Bathroom Politics and Transgender Discrimination

Prejudice always seems to start in the bathroom.  First it was the separate but equal doctrine that

forced African-Americans to use segregated facilities, including bathrooms.  Then it was Phyllis Schlafly and those opposed to the Equal Rights Amendment for women who raised the fear of men using women’s bathrooms as a way to defeat the amendment.  Opposition to gay rights was flamed by visions of sexual predators lurking around bathrooms. Now it is the opponents of transgender rights using the bathroom as a way of furthering prejudice by supporting legislation requiring individuals to use bathrooms designated for them based on their birth gender.

Yes privacy is an important legal right in America and should be respected.  Yet often times concerns of privacy masked underlying hostility and discrimination.   But privacy claims too often are incorrectly are invoked to thwart another powerful legal claim–the right to equal treatment.  When one looks at the Minnesota House bill HF 3396–The Bathroom Bill–requiring individuals to use the bathroom that corresponds to their birth assigned gender, it is clear that the proposal should be considered unconstitutional under both the US and Minnesota Constitutions, and illegal under both federal and state law.

The Fourteenth Amendment’s Equal Protection clause declares that “ no state shall deny to any person within its jurisdiction "the equal protection of the laws.”  While originally adopted after the Civil War to prevent discrimination against African-Americans, the Supreme and lower federal courts have used the Equal Protection clause to apply to many forms of discrimination, including that based on sex.  Courts have also used the Equal Protection Clause to address discrimination against gays and lesbians, and in recent years it has been invoked to protect transgender individuals.  In  Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), a federal court of appeals ruled that the termination of a transgender person by the State of Georgia because she was transitioning from one gender to another was a form of sex discrimination that violated the Fourteenth Amendment.

The Minnesota Supreme Court has yet to adjudicate and rule on a transgender discrimination  claim under the state constitution.  Were it to do so it would reach arguments similar to that in Glenn.  The reason is that in cases such as State v. Russell, 477 N.W.2d 886 (Minn.1991) the Court has argued that the State’s Equal Protection Clause effectively provides as much or more exactly  scrutiny or protection against discrimination when compared to the US Constitution. If that is the case one can make a strong argument that the Bathroom bill also violates the Minnesota Constitution.

Turning to statutory claims, Title VII of the 1964 Civil Rights Act bans workplace discrimination based on among factors, sex.  The law has been invoked to prohibit discrimination against transgender individuals.  The basis for applying it that way started in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), where Justice Scalia ruled for the Court that title VII applies to any form of sex-based discrimination.  Discrimination against transgender individuals is sex-based.  In cases such as Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004),  Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000), and Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), three different  circuits of the federal courts agreed that Title VII applies to transgender discrimination.

Most directly and recently, in January 2015 Deluxe Financial Services settled a Title VII case arising out of the company and its employees harassing a transgender person including forcing the individual to use the bathroom as determined by her birth gender.  The federal Equal Employment Opportunity Commission had ruled in favor of the transgender person saying the company violated Title VII of the Civil Rights Act of 1964 by subjecting her to “a hostile work environment and disparate treatment because of her sex, including because Ms. Austin is a woman who is transgender…”

Finally, at the state level, the clearest indication that the bathroom bill is illegal resides in the how it seeks to amend the Minnesota Human Right Act (MHRA) which, among other things, bans discrimination based on “sexual orientation.”  HF 3396 explicitly changes that law to create a bathroom exception. The Minnesota Supreme Court in Goins v. West Group, 635 N.W.2d 717 (2001) the Minnesota Supreme Court adjudicated a claim that a company had violated the Act when it required a transgender person to use the bathroom that corresponded to her birth gender. The Court ruled no in a bizarre case.

On the one hand the Court declared that the MHRA defines “sexual orientation” as including “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness,” therefore suggesting that a transgender individual may make out a potential claim under the Act.  However the Court then went on to argue that the employee had failed to establish that she had a right to use the bathroom designed for use by her biological gender and therefore her sexual orientation claim failed. Logically the case made no sense–the case was not about a transgender person wanting to use the bathroom designed by her birth gender and whether she had a right to use it. Goins is ripe for reversal and that too in part explains the reasons for the Bathroom bill.

Overall, there are strong reasons to think that House Republican Bathroom bill is legally suspect for several reasons at the federal and state level.  One should not let false claims of privacy  trump civil rights.  Prejudice has no place in the bathroom.

Getting It Wrong: The Myth of Massive Ticket-Splitting in the 2014 Minnesota Elections

I am not sure if it is bad math or bad journalism, but contrary to popular accounts, it is highly unlikely that 450,000 voters in Minnesota split their votes between Dayton or Franken at the top of the ticket and a Republican legislator further down the ballot.

On November 6, 2014,  in a Star Tribune article by Rachel E. Stassen-Berger and Glenn Howatt where they analyzed the results of the 2014 Minnesota elections, they sought to reconcile the difference between Democrats winning statewide and Republicans winning the House.  They asserted that of the estimated 1,992,989 Minnesotans who voted, effectively 22.5% split their ballots.    Conceptually and empirically, this is just incorrect.

First, keep in mind that no one can actually look at the individual ballots cast and therefore the Star Tribune’s article is purely conjecture.  Conceptually, asserting that between a fifth and a quarter of voters split their ballots is unlikely.  The political science literature is overwhelming in finding that partisan identification is a major driver and predictor of voting behavior.  This has been true in the nearly 60 plus years of research into voting behavior.  It is even more true today as the evidence mounts that voters now are more polarized and partisan in their voting than ever before.  This is even true in Minnesota.  Every since the Wellstone plane crash and memorial service there is powerful evidence of partisan voting, as evidenced by the close races or recounts in the 2008 senate and 2010 gubernatorial races.

Yet one might argue that Minnesota is different.  With about 20 or so percent of the electorate not listing themselves as a Democrat or Republican perhaps one might say this high percentage of independents accounts for the split ticket voting.  It might account for a small percentage of this, but there are similarly high percentages of independents across the US with little evidence of split ticket voting.  Thus, Minnesota exceptionalism is not the answer.

Instead, the real answer has to do with now the geographic voting patterns in the state.  A look at the state election results indicate that Mark Dayton for example, won 34 of the state’s 87 counties, with Jeff Johnson winning the majority at 53.  Dayton (and Franken) racked up big wins in Hennepin and Ramsey counties, as well as several other traditional DFL ones, but lost elsewhere.  Now look at where Republican legislators did well and won–in the counties where Jeff Johnson won.  Such a geographic pattern can easily explain the apparent anomaly of Democrats winning statewide and Republicans winning at the legislative level. 

Put simply, Democrat votes are concentrated in a few geographic areas of the state and there are more of them and they overwhelming voted for DFL statewide and legislative candidates whereas Republican voters are dispersed across the state and the voted straight party line for Jeff Johnson and Republican legislators.

The Star Tribune article thus conceptually and empirically got it wrong.  Moreover, it also committed a variation of the classic ecological fallacy–falsely inferring characteristics about individuals based on aggregate or group behavior.  Here they assumed individual behavior about voting based on overall statewide voting.  Yet they did so without understanding the way the votes actually were distributed across the state and for the candidates.

Why the DFL will lose the Minnesota House

The DFL are going to lose the Minnesota House.  There are many reasons for this but the main one is arrogance–both a refusal to recognize a bad strategy and an unwillingness to admit mistakes.
    On the face of it, the DFL has much to cheer about come November.  It will sweep the constitutional offices with Dayton especially winning by a wide margin.  Franken too will win, probably big, as there is no sign that the election is tightening, contrary to what reporters any my colleagues rotefully declare.  The coattails of these statewide victories plus the large cash advantage that the DFL enjoy should in theory be enough to keep them in power in the House.  But it won’t be enough.
    Yes, there are obvious reasons why the DFL will lose.  Obama is unpopular and dragging down the party.  It is a mid-year election and DFL voters are less likely to vote.  Both of these factors explain why big-name Democrats such as the Clintons and Michelle Obama have visited the state with the hope of rousing the base and instilling passion into DFL voters.  But still that will not be enough to overcome other major problems of the DFL.
    Consider first that the DFL won many seats in 2012 by close margins in Republican areas.  They did so in part because if was a presidential election year and also because they benefited from Republican legislative overreach in the 2011-2012 session.  This means the DFL are defending many seats that are in Republican areas, or at the least, seriously lean GOP or are at best swing. 
    The second problem is the lack of a Democrat or DFL narrative.  Obama had a great narrative  in 2008 but since then at the national level there has been no narrative for reelection.  That is why Democrats were trounced in 2010.  Obama held on in 2012 because Romney was such a horrible candidate.  Dayton won in 2010 because Emmer was a weak candidate, and in 2012 the DFL won less on their narrative and more on GOP failures.  This year, there is still no national Democrat narrative and at the state level, the narrative too is missing.  Yes Dayton and Democrats can run on  their record of accomplishments and on a good state economy, but neither play well in swing districts.  Moreover, the DFL do not have a good narrative to counter MNSure, Obamacare, the new Senate Office Building, and many of their other legislative acts.  Yes all of these play well to the base, but not to swing voters. There is a nagging yet silent sense of DFL over-reach here, but when you put it all together, what is the narrative?   “Four more years?”  “If you liked the past you will love the future?”  The narrative is cloudy at best, thereby explaining in part the lethargy of the DFL voter.
    But perhaps the main reason why the DFL will lose the House has to do with arrogance.  It is arrogance on several scores.  Over the last few months I have given more talks across the state than I can count.  Repeatedly I hear that th DFL is using a cookie-cutter approach to running a state legislative campaign.  They are using the same messaging, GOTV, and tactics in all of their campaigns.  Such an approach is a recipe for failure, ignoring the special issues and needs of different districts.  While we may live in a era where elections are often nationalized, Tip O’Neill is still correct that all politics is local. 
    Almost 30 years ago I moved to Minnesota and saw a party still fixated on the past. I saw a  DFL bureaucratic and dominated by a small core of activists who in many ways still dominate the state and think the way you win is the way they used to win.  Say what you might about the GOP, but the TEA has brought in a new crop of activists into the Republican Party, willing at times to challenge it with new ideology and tactics.
    But what I have heard about and see this year is that the DFL leadership has refused to acknowledge that their strategy and campaign projections are flawed.   It is a urban-based approach that might work well in cities with lots of Democrats, but it is still not well suited for many suburbs  and especially rural Minnesota. I have heard several DFLers over-confidently say there are only about 8 swing races in the state, self-assured that there are some seats they really do not need to defend. Too many individuals have told me that they have been refused support or volunteers because the DFL thinks their race is unwinnable.  Or that the DFL has not supported a race because of petty jealousies. 
    There is a lot of ego on the line here.  Many in the DFL leadership have a stake in being considered wise gurus–they have decided who can win or lose and how–and they do not want to prove themselves wrong less they lose their stature within the party.  This insularity and making it all about them is a sure downfall for the DFL this November.