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California Shines as Other States, Courts Tangle With LGBT Protections
August 12, 2016 at 4:15 pm

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By Karen Ocamb, contributing journalist

Labor Day is roughly three weeks away, marking the end of summer and the beginning of the school year. For many, it is a joyous time, a new beginning, buoyed in California by a legislature that has steadfastly supported LGBT youth and increased equality, as passage of two important bills out of appropriations committees Thursday indicates.

The timing is critical. This month the Centers for Disease Control released the first national study to include health risks of approximately 1.3 million U.S. LGB high school students.

The study—confirming what the LGBT community has felt for years— concluded that these students “reported experiencing substantially higher levels of physical and sexual violence and bullying than other [heterosexual] students.” Among their horrific findings: “Being physically forced to have sex (18 percent LGB vs. five percent heterosexual)”—otherwise known as rape; “Being bullied at school or online (at school: 34 percent LGB vs. 19 percent heterosexual; online: 28 percent LGB vs. 14 percent heterosexual);” and that “More than 40 percent of LGB students have seriously considered suicide, and 29 percent reported having attempted suicide during the past 12 months.”

And despite the general perception in 2016 that gay, lesbian and bisexual teens are cool with their expressive place in society, 60 percent of LGB students reported “having been so sad or hopeless they stopped doing some of their usual activities,” the CDC says. Indeed, LGB students “are up to five times more likely than other students to report using illegal drugs,” which leads to risky sexual behavior, and more than “one in 10 LGB students reported missing school during the past 30 days due to safety concerns,” absenteeism the CDC notes that “can have lifelong consequences.”

“I found the numbers heartbreaking,” the CDC’s Dr. Jonathan Mermin told the New York Times. “Nations are judged by the health and well-being of their children. Many would find these levels of physical and sexual violence unacceptable and something we should act on quickly.”

“The intensity of homophobic attitudes and acceptance of gay-related victimization, as well as the ongoing silence around adolescent sexuality, marginalizes a whole group of young people,” Dr. Elizabeth Miller, chief of adolescent and young adult medicine at Children’s Hospital of Pittsburgh, University of Pittsburgh Medical Center, told The Times.

The CDC survey analyzed data from the more than 15,000 students in grades 9–12 last year, plus data from 25 state surveys, and 19 large urban school district surveys. Significantly, the CDC did not include a question regarding gender identity, though they expect to have a pilot question for 2017. A Fenway Institute study by research scientist Sari L. Reisner published by Harvard last year, however, does provide a glimpse into what the CDC might find. Reisner compared 180 transgender 12-29-year-old patients at a Boston-based community youth health center with their non-trans peers and found the trans youth “have an elevated risk of being diagnosed with depression (50.6 percent vs. 20.6 percent); suffer from anxiety (26.7 percent vs. 10 percent); had attempted suicide (17.2 percent vs. 6.1 percent); and had engaged in self-harming activities without lethal intent (16.7 percent vs. 4.4 percent).”

“If a person is not being seen for who they are it can be very distressing. So pediatricians present a very important entry point into care and can get youth who need services to the right place,” Reisner said.

That’s precisely the issue the two California bills try to tackle. AB 2246,

Suicide Prevention Policies in School, authored by Assemblymember Patrick O’Donnell (D-Long Beach) and co-sponsored by Equality California and The Trevor Project, would improve the existing Education Code that only “encourages” schools to have suicide prevention policies.  AB 2246 would make such community-informed policies a requirement, thus giving teachers and others the tools necessary to identify and combat teen suicide.

SB 1146, California Divestiture in Academic Discrimination, authored by openly gay State Sen. Ricardo Lara (D-Bell Gardens) and sponsored by Equality California, would “close a loophole that allows private universities to discriminate against students and staff based on their gender identity, gender expression, or sexual orientation.” Specifically, that loophole is the Title IX exemption that allows private religious academic institutions to request a federal waiver to allow them to discriminate against LGBT people if they feel the legal protections violate their religious tenets.

Lara’s original bill generated so much controversy, a quick coalition of religious institutions formed and hired a lobbyist to defeat the bill. They were concerned about a provision that allowed students who realized their sexual orientation or gender identity after they enrolled in the private institution to sue if they were expelled after coming out or if they felt they were discriminated against. The provision was intended to help low-income students dependent on school grants.

Thinking of the bigger picture, and needing to get the bill passed in this session, Lara amended his bill to delete that provision, thus gaining support from his previous opponents. However, the thrust of the bill remains: SB 1146 would require universities that are granted a Title IX exemption to disclose that information to the California Student Aid Commission and disseminate the information to students and staff so students who may have an inkling that they might be LGBT will know in advance that they might face problems, and allies will know where the institutions stand on LGBT equality. The bill also requires institutions with Title IX waivers to report expulsions for violations of “morality codes” to the state Student Aid Commission, which oversees Cal Grants, in order to collect more actual data about those expulsions.

“With SB 1146, we shed light on the appalling discriminatory practices LGBT students face at private religious universities in California,” Lara said in a statement. “These provisions represent critical first steps in the ongoing efforts to protect students from discrimination for living their truths or loving openly.”

Bill sponsor Equality California agrees. “The new version of this bill is a crucial first step to address the deeply damaging intolerance students can face when schools have a license to discriminate,” said Rick Zbur, executive director of Equality California. “Its passage would ensure that prospective students and their families are aware of whether they could be vulnerable to discrimination at a school they are considering and allow them to make an informed decision.”

Equality California’s Legislative Manager Jo Michael notes that the data collection is also important. “It’s tough to get individual stories about issues like this, because it’s a particularly painful experience and one that can be difficult to share,” he said, adding that if a school wants to discriminate, it shouldn’t accept public funding from Cal Grant students. “If a school wants to be able to go against California law, then the best way to do that is to make sure that they are operating as a totally private entity.”

The issue is not a minor one, especially if progressive California intends to be a shining example of LGBT equality to other states struggling with their own culture war clashes. Last May, for instance, the Williams Institute issued a report predicting that North Carolina’s horrendous anti-trans law HB2— requiring trans people to use public restrooms that correspond to the sex on their birth certificates—could cost the state roughly $5 billion—$4.8 billion in federal grants and contracts for conflicting with federal law, a loss of over $40 million in business investment and the loss of over 1,250 jobs, as well as a major reduction in tourism and travel to the state.

While electoral polls are always subject to change before the Nov. 8 election, an NBC News/Wall Street Journal poll released Friday, Aug. 12 shows that the state’s Republican Gov. Pat McCrory—who has doubled down in support of HB2— is losing to Democratic challenger Roy Cooper by seven points, 51 percent to 44 percent.

Nonetheless, word out of Texas is that state’s legislature will consider HB2-style legislation next year.

But there are practical, as well as political, consequences for these legislative—and legal—decisions. For instance, 17-year-old Gavin Grimm, a transgender student from Virginia, is going back for his senior year of high school where he will not be recognized as the boy he is, despite his deep voice, facial hair and state ID identifying him as male. Because of an “emergency” stay granted by the U.S. Supreme Court last week, Grimm will be forced to use a separate single-stall restroom, segregating him from his peers. The school board believes this will “’protect’ other students from his mere presence,” says his ACLU attorney Joshua Block.

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Transgender student Gavin Grimm

The ACLU filed a lawsuit against the Gloucester County School Board for adopting a discriminatory bathroom policy that violates Grimm’s constitutional rights under the Fourteenth Amendment, as well as violating Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination by schools. Both the US Department of Education and the Fourth Circuit Court of Appeals agreed with Grimm and the ACLU—issuing a stay of the U.S. District Court in Eastern Virginia’s pro-school ruling—giving Grimm the expectation that he could return to his high school and be treated as a normal student. After all, he spent two months in 2014, with the school’s knowledge and permission, using the boy’s restroom without incident as he transitioned. Then some parents and Gloucester County residents complained and set the discrimination in motion.

In addition to frightening LGBT activists, that SCOTUS “emergency” decision last week prompted U.S. District Judge Thomas Schroeder—who is considering whether to stay enforcement of the North Carolina HB2 “bathroom bill”—to order lawyers for and against that law how the ruling should impact his decision.

The SCOTUS decision apparently did not similarly move 5th U.S. Circuit Court of Appeals, which on Friday refused to remove the stay U.S. District Judge Carlton Reeves put on House Bill 1523 on July 1, according to the AP. Mississippi Republican Gov. Phil Bryant failed to persuade the 5th Circuit to let the law allowing religious objections to same sex marriage to be enacted while he challenges Reeves’ ruling that the law is unconstitutional.

Out constitutional expert David Codell, who works with the National Center for Lesbian Rights, urged the LGBT community not to panic. The SCOTUS “emergency” stay was more of a procedural ruling than a signal about how the Court might rule on transgender rights. The ruling was deferential to the school, which argued that they shouldn’t have to follow an order until the outcome of the case is decided, and the 4th Circuit Court’s stay was not a resolution.

But there is a big caveat that makes the SCOTUS ruling more complicated. “This case isn’t just about transgender rights. It’s also about what process a president or an administration must go through if they want to change the view of what a statute requires,” said Codell. “This is about the power of the executive branch” and the level of deference afforded the executive branch, executive orders, and interpretation of laws such as immigration statutes, Title VII and Title IX.

“Our best bet right now is to try to get the Court to agree with what all the legal scholars in our movement agree with – which is that discrimination based on gender identity or discrimination based on sexual orientation are in fact forms of sex discrimination and they should be recognized as such under Title VII and under Title IX,” said Codell.

“It is extremely important to us that the courts give deference to the current administration’s interpretation of these statutes and the current [Equal Employment Opportunity Commission’s] interpretation of Title VII,” he continued. “So this is very important – these procedural issues or administrative law about when do the courts listen to what the executive branch says a statute means. These are hugely important to our movement because we’ve never been able to get any federal protection enacted for discrimination based on sexual orientation or gender identity in employment or education or housing or anything.”

Conservatives agree that there is more to the SCOTUS injunction and are interpreting it favorably.

“It’s significant that the Supreme Court said we’re going to put a hold on that — we’re going to preserve the status quo as it’s always been in society, as it’s always been in schools,” Jeremy Tedesco, a lawyer at the Christian legal group Alliance Defending Freedom, told The Daily Signal. “That boys use boys’ restrooms and girls use girls’ restrooms.”

Noting that the Obama administration and the Department of Education have relied on the Gloucester case, Tedesco says the implications could be far-reaching with a total of 24 states challenging the legality of the administration’s mandate.  “What the Supreme Court has done is thrown that decision into serious doubt,” he says.

Meanwhile, in addition to the real and feared consequences of the courts and lawmakers’ tangling with the profound issue of LGBT protections, real life goes on as usual. And for transgender people, that literally means life and death: 18 transgender or gender non-conforming people have been killed since January 2016, according to the National Coalition of Anti-Violence Programs (NCAVP).

On Friday morning, Aug. 12, NCAVP reported the homicide of Rae’Lynn Thomas, a Black transgender woman, in Columbus, Ohio.  “According to media reports, Rae’Lynn, was shot and killed by her mother’s ex-boyfriend, James Allen Byrd, who was living with her family at the time of the homicide,” NCAVP said in their press release. “According to Rae’Lynn’s family members, Byrd was transphobic, and referred to Rae’Lynn as ‘the devil’ before killing her. Rae’Lynn’s family is asking police to investigate this as a hate crime.”

“This is the fifth homicide of a transgender woman of color that NCAVP has responded to this summer and the third this week, said NCAVP’s Emily Waters. “We know that these homicides are rooted in the racism, misogyny, homophobia, and transphobia that exist in our everyday environments and lead to increased violence against transgender people of color. We are calling on everyone to challenge transphobia and racism when they hear it or see it.”

There may be one way California, in particular, can respond. The week of August 15, the California State Senate will take up out Assemblymember Evan Low’s AB 1887, “Prevent California-Funded Travel To States With a License To Discriminate.” The bill, co-sponsored by Equality California and the National Center for Lesbian Rights, would prohibit state-funded or sponsored travel to a state that, after June 26, 2015, “has enacted a law that voids or repeals existing state or local protections against discrimination, or gender expression, or has enacted a law that authorizes or requires discrimination against same-sex couples or their families on these bases.”

In addition to underscoring the economic backlash and outrage over North Carolina’s HB2, the travel ban would send a clear moral message from the largest state in the union with the 6th largest economy in the world that discrimination against LGBT people – against anyone – is unacceptable.

“We do not want to subsidize tax-payer discrimination,” Low said in an interview Monday. “These are not our values. We support inclusion, not exclusion.”

Everyone wants the same thing, Low says; to be lovingly accepted in one’s community, in society and to accept varying points of views. Low feels that the state has a “moral obligation” to all Californians to firmly say “that’s what we’re all about.”

 

 


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