America’s Queer “Liberty”

It’s been 231 years since the signing of the Declaration of Independence. That signing marked the beginning of the democratic age. Those scrappy, ballsy American colonies took on the British Empire and actually won. Liberal democracy became the name of the game. As the Second Continental Congress’ declared:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

The government belonged to the people. The rule of law became the law of the land. Unfortunately, rule of law doesn’t always rule for the people.

America’s government looks a little haggard for a mere 231 years old. Congress wants the President’s balls for wiretapping and, most recently commuting Scooter Libby’s obstruction of justice sentence. The lines between executive and legislatives are being hacked – or is it shot? – by the Vice President. The Supreme Court’s leaning so far right, one wonders why it hasn’t fallen over. Just last month, the Supreme Court – the ultimate power meant to judge whether America’s laws protect its people – refused to hear a gay man’s discrimination case against his employer, Ohio’s Fairfield Medical Center.

Chris Vickers and his lawyer Randi Barnabee claim Vickers’ coworkers and a coworker’s spouse harassed him and endangered his life for not meeting their expectations of a “man”. Traumatized by fourteen months of alleged abuse, Vickers took the accused anti-gay discriminators to court. Unfortunately for Vickers, Ohio’s legislature doesn’t protect private sector gay employees. The judicial system, meanwhile, does protect transsexuals.

Barnabee’s 2004’s Smith v. Salem case argued the City of Salem fired veteran firefighter Jimmie L. Smith after Jimmie became a woman. Barnabee, herself a post-op transgender, persuaded the court that Title VII of 1964’s Civil Rights Act protects against gendered stereotyping. Thomas Ling writes for the Harvard Civil Rights-Civil Liberties Law Review:

How about we take this to the next level?

Our newsletter is like a refreshing cocktail (or mocktail) of LGBTQ+ entertainment and pop culture, served up with a side of eye-candy.

Daily

Weekly

Promotions and Partner Emails

Writing for the panel, Judge R. Guy Cole held that Title VII claims for sex discrimination properly encompassed transsexuals suffering adverse employment action due to their non-conforming gender behavior. Further, the court found that the Equal Protection Clause provides a similar right to be free from discrimination on the basis of sex in public employment. The Smith court abandoned the rigid boundaries of sex identity laid out by other circuits, which afforded Title VII protections only to masculine men and effeminate women. It recognized that disparate requirements of masculinity and femininity for men and women must be understood as unequal treatment on the basis of sex. Thus, sex discrimination in Title VII includes discrimination on the basis of gender.

Barnabee followed the same argumentative line for Vickers’ case, which quickly ran up the chain of appeals, landing at the Sixth Circuit Court of Appeals. Unsure of whether Smith’s case would stand the test of time (and gender identity), Barnabee brought up a number of other cases, including some cases from the west coast’s Ninth Circuit Court of Appeals.

Gay People’s Chronicle reports:

Those cases are Nichols v. Azteca Restaurant Enters, where a male waiter was abused for walking and carrying his tray “like a woman” and was derided for not having sex with a female co-worker who was his friend.

In Jesperson v. Harrah’s Operating Co., the Ninth Circuit held that harassment was actionable because of the plaintiff’s sex, a point the Sixth Circuit disagreed with in Vickers.

In Rene v. MGM Grand Hotel, a gay plaintiff went forward with his sex stereotyping claim because he endured assaults “of a sexual nature” when his co-workers forced him to look at gay pornography and gave him sexually oriented gifts.

Vickers had endured similar assaults and gifts from his coworkers at the hospital.

Unfortunately, seven out the Sixth Circuit’s fourteen judges were appointed by George W. Bush, a man who couldn’t spell civil rights – or civil – if you paid him (which we do).

Needless to say, the Sixth Circuit rejected Vickers’ plea. Delivering her decision, President Bush appointed Judge Julia Smith Gibbons wrote:

Ultimately, recognition of Vickers’ claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination. In all likelihood any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.

Don’t you love that logic? She separates the gays out for failing to conform, thereby justifying anti-gay discrimination. Does that mean Vickers only deserves protection if he becomes a woman, like Smith? Maybe. Another Bush appointee, Eugene E. Siler, Jr. wrote,

Vickers had not alleged that the harassers were motivated by sexual desire for Vickers or by general hostility for men in the workplace, nor was any information presented regarding how females were treated in comparison at [the hospital].

Incensed by the Sixth Circuit’s arrogance and disregard for justice, Vickers took his case to the Supreme Court. The court, however, refused to consider it, thus leaving the Sixth Circuit’s discriminatory vote in place. What ever happened to equal under the law? How can it be that after 231 years of independence, our country cannot ensure liberty and justice for all? The Ninth Circuit Court of Appeals, which covers the west coast, probably would have ruled in Vickers’ favor. The Sixth Circuit, only a few states away, refused. Federalism at its finest, ladies and germs – a system meant to sustain separate powers actually keeps people separate.

How did the founding father’s fail so miserably to create a Constitution – and political system – that guarantees liberty and justice for all, including LGBT citizens? How can it be that in 1996, 84% of Americans believed gays deserve equal, unfettered employment opportunities, yet America’s Senate voted 50-49 against the Employment Non-Discrimination Bill? That same bill has stalled four times since then and currently stands for reconsideration.

Meanwhile, gay approval continues to soar. As of May of this year, 89% of people believe gay folk should have employment equality. According to that same poll, 57% of people feel that “homosexuality should be considered an acceptable alternative lifestyle.” Yeah, the language isn’t the most progressive, but the archaic “lifestyle” only buoys the point: more and more Americans approve of the gays.

Our government’s inactive equality acts as an affront to the Declaration of Independence. Liberalism withers under the detraction of people’s will. In fact, the current situation’s so offensive, it makes one recall the Declaration’s less referenced assertion:

…Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Before we jump into some tedious revolution, however, we’re going to need to take a look at how – and why – our ineffective government fails to protect its citizens. We need to know how oft-forgotten America’s gay patriots continue to fight – and often lose – the battle for full citizenship.

Over the coming weeks, we’re going to examine these issues and also what some have called America’s illiberal liberalism, but we prefer to call America’s Queer Liberty. And it ain’t something to be gay about…