How a Conservative Legal Perspective Just Saved LGBT Rights

It is already a truism that the Supreme Court’s June 15 six–three decision, holding that discrimination against LGBT people constitutes sex discrimination, came as a shock to queer and trans legal advocates. With the replacement by Brett Kavanaugh of Anthony Kennedy, who tended to favor gay rights, and with John Roberts joining the dissenters in the 2015 same-sex marriage case Obergefell v. Hodges, it looked to be five solid votes against the gay and transgender employees in the three cases consolidated as Bostock v. Clayton County. Plans for protests were already in the works if the Court, as expected, greenlighted the firing of Gerald Bostock and Donald Zarda, two gay men, and of Aimee Stephens, a transgender woman.

Likewise, conservatives were not worried, since it seemed unimaginable that this Court would find room for queer and trans people under the carapace of a law passed fifty-six years ago ostensibly to protect women in the workforce. Such a major policy shift, they thought, would be legislating from the bench. (In the last few years, sex discrimination caselaw at the appellate level has been trending toward transgender plaintiffs; it remained more divided on the question of sexual orientation. The transition to a Trump-dominated judiciary is not yet complete in the circuit courts.) Last fall, two attorneys from the conservative First Liberty Institute confidently predicted victory for the employers: “As the maxim goes, Congress does not hide elephants in mouseholes. All things considered, it seems likely that this Supreme Court will continue to leave such large policy shifts to the discretion of Congress.”

That prediction failed, dramatically. For Neil Gorsuch, who authored the majority opinion, and the five other justices who sided with the gay and transgender parties, the logic “follows ineluctably from the statutory text.” One cannot fire a gay, lesbian, bisexual, or transgender person without taking sex into consideration.

Read the rest at The Boston Review


Why I am voting for Bernie Sanders

Tomorrow, in the New York primary, I will be voting for Bernie Sanders. I see few discernible differences on them on LGBT- specific policy. But Sanders’ policies on income inequality, on incarceration, on the fundamental role of government, are going to do much more for economically disenfranchised queer and trans people than anything in Clinton’s program. Clinton has been trying to sell us the idea that it’s just not possible to do better. I disagree. As Corey Robin puts it so well: “The American ruling class has been trying to figure out for years, if not decades, how to manage decline, how to get Americans to get used to diminished expectations, how to adapt to the notion that life for the next generation will be worse than for the previous generation, and now, how to accept…low to zero growth rates as the new economic normal. Clinton’s campaign message isn’t just for Bernie voters; it’s for everyone. Expect little, deserve less, ask for nothing. When the leading candidate of the more left of the two parties is saying that — and getting the majority of its voters to embrace that message — the work of the American ruling class is done.”

Keeping North Carolina safe for business

In the face of boycott threats from the corporate sector, Governor McCrory yesterday issued an executive order (PDF) intended to make North Carolina look safe for businesses that value their reputations as socially conscious. Time will tell if the corporations promising to boycott the state will decide that this executive action gives them enough cover to go back to business as usual.

While the Governor’s new executive action does ban state agencies from discriminating in employment based on sexual orientation and gender identity, the rest of it is just window-dressing.  In truth, there is little the Governor can do to undo the legislation (PDF) he signed on March 23rd.  What’s especially interesting, though, is the absence of any signal that mistakes were made in two other key parts of the new law. The first we know all about–making access to multiple-occupancy bathrooms based on “biological sex.”  McCrory actually doubles down and reiterates the anti-trans animus that seemingly drove the legislature to call a special emergency session to pass the bill in the first place:

“Whereas, our citizens have basic common-sense expectations of privacy in our restrooms, lockers rooms, and shower facilities for children, women and women;

Whereas, to protect expectations of privacy in restrooms, locker rooms and shower facilities in public buildings, including our schools, the State of North Carolina maintains these facilities on the basis of “biological sex.”

But there was also no concession, not even a symbolic one, about another section in HB2, Part II, also known as the “Wage and Hour Act.”  That part of HB2 preempts local governments from establishing minimum wage laws, like Seattle did last year. Here’s the justification for this in the bill:

“The public policy of this State is declared as follows: The wage levels of employees, hours of labor, payment of earned wages, and the well-being of minors are subjects of concern requiring legislation to promote the general welfare of the people of the State without jeopardizing the competitive position of North Carolina business and industry.”

Few are talking about how the law makes it impossible for cities to raise the minimum wage. And I’ve seen no reports of anyone in the business community objecting to that part of the new law.

It’s not clear yet if McCrory’s executive order will end the boycott (though I suspect not). But one thing is clear: the debate over bathrooms is providing very good cover for the anti-worker part of the bill.  For many–especially those who find identity politics a distraction from more universal political projects–it would seem that these two sections of the bill couldn’t be more incommensurate. We have politics of recognition (or non-recognition in this case) in legislating what “sex” is, and who can use what bathroom. And we have distributive politics at work in legislating against municipal minimum wage increases. But the line demarcating these two types of politics is not as neat as some take it to be.  Without the cover of homophobia and transphobia, without the legislators’ hysteria over trans people going to the bathroom, the action against minimum wage increases would have attracted much more attention.