Columns » Ernest Dumas




Nettie Stevens, the American geneticist who developed the XY chromosome differentiation to explain the mystery of how people were born male or female, would be saddened, I think, to see that the 110 years of scientific discovery that her research triggered leaves a society still divided, embittered and ruled by ignorance and superstition on the matter of what we call sexual identity.

How should we treat the millions of citizens who do not fit the standard physical, emotional and heterosexual expectations for males and females, often (we now know) because they have some variation of the XX and XY chromosomes that Stevens identified as female and male or because of genetic mutations, hormone abnormalities or some other condition that God picked out for them and that biologists and endocrinologists keep discovering? The century of scientific progress included research showing that children with nonconforming sexual attributes were headed for lives of unhappiness, discrimination, bullying and high rates of suicide.

So do we shun and disparage them as of old, or give them the rights and equal protection that the Constitution guarantees for every human on American soil?

Only two weeks ago, we seemed to be headed in the direction of human rights and equal protection. Now, it's shun and disparage again. But not for long, thank goodness.

Last week, reversing promises he made during his campaign and only two weeks earlier to protect gay, lesbian, bisexual and transgender people, especially children, from bullying and discrimination, Donald Trump ordered the government to end its protection of them. He had said bluntly that all children should use the bathroom they felt comfortable using, but Jeff Sessions, the old Ku Klux Klan admirer he chose for attorney general, insisted that Trump not mock his white-men base by giving LGBTQ kids the same rights as others, including using the restroom dictated by their own sense of their sex. A 1972 federal law prohibits sex discrimination of any kind in the schools. Trump's explanation was that the matter needed more study. His right-wing secretary of education, Betsy DeVos, bitterly opposed Sessions and her boss but in the end agreed to sign off on discrimination rather than resign.

Closer to home, the Arkansas Supreme Court struck down a Fayetteville ordinance that protected LGBTQ people from discrimination in town. The court unanimously held that the 2015 ordinance violated a later state law that prohibited local governments from trying to protect such people from discrimination. It disregarded the ex post facto nature of the state law, the fact that the ordinance aligned perfectly with other state laws guaranteeing protection and that their decision ran afoul of a whole passel of precedents both by the U.S. Supreme Court and the Arkansas Supreme Court going back well more than a decade.

The court chose simply to duck the constitutional questions, which it started to do two years ago on politically charged matters of sexuality rights. It dallied endlessly on an appeal of a marriage-equality decision by a lower court until the federal district court, the 8th U.S. Circuit Court of Appeals and the U.S. Supreme Court all decided the case for it. Then it dismissed the appeal.

In December, again endorsing state-sanctioned discrimination against same-sex couples, the state court said the state Department of Health was not violating the constitutional rights of same-sex couples by refusing to list both their names on their child's birth certificate, making it a laborious task for the couples to receive the benefits and rights accorded heterosexual families. One justice, Paul Danielson, dissented, noting that the highest court in the land, in the 2015 Obergefell decision, ruled unequivocally that the U.S. Constitution did not allow states to deny same-sex couples the full constellation of benefits of marriage, specifically birth and death certificates that recognized the family relationship. "You want justice? Go to federal court," the state court was saying.

But this is just part of the American story, the laborious pace of delivering on the soaring promises of freedom, equality and full citizenship in our founding documents, from the Declaration of Independence and the Bill of Rights to the 26th Amendment. Delivering those rights to unpopular minorities has been slow as science and human understanding expanded our knowledge of one another and of the vast diversity of life. The resistance has been the belief called "originalism" that phrases like "all men are created equal," equal protection of the laws and due process do not mean what they say but must follow the constraints of knowledge and superstition that regulated the white men who wrote and voted upon those great words. Women then were only vassals. Black people were not full human beings and certainly could not enjoy the right of free speech and association, much less the vote and Jefferson's liberty. The savage Indians certainly had no rights, whatever the Bill of Rights said about everyone. Hamilton and Madison surely would not have had deviants in mind when they penned the rights of freedom of association.

It has been two centuries and we're still perfecting those words, in the courts if not by statute and referendum. This month, the U.S. Supreme Court will take up the case of Gavin Grimm, a 17-year-old Virginia kid whose school board barred him from using the boys' restrooms because he is transgender. "All I want to do is be a normal child and use the restroom in peace," he told the school board. "Freak," an adult shouted. The Supreme Court will soon settle Trump's dilemma and that of the Arkansas legislature, which is working on a bill criminalizing transgender kids who try to use the bathroom conforming to their sense of identity.

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