Welcome to Interesting If True, the podcast that’s interesting, if not always accurate, where I’m FINALLY available to take a turn telling tantalizing tales and I promise not to lie to you, unlike the others who would if they thought it’s funny…
I’m your host this week, Big Gay Jim, and with me are (introduce each host and their blurb)
I’m Steve and I’m good enough, I’m smart enough and gosh darn it, people … well, don’t really like me that much, but I’m fine with that.
I’m Aaron, and this week I learned that forging your birth certificate is a great way to look and feel 10 years younger… on paper.
I’m Jim, and this week I’m reminded of something I learned long ago: gay pride was not born of a need to celebrate being gay, but our right to exist without persecution. Instead of wondering why there isn’t a straight pride month or movement, be thankful you don’t need one.
In honor of Pride Month, I’d like to tell you a very recent tantalizing tale and `introduce you to three people I’ve never met.
Gerald Bostock was a child welfare services coordinator assigned to the Juvenile Court of Clayton County, Ga. He had worked there for a decade, where he directed an award-winning program that assigned volunteer advocates to neglected and abused children in the juvenile justice system. He had received good performance reviews. Gerald was also gay. He hadn’t been closeted at work, but in January 2013 he joined the Hotlanta Softball League, a gay-focused league in the Atlanta area. In June of that year, he was fired for “conduct unbecoming” a county official; the county said he had mismanaged funds, which he says is totally untrue.
Next, meet Aimee Stephens. She had worked six years as a funeral director for R.G. & G.R. Harris Funeral Homes in suburban Detroit. But she was struggling with the feeling she was living two lives: one as a man at work, one as a woman at home, and in other venues outside her workplace. It had become so stressful for Stephens that In November 2012, she was standing in her backyard pointing a gun at her chest. But she chose life and decided to come out to her employer. She was fired two weeks after handing her coming-out letter to her supervisor. They justified their actions saying that allowing Stephens to present as female at work would violate the corporate dress code and the owner’s belief that gender is God-given, fixed at birth, and immutable.
Next is Donald Zarda. He was a skydiving instructor for Altitude Express, a skydiving company in New York until he was dismissed in 2010, just days after telling a client he was gay. The company claimed he was fired for inappropriately touching a female client, not for being gay.
What do these three people have in common? They decided to fight back, and just made history, but I’ll let Supreme Court Justice Neil Gorsuch tell you more. You see, most everything we’re about to discuss comes directly from this week’s SCOTUS decision.
172 pages in the decision
- 37 pages of the majority opinion – 6-3 decision written by GORSUCH! (Trump appointee),
- Lots of footnotes and cross-references in the dissents
- Much discussion about language, the meaning of the words like “sex” in 1964 when Title VII was passed
- 54 pages of fury from Alito, 53 pages of appendices
o 11 pages of dictionary definitions
o 16 pages listing statutes that prohibit discrimination on sex
o 15 pages of forms with questions about sex/orientation/etc.
- 27-page dissent from Kavanaugh, who rambles about “literal meaning” vs. ordinary meaning
- The majority opinion is simple, elegant, and straightforward.
The Ruling in a Nutshell
- Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”
- The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause.
- “In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender.
- Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.
- It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.
- And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is.
Poetry in the Majority opinion
- Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
- Previous case: “Title VII’s message is “simple but momentous: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
- Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.
- Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
- How many people in 1964 could have expected that the law would turn out to protect male employees? Let alone to protect them from harassment by other male employees? As we acknowledged at the time, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” Yet the Court did not hesitate to recognize that Title VII’s plain terms forbade it.
- Imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done.
- The employers assert that “no one” in 1964 or for some time after would have anticipated today’s result. But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.
- Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group.
- [Discussion of slippery slope] What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
- Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.
The ruling applies only to employment, not the many other aspects of life where people encounter discrimination — housing, public accommodations, federally funded programs, and more.
- During the course of the proceedings in these long-running disputes, both Mr. Zarda and Ms. Stephens have passed away. But their estates continue to press their causes for the benefit of their heirs.
Zarda died in a base-jumping accident in 2014. His partner and sister have continued the legal fight. “My brother Don was my rock, my everything,” his sister said in an ACLU press release Monday. “I stood in the Supreme Court to honor his memory and to continue the fight for fairness. What happened to Don was wrong. People in our country already knew this, and now there is no question.”
Aimee died of kidney failure on May 12 at her home in the Detroit metro area, with her wife, Donna Stephens, at her side. Donna Stephens, who had been supportive throughout Aimee’s transition, released a statement through the ACLU: “My wife, Aimee, was my soulmate. We were married for 20 years. For the last seven years of Aimee’s life, she rose as a leader who fought against discrimination against transgender people, starting when she was fired for coming out as a woman, despite her recent promotion at the time. I am grateful for this victory to honor the legacy of Aimee, and to ensure people are treated fairly regardless of their sexual orientation or gender identity.”
Barstock is now working as a mental health counselor and said he’s overjoyed, but this means he’s “headed back to court.” His win will force the courts to accept his discrimination case, so he’s not done. But he and his lawyers are optimistic about their evidence and their chances.
Enter anything unique to this week’s show here.
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Continuing the #Happy Pride theme this week I’m bringing patrons some local news and a bit of an overview of why it matters.
Obviously this segment can’t be exhaustive and as a cis/het white guy I’m far from the best representative, but I’ll do my best.
First, we have to discuss Birth Certificates.
Birth certificates are actually a new-ish kind of thing. In 1632 that Virginia’s General Assembly asked that ministers keep records of births, marriages, and deaths. Few did. In 1639 Massachusetts passed a law requiring the same of towns but again, no one really bothered. After an increase in immigration, the idea of birth records was more seriously introduced in 1900 and the first certificate was issued in 1902.
The increase in immigration didn’t sit well with the Karens of the time. Progressive Reformers, mostly affluent women, set out to tackle the “immigrant problem.” They felt the first steps were to count and map people, you know, basic stats and pressured the U.S. Bureau of the Census to begin census…ing.
Among early advocates of the system was Walter A. Plecker, Virginia’s register of vital stats, eugenics proponent, segregationist, and author of “A Standard Certificate of Birth”, published in 1914, advocated birth certificates as records of a “baby’s birthdate, age, sex, ‘legitimacy,’ and race” and should be written simply enough to be understood by “the infantile intellects of our host of grannies, who hold in their dirt-laden hands the lives of thousands of mothers and infants.” It was designed in large part as a tool to systematically war against African and Native Americans. Plecker used it to architect the notorious Racial Integrity Act of 1924 that banned interracial marriage. Because the certificates only listed two options for race, “white” and “colored,” and marriage was defined as to be among one’s own race, Birth Certificates were an effective way, to quote his horrible racist ass, protect “integrity of the master race.”
During and after WW2 birth certificates were used as a means of proving citizenship during the hiring process, especially around the industries of avionics and really anything at all to do with the war effort. With some 200,000 American births going unrecorded annually, as time passed, the many found they couldn’t get or hold jobs. Adopted children would need a second certificate upon adoption but the process for sealing the time-of-birth Birth Certificate hadn’t been implemented yet. Moreover, it wasn’t until 1946 that certificates were federally tracked, making them easy to forge or, in the case of a person who died in another state, rip for the identity-theft picking.
Not long after nationalization, they became required to prove eligibility for things like Social Security, Medicaid, and public programs like WIC (offering food and nutrition to women, mothers, and young children), all hurdles that might make a Progressive-Era reformer proud.
In 1967 the U.S. Supreme Court held, in Loving v. Virginia, that the Racial Integrity Act’s restrictions on marriage were “measures designed to maintain White Supremacy” thereby violating the Fourteenth Amendment’s equal protection clause.
A handy factoid when you see people holding signs about members of the LGBTQ+ community rights today. Nearly all the arguments against marriage equality and trans rights are, often not even reworded, arguments from the Racial Integrity Act’s supporters.
Which brings us up to today…ish.
Plecker, who I have to make a concentrated effort not to call “pecker” both because it sounds close and because he was, would have been proud of our system’s dependency on Birth Certificates and how that dependence has been easily weaponized against the LGBTQI+ community.
For example, when a baby is born to hetero parents both are listed on the Birth Certificate. It wasn’t until 2017 when SCOTUS, in an unsigned opinion, said that same-sex marriage rights extended to having both parents listed on the Birth Certificate instead of the surrogate. Many states proposed this as a matter of “biological parentage” conveniently forgetting that sperm donors don’t need to be listed in the same way.
Recently, infamously, bathroom bills were introduced in a number of states, including Wyoming, but most famously North Carolina. The bills proposed using gender, listed as sex, recorded at the time of birth as the passport to pee-pee town.
The effects of these bills are horrific, causing real and lasting damage. And where you get to take a dump is only the tip of the iceberg. The list of legal rights a correctly written Birth Certificate can give, take away, or leave in flux is too long to list on this show. As of 2017, the Transgender Law Center lists four states—Idaho, Kansas, Ohio, and Tennessee—as barring transgender persons from changing their gender on a birth certificate.
The arguments made against being able to change a birth certificate are often rehashing of the arguments made those many years ago by overt racists. Most notably that the information recorded is medically relevant. This of course ignores that babies born now are issued certificates of live birth that list biological information, leaving the Birth Certificate to be updated as a person transitions.
With all of that said, we’re finally to the good news.
More states than not are introducing ways to change a birth certificate’s indicators of gender. Many with easy to understand and complete forms. And, as of this week, Wyoming is among them. The Wyoming Supreme Court on Wednesday unanimously ruled that a previously standing district court was wrong to deny the petition of an individual known as “M.H.” to have their gender recognized on their birth certificate.
M.H.’s certificate identifies them as male, but M.H. identifies as female.
M.H. first petitioned the Department of Health but it said she would need a court order to have it changed. The Laramie County District court (for those not in the area, Laramie county is not the county Laramie the city is in) however said that the Wyoming constitution didn’t grant them authority to make such changes. So M.H. took the case to the supremes.
To summarize, while the Department of Health and the lower court did have jurisdiction over name changes on Birth Certificates, that pesky gender field wasn’t specifically mentioned in the list of things they could change. The Supreme court basically said “look, y’all have permission to change the fields, and just because the old law doesn’t list all the current fields doesn’t make them untouchable, you just don’t want to deal with this, so suck it up and help people”
What can I say, I’m no Andrew Torrez.
While the judgment did include some problematic opinions about sex vs. gender, overall, this is a win.
Hopefully, with this announcement the National Center for Transgender Equality will upgrade Wyoming from a B+ to the A range.
Transition to outro…
I’m Jim, and I’d like to thank all our listeners, supporters, and my co-hosts.
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Music for this episode was created by Wayne Jones and was used with permission.
The opinions, views, and nonsense expressed in this show are those of the hosts only and do not represent any other people, organizations, or lifeforms. All rights reserved, Interesting If True 2020.