REPORT: Racial Disparities Exist In HIV Criminalization

This will not be a surprise to anyone who has been following the story of HIV criminalization in the United States over the last few years. The Black AIDS Institute has issued a report on a new academic finding that exposes the racial disparities that exist in HIV criminalization.

Two studies—one commissioned by the Williams Institute, a think tank at the UCLA School of Law that conducts independent research on sexual-orientation and gender-identity law and public policy, and the other presented at the International AIDS Conference in Durban, South Africa, in July 2016—link the criminalization of HIV to higher rates of incarceration for PLWHA of color, and community activists confirm it.

[...]

Researchers found that while White men made up 40 percent of the people diagnosed with HIV in California, only 16 percent of them had had contact with the criminal-justice system related to their HIV status. Black men made up 16 percent of PLWHA but 19 percent of those who had contact with the criminal-justice system. They were also more likely than White men to come into contact with the system repeatedly based on their HIV status: 25 percent vs. 10 percent. Overall, White men were more likely to be released and not charged. Black women made up only 4 percent of the population of PLWHA, yet an astounding 21 percent of them had come into contact with the criminal-justice system. Researchers say that more work needs to be done to identify what is driving the racial and gender disparities. 

In July, Trevor Hoppe, Ph.D., assistant professor of sociology at the State University of New York at Albany, presented his paper "HIV: Does Race Impact Sentencing Under Criminal HIV Exposure and Disclosure Laws in the United States?" at AIDS 2016. Hoppe looked at five states—Arkansas, Florida, Michigan, Missouri and Tennessee—and found that Black men were given an average sentence of 110 months after being convicted on an HIV-specific criminal law, while White men averaged 74 months for violating the same statute. He found the greatest racial disparity in Arkansas, where Black men's sentences were double those of white men—279 vs. 140 months. "In Arkansas, Black men were sentenced to a dozen more years," says Hoppe.

There are too many examples of public policy not keeping up with the advancement of scientific knowledge about HIV transmission and, unsurprisingly, it is people of color who appear to be disproportionately impacted by this. Just ask Michael Johnson!

GODLESS WEDNESDAY: Tennessee State House Passes Bill To Make Bible The State Book

Just in time for Godless Wednesday! Despite the Attorney General of the state saying clearly that the act would be struck down for violating the Tennessee  and United States constitutions, the State Assembly has decided to pass a bill declaring that the Bible is the "state book."

The Holy Bible is the official book of Tennessee in the view of the Tennessee House of Representatives.

Despite questions of constitutionality, lawmakers beat back an attempt to make Andrew Jackson's Bible the official book and voted 55-38 in favor of Rep. Jerry Sexton's original bill.

Do these people even care that some people think "The Bible" is just an old book of Jewish fairy tales.

Marriage Equality Cases Will Be Decided By US Supreme Court This Term!

Great news! The United States Supreme Court agreed to hear (granted certioari) in a number of consolidated cases from all four states in the Sixth Circuit that could lead to a ruling striking down all state-based laws that prohibit same-sex couples from getting married and states from recognizing those marriages. Two years ago on June 26, 2013 the Court ruled that the Congress could not enact a law to prohibit recognition by legally married same-sex couples for federal purposes.

There are currently 36 states (and the District of Columbia) with marriage equality, so the ruling by the Supreme Court would likely strike down the bans in the 14 remaining states.

The specific question the Supreme Court will ask parties to address in briefs and oral arguments are:

 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

It is likely there will be oral arguments in April (90 minutes on Question 1, 60 minutes on Question 2) and a final decision issued in the case(s) by June 2015.

Woo hoo!

Hat/tip to Chris Geidner!

6th U.S. Circuit Rules AGAINST Marriage Equality, Upholding Bans In KY, MI, OH and TN

Well! In a somewhat surprising move, the United States Court of Appeals for the Sixth Circuit has reversed multiple lower court rulings in favor of marriage equality and issued a 2-1 decision upholding the rights of Kentucky, Michigan, Ohio and Tennessee to enforce laws that restrict marriage to one man and one woman.

The 2-1 decision is contrary to decisions in the 9th, 10th, 4th and 7th Circuits which all favored marriage equality and which the Supreme Court declined to review last month, effectively granting marriage equality to go into effect in 30-plus states. Today's decision means that it is much more likely now that the United States Supreme Court will have to step in and give  a final resolution of the marriage equality question once and for all, probably by June 2015.

The two judges appointed by President Gerge W. Bush voted to uphold the marriage bans using the argument that judges should not be deciding such a question which could (and should) be sresolved by the Democratic process while the judge appointed by President Clinton voiced a fierce dissent to such an idea:

If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams. 

[...] 

Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.

It will be interesting to see how quickly the U.S. Supreme Court responds to today's actions by the 6th Circuit. Ruth Bader Ginsburg predicted that the Court would not feel inclined to get involved unless and until a Circuit split developed, and that is exactly what happened today.

Sixth U.S. Circuit To Hear Appeals In SIX Marriage Equality Cases Today

Today, August 6th will be an extraordinary day in the history of marriage equality. The 6th U.S. Circuit Court of Appeals in Cincinnati will hear marriage equality cases from all four states in the jurisdiction of the circuit: Michigan, Kentucky, Ohio and Tennessee.

As the Columbus Dispatch puts it:

It will be the single-largest legal event in the same-sex marriage debate since June 26, 2013, when the U.S. Supreme Court declared part of the federal Defense of Marriage Act to be unconstitutional. Since then, every major federal and state court ruling nationwide has gone in favor of gay-marriage proponents. The Cincinnati hearings are expected to draw such large crowds of journalists and spectators to the Potter Stewart U.S. Courthouse that the clerk of the 6th U.S. Circuit Court of Appeals has set up two overflow courtrooms equipped with piped-in audio of the proceedings. All five cases will be heard by the same three-judge panel, consisting of former Ohio Supreme Court Justice Deborah L. Cook, 62; ex-state Solicitor Jeffrey Sutton, 53; and Martha Craig “Cissy” Daughtrey, 72. Daughtrey was appointed by President Bill Clinton in 1993, while Cook and Sutton were picked by President George W. Bush in 2003.

The 6th Circuit is considered relatively conservative so even though marriage equality is on an unprecedented winning streak in federal court, a win from this court would be something of a surprise.

TN "Don't Say Gay" Bill Advances In State House

*sigh* Last May the Tennessee State Senate passed a fragrantly unconstitutional bill called SB049 which would have banned any discussion of any other sexual orientation other than heterosexuality in that state's public elementary or middle schools. Commonly known as the "Don't Say Gay" bill, it brought much attention (and ridicule) to Tennessee last year.

Today comes word that the Tennessee State House has passed a similar bill (HB229) out of committee just weeks after the Governor allowed a bill  which would basically allow the teaching of creationism in that state's schools to become law without his signature. (Funny how Republican Governor Chris Christie wouldn't let a marriage equality bill become law without his signature but felt he needed to veto it. But I digress!)

The New York Times' Andrew Rosenthal connects the dots:

The small government Republicans who dominate the Tennessee Legislature are taking a very active role in public education. Earlier this month the governor allowed passage of a law protecting teachers who challenge the “scientific weaknesses” of topics such as “biological evolution, the chemical origins of life, global warming and human cloning.” The sponsors say it fosters “critical thinking;” its opponents point out the obvious: It’s an anti-science measure intended to promote creationism and intelligent design, and to cast doubt on climate change. 

Now the Legislature is considering a measure that would bar any critical thinking in another area. It would interdict elementary and middle school teachers from discussing homosexuality. 

On Tuesday, House Bill 229 cleared a House education committee. Dubbed by critics the Don’t Say Gay bill, it “prohibits the teaching or furnishing of materials on human sexuality other than heterosexuality in public school grades K-8.” Its sponsor, Rep. Joey Hensley, explained that he has “two children—in the third- and fourth-grade—and [I] don’t want them to be exposed to things I don’t agree with.”

The sheer arrogance of the position that one can ban discussion of topics from children because you don't "agree with" them is breathtaking. I suppose if Rep. Hensley doesn't agree with Euclid's Postulates does that mean Tennessee will get legislation to ban the teaching of Geometry?

(As an aside, it should be noted that it is already illegal under Tennessee law to have an discussion of sex education at the middle or elementary school level.)

And they wonder why Republican's are called the "know nothing" party!

TN Groups File Lawsuit Against Anti-Gay Law

Excellent news! A coalition of LGBT Tennesseans have joined together to file a lawsuit challenging a recently enacted anti-gay law passed by the state Legislature which would repeal all existing local LGBT civil rights ordinances and prohibit the establishment of any ordinances which protect groups which are not currently protected in state law.

From the press release:

FOR IMMEDIATE RELEASE:

Tennesseans Challenge Discriminatory State Law
Councilmembers, Residents, Organizations File Suit Calling HB600 Unconstitutional

(Nashville, TN, June 13, 2011)—A group of local elected officials, individuals, and lesbian, gay, bisexual, and transgender (LGBT) rights organizations filed a lawsuit today in Davidson County Chancery Court, challenging the state’s recent passage of House Bill 600, which prohibits local municipalities and counties, including local school districts, from enacting local laws or school policies that protect gay and transgender people against discrimination. The bill was passed earlier this year, just weeks after Nashville added sexual orientation and gender identity to an existing local anti-discrimination law.  The new law also prohibits localities from protecting any other group that is not already protected under state law, which would include veterans and people with disabilities, among others.  

According to the complaint filed today: “HB600 embodies an animus toward gay and transgender people so strong that the Tennessee legislature was willing to repeal policies protecting students against bullying and harassment and to make other groups suffer as well, merely to prevent gay and transgender citizens from obtaining needed protections.”   

“This law is contrary to core Tennessee values,” said Abby R. Rubenfeld, the suit’s lead attorney. “Tennessee is the volunteer state—we help each other, we don’t single out certain Tennesseans who are deemed unworthy of help. Our legislators abused their power by preventing localities from assisting their own citizens. Rather than considering what is best for our state, they passed a law based on disapproval of gay and transgender people, which the Tennessee and U.S. Constitutions do not permit.”    

“Fifteen years ago, in fact—in a case quite similar to this one—the U.S. Supreme Court ruled that, ‘if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest’,” said Rubenfeld, citing Romer v. Evans, which struck down a Colorado constitutional amendment that barred localities or the state from passing laws to prohibit discrimination against gay people.

The suit’s plaintiffs, represented by Nashville attorney Rubenfeld, the law firm of Morrison & Foerster, and the National Center for Lesbian Rights, include:

•    Lisa Howe, the extremely successful Belmont University soccer coach who made a “mutual decision” to leave her coaching position unexpectedly and despite a highly successful career, immediately after sharing with her team that she and her same-sex partner were having a baby.

•    Metro Councilmembers Erik Cole, Erica Gilmore, and Mike Jameson, representing District 7, District 19, and District 6, respectively. Councilmembers Gilmore and Jameson were co-sponsors of BL2011-838, the Metro ordinance which extended existing anti-discrimination protections to gay and transgender employees of Metro government contractors.

•    Shirit Pankowsky, a rising senior at Martin Luther King, Jr. High School (MLK) and founder and president of MLK’s Gay/Straight Alliance. By stripping Metro’s ability to protect its citizens from discrimination, HB600 also strips protections from Metro Nashville Public Schools’ LGBT students who face discrimination.

•    Dr. Marisa Richmond, president of the Tennessee Transgender Political Coalition and longtime advocate for gay and transgender equality at the federal, state and local level.

•    Wesley Roberts, a teacher at Hume-Fogg Academic Magnet School and a co-sponsor of the school’s Gay/Straight Alliance.

•    The Tennessee Equality Project, a statewide non-profit organization dedicated to promoting and sustaining the equality of gay and transgender Tennesseans.

•    The Tennessee Transgender Political Coalition, a statewide organization which advocates for transgender-related legislation at the federal, state and local levels.

“I want my daughter to grow up in a state that treats everyone equally,” said Lisa Howe. “This lawsuit is necessary because the legislation is discriminatory and unconstitutional. Unfortunately, the majority of the legislature didn’t read the bill carefully and think through its consequences. But that’s why we have the Constitution and the courts to interpret it—so that the rights of everyone can be protected.”

“The state legislation was disguised as an effort to ensure consistent business regulations across Tennessee counties. But that was a Trojan horse pretext for getting this passed. Every county has unique zoning regulations, unique employment regulations, and so forth. Why is it only now, and only on the issue of discrimination, that we suddenly need uniformity? If every county now needs to be identical, should we abolish city councils across the state?” said Metro Councilmember and suit plaintiff Mike Jameson.
 
No individual businesses went on record in support of HB600, and some of Tennessee’s largest employers, including Nissan, Alcoa, FedEx, AT&T, Whirlpool and Comcast, opposed the bill. In addition, the Tennessee Chamber of Commerce issued a public statement in opposition to the bill on the day it was signed into law by Gov. Bill Haslam.

“Under the very thin guise of protecting businesses and commerce, Tennessee passed a law specifically intended to encourage discrimination against lesbian, gay, bisexual and transgender members of the community,” said Shannon Minter, Legal Director of the National Center for Lesbian Rights. “This law is part of a larger, national strategy to attack cities and counties that attempt to protect their citizens from discrimination based on characteristics that bear no relationship to job performance, talent, or one’s ability to contribute to society.”

Plaintiffs’ claims are based on the equal protection guarantees of the United States and Tennessee Constitutions. The lawsuit, which will proceed in state court, seeks injunctive relief to stop the enforcement of HB600 and an order from the Court declaring the law unconstitutional.  

Media Contacts:

Erik Olvera
NCLR Communications Director 
Office: 415.392.6257 x324
Mobile: 415.994.3242
EOlvera@NCLRights.org

Abby R. Rubenfeld 
Rubenfeld Law Office 
Office: 615.386.9077 
ARubenfeld@RubenfeldLaw.com

TN Senate Passes Flagrantly Unconstitutional Anti-Gay Bill

The Tennessee State Senate passed SB049, a bill to prohibit classroom discussions of any other sexual orientation than heterosexuality in public elementary or middle schools, by a vote of 19-11 on Thursday. Popularly known as the "Don't Say Gay" bill and sponsored by the 42-year-old, unmarried "longtime bachelor" Republican State Senator Stacey Campfield, the legislation has caused a furor in LGBT circles around the blogosphere.

The bill has no chance in becoming law this year, because the House companion bill has been withdrawn. Even if it does become law, any court in the country would strike it down as flagrantly unconstitutional for violating the First Amendment. Government does not get to pick and choose between the content of speech that it prohibits.

However there is a larger threat to the rights of LGBT citizens in  Tennessee because earlier this month the State Senate passed legislation to overturn Nashville's civil rights ordinance and prevent any future local civil rights ordinances which expand coverage beyond state law.

TN Senate Approves Bill To Repeal Local LGBT Rights Laws

In Tennessee, the State Senate has passed legislation to prohibit local ordinances which ban discrimination based on sexual orientation. The only city in Tennessee which has a local gay rights ordinance is Nashville, so basically the state legislature is repealing Nashville's ordinance and preventing any other locality from enacting  LGBT civil rights ordinance in the future.

A local news report from NewsChannel5:

A vote Thursday afternoon in the Senate all but cemented the passing of state's Equal Access to Intrastate Commerce Act. Senators voted 21 to 8 on the proposal that would prohibit local governments from creating anti-discrimination laws that are stricter than the state's has passed the Senate.

"It had nothing to do with intrastate; it had nothing to do with jobs. It had to do with some people that folks didn't like. And they twisted it up, dressed it up in bows to make it look different," said State Sen. Thelma Harper of Nashville.

The move by state legislators will repeal Metro Nashville's ordinance barring contractors from doing business with the city if they don't ban discrimination on the basis of sexual orientation and gender identity.

Ostensibly, the legislators are claiming that they want to have uniform statewide rules on non-discrimination. I suppose it's just a coincidence (or oversight) that they have also refused to pass a bill which would include sexual orientation or gender identity as characteristics protected under statewide civil rights laws.