Teaching Diversity in the Schools – Dispute Continues

The dispute over the notion of teaching about family diversity in the public schools continued December 5 before a three-judge panel of the U.S. Court of Appeals for the First Circuit. Parents David and Tonia Parker and Robert and Robin Wirthlin have appealed the earlier dismissal of their suit against the Town of Lexington and the Lexington school system over the inclusion of three books – Who’s in a Family, Molly’s Family, and King and King – in a Lexington elementary school’s diversity curriculum. The books, which the town of Lexington states were a part of its policy of teaching about diversity, include representations of families headed by same-sex couples. (See our earlier post on this case).

GLAD’s position - argued in an amicus brief submitted in support of the town and school system - is that Lexington was correct in including age-appropriate material depicting the growing diversity of American families. Because public schools are responsible for teaching values essential to a democratic society, the use of materials depicting diverse families – including gay and lesbian-headed families - is entirely proper.

Not surprisingly, interest in this case is high, as evidenced by the spectators who packed the courtroom and the very active and engaged judges, who requested that both sides provide further information on key issues raised. GLAD is watching the case closely, and will be assisting counsel for Lexington in replying to the additional questions raised by the Court.

We commend the town and school system of Lexington for remaining committed to a diversity curriculum throughout this challenge, and hope that the First Circuit will ultimately affirm Judge Wolf’s thoughtful decision in his initial dismissal of the parents’ suit.

Further Reflections on ENDA

After the House passed ENDA last week, a New York Times editorial called the vote “a significant, if long overdue, breakthrough for equality and fairness.” There’s no question that it was good to see such a high level of support in the House. And there’s no question that it is outrageous for gay men and lesbians to lose their jobs because of their sexual orientation. I am reminded that many gay men and lesbians across the country are much more vulnerable than I am in my employment. They may live with greater economic insecurity, in a social environment more openly hostile than mine, or in a state that provides them no legal protections on the state level.

Yet it’s also frustrating that we will have no vote to measure the House’s support for similarly protecting transgender people – and we are left with the sense that we could have done more. Since the president will not sign this bill into law (if it makes it through the Senate) what was accomplished by leaving transgender people outside the circle of its protection?

Lee Swislow

Incrementalism and Progress

There has been much talk in the recent debate on ENDA about the reality of political compromise and the need to accept incremental progress.

Incrementalism is a fact of political life, it’s true. It is not, however, something we need hold up as ideal, or even the best we can do. In the midst of political maneuvering and discussions of the need for compromise, it is critically important that we remain strong in voicing our vision of full equality, lest we cease to aspire to more than a compromised version of it.

GLAD’s work is primarily in the realm of impact litigation, where we have an opportunity to make dramatic progress on civil rights; attempting dramatic change through incremental, compromise-based legislation nearly inevitably results in some level of disappointment.

But the legislative process, imperfect as it may be, is also key to advancing civil rights. And it is therefore critical that those of us who have a vision of what equality truly means not be complacently satisfied with incremental change, but continue to raise our voices and work together to ensure that that uncompromised vision remains a part of the political conversation.

Lee Swislow

Finally - and Forever - a Family

It was an historic day in Maine.

So said Cumberland County Judge of Probate Joseph Mazziotti, who yesterday signed and certified documents naming Ann Courtney and Marilyn Kirby the legal parents of the two siblings they have been raising for the past six years.

Packed with friends, family, and supporters, the courtroom erupted in applause when Mazziotti announced that six-year-old Ryan and 10-year-old Michelle after years of struggle finally had two legal parents—parents he described as some of the best-qualified, most caring he’d met in his time on the bench.

“It’s a wonderful day for our family,” Marilyn said later at a celebration at the family’s home in Portland. “It’s been a long time coming.”

Read about the recent ruling by the Maine Law Court that led to this historic day.

See the Press Coverage on this Story:

WMTW.com – Channel 8, Portland (Video)

WCSH6.com – Channel 6, Portland

Portland Press Herald

Why ENDA Must Cover Sexual Orientation and Gender Identity

Posted by Jennifer Levi, GLAD Senior Staff Attorney

Ever since attending a meeting last Friday with staffers from members of Congress who have said that they are going forward with a non-inclusive ENDA, I have been thinking about 2 questions I heard from those who disagree with the nearly 300 organizations who have pushed exclusively for an inclusive ENDA. They are: (1) why can't you continue to do the educational work you started on the gender identity portion of the bill after a sexual orientation-only bill goes forward; and (2) what is the harm of the so-called incremental approach that splits off the gender identity provision and moves forward with only sexual orientation protections. My answers to these questions are related and I answer them here.

The problem with the approach is that formally dividing a bill that is intended to cover the entire lesbian, gay, bisexual, and transgender community does not reflect the experience of many of us in the community. I would argue that to be the case for most of us but certainly nothing in my answer hinges on that empirical assessment. Perhaps more importantly, what separating out the provisions does is to artificially impose a classification structure upon the community that serves to divide us in ways that we do not naturally divide ourselves.

What do I mean by this? Well, from a very personal perspective, I identify as both lesbian and transgender. How could that be? The answer is that to much of the world I appear to be a man. When I go to restaurants, servers refer to me as "sir." When I board an airplane, the people at check-in often ask why I have someone named Jennifer's identification? And, although I look like a man, my body parts are more typically associated with someone who is female. I have the name of Jennifer because it is the one my parents gave me.

Sometimes it is hard to move through the world with a masculine expression in the body of someone female. But for me, it would be harder to move through the world with a gender identity, one that is more easily read as feminine, that does not match my inner, lived sense of who I am. The difficulties I encounter stem, I believe, from having to face others' discomfort. At least I do not have to live with my own.

Certainly, there were times when I did. There were years when I tried to change the outward expression of who I am in order to get along and not have to face others' discomfort. I wore more feminine clothing, shaved my legs and removed my beard. The psychic pain of this choice was mostly unbearable. Rather than sacrifice myself, I risk and face society's discomfort with the mismatch between my gender identity/expression and my sex.

As to why I identify as lesbian, well, I nearly always have. I came out as lesbian earlier in my developmental process than I identified as transgender. My intimate relationships have mostly been with women. As someone with a mostly female physical body, identifying as lesbian has assuredly made it easier to get dates.

So, for me, and I venture to guess many in our community (pretty much all of the butch lesbians and feminine men), the characteristics of gender identity and sexual orientation are inextricably intertwined. It is nearly impossible for me to understand my identity through one lens and not the other.

The reason, I believe, there has been such an overwhelming outpouring of community support in response to Congressional efforts to strip ENDA of gender identity protections is because it is so painful, maybe indeed impossible, for the LGBT community to even understand the distinction that would be imposed upon us by a bill that advances with one and not the other.

Laws are supposed to advance protections and do no harm. Stripping ENDA of gender identity does serious harm. It forces our community to accept, and worse, advertises to the rest of society, a distinction that is artificial - one that undermines for many of us our self-identity and lived experience. Because of the inaccurate definition of community we are left with, it also makes it nearly impossible to educate because the bifurcation reflects a fundamentally flawed description of who we are.

To be sure, there was a time when the community wrestled with whether we should forge political community across the LGB and T divides. Those were hard years for many of us, personally and politically. But we as a community are completely in a different place. That different place does not reflect compromise or political correctness. Rather, I believe strongly, that it reflects growth and a development of awareness that we cannot separate sexual orientation and gender identity.

Asking us to move forward with a bill that only includes sexual orientation does a grave disservice to each of us for whom that is not a real distinction. Moreover, it does so for partisan political purposes. In the end, a "historic vote in the House" that will assuredly face a presidential veto gets us no legal protections. And, if taken on a bill that strips gender identity and leaves only sexual orientation, the vote would come at a very high cost indeed.

A Weakened ENDA makes no sense

GLAD supports a fully inclusive Employment Non Discrimination Act (“ENDA”). ENDA would make it illegal in all 50 states for employers to discriminate against employees on the basis of gender identity and sexual orientation.

In 1964, when Congress passed the Civil Rights Act protecting a number of groups from discrimination on the basis of a number of characteristics, no consideration was given to protecting gay, lesbian, bisexual and transgender people. Politically, we were simply not on the radar.

But the political climate changed significantly as awareness of gay and lesbian issues rose and, in 1994, congressional leaders advanced a bill focused narrowly on prohibiting sexual orientation-based discrimination in employment. It was thought that the narrow focus would help it pass quickly.

Of course the political weather changed yet again, becoming unfriendly to LGBT people, and ENDA languished for 13 years and with no hope of any advancement. Nearly five years ago, GLAD, Lambda, the ACLU and the National Center for Lesbian Rights joined to reexamine that very narrowly focused 1994 bill to see if it still made sense legally, strategically, politically and ethically.

In light of what we have learned and how our movement has evolved since 1994, it did not. First, our movement has increasingly become inclusive of transgender people, recognizing our shared experience and history. GLAD in fact added “gender identity and expression” to its core anti-discrimination mission on this basis. This is not only a matter of justice but a recognition that discrimination against sexual minorities comes from related sources.

As GLAD knows from the calls we get on our InfoLine, the discrimination experienced by many gay men, lesbians and bisexuals is based not directly on their sexual orientation, but on their presentation — their gender identity or expression. They are “too feminine” or “too masculine” and they make employers uncomfortable — and they’re fired.

And from a series of unprincipled court decisions dating back to the 1970s and 1980s, we learned that existing federal sex discrimination laws would not prevent employers from firing trans people unfairly.

Consequently, we felt it was critical to add language explicitly prohibiting discrimination based on gender identity or expression to proposed federal and state laws. It would protect all of us, and it was the right thing to do. Our legal groups, alongside the political groups, worked intensively with congressional leaders to a place of unity and support for the fully inclusive ENDA that became HR 2015.

Two final practical points support our position. First, our experiences in state legislatures, and most recently in Congress, involving work on hate crimes, show that legislators know how to ensure that laws protect the full community. Second, in other contexts we have learned the lessons associated with asking for less than we want and deserve. Our efforts on marriage equality prove that there is no point in our community selling itself short.

Having come to this position, it makes no sense for GLAD to support a weakened ENDA, and we would urge others to take that position as well – as nearly 300 groups across the country have. The time is right to stand together as one community supporting one bill.

Who's in a Family?

In an ongoing legal dispute, a Lexington, MA, elementary school has become the focus of a battle waged by two families – and their conservative backers – against the notion of teaching about family diversity in the school.

The school included the books Who's in a Family and King and King in its curriculum, which teaches students about many different kinds of families. Both books present non-judgmental depictions of same-sex couples and their families.

The parents of two students - David and Tonia Parker and Robert and Robin Wirthlin - filed a lawsuit in federal court claiming the school violated their constitutional rights by exposing their children to this information. They assert that their religion considers homosexuality immoral, and that by including materials depicting same-sex families, the school violated their rights under the U.S. Constitution to control the upbringing of their children and to the free exercise of their religion.

The suit was initially dismissed in U.S District Court by Judge Mark L. Wolf, who said in his decision: “under the Constitution public schools are entitled to teach anything that is reasonably related to the goals of preparing students to become engaged and productive citizens in our democracy. Diversity is a hallmark of our nation. It is increasingly evident that our diversity includes differences in sexual orientation."

Judge Wolf went on to say: "The constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children and that teachings which contradict a parent’s religious beliefs do not violate their First Amendment right to exercise their religion.”

The dispute continues, however, as the Parkers and Wirthlin's have appealed the decision to the U.S. Court of Appeals for the First Circuit.

GLAD views this suit as an attempt to intimidate schools away from an inclusive curriculum. Public schools should feel confident about teaching this material. The most recent census data demonstrates that lesbian and gay families live in virtually every U.S. county. To the extent that a public school includes a curriculum about families and teaches about what makes a family, that curriculum ought to reflect the demographic reality that same-sex families exist.

Students learning about different kinds of families have a right to learn that a family can have two moms or two dads and still be a loving family.