology professor at Cal State San Bernardino, "Latinos are very conservative on same-sex marriage because of the strong influence of the Catholic Church.”
Many Latinos come here claiming asylum from discrimination in their home countries. Of all of them, it’s been my experience as an immigration lawyer that only the gays and transsexuals have rock-solid claims. So why are LGBT groups (and Latino gays and trannies) such fervent supporters of Latin American immigration when the people they champion overwhelmingly hate their guts to the point where Latino immigrants may swing the constitutional referendum against them?
The immigration issue is a burning hot-button, sure to evoke strong feelings whenever and wherever it’s raised, but it has particular poignancy within our community.
It’s not difficult to understand why Latino gays and transsexuals have an identity of immigration interest with their compatriots, but it’s fair to ask whether it’s in our interest (or theirs) to help recreate here the same appallingly repressive conditions they came here to escape.
Tuesday, September 23, 2008
Thank You, Judge Robinson!
Diane Schroer has won her case for Title VII sex discrimination against the Library of Congress, which hired then immediately fired her when she came out as transsexual. U.S. District Court (trial court) for the District of Columbia. Judge James Robertson issued the decision on Friday, September 19th.
Thank you, Sharon McGowen and your ACLU team for another impressive win. In 2005 Sharon also won the Lovo-Lara case before the Federal Board of Immigration Appeals.
Normally, trial court decisions are not reported. Thank you too for promptly (same day!) posting the decision on the ACLU website.
Expect to hear the Conservative Right try to brand Judge Robertson as another out-of-control “activist” judge. He’s not. Read the decision.
Judge Robertson decided for Diane Schroer on two bases.
First, he ruled that she made-out a Price Waterhouse “sex stereotyping” claim that qualifies as Title VII sex discrimination. Then he ruled that she also made out a plain old garden-variety Title VII sex discrimination claim.
What’s the difference between these two?
Title VII of the Civil Rights Act of 1964 addresses sex discrimination. The relevant section is 42 U.S. Code Section 2000e-2(a)(1). It provides in pertinent part:
“It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…”
It may sound odd to ask but what is the meaning of “sex?” Most people think they know but it’s been a hotly contentious issue since Title VII was passed in 1964.
Courts have not been kind to transsexuals. In general, they’ve held that discrimination against transsexuals is not discrimination based on “sex.” That’s been a difficult pill for the gender variant community to swallow because we know otherwise.
Judges are just like the general population, and sometimes worse. Some seem to understand the nuances of transsexuality but generally not. Some are flat-out transphobic. The consequences are sometimes horrific, and not just in employment discrimination cases. Some of the worst stories arise in family law contexts, where transsexual husbands are treated punitively by patently bigoted judges who impose punitive spousal and child support awards while denying them contact with their minor children. These cases go almost entirely unreported.
A lawyer I know who represents transgendered people, largely in divorce cases, tells me his clients don’t get a fair hearing before judges in L.A. County. That’s consistent with my own personal and professional experience.
I think these judges just don’t understand the basics. I have never polled them but I asked one judge I know socially what the difference is between “sex” and “gender.” He couldn’t tell me. In that respect they’re like the general population, which is to say largely ignorant about research showing that transsexuality is a birth condition, that gender identity can differ from a person’s outward appearance and is probably immutably “hard-wired” into the brain’s “circuitry” before birth.
I’ve asked but know of no continuing legal education program to enlighten judges about these matters.
The cases have been a mixed bag. In the earlier cases, the judges who “got it” were reversed on appeal. The tide started to change in 2000.
In 1974, Arthur Andersen, an accounting firm, dismissed Ramona Holloway after she informed them that she was undergoing treatment in preparation for sex change surgery. She sued in Federal District Court in San Francisco, alleging Title VII sex discrimination.
Ramona Holloway argued that for purposes of Title VII, "sex" is anonymous with "gender," and gender would encompass transsexuals. Arthur Andersen claimed that the term sex should be given the traditional definition based on anatomical characteristics.
The trial court sided with the employer. Ramona Holloway appealed to the supposedly liberal 9th Circuit and lost.
In 1981, Karen Ulane filed a Title VII sex discrimination claim against Eastern Air Lines that was very similar to Diane Schroer’s claim against the Library of Congress. Ulane won at trial (Judge Grady was a Gerald Ford appointee) but in 1984 the Federal 7th Circuit Court of Appeal in Chicago reversed. Judge Harlington Wood (another Ford appointee) wrote that Karen Ulane was “a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female.” Because he regarded her as male she could not, by (his) definition, even bring a Title VII claim based on sex discrimination.
In 2001 the Kansas Court of Appeals reversed a trial court and in an opinion that read like a medical textbook on gender variance affirmed the validity of J’Noel Gardiner’s sex change to female and her right to inherit as a widow. In 2003, a Tampa, Florida trial court ruled that Michael Kantaras’ sex change from female was valid and affirmed his rights as a father. The case was televised on Court TV and the judge wrote an exhaustive 800-page opinion. Both were reversed on appeal. In both cases the higher courts punted, concluding that any decision regarding the sex of a transgendered person should be made by the legislature.
In 2000, in Schwenk v. Hartford, the 9th Circuit made the insightful observation that the terms “sex” and “gender” are used interchangeablely.
Five years after Karen Ulane lost her appeal the U.S. Supreme Court heard an appeal involving a woman who was denied promotion at (remember Holloway?) yet another major accounting firm. Nothing in the decision suggests her sexual orientation; it wasn’t an issue. Price Waterhouse denied Ann Hopkins partnership because she didn’t appear feminine enough. She sued, claiming Price Waterhouse engaged in “sex stereotyping” that she argued was Title VII discrimination based on “sex.”
Ann Hopkins won at trial and her victory was upheld on appeal by the D.C. Circuit Court of Appeal and then by the U.S. Supreme Court in a 6-3 decision.
“Sex stereotyping” was a novel theory and when Ann Hopkins made that argument no one was thinking about its consequences for the gender-variant community. But fifteen years later, a transsexual lawyer won a pioneering case for a fireman who transitioned on the job and was then fired. Jimmie Smith argued that Salem, Ohio engaged in Title VII sex discrimination when it fired her. The trial court dismissed the case on the city’s pre-trial motion that claimed that Title VII sex discrimination doesn’t protect transsexuals. Smith appealed to the Federal 6th Circuit Court of Appeal that the city had engaged in Price Waterhouse “sex stereotyping” (and therefore Title VII “sex” discrimination) because Smith presented as too feminine for a male. The appellate court reversed the lower court and in a stunningly powerful decision held for Smith.
A little later, transitioning police sergeant Philecia Barnes sued the city of Cincinnati after they fired her. She too argued Price Waterhouse sex stereotyping to make out a Title VII sex discrimination claim. The jury’s verdict was upheld by the same 6th Circuit Court of Appeal that ruled for Jimmie Smith.
Randi Barnabee, a transgender trial lawyer, represented both Jimmie Smith and Philecia Barnes.
Krystal Etsitty was a pre-op Utah bus driver who was transitioning on the job but couldn’t afford SRS. When her employer fired her she sued, alleging Price Waterhouse “sex stereotyping” claim, a regular Title VII sex discrimination claim, and an equal protection claim.
In 2005, the U.S. District Court for the district of Utah ruled against Krystal Etsitty, holding that Title VII does not protect transgender employees. The Court bought into the bus company’s defense that it might face civil liability from someone who might be offended by one of its pre-operative male-to-female bus drivers using a women’s rest room.
The District Court also rejected Krystal Etsitty’s “sex stereotyping” claim.
Krystal Etsitty appealed to the conservative 10th Circuit Court of Appeals. In 2007, that court side-stepped the Title VII issues and rubber-stamped the lower court on the bus company’s civil liability fear-mongering defense. This is the same tactic that conservatives are using to scare voters into repealing gender identity and expression protection ordinances in Montgomery County, Maryland and Gainesville, Florida.
The 10th Circuit thus avoided a split with the 6th Circuit, which had ruled in Smith and Barnes that transsexuals are protected under Title VII against discrimination because of sex under the “sex stereotyping” theory.
In baseball, a walk may be as good as a hit but “sex stereotyping” is not quite as good as winning on a plain-vanilla Title VII sex discrimination claim. That goal, however, has proven elusive.
So 24 years after Ulane, what’s new? Other than the fact that California statutes would now protect Ramona Holloway’s right to transition on-the-job, maybe Diane Schroer’s case.
Like Jimmie Smith and Philecia Barnes, Diane Schroer won at the trial court level on a “sex stereotyping” claim. Like Karen Ulane, but unlike Smith and Barnes, she also won on a claim of plain-vanilla Title VII sex discrimination.
Like Ann Hopkins, Schroer’s case was heard in the District of Columbia. It’s a very influential federal circuit that hears many federal law claims so its decisions often carry greater weight than those from other circuits. That makes this case significant.
It’s also significant that Diane Schroer sued the Federal government – the Library of Congress. That’s a first for transsexual rights litigation. It’s bound to make people sit up a little straighter and take greater notice of this issue.
The political landscape is considerably different now. Transsexuals are coming out of the closet. Twelve states, the District of Columbia, and seventy-some-odd counties and municipalities have laws protecting gender identity and expression. This reflects a growing general acceptance of transsexuality. The media is becoming increasingly aware of and sophisticated about transsexuality.
But the struggle continues, even after Smith and Barnes.
None of these cases have made it to the U.S. Supreme Court. They probably won’t unless there’s a clear split between judicial circuits and there isn’t one yet.
There would be a split (with the 6th Circuit) if the D.C. Circuit Court of Appeals were to reverse the trial court. There won’t be a split if the D.C. Circuit upholds Diane Schroer’s win.
One hopes the government does not appeal the case because no one knows what the outcome would be. Beyond that, the 800 pound gorilla is whether the U.S. Supreme Court would grant certiorari to any case on this issue.
That probably wouldn’t be a good idea just now.
In 1989, the Supreme Court voted for Ann Hopkins and against Price Waterhouse by a vote of six to three. Of the six, only one remains on the Court today – John Paul Stevens, and he’s eighty-eight. Brennan, White, Marshall, Blackmun and O’Connor are gone. Today, only three new Justices (Souter, Ginsberg and Breyer) would be Stevens’ likely allies. That’s only four votes out of nine.
On the other side, Rehnquist has been replaced by Roberts, who would likely join fellow Price Waterhouse dissenters Scalia and Kennedy and newcomers Thomas and Alito to form a 5-4 majority against Diane Schroer.
Perhaps times have changed sufficiently for us to say that the legal landscape is now safe for transsexuals. Perhaps a conservative judge may depart the Court and President Obama would appoint a liberal, tipping the scales back to better days.
Maybe Roberts will surprise everyone. It’s less impossible to think that Justice Kennedy could be persuaded to change camps. The history of American jurisprudence is replete with once unpopular views becoming law years later. It took the Supreme Court to reverse itself over “separate but equal” and less on consensual gay sodomy. One must hope.
In the meantime, the gender variant community is savoring Friday’s decision. What exactly did Judge Robertson do?
For starters, Judge Robinson denied all government pre-trial motions to dismiss Diane Schroer’s case. He looked back favorably on Judge Grady’s view favoring Karen Ulane twenty-six years earlier – the one Judge Wood’s panel rejected. I like to think he wanted this case to be tried so the evidence would unfold in open court. That’s what happened. http://www.aclu.org/pdfs/lgbt/schroer_decision.pdf Read the decision.
Judge Robinson heard testimony as to whether “gender” is part of “sex.” Diane Schroer’s expert said it was; the government’s expert said it was not.
Schroer’s expert was Walter Bockting, Ph.D. He’s the president-elect of the World Professional Association for Transgender Health (WPATH), formerly the Harry Benjamin International Gender Dysphoria Association (HBIGDA).
The government trotted out Dr. Chester Schmidt, a professor of psychiatry at John’ Hopkins Medical School. The past chairman of that department was Dr. Paul McHugh, a transphobe who has done more damage to gender variant people than any other living person on the face of the planet.
The government likes Dr. Schmidt. He was their expert witness on transsexuality in Rhiannon O’Donnabhain’s Boston Tax Court case last year where the issue was the deductibility of SRS expenses as a bona fide medical expense.
Judge Robinson wrote that Dr. Schmidt regards gender identity as a component of ‘sexuality’ rather than ‘sex.’
Is it possible to split hairs any finer?
Sharon McGowan (ACLU) – please post Dr. Schmidt’s deposition transcript.
I’m inclined to believe Judge Robertson leaned strongly toward Dr. Bockting’s view but he wrote that deciding between Dr. Bockting and Dr. Schmidt was “not within this Court’s competence.”
I think Judge Robinson was being overly modest. More likely, he judiciously decided against touching a live third-rail and wrote instead that making such a decision was “unnecessary.”
Judge Robinson reviewed the evidence and concluded that every reason given by the Library of Congress for not hiring Diane Schroer was a mere pretext. It’s delicious.
Here are a few of my favorite quotes from Judge Robinson’s decision:
“Courts have allowed their focus on the label “transsexual” to blind them to the statutory language itself.”
“The decisions holding that Title VII only prohibits discrimination against men because they are men, and discrimination against women because they are women, represent an elevation of “judge-supposed legislative intent over clear statutory text.”
(Citing that raving, out-of-control liberal, Antonin Scalia.)
And,
“The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination ‘because of . . . sex.’”
What more is there to say?
Title VII is one path to nationwide gender identity and expression protection for gender variant people. In the absence of that protection, the community has sought alternative legislation to make the same point -- the federal Employment Non-Discrimination Act (ENDA.) Last September we watched the Democratic leadership throw the transsexual community under the bus when it jettisoned us from the bill.
Our leadership said they didn't have the votes. The back story is that they couldn't get the votes of the thirty newly-elected conservative Democrats whom Rahm Emmanuel engineered into office in narrowly-decided elections. No one ever says what was done to lobby these people. Rather, it's assumed they couldn't be persuaded. I'm from Missouri.
Perhaps we should just focus on working our way through the courts.
Thank you, Sharon McGowen and your ACLU team for another impressive win. In 2005 Sharon also won the Lovo-Lara case before the Federal Board of Immigration Appeals.
Normally, trial court decisions are not reported. Thank you too for promptly (same day!) posting the decision on the ACLU website.
Expect to hear the Conservative Right try to brand Judge Robertson as another out-of-control “activist” judge. He’s not. Read the decision.
Judge Robertson decided for Diane Schroer on two bases.
First, he ruled that she made-out a Price Waterhouse “sex stereotyping” claim that qualifies as Title VII sex discrimination. Then he ruled that she also made out a plain old garden-variety Title VII sex discrimination claim.
What’s the difference between these two?
Title VII of the Civil Rights Act of 1964 addresses sex discrimination. The relevant section is 42 U.S. Code Section 2000e-2(a)(1). It provides in pertinent part:
“It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…”
It may sound odd to ask but what is the meaning of “sex?” Most people think they know but it’s been a hotly contentious issue since Title VII was passed in 1964.
Courts have not been kind to transsexuals. In general, they’ve held that discrimination against transsexuals is not discrimination based on “sex.” That’s been a difficult pill for the gender variant community to swallow because we know otherwise.
Judges are just like the general population, and sometimes worse. Some seem to understand the nuances of transsexuality but generally not. Some are flat-out transphobic. The consequences are sometimes horrific, and not just in employment discrimination cases. Some of the worst stories arise in family law contexts, where transsexual husbands are treated punitively by patently bigoted judges who impose punitive spousal and child support awards while denying them contact with their minor children. These cases go almost entirely unreported.
A lawyer I know who represents transgendered people, largely in divorce cases, tells me his clients don’t get a fair hearing before judges in L.A. County. That’s consistent with my own personal and professional experience.
I think these judges just don’t understand the basics. I have never polled them but I asked one judge I know socially what the difference is between “sex” and “gender.” He couldn’t tell me. In that respect they’re like the general population, which is to say largely ignorant about research showing that transsexuality is a birth condition, that gender identity can differ from a person’s outward appearance and is probably immutably “hard-wired” into the brain’s “circuitry” before birth.
I’ve asked but know of no continuing legal education program to enlighten judges about these matters.
The cases have been a mixed bag. In the earlier cases, the judges who “got it” were reversed on appeal. The tide started to change in 2000.
In 1974, Arthur Andersen, an accounting firm, dismissed Ramona Holloway after she informed them that she was undergoing treatment in preparation for sex change surgery. She sued in Federal District Court in San Francisco, alleging Title VII sex discrimination.
Ramona Holloway argued that for purposes of Title VII, "sex" is anonymous with "gender," and gender would encompass transsexuals. Arthur Andersen claimed that the term sex should be given the traditional definition based on anatomical characteristics.
The trial court sided with the employer. Ramona Holloway appealed to the supposedly liberal 9th Circuit and lost.
In 1981, Karen Ulane filed a Title VII sex discrimination claim against Eastern Air Lines that was very similar to Diane Schroer’s claim against the Library of Congress. Ulane won at trial (Judge Grady was a Gerald Ford appointee) but in 1984 the Federal 7th Circuit Court of Appeal in Chicago reversed. Judge Harlington Wood (another Ford appointee) wrote that Karen Ulane was “a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female.” Because he regarded her as male she could not, by (his) definition, even bring a Title VII claim based on sex discrimination.
In 2001 the Kansas Court of Appeals reversed a trial court and in an opinion that read like a medical textbook on gender variance affirmed the validity of J’Noel Gardiner’s sex change to female and her right to inherit as a widow. In 2003, a Tampa, Florida trial court ruled that Michael Kantaras’ sex change from female was valid and affirmed his rights as a father. The case was televised on Court TV and the judge wrote an exhaustive 800-page opinion. Both were reversed on appeal. In both cases the higher courts punted, concluding that any decision regarding the sex of a transgendered person should be made by the legislature.
In 2000, in Schwenk v. Hartford, the 9th Circuit made the insightful observation that the terms “sex” and “gender” are used interchangeablely.
Five years after Karen Ulane lost her appeal the U.S. Supreme Court heard an appeal involving a woman who was denied promotion at (remember Holloway?) yet another major accounting firm. Nothing in the decision suggests her sexual orientation; it wasn’t an issue. Price Waterhouse denied Ann Hopkins partnership because she didn’t appear feminine enough. She sued, claiming Price Waterhouse engaged in “sex stereotyping” that she argued was Title VII discrimination based on “sex.”
Ann Hopkins won at trial and her victory was upheld on appeal by the D.C. Circuit Court of Appeal and then by the U.S. Supreme Court in a 6-3 decision.
“Sex stereotyping” was a novel theory and when Ann Hopkins made that argument no one was thinking about its consequences for the gender-variant community. But fifteen years later, a transsexual lawyer won a pioneering case for a fireman who transitioned on the job and was then fired. Jimmie Smith argued that Salem, Ohio engaged in Title VII sex discrimination when it fired her. The trial court dismissed the case on the city’s pre-trial motion that claimed that Title VII sex discrimination doesn’t protect transsexuals. Smith appealed to the Federal 6th Circuit Court of Appeal that the city had engaged in Price Waterhouse “sex stereotyping” (and therefore Title VII “sex” discrimination) because Smith presented as too feminine for a male. The appellate court reversed the lower court and in a stunningly powerful decision held for Smith.
A little later, transitioning police sergeant Philecia Barnes sued the city of Cincinnati after they fired her. She too argued Price Waterhouse sex stereotyping to make out a Title VII sex discrimination claim. The jury’s verdict was upheld by the same 6th Circuit Court of Appeal that ruled for Jimmie Smith.
Randi Barnabee, a transgender trial lawyer, represented both Jimmie Smith and Philecia Barnes.
Krystal Etsitty was a pre-op Utah bus driver who was transitioning on the job but couldn’t afford SRS. When her employer fired her she sued, alleging Price Waterhouse “sex stereotyping” claim, a regular Title VII sex discrimination claim, and an equal protection claim.
In 2005, the U.S. District Court for the district of Utah ruled against Krystal Etsitty, holding that Title VII does not protect transgender employees. The Court bought into the bus company’s defense that it might face civil liability from someone who might be offended by one of its pre-operative male-to-female bus drivers using a women’s rest room.
The District Court also rejected Krystal Etsitty’s “sex stereotyping” claim.
Krystal Etsitty appealed to the conservative 10th Circuit Court of Appeals. In 2007, that court side-stepped the Title VII issues and rubber-stamped the lower court on the bus company’s civil liability fear-mongering defense. This is the same tactic that conservatives are using to scare voters into repealing gender identity and expression protection ordinances in Montgomery County, Maryland and Gainesville, Florida.
The 10th Circuit thus avoided a split with the 6th Circuit, which had ruled in Smith and Barnes that transsexuals are protected under Title VII against discrimination because of sex under the “sex stereotyping” theory.
In baseball, a walk may be as good as a hit but “sex stereotyping” is not quite as good as winning on a plain-vanilla Title VII sex discrimination claim. That goal, however, has proven elusive.
So 24 years after Ulane, what’s new? Other than the fact that California statutes would now protect Ramona Holloway’s right to transition on-the-job, maybe Diane Schroer’s case.
Like Jimmie Smith and Philecia Barnes, Diane Schroer won at the trial court level on a “sex stereotyping” claim. Like Karen Ulane, but unlike Smith and Barnes, she also won on a claim of plain-vanilla Title VII sex discrimination.
Like Ann Hopkins, Schroer’s case was heard in the District of Columbia. It’s a very influential federal circuit that hears many federal law claims so its decisions often carry greater weight than those from other circuits. That makes this case significant.
It’s also significant that Diane Schroer sued the Federal government – the Library of Congress. That’s a first for transsexual rights litigation. It’s bound to make people sit up a little straighter and take greater notice of this issue.
The political landscape is considerably different now. Transsexuals are coming out of the closet. Twelve states, the District of Columbia, and seventy-some-odd counties and municipalities have laws protecting gender identity and expression. This reflects a growing general acceptance of transsexuality. The media is becoming increasingly aware of and sophisticated about transsexuality.
But the struggle continues, even after Smith and Barnes.
None of these cases have made it to the U.S. Supreme Court. They probably won’t unless there’s a clear split between judicial circuits and there isn’t one yet.
There would be a split (with the 6th Circuit) if the D.C. Circuit Court of Appeals were to reverse the trial court. There won’t be a split if the D.C. Circuit upholds Diane Schroer’s win.
One hopes the government does not appeal the case because no one knows what the outcome would be. Beyond that, the 800 pound gorilla is whether the U.S. Supreme Court would grant certiorari to any case on this issue.
That probably wouldn’t be a good idea just now.
In 1989, the Supreme Court voted for Ann Hopkins and against Price Waterhouse by a vote of six to three. Of the six, only one remains on the Court today – John Paul Stevens, and he’s eighty-eight. Brennan, White, Marshall, Blackmun and O’Connor are gone. Today, only three new Justices (Souter, Ginsberg and Breyer) would be Stevens’ likely allies. That’s only four votes out of nine.
On the other side, Rehnquist has been replaced by Roberts, who would likely join fellow Price Waterhouse dissenters Scalia and Kennedy and newcomers Thomas and Alito to form a 5-4 majority against Diane Schroer.
Perhaps times have changed sufficiently for us to say that the legal landscape is now safe for transsexuals. Perhaps a conservative judge may depart the Court and President Obama would appoint a liberal, tipping the scales back to better days.
Maybe Roberts will surprise everyone. It’s less impossible to think that Justice Kennedy could be persuaded to change camps. The history of American jurisprudence is replete with once unpopular views becoming law years later. It took the Supreme Court to reverse itself over “separate but equal” and less on consensual gay sodomy. One must hope.
In the meantime, the gender variant community is savoring Friday’s decision. What exactly did Judge Robertson do?
For starters, Judge Robinson denied all government pre-trial motions to dismiss Diane Schroer’s case. He looked back favorably on Judge Grady’s view favoring Karen Ulane twenty-six years earlier – the one Judge Wood’s panel rejected. I like to think he wanted this case to be tried so the evidence would unfold in open court. That’s what happened. http://www.aclu.org/pdfs/lgbt/schroer_decision.pdf Read the decision.
Judge Robinson heard testimony as to whether “gender” is part of “sex.” Diane Schroer’s expert said it was; the government’s expert said it was not.
Schroer’s expert was Walter Bockting, Ph.D. He’s the president-elect of the World Professional Association for Transgender Health (WPATH), formerly the Harry Benjamin International Gender Dysphoria Association (HBIGDA).
The government trotted out Dr. Chester Schmidt, a professor of psychiatry at John’ Hopkins Medical School. The past chairman of that department was Dr. Paul McHugh, a transphobe who has done more damage to gender variant people than any other living person on the face of the planet.
The government likes Dr. Schmidt. He was their expert witness on transsexuality in Rhiannon O’Donnabhain’s Boston Tax Court case last year where the issue was the deductibility of SRS expenses as a bona fide medical expense.
Judge Robinson wrote that Dr. Schmidt regards gender identity as a component of ‘sexuality’ rather than ‘sex.’
Is it possible to split hairs any finer?
Sharon McGowan (ACLU) – please post Dr. Schmidt’s deposition transcript.
I’m inclined to believe Judge Robertson leaned strongly toward Dr. Bockting’s view but he wrote that deciding between Dr. Bockting and Dr. Schmidt was “not within this Court’s competence.”
I think Judge Robinson was being overly modest. More likely, he judiciously decided against touching a live third-rail and wrote instead that making such a decision was “unnecessary.”
Judge Robinson reviewed the evidence and concluded that every reason given by the Library of Congress for not hiring Diane Schroer was a mere pretext. It’s delicious.
Here are a few of my favorite quotes from Judge Robinson’s decision:
“Courts have allowed their focus on the label “transsexual” to blind them to the statutory language itself.”
“The decisions holding that Title VII only prohibits discrimination against men because they are men, and discrimination against women because they are women, represent an elevation of “judge-supposed legislative intent over clear statutory text.”
(Citing that raving, out-of-control liberal, Antonin Scalia.)
And,
“The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination ‘because of . . . sex.’”
What more is there to say?
Title VII is one path to nationwide gender identity and expression protection for gender variant people. In the absence of that protection, the community has sought alternative legislation to make the same point -- the federal Employment Non-Discrimination Act (ENDA.) Last September we watched the Democratic leadership throw the transsexual community under the bus when it jettisoned us from the bill.
Our leadership said they didn't have the votes. The back story is that they couldn't get the votes of the thirty newly-elected conservative Democrats whom Rahm Emmanuel engineered into office in narrowly-decided elections. No one ever says what was done to lobby these people. Rather, it's assumed they couldn't be persuaded. I'm from Missouri.
Perhaps we should just focus on working our way through the courts.
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