Court: Title VII Prohibits Discrimination Against Transgender People, Not Gays and Lesbians

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?


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.

Warring over Teens and the “T”

Miriam Ben-Shalom, a lesbian Army Reserve veteran who was the first person the Pentagon reinstated for being discharged under “Don’t Ask, Don’t Tell,” sharply criticized those who encourage trans children and adolescents to transition before they are adults, the Washington Blade recently reported.

“As a teacher I care about my students and I believe it’s abuse,” said Ben-Shalom. “In this culture you cannot vote until you’re 18. You can’t drink until you’re 21. You can’t have a credit card of your very own that you applied for until you’re after 18 years of age. How the hell is it that you’re going to allow kids in kindergarten and 11-year-olds take all kinds of chemicals?”

There’s some merit in this, as studies show that some children who identify as transgender stop doing so once through puberty, when they may start to see themselves as gay young men or lesbian young women instead (as referenced in an earlier post).

Somewhat more problematically, the story continues:

“I don’t care if a biological male wants to wear a dress and put on a wig and put on make up,” she said. “That’s his choice and as long as whatever he does doesn’t hurt another human being and whatever else he does is with a consenting adult human being, I don’t have a problem with it. I don’t care.”

“I do have a problem with their insisting that they’re something that they are not,” added Ben-Shalom.

The Blade notes that organizers of the Milwaukee Pride Parade last year invited Ben-Shalom to serve as their grand marshal. They rescinded the invitation after they discovered “anti-trans” comments that she had posted to her Facebook page (Ben-Shalom denies she is transphobic).

In Texas, controversy is swirling around high school wrestler Mack Beggs, born female but who identifies as male and is taking testosterone that has increased his muscle bulk. Under Texas policy, he must compete in women’s wrestling, where’s he’s winning handily, and some say posing a physical threat to the girls he’s going up against (performance-enhancing drugs don’t bar one from Texas high school competition if they have been prescribed by a physician). According to press reports:

In an interview with ESPN this weekend, the 17-year-old junior discussed being forced to wrestle girls when he would rather wrestle boys, how it felt to win a state title, and what he thought of those who felt he shouldn’t be allowed to compete in high school sports at all. The prep governing body, the University Interscholastic League, passed a rule in 2016 that uses a student’s birth certificate to determine student athlete participation in sports.

“It’s not like I’m doing this because I want to, like, call myself a boy and just dominate all these girls,” Beggs told ESPN. “What do I get out of that? I don’t get anything out of that. I was put in this position. Change the laws and then watch me wrestle boys.”

This week, Beggs won the girls regional championship after a female opponent forfeited the match.

Virginia high school student Gavin Grimm, born female but who now identifies as male, is suing to use the boys restroom and locker room. The school district offered him a private restroom and changing area, which he rejected. The Supreme Court has remanded the case to be reheard by a lower court after President Trump rescinded Obama’s order that students nationwide be able to use public school facilities based on how they gender identify.

I can’t find the cite, but I recall reading about another high school transgender teen boy, born female, who was requesting to use the boys restroom, except that he was more comfortable using the girls restroom when he was menstruating.

The left’s response, to let anyone use any restroom and locker room based on how they self-identify, isn’t going to work. The right’s response, to limit intimate facilities to birth certificate gender, isn’t going to work. This is a social issue that will have to be played out over time and through the courts. While I hope reasonableness prevails, the history of the culture wars doesn’t particularly lead to optimism.

If You’re Pro-Gay but Offend Progressives, You’re ‘Anti-Gay’

An ugly and violent protest at Middlebury College in Vermont kept scholar and author Charles Murray from addressing students and put him in danger—students tried to overturn his car as he left, and they physically assaulted the professor who had agreed to serve as the event moderator, pulling her hair and twisting her neck; she emerged from a hospital emergency room wearing a neck brace.

Murray had come to discuss his ground-breaking book about class in America, Coming Apart (reviewed here by the New York Times), which contends that the white working class is, literally, falling apart while the wealthy elites profit mightily. He draws a distinction between residents of what he calls “Fishtown,” who are down and out of work, and those of “Belmont,” who are getting richer.

You might think this would be an interesting topic to discuss and question him about given recent political developments that caught the left off-guard, but the students decided otherwise, shouting Murray down as a “white nationalist.” This was apparently triggered by Murray’s 1994 study The Bell Curve, in which he argued, as the New York Times review above puts it, that “that those with high I.Q.’s have replaced the old WASP elite in a modern economy that rewards brains over bloodlines.” And yes, he presented data on I.Q. distribution by factors including race. The findings and their accuracy were not at issue (although the objectivity of the I.Q. test itself has been debated). Following the angry response that The Bell Curve received from the left, in Coming Apart Murray looked only at the white working class and elites.

(Last year, Murray responded to distortions being spread about The Bell Curve by those who’ve never read it.)

Here’s why I’m blogging this. As noted in a roundup of press reports by the Unz Review:

Several groups in the audience stood as Murray began to speak. They turned their backs and spoke over him. Single voices merged into a call and response that included “Who is the enemy? White supremacy,” and “Charles Murray go away. Racist. Sexist. Anti-gay.”

Here’s the deal: Murray has been an advocate of marriage equality within conservative circles, even making the case for recognizing same-sex marriage at CPAC, as the New Yorker reported.

Whatever anyone might think of Murray’s arguments on I.Q. and economic success in modern America, he is certainly not “anti-gay.” The Middlebury students, ignorant as they are, just assumed he was.

Also, I liked the Unz Review commenter who noted: “The children of Belmont don’t want to hear about the woes of Fishtown.” Indeed.

More. In response to those alleging that the students seeking to prevent Murray from speaking were possibly small in number or outside agitators, in the comments below Josh remarks that “none of the students are reported to have responded by shouting back ‘let him speak,’ did they.”

Also, prior to his speaking, “More than 600 Middlebury College students and faculty have signed a letter to President Laurie Patton condemning the invitation of Charles Murray to speak at the college….”

Furthermore. From Murray’s own account of the event, which clarifies that he had been invited to speak by a small group of conservative students:

About a week before the event, plans for protests began to emerge, encouraged by several faculty members. Their logic was that since I am a racist, a white supremacist, a white nationalist, a pseudoscientist whose work has been discredited, a sexist, a eugenicist, and (this is a new one) anti-gay, I did not deserve a platform for my hate speech, and hence it was appropriate to keep me from speaking. …

Some were just having a snarky good time as college undergrads have been known to do, dancing in the aisle to the rhythm of the chants. But many looked like they had come straight out of casting for a film of brownshirt rallies. In some cases, I can only describe their eyes as crazed and their expressions as snarls. Melodramatic, I know. But that’s what they looked like. …

I didn’t see it happen, but someone grabbed Allison’s hair just as someone else shoved her from another direction, damaging muscles, tendons, and fascia in her neck. I was stumbling because of the shoving. If it hadn’t been for Allison and Bill keeping hold of me and the security guards pulling people off me, I would have been pushed to the ground. That much is sure. What would have happened after that I don’t know, but I do recall thinking that being on the ground was a really bad idea, and I should try really hard to avoid that. …

The pressure to refrain from suspending and expelling large numbers of students will be intense. Parents will bombard the administration with explanations of why their little darlings are special people whose hearts were in the right place. Faculty and media on the left will urge that no one inside the lecture hall be penalized because shouting down awful people like me is morally appropriate.

A progressive education.

Finally, Prof. Stanger’s account of the attack.

Ok, one more addendum. Andrew Sullivan writes:

They then expel the heretic in a unified chant: “Hey hey, ho ho! Charles Murray has got to go.” Then: “Racist, Sexist, Anti-gay. Charles Murray, Go away!”

Murray’s old work on IQ demonstrates no meaningful difference between men and women, and Murray has long supported marriage equality. He passionately opposes eugenics. He’s a libertarian. But none of that matters. Intersectionality, remember? If you’re deemed a sinner on one count, you are a sinner on them all. …

The final climactic chant is “Shut it down! Shut it down!” It feels like something out of The Crucible. Most of the students have never read a word of Murray’s — and many professors who supported the shutdown admitted as much. But the intersectional zeal is so great he must be banished — even to the point of physical violence.

Along similar lines:

Better Times for Gay Youth?

An interesting story on a study that finds young gay males are growing up in a world with far greater acceptance, increasingly making their sexual orientation a non-issue (yes, there are always exceptions, but this is a major cultural change).

Ritch Savin-Williams, professor emeritus in developmental psychology at Cornell University, interviewed 206 millennial men for his book Becoming Who I Am: Young Men on Being Gay, published last year. From the Cornell Daily Sun:

“There are few differences between gay and straight youth other than their sexual and romantic histories,” Savin-Williams insisted. “They are just as close to their parents, they have just as many friends, they have the same kinds of relationships in terms of closeness … you cannot distinguish between gay and straight.”

Savin-Williams further stated that, while his findings paint a far more positive picture of the lives of young gay men than other scientific studies, homosexuality is not the life-defining issue some think of it as.

“Most of these young people believe that their sexuality will make no difference in their lives, in terms of their future, their income, their jobs, or whatever. They just assume that their culture is going to evolve to the point where sexual orientation is a non-issue,” he said.

Much attention is now being focused on the struggles of transgender high school kids, perhaps because gay kids are doing so much better nowadays.

This was also interesting:

Savin-Williams found that young gay men feel more accepted by their families and peers and lead much happier lives today than studies may suggest. …

He specifically mentioned a government-funded CDC study which portrays gay youth as characteristically having depression, anxiety and highly suicidal tendencies, results which Savin-Williams disputed as highly inaccurate. Savin-Williams attributed these inaccuracies to the fact that the CDC’s study of “gay youth” included women who identified as bisexual for reasons other than their sexuality.

When I was young and moved in activists circles in NYC, I met more than a few “lesbian activists” who identified as lesbian, they admitted, as a feminist statement while dating both men and women, and some who only dated men (but kept that quiet).

More. Subsequently I came across this piece at at HuffPo by Michael Hobbes, on why despite so much social progress gay men—those who came of age post-AIDS and on the cusp of marriage equality—are unhappier than straight men. He writes:

Like me, Jeremy did not grow up bullied by his peers or rejected by his family. He can’t remember ever being called a faggot. … Still, even as we celebrate the scale and speed of [social] change, the rates of depression, loneliness and substance abuse in the gay community remain stuck in the same place they’ve been for decades.

Hobbes points to the lingering stress of discovering that your sexuality makes you different during adolescence, and its PTSD-like lingering effects:

The term researchers use to explain this phenomenon is “minority stress.” In its most direct form, it’s pretty simple: Being a member of a marginalized group requires extra effort. … All of us were deeply confused or lying to ourselves for a good chunk of our adolescence.

The young men he profiles seem to be leading pretty vacuous lives around drugs, lots of hookups and constant partying, with no mention of any spiritual grounding.

Nor even much interiority. As the author’s friend Jeremy tells him:

“The drugs were a combination of boredom and loneliness,” he says. “I used to come home from work exhausted on a Friday night and it’s like, ‘Now what?’ So I would dial out to get some meth delivered and check the Internet to see if there were any parties happening. It was either that or watch a movie by myself.”

Here’s a thought: Maybe the drugs and compulsive hookups/partying aren’t symptoms of “minority stress” leading to depression and dysfunction, but the root cause.

March On?

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.

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.

Milo (Yawn)

I haven’t commented on the uproar over Milos Yiannopoulos because he and the circus around him bore me.

He has his defenders—”Milo is indisputably the most effective conservative on campus battling the anti-American identity-obsessed, racist Left,” writes David Horowitz. But Yiannopoulos has always been a provocateur who muddied the good fight against politically correct attacks on free speech (both formal and mob-driven) on college campuses and elsewhere with his own bigotries. Whatever good—and there was some—that came from an openly gay man becoming a major figure respected within the Breitbart crowd was undercut by his playing footsie with the alt right (a loose movement whose size and power are mendaciously exaggerated by the left, but which does exist).

His downfall over previous comments seeming to make light of pedophilia, including his own abuse by a priest, have now resulted in his leaving Breitbart News and being disinvited from the upcoming Conservative Political Action Conference (CPAC), where he was to be a keynote speaker, all of which is to the delight of the alt-left.

Perhaps the circus has now left town.

More. CPAC is minus Milo, but the Log Cabin Republicans, once excluded, again have a booth.

The Transgender Order Deserves Its Fate

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).

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.”

Breaking Ranks

D.C.’s MetroWeekly interviews Anthony “Rek” LeCounte, a young, black, gay Republican. Excerpt:

“There’s a saying in politics that ‘personnel is policy,’” he says. “A lot of these nonpartisan [LGBT rights] groups are staffed by aggressively left-wing progressive folks who, even if their organization say, ‘We believe X, Y, and Z,’ have their own biases which then affect their decisions. If an LGBT candidate is pro-life, or supports gun rights, or holds a bunch of other conservative positions that run deeply counter to what the progressive movement is doing, a lot of these groups don’t want to be associated with those kind of candidates. So they’ll either endorse against or they’ll just pretend the candidate doesn’t exist.”


Perfect Enemies, Redux

A New York Times article asks Are Liberals Helping Trump? by declaring, “Agree with us 100% or you are morally bankrupt.”

Well, yes.

Times national correspondent Sabrina Tavernise writes:

Liberals may feel energized by a surge in political activism, and a unified stance against a president they see as irresponsible and even dangerous. But that momentum is provoking an equal and opposite reaction on the right. In recent interviews, conservative voters said they felt assaulted by what they said was a kind of moral Bolshevism — the belief that the liberal vision for the country was the only right one. Disagreeing meant being publicly shamed. …

Mrs. O’Connell is a registered Democrat. She voted for Bill Clinton twice. But she has drifted away from the party over what she said was a move from its middle-class economic roots toward identity politics. …

“The Democratic Party has changed so much that I don’t even recognize it anymore,” she said. “These people are destroying our democracy. They are scarier to me than these Islamic terrorists. I feel absolutely disgusted with them and their antics. It strengthens people’s resolve in wanting to support President Trump. It really does.”

I believe “identity politics” should not be construed here to mean support for equal rights for minorities, as progressives would claim, but rather what they have delivered in practice, which Daphne Patai characterized as the proliferation of oppressed identities so that “the game is openly played in hiring and even in the exercise of free speech—who is entitled to teach, to speak, to pose challenges, and who had better shut up if lacking the requisite identity.”

Along similar lines, The student Left’s culture of intolerance is creating a new generation of conservatives. But I’d quibble with the author, Charlie Peters, and suggest that it’s not so much that the student left has abandoned support for free speech as that they never really favored it to begin with, at least for their ideological opponents. The 1960’s campus Free Speech Movement was about allowing leftwing organizing. Once the left became dominant in university administrations and hegemonic on faculties, there was no longer any need for the ruse.

Gender Is a Construct, Except When It Isn’t

Daphne Patai writes, provocatively, Why Can’t a Woman Be More Like a Trans? It’s well worth reading. An excerpt:

Today, for all the academic talk of “diversity”—written into all levels and aspects of American universities, with growing numbers of administrators and officers designated to oversee it—a new and rigid orthodoxy is upon us. …

But in the happy world of American academe, categories of sexual and gender identity just grow and grow, and acronyms along with them. Today we have not only the labels, but courses and administrators devoted to LGBTQIA (the A, for asexual, is merely the latest accretion).

In recent years, the proliferation of identities has gotten completely out of control and the game is openly played in hiring and even in the exercise of free speech–who is entitled to teach, to speak, to pose challenges, and who had better shut up if lacking the requisite identity.