Transgender discrimination is sex discrimination

The people defending segregated bathrooms have weird ideas about privacy.

The Obama Education department says schools can’t discriminate against transgender students if they want federal funding, under Title IX of the Education Amendments. This relies on an interpretation of the law, which did not include gender identity in 1972. The law permits sex segregated bathrooms, athletics, and classes that teach body stuff, but by this interpretation they have to permit transgender students to use the facilities consistent with their gender identity. I’m not a legal expert, so this is just a semi-informed thought.

Some conservatives believe Obama is wrong because the new rule tries to make sex socially constructed, which it isn’t. On Fox News Sunday, George Will said:

The ’64 Civil Rights Act bans discrimination on the basis of sex. The administration is saying sex is a synonym for gender identity. Not true. The “party of science” ought to know that sex is a matter of chromosomes. And the — those advocating for transgender rights have been saying for years that indeed it is a matter of sexual gender identity that is not the same as sex. So what is sinister here is the — is the president saying the language of the law simply doesn’t mean what it says.

(This is one of the reasons I don’t defend the sex-versus-gender distinction anymore).

The defense of sex segregation rules that exclude transgender people is based on notions of privacy that are counterintuitive (to me), whereby being seen naked by someone of the same sex is not a privacy violation but being seen naked by someone of another sex is. This has been litigated a lot with respect to prisons, where female prisoners have been successful in using privacy claims in some cases to get same-sex guards assigned to do strip searches and shower supervision. Although I support female prisoners’ attempts to reduce abuse by having female guards, the process we’re going through is part of a progressive weakening of sex segregation, which is mostly good. In fact, I think it would be a shame if we ended up shoehorning transgender rights into this binary-privacy construction, defending the right of transgender people to be seen naked only by the proper binary-category of people.

I don’t think transgender rights require creating new categories of protection, or changing the definition of sex and gender (although there’s nothing wrong with that necessarily). I think transgender discrimination is sex discrimination because it denies people the privileges one sex enjoys on the basis of their sex. I particularly like the logic of Judge Vaughn Walker’s Proposition 8 decision in California, in which he explained how sex discrimination creates sexual orientation discrimination, in that case by denying lesbians homogamous marriage rights:

Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. … Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

I think you can apply the same logic to transgender rights with respect to bathrooms, etc. Laws insisting on sex-matched bathroom use have the effect of forcing only transgender people to use bathrooms with people of the other gender. If you’re going to have sex segregated bathrooms, it’s an equal protection problem if transgender people disproportionately suffer the negative consequence of that. But underlying that, it’s a problem of sex discrimination: because of her sex, a trans woman can’t use the facility that she is most comfortable with.

Under the new education guideline, schools can provide everyone with an individual-user options (but not force only transgender people to use them), or they don’t have to have sex-segregated bathrooms at all (although they would presumably have to provide individual-user facilities as an option).

If people are deeply committed to the gender binary, the last bastions of which are sex-segregated bathrooms and athletics, then I think they are right to be freaking out. As much as transgender rights activists often reinforce the gender binary by asserting a right to cross it without challenging it, the very debate we’re having undermines the concept. Eventually, someone could argue successfully that sex segregated bathrooms are sex discrimination for everyone, which they obviously are – and the justification for that is weakening.

For (not against) a better publishing model

I was unhappy to see this piece on the American Sociological Association (ASA) blog by Karen Edwards, the director of publications and membership.

The post is about Sci-Hub, the international knowledge-stealing ring that allows anyone to download virtually any paywalled academic paper for free. (I wrote about it, with description of how it’s used, here.) Without naming me or linking to the post, Edwards takes issue with pieces like mine. She writes:

ASA, other scholarly societies, and our publishing partners have been dismayed by some of the published comments about Sci-Hub that present its theft as a kind of “Robin Hood” fairy tale by characterizing the “victims” as greedy publishers feasting on the profits of expensive individual article downloads by needy researchers.

My first objection is, “ASA … have been dismayed.” There have been many debates about who speaks for ASA, especially when the association took positions on legal issues (their amicus briefs are here). And I’m sure the ASA executives send out letters all the time saying, ASA thinks this or that. But when it’s about policy issues like this post (and when I don’t agree), then I think it’s wrong without some actual process involving the membership. The more extreme case, on this same issue, was when the executive officer, Sally Hillsman, sent this letter to the White House Office of Science and Technology Policy objecting to the federal government’s move toward open access — which most of us only found out about because Fabio Rojas posted it on OrgTheory.

My second objection is to the position taken. In Edwards’ view, the existence of Sci-Hub, “threatens the well-being of ASA and our sister associations as well as the peer assessment of scholarship in sociology and other academic disciplines.”

Because, in her opinion, without paywalls — and Sci-Hub presumably threatens to literally end paywalls — the system of peer reviewed scholarly output would literally die. As I pointed out in my original piece, if your entire enterprise can be brought down by the insertion of 11 characters into a URL, your system may in fact not be sustainable. Rather than attack Sci-Hub and its users, “ASA” might ask why its vendor is so unable to prevent the complete demolition of its business model by a few key strokes. But they don’t. Which leads me to the next point.

The Edwards post goes way beyond the untrue claim that there is no other way to support a peer review system, and argues that ASA needs all that paywall money to pay for all the other stuff it does. That is, not only do we need to sell papers to pay for our journal operations (and Sage profits), we also need paywalls because:

ASA is a nonprofit, so whatever revenue we receive from our journals, beyond what it costs us to do the editorial and publications work, goes directly into providing professional and educational services to our members and other scholars in our discipline (whether they are members or not). … The revenue allows ASA to provide sociologists in the field competitive research grants, pre-doctoral scholarships, specialized career development, and new digital teaching resources among many other services. It is what allows us to work effectively with other social science associations to sustain and, hopefully, grow the flow of federal research dollars to the social sciences through NSF, NIH, and many others and to defend against elimination and cuts to federal support (e.g., statistical systems and ongoing surveys) so scholars can conduct research and then publish outstanding scholarship.

In other words, as David Mamet’s character Mickey Bergman once put it, “Everybody needs money. That’s why they call it money.”

This means that finding the best model for getting sociological research to the most people with the least barriers is not as important as all the other stuff ASA does — even if the research is publicly funded. I don’t agree.

Better models

There are better ways. Contrary to popular misconceptions, we do not need to go to a system where individual researchers pay to publish their work, widening status inequalities among researchers. The basic design of the system to come is we cut out the for-profit publishers, and ask the universities and federal agencies that currently pay for research twice — once for the researchers, and once again for their published output — to agree to pay less in exchange for all of it to be open access. Instead, they pay into a central organization that administers publication funds to scholarly associations, which produce open-access research output. For a detailed proposal, read this white paper from K|N Consultants, “A Scalable and Sustainable Approach to Open Access Publishing and Archiving for Humanities and Social Sciences.” (Others are trying as well; check out the efforts of the American Anthropological Association.)

This should be easy — more access, accountability, and efficiency, for less — but it’s a difficult political problem, made all the more difficult by the dedicated efforts of those whose interests are threatened by the possibility of slicing out the profit (and other surplus) portions of the current paywall system. The math is there, but the will and the organizational efforts are lagging badly, especially in the leadership of ASA.

I don’t give activists unsolicited advice, except: don’t talk to the police

I have previously criticized universities and news outlets for their handling of racism on and around campus (and sexual assault, too). But I’m not in the business of giving activists advice. So I’m speaking out of turn on one side point here, to recommend: don’t talk to the police. (Nothing personal.)

The campus police at UW have released body camera video of them escorting a student from class and arresting him for allegedly spray-painting anti-racist graffiti. (For critical commentary on this situation, here’s a statement from faculty at staff, including a bunch of sociologists; and a letter of support for students from the faculty and staff in Afro-American studies.) Several things are disturbing about this; I’d like to call attention to the conversation. Here’s the video, with my comment below:

(Other videos from the police department, showing other parts of their interactions, are here.)

I have no idea whether this man has broken any laws, and know nothing about his motivations. I’m also not against spray-painting statements in public spaces in all cases; it may be effective and justified, for example in this case at the University of North Carolina:

Sometimes good people do illegal things, for good reasons, and we shouldn’t be surprised when activists get arrested for it. But that’s not relevant to this point, which is just that there is no good reason to talk to the police in a situation like this — at least no good legal reason (there may be good political or other reasons).

From the moment the cop says this (at 1:00), he’s lying continuously:

Alright, man, here’s what’s going on today. We have some information… Is it you, or is it somebody else, because I have information, I just want to get your side of the story…

This is such a generic statement that there’s no need to consider the facts of this situation. He does not want to get your side of the story, he wants to arrest you and make it easy for a prosecutor to get a conviction in his case. This is the clearest real-life example I can remember of this crucial lesson: don’t talk to the police. This is not unique to activists, everyone should know this.

If you aren’t one of the 6 million people who’s watched it already, I highly recommend the first 27 minutes of this video (especially if you, like many activists, are at heightened risk of arrest and prosecution).

Of course, standing up to a trained, armed, police officer who has done this many times is difficult, and I assume I would blow it (again), but I think the more you prepare yourself for the possibility the more likely you are to pull it off.

How to steal 50 million paywalled papers

From Flickr CC / https://flic.kr/p/9KU6T1

I’m not a criminal mastermind, so I could be wrong, but I can’t think of a way to steal more — defined by list price — per unit of effort than using sci-hub to access paywalled papers I don’t have legitimate subscription access to read.

I don’t know the scientific term for this, but there has to be some way to describe the brokenness of a system based on the ratio of effort expended to damage done. For example, there are systems where even large effort is unlikely to cause serious harm (the US nuclear weapons system), versus those where minor efforts succeed but cause acceptable levels of harm (retail shoplifting). And then there is intellectual property, where small investments can inflict billions of dollars worth of damage.

Syed Ali and I have a short piece with some links to the news on sci-hub at Contexts. Alexandra Elbakyan says it took her about three days to develop the system that now gives anyone in the world access to almost 50 million paywalled articles. Of course, a lot of people help a little, by providing her with access information from their subscribing universities, but it still seems like a very low ratio of criminal energy to face-value payoff.

Example

Now that sci-hub is in place, how hard is it for an untrained individual to steal a $40 article while risking almost nothing? As hard as it is to insert 11 characters into a paywall URL and wait a few seconds (plus your share of the one hour I expended on this post).

Here’s an example. In the journal Society, published by Springer, an article in the current issue is currently available for $39.95 to non-subscribers. But Society is a “hybrid open access” journal, which means authors or their institutions can pay to have their paper unlocked for the public (I don’t know how much it costs to unlock the article, but let’s just assume it’s a rollicking awesome deal for Springer).

So for this example I use one of the unlocked articles, so you can try this without stealing anything, if that feels more ethical to you, but it works exactly the same way for the locked ones.

The article is “Saving the World, or Saving One Life at a Time? Lessons my Career with Médecins Sans Frontières/Doctors Without Borders/MSF has Taught Me,” by Sophie Delaunay. This is the launch page for the article:

http://link.springer.com/article/10.1007/s12115-015-9965-4

From there, you can download the PDF (it would say “Buy Now” if the article weren’t unlocked) at this link:

http://link.springer.com/content/pdf/10.1007/s12115-015-9965-4.pdf

Or you can steal it for free by inserting

.sci-hub.io

into the URL, after the corporate domain thing, like this:

http://link.springer.com.sci-hub.io/content/pdf/10.1007/s12115-015-9965-4.pdf

Don’t ask me how it really works, but basically it checks if the article has been requested before — in which case it’s cached somewhere — and if it hasn’t been requested before it uses fake login information to go get it, and then it stores the copy somewhere for faster retrieval for the next person. That’s why your stolen PDF may have a little tag at the bottom that says something like “Downloaded from journal.publisher.com at Unfamous University on Recent Date.” If the article comes up instantly, you didn’t really steal it, you’re just looking at a stolen copy; if you have to watch the little thing spin first then it’s being stolen for you. With this incredibly smart design the system grows by itself, according to demand from the criminal reading public.

What’s the punishment?

I have no idea what risk Alexandra Elbakyan or her compatriots face for their work. I don’t imagine the penalty for any given user is greater than the penalty for shoplifting a $39.95 bottle of Awesome Wasteproduct. And for me sharing this, I would expect the worst thing that would happen would be a stern letter on legal letterhead. But maybe I’m naive.

Anyway, the point is, it says something about the soundness of the academic publishing edifice that doing this much damage to it is this easy.

What are the ethics?

I am aware that some reasonable people think sci-hub is very wrong, while others think the current system is very wrong. I know that many people’s current paychecks depend on this system continuing to malfunction as it does, while others never earn the higher incomes they otherwise could because they can’t get paywalled articles. I understand corporate journals add some value through their investments. And I know that the current system denies many people access to a lot of information, with social costs that are unquantifiable. And there is some inherent value to not breaking the law just in general, while there is also value to breaking bad laws symbolically. How you balance all those factors is up to you.

Some people think it’s even wrong to discuss this. What does that tell you?

That time when your research is used to justify ripping a baby from the arms of its loving adoptive parents

UPDATE: Judge Johansen has rescinded his order. 

Brad Wilcox and Mark Regnerus lost in their attempt to turn the federal courts against marriage equality. The work they did culminated in a paper published under Regnerus’s name, and Regnerus is the name most associated with its bogusness, but it was Wilcox who led the effort to raise the money (some of which he kept), helped direct the study, and weaseled it into the journal by serving as a peer reviewer for its publication. (Two subsequent studies reanalyzed the Wilcox/Regnerus data, and thoroughly debunked its results — here and here; you can get the full story by following the links in this post.)

Although they failed in their quest to affect the Supreme Court, their work lives on in the very small, evil minds of anti-gay fanatics around the world, who continuously cite the original paper. One of those men is Judge Scott Johansen, a juvenile court judge in Carbon County, Utah (the state’s seventh district), who has cited unspecified “research” to justify his decision to take a one-year-old baby from the home of Beckie Peirce and April Hoagland, a married lesbian couple who are the child’s foster parents. With the approval of the baby’s biological mother and child welfare authorities — who did the routine thorough investigation and vetting that all adoptive parents (including me) have endured — the two were moving ahead with plans to legally adopt the baby when Johansen, a law graduate of the Mormon Brigham Young University, handed down his decision. The decision is set to take effect next Tuesday (November 17). His decision is not public, but he told the couple his own research showed it was better for children to be raised by a heterosexual couple. We don’t need to ask what research he has in mind.

Legal efforts continue, and officials — including the governor of Utah — have asked the judge to reconsider.

If your research was used like this, what would you do?

So, this is the point of all the work Wilcox and Regnerus did. We must assume they wanted exactly this decision, but on a much larger scale; they wanted same-sex couples to be denied the right to adopt children, and children to be denied the right to have married gay and lesbian parents. They would apparently rather see a one-year-old child who has spent three months with a loving family ripped from that family rather than face the fate of having lesbian parents.

If I’m wrong, and I would be especially happy to be wrong in this case, then Wilcox and Regnerus should be the first experts lining up to convince Judge Johansen that he’s making a mistake, that the actual well-being of the child, and the civil rights of its parents, should come before slavish devotion to religious dogma. In fact, speaking up right now might actually do some good.

Wilcox has gone out of his way to sing the praises of the “deep normative and religious commitments to marriage and to raising children within marriage” in Utah specifically. But he doesn’t comment on this aspect of Utah’s holiness — the deep commitment that has led the Mormon church to announce a wretched, hateful policy under which it will not bless or baptize the children of gay and lesbian couples unless they denounce their parents.

Now might be a good time for Wilcox’s sham Institute for Family Studies — which has yet to ever use the words “lesbian,” “gay,” or “homosexual” on its web pages — to break its silence and take a stand for children and family well-being.

I’ll be holding my breath.

Marriage equality is official now that it’s in The Family textbook

Well, actually, it’s in a special addendum to the textbook that W. W. Norton is just releasing.

The book I wrote, The Family: Diversity, Inequality, and Social Change, hit the streets a year ago today. Marriage equality plays a significant part in the story, much larger than the proportion of the population that is directly affected by the changing law. That’s because of the high-stakes nature of the debate for so many people, and because of its symbolic acceptance of rising family diversity — the main theme of the book.

So when the law suddenly, and fundamentally, changed this summer, we decided we needed an update for instructors teaching this fall. The three-page supplement reviews the political and legal events leading up to the June 26 Obergefell decision, and the logic of the legal questions addressed — along with a little context on the place of marriage equality in the story of family change. I hope it’s helpful for you.

The update is now available on the Norton website, here, and on my teaching page. While you’re at it, you should visit the book’s homepage, and see what we have in store for you if you teach family sociology (and request an exam copy), here.

Also:

• A symposium with 12 writers and researchers addressing the concept, “After marriage equality,” which Syed Ali and I edited for Contexts.
• My whole series of blog posts on marriage equality is archived under the homogamy tag.

Home stretch

Marriage equality may have rounded the last turn today in its race through the US legal system.

Photo from Flickr Creative Commons by Jamison Wieser

When the 10th Circuit Court of Appeals set up the question in Kitchen v. Herbert this way, there was no possible outcome other than a strong decision affirming the lower court, in favor of a right to marry for same-sex couples:

May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?

Sure enough, the decision is a thorough trashing of the state of Utah’s defense of its same-sex marriage ban:

Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

This is a federal appeals court — higher than the federal courts that have been overturning state laws left and right — and the first to rule that same-sex marriage bans are unconstitutional. After this, it’s on to the Supreme Court. Here are some more highlights from the decision.

The decision states that the Supreme Court’s Windsor decision (which I discussed here) is “not directly controlling, but adds that “the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored.” That is teeing up the Supreme Court’s future decision for Windsor author Justice Kennedy, and confirming the conclusions of many that Scalia was right in his Windsor dissent:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

The decision today also explains that extending the right to marry to same-sex couples does not constitute creating a new right, but merely recognizing that the prohibition against arbitrary denial of rights to marriage — which has been expressed in broad terms in the past — applies to same-sex couples as well. For example, the Casey decision explains about Loving v. Virginia (which overturned interracial marriage bans):

[m]arriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.

That is, Loving and other decisions described the “freedom of choice to marry” broadly enough that it can now be extended without a finding that the Supreme Court intended to extend it to same-sex couples: “the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it.” And they quote from a dissent in a prior case, Hernandez v. Robles: “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”

They also address Utah’s specious claim that marriage rights are really about the right to procreation by citing precedents that protect the right not to procreate (e.g., the Eisenstadt and Griswold cases on contraception), and the right of parents to raise their children (not just bear them), as in the Carey decision and others on parenting rights, and decisions protecting the rights of adoptive parents.

On the idea that Utah should be able to ban same-sex marriage because it has an interest in furthering the idea of procreation within marriage (which I discussed here), the decision is dismissive:

Among the myriad types of non-procreative couples, only those Utahns who seek to marry a partner of the same sex are categorically excluded from the institution of marriage. Only same-sex couples, appellants claim, need to be excluded to further the state’s interest in communicating the link between unassisted biological procreation and marriage. As between non-procreative opposite-sex couples and same-sex couples, we can discern no meaningful distinction with respect to appellants’ interest in fostering biological reproduction within marriages. The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” Extending the benefits and protections of a civil society to some but not all similarly situated families violates this critical guarantee.

Interesting here the judges are not arguing about a couple’s right to marry, but rather about an individual’s right to marry someone of the same sex. That’s a harder right to deny.

And on the whole idea that gay marriage threatens straight marriage:

We emphatically agree with the numerous cases decided since Windsor that it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples.

On the comparison to no-fault divorce, which supposedly undermined marriage generally, an extended riff on hypocrisy:

We cannot accept appellants’ claim that allowing same-sex couples to marry is analogous to a law that permits married couples to divorce. The former causes an increase in the number of married individuals, whereas the latter decreases the number of marriages in a state. … Setting aside the implausibility of the comparison, we observe that Utah has adopted precisely the no-fault divorce regime that appellants decry in their briefing. … Through its no-fault divorce statute, Utah allows a spouse—the bedrock component of the marital unit—to leave his family whenever he wants and for whatever reason moves him. It is difficult to imagine how the State’s refusal to recognize same-sex marriage undercuts in any meaningful way a state message of support for marital constancy given its adoption of a divorce policy that conveys a message of indifference to marital longevity.

Further, on the idea, so revoltingly disgorged by Hawkins and Carroll in the Utah case (as I discussed here), that gay marriage would make straight men love their children less:

We cannot imagine a scenario under which recognizing same-sex marriages would affect the decision of a member of an opposite-sex couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a child.

And finally, in the category of burying the Regnerus-Wilcox agenda to support with social science the bans on same-sex marriage in the name of children’s wellbeing (here’s the whole history):

We cannot embrace the contention that children raised by opposite-sex parents fare better than children raised by same-sex parents—to the extent appellants continue to press it—in light of their representations to this court. Appellants’ only reasoning in this regard is that there might be advantages in one parenting arrangement that are lacking in the other. On strict scrutiny, an argument based only on pure speculation and conjecture cannot carry the day. Appellants’ tepid defense of their parenting theory further highlights the looseness of the fit between the State’s chosen means and appellants’ asserted end.

I hope this means Regnerus and his ilk have cashed their last expert-witness check in this cause.

For us non-legal types, the writing judges do when they’re defending fundamental rights is surely their most compelling (and in this genre I highly recommend Judge Walker’s 2010 decision on California’s Prop 8). Overall, it’s an eloquent decision, and worth reading.

But, getting ahead of ourselves a little, it’s also worth pointing out that the 10th Circuit decision contributes to the de-radicalizing of the marriage rights movement with this quip:

Plaintiffs seek to enter into legally recognized marriages, with all the concomitant rights and responsibilities enshrined in Utah law. They desire not to redefine the institution but to participate in it.

Right! Wait… what?