Victory in the Second Circuit on Trump Twitter lawsuit

Clown imitates icon.

“The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees. … Once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.”

— Barrington D. Parker, U.S. Court of Appeals for the Second Circuit

Yesterday the U.S. Court of Appeals for the Second Circuit decided in our favor in Knight Institute v. Trump, upholding the decision of from the U.S. District Court that President Trump violating the First Amendment by blocking me and six other plaintiffs on Twitter. The decision was unanimous among the three judges (two appointed by Republicans, one Democrat), who heard oral arguments in March (available in video here).

In ruling that Trump can't block people on Twitter, the 2nd Circuit said the First Amendment stands for the concept that "the best response to disfavored speech on matters of public concern is more speech, not less." We agree!

— EFF (@EFF) July 9, 2019

Here is some of the coverage.

• New York Times: “Trump Can’t Block Critics From His Twitter Account, Appeals Court Rules“
• Politico: “Judges: Trump violates First Amendment when he blocks Twitter critics“
• Washington Post: “President Trump cannot block his critics on Twitter, federal appeals court rules“
• Haaretz (Reuters): “Trump’s Blocking of Twitter Foes Is Unconstitutional, U.S. Appeals Court Rules“
• El País: “Trump ya no puede bloquear a sus críticos en Twitter“

More to come.

I was interviewed for a (paywalled) Times Higher Education article, “US university professor helps beat Trump on Twitter blocking,” saying:

“I often don’t read his tweets before replying. The point is not to have a dialogue with him, but to engage with the millions of people who read his tweets. … When I have a popular reply it can be viewed by 100,000 people or more, which, while small in the grand scheme, is very satisfying as an individual act of resistance.”

The article concludes:

But the professor acknowledged that some of his friends regard his approach as a waste of time, “playing into Trump’s hands, sinking to his level, fueling the outrage industry without advancing the cause of improving democracy through civil discourse. And honestly, they may be right,” he said. “We each have to respond in our own way to what, for many, is a deeply distressing turn of events.”

Much more important than my tweets is the effect of the case on the legal protections for democracy. I share the optimistic take by Jameel Jaffer, the executive director of the Knight Institute and the lawyer who delivered the oral argument in the Second Circuit:

“Public officials’ social media accounts are now among the most significant forums for discussion of government policy. This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints, and that public officials aren’t insulated from their constituents’ criticism. The decision will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy.”

(The whole team at the Knight Institute has been amazing and I’m deeply grateful.)

I also gave this interview to ABC News streaming show Briefing Room, and offered this summary off the cuff:

This is exactly what we were hoping for. Trump and the Department of Justice that’s representing him had argued that when Trump tweets, they acknowledge, that’s official business, but when he blocked people they said that was his personal preference and his personal behavior. And it’s really new territory because increasingly government official are communicating with the public on these private platforms, and we have to do some work to bring the First Amendment to bear in these environments. The principle here is that if the government, or a government official, establishes what’s called a public forum, then they can’t exclude people from that forum on the basis of their views. So Trump can have a private party, he can have a campaign rally, he doesn’t have to let every person in the world walk into the White House – but if he puts up a sign that says, “Public Debate Happening Here,” then he can’t say, “Oh, by the way, only Republicans can come.” And that’s what the court found he’s doing essentially with his Twitter feed when he blocks people, and creates this false impression that, you know, he has the biggest crowds and everybody loves him.

Here’s the clip:

The next step is to see whether Trump appeals, in which case he can either ask for a review by the full panel of the Second Circuit, or go up to the Supreme Court. We’re supposed to hear within 90 days.

The news office at Columbia, host of the Knight First Amendment Institute, which represents us, produced this short video on the decision:

Let’s raise the legal age of marriage in Maryland

Today I sent the following letter to the Maryland House Judiciary Committee, which is scheduled to hold a hearing on these bills tomorrow. Under current law in Maryland, marriage is permitted as young as age 15 with parental consent and evidence of pregnancy or childbirth, and age 16-17 with one or the other, and these exceptions are granted by county clerks rather than judges. By my calculations, from 2008 to 2017, based on the American Community Survey, the annual marriage rate for girls ages 15-16 was 5 per 1000 in Maryland, behind only Hawaii, Nevada, and West Virginia. HB 855 would raise the age at marriage to 18, while HB 1147 would establish an emancipated minor status, requiring review by a judge, under which 17-year-olds could marry. For more on the effort to end child marriage in the U.S., visit the Tahirih Justice Center site.

---

March 6, 2019

To the House Judiciary Committee:

I write in support of Maryland House Bill 855, concerning age requirements for marriage; and House Bill 1147, concerning the emancipation of minors.

My relevant background

• I am a Professor of Sociology, and family demographer, at the University of Maryland, College Park, where I have been on the faculty since 2012. I also earned my PhD at the University of Maryland, College Park, in 1999, and I live in Silver Spring.
• I have written two books and many peer-reviewed articles on family sociology, including on topics related to marriage and divorce, family structure, gender inequality, health and disability, infant mortality, adoption, race and ethnicity, and the division of labor.
• I have served as a consultant to the U.S. Census Bureau on the measurement of family structure, and testified before Congress on gender discrimination.

My support of the bills

In general, the rise of the age at marriage and childbearing in U.S. have been positive developments for women and children, allowing mothers to devote more years of early adulthood to education and career development, which is beneficial to both adults and their children.

Very early marriage in particular is detrimental to women’s opportunity to finish high school. More urgently, research and service work shows that very early marriage is usually unwanted, coerced, or forced. Very young women should not be expected to protect themselves legally or socially from such impositions, which are usually from older men and dominant family members. Very early marriage often follows statutory rape or other sexual assault, compounding rather than mitigating the harms of these crimes against children. Rather than protect a young woman, very early marriage instead provides protection from scrutiny for her abuser(s), and makes state intervention on her behalf all the more difficult to accomplish in the following years. The privacy and discretion we bestow upon families has benefits, of course, but it also makes the family a dangerous place for the victims of abuse.

Research, including my own, unequivocally shows that very early marriage leads to the highest rates of divorce. I have written several papers on divorce rates in the United States (see references). For illustration, here I used the same method of analysis, and present only the relationship between age at marriage and incidence of divorce. As you can see from the figure, divorce rates are highest by far – estimated at 2.5% per year – for women who married before age 18. This is about twice as high as divorce rates for those who marry in their 30s, for example. (These estimates hold constant other factors; data and code are available here.) The evidence is very strong.

I only reluctantly support increasing state restrictions on women’s freedom with regard to family choices, but in the case of marriage before adulthood I see the restriction as a protection from the exploitative behavior of others, rather than an imposition on young women’s rights.

At present in Maryland, exceptions allowing marriage before age 18 – based on pregnancy and/or parental consent – are granted without adequate legal review. Together, HB 855 and HB 1147 would set the minimum age at marriage in Maryland to 18, with an exception only for court emancipated minors of age 17. This would improve the state’s protection of young women from unwanted, coerced, forced, or ill-advised marriages without unduly restricting the freedom to marry for younger women (age 17), who may be emancipated by a court after a direct application and careful review of circumstances.

I urge your support for these bills. I would be happy to provide further information or testimony at your request.

Sincerely,

Philip N. Cohen

References

Cohen, Philip N. 2015. “Recession and Divorce in the United States, 2008-2011. Population Research and Policy Review 33(5):615-628.

Cohen, Philip N. 2018. “The Coming Divorce Decline.” SocArXiv. November 14. https://osf.io/preprints/socarxiv/h2sk6. To be presented at the Population Association of America meetings, 2019.

Legal risks in reporting on academic sexual harassment

Gossip, according to Google Images

This is on the nuts and bolts of reporting sexual harassment.

Last fall my colleague Liana Sayer and I offered to help people report on sexual harassment in academic sociology (other posts on this: #MeToo). Although we have corresponded with a number of people, we have yet to make any public reports. One reason for that is legal risk.

The first advice I got from a number of people was to get a lawyer, and to get libel insurance. I did both of those things (libel turns out to be a kind of personal injury, like hitting someone in your car, so you can get covered for it under an umbrella policy).

After attending a media law conference (long story), and having gathered enough evidence to consider moving ahead with publication in one case, I spoke to several lawyers, and eventually retained Constance Pendleton, a media law expert and partner at Davis Wright Tremain. Here is some of what I learned from speaking with her.

First, if the case involves harassment within one workplace (school), it may be better to go through the official reporting procedure rather than making a public case, at least from the perspective of protecting the accuser. This involves lawyers and documents, which is good. However, for reasons I mentioned here, that often doesn’t work. And that process often ends with a promise of confidentiality that shields the harasser from public exposure (a key institutional goal of many university sexual harassment officers).

Second, the risk of getting sued as an individual is high. We don’t have a lot of experience in the current context with lawsuits against accusers, but the cases that have come forward have often involved major investigations by big organizations, not individuals publishing accusations on their blogs. So it’s hard to know how they will play. However,  even the cost of “easily” winning a case is likely to be a lot, something in five figures. And in the process, the accuser you are trying to protect could be forced to testify, or at least produce an affidavit, even if you have kept them anonymous in the story. Truth is a defense against libel, but if your true statement is “someone told me this,” you can still be found responsible if you can’t prove that what the person told you is true, or if it can be shown you acted maliciously in reporting it.

In the case of being sued, the things you need are the things a good journalist would want in reporting such a story, such as original documents, contemporaneous records, witnesses, and so on. There is a reason for that: journalists who report this stuff are heading off such lawsuits themselves. But I didn’t fully appreciate some key differences between a citizen journalist and a real news organization. These include the reputation of the news organization, which shields them (practically if not legally) from charges of acting maliciously. Also, they have lawyers already, so it doesn’t cost them as much to defend cases. And they have an interest in defending their reputation, so everyone knows they will fight. Finally, there are some legal protections for revealing information if you do it in the public interest, and that’s an easier case for news organizations to make. (This is my shallow, lay understanding of the situation, not legal advice).

Regardless of my thoughts on procedural fairness, which is hotly debated, these are reasons why I wouldn’t report on rumors alone, or report a case where I didn’t know the accuser’s identity and had no way of verifying the supporting information.

News reality

Given all this, The best thing might be for a news organization to report the story, rather than reporting it independently. I haven’t ruled out the latter course, but it’s much riskier. (And there may be hybrid solutions, such as writing a reported piece as a freelancer for a news organization.) Unfortunately, or maybe fortunately, news organizations that are interested in reporting on sexual harassment are getting bombarded with cases to report. They have to choose selectively from among these cases, and the variables involved are beyond my control.

In the case of Michael Kimmel, for example, reported by the Chronicle of Higher Education (paywalled, bootlegged), the story includes one accuser who requested anonymity, and one senior sociologist who affirms the existence of rumors, and the charge is unwanted advances and demeaning comments. In this environment, that would not normally be enough to warrant a news story by a major publication, naming the accused. Not very much evidence and not such an egregious case (no reported threats, quid pro quo, or violence). That’s not an excuse, that’s a fact of the media landscape. The difference here is Kimmel is famous, and that he is “delaying” receiving a major award (plus it’s an award for being a feminist). If you brought the same facts and evidence to a news organization, but about a non-famous senior sociologist, you are unlikely to make it past editorial triage.

In summary, the very cases that I most want to expose — the common harassment that occurs between non-famous people all the time in academia — are difficult to work with. Risky for the citizen journalist, but maybe not important enough to jump the line at major news organizations. That said, I still favor public exposure as an approach in this environment, where policies remain weak and formal proceedings are unlikely to produce satisfactory results — but harassers and their employers are on the defensive and much of the public is watching and willing to get involved. And I still want to help. But it’s harder than I thought it would be. Live and learn.

Against Trump’s family separation policy

The policy of separating parents from their children when they enter the country without permission has generated a spike of outrage and shock that’s actually noticeable over the background level of outrage and shock.

At the Council on Contemporary Families we don’t take formal policy positions or make partisan appeals, but the board (on which I sit) decided to organize a statement of opposition for individual family researchers and experts to sign. We passed a hundred signatories after the first few hours. You can sign it here, or view the list of signatories here. Here’s the text, and then I have a few comments.

Family Scholars and Experts Statement of Opposition to Policy of Separating Immigrant Families

We write as family scholars and experts to express our opposition to the Trump Administration policy of separating immigrant parents and children at the border as they enter the United States to seek refuge. This practice is an inhumane mistreatment of those seeking refuge from danger or persecution, and goes against international law. As scholars and experts devoted to identifying and sharing information relevant to policies to improve individual and family wellbeing, we deplore the Administration’s callous disregard of the overwhelming scientific information demonstrating the harm of separating children from their parents. This practice is known to be extremely traumatic for dependent children who stand a strong likelihood of experiencing lasting negative consequences from the sudden and inexplicable loss of their caregiver. Government should only separate children from their parents as a last resort when children are in danger of imminent harm. We urge the Administration to reconsider and reverse this policy. Although the Council on Contemporary Families (CCF) as an organization does not take partisan positions or advocate for policy, the CCF Board has decided to circulate this statement so that individual like-minded scholars and experts may join together to express their views publicly.

Comment

The policy has been a vivid showcase of human cruelty, racist political manipulation, hypocrisy, and misdirection.

The human cruelty is most important. The people working for the U.S. government that carry out this policy seem to be no more or less evil than rank-and-file Nazi concentration camp guards. They rip children from the arms of their parents — parents risking life and limb to give their children a chance at safety, or a better life — sometimes under false pretenses, and rationalize their actions as somehow in the service of social order, or the law, or the will of their superiors. Human-tip: quit your job before you follow such orders.

The racist political manipulation comes from the top, where Trump and his legions of lying liars repeat lies about illegal immigrants overrunning our borders, bringing violence and mayhem and taking American jobs and welfare. These lies find fertile ground in the consciousness of people who already don’t consider Latino immigrants to deserving of basic human rights and protections because they don’t see their humanity. Things I’ve heard on Twitter from supporters of the policy include:

• “If they were decent people, they would not be criminals“
• “AMERICA IS NOT THEIR FREE RIDE“
• “Want to not be separated from kids, than don’t commit crimes.”
• “Maybe those parents should stop using their children as pawns, and be prosecuted for child neglect.”
• “Get those illegal parasitea outta here!“
• “Freedom and safety what a joke . Free ride is more like it. Stop invading the US and you have your children full time.”
• And on and on

The hypocrisy is well represented by the invocation of the Bible to justify these atrocities, a literal chapter and verse repetition of the godless defenses of slavery, Nazism, and apartheid perpetrated by Trumpism’s (recent) ancestors. In the typical up-is-down-wrong-is-right formulation of Trumpism, Elizabeth Bruenig writes, “[Jeff] Sessions and [Sarah] Sanders radically depart from the Christian religion, inventing a faith that makes order itself the highest good and authorizes secular governments to achieve it.”

The misdirection runs beneath all Trumpism’s atrocities, in this case simply inventing a story that the current policy is the result of Democrats’ “horrible and cruel legislative agenda.” This is part of the demagoguery playbook, which predictably cycles from it’s-not-true to it’s-no-big-deal to Obama-was-worse to nothing matters. (When I tweeted a link to the statement above, a Trump supporter asked, “They do realize they’re here illegally?” and then, “So why the hard push now except to smear the President?”) “We are following the law,” said federal prosecutor Ryan Patrick, before possibly accidentally confirming, “Well, it is a policy choice by the president and by the attorney general.”

No

Patrick’s interview is a nauseating testament to how this authoritarianism is corrupting human integrity, as he describes the policy as an attempt to restore fairness to law enforcement:

“I’ve heard the attorney general say – it is not – in his estimation, it is not equitable or fair to simply, like I said, wave a wand over an entire population of crossers just because they come in in a family unit or they have a child with them and we simply ignore them on the criminal prosecution. They’re still crossing the border illegally.”

And what about the documented atrocities?

“I think some of these stories are outliers. This is not the norm. I don’t think this is a standard operating procedure on how all of the agents conduct their business. There’s going to be some situations that are going to be regrettable or that break your heart or – and it is unfortunate.”

OK, so not everyone experiences the very worst abuses. And what about the legal protections of the accused and their separated children?

“So when apprehended, if they’re a family unit, they’re given a card in English and in Spanish that has different 1-800 numbers for them to be able to contact. And there’s also a text line. There’s an email address, if they have access to those in their different holding facilities, where they can track not only their own case but also the location of their child.”

OK, so, Kafka. And about that due process for children?

“And then, when it comes to the juveniles who are in HHS custody, there are some space limitations with attorneys. At any time in the process, they can hire their own attorney.”

And finally, putting it all together: it’s not so bad, but really it’s their fault, and law and order, so.

So, obviously, there are still family units being broken up. But the average stay of those children in those facilities is less than 20 days. It would be – it would be incredibly difficult, if I was a parent, to see my child one of the situations. But at the same time, it also is difficult to wrap my mind around – and I’m not in their situation – but they’re also taking incredible risk to their own life and safety on crossing the border illegally in the way that they do, with their children, and putting them in danger.

This policy is the bad turning the blind against the innocent. It’s vile and inhumane. No one has to tolerate this system of atrocities, and that includes all of us.

Actually unblocked by Trump, as DOJ appeals ruling

We won our lawsuit on May 23, with a federal judge ruling that Trump blocking me and seven others violates the First Amendment. Now, as of June 4, I am actually unblocked by the president’s @realdonaldtrump account, as are the other plaintiffs. At the same time, the Department of Justice filed a notice of their intent to appeal the ruling to the United States Court of Appeals for the Second Circuit.

Meanwhile, an unknown number of other people remain blocked by the president. The Knight First Amendment Institute, which is representing us, has asked other people who are blocked to contact them at: info@knightcolumbia.org. I would love this case to end up extending to others blocked by Trump, and other public officials.

• See the Knight Institute for more info.
• The latest news was report by New York Times, Reuters, and Fox News, among others.
• The Trump lawsuit tag has the older posts.

Interrogating Ethnography comments

Elite law schools have better views.

I’ve edited out 4 minutes of stammering and ums, and a couple of errors, from my comments on Steven Lubet’s new book, Interrogating Ethnography: Why Evidence Matters, from this conference held over the weekend. So here it is in 16 minutes:

It turns out some people saw things differently from how I did, and I had a lot to think about. Comments welcome.

(There was a court reporter and video, so a complete record of all the panels should be available at some point.)

See you in court, Mr. President (about that Twitter account blocking)

On June 7, I described how President Trump’s Twitter account blocked me, and the argument for why that violates the First Amendment. I can now report that the Knight First Amendment Institute at Columbia University has filed a lawsuit on my behalf demanding that the President unblock us. The other plaintiffs are Trump-blocked Twitter users as well: Rebecca Buckwalter, Holly Figueroa, Eugene Gu, Brandon Neely, Joseph Papp, and Nicholas Pappas (the Knight Institute is also a plaintiff). The announcement is here.

This was the tweet I sent 15 minutes before discovering I was blocked by @realDonaldTrump:

Our argument is that the President created in his Twitter stream a “designated public forum,” and he can’t legally exclude people from that based on their political views.

Here’s my part of the story, as told to the Knight communications team:

I’m okay with the fact that the candidate I wanted lost the election. Our family was upset by the outcome, but I approached this like a civics lesson for the children: We told them that this is a democracy, and the next best thing to winning an election is using the democratic process to speak up. It is all of our responsibility to use the tools we have to engage in our democracy.

Social media are among the most effect tools I have to speak out. I have a blog and as a professor I publish academic writings, but Twitter gives me the broadest audience most immediately. For example, I’m delighted when I write a blog post that is read by a few thousand people. But because of my audience on Twitter, I can reach as many as 100,000 people with one of my tweets replying to the president. It’s true that there are some people who use the reply threads on Twitter just to trade insults, which may not be the most productive sort of conversation. But they also allow you to see a range of opinions of people who agree or disagree. Since I’m not a political commentator by profession, and I’m a parent, Twitter is the only way I can connect with that many people with just a few minutes of time every day (it helps that he and I seem to wake up at the same time in the morning so I can reply right away).

Being blocked by Trump diminished my ability to respond and engage in the political process. There has been measurable impact on my ability to be heard. Yes, I can still say what I want to say, but not to those I want to speak to, when I want to say it or in the way that means the most to me. It’s disempowering to be prohibited from speaking. And I’m troubled that the president can create a space on Twitter — where there are millions of people — that he can manipulate to give the impression that more people agree with him than actually do.

The complaint specifies:

Defendants’ blocking of Professor Cohen from the @realDonaldTrump account
prevents or impedes him from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads.

If I complained about random citizens blocking me on Twitter, you could call me a whiner or a snowflake. But the President is not a random citizen, he is a public official — even, yes, my president — and complaining about him blocking me from his official public forum is not a personal beef, it’s a Constitutional obligation. That’s why we have a Constitution, and the court system to enforce it.

Here is the Knight Institute’s original letter demanding that he unblock his critics, sent prior to filing the suit. Attorney Alex Abdo has responded to some objections to their approach in this post. Here are the stories of the plaintiffs.

I’m happy to talk more about this, in coordination with the legal team. Wish us luck!

Trump blocked me on Twitter and that violates the Constitution

On Twitter, users have the option of blocking other users, which prevents them from viewing the blocker’s tweets, getting notified when they tweet, and participating in the comment thread below the blocker’s tweets. Apparently, Donald Trump’s Twitter account has started blocking people who criticize him. As of yesterday, I’m one of those people.

Yesterday, the Knight First Amendment Institute, a new outfit with a hefty endowment at Columbia University, sent a letter to the President outlining why this practice violates the First Amendment and demanding that he unblock users. You can read the letter here, but the gist of it is that the President’s account operates as a “designated public forum” for the federal govnernment and that suppressing speech on the basis of people’s political beliefs in that context is illegal. (See coverage here and here, and an argument against this logic here.)

Here is Trump spokesperson Sean Spicer explaining that Trump’s tweets are “official statements by the President of the United States”:

Spicer: Trump’s tweets are “official statements by the President of the United States.”

Noted. pic.twitter.com/5IWHoszfVt

— Bradd Jaffy (@BraddJaffy) June 6, 2017

My case illustrates how Trump created a public forum, used for official purposes, and then excluded me from participating in that forum on the basis of my political opinions.

When Trump was elected I made a case for “drawing a new line through the political landscape: for versus against Trumpism,” and oriented my political activity as a citizen accordingly. It turns out that the most efficient way I could get this message out was in the Trump threads on Twitter, by making simple memes stating opposition to Trump or mocking him. It’s not a sophisticated operation, but it didn’t take up very much of my time, and for the effort I think it had good results. (Maybe because my Twitter identity is “verified” or I have a relatively large number of followers, my tweets seemed to appear near the top of the thread if I posted them promptly.)

And I discovered that the Trump Twitter threads are a place to meet and argue with real people, strangers from other bubbles, about the most pressing issues of the day. Sure, most of the dialogue is pointless shouting and insults, which I am naturally way above, but not all of it, and for every person shouting there are many people reading along, who may be influenced by what they see. (For example, think of the young people living in Trump families described so well by Amy Harmon.)

My memes and statements were viewed by hundreds of thousands of people, according to Twitter’s analytics, often appearing right below a Trump tweet. Clearly, this is not what the President wants, but just as clearly it is one small part of how democracy works these days. Here are a few examples of images I made and posted, or comments, with links for people who aren’t blocked so you can see them, screen images to avoid that (if you follow the links you can see the discussion in the threads).

From June 4:

From June 3:

From June 6:

From June 2:

From May 31:

From May 28:

From May 18:

From May 16:

From May 13:

From May 7:

You get the idea. Maybe putting up these memes feels like carrying a sign at a protest, but in this case it’s a political forum organized by the President and limited to those he selects based on their political statements. I don’t know how this legal argument will fare in the courts, if it gets there, but in this case as in so many others, his actions are bad for democracy.

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.”

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.