Watching A Dream Come True, for REAL!

Shelby Knox

Tuesday on Capitol Hill Congresswoman Barbara Lee and Senator Frank Lautenburg re-introduced the REAL Act, federal legislation that would for the first time in history put federal dollars toward comprehensive sex education.

Tuesday on Capitol Hill Congresswoman Barbara Lee and Senator Frank Lautenburg re-introduced the REAL Act, federal legislation that would for the first time in history put federal dollars toward comprehensive sex education.

I was honored to be at the press conference for the introduction of the
bill; it’s was like watching a dream I’ve had for a long time almost
come true. I have a long history with abstinence-only-until-marriage
programs, starting when I was fifteen in Lubbock, Texas. I’ve now spent
eight years (more than 1/3 of my life!) as an advocate for
comprehensive sex education because I’ve seen my generation lost to
programs that put ideology before our health – and I don’t want it to
happen to the next one.

My school district had a strict abstinence-only-until-marriage policy –
and some of the highest rates of STI’s and unwanted pregnancy in the
nation. Not only did we skip the anatomy portion of biology in
deference to the ab-only policy, our "sex education" didn’t start until
high school – FAR too late to do us much good. During freshman year we
were herded into the auditorium to listen to a lecture from a local
pastor on ‘Love, Sex, and Dating.’

As the culmination of every presentation, the pastor pulled a girl up
onstage, produced a dirty, dingy toothbrush from his pocket and asked
if she would brush her teeth with it. When she invariably said no, he
pulled out another toothbrush, this one in its original box, and
repeated the question. When she said she said yes to that one, he
brandished the rejected toothbrush above his head and announced to the
audience, "If you have sex before marriage, you are the dirty
toothbrush."

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While this sounds extreme (and bizarre), abstinence-only-until-marriage
programs commonly use degrading scare tactics like these, provide
misinformation about condoms and contraceptions, forward
generalizations about sexuality that are based on biases about gender
and sexual orientation, and, as in my high school, contain religious
messaging that violates the U.S. Constitution.

This year is the year to rid our schools of these programs and provide
young people with medically accurate, age-appropriate comprehensive sex
education that will equip them with the tools to make responsible
decisions about sex and relationships throughout their lives. The REAL
Act would do just that – send a letter to your representatives asking them to support the bill. (May I suggest donating your Facebook status to this link and tweeting and re-tweeting it, too?!)

This can be the year of youth – fitting after an election that
mobilized a generation and elected a president that recognizes young
people as assets to society who deserve more than junk science and
ideology. Enough is enough – it’s time for REAL sex education in
America’s schools.

This post was first published at Amplify.

Analysis LGBTQ

A Challenge to North Carolina’s HB 2 Could Mean Greater Protection for Trans People

Imani Gandy

Courts have historically been reluctant to designate transgender people as a discrete group that has suffered discrimination and therefore needs special legal treatment. But that may be changing.

A recent lawsuit filed by two transgender North Carolinians may offer an opportunity for the U.S. Supreme Court to expand the reach of the 14th Amendment’s Equal Protection Clause to include transgender people. In the lawsuit, Carcaño v. McCrory, Joaquín Carcaño and Payton McGarry have challenged the constitutionality of the bathroom provisions of HB 2, North Carolina’s newly passed law that, among other things, prohibits transgender people from using public restroom facilities that align with their gender identity.

The law singles out transgender people and denies them a benefit that cisgender people enjoy—the ability to use public restrooms consistent with their gender identity—and so it seems to be a fairly straightforward violation of the Equal Protection Clause, which prohibits singling out a specific group of people for mistreatment under the law. That said, the Court has not yet weighed in as to where gender identity discrimination fits into the Equal Protection Clause. The speed with which state legislatures are passing bathroom discrimination bills, however, suggests that it won’t be long before the Court is asked to do so. Without constitutional protection, more of these policies targeting transgender people will continue to be implemented throughout the country.

Despite a long history of unjust discrimination against transgender people, lower courts have time and again refused to deem them a protected class because, in their estimation, transgender people—or “transsexuals,” as much of the case law describes them—are not a “discrete and insular minority.”

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Since the Court first articulated the concept in the 1930s, it has developed hallmark characteristics to determine which “discrete and insular minorities”—otherwise known as “suspect classes”require special assistance from courts when it comes to laws that discriminate against them, and how much assistance courts should render. These are groups that have historically been subjected to discrimination, groups that are a small percentage of the population and therefore in danger of tyranny by the majority, and groups with “immutable characteristics,” a term coined by the Court to describe things like race and gender.

Black people, for example, are a suspect class according to Supreme Court jurisprudence. Laws that target them for discrimination will rarely pass constitutional muster because the strict scrutiny standard, which requires that the law be narrowly tailored to promote a “compelling government interest,” is a difficult hurdle to surpass. In other words, if a law singles out Black people for different treatment, the government must have a damn good reason why, and the Court is going to start from the presumption that the government’s reason still isn’t good enough.

Women, on the other hand, are a “quasi-suspect class”: The Court has determined that laws targeting women for unequal treatment may pass constitutional muster, if the laws are substantially related to an “important government interest.”

But when it comes to transgender people, most courts have refused to call them a suspect or quasi-suspect class.

Determining that trans people should be protected by the courts does not require an academic discussion about the immutability of gender identity, however. All it requires is common sense.

The suicide attempt rate for transgender or gender-nonconforming people in the United States is 41 percent, compared to 4.6 percent among the overall population. The unemployment rate in the trans community is double what it is for the country as a whole. Violence against trans people, trans women of color in particular, is staggering, as are poverty levels. Transgender people aren’t adequately represented in government bodies, and due in part to their small numbers, they lack the political power to prevent laws that discriminate against them from being passed.

Just look at the way HB 2 was rushed through the North Carolina legislature: On February 22, the Charlotte City Council approved an ordinance that would amend existing public accommodations policies to include protection from discrimination based on “gender identity,” “gender expression,” and “sexual orientation.” A month later, after a quasi-emergency legislative session, Gov. Pat McCrory (R) was already signing a law stripping away those protections and preventing any other cities from enacting similar ordinances at a cost of approximately $42,000 to North Carolina taxpayers. The law is so apparently unconstitutional that Roy Cooper, North Carolina’s attorney general and Democratic gubernatorial candidate, refuses to defend it, calling it a “national embarrassment.”

This rush to strip LGBTQ people of rights is a case study in the rule of a tyrannical majority over a “discrete and insular minority.” Indeed, it is difficult to think of a group of people more deserving of the “suspect class” label than transgender people.

But for reasons that no court has been able to articulate satisfactorily, laws that discriminate against transgender people—some of the most vulnerable members of our society—have generally not warranted a stricter examination than rational basis review, which rarely results in legislation being struck down.

In 1977, for example, in a case called Holloway v. Arthur Andersen & Co., the Ninth Circuit Court of Appeals reasoned that “transsexuality” did not meet the indicia of a suspect classification because transsexuals are not a “discrete and insular minority” and because the plaintiff in that case did not establish that “transsexuality is an immutable characteristic determined solely by the accident of birth, like race, or national origin.”

Occasionally, lower courts have lumped gender identity in with biological sex, although trans and cis women can face different kinds of oppression. In a 2011 case, Glenn v. Brumbythe 11th Circuit Court of Appeals found that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” The terms “protected class,” “suspect class,” or “quasi-suspect class” are not found anywhere in the opinion.

Because of all that uncertainty, transgender people have often turned to suing under claims of employment discrimination in violation of Title VII, or education-based discrimination in violation of Title IX. And they’ve found success, even as the courts sidestep the protected class issue.

This is because a 1989 Supreme Court case, Price Waterhouse v. Hopkins, recognized a Title VII cause of action for discrimination based on an employee’s failure to conform to stereotypical gender norms. (Title VII and Title IX cases are often analyzed using the same set of legal principles.)

In 2004, in a case called Smith v. City of Salem, the Sixth Circuit Court of Appeals applied the Price Waterhouse theory to “transsexuals”: “[d]iscrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who in sex-stereotypical terms, did not act like a woman.”

However, this tactic is not always successful. In Johnston v. University of Pittsburgh, a transgender man was repeatedly sanctioned for using the men’s bathroom and locker room after being told that he was no longer permitted to use those facilities. He sued the university claiming discrimination under Title IX. The district court rejected his claim in March of last year, stating that the university’s policy refusing a transgender man access to the men’s locker room was based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex. The court went on to note “[t]his justification has been repeatedly upheld by courts.”

As Harper Jean Tobin of the National Center for Transgender Equality and Professor Jennifer L. Levi of Western New England University School of Law pointed out in a 2013 law review article, however, “No court has ever held that there is any legal right to privacy that would be violated simply by permitting a transgender person to access a gender-specific facility that corresponds to his or her gender identity.”

For the past decade, there has been a movement toward recognizing transgender people as a protected class without any court having to actually say the words. This string of successes is partially due to the Obama administration’s federal agencies, which have implemented forward-thinking policies that apply to Title VII and Title IX claims. Without explicit constitutional protection, trans rights are relegated to the whims of the legislative and executive branches. It’s as if courts recognize that transgender people are getting the short end of the equal protection stick, but have yet to follow that recognition to the next logical step.

Until recently.

In November of last year, a judge in New York became the first federal judge to rule that transgender people are a protected class. In Adkins v. City of New York, plaintiff Justin Adkins alleged that he had been treated differently than other Occupy Wall Street protesters who were arrested during a protest on the Brooklyn Bridge in 2011 because he is transgender. Adkins filed suit alleging equal protection violations.
The City of New York moved to dismiss the lawsuit: The City argued that transgender people are not a protected class under a 2009 case, Lopez v. City of New York, which held exactly that. Adkins’ equal protection claims, therefore, should be subject only to rational basis review, making it more likely that the lawsuit would be dismissed.

Adkins countered that the appropriate standard of review is intermediate scrutiny because discrimination against transgender people is a form of gender discrimination or, alternatively, because transgender people are a quasi-suspect class and his claims are subject to intermediate review on that basis.

The court sided with Adkins, but not on the basis—as with previous court rulings—that transgender discrimination is a form of gender discrimination. Instead, the court ruled that transgender people are a quasi-suspect class in light of the Second Circuit Court of Appeals’ decision in Windsor v. United States, the precursor to the national case eventually leading to the downfall of the Defense of Marriage Act (DOMA). In Windsor, the Second Circuit ruled that “homosexual people” were a quasi-suspect class on the basis of four factors: (1) gay people have suffered a history of persecution; (2) sexual orientation has no relation to ability to contribute to society; (3) gay people are a discernible group; and (4) gay people remain politically weakened.

In November of last year, the Department of Education issued a landmark decision for transgender rights in education, holding that an Illinois school district violated anti-discrimination laws when it did not allow a transgender girl student who participated on a girls’ sports team to change and shower in the girls’ locker room, as reported by my colleague Jessica Mason Pieklo.

And just last week, the Fourth Circuit Court of Appeals held that the lawsuit of a transgender high school student named Gavin Grimm challenging his school’s bathroom policy should move forward. The court did so after the Department of Education, under the Obama administration, released guidelines warning that school rules forcing transgender students into segregated bathrooms or bathrooms inconsistent with their gender identity would be considered a violation of Title IX. Because the federal appeals court depended on the agency guidance to make that ruling, Gavin Grimm’s lawsuit is an important step in firmly establishing statutory legal protections for transgender people while waiting for the Supreme Court to determine where they stand under the Equal Protection Clause.

Plenty of school districts across the country have followed the administration’s lead and created guidelines to ensure that transgender students can safely and peacefully use their preferred bathrooms. The federal government has adopted a policy that extends the Department of Education guidance and permits federal workers to access workplace facilities that align with their gender identity as a matter of “dignity and respect,” and to “provide a workplace that is free from discrimination whether that discrimination is based on race, color, religion, sex (including gender identity or pregnancy), national origin, disability, political affiliation, marital status, membership in an employee organization, age, sexual orientation, or other non-merit factors.”

Which brings us back to Carcaño and McGarry’s lawsuit challenging the bathroom provisions in North Carolina’s HB 2. When Windsor made its way to the Supreme Court, the Court, in an opinion authored by Anthony Kennedy, invalidated DOMA without saying whether gay people are a suspect class, and ignored the Second Circuit’s ruling that theyare a quasi-suspect class. Kennedy, as he is wont to do, framed the issue as one of “human dignity.”

It is no surprise, then, that the term “dignity” is peppered throughout Joaquin Carcaño and Payton McGarry’s complaint challenging HB 2 on equal protection grounds. Carcaño and McGarry are asking a district court in North Carolina to declare them members of a protected class entitled to heightened scrutiny. If the district court refuses, they will presumably ask the Fourth Circuit Court of Appeals. If that court also refuses, it will be up to the Supreme Court to explain how discrimination against transgender people as transgender people is no big deal and warrants only rational basis review, but discrimination against transgender people as a form of gender discrimination warrants heightened scrutiny.

In this case, there is another option for protecting LGBTQ people’s rights, though not one that may be useful for future assaults. If the Supreme Court continues to punt on whether LGBTQ people are a protected class or finds that permitting transgender people to use the appropriate restroom and locker room facilities somehow implicates a heretofore undiscovered legal right to privacy, then it is in this context that Anthony Kennedy’s dignity jurisprudence, which was also the linchpin of his majority opinion in Obergefell v. Hodges, will do quite nicely: Where is the dignity in forcing transgender people to use a bathroom that doesn’t align with their gender identity?

There is none.

Commentary Human Rights

12 Ways Young People Organized for Human Rights in 2014

Erin Matson

Contrary to a narrative that young people are apathetic or lazy or too busy texting to care about human rights, in fact young people are at the helm of the movement for justice for all people. I, for one, can't wait to see what they pull off in 2015.

It’s the end of the year, and thus the perfect time to reflect on the ways in which young people in 2014 led the charge for change in the human rights and justice movements.

1. Young people were at the forefront of racial justice activism in 2014. Throughout the history of this country, Black men have been killed at the hands of police officers, often while unarmed, in the name of “safety.” Safety for whom, we don’t know. But what made 2014 different was not the brutality of these murders. Nor was it the unwillingness of grand juries to indict in high-profile cases like the deaths of Michael Brown and Eric Garner at the hands of law enforcement. What made this year different was a grassroots movement, largely led by youth organizers, flooding the streets in Ferguson, conducting die-ins in New York City, shutting down intersections in Washington, D.C., blockading freeways in Oakland, and walking out of classrooms around the country. Young people of color continue to be active leaders and participants in this work to declare that Black lives matter and that police violence must end.

2. Malala Yousafzai became the youngest recipient of a Nobel Peace Prize. Yousafzai, a Pakistani advocate for women and girls and especially access to education, was at age 17 awarded a Nobel Peace Prize for her activism, making her the youngest recipient ever. She began campaigning for education for girls at age 11, and first drew international attention after Taliban fighters shot her in the head. This year Yousafzai traveled to Nigeria, issuing an appeal for increased funding for education after more than 200 girls were abducted from a school by Boko Haram terrorists. Yousafzai’s bravery and moral clarity serve as inspiration to young feminist activists around the world.

3. United We Dream and immigrant youth demanded that the president issue an executive order on immigration. After foot-dragging that extended past the November elections, President Obama made good on a promise to issue an executive order extending relief to undocumented immigrants. The order protects up to five million undocumented residents, and especially the parents of children who have citizenship, as well as the parents of DREAMers brought to the country as children. As with other controversial executive actionsnotably one in which the president refused to extend religious discrimination into an executive order barring employment discrimination on the basis of sexual orientation by federal contractors—Obama was compelled to act because a left flank used direct action to inject clear moral analysis into the debate. Leading that flank was United We Dream, an immigrant youth-led organization that, among other direct actions, led activists to get arrested outside the office of Sen. Harry Reid (D-NV). In July, activists from the group were escorted out of the Netroots Nation conference while interrupting a speech by Vice President Joe Biden with the chant “stop deporting our families”; after a pause, the vice president encouraged the audience to applaud them.

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4. With one mattress, Emma Sulkowicz turned campus sexual assault into a striking piece of performance art. Sulkowicz, a visual arts major at Columbia University, turned her rape on campus into an unavoidable activist conversation with a piece titled “Carry That Weight,” in which she carried a twin-size dorm mattress around campus to draw attention the fact that her rapist, a fellow student, had not been expelled. Her piece inspired a Carry That Weight Day of Action on more than 100 campuses, with thousands of students carrying mattresses to call for reforms to the way colleges address sexual assault.

5. Know Your IX kept leading a grassroots movement to demand accountability on campus sexual assault. There is no one better to organize against oppression and injustice than those most directly affected, and the growing organization Know Your IX—a reference to Title IX, under which educational institutions receiving federal funding must address sexual assault as a civil rights obligation—does just that. The survivor-led and student-driven group, founded last year, remained at the forefront of efforts to inform students who have been sexually assaulted of their rights and demand that the Department of Education improve its enforcement of the law. These efforts played a clear role in a new national dialogue about campus sexual assault and the unveiling of the It’s On Us campaign by the Obama administration in September.

6. Young people participated in and led abortion speak-outs. 2014 continued to be a challenging year for abortion rights in the legislatures; as of December 1, states had enacted 23 new restrictions on abortion access. However, advocates are actively working to create culture change around abortion and break stigma through storytelling. Young people were among the 100 individuals participating in the first-ever live-streamed abortion speak-out hosted by the 1 in 3 Campaign, which is run by Advocates for Youth. Abortion speak-outs also occurred during in-person events on college campuses, including the University of Michigan, the University of Central Michigan, and the University of Central Florida, where hundreds attended.

7. Emily Letts filmed and shared her abortion, demystifying the process. Letts, a counselor at Cherry Hill Women’s Center in New Jersey, filmed her abortion and shared the video online, an act that showed a common medical procedure as it truly is. “I could have taken the pill, but I wanted to do the one that women were most afraid of,” she told Cosmopolitan. “I wanted to show it wasn’t scary—and that there is such a thing as a positive abortion story.” The video has been watched more than a million times.

8. Alex, an 8-year-old-boy, rapped about coming out as transgender to his mom. The confluence of rampant discrimination and inadequate legal protections for transgender people hits youth particularly hard; more than half of transgender youth will attempt suicide by age 20. But in one short viral video released by Camp Aranu’tiq, a camp for transgender youth, an 8-year-old boy named Alex seized a difficult narrative and turned it into a source for hope. His rap details his positive story of coming out as transgender to his mom, and ends with a call that “We all deserve freedom, love, and respect!”

9. Pro-choice students at Catholic-affiliated universities fought back against restrictions on reproductive and sexual rights, and free speech. One of the primary faces of today’s pro-discrimination movement is the religiously affiliated university. Playing a prominent role among those are Catholic-affiliated colleges attempting to hold a line for the archconservative U.S. Conference of Catholic Bishops. In 2014, students and their allies at these institutions fought back. In Indiana, three Notre Dame students using the pseudonyms Jane Doe 1, Jane Doe 2, and Jane Doe 3 joined a brief opposing their university’s lawsuit against the birth control benefit. In the District of Columbia, students from the group H*yas for Choice were removed by campus police twice this year for tabling in peaceful protest of the Vatican’s stance on reproductive rights and LGBTQ rights; these efforts have led the group to grow in popularity and size.

10. A Florida youth council fought for access to comprehensive sexual education, and won. The Broward County Youth Council, a leadership group of ten high school, college, and graduate students, fought long and hard to have the Broward County school board adopt comprehensive sexual education standards, and that fight culminated in 2014 with a big win. Students in the county will now receive medically accurate, LGBTQ-inclusive sexual education. As local student Keyanna Suarez told CBS Miami after the vote, “There’s not gonna be a taboo about anything. Everyone’s gonna be able to open up, ask questions, and get the info they need to make these decisions because some parents aren’t giving them the education at home.” Broward County is the sixth largest public school system in the country.

11. Colorado high school students walked out of class to protest a proposal to downplay the role of protest in U.S. history. In September, hundreds of high school students in the Denver area walked out of their classrooms in protest of a proposal to focus history curricula on topics that promote respect for authority. “I don’t think my education should be censored,” Tori Leu, a student who protested at Ralston Valley High School told the Guardian. “We should be able to know what happened in our past.” One month later, the Jefferson County School Board passed a compromise proposal that essentially overruled the proposed change.

12. The Harry Potter Alliance tackled income inequality with creativity. The alliance, which engages Harry Potter fans, used the recent success of The Hunger Games to engage young people in income inequality activism. The Odds in Our Favor campaign uses the #MyHungerGames hashtag to encourage people to share their personal stories about class-based injustice. The organization has also compiled pictures of youth using the story’s three-finger salute to protest income inequality.

Baker’s dozen bonus: Rewire continued to foster and share the voices of young people on the important issues of sexual and reproductive rights, health, and justice. As a proud servant leader of the Rewire young writers program, I would be remiss not to mention the commitment of this publication to young people. It was on full display in 2014.

In July, Associate Editor Regina Mahone traveled to Detroit to attend the Youth Sexuality Media Forum; you can read her resulting report on how the media can better cover youth sexuality here. President and Editor in Chief Jodi Jacobson spoke to 19 young reproductive rights activists from around the world at a Youth Champions Initiative in Palo Alto, and Senior Legal Analyst Imani Gandy and Investigative Fellow Zoe Greenberg attended in-person as well; you can read Imani and Zoe’s fantastic conversation with four of the youth champions here.

The participants in our young writers program receive mentoring, intensive coaching, and editorial support beyond the bounds of what traditional freelance writers receive, and publish pieces on Rewire at a competitive rate. What follows is just a small sample of what those participants published this year. Emily Spangler, a high school student in Illinois, wrote about how other young women can get involved in politics; Marcus Lee, a student at Morehouse College, discussed ways men can embrace a culture of consent; Erin McKelle, a student at Ohio University, took a look at the consequences of young people not voting; Lizzie Fierro, a high school student in Texas, spelled out how we can combat sexism in science, technology, engineering, and mathematics (STEM) subjects; and Briana Dixon, a student at Spelman College, took a nuanced look at the news of a couple who sued a sperm bank after mistakenly receiving a Black sperm donor. (Insert group hug!)

Contrary to a narrative that young people are apathetic or lazy or too busy texting to care about human rights, in fact young people are at the helm of the movement for justice for all people. I, for one, can’t wait to see what they pull off in 2015.