The Supreme Court and Transgender Rights
Welcome to another week Runners,
Things continue to happen…………….
Man, that sums everything up, doesn’t it? I can go home now right??….*sigh*, okay I guess I can give you a little more than that. I am ON IT! (PS — Don’t forget the events list all the way at the bottom; some really good ones this week.)
Small Immediate Acts of Resistance
- Get the LPGA Tournament moved off of Trump’s property. This week I am borrowing a resistance act from the organization Wall-of-Us, who sends out weekly acts. If you are looking for even more things to do, you might want to try signing up or following them on Twitter. But specifically I learned from them this week that the 2017 U.S. Women’s Open is being held at Donald Trump’s New Jersey golf resort. Wall-of-Us is encouraging people to tweet, write, call, or email the US Golf Association and try to get the tournament moved on the grounds that Trump is disrespectful to women and an organization supporting professional female athletes should not support him. Click that last link to get the script and comment pages.
- Sign up to attend and/or email someone you know about attending a Resistance Recess event. The week of February 18–26 (so right now!) is the first Congressional Recess of this session, so members are having press events and town halls across the country. Moveon.org is organizing nationwide protests and just general attendance at these events. There are actually several events very close to DC, including one in Silver Spring, one in Vienna, VA, and one in Annapolis. And for those of you with odd schedules, a lot of these are during the day. Sign up to attend your nearest event now. But I want you to go one step further than that: find an event in your home state (if you’re not a DC native) and email or call at least one person you know and ask them to attend that one (this is also an alternative to attending one yourself, if you don’t want to go to events for people who don’t represent you).
- Tell the Departments of Justice and Education and/or your home school to protect transgender kids. Send a quick email or letter, using this form from the National Center for Transgender equality, but with personalization to Betsy DeVos and Jeff Sessions telling them you are very disappointed with the decision to repeal the guidance on respecting the gender identifying choices of trans students. You can also go even further and use the resources here to help encourage your local schools to support transgender students. They do not need a federal mandate to allow their own transgender students to use the bathroom of their choice, or be referred to by the gender pronouns of their choice, and we need to let them know it.
Topic 1: The Supreme Court
I thought I’d do a little primer on the Supreme Court this week, both Trump’s nominee Neil Gorsuch and what the future of the court might look like. There are quite a few noteworthy cases coming up, and people way smarter than me have been speculating on how they might turn out. Let’s speculate with them.
Let’s start with Neil Gorsuch. The fact is, my friends, he is going to be made a Supreme Court Justice. Right now, the most likely path is that Democrats will filibuster his nomination, Mitch McConnell will get rid of the filibuster for Supreme Court nominees, and then Gorsuch will be confirmed anyway. Or, the Democrats just won’t filibuster (they might not have the votes needed to do so). Either way, the end game is that Gorsuch becomes our ninth Supreme Court Justice. This piece from NY Magazine is a good primer on why the Senate Dems should first filibuster, but then vote for Gorsuch. I’ve already briefly mentioned the idea last week that this filibuster is a move of principle. The empty SCOTUS seat that Gorsuch is up for was President Obama’s seat to fill, and as we all know, Senate Republicans refused to give even a hearing to his nominee for months. Neil Gorsuch as a person is not the issue here. I don’t normally advocate openly for political retribution, but in this case I think it could not be more necessary. We need to send a message.
So let’s move on to Gorsuch himself, our next Supreme Court Justice (get used to thinking of him that way). Gorsuch is a relatively mild pick for the Trump administration, but he would still likely be the most conservative justice on the court, well to the right of Scalia according to analyses of his Tenth Circuit Court rulings by the Washington Post. The SCOTUS Blog has a very in-depth profle of Gorsuch’s legal opinions. The short version is that he is very like Antonin Scalia, both in style, opionions, and rhetoric. So if that helps you visualize the future of the court at all, there you go. He is a textualist rather than a legal precedent adherant, much like Scalia was. What that means is that he makes rulings based on the literal text of written law. Many judges and court systems believe that the spirit or meaning of written law can be changed or at least altered slightly or viewed in a different light over time by a series of legal rulings. When you hear courts or judges referring to “legal precedent” or “case x”, they are using that logic. But Gorsuch is not really into this idea. He thinks the text of the law is the only (or at least most) reliable way to interpret that law, and has bucked legal precedent in his rulings and dissents frequently.
As for the important issues and cases coming before the Court in the near future, the Immigration Ban, voting rights, abortion, and LGBTQ+ rights of various stripes are all possibly on the docket. As I mentioned previously, it’s very likely the administration’s so-called Muslim Ban will end up before the Supreme Court at some point or another. The first transgender rights-specific case in the nation to come up in front of the Supreme Court is already on the schedule for the spring. Gavin Grimm, a transgender student from Virginia is challenging his high school’s decision to not allow him to use the boy’s bathroom at school, using Title IX as his defense. North Carolina has already attempted to pass additional voter restrictions that, in Scalia’s absence, were struck down by the court 5–3. Gorsuch also might present a challenge to organized labor. According to Fortune
“[U]nions will likely be among the first to be affected by Gorsuch’s arrival. That’s because the Supreme Court was expected last year to rule certain union dues violated the First Amendment — until Scalia’s sudden death resulted in a 4–4 deadlock in the case and preserved the status quo.”
For a summary of several of these key issues and brief opinions from legal scholars as to how a new Court might rule, check out this piece from The Guardian or this one from the New York Times. Some of this information is reassuring — for example the NY Times piece author at least believes that abortion rights are secure “for now”. Some of it, like the expected dismantling of environmental protections, is not.
Ultimately I think we’re looking at a very uncertain future for the Court. Gorsuch’s similarities to Scalia in most matters make the Court likely to be a fairly conservative one overall, but as long as Kennedy keeps voting with the liberal judges (aka the LADIES)
on social issues like abortion and LGBTQ+ rights, those things will be safe. But if Kennedy swings right on certain issues, or retires, or if any of the four liberal justices die, and Donald gets to appoint a second judge, things will be in much greater peril from a liberal standpoint. This is a very basic primer on some of the upcoming issues, but these are all things to keep in mind. One additional resource I’ll plus is the Indivisible Guide’s action item page on SCOTUS. As per usual, this involves a lot of petitioning your Reps and Senators, which many of you lovely readers including myself don’t have, but the information is worth knowing.
Topic 2: Transgender Rights
As I already mentioned above, the first case solely about transgender rights to be heard before the Supreme Court is fast approaching. And, late Wednesday night, Donald and Jefferson Sessions (their married names) signed an order that rescinded federal guidelines put in place under the Obama administration that allowed transgender students to use the bathroom of their preferred gender. The case coming before the Supreme Court, brought by Gavin Grimm, is about this very issue. Gavin and his family, along with the ACLU, claim his school’s decision not to let him use the men’s bathrom — the bathroom of his gender identity — is a violation of the Fourteenth Amendment and goes against Title IX. The case goes before the court in March. Teen Vogue did a great interview with Gavin just this week. Gavin repeated a sentiment often expressed by Laverne Cox:
“[This is not just about bathrooms.] This is about the right for trans people to exist in public spaces. If you can’t use the restroom, you can’t go out.”
Trump and Sessions signed this order, if you can believe it, over the express objections of one Betsy DeVos, who, however unqualified she may be, is their chosen Secretary of Education. Shows how much this administration values the opinions of those it appointed to run our most important offices and functions.
Now, the guidelines that Trump repealed were never legally binding.
However, transgender advocates believe they truly helped trans students who are just trying to get an education free from discrimination. What does the repeal of these guidelines mean for the legal challenge, which could ultimately make such guidelines actual law? According to The National Law Journal, there are two separate questions before the Court with the “bathroom issue” specifically:
1.) How much deference do they give to current Administration policy, which is not even law, which rescinded policy that was also never the law?
and 2.) Do the prohibitions on sex discrimination in Title IX also extend to gender identity?
Gavin’s lawyers have expressed confidence that the Court will consider the merits of the case independently of the views of the Executive branch (though of course that remains to be seen), meaning they will have to decide the Title IX question. Several lower courts have ruled that Title VII, which bars workplace discrimination based on sex, also applies to gender identity. Sarah Warbelow, legal director of the Human Rights Campaign explained that “Title IX caselaw follows Title VII very closely with most courts saying the two mirror each other,” which is a good sign. The Supreme Court could also kick this case back the Fourth Circuit Court of Appeals, which declined originally to make a ruling on the Title IX question and would be faced with the same issue.
In short, all of this is uncertain, possibly tilting in the ever so slightly hopeful direction on several issues. But if the Supreme Court DOES rule that Title IX does not extend to protections from discrimination based on gender identity, they are the final say. And it could be decades before that decision is reversed, likely having devastating consequences on the trans community. Of course, schools can decide on their own not to discriminate against their students; they do not need federal “guidelines” OR laws to do so, but many of them won’t unless pressured (and maybe not even then). It is up to us, regardless, both before the case is heard and after, to urge everyone we know, all the time, to watch out for and protect the trans community, especially trans students. Read the National Center for Transgender Equality’s guidelines on how to be an ally to trans people. Do what I suggested at the beginning of the letter and write or call local schools urging them to put specific protections in place for transgender students. If you have kids or plan to, when you look at schools ask about that specifically. The National Center for Transgender Equality also has a list of 52 Things You Can Do For Transgender Equality, and it is really good. I pulled some of my favorites out for quick reference:
#2: Ask your library to carry books that deal positively with trans people
#9: Change the Policy of an Organization You Belong To
Break a gender rule! Such good advice for all of life all the time.
We can also take a lesson from previous successful efforts to combat transphobia. In 2015, researchers did experiments with something they called “deep canvassing” to combat transphobia. Deep canvassing involves 10–20 minute conversations in which you attempt to get a person to empathize with your cause through non-judgmental, non-confrontational discussion. You especially focus on trying to get the person you’re talking to to recall a time when they themselves were bullied or discriminated against.
“The canvassers don’t try to build rational arguments for why someone should think one way or another. The goal is to share personal stories about times when the voter and the canvasser felt attacked or discriminated against.”
After the study, the people who had spoken to canvasser about transgender people felt, on average, almost 10 points more favorably toward transgender people on a scale of 100 (not a huge shift to be sure, but equivalent to about 10–15 years of “natural” prejudice reduction), and their feelings remained more positive than before even several months after they had spoke to canvassers, which is huge. Watch this video of a canvasser’s interaction with a woman who is against transgender rights:
https://www.youtube.com/watch?v=_tdjtFRdbAo
I am already so tired you guys of affirming the humanity of my fellow human beings. Imagine how tiring it must be when you have no choice. At the end of the day, most people already see my humanity (except for a lot of men, but who cares what they think). I don’t have to fight for it most of the time. I didn’t have to take my school to court because they wouldn’t let me use the bathroom of my choosing. Transgender peoples’ choice of gender identity — ANYONE’s choice of gender identity — affects you so little aka not at all that it is mindboggling to me the sheet amount of energy people waste on it. Why does it matter to you?
No, dressing in drag or wearing clothing of the opposite gender do not necessarily
indicate that someone is transgender. Carry on.
But us people at the top of the food chain, those of us who have this kind of power, have to fight for the people who don’t. Depp canvassing and other mind changing techniques notably work best when allies are doing it, not the marginalized group itself. And this is way more serious than bathroom rights. When Gavin Grimm and Laverne Cox say they are fighting for the right to exist, they mean it literally. Members of the trans community experience disproportionately high murder rates and suicide rates. And:
“Transgender people are four times more likely than the general population to report living in extreme poverty, making less than $10,000 per year, a standing that sometimes pushes them to enter the dangerous trade of sex work. Nearly 80% of transgender people report experiencing harassment at school when they were young.”
They also experience higher instances of police brutality and sexual assault. This is a life or death situation for most trans individuals. So yes I am tired, but I am not in danger, so it’s not time to sleep yet.
Good Night and Good Luck
This is my weekly news roundup
-The Department of Homeland Security issues two alarming memos this week on their plans to enforce the GOP’s anti-immigration policies. According to NPR’s analysis of the memos, they “drastically expand the category of people classified as ‘priorities for removal’”. The memos also include guidance for deporting unaccompanied children, and for legally prosecuting parents who pay to have children smuggled into the US. The only bright spot is that, for now, protections for DREAMers remain in place. I also found this piece by Cristina Rodriguez on CNN called “DHS memos build a wall around the US without laying a brick” to be very compelling (though terrifying). According to Rodriguez:
“This approach entails a dramatic expansion of state power: the near-mandatory use of detention at the border, wider use of expedited removal (which results in deportation without meaningful hearing and review), deepened suspicion of unaccompanied minors crossing the border, and a massive build-up of enforcement personnel.”
-If any of you have any interest in the utter insanity that was Trump’s first press conference late last week, I wish you luck, and here are the written and video transcripts from the NY Times. Trump did announce a new Labor Secretary nominee amidst all the crazy ranting and media bashing, Alex Acosta. This guy at the Huffington Post seems to like Acosta, and he is Hispanic, adding some much needed diversity to the cabinet. A pretty blank pick by Trump’s usual standards. I’d also recommend this tongue-in-cheekily titled “Donald Trump’s Press Conference: An Amazing Day in History” piece from CNN for more roasting take of our President’s antics.
-The Standing Rock camp protesting the Dakota Access Pipeline was evacuated by the Army Corps of Engineers Wednesday afternoon. The Water Protectors set fire to the camp as a symbolic gesture. See photos of the last heartbreaking moments before evacuation here.
-Citizens like you and me across the US are innundating their Representatives and Senators with in-person questions at their Town Hall events. Voters seem most concerned about the ACA repeal and Trump’s Russia ties. The House Oversight Committee, headed by everyone’s-favorite-Chaffetz, has already said it will not investigate Michael Flynn, but voters are trying to get them to change their mind, or to get the Senate to investigate.
-SPECIAL ADDITION NOT IN NEWSLETTER: Jewish Community Centers across the US have been facing intense increases in threats of violence over the last several weeks. 170 Jewish graves in a Missouri cemetery were descrated over the weekend. Muslim groups hosted fundraisers and collected over $70,000 to help the Jewish community repair the graves.
The end!! Reply to this newsletter with gifs or hatemail or whatever gets you through the day anytime you want. Bring it on! Check out my Medium page if you’d prefer a blogged version of this newsletter. Follow me on Twitter at @speaknojessica. And definitely, definitely get your friends to subscribe to The ForeRunner at http://tinyletter.com/theforerunner. Every time someone new subscribes a woman somewhere finds a mind at work (lord knows there are so few of them these days).
In solidarity,
JM
Event link round up (local to DC unless otherwise noted):
February 23, 25 and/or 27: Mayor Bowser’s DC Budget Engagement Forums with Jews United for Justice, this is a great hyperlocal action and I plan to be at the one on the 27th
February 23: Affordable Care Act Town Hall, hosted by Eleanor Holmes Norton
February 24: Shabbat Dinner on Community Activism hosted by Trybe DC and Daybreaker, costs $, I will be a speaker at this event
February 25: Active Bystander Training hosted by Friends Meeting of Washington
February 25: February Organizing Meeting on the History of Organizing and Resistance in DC, hosted by UDC
February 26: Teach-In on Immigrant Rights, hosted by Politics and Prose
February 27: Webinar: Support for Immigrant Survivors of Abuse, hosted by jwi, the National Alliance to End Domestic Violence
February 27: Resist and Keep Safe Online, a free webinar on cyber safety, hosted by the Progressive Technology Project
March 1: Our People Were Refugees Too: Jewish Action by the White House, hosted by HIAS
March 2 (Fairfax, VA): Fairfax 101: Government and Politics, hosted by Fairfax Young Democrats
March 2: Q&A: Defending the ACA, hosted by WIN (the Women’s Information Network), RSVP required
March 2 (or 8): The Resistance is Local, hosted by Jews United for Justice, RSVP required. I plan to be at the one on March 2.
Special Event Section for Resistance Recess Events within 30 miles of DC (more are added all the time, so keep checking at this link):
February 23: Coffee with Senator Brown of Ohio, 8:30 am, DC (this is actually a weekly coffee that he holds, so, attend next week’s is this is too late!)
February 23: Town Hall with Representative Eleanor Holmes Norton of DC, 6:00pm, DC
February 23 (Burtonsville, MD): Office Hours with Rep. Sarbanes, MD-03, 11am
February 23 (Crofton, MD): Town Hall with Congressman Brown, MD-04, 6:30pm
February 23 (Manassas, VA): Office Hours with Senator Tim Kaine Staff, 6:30pm
February 23 (Stevensville, MD): Affordable Care Act Public Town Hall, 6pm
February 26 (Silver Spring, MD): Town Hall Meeting with several Maryland Reps, 6:30pm.
