Title VII – Gender Shrapnel

Cages, Criminal Justice Reform, Census Questions, and the Criminal in the White House

(Let us not forget!)

Over the past three years, the Groping Old President and his Groveling Old Party have sown so much discord, chaos, and danger that we are now reminding each other “to focus on what’s important,” to “not get distracted” by the latest illegal comments and behaviors of the man who stole the White House. This is both good and misleading advice. Good, in that political resistance to Trump must rely on documented facts, data, and coordinated resistance efforts focused on the actions placing the greatest number of people in danger. Misleading, in that every so-called “distraction” also represents an illegal speech-act and/or behavior of the Groping Old President. As a person who has researched and written copiously on harassment and assault, I hear every utterance and read every tweet of the White House occupant as an accountant tallies debits and credits. The accumulation of racist, sexist, xenophobic, homophobic (combined with numerous other –isms and phobias) behaviors amounts to a pattern of harassing behavior by the most visible workplace supervisor in the most iconic workplace of the United States.

We should not be distracted from recognizing our border policies as crimes of the highest order: separation of families; isolation of children; children in cages; rape and molestation of migrants and refugees; deprivation of basic needs; denial of legal services. The concentration camps created by the White House occupant and supported by the GOP make us a brutal and punishing nation. These concentration camp gurus complement their crimes at the border with ICE raids. We must remember that targeted raids, round-ups, and concentration camps were the cornerstone of the Third Reich. At a family party three years ago, I called Trump a fascist, evoking the ire of family members for my too-heightened rhetoric. Well, here we are, three years later, with a president whose fascism becomes more textbook with each act and utterance. The United Nations has appropriately weighed in on the human rights abuses enacted in the country that claims to be the strongest democracy in the world. When Trump says about Ilhan Omar, Alexandria Ocasio-Cortez, Ayana Pressley, and Rashida Tlaib, “Why don’t they go back and help fix the totally broken and crime infested places from which they came,” he is unwittingly describing his country, the United States of America, as “a broken and crime infested place.” Yes, that’s one fact he has right after three years of the destruction he has wrought.

We should not be distracted from the fact that Trump lost the battle over the citizenship question on the 2020 Census and wants us to forget that he lost. Of course, his unconstitutional attempts to add it brought him some success, in that some people had to respond in the test census and many people fear responding at all at this point.

(*Read Valeria Luiselli’s Tell Me How It Ends. An Essay in Forty Questions.)

We should not be distracted from criminal justice reform, needed more acutely than ever to decolonize, deracialize, and decriminalize, and to restore full humanity and rights to all peoples. Here is just a small sampling of the challenges and injustices of “living while black,” published by CNN.

(*Watch Ava Duvernay’s Selma and 13th. Read Jesmyn Ward’s edited collection, The Fire This Time. Read Ta-Nehisi Coates. Read Bryan Stevenson’s Just Mercy.)

Three years ago at this time, we learned of the Access Hollywood tape. We learned that the GOP candidate articulated rapist desires and revealed a rapist past. Russia and the GOP elected him anyway, and now we have a criminal in the White House whose rap sheet is as long as were Mueller’s days investigating him. While we’re at it, let us not forget that Mueller will testify on July 24^th. In Gender Shrapnel in the Academic Workplace, I link sexual and racial harassment to assault, stating that if we don’t address damaging behavior on the harassment end, then we will never address criminal behavior on the rape-assault end of the spectrum. Trump’s Access Hollywood tape already told us everything we needed to know about how his tenure in the White House would go. By election time, he had already harassed Miss Universe participants, Rosie O’Donnell, Carly Fiorina, and Hillary Clinton. This list includes, up to 2017, “every offensive comment in one place.” In this month alone, July of 2019, the criminal has harassed Megan Rapinoe and the United States World Cup Soccer Champion team and Ocasio-Cortez, Omar, Pressley, and Tlaib. The harassment is intersectional, based on race, religion, gender, and sexual orientation. Trump is Trump, and he is also the company he keeps (Roger Ailes, Roger Stone, Jeffrey Epstein, Billy Bush, and the list goes on and on).

We have all the data we need. For any workplace in the United States, this documentation would be more than sufficient for bringing a Title VII case. It is time, way past time, to initiate impeachment proceedings. I have never cared if it is politically expedient to impeach, thinking that impeachment is simply the right thing to do. At this point, impeachment seems both politically expedient and the right thing to do. Representative John Lewis tweets: “Do not get lost in a sea of despair. Do not become bitter or hostile. Be hopeful, be optimistic. Never, ever be afraid to make some noise and get in good trouble, necessary trouble. We will find a way to make a way out of no way. #goodtrouble.” Impeachment might just be the “good trouble” we need.

Let us not be distracted from any of these profound injustices, explicit crimes, and dangerous words and actions. It is time to act.

Title IX Moments

At my university last week we celebrated the 45^th anniversary of Title IX. Programming included screenings of a film (“The Battle of the Sexes”) and a documentary (NCAA’s “Sporting Chance”), a poetry reading, a basketball game, a Title IX expert panel, and a visit and talk by Mia Hamm. The anniversary week was sponsored in large part by the Department of Physical Education, Athletics, and Recreation, as well as by the Women’s, Gender, and Sexuality Studies Program and the student-run Contact Committee. As a child of Title IX, I was delighted to hear stories about heroes like Bernice Sandler, Edith Green, Birch Bayh, and Billie Jean King. As a scholar who works with Title IX issues, I was gratified to learn more about how the legislation came about and how it has survived repeated challenges. Thank you again to all the organizers.

My mother was famous in our little hometown circle for making an unassisted triple play in a softball game. We kids haven’t been able to piece together each element of her feat, but we are not at all surprised she was capable of it. The story goes that her little sister made a hook shot from half court in one of her basketball games. These were the women who had no Title IX, who effected their athletic feats through the sex-segregated Catholic school system that had softball fields and basketball courts for the girls. Girls of their age at public school were assured no teams, coaches, fields, or equipment to play their sports, and certainly none of these girls and young women could imagine themselves as scholarship student-athletes at the college level. As we all know now, this separation of resources for boys and girls and men and women has implications not only for athletics, but for life itself—opportunities to challenge ourselves, compete, understand teamwork, be coached and mentored and opportunities to be treated equally in school, be encouraged to study all the subjects, have women and men teachers, be recognized in the media, see an open horizon.

Title IX tells us that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

This short text is a really big deal. We have seen the changes this legislation has brought for men and women in educational settings and specifically in athletics. Of course, the legislation has been appropriately elastic in its recognition of other limiting factors for women and transgender individuals in the education context. Title IX is supposed to offer protection against sexual discrimination, harassment, and retaliation and against sexual violence and abuse for all individuals (all students, staff, faculty in the education workplace). The extent to which it is allowed to offer these protections can vary from state to state and from United States President to United States President. (*See this 2017 NPR piece about the North Carolina “bathroom bill” and this 2017 Gender Shrapnel Blog post about the current “president’s” pullback on Title IX protections.) These protections might also be more precarious depending on gender identity, race, religion, and immigration status, which is why Title IX must work in conjunction with Title VI (protects against discrimination based on race, color, and national origin in federally financed programs) and Title VII of the Civil Rights Act of 1964 (prohibits employers from discriminating on the basis of sex, race, religion, color, national origin). In other words, as we celebrate the many triumphs of this 1972 legislation, we also have to be wary of the many ways in which interpretation and application of the law can be diminished.

Of course, no laws are enacted or enforced in a cultural vacuum. Jim Crow laws were both a symptom of and the reinforcement of racial apartheid in the post-Civil War era, while current stop-and-frisk laws demonstrate a greater targeting of people of color. The expanded Title IX guidance and enforcement under President Obama contrast sharply with the law’s shrinking applications under the current administration, a clear signal that the Groping Old President wishes to roll back protections for women and transgender individuals.

For these reasons and many more, the Title IX anniversary events at my institution both celebrated the advances made since 1972 and advocated for an awareness surrounding the legislation. I learned a lot last week. I learned that federal law (not state-by-state) protects against pregnancy discrimination. I learned from one young man’s significant question to Mia Hamm, when he asked her, “What has been the role of men in fighting for equal pay in women’s sports?”, and when she answered with several examples of men’s sports individuals and teams that have gone to bat on this issue. I learned that we need more young men asking this same question in all areas of Title VII and Title IX protections. Legal and cultural change cannot happen without more support from more of the populace. I learned that Mia Hamm’s accomplishments, intelligence, thoughtfulness, and generosity make her a true champion, a real inspiration. When asked who her women athlete heroes were, Hamm said that the only women’s sports regularly on television were tennis and, every four years, women’s track and field. Her two heroes? Eighteen-time Grand Slam Champion Chris Everett Lloyd in tennis and USA Track and Field Hall of Famer Jackie Joyner-Kersee. I should say!

In addition, several concepts were reinforced for me. Our flagging soccer program for girls in our area, commented upon several times last week, is likely a result of the state of Virginia placing girls’ soccer and lacrosse in the same season—the spring—thereby forcing girls’ sports to compete for players. The same is true, actually, for boys’ soccer and lacrosse, both offered in the spring. The Title IX issue enters when we account for this crowding of the spring season: might it be because fields are limited, and the football field is protected from having to share with soccer or lacrosse in the fall? It certainly seems the case that girls have fewer sports opportunities in the fall than they do in the spring and fewer in the fall than the boys do. Nevertheless, the Virginia Department of Education has scant information on athletics offerings, which also needs to be rectified. I also believe that LGBTQIA+ individuals at our local schools are under a greater threat of bullying than their straight peers—also a Title IX consideration.

As I’ve said elsewhere in the Gender Shrapnel Blog, the status quo is a mighty force, and we must be wary of its power.

Free Speech: For Whom is it Free?

WE THE PEOPLE of the United States…

Yesterday the so-called president of the United States had what should have been the pleasant task of honoring Navajo code talkers from World War II. As we all know by now, he did so at the White House, in front of a painting of Andrew Jackson, fetishized Native peoples, and then, for at least the twelfth time, referred to Elizabeth Warren as “Pocahontas.” Donald Trump’s and Elizabeth Warren’s workplace is the Unites States government, whose buildings include the White House, Congress, the Supreme Court, and media venues and publications. This racist epithet, repeated now so many times, constitutes not only demonstrated racial harassment of Elizabeth Warren as employee in the national workplace, but also racial harassment of Native peoples in general. This could be grounds for a Title VII lawsuit against the harasser-in-chief and should be added to the long list of discriminatory, harassing, and retaliatory actions taken by this individual.

Some of you out there might think, “Oh, come on. This is no big deal. These are just words. Let’s move on.” I would ask you, though, how often will we agree to move on? The racist-in-chief already lowered the bar so far so as to not only allow, but actually encourage, the violence of Charlottesville, thus chilling and degenerating conversations about racial justice, extreme incarceration, and hate speech. These highly public statements, made live, on the news, and impetuously, through Twitter, create a hostile work environment for the individuals targeted and for the groups the harasser-in-chief believes they represent. I also wonder if those who do not belong to legally protected categories but who do experience harm from the hostile work environments that impinge on others’ freedoms have some sort of claim here to insist on improved environments for all.

In this piece from The New York Review of Books (9-28-17), National Legal Director of the ACLU David Cole asks these important questions: “Does the First Amendment need a rewrite in the era of Donald Trump? Should the rise of white supremacist and neo-Nazi groups lead us to cut back the protection afforded to speech that expresses hatred and advocates violence, or otherwise undermines equality? If free speech exacerbates inequality, why doesn’t equality, also protected by the Constitution, take precedence?” Cole examines the elasticity of the First Amendment, stating that fewer millennials have faith in free speech than did previous generations and that some European nations differ from the United States in the scope of prohibitions against racist speech. While Cole acknowledges the importance of these points, as well as the significance of the 1993 collection of essays titled Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, he still insists: “If free speech is critical to democracy and to holding our representatives accountable—and it is—we cannot allow our representatives to suppress views they think are wrong, false, or disruptive.” In a speech delivered in Lexington, Virginia, Virginia ACLU Board member Wornie Reed cogently and ardently defended free speech along the same lines, as he does in this piece about the Virginia ACLU’s defense of Charlottesville white supremacist rally leader Jason Kessler.

Ted Gup writes in “Free Speech, but Not for All?” (The Chronicle of Higher Education, 4-27-17): “Barring speakers or preventing hate speech does not safeguard the oppressed. It empowers the oppressors, and it suggests that their words are to be feared for a compelling, persuasive power that, absent the muzzle, might infect others.” As Gup defends free speech in his critique of Ulrich Baer’s argument, he makes reference to “Baer and his ilk.” He cites “abolitionists, gay and lesbian people, civil-rights activists, feminist, and others on the cutting edge of change” as groups who have benefited from unfettered free speech, but then uses Arthur Miller as the principal example of someone who was barred from speaking at the University of North Carolina. Arthur Miller did not suffer for lack of visibility and invitations to share his work publicly, but many others from the groups cited by Gup certainly have.

Cole, Reed, and Gup make excellent arguments in favor of maintaining free speech laws. These arguments have sound basis in constitutional law and knowledge of traditional touchstones for democracy. Nevertheless, I find the arguments also to be steeped in a nostalgia for the United States as the cradle of democracy from centuries past, when founding fathers owned human beings and limited the rights of enslaved individuals and women. Democratic freedoms played favorites back then, and they still do now. When I think about the $17 million of taxpayer money used by members of Congress to hush cases of harassment against them, I think again about who gets to speak, who is silenced, and who pays for it all.

My question, then, is this: At what point have we indulged free speech so thoroughly and allowed free speech to become so married to Second Amendment rights that free speech can be said to limit the freedoms of others? If African-Americans and other people of color felt unsafe just existing in the streets of Charlottesville on August 11 and 12, then they were less free to navigate the public sphere during those days. If Nazis and presidents continue to be given maximum public forums to expose hatred, they change the environment and the level of risk for the groups they hate (people of color, migrant peoples, women, non-Christians, LGBTQIA+ individuals, etc.). Why must someone’s right to use the N-word or the C-word, both of which can constitute physical threats, supersede others’ rights to move through public spaces, which include workplaces, restaurants and stores, schools, and government office buildings? If the Sessions Justice Department advocates for greater free speech, especially on college and university campuses, can we interpret this as providing a more ample forum for hate speech? If so, then hateful speech acts will require more corporeal forms of resistance, thus upping the ante on conflict and the real risks and dangers it represents. (*See Tiya Miles’ piece, “Fighting Racism Is Not Just a War of Words,” in the 10-21-17 The New York Times. See also Adam Harris’ free speech-hateful speech piece in the 10-25-17 The Chronicle of Higher Education.)

In her book License to Harass, Laura Beth Nielsen states: “Rather than seriously engaging in an analysis of the costs and benefits to society of rules that might limit such behavior [hate speech], American courts have treated such conduct as ‘speech,’ which can be regulated only if the state offers a compelling justification. This doctrinal treatment in effect grants a license to harass. The judicial protection of offensive public speech works to normalize and justify such behavior” (3). Nielsen then (on page 3, and later in Chapter 7) makes the point that the most legally restricted form of public/street speech is that of begging, a restriction which demonstrates a significant class bias. We might consider swinging the pendulum away from granting power to practitioners of hate speech and violent speech and towards those who have already been afforded certain protections under the law (Title VII, Title IX) precisely because of their historically limited free access to public spaces and media outlets.

The harasser-in-chief has created the biggest hostile work environment possible—the United States of America. We do not have to allow this to continue.

A Twisted Tale of Two Harassers (Welcome to the White House)

Last week I learned that titles like “Sexual Assault Prevention Training in the News” don’t grab readers. Maybe this week’s title will, and certainly one of the people to whom it alludes has spoken famously about grabbing.

Mainstream and not-so-mainstream media, from People and Cosmopolitan to The Washington Post and The Atlantic, have been crackling this week due to the revelation from a resurfaced 2002 Mike Pence interview that the only woman with whom Pence will dine alone is his wife, Karen Pence. (*Here are links to more coverage of this issue: The Guardian, Slate, and Canada Free Press.) As you know, Mike Pence was governor of Indiana and is now the Vice President of the United States. His level of world awareness and understanding of gender essentialism boils down to one word: cooties. Pence seems to believe that all women are temptresses and that he has limited ability to hold himself back from such temptation and infection. Therefore, he will not have a meal with any women who aren’t Karen (that’s a lot of women) and won’t hire women staffers with whom he would potentially have to meet alone in the evening hours (that’s all staffers). Jia Tolentino remarks in her The New Yorker article on the piece, “That Pence was able to do so speaks to an incredible level of inequity in the workplace; no successful woman could ever abide by the same rule. How could you sex-segregate a thrice-daily activity and still engage in civic life?”

(Pence with the only women with whom he trusts himself to interact) (http://canadafreepress.com/article/pences-dinner-arrangements-with-women)

What Pence is doing technically is not harassment, but discrimination. He is discriminating against all women and limiting their professional advancement because he is afraid that he will harass them. Actually, that gives Pence too much credit. I’m guessing he is just afraid that he is too weak not to have sex with all of these women who so obviously will be throwing themselves at him because he is so desirable.

Tolentino states that Christian evangelicals often invoke the “Billy Graham rule,” which, Tolentino writes, is a refusal to “eat, travel, or meet along with a woman” and which “stems from a story that the famous pastor told about walking into a hotel room and finding a naked woman, bent on destroying his ministry, sprawled across his bed.” While Tolentino appropriately detects some hyperbole in this account, it might be helpful to imagine the gender roles reversed. What if a famous woman minister returned to her hotel room after a night of preaching to the masses and found a naked man sprawled on her bed? I hardly think she would have the luxury of separating herself from all encounters with men in order to avoid scandal. This version of the story would likely have her limiting encounters with this individual man out of fear of assault, not out of fear of scandal. Of course, the Billy Graham rule also seems to limit contact with any non-Christians, thus violating Title VII based on not only gender, but also religion.

Pence’s ego drives the decision to discriminate, just as Trump’s drives him to harass and assault. (*See The New York Times’ transcript of Donald Trump’s comments about women.) As you can see, we have here not the Tale of Two Harassers, but a White House of virulently white, pro-Christian, pro-male men. Pence castigates women (limits hiring, work access, and promotion of women in high-level government) because he doesn’t trust himself, and Trump speaks of violating women because they are mere objects for his consumption. Again, Pence alienates women with a weird version of pedestal politics: his wife Karen is somehow pure through her singular connection to him, but all other women are just Biblical temptress bots. Trump alienates women by verbally and physically harassing them individually and en masse, thus training women to raise red flags around him, while also cementing their place as the non-hireables. These two powerful men distance those who are unlike them (non-white; non-man; non-Christian) and, in particular, privilege their power in the public sphere over everything else.

As I write in Gender Shrapnel, these behaviors have broad implications for people of color, non-Christians, and women as individuals and as members of specific groups. Individuals who experience the Pence-type discrimination and/or the Trump-branded harassment are limited in their horizontal movements, that is, their movement through the work day. These individuals won’t be invited to power lunches or golf games, where networking and decision-making take place, and they might have to actively avoid a harasser whose physical presence threatens, looms, and impedes work production. Discriminatory and harassing behaviors also suppress vertical movement, or the ability to advance in the workplace through good work, collaboration, and professionalism. Members of groups offered protections under Title VII law can sense themselves as further limited by a group identification (or, importantly, a perceived group identification) that is undervalued or even actively discriminated against. The Title VII protections are often difficult to enact, especially in conservative judicial districts in many areas of the United States. Nothing like having the White House be the beacon of bad (and illegal) behavior.

It was the worst of times; it was the worst of times.

(But at least we have late-night comedy and The Onion: http://www.theonion.com/article/mike-pence-asks-waiter-remove-mrs-butterworth-tabl-55661)

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