Tooting My Own Horn!

On August 16, 2022, The U.S. Court of Appeals for the Fourth Circuit delivered a landmark ruling interpreting the Americans with Disabilities Act (ADA) as being transinclusive, on an appeal from a dismissal from the U.S. District Court for the Eastern District of Virginia in the following decision WILLIAMS v KINKAID, et al., 2022 WL 3364824 (4th Cir. August 16, 2022) I grant the 4th Circuit ruling on #transinclusion in the #ADA is from August 2022. For analysis published in THE HILL, See:

Americans with Disabilities Act protects transgender people, judge rules

BY Brooke Migdon - Aug. 16, 2022

Over 11 years ago, I wrote an article published in THE HILL where I predicted this outcome, based on the clear language of the statute as written

https://

Bringing order out of chaos – a modest proposal

BY JOANN PRINZIVALLI - 03/24/11 1:46 PM ET (THE HILL > CONGRESS BLOG > CIVIL RIGHTS)
espect/equality/3604307-americans-with-disabilities-act-protects-transgender-people-judge-rules/

For those who think actually reading my article is a TL:DR experience, here is the relevant quote:

civil-rights/86500-bringing-order-out-of-chaos

odest-proposal/

"While the #AmericansWithDisabilitiesAct appears to exclude transgender people, there is an exception to the statutory exclusion if the gender issue is biologically based – and the modern medical understanding of brain development indicates that this is indeed the case."

The statutory provision in question, 42 USC §12211(b)(1) involves a specific exclusion from the definition of disability in the statute, that, when it was written, also has an exception to the exclusion:

“. . . transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders”

At the time the ADA was being drafted, Senator Jesse Helms wanted to make sure that "immoral disorders" were excluded, and he, and Senator William Armstrong, both Republicans, urged their colleagues to vote against the ADA because it did not contain such an exclusion, as drafted by Senator Ted Kennedy and Senator Tom Harkin, and in order to obtain passage of the bill, the "moral" exclusions were added - but as underlined in the above quote from the statute, the exclusion for gender identity disorders had an added caveat - they were excluded ONLY if "not resulting from physical impairments." In 1965, a blue-ribbon medical commission convened by the New Yok City Department of Health, concluded that medical and surgical treatment for transsexual patients was "merely palliative: - only to make the patient feel better. At that time, medical and scientific understanding of the brain and its structures was not well known.

In 1989, when Jesse Helms insisted on excluding "immoral disorders" fromn the ADA, even he had no objection to carving out from the exclusion, those gender identity disorders resulting from physical impairments. At the time, science knew that there were genetic and developmental conditions that result in people being intersex, with several physiological conditions being well documented. But it was not until 1999 that studies identified physiological bases for the existence of transgender people - in particular, the neuron density of the central section of the Basal Stria Terminalis in the brain's hypothalamus (BSTc), and within a decade, other scientists had isolated a number of genetic traits that create genetic predispositions for such physiological developments in the brain. These advances in science made it clear that transgender people could fall into the exception to the exclusion, since the basis is not a matter of "morality" but is based in physiology. In my own 2009 lawsuit against the New York City Department of Health, relating to the New York City regulations relating to birth certificate corrections for transgender people, I was able to prevail against the City's motion to dismiss based on the scientific advances, and the City's regulations being "arbitrary and capricious," in order to overcome three very bad cases from the 1970's that had rejected the petitioner's challenges to the regulations as created after the 1965 blue ribbon commission report had been made.(Prinzivalli v. Farley, Supreme Court, New York County, No. 114372/2009 (Decision of Judge Joan Madden, 6/28/2010))

With reference to the ADA, while the Fourth Circuit ruling appears to be the first federal appellate decision, there have been previous favorable rulings following the interpretation that was suggested in my article, as had been advanced by the Obama Administration Justice Department, including: BLATT v. CABELA'S RETAIL, No. 5:14-cv-04822, 2017 WL 2178123 (E.D. Pa. May. 18, 2017) INC.

which was cited in Williams, together with a string of other later district court cases, Venson v. Gregson, No. 3:18-cv-2185, 2021 WL 673371 (S.D. Ill. Feb. 22, 2021) ; Iglesias v. True, 403 F. Supp. 3d 680 (S.D. Ill. 2019) ; Doe v. Mass. Dep't of Corr., 2018 WL 2994403 (D. Mass. 2018); Edmo v. Idaho Dep't of Corr., No. 1:17-cv-00151, 2018 WL 2745898 (D. Idaho June 7, 2018). I am certainly gratified that my 2011 article at least predicted the way the courts would interpret the ADA. Since the article does not seem to have been cited as a source, I can't conclude that my article had any direct influence on any of the federal court decisions - but those decisions were correctly made, and I am grateful for that.

A Novel Idea: Addressing Legitimate Concerns of the Opposition

Perhaps the single most important thing for Congress and state legislatures - when advancing legislation, to address legitimate fears and concerns of the opposition party(ies)/group(s).

If we dig deeply enough, the scary opposition rhetoric resonates with their supporters for some reason.

Sometimes these can be addressed through education.

Sometimes there are ways of addressing concerns without harming the effect of proposed elections.

I tried to accomplish this with GENDA, the bill that I wrote in 2002, that did not pass both houses of the New York State legislature until January 2019, after a 'blue wave' election delivered a convincing Democratic majority to the NY State Senate, but no one in the Republican Party was willing to introduce an amendment even when I actually gave them the language.

When I drafted GENDA in 2002, the operative language for trans-inclusion in the human rights law was modeled on the NYC Human Rights Law as amended that year, and the then-recently enacted Rhode Island Human Rights Law.

While GENDA was pending in the legislature, eventually becoming an annual passage in the Democrat-controlled State Assembly, and either dying in committee, or failing to advance on a committee vote, in the Republican-controlled Senate (even when a few Democrats split from the Democratic caucus and formed the IDC (Independent Democratic Caucus) to support GOP leadership as a means toward "Power sharing." (The Blue Wave in the 2018 elections would have given Regular Democrats a majority of their own, plus most of the IDC got knocked off and did not get re-elected). Around 2011, the national scene for trans-inclusive human rights laws started seeing laws being enacted (first in Connecticut, and then in several other states. including Utah in 2015). that included specific language requiring trans folks to verify their "real" status as being trans. The fear among the opposition was not about trans women in women's restrooms or locker rooms, it was actually all about men pretending to be women - as outlined in a speech made by former Arkansas Governor Mike Huckabee, in which he stated that if the law allowed it when he ws in high school, he'd have said, "Hey coach, I feel like a girl today," so he could use the girl's locker room, to ogle teen girls in various states of undress. The addition of so-called "show your papers" language (though there are many ways to establish one's bona fides) did not cause any problems in those states - and allowed those bills to move forward with Republican support.

Addressing legitimate concerns of the opposition requires the opposition to be open to negotiation. Unfortunately, it still requires all sides to participate in serious discussion.

Congress stopped doing this when the GQP adopted a scorched-earth policy against President Barack Obama, even when Obama (who is relatively conservative) introduced bills like the ACA, that were based on Republican laws (one prominent GOP think tank immediately reversing its own analysis when the ACA was introduced). In New York, I approached GOP leadership int eh Senate, with a view toward having a GOP Senator introduce an amendment to GENDA that would add that language - I even gave them the language and explained how it had worked in Connecticut and even Utah. But their reaction was more like the way Congress treated proposals coming from President Obama. In New York, the GQP Senators feared Conservative Party state chair Michael Long, who was profoundly anti-trans, and who threatened that any GOP senator who supported trans rights in any way would lose their Conservative Party line. SO, when GENDA did get passed in January 2019 with Democrats in control of the State Senate, the Republicans had lost their opportunity to help shape the legislation. There is so much legislation out there, in Congress and in state legislatures, that could benefit from the legislators on all sides actually hashing out what the real and legitimate concerns are and finding ways to address them. If legitimate concerns are being addressed, then it is not even a compromise, it's actually crafting a better bill. So many issues can be tackled this way, if only the parties are willing to be frank and honest. In today's polarized America, with the far right afraid of progressives, and vice versa, it might be time to see where there is actually common ground. It is not too late.

Recognizing the Humanity of the Oppressor

The most profound thing I have read recently, relating to why we must treat those evil forces (to me, Republican politicians like Florida's Gov. Ron DeSantis and Texas Gov. Greg Abbott, and their soul-crushing destructive agendas, both of whom somehow cruised easily to re-election, despite their evil agendas) that persecute and oppress us (LGBTQ+ people, and others), as fellow human beings. We must recognize their humanity even as they demonize us.

"And according to the Rebbe, one had to resist the temptation to split the world into good and evil, even in moments when the world was crushing the soul. One had to resist the temptation to see the world as the opposition of angelic and demonic forces. Yes, the demonic forces were twisted, fallen, distorted, perverse, unrecognizable, sick, terrifying—all of that and more. But they were not fundamentally untouchable, unreachable, unredeemable, nor were they the “other.” The great teaching of the name was, as he would have said in Yiddish, that alz ist Gott—that everything is one, because 'everything is God.' "

- Rabbi Mark Sameth, THE NAME, citing the mystical teachings of Rabbi Kalonymus Kalman Shapira

Rabbi Shapira was spiritual leader of the Hassidic community of Warsaw during World War II and was executed by Germans, at a death camp, in 1943.

He had buried in Warsaw, several years of Torah commentaries, which were published in Israel in 1960 as "Holy Fire."

The Ten Stages of Genocide as they relate to GQP Plans for Trans Kids and beyond

 (credit to Gregory H, Stanton, president of Genocide Watch)

The Ten Stages of Genocide:

The stages are:

1. Classification – The differences between people are not respected. There’s a division of ‘us’ and ‘them’ which can be carried out using stereotypes, or excluding people who are perceived to be different.
   
   
2. Symbolisation – This is a visual manifestation of hatred. Jews in Nazi Europe were forced to wear yellow stars to show that they were ‘different’. 
3. Discrimination – The dominant group denies civil rights or even citizenship to identified groups. The 1935 Nuremberg Laws stripped Jews of their German citizenship, made it illegal for them to do many jobs or to marry German non-Jews.
4. Dehumanisation – Those perceived as ‘different’ are treated with no form of human rights or personal dignity. During the Genocide in Rwanda, Tutsis were referred to as ‘cockroaches’; the Nazis referred to Jews as ‘vermin’.
   
   The first four stages as to trans kids In Texas, Florida and other "Red States," bills have been introduced, passed by the state legislatures and even enacted into law, that treat transgender children as "other" - excluding transgender girls (and boys) from participating in school sports, using the appropriate locker rooms and bathrooms.  In some of these states, trans boys are forced to use the girls' bathrooms and locker rooms, play on girls' teams (or if they won't, to abandon the sport)
   
   Making trans children use facilities that are inappropriate, marginalizes them. Calling them by "deadnames" and misgendering them  is
5. Organisation – Genocides are always planned. Regimes of hatred often train those who go on to carry out the destruction of a people.
   
   In Texas, the State Attorney general Ken Paxton, has mobilized the state Division of Child Protective Services to arrest supportive parents of trans children,
   forcibly place trans children in custody and force them to detransition
   
   In Florida, because of bad interpretations of their so-called "Don't Say Gay" law, teachers are resigning or losing their jobs, and are being replaced by unqualified military veterans who are known to be ultra-rightwing supporters of the Governor, and the governor has removed a duly elected county prosecutor who refused to kowtow to the Governor's orders.
   
   
6. Polarization – Propaganda begins to be spread by hate groups. The Nazis used the newspaper Der Stürmer to spread and incite messages of hate about Jewish people.
   
   Ultra-Right groups all over America have been demonizing trans people for years, and have been amplifying their calls to discriminate against transgender children and their supportive parents.  
7. Preparation – Perpetrators plan the genocide. They often use euphemisms such as the Nazis’ phrase ‘The Final Solution’ to cloak their intentions. They create fear of the victim group, building up armies and weapons.
   
   In Red States, they are calling some of their moves against trans and gay children "parental rights" or "protecting children" to cloak their intentions 
8. Persecution – Victims are identified because of their political beliefs, race, ethnicity, religion, sexual orientation, gender identity, or other difference, and arrest lists/death lists are drawn up. People are sometimes segregated into ghettos, deported or starved and property is often expropriated. Genocidal massacres begin.
   
   Texas and Florida are already inching into Stage 8 when it comes to transgender kids - other red states are not far behind - AND if Congress is controlled by Republicans in 2023-2024, only presidential vetoes will be able to stem the tide of national legislation to demonize trans people - and they will not stop with trans kids, or "the gays" but the white Christian Nationalists will not stop until they can go after non-christians, people of descent other then Northern European, and women, to various extents
9. Extermination – The hate group murders their identified victims in a deliberate and systematic campaign of violence. Millions of lives have been destroyed or changed beyond recognition through genocide.
10. Denial – The perpetrators or later generations deny the existence of any crime.

FOR THE WANT OF A NAIL (2022 Election Edition - post-election preliminary version)

For the want of better judicial appointments, the NY Court of Appeals was lost.

For the want of the right judges, the redistricting case was lost.

For the want of redistricting approval, the 9th and 17th Congressional Districts were lost.

And IF Republicans end up with 218 or 219 house members:

For the want of those Democratic Representatives, the Congress was lost.

All because Andrew Cuomo appointed the wrong judges.