Unless you were living in a cave you should be aware that a week ago Tuesday the people of Maine decided to pass on marriage rights for same-sex couples.  Commentators described it as not only “a harsh blow to the gay marriage drive,” but “a major set back to gay rights,” and “a tremendous and devastating loss for LGBT rights“.  From these reports the Maine vote served as a barometer for not only the fate of the marriage equality movement but for lgbt rights more generally.

In isolation, I don’t regard the vote in Maine to be as apocalyptic as some in the media have maintained.  After all, the sentiments of Mainers is trending, and trending quite quickly, in a favorable direction on the question of accepting legal marriage for same-sex couples.  If marriage is your issue, then give it a legislative session or two – they’re almost there.

But while we were all looking in a northeasterly direction, some very interesting things have been going on elsewhere in the country on the question of sexual rights.  Not only did the health care bill that came out of the House last weekend explicitly remove the tax penalty carried by lesbian and gay employees who put their partners on their health plans (removing its treatment as taxable income) but other important and positive legislative action has taken place since the Maine vote:

- The Fort Worth, Texas city council voted 6-3 yesterday to amend the city’s anti-discrimination ordinance to include protections for transgender people.  Fort Worth is not exactly the “Castro of the South,” and the fact that the vote was 2 to 1 in favor of the change in the law is fantastic.  But it gets even better.  As the Fort-Worth Star Telegram reports:  “A lot of the debate, though, centered on broader proposals, some of which the council has already tacitly approved.  City staffers will be trained on dealing with the lesbian, gay, bisexual and transgender community, and the Police Department has appointed a liaison to the community.  Other recommendations will require further study, including offering domestic-partner benefits and expanding the city health insurance plan to cover gender reassignment procedures, including sex changes.”

- Tharptown High School in Russelville, Alabama yesterday decided to reverse an earlier decision to bar a lesbian student from bringing her girlfriend to the Junior Prom.  After pressure from the ACLU on behalf of the student, Cynthia Steward, the school district yesterday capitulated and announced that they could attend the prom together.

- Yesterday the city council in Salt Lake City, yes Salt Lake City, voted unanimously to add sexual orientation and gender identity protections to its anti-discrimination law.  Why was the vote unanimous?  Because the change in the law had the full backing of the Mormon Church.  “The church supports these ordinances because they are fair and reasonable and do not do violence to the institution of marriage,” said an LDS church spokesman.  Don’t believe it?  Watch:

This embrace of gay and trans rights by the people of Salt Lake City and the LDS church did not come as a surprise to those who have been watching the sophisticated political work being done there by lgbt activists in coalition with other progressives.  As I blogged before: Lisa Duggan’s has written in What’s Right with Utah, about the successful and radically progressive political campaign going on in Salt Lake City undertaken by the lgbt community after they lost the chance to gain marriage rights when the state constitution was amended barring such unions.  They regrouped, found straight partners with whom to work in coalition, and have taken on much broader reforms than what they could have accomplished with “mere” marriage rights for lesbian and gay couples.  Brilliantly, they found local Mormons who opposed gay marriage, but who said they weren’t homophobic and took them at their word.  They found that of this group 62 percent supported employment nondiscrimination laws, 56 percent supported fair housing laws and 73 percent supported granting adult designees of state employees health insurance coverage. They also found that 56 percent backed legal protections like inheritance rights and job protection for LGBT people.  When they could no longer ask for marriage they found unlikely partners with whom they could ask for much more than what marriage would have provided.

The marriage crusade (and I mean crusade) had a set back in Maine the other day.  But let’s not overdetermine that event as indicative of  more than it can and should bear.  First of all, the folks in Maine working on this issue have suffered a set back, but not annihilation.  But perhaps more important, the fight for marriage equality isn’t the only thing lgbt people, or queer people for that matter, care about.   Whether it’s going to the prom with your girlfriend, getting a hate crimes bill passed, changing the heteronormative bias of tax laws, or thinking outside the politics of matrimony as they have in Utah, a gay rights agenda, and certainly a queer political agenda, is undermined by reducing it an up or down vote on marriage in any one state.

Today the House Education and Labor Committee, Chaired by Rep. George Miller, began hearings on the Employment Non-Discrimination Act of 2009 – a bill that would amend federal employment discrimination law to include sexual orientation and gender identity protections.  Various forms of this bill have been introduced into Congress in prior years, but it has a better chance of passing this year due to White House support and a democratically-controlled Congress.  Nan Hunter’s blog, Hunter of Justice, has a nice description of the bill.

If you’re interested in this issue, you ought to read the bill, weigh in on the incrementalist machinations about whether it is more prudent to omit “gender identity”  from the bill this year, assess your position on the exemptions the bill contains that mute it’s potential reach, and call your elected members of Congress to vote for the bill etc.

But before you do any of that you need to watch Barney Frank’s testimony to the Committee today as lead off witness.  It choked me up.   He did not have formal remarks prepared by his staff that he read woodenly into the record (as did Committee Chair Wilson in a tone that sounded not like he was launching hearings on an important civil rights bill, but like he was reading the insert in a bottle of Advil).  Barney Frank spoke from the heart and it was stirring.

I can understand that for some people the concept [of transgendered people in the workplace] is new…  but let me just say to my colleagues:  There’s nothing to be afraid of.  These are our fellow human beings.  They are not asking for anything other, in this bill, than the right to earn a living.  Can’t you give them that?  If you don’t like them, if you don’t want to be friends, I think you’re missing out on something, but that’s your choice.  But how can we as people who make the laws in this wonderful country under our great constitution say to one small group of our fellow citizens: “You know there’s something about you that some people don’t like.  So you are not eligible for work.  You can be fired.  You can’t get a promotion.”  I cannot understand why anybody would want to say that to a group of our fellow citizens.   And that’s all that this bill does.

Watch it.  You can, should, skip the boring introductions, just watch Barney Frank – six and a half minutes of instruction of how to convince your homophobic or transphobic uncle about the rightness of this cause.

The White House just announced that it has nominated Georgetown Law Center’s Professor Chai Feldblum as a Commissioner to the Equal Employment Opportunity Commission.  This is huge not only because Feldblum would be the first out lesbian or gay person on the EEOC (which, as Nan Hunter points out will gain particular significance when/if ENDA is enacted), but more generally because Feldblum is among the smartest and most experienced lawyers working on the administrative interpretation and enforcement of anti-discrimination laws.

Chai was at the center of the policy team that aided Congress and the first Bush Administration in the drafting of the Americans with Disabilities Act and its accompanying regulations and implementation, played a crucial role in the writing of the Ryan White CARE Act, has developed legal and legislative strategies to expand anti-discrimination protections for transgendered people, and has been a key player in the many-year effort to gain passage of the Employment Non-Discrimination Act which could add sexual orientation and gender identity protections to federal non-discrimination laws.   Feldblum has fought efforts to remove the gender identity provisions from ENDA, a strategy urged by some, including Rep. Barney Frank, to gain broader support for the legislation.

Not incidentally, after serving as Legislative Counsel to the ACLU’s AIDS Project, Feldblum founded Georgetown’s Federal Legislation and Administrative Clinic, a program designed to train students to become legislative lawyers.  It is hard to imagine a more qualified appointment to the EEOC.

It’s also a delight to see a White House Press Release that uses the words lesbian, gay, bisexual and transgender as something other than an epithet.

Anyone interested in gender stereotyping should rejoice the decision released last Friday in Prowel v. Wise Business Forms.  Brian Prowel describes himself as “effeminate” and that due to his effeminacy he was harassed and retaliated against at his job in violation of the sex discrimination protections contained in Title VII of the Civil Rights Act of 1964.   The court described the situation thus:

Prowel “believes that his mannerisms caused him not to “fit in” with the other men at Wise.  Prowel described the “genuine stereotypical male” at the plant as follows:

[B]lue jeans, t-shirt, blue collar worker, very rough around the edges. Most of the guys there hunted. Most of the guys there fished. If they drank, they drank beer, they didn’t drink gin and tonic. Just you know, all into football, sports, all that kind of stuff, everything I wasn’t.

In stark contrast to the other men at Wise, Prowel testified that he had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot “the way a woman would sit”; walked and carried himself in an effeminate manner; drove a clean car; had a rainbow decal on the trunk of his car; talked about things like art, music, interior design, and decor; and pushed the buttons on the nale encoder with “pizzazz.”

You gotta love Brian Prowel – he pushed the buttons on the nale encoder with pizzazz, while crossing his legs and filing his nails.

But these cases have been, by and large, very difficult to win.  Except in the Third Circuit.  Darlene Jesperson lost her case in the 9th Circuit when she claimed gender stereotyping discrimination after Harrah’s Casino (where she had worked for over 20 years) fired her because she refused to wear foundation and/or powder, lipstick, mascara, and blush, as required by a new grooming policy.

Yes, as you might guess, Brian Prowel is gay, but he couldn’t claim sexual orientation discrimination under Title VII, so he stuck with the gender stereotyping theory.  What is remarkable is that the Third Circuit refused to collapse the “effeminate man” case into the “gay man” case.  That is to say, it recognized that gender stereotyping is not necessarily the same thing as homophobia, although there may be overlap between the two in some cases.  At least in the Third Circuit the courts get it that not all “effeminate” men are gay, and not all gay men are “effeminate”.

This case is for all intents and purposes the flip side of the Price Waterhouse case, decided by the Supreme Court in 1989, wherein Ann Hopkins was denied partnership at Price Waterhouse, then a top accounting firm, because she used profanity;  did not walk, talk, or dress in a feminine manner, and was advised by a Price Waterhouse partner to go to charm school to learn to  “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

Too often courts see these cases as thinly veiled sexual orientation discrimination cases, and throw them out of federal court.  While we need to amend Title VII to include protections against sexual orientation-based discrimination (ENDA, the Employment Non Discrimination Act, has been pending in Congress since 1994 and would do just this),  protecting lesbians and gay men from discrimination is not necessarily what plaintiffs such as Brian Prowel need.  Gender-based discrimination – harassment of and discrimination against people who do not conform to traditional gender stereotypes of masculine men and feminine women – is its own species of discrimination that bears a close relationship to sex-based discrimination.  In essence both forms of discrimination derive from a notion that men are certain types of beings who should do certain types of work (men’s work) and should be manly doing so, while women are a very different kind of beings who should do their own types of work (women’s work) and should be womanly doing so.

The Prowel decision is an important next step in disestablishing through law this age-old set of stereotypes.

Columbia Law School’s Sexuality and Gender Law Clinic can boast another victory – this time on behalf of a gay parolee in Massachusetts.  The Massachusetts Parole Board agreed last week to give Bruce Wilborn, an openly gay inmate, a new parole hearing to settle the sexual orientation discrimination charges he brought against the board more than a year ago. The settlement comes after Federal District Court Judge Patti Saris rejected the Parole Board’s attempt to dismiss Wilborn’s claims that the parole board singled him out and treated him worse than other parole applicants because he is gay. Columbia Law School’s Sexuality and Gender Law Clinic and the law firm McDermott Will & Emery LLP serve as counsel for Wilborn.

News sources report today that the Obama Administration has determined to reverse the previous administration’s refusal to be a signatory to UN statement calling for an end to rights abuses based on sexual orientation and gender identity.  As we blogged earlier here and here, the declaration was signed by all 27 European Union members as well as Japan, Australia, Mexico and three dozen other countries.  The US was the only Western country not to sign on – an international embarrassment.

Today’s news reports misstate the substance of the resolution – it reaches not only the criminalization of sodomy, but violence, harassment, discrimination, exclusion, stigmatization and prejudice on the basis of sexual orientation and gender identity.

This change may signal two important shifts in policy – 1. that the US is joining the world community as an ardent defender of human rights, and 2. that protections against sexual orientation and gender identity discrimination have made their way into the consensus of the bundle of rights protected by international human rights law.

Both are overdue, both are about time in coming.  This willingness on the part of the Obama Administration to change course on this resolution suggests a different tact on other homophobic federal policies such as “Don’t Ask, Don’t Tell,” the failure to provide health benefits to the partners and families of gay and lesbian federal employees etc.

Text of the declaration

1. We reaffirm the principle of universality of human rights, as enshrined in the Universal Declaration of Human Rights whose 60th anniversary is celebrated this year, Article 1 of which proclaims that “all human beings are born free and equal in dignity and rights”;
2. We reaffirm that everyone is entitled to the enjoyment of human rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, as set out in Article 2 of the Universal Declaration of Human Rights and Article 2 of the International Covenants on Civil and Political, Economic, Social and Cultural Rights, as well as in article 26 of the International Covenant on Civil and Political Rights;
3. We reaffirm the principle of non-discrimination which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity;
4. We are deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity;
5. We are also disturbed that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine the integrity and dignity of those subjected to these abuses;
6. We condemn the human rights violations based on sexual orientation or gender identity wherever they occur, in particular the use of the death penalty on this ground, extrajudicial, summary or arbitrary executions, the practice of torture and other cruel, inhuman and degrading treatment or punishment, arbitrary arrest or detention and deprivation of economic, social and cultural rights, including the right to health;
7. We recall the statement in 2006 before the Human Rights Council by fifty four countries requesting the President of the Council to provide an opportunity, at an appropriate future session of the Council, for discussing these violations;
8. We commend the attention paid to these issues by special procedures of the Human Rights Council and treaty bodies and encourage them to continue to integrate consideration of human rights violations based on sexual orientation or gender identity within their relevant mandates;
9. We welcome the adoption of Resolution AG/RES. 2435 (XXXVIII-O/08) on “Human Rights, Sexual Orientation, and Gender Identity” by the General Assembly of the Organization of American States during its 38th session in 3 June 2008;
10. We call upon all States and relevant international human rights mechanisms to commit to promote and protect human rights of all persons, regardless of sexual orientation and gender identity;
11. We urge States to take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention.
12. We urge States to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice;
13. We urge States to ensure adequate protection of human rights defenders, and remove obstacles which prevent them from carrying out their work on issues of human rights and sexual orientation and gender identity.

- Katherine Franke