The White House is not ruling out any legal action being taken in the future against states in which lawmakers are pushing anti-trans laws, including banning transgender athletes from female sports teams.
Press secretary Jen Psaki said Thursday (8 April) that president Joe Bidenwould continue to advocate for LGBT+ rights amid the flurry of new state laws against trans youth. But she stopped short of committing to any legal action against them.
Chris Johnson, the White House correspondent for the Washington Blade, asked Psaki if Biden would “reach out to the attorney general” to begin legal action against states which enacted anti-trans bills. He pointed out that state legislatures had been ‘warned’ that “anti-transgender bills are an illegal form of sex discrimination”.
Johnson specifically cited the actions of the Arkansas legislature, which overrode its governor’s veto to pass an anti-trans healthcare bill. The cruel ban, which passed into law on Tuesday (6 April), makes it illegal for healthcare professionals in Arkansas to offer gender-affirming care like puberty blockers and hormone treatment to trans youth.
Arkansas has also become the second state to ban transgender athletes from female sports teams. Mississippi’s governor has also signed a law banning transgender athletes from girls’ school sports.
Psaki said she can’t “stand here and predict legal action” as the ultimate decision on if action would go forward lies with the Justice Department and attorney general, Merrick Garland. However, she said Joe Biden remains committed to advocating for LGBT+ rights and transgender equality in the US.
“What I can say is that the president’s view is that all persons should receive equal treatment under law, no matter their gender identity or sexual orientation,” Psaki said.
“That’s fundamental to how he will make laws — advocate for laws, I should say; how he will communicate about his views on the rights of transgender individuals in the country; and certainly, you know, what his view is as it relates to any actions by the government.”
In a follow-up question, Johnson asked if Biden would engage in communication with Garland about the anti-trans legislation. Psaki said the president “certainly can”, but she reiterated: “I don’t have anything to predict for you at this time.”
Garland has said he will advocate for stronger protections for trans Americans. In a hearing before the Senate about his nomination to the office of the attorney general, he promised to combat violence against the trans committee, especially Black, trans women, in the US.
He said it was the “job of the Justice Department to stop” the murders of transgender Americans and protect trans youth. Garland said: “It’s clear to me that this kind of hateful activity has to stop, and yes, we need to put resources into it.”
But in the same hearing, Garland dodged questions about bans on transgender athletes being included in girls’ and women’s sports. He declined to comment on questions, saying he hasn’t had the “chance to consider these kinds of issues” in his career.
Georgia lawmaker Park Cannon has vowed to continue knocking on the “doors of injustice” after it was confirmed she will not be prosecuted for knocking on the governor’s door.
Cannon, an out, Black state representative, was arrested and forcibly removed from Georgia’s state capitol building for knocking on governor Brian Kemp’s door as he signed a voting bill that has been condemned as racist. She was subsequently charged with obstruction of law enforcement and disrupting the general assembly.
Two weeks after her arrest, Fani Willis, district attorney of Fulton County, Georgia, said the office will not file charges against Cannon, telling the Atlanta Journal-Constitution that she considers the case closed after reviewing the evidence surrounding her arrest on 25 March.
“While some of Rep. Cannon’s colleagues and the police officers involved may have found her behaviour annoying, such sentiment does not justify a presentment to a grand jury of the allegations in the arrest warrants or any other felony charges,” Willis said.
Park Cannon tweeted following the news she would not be prosecuted: “Doors of injustice are everywhere, and we cannot stop knocking.”
Gerald Griggs, an Atlanta attorney who is representing Cannon, welcomed the news.
He said the “facts and evidence showed to the world” that Cannon “committed no crime and should not have been arrested”.
He added: “We thank the district attorney for her thorough review of the evidence and are weighing our next legal actions.”
Three North Carolina Republican lawmakers have introduced a bill that would force teachers to out any trans or gender non-conforming child to their parents.
Senate Bill 514 would make it illegal for any “government agents” to not “immediately” inform the parents or legal guardians of any child or young adult if that “minor under its care or supervision has exhibited symptoms of gender dysphoria, gender nonconformity, or otherwise demonstrates a desire to be treated in a manner incongruent with the minor’s sex”.
This would compel any state employee, teacher, volunteer or contractor of a school district in North Carolina to out trans students under the age of 21 to their parents.
The bill – introduced by Republican senators Ralph Hise, Warren Daniel and Norman Sanderson – will also prevent doctors and other healthcare professionals from giving gender affirming care to trans youth under the age of 21. This includes performing gender affirming surgeries and administering puberty blockers, testosterone or estrogen.
Under the bill, medical professionals who provide gender affirming treatment to trans patients could have their license revoked and face a civil penalty of up to $1,000 per occurrence.
Kendra R Johnson, executive director of Equality NC, said in a statement that it is “heartbreaking” – but “not unexpected” – to see these “direct, repeated attacks” against trans and gender non-conforming youth in North Carolina.
“These attempts to control the bodies and medical decisions of parents and their transgender children are invasive, inappropriate and outright dangerous,” Johnson said. “Decisions about a child’s medical welfare should be made between that child, their doctor, and their parents or guardians – not lawmakers.”
She added that it is the “job of all lawmakers” to thoroughly understand the “entirety of their constituency” and “mitigate challenges instead of creating barriers”. Johnson said: “We cannot legislate the transgender community out of existence.”
Chantal Stevens, executive director of the ACLU of North Carolina, added SB 514 is the latest in a “series of coordinated attacks on healthcare access” for LGBT+ youth across the US. She explained the “true aim” of such legislation is to “push trans and non-binary people out of public life”.
“Not only are these bills rooted in falsehoods, hate and fear-mongering, but they also invade the private interactions between each of us and our medical providers,” Stevens said.
The North Carolina bill comes after Arkansas became the first state to ban gender-affirming healthcare for trans youth. The Arkansas bill was passed by the state’s House of Representatives and Senate in March before making its way to governor Asa Hutchinson for approval. However, Hutchinson vetoed the bill on Monday (5 April), saying it was a “vast government overreach”.
A bill that would ban books that promote “LGBT issues and lifestyles” in public schools in Tennessee is inching closer to becoming law.
HB 800 would prohibit public schools in Tennessee from using books or teaching materials that “promote, normalise, support or address controversial issues” – like LGBT+ issues or lifestyles or gender identity – are “inappropriate”.
The bill said the promotion of “LGBT issues and lifestyles” should face the same restrictions “placed on the teaching of religion in public schools”. It added that educational materials that promote LGBT+ issues and lifestyles in public schools offends a “significant portion of students’ parents and Tennessee residents with Christian values”.
Republican congressman Bruce Griffey, who introduced the bill, spoke in favour of the bill before other lawmakers at the state capitol. He said he doesn’t want the “state of Tennessee teaching my daughters about sex and lifestyle changes”. Griffey added: “The state of Tennessee is not allowed to teach my Christian values that I think are important and they should learn so I teach those at home.
“If those are not a part of the school curriculum, I don’t see how LGBTQ and other issues of social lifestyles should be part of the curriculum.
“So what this bill simply seeks to do is to limit that so neither side has an unfair advantage over the other regarding what’s being taught in schools to our children.”
The bill passed the Tennessee House education instruction subcommittee by a 6-3 vote, and it will now inch closer to becoming reality. If the bill does eventually get passed into law, it would go into effect in July and would be implemented in schools for the 2021-2022 school year.
In an opinion piece for The Tennessean, Patrick R Grzanka, an associate professor of psychology from the University of Tennessee, Knoxville, said HB 800 would “erase LGBT people and issues from public school curricula completely, scrubbing them from human civilization”.
He wrote: “Alan Turing and the history of modern computing? Gone. LGBT activists and the development of antiretroviral drugs to combat the AIDS pandemic? Nope.
“Bayard Rustin’s role in the civil rights movement? Not allowed. Who knows what this even means for literature, music, and art, but I think it’s safe to say that Virginia Woolf and James Baldwin are out.”
Republican governor Kristi Noem has issued two executive orders to prohibit trans girls from playing on girls’ and women’s sports teams in South Dakota.
Noem partially vetoed HB 1217 – also known as the Fairness in Women’s Sports bill – which would ban trans women athletes from playing in sports teams that align with their gender identity. The move shocked her conservative supporters as Noem had been a staunch supporter of the bill.
During an appearance on Tucker Carlson Tonight, Noem explained that she rejected the bill in its current form over fear that the National Collegiate Athletic Association (NCAA) would seek punitive action if it was passed. She argued that she declined the bill unless several stylistic changes are made.
However, the South Dakota state legislature voted Monday (29 March) to reject Noem’s “style and form” veto of the trans athlete bill, by a 67-2 vote. Republican congressmen Fred Deutsch wrote on Twitter: “Vote to pass the governor’s style and form veto on the Fairness for [Women’s] Sports bill fails 2-67.
“The bill now goes back to the governor for her to either sign or veto. House believes her style-and-form is unconstitutional.”
On the same day, Kristi Noem announced two executive orders would be put in place in South Dakota to ban trans athletes from participating in school sports as their correct gender. Noem said on Twitter: “Only girls should play girls’ sports.
“Given the legislature’s failure to accept my proposed revisions to HR 1217, I am immediately signing two executive orders to address this issue: one to protect fairness in K-12 athletics, and another to do so in college athletics.”
She added that she will be working with state lawmakers to “schedule a special legislative session in late May or early June” to address “this important issue” as well as “medical marijuana” and federal spending.
Under the new executive order, the department of education and the board of regents in South Dakota will need to ensure that publicly-funded K-12 school districts, colleges and universities restrict participation in girls’ and women’s sports to athletes who can prove their assigned sex at birth.
The ACLU of South Dakota vowed on Twitter that it will not “stop defending the right for everyone to live and thrive” in the state. It posted an image with text on it that read: “The fight isn’t over. If only for a moment, we were able to take a deep sigh of relief.”
The LGBT+ community is made up of a diverse group of people from all over the world, and their stories are often overlooked in history books.
PinkNews spoke to ambassadors and workers from LGBT+ youth charity Just Like Us about the historical figures they wished they had learned about in school, from the past to the present.
Anne Lister, English landowner and diarist
Rita Leci, 21, said she learned about Anne Lister by watching the historical BBC drama Gentleman Jack. Lister is often heralded as the “first modern lesbian” as she took charge of her family’s estate and lived openly as a lesbian with her partner.
“I’ve always found her story really inspirational as she chose to go against society’s expectations by becoming a businesswoman and by choosing to be happy with someone she loves in a time when this was seriously frowned upon,” Levis said.
She explained Lister’s story “makes me realise that we are really lucky in a lot of ways, as women nowadays in the UK, to be able to pursue whatever career we like and to love and live with whomever we choose”.
Andy Warhol, American artist, film director and producer
Ramses, 25, said it took “me lots of additional reading” to discover Andy Warhol’s sexuality, despite the artist being mentioned during his modern art studies. Warhol was one of the first American artists to be gay, and his “Factory” – his studio – was a safe space for LGBT+ people, including transwomen.
“Learning about him in school would have shown me you could be LGBT+ and still be successful and famous, even in a period when discrimination was common and violent,” Ramses said. “His early drawings, movies, photographs and the community he created are a testament to the gay rights movement and an incredible contribution to LGBT+ history worldwide.”
As a trans gay man, Ramses shared that the way Warhol shaped the LGBT+ community “inspired me to get in touch with my own, creating a safe space for young LGBT+ people”.SPONSORED CONTENT
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Alan Turing, English mathematician, computer scientist and logician
Both Roan Maclean, 23, and Daniel Mayor, 22, wished they had learned more about mathematician and World War II historical figure Alan Turing. Turing was a key member of the Allied forces cracking the Enigma Code, and he has been credited as being the father of modern computing.
“To be taught about LGBT+ history, especially ones that are at the top of their field and doing groundbreaking at the time work would have been amazing,” Mclean said. “It would have shown younger me that anything is possible.”
Mayor said he had learned about Turing’s contributions to modern computing, but nothing was said about him being gay or the way he was persecuted because of his sexuality. Turing was prosecuted in 1952 for homosexual acts, and he died by suicide in 1954.
Mayor said it would have been “very powerful” if he knew that an LGBT+ person like Turing had such an “amazing impact on the world”.
Jack Bee Garland, author, journalist and nurse
Like many people, Emma Fay, director of education at Just Like Us, admitted to having not realised that “trans people had existed throughout history”. Fay said it was a “real awakening” to “discover the people out there who are bringing trans history to light and busting the often-repeated myth that we don’t know anything about it”.
“In particular, I wish I’d known about Jack Bee Garland, who I learned about for the first time recently while reading CN Lester’s book Trans Like Me,” Fay said. “That book has had a huge influence on how I understand gender and introduced me to loads of interesting trans people throughout time.”
Jack Bee Garland was born in San Francisco in 1869 and lived as a male in the city’s Tenderloin District. Garland adopted the male identity of Beebe Beam and accompanied the US Army to the Philippines in 1899 to participate in the Philippine War. When Garland became sick and was “found out”, his fellow soldiers were incredible allies, chipping in money to help him, helping him escape and even breaking him out of prison.
“It’s such an amazing piece of history that I wish I’d learned about at school,” Fay said.
Marsha P Johnson, American queer liberation activist
Jemima Churchhouse, 23, said she would have liked to have learned about Marsha P Johnson at school. Johnson was an outspoken, revolutionary Black trans woman who co-founded the Street Transvestite Action Revolutionaries (STAR), an organisation that provided housing to homeless LGBT+ youth and sex workers in New York in the 1970s.
Johnson was a popular figure in New York City’s gay art scene, even modelling for Andy Warhol, and she was one of the prominent figures in the Stonewall uprising of 1969. As trans rights are hotly debated in the UK and worldwide, Churchhouse said it was essential “that we remember that trans people such as Marsha have always fought alongside LGB+ people for our rights”.
“I wish I’d been taught that trans women, and especially trans women of colour, have always been at the forefront of the Gay Liberation movement,” Churchhouse said. “I’m so grateful to all of the LGBT+ people who came before me and have helped allow me to live freely and authentically.”
DJ Ritu, radio presenter and activist
Taz Rasul, director of volunteering at Just Like Us, said she would have liked to have learned about DJ Rita as a teenager. She explained: “15-year-old me was fine with my sexuality, but embarrassed about being Asian. Asians weren’t cool or relevant.”
Rasul said learning about a broadcaster and activist like DJ Ritu “might have forced open my view of who Asians are a little earlier in my life”. Ritu is a British Asian lesbian who helped run the UK’s first South Asian lesbian and gay group in the 1980s. Rasul said: “If my school had made LGBT+ people of every colour visible to me, I might have embraced every part of myself with pride.”
Dr Ben Barres, American neurobiologist
Dr Ben Barres was a neurobiologist at Standford University, and he became the first openly transgender scientist in the National Academy of Scientists in 2013. As a trans man, Krystof, 22, said he found “comfort and confidence” in Dr Barres story, “knowing that he has not only survived and thrived”.
Dr Barres transitioned in 1997, in the middle of his career, and he was appointed the chair of neurobiology at Stanford’s school of medicine. Krystof said Dr Barre’s story and career made the “idea of coming out” less scary because “I knew there was someone like me before”.
“It is important to see representation and for schools to teach about LGBT+ figures in all fields,” Krystof said.
Audre Lorde, American writer, feminist and civil rights activist
Dominic Arnall, chief executive of Just Like Us, said he had first read Audre Lorde‘s collection of essays Sister Outsider while he was working on a project on supporting LGBT+ rights activists in Russia. He said he became “completely enamoured by her writing style”.
“She wrote both with a profound wisdom and an innate understanding of the human condition and the systems that we operate in,” Arnall said. “Lorde had an ability to see a particular situation from many angles at the same time, drawing you to question what you already knew, including the systems by which you knew it.”
The self-described “Black, lesbian, mother, warrior poet” is best known for writings reflecting her hatred of racial and sexual prejudice. Lorde dedicated her life and creative works to confronting and addressing social injustices including racism, homophobia, sexism, classism and capitalism.
Arnall said he’s sent copies of Sister Outsiders to colleagues, friends and even his mother. He added: “It was a permanent fixture in my bag, in one instance finishing it only to start back at the beginning again, needing to ensure some detail had not escaped my memory.”
School Diversity Week is the annual celebration of LGBT+ inclusion in education run by charity Just Like Us. Schools and colleges in the UK can sign up now to take part ahead of 21 – 25 June – last year schools representing 1.9 million young people took part. Just Like Us also runs school talks and provides free home learning resources for parents.
A man from Malaysia has won a landmark ruling against an Islamic gay sex ban, raising hopes for greater LGBT+ rights in the country.
The Muslim man – whose name has been withheld by his lawyer to protect his identity – filed the lawsuit after he was arrested in the central Selangor state of Malaysia in 2018 for attempting gay sex. He denied the allegation.
Same-sex acts are illegal in Malaysia, although convictions are rare. All 13 states and the federal territory in Malaysia criminalise same-sex relations and gender nonconformity. The federal penal code also punishes any form of anal or oral sex with up to 20 years in prison and mandatory caning.
In an unanimous decision, Malaysia’s top court ruled that the Islamic provision used in Selangor was unconstitutional, and authorities had no power to enact the law which bans sex “against the order of nature”.
The nine-judge panel ruled Selangor’s enactment of the anti-gay law was ultra vires, or beyond the state’s power, because under Malaysia’s constitution only the federal government may legislate some aspects of criminal law.
‘One small, but significant step forward’
The Human Rights Watch (HRW) said in a statement the federal court’s ruling is “one small but significant step forward” for LGBT+ rights in Malaysia. The HRW said: “In the face of pervasive anti-LGBT+ discourse, law and policy, Malaysian activists are taking steps to whittle away at institutionalised discrimination.”
The man involved in the legal challenge was among 11 men arrested on charges of “attempting” gay sex from a 2018 raid on a private residence in Selangor. In November 2019, a court convicted five of the men and sentenced them to fines, imprisonment and six strokes of the cane each.
Malaysia’s state laws are notorious for their persecution of LGBT+ people, especially trans women
Last year, the religious affairs minister gave “full license” for Malaysian police to arrest and detain trans people. Minister Zulkifli Mohamad Al-Bakri announced on social media that he had given the religious police “full licence to carry out its enforcement actions” against transgender people in Malaysia.
He elaborated that his order goes beyond arrests, but also allows police to subject trans people to “religious education” so that they will “return to the right path”.
More recently, Malaysia’s deputy religious affairs minister proposed to increase criminal penalties against LGBT+ people. Deputy minister for religious affairs Ahmad Marzuk Shaary has proposed amendments to the Syariah Courts (Criminal Jurisdiction) Act (Act 355) which would allow state courts to enact harsher sentences for same-sex conduct than the current maximum sentence permitted under federal law.
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Act 355 limits the sentences that can be imposed by Sharia courts. The current sentence under the act includes three-year imprisonment, a fine of RM5,000 (£905) and six strokes with a cane.
However, Marzuk said this punishment was “not giving much effect on the group of people”. He said: “All state religious agencies and enforcers have been instructed to take action against those [LGBT+ people] who do not behave accordingly.”
Republican lawmakers in Tennesseehave introduced a bill that would allow cisgender students to sue a school if they are ‘forced’ to share school facilities with trans students.
Jason Zachary, a Republican congressman from Knoxville, introduced House Bill 1233 at the same time Mike Ball, a Republican senator from Riceville, introduced its sister bill in the Senate, SB 1367.
The bills would effectively allow students the ability to refuse to share facilities – such as bathrooms, locker rooms and dorms – with trans students. Cisgender students could then sue publicly-funded schools that do not provide them with “reasonable accommodations”.
Zachary argued his bill arose from schools’ confusion over handling bathroom access to students based on their gender identities. He told The Tennesseanthat his bill would provide protection for “all children” and present a “clear path forward” for schools to follow.
Zachary described how one high school reached out to him after dealing with a “problem with boys using the girls’ restroom”. He said the school felt “handcuffed” and that there’s “not much they can do about it”.
“This bill takes care of that,” Zachary said. “It stops all that and just provides absolute clarity.”
Chris Sanders, executive director of the Tennessee Equality Project, told The Tennessean that the state’s legislature is “going on the attack against trans students and youth”. He added: “Now, the legislature comes along and says ‘hey everybody, there’s this category of people that we will protect you from if you want to be protected from’.”
Under the bill, cisgender students would be allowed to submit a written request for reasonable accommodation if they say they’re not comfortable with sharing school facilities with trans people.
If they later “encounter a person of the opposite sex in a multi-occupancy restroom” or other facilities, a cisgender student could sue the school for not providing them with reasonable accommodations.
The bill further says that sex is defined as a person’s biological sex at birth instead of their gender identity. As such, Zachary said trans students would have to, by default, use the facilities which are in accordance with their gender as assigned at birth.
“If they were born as a boy, they will use a single-occupancy restroom,” Zachary explained, referring to a hypothetical trans girl.
The major problem with Zachary’s bill is that it would go against federal law. President Joe Biden signed an executive order that banned discrimination in educational facilities based on sexual orientation or gender identity.
The bill states that the government would not be able to “substantially burden a person’s exercise of religion” without “compelling government interest”.
But human rights advocates say the bill would allow for discrimination against LGBT+ people across a wide range of goods and services. Activists warn the language is so broadly written that it could enable discrimination against anyone who offends an individual’s or institution’s religious beliefs.
It is similar to the religious freedom restoration act (RFRA) which then-governor of Indiana Mike Pence signed into law in 2015. The RFRA allows Indiana businesses to cite their religious freedom as a legal defence, which can be used to discriminate against the LGBT+ community based on religion.
The 19th reported at least 36 RFRA-type bills – including SB 124 in South Dakota – have been filed in state legislatures since January 2021. Of these, 25 have been attached to bills intended to allow churches to operate during COVID.
Speaking to The Advocate, Janna Fairley, communications director for the ACLU of South Dakota, said religious liberty is important, but it “shouldn’t be used to discriminate”.
“We’re deeply disappointed to see this bill signed into law and are concerned that it will be used to justify harm to already vulnerable communities,” Fairley said. “No one should be turned away from housing, health care or critical social services because of who they are.”
The organisation has urged the South Dakota legislature to change the wording of the bill so it only applied to government treatment of religious services, but it was not changed to do so.
Alphonso David, president of the Human Rights Campaign (HRC), spoke out against SB 124 earlier this month, saying the bill “threatens protections for LGBTQ people, women and people of faith”.
“South Dakotans believe in religious liberty and LGBTQ equality — those two values are not mutually exclusive,” David said. “South Dakota potentially risks the loss of business opportunities and the revenue that comes with it, significant legal fees and damage to the state’s reputation.”
Noem has said she will sign into law a bill that would ban trans people from playing in sports that align with their gender identity. She said on Twitter on Monday (8 March) that she was “excited” to sign the bill “very soon”.
According to the Rapid City Journal, she is still evaluating the bill, despite her excitement for it to pass. She said during a press conference that she had no plans to meet with any trans people to discuss their thoughts on the bill, but South Dakota’s executive branch is “certainly open to listening to everybody”.
Protestors stood outside in the snow and freezing cold temperatures in solidarity with the trans community. The ACLU of South Dakota shared pictures from the protest on Twitter and said: “Today and everyday – trans people belong.”
Schools are within their right to demoralise children who support trans rights, according to a terrifying court ruling about a school in South Carolina.
A principal at an elementary school in Moore, South Carolina was in the right when she banned a student’s pro-trans essay from a school booklet, a federal appeals court has ruled.ADVERTISING
The child, named in court documents only as RRS, was 10 years old when she was assigned to write an “essay to society” in 2019. The court heard her maternal grandfather is part of the LGBT+ community, and RRS is a “proud advocate of LGBTQ rights”.
So she decided to write about LGBT+ equality for the assignment. Her essay, reprinted here verbatim, stated the following:
“I don’t know if you know this but peoples view on Tran’s genders is an issue. People think that men should not drees like a women, and saying mean things. They think that they are choosing the wrong thing in life.
“In the world people can choose who they want to be not being told that THEIR diction is wrong. I hope people understand that people can hurt themselves from others hurting their feelings. People need to think before they speak because one word can hurt someone’s feelings. We need to fix this because this is getting out of hand!”
The court heard Anderson Mill Elementary School principal Elizabeth Foster reviewed the essays submitted by the fourth grade class before they were compiled into an essay booklet. But she instructed RRS’ teacher to inform the child that her essay would not be included in the booklet because, in her view, the topic was “not appropriate”.
RRS then revised her essay, which addressed bullying instead of LGBT+ rights.
US circuit judge Stephanie Thacker, a Barack Obama-appointee, wrote in her judgment: “Principal Foster’s initial refusal to include [the student’s] essay in the fourth grade class’ essay booklet was actuated at least in part by her concern that the essay’s topic was ‘not age appropriate’ for fourth graders.”
Mother filed complaint against school after ‘abusive’ messages from principal
Hannah Robertson, the mother of RRS, filed a complaint against the South Carolina school on 6 March, 2019.
Shortly before she filed the complaint, Robertson said Foster had “defended her decision” to not include RRS’ LGBTQ-themed essay in the essay booklet through “a series of increasingly abusive, harassing, emotionally distressful and/or clearly unwarranted communications with” her.
During these conversations, Robertson said Foster provided the following justifications for her decision including: “the original paper would make other parents upset”; it “would create a [sic] undesirable situation at the school”; “was not acceptable”; “it was not age-appropriate to discuss transgenders, lesbians, and drag queens outside of the home”; and “due to the type of school this is, the people that work here and the students and families of the students that go here, the topic would be disagreeable”.
In a letter dated 15 March, 2019, Foster informed Robertson that she had decided that both of the child’s papers would be published in the essay booklet. In turn, Robertson cited concerns about the child’s privacy and said she no longer wanted the original essay to be in the booklet.
Robertson argued the South Carolina principal’s removal of the trans essay as part of the classroom assignment amounted to a violation of her child’s First Amendment rights, arguing Foster deprived RRS of her “right to engage in protected speech”.
But a lower court dismissed the student’s claim.
The family appealed to the US Court of Appeals for the Fourth Circuit.
However, on Tuesday (3 March), a three-judge panel for the appeals court upheld the original ruling. The judgement cited the 1998 Supreme Court decision in Hazelwood School District v Kuhlmeier, which declared that schools could censor students as long as it was “reasonably related to legitimate pedagogical concerns”.
The court held that the principal’s decision to ban RRS’ essay fell within the Supreme Court judgment because Foster was motivated, at least in part, by a concern that the topic was not “age appropriate”. As such, the court found the South Carolina school’s decision not to publish the trans essay did not infringe on RRS’ First Amendment rights.
Jasmine Rogers Drain, partner at Halligan Mahoney and Williams and who represented the school, did not wish to comment on the ruling.
Eric Poston, managing partner at Chalmers Poston LLC, represented the family in this case. He told PinkNews: “It’s well known in the legal field that, with very few exceptions, appellate judges have already made their decision by the time the attorneys are able to argue their case in front of the judges themselves in what is known as ‘oral argument’.”
Poston explained this case’s oral argument “served only to perpetuate the stereotype” as it appeared the judges were unaware of basic facts about the case.
“When I asked if they had read the essay, I heard crickets – same result when I asked if they were aware that this girl’s mother and grandfather are active members of the LGBTQ community,” Poston said. “They also didn’t appear fully aware of the actual quotes from the principal as to why she banned the essay.”
He added the “most disappointing, preposterous question” he received was whether or not “I agreed that a teacher should be able to decide what they do and do not teach/allow in their classroom”. Poston told PinkNews: “What made this question so mind boggling is that it revealed how absolutely unaware the judges were of even the most basic facts of the case – that the teacher found the essay acceptable and planned to publish it until the principal single-handedly prevented her from doing so.”
This article was edited to include comment from Jasmine Rogers Drain, the attorney representing the school in this case, and Eric Poston, the attorney representing the family.