Religious Accommodations Cost More Than Money

Posted on March 26th, 2014 by Cindy Gao

From Public Rights/Private Conscience Director Kara Loewentheil, originally published in Balkinization on March 26th, 2014. 

Yesterday the Supreme Court heard arguments in the consolidated cases of Hobby Lobby and Conestoga Wood. With the publication of the full argument transcript online, it became clear that even the experienced lawyers arguing these cases – along with the Supreme Court Justices themselves – were struggling to understand how to think about the relationship between religious accommodations and third party rights. In this context, that means the impacts that accommodations granted to religious employers would have on their female employees who would otherwise have access to contraception without cost-sharing under the Affordable Care Act’s contraceptive coverage requirement (and indirectly on their partners and children).

This came as no surprise to me. In When Free Exercise Is A Burden: Protecting “Third Parties” In Religious Accommodation Law, a paper I authored that is shortly forthcoming in the Drake Law Review, I argue that neither scholars nor courts have thus far provided a satisfying account of how to balance free exercise rights against the impact of those rights on “third parties.” In the paper I provide a thorough analysis of the existing case law on this issue and propose both a novel framework for balancing such rights as well as insight into how to better utilize the existing constitutional and statutory doctrine toward this end.

In this short post, however, I simply want to draw attention to one particularly overlooked element of the contraceptive coverage requirement that can only be understood in relation to the “third parties” (female employees) in this case. The arguments yesterday focused entirely on the practical benefit of the contraceptive coverage requirement, and analyzed everything – from the compelling interest the government advanced to the effect of already-existing exemptions – in terms of the tangible access or lack of access to contraception for the women affected. But law has more than practical impacts – it has important expressive impacts that are explicitly meant to, and do, shape social norms and priorities. In my paper I argue that the contraceptive coverage requirement has an enormously important expressive element – it signifies a social and political commitment to women’s social and economic equality, and symbolizes an acceptance of social and shared responsibility for gender equality. The importance of contraception to women’s equality has been recognized by the Supreme Court, and is featured prominently in the Government’s briefing on its compelling interest in the law. That equality is impossible to achieve without access to contraception. In that light, allowing religious accommodations without ensuring seamless and no-cost contraceptive access for the employees of objectors would be inflicting a serious expressive and dignitary harm.

Now compare that understanding to this exchange on pages 37-38 of the transcript. It comes in the midst of a dialogue between Clement, arguing for the objecting plaintiffs, and Justice Kagan during yesterday’s argument, in which Clement distinguishes between the effect of race discrimination on a prospective employee and the effect of religious exemptions on women seeking contraception:

Now, each of those has a burden on third parties, but I would respectfully suggest they’re different.  In the case of the employee who’s been subject to racial discrimination, even if they can get another job, that racial discrimination is a unique injury to them that you can’t remedy unless you tell the employer, don’t discriminate on the basis of race. . . . Here . . . all we’re really talking about is who’s going to pay for a subsidy that the government prefers. This is not about access to the contraception.  It’s about who’s going to pay for the government’s preferred subsidy.

Clement’s description of what’s at stake is as minimal as can be: it’s just who is going to pay for contraception. It’s just a matter of money, with no expressive or dignitary implications. What is fascinating about this set-up is that Clement specifically contrasts this case to a race discrimination case, in which he happily admits that an employee discriminated against on the basis of race would have a recognizable harm apart from not getting the job. What kind of harm could that be? Obviously it’s a dignitary harm, a “unique injury” that exists “even if they can get another job.” Contraception, on the other hand, is positioned as simply a consumer good in the market, with absolutely no greater purpose or significance. (Which is ironic, of course, since part of his argument is that his clients view it as a sin.)

This focus on expressive norms and purposes is not just theory-talk. It has direct implications for the way we understand the details of the doctrinal standards as well. In the second half of the argument the conservative justices hammered General Verrilli, arguing for the Government, on how the Government’s interest in the contraception coverage requirement could be compelling when there were allegedly various other exemptions in the law, including for companies with fewer than 50 employees, religious organizations, and grandfathered plans. Verrilli did his best to defend the exemptions, noting that (1) companies with fewer than 50 employees are exempted from providing all health insurance but must cover contraception if they choose to offer health insurance, (2) religious organizations are exempted if they are houses of worship but are only offered an accommodation that ensures access if they are religiously-affiliated nonprofits, and (3) that the grandfathered plans will decrease over the next several years until very few, if any, remain.

The conservative justices were particularly obsessed with the grandfathered plans, and Verrilli had a bit of a difficult time explaining why the practical impact of leaving millions of women without contraceptive access during the intervening years did not undermine the Government’s compelling interest. Embracing the expressive import of the contraception coverage requirement, however, would have cast the exemptions in an entirely different light. The expressive message of exempting small businesses from health care coverage requirements generally is far different than if contraceptive coverage was singled out from those policies. Similarly, the exception for grandfathered plans reads, expressively-speaking, as an administrative transition matter affecting all preventative health care coverage, along with other of the law’s requirements, not as a judgment about the importance of contraception. The religiously-affiliated organizations, meanwhile, are subject to an accommodation that ensures seamless coverage for women in their employ; it is true that the lack of an adequate enforcement mechanism sends a troubling expressive message about the importance of this right, but the core signal of the accommodation is to affirm the Government’s commitment to contraceptive access, not to undermine it.

In other words, understanding the expressive impact of the law reframes the question of the baseline, helping us understand the compelling interest and narrow tailoring tests in a deeper, more coherent way. Such a perspective also has implications for the First Amendment analysis when it comes to whether a law is neutral or generally applicable, but like the Court I leave those questions for another day.


From Center for Reproductive Rights Fellow Margaux J. Hall, originally published in Slate on March 24th. 

This week, the Supreme Court hears oral argument in two cases asking whether for-profit business corporations have religious liberty rights. Hobby Lobby, a group of craft stores with 13,000 employees, and Conestoga Wood, a small Mennonite furniture maker, want to be free of the Obamacare requirement that employer-provided health insurance plans need to provide certain forms of birth control. They argue that their religious convictions prohibit them from covering such items. Religious institutions, reproductive-rights advocates, and others have sparred over the conflicting rights claims, but one important part of the conversation has been missing almost completely: Why are American employers deciding the contents of our personal health insurance plans?

It didn’t have to be this way. Yet for decades we have allowed our employers virtually unfettered freedom to make all health coverage decisions—not just those related to contraceptives—on behalf of employees and, in many instances, their family members. Why? Isn’t it time to rethink how we got to this place and whether we should do something about it?

Americans often fail to notice that a striking imbalance exists in health insurance purchasing: Although health insurance belongs to the employee, the employer gets to decide what that insurance will cover and under what terms. While contraceptives are the current lightning rod for controversy between employers and employees, tensions have emerged over the years around a whole range of health services, including treatments for autism spectrum disorder, in vitro fertilization, and bariatric surgery.

Why does health insurance actually belong to the employee? Because the employee pays for it—directly and indirectly. Though both employees and employers generally co-finance insurance premiums (in 2012, employees reportedly paid an average of 18 percent of individual plan premium costs, and 39 percent of family plan premium costs), employees functionally fund 100 percent of premium payments. In other words, employers’ health insurance premium contributions are not philanthropic investments—they are part of an employee’s net compensation package. There is a clear wage-benefit tradeoff at work in the case of employment-based health insurance. Economic research shows that employers make fewer investments in real wage increases when they increase their health insurance premium contributions. Seen this way, employers should not be permitted to spend employees’ remuneration in ways that subvert those employees’ interests.

This is the deeper issue that lurks beneath the contraceptive mandate discussions. No matter how Hobby Lobby is ultimately resolved, we have acceded to an arrangement in which employers will continue to have nearly limitless discretion to make health insurance decisions on behalf of most Americans.

In 2010, 55 percent of Americans received their health insurance through their place of employment or that of a family member. As General Motors executives used to quip, “We are in the health care provision business and make cars on the side.” In certain respects, they were right. Both General Motors and Ford have reported that they spend more on health insurance for their employees than they spend on steel. Similarly, Starbucks CEO Howard Schultz claims that Starbucks spends more on health insurance benefits than it does on coffee beans.

Why have employers emerged as the primary providers of health insurance in the U.S.? Several historic and economic reasons explain how we got here. Employment-based insurance coverage expanded in the early- to mid-1900s as unions increasingly demanded more benefits from employers. World War II–era wage controls played a contributing role as well. These wage controls exempted health benefits and thereby gave employers a convenient way to top up salaries and compete for scarce labor.

A variety of economic incentives also sustained employment-based coverage. Providing insurance at the place of employment presents an attractive way to pool risk and minimize adverse selection. A significant threat insurers confront is that individuals will only purchase health insurance when they are already sick and need to use it.  But this risk is minimized when employees purchase their insurance at the workplace through a pre-designated enrollment process.

Employees also benefit from favorable tax treatment of employment-based health insurance. Under the tax code, health benefits are excluded from employees’ taxable income (they are also deductible for employers as business expenses). This tax exclusion is sizable—it reduces the functional cost of workplace health insurance by an estimated 10 to 35 percent, depending on an employee’s marginal tax rate. It is also one of the single largest federal government expenditures. According to the Congressional Budget Office, the health insurance exclusion reduced federal revenue by $248 billion in 2013, including lost income and payroll taxes.

All of this explains why employers have become big players in the health insurance business. But it fails to explain why employers are allowed to determine the cost, quality, and accessibility of the insurance they purchase for their employees. As a legal matter, under the Employee Retirement Income Security Act (ERISA), employers make these determinations as business decisions. Enacted in 1974, ERISA was designed to protect the interests of those participating in employment benefit plans such as pensions or, in this case, health insurance plans. But while this may have been the intention of the legislation, under ERISA employers maintain discretion to pick and choose health insurance plan contents according to their own business or other preferences, with only minimal restrictions in place. The historic rationale for this was that while employers had strong incentives to offer workplace health insurance (competitor companies were doing it, and there were tax benefits), there was no mandate for them to do so. As a consequence, employers were free to offer any health insurance or no health insurance and, consequently, employees had no right to workplace health insurance.

But Obamacare changed all that. Obamacare’s employer mandate will require large employers to provide coverage or pay a penalty starting in 2015. Employees of large firms now have a reason to expect that they will receive their health insurance at the workplace. When they do so, employers will be purchasing health insurance plans on employees’ behalf and using employees’ remuneration to do so. We have yet to reconcile ERISA with the Affordable Care Act in this respect, and it is important that we do so.

One way to remedy this conflict would be by establishing policy that makes employers into legal fiduciaries—like investment and pension managers and others who safeguard our personal investments. Such fiduciaries are entrusted with duties of care and loyalty to those who benefit from their services. They must act in the sole interest of those they serve, without regard to their own financial, moral, or other preferences. Employers, acting as legal fiduciaries, could invest employees’ remuneration in insurance plans offering a diversified pool of health benefits that reflect employees’ needs. We could require employers to ask about employees’ coverage needs before selecting health insurance plans for the next enrollment year, a practice that is largely nonexistent to date. For example, through an annual confidential survey, employers could capture employees’ health needs, aggregate them, and approximate a best-fit health plan or plans to satisfy employees’ needs.

Such a reconceptualization would be groundbreaking. Under this revised model, employers would act on behalf of employees and in their exclusive interest in buying health insurance. Employees’ needs—economic, moral, or otherwise—would come first.

Obamacare means that employers will remain the dominant providers of health insurance in the U.S. for the foreseeable future. That debate is over. But now is the time to challenge the existing model for health insurance decision-making and institute safeguards to ensure that individuals and families—rather than their employers—can pick the contents of the health insurance they buy. As conversations continue to swirl around the contraceptive mandate and Obamacare more broadly, let’s not forget an important conversation that hasn’t yet taken place—clarifying once and for all the role of employers as our health agents.

Katherine Franke, Director of the Center for Gender and Sexuality Law, Creates Public Rights/Private Conscience Project, a new Think-Tank Designed to Reset the Conflict Between Sex Equality, Reproductive Rights, and Religious Liberty

Media Contact: Public Affairs, 212-854-2650 or

New York, March 24, 2014—Katherine Franke, director of Columbia Law School’s Center for Gender and Sexuality Law, announced today the launch of the Public Rights/Private Conscience project, a new think-tank created to address the increased use of religion-based exemptions from compliance with federal and state laws securing equality and sexual liberty.

The scope of religious exemptions will feature prominently at the U.S. Supreme Court tomorrow, March 25, when owners of the craft store chain Hobby Lobby and furniture manufacturer Conestoga Wood argue that their religious beliefs justify an exemption from the Affordable Care Act’s requirement that employers include contraception coverage in their employee health plans. The cases are Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

 Professor Katherine Franke

With increasing frequency, opponents of same-sex marriage, reproductive rights, and gender equality have sought a safe harbor in religion to justify otherwise illegal employment and business practices. Arizona Governor Jan Brewer recently vetoed a bill that critics argued would allow businesses to discriminate against gays and lesbians if the discrimination were attributed to religious beliefs. Similar bills are making their way through other state legislatures.

“With greater and greater frequency, respecting equality rights is seen as optional while respecting religious liberty is mandatory,” Franke said. “The Public Rights/Private Conscience project will bring the considerable academic resources of Columbia University to bear on rethinking this intractable standoff between religious liberty and other rights.”

Read more about the project in this ProPublica Q&A with Franke.

The Public Rights/Private Conscience project will:

  • map the arguments being made in the religious exemptions context in court cases, academic scholarship, policy papers, and the media;
  • mobilize scholars, lawyers, and advocates in an effort to reframe the debate so that compliance with civil rights norms is seen as compatible with faith-based doctrines;
  • develop model language that can be included in proposed legislation that strikes the constitutionally required balance between religious liberty and other fundamental constitutional rights;
  • develop best practices to address entities or individuals that refuse service on the basis of religion;


The project will be directed by Kara Loewentheil, currently a postdoctoral associate-in-law and fellow in the Program for the Study of Reproductive Justice at the Information Society Project at Yale Law School. Loewentheil previously served as a Blackmun Legal Fellow at the Center for Reproductive Rights and as a clerk for the Honorable James L. Dennis on the U.S. Court of Appeals for the Fifth Circuit.

“The project is uniquely positioned to develop new theoretical frameworks for understanding the role and impact of religious exemptions on liberty and equality rights in a modern multi-cultural society,” said Loewentheil, who will be joining Columbia Law School as a research fellow in addition to her role as director of the Public Rights/Private Conscience Project. “Our goal is to promote innovative framings of these questions in policy, advocacy, scholarship, and litigation.”

The Public Rights/Private Conscience Project is funded by grants from the Ford Foundation, which aims to strengthen democratic values, reduce poverty and injustice, promote international cooperation, and advance human achievement; and the Arcus Foundation, a leading global foundation advancing pressing social justice and conservation issues.

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FRANK-Book-Pic-Medium-e1390314781757From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in Slate on March 13th.

When the military’s “don’t ask, don’t tell” policy ended in 2011, the ban on transgender service remained in place, contained in a different set of regulations distinct from the DADT law. For some, targeting the transgender ban was a logical next step, while others cautioned that the military wasn’t ready or that years of education and lobbying would be required before it could become a political reality. Still others, of course, remain opposed to any kind of LGBTQ service.

Today, a commission co-chaired by former U.S. Surgeon General Joycelyn Elders and including former military officers and top scholars on gender and health, has issued a report on the subject that ought to settle that question quickly. The commission, established by the Palm Center (where I am a consultant), conducted the most thorough, expert inquiry into the reasons for the current restrictions on transgender service. It set out to assess the fairly narrow question of whether the trans ban was based on sound medical science—since the regulations, which are complicated and overlapping, are primarily expressed in medical terms. What the authors found, however, was not only that “there is no compelling medical reason for the ban” but that there’s no good rationale at all—and plenty of good reasons to end it.

The ban on transgender military service is really a string of different restrictions left over from a time when anything outside a straight and narrow norm was regarded as a mystifying and dangerous difference. Defense Department medical standards disqualify applicants with “major abnormalities or defects of the genitalia such as change of sex,” as well as what the Pentagon calls “psychosexual conditions,” which include “transsexualism, exhibitionism, transvestism, voyeurism, and other paraphilias.”

The trans restrictions are embedded, for the most part, in medical regulations whose purpose is perfectly sensible: to minimize the chances that anyone who joins the military will endanger the health of the force, lose excessive duty time, or become undeployable. (They are not, interestingly, expressed in the same terms as the DADT restrictions, which presumed that openly gay troops would so disturb other service members that they would leave or that unit cohesion would suffer.) But when the commission looked into the rationale for including transgender identity and trans-related medical procedures in the list of disqualifiers to service, they made two important discoveries—that the restrictions are hugely out of date, and that there is no documented history of why they ever existed in the first place.

It’s been 20 years since the American Psychiatric Association’s DSM-IV removed “transsexualism” as a diagnosis. When it did so, in 1994, it replaced the term with “gender identity disorder.” But in the DSM-5the latest version of the psychiatric manual published last year, gender identity disorder has been replaced with “gender dysphoria.” The changes are not just semantics but carry real significance. Unlike either transsexualism or gender identity disorder, gender dysphoria is not a mental disorder, and it is not something that all transgender people suffer from. Instead, it refers toclinically significant distress that someone feels in conjunction with a deep cross-gender identification. And even those who do get the diagnosis are regarded as having a treatable condition, not an identity disorder.

Yet while the military routinely updates medical classifications to reflect the latest changes in the DSM, the trans prohibitions remain untouched, despite a complete absence of connection between being transgender and fitness for military service. That makes transgender identity one of the only statuses that automatically requires rejection or discharge, irrespective of ability to perform.

Now, about the missing rationale: The military does not bother to offer a reason for the ban, simply telling the Associated Press today, “At this time there are no plans to change the department’s policy and regulations which do not allow transgender individuals to serve in the U.S. military.” Center for Military Readiness President Elaine Donnelly, who was spectacularly wrong on the consequences of ending DADT but whom the Associated Press still quotes obligatorily, simply repeats baseless talking points from that earlier debate about sexual assaults, privacy, and “putting an extra burden” on the military.

Because there is no written history of why the military bans transgender service, the only reasons on record come from a handful of legal challenges to the ban. In one case, the Army claimed that allowing transsexuals would require it to develop burdensome facilities and specialty knowledge to deal with risks and complications from surgery or hormonal treatment. In another case, a doctor testified for the Air Force that deploying someone who had changed sex was akin to posting someone with coronary artery disease to a far-flung location without proper care. Testimony in a third case cited risks and side effects, the possibility of duty performance problems, the need for costly specialized care, and the limitations of military medical knowledge as reasons to ban trans service. “It is neither in the best interest of the individual patient to have their access to necessary health care limited during potential Air Force duties, nor is it in the best interest of the Air Force to have to provide the medical care that these individuals may require,” concluded a doctor testifying for the Air Force.

Yet the singling out of transgender identity and conduct makes it clear that little more than discomfort and stigma account for the current ban. The military allows service by all kinds of people with all kinds of health conditions that can be risker and costlier than the hurdles that transgender people typically face. What’s unique to the trans ban is that regulations deny service members, commanders, and military doctors the chance to demonstrate that a transgender person’s situation does not impose a burden on the military or any undue risk of medical complications or loss of duty time. The commission report carefully assesses the risks of surgery and hormone treatment that some transgender people undergo—and finds they are no higher than numerous medical conditions that don’t disqualify applicants. Individuals with Attention Deficit Hyperactivity Disorder, for instance, can serve so long as they can document certain performance capacities. People with mood or anxiety disorders, even those dependent on medication, can serve if they don’t need regular hospitalization and can perform their duties.

The report, in fact, is chock full of statistics on the levels of poor mental health the military will tolerate—while summarily banning trans people. According to the report, 12 percent of deployed service members suffered from a major depressive disorder in a 2012 analysis. In 2009, more than 15,000 troops were hospitalized for mental health disorders. In 2011, more than 100,000 were taking “prescribed antidepressants, narcotics, sedatives, antipsychotics and anti-anxiety drugs.” In the past decade, nearly 1 million service members were diagnosed with a mental disorder. These cases did not spur automatic discharge. In the early years of the Iraq and Afghanistan wars, 34 percent of applicants who failed psychiatric entrance tests were granted waivers to serve anyway.

The report also points out blatant inconsistencies in how the military treats medical conditions and risks depending on whether someone is transgender or not. Many gynecological conditions that may require hormone treatment face no military restrictions (unless they affect performance), while being transgender is barred regardless of medical needs or risks. About 1.4 percent of service members report using prescription anabolic steroids. Indeed, military regulations allow the use of hormones, so long as you’re not transgender, strongly suggesting that concerns about the risks and burdens of hormone treatment are simply a rationalization for transphobia. As does the fact that the military allows risky elective cosmetic surgery and grants convalescent leave for elective procedures including Botox, but regards medically necessary gender-confirming surgery for transgender people as disqualifying.

The broad medical latitude that the military grants to pretty much anyone who isn’t transgender raises serious suspicions about drawing the line at trans people who frequently do not pose any added health care risks to the force. In any event, as with DADT, the trans ban does not succeed at keeping trans people out of the military—an estimated 15,000 transgender people are currently serving—but it does function to closet people who are already living as the opposite gender and are sometimes in need of hormone treatment. Thus, while the military justifies the ban with claims that it’s not in the “best interest” of trans people to have their health care limited during deployment, it’s actually the ban itself that limits necessary health care by keeping currently serving trans members from getting the care they need.

Among the 15,000 transgender military members, there is a wide range of health care needs and psychological states, just as there is with the rest of the force. Today’s commission report provides ample reason to reconsider the current policy, which is clearly based on prejudice rather than sound medical (or any other) reasoning. Fortunately, unlike DADT, which was passed by Congress and required Congress or the courts to reverse it, the anti-trans regulations are confined to the Pentagon and can easily be removed by the Pentagon, something the commission report recommends. Given the military’s statement today that it plans no action, it’s a good thing the report reminds Washington that the Pentagon answers to the commander in chief.

The Shamelessness of Professor Mark Regnerus

Posted on March 6th, 2014 by Cindy Gao
 1 comment  

FRANK-Book-Pic-Medium-e1390314781757From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in Slate on March 4th.

The state of Michigan this week called Mark Regnerus to testify in defense of its ban on same-sex marriage. A sociologist at University of Texas at Austin, Regnerus gained notoriety after publishing a 2012 journal article arguing that children of same-sex parents faced substantial disadvantages compared to those of different-sex parents. The study catapulted him into conservative stardom, making him a credentialed mouthpiece for the claim that LGBTQ equality harms kids and can be blocked not because of anti-gay bias but out of noble concern for children and families.

Regnerus’ article made waves because it appeared to buck the trend of three decades of research showing kids with gay parents fare just as well as others. In his study and accompanying articles—including one Regnerus wrote for Slate—he touted his large, nationally representative sample size, which he said trumped the quality of research of the numerous prior studies finding that the kids are all right.

There’s one problem: Regnerus’ research doesn’t show what he says it does. Not remotely. No research ever has. Yet Regnerus, unchastened by a chorus of professional criticism correctly pointing out the obvious flaws in his work—including a formal reprimand in an audit assigned by the journal that published his piece—continues to make these groundless claims, knowing full well they are baseless. What’s worse, his role in the Michigan case is not just to oppose same-sex marriage but to argue against two-parent adoption, a position that works to keep children from having the stable, two-parent families conservatives have championed for decades. Blocking gay equality has totally trounced any alleged concern for children’s wellbeing.

Much has been written on Regnerus’ discredited study, so I’ll just summarize the single most obvious reason it’s bunk. Regnerus claims to have evaluated outcomes of children “of same-sex parents” and found results are “suboptimal” when compared to children reared by their biological parents. The study claims that, unlike other research that relies on smaller samples, “meaningful statistical inferences and interpretations can be drawn” from his data, and they show that “the optimal childrearing environment” is one where kids are raised by their biological parents.

The claim sounds reasonable enough. But since Regnerus never actually studied “children of same-sex parents,” as he claims, his conclusions are equivalent to calling a 747 the fastest plane without ever testing the Concorde. Kids raised in “planned” same-sex households—as opposed to kids from divorced families where one parent later came out—are still statistically rare, and out of his much-ballyhooed sample size of 3,000, Regnerus was unable to find a valid sample of kids who were actually reared by same-sex parents. Instead, all but two—yes, two—came from households originally led by a different-sex couple, usually the kids’ biological parents, that had suffered a family break-up, the one variable that’s most clearly known to raise risks for children. Since the kids in his data set who come from households with what he calls a “gay” or “lesbian” parent nearly all come from broken homes, his conclusions merely restated what everyone already knew: that instability raises risks for kids. But since Regnerus refers to these subjects as “children of same-sex parents,” which he didn’t actually examine, his study is nothing short of dishonest.

Regnerus’ research made waves for another reason. It had the massive weight of a religious conservative money and marketing machine behind it, and it quickly became clear that the study was only incidentally an academic product. After concerns mounted that the peer-review process might have been rushed, both the publishing journal and independent parties launched investigations. Two hundred social scientists signed a letter citing “serious concerns about the scholarly merit of this paper.” The journal that published the paper commissioned an audit assessing problems with the peer-review process. The audit found “serious flaws and distortions that were not simply ignored, but lauded” in the review process. It found blatant conflicts of interest in that “all three of the respondents to these papers have ties to the Witherspoon Institute,” the conservative religious organization that funded the study with roughly $700,000. Referring to the Regnerus study and a companion piece, the audit concluded that “neither paper should have been published.” In a separate interview with the Chronicle of Higher Education, Darren E. Sherkat, the designated reviewer, dismissed the entire study as “bullshit.”

Scholarship has to be funded by someone. But disclosures and transparency are supposed to let readers know this. Instead, Regnerus was caught lying about the role of conservative funding in his work. In the study, Regnerus writes that “the funding sources played no role at all in the design or conduct of the study, the analyses, the interpretations of the data, or in the preparation of this manuscript.” Yet in emails obtained using the Freedom of Information Act, Regnerus flatly contradicts this claim, showing Witherspoon was intimately involved with shaping the study. Regnerus wrote that he would like “more feedback” from Witherspoon’s president about the study’s “boundaries,” “optimal timelines,” and “hopes for what emerges from this project,” and he refers to a meeting hosted by the conservative Heritage Foundation, in which key supporters of Regnerus’ study discussed the need to generate research to help oppose gay marriage. According to live blog reports of today’s testimony, one of Regnerus’ emails asked what the study’s supporters “expect” from his research.

As Regnerus took the stand this week, the chair of UT Austin’s Sociology Department released a statement supporting Regnerus’ right to pursue research but strongly denouncing his views. The statement said his conclusions “do not reflect the views of the Sociology Department of The University of Texas at Austin” nor of the American Sociological Association, “which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed on conceptual and methodological grounds and that findings from Dr. Regnerus’ work have been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families.”

You’d think that the nationwide exposure and denunciation of intellectually dishonest, fundamentally flawed, agenda-driven scholarship that’s used to repeatedly smack children and parents in LGBT families would at least quiet the perpetrator for a bit. Instead, Regnerus is out giving talks and testifying in a deepening effort to ward off gay rights. (Recently he told an audience that gay equality would infect the “American imagination” with porn, promiscuity, and anal sex.

In his Michigan testimony, he makes exactly the same claims that he’s been making all along—the ones that are totally groundless based on his or any other available research: that straight households are the best settings for kids. His testimony includes the claim that, based on his research, “to be stably rooted in your married mother and father’s household is to foster the greatest chance at lifelong flourishing.” No, it doesn’t. It just doesn’t. Let’s be clear why: As a social scientist, you cannot claim something has superior outcomes to something else if you haven’t examined the something else. And, ideally, you shouldn’t be able to have your research repeatedly and correctly knocked down and then keep repeating the same conclusions with impunity.

It’s clear that Regnerus, a conservative Catholic who has acknowledged that his research is informed by his faith, conducts his studies in an effort to block gay marriage. It’s equally clear that anti-gay bias shapes his beliefs more than concern for kids and families. But let’s be clear exactly what Regnerus and his conservative comrades are opposing in the Michigan case. The Michigan lawsuit started out as (and remains) a second-parent adoption case, in which a lesbian couple is seeking legal parental ties between both women and the children they’re raising together. Such second-parent adoptions are common ways for the partner of a legal parent to become a legal co-parent to the child, giving that child the same parental protections others enjoy by virtue of biology or marriage. When straights do it, it’s just called “step-parent adoption.” When gays do it, they often get turned away at the door, victims either of explicitly anti-gay laws or laws that privilege married people.

In the Michigan case, the state denied the plaintiffs’ adoption request, interpreting state law to allow adoption only by married couples (same-sex marriage is barred in Michigan) or single individuals. While a single gay person can adopt, a same-sex couple cannot jointly adopt, the option that’s clearly in the best interest of children. After all, the whole purpose of family law is to establish and enforce legal ties that ensure that adults exercise their responsibilities and obligations to children and each other.

Thus Regnerus’ testimony is not just a defense of Michigan’s ban on gay marriage but of its ban on joint adoption. He joins the state in actively opposing giving children two parents—because he thinks that one is of the wrong sex—all in the name of caring for children.

What makes this all the more galling is that the Michigan couple is raising three special-needs children the women are trying to adopt from the foster care system. Research shows that gays and lesbians are more likely to adopt difficult-to-place children from foster care. It’s bad enough to claim, incorrectly, that straight couples make better homes for kids than gay couples. But it’s an outrage to support policy that could let kids languish in group homes rather than live with loving, capable parents. Indeed it’s a shocking goal for conservative Christians claiming to care about vulnerable children to be pursuing.

What’s equally maddening about the focus on how gay parents do is that none of it should matter. Research has long made clear that divorce, single parenthood, adoption, and poverty disadvantage kids. Where is the passionate advocacy for barring adoption, or parenthood by divorcés, single people, or poor people? Why are gay people the only ones subject to a litmus test to secure rights that everyone else gets by birth?

The research that does is exist is, contrary to claims by Regnerus and others, substantial and decisive. More than 100 studies of kids with gay parents failed to find any substantial disadvantages. Many of these had small sample sizes. But many were larger than Regnerus’ samples, and some indeed draw on large, nationally representative samples. Yet in his testimony this week, Regnerus dismissed them all, calling them premature and saying no conclusions could be drawn from such small sample sizes. It’s true that most of the studies did not use probability samples of same-sex households, but neither did Regnerus. And it defies logic to believe that none of these numerous studies would have found problems if they existed. But Regnerus has made it clear that research is not what shapes his views. In today’s testimony he acknowledged that even if research showed more definitively that kids of gay parents fared well, he would not change his position. He’s even written that “a stronger burden of proof” should be applied to same-sex parents than to households where kids are raised by their biological parents.

In the end, the use of parenting research to advocate against gay marriage is a giant leap anyway. Even if research found problems with same-sex parenting, it wouldn’t follow that gay marriage should be banned, since gay people will have kids no matter what. Far better to encourage family stability by letting them marry, the whole point of privileging marital ties. Regnerus and company seem to believe that if same-sex marriage and parenting is banned, LGBTQ families will just go away. It’s a delusion, and one with serious consequences for the kids of those families.

Indeed, as Regnerus and his colleagues parade their pseudoscience before the court and the world, the most harrowing part is fathoming the pain that children with gay parents must feel at hearing a constant barrage of denigrating words against their families. This, above all, is nothing less than shameless.

How the Mind Rationalizes Homophobia

Posted on February 21st, 2014 by Cindy Gao
 1 comment  

FRANK-Book-Pic-Medium-e1390314781757From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in The Atlantic on February 21st:

For gays and their allies—who now make up a majority of Americans — the past year has been a time of heartening election results and Supreme Court victories. But for the substantial minority of Americans who continue to oppose gay marriage, a siege mentality has taken hold. Some go so far as to argue that if gays were ever the victims of prejudice, the tables have now turned.

That’s the rationale behind a wave of new state bills. Last week Charles Macheers, a Republican state representative from Kansas, had these words to say in support of a bill he described as a “shield” against discrimination: “Discrimination is horrible. It’s hurtful … It has no place in civilized society, and that’s precisely why we’re moving this bill.” That bill died in the Senate, and similar bills in Idaho, South Dakota, and Tennessee have also stalled. But on Wednesday, the Arizona Senate passed a bill allowing “any individual, association, partnership, corporation, church, religious assembly or institution or other business organization” to refuse to serve people if they feel it violates their “free exercise of religion.” The bill’s sponsor, Republican Senator Steve Yarbrough, argued during a two-hour debate on the Senate floor that “this bill is not about allowing discrimination” but “about preventing discrimination against people who are clearly living out their faith.”

Ever since it became déclassé to be anti-gay—it’s hard to put a date on it, but some time around the start of this century—those who oppose equal treatment for gay people have made similar efforts to avoid appearing homophobic. They’ve insisted that they’re driven not by a prejudiced view of gay individuals, but by a larger concern about the negative impact gay equality could have on society. In Virginia, for example, the state banned gay marriage by arguing that allowing same-sex marriage would trigger “unforeseen legal and social consequences” and inflict “serious and harmful consequences to the social order.” (That ban was struck down last week.) It’s the same claim that opponents of openly gay military service made in support of “don’t ask, don’t tell”: The policy wasn’t about prejudice, but about concerns that gay troops would harm unit cohesion and the security of the nation. (Don’t Ask Don’t Tell ended without a hiccup in 2011.)

Meanwhile, opponents of gay marriage often cite (discredited) claims that same-sex parenthood harms children. Just this week, Mitt Romney struggled to explain why children of same-sex couples in Massachusetts, the state he governed, seem to be thriving. Ultimately, Romney said it would take “generations” for his doomsday predictions to come true.

A similar line of reasoning could be found after Missouri defensive lineman Michael Sam announced he was gay. The NFL hopeful earned a standing ovation at a Missouri basketball game, yet set off a tense debate among older NFL executives and coaches. In anonymous statements to the press, they predicted a chaotic reaction by others while disavowing prejudice themselves.

It’s a reflection of great progress by LGBT groups that hardly anyone wants to be associated with the term “homophobic.” In fact, last year, the Associated Press revised its stylebook to discontinue use of that word, which connotes a visceral fear of homosexuality rather than rational disapproval of its effects on society. The AP’s Deputy Standards Editor Dave Minthorn told Politico that the word “seems inaccurate. Instead, we would use something more neutral: anti-gay, or some such.” Even gay writers like Brandon Ambrosino—who recently published an Atlantic piece titled “Being Against Gay Marriage Doesn’t Make You a Homophobe”—have argued that opposing equal rights does not belie inherent fear of homosexuality.

The term “homophobia” was coined in the 1970s by George Weinberg, a clinical psychologist who noticed his colleagues’ irrational and visceral feelings toward many gay people. “I realized this thing is deeply emotional and is based on fear,” he once told me, and went on to define “homophobia” as dread or fear around gay people. In order to be defined as homophobic, you don’t have to want to bash a gay person’s head in; it’s enough to simply have some level of emotional discomfort around homosexuality.

It’s a term that’s still too useful to abandon. Social psychologists have mounds of research on the role that emotions like fear and repugnance play in distorting our assessments of reality—that is, in creating bias. For starters, they’ve found that conscious reasoning is a much newer human capacity—evolutionarily—than gut feeling, and that the brain often deploys reasoned thought to rationalize feelings we already have. Rather than justifying a position—like, say, opposing gay marriage—based on how we actually feel, we often dream up non-existent dangers. Indeed, scientists have shown that our brains developed fight-or-flight mechanisms to help us avoid danger before our rational, deliberative machinery even perceives the threat.

Interestingly, researchers at Cornell and Yale (including Atlantic contributor Paul Bloom) have also shown that conservatives, on average, experience stronger levels of disgust than liberals do, and that an overall sensitivity to disgust correlates with anti-gay sentiment. “Our data show that disgust and politics are linked most strongly for issues of purity, such as towards homosexuality,” the authors explain.

Even more strikingly, researchers have found that people with negative views of gay people are prone to overstate the risks that gay rights pose. In one study, psychologists at Berkeley and Carnegie Mellon University measured subjects’ emotional dispositions and their risk preferences, giving them separate scores for each. When the two sets of variables were correlated, they found that “fearful people expressed pessimistic risk estimates and risk-averse choices.”

It’s no surprise that fearful people would be risk-averse. But this research showed not just that such people avoid risk but that they exaggerate it—in consistent and predictable ways. Researchers concluded that certain emotions, such as fear, activate “a predisposition to appraise future events in line with” whatever the person dreaded to begin with. In other words, fear makes people lose perspective on what the odds of danger really are. These visceral feelings often bypass consciousness, so we’re not even aware of what we’re feeling.

The psychologist Jonathan Haidt describes the amusing rationalizations his research subjects often came up with to justify moralistic positions. For instance, Haidt asked subjects if it was morally wrong to shred a flag while in your home and flush the pieces down the toilet. Those who said it was wrong couldn’t readily explain why. When pressed, one said the flag could clog the toilet.

To take a more common example, people generally disapprove of consensual sex between adult siblings but they can’t say why it’s wrong. Psychologists refer to such feelings as “moral intuitions”—unconscious judgments that stem from emotional responses or learned associations, and are often related to disgust. Haidt says people consult their feelings to help them decide what to believe. This sounds fair enough at first blush, but we’re not just talking about values here. Moral intuitions change the way people see the world around them. When your perceptions of reality are refracted through strong feelings, that’s a recipe for bias. It explains the “harms” arguments about gay rights, and why they persist even though there’s no factual information to back them up.

Technology now allows scientists to actually look inside the brain to see how bias works. During the 2004 U.S. presidential campaign, researchers put subjects in MRI scanners and fed them quotes from their preferred candidates. When subjects heard quotes that contradicted their candidate’s position, they gave often-exaggerated explanations for the contradictions. When researchers looked at which regions of the brain were activated by this rationalization process, they found that it had taken place in the zones that govern emotion, not deliberative reasoning.

Several scholars have applied this research specifically to gay rights. Using a process called Implicit Association Tests, Yale’s Paul Bloom and his colleagues documented a gap between how people say they feel about gays and how they actually feel. Researchers at the Yale Cultural Cognition Project dug deeper, exploring the role of rationalizations against same-sex parenting. Most opponents of gay parenting claimed their position was based on concern for the well-being of children raised by gay couples. But when given convincing evidence that kids with gay parents fare as well as others, very few changed their minds. Their brains sought to avoid the cognitive dissonance of holding beliefs that conflicted with their emotions.

This research doesn’t prove, indisputably, that all opponents of gay rights are actually harboring feelings of disgust toward gay people—human feelings are more complicated than that. But it strongly suggests it, especially when you consider the undeniable pattern of predicting harms that never happen as a justification for blocking equality.

In one of the few areas of life that allows for true, rational deliberation—the courtroom—this is exactly what’s being found. Recent rulings striking down gay marriage bans have found that those laws were rooted in prejudice, making them impermissible under the U.S. Constitution. The Supreme Court reached the same conclusion last June when it struck down the federal Defense of Marriage Act. The law, said the Court, was “motived by an improper animus” and its purpose was to impose “a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”

For those who don’t feel disgusted by homosexuality, it’s not hard to see that often-cited fears—that it will trample religious freedom, cause distractions in the lockerroom, harm kids and families—have no empirical basis. But those who believe these things may not realize these arguments are smokescreens for irrational bias. “Prejudice,” wrote Justice Anthony Kennedy in a 2001 ruling, “rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”

This profound insight echoes the research in reminding us how universal bias is. All humans suffer from it in one form or another, and recognizing this can help shed light on those who use it as a basis for anti-gay lawmaking. But understanding these rationalizations—both the predictions of harm, and the insistence that prejudice is not a factor—is different from accepting them at face value. In fact, as states like Arizona struggle to find logical explanations for anti-gay laws, it’s clearer than ever that bias, and not reason, is the motivating force behind them.

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From Center for Gender & Sexuality Law Professor Patricia Williams, originally published in The Nation on February 5th, 2014.

In late January, Kansas State Senator Mary Pilcher-Cook introduced a bill that would have criminalized the use of surrogate contracts in pregnancy and imposed a $10,000 fine and up to a year in jail for anyone participating in such a transaction. The effort was quickly abandoned amid a storm that included pro-lifers battling pro-lifers, invocations of God having hired the Virgin Mary as a surrogate, sonograms performed live in a senate committee and a host of other risible posturings.

If the bill hadn’t been body-slammed into the dust by some of the sillier statements of its chief proponent (Pilcher-Cook asserted, for example, that surrogacy creates children who are “not going to have either a biological mother, biological father or both”), the discussion might have garnered more attention. The laws regarding surrogacy are a jumble of inconsistent public policies, free-market contracts, civil interventions and criminal sanctions. However incoherent the Kansas attempt, there’s a serious question as to whether individually drafted private contracts are sufficient to settle questions of intended parenthood, or if the “best interests of the child” standards governing custody, adoption and other realms of family law should have greater sway.

Some states have long found surrogate contracts not in the public interest, and a few already criminalize them. Many laws were passed in the early days of ovum transplantation and have not been adequately reviewed in the decades since. Hence, what laws are in place have not nearly kept up with the explosive technological revolution in assisted reproduction. Even in states that purport to regulate, it is largely doctors and IVF technicians who call the shots as to what’s acceptable in the realm of surrogacy and reproductive techniques.

There is deep conceptual confusion, as well as outright conflict, about what is at stake in surrogacy. Employing a woman—often a poor or minority woman in strapped circumstances—to bear one’s child is generally extolled in the language of gift, donation, altruism, joy, hope, sharing and religiously inflected fruitfulness. But it is, in actual practice, a mostly commercial transaction involving issues of pregnancy as labor, childbirth as priced, equality of bargaining power, exploitation of bodies and fairness of terms.

The fact that surrogacy is dominantly framed by the market also vexes the question of how we figure the reproductive freedom of women who simultaneously obligate themselves as so-called “containers.” Can a woman be contractually bound—forced, in other words—to have an abortion if developmental abnormalities are detected? And what happens if she enters a contract that fails to address the risk of complications that threaten her health but not that of the fetus? Would she be forced to carry the pregnancy to term?

We’ve recently seen the emotionally wrenching legal mess that ensued when the State of Texas attempted to forcibly keep Marlise Muñoz, a woman who was indisputably brain-dead, on life support so as to sustain her 14-week-old embryo for six more months. What if Muñoz had been a surrogate? If the language of contract imagines her body to be a mere container, would there have been more or less suasion in the attempt to hook up her hired-out body, already imagined without a brain, to pumps and bellows like a fetal factory? Ultimately, the court allowed Muñoz to be taken off life support, but the battle highlights implicit issues of dignity, bodily integrity and public health in surrogacy arrangements exceeding the sphere of private contract.

That said, Senator Pilcher-Cook’s proposal was motivated by a more familiar conceptual divide: that of when the biological processes set in motion by the fertilization of a human egg will be conferred legal standing as a “person.” Pilcher-Cook is among those who believe that full personhood is sparked from the moment of conception in any and all pluripotent cells. She assigns agency and a weirdly disembodied vitality even to embryos stashed in laboratory freezers because the “value of a human being doesn’t depend on their location.” While one wishes to respect such a comprehensive notion of humanity, to reinforce such a belief with criminalizing consequence seems unduly inhumane.

Frequently passed over in the debate about surrogacy is the ever-expanding litter of parties implicated as potential parents: egg donor, sperm donor, “intended” (or purchasing) parent or parents, gestational carrier and IVF inseminator (usually a medic or technician). In the emerging science of ooplasmic transplantation, moreover—where ova are manipulated to alter mitochondrial lines—children may be born with the genetic ingredients of two mothers and one father. This is deservedly controversial among bioethicists, because it directly tinkers with the human germ line, something that violates conventions of medical and social science practice. As this implies, whatever’s the matter with Kansas is most emphatically no longer a local question. Indeed, the ethics of cloning, of eugenic racial/cultural/aesthetic superiority and of desire for self-immortalization hovers at the edge of many of these discussions.

But bottom line, to try to criminalize surrogacy is a bit like trying to criminalize contraception or abortion, in that it comes too close to criminalizing sexuality, libido, intimacy. There is a complex of contentious, theologically bewildering dilemmas we are never going to solve with bright-lined legalisms. In a moment as unprecedentedly besieged by biological and technological revolution as ours, we should resist that first gesture toward criminalizing all who do not adhere to the way things have always been. By the same token, this very expensive technology should not blind us to the multiple ways we might otherwise make family, particularly if we relinquish the conceit that all our children must “look like us.” There are, after all, well over a million homeless children in the United States; at least 650,000 passed through foster care in 2012, and at least 120,000 are waiting for adoption. That much is truly criminal.


From Center for Gender and Sexuality Law Sabbatical Visiting Scholar Michele Goodwin, originally published in Slate on January 31st: 

In Texas, hospital officials refused for over two months to remove 33-year-old Marlise Muñoz, who was declared brain dead, from life support because of her pregnancy. A court ruling on Friday ordered John Peter Smith Hospital to take Munoz off life support in accordance with the family’s wishes, and her body was disconnected from machines on Sunday, Jan. 26.

The tragedy of Muñoz’s case is that it fits a terrible pattern of state interventions in women’s pregnancies.

In July 2013, Alicia Beltran was arrested, shackled and confined by court order to a drug treatment center for 78 days after she refused a doctor’s orders to take an opiate blocker. Beltran had confided to medical staff at a prenatal checkup that she had battled addiction to opiates in the past, but claimed she had overcome drug dependency and had recently taken a single Vicodin tablet before becoming aware of her pregnancy.

Christine Taylor was arrested in 2010 for falling down a set of stairs in her Iowa home. Hospital staff reported Taylor to police after interpreting the fall to fit within the state statute criminalizing attempted feticide.

Melissa Rowland’s reluctance to submit to an immediate cesarean section prompted medical personnel in Utah to request her arrest. She was subsequently charged with murder for the stillbirth of one of her fetuses.

In Florida, a state court authorized Samantha Burton’s involuntary confinement because she refused bedrest against her physician’s recommendation. Several days after her hospital incarceration, she suffered a miscarriage.

As these examples illustrate, nurses and doctors in these cases often act as interpreters of state law, although most lack any legal training. Increasingly, state statutes are the primary means by which legal norms affecting low-income pregnant women’s autonomy, privacy and liberty are introduced and shaped. Arrests, forced bedrest, compelled cesarean operations, and civil incarcerations imposed against pregnant women in Florida, Iowa, Indiana, Mississippi, South Carolina, Utah, Wisconsin, New Mexico, Alabama, and Texas scratch the surface of a broad attack on the reproductive liberty of pregnant women.

A range of laws, including feticide statutes enacted in 38 states, personhood legislation designating the unborn as persons for purposes of criminal prosecutions, fetal endangerment regulations, and laws that require pregnant women to be kept on life support for fetal benefit place pregnant women in opposition not only to their fetuses, but also to their doctors.

These laws fit a pattern of politically motivated legislation that misuses pregnant women’s medical crises as opportunities to legislate about reproduction. This type of legislation conflicts with pregnant women’s fundamental constitutional interests, including autonomy, liberty and privacy. State legislation forcing a pregnant woman to carry a fetus to term directly conflicts with the constitutional precedent established in Roe v. Wade and interferes with a fundamental constitutional principle that guarantees each individual liberty.

More frequently, hospitals and doctors are called upon to serve as interpreters of state law, as in Muñoz’s case, where hospital officials believed they were required to keep the pregnant woman on life support throughout the remainder of her pregnancy or until the fetus could function on its own, which would have been several months. Instead of preparing to remove Muñoz from life support as requested by her husband and her parents, hospital officials refused, citing a Texas law that prohibits healthcare providers from ending life support to pregnant patients.

Texas is one of more than two dozen states prohibiting removing life support from a pregnant woman. The Texas law is among the strictest in the nation. Other states, including Texas, Kentucky, South Carolina, Utah, and Wisconsin, “automatically invalidate a woman’s advance directive if she is pregnant.” A study published by the Center for Women Policy Studies explains that these laws “are the most restrictive of pregnancy exclusion” legislation, because regardless of fetal viability or the length of pregnancy, the laws require that a pregnant woman must “remain on life sustaining treatment until she gives birth.”

Muñoz’s case is not unfamiliar to legal scholars. Years before, Angela Carder, a pregnant cancer patient in Washington, DC was refused chemotherapy due to her pregnancy. Doctors in that case sought a court order to deny the urgently needed medical treatment, because Carder was pregnant and physicians feared the death of the fetus. In that case, a federal judge permitted doctors to perform a forced cesarean delivery. The fetus died two hours later, and Carder died two days later.

District Court Judge R. H. Wallace Jr.’s order to pronounce Marlise Muñoz dead is a symbolic victory for her family. As long as fetal protection laws exist, medical personnel will inevitably make mistakes causing pregnant women and their families significant pain and anxiety.

FRANK-Book-Pic-Medium-e1390314781757 From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in Slate on January 20th:

My Bubbie and Zada used to tell me my gentile friends wouldn’t hide me in another Holocaust. I like to think they were wrong (and that there won’t be another Holocaust). But that won’t stop me from invoking their wise spirit with a warning to conservative pundit Mary Matalin’s gay friends: She won’t hide you in a gay Holocaust.

The famously crabby GOP strategist shrugged off a growing human-rights crisis in Russia on Sunday with a glib dismissal of even discussing the anti-gay policy and violence there, just as the upcoming Sochi Olympic Games have finally brought much-needed mainstream media coverage to the problem. “I’m so sick of sports and politics,” she complained in response to questions from George Stephanopoulos, host of ABC’s This Week. Her bottom line? “All of my gay friends think [Putin] looks so buff in his shirtless publicity photos.” Mustering the ghosts of “Don’t Ask, Don’t Tell,” she asked about Putin, “Why is he even talking about this?” even though the obvious answer was that Putin was talking about it because Stephanopoulos had, quite properly, asked him about it, and later asked her too.

It was difficult to make out if Matalin was quoting someone else, but the intent of her comments was clear, and despicable: All this talk of gay suffering is boring, unimportant, and makes lots of us feel icky (the gay part, not the fact that they’re being persecuted), and the only response is not to clearly condemn it but to vomit out a gay stereotype such as the one about how gays only care about how men look shirtless—indeed, they can only see flesh and muscle even when a major country is unleashing a concerted campaign to vilify and dehumanize their people for political gain, giving the green light to mob violence.

This sort of response illustrates precisely why the head-in-the-sand, “don’t ask, don’t tell” approach can be dangerous and even deadly. The developments in Russia that Matalin was laughing off were a string of provisions passed last year—and their violent consequences—that punishes promotion or even discussion of homosexuality in a broadly defined set of scenarios. No, what’s happening there is not the Holocaust. But many observers have noted the eerie influence of the Nazi playbook, including the singling out of an unpopular minority for dehumanizing treatment, a campaign of terror unleashed by punitive laws and tough talk, and an autocratic leader’s use of blatant scapegoating to consolidate power and distract voters from his failed policies. And just as with America’s “Don’t Ask, Don’t Tell” policy, the result of the law’s passage was an uptick in violence and harassment against gays and lesbians.

One of the most pernicious aspects of the Russian campaign against sexual minorities also has eerie echoes of “Don’t Ask, Don’t Tell”: A law singles out a despised group for punitive treatment and then prohibits that group from speaking up to defend itself. That’s what makes Matalin’s dismissal of a journalist’s effort to ask pointed questions about the matter so maddening. And the taboo against even talking about homosexuality in polite company is a pattern all too familiar to American conservatism. Indeed, Matalin was not alone in in her dismissal of anti-gay persecution as unimportant. On the very same panel yesterday, conservative columnist Peggy Noonan exhibited clear relief when Stephanopoulos turned the focus away from gays and back to terrorism, saying “Oh, yes, that of course is the great issue that will overwhelm what we have been talking about”—as if she couldn’t stand to hear or utter a single word about something as small and awkward as gay suffering.

The taboo against even discussing homosexuality—particularly if the silence enables violence—provides an embarrassing link between American conservatism and Russian autocracy that must be called out for what it is: an abdication of the kind of moral responsibility that conservatives used to (and still try to) claim as their mantle.

Just so we’re absolutely clear on what the conservatives on the panel found too small and laughable to talk about: Laws passed last year in Russia ban any speech or writing “aimed at forming non-traditional sexual orientations, the attraction of non-traditional sexual relations, distorted conceptions of the social equality of traditional and non-traditional sexual relations among minors, or imposing information on non-traditional sexual relations which evoke interest in these kinds of relations.” As the bill was being debated, gay protesters were attacked by a mob of anti-gay thugs and then detained by police. Around the same time, a 23-year-old Russian was brutally beaten and murdered after coming out to “friends,” his genitals and head smashed with beer bottles and rocks, his clothing set ablaze.

As a result of the law, tourists have been arrested just for discussing homosexuality. In the months after its passage, the Guardian reported an upsurge in anti-gay violence across the country. Hate groups have lured gay people to unsafe areas where they are violated and humiliated—sometimes on camera—including having urine thrown on them, a historic mark of the kinds of dehumanizing campaigns practiced by the Nazis. Last fall, two men went on a shooting spree in a gay club in Moscow. The next week, the same club was attacked with poison gas.

Russian lawmakers have loudly accused gay people of threatening the country’s birthrate and proposed they be purged from government jobs, forced to get medical treatment, and even banned from the country (and at least two journalists have been fired for being gay). Putin himself, who insists that the law “does not hurt anyone” and that gays “are not discriminated against in any way” in Russia said last week that gay people would be safe at the Olympics next month but to “just leave kids alone please,” a wholly unveiled reference to gays being pedophiles.

The result of what’s clearly an official effort to villainize gay people has been a collective experience of terror, secrecy, shame, silence, and in some cases expatriation. And the Russian parliament, which also passed a law banning adoption of Russian children to gay foreigners, is now considering whether to pass additional laws that would strip Russians of their parenting rights if they are found to be gay.

This is what Mary Matalin tried to laugh off on American television yesterday with a crude and unfunny joke. Putin has promised that “none of our guests will have any problems” at the Olympics because of the law. That’s not terribly comforting, given the impossibility of quelling mob violence historically spurred by these kinds of hate campaigns. But it’s easy enough to suspend enforcement of a law when all the world is watching; the bigger problem is what happens after everyone’s gone home and the cameras are shut off. To Mary Matalin’s gay friends, if you exist, please help her understand just why it’s important to talk about a growing national campaign to persecute a despised minority in Europe. Meanwhile, please don’t run to Mary in a pinch.

Call for Interns for LGBT Research Project

Posted on January 2nd, 2014 by Cindy Gao
 1 comment  

Nathaniel Frank, an author and currently a Visiting Scholar at Columbia Law’s Center for Gender and Sexuality Law, is seeking part-time interns to work 5-10 hours per week (flexible) as research assistants on an exciting new LGBT research project being launched at Columbia Law School. A project description is below. The work, which could begin over winter break or in January, will consist chiefly of pulling together scholarly studies on LGBT research, specifically same-sex parenting and LGBT youth and health issues, and creating research briefs and abstracts for the studies. Nathaniel is author of “Unfriendly Fire,” the 2009 book about “don’t ask, don’t tell” that helped repeal the policy. While the preliminary work is unpaid, the positions offer the opportunity for future paid work and participation in the start-up project described below.

Please email a cover letter and CV to

“What We Know” Project Summary

The “What We Know” public policy research portal marks a path-breaking convergence of scholarship, public policy and new media communications. Focusing on several pressing public policy debates, the portal brings together in one place the preponderance of scholarly evidence that informs these debates so policymakers, journalists, researchers and the public can make truly informed decisions about what policies and positions best serve the public interest.

Part online library, part communications outreach apparatus, the project is designed to show, rather than tell, the public what the scholarly consensus is on a given issue by using modern technology to make bulk-information processing more viable and realistic for non-experts. The portal does not produce original research; instead it aggregates existing studies based on their quality and relevance to a particular policy question, summarizes the studies for quick reference, and provides easy links to the research (or abstracts) so readers can examine them for themselves.

The first phase focuses on research on LGBT equality, specifically gay parenting and marriage, youth challenges, and physical and mental health issues. Future phases may include additional policy issues such as economic growth, gun safety, education reform and possibly climate change, among others. The goal is to shape public policy in a “long game” that uses research-based messages to influence public opinion, law, and quality of life, particularly for vulnerable populations.



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