13. Beyond Marriage: The Fight for LGBTQ Rights (with Jessica Clarke, T. Mychael Rambo and Chase Strangio)

With Guests:

  • Jessica Clarke, professor of law, FedEx research professor and co-director of the George Barrett Social Justice Program at Vanderbilt University Law School. She studies constitutional and statutory guarantees of non-discrimination based on traits such as race, sex, sexual orientation, gender identity, religion and disability.
  • T. Mychael Rambo, a regional Emmy Award winning actor, vocalist, arts educator and community organizer.  He also an accomplished residency artist and professor in the College of Liberal Arts, Theatre Arts and Dance at the University of Minnesota.
  • Chase Strangiodeputy director for transgender justice with the ACLU’s LGBT & HIV Project and a nationally recognized expert on transgender rights. Strangio’s work includes impact litigation, as well as legislative and administrative advocacy, on behalf of LGBTQ people and people living with HIV across the United States. Chase was counsel in the case of Aimee Stephens, a transgender woman whose historic lawsuit resulted in the landmark Supreme Court decision that federal civil rights law protects LGBTQ workers.
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In this Episode:

Recently, Justice Clarence Thomas, joined by Justice Samuel Alito, lashed out at the Supreme Court’s Obergefell v. Hodges decision, which guaranteed marriage equality, calling it ruinous for religious liberty.  In response, the New Yorker posed a sobering question: “Does Clarence Thomas now speak for the majority of the Supreme Court on LGBTQ Rights?”

The use of religious liberty to discriminate against LGBTQ people is nothing new. And marriage is not the only issue on the line. Among other things, the Trump administration has worked to discriminate against gay parents in foster care and adoption, take away vital healthcare under the ACA, and prevent transgender people from serving in the military.

The attacks are not limited to the federal government either: This year alone, there have been clear, coordinated efforts at the state level to legalize discrimination against people based on their LGBTQ identity.

What is the current legal landscape for LGBTQ rights and justice? What is the significance of the impending election for the rights of the LGBTQ community? What’s at stake?

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Transcript:

00:00:05 Michele Goodwin: 

Welcome to “On the Issues with Michele Goodwin” at Ms. Magazine, a show where we report, rebel and tell it like it is. On this show, we center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our times. On our show, history matters. We examine the past as we pivot to the future.

On today’s show, we focus on Beyond Marriage: The Fight for LGBTQ Rights. Now, recently, Justice Clarence Thomas declared that the Obergefell decision, which guaranteed marriage equality, was ruinous for religious liberty. This led to the New Yorker publishing an article posing a sobering question: Does Justice Clarence Thomas now speak for the majority of the Supreme Court on LGBTQ rights and equality? The use of religious liberty to discriminate against LGBTQ people is nothing new, and marriage is not the only issue on the line.

Among other issues, the Trump administration has worked to discriminate against gay parents in foster care and adoption, to take away vital healthcare under the Affordable Care Act and to prevent transgender people from serving in the military. The attacks are not limited to the federal government, either. This year alone, there have been direct, unambiguous efforts at the state level to legalize discrimination against people based on their LGBTQ identity.

That’s why we’re taking up these concerns on our show today. What is the current legal landscape for LGBTQ rights and justice? What is the significance of the impending election for the rights of LGBTQ persons? What happens to be at stake? Helping us to sort out these questions and how we should think about these issues and more are very special guests.

I’m joined by Jessica Clarke. She is a Professor of Law, the FedEx Research Professor and Co-Director of the George Barrett Social Justice Program at Vanderbilt University Law School. She studies and researchers constitutional and statutory guarantees of non-discrimination based on traits such as race, sex, sexual orientation and gender identity. 

I’m also joined by T. Mychael Rambo. He is a regional award-winning Emmy actor, vocalist and arts educator and community organizer. He is an accomplished residency artist and professor in the College of Liberal Arts, Theatre Arts & Dance at the University of Minnesota. 

Last, but not least, I’m joined by Chase Strangio. Chase is the Deputy Director for Transgender Justice with the ACLU’s LGBTQ and HIV Project and a nationally recognized expert on transgender rights. Chase’s work includes impact litigation as well as legislative and administrative advocacy on behalf of LGBTQ people and people living with HIV across the United States.

We start today’s show in recognizing the passing of Monica Roberts, a transgender journalist and activist whose blog TransGriot became a proud voice in the trans community. She passed away on October 5th at her home in Houston. She was 58 years old. Monica’s journalism helped to lift up the experiences of trans women, calling urgent attention to the continued violence and harassment they experience, but also in celebration of life on all things, from football to opera.

She served to render visible the humanity and the dignity of LGBTQ people generally and especially trans women of color. She described herself as a proud, unapologetic, Black, trans woman speaking truth to power and discussing the world around her. That’s how she described herself, now let’s take a listen as she talks about what’s urgent for these times.

00:03:56 Monica Roberts:

What’s going on is the result of several years of anti-trans rhetoric that has been spread by not only the Trump administration, but trans-exclusionary radical feminists, also the Republican parties at the national, local and state levels. That rhetoric just doesn’t go out in thin air.

00:04:28 Michele Goodwin:

Thank you all for joining us to discuss these very sensitive and often overlooked matters. Let’s start with a more general question. I’m going to open this up to my guests. How did you come to engage in LGBTQ justice?

00:04:43 Chase Strangio:

Thanks so much for having me. This is Chase Strangio from the ACLU. You know, I think it’s just such a core part of who I am, and you know, I came out as queer at a young age, or I guess it was young for me at the time, but people are coming out much younger now, but I came out, you know, just before college and sort of started to think about what it meant to challenge the systems of gender binaries and assumptions about sexual desire.

And I was a history major in college, so I was really thinking about, you know, how our country is constituted in ways that really limits our ability to even imagine ourselves. So that was really formative for me when I was about 18 years old, and this was still before, you know, any state had legalized marriage equality, and there was pushing back on state regulation of our bodies in different ways than we might think of now, and so I just continued a combination of study and organizing through college.

Then when I came out as trans and had been thinking about going to law school and came out as trans in law school, it just felt like such a critical part of defending myself and my community, and I really think about LGBTQ justice work as being inextricable from sort of movements for prison abolition, movements for racial justice, because I was organizing at the time, and in those spaces, they were led by so many queer and trans people.

And that sort of was how my consciousness developed, and it’s just, you know, I can’t imagine not doing this work, particularly as I’ve learned so much about the history of queer activism and organizing and then also lost so many people because of the systems of violence our communities face. So that’s how I got started. That’s what drives me now, and you know, it feels so urgent every day.

00:06:37 Michele Goodwin:

Where did you grow up? So, coming to these conclusions when you were in high school even, did your environment have anything to do with that?

00:06:46 Chase Strangio:

So I grew up in a wealthy suburb of Boston, and I did have, you know, a really incredible public education, which is definitely not everyone’s experience, and one of the great things about it was, you know, I think that there were opportunities to, you know, read the People’s History of the United States and not just the sort of government-fed narrative of sort of what is American history.

That sort of primed me to be more critical and more questioning, but I think it was also my experiences of repression, even in a progressive environment, that also drove me. You know, that sense of alienation from myself was so sad once I realized that I wasn’t able to sort of really understand myself until I was 18, 19 years old, and obviously, that’s a lifelong journey.

But definitely the combination of having access to such an excellent education from such a young age, but then also feeling, you know, sad, lonely, depressed and alienated because of being queer and trans I think combined to give me this drive to really, you know, use my access to systems of power to disrupt them and continue to make more space for people to live their truths at younger and younger ages.

00:08:00 Michele Goodwin:

Thank you so much for that, Chase. How about you, T. Mychael?

00:08:03 T. Mychael Rambo:

I want to say thank you for inviting me to join your remarkable panel and to join you for your program today. It’s fascinating. I was listening to Chase, and Chase, thank you for your remarks. They were really a springboard for me to think back. I came out in 1972, and in 1972, I was 14 years old, trying to figure out what that meant in a world that had discovered my sexuality because of my engaging in behavior at the time that was discovered by two adults, who then ran to my parents and said your son is one of them, you know, which created this whole moment of having to really…

Not confront, but really align myself with the truth that I had no name for, and then that’s where my activism came, because I had to defend myself, and as Chase mentioned, had to really take a look at the world around me that alienated me based on something that was who I am and who I was at that time, not something that was abnormal or something that needed to be tamed and sent away and looked into by medical professionals.

My form of activism came out of reading James Baldwin and Countee Cullen and getting to know, you know, remarkable writers that my aunt, who was a poet, a very well known poet, who came to my defense, if you will, when my parents knew not how to interact with me in the time when I was really coming to grips with my sexuality, my orientation as a gay man in America in the ‘70s, Black gay man in America in the ‘70s, which was another layer on top of that, historically speaking.

So those readings, those works, and getting a chance to understand the history of LGBTQ fights, struggles, and the constant combatting of structures that are kind of structured around keeping and preventing LGBTQ members of our community to gain their rights, their footsteps in the world gave me permission to really recognize that I had to do something, and that came in writing plays.

I’m an actor, a theatre professional, and even at 15, 16, I wrote a play called Silver Tongues. Then I went on to write another play about AIDS in prison and several other things about folks who were being marginalized and disenfranchised by HIV, and because I had lost so many friends to HIV and AIDS during the early ‘80s, ‘90s, and into 2000s, that my activism came through HIV and AIDS work.

00:11:02 Michele Goodwin:

You know, and I want to get back to that, too, because what a time in our history. You think about the 1980s and the Reagan administration and Jesse Helms and the homophobia and so much more. So we’ll circle back to that. So, Jessica, what brings you to this table and your commitment to the justice work here?

00:11:24 Jessica Clarke:

First, thank you so much for having me on this podcast. It’s an honor to be here. So I come from a background in feminist and queer theory that…well, I’ve always felt like there was something unjust about binary gender expectations and the way that they trap people into gender roles, and in college, I studied feminist and queer theory and became interested in how legal categories, like who’s a woman, who’s a man, who’s gay, who’s straight can be used to trap people and constrain their identities and constrain the possibilities for them. When the reality is that people’s identities are compound and fluid and non-binary and multidimensional and intersectional, and so I’m interested in thinking about how the law can make space for the complicated lives that people lead, which sounds like a utopian project, but I think is still a worthwhile one.

00:12:28 Michele Goodwin:

What do you see, Chase, as the biggest threats to LGBTQ justice today?

00:12:33 Chase Strangio:

Oh, wow, there are a lot of threats to LGBTQ justice. I mean, I think I’d first start with just sort of the threats to our society as a whole and the ways in which sort of, you know, white supremacy and patriarchy are operating all the time, and that, of course, has a particular effect on Black and brown LGBTQ people.

And so we’re living in a time where we’re having, you know, mass deportations, escalation of immigration enforcement in incredibly unjust ways, and obviously, you know, centuries of anti-Black racism, which we know is experienced for Black and brown LGBTQ people in particularly acute ways, and so recognizing those big structural challenges that we are constantly engaging in I think is a critically important sort of first framework for understanding the fights that the LGBTQ community is waging.

Thousands gather in front of the Brooklyn Museum to march for Black trans lives in June, 2020 (NYC Protest Updates / Twitter)

Thinking about sort of what’s coming in the next few years, I think we’re going to see an escalation of attacks on trans people, the desire of anti-LGBTQ activists to locate a constitutional right not to share space with trans people, and so, as the federal judiciary is being transformed and we have an increasing number of Federalist Society judges, we definitely see that strategy, which will be harder to undo because it would be located in the Constitution, of sort of creating this notion of a privacy right not to share space with a trans person.

Then, of course, the ongoing assault on civil rights for everyone through the discourse of religious liberty, but actually is really about expanding the right to discriminate. I think those are ways we’re going to see gains really chipped away at over the coming years through every branch of government, and I’ll stop there. I think, you know, we could go on about this for a long time, but those are some of the big things I’m thinking about.

00:14:30 Michele Goodwin:

Yeah, we probably could have a weekend retreat on that alone. Jessica, can you add to that? So are there other threats that you see in this space, what you’ve been researching?

00:14:42 Jessica Clarke:

I think that the First Amendment is a big source of threat, and I agree that religious exemptions are coming. So Bostock was a huge victory, declaring that you can’t fire somebody just for being LGBTQ, but at the end of the Bostock opinion, Justice Gorsuch, the author of that case, writes that the majority is deeply concerned with preserving the free exercise of religion.

That he regards the Religious Freedom Restoration Act as a super statute, by which he means a statute that could trump other statutes and give religious objectors reasons to not comply with the non-discrimination obligations with respect to LGBTQ employees, and the First Amendment is constitutional, so Congress couldn’t change that. So the Supreme Court could also say the First Amendment secures more religious objections.

There’s also free speech, so we could see threats to discrimination laws on the argument that, for example, harassment law violates an employee’s right to free speech. We see a little bit of that in the Bostock case where Justice Alito complains about pronouns, the idea that telling people to use the correct pronouns in the workplace might be violating their free speech to misgender somebody by calling them she when the person’s a he or vice versa.

00:16:18 Michele Goodwin:

You know, that reminds me of the case of Miss Mary Hamilton and the struggle that Black people have had over time to demand that they’re called by their names and not boy, not girl, or just simply blank, but that there actually was a Supreme Court case that had to be demanded on the part of a Black woman that, in court, I deserve to be treated respectfully. I mean, it is kind of amazing and you’re in the same space here. I’d love it if you’d unpack a little bit more the Bostock v. Clayton County Case.

Tell us about what that case represented. Both you and Chase, your work centers around constitutional and statutory guarantees of non-discrimination based on sexual orientation and gender identity. You both played important roles in Bostock. Jessica, you behind the scenes. Chase, you right out in front. Chase, let me start with you. Tell us a little bit about this case, what your involvement was in the case and then I’d like to hear from you, Jessica, in terms of that important behind-the-scenes work, too.

00:17:24 Chase Strangio:

Yeah, no, so this was a case that, in many ways, was in the works for decades because Congress does not have a statute that explicitly protects LGBTQ people from discrimination in employment and housing and education and healthcare and credit. You know, LGBTQ litigants have been able to secure protections in the federal courts by arguing that discrimination against us is sex discrimination, and we’ve had increasing success over the last decade.

First, trans litigants had a lot of success arguing that if you discriminate against a trans person, that’s sex discrimination, using both a theory that it is, per se, sex discrimination. You know, if you fire me for being a trans man and showing up to work as a man, you wouldn’t fire another man who is assigned male at birth, and that is, you know, but for sex.

So that was one line of argument, and then the other was grounded in the sex stereotyping theories. That it was all based on ideas that you’re not the right kind of man or woman, and so we had increasing success both for sexual orientation and for trans litigants, and then you have three cases going up to the Supreme Court, certs granted in April of 2019, two involving gay men who were fired for being gay and one involving Aimee Stephens, a transgender woman, who was fired when she informed her employer that she is trans.

And the central legal question in the case was just, is it impermissible under Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of an individual’s sex, to fire someone for being LGBTQ, and I was the ACLU’s counsel at the Supreme Court, both for Aimee Stephens and Don Zarda, one of the gay men who was fired, and you know, one side note that just shows how devastating discrimination is, is when the Supreme Court decided in our favor 6 to 3 on June 15 that, in fact, it is sex discrimination to discriminate or fire…otherwise discriminate against someone for being LGBTQ, neither Don nor Aimee were alive to see that decision.

Both had died as a result of, you know, in one way or another, the discrimination that they had faced. So you have individuals who gave their life to this struggle not being able to see the victory when it came down in June, and it was truly an incredible ruling. It’s categorical prohibition on discrimination under Title VII, and you have it 6-3, with both Justices Gorsuch and the chief justice joining the liberals and siding with the employees.

00:19:56 Michele Goodwin:

Yeah, you know, I’m reminded of your article, an article in The Atlantic where you were quoted as saying the Bostock decision makes room for more of us to live and lead, and that living part really resonates, especially given what you just said. So, Jessica, in your article, “They, Them, and Theirs,” path breaking, and you discuss “the idea of non-binary gender as an identity itself only appears at the margins of US legal scholarship.” Now, you played an important role behind the scenes in Bostock. Tell us about it.

00:20:32 Jessica Clarke:

Well, I was part of a team that wrote an amicus brief on the topic of sex stereotyping and how sex stereotypes are integral to discrimination against LGBTQ people, and therefore, discrimination against them is discrimination on the basis of sex, and I first got started with this project before Justice Kennedy retired from the Supreme Court with the team that wanted to get the Supreme Court to take this Title VII issue, of whether Title VII covers LGBTQ workers while Justice Kennedy was there as the swing vote, because he had been so important in marriage equality in the Obergefell decision.

And so we worked really hard putting together an amicus brief, trying to convince them to take an earlier case, and then they decided not to grant cert, and Justice Kennedy retired, and we were devastated. We thought there was no hope, or at least I did. Some of my team thought there was more hope, but I just assumed that with Gorsuch and Roberts, there was no chance for victory, and so then when the Supreme Court accepted cert on these cases after Justice Kennedy had retired, I was so depressed.

I thought we were just fighting this Sisyphean, impossible battle, but we worked really hard on a brief again, and I was surprised and elated by the good result, and we have to thank the lawyers at the ACLU, like Chase, who did so much to achieve that and who never gave up, and I was glad that we never gave up and we kept fighting and we put this brief together, even though it took a ton of time and it seemed like it wasn’t going to make a difference.

The sex stereotyping argument doesn’t appear on the face of the Bostock opinion, but I think it did make a big difference. It appears kind of in the hypotheticals, kind of in the margins, and it shows Justice Gorsuch was thinking about those sex-stereotyping arguments, and he used them to rebut some of the comments that the dissent had made. So I think it did matter, even though it wasn’t at the foreground.

00:22:51 Michele Goodwin:

So let’s talk a little bit, before turning to questions of real-life violence…and this is real-life violence, too, as Chase has mentioned, that two of the litigants actually died before the opinion came out. But the conversation brings to mind how far we still have to go, and Chase, you wrote an article in response to the New York Times’ use of Aimee’s dead name in her obituary, so that even despite this case, you have the New York Times itself using Aimee’s dead name. Can you talk a little bit about that to listeners who don’t understand what a dead name means and why it was so important for you to, in a sense, snap back at that obituary?

00:23:35 Chase Strangio:

Yeah, I think there’s just still so much work to be done, and that is one salient example where you have, you know, the New York Times, obviously, widely respected, incredibly well read publication, in death, using Aimee’s name that she had abandoned when she decided to, after years of struggle and hardship, live her life as her authentic self.

And I think one of the things that is so important for people to understand, and this goes back to the sort of importance of naming in general, you know, being seen and referred to as yourself is a critical part of being accepted and integrated into the world and having that reflected back to you, and so I think there’s sort of two critical things about respecting a trans person’s name and pronouns that, you know, people should really try to appreciate.

I mean, the first is that it is incredibly traumatizing to be sort of constantly reminded of this past part of yourself that you worked so hard to overcome, and every person’s experience is different, but for someone like Aimee, who’s a binary trans person, who’s a woman, to be disrespected in death like that with a sort of…cultivating this idea that, at her core, she’s really this other person, who she was not, it’s just incredibly disrespectful and painful for the trans person and the people that loved them. 

I think, you know, sort of perhaps even more dangerously, although, of course, the individual experience is important. And you know, it’s so important to me as a trans person, I think that what people don’t understand, too, is it feeds into this notion that we, as trans people, are always fraudulent and covering up some truth about who we are. That we are always the sex we were assigned at birth, and that is just such a strong reflexive instinct that people have about us that we have to work so hard collectively to overcome, that when we sort of insert reminders, narrative reminders of someone’s assigned sex at birth, it reinforces the notion in the cis person in the cis world that we aren’t who we say we are.

That there’s always some other, you know, sort of more true truth about us that we’re covering up, and that is the source of so much violence against us. It is the very thing that causes so many Black trans women to be murdered on the street, the idea that they are not really women. That they are covering something up that the world is trying to control, which, obviously, is compounded by systems of white supremacy and patriarchal violence, and so when we reinforce those ideas that we can decide a trans person’s story for them, it really taps into that larger societal imperative to sort of destroy trans-ness, and we really have to be careful in fighting back against that.

00:26:25 Michele Goodwin:

Chase, I want to further explore what you were just saying in terms of violence and turn to you, T. Mychael, because we know, in researching for this show, that there are 7,500 cases reported each year of LGBTQ violence. That’s violence that’s targeted at LGBTQ communities, and we know that children are not even spared, and on our show, for this week, we were going to have a mom on who had to back out because she and her family have been attacked because she has defended and fought for her daughter, who’s trans.

And unfortunately, due to cyber bullying and so much more, she just couldn’t be on our show. So, as we think about this really sensitive issue…and I appreciate you all for sharing. T. Mychael, you mentioned your own story coming out at 14 years old and being Black and doing so. Could you give us a little bit more…could you share a little bit more about your own personal journey?

00:27:20 T. Mychael Rambo:

Yeah, I’d be happy to, Michele. Thank you for offering the opportunity to share that story or that part of me. First, I’m just so humbled and just taken by the remarks and the intellect and just the contributions of Jessica and Chase and just how you addressed the concerns that are so important, so vital to so many of us who, otherwise, don’t have a chance to express themselves because of the wherewithal or the resource to do so.

As for me, my journey from 14 on up entailed being chased home, being beaten, fighting, things that really are not uncommon for many LGBTQ members of our community. The assaults, the attacks, the harassment, those things took me into a boxing ring. I turned…my grandfather, who was tired of having me run home, said, boy, I’m going to teach you how to box. You not going to be running from these boys no more, and I thought that was really fascinating.

So I became a pugilist because the one thing I needed to be able to do was to be able to stand my ground. That was my first form of activism, was to say you not going to hit me no more. I’m not going to take your blows without fighting back, and that’s what this struggle’s really been about for all of us, this fighting back. My grandfather, that same man who was so behind me, as well as my aunt, I remember him one day when I came home bloody, and he said, boy, I’m going to love you no matter what.

I’m going to make sure that you don’t have to experience this anymore, and so that’s when we started boxing together. I became pretty good at that, but what I went on to find out is that, through the readings that I experienced as I talked to you about and the readings of Dr. King, I think about one of the quotes that’s very well known for Dr. King, which was, in the end, we may not remember the words of our enemies, but we will remember the silence of our friends.

And that’s what was the most troubling and the most devastating for me, was the silence in the ‘70s and ‘80s of people who were “my friends” who did not respond, who did not fight back for, with me, or stand as not an ally, but as an accomplice to my taking care and being cared for. That was rough for me, and it turned me into a downward spiral of addiction, cocaine and heroin and alcohol. It got me through college somehow or another.

I ended up getting a degree in marketing, then back in finance, but ended up getting a really well paid position at a bank in Texas, only to find myself so deeply immersed in my addiction, that it brought me to Minnesota to a treatment center here in Minnesota where I remained 31 years sober, but where I was able to reclaim and reframe my life, coming out clearly and firmly and confidently and very passionately as a Black gay man.

It was really something that allowed me to discover that my medium was my art form of theatre and music and song, and so I went on to become a professor a the University of Minnesota, where I currently have been there for 17 years teaching theatre and dance, and my life was really turned around because I really was able to stand up in the face of those people who were trying to marginalize and defeat me, but I was able to step back and respond to their attacks.

00:30:58 Michele Goodwin:

That had to be hard. I’m sure it wasn’t easy, and that’s the kind of experience that many people face who are in similar positions. So you began as a banker, but your story doesn’t end there because you’d become an actor, but it seems that there’s a journey in that space, as well. Can you tell us a little bit about that?

00:31:17 T. Mychael Rambo:

It wasn’t easy, and thank you for that because I sidestep that often and take for granted that it left me in Minnesota homeless. It left me in Minnesota on the streets, watching and seeing and defending and being there and becoming what they call an uncle to so many of the kids who were coming up.

And as we well know, so many numbers of trans men and women are out on the street, 16-, 17-, 18-year-olds who need someone to be there in support of them, who are not trying to take advantage or manipulate them in their journey to find themselves and to be their authentic selves. So, on the streets of Minnesota in St. Paul and Minneapolis, I went through that journey. I finally was able to get a job that allowed me to turn my life around and was discovered singing in the yogurt shop where I worked.

That opened the door to the Minnesota Opera Company, where I went on to perform there for a season. Then went on to Europe to sing throughout Europe and Switzerland, France, and Germany, and Italy. Things just really turned around for me when I was able to really stand firmly planted in my authentic self, and it allowed me to really accept who I am meant to be.

00:32:35 Michele Goodwin:

So you have a survivor story. I want to turn back to you, Chase, because what T. Mychael has opened for us are the challenges that families have, and he shared that he had a grandfather who was embracing and loving and an aunt who was, too. That’s not the story of every kid at all, and sometimes, the violence is not just on the streets, but it’s also within families, and it’s within communities and school districts. So, recently, in states like Idaho, there’ve been concerted efforts to enact legislation that would discriminate against trans youth.

One example is a proposal known as Save Women’s Sports Act, which would bar transgender girls from participating in women’s sports in public schools and colleges and allows anyone to contest a student’s gender. So, Chase, you’re counsel in the Idaho case. What’s the scoop on this, and what are some of the other threats that we see coming from the White House or from our federal agencies along this line?

00:33:46 Chase Strangio:

Yeah, no, this is just incredibly troubling, and I think it’s really important that people understand that this is part of a coordinated strategy from…you know, supported by the White House, but really coming from groups like Alliance Defending Freedom, which is an incredibly well-resourced, anti-LGBT group and anti-abortion group, as well as ALEC and the Heritage Foundation.

So you have this coordinated strategy that builds off of a strategy, that we’ve seen for many years, to attack trans people, sort of modeled after the attacks in the context of restrooms and locker rooms that we saw in 2016 with the proliferation of the bathroom rhetoric and the anti-trans bathroom bill, and tons of resources were poured into that restroom fight, and they largely lost that fight. You know, you had 200 bills introduced in 2016. Only HB2 passed in North Carolina.

They lost several fights at the ballot over the years between 2016 and 2018, but they’re incredibly well resourced, and they’re incredibly strategic, and they pivoted quickly from bathrooms to sports, and so when the 2020 legislative session started, we saw this proliferation of these anti-trans sports bills, and the bills, as you mention, you know, exclude women and girls who are trans from women’s sports under the auspices of, you know, “protecting women.”

And again, anytime we hear about rhetoric of “protecting women,” I think we should be incredibly, you know, reticent to jump on board because it’s usually used by conservative groups to continue sort of white supremacist imperialist rhetoric that grounds power, and this is in the forces that’ve always had power, and that’s exactly what’s happening here. This idea of protecting women, cis women, is being used to just perpetuate these anti-trans notions that have long been part of these anti-LGBTQ movements.

And with the sports rhetoric, you know, there is a long history in sport of regulating the bodies of women, and as soon as women were able to compete internationally in sport, you started to see these sex verification procedures that were predominantly used to regulate the bodies of Black and brown women from the global south in international competition, and going back to something Jessica said earlier, this is part of a long history of controlling who gets to be a man and who gets to be a woman.

In the United States, you can look back to slavery as an example where, you know, Black people were denied access to the categories of manhood and womanhood, and that has been central to the project of white supremacy, to sort of regulate people out of these categories, and you can see that very deeply in these sports bills, because not only do they exclude trans people from women’s sports, but they also implement these sex verification testing procedures for everyone.

00:36:39 Michele Goodwin:

Tell us more about that. What do they mean by that? We’ve seen some of this in the Olympics played out to horrific degree, and you’re right. Targeted…you know, I’m thinking about Semenya from South Africa, but tell us a little bit about this testing.

Caster Semenya takes silver in the 800m at the 2012 London Olympics (Jon Connell / Flickr)

00:36:53 Chase Strangio:

Yeah, no, and it is. It’s exactly what we’re seeing against Caster from South Africa, against Dutee Chand from India, and it’s, you know, this idea that there’s some simple biological test that the state could deploy to decide who’s “really a woman,” and we’re also talking about high school students and elementary school students. We’re not talking about international competitions.

So they’re importing a notion that comes out of international competition into the K through 12 context, and the idea is if someone’s sex is “contested,” that you could prove your sex by either your internal reproductive anatomy, your chromosomes or your endogenous hormone levels. None of these things are things that you know off the top of your head. So what we’re doing is we’re ceding to the state the ability to start to surveil our bodies and the bodies of our children in the service of building this anti-trans narrative.

So that’s I think something we should be incredibly concerned about. We’ve challenged the Idaho bill. It’s been preliminarily enjoined, and it’s on appeal at the Ninth Circuit. Just one other quick thing I want to flag is that we’re also seeing efforts in the state legislatures to criminalize healthcare for minors who are trans, and this is straight out of the anti-abortion, anti-reproductive healthcare playbook, where you’re starting to see the criminalization of doctors who are practicing standards of care medicine.

This is another way in which I think we should be incredibly concerned about how vulnerable young people are going to be attacked, not just, you know, in schools by bullies, but by the government and in such insidious ways as to see these bills, which would make it a felony to provide the care that the American Academy of Pediatrics, the American Medical Association, and the APA all say is part of the standards of care. It’s incredibly concerning, and we’ve already seen bills pre-filed for 2021, both on the anti-trans sports context and these criminal medical bans.

00:38:57 Michele Goodwin:

So, as you say, this is part of a playbook, right, and that there are organizations that are working on the ground doing this, and you know, how do you respond to something that you’ve just said, which is the question that some say, well, isn’t this protecting girls? You know, is my daughter disadvantaged somehow because there’s a trans girl who’s on the team? Address that directly because there are people who are on Facebook and social media who think that that’s a real issue.

00:39:26 Chase Strangio:

Yeah, I mean, I have multiple responses. One quick response just off the top of my head that, you know, this weekend, I heard from a family whose trans son is being excluded from the boy’s team. He’s on testosterone. He’s had chest surgery, and they’re making him play with the girls. So, again, even on the logic that they’re advancing, they’re not serving that logic. When it comes to women and girls who are trans, again, you know, there are such variations, intrasex, within our bodies, and what we love about sport and what we celebrate about sport are those differences that make some people better at sport and other people not great. The idea that every trans girl is going to excel at sport is preposterous.

00:40:04 Michele Goodwin:

Stereotype.

00:40:05 Chase Strangio:

Yeah, it’s a stereotype about our bodies and the ways in which they interact with our assumptions about maleness and femaleness.

00:40:13 Michele Goodwin:

And you see that on race, too, right? You know…

00:40:15 Chase Strangio:

Yes. Completely.

00:40:15 Michele Goodwin:

The muscular Black guy or that Black women, you know, are just built for the fields, right, and it’s all stereotype.

00:40:23 Chase Strangio:

And it’s eugenic impulses. It’s this idea to sort of control the bodies to exterminate people. You know, it’s coming from deeply not benign places, and it really is intersex so deeply. Like, if you look at cis women, like Serena Williams and Michelle Obama, they were repeatedly called men or trans.

00:40:43 Michele Goodwin:

Oh, it was horrible. That was horrible. Are we going there? Are we having the weekend show? Is this going to be our retreat show? We need 48 hours for this.

00:40:51 Chase Strangio:

Well, you asked these questions. I mean, come on, this is the stuff that, you know, is…it’s going to hurt all women. They don’t care about women’s sports. Do you think Republicans in Idaho have been funding women’s sports, have been investing in pay equity for women athletes, have been ensuring that there’s women coaches for women and girls? No, of course not.

What they want to do is regulate all women and girls with this idea that there are some people, you know, whose bodies are a threat to others, and that has a long history, and that is going to hurt tons of people if we let the state start to do this, and just quickly, the other thing to note is that, you know, in Idaho, for example, they already made trans girls suppress testosterone for a year before competing in athletics at the K through 12 level, or the high school level, at least.

That means they had comparable policies to the Olympics, and yet the State of Idaho, despite not being able to identify a single trans athlete in the state, decided that they needed a wholesale ban and a sex verification procedure, and I’m sorry, but that’s not about a threat. That’s about, you know, controlling people’s bodies.

00:42:00 Michele Goodwin:

It’s about something else. Jessica, did you want to add onto that?

00:42:03 Jessica Clarke:

One of the scariest things about the Idaho law was that it allowed an undefined group of people to challenge any kid’s sex, and that’s horrifying. Can you imagine all of the girls who could be subjected to a sex verification challenge, cisgender, transgender or somewhere in between? It’s just terrible.

00:42:26 Michele Goodwin:
You can’t make that up. It actually reminds me of the post-Thirteenth Amendment, slavery, right? So we sort of think of the Thirteenth Amendment as abolishing slavery, but it has a punishment clause that gives an exception. Except if you’re convicted of a crime in the ways in which southern states then quickly got to business creating all myriad of laws that Black people…

That targeted specifically Black people and as they put in their laws, mulattos, as well, making things like selling corn a crime or selling wheat a crime or standing on a corner, but what this brings to mind, as well, are their apprenticeship laws, which had been revered in the northeast, but in the south, these were used to entrap Black kids back into slavery so that any random white person in some states could just claim that a Black kid needed his or her apprenticeship.

And then those kids stripped away from their parents for 10, 20 years in the service of someone who is supposing to be their mentor, but has put them in a plantation or down in a coal mine, and so you just can’t make that up. All right, let’s turn to the transgender military ban, and we will get to a silver lining doing that on our show, but let’s talk about the transgender military ban.

So, during the Obama administration, there were efforts to relieve some of the historical vestiges of discrimination against trans folks in the military, and during the Trump administration, there were significant rollbacks. Jessica, can you put a finger just on some of those rollbacks related to the military and trans folks serving in the military?

00:44:13 Jessica Clarke:

Well, it started with Trump’s tweets in 2017 where he said that he was banning transgender people from military service because they’d cause tremendous medical costs and disruption, and everyone wondered, can you change military policy by a tweet, and where is he getting this from because that’s not true? And then he followed it up with a memorandum announcing that that was, indeed, the official policy.

Litigation challenging the transgender military ban followed on the ground that it was not based on any considered military judgment, and so then they decided to paper over this decision. Secretary of Defense Mattis produced a report laying out the reasons for the policy, and their argument at that point was that the ban is really about gender dysphoria as a medial condition and the costs it would have for the military, not about banning transgender people, per se, and the Supreme Court allowed that to go into effect.

And my hope is that Biden will be elected, and if he is, he’s promised to reverse that ban on day one, and I don’t think it would be hard or disruptive to the military at all to go back into the policy that was in effect from 2016 to 2019, which allowed transgender folks to serve.

00:45:49 Michele Goodwin:

So I want to turn to you, T. Mychael and Chase, with regard to what Jessica just laid out, which is behind this, too, are additional stereotypes and stigmas, including about fitness to serve and also mental health fitness, as well. Can you talk just a little bit about the kind of stereotyping of LGBTQ folks and the sort of mental health, something being wrong with folks in the community just because of who they are, which is a part, I think, of the Trump tweets and also the policy.

00:46:23 T. Mychael Rambo:

Yeah, I think that Jessica brings up some very…quite salient points about just the idea that our president, the president…I won’t say our president. The president would initiate such a ban by a tweet, but the fact that we’re still seeing such discrimination and such abysmal treatment of identifying LGBTQ members of our community in ways that really subvert us…not subvert, but subjugate us to roles that are just archaic at best.

And so I think that we’re seeing stereotyping. I teach, as I mentioned, at the university, and my colleagues struggle constantly with pronoun discussions within the classroom, and in meetings, will come back and say, why do we have to do this? Why is this important? I’m just over all of this. I mean, and it’s that sort of thing, having to rally behind our students, who really are being treated so poorly when not being allowed to live in their authentic bodies and be able to claim their identities in ways that are authentic and true to who they are.

So it’s that sort of treatment that comes out in ways that their fellow students treat them, in ways that the administration in our schools of higher learning are treating them and how they end up feeling poorly about themselves in the long haul. It’s really something we have to really work against. Absolutely.

00:47:58 Michele Goodwin:

Chase, what I want to do is turn quickly to you before we begin the last part of our show. Is to think about these histories, as well, right, because the discrimination that we see is not new. It doesn’t sort of come out of nowhere, and some people are beginning to learn about the Lavender Scare. So when we sort of think about government and discrimination here, this is not just private actors. We see government involved in this. Can you just give us a taste of what the Lavender Scare was all about and government’s involvement in discrimination against LGBTQ folks?

00:48:34 Chase Strangio:

Yeah, I mean, this history of the government situating the LGBTQ person as a sort of inherently deviant threat to national security because of this notion of our deviance has such a long history in which, you know, people were sort of weeded out of government, were tracked down, were fired because of being LGBTQ, and obviously, we know that this still happens to varying degrees.

I remember when I was representing Chelsea Manning, who was the Army whistleblower who came out as trans after she had been court-martialed, arrested, and sentenced to 35 years in prison, and her sentence was later commuted by President Obama. There was a PowerPoint presentation that we had seen that the government had been doing that connected her trans-ness to this notion that it was because she was trans that they thought of her, in part, as a threat.

That the impulse to be a traitor to the government is connected to deviant sexual and gender identity, but I also just quickly want to say that, you know, trans people and LGBT people and so many people have been punished for the fact that we have human responses to discrimination, and so I think disability justice is a great place to look here.

If we think of disability as that which society does not accommodate, then of course you’re going to have a mental health crisis when you’re dealing with generations of compounded trauma, and then the government then comes back, or the discriminator comes back, and says, see, this person is unstable and deserving of discrimination. Look, there’s high rates of suicidality. There’s high numbers of mental health visits, and it’s like, well, of course there is. You hate us.

So this cycle that happens, where people are having these human responses to the conditions under which they live and those responses are then criminalized or targeted or used as justifications for further discrimination, is part of the most insidious types of sort of cyclical discrimination and violence we see in our society against so many groups of people, and I think we really have to start looking to disability justice, to other movements to really name that, because of course we’re going to be traumatized by what happens to us.

00:50:49 Michele Goodwin:

There are these stereotypes and stigmas that are part of the American backdrop. You see it during the Antebellum period, where Black people were deemed to be mentally unstable if they didn’t want to be enslaved. That condition was called drapetomania, and it was considered to be a mental health disability to desire to be free. Sad and strange, but certainly not new, so thank you so much for raising those issues and concerns, Chase. I want us to turn to Black Lives Matter and those who say that the LGBTQ tent hasn’t been broad enough or wide enough for people of color. What’s your response to that? Let’s start with you, Chase.

00:51:31 Chase Strangio:

You know, I think when we’re talking about legal movements, there’s this way in which, because the law is so oriented towards white supremacy, that you can see how legal movements themselves often reproduce these norms, and the LGBTQ movement, the mainstream movement, has been so aligned, you know, sort of with white leadership, with wealth, with sort of assimilationist goals. That said, that’s not the history of the movement, and if you look at whether it’s the…

00:51:56 Michele Goodwin:

Stonewall and everything else, right?

00:51:58 Chase Strangio:

Yes. Yeah. Like, we have Sylvia and Marsha leading at Stonewall. You have the Young Lords being led by Sylvia and other queer people. You have Black Lives Matter being, you know, started by Black, queer women. You have, you know, so many movements, not just LGBTQ-specific movements, but racial justice movements being led by queer people of color. I mean, that is the origin story of LGBTQ justice. Movements for prison abolition, movements for, you know, Black liberation, movements for trans liberation.

So, you know, I think that we have to start the narrative as our movements are inherently aligned. There is no justice for LGBTQ people without racial justice, without economic justice, without challenging these systems of violence and discrimination, and so I just would like to see our mainstream movements really go back to our roots, whether those roots are, you know, Stonewall, whether they’re in ACT UP, whether they’re, you know, earlier. That there’s such a rich history there, and there is no justice when we’re centering the legal system and centering white leadership.

00:53:00 Michele Goodwin:

Chase, on that note…and by the way, you did drop the microphone. Here’s Michael Musto speaking about Sylvia Rivera and also Marsha P. Johnson picking up on this very issue.

00:53:12 Michael Musto:

There’s always been discrimination within the queer community, and in the ‘60s especially, a lot of the white gay men looked down on people of color. The gay males sometimes looked down on drag and trans. Marsha and Sylvia Rivera, her fellow compatriot, actually were told not to march in the Gay Pride Parade because the gays didn’t want drag queens. They thought they were bad for the image of the community. Can you imagine? This was way before Drag Race.

00:53:40 Michele Goodwin:

Regrettably, this brings us to the end of our episode, and this is a time in which we ask our guests about silver linings. What hope do we have for a better democracy, a more equal society? What do we see about LGBTQ equality that’s a silver lining? And I’m going to start with you, Jessica.

00:54:03 Jessica Clarke:

Well, I think the silver lining is that young people today are open to thinking about gender beyond the binary and pursuing reforms that don’t limit our imaginations about what sort of gender justice is possible, and I’m teaching a gender and the law class this semester, and it’s different from the classes that I taught even 10 years ago. The students are so open to thinking about non-binary genders, to thinking about all-gender restrooms, to thinking about how can we redesign sports so that sporting events showcase different bodies and skills and aren’t divided up along lines of men and women? And these kind of questions that people used to think were just crazy or off the table are now part of a mainstream conversation, and so that makes me optimistic for the future. Young people.

00:55:05 Michele Goodwin:

What about you, T. Mychael? Silver lining.

00:55:08 T. Mychael Rambo:

Jessica’s point about young people, I teach K through 12 education. I do curriculum creation for St. Paul Public Schools and helping educators infuse arts into the classroom, and to find that so many children are already wrapping their brains around these topics in third, fourth grade…I have third grade children saying my two moms, my two dads openly in the classroom of their peers.

It’s empowering to know that they have that kind of courage and that kind of fortitude and that kind of willingness to stand up in front of others and claim the truth of their families, of who they are, and what they want to see in the world, and I think that without our young people and without the fact that they are so impassioned by the construct or the conversations around Black Lives Matter and about LGBTQ rights…it’s just very empowering, and it’s very gratifying to see it happening.

00:56:08 Michele Goodwin:

Thank you, T. Mychael. Chase, close us out.

00:56:11 Chase Strangio:

Yeah, I mean, of course, echoing that, I think it’s really beautiful to see, and I think, you know, we’re having conversations now in large public ways that we didn’t have before. You know, defunding the police, decarceration, when we know so many of our LGBTQ siblings are criminalized and living in unethical sites of detention, whether it’s immigration detention, psychiatric detention, or prisons and jails, and the more that we’re shifting that conversation, the more that we’re making visible those systems, the more we’re going to be able to build, you know, more robust and expansive movements for justice. So that gives me hope.

00:56:46 Michele Goodwin:

Well, thank you all for being on the show. So greatly appreciate it. 

Guests and listeners, that’s it for today’s episode of “On the Issues with Michele Goodwin.” I want to thank my guests, Jessica Clarke, Chase Strangio and T. Mychael Rambo, for joining us and being part of this critical and insightful conversation, and to our listeners, I thank you for tuning in for the full story.

We hope you join us again for our next episode, where we will be reporting, rebelling and telling it like it is with special guests, tackling issues related to an extremely important issue, being sick and tired of being sick and tired: voting rights and voter suppression. We’ll be joined by Kristen Clarke, Judge Glenda Hatchett and Ash-Lee Woodard Henderson. It will be an episode you will not want to miss.

For more information about what we discussed today, head to MsMagazine.com, and if you believe, as we do, that women’s voices matter, that equality for all persons cannot be delayed and that rebuilding America, being un-bought and un-bossed and reclaiming our time are important, then be sure to visit us at Apple Podcasts. Look for us at MsMagazine.com for new content and special episode updates.

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“On the Issues with Michele Goodwin” is a Ms. Magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode are Maddy Pontz, Roxy Szal and Mariah Lindsay. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Marsh Allen and music by Chris J. Lee. Stephanie Wilner provides executive assistance.