World swimming’s governing body effectively banned transgender athletes from competing in women’s events on Sunday.
FINA members at the organization’s extraordinary general congress voted 71.5% in favor of its new “gender inclusion policy” that only permits swimmers who transitioned before age 12 to compete in women’s events.
“This is not saying that people are encouraged to transition by the age of 12. It’s what the scientists are saying, that if you transition after the start of puberty, you have an advantage, which is unfair,” James Pearce, who is the spokesperson for FINA president Husain Al-Musallam, told The Associated Press.
“They’re not saying everyone should transition by age 11, that’s ridiculous. You can’t transition by that age in most countries and hopefully you wouldn’t be encouraged to. Basically, what they’re saying is that it is not feasible for people who have transitioned to compete without having an advantage.”
FINA’s new 24-page policy also includes proposals for a new “open competition” category. FINA said it was setting up “a new working group that will spend the next six months looking at the most effective ways to set up this new category.”
Pearce told the AP that the open competition would most likely mean more events but those details still need to be worked out.
“No one quite knows how this is going to work. And we need to include a lot of different people, including transgender athletes, to work out how it would work. So there are no details of how that would work. The open category is something that will start being discussed tomorrow,” Pearce said.
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The members voted after hearing presentations from three specialist groups — an athlete group, a science and medicine group and a legal and human rights group — that had been working together to form the policy following recommendations given by the International Olympic Committee last November.
The IOC urged shifting the focus from individual testosterone levels and calling for evidence to prove when a performance advantage existed.
FINA said it recognizes “that some individuals and groups may be uncomfortable with the use of medical and scientific terminology related to sex and sex-linked traits (but) some use of sensitive terminology is needed to be precise about the sex characteristics that justify separate competition categories.”
In March, Lia Thomas made history in the United States as the first transgender woman to win an NCAA swimming championship. She won the 500-yard freestyle.
Other sports have also been examining their rules.
On Thursday, cycling’s governing body updated its eligibility rules for transgender athletes with stricter limits that will force riders to wait longer before they can compete.
The International Cycling Union (UCI) increased the transition period on low testosterone to two years, and lowered the maximum accepted level of testosterone.
James Rado, co-creator of the groundbreaking hippie musical “Hair,” which celebrated protest, pot and free love and paved the way for the sound of rock on Broadway, has died. He was 90.
Rado died Tuesday night in New York City of cardio respiratory arrest, according to friend and publicist Merle Frimark.
“Hair,” which has a story and lyrics by Rado and Gerome Ragni and music by Galt MacDermot, was the first rock musical on Broadway, the first Broadway show to feature full nudity and the first to feature a same-sex kiss.
From third left, James Rado, Diane Paulus and Galt MacDermot with cast members during the opening night curtain call for “Hair” at the Al Hirschfeld Theatre in New York on March 31, 2009.Walter McBride / MediaPunch/IPx via AP file
Tributes came in from the theater world, including André De Shields, who tweeted “Rest in power, James Rado,” to playwright Michael R. Jackson, whose “A Strange Loop” just won the Tony Award for best new musical. He tweeted “rest in peace.”
“Hair” made possible other rock musicals like “Jesus Christ Superstar” and “Rent.” Like “Hamilton,” it was one of only a handful of Broadway shows in the past few decades to find its songs on the pop charts.
The so-called “American tribal love-rock musical,” had its world premiere at the Public Theater in New York City’s East Village in 1967 and transferred the following year to Broadway, where the musical ran more than 1,800 performances. Rado played Claude, a young man about to be drafted and sent to the war in Vietnam.
Clive Barnes, theater critic for The New York Times, called the show “the first Broadway musical in some time to have the authentic voice of today rather than the day before yesterday.” The New York Post said it had “unintentional charm,” contagious high spirits and a “young zestfulness” that “make it difficult to resist.” Variety, however, called it “loony.”
It lost the Tony in 1969 to the more traditional “1776” but won a Grammy Award. The show was revived on Broadway in 1977 and again in 2009, when it won the best revival Tony. It was made into a movie directed by Milos Forman in 1979 starring Treat Williams and Beverly D’Angelo.
The “Hair” Broadway cast album spawned four top four singles on the American pop charts, including the No. 1 hit “Aquarius/Let the Sunshine In” by the Fifth Dimension, which won the Grammy Award for record of the year and best pop vocal performance by a group in 1970. Others included “Hair” by the Cowsills, “Good Morning, Starshine” by the singer Oliver and “Easy to Be Hard” by Three Dog Night. The cast album itself stayed at No. 1 on the Billboard 200 for 13 weeks
“Hair” tells the story of Claude and Berger, best buddies who find freedom in the late 1960s. Between draft-card burnings, love-ins, bad LSD trips and a parade of protest marches, the two wander through a New York filled with flower children, drugged-out hippies and outraged tourists who don’t approve of the wild goings-on. In one song, Claude poignantly sings, “Why do I live, why do I die, tell me where do I go, tell me why.”
Will Swenson, who played Berger in “Hair” in the 2009 revival, on Twitter called Rado a “crazy, wonderful psychedelic visionary” and said his show ”changed my life. The tribe is forever.”
The show is playful and chaotic, but there’s also a sense of outrage in its protests against war, racism, sexism, pollution and the general hypocrisy of an era dominated by the American involvement in Vietnam.
“I’d still like ‘Hair’ to be about what it was about then,” Rado told The Associated Press in 1993. “‘Hair’ had a spiritual message, and it has a mystical message I hope is coming through — there’s more to life than the way it’s been devised for us, explained to us, taught to us.”
The songs of “Hair” have been used in everything from the films “Forrest Gump,” “Minions” and “The 40-Year-Old Virgin” to TV shows like “Glee,” “So You Think You Can Dance” and “My Name Is Earl.” Billboard magazine lists “Aquarius/Let the Sunshine In” at No. 66 of all-time top 100 songs.
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Some stars who had roles in “Hair” include Diane Keaton, Joe Mantegna, Meat Loaf, Keith Carradine, Donna Summer, Tim Curry, Elaine Paige and David Patrick Kelly and Charlayne Woodard.
At one point there were 14 companies running simultaneously all over the globe, including a London production which ran for nearly 2,000 performances.
In 2019, the original 1968 Broadway cast recording was inducted into the National Recording Registry of the Library of Congress. Librarian of Congress Carla Hayden deemed “these aural treasures worthy of preservation because of their cultural, historic and aesthetic importance to the nation’s recorded sound heritage.”
Rado was born in Venice, California, and raised in Rochester, New York, and Washington, D.C. After serving two years in the U.S. Navy, he moved to New York and studied acting with Paula and Lee Strasberg.
Rado was part of the ensemble of the Broadway play “Marathon ’33” in 1963 and played Richard Lionheart in “The Lion in Winter” in 1966 opposite Christopher Walken. He met Ragni when he was cast in the off-Broadway musical “Hang Down Your Head and Die.”
The two were interested in birthing a new kind of show and focused on the hippie scene. They wrote the script while sharing an apartment in Hoboken, New Jersey. Rado originated the “Hair” role of the draftee Claude on Broadway.
“Hair” met resistance across the country. In addition to the use of four-letter words, the flouting of authority, sexual references and gross-out humor, the end of Act 1 had the entire cast strip naked to “Where Do I Go” and there was what many believed was desecration of the American flag.
There were church pickets in Evansville, Indiana. Municipal officials in Chattanooga, Tennessee, denied a request to stage the show, determining that it would not be “in the best interest of the community.” In Denver, police threatened to arrest anyone who appeared nude onstage. A Boston visit was challenged in court on the basis of flag desecration.
The original Public Theater production had cut the nude scene, but the creators wanted it back for the Broadway debut. Under the law at that time, New York City allowed nudity onstage onstage as long as the actors weren’t moving, which is why the whole cast of “Hair” stood together in a row, nude and perfectly still.
After “Hair,” Rado wrote the music and lyrics of the off-Broadway show “Rainbow,” co-authoring the book with his brother, Ted Rado. He later teamed up with Ragni to create the book and lyrics for the show “Sun.” Ragni died in 1991. Rado wrote a new show called “American Soldier” with his brother.
In 2009, Rado, MacDermot and Ragni were inducted into the Songwriters Hall of Fame. Marilyn McCoo and Billy Davis Jr., of the group The Fifth Dimension, were joined onstage by the Broadway cast at the time for a finale that brought the ceremony’s approximately 1,000 guests to their feet. MacDermot died in 2018.
Rado told the Hudson Reporter in 2009 that none of the show’s creators anticipated that it would have such an enormous impact. “We thought we’d stumbled on a great idea, and something that potentially could be a hit on Broadway, never thinking of the distant future.”
He is survived by his brother Ted Rado, sister-in-law Kay Rado, nieces Melanie Khoury, Emily DiBona and Melissa Stuart, great-nieces and a great-nephew.
A Supreme Court decision allowing taxpayer dollars to help pay for tuition at schools that offer religious instruction has sparked concerns about the potential implications of the ruling on LGBTQ rights.
In a 6-3 vote, the court ruled Tuesday that Maine could not prohibit parents from using a state-funded tuition assistance program to pay for their children to attend private religious schools while permitting them to do so in private secular schools. The two schools cited in the case have a history of homophobic and transphobic policies.
The ruling in Carson v. Makin is a continuation of the conservative-majority court’s recent willingness to poke holes in the barrier between church and state. A number of LGBTQ advocacy organizations and other supporters of queer rights are sounding the alarm about what the decision signals about the court’s direction, especially when it comes to reconciling religious freedom with safeguarding lesbian, gay, bisexual, transgender and queer people from discrimination.
Following the high court’s decision, Maine Attorney General Aaron Frey said in a statement that he is “terribly disappointed and disheartened” by the ruling, which specifically affects about 5,000 Maine children and their families who live in rural school districts that do not have a public school, and therefore must rely on the tuition program to attend private school.
He said the schools named in the suit “promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff.” He also vowed to work with Maine’s governor, Janet Mills, to “ensure that public money is not used to promote discrimination, intolerance, and bigotry.”
“While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear,” Frey said in the statement.
The two private Christian schools involved in the case — Temple Academy and Bangor Christian Schools — “candidly admit” that they discriminate against LGBTQ people, state officials wrote in a May 2021 court filing.
Bangor Christian’s 2021 handbook, for example, says the only “legitimate meaning” of marriage is one that “joins one man and one woman” and states that “any other type of sexual activity, identity or expression that lies outside of this definition of marriage” are “sinful perversions of and contradictory to God’s natural design.”
“Any deviation from the sexual identity that God created will not be accepted,” the handbook states.
Temple Academy requires students and parents to sign a form acknowledging that the school adheres to a conservative evangelical ideology that includes views on marriage and homosexuality that are “often at odds” with the “humanistic views currently prevailing in our society.”
Plaintiffs David and Amy Carson, one of the two sets of parents who sued Maine over its tuition assistance program, told NBC News on Tuesday that they wanted to send their daughter to Bangor Christian because, as Amy Carson put it, the school’s beliefs “are aligned with what we have at the home.”
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Martha Boone, principal of Bangor Christian, declined Wednesday to comment to NBC News. Temple Academy did not respond to a request for comment.
Katherine Franke, a law professor at Columbia University, said Tuesday’s ruling is a “huge loss” for LGBTQ equality, adding that the decision will allow public funds to flow to private schools that have policies that seem to conflict with public values.
“That certainly impacts LGBT students most directly, because these schools are well known in Maine for being quite homophobic,” Franke said. “What we’re seeing, I think, in this decision, is this new court bringing together several strands of its religious liberty jurisprudence, or doctrine, in a way that clearly elevates religious liberty rights over all other rights,” she said.
Equality Maine, a statewide LGBTQ rights organization based in Portland, wrote in a tweet that it is “disappointed but not surprised” by the ruling, because many religious schools “openly discriminate against LGBTQ+ people, promote only their beliefs, and are closed to divergent point of views.”
“Because of the Supreme Court ruling, we believe Maine has an obligation to examine their policies and procedures, and change them, to avoid public money to flow to religious institutions that we know discriminate against LGBTQ+ people,” the group wrote in a separate tweet.
The implications of Tuesday’s decision remind Jenny Pizer, acting chief legal officer for LGBTQ civil rights group Lambda Legal, of the late ‘90s, when Congress passed a series of laws that came to be known as “Charitable Choice.” According to White House archives, the laws were intended to clarify the rights and the responsibilities of faith-based organizations receiving federal money.
Pizer said the laws were part of a push to expand partnerships and collaboration between government and religious agencies that left some worried about what she called “a dangerous path of entangling government and taxpayer money with religion.” She said she believes Tuesday’s decision is evidence of those fears coming to bear.
“As members of a community that has been subjected to generations of abuse based on religious condemnation of who we are, this is a very alarming time,” she said. “This decision is the continuation of a trend. It’s not the beginning. It’s not the end. It’s one point on a dangerous road.”
The International Rugby League (IRL) banned transgender players from women’s international competition on Tuesday until further notice, following global swimming’s decision to restrict trans athletes’ participation at the elite level.
The league said it needed to further consult and balance transgender participation against “perceived risk” to other players.
“Until further research is completed to enable the IRL to implement a formal transgender inclusion policy, male-to-female (trans women) players are unable to play in sanctioned women’s international rugby league matches,” the IRL said in a statement.
“It’s disappointing. We’re human beings the same as everyone else,” transgender woman Caroline Layt, who played elite women’s rugby league in Australia after transitioning, said.
“It just tells trans kids and trans adults that you’re not worthy. Don’t even bother. Don’t even bother showing up. What’s the point?”
Other sports have policies restricting transgender athletes in top women’s competition, including rugby union, cycling and Australian Rules football.
The International Olympic Committee, however, said in November that no athlete should be excluded from competition on the grounds of a perceived unfair advantage, while leaving it up to sports federations to decide.
The International Cycling Union said last week it had tightened its eligibility rules.
Other sports are reviewing their policies.
World soccer governing body FIFA said it is in a consultation process over transgender participation while World Athletics boss Sebastian Coe praised FINA for its stance.
‘Cruel decision’
A top medical official at FINA told Reuters on Monday he hoped other sports would follow the organization’s lead.
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“To my mind, FINA’s approach to this was very enlightened, it was very balanced, it was informed,” FINA’s Sports Medicine Committee vice chairman David Gerrard said.
However, U.S. soccer player Megan Rapinoe, a two-time World Cup winner and an Olympic gold medallist, said the FINA decision was “disgusting” and “cruel.”
“We’re (framing) everything through ‘God forbid a trans person be successful in sports.’ Get a grip on reality and take a step back,” she told Time magazine.
The IRL said it would work with the eight nations competing at the women’s Rugby League World Cup hosted by England in November to obtain data to inform a transgender policy in 2023.
“The IRL will continue to work towards developing a set of criteria, based on best possible evidence, which fairly balance the individual’s right to play with the safety of all participants,” the organization added.
Ian Roberts, the first elite rugby league player to come out as gay, said transgender athletes should be welcomed into the sport and likened concerns about their participation to the homophobia he experienced in the 1990s.
“This is almost like the modern day equivalent,” the 56-year-old said.
“I would have hoped we would have matured as a community and as a society beyond that. Equal is equal.”
The ban is unlikely to affect many international players in women’s rugby league.
There are no transgender players competing at the international level in the sport’s heavyweight nations Australia and New Zealand.
The governing body of Australia’s domestic National Rugby League (NRL) competition declined to comment on the international ban and said it was still formulating its own transgender policy.
The first National Park Service visitor center focused on teaching LGBTQ history will open right next door to New York City’s historic Stonewall Inn.
Pride Live, the LGBTQ advocacy group spearheading the project, announced Tuesday that the Stonewall Inn — the site of a June 1969 uprising that’s widely considered a major milestone in the modern gay rights movement — will be reunited with its neighboring building in Manhattan’s Greenwich Village neighborhood to “commemorate the events of the Stonewall Rebellion in their authentic locations,” according to a news release.
The Stonewall National Monument Visitor Center will provide an “immersive experience” to visitors with tours, exhibits, lectures and visual displays centered around LGBTQ culture and history. Park rangers for the Stonewall Inn, which was designated as a national monument by President Barack Obama in 2016, will also work out of the center.
Ann Marie Gothard, a member of Pride Live’s board of directors, told NBC News the visitor center came out of a desire to both “capture the essence” of the era when the uprising took place and connect young people with the legacy of Stonewall. She said part of the purpose of the center will be to include and “motivate the next generation of leaders.”
“If you’ve ever gone down and kind of just observed tourists visiting Stonewall Inn, you’ll see that individuals of a certain age, because it’s a bar, are not allowed to go in,” she said. “So we really want to create a space that’s welcoming for all, whether you represent the gay community or you’re an ally.”
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The original Stonewall Inn consisted of what is now two separate buildings: 53 Christopher St., where the current bar is located, and 51 Christopher St., where the visitor center will be. Gothard said Pride Live is convening a group of experts and historians to look into how the two buildings were separated.
The announcement comes during Pride Month, which is celebrated every year in June by LGBTQ people around the world in part to commemorate the 1969 Stonewall uprising. On June 28, 1969, when police attempted to raid the establishment — a common occurrence at that time, when it was illegal to serve alcohol to “homosexuals” — they were met with fierce resistance, sparking a dayslong rebellion and what many consider to be a watershed moment in the history of queer liberation.
The next year, 1970, saw the first annual Pride march in New York City, what was then called the Christopher Street Liberation Day march. In the decades since, many have come to acknowledge Stonewall as hallowed ground and a symbol in the fight for LGBTQ rights.
In a statement Tuesday, Sen. Chuck Schumer, D-N.Y., called the visitor center an important memorial to commemorate “an iconic and pivotal moment” in U.S. history. He said he was proud the first center of its kind will open up in New York.
The nearly 3,700-square-foot building is set to open in summer 2024.
But no other state has created such a comprehensive strategy — a legislative bill package with more than a dozen proposals, new funding to expand abortion access and a proposed November ballot measure that would enshrine the right to abortion in the state Constitution.
The Supreme Court decision, on a 5-4 vote, clears the way for more than half the states in the country to swiftly ban the procedure, a move that puts great pressure on states where abortion will still be legal. California wants to be an abortion haven for pregnant people living under new laws hostile to abortion.
A restrictive Texas abortion law prompted Newsom last fall to establish a council on the future of abortion. The group drafted a list of recommendations that turned into the long list of abortion-related bills introduced in the California Legislature this year. But it was only until after POLITICO’s reporting of an early majority draft opinion that lawmakers proposed amending the state constitution to explicitly protect the right to abortion, as well as contraception.
Senate Constitutional Amendment 10, which is on track to be placed on the November ballot in the coming days, would ask voters to change the California Constitution to declare that “the state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”
Newsom on Friday afternoon signed into law a bill to shield abortion clinicians and out-of-state patients from abortion laws that threaten to impose criminal penalties. It took effect immediately. Other proposals moving through the Legislature would offer financial help to people coming from other states for abortion-related services.
The Supreme Court’s decision to overturn nearly 50 years of legal precedent upholding a right to end a pregnancy won the support of five of the court’s six conservative justices. Chief Justice John Roberts and the court’s three liberal justices opposed overruling Roe.
“We hold that Roe and Casey must be overruled,” Justice Samuel Alito wrote in the majority opinion, referring to Planned Parenthood v. Casey, the case that barred states from banning abortion before the point of fetal viability. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”
The Biden administration proposed a dramatic overhaul of campus sexual assault rules on Thursday, acting to expand protections for LGBTQ students, bolster the rights of victims and widen colleges’ responsibilities in addressing sexual misconduct.
The proposal, announced on the 50th anniversary of the Title IX women’s rights law, is intended to replace a set of controversial rules issued during the Trump administration by Education Secretary Betsy DeVos.
The proposal is almost certain to be challenged by conservatives, and it is expected to lead to new legal battles over the rights of transgender students in schools, especially in sports.
I am always surprised when I hear someone proudly say “after two years Pride is back!” If you are ‘out’ and didn’t have Pride in yourself and your community for the past two years there is a real problem and it’s not about missing the parades and parties.
Pride needs to be about having Pride in who you are, being comfortable in your own skin, with a willingness to be open and ‘out’ sharing with others who you are. Even today, that’s not always easy everywhere. Clearly it is easier than when I was young back in the dark ages. I knew I was gay, not knowing the term, but knew I was attracted to boys. When going through puberty in the early 1960s I felt as if I was the only one who felt that way and it embarrassed me. I managed to hide it from myself, often convincing myself it was phase, most of the time until I left New York City and moved to D.C. Even then it took me a few years to come out.
I was 34 going to my first Pride event and hid behind a tree in Dupont Circle, afraid someone would take my picture. Today I think Pride parades are most important for people who are still struggling with their identity to enable them to see there are many others like themselves and being LGBTQ is OK. In June 2021, friends participated in a walk from Dupont Circle to Freedom plaza and told me how great it was to celebrate Pride in a simpler way without all the parades and parties just walking together in sisterhood and brotherhood. I missed that walk as it was the day of my friend Clark Ray’s memorial service. Clark lived a life we all admired with his husband Aubrey and their four adopted children. No one was a better role model for younger members of the community everywhere, for what it meant to be ‘out and proud,’ compassionate and successful.
Don’t get me wrong I’m not opposed to parades and parties. When I was younger, I fully participated and still think it’s great to see all the people who do. I was even honored as a Pride Hero in 2016, riding in a convertible at the front of the parade — a long way from hiding behind a tree in 1981.
But in these difficult times parades and parties must have a purpose. They should focus on the next generations and show them what it’s like to be part of a strong, successful community. It is the reason I fought so hard for marriage equality. At the time I was asked if I would marry and answered “most likely no, I don’t even have a boyfriend.” Yet to me it was important every young boy and girl who realized they were gay or lesbian knew they could be married and live a full and open life like all their straight friends.
Pride month is about celebrating how far we have come, and also recognizing how far we still have to go. Today we must understand if the Supreme Court can overturn Roe v. Wade, it can overturn marriage equality and even interracial marriage. All things a pig like Alito and his co-signers of the leaked draft opinion on Roe v. Wade can claim are not explicitly written into the Constitution.
The slogan for all Pride parades in the United States this year should be “Show your Pride by voting!” I hope each Pride event across the nation has that as a focus. Each Pride event needs multiple opportunities for people to register to vote.
I consider myself lucky to live in D.C. with politicians who support me and a large open and welcoming community. Yet I am well aware not everyone has that luxury. It means those of us who do must lead the way and be examples for what it means to support each other and support every minority community. We are all in this together. Women may not be a minority but too many in the world still treat them as such and we must support them.
Maybe this year we ask every participating float, in every parade, to have a sign saying ‘Show your Pride by voting!’ If we stand shoulder to shoulder, committing to each other to work at it and vote, we can continue to move forward making progress toward what the Constitution calls “A more perfect union.”
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.
The Supreme Court must revisit and overrule past landmark decisions that legalized the right to obtain contraception, the right to same-sex intimacy and the right to same-sex marriage, conservative Justice Clarence Thomas wrote Friday.
Thomas, in a concurring opinion to the court’s precedent-breaking decision overturning Roe v. Wade and wiping out constitutional protections for abortion rights, said that he would do away with the doctrine of “substantive due process” and explicitly called on the court to overrule the watershed civil rights rulings in Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges.
Griswold was a 1965 Supreme Court decision that established the right for married couples to buy and use contraceptives. It became the basis for the right to contraception for all couples a few years later. Lawrence was a 2003 Supreme Court decision that established the right for consenting adults to engage in same-sex intimacy. Obergefell was a 2015 Supreme Court decision to establish the right for same-sex couples to be married.
The legal reasoning in all three monumental decisions — as well in the two decisions, Roe v. Wade and Planned Parenthood v. Casey, that had prior to Friday established a legal right to abortion care — relied heavily on the doctrine of substantive due process.
Supreme Court Justice Clarence Thomas listens as then-President Donald Trump speaks before he administers the Constitutional Oath to Amy Coney Barrett at the White House in Washington, D.C. on Oct. 26, 2020.Patrick Semansky / AP file
“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote. He later called it a “legal fiction” that is “particularly dangerous.”
Substantive due process is a term in constitutional law that essentially allows courts to protect certain rights, even if those rights are not explicitly enumerated in the Constitution. It has been interpreted in many cases to apply to matters relating to the right to privacy — including over matters like love, intimacy and sex — which is not explicitly mentioned in the Constitution.
Conservative jurists have long dismissed the legal reasoning that supported that interpretation of substantive due process. And Thomas, a member of the bench’s conservative wing, made that clear in his writings in Friday’s decision.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” Thomas wrote.
And because the court, in its ruling Friday, drew heavily on that very idea — that substantive due process is not in the Constitution — Thomas concluded that almost all other precedents that relied on the doctrine should also be overturned.
“I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall ‘deprive any person of life, liberty, or property without due process of law.’ The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of ‘liberty’ protected by the Due Process Clause. Such a right is neither ‘deeply rooted in this Nation’s history and tradition’ nor ‘implicit in the concept of ordered liberty,’” he wrote.
Thomas then went even further, writing that the court, after overruling those particular decisions, should eliminate “substantive due process” altogether.
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“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” he wrote. “Substantive due process conflicts with that textual command and has harmed our country in many ways.”
“Accordingly,” he added, “we should eliminate it from our jurisprudence at the earliest opportunity.”
Thomas, who joined the court in 1991 as only the second Black justice in Supreme Court history, dissented in both the Lawrence and Obergefell decisions.
In Friday’s opinion, Thomas made no mention of Loving v. Virginia, the landmark 1967 ruling by the Supreme Court that struck down laws prohibiting interracial marriage. That decision relied in part on the substantive due process doctrine — and was cited in several subsequent decisions that did as well, including Obergefell in 2015.
But Thomas, whose wife is white — meaning their interracial marriage could have been deemed in illegal in certain states had the court not ruled the way it did in Loving — did not mention the 1967 decision as one that should be revisited.In their own opinions, Justices Samuel Alito and Brett Kavanaugh both referred to Loving, writing that it should not be revisited despite its reliance on substantive due process.
President Joe Biden, speaking to the nation following the ruling Friday afternoon, specifically addressed Thomas’ analysis, saying it paves an “extreme and dangerous path” that the “court is now taking us on.”
“I’ve warned about how this decision risks a broader right to privacy for everyone,” Biden said. “That’s because Roe recognized the fundamental right to privacy and has served as a basis for so many more rights that… we’ve come to take for granted, that are ingrained in the fabric of this country: the right to make the best decisions for your health, the right to use birth control, a married couple in the privacy of their bedroom for God’s sake, the right to marry the person you love.”
“Justice Thomas said as much today. He explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception,” Biden added.
Thomas’ opinion also attracted the ire of prominent civil rights groups, as well as Jim Obergefell, the plaintiff in the 2015 decision that Thomas wants the court to overturn.
“The millions of loving couples who have the right to marriage equality to form their own families do not need Clarence Thomas imposing his individual twisted morality upon them,” Obergefell told NBC News in a statement. “If you want to see an error in judgment, Clarence Thomas, look in the mirror.”
Sarah Kate Ellis, head of the LGBTQ advocacy group GLAAD, called Thomas’ opinion “a blaring red alert for the LGBTQ community and for all Americans.”
“We will never go back to the dark days of being shut out of hospital rooms, left off of death certificates, refused spousal benefits, or any of the other humiliations that took place in the years before Obergefell,” Ellis said in a statement. “And we definitely will not go back to the pre-Lawrence days of being criminalized just because we are LGBTQ.”
“But that’s exactly what Thomas is threatening to do to the country,” Ellis added.
Students at a Washington state high school Monday staged a walk-out in solidarity with a trans student, who was beaten in the school’s hallways the week before.
The walk-out prompted a threat by another student “to aim a machine gun” at the rallying students, according to Kalama police. The Kalama Middle and High Schools, which share a campus, were put into lockdown.
Last week, a transgender student was assaulted in the school’s halls just as students were leaving for the day.
Witnesses say another student repeatedly kicked the transgender student, who is a boy, with steel-toe boots, while yelling homophobic and transphobic slurs.
“The student had been on the ground, begging him to stop and he just kept going,” said Katrina Rick-Mertens, a sophomore at the school and rally organizer.
The victim was subsequently treated in hospital and has returned to class, according to the school district.
At Monday’s walkout, the boy threatening “to aim a machine gun” at protesters made the comment to another student not affiliated with the protest. That student, who says he didn’t see a gun, reported the comments to school officials.
Police say they located the student and took him into custody.
The attack, walkout, and subsequent threats followed reported inaction by the school against what students say is the growing influence of hate groups. Students have posted Nazi imagery in the school, which is just across the state border from Portland, and on social media.
According to parent Melissa Cierley, bullying at the high school is endemic.
“There’s a certain population that seems to be able to get away with whatever they want,” she said.
Her daughter Lillie says she’s been the victim of sexually harassing insults and threats, and things thrown at her like books, staplers, or “anything they can get their hands on.”
Cierley and Rick-Martens say while they tell school administrators about the bullying, they’re never told about anything being done about the incidents, only to see the bullying continue.
“It’s just really heartbreaking to not be taken seriously,” Cierley says.
“You’d think that after so many students go to them about hate speech and going to them that we need these bullies to stop, that they would do something. We shouldn’t have to come to this point to rally together for them to listen to us,” Rick-Mertens said.
“If students are saying that they feel like this, they feel like there is a problem, then there is truth to that,” Kalama School District Communications Manager Nick Shanmac said. “As a school, as a district, we need to be listening.”
Rick-Mertens posted on Instagram after the rally: “Remember, staying silent only helps the oppressor and never the victim. Use your voice for good.”
