Res Ipsa Loquitur

Yeah, it’s hard to think of anything to add, so I’m just leaving the floor to Nebraska State Senator Hunt:

Agree to disagree

Wonkette highlights this quote from Democratic Senator Chris Murphy:

“I worry that we are entering a world where we don’t talk unless people are 110 percent in alignment with us.”

Of course this is idiocy. Lordy, if feminists didn’t disagree with each other all the time we’d have 90% less to say. We are constantly speaking to those who disagree. What was Mitsue Yamada’s work except daring and cogent protest against the forces pushing her to the margins not only in US society at large, dominated by men and masculinity as it is, but even within feminism?

What were the sex wars of the 1980s if not shatteringly strong disagreements? Without disagreement, how does one even begin to explain the hundred years of mainstream feminists’ eye-rolling whenever the socialist feminists enter the room? How could anyone ever explain that one joke about Judith Butler that was retold 170 billion times in the 1990s?

Disagreement is the heart and soul of the left. It is loud and messy and frustrating and painful. It leaves people who shop at the supermarket feeling judged and people who shop at the co-op feeling hopeless.

But it also is the only thing that has ever led to progress in socio-political ethics. The world gets better because we disagree.

Humans have always treated out-groups differently than in-groups. We have, for ages now, defined our progress largely by an ever-expanding definition of the “in-group”. The US constitution has been one of the best examples of this: at its drafting the monied and educated white men who gathered to create it guaranteed themselves treatment that they thought just and fair. Over the centuries since, we have been adding groups to those previously protected — Black people, people in other states, Chinese immigrants, women, and so on. While what constitutes just treatment has also evolved, this too has happened largely through comparing the treatment of some to the treatment of others.

The defining trait of conservatives is the drawing of a line to say, “This many are in my in-group, but no more! The remainder are outsiders because they deserve to be outsiders. Prohibitions against the immoral treatment of others do not apply to the treatment of them.”

The defining trait of progressives is a recognition that the definition of the in-group is not yet expansive enough. But just as conservatives can differ about where to draw the limits of the in-group, so can progressives. White supremacist nationalists might draw the line one particular way, while theocratic christians might draw a different boundary encompassing many of the same people, but not all. Meanwhile one progressive might fight strenuously for the right of people with disabilities to :gasp: sexual self-determination, while another might fight strenuously for the right of Black boys and men to respectful treatment by the police.

Those two hypothetical progressives disagree not only on the out-group most in need of inclusion, but also on the forms of marginalization and exclusion from ethical consideration that most pressingly demand elimination.

Chauvin is an example of how policing excludes Black people from the ethical protections of our shared humanity to which in-group status would entitle them, and Chauvin is not even the worst example of this. Murderers like Chauvin begin now to receive the widespread infamy they have always deserved. To suggest that this might not be our most important fight would understandably provoke criticism, and the farther that suggestion travels, the more likely some of the criticism will take terrible forms.

But sexual self-determination for people with disabilities is not a trivial issue. In myriad ways we are denied sexual education and experience. As a result, not only are we cut off from an entire realm of human connection and prevented from ever fully participating in society, but we are portrayed as innocent in a way that allows sexual assault and rape to flourish. Our rapists believe that we are unable to comprehend or experience sexuality in a way that would make us truly victims, thus rationalizing generation after generation of abuse. Our family, caretakers, and educators deny us the conversations and sometimes even the vocabulary necessary to identify (much less protest) the harms inflicted upon us. The rapists literally depend on those charged with our care to silence our screams, and they are not disappointed.

How can we justify agitating for more attention to those whose violations at least get some when some violations get no attention at all? The rapes of children with disabilities get at least nominal condemnation, if no effort at solving the issue, but as yet we have no name for the denial to people with disabilities of puppy love, making out, marriage, fucking and all the rest. This entire world of human interaction which is the basis for connection after connection, historically a world through which one group would literally join with another to form a new, larger group for defense, political connection, sharing of labor and wealth, this gigantic source of human strength and vulnerability and growth and joy is denied millions with no comment or discussion at all. How can this be unworthy of our activist efforts?

It takes little to see, once the words are on the page, how those fighting on either of these fronts could see the other as a dangerous distraction, a waste of energies best directed elsewhere. How do you respectfully tell the bereaved mother of Atatiana Jefferson that racist police violence has received enough attention? How do you tell the medicalized woman raped by her caretaker but denied the necessary assistance to travel to her boyfriend’s house that we have helped her enough, she has no right to ask for more or better?

Our issues are pressing. It is a tribute to our passion for inclusion that some of us will disagree. Some of us will spend more energy on the issue closest to home, or the one on which we have the most expertise. We need that. We need the personal stories because indeed the comparative importance our society places on the stories of Benjamin Franklin and Venture Smith is part of our problem.

But being progressive isn’t to be perfect, and so long as our issues are pressing, some of us will desperate as well as passionate. Desperate disagreements are not polite disagreements.

We are disagreeing passionately and desperately, but the left is disagreeing about the right things, and has been for as long as it has been the left.

“Ain’t I a woman?” asked Sojourner Truth.

Dr. King warned:

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

And add to this words from Kimberlé Crenshaw:

a large and continuing project for subordinated people … is thinking about the way power has clustered around certain categories and is exercised against others. This project attempts to unveil the processes of subordination and the various ways those processes are experienced by people who are subordinated and people who are privileged by them. … And this project’s most pressing problem, in many if not most cases, is not the existence of the categories, but rather the particular values attached to them and the way those values foster and create social hierarchies

We of the left are in a constant struggle, but not so much over the need to expand our in-group, to love more, to provide more, to include more amongst those we love as ourselves. No, in a world with such violence and desperation amidst our margins, the questions that provoke the fiercest responses are those about whom to save in the finite today, for tomorrow will be too late for many.

It would break my heart if we could not hear people scream at the lifeguard saving a Black boy that the crippled girl is drowning just as certainly. When George Floyd whispers for his mother, his lungs near empty at the last, when the nameless, hidden woman with Down syndrome cannot find the word for rape to speak it, when she is silenced by the admonishment that her weekly bleeding is menstruation at what volume should I scream?

When I hear the angry, wounded shrieks of those who have brought these two into their in-group, who cry out as if they themselves were being raped, being murdered, my concern is not for the ringing in the ears of some. Our empathy is a moral victory. Our rage is moral genius.

To those like Chris Murphy who complain about the messy, turbulent, painful noise of the subjugated, the dispossessed, the marginalized, the other, I say that love will win. We progressives will expand the in-group and expand it again, and every generation the conservatives will defend a new, larger boundary. And you may lose your hearing from the cacophonic din, but we will yell because we must, because our morality demands it. And when we fall steeply into our last and lasting sleep, we will dream of the day when our boundaries compass the entirety of the world, when the screaming ends not because it violates a norm of propriety but because there is no longer any desperation to yell out.

What will you dream?

Abortion is a trans rights issue, and trans rights are reproductive rights

So memorably (to me anyway) I once gave a speech at a small but influential gathering in defense of the Lovejoy Surgicenter clinic in Portland, Oregon. The so-called “Lovejoy clinic” provided abortions to women and others in need for fifty goddamn years, starting before Roe guaranteed abortion rights at the federal level. It was not a Planned Parenthood clinic, though it did frequently work closely with Planned Parenthood Columbia Willamette. This did not happen without attacks and certainly not without protest. So you can imagine that supportive rallies were needed there on many occasions.

At the rally I attended, and where I spoke, a number of people from the board of PP-CW and the Lovejoy clinic and Oregon NARAL also attended, and they were listening. I briefly spoke about the state of trans freedom and trans health care and the political attacks on both. Few people if anyone seemed aware of any of this, but that was kinda my point. I said that the attempt to assert public control over individuals’ genitals and health care and especially health care having anything to do with genitals was all of a piece. For that reason, I argued, trans people must stand up and count themselves among the fighters for abortion rights whether or not we are people who are able to become pregnant. After the rally I was approached by a number of heavy hitters in Oregon’s reproductive rights community and we spoke for maybe an hour, certainly much longer than I had planned to be at the rally. I remember being quite late to get home.

Within two years support for abortion rights among trans people in Portland had increased and PPCW had begun providing a small amount of trans health care. Now, I have no idea whether or not showing up that day had anything to do with the beginning of PPCW’s slow shift into providing more and more care to trans patients. And if I affected the trans community’s willingness to take on abortion access as a trans issue it was more from general haranguing over years in personal conversations than it was that rally where few if any other trans people joined up and no others spoke. But it’s clear that something was happening around then, and that I was a part of it, and that a community was opening up that had felt besieged and often had little time for issues like anti-domestic violence or reproductive rights work that didn’t seem to fit into the narrow definition of trans issues that then existed.

And look, if you don’t know what it’s like to be besieged, just try being an out trans person thirty years ago, whoo, sibling.

The point of all this is that there’s a right way and a wrong way to expand your issues. When you see your issues linked with issues that are historically not your issues a good approach to this might be to say, “Hey, I notice this link, and because I care about my issues, I care about yours.” This is not only good ally work, but it also can be the start of something special, as in Portland 25 years ago where we went further. As trans people and people fighting for reproductive rights, we held hands like Marcie and goddamned Peppermint Patty and told each other, “Because I care about my issues, your issues are my issues.” Trans people gave more money to reproductive rights organizations than they had previously and out trans people began working in reproductive rights organizations. At the same time reproductive rights organizations started offering care to trans people right there in their clinics.

It was a beautiful thing to witness (and none of my doing, since I did not work in those organizations and I have never provided abortions or trans health care or health care of any kind besides bandaids and such for kids) and I will always love Portland for it.

More often though, we fall short of that. Humans gonna human, right? I have limits on my expertise and I can’t always talk about Black women, chemical hair straighteners, racism, and cancer (though that’s an article I’ve been wanting to write for two weeks now) because white MtF person touching on Black women’s hair? That can get tangled and uncomfortable real quick, and as necessary as it is that white people talk about how racism is giving Black women cancer, it’s not entirely unreasonable to be afraid of fucking up on the topic and that can make writing about it a little more fraught, a little more draining, and a little more time consuming than writing about other topics. We’re human, and this is mostly okay.

But mostly okay is not ALL okay. When we get complacent, or when we seem to get complacent, it becomes necessary for one asshole to speak up and ask if we’re really doing our best here. It doesn’t feel great, usually, but it’s often necessary for the overall effort of getting better over time.

It is in this spirit that I’m gonna take some shots at Christina Cauterucci’s recent Slate article Abortion Is So Popular Republicans Are Inventing Conspiracy Theories to Trick Americans Into Voting Against It. Since this article appeared on Slate and was linked in the Wonkette TABS! roundup, I am sure all good liberals have read it. And if you know it then you know that a huge part of it is summed up here:

Abortion bans are unpopular. So unpopular that Republican extremists seem to have to invent conspiracy theories to trick Americans into voting for them.

That’s the major takeaway from recent political battles in Ohio, Michigan, and Wisconsin. In all three states, abortion-related ballot initiatives and elections were framed by right-wing groups as the only thing standing between parents and “trans ideology” in the classroom. …

This is the new playbook. Using the specter of child corruption and social contagion, Republicans are attempting to manipulate parents, scapegoat trans and queer people, and erode multiple axes of bodily autonomy, all in one fell swoop.

Cauterucci brings the receipts. The article is, indeed a great summation of “the new playbook”.

What it is not, however, is any kind of call for trans advocates and feminist reproductive rights advocates to work together. The existence of trans people is portrayed as a chink in abortion defenders’ armour:

These groups believe that by agitating conservatives and uniting voters against a trans boogeyman, they can get people to ignore their own support for (or indifference to) abortion rights and eagerly line up to give those rights away.

And sure, we are that I guess. Cauterucci quotes a Republican scare-ad saying that we are

Malicious entities from out of state [that] are arriving in sheep’s clothing to “encourage sex changes for kids” and sneak “trans ideology” into schoolrooms

Fortunately Cauterucci has a more reassuring message. In her telling, cissexist scaremongering and the demonization of trans people is bad, but it’s also nothing to worry about:

It’s no surprise that GOP operatives are trying to divert the focus to literally any other issue where they perceive themselves to have the upper hand, though it is horrifying to see that they believe virulent transphobia is a winning enough position that it may convince voters to sign away their access to legal abortion. The only silver lining, in Ohio as in Wisconsin as in Michigan, is that the bait-and-switch doesn’t seem to be working.

In this article trans people aren’t the enemy. Instead, trans people are the helpless tools of the enemy. But we can be hopeful because trans people’s issues aren’t our issues, they are “other issues” and no one thinks that they’re protecting trans people when they vote for reproductive freedom.

And again, because I’m about to be THAT ASSHOLE, this is an article written by Cauterucci, not Cauterucci’s whole life and philosophy. For all I know, Cauterucci is trans. And lord knows I’ve had a piece or two of my own edited to say something that I didn’t want the piece to say, so let’s get together and agree here that no one is interested in demonizing Cauterucci.

And also, too, there’s room in the wide world for some articles that are single-issue. It’s popular to say in trendy living rooms within a ten foot radius of my fat ass that my feminism will be intersectional or it will be bullshit, but sometimes the question for the day really is nothing more than, “What is the current GOP strategy?” with no room for any sidetracks into whether it’s good or bad or how best to fight it.

And, of course, we’re human beings with limited space in a brains and in our hearts for all the issues that matter. If you’re doing your best and you just don’t get trans issues and don’t have room in your whatever for trans people or trans advocacy, I would much rather you embrace and create positive momentum towards resolution on issues you do have the time and energy to address, whether that’s climate change or voting rights or abortion, than give up on everything because it’s not in you to do something intersectionally.

But there is a problem if pieces like’s Cauterucci’s work for Slate become common, and in my opinion they have become common enough to reach this threshold. However much you would like to give zero points to the theocratic right on any and every question, they’re not actually wrong to think that trans rights and reproductive rights are related. In many cases this is direct and explicit: governments often have and often still do require proof of sterilization before changes to legal sex can be made. FtM people can and do get pregnant, can and do access abortion. Trans people of all flavours use condoms and lube and antibiotics for our STDs. In other cases, it is more indirect. Indeed whether you believe (as I do and any reasonable person does) that the political right’s attacks on trans people during recent reproductive rights ballot campaigns have been deceptive to mendacious red herrings and demonization, it is certainly true that the theocrats are creating ever more links between the issues.

I said 25 years ago in that after-demo discussion that the desire to control others’ reproductive systems is related in the theocrats’ own minds, and if I tolerate fascistic reproductive control so long as there’s a special exception for me, I am tolerating the existence of an ideology that would destroy me the moment it had the chance. This is equally true for trans people who tolerate anti-abortion attacks and for reproductive rights advocates who tolerate anti-trans attacks.

I said at the time that I fight for reproductive rights for many reasons, but not least because it is in my enlightened self-interest. And so it is for people whose primary issue is reproductive rights: if the general lefty public went all in on fighting for trans rights thirty years ago, could the theocrats use trans people as a wedge to split (or threaten to split) support for abortion rights today? Well, of course not.

So it pains me to see the mistakes born of near-universal ignorance repeated in a time of near-universal access to information about trans lives. Take the passage in Cauterucci’s article that addresses the 2022 campaign for a reproductive rights amendment in Michigan. The amendment found in Michigan Proposal 3 read, in part:

Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.

The right wing opponents were going to try to make this about trans people, and the most convenient portion of the amendment for their purposes was the right to make decisions related to “sterilization”. Cauterucci explains:

Conservatives spent the months before the election trying to convince voters that the inclusion of the term “sterilization” was a sneaky admission, by Democrats, that they would be legalizing secret gender-affirming surgeries for children.

Now, Proposal 3 was not a secret effort to hack up children’s bodies, much less an admission of our dastardly plan to do so. Cauterucci goes on to explain that at some length, citing the fact that puberty blockers do not cause sterilization and that

[l]egal analysts who responded in the Detroit Free Press said the abortion rights amendment in Michigan was not written to legalize clandestine procedures for children, nor could it be reasonably interpreted as such by a judge.

None of this is wrong, of course, but there’s a really odd element to all this. Cauterucci quotes a theocratic opponent of human rights thus:

“A constitutional right to ‘sterilization’ surely includes a right to be sterilized to align one’s sex and gender identity,” wrote a spokesperson for Citizens to Support MI Women & Children, the PAC that funded the ads, in an email to the Detroit Free Press. “The majority of voters do not support a 12-year-old girl’s right to sterilization without her parent’s notice or consent.”

And while she does an admirable job attacking scaremongering about trans kids getting access to surgery without parental notice or consent, never once does her piece even acknowledge, much less find importance in, the fact that the first part of this terrible statement is actually correct: sterilization is a normal and expected result for most gender confirmation surgeries that alter the reproductive organs. Thus Michigan’s Proposal 3 is a constitutional amendment with provisions of special importance to trans people.

Now as I said, not every piece of journalism needs be intersectional, but Cauterucci in this piece does everything possible to convince readers that trans lives have nothing at all to do with reproductive rights and there is nothing related to trans persons or trans health care on the ballot in the measures the article analyzes. Sure, the focus is on countering myths about trans health care for children, but when the quotes an author brings in explicitly raise a valid connection (trans people have a health care interest in a right to sterilization), it is up to the author to address that. By remaining silent on the issue Cauterucci gives the impression of believing that not only is the connection to trans children scare mongering that should not (and did not) prevent people from voting for reproductive rights, but also that any connection to trans adults is illusory. As a result, trans people are being given the impression (rightly or wrongly) that we are unimportant to Cauterucci and her fellow travellers, at least in a reproductive rights context, beyond the extent to which we are useful weapons of the Right.

This is, of course, wrong. I was denied health care in the early 90s specifically because the treatment path I sought included surgical removal of the gonads, and doctors wanted to prevent me from “suffering” sterilization. Nor was I alone in that experience. Other trans people around the world in cultures as disparate as Iran and Sweden have been forced or coerced into sterilization by government law or policy. The trans struggle for the right to self-determination on health care which includes sterilization (even when that is not the primary goal) has been waged for decades.

The inclusion of sterilization in Michigan’s Proposal 3 was therefore a huge win for trans people who had been both denied sterilizing procedures and forcibly sterilized. (It was also, by the by, a huge win for black women, women with certain disabilities, and poor women on government assistance because all of these are groups that have been targeted for sterilization without consent throughout the twentieth century and into the twenty-first.) While the Proposal 3 vote had concluded before Cauterucci began writing the article, it is an odd choice to omit any notion that the much-contested sterilization right might have been a point of attack for the theocrats, but it also served as an opportunity for diversifying and expanding support among people with disabilities, poor people, trans people, and Black women.

It is hard not to come to the conclusion that trans people and trans advocates being spoken of as if an irrelevant distraction to issues of reproductive rights rather than a vital constituency and natural coalition partners was not accidental. This was almost certainly an intentional framing for this article (possibly by Cauterucci, possibly by an editor). And to my dismay, this is far from the only article to be written in such a way. Cauterucci’s piece is not uniquely guilty, but it was reading it that it become clear that now is time to push back.

If you are a reproductive rights advocate, I want to first say thank you. But then I want to tell you that it’s fucking time you stood up (if you haven’t been already and for years the way Planned Parenthood Columiba Willamette has been) and interrupted the framing that portrays trans rights and abortion rights as separate issues unfortunately and erroneously connected only by the actions of a mendacious and theocratic right wing.

If nothing else, do it for your own fucking self-interest. If trans people weren’t societies’ demons, then the existence of trans people and the protection of trans rights could not be used against the efforts to protect reproductive rights. If our demonic status didn’t make letters about us such good fundraising material, the enemies of reproductive rights would have less cash on hand with which to work mischief. And while trans people are society’s demons, we are also natural allies you should be targeting for recruitment. You should be aware of how the fight for the right to self-determine access to sterilizing or potentially sterilizing health care gives racial justice advocates, disability rights advocates, economic justice advocates and, yes, trans advocates a huge stake in this fight. It motivates us. It causes us to join with people that have not been historically welcoming of us prior to the 1990s and in many areas are still not. You should know how to rally your allies, to bring people together, to forge a movement. You should know this even if you don’t actually give a fuck about trans people or Black women or folks with Down Syndrome. You should know this because it will make you more successful in fighting for the cause you hold most dear to your own heart.

But I’m hoping that at least some of you will challenge articles like this one in Slate because my issues are your issues. I would like you to see that Cauterucci’s attempt to divorce trans rights from reproductive rights bisects actual human beings, people you care about, people you might even love if you got to know them.

Abortion is a trans rights issue. Trans rights are reproductive rights. Just because people who lie about adolescent trans health care say that our issues are linked doesn’t actually mean that they aren’t. Nor do we suddenly have to avert our eyes from our common interests.

So when you’re speaking or writing about reproductive rights, don’t use the framing that trans rights aren’t reproductive rights. Don’t let the trans people unafraid to be associated with baby killers be braver than reproductive rights advocates that risk being associated with child molesting mutilators. We can counter the harmful myths about child predation without throwing each other out of our purer organizations.

In short: be my goddamned Peppermint Patty and I will be your Marcie and the world can be a whole lot better than if we each ignore the other’s issues as irrelevant distractions from our own, at best worthy but unrelated causes wrongfully conflated by the Right and at worst frustrating vulnerabilities which we must disavow, even excise from our movement.

We’re in this together. Let’s act like it.

Charles Hamilton Houston and the Montana environment case

Charles Hamilton Houston is the legal genius and absolute giant of the current USA constitutional order whom you are least likely to know — unless you’re Black. And even then, maybe not unless you’re a lawyer.

Born in the late 19th century, Howard lived about eight and a half months of his life before Plessy v. Fergusson declared “separate but equal” Jim Crow laws constitutionally sound. He would die before that changed, but he was the first one to see that change, the shape of it, the mechanism of it, the inevitability of it.

He became an attorney and co-founded the Washington Bar Association (an affiliate of the still-new National Bar Association) when the American Bar would not admit Black lawyers. Recruited to Howard University, he became the Vice Dean of the school, as well as Dean of its law school. With so few law schools open to Black students at the time, his bios describe him as directly teaching or mentoring up to one quarter of American Black law students during his Howard years.

In addition to his teaching, however, he was an activist. His particular genius was in seeing the judiciary as made up of flawed human beings and playing to human judges while arguing the law.

When he set out to overturn the doctrine of separate but equal, he knew he could not mount a frontal attack. Rather he predicated his arguments on Plessy; its own internal flaws would eventually bring it down, and Houston was content to portray himself as non-threatening while they did. Rather than argue overtly that Plessy must be struck — at least in early cases — Houston argued instead that Plessy was good law that must be actively applied. While that seems a contrary thing for a Black lawyer to argue, he knew differently.

Initial use of Plessy was as a club wielded by whites against Black equality. But Houston saw how this use focussed on separateness to the exclusion of equality. As a result, he set up the case of Missouri ex rel Gaines v. Canada. In this case he took the state of Missouri to task for having a segregated, whites-only law school and… no law school at all for Black students. While one might trust whites to rationalize terrible facilities given to Black students as all they deserve, it was impossible to (honestly) argue that nothing was equal to something.

Houston, then, backed white racist judges into a corner. They had always valued Plessyfor its ability to keep Black folk separate, but they valued themselves as an honest intellectual elite. Indeed, this was part of what made whites better to the racist mind. To discard the promise of equality in Plessy would be to accuse themselves of never having been honest about the nature of the case and its precedent in the first place. In order to preserve the honour that, they believed, made them better than Black Americans, they were goaded into following their own law. Missouri could not enforce “separate” without also enforcing “equal”. In order to cling to the sense of superiority which justified white racism, Houston forced judges to hand him the tools with which he and his protégés (notably Thurgood Marshall) would dismantle its legal enforcement.

I would enjoy writing a longer essay about Houston and the line of cases leading up to Brown v. Board of Education (Topeka, Kansas), et. al. but this is not that post. Instead, I want to set up ex rel Gaines as a comparison to Rikki Held, et. al. v State of Montana. This latter case was a suit brought by a number of Montana children seeking to enforce the Montana constitution’s environment clause, which reads like so:

Art 9, s 1:
(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

Emphasis mine.

In our modern times, conservative jurists absolutely love to blither and blather about their textualism and their fealty to principles. Conservatives are loyal to the clear text of state and federal constitutions, even when this is inconvenient for their policies, they insist. It is the activist left who would ignore plain language in favour of outcome, they would like you to believe.

Unfortunately for the left, this isn’t true, but in the federal constitution there is a great deal of silence on issues of import to liberals. While we can and should deride the mendacious conservatives of SCOTUS for inventing new doctrines contrary to their beloved originalism and shoehorning them into any silent crevice in constitutional law, the Montana environment clause is, like Plessy, extraordinarily and uncomfortably clear. For the conservatives to maintain the myth of honour they sell themselves in the mirror each morning, they must occasionally pay a small price. The outcome in Held is one of the largest such payments, but it was mandated by their narcissistic, self-laudatory conception of their own goodness.

If they were able to see where this all will lead, the trial court judge might have ruled otherwise. Indeed the appellate courts in Montana still might. But as Houston forced the judiciary to agree in ex rel Gaines that for “separate” to have teeth, “equal” must also have teeth or else white judges had always been dishonest, counsel for Held, et. al. forces conservative judges to agree that text as clear as Montana’s environment clause must have teeth or textualism — and more importantly, textualists — have no honour and have never been honest.

Just as in ex rel Gaines, the victory here is minimal. Houston won a promise that Missouri would eventually set up a separate law school for Black and indigenous law students, Held and her co-plaintiffs have won only the modest victory Montana may no longer ban environmental impact statements’ discussion of climate change and the roles of molecules such as carbon dioxide, methane, and hydrocarbon chains.

But while the instant victory is minimal, the precedent is vastly important. Houston forced white judges to grant power to the promise of equality. Held’s lawyers are forcing conservative — not to say white again — judges to grant power to the promise of “a clean and healthful environment”.

In the 1930s any knowledgeable observer could predict that Jim Crow must eventually fall before its own most powerful precedent because the entire point of separateness was the promise to whites that they would be treated better than Black persons. Separate but equal was a lie the whole time, but it required the cooperation of a hostile judiciary to expose. Houston’s genius was taking white racists at their word and forcing them to choose what was more important, Jim Crow, or their own heroic self-conceptions. Ex rel Gaines was the lever which he used to separate the Jim Crow laws from their white defender’s egos.

It would be easy to focus on the limits of yesterday’s victory in Held, but by forcing Montana’s courts to recognize that the environment clause is as much text, and therefore as enforceable as any other element of the state constitution, Nikki Held’s lawyers have created the lever with which the conservative attachment to fossil fuels can be pried apart from their devotion to textualism and the self-aggrandizing ego kick it provides.

There are important differences here, of course. The largest is that this is a state decision, and most states do not have a similar guarantee. There is also reason for concern if we intended to rely only on the courts. After all, from Gaines to Brown took 16 years. Surely some of us will not live another 16 years; Houston himself never saw Brown, having lived only 12 more years after Gaines.

But for me, I see great promise in this approach. And if nothing else, it provides an important opportunity to talk about one of my favourite lawyers and how he showed that the secret humanity of judges we tend to mythologize as objective can work in the favour of a clever advocate.

Charles Hamilton Houston and the Montana environment case

Eliminationism Starts With Language

25 years ago at the annual meeting of Portland’s Lesbian Community Project, there was a motion on the floor to adopt a statement recognizing trans people as partners in liberation and trans women who joined LCP as full members with rights indistinguishable from other members.

During the discussion from the floor the people who objected to the proposal also rejected all the language necessary to talk about the proposal. They insisted that they were not cis, not “not trans”, and not “non-trans”. There was no language acceptable to them which would even allow the debate to be had. Woman, lesbian, and normal were all terms to be used exclusively for them and those these opponents personally validated.

Cis objections to the word “cis” as well as phrases like “non-trans” are 100% about who controls “normal”, but the effort to control “normal” is not an end of it’s own. Controlling language or normality and other words and phrases central to discussing the social realities of sex and gender are also about whether or not we are even allowed to have conversations. If opponents of gender liberation sufficiently control the language, then certain ideas cannot be effectively communicated, and meaningful understandings of trans lives cannot even be articulated. Without those understandings, that information about who trans people are, what the trans experience is, and even what is meant by the word trans, there can be no such thing as trans advocacy.

And that is the world they wish to occupy: a world in which they are not merely centred as “normal”, but a world in which no one can say transness exists, and no argument could ever be articulated in favour of trans humanity. Imagine a world in which sex and gender discrimination is banned, but so is deviation from sex and gender norms. It sounds weirdly dystopian, but it’s exactly the world we’ve occupied for much of my life.

For the cis supremacists, rebutting the arguments that trans people are people and that trans rights are human rights is tiring, and places them on the defensive. It even, occasionally, causes them to appear gauche.Their response to the debilitating possibility that they might feel awkward is, obviously, that language must be constructed such that those arguments cannot exist in the first place. Likewise books that make such arguments must be banned. They aren’t resistant to a particular position on the best way to construct a just world. Like the racists with whom John Venn would be happy to show their extensive overlap, they object to any effort to create a just world.

Their answer (book banning, language control) is also, not incidentally, the answer arrived at by IngSoc, who did not defend their positions so much as obviate defense by eliminating critique: first by linguistic control, later by thought control, and in the last resort, by death.

While some people have resisted labeling the massive, coordinated attack on trans people as genocide because individual trans persons aren’t being killed in sufficient numbers, this belies the definition of genocide itself. Genocide is not about killing individuals, though that can be one tactic of those committing this greatest of crimes. Rather genocide is the effort to destroy a people as a people.

Imagine an invasion of Belgium that was followed by a ban on referring to Belgium as a separate country from its invader, let’s say Ireland because we know how evil those Irish are. Now imagine this invasion is followed by rewriting textbooks to declare great artists and writers of Belgium’s past to be Irish and teaching only English and Irish languages in schools. Imagine Ireland holding birthday celebrations the “Irish” artists they have claimed. Imagine Leopold the II portrayed as a corrupt rebel, with Belgians who reject the usurper and embrace Irish identity absolved of any need to make reparations to the large number of people who have been harmed by Belgian slavery and exploitation in the Congo region. Imagine an ongoing campaign to abolish the very idea that there is or ever was a legitimate “Belgium”. Those who, in the past, used the word to describe Ireland’s continental territory are acknowledged, but only in the sense that the newly Irish population admits that criminals in the past attempted — and failed — to create a Belgium out of evil and dreams.

There is no doubt that this would be recognized as. a campaign of genocide. The intent is not to kill individuals, true, but it is still an intent to end the Belgian people as a distinct people.

Fortunately, these depraved Irish instincts are being restrained, for now, by what I must presume are truly heroic Irish activists. The same cannot be said for the cissexist campaign to colonize gender. They wish to own all the perspectives, to control which ones are acceptable, which ones normal, which ones even speakable. They do not wish to have a discussion about the true nature of Irishness gender or historical definitions of Ireland woman or Irish feminine. They wish to eliminate such discussions entirely.

But the eliminationist response to threats to default status, the eliminationist response to questioning what is normal, is not separate from the public calls to end transness in public life. It may be that the book GenderQueer raises a challenge to hegemonic notions of gender. But when the books are gone, when the word is forbidden, how we choose to act or dress, the names on our drivers’ licenses, the brash insistence that we own our own bodies will wordlessly raise these same questions. Only then the cis supremacists will only be more frustrated: with the language of transness banned, how will they even articulate our crimes?

Ultimately the logic of language control, the imperative to colonize and control “normal” extends to the control of bodies, as we have seen with bans on health care. And what is to be done with a body that cannot be made to comply?

There is no reason to believe that those working to control language and to deny trans people the right to articulate a liberatory advocacy will be able to stop its eliminationist core from eliminating people once its disciples’ attacks on language and thought and argument prove less than 100% effective.

But even should organized, large-scale, train-car loading attacks on trans people never arrive, this is still an attempt to control more than language. It is an attempt to render invisible and inconsequential, to render irrelevant and unnoticeable, the trans individuals near them. But as both they and we are everywhere, it is also an attempt to render invisible, inconsequential, irrelevant and even non-existent trans communities as trans communities. It is an attempt to eliminate not trans persons per se, but to eliminate the trans people as a people.

Of course this is an attempted genocide. The world may choose not to recognize it for its lack of machetes or smallpox-infested blankets or poison gas or forced marches.

But just as trans rights are human rights, and trans individuals have the right to freely associate together for our common education friendship and support, the fight of cissexists to end trans people as a people is an attempted trans genocide.

We refuse to call it such at great peril.

 

Just less.

I’m not linking the story, but there’s a lawsuit out of NYS that a school bus driver used zip ties to restrain a non-verbal kid, and when that kid acted out, the bus driver beat him WHILE HE WAS RESTRAINED.

I bring it up because we’re really worried about queer rights and BLM and a few other things that seem like they’re super-immediate issues b/c of how they’re in play in the media. But there’s a reason that you don’t see politicians defending the right of adults to hurt kids with disabilities: it’s because that right is still largely unchallenged. Wait! you say. WHAT? you say. But wait for it.

[Read more…]

Seven Felonies

Trump has been indicted by a grand jury on 7 felonies, including obstruction of justice. I’m told by a prosecutor that I know that proving obstruction can be harder than proving other crimes, and the media is saying that Jack Smith, the special prosecutor, is aggressive in his investigations but conservative in his prosecution decisions: he doesn’t bring cases he can’t win. He doesn’t even bring cases he things are strong maybes. Smith brings cases that he knows he has the evidence to prove.

Other charges, for mishandling classified records and even the Espionage Act violations should be easier to prove, or so my prosecutor friend says, so if Smith has the goods on obstruction, then he surely has the goods on these other crimes. Watch for the obstruction charge to be the swing count. If Smith doesn’t nail Trump on everything, it will be because the obstruction case faced unexpected new exculpatory evidence. If that happens, expect the Espionage Act case to also become shaky. But expect the records charges to stick — at least at the trial court.

That, however, brings up another issue: even if Smith can win convictions, can he preserve them on appeal. I don’t yet see any reasons why he shouldn’t be able to do so, but our SCOTUS has been particularly corrupt lately, and we can never forget Bush v. Gore when the majority openly admitted in their decision that their rationale did not hold up, and that though they were deciding the case, they did not want any lower court to use it as precedent. Things have only gotten worse at SCOTUS since, so time will tell whether they have the integrity to rule appropriately.

In the meantime, get ready for 6 to 20 months of pretrial motions and general waiting around. This is the end only of one phase, though for me it seems an auspicious beginning to the next.

It’s the ERA or the Gender Nazis: You Can’t Have Both

Wonkette has a new article up about a trans person who was banned from giving a lecture on the history of unconventional genders and the people who express them. It happened in Montana just a few day ago, and was justified by the county officials who nixed the lecture by a recently passed anti-drag ban.

Weirdly, I said this would happen, oh, 27 years ago when there were no anti-drag bans. And I said non trans people, especially cis women, would be targeted for harassment in bathrooms and other gender segregated spaces under laws both then-extant and also laws proposed by some who wanted to address the need for trans access to sanitary facilities while continuing to write legal limits on gendered bathroom access into the criminal code.

And lo, and behold! There’s not only this lecture banned, but 22 or 23 years ago I was blocked from entering a building to deliver my own lecture, on the basis that I was a “feminazi” and “kiddie rapist”, and don’t forget the armed proud boys showing up to drag story hours. And we must remember not only the recent incident with cops on video harassing and removing a queer tomboy/skater type from a women’s restroom, but also too many incidents to name with people I know, cis and trans and others, being thrown out of restrooms on the basis of gender. People you know, likely too.

I say this to point out that the gender nazi is going to gender nazi, and while we have a hope of getting this law thrown out, these laws were never a prerequisite for hatred and harassment.

I’ve seen many, many years of complacency on these issues when I thought more effort and more argument were required. I get it, not everyone’s priorities are my priorities. And not everyone believed the apocalyptic trans girl b/c how could things really get this bad?

But we’re here and we’re fighting now. I simply want to make the point that it can’t just be about arguing the 1st or the 14th in court. Our response has to be everywhere, unrestricted by time, place and manner.

As I have said before,

If we win the right to speak, or to vote, or to employment, or to public access, or to equality, or to life, but only so long as we agree to be sufficiently conventional in our gender, not one of us, cis or trans, has won a single damn thing.

That life is life in Gilead, with different numbers of people happy on different days based on the ever-shifting gender norms of whoever holds power. Too many people have been content to live in Gilead because for much of the last 35 years the people with power have had slowly but continuously expanding definitions of acceptable femininity and masculinity.

I hope we are not too late in realizing that accepting gendered limits to our rights, even if we are comfortable with the current application of those limits to ourselves, is the acceptance of a governmental right to police out clothing, our language, our professions, our families, our lives.

We have never been safe from this policing, even if many of us have felt safe. It is stunning when one considers the number and breadth of the rights we have accepted as conditioned on acceptable gender. At its core, the issue is this: any right that may be frustrated or denied or revoked based on gender is a fundamentally insecure right. Since at the moment in the United States there is no right that is secure in this way, everyone living, working, or visiting the US exists under a very robust, manly sword hanging by a very dainty, feminine thread.

Nothing less than passage and ratification and public acceptance of the ERA can secure our rights. The power of government to police gender must be removed from its hands entirely, because it has proved it cannot use that power safely.

I want each and every one of us to see how trans people are treated and to think, “Yep, that’s how they would treat me.” Because they will. Because they can. Yes, I and other trans people are at the focal point of the gender nazi’s lens of hatred. But just because you’re not trans doesn’t make you remotely safe. They are fighting for the right to make anyone an untermensch  if they do not like your gender, but not because they want to gain it. Rather because they still have it and feel it slipping away. They do not want to lose this power. They do not want equality with the untermenschen.

And if their reactionary project is successful, if they reinscribe a government right to police gender for unacceptable deviance, there will be nothing left to do but kneel with a young pastor Niemoller, pray, and wait your turn.

 

 

Juvenile Justice in Texas: Done in our name

All the goddamned warnings for child abuse bordering on state sponsored terrorism, but if you’re in a place where you can read this, go ahead and give it a try.

So, Texas takes 11 year old Joshua Beasley Jr. from his family because it’s in his best interests to be housed in a so-called Texas Juvenile Justice Division institution.

But he doesn’t actually get better in an institutional setting. It seems certain aspects of the experience did not tend to mitigate his mental illness. Blake Crenshaw, an older kid in his mid-to-late teens, got to know Joshua when the two ended up in the same facility not long after Joshua’s 13th birthday. Crenshaw described their environment this way:

“[The staff] are constantly beating you down, beating you down, telling you you’re nothing. You’re nothing but a criminal. You’re never going to get out of there,” Crenshaw said. “And with someone like Joshua, he’s so young. He doesn’t have the maturity level to process everything that’s going on in his head. All he’s thinking is, ‘Mad, mad, mad, mad, mad!’”

Such bullying was common, and Joshua wasn’t the only one to react badly to it:

Crenshaw said the youths in the facility often acted out because of the way they were treated by staff.

One might think that if that strategy isn’t working for the kids, since the ENTIRE JUSTIFICATION of taking Joshua and others away is that it was in his or their best interest, Texas officials responsible for the care of these children would look at how they were responding and, if they weren’t getting better, try something different. As for Joshua, Crenshaw knew what to try:

He said the trick was to speak to Joshua gently rather than yelling at him. He would tell Joshua to think about his little brother and to focus on staying calm so that he could go home.

But the TJJD had a different idea. They decided to prosecute Joshua as an adult for one of the times he fought back against the guards.

Crenshaw said that the taunting [by staff] would often lead Joshua to react by mouthing off, spitting or throwing an object. …

“[Staff] would give him like two warnings. Then they’d just be through with him. Multiple staff would take him, slam him on the ground, pepper spray him, handcuff him, shackle him and they would take him to the security pod.”

It’s hard to believe that that strategy didn’t work to improve Joshua’s mental health, social skills, and relationships with staff. Still, there was always adult prison for a child who had spent, at this point, FIVE YEARS in TJJD institutions getting worse instead of better. Joshua had persistently self-harmed in what could be seen as either cries for a different kind of attention or as actual attempts at suicide. (From my own experience I doubt that he himself could always distinguish between the two motivations.) Records show that he strangled or hung himself via ligature quite frequently, sometimes more than once a week, but especially often during holidays and around his birthday each year. He pleaded to be sent home, or at least to be allowed more time visiting with his mother and little brother.

His mother, Amnisty Freelen, was of course devastated that he continued to get worse and that there seemed to be no end in sight. When Texas decided to charge him as an adult for spitting on a guard inside the system that had him for 5 years and only taught him that adults were there to hurt not help, Freelen wanted a full trial to show that her son was responding to abuse. The goal was to prove that moving him to an adult prison with less care (if you can imagine) and more violence would not be in Joshua’s best interest. Joshua’s own attorney refused to allow her input, saying he was taking his orders from the 16 year old who was years behind in his education and seemingly had zero adult coping skills, much less long-term planning faculties that would enable him to consider the risks and benefits of differing legal strategies. The lawyer insisted that he hoped that in a system with fixed terms of confinement, Joshua could go home sooner than in a system with the power to detain Joshua nearly indefinitely so long as TJJD determined it was in his best interests to be confined.

Of course, after transfer Joshua received less supervision. While this may have resulted in fewer fights with corrections officers, it also meant that his only known strategy for accessing care — tight or hanging ligatures — would deprive him of oxygen longer before guards could find him.

He died at the age of 16. The warden who supervised the prison where he died, abused and alone, unable to regularly speak to his mother (as he had while in TJJD facilities) because of his time in solitary confinement (for his own protection) retired with full honours, his record unblemished. Five of the most junior corrections officers plus one sergeant and one lieutenant at Joshua’s prison are under investigation and may be disciplined for failing to check on his condition with sufficient frequency. Reports do not include any official concerns about systemic problems, only a failure to monitor in this one particular case.

For over 5 years, about a third of his life, he was imprisoned with little and lessening contact with family because Texas insisted through the mouths of its officers and prosecutors and judges and even its public defenders that isolating and bullying a suicidal preteen was in his best interest, and then month after month, year after year, refused to admit their mistake.

Joshua Keith Beaseley Jr., you were loved by your family and friends, if not by the state of Texas, and many, many of us will miss you.

The Conscience of Conservatives Is Unconscious

Brett Stephens, writing in the NYTimes:

Fox was always about influence, as much as money, for Murdoch. But, executed well, it could have elevated conservatism in the direction of Burke, Hamilton and Lincoln, rather than debase it in the direction of Andrew Jackson, Joe McCarthy and Pat Buchanan. …

The shame of Rupert Murdoch is that he wasn’t the man to do it. It doesn’t mean it can’t be done.

The shame of conservatives is that not a single one of them is the man or woman to do it.

That Rupert Murdoch failed doesn’t mean it can’t be done.

That the GOP as a whole has no interest in denouncing insurrection and open invitation to sedition means it can’t be done.

When you have zero congressional Republicans moving to expel MTG for her “soft secession” plan, or any of the other Republicans for their various secession plans (:cough: Texit :cough:) it should be obvious to everyone that there is no conservative voice that is not an echo of Father Coughlin: all the rest have gone silent.

We are told that this is a mere case of laryngitis among the ethical and reasonable Republicans — told again and again by people like Bret Stephens.

But this is not that. Whatever the conservatives who consider themselves ethical and rational tell themselves to comfort each other in the night, they have traded their voices to Orange Ursula and are desperately afraid of even attempting to get them back.

There will be no conservative voice of reason, much less intelligence, until the left destroys the new movement for secession and/or fascism.

At that point, voices freed from their magical confinement, Stephens will swoop in and declare victory on behalf of conservative values and lament that trans people don’t pay more honour to the heroes who can hate us even while not quite taking to the streets to murder in the cause of installing a government who would shatter our souls, end our lives, and then blame us — using our deadnames over our dead bodies — for our own genocidal victimization.

Lamenting the imperfections of Murdoch does not make you the man of principle you wish the world to see. Hell, it doesn’t even cause us to see a fragment, a shadow of that man in you.

Go home, Stephens. Hide beside the lintel of your door, one hand on a shotgun, never certain until the conflict is over whom you would shoot if you emerged, but too terrified ever to place yourself in the position where you might have to make that choice. Demonstrate all the bravery and heroism of the white Citizens’ Councils of 1963’s Mississippi, before Newt Gingrich could destroy the party you seek to praise, but we seek to bury.