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Published: Wed, 24 May 2017 00:00:00 -0400

Last Build Date: Wed, 24 May 2017 01:52:30 -0400


Trump's Religious Freedom Order Doesn't Roll Back LGBT Protections

Wed, 03 May 2017 22:05:00 -0400

(image) Once again, fears that the Trump administration is going to roll back federal LGBT protections may end up proving to be misguided.

The LGBT community and the American Civil Liberties Union (ACLU) erupted in a new round of activism and concern when Politico reported yesterday President Donald Trump was planning to sign a new religious liberty executive order on Thursday.

Politico reported based on unnamed sources that this order was similar to one that Trump had previously rejected. That initial order catered to religious conservatives by carving out massive exceptions from federal discrimination laws and demanded certain religious positions be accommodated.

Let's be clear about that first draft from a libertarian perspective: This was not what libertarians would classify as a "religious freedom" executive order. As I explained back in February when it came around, that proposed order would have classified particular religious beliefs—that marriage is for heterosexual couples, that sex is immutable and determined at birth, and that life begins at conception—as beliefs protected by government order. It literally declared particular beliefs that the government would recognize over others and therefore violated the Establishment Clause. There were parts of the executive order that libertarians would support, like exempting religious organizations from having to pay for employees' birth control or abortions. But overall the order had serious, fundamental constitutional issues and it was good that Trump didn't sign it.

So, when Politico reported that the order was back, LGBT organizations and the ACLU sounded the alarms again. The ACLU held a rally today and has threatened to sue to try to block the order before even learning its contents.

We won't fully know the contents until tomorrow, but what the White House has released is much, much, much less than what was presented back in February. NBC reporter Kelly O'Donnell got a briefing at the White House with the basics of the order, which will be presented tomorrow. The summary:

  • It is the policy of the administration "To protect and vigorously promote religious liberty"
  • Calls on the IRS to show "maximum discretion" in the enforcement of the Johnson Amendment, which limits the power of religious leaders (and many charity groups) from endorsing political candidates
  • Calls for "regulatory relief" for businesses and employers who have religious objections to being required to fund birth control or preventative services.

And that's it. There are no special protections being extended to those who oppose gay marriage or recognizing transgender people. That first item, though, is very vague in the summary. It could end up meaning very little, but we'll have to see what the actual order says tomorrow.

Democrats Push for National Ban on LGBT Conversion Therapy

Tue, 02 May 2017 12:45:00 -0400

The Supreme Court has declined to consider a challenge to the constitutionality of a California law banning conversion therapy on minors. Conversion therapy involves the process of trying to change the sexual orientation of a person from gay or bisexual to heterosexual. Decades ago when people believed homosexuality was a form of mental illness, this therapy was considered normal. Now psychologists and psychiatrists know better, and have determined that homosexuality and bisexuality are normal variations of sexual orientation. Furthermore, professional mental health organizations like the American Psychological Association have determined that conversion therapy likely doesn't work and formally oppose its use. Starting earlier in the decade a handful of states like California began legislatively banning conversion therapy for minors. The laws have typically been crafted as though this were an occupational licensing and business fraud issue. They prohibit state-licensed mental health experts from offering services to change a teen or child's sexual orientation. Fundamentally, though, conversion therapy isn't a particular set of practices or processes. It is really an idea—that homosexuality can be cured. The idea may be discredited by professional therapy organizations, but there are people out there who believe otherwise, and their beliefs are frequently tied to their religions. So given that these laws essentially recast an idea as a type of consumer fraud, religious-minded supporters of conversion therapy have been challenging the laws as infringements on their freedom of speech and freedom of religion. They have been rebuffed, and Monday the Supreme Court rejected a challenge of California's law. The court previously turned away a challenge to New Jersey's ban in 2015. These laws are often written narrowly in scope and in whom they affect. The law prohibits offering conversion therapy to minors, not adults, which is intended to deal with concerns about consent and coercion. Historically, young gay teens have been pushed and even forced into treatment against their will. The laws focus on state-licensed treatment to try to emphasize this is an issue of occupational oversight for the benefit of consumers, not an attempt to censor speech or religion. Bans on conversion therapy, though, are fundamentally censorship of an idea, and there is a slippery slope and consequences that people with narrow interests in halting abusive treatment of gay and transgender teens simply do not grasp. This isn't a ban on a particular dangerous technique, like electroshock treatment, for example. It's a ban on anything—even just speech—coming from a licensed therapist that suggests homosexuality can be cured. It is dangerous to allow the government to control the classification of speech and to recast speech as something else just because commerce is involved. For example, some may defend the ban because it affects only minors who have limited abilities to consent or decide for themselves whether they want such treatment. Adults can seek out conversion therapy if they want. It doesn't matter if it doesn't work or may potentially harm them—they're adults and can decide for themselves. Except Rep. Ted Lieu (D-California) and 70 Democratic members of Congress want to take this choice away from adults as well. Lieu is once again trying to get federal legislation passed to classify conversion therapy as a form of consumer fraud and give the Federal Trade Commission (FTC) the authority to punish anybody who provides it in exchange for money. To be very clear, this federal law would not be confined to minors. It would affect even adults voluntarily seeking conversion therapy. Lieu's law would forbid advertising or offering any form of conversion therapy that claimed to change somebody's sexual orientation or even "eliminate or reduce sexual or romantic attractions of feelings toward individuals of the same gender" in exchange for money. It's not a new proposal from Lieu. He's been pushing it for a couple of year[...]

Now That Gorsuch Is Seated, Will Supreme Court Take Up Gay Wedding Cake Case?

Mon, 17 Apr 2017 13:55:00 -0400

Today is newly seated Supreme Court Justice Neil Gorsuch's first day at the office hearing cases. He is apparently not going to be a quiet, Clarence Thomas-style justice and asked several questions during the first case before the court. Before this morning's case—which is a procedurally-oriented matter about the processes required appeal federal work discrimination complaints—the Supreme Court released its list of orders from last week's conference and decided not to take any new cases as yet. Gorsuch did not participate in this last conference but will for the next one. This matters because the Supreme Court has repeatedly declined to make a decision whether to take a high-profile case about businesses declining to serve gay weddings and has been bumping it to future conferences since last December. It rescheduled the case yet again this morning. That case is Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. This is a case about wedding cakes, gay marriage, and whether businesses can decline to provide their goods and services on the basis of religious beliefs. Jack Phillips, owners of Masterpiece Cakeshop in Lakewood, Colorado, declined (all the way back in 2013) to bake a wedding cake for a gay couple's wedding. This decision ran him afoul of Colorado's public accommodation laws, which forbid discrimination on the basis of sexual orientation. Phillips' response, as we have seen in many of these cases, is that he's not refusing to serve gay people, but he has religious objections to gay marriage and sees being obligated to make a wedding cake as being compelled to put his stamp of approval on it. Courts across the country have disagreed with Phillips and other businesses that serve weddings, like florists and photographers. Courts have thus far declined to accept the argument that refusing to serve gay weddings is somehow different from refusing to serve gay people. Furthermore courts have declined to accept the claim that floral arrangements or wedding cakes are a form of protected expression and that compliance with law compels speech or forces people to compromise their religious beliefs. That the Supreme Court kept pushing back a decision on whether to take this case until now is significant because they've already previously rejected to hear a similar fight. A photographer in New Mexico tried to get the court in 2014 to hear their case where the state told them they couldn't refuse to provide their services for a gay couple's wedding. The photography company, like Masterpiece Cakeshop, lost their challenge to the law, and the Supreme Court declined to hear the case. Now, three years later, the court appears to be delaying a decision at least until Gorsuch has been seated. There haven't been any cases where higher courts have accepted the arguments of the religious shop owners, so there's no "split" that requires the Supreme Court to resolve. Most recently, a florist in Washington State lost her challenge just like the bakery and photographer had before her. It's possibly significant that the Supreme Court didn't again simply refuse to certify a case that's very similar to one they've rejected before. Damon Root has carefully analyzed what Gorsuch is likely to be bringing to the court here. On Wednesday, the Supreme Court will be hearing a case connected to the boundaries of separation between church and state. The question at hand is whether it's constitutional for Missouri to withhold grants from a state program funding playground equipment from religious schools. Missouri's state constitution forbids it; the religious schools say this counts as religiously motivated discrimination. The only real fundamental overlap here with the bakery case is the invocation of religious freedom, so be wary of reading too much into any questions Gorsuch might ask in that case. Nevertheless, it's worthy of noting that the court held on to the bakery case long enough for a ninth justice to be seated before deciding whether to take it. We may find out next Mon[...]

Federal Court Ruling Forbidding Antigay Job Discrimination Potentially a Very Big Deal

Wed, 05 Apr 2017 12:05:00 -0400

Discrimination on the basis of sexual orientation counts as discrimination on the basis of sex and therefore is already prohibited under relevant federal laws. That's the meat of the ruling released late yesterday by the U.S. Court of Appeals for the 7th Circuit, which covers Indiana, Illinois, and Wisconsin. The 8-3 ruling has huge political and legal consequences. The court specifically determined that Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex, also bars discrimination on the basis of sexual orientation. So now, suddenly, without passing any new laws, we have a new protected class under federal law. Mind you, the court doesn't see this as a new federal class, or at least the majority doesn't. The case revolved around a woman suing Ivy Tech Community College in Indiana claiming that she had been discriminated against and denied teaching positions on the basis of her sexual orientation. Sexual orientation is notably not covered under Title VII and lower courts had tossed her case out for that reason. But the full court determined that even though sexual orientation does not have special separate protection under federal law, it is nevertheless covered under bans on sex discrimination. One of the arguments the court found compelling was that if you changed the plaintiff's sex to male and changed nothing else about her life, the discrimination would not have happened. She would be a man married to a woman—a heterosexual—and would not have been denied employment because of her relationship. Therefore, discrimination on the basis of her sex is indicated, not just her orientation. Furthermore, the Supreme Court has previously established a precedent that discrimination on the basis of whether a person conforms (or not) to a gender stereotype counts as sex discrimination. That precedent is also brought to bear in this case (and has been invoked in other cases of discrimination on the basis of sexual orientation and gender identity as well): Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel describes the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively's claim is no different from the claims brought by women who were rejected for jobs from traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man). The majority ruling is fundamentally focused on the idea that court decisions over time have filled out the concept of what certain types of discrimination mean in real practice beyond just the basic terms of "sex" or "race" or any other protected characteristic. Discriminating against a woman because she's pregnant counts as sex discrimination. Discriminating against a person for being in an interracial marriage counts as discrimination on the basis of race. Therefore, their logic is that discriminating against a person for being a relationship with somebody of the same sex is discrimination on the basis of sex. Such a ruling may also then bring into play a lively debate over the limits of who much leeway judges should have to determine the boundaries of a law and how much they should be bound to the original intent of the law's creators. That's a diplomatic way of saying that there's going to be a lot of discussion about "activist judges" in response to this case. The three dissenting judges were very concerned at the consequences of the judiciary making the decision to massively expand the limits of what the classifications of the law covered: The result i[...]

No, LGBT Rights Are Not and Should Not Be Dependent on Census Questions

Fri, 31 Mar 2017 12:45:00 -0400

This week in ginned-up Donald Trump administration outrage that distracts from actual issues: The Census will continue to not ask questions that they haven't been asking about LGBT people. This in some quarters has been presented as some sort of LGBT "erasure." It's not. At least when activists within the LGBT and progressive community freaked out about the possibility of an anti-gay executive order coming from President Donald Trump's administration, there was actual documentation. It turned out that Trump was not interested in signing such an executive order and it never came to be. But at least there was smoke to be concerned about if not an actual fire. Such is not the case with this week's LGBT anti-Trump outrage, which turns out to fundamentally be less about gay and transgender rights and more about organizations who want a slice of the great federal spending pie. To explain: The U.S. Census put out a proposal earlier in the week for questions it may ask during the 2020 census. Sexual orientation and gender identity were among the potential discussion topics. This was not something the Census had asked previously, which you know if you've participated in a census, ever. Then, the Census quickly explained that it had not intended to include the questions about sexual orientation and gender identity this time and withdrew the topics. So the Census, which had never asked people if they were LGBT before, is not planning to ask in the 2020 census either. Cue the outrage. The first headline I saw came from Out Magazine, a top gay-targeted publication. The headline read "Trump Administration Omits LGBTQ People from the 2020 Census." My initial reaction was "Woo hoo! I don't have to participate in the census!" But even before reading I suspected that wasn't what the story actually meant. The Trump administration is not omitting LGBT people from the census, and a writer actually analyzing how the announcement played out notes that the Trump administration might not have even played any role in the consideration of the questions at all. Even Snopes has gotten into the act with an explainer. What actually happened is that the National LGBTQ Task Force, an activist group with an open, stated agenda of having these questions added to the census, put out a press release declaring their unhappiness in seeing the questions get deleted. I don't use "agenda" as a negative here, and I don't necessarily see an issue with the Census Bureau asking people their orientations for demographic purposes, as long as it's made very, very clear that answers are completely voluntary. But there is a deliberately misplaced outrage here that wants to trick LGBT people into thinking that their rights and equal protection under the law is dependent on whether the federal government knows that they're gay or transgender. This is a seriously unsettling proposition. Here's a quote from Meghan Maury, criminal and economic justice project director of the National LGBTQ Task Force: "Today, the Trump Administration has taken yet another step to deny LGBTQ people freedom, justice, and equity, by choosing to exclude us from the 2020 Census and American Community Survey. LGBTQ people are not counted on the Census—no data is collected on sexual orientation or gender identity. Information from these surveys helps the government to enforce federal laws like the Violence Against Women Act and the Fair Housing Act and to determine how to allocate resources like housing supports and food stamps. If the government doesn't know how many LGBTQ people live in a community, how can it do its job to ensure we're getting fair and adequate access to the rights, protections and services we need?" What does demographic inclusion in a study have to do with whether LGBT people are treated equally under the law? Nothing. The Supreme Court decision on same-sex marriage, for example, is a ruling precedent that makes it clear that rights and privileges extended by the go[...]

Florists Join Bakers, Photographers in Court Ruling Ordering Them to Serve Gay Weddings

Fri, 17 Feb 2017 13:30:00 -0500

Florists—at least those in Washington State—can be forced to provide their goods and services for gay weddings. That was the unanimous decision from the state's supreme court handed down yesterday. The high-profile case, which had been winding through the courts for a while, pitted Baronnelle Stutzman, owner of Arlene's Flowers in Richland, against a gay couple who had come to her seeking her flowers for their wedding. She declined, citing her religious opposition to recognizing same-sex marriage. As had happened in other cases involving bakers and wedding venues, this decision put Stutzman on a collision course with the state's public accommodation antidiscrimination laws. Washington forbids discrimination on the basis of sexual orientation. Stutzman's argument was that she wasn't discriminating on the basis of the men being gay but rather refusing to participate in the wedding (which wasn't even legally recognized by the state when they started planning it in 2013). She argued that government mandating her participation by requiring her to provide flowers violated her constitutional rights to free speech, free exercise, and free association. The court roundly rejected all of her claims. The decision noted courts had previously rejected claims that attempted to separate "status" from "conduct" in similar ways, that, for example, discriminating against somebody who is pregnant falls under sex discrimination. As for her attempt to invoke her religious freedoms, they noted that the Supreme Court has set the precedent that "that individuals who engage in commerce necessarily accept some limitations on their conduct as a result." As for her free speech claim, the court has shared the position that we've seen in similar cases: They say Requiring Stutzman to prepare flowers for a same-sex marriage is not actually compelling her to endorse said marriages. This is very similar to how courts have ruled on wedding cakes. They have declined to accept the argument that the creation of a wedding cake is in and of itself expressive speech, but a baker does have the freedom to reject orders to pass along a particular textual message. (I explained the almost comically absurd complexity of this line of legal reasoning here years ago). Perhaps even a little more concerning, even if they did accept floral arranging as a form of expressive speech, it still might not have changed their ruling. In a similar case in New Mexico, a photographer lost a fight to refuse to shoot a gay wedding. Pretty much everybody understands that photography is expressive speech. But this majority decision agreed with the New Mexico court's decision, which concluded, "[W]hile photography may be expressive, the operation of a photography business is not." That is the kind of logic that can end up in all sorts of bad places: "While the publication of a newspaper may be expressive, the operation of a media business is not." The operation of a business is indeed expressive. It remains deeply frustrating to see the courts (and the American Civil Liberties Union) continue to sometimes cling to an idea that people lose some of their freedoms simply by engaging in commerce, which is itself a type of freedom. The Cato Institute submitted an amicus brief defending the florist's right to say no to the couple as a First Amendment issue. Cato (like Reason) has long supported legal recognition for same-sex couples. That's not the issue here; it's a matter of free speech (or compelled speech, in this situation). The Alliance Defending Freedom, which represented the shop (and was just designated a "hate group" by the Southern Poverty Law Center) is promising to try to get the case before the U.S. Supreme Court. I'm skeptical the high court would take the case. They've already refused to hear the previous wedding photography case, and that's a much more straightforward example of expressive speech. And so far, the business owners have been l[...]

Meryl Streep Congratulates Herself (Again) for Criticizing Donald Trump

Sun, 12 Feb 2017 10:00:00 -0500

In a speech on Saturday night, Meryl Streep once again congratulated herself on her courage in criticizing Donald Trump. "It's embarrassing and terrifying to put the target on your forehead," she said, "and it sets you up for all sorts of troll attacks and armies of brownshirt bots and worse, and the only way you can do it is if you feel you have to. You have to. You have no choice, but you have to speak up and stand up and act up." The occasion was a Human Rights Campaign (HRC) gala at the Waldorf Astoria in Manhattan, where Streep received a National Ally for Equality Award. In this context, it is hard to give Streep points for bravery. If she had stood before an audience of LGBTQ activists and their progressive supporters to defend Trump, that would have demonstrated courage. Confirming the unanimous opinion of her listeners and portraying Trump's critics (including Streep herself) as bold dissidents seems more like a profile in conformity. Likewise, it did not take much gumption for Streep to criticize Trump, then the president-elect, at last month's Golden Globe Awards, where the acclaimed actress told her audience of Hollywood stars and movie critics that "you and all of us in this room really belong to the most vilified segments in American society right now." By Streep's account, the burden of defending culture and decency against Trump and his philistine horde has fallen upon her and her rich and famous friends, and they must not shrink from the challenge. Streep did pay a price for (accurately) portraying Trump as a crude bully: The president elect, who in 2015 described her as an "excellent" actress and "a fine person," decided she was "one of the most over-rated actresses in Hollywood," thereby illustrating her point that the blowhard billionaire prefers ad hominem attacks to logical argument. Streep alluded to that Twitter slam in her speech at the HRC gala, describing herself as "the most overrated, overdecorated and, currently, overberated actress, who likes football, of my generation." The football reference was a joke about another joke. In her Golden Globes speech, Streep had warned that "Hollywood is crawling with outsiders and foreigners, and if we kick them all out, you'll have nothing to watch but football and mixed martial arts, which are not the arts." The remark struck many people as a condescending swipe at Trump's benighted supporters. Streep acknowledged the backlash during her HRC speech, saying, "I was making a joke, and Mike Nichols told me, 'If you have to explain the joke, Meryl, you're doomed.'" Yes, of course it was a joke, but it was a joke at the expense of the uncultured rubes Streep and her friends seem to imagine when they think of Trump voters. "It isn't helpful to make it us versus them," Streep acknowledged on Saturday. But by continuing to portray herself and her privileged social circle as the valiant resistance against everything Trump represents, she only reinforced a Manichean view in which wealthy celebrities (except for Trump) risk everything to defend civilization against the encroaching darkness. "If we live through this precarious moment," Streep said, "if his catastrophic instinct to retaliate doesn't lead us to nuclear winter, we will have much to thank our current leader for. He will have woken us up to how fragile freedom is. His whisperers will have alerted us to potential flaws in the balance of power in government. To how we have relied on the goodwill and selflessness of most previous occupants of the Oval Office." Streep's claim that Trump is uniquely selfish or malevolent is not only dubious but irrelevant. The point of checks and balances is that they protect us against liberty-threatening power grabs, regardless of the motives behind them. As Louis Brandeis observed, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." If the Tru[...]

A Wayward Order on Religious Freedom and LGBT Issues Makes for Confusing Coverage and Activism

Thu, 02 Feb 2017 14:01:00 -0500

Earlier in the week, the White House put out a statement that President Donald Trump is going to maintain President Barack Obama's executive order prohibiting federal agencies and federal contractors from discriminating against gay and transgender employees. So why are some people afraid this is just a big smoke screen? People might be a little confused at news reports that there's an executive order floating around the White House that does nearly the opposite of what they said they were doing—an order that blows big holes in discrimination policies in order to protect religious freedom. Prior to the White House's announcement on Tuesday that it would be maintaining the order, some media outlets had gotten their hands on something titled "Executive Order—Establishing a Government-Wide Initiative to Respect Religious Freedom." Even after the White House announcement, civil liberties and LGBT groups expressed concerns about the possibility that despite what Trump declared, something was coming down the line that was going to harm their interests. Representatives of the American Civil Liberties Union, the Human Rights Campaign, the National Association for the Advancement of Colored People (NAACP) and others even had a media teleconference Wednesday to express concerns about the contents of this semi-mysterious order. Wednesday evening The Nation finally published the executive order that had been circulated within the beltway, along with some analysis by legal and civil rights experts. It's a four-page, broadly-written, and pretty complicated order, both in what it attempts to accomplish and what its hidden consequences may be. There are parts of the executive order fans of religious freedom and freedom of association would support—it spells out that religious organizations (and individuals) cannot be forced comply with mandates to fund birth control or abortions, for example. But it also has some deep constitutional and rule-of-law issues. The order establishes that federal employees (and contractors) must be "reasonably accommodated" for acting or refusing to act in accordance to a set of beliefs outlined within the order. The very particular beliefs protected: Marriage should be reserved to heterosexual couples; biological sex is immutable (in other words, transgenderism isn't real); and life begins at birth conception and abortion is bad. This whole part of the order, then, establishes a particular set of beliefs that are protected by government order. It's not a "religious freedom" order at all. It's saying that the government will recognize and protect a particular set of religious beliefs, which is a violation of the Establishment Clause. It literally establishes a set of religious beliefs the government will give special preference to. Mississippi passed a law with similar carveouts last year. Its implementation has been blocked by a federal judge, for now. So after all that explanation, what is the real story here? Is this order legitimate? Is Trump going to sign it? The answers so far are that yes, the executive order appears to be legitimate and was circulating within federal agencies, but no, the Trump administration is not considering it. At least for now. A White House official told ABC News Trump has no plans to "sign anything at this time." The vague possibility hangs in the air, and so apparently gay and civil rights groups are continuing activism against an the executive order anyway and treating it though it's a Sword of Damocles about to fall at any moment. If these opening weeks of the Trump administration are an indicator, we are going to see a very, very leaky government. In most ways, this is great. It's awesome. Trump certainly doesn't appear to be a fan of transparency (at least not when it's about him, anyway). But internal resistance and conflict between parts of his administration is going to result[...]

Trio of LGBT News Stories Shows We're Not Backsliding on Cultural Acceptance

Tue, 31 Jan 2017 12:20:00 -0500

While the populist triumph of President Donald Trump represented the possibility of backsliding on freer immigration and trade policies, look at all this news that makes it abundantly clear that America, at least, won't be backtracking on gay and transgender acceptance. To wit: Federal executive order prohibiting anti-LGBT workplace discrimination remains intact. This morning the White House announced that Trump will be keeping President Barack Obama's 2014 anti-discrimination order in place. This order prohibited discrimination against gay and transgender employees by federal contractors. The White House put out a brief statement: President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community. President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election. The President is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression. The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump. To be clear, the administration here is setting the terms for working with the federal government and not attempting to establish (or advance) a general federal ban on LGBT discrimination by private employers elsewhere. If you want to get government money, you have to follow their rules. The order maintains narrow exemptions for religious organizations who provide federally funded social services. This decision (and the White House deliberately publicizing it) is an important test of whether Trump as president would be able to maintain his own generally pro-acceptance positions as policy even while bringing in social conservatives to run his administration. Now whether the executive order will actually be enforced is another question (that won't be answered for some time). The response by the Human Rights Campaign, the top LGBT activist organization, is very "Yes, but … ," (via The Hill): "You can't claim to be an ally when you send LGBTQ refugees back to countries where their lives are at risk. You can't claim support and then rip away life-saving services made possible through the Affordable Care Act for transgender people and those living with HIV or AIDS. You can't be a friend to this community and appoint people to run the government who compare being gay to bestiality," [Human Rights Campaign President Chad Griffin] added. Exit polls showed that even though Trump has been the most vocal supporter of LGBT issues the Republican Party has seen in a presidential candidate, he did terribly with LGBT voters, even worse than previous candidates. But we'll have to wait to see how actual policies affect LGBT folks moving forward. Betsy DeVos, friend of the gays? When Trump selected DeVos as his choice to head the Department of Education, supporters of school choice cheered. She's a massive ally and fighter for the rights of families to control where their children get educated. But many within the LGBT community were not so happy. DeVos' family has a lengthy history of opposing gay issues; and we're not just talking about speaking out or voting against gay issues. The DeVos family has helped bankroll ballot initiatives against gay marriage recognition. But according to a story by The New York Times, DeVos does not share the positions of her elders. She has a history of personal support for gay and transgender accommodation that she doesn't make a big public deal about: Ms. DeVos's personal experience with the debate over gender identity and bathrooms dates back decades. As chairwoman of the Michigan Republican Party, she came to the aid of a transgender [...]

Texas Attempts End Run Around Supreme Court Gay Marriage Ruling

Fri, 27 Jan 2017 13:10:00 -0500

We're seeing either an attempt to resurrect gay marriage discrimination policies in Texas or its death throes. Hopefully it's the latter, but it could also be a useful case to bring about a discussion of the extent and fiscal consequences of expansive government employee benefits! (Spoiler: That's not going to happen.) A couple of taxpayers, supported by the Texas Republican establishment, are suing to stop the City of Houston from extending spousal benefits to partners in same-sex marriages. This would seem to go against the Supreme Court's decision in Obergefell v. Hodges, the 2015 ruling that mandated that the federal government and the states recognize same-sex marriages as they do heterosexual marriages. Indeed, Texas courts initially rejected the case, but the governor, lieutenant governor, and attorney general submitted briefs arguing that this case is an opportunity to "examine the scope" of how broad the Obergefell ruling is. So the Texas Supreme Court will hear arguments in March. At the heart of the case is a claim that gets really odd, really quickly: They are arguing that legally recognizing a same-sex couple doesn't necessarily mean that they have to extend the same employee benefits as they do to heterosexual married couples: "No city employee — whether heterosexual or homosexual — has a 'fundamental right' to receive employee benefits for his or her spouse. It is perfectly constitutional for the government to offer benefits or subsidies to some married couples while withholding those benefits from others." While it's true that no city employee has a "fundamental right" to spousal benefits, this line of argument is a bit of a straw man. The justification for denying benefits and subsidies matters—the government can't just withhold them arbitrarily. Access to marriage benefits was part of the meat of what both the Obergefell and the previous Windsor ruling (which required the federal government to recognize gay marriages performed in states where it had been legalized) were about. From the majority opinion in Obergefell: The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Whether or not politicians in Texas support or "approve" of same-sex marriage should not be relevant to a decision of whether spouses should have access to benefits. It would certainly be deemed discriminatory to withhold benefits on the basis of the spouse's race or political affiliation or any number of other categories. If taxpayers have an objection to the cost of extending benefits to spouses of government employees, then the discussion truly should revolve around reducing those benefits as a class. But that's not what this is about (which is a shame, really). If the government is going to offer a legal benefit or a privilege to a spouse, it needs to have a legitimate reason for discriminating against a particular couple. Not liking gay marriage isn't a legitimate reason. Read through the case files here. While it seems likely that this lawsuit must be doomed, courts can be tough to predict.[...]

Worst Bathroom Bill Ever: Alabama Law Would Mandate Attendants in Public Restrooms

Mon, 09 Jan 2017 15:05:00 -0500

(image) Talk about a race to the bottom.

Legislators in the great state of Alabama are moving swiftly to protect the safety of people using public restrooms.

Senator Phil Williams will introduce the Alabama Privacy Act, according to our news partners at

The bill will require bathrooms and changing rooms to either be exclusive to one gender or open to all genders. Bathrooms that are open to all genders must be staffed by an attendant at all times.

According to the bill, any public institution the leaves bathrooms unattended could be hit with fines ranging from $2,000 to $3,500 and face potential lawsuits.

So it's not just a hysterical reaction to the nonexistent threat of men dressing up as women to gain entry to bathrooms because, come on, perversion, right? It's also a jobs program! Needless to say, State Sen. Phil Williams defines himself as a "conservative Republican."

Read the full text of the proposed legislation here.

The Daily Caller notes that it's not just Alabama (and before it, North Carolina) that's wrangling with bathroom bills. Texas' Lt. Gov. Dan Patrick, writes Amber Randall, is dropping knowledge like he just had lunch at What-A-Burger:

"If laws are passed by cities and counties and school districts allow men to go into a bathroom because of the way they feel, we will not be able to stop sexual predators from taking advantage of that law, like sexual predators take advantage of the internet," Patrick explained."

Virginia, too, is prepping a bathroom bill, because it's important to deal with non-issues rather than, say, balance state budgets or rein in public pensions.

Because we don't actually live in a completely post-fact world yet, it's worth underscoring that non-discrimination ordinances (NDOs) have been in place for years in various jurisdictions and led to no uptick in bathroom crimes.

HT: The Twitter feed of former Reasoner and current Wash Poster Radley Balko.

Note on image: Curt Schilling was an excellent baseball pitcher and a generally terrible human being and game designer who cost Rhode Island taxpayers on the order of $50 million.

Related video: How To Share a Bathroom with a Trans Person in 4 Easy Steps.

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Compromise Kills Two Bad Trans-Related Laws in North Carolina

Tue, 20 Dec 2016 12:42:00 -0500

The saga of North Carolina's House Bill 2 appears to be coming to a close. HB2 drew national attention, courted controversy and boycotts, and quite possibly contributed to both N.C. Gov. Pat McCrory's defeat at the polls and—paradoxically—Donald Trump's victory. HB2 was most famous for mandating that people in public schools and government buildings use the bathrooms and any gendered facilities as the sex listed on their birth certificates, blocking them from accommodating many transgender people. The law also forbid cities from either raising minimum wages above those the state mandated and also forbid cities from adding their own protected categories to anti-discrimination laws. The state law was a direct response to outrage from conservatives over Charlotte's City Council adding sexual orientation and gender identity to all its antidiscrimination laws. This included public accommodation laws, meaning both public and private entities would be obligated to allow transgender people to use the facilities of their chosen sex. Thus came the great transgender bathroom panic of 2016, also fed by pushes from the Departments of Justice and Education to require all schools across the country to provide similar accommodations. On Monday, in the spirit of compromise, Charlotte's City Council rescinded its additions to its antidiscrimination laws. And now McCrory has responded by calling for a special session of the state's legislature to strike down HB2. So in the end, everything will be back the way it was at the start, like your average sit-com. (McCrory is complaining that the way Charlotte immediately folded after he was ousted is proof that the true goal was to get rid of him.) The outcome will be that neither Charlotte nor the state of North Carolina as a whole offer protections against discrimination on the basis of sexual orientation and gender identity. Note that—as I have corrected bad reporting previously—eliminating HB2 does nothing to actually add LGBT protections. In fact, the state could have added LGBT protections to antidiscrimination laws and keep HB2 intact. But that's a whole different issue. Both Charlotte's ordinance additions and HB2's mandates were bad regulations that attempted use the law as a hammer in a culture war rather than carefully considering the personal liberties of all parties involved. A transgender person should be able to identify himself or herself to the government as he or she sees fit (assuming no effort to defraud the government or others). The purposes of things like birth certificates should be for us to tell the government who we are, not for the government to tell us who we are. As a legal and civil liberties matter, whether transgender is a "real thing" should not be relevant to our right to control our own identities. But to demand that private entities come along for the ride or face fines or shutdowns by government agencies denies those people the right to decide for themselves how much to accommodate others, and that has led to a massive backlash. There is little sign that the fear of predators posing as transgender people in order to target children or women is based on actual threats. But the rush to use the law to bypass the necessary cultural shifts to help transgender people achieve public acceptance got drawn into the tiresome "public correctness" fight that helped drive this election, and it didn't need to. There are signs that acceptance of transgender Americans is improving, bathroom conflicts aside. When you use the law to try to force agreement through threat of fines or force, the battle then becomes over who controls the law. And it assumes that there must be winners and losers and not a society where people work things out with each other through negotiation, d[...]

School Choice Can Help LGBT Students Deal with Hostile Environments

Tue, 20 Dec 2016 07:30:00 -0500

School choice is not the enemy for gay and transgender students. People with an entrenched interest in maintaining the public school status quo are selling it as a threat, suggesting the idea of charter schools and vouchers is all just a trick to siphon education funding away to religious schools and evil, evil "for-profit" corporations. (Whether or not parents are happier with the educations their kids are getting there is irrelevant.) It's not entirely clear what the landscape on LGBT issues and public schooling is going to look like under President-Elect Donald Trump. It's an exaggeration of describe Trump as "anti-gay," but it's definitely accurate to at least describe his secretary of education nominee Betsy DeVos as having a history connecting her to anti-gay activism. Members of the religious DeVos family don't just have a particular set of conservative views. Through their foundation, they've spent money on state-level efforts to block same-sex marriage recognition. This doesn't necessarily mean that making life miserable for LGBT students is on DeVos' agenda. It does mean that her religious motives are being used to impugn school choice, and that's a shame. If school choice is for anybody, it's for students who don't fit into a "one-size fits all" education system, and that includes LGBT teens, particularly now that transgender people are coming out at a younger age. For proof, head down to Atlanta. Reuters has a story about Pride School Atlanta, a private non-profit school focused on serving these students. It's the first of its kind down there and is not sitting around waiting for the federal government to create rules on how to treat its students. And more power to them: At Pride School, where transgender students are the majority of its inaugural class, Josh Farabee, 14, feels comfortable showing off his spunky pink and lime hair and long mauve nails. Under the gender-neutral restroom policy students voted for, he tried the men's restrooms but discovered he still prefers the women's. The transgender student's days at the school are a far cry from his former public school, where classmates called him "tranny" and "fag." "I don't wake up scared to go to school," he said. One thing to note about Pride School Atlanta is that it's a private school, not a charter school, so it has a tuition. Imagine how great it would be for parents of LGBT kids if it were a charter school, and they were able to send their children to a positive school that was funded from the tax dollars they have to contribute into the education systems. That's why it's so important not to allow the idea that school choice is just for the right people (white religious folks) to control the debate. Charter schools are a boon for poor minorities in urban environments and parents love them. Parents should not have to rely on the hospitality of the president or whoever is in charge on the federal level to determine whether their children are treated right. School choice will give parents the power to put kids in schools that treat their students well and punish those that do not.[...]

Brickbat: Love Wins

Fri, 16 Dec 2016 04:00:00 -0500

(image) The Illinois Human Rights Commission has upheld an $80,000 judgement against the Christian owners of a bed and breakfast who refused to host a gay wedding. An attorney for owners of the Timber Creek Bed & Breakfast says they have never hosted civil union ceremonies or gay weddings and do not plan to do so despite the ruling against them.

Pittsburgh Bans Conversion Therapy for Minors. Is It Professional Regulation or Censorship? (Or Both!)

Thu, 15 Dec 2016 14:05:00 -0500

Pittsburgh has joined a handful of states and other cities this week by legislatively banning the professional practice of conversion therapy for minors—that's counseling that seeks or claims to cure gay people of their homosexuality or transgender people of their feelings of being the opposite sex. The practice is widely discredited by professional counseling and mental health organizations. Not only does it probably not work, many therapists believe it is actively harmful to the mental health of its subject. In America, it's heavily tied to religious efforts to cure followers of unwanted sexual urges, and it is often (but not always) pushed on teens by the parents. I have been—and remain—a critic of these laws, not because I support conversion therapy (I agree with the mental health experts completely), but because I'm very concerned about the consequences of government control over subjective psychological treatments that are significantly speech-related. This law tells licensed therapists in Pittsburgh that they literally cannot talk to minor patients about a particular subject. There are a couple of indicators that government is well aware that they're regulating and censoring speech, even as they insist it's about stopping fraud. First of all, the law (as the other laws have been passed) only covers minors. The argument is that the treatment is fraudulent and dangerous, but if adults want to partake in it, go ahead. But minors often get put into conversion therapy against their will by parents and there are consent issues involved (a dynamic we occasionally see in other controversies where parents contradict medical professionals in the appropriate health treatments for children). Second, the law, like the others, only covers mental health professionals licensed by the state of Pennsylvania. They can't tell non-professionals that they can't talk with gay or transgender teens and tell them they can be "cured," because that would flat-out be censorship. As a result, this law can (and will) be ignored by church-based or religious-based conversion "therapy" treatment that is not provided by licensed professionals. Thus, the extent that this law really stops any actual conversion therapy taking place in Pittsburgh is not clear. But what it does do is establish a precedent of the government deciding what sort of discussions are legally legitimate by classifying it as "fraud" rather than speech and therefore open to regulation. And so far, the Christian Science Monitor notes, federal judges have deferred to the argument that these laws are regulating professions, not censoring free speech. Their piece also quotes from my previous criticism of these laws as using government regulation to provide scientific certainty to a social science field that is ever-evolving. Is there a reason to actually care if it stops kids from being abused by their parents? Yes, because why stop there? If a government agency can declare by its authority that a controversial matter is actually "settled" as a legal and regulatory issue, imagine what that could potentially mean. You don't have to stretch too far. Heck, you don't even have to leave this site. A pack of attorneys general have colluded to target ExxonMobil, attempting to subpoena reams of correspondence between them and think tanks (among them, the Reason Foundation, which publishes this website). Their argument is that the debate and discussions about climate change was actual an organized attempt to defraud people and they're looking for evidence. Ron Bailey noted at the time: "It's bad enough to politicize science, but to outlaw disagreements over how to interpret science heads down the perilous path[...]