Giving Thanks For Times the United States Has Fought Back Against Discrimination

@RHRealityCheck

It’s that time of year again: turkeys get pardoned or, more frequently, eaten. Malls get raided. Football gets ignored. Meanwhile, life goes on. And while it is easy to be cynical and disheartened by global news in light of so much hostility and inhumanity, for those of us living in the United States, this is also a time for giving thanks.

It is in that spirit that I have gathered a list of some of my favorite pieces of U.S. news on overcoming discrimination over the past couple of months:

• On April 9, 2012—Equal Pay Day—we could celebrate that the pay gap between Latina and black women and men had been reduced slightly compared to the year before. The over-all pay gap between men and women stayed more or less then same. (Of course, in June 2012, Senate Republicans blocked a bill that would have created better remedies for workplace discrimination through unequal pay by banning companies from retaliating against workers who ask about pay disparities, and by permitting punitive damages where discrimination is proven. But for now, let’s be thankful that the race/gender pay gap is diminishing).

• August 1, 2012, marked the day the provision of the Affordable Care Act that requires employers and insurers to cover preventive health care services, including contraception, in their policies without a co-pay took effect. This, in particular, is good news for women, because women often are stuck with the bulk of contraceptive responsibilities.

• In September 2012, a national study (citing 2011 data) was published, showing that lesbian, gay, bisexual, and transgender youth (LGBT) in U.S. school face less harassment than they used to. Granted, a whopping third of LGBT youth still say verbal harassment or bullying takes place often or frequently, which is outrageous (and probably reflects under-reporting). Still, given the fact that this number is down from almost 41% in 2009, it is certainly good news.

• In early November 2012, U.S. voters in four states came out in support of marriage equality, passing same-sex marriage in Maine, Maryland, and Washington state, and rejecting a constitutional amendment to define marriage as between one man and one woman in Minnesota. It should be obvious why this is good news, despite the fact that same sex couples still are denied equal rights at the federal level.

• Also in November 2012, the American College of Obstetricians and Gynecologists, the national OB/GYN organization of the United States, recommended that oral contraception be made available over the counter. This is great news, if translated into reality, especially since it will mitigate some of the consequences when employers don’t want to offer comprehensive health insurance to their employees.

• And last but not least, the U.S. Court of Appeals for the Sixth Circuit declared that Michigan’s ban on affirmative action policies is unconstitutional. Or put differently: there is nothing discriminatory about seeking a race (or gender) conscious way to overcome entrenched inequalities.

You may have noticed that none of this news is unpolluted. For every thanks we give, there is another mountain to move.

I am, however, an eternal optimist. Perhaps the best news of all is that when we look at gender and race discrimination in the United States over the past 4 or 5 decades, while it is still prominent and rife, it is gradually becoming less and less acceptable in law and in practice.

This year, for Thanksgiving, I celebrate Title VII of the Civil Rights Act of 1964: it’s been almost half a century since Congress codified the fact that we are all equal, at least on paper. I trust it won’t take us another 50 to really make it a reality.

How Governments and Individuals - Meaning Each of Us - Deny the Persistence of Racism and Abuse

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When you work on human rights issues, you notice a certain pattern in government denial of abuse. First line of defense: it didn’t happen. Or if it happened, they did it to themselves. Or if they didn’t, we certainly had nothing to do with it. Or if we did, we didn’t mean to. It doesn’t matter if the issue is torture, forced evictions, or garden-variety employment discrimination. The response from those in charge is often, if not always, the same.

Though this pattern is annoying, to say the least, I have lately become acutely aware of a much more depressing trend: the denial of abuse among those of us who should know better. Of course, we don’t call it denial. We call it "realism." But the mechanism is the same.

1. “It didn’t happen.”

For decades, commentators and a large proportion of the US public have posited that racism no longer exists. Despite the fact that skin color and ethnicity matters with regard to just about any social indicator you care to look at — health, education, employment, housing, law enforcement — most white people believe the system we live in is racially just.

The writer Touré has described this situation as a “fog of racism:” a situation so subtle, it is blurred. “With this form of racism,” he says, “there is no smoking gun. There is no one calling you a nigger to your face. There's no sign saying you can't enter this building. ... But … it’s there.”  

This is not much different from the many people who are genuinely puzzled at the need for continued attention to women’s issues in the United States now that “the genders are equal.” I hear this argument almost daily, despite ample evidence to the contrary, including the continued pay gap and the vicious attack on reproductive rights for women and not men.   

2. “They did it to themselves.”

Blaming the victim is par for the course in rape cases, a context in which it (rightfully) is denounced by women’s groups as sexist, discriminatory, and just plain wrong. But it is also common for individuals who identify sexual or racial discrimination to be called silly, overly sensitive, or even vindictive. 

When I firmly told off a male colleague at a former employer for caressing my waist, a female colleague immediately and loudly concluded that I “must have gotten up on the wrong side of the bed.” 

And I can’t count the times I have been told that “black people are racist too,” as a manner to excuse racial discrimination. In sociology and social psychology, this phenomenon is called internalized oppression, that is the manner in which an oppressed group comes to use against itself the methods of the oppressor. More commonly, it is expressed as a desire to maintain the dignity of the group: we may suffer, but we don’t complain or sulk. 

3. “We had nothing to do with it.”

Most people don’t like to think of themselves or the people they know as bigots. This is natural and reasonable. It is hard to remain sane if you believe your actions are consistently insensitive or morally wrong. This, however, is not the same as noticing and addressing injustice — especially injustice that we, ourselves, are benefitting from. 

For example, I cannot in good conscience say that I have nothing to do with racism (or sexism, or hetero-centrism, or…) when I know that I benefit daily from a system that overwhelmingly recognizes my humanity and rights because of my Northern passport, fair skin, perceived heterosexuality, motherhood, and Judeo-Christian background (I could go on). Unlike my Peruvian ex-husband, I don’t have to think about what I wear when I travel in order to avoid additional hassles at airport security. And unlike those of my female friends who are non-gender-conforming and childless, I don’t have to defend my worth as a woman.  

4. “We didn’t mean to.”

When all other justifications have failed, the usual fall-back for governments who violate human rights is lack of intent: we may indeed have tortured a couple of prisoners, but it was unknowingly done and therefore, it is implied, of limited importance. 

This excuse is hardly ever used as a denial strategy for continued and entrenched racial, sexual, and other discrimination in the United States. And not because we recognize our responsibility in the stereotypes we perpetuate. But rather because we don’t. In fact, as shown above, we routinely deny the very existence of discrimination.

I am not advocating a collective guilt complex, or, worse, some sort of warped paternalistic pity-fest in which those of privileged background pound our chests in earnest distress and bemoan the supposedly pathetic lives of those considered beneath us. I am, however, advocating a reckoning that allows us to confront those stereotypes that result in the abuse of human rights. Even, and especially, when this means that some of us must give up our special privileges.

And here’s why: I know I am benefiting from many of the stereotypes that prevail in the country I have chosen to live in. I also know I am complicit in the resulting discrimination to the extent that I don’t challenge it.

Are All Blacks Prejudiced Against All Gays? Beyond the Static View of Race, Sexual Orientation, and Otherness

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President Obama’s support for marriage equality came just one day after North Carolina voters banned same-sex marriage. Twitter storms followed each development, in which tweeters first declared that black people were homophobic as a group, then just as sweepingly that they were not. Somehow, the North Carolina defeat for marriage equality was seen as proof that all blacks hate all gays, whereas President Obama’s support was proof of the opposite.

This overgeneralization is somewhat similar to some of the commentary in the wake of the Trayvon Martin tragedy. We heard that “black violence” was somehow worse and more endemic than violence committed by non-black perpetrators. This idea was also the organizing principle behind the blog-post that got John Derbyshire fired from the National Review for advising his children to avoid contact with black people who are, Derbyshire argued, statistically more likely to be arbitrarily violent, especially toward whites.

It is not hard to see the racist undertones of all of these arguments, down to the very notion that everyone of a certain “race” has personal character traits that are inescapably and intrinsically linked to their skin color. It is also not hard to find information to disprove them: many blacks in North Carolina opposed the constitutional same-sex marriage ban.   And Justice Department statistics show that most violence is carried out within racial homogeneous communities, so that, for example, black-on-white homicides are a rare exception rather than the rule.

There are, of course, good reasons to pool and parse statistical information about any population using group criteria that may illustrate unequal policy outcomes for individuals associated with those groups. In fact, we expect governments to collect and separate statistics with a view to analysing policy effectiveness and equal access to benefits, rights, and care. Generalizations about groups can also be helpful in visualizing the underlying reasons for inequality and devising strategies to overcome it.

However, problems arise when our only understanding and interactions with specific people result in our treating them as part of a group and not as individuals. Whatever else may be true about George Zimmerman’s interaction with Trayvon Martin, it is clear from his phone comments to the police dispatcher that he had preconceived notions about Martin’s "dangerousness" even before he got out of the car — preconceptions that therefore only could be based on Martin’s appearance, including his sex, age, color, and apparel, and most likely the combination of all of them.

The corollary of this notion is that one way to overcome racism and homophobia and other “group-isms” is for people to relate to each other as individuals. While it is true that some people are able to reconcile a generalized negative feeling about certain groups (“all blacks are violent”) while nurturing positive sentiments about individuals from that group (“some of my best friends are black”), it is also true that most people start seeing a group differently when they know and love someone who belongs to it. A generally homophobic parent with a gay child may not feel compelled to campaign for marriage equality any more than they did before their child was “out.” However, most will at least start questioning negative portrayals of “all gays” in the media. This is why Derbyshire’s advice to his children to actively avoid contact with blacks is so insidious: it pushes a false notion of otherness that is purposefully static.

Even more serious problems arise when policies that should be informed by data and statistics instead are influenced by such Derbyshire-style perceptions of static and false otherness. The racial profiling of stop-and-frisk practices is one blatant example. Along those lines, Michelle Alexander has amassed examples of situations where police departments target predominantly black communities for aggressive interventions and arrests for drug-related crimes, even where data shows that in that specific state or city, the main users or sellers of drugs are not black. Many of the arguments voiced against marriage equality are equally based on false ideas that all gay people are promiscuous, sexually predatory, or bad parents.

And perhaps this is where the real issue lies. It is almost instinctual for us to organize information about the world around us based on visual cues and personal experiences. And it is equally human to use these cues and experiences to generate assumptions about what might happen and what we should do about it. It is when we confuse trends or, worse, preconceptions with reality that abuse, inequality, and discrimination can take hold.

More disturbingly, negative generalizations about what everyone in a given group wants, thinks, and does help to justify those who actually do. When we portray all black people as homophobic we exonerate individuals of color who feel prejudiced against gays. They are not responsible for their beliefs—their skin color made them do it.

I would not wish to be called homophobic just because quite of lot of individuals who happen to be white make anti-gay remarks. Even less would I want these individuals to be able to brush off their anti-gay sentiments as a natural part of their “whiteness.” Prejudice is prejudice, wherever it comes from and whatever form it takes. Respect dictates we treat it as such.

Coleman v. Court of Appeals of Maryland: A Warning to Women

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Last week the U.S. Supreme Court held that states cannot be sued for denying workers sick leave. An employee of the Maryland state courts, Daniel Coleman, had sued for monetary damages after he was fired for requesting time off to take care of his health.

States generally cannot be sued for damages, but one exception is in cases that involve unconstitutional treatment, including discrimination. While the case decided on Tuesday therefore was framed in terms of state sovereignty, the Court’s very understanding of discrimination was at stake.

The majority opinion handing down last Tuesday should be a warning to women: the Supreme Court most definitely does not have our backs.

Here’s how.

US federal law protects the right to sick and family leave (unpaid leave either to take care of yourself or of a family member such as a spouse, an elderly parent or a newborn child) through the Family and Medical Leave Act (FMLA).

In 2003, in the context of family leave-related discrimination against a state employee of Nevada, William Hibbs, the Supreme Court detailed the congressional intention behind the FMLA as predominantly a desire to overcome gender-based discrimination. Indeed, the 2003 ruling was very clear: “The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.”

At the time, the Court held that employees of the state of Nevada were entitled to seek monetary damages for infringements of the family leave part of the FMLA. The Court felt that absent such due process guarantee, government officials would somehow lose their constitutional right not to be discriminated against on the basis of sex. The final opinion was narrowly focused on the family leave provisions of the law because those were the provisions at stake in the case at hand, but prior to last week’s case, it seemed reasonable to apply the court’s conclusions in the 2003 case to the FMLA as a whole.

Last week’s ruling limits that precedent by concluding that the U.S. Congress didn’t have gender-based discrimination in mind when it enacted the sick leave protections of the FMLA.

The court’s analysis is based on technical considerations of what evidence Congress had before it when it enacted the FMLA—“Congress made no findings, and received no specific testimony” that women might face discrimination for taking more sick leave than men.

But the result is a decision that essentially says that sick leave—taking care of oneself—is fundamentally different from family leave—taking care of someone else—in that it does not depend on gender differences or stereotypes. This is an erroneous conclusion.

Had the Court argued that men and women take equal amounts of long-term sick leave—which is true—the majority opinion in last week’s Coleman case would at least only have been a selective reading of the facts, not a retrograde interpretation of discrimination laws. However, the Court argued that even though the denial of sick leave might have a disproportionate impact on women, denying anyone the protection of such leave still does not constitute discrimination. Such a conclusion flies in the face of international human rights law and even US legal definitions of disparate impact as discrimination.

It is ironic that this sentence was handed down the same week new research on health insurance was published, showing that women still pay more than men for the same health plan. Private insurers justify the price differential by reference to the fact that, all other things being equal, women need more medical care than men, notably due to our ability to bear children and recommended routine health visits related to our reproductive organs.

Of course, PAP smears and prenatal check-ups do not automatically translate into time off or sick leave, though as most of us know, they generally do. The Court majority opinion glosses over this fact by noting that most states have other protections that allow women time off to take care of their health. Again the Court majority inexplicably insists that the denial of a right that disproportionately affects women qua women is not discrimination, all the while reaffirming the fact that the differential impact is real.

None of the three female justices of the Supreme Court held with the majority. Justices Ginsberg, Kagan, and Sotomayor were joined by Justice Breyer to resoundingly disagree with the majority opinion in Tuesday’s ruling in the Coleman case. These four Justices rightly noted that “[i]t would make scant sense to provide job-protected leave for a woman to care for a newborn, but not for her recovery from delivery, a miscarriage, or the birth of a stillborn baby."

Indeed, it makes no sense as a matter of effective policy or legitimate legal analysis.

It does, however, make the same warped sense as the many recent state initiatives to simultaneously curb access to contraception, abortion, and child benefits. The message last week’s majority opinion for the Supreme Court seems to send is that women matter only as incubators and care-givers and not as equal citizens in a modern democracy.

The Other Side of Reproductive Justice: How Sterilization and Other Forms of Coercion Are Used Against "Unworthy" Parents

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Earlier this fall, a committee of the Parliamentary Assembly for the Council of Europe held a hearing entitled “Putting an end to coercive sterilizations and castrations.” This debate continues today, November 21, 2011. What is remarkable about this is not the outcome or the discussion, but rather that it was necessary at all. After all, most parliamentary debates about contraception and childbearing these days seem to be about how to make women have more children than they want, not less.

However, if we scratch the surface a bit, it becomes clear that two seemingly contradictory political discourses happily coexist. On the one hand, policy-makers push for limits to contraceptive access for women, generally speaking. And on the other, they enforce policies that criminalize, condemn, or render impossible the reproduction of specific subgroups of women (and men), who for various reasons are seen as undesirable parents: Roma women, lesbians and gay men, transgender people, indigenous women,injection drug users, women living with HIV—the list goes on.

In this connection, coercive sterilizations and castration are at the extreme end of a spectrum that also includes criminal sanctions for drug use during pregnancy and barring LBGT individuals from in-vitro fertilization services and adoption, as well as a host of other policies geared at making pregnancy and parenting difficult for those deemed unworthy. In fact, the more “unworthy” the individual or group is considered by the general public, the more explicitly coercive the measure to limit their possibility for parenting. So much so that by considering the lengths to which a government will go to prevent certain individuals from procreating, we can gauge the extent of the stigma they face.

For example, it would probably no longer be politically viable to implement quotas for the sterilization of indigenous women, as the Peruvian government did in the 1990s, yet Roma women and even just poor women are still routinely sterilized without their consent in several countries. Lesbian women are rarely forcefully sterilized, yet they are often excluded from becoming adoptive parents or from benefiting from in-vitro fertilization processes. Many countries require transgender individuals to be sterilized before they can legally change their names or papers to reflect their preferred gender, and intersex individuals are often assigned a sex—and in the process rendered infertile—as infants and certainly before they can give meaningful consent. The most restrictive and invasive intervention, forced castration, is reserved for convicted sex offenders who, in turn, arguably are seen as the most unworthy and reviled of all.

As a human rights issue, coerced sterilization and castration are in many ways no different from other limitations on individual reproductive choice: they violate a number of fundamental rights, including the rights to health, privacy, and physical integrity. Additionally, they make discrimination and public contempt visible and as such can help target policy interventions to alleviate abuse.

But a more interesting aspect of the practice of coerced sterilization is that it crystallizes the hypocrisy of the limitations to reproductive rights. When I did research on access to abortion in Mexico in 2005, for example, I found that rape victims routinely were denied services they, by law, were entitled to, whereas sex workers and women living with HIV who were applying to the same hospitals for the same services were offered abortions they did not need and that would technically have been illegal.

When Parliamentary Assembly for the Council of Europe continues its debate on forced sterilizations on Monday, it would do well to think through in what other ways it can support individual choices on when, if, and with whom to become a parent. Only just a year ago, the Assembly refused to recommend adequate regulation of conscientious objection in the medical profession, a move that probably already has contributed to the denial of care to many women across the continent.

These are not separate issues. The Roma woman who is forcefully sterilized suffers as much as the one who is denied an abortion or other needed care. Everyone must be allowed to make individual and responsible decisions about parenting and procreation.