Commentary Human Rights

Gay Is Not the New Black: The Supreme Court and the Politics of Misrecognition

T.F. Charlton

LGBTQ rights are not the single civil rights issue of our time. To think otherwise, as all too many do, is the same sort of misrecognition that shaped the Supreme Court’s VRA ruling: the notion that the work of the civil rights movement is done, and it’s time for LGBTQ people to take up their mantle.

Like many queer people of color, my celebration of the Supreme Court’s recent rulings on the Defense of Marriage Act (DOMA) and Proposition 8 has been tempered with concern over the Court’s mixed ruling on affirmative action and rage over its gutting of voting rights and Native sovereignty. It’s particularly infuriating that the difference between DOMA being struck down and a key section of the Voting Rights Act (VRA) being stripped of its effectiveness ultimately came down to a single powerful, white, straight man: perennial swing vote Justice Anthony Kennedy.

The Politics of Misrecognition

What makes Justice Kennedy able to see the need for equal protections for same-sex couples when he apparently doesn’t for robust measures protecting the voting rights of Black and other marginalized citizens? There’s an important lesson here for liberals and progressives in this seeming paradox. Both decisions are examples of what political scientist and MSNBC host Melissa Harris-Perry describes in her book Sister Citizen: Shame, Stereotypes, and Black Women in America as a “politics of recognition” and “misrecognition.”

If, as Hegelian political philosophy argues, full participation in public life as a citizen depends on accurate recognition of one’s “humanity and uniqueness,” misrecognition of the lives of marginalized individuals and groups—such as stereotypes—materially hinder their access to the rights and privileges of citizenship. For example, the image of single Black mothers who use government assistance as “welfare queens” profoundly shapes welfare and health policy, as racist welfare reforms, legislative attacks on Planned Parenthood, and efforts to dismantle programs that disproportionately serve women of color amply demonstrate.

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The majority opinion invalidating the current formulation of Section 5.4 of the Voting Rights Act reveals a similar sort of misrecognition. The crux of Chief Justice John Roberts’ opinion is the conviction that the “pervasive,” “flagrant,” “widespread,” and “rampant” racism that the 1965 Voting Rights Act was meant to redress no longer existed when the VRA was renewed in 2006, and doesn’t exist today. Rather, requiring pre-clearance of new voting laws for certain states but not others based on their history (and ongoing pattern) of disenfranchising voters of color is based on “40 year old facts having no logical relation to the present day” and unfairly seeks to “punish” those states for the past. Roberts insists, “History since 1965 cannot be ignored,” while simultaneously declaring history before 1965 irrelevant to the present day, despite the rash of draconian voter ID laws and district gerrymandering in the very states covered by Section 5.4 of the VRA.

What is apparently ancient history for Chief Justice Roberts and the majority is not even past for most Black Americans. Thus the ruling’s implication that “serious” racism is effectively over can be understood as an act of misrecognition. Implicit in the ruling is the sentiment, explicitly held by many whites, that Black people are being oversensitive or even deceitful when we talk about the continued relevance of racism in our lives. This is the seamy underbelly of the belief that “extraordinary” measures are no longer necessary to ensure the equal protection of people of color under the law—the corollary that when people of color agitate for such measures, we are demanding not equal access and opportunity, but undue “racial entitlements” (to use Justice Scalia’s own words about the VRA and affirmative action).

In other words, those of us who insist that race still matters are demanding more than our fair share, more than we’ve earned or deserve; we’re greedy, shiftless, and either deceived or lying about our lived realities. “Racial entitlements,” by this thinking, necessarily implies taking something that rightfully belongs to white people. When Chief Justice Roberts claims that states once covered by the VRA were being punished, and Scalia complains that “once Confederate state[s]” are “familiar objects of the [Supreme] Court’s scorn,” they suggest that racial aggrievement—if not outright malice—on the part of people of color makes whites the real victims of racial revenge fantasies.

Misrecognition matters because the power to decide and shape policy on issues of discrimination almost always rests in the hands of people who don’t experience (and often don’t or refuse to understand) the discrimination in question. Chief Justice Roberts, writing for a majority that was four-fifths white men, got to decide what constitutes reality for people of color with respect to racism—to decide that what most people of color say about our lives is in fact not true. As Harris-Perry writes in Sister Citizen, “to be a person of relative power and privilege viewing a person of less power and privilege” is inherently “a political act.”

This statement is as true for white liberals and progressives “viewing” communities of color as it is of white conservatives. In the weeks leading up to these rulings, I observed a typical but nonetheless disturbing discrepancy between white queers and organizations eagerly anticipating “major rulings” that only included DOMA and Prop 8, and not rulings on the VRA, affirmative action, Native sovereignty, or other issues that straight and queer people of color were also anxiously awaiting. Since these rulings, the response from mainstream LGBTQ organizations and media—dominated by white, cisgender, affluent voices—and their base has been at best tepid disapproval, if not disinterest.

This, too, stems from misrecognition—attitudes like “gay is the new Black” or “gay/LGBTQ rights are the civil rights issue of our day” that see racism as an abstraction or long dead concern. Ennui over attacks on voting rights fails to consider the most marginalized members of the community: LGBTQ people who are poor, trans, and/or of color. They not only fail to recognize that racism is very much still with us, they also fail to learn from the very movements they claim to be heirs to, and the continued, dedicated opposition these movements still face.

More Than Marriage

Advocates of marriage equality often draw parallels between one-time bans on heterosexual interracial marriages and current laws prohibiting recognition of same-sex marriages. The comparison is more apt than many realize. It seems all but inevitable that marriage equality will ultimately gain the national recognition and acceptance that straight interracial unions have, but in both cases it would be a grave mistake to see this as a cut-and-dried sign of progress towards equality.

Consider that theoretically widespread acceptance of interracial marriage (86 percent of the public and 78 percent of conservatives say they approve) exists alongside significant and dogged white opposition to measures to address severe racial disparities—say, in access to voting, and even more basic rights. Indeed, acceptance of interracial marriage is often wielded as evidence that racism is dead and such measures are no longer necessary (if they ever were). Some of the most strident conservative racism deniers, like Clarence Thomas and Ann Coulter, for example, have been or are in interracial relationships.

We’re now seeing the makings of a similar cultural disconnect on LGBTQ issues. Straight conservative politicians like Lisa Murkowski and Rob Portman have come around in support of marriage equality, and there’s good reason to believe that before long, supporting marriage equality will be a—if not the—conservative position on LGBTQ rights. Much as some white Americans, across the political spectrum, point to their approval of interracial marriage as disproving the reality of racism, it’s not difficult to see a day where straight “allies” might point to national marriage equality as proof that sexual minorities are no longer oppressed. (See this image, from 2004, by cartoonist Tony Auth, suggesting that women, people of color, and people with disabilities have already attained equality and that “gay marriage” is “next.”)

It would seem that marriage equality for queer folks and straight people of color alike, even with the considerable time and hard work necessary to secure it, is in some ways a more easily attained milestone than many even more fundamental rights. Extending legal recognition to interracial and queer couples is both subversive and, to quote Kent L. Brintnall, “expanding access” to what remains “an exclusionary institution” that orders family and sexuality in fundamentally conservative ways. It’s not a surprise that the “traditional” beneficiaries of marriage might simultaneously embrace the assimilation of new groups into this institution, while rejecting steps toward equality that require more radical challenges to existing power structures.

Conservatives continue to wage pitched battles at federal and local levels to maintain racial inequity in employment practices, education, housing, health care, and access to public accommodations. (Consider that in 2013, Paula Deen is being sued for, among other things, denying Black employees use of the same entrances and bathrooms as white employees!) Not coincidentally, access to decent shelter, work, health care, and public accommodations are the very issues that are most pressing for LGBTQ Americans—especially those who are poor, trans, and/or of color.

In other words, gay is not the new Black, and LGBTQ rights are not the single civil rights issue of our time. To think otherwise, as all too many do, is the same sort of misrecognition that shaped the Supreme Court’s VRA ruling: the notion that the work of the civil rights movement is done, and it’s time for LGBTQ people (mostly meaning white, cisgender, gay men) to take up their mantle. This misrecognition matters. Shrugged shoulders at rulings undermining the rights of people of color ultimately aids and abets efforts to undermine equality for all.

These assaults on voter rights have far-reaching consequences and implications, some of which we’ve seen just in the past week. The anti-choice omnibus bill rushed through the North Carolina state senate on Tuesday was made possible by extensive district gerrymandering that gave state Republicans 70 percent of seats in the legislature despite winning half the votes. This is just one of many regressive moves from North Carolina Republicans; they’ve also killed unemployment benefits, denied 500,000 North Carolinians access to Medicaid, and attacked a state law aimed at racial disparities in death penalty sentencing.

And it’s not just in the South; in Wisconsin, Pennsylvania, Ohio, and elsewhere, the same state legislatures and governors leading the assault on voters’ rights are also pushing legislation that’s anti-choice, anti-public education, anti-worker, and anti-family. And they’re able to get away with it in part because of laws that hinder marginalized groups from voting in people who represent their interests—the same groups, incidentally, who are most likely to support marriage equality.

The seeming paradox of Justice Kennedy’s votes on marriage equality versus voting rights is no paradox at all. It’s reflective of how misrecognition of the reality of racism breeds complacency and indifference about stripping rights from the most marginalized citizens. And it’s an attitude that’s all too common in the LGBTQ rights movement—one we’ll have to address if we ever hope to achieve more than marriage.

Commentary Sexuality

Black Trans Liberation Tuesday Must Become an Annual Observance

Raquel Willis

As long as trans people—many of them Black trans women—continue to be murdered, there will be a need to commemorate their lives, work to prevent more deaths, and uplift Black trans activism.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

This week marks one year since Black transgender activists in the United States organized Black Trans Liberation Tuesday. Held on Tuesday, August 25, the national day of action publicized Black trans experiences and memorialized 18 trans women, predominantly trans women of color, who had been murdered by this time last year.

In conjunction with the Black Lives Matter network, the effort built upon an earlier Trans Liberation Tuesday observance created by Bay Area organizations TGI Justice Project and Taja’s Coalition to recognize the fatal stabbing of 36-year-old trans Latina woman Taja DeJesus in February 2015.

Black Trans Liberation Tuesday should become an annual observance because transphobic violence and discrimination aren’t going to dissipate with one-off occurrences. I propose that Black Trans Liberation Tuesday fall on the fourth Tuesday of August to coincide with the first observance and also the August 24 birthday of the late Black trans activist Marsha P. Johnson.

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There is a continuing need to pay specific attention to Black transgender issues, and the larger Black community must be pushed to stand in solidarity with us. Last year, Black trans activists, the Black Lives Matter network, and GetEQUAL collaborated on a blueprint of what collective support looks like, discussions that led to Black Trans Liberation Tuesday.

“Patrisse Cullors [a co-founder of Black Lives Matter] had been in talks on ways to support Black trans women who had been organizing around various murders,” said Black Lives Matter Organizing Coordinator Elle Hearns of Washington, D.C. “At that time, Black trans folks had been experiencing erasure from the movement and a lack of support from cis people that we’d been in solidarity with who hadn’t reciprocated that support.”

This erasure speaks to a long history of Black LGBTQ activism going underrecognized in both the civil rights and early LGBTQ liberation movements. Many civil rights leaders bought into the idea that influential Black gay activist Bayard Rustin was unfit to be a leader simply because he had relationships with men, though he organized the 1963 March on Washington for Jobs and Freedom. Johnson, who is often credited with kicking off the 1969 Stonewall riots with other trans and gender-nonconforming people of color, fought tirelessly for LGBTQ rights. She and other trans activists of color lived in poverty and danger (Johnson was found dead under suspicious circumstances in July 1992), while the white mainstream gay elite were able to demand acceptance from society. Just last year, Stonewall, a movie chronicling the riots, was released with a whitewashed retelling that centered a white, cisgender gay male protagonist.

The Black Lives Matter network has made an intentional effort to avoid the pitfalls of those earlier movements.

“Our movement has been intersectional in ways that help all people gain liberation whether they see it or not. It became a major element of the network vision and how it was seeing itself in the Black liberation movement,” Hearns said. “There was no way to discuss police brutality without discussing structural violence affecting Black lives, in general”—and that includes Black trans lives.

Despite a greater mainstream visibility for LGBTQ issues in general, Black LGBTQ issues have not taken the forefront in Black freedom struggles. When a Black cisgender heterosexual man is killed, his name trends on social media feeds and is in the headlines, but Black trans women don’t see the same importance placed on their lives.

According to a 2015 report by the Anti-Violence Project, a group dedicated to ending anti-LGBTQ and HIV-affected community violence, trans women of color account for 54 percent of all anti-LGBTQ homicides. Despite increased awareness, with at least 20 transgender people murdered since the beginning of this year, it seems things haven’t really changed at all since Black Trans Liberation Tuesday.

“There are many issues at hand when talking about Black trans issues, particularly in the South. There’s a lack of infrastructure and support in the nonprofit sector, but also within health care and other systems. Staffs at LGBTQ organizations are underfunded when it comes to explicitly reaching the trans community,” said Micky Bradford, the Atlanta-based regional organizer for TLC@SONG. “The space between towns can harbor isolation from each other, making it more difficult to build up community organizing, coalitions, and culture.”

The marginalization that Black trans people face comes from both the broader society and the Black community. Fighting white supremacy is a full-time job, and some activists within the Black Lives Matter movement see homophobia and transphobia as muddying the fight for Black liberation.

“I think we have a very special relationship with gender and gender violence to all Black people,” said Aaryn Lang, a New York City-based Black trans activist. “There’s a special type of trauma that Black people inflict on Black trans people because of how strict the box of gender and space of gender expression has been to move in for Black people. In the future of the movement, I see more people trusting that trans folks have a vision that’s as diverse as blackness is.”

But even within that diversity, Black trans people are often overlooked in movement spaces due to anti-Blackness in mainstream LGBTQ circles and transphobia in Black circles. Further, many Black trans people aren’t in the position to put energy into movement work because they are simply trying to survive and find basic resources. This can create a disconnect between various sections of the Black trans community.

Janetta Johnson, executive director of TGI Justice Project in San Francisco, thinks the solution is twofold: increased Black trans involvement and leadership in activism spaces, and more facilitated conversations between Black cis and trans people.

“I think a certain part of the transgender community kind of blocks all of this stuff out. We are saying we need you to come through this process and see how we can create strength in numbers. We need to bring in other trans people not involved in the movement,” she said. “We need to create a space where we can share views and strategies and experiences.”

Those conversations must be an ongoing process until the killings of Black trans women like Rae’Lynn Thomas, Dee Whigham, and Skye Mockabee stop.

“As we commemorate this year, we remember who and why we organized Black Trans Liberation Tuesday last year. It’s important we realize that Black trans lives are still being affected in ways that everyday people don’t realize,” Hearns said. “We must understand why movements exist and why people take extreme action to continuously interrupt the system that will gladly forget them.”

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.


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