Published: Fri, 21 Oct 2016 00:00:00 -0400
Last Build Date: Fri, 21 Oct 2016 14:23:09 -0400
Tue, 20 Sep 2016 07:30:00 -0400Preventing people from being discriminated against by private organizations is so exceptionally vital that the First Amendment needs to be subjugated to that aim, the U.S. Commission on Civil Rights declared last week. That's a paraphrase on my part. So that you don't think I'm making it up, I'll now quote directly from the report, which describes "civil rights protections ensuring nondiscrimination" as being "of preeminent importance." (The definition of preeminent is, of course, "above or before others" and "superior.") "Although the First Amendment's Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) limit the ability of government actors to impede individuals from practicing their religious beliefs," the report goes on, "religious exemptions from nondiscrimination laws and policies must be weighed carefully and defined narrowly on a fact-specific basis." Weighed carefully? That's an interesting choice of words. So how is a policy maker to know if the need for the religious exemption outweighs the need to protect people from, say, having a photographer refuse to work their wedding? According to the report, the answer is: It almost never does. The commission showed its hand by writing that the federal RFRA (which Bill Clinton signed to ensure Americans wouldn't be forced to violate their religious beliefs absent a compelling government interest and no less burdensome alternative) needs to be altered so that everyone understands that it "creates First Amendment Free Exercise Clause rights...only to the extent that they do not unduly burden civil liberties and civil rights protections against status-based discrimination." Likewise for the several-dozen state-based RFRAs that have been enacted over the years. In other words, your right to not be subjected to laws that violate your beliefs should be treated as categorically less important than my right not to have anyone discriminate against me. There would be little to take issue with here if the discrimination in question were the work of the government, a la state-mandated segregation under Jim Crow. (When Kim Davis tried to use the power of her office to deny marriage licenses to gay couples, to cite a more recent example, she was ordered to desist—and rightly so.) Unfortunately, the report isn't about public discrimination. It's about private discrimination, such as when a Catholic school wants to hire only people who adhere to the Church's teachings. It's a fact that different people hold different beliefs about morality. Some feel that offering a health insurance plan that covers contraceptives would make them complicit in a behavior they view as sinful. Others say the same about participating in same-sex weddings, or employing individuals who openly flout the strictures of their faith, or stocking abortifacient drugs in their privately owned pharmacies. The point isn't that these are good or bad beliefs to hold. The point is that a subset of people understands these actions to be wrong, and yet government entities (at the federal level in the first example, and at the state level in the latter three) have opted to require everyone to engage in them anyway—people's faith be damned. And these are precisely the types of requirements that the Commission on Civil Rights wants enforced at all costs, and only the narrowest possible exceptions to them entertained. That's a perfect inversion of how it ought to be. It's probably true that, as the report points out, religious exemptions to such laws "significantly infringe upon" the particular class of "civil rights" that statutorily enjoin private discrimination "based upon classifications" like religion and sexual orientation. But it's just as true that the laws themselves "significantly infringe upon" religion and "the free exercise thereof." The whole conversation is a red herring. Religious exemptions might violate the laws—but the laws violate the Constitution. And that's the thing about the First Amendment: It comes first.[...]
Fri, 19 Aug 2016 16:55:00 -0400A new federal ruling may add to some confusion on how existing civil rights laws address discrimination claims in situations involving transgender people. A federal judge with the United States District Court of east Michigan has ruled that a Detroit area funeral home did not engage in illegal discrimination when it fired an employee who was transitioning from male to female. It's a complicated case (the ruling is 56 pages long) and, of course, far from the last word. In this situation, the federal Religion Freedom Restoration Act (RFRA) and the Supreme Court ruling in the Hobby Lobby case play a role in Judge Sean F. Cox's decision. The owner of the funeral home, R.G. & G.R. Harris Funeral Home, said that, due to his religion, he believed that a person's sex was a "God-given gift" that could not be changed. When Aimee Stephens, formerly Anthony Stephens, declared that she was going to make her transition, the funeral home would not accommodate her desire to dress as a woman at the workplace. The company had gender-based dress codes and would not accept her switching outfits. So she was fired. It was the Equal Employment Opportunity Commission (EEOC) who challenged the termination as a violation of federal civil rights laws. This may come as a surprise to those who know that there are no federal civil rights laws that prohibit discrimination against people who are transgender. As we've previously noted about these cases, federal agencies and activists have been trying to expand the scope of a previous Supreme Court precedent that ruled civil rights protections on the basis of sex also prohibit discrimination on the basis of whether a person exhibits stereotypical traits associated with a particular sex. The EEOC is arguing that such a precedent means that discrimination on the basis of somebody being transgender is discrimination on the basis of sex, because judging somebody for switching their gender expression is the same as judging somebody on the basis of not conforming to gender stereotypes. The funeral home has said that Stephens can express her gender however she chooses on her own time but not in the workplace. The judge sided with the funeral home, but for some complicated reasons that will certainly keep the case alive. The judge accepted the invocation of the Religious Freedom Restoration Act (RFRA) here. It's important to understand that the RFRA isn't just blanket permission for somebody to use religion to exempt themselves from the law. When the RFRA is invoked, the government then must prove that it has a "compelling government interest" in regulating certain behaviors, but also that their method of doing so is the "least restrictive means" available. The court "assumes" the first part of this claim is true (libertarians may disagree), but when we get to the "least restrictive means" test, here's what Cox had to say: Nevertheless, the EEOC has failed to show that application of the burden on the Funeral Home, under these facts, is the least restrictive means of protecting employees from gender stereotyping. If a least restrictive means is available to achieve the goal, the government must use it. This requires the government to show a degree of situational flexibility, creativity, and accommodation when putative interests clash with religious exercise. It has failed to do so here. The EEOC's briefs do not contain any indication that the EEOC has explored the possibility of any accommodations or less restrictive means that might work under these facts. Perhaps that is because it has been proceeding as if gender identity or transgender status are protected classes under Title VII, taking the approach that the only acceptable solution would be for the Funeral Home to allow Stephens to wear a skirt-suit at work, in order to express Stephens's female gender identity. … The EEOC claims the Funeral Home fired Stephens for failing to conform to the masculine gender stereotypes expected as to work clothing and that Stephens has a Title VII right not to be subject to gender stereotypes[...]
Thu, 18 Aug 2016 13:00:00 -0400
The horrific deaths of Philando Castillo in St. Paul, Minnesota, and Alton Sterling in Baton Rouge, Louisiana, give us an updated and up-close glimpse of police encounters gone bad—but they are rooted in decades of problematic policing in America. "Historically in this country, the police have never really been the friends of the black community," says Neill Franklin, a former officer with the Baltimore Police Department and current executive director of Law Enforcement Against Prohibition (L.E.A.P).
Franklin talked with Reason TV Editor-in-Chief Nick Gillespie at this year's Freedom Fest in Las Vegas, Nevada, pointing out that slavery may have ended officially in the late 1800s, but a lot of policing was born out of that era and the one that followed, when police deliberately enforced laws in ways that targeted black citizens. Even today, police are tasked with enforcing laws—from driving without a license to missing a court date—that tend to target poor communities and communities of color.
"You know a $250 fine doesn't mean much to people who have money," says Franklin. "But when you enforce these policies in poor communities, a hundred dollar fine can devastate a family."
It comes down to the need for a new model of policing in America, says Franklin, not just tweaks of the same old system. "What we have now is not like trying to fix a broken car, this car was a used car in the first place."
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Tue, 16 Aug 2016 09:28:00 -0400The U.S. Department of Housing and Urban Development (HUD) is finalizing a rule stipulating that homeless shelters must allow transgender women to stay in women's areas and transgender men to stay in areas designated for men—setting off "a firestorm [that pits] LGBT groups against religious organizations that operate many homeless shelters," The Hill reports. Meanwhile, the Obama administration is introducing a rule guaranteeing that transgender people can use bathrooms consistent with their gender, rather than biological sex, when in federal buildings. The new regulation, which will be posted in the Federal Register this week, covers 9,200 properties owned by the General Services Administration (GSA), including federal courthouses, Social Security offices, and other spaces across the country. BuzzFeed News first reported on the federal-buildings regulation, after obtaining a draft notice outlining the changes. The notice, circulated to federal agency heads on August 8, states that "federal agencies occupying space under the jurisdiction, custody, or control of GSA must allow individuals to use restroom facilities and related areas consistent with their gender identity." BuzzFeed notes that "the regulation builds on and reinforces a growing body of interpretations by the Obama administration to protect transgender people under longstanding civil rights laws." In the past several years, federal agencies have begun holding that bans on sex discrimination—instituted to address disparate treatment of women—also cover discrimination based on sexual orientation, gender identity, and/or gender expression. That is, under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, LGBT discrimination is sex discrimination, they say. My colleagues Scott Shackford and Robby Soave have written extensively about these developments, including the Equal Opportunity Commission (EEOC) ruling that applied the Civil Rights Act to sexual orientation, Obama's support for the "Equality Act," the states fighting federal rules on trans high-school kids, and why Title IX is a bad tool for extending trans student rights. The trouble is that Title IX has also been used by the Obama administration to hold that basically any sexuality-related statement or action that makes any college student uncomfortable counts as sexual harassment, thereby creating a "hostile" educational environment and inviting the federal Office of Civil Rights to intervene. Under this same statute, the feds say transgender high-school students must be allowed to use bathrooms and locker rooms consistent with their gender identity. But what if sharing a bathroom with students born male makes biologically female students uncomfortable? They, too, would ostensibly have a claim under Title IX. The homeless-shelter situation puts us in a similar bind, with the interests of transgender homeless people and some religious shelter owners in conflict. It makes little sense, to me, to house someone who identifies, looks, and lives as female with male residents, or vice versa. But, as The Hill points out: "Religious organizations see things differently." And in trying to do what's right for trans homeless people, the government is poised to force religiously-run shelters to operate in ways that violate owners' convictions and consciences—thus opening itself up to another wave of lawsuits. Catholic Charities USA and the Association of Gospel Rescue Missions have both raised concerns with HUD already. "It makes no sense at all," Tim Wildmon, president of the American Family Association, told The Hill. "Good, Christian organizations that are trying to help people do not need Washington dictating their bathroom or bedding policies." Though the HUD rule isn't final yet, a draft says homeless shelters must ignore "complains of other shelter residents" who feel uncomfortable being housed with someone transgender. "It is likewise prohibited to deny appropriate placement based[...]
Tue, 02 Aug 2016 13:38:00 -0400Body-worn cameras are being widely adopted by police departments around the country as an important tool for increasing officer accountability and transparency. For example, a 2015 study found that wearing body cameras reduced officer use-of-force incidents by 50 percent and citizen complaints by 90 percent. However, more recent research finds that police use-of-force declines only when officer discretion to turn cameras on or off is minimized. In other words, watched cops are polite cops. Today, the Leadership Conference on Civil and Human Rights and the technology evaluation group Upturn released their updated scorecard evaluating the civil rights safeguards of body worn camera policies for 50 major city police departments. The scorecard uses eight criteria to evaluate the body-worn camera policies of each police department. The criteria are: Makes its policy publicly and readily available; Limits officer discretion on when to record; Addresses personal privacy concerns; Prohibits officer pre-report viewing; Limits retention of footage; Protects footage against tampering and misuse; Makes footage available to individuals filing complaints; and Limits the use of biometric technologies. Each of the policy areas are scored as fully, partially or not at all satisfying these eight criteria. So what did they find? Only 26 of the 50 departments fully satisfied the criterion of making it easy for citizens to find their body-worn camera (BWC) policies on their websites. The scorecard also cites specific departments as models for implementing each of the criteria. For example, San Francisco has a designated webpage that updates the department's BWC policy after every biweekly BWC working group meeting. Twenty-two departments had policies that set limits on the discretion of officers to record interactions with citizens. The Leadership Conference researchers noted that Chicago has a policy that clearly specifies when officers must record and requires officers to provide concrete justifications (on camera) for failing to record. Interestingly, the body camera of the Chicago police officer who shot and killed a young black man, Paul O'Neal, last week was not functioning. The officers involved in the shooting have been relieved of their police powers. Only 11 departments fully satisfied the criterion for protecting the privacy of vulnerable individuals (e.g. victims of sex crimes) from being recorded without their prior informed consent. The model policy cited is used by the Philadelphia police department which requires that police officers to deactivate cameras when entering a residence, hospital room, or at the request of any crime victim, witness, or informant. If practical, police are supposed to ask permission to record inside residences and record any consent given on camera. None of the 50 departments had policies that fully satisfy the criterion for limiting officer review of body-worn camera video prior to filing their reports of an encounter. In fact, 40 departments allow — or even encourage — officers to view relevant footage before filing an initial written report or statement. The idea behind prohibiting pre-report review is that filing an initial written report from memory would provides greater context to what occurred and prevents the officer from conforming his statements to just what is shown on the video. The Oakland, California police department had the best policy. Officers are required to submit a written report of the incident to an investigator first and then given an opportunity to view the video and subsequently amend the report. Only 11 departments fully satisfied the criterion on retaining unflagged footage for no more than six months. If the video is not useful in an investigation or relevant to a complaint about officer behavior, there is no reason it should be retained. Dallas is cited for its policy of deleting all unflagged video after 90 days. Only 11 departments fully satisfied the c[...]
Tue, 26 Jul 2016 15:00:00 -0400Earlier in the year, Democratic Virginia Gov. Terry McAuliffe made a big splash by declaring that he would, as a blanket measure, restore the voting rights of more than 200,000 released felons. Republicans immediately resisted the gesture. Grotesquely—and predictably—the debate very quickly became about who these released felons would be voting for, as though that should factor in at all as to whether their civil liberties should be restored. Republicans challenged McAuliffe's order in the courts, and Virginia's Supreme Court just recently ruled 4-3 against McAuliffe. To be clear, the Supreme Court didn't rule that McAuliffe couldn't restore the voting rights of released felons who had done their time and were no longer under state supervision. Rather, McAuliffe essentially tried to expand his own power as governor with a blanket gesture, and the state's constitution did not give him such authority. He just completely screwed up the process and turned the whole effort into a lesson in the limits of executive authority. From the ruling: All agree that the Governor can use his clemency powers to mitigate a general rule of law on a case-by-case basis. But that truism does not mean he can effectively rewrite the general rule of law and replace it with a categorical exception. The express power to make exceptions to a general rule of law does not confer an implied power to change the general rule itself. The unprecedented scope, magnitude, and categorical nature of Governor McAuliffe's Executive Order crosses that forbidden line. … If the anti-suspension provision has no role to play as a check on any of the Governor's clemency powers, this view, taken to its logical limits, would empower a Virginia Governor to suspend unilaterally the enforcement of any criminal law in the Code of Virginia, based solely on his personal disagreement with it, simply by issuing categorical, absolute pardons to everyone convicted of his disfavored crime. This view would similarly empower a Governor to issue a single, categorical order restoring voting rights to all felons — even those imprisoned, those subject to a supervised criminal sentence, and those released from prison but later civilly committed as sexual predators — thereby eliminating any remaining vestige of the general voter disqualification rule in Article II, Section 1 of the Constitution of Virginia. Sen. Tim Kaine, Hillary Clinton's choice for vice president and former governor of Virginia, was also referenced in the ruling. When Kaine was governor, he was asked to take a blanket action to restore voting rights but determined that he didn't have that level of power. His counsel at the time wrote the very "notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling." Fortunately for felons in Virginia, this doesn't mean they can't get their voting rights back. It just means he has to go case by case and do it the "hard," but legally correct, way, and McAuliffe says he's going to do exactly that. There are additional signs that McAuliffe had handled the whole case poorly as well. He refused to publicly release the list of names of felons who would have had their voting rights restored. But those who had seen the list discovered there were people on the list who shouldn't be there, including felons who were still in prison, as well a couple of fugitives convicted of sex crimes. The New York Times notes that in order to restore all these felons' rights the correct way (where he reviews each case), he'd have to sign 385 orders per day for the rest of his term. This suggests that he might not actually review each case as he's supposed to and could end up right back in court if Republicans challenge him again. McAuliffe, by the way, dismissed the ruling as an "overtly political action," even though the ruling did not even so much as suggest that McAuliffe couldn't restore felons' voting rights, jus[...]
Fri, 08 Jul 2016 13:30:00 -0400Algorithms are everywhere, and in most ways they make our lives better. In the simplest terms, algorithms are procedures or formulas aimed at solving problems. Implemented on computers, they sift through big databases to reveal compatible lovers, products that please, faster commutes, news of interest, stocks to buy, and answers to queries. Dud dates or boring book recommendations are no big deal. But John Danaher, a lecturer in the law school at the National University of Ireland, warns that algorithmic decision-making takes on a very different character when it guides government monitoring and enforcement efforts. Danaher worries that encroaching algorithmic governance, what he calls "algocracy," could "create problems for the moral or political legitimacy of our public decision-making processes." Given algorithms' successes in the private sector, it is not surprising that government agencies are also implementing algorithmic strategies. The Social Security Administration uses algorithms to aid its agents in evaluating benefits claims; the Internal Revenue Service uses them to select taxpayers for audit; the Food and Drug Administration uses them to study patterns of foodborne illness; the Securities and Exchange Commission uses them to detect trading misconduct; and local police departments employ algorithmic insights to predict both the emergence of crime hotspots and which persons are more likely to be involved in criminal activities. Most commonly, algorithms are rule-based systems constructed by programmers to make automated decisions. Because each rule is explicit, it is possible to understand how and why the algorithm produces its outputs, although the continual addition of rules and exceptions over time can make keeping track of what the system is doing ever more difficult. Alternatively, various machine-learning algorithms are being deployed as increasingly effective techniques for dealing with the growing flood and complexity of data. Broadly speaking, machine learning is a type of artificial intelligence that gives computers the ability to learn without being explicitly programmed. Such learning algorithms are generally trained to organize and extract information from being exposed to relevant data sets. It is often hard to discern exactly how the algorithm is devising the rules from which it makes predictions. While machine learning offers great efficiencies in digesting data, the answers supplied by learning algorithms can be badly skewed. In a recent New York Times op-ed, titled "Artificial Intelligence's White Guy Problem," Kate Crawford, a researcher at Microsoft who serves as co-chairwoman of the White House Symposium on Society and Artificial Intelligence, cites several such instances. For example, in 2015 Google Photo's facial recognition app tagged snapshots of a couple of black guys as "gorillas." Back in 2010, Nikon's camera software misread images of Asian people as blinking. "This is fundamentally a data problem. Algorithms learn by being fed certain images," notes Crawford. "If a system is trained on photos of people who are overwhelmingly white, it will have a harder time recognizing nonwhite faces." As embarrassing as the photo recognition problems were for Google and Nikon, algorithmic misfires can have much direr consequences when used to guide government decision making. It does not take too much imagination to worry about the civil liberties implications of the development of algorithms that purport to identify would-be terrorists before they can act. In her op/ed, Crawford cites the results of a recent investigation by ProPublica into how the COMPAS recidivism risk assessment system evaluates the likelihood that a criminal defendant will re-offend. Judges often take into consideration COMPAS risk scores when making sentencing decisions. Crawford notes that the software is "twice as likely to mistakenly flag black defendants as[...]
Wed, 29 Jun 2016 16:45:00 -0400The vague language of the federal Computer Fraud and Abuse Act (CFAA) has made it prone to abuse by federal prosecutors. This law's alleged purpose is to fight cybercrimes and hackers. But the law is far more expansive, making it a federal crime to violate a web site's "terms of service" as a user or to access a computer or network in an "unauthorized" fashion. Yes, the law is used to fight hackers trying to get into people's bank accounts to steal their money. But it has also been used to put journalist Matthew Keys in prison for giving a password to a member of Anonymous, who then vandalized the website for the Los Angeles Times by changing a single headline. The law was also used against activist Aaron Swartz, who was arrested and charged for downloading huge numbers of academic studies at the Massachusetts Institute of Technology with the intent of making them freely available to everybody. The prosecutor used the law as a hammer to try to push Swartz to accept a plea deal. Instead he committed suicide. It's a terrible law that you've probably broken without even realizing. And now the American Civil Liberties Union (ACLU) is suing to challenge the constitutionality of the law. This is very good news. How they're tackling it is both interesting, but also just a little bit troubling. Their argument is that the law has the side effect of chilling some online research and journalism investigations of some online commercial behavior. More specifically, this is research over whether online algorithms that put information and advertising in front of people's eyeballs is influenced by discriminatory attitudes or intent. Are those sponsored ads you're getting racist or sexist? The CFAA barrier keeps academics and journalists from researching algorithmic behavior, stopping researchers from independently "auditing" what happens by keeping them from creating fake online profiles to see how advertising reacts. The terms of service of many websites prohibit the use of fake accounts or identities. Therefore using the same sort techniques used to sniff out discriminatory behavior in the "real world" in areas like job interviews and bank loans (fake applications) are legally not permissible. People, of course, create fake online profiles and identities anyway, but most people are not researchers or journalists who plan to publicly release the results of their investigations and would have to worry about legal retaliation. But potentially bringing about an end to at least part of this broad law may be exchanging one type of legal threat with another. A look over the ACLU's arguments for striking down that part of CFAA should set off alarms about what the future could bring: As more and more of our transactions move online, and with much of our internet behavior lacking anonymity, it becomes easier for companies to target ads and services to individuals based on their perceived race, gender, or sexual orientation. Companies employ sophisticated computer algorithms to analyze the massive amounts of data they have about internet users. This use of "big data" enables websites to steer individuals toward different homes or credit offers or jobs—and they may do so based on users' membership in a group protected by civil rights laws. In one example, a Carnegie Mellon study found that Google ads were being displayed differently based on the perceived gender of the user: Men were more likely to see ads for high-paying jobs than women. In another, preliminary research by the Federal Trade Commission showed the potential for ads for loans and credit cards to be targeted based on proxies for race, such as income and geography. This steering may be intentional or it may happen unintentionally, for example when machine-learning algorithms evolve in response to flawed data sets reflecting existing disparities in the distribution of homes or jobs. E[...]
Thu, 23 Jun 2016 10:00:00 -0400Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26—a young 26 at that—on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn't expect it to influence how I thought about constitutional rights. But it did. Three types of culture—the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice—shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly—nobody had to. When I left the U.S. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I'm a defense-side true believer—the very sort of true believer that used to annoy me as a young prosecutor. Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause. I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights. I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them. I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job. My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types. Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them. Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives. A Fearful Office Culture That Doesn't Encourage Introspection About Wrongdoing The camaraderie I enjoyed at the U.S. Attorney's Office was the strongest and most rewarding that I've experienced in my life. Prosecutors learn the system together, acquire trial skills together, and face notorious defense attorneys and difficult judges together. They regale each other with stories of victory and defeat, of justice and injustice. They rely on each other to navigate impossible trial schedules or bounce back from errors. They are in this thing together. This makes for a strong team. But it doesn't encourage introspection about wrongdoing. When a defense attorney asserts that a prosecutor violated a defendant's rights, that attorney is attacking your brother or sister, your comrade in arms, the person you know and trust. It's easier to believe that the accusation is merely tactical—a gambit to evade punishment for crime—than it[...]
Thu, 26 May 2016 00:01:00 -0400When I was a lad, I often heard jokes about blacks, Latinos and gays, who were regarded as amusing because of their supposed inferiority and defectiveness. Today most people would be embarrassed and offended by such humor. But, at least in some places, there is one group that is still a safe source of yuks: transgender people. Recently, Time magazine reports, Texas Lt. Gov. Dan Patrick told a gathering in Dallas, "It is great to be in the largest Republican convention on the planet, and not one man wants to use the ladies' room." He advised, "When you go to the restroom, the M does not stand for 'make up your mind,' and the W does not stand for 'whatever.'" His stand-up routine is nearly as sharp as that of Ted Cruz, who in the closing days of his campaign often quipped, "Even if Donald Trump dresses up as Hillary Clinton, he shouldn't be using the girls' restroom." His audiences would laugh till their ribs ached. This jocularity relies on the belief that anyone who is transgender is bizarre, dangerous and mentally ill. The comedy expresses contempt. These conservatives firmly believe that anyone born with male genitalia is a male and anyone born with female genitalia is a female. End of story. If only humans were so simple. Right-wing culture warriors have long tried to depict gays and lesbians in similar terms. If you have a penis, you should not be attracted to men. If you do, you're a deviate—akin to someone who engages in bestiality. But reality indicates that heterosexuality is not quite universal. Neither is gender dysphoria—the intractable sense that you are fundamentally different from what your body denotes. The Justice Department offered a more rational understanding in the lawsuit it filed against North Carolina for a law requiring people to use public restrooms corresponding to the sex on their birth certificate. The state's mandate makes sense if you assume that gender is a straightforward matter of plumbing equipment. For most people, it may be. But for a small segment of the population, it isn't. "An individual's 'sex' consists of multiple factors, which may not always be in alignment," the Justice Department explained. "Among those factors are hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual's internal sense of being male or female." It may seem absurd that someone could be born with a penis yet feel female. But University of Chicago law professor David Weisbach offers an illustration that helps to make sense of it. Suppose a heterosexual male were captured by a James Bond villain and subjected to surgery to replace his penis with a vagina. Would he then be a woman even though his mind tells him he's a man? Would he embrace being female? Wouldn't he want the change reversed to make his body match his gender identity? That, says Weisbach, is how transgender people feel. When someone who lives, identifies and presents as a woman is required to use the men's restroom, it humiliates her. And it does no good; it's not as though men will be comfortable having someone who appears to be female in the next stall. But to understand what it's like to be transgender, you have to want to understand. People like Patrick and Cruz don't. They would rather depict this group as perverted and predatory—and therefore undeserving of any accommodation from normal folks. It's an old tactic used against despised minorities. Southern whites once recoiled at the idea of sharing water fountains with African-Americans. Straight men blanched at having to shower alongside gays. Nazis perceived Jews as parasitic vermin. "For a long time, our society, like many others, has confronted same-sex orientations and acts with a politics of disgus[...]
Fri, 20 May 2016 14:00:00 -0400Some historians like to claim socialist ideas helped bring about gay rights in the modern era. But they're mistaking academic theory for reality. Jim Downs is a historian at Connecticut College and Harvard. A specialist in the history of race and slavery, he has recently published a new book, Stand by Me: The Forgotten History of Gay Liberation, in which he tries to move recent gay history away from an excessive focus on sex and AIDS. Downs also has a new article in the digital magazine Aeon, in which he writes, "Throughout the 1970s, LGBT people theorised about the benefits of socialism in books and pamphlets and critiqued capitalism in the growing newspaper and print culture." He goes on to discuss "LGBT groups" and newspapers that "made socialism a leading subject of political interest in the movement." Most significantly he argues that "if you want to give credit for gay liberation and marriage equality, credit must also go to socialism." There are several things wrong with this. First, it's overstated. I was around in the 1970s, and I'd say that socialism was a pretty marginal part of the gay community or even the gay rights movement. Gay activists definitely leaned left, but they were focused on advancing gay rights through the Democratic Party. Second, there were gay libertarian writers around at the time, too, in academia, in the popular press, and oriented around the Libertarian Party, pointing out the benefits of free markets and the problems with socialism. Third, the use of LGBT is anachronistic. The term was hardly if ever used in the 1970s. (He doesn't use it much in the book.) But the claim is more than overstated. It's wrong. And Downs' own article offers the evidence. In the midst of his article on how socialism infused the gay rights movement and led to gay liberation, he notes the work of historian John D'Emilio on how "capitalism enabled LGBT to move to cities and to be independent from the family as a source of income. Once capitalism created the opportunity for people to live autonomously, it unwittingly allowed LGBT people to privilege homosexual desire as a driving force in their lives." Despite his leftist leanings, D'Emilio saw the world more clearly than Downs does. All the advances in human rights that we've seen in American history—abolitionism, feminism, civil rights, gay rights—stem from our founding ideas of life, liberty, and the pursuit of happiness. The emphasis on the individual mind in the Enlightenment, the individualist nature of market capitalism, and the demand for individual rights that inspired the American Revolution naturally led people to think more carefully about the nature of the individual and gradually to recognize that the dignity of individual rights should be extended to all people. Those intellectual trends quickly led to feminist and abolitionist sentiments. It took longer for people to take seriously the idea of homosexual activity as a matter of personal freedom and to recognize homosexuals as a group of people with rights. But the libertarians and their classical-liberal forebears got there first. From Adam Smith and Jeremy Bentham to the Libertarian Party and the Cato Institute (where I work), libertarians were ahead of the intellectual curve in applying the ideas of individual liberty to gay people. Capitalism is more than an idea, of course. It's a set of social institutions, which Downs correctly notes came under scathing attack from gay socialists. But as D'Emilio recognized, it was capitalism that in fact allowed individuals to live autonomously and to flourish. Capitalism freed people from feudalism and from the family farm. It allowed them to construct their own lives in a market society with space for separate personal and professional lives. It gave them the freedom and affluence [...]
Mon, 16 May 2016 15:45:00 -0400Apparently the diplomatic wing of the European Union has opinions about a handful of laws about transgender and gay issues passed in some Southern states recently. A spokesman on LGBTI (the "I" is for "intersex") issues at the EU put out a new statement: The recently adopted laws including in the states of Mississippi, North Carolina and Tennessee, which discriminate against lesbian, gay, bisexual, transgender and intersex persons in the United States contravene the International Covenant on Civil and Political Rights, to which the US is a State party, and which states that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection. As a consequence, cultural, traditional or religious values cannot be invoked to justify any form of discrimination, including discrimination against LGBTI persons. These laws should be reconsidered as soon as possible. The European Union reaffirms its commitment to the equality and dignity of all human beings irrespective of their sexual orientation and gender identity. We will continue to work to end all forms of discrimination and to counter attempts to embed or enhance discrimination wherever it occurs around the world." Most certainly the number of people who care about the European Union's interpretation of the International Covenant on Civil and Political Rights is very small. But it's worth noting because frankly states like North Carolina are actually miles ahead of some EU countries when it comes to transgender recognition. Take a handful of major European countries—France, Belgium, and the Czech Republic. In those countries, according to data by Transgender Europe (partly funded as an EU program), in order for the government to legally acknowledge a transgender person's shift in sex, that individual is required by law to get sterilized. Transgender Europe has submitted third party intervention arguments for three cases in French courts. They note in concern about the forced sterilization: "In effect, transgender people have to make a choice between two sets of fundamental rights, centered on the right to legal recognition of their gender identity and their body integrity respectively." Transgender Europe has a map here showing which countries do and do not require sterilization in order to seek legal recognition of one's gender identity. They have a checklist here showing what sorts of laws exist in different nations that are either helpful or harmful to transgender people. Countries highlighted in blue are members of the European Union. Some of the EU countries who don't have sterilization laws, like Denmark and the Netherlands, have only recently gotten rid of them. This is the problem when government-tied agencies get involved in social signaling to try to shame other governments and make themselves look more enlightened. The EU is not in a position to judge the United States on transgender issues as a whole, let alone individual states like Tennessee or Mississippi. The terrible irony here is that most of these countries do have anti-discrimination laws that include gender identity—but they have brutal rules in place that force unnecessary medical treatments onto the people who try to request inclusion.[...]
Sat, 14 May 2016 15:00:00 -0400
Two Los Angeles County Sheriff's (LASD) deputies received federal prison sentences this week for their roles in covering up a 2009 incident in which inmate Bret Phillips was beaten while waist-chained with handcuffs. The officers were found guilty of falsifying records with the intent to obstruct justice, and they were acquitted of civil rights conspiracy charges. As ABC 7 reports:
Joey Aguiar, 28, was sentenced to 18 months, and Mariano Ramirez, 40, to 13 months. The penalties were imposed following court arguments about their responsibility as public servants to uphold the law.
The incident happened on Feb. 11, 2009. Jail video of inmate Bret Phillips after the altercation was shown to the jury in the guilt phase of the deputies trial.
In December 2013, 18 LASD officers were indicted for jail beatings and cover ups, and since then, former Sheriff Lee Baca has plead guilty to lying to investigators related to those cases, and former under-sheriff Paul Tanaka was found guilty of impeding an FBI investigation.
In 2013, Reason TV spoke with the American Civil Liberties Union of Southern California, which monitored the jails after the 2013 indictments in. Watch:
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Thu, 12 May 2016 22:25:00 -0400It seems as though President Barack Obama is bound and determined to render even the gay- and transgender-friendliest of libertarians horrified by his administration's lack of interest in limits on executive power. Tonight The New York Times is reporting that the president is sending out a "decree" Friday telling all public school districts across the country to accept transgender students' choices to use whichever bathroom they are comfortable with. It seems unlikely the president is literally calling it a "decree," but that seems to be an apt description of how it looks. And while the letter is not a legally binding document in any way, the Times notes: "Schools that do not abide by the Obama administration's interpretation of the law could face lawsuits or a loss of federal aid." (Note: While I was in the process of writing this post, the Times story was altered to remove references to "decrees." But I'm keeping them here to indicate how it was initially presented.) While I support a call for public schools (and government as a whole) to be required to accept and provide appropriate accommodations for transgender citizens out of respect for individual liberty, this is not, by any means, a settled legal matter. There have been federal court rulings that have determined that discrimination against transgender people can be considered as a form of sex discrimination in violation of federal civil rights laws, but we are a long way from a final word here. The Department of Justice and North Carolina are suing each other over North Carolina's law forbidding transgender people using bathrooms that correspond to the opposite gender in schools and government buildings. It seems very likely that this whole fight is going to end up before the Supreme Court eventually, assuming Congress doesn't settle the matter with clarifying legislation first. But that's not where things stand right now. As a comparison, imagine that the administration—after a couple of the early limited federal court rulings affirming that states should be required to legally recognize same-sex marriage—sent out a "decree" to all states and municipalities that they should all do the same now or risk punishment. Many people would be appalled at the lack of respect for the legal process by the administration, and it would have nothing to do with whether they supported same-sex marriage recognition. And there's more: As soon as a child's parent or legal guardian asserts a gender identity for the student that "differs from previous representations or records," the letter says, the child is to be treated accordingly — without any requirement for a medical diagnosis or birth certificate to be produced. It says that schools may — but are not required to — provide other restroom and locker room options to students who seek "additional privacy" for whatever reason. Attached to the letter, the Obama administration will include a 25-page document describing "emerging practices" that are already in place in many schools around the country. Those included installing privacy curtains or allowing students to change in bathroom stalls. In a blog post accompanying the letter, senior officials at the Justice and Education departments said they issued it in response to a growing chorus of inquiries from educators, parents and students across the country, including from the National Association of Secondary School Principals, to clarify their obligations and "best practices" for the treatment of transgender students. I find nothing objectionable about providing such guidance, but it's extremely unseemly to start stomping around with threats. Let the court cases play out and do it the right way. Read the full sto[...]
Thu, 05 May 2016 11:55:00 -0400The Department of Justice is attempting to intervene in North Carolina over the state's passage of a law that (among other things) requires transgender people to use restrooms in government buildings and schools that matches the sex listed on their birth certificates. DOJ Principal Deputy Assistant Attorney General Vanita Gupta has sent North Carolina Gov. Pat McCrory a letter warning him that the recently passed HB2 violates Title VII of the Civil Rights Act of 1964, saying the state is "engaging in a pattern of practice of discrimination against transgender state employees." It may seem a bit odd to try to claim North Carolina is violating the Civil Rights Act here. There is nothing in Title VII that directly offers protection on the basis of gender identity. Indeed, part of the push for the Equality Act is to add gender identity and sexual orientation to existing federal civil rights laws. But there have been some court precedents that the Justice Dept. is attempting to bring into play here. The foundation is a Supreme Court decision from 1989, Price Waterhouse v. Hopkins. In that case, the Supreme Court ruled, 5-3, that "gender stereotyping" in the workplace could be considered as grounds for a sex discrimination complaint (it also reduced the threshold of evidence necessary to prove discrimination). The case involved a woman who claimed she was denied promotions because she didn't behave femininely enough. This, again, doesn't seem like it would necessarily have anything to do with transgender accommodations, but subsequent to this decision there have been a handful of federal level cases that have built on the idea that discrimination against transgender people is fundamentally discrimination on the basis of whether somebody complies with gender stereotypes. Julian Sanchez wrote about a couple of these cases at Reason back in 2005, and they're referenced in Gupta's letter to McCrory. Agencies like the Department of Justice and the U.S. Equal Employment Opportunity Commission (EEOC) have decided to push for this interpretation as the law. Note that thus far, the cases the Dept. of Justice refers to are all cases where government agencies are the ones accused of discrimination, everybody from the Library of Congress to the City of Cincinnati, to the Department of Justice itself under former Attorney General Eric Holder. The Justice Dept. is attempting to force North Carolina to stand down by threatening federal funding, and giving the state until Monday to declare it won't implement the law (which strikes me as opening up a completely different can of legal worms) or face a lawsuit. At the moment it doesn't appear that McCrory is going to fold, but pressure during an election year (he's being challenged by the state's Democratic attorney general, who is refusing to defend the law) can cause all sorts of things to happen. It seems likely that, should the Justice Dept. and the EEOC keeping pushing the law the way they have been, this is going to have to end up before the Supreme Court. While it seems obvious that it was never the intent of the Civil Rights Act of 1964 when it was passed to protect transgender people, the differing opinions are begging for a high court interpretation.[...]