IGF CultureWatch

.@POTUS: "We will never, ever stand for religious discrimination." pic.twitter.com/QCaaaLQ5bN

— FOX Business (@FoxBusiness) May 4, 2017

The executive order is significantly reduced in scope from earlier drafts promoted by the Heritage Foundation and other social conservatives. In its final form, it:
1. Declares that it is the policy of the administration to protect and vigorously promote religious liberty;
2. Directs the IRS to exercise maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit (and which mostly goes unenforced, especially against black churches supporting Democratic candidates);
3. Provides regulatory relief for religious objectors to Obamacare’s preventive services mandate, a position supported by the Supreme Court decision in Hobby Lobby.

The ACLU is threatening to sue. Update: No, now they’re not.

Rallying outside the White House against @realDonaldTrump's #LicenseToDiscriminate. When you attack one of us you will hear from all of us! pic.twitter.com/61QhwMNLRj

— Chad Griffin (@ChadHGriffin) May 3, 2017

Social conservatives, rightly, see a defeat—Trump (and Ivanka/Jared) are not, and have never been, on the anti-gay bandwagon.

President Trump's executive order disappoints religious conservatives, @jonward11 writes https://t.co/Gt20IxUL43 pic.twitter.com/J0Wn0VmDZ1

— Yahoo News (@YahooNews) May 4, 2017

But the Human Rights campaign isn’t changing its narrative:

An attack on one of us, is an attack on all of us. Learn more about @realDonaldTrump’s newest executive order here: https://t.co/OvW7OlP79F

— HumanRightsCampaign (@HRC) May 6, 2017

Furthermore. From the comments: To the charge “Isn’t it more accurate to say that [the Johnson Amendment] mostly goes unenforced against ‘any’ churches? There has been exactly one (1) prosecution of a church under the Johnson Amendment in the 63 years it’s been around. Why single out black churches in particular?,” reader Jason replies:

Short of actual prosecution is the threat of prosecution. White evangelical churches have been warned, from time to time, about supporting socially conservative politicians and “crossing the line” from the pulpit, and liberal groups have threatened to make this an issue. But Stephen is correct; African-American churches sermonizing to vote for Democrats are under much less pressure, owing to the history of the civil rights movement. To raise the issue (and some on the right do) is to invite the charge of racism. So black churches feel much less constrained than do white churches.

Washington Blade columnist Mark Lee comments on Facebook that “people are starting to ask on social media if the event will actually happen or if they should cancel their travel plans and reservations.”

As the Blade reports:

The National LGBTQIA+ “Equality March for Unity and Pride” in DC takes place in only 7 weeks – but there’s been little preparation or organizing for the event. No permits yet, no route finalized, no website launched, no details disclosed, and no money raised to cover the major expenses for an event of this type.

Yes, it will happen. Yes, it will be a mess. And yes, it will amount to little and lead to nothing.

But hey, the co-chairs are diverse, complete with a listing of their preferred pronouns including “They, Them, Theirs,” “They/Them She/Hers,” and “She, Her, Hers, Trans Goddess.”

More. When it’s finally announced, expect that platform to embrace the full bag of left-progressive political demands. On the LGBTQIA+ front, expect calls to roll back the extremely limited protections for small businesses under the Religious Freedom Restoration Act by passing the Human Rights Campaign-backed Equality Act, and demands that the federal government mandate what are essentially gender-neutral restrooms and changing facilities.

Some activists might even say having ‘genital preferences’ in dating is transphobic, at which point sexual orientation itself may become a thought crime.

Via the Washington Blade, a look at the chances of Republicans moving an LGBT anti-discrimination bill.

Will GOP deliver LGBT workplace protections? https://t.co/EqTn0oaC4B

— Washington Blade (@WashBlade) April 7, 2017

I agree that Donald Trump might sign a reasonable workplace anti-discrimination bill, and I had forgotten that House Speaker Paul Ryan was a co-sponsor of the Employee Non-Discrimination Act (ENDA), which the Democrats failed to move forward when during the first two years of the Obama presidency they controlled the White House and had supermajorities in Congress.

But I don’t think a Log Cabin-backed measure will go anywhere in the current political climate. For one thing, the establishment (i.e., Democratic) LGBT lobbies won’t support a bill that’s limited to employment discrimination and which includes reasonable religious exemptions. Without the support of the Human Rights Campaign, no Democrats will be on board.

The column’s author, Malcolm Lazin, executive director of the Equality Forum and LGBT History Month, says he would back such as measure. But he’s nevertheless dismissive of efforts to balance the competing rights of employment nondiscrimination and religious freedom, as if the latter was nothing but a right-wing ploy—a popular assertion by secular progressive who assign no value to constitutional protections against being forced by the state to violate deeply held religious convictions because, after all, only our rights matter.

The U.S. 7th Circuit Court of Appeals in Chicago ruled that anti-gay workplace bias is unlawful under Title VII of the Civil Rights Act of 1964, reversing an earlier decision from a three-judge panel. As the Washington Blade reports, in a 8-3 decision the court found “discrimination based on sexual orientation constitutes discrimination based on one’s perception of gender stereotypes, which the U.S. Supreme Court has determined is unlawful under Title VII.”

Bulletin | In first, fed'l appeals court rules anti-gay workplace unlawful under current civil rights law https://t.co/hStxaD6I9d @WashBlade

— Chris Johnson (@chrisjohnson82) April 4, 2017

As I blogged last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled 2-1 that Title VII of the Civil Rights Act, which prohibits workplace discrimination based on a variety of factors including sex, doesn’t protect against workplace discrimination based on sexual orientation.

Unless the full 11th Circuit Court follows the 7th Circuit’s lead and reverses last month’s panel ruling, it Looks like this will be headed to the U.S. Supreme Court, where Justice Kennedy may again be the swing vote.

As I said before, Title VII has already been stretched so far beyond its original intent, to say it can be stretched no further seems arbitrary.

More. An interesting observation from The Volokh Conspiracy site:

The interesting opinion here is not the majority…. It’s Judge Flaum’s. He makes a novel and extremely clever argument (at least to me) to explain why discrimination against homosexuals is sex discrimination using mixed motive theory.

Title VII prohibits me from firing someone for a mix of good and bad reasons (“mixed motives”). So if I fire you because you’re a woman who is bad at your job, but don’t fire men who are equally bad at their jobs, I have violated the law–even though part of the reason for the firing is that you are bad at your job, a lawful (indeed, laudable) reason to fire someone.

Flaum’s innovative observation is to point out that firing someone for homosexuality means that I am firing them based upon TWO facts, not one: the person is 1. a woman who 2. is attracted to women. (Or 1. a man who 2. is attracted to men.) Voila– whether fact number 2 is a prohibited characteristic or not under the law is irrelevant, because firing someone based on fact number 1 is most definitely illegal, and firing someone for a mix of legal and illegal motives is also illegal.

Flaum’s a conservative’s conservative. When he is going out of his way to explain to conservatives the obvious errors of the “sexual-orientation-isn’t-sex” line of argument, it’s time to pack it in.

Walter Olson writes:

The new compromise is being met with peals of outrage from some of the predictable ultras on both sides. But it looks to me like a more careful attempt to respect the legitimate rights of both sides than we’ve seen in this controversy up to now.

"North Carolina Bids To Close the Door On Its Bathroom Wars" — my explanation and defense of #HB142 https://t.co/RXlzpxAOgS

— Walter Olson (@walterolson) March 30, 2017

One problem with ordinances that require restrooms and locker rooms to be open to all regardless of gender, in an effort to end discrimination against transgender men and women, is that you get situations like this: Large Burly Man’ Lurking in Disney Ladies’ Room Should Make Everyone Stop and Think:

If this had been 5 years ago, you bet your ass every woman in there would’ve been like, “Ummm what are you doing in here?”, but in 2017? The mood has shifted. We had been culturally bullied into silenced. Women were mid-changing their baby’s diapers on the changing tables and I could see them shifting to block his view. But they remained silent. I stayed silent. We all did. Every woman who exited a stall and immediately zeroed right in on him…said nothing. And why? B/c I and I’m sure all the others were scared of that “what if”. What if I say something and he says he “identifies as a woman” and then I come off as the intolerant asshole at the happiest place on earth? So we all stood there, shifting in our uncomfortableness…trading looks. I saw two women leave the line with their children. Still nothing was said. An older lady said to me out loud, “What is he doing in here?” I’m ashamed to admit I silently shrugged and mouthed, “I don’t know.” She immediately walked out, from a bathroom she had every right to use without fear.

Gay fashion guru Carson Kressley, formerly of TV’s “Queer Eye for the Straight Guy,” was asked by Washington, D.C.’s Metro Weekly about designers who have publicly refused to dress the First Lady Melania Trump in protest against her husband. Kressley’s response:

“Designers are artists and many of them have very strong political views. That’s the beauty of our country. If you don’t want to work with somebody, you don’t have to. I think it’s well within their rights to say no. I don’t think it’s disrespectful. It’s just a personal choice.”

Hmmm. If only LGBT progressives would recognize that same right for photographers, bakers and other creative types.

The New York Post reports that Guy wearing Trump hat sues bar for refusing to serve him. I don’t think the bar did the right thing as a matter of fairness and civility, but I also think suing for service is a bad idea.

The Post further reports that:

A manager said he spoke to the bar owner, and was told, “Anyone who supports Trump or believes what you believe is not welcome here. And you need to leave right now because we won’t serve you!,” according to the suit.

I’d argue this is murkier than cases where business owners are operating out of religious belief and not political pique, but I still think the Trump supporter shouldn’t go running to the state to punish the bar owner.

Yet how many on the left who think the bar did the right thing, or at least had the right to do so, also believe that government should force caterers and wedding planners to provide their services to same-sex weddings?

Earlier this week, AP reported that “in a setback for gay rights advocates hoping for an expansion of workplace discrimination protections,” a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled 2-1 that Title VII of the Civil Rights Act, which prohibits workplace discrimination based on a variety of factors including sex, doesn’t protect against workplace discrimination based on sexual orientation.

In 2011, the 11th Circuit ruled that discrimination against a transgender employee did amount to unlawful sex discrimination under Title VII because the individual faced discrimination based on her behavior not conforming to gender stereotypes. In its new ruling, the court clarified that discrimination against an individual who is undergoing a gender transition is based on behavior while discrimination against an employer for being gay or lesbian is based on “status.”

The 11th Circuit ruling follows a decision in which a three-judge panel of the 7th Circuit in Chicago last July upheld a lower court’s dismissal of a similar case trying to extend Title VII to include sexual orientation.

LGBT rights groups had hoped these rulings would go their way and “would mark a significant step forward for gay rights,” the AP reported. And indeed, if the courts had extended Title VII to include sexual orientation it would have avoided the need to pass federal legislation like the overly broad Equality Act, which seeks to amend Title VII to prohibit discrimination based on sexual orientation and gender identity while decreeing that existing Title VII exemptions based on religious belief may not be used as a defense in suits charging anti-LGBT discrimination.

“Sex discrimination” under Title VII was clearly meant to apply to discrimination based on physical sex, so it seems to makes some sense that it could apply to transgender men and women facing discrimination but not to gay men and lesbians. There is only so far you can stretch an existing statute to try to make it do something it was never meant to do (although that doesn’t stop progressives from trying). However, it does mean that transgender people have far more legal protections under federal law than do gay, lesbian and bisexual people.

We were told we couldn’t pass the Employee Non-Discrimination Act (ENDA) with only sexual orientation (which had the votes in Congress) and not gender identity (which did not), and so ENDA fell by the wayside. The Equality Act is a fundraising ploy that has no chance of passing in a Republican congress, and would face opposition from some African-American legislators who don’t want to meddle with the Civil Rights Act if the Democrats again take power.

But I don’t see transgender activists saying they won’t accept their court-provided protections under Title VII because they also don’t extend to LGB folks.

More. From the comments, “Will” writes:

Seems to me if you face discrimination because you’re a man who has sex with men (or desires to), and being sexual with a man is something that is stereotypically female behavior, then why wouldn’t that be discrimination against a gay man for “behavior not conforming to gender stereotypes” as prohibited under Title VII?

And

Once the courts expanded Title VII to include “gender nonstereotypical behavior”—which was quite a stretch of the statute, and arguably without foundation—I don’t know how they can find that Title VII protections cover trans people but not gays/lesbians.

On reflection, those do seem like good points. Having stretched Title VII so far beyond its original intent, to then say it can be stretched no further seems arbitrary.

LGBT activists have called for another National Pride March in Washington, D.C., this time to protest all things Trump. But alas, so far it “is following the same racially problematic script as the Women’s March” to protest all things Trump, writes Anika Simpson, an associate professor at Morgan State University, as well as coordinator of MSU’s Women’s and Gender Studies program and co-chair of the National Black Justice Coalition’s HBCU LGBTQ-Equality Initiative Advisory Council.

“Unfortunately, it’s a familiar script: white organizers plan an event on behalf of an entire community and then invite input from people of color after key decisions have been made,” said Simpson, in a Washington Blade column titled Pride march must include people of color in key roles.

“The damage of this marginalization [to the Women’s March] was not overcome when the dynamic trio of feminists of color joined as National Co-Chairs,” opines she who will not be placated by efforts too little, too late. “As a queer black feminist displaced within mainstream feminist and LGBTQIA movements, I will lend my suggestions to the chorus of QPOC advocating for equity within the proposed march.”

(LGBTQIA is lesbian gay bisexual transgender queer intersex and asexual, although it’s not spelled out by Simpson, as anyone who doesn’t know should apparently check their privilege; QPOC is queer people of color.)

Simpson concludes along these lines:

Decentering whiteness is the first step toward rectifying our alienation. Our shared belonging within the LGBTQIA community is not a singularly unifying factor. We are not immune from the racism and xenophobia that runs rampant in this country. From our vantage point, the mainstream queer community offers no safe haven to the racially marginalized. This is a pivotal moment for non-QPOC to check their white privilege and commence the hard work of addressing their positionality within white supremacy.

But, as might have been suspected:

One cannot guarantee that this necessary shift will compel QPOC en masse to participate in the march. Centuries of institutional racism cannot be redressed in a few months of planning, or even by a few hours of hand holding on the National Mall.

Pride march must include people of color in key roles https://t.co/DpY2SFW7u7

— Washington Blade (@WashBlade) February 26, 2017

Here are my thoughts from a January 2000 post that looked at similar planning battles over the then-upcoming 2000 Millennial March on Washington (MMOW), in a piece I titled An Uninspiring March on Washington:

…in spring 1998, the Ad Hoc Committee for An Open Process was formed. The network of anti-MMOW grassroots activists charged that the organizers of the march were top-down authoritarians who blithely ignored the supposedly “democratic” organizing principles that had buttressed previous gay marches in the nation’s capital. “The way the Millennium March was conceived, articulated, promoted and put out there has really been an insult and a slap in the face to our own history as an l/g/b/t movement,” said Leslie Cagan, a long-time New York City-based lesbian activist and member of the Ad Hoc Committee. Of course, others pointed out that what the Committee seemed angriest about was that its cadre of long-time activists, many on the political far left, hadn’t been in control of the process this time round.

That’s not to say that those activists who did wind up in control of the board of directors for the MMOW have done any kind of a rational job. In fact, they quickly caved into the radical critics and jettisoned the Faith and Family theme. And, as with previous marches, they have taken the admirable goal of racial diversity to an extreme, resorting to race- and gender-based quotas that border on the absurd—a requirement that their governing board be at least 50 percent people of color, regardless of who actually shows up willing to do the work. Is it churlish to note that all non-white minorities together are well under half the U.S. population (which is still 73 percent non-Hispanic white)?

I continued:

Before concluding, let’s look back at the previous March on Washington for gay rights in 1993, which the Ad Hoc Committee has been holding up as a model of democratic organization. In fact, march organizers had mandated 50-percent minority quotas [and gender equity] on state organizing committees. Again, if anything less than representation reflecting actual demographics constitutes discrimination (as affirmative action advocates maintain), then gay white men were discriminated against by their own rights march.

Moreover, the ’93 event had come under fire for extraordinary poor execution: Due to a complicated march route thousands spent the day waiting to step off the green, and many had still not done so at the end of the day as the rally on the Mall across town was ending. Writing in the liberal “New Republic” magazine, Jacob Weisberg noted that the ’93 march “was appallingly organized, failed to coordinate even a single time for a photo-op on the Mall and had as its most memorable quote a lesbian comedian’s remark that Hillary Clinton was ‘at last a first lady I could fuck.'”

The PC quotient at the ’93 event, broadcast live on C-SPAN, was taken to bizarre extremes. The march platform made opposition to welfare reform one of its key planks. Not one speaker who wasn’t squarely on the gay left was allowed to address the rally, and the scarcity of gay white male speakers at the all-day event (you could count them on one hand, literally) didn’t go unnoticed by the crowd.

In the world of progressive LGBT activism, nothing ever changes.

The rollback of the Obama’ administration’s nationwide decree that public school bathrooms and locker rooms must be available to students based on their gender identity has, predictably, caused an uproar among LGBT and other progressives (“a blind and cruel attack on young children,” said the Human Rights Campaign’s Chad Griffin).

The public school transgender directive is revoked. https://t.co/2cwZ9GR0ON

— IGF CultureWatch (@IndeGayForum) February 23, 2017

But the over-reaching, over-bearing, probably unlawful order, blocked by a court from taking effect in part because it was issued without going through the standard proposal and public comment process for federal regulation—which would have highlighted its dubious interpretation of Title IX—was always about igniting the base and stoking culture-war polarization, to the hoped-for electoral advantage of the Democrats versus the hateful bigots (i.e., Republicans).

The Cato Institute’s David Boaz writes:

Devolving power from Washington to states and local communities can also help to ease conflicts ranging from gun rights and school locker rooms to environmental protection. While Education Secretary Betsy DeVos may have stated the problem awkwardly, it’s true that the people of Manhattan and Montana have different attitudes and experiences regarding guns. Maybe they should be able to set different rules. In 2016 the Department of Justice and the Department of Education issued “guidance” to the 13,500 school districts across the United States on how they should manage access to locker rooms and bathrooms in 99,000 public schools. Instead of a rule issued by faceless bureaucrats in Washington, why not let the people of the 50 states and thousands of communities talk through that issue and come to their own evolving answers?

DeVos herself released a statement that said, in part:

This is an issue best solved at the state and local level. Schools, communities, and families can find – and in many cases have found – solutions that protect all students. …

I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.

As others have pointed out, while the left likes to focus on bathrooms, where people don’t publicly undress, the real issue is locker rooms, where nudity is part of the terrain. An anatomical male body on a transwomen who hasn’t surgically transitioned (or, more to the point, a transgirl in a public school girls locker room), and transmen/transboys in the opposite situation, is the issue. Offering the accommodations of a gender-neutral individual restroom, or changing in a private space (and, if necessary, a private shower) is not equivalent to the racial bigotry implied by the phrase “separate but equal.” In these circumstances, it’s often the reasonable option.

And sorry, but declaring that we should all—teenagers included—”get over” our unease with anatomically discordant nudity in public facilities (because, bigotry) is not a winning argument. As instapundit Glenn Reynolds likes to say, “If you want more Trump, this is how you get more Trump.”