IGF CultureWatch

North Carolina’s legislature voted, with GOP unanimity, to void all local LGBT anti-discrimination measures within the state. As NPR.org reports:

One word dominated the debate over the bill and the Charlotte ordinance before it: “bathroom.” Charlotte already protected residents from discrimination based on race, age, religion and gender. On Feb. 22, the city council voted to expand those protections to apply to sexual orientation and gender identity, too.

The most controversial element of Charlotte’s expanded ordinance was the fact that it would allow trans people to use the bathrooms that correspond with their gender identity.

One-party state supporters will point to this, and a less onerous religious-liberty exemption bill for faith-based groups in Georgia, as indicating why LGBT voters and their allies should only support Republicans. I disagree, as noted in my last post. If there had been at least one, or preferably a few, LGBT-supportive Republicans in the GOP caucus, the outcome might have been different. At least the Republicans couldn’t have so easily painted the issue as a purely partisan one.

The GOP is going to have power—nationally, statewide and locally—from time to time, so the view that it should simply be opposed and not reformed doesn’t move me. And reform means supporting those Republicans who are with us.

One the broader issue, again we see the effective use of fear over transgender people and bathrooms. The left has never understood why the apparent threat to unisex bathrooms, locker rooms and showers has such power, and that’s why we keep losing. The battles for lesbian and gay rights took a few decades of education and engagement; this has not happened around transgender issues, and I include in this failure the farce of sensationalism around Caitlan Jenner. And so transgender rights become the battering ram to obliterate gay rights.

Finally, I think the North Carolina and Georgia bills are radically different. I support faith-based exemptions for religious groups (I’d even go further and support a right of religious dissent for private businesses that don’t want to provide expressive services for same-sex weddings). If LGBT activists weren’t going to the mat to oppose religious exemptions, such a compromise might be able to deter a nuclear option such as the one unleashed in North Carolina.

More. Gov. Nathan Deal vetos the Georgia law, which focused exclusively on religious freedom and was very different from what North Carolina passed, but was treated by the liberal media and LGBT activists as if it were the exact same thing.

I have no issues with the Georgia law per se, although the governor was also correct in noting that the bill’s supporters failed to provide examples in Georgia of the kind of discrimination against faith-based organizations and “certain providers of services” that the bill seeks to protect against (which, unstated, is due to the fact that Georgia lacks an LGBT anti-discrimination law).

Furthermore. As the Washington Post reports, it’s big business lobbying against religious conservatives on these measures. Progressives typically condemn business lobbying as the root of all evil but welcome it in this particular case.

A gay and lesbian wedding expo in Salt Lake City is an example of how businesses are making it known they’re open to doing same-sex weddings, reports the Washington Times:

With a string quartet playing on one side of the exhibit hall and pop music on the other side, gay and lesbian couples chatted with businesses showing off fancy wedding cakes, fun photo booths and elaborate floral arrangements. Karl Jennings and Chris Marrano were looking for a cake baker and photographer for their June wedding. … “We know that whoever is here isn’t going to turn us away because we’re gay,” Jennings said. “It’s very relaxing and makes you want to give people business here. I want support people who want to support us.”

Which is good for same-sex couples, and good for business:

For wedding-related businesses, gay marriages represent a growth market. Gaining a toehold requires spreading the word you’re open to LGBT weddings – and not just doing it for the money, said Annie Munk, who along with her wife Nicole Broberg rents photo booths for weddings.

“Couples need to feel comfortable with the person they’re working with and know that’s not going to be any judgment, or awkwardness or whispering behind the counter,” said Munk, owner of Utah Party Pix.

And that’s how voluntary transactions are supposed to work in a free society. The role of government is not to force small business providers to engage in expressive services that violate their religious faith; it’s to ensure equality under the law, as the U.S. Supreme Court just did when it voted unanimously on Monday to reverse an Alabama court ruling that refused to recognize a lesbian’s adoption that was granted in another state.

The New York Times is being disingenuous in talking about issues involving transgender-identifying high school students in terms of “bathrooms and other facilities” and then barely naming those other facilities so as to focus on restrooms. USA Today is a bit more honest in referencing “bathrooms and locker rooms,” since the issue here—and the impetus behind the discussed state legislation—is more about locker rooms and showers than restrooms, although restroom fears were used effectively in the defeat in Houston of an anti-discrimination provision.

I don’t believe activists are going to win public support for students who are physically male using the girl’s locker room and shower facilities, or who are female using the boy’s facilities. In this case, providing alternative private changing/showering facilities is not “just like segregation,” but a reasonable accommodation. The Obama administration, by threatening schools that want to provide such reasonable accommodations, is making matters worse.

It’s also likely that drawing a line in the sand around locker room use in public (including schools) and private facilities is going to sink future LGBT anti-discrimination efforts, which used to be focused on employment, once upon a time. That, along with the addition of “public accommodations” in a way intended to force small businesses to provide expressive services to same-sex weddings despite religious objections.

But the defeat of future anti-discrimination measures will allow LGBT activists to continue claiming victim status and keep the money rolling in from the faithful, who are told the equivalent of anti-LGBT Jim Crow is just around the corner.

Via the Washington Post, 2016 could be a very difficult year for LGBT activists:

Less than eight months after the Supreme Court legalized same-sex marriage nationwide, LGBT advocates are on the defensive, playing whack-a-mole with a massive number of bills in state legislatures they say are meant to peel back LGBT rights…. Religious exemption and bathroom bills are leading many of those legislatures’ agendas….

Among the litany of horrors listed in this article, which draws on the Washington-based Human Rights Campaign as its primary source: state-level proposed legislation allowing clergyman not to perform same-sex weddings (a right they already have), allowing religious exemptions for small businesses that don’t want to provide services to same-sex weddings, and allowing schools and businesses to maintain shared same-sex restrooms (often with private facilities for those who identify as, but have not transitioned to, the opposite sex).

If these efforts are the nightmare scenario being used by the Human Rights Campaign to drum up support and fundraising, then things look pretty good for LGBT people.

Now, it’s not that some of these proposals aren’t offensive political posturing (while others, I’d argue, simply reaffirm constitutional liberties). But the one area that could truly be rights-denying would be state attempts to allow government officials to refuse to provide marriage licences to same-sex couples. However, that’s not being seriously considered; what we see instead are a few state proposals to allow individual officials to excuse themselves from issuing licences as long as the office itself makes licences available to all couples.

As I’ve noted before, government officials are responsible for following the law of the land, even when doing so is at odds with their own religious beliefs. They are public servants, not private, self-employed service providers. So codifying these opt-outs can be constitutionally dubious, although one might think informal arrangements or reassignments within county and state offices handling these issues might suffice.

More. Not mentioned in the article, which appeared prior to Justice Scalia’s passing, are some GOP presidential contenders (most emphatically Ted Cruz and Marco Rubio) pledges to appoint justices who would roll back the Supreme Court’s historic ruling in favor of marriage equality nationally. In that event, each state would be able to approve or deny the rights of same-sex couples to wed. Legal experts and Court-watchers think overturning Obergefell is highly unlikely—opponents of unrestricted legal abortion nationally have been trying to overturn Roe v. Wade for decades. But it shouldn’t be dismissed as impossible and is a legitimate reason for those supporting equality under the law to oppose such candidates.

Yet even here, “let the states decide” is a noticeable advancement over advocating to amend the Constitution to ban same-sex marriage across the nation.

Via Ilya Shapiro at the libertarian Cato Institute, Let a Thousand Flowers Bloom:

While Cato believes that same-sex couples ought to be able to get marriage licenses (if the state is involved in marriage in the first place), a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.

Arlene’s Flowers, a flower shop in Richland, Washington, declined to provide the floral arrangements for the same-sex wedding of Robert Ingersoll and Curt Freed. Mr. Ingersoll was a long-time customer of Arlene’s Flowers and the shop’s owner Barronelle Stutzman considered him a friend. But when he asked her to use her artistic abilities to beautify his ceremony, Mrs. Stutzman felt that her Christian convictions compelled her to decline. She gently explained why she could not do what he asked, and Mr. Ingersoll seemed to understand.

Later, however, he and his now-husband, and ultimately the state of Washington, sued Mrs. Stutzman for violating the state’s laws prohibiting discrimination in public accommodations. The trial court ruled against Arlene’s Flowers and the case is now on appeal.

Cato has filed an amicus brief supporting Arlene’s Flowers and Mrs. Stutzman, urging Washington’s highest court to reverse the trial court’s decision. Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. ….

[Supreme Court] justices have said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a florist to create a unique piece of art violates that freedom of mind. Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other florists in the same area.

It remains stunning that progressive LGBT activists have decided using the power of the state to force religiously conservative small business owners to provide expressive services to same-sex weddings is where the front line of the LGBT movement should be. They’re mean-spirited, intolerant and smug authoritarians, and proud to be so.

Via Towelroad:

Leading UK gay activist Peter Tatchell has come out in support of a Belfast baker who was found guilty of discrimination for refusing to bake a cake with the slogan “Support Gay Marriage”.

Spot on. A commitment to liberty means liberty for all, no matter how furious it makes progressive authoritarians.

The International Olympic Committee has received new recommendations for guidelines it’s expected to adopt, opening the door for more trans athletes to compete internationally, reports outsports.com. The recommendations address allowing competition by transgender athletes who have had gender reassignment surgery, as well as those who have not yet had surgery, or have chosen not to do so although their gender identity is at odds with their genitalia.

This may not pose much of an issue for competitions in which transmen compete against cisgender men, but it is likely to raise issues for transwomen whose bodies have been developmentally male. Nevertheless, the recommendations state:

To require surgical anatomical changes as a pre-condition to participation is not necessary to preserve fair competition and may be inconsistent with developing legislation and notions of human rights. …

Those who transition from male to female are eligible to compete in the female category under the following conditions:

• The athlete has declared that her gender identity is female. The declaration cannot be changed, for sporting purposes, for a minimum of four years.

• The athlete must demonstrate that her total testosterone level in serum has been below 10 nmol/L for at least 12 months prior to her first competition (with the requirement for any longer period to be based on a confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women’s competition).

• The athlete’s total testosterone level in serum must remain below 10 nmol/L throughout the period of desired eligibility to compete in the female category.

Regardless of testosterone levels, the first time a pre-op transwoman takes a medal competing against cisgender women—think about a younger Caitlyn Jenner in a women’s track and field event—it’s going to get ugly.