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I’m a member of the Human Rights Campaign, one of the biggest LGBT equality groups in the United States, and I get their email blasts that are supposed to keep us informed about how they’re spending our money, what kind of legalized discrimination they’re fighting against, and where some of the most egregious abuses are occurring.

There are a couple things, one good, one bad, one somewhat questionable thing, from the most recent email blast I want to bring up, so I’ll just dive right in.

First, the good: Rep. Richard Floyd, a Republican from Chattanooga, TN, was trying to get a law passed that would make it a misdemeanor offense (punishable with a $50 fine) to use a bathroom other than the one assigned for your birth sex. I’ve written at length about these so-called bathroom bills in the past, so I don’t want to rehash what I’ve already said. I am gratified to see, though, that unlike previous situations, the comments on the article at the Chattanooga Times Free Press are mostly sensible. The worst part of the whole thing, in fact, are Rep. Floyd’s remarks. If a teenager is dressed as a woman, and presumably trying on women’s clothing, it’s quite possible you’re dealing with someone who’s trans. Granted, there are some transgender teenagers who are perfectly happy with who they are and I think that’s awesome. In such cases, more power to them. Let’s just get out of their way. But what if that child, and I’m projecting a bit based on my own experience, is confused, full of self-loathing and needs more than a little help? Is charging that individual with a crime really the best way to handle the situation?

If said teenager is trying to use the women’s dressing room, I think the appropriate response here, and the response that seems quite lacking from most Republicans, is one of compassion. Rep Floyd, on the other hand, seems to think that “stomp[ing] a mudhole in him and then stomp[ing] him dry,” is the appropriate response. And they wonder why there’s so little support for the Religious Right/Moral Majority of my parents’ generation…

The good news, though, is that a member of the Tennessee state Senate, one Bo Watson, who had originally sponsored the bill, has done an appropriate about face and effectively tabled the measure, citing the more pressing issues that face our nation and his state as more deserving of the legislature’s time and effort. I don’t think this is the end of the situation in Tennessee, but at least it effectively neutralizes the threat.

The bad news I mentioned above is that in Oklahoma, they’re considering codifying a ban on gays and lesbians in the state’s National Guard. According to HRC, the state would be allowed to ask about the sexual orientation of service members. If there’s one thing the repeal of DADT has taught me, it’s that none of the dire predictions by the fearmongering Republicans came to pass. Having gay and lesbian service members only makes our military better and stronger– if you want to sign the petition to get this ridiculous measure tabled, you can do so through the HRC’s website, here.

The lukewarm news comes by way of Secretary of Health and Human Services, Kathleen Sebelius, who recently released her remarks on how the department is improving the lives of LGBT Americans. I’ve seen and heard a lot of good things about the Affordable Care Act (ACA) and think that once again, the Republicans are screaming about the falling sky on bright, sunny days. On the downside, I have a major question about the ACA, and how Secretary Sebelius thinks it improves the lives of LGBT Americans, or at least, transgender Americans (that’s what you’re here for, right? Trans issues?).

Specifically, while we might all have the opportunity to obtain health insurance, with no exclusions for prior or current illnesses, I haven’t seen anything that addresses the refusal of Medicaid, state insurance or private insurers to cover transition related care. When abortion and birth control are things that our legislators are arguing about covering with public money, I can’t see how treatment related to transition, even when medically necessary, is going to be covered. Trans people historically get thrown under the bus, our interests sacrificed in order to make gains for other groups that represent more people (does anyone remember the trans inclusive ENDA and how quickly the trans part of that got excised back in 2007?). Transition related care can and probably will still be excluded from coverage, leaving us to try and find ways to cover the exorbitant costs on our own. While the ACA is a good step forward, I think it’s a bit silly to act as though it’s doing us a lot of favors. While we may be able to obtain insurance, the most expensive aspects of our care will still be excluded from coverage and that isn’t good enough.

Since things aren’t good enough, please consider going to the HRC website and finding ways to support the cause of LGBT equality, writing to your Congress critters and asking them to support the repeal of DOMA and to support a trans-inclusive ENDA. If enough of us are interested in the cause of social justice, we can’t be ignored.

While there are pressing issues facing our country, including a bad economy, I don’t believe that fixing the economy is separate from fixing problems of inequality for the LGBT community: repealing DOMA and passing a trans-inclusive ENDA and improving healthcare for LGBT Americans are all things that help people, real people like me, like your friends and family, save money on our taxes, save money on our necessary healthcare and ensure that the jobs we have are jobs we don’t have to worry about losing because of who we are.

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All the talk on the internet about the Prop 8 trial here in California got me thinking about intolerance. Some people talk about how LGBT people want to “re-define marriage” as though we’re interested in destroying the very institution that we want so badly to be a part of. We’re accused of being intolerant towards the religious views of other people, or as my brother calls it being intolerant of intolerance. That’s a disingenuous turn of phrase, because it tries to lump all these disparate behaviors under a single umbrella and brand them intolerant. It tries to make everyone appear intolerant because the prop 8 supporters believe we’re all intolerant of something*, so they try and paint LGBT people as being intolerant of religion.

They try to paint us as hypocrites in order to level the playing field—if everyone in the fight is a hypocrite, opposed to the rights of their opponents, then that makes LGBT people seem less like the right side of history and more like just another special interest group.

The appropriate deconstruction of the intolerance of intolerance starts with first identifying ourselves: are we hypocrites? The LGBT community is trying to resolve the dispute between moral conflict and liberty by erring on the side of LGBTs. In that sense, we are requesting to place some restrictions on religious belief and practice—that a justice of the peace could not decline to marry a homosexual couple even if it offended their conscience. But does that make us hypocrites?

To answer, I’m going to crib from a post by someone else from somewhere else (Special thanks for all involved in this quote’s chain of custody. You know who you are). Glaucus at Ars Technica recently said:

I propose the notion of higher order intolerance. First order intolerance consists of rejecting people for their attribute or traits. Second order intolerance is rejecting people based on their first-order intolerance of others. So, that line about “where the intolerant aren’t tolerated” is really a statement about 2nd order intolerance towards the 1st order intolerant.

If we look at our behavior that’s being called intolerant, it falls under Glaucus’ second order: in other words we are intolerant of certain actions, but not necessarily the beliefs that inform those actions. As evidence, let me offer up the text of any anti-discrimination law that says regardless of race, religion, creed, national origin, sexual orientation, and gender identity or expression. That law unequivocally grants the same protections to religious people that it does to gay people. If you can’t be fired for being gay, you can’t be fired for being a Christian, either.

But antidiscrimination laws don’t touch on the issues at hand in Peter Vadala’s lawsuit against Brookstone. He lost his job for expressing anti-gay sentiment on the job, which is a good bit different than losing one’s job because of being a Christian. An out and proud gay person could have just as much difficulty on the job were they outspoken and offensive enough. Indiscriminately blasting religion in front of religious co-workers should earn one as quick a trip to the HR penalty box as Vadala received for expressing anti-gay sentiment.

I am not intolerant of Vadala’s opinion. He’s entitled to it. But the line is drawn and crossed when that opinion gets expressed to a co-worker and that person feels uncomfortable or threatened or demeaned. That’s the difference: Vadala was criticizing the action of the co-worker marrying her same sex partner which looks like second order intolerance on its face. What he’s really attacking however, is the underlying relationship and attraction that might lead two women to get married in the first place, which is an attribute, and thus first order intolerance.

The fundamental difference then, between the religious right and the LGBT community seems to be a conflict between actions and beliefs, deeds and words. When the LGBT community speaks out against discriminatory actions directed at LGBT people, the religious right decries that criticism as hypocritical intolerance.

I’ve mentioned this before, but I want to expand on my brother’s refusal to accept me as his sister. When I try to tell him that his behavior towards me is intolerant, he tries to turn it around on me. At one point in a conversation last year, he said to me “What gives you the right to take away my brother and change everything I know?” The answer, aside from what I said (“Because I’m a transsexual”) is really “Because I transitioned.” It’s the action, the thing that I did, that really made me different.

My protestations affirming my gender identity or his protestations against don’t have much impact on the discussion. I transitioned, and as a result I have changed**. When I talk to my brother though, it’s what he says, in his eyes, that really matters. He may not let me in his house, but as long as he reaffirms his love for me, in his mind, that makes it all okay. My experience is drastically different than his. What I see is that he claims one thing, while his actions are saying something completely contradictory. This is a difference between us that runs very deep, it goes deeper than religion and hits at the very core of who we are as individuals***.

But religion does factor into this. The differences between us, I believe, could most easily be summed up as a conflict between faith and works. My brother places a lot of emphasis on what he says, which indicates what he believes about his faith. I place a lot of emphasis on treating people with dignity and respect, on letting my actions speak for my faith. The lines between us get crossed because I don’t understand his words without the context of consistent action: I don’t feel loved by my brother because the way he treats me is the antithesis of loving one’s neighbor regardless of what he might say, or how he might try to make it sound like he’s doing this for my own good.

He doesn’t understand me because I emphasize what I do, how I want to be treated, and how I might treat him, while completely disagreeing with and rejecting his words, beliefs, and faith interpretation. To him, that feels like I’m being intolerant of his beliefs when what I’m really expressing is intolerance for his actions. He is free to believe whatever he wants about me, but not to treat me in a way that is void of dignity and respect for my identity.

He thinks that I’m being unfair, that I’m lumping him in with a bunch of people that he’s not necessarily similar to and he’s right about that, at least to the extent that I categorize him based on his actions. The reason I do that is because the things that he says and does are hurtful to me, and are similar to other hurtful experiences I’ve had. I am emotionally distancing myself from a relationship that doesn’t have any affirmative value because divorcing myself from that hurt is better for me at this point.

I’ve tried to explain this to him, and tried to get him to understand. I talk about how we go around in circles, but the truth is that we’ve done no such thing. I’ve gone around in circles with others and I’ve seen how so much of that is just so much wasted time and logical fallacies and differences in Bible interpretation. As the kids say, “You can’t reason someone out of a position that they didn’t reason themselves into in the first place.” With my brother,we’ve discussed how he views my transition, that he thinks transition is the wrong decision and at this point, I can’t talk to him anymore.

The problem with naysayers like my brother is that they don’t have alternative treatments to offer, they don’t have any special insight into my condition, and the truth is that they just don’t know what it’s like to have a cure in reach and have people tell you that it’s a morally compromised decision to take hold of it. Before the description was removed from the title, Gender Identity Disorder used to be referred to as Gender Dysphoria, literally a depression caused by one’s gender. This isn’t some bullshit that trans people make up so we can mutilate ourselves. Those feelings and the depression are real, and when things are at their worst, the finger waggers aren’t the ones that deal with the pieces that we break into. As far as I’m concerned, trying to make people do what you want and absenting yourself the rest of the time isn’t an attempt to do the right thing or help someone avoid a grievous mistake. It’s an attempt to be a watchman, except there’s none of the action you might expect. In this case, the watchman blows the trumpet to cover his own ass and then, rather than helping people get to shelter, or rallying the army, he runs and hides, his duty having been fulfilled. While I might respect that the watchman at least stands by the conviction to speak the truth, I don’t respect the further actions that are informed by those beliefs. In other words, I don’t believe our obligation to others ends once we have sounded the alarm.

To people that fancy themselves modern day prophets I reply that it’s not my place to be the punching bag for other people or their religious beliefs. Transition was a hard thing, and more stressful than I would have liked. But I made it, my job is still here, my wife is still here, my home is still here. But it hurt me. I’ve been hurt. And now I feel like I want some peace. If people don’t want to accept me as I am, then I don’t want to go through the emotional wringer for them. That they may be unaware that they’re being rude doesn’t absolve them of their guilt. The things they say hurt and I’m not interested in being hurt anymore, for any reason.

Late last year, I asked Christine to talk to my parents. I’d had enough of them, I didn’t want to deal with the pain, and I’d have given anything for it to stop, even if it meant never seeing them again. The day she called, Christine phoned me, crying. It took several minutes for both of us to calm down enough for her message to come out cleanly—my parents were acting completely different.

They were apologetic, sorrowful and desirous to make amends with us. I was flummoxed. Over the last few weeks, I’ve seen them a few times, and while I’m not certain that this represents a certain change on their part, they are treating me like a human being again. I’m not certain how they really feel about my transition, but they’ve said that they realize that they have no place to judge my actions. It’s short of a statement of full and complete acceptance, but it’s a lot better than the position we were in for most of last year. Assuming that the visceral reaction, the internal belief of my parents hasn’t changed, then we’re agreeing to disagree. If I am a sinner, then they are succeeding at loving me while hating my sin and that makes them one of the best examples of Christianity that I’ve seen in a long time.

I think if you want people to be tolerant of your views, then you have to be tolerant of theirs. That’s something that the religious right fails to do, something that only a very few people are able to get right. That is where second order intolerance comes in: when the majority fail to get it right, the minority appeal to the courts to overturn the tyranny. That’s not disrespectful of the beliefs of people who think that being gay is a sin, it’s an attempt to re-establish the dignity and worth of every human being, regardless of race, creed, national origin, sexual orientation, disability, and gender identity, to exhibit a little second order intolerance. In short, by challenging the constitutionality of Prop 8, we are decrying the way we are treated, not what other people believe. While the supporters of Prop 8 are defending their first order intolerant actions by claiming to have friendships with gay people, they’re working to disenfranchise those same friends****. That’s intolerant and duplicitous, not being in the right.

Being intolerant of intolerance is a mature understanding that there are some restrictions to liberty when living in a society. We work for the greater good and respect the dignity of all people, whether they’re like us or not. First order intolerance is the insistence of having it our way, which isn’t always possible.

The petulant thing for Prop 8 supporters to do would be to insist on upholding Prop 8 and then to work on getting similar bans passed in other states. The mature thing is to realize that they can just not get a gay marriage while leaving others free to live their lives as they see fit.

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* The supporters of Prop 8 believe that there are more people who are intolerant towards bestiality, polygamy and inbreeding than people who are intolerant merely of gay marriage. If the pro 8 side can convince people there’s a slippery slope link between gay marriage and these socially unacceptable relationships, it’s possible to rally a lot more people to the pro 8 cause. I’m not sure how effective these tactics actually were at getting out the Yes on 8 vote, but the fact that these things even come up during a campaign seems like nothing more than a smear attempt.

** It’s weird when people say that transition doesn’t change who you are. If I wasn’t going to change at all, then why on earth am I going to all this trouble, spending all this money, using up all this time, jumping through all these hoops just to be the same person? It’s inconceivable. It’s not a case of Jekyll and Hyde as much as it is a metamorphosis. Like any chrysalitic organism, there are some traits that remain consistent between the pre- and post- metamorphic forms. If you look at those two photos, there are drastic differences but there’s also something weirdly similar about them, too. At least, I always tend to think so. And I think it’s kind of the same thing with anyone who undergoes a drastic life change: they’re going to be wildly different than what you remember but you will still be able see underlying parts of the person that you knew. I hope that at least the Dr. Who fans that are reading this will have a clear understanding of my clumsy words.

*** As a transsexual, I experience my gender in an action-oriented way: I perform various gender roles, not necessarily expecting my proclamation of being female to be sufficient to convince people of the fact that I’m a woman. That’s something I was trying to get at on my “About” page—if I wanted people to really see me as a woman, I had to transition. It was the action, not the words, that would make it real for all of us. And it has. Being female is different than feeling female or wanting to be female.

**** When I hear members of the religious right say that they have gay friends, I feel like replying, “No you don’t. No one treats their friends like that.”

So this news isn’t exactly great for proponents of marriage equality. The reason I say this isn’t great is because these kind of situations get blown way out of proportion– the anti-equality crowd will be using this to write their propaganda for the next 10 years.

The fact is that this did get all out of hand. A Christian registrar who refuses to do her job will get in trouble for it; I don’t think that comes as a huge shock. The justice of the peace in Louisiana didn’t get a break on his bigotry, and I don’t think Ladele should get one here. The thing is, it’s not up to county or city employees to make the call over who can and can’t get married. If it’s legal, then it’s legal. I would like to point out why I’m calling Ladele a bigot rather than giving her a pass on the religious exemption clause: she’s not clergy.

I should add a caveat– the case in question here with Ladele is in the U.K., not the U.S. The law there is probably different, and I’m not a lawyer, so I’m not going to expound upon the British legal system. I will try and tie it in to the fight for marriage equality here in the U.S. because that’s where I live and I expect I’ll be hearing about this particular case when the petitions to repeal prop 8 are being circulated. NOM and those of its ilk will be crying about how their religious liberty is threatened, and here’s an example from Britain, except they’ll de-emphasize the fact that it didn’t even occur in the U.S., it will simply be held up as an example of OMG, teh persecutionz, and how we need to fight teh ghey.

There’s a very interesting document by Chai Feldblum on moral conflict and liberty. It’s a very long, very footnoted document, but very worth reading, if you have about an hour or so to really go through it.

Feldblum analyzes potential conflicts between moral and religious liberty, and examines whether there are burdens placed on a person’s liberty when you regulate conduct. She also goes on to examine whether those burdens are justified. In other words, the state, as a morally neutral agent can burden beliefs by regulating conduct when there’s a compelling reason to do so.

So, when we look at the Ladele case in light of U.S. law, we have to ask a two-pronged question: was Ladele burdened by being asked to perform civil marriages, and if so, was there a compelling reason to so regulate her conduct? As Feldblum puts it:

In most situations, of course, conduct is not intended to convey expression. For that reason, one does not ordinarily feel that a requirement to engage in certain conduct (or not to engage in certain conduct) necessarily undermines one’s identity or beliefs. We engage in innumerable acts throughout the day. We might get on the subway in the morning, buy a newspaper, order lunch, give an exam or take an exam, fix a car, buy stock or feed a baby. We rarely experience ourselves as expressing a belief system when we engage in these forms of conduct. Beliefs may underlie our actions (for example, public transportation is good; newspapers should be supported; babies should be cared for), but it is rare that we experience our conduct (or our lack of engaging in certain conduct) as inherently intertwined with our beliefs and identities.

So, does Ladele view her conduct on the job as expressive of her religious beliefs? I think it’s a safe assumption to make that she most certainly does. After all, she claims that having to perform a same sex civil marriage unduly burdened her conscience. As Feldblum argues at one point, it’s better to err on the side of accepting the existence of the burden. If I can claim that my identity liberty is burdened when I am discriminated against, and Ladele must accept my statement as valid truth, then I must accept hers as well.

So, I think we can say that there is a burden on her beliefs by compelling her to perform same sex weddings. The second part of the analysis is more complicated: is that burden justified? Is there a compelling reason for the government to regulate Ladele’s actions such that her beliefs are burdened and she has no recourse?

If we look at Feldblum’s example of Boy Scouts of America v. Dale:

If that analysis had been done, and if the Court had taken seriously the adverse impact on the identity liberty of gay people when a government fails to protect them from private discrimination, I believe the Court would have appropriately determined that a group as large and as broad-based as the Boy Scouts should not have been granted an exemption from the state law.

In other words, in order to determine whether the burden on Ladele is justified, we must determine whether allowing the discrimination against LGBT people to stand serves a more wide-ranging interest (as the courts decided in the Boy Scouts case) and whether we are allowing everyone access to the same rights in a meaningful sense.

In the case of marriage rights, most states recognize the desire of LGBT people to start families with their partners (several states that don’t permit same sex marriage still have provisions for domestic partnerships or civil unions). One of the claims I heard during the Prop 8 debate was that gay people are free to marry someone of the opposite sex just like any other heterosexual person, so everyone was allowed access to the same right of marriage. The argument from the pro-equality side was that such allowances were not meaningful, and I think they had a very good point, as that disingenuous argument didn’t take into consideration the simple variable of object choice– not all men want to marry women. Requiring them to do so is not allowing everyone equal access in a meaningful sense.

If heterosexual couples have access to the rights and privileges of marriage, giving homosexual couples meaningful access to the same rights would include allowing them to get married and file their federal taxes jointly. And right about here is where we run headlong into the brick wall of Ladele’s conscience.

At this point, we must determine how to fairly distribute the burden of the conflict. We can make the case that Ladele should be free to decline to perform same sex marriages, and that one of her colleagues could fill in for her. Or we can make the case that Ladele should be forced to do her job or be fired. In the first case, I’d like to quote Feldblum again:

If individual business owners, service providers and employers could easily exempt themselves from such laws by making credible claims that their belief liberty is burdened by the law, LGBT people would remain constantly vulnerable to surprise discrimination. If I am denied a job, an apartment, a room at a hotel, a table at a restaurant or a procedure by a doctor because I am a lesbian, that is a deep, intense and tangible hurt. That hurt is not alleviated because I might be able to go down the street and get
a job, an apartment, a hotel room, a restaurant table or a medical procedure from someone else. The assault to my dignity and my sense of safety in the world occurs when the initial denial happens. That assault is not mitigated by the fact that others might not treat me in the same way.

Allowing Ladele to excuse herself from performing a marriage for some people on the basis of their sexual orientation is still surprise discrimination. In order to protect the belief liberty of one registrar, we are potentially exposing dozens (hundreds?) of couples to that kind of discrimination.

In the second case, in Ladele’s own words, she was forced to choose between her religion and her job. But there’s a problem here: she performs civil marriages. Presumably, her job might require her to marry differently religious couples, while her religion might approve of unions that exist only between two Christians. Also, her job might require her to marry a young man and his pregnant girlfriend, when her religion explicitly disapproves of such sexual conduct. Was Ladele performing spontaneous surveys of the religious beliefs of all the couples she married? Did she ensure that they were not engaging in sinful sexual practices prior to their wedding? Allowing equal access in a meaningful sense implies that Ladele would not be permitted to decline to marry any couple, same sex or otherwise. She was practicing discrimination under the guise of her religion, and that isn’t permitted under the law, her religious objection notwithstanding. Anti-discrimination laws do not favor one religion over another, and as such do not violate the anti-establishment clause of the first amendment. Rather, it’s not her objection so much as her discriminatory practices that were the issue.

I have few problems with Ladele’s claim that homosexuality conflicts with her religious beliefs. What I really have a problem with is the sickening application of the double standard, this bullshit of privileging homosexuality as the chief of all sins. A few weeks ago, I peeled the Christian fish decal off of my car (it’s been there for more than 10 years) because I no longer want to be associated with people who act and behave as though they have any place to impose their moral beliefs on others, as though they’re better than anyone else just because they’re straight.

While it appears that I’m imposing my moral beliefs on Ladele, I would disagree– I’m not keeping her from believing anything, though I am in support of regulating her conduct as it benefits a larger group of citizens. I would also argue that if it were my job, I wouldn’t decline to perform her marriage just because she’s a bigot. Civil marriage has evolved into a morally neutral institution, entirely separate from our religious notions that happen to have the same name.