If there was any doubt that the fight to eliminate access to safe abortion care is really becoming a competition between a handful of states, it has just been dispelled by Americans United For Life. In fact, they are quite proud to be assisting in the race however they can.
In a new article in NewsMax about the red state fight to end abortion, Dan McConchie of AUL boasts, “We actually have states competing with each other to be the most protective in the country. No state has yet done all that’s possible to do.”
The spread of the model legislation proposed by the group once it has been successful in one state is no coincidence, McConchie told NewsMax, saying that they “We try to mainstream new ideas quickly.”
So if there were a competition for “most protective” (ie: restrictive) state in 2013, who are the early leaders? Last year Louisiana won the title, but this year it looks like the race may be tight between North Dakota, Alabama, and Arkansas based on early legislation focused on abortion bans, TRAP bills and insurance coverage bans alone. Which one takes home the big prize may all depend on which ones eventually get signed into law by their governors.
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In what promises to be one of the most closely watched legal showdowns of the year, North Carolina and the U.S. Department of Justice (DOJ) filed dueling lawsuits against one another on Monday, each asking a federal court to determine the legality of the anti-trans bathroom discrimination provisions in the state’s recently enacted HB 2.
HB 2 is the grossly discriminatory law that overturns local anti-discrimination laws, bans cities or counties from setting a minimum wage for private employers, and mandates that access to restroom facilities in schools and publicly owned buildings be restricted to the gender on a person’s birth certificate.And even with the relative lack of legal precedent relating to trans people’s civil rights, if history is any indication, North Carolina very well may find itself on the losing end of this fight.
During a Monday press conference, U.S. Attorney General Loretta Lynch announced that the DOJ would be filing a lawsuit seeking a permanent injunction to block the bathroom discrimination provision of HB 2 and accused North Carolina of creating “state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security—a right taken for granted by most of us.”
Speaking directly to the transgender community, Lynch said, “[N]o matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”
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The DOJ had previously given North Carolina Gov. Pat McCrory (R) the opportunity to avoid the expense and hassle of defending a lawsuit against the United States. Principal Deputy Assistant Vanita Gupta gave McCrory an ultimatum in a letter last week: Confirm that the state of North Carolina would not“comply with or implement” HB 2, or risk a civil rights lawsuit and a curtailment of the nearly $861 million in federal funds North Carolina receives annually. Gupta gave the state until this last Monday to think about it and to notify employees that, consistent with federal law, they are permitted access to bathrooms and other facilities that align with their gender identity.
McCrory responded by filing an utterly pointless lawsuit. North Carolina could have easily saved itself thecost of filing, told the DOJ that it would move ahead with HB 2, and just waited to be slapped with a lawsuit. The cases are going to be consolidated anyway. But wasting taxpayer dollars in the persistent effort to oppress marginalized people seems to be a favorite tactic among states with nothing better to do.
Instead of confirming that he would stop the campaign against trans people, McCrory sued the Obama administration in federal court in North Carolina for its “radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered [sic] state employees.”
Title VII prohibits sex-based employment discrimination, among a number of other protections. According to the tortured analysis in McCrory’s complaint, the DOJ is “ignoring the bodily privacy” of state employees, particularly women and girls who, as a result of bathroom equality, could be vulnerable to assault by any sexual predator claiming to be a woman in order to gain easier access to their prey, despite the fact that there is not a single reported incident of a trans person assaulting anyone in a bathroom.
McCrory’s complaint cites a handful of cases out of the Seventh, Eighth, and Tenth Circuit Courts of Appeal, all of which stand forthe proposition that Title VII doesn’t protect transgender people as transgender people per se, and that it doesn’t protect people with “sexual identity disorders.”And besides, McCrory argues, even if transgender employees are covered by Title VII, the statute doesn’t prohibit employers from balancing special circumstances they pose with “the right to bodily privacy held by non-transgender employees in the workplace.”
Even setting aside McCrory’s problematic intimation that transgender employees don’t have the same “right to bodily privacy” that cisgender employees do, McCrory’s complaint misses the point.
The issue is not discrimination against transgender people for being transgender people, but rather, as the DOJ pointed out in its letter to Gov. McCrory, the issue is that discrimination against transgender people is discrimination based upon sex, and discrimination based on sex is a violation of Title VII.
Citing the landmark decision Price Waterhouse v. Hopkins, in which the Supreme Court made it clear that discrimination on the basis of “sex” includes differential treatment based on any “sex-based consideration,” the DOJ noted that federal courts and administrative agencies have applied Title VII to discrimination against transgender individuals based on sex, including gender identity.
In Hopkins, plaintiff Ann Hopkins said she had been denied a promotion at work because she was “too macho.” Her employer told her that she should wear makeup, style her hair, and act more feminine. Six members of the Supreme Court agreed that such comments were indicative of gender discrimination, and held that Title VII barred discrimination because of biological sex, but also barred gender stereotyping—discrimination based on someone failing to act and appear according to expectations defined by gender.
It makes sense that the same principle would apply to transgender people. Ann Hopkins was treated differently at work because she expressed her gender in a manner that did not conform to arbitrary societal standards. Similarly, transgender people who are prohibited from using the bathroom that conforms to their identity are being treated differently than cisgender people, because transgender people, as far as some of the courts are concerned, are not expressing their gender in a manner that parts of society deem suitable.
As the 11th Circuit noted in the 2011 case Glenn v. Brumby, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.”
If cisgender people can use facilities for people who share the biological gender with which they identify, then it is discriminatory to deny transgender people that same personal dignity. Full stop.
McCrory doesn’t seem to understand this and is stuck on the notion of “biological sex”: In his complaint, he protests that “North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status.”
One can imagine making the same argument with respect to, say, racially segregated bathrooms: “All state employees are required to use the bathroom and changing facilities assigned to persons of their same race.”
And one hopes McCrory would agree that such an argument would fall flat on its face.
Ultimately, the fight between the United States and North Carolina is about more than just bathrooms. It’s also about conservative panic about the seeming cultural lawlessness of the Obama administration.
Conservative commentators are caterwauling that the Obama administration is rewriting Title VII and its sister act, Title IX of the United States Education Amendments of 1972—which prohibits discrimination in schools—to advance a transgender agenda. They complain that transgender people are not a protected class under Title VII or Title IX, and that extending the anti-discrimination protections found in those statutes to transgender people requires Congress’ stamp of approval.
Notably, McCrory’s complaint is silent on Title IX, presumably because the Fourth Circuit (which is where North Carolina sits) announced last month that it would defer to the Obama administration’s Title IX guidelines, which require schools that receive public funding to permit transgender students to use bathrooms consistent with their gender identity. The Obama administration reaffirmed this guidance in a letter to public schools on Friday.
The primary complaint of McCrory and his cronies is that the Obama administration is redefining “sex,” and that the new definition far exceeds anything that Congress could have contemplated when it enacted the twin statutes in 1964 and 1972. McCrory’s complaint about the “radical reinterpretation” of Title VII underscores that point.
But that’s not necessarily true. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for interpreting and enforcing Title VII under the Obama administration, isn’t redefining “sex” for purposes of the prohibition against sex discrimination in Title VII. Not really. Rather, the EEOC has given the term some context in light of Hopkinsand similar cases, in which courts have recognized that sex discrimination includes gender stereotyping.
And the EEOC is well within its right to do so. In 1997’s Auer v. Robbins, the U.S. Supreme Court ruled that federal agencies are entitled to interpret their own regulations as they see fit, as long as their interpretation isn’t erroneous and doesn’t conflict with the plain language of the statute or regulation.
Assuming the North Carolina federalcourt follows the Auer rule, McCrory won’t have a legal leg to stand on.
McCrory will likely argue that Congress did not intend the term “sex” to mean anything other than “biological male” or “biological female.” But certainly the EEOC’s more expansive interpretation—that sex includes gender identity—is not contradicted by Title VII or by congressional intent. Indeed, the legislative history regarding Title VII is rather sparse because the prohibition against sex discrimination was a last-minute addition to its protections.
Title VII initially was conceived to prohibit racial discrimination in the workplace. Rep. Howard Smith (D-VA) introduced an amendment to add sex discrimination protections to Title VII a mere two days before the House of Representatives was scheduled to vote on it. Smith, who was a vocal opponent of civil rights for Black people, was considered a staunch supporter of women’s rights. (How he felt about Black women—or whether he even knew that they existed—is anyone’s guess.) So any discussion of congressional intent with respect to sex discrimination and Title VII is going to be short-lived.
An argument could certainly be made that Congress was not contemplating that “sex” would mean anything other than “male or female” and that it didn’t intend sex discrimination to encompass gender identity when it passed the statute, but if there’s nothing in the legislative history, then who can tell?
Besides, as a wise man once said, “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
That’s Justice Antonin Scalia writing the majority opinion in Oncale v. Sundowner Offshore Services, a case involving male-on-male sexual harassment. Scalia noted that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.”
Almost assuredly, neither was transgender bathroom access, but that doesn’t mean denying transgender people the dignity of using a bathroom aligned with their gender identity is not a “principal evil” prime for redress under Title VII.
After all, if it’s good enough for Scalia, it should be good enough for Gov. McCrory.
We need more justices with deeper roots in different communities and a broader worldview than white male candidates from Yale or Harvard, ones who are not devoted to the inevitable blind spots of a group of men who lived more than 200 years ago.
To fill the vacancy left on the Supreme Court by the death last weekend of Associate Justice Antonin Scalia, President Obama will nominate a new justice. That nominee should be a woman of color.
The thought that Obama will pick another justice has sent the GOP into a tizzy. Senate Majority Leader Mitch McConnell (R-KY) and others in the party are ignoring history and the Constitution to argue vehementlythat Obama doesn’t have the authority to nominate anyone because it’s an election year. Instead, they say, that nomination should be left to the next president, a claim Obama has rightly swatted away.
This fight is, in reality, reflective of broad conservative efforts to hold onto a power structure set up two centuries ago by white males who didn’t just ignore, but had no concept of the rights of women or people of color. We need judges with broader perspectives, ones that are not unthinkingly devoted to a concept of America or of rights written by men who, no matter how otherwise brilliant, were not considering “all the people” when they wrote the Constitution.
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The battle over this nomination is part of a longer-running struggle between the GOP and Obama. In January, long before Scalia died, the GOP-controlled Senate, egged on by the Heritage Institute, declared a blockade of sorts—a Senate work stoppage if you will—on confirmations of Obama’s judicial nominees. Under McConnell’s rein, the approval rate of federal judges has been slower than any period since 1969.
This political jockeying is also rooted in two long-running and intertwined debates about how the Constitution should be viewed and who gets to interpret it.
On one hand are the proponents of so-called originalism, the argument that the Constitution is a fixed document subject only to the most literal interpretation. On the other are those who see it as a living document,through which American jurisprudence, concerned as it must be with issues not previously foreseen and the rights of those not previously recognized, is built and sustained by the values on which the Constitution was based.
This is a false dichotomy that, I believe, hides a deeper struggle being waged by a white male establishment aligned with the wealthy and with corporate interests that, despite their collective power, are nonetheless threatened by rapidly changing demographics and a resurgence of collective organizing by progressive movements.
Originalists—often synonymous with conservatives—claim they want judges who won’t “legislate” from the bench. But all judges interpret the law; it’s what judges do. They have one job, and they inevitably bring with them their views of the law, its interpretation, and what came before it. What conservatives really want are judges who will decide cases favoring an outcome aligned with their own interpretation of a given issue, especially with regard to elevating corporate personhood, delegitimizing female personhood, and allowing restrictions on voting rights.
In fact, conservatives’ most revered hero, Justice Scalia, was among the most activist of activist justices. As Adam Cohen, a lawyer and former assistant editorial page editor of the New York Times,wrote in 2005:
The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution’s plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.
Justices are not immune to bias either. We’ve already seen the most self-proclaimed “originalists” make up their own facts and use their own lenses through which to see and interpret the law. Scalia famously—but erroneously and shockingly—claimed that Black college students “couldn’t make it” in competitive universities. This was not based on fact, data, or personal experience; nor on an understanding of race, poverty, and the educational system. He likely arrived at his assertion through an amalgam of conservative talking points, internal bias, and intellectual laziness about the realities faced by people outside his circles and ideologies.
Similarly, Justice Anthony Kennedy either decided on his own, or is so taken with the mythology of the far right, that he wrote an opinion in a reproductive rights case proclaiming that most women have regrets about abortion, a statement that is not only right out of the anti-choice movement’s playbook, but has been widely refuted by scientific evidence.
So even while decrying “bias” and “empathy,” the right knows—and, indeed, depends on the fact—that judges’ thinking can be influenced by ideology and unproven claims. Otherwise, there would not be a years-long effort underway to influence Kennedy’s thinking on abortion leading up to cases like Whole Woman’s Health v. Hellerstedt.
The GOP is disgruntled not so much about literalists versus activists, but that a president they’ve worked for eight years to discredit gets to nominate another justice—one who is more likely than not to be someone the president feels will interpret the law fairly and with real people in mind. That’s why McConnell is holding up all the other appointments as well.
And that is the second part of the struggle underway: representation on the Court, and whether there is value, as Obama has asserted, in a judiciary that “looks like America.” Obama, and others, have argued that empathy and real-world experience are important qualifications in a judge, and that the courts should play a role as a “bastion of equality and justice for [all] U.S. citizens.” And while this administration waited far too long to begin nominating judges, to date, those nominated and confirmed have indeed made the judiciary look more “like America” than ever before.
In a 2014 New Yorker article, Jeffrey Toobin wrote:
Obama’s judicial nominees look different from their predecessors. In an interview in the Oval Office, the President told me, “I think there are some particular groups that historically have been underrepresented—like Latinos and Asian-Americans—that represent a larger and larger portion of the population. And so for them to be able to see folks in robes that look like them is going to be important. When I came into office, I think there was one openly gay judge who had been appointed. We’ve appointed ten.”
Toobin further noted that 42 percent of Obama’s judgeships have gone to women, compared with 22 percent of George W. Bush’s judges and 29 percent of Bill Clinton’s. Thirty-six percent of President Obama’s judges have been people of color, compared with 18 percent for Bush and 24 percent for Clinton.
This, I believe, is what the right most fears: Judges who represent a greater diversity of experiences and views, and who have roots in different communities, will interpret laws with a greater understanding of their effects on real people. And that would threaten the very foundation of the house that white men built, upon which the claims of originalism appear to be based.
History provides a sense of what is at stake. Well over 200 years ago, from May through September 1787, an esteemed group of men meeting in Philadelphia collaborated on writing the Constitution of the United States. The majority of the 55 men attending the Constitutional Convention became signatories to the document, and the thinking and writing of many others contributed to its development, some of whom, like George Washington and Thomas Jefferson, are considered the Founding Fathers of this country.
Two years later, the U.S. Congress passed the Judiciary Act of 1789, thereby fulfilling Article III of the Constitution, which placed the judicial power of the new federal government in “one supreme Court, and in such inferior Courts” as Congress deemed necessary. The first Supreme Court was composed of six justices, a number later expanded to nine justices to accommodate a growing federal judicial system.
Apart from their shared role in history and the fact they were men, the signatories to the Constitution also had other things in common: They were all white Protestants.
From the beginning, the Judiciary Act and the judiciary that resulted did indeed reflect a certain America: the one seen by the men in power. In laying out the roles and responsibilities of justices of the courts, the word “he” appears 23 times. This is no accident. The U.S. Constitution was written by white Protestant men for white Protestant men, albeit whilerecognizing the religious freedom of other white men.
These documents were written at a time when white men were still killing and taking over the lands of Native Americans, and when slavery was the foundation of the U.S. economy. At least some Founding Fathers were slave owners, and the notion of basic human rights for Black people or other persons of color simply did not exist.
Women were not counted as people either, at least not in any political sense. As wealthy white men wrote declarations and constitutions, their wives were meant to bear and raise the children of, run households for, and support any and all needs of their husbands and fathers. They could not vote, rarely owned property, and were dependent on men for status and income.
By and large, and until recently, this type of “originalism”—white Christian male as the normative standard—has remained largely unchallenged. The vast majority of justices have been white Christian males, predominantly Protestant with a few Catholics sprinkled in. As the slideshow below makes clear, that did not change even slightly for well over 100 years.
The first Catholic justice, Roger B. Taney, was appointed in 1836. It took until 1916 before the Court had its first Jewish justice, Louis Brandeis, another 50 years to nominate Thurgood Marshall, the first Black Supreme Court justice, in 1967, and 14 more years from that to nominate Sandra Day O’Connor, the first female justice. The second Black justice, Clarence Thomas, was not nominated until 1991.
Today, nearly 51 percent of the U.S. population is female, a majority demographic. And the non-Hispanic white population, as traditionally defined by the U.S. Census Bureau, is an increasingly small share of the population. With the death of Justice Antonin Scalia, the Court is now comprised of four white men and one Black man, all of whom range in age from their early 60s to late 70s, and three women justices, two of whom are also white. Only four justices in 112 have been women.
The Supreme Court has therefore never been representative of the broader population of the country. In general, it has continued to represent the “original America” as seen by its authors—which, again, was itself never a true picture of the United States.
Given this history, it’s also fairly clear why there is a huge chasm between constitutional originalists and those who view the Constitution as a living document, one with consistent values that nonetheless have to be applied to new and different norms and questions. If you are a man or a person of wealth whose needs, rights, and economic interests fit comfortably under that original interpretation of law, you don’t need to reflect on the meanings or implications for other people of your judgments and decisions.
If, on the other hand, you recognize that there are historical injustices that were never even seen as injustices, and therefore never contemplated at the time of the writing of the Constitution, you probably believe some interpretation is necessary. If you thought a woman’s role was to bear children and be a homemaker, you didn’t need to protect or interpret her rights in a constitution. The freedoms, needs, aspirations, and rights of non-white, non-male persons simply were not considerations in that original document. Securing the rights of women and people of color, among other groups, therefore requires interpreting the values that underlie the Constitution to support them.
To be sure, there are some people of color who themselves are aligned with ultra-conservatives and the claims of originalism except when it doesn’t suit their purposes. One of them is Supreme Court Justice Clarence Thomas. But as Michael Eric Dyson noted on NPR’s Morning Edition:
[W]e have, for instance, on the court now Judge Clarence Thomas, an African-American man to be sure but not committed to the fundamental practices as they have been historically adjudicated and put forth by civil rights communities and other African-American people. So the first qualification is a profound legal commitment to practices of justice. But certainly, that does make a difference in terms of the identity of the person who’s being chosen for that spot.
The current composition of the Court is unacceptable if only based on sheer demographics and the fact that there are many eminently qualified candidates of color for the bench. But it is especially so given the reality that every single decision under consideration by the Supreme Court now, in the recent past, and in the near future has disproportionate implications for women and people of color.
Profound questions are being asked. For example: Who can vote, under what conditions, and facing what kinds of obstacles placed in their way by those who’d rather stifle their voices and de-legitimize their votes? What is “religious freedom” and how freely should this ill-defined and vague notion be used as a means of denying people health care and the rights of women as persons?
Do the people whose bodies contain reproductive organs have a fundamental right to self-determination or are their bodies simply vessels for the production of other bodies even when against their will? Who gets to decide the meaning of “undue burden” in exercising a right, whether that means accessing reproductive health care or exercising the right to vote? (And in all honesty, what would Justice Kennedy know about undue burdens in any case?)
What exactly is “discrimination,” and how hard do you have to work for how many years to prove it? Whogets paid for what, when, and under what conditions? Do government agencies charged with protecting our health and the environment on which we all depend have the authority to actually protect our health and environment? Is reproductive health care actually health care? Is a corporation (or soon a robot?) a person with rights equal to or superseding those who are living, breathing individuals?
This is the real fight. We need more justices with deeper roots in different communities and a broader worldview than white male candidates from Yale or Harvard, ones who are not devoted to the inevitable blind spots of a group of men who lived more than 200 years ago. We need justices who offer perspectives on the facts and realities of people of color and women. And yes, the extent to which they can empathize with people and experiences outside of themselves matters a great deal.
There are more than a few female candidates of color, each of whom are more than capable and qualified to be Supreme Court nominees. Among them are Kamala Harris, attorney general of California, Loretta Lynch, U.S. Attorney General, Melissa Murray, a professor at UC Berkeley, and Jacqueline Nguyen, a judge on the Ninth Circuit.
Moreover, we should not stop there. Since women now make up the majority of this country’s population, we really need, for the very first time in history, to have a majority of women on the Court. Period. This is not about quotas, it’s not about litmus tests. It’s about fundamental human rights, fairness, and the ability to see the world as it really is, and not just from a cloistered building protected from protest.
The right will be aghast at this idea. And truth be told, so will more than a few self-declared liberal men. When you perceive yourself as righteous in every way and the center of the universe, you don’t tend to think of other universes. Because their own needs were reflected in the documents, I am guessing none of the founders lay awake at night thinking about the future implications of the Constitution for women and people of color. I am guessing reproductive and sexual justice, and expanded voting rights for all people, were not of immediate concern and that existential threats like climate change were not remotely in the realm of possibility given that cross-state pollution and fossil fuels came much later. For these and other more expediently political reasons, I don’t think that the four “conservative” justices on the Court lay awake thinking of these things either.
We need people who do think of these things and who can apply core values laid out by the Constitution, using thoughtful and considered judgment, to the issues of the day.
The next nominee—in fact, the next two—should be women of color. Because original intent or no, there are a majority of people out there who do not look like—think, live, or enjoy the privileges of— the Founding Fathers. They have the most at stake in the coming years, and they deserve, finally, to see a court that looks more and more like this America.