Paul Killebrew
NOTES ON “THE BISEXUAL PURGE”
(The text of “The Bisexual Purge” appears in issue five of Oversound, published in 2019.)
Throughout this work I discuss legal developments, cases, and arguments about both sexual orientation and gender identity discrimination. As a bisexual man, I have experienced mistreatment due to my sexual orientation, but I am not transgender and have not experienced gender identity discrimination. I’ve therefore thought about the questions that Beth Loffreda and Claudia Rankine suggest that white writers ask themselves about their desire to write about race: “why and what for . . . ? What is the charisma of what I feel estranged from, and why might I wish to enter and inhabit it. . . . To ask what we think we know, and how we might undermine our own sense of authority.” Beth Loffreda and Claudia Rankine, Introduction, in The Racial Imaginary: Writers on Race in the Life of the Mind, Claudia Rankine, Beth Loffreda, and Max King Cap, eds., at pages 17-18 (Fence Books 2015). Why am I writing about gender identity? What charisma do I feel estranged from? What authority am I claiming? Also, what happens when I connect my own experiences with those of Gavin Grimm, Chelsea Manning, Ash Whitaker, Mercedes Williamson, and Jane Doe? Aren’t I using these individual struggles—struggles different from anything I have experienced—to advance a legal and artistic agenda from which I realize all the benefits without paying any of the costs? How is this any different from the acquisitive impulses that have long guided systems of patriarchy and white supremacy?
In writing this work I found myself wanting to document the situation of LGBTQ+ rights during the year 2017, a time when those rights were expanding, and yet the LGBTQ+ community was under siege from the federal government. As a lawyer, the legal front in this struggle was foremost on my mind, and on that legal front, the rights of everyone under the LGBTQ+ umbrella are bound up together. As discussed in the work above and in the notes that follow, sexual orientation and gender identity discrimination are linked in the US legal system under the rubric of gender stereotyping as defined by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The hope within the LGBTQ+ legal movement has been that once courts recognize that gender identity discrimination is a form of prohibited gender stereotyping, they (hopefully) will find it easier to recognize the same for sexual orientation discrimination, and vice versa. Lawyers in the movement have brought many cases in recent years about both forms of discrimination, and advances in the law have sometimes occurred in cases about gender identity discrimination, and sometimes in cases about sexual orientation discrimination. As a bisexual, both kinds of cases have the potential to extend or withdraw the protections that the law affords me. Also, one manifestation of bisexual erasure is that there are not many cases about bisexual discrimination specifically, so the scope of bisexual legal rights has to be inferred from these other cases. I can’t talk about my rights as a bisexual without reference to the struggle of a broader political community.
At the same time, I can’t possibly speak for that entire community. Just because the rights of LGBTQ+ individuals rise or fall together does not mean that our experiences are monolithic or that our oppression is comparable. I’m not representative. For a foundational discussion of the law’s failure to address or even recognize intersectional discrimination, see Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 The University of Chicago Legal Forum 139, http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8. While I have tried to write with this awareness intact, to question my motivations, to examine when my presence is unhelpful, and to write no further than my understanding warrants, the vectors of privilege are, as Loffreda and Rankine put it, limits on my imagination. Beth Loffreda and Claudia Rankine, supra, at page 20.
. . . . .
Title page, “The Bisexual Purge”: People use the word “bisexual” for different purposes and to mean different things—a form of self-identity, a way to describe attractions or behaviors, a place of community building and political organizing, and so on. My use of the term will mainly be about my identify and my political community. For the purposes of my identity, Robyn Ochs’s frequently quoted definition of bisexuality feels about right for my own experiences: “I call myself bisexual because I acknowledge that I have in myself the potential to be attracted—romantically and/or sexually—to people of more than one sex and/or gender, not necessarily at the same time, not necessarily in the same way, and not necessarily to the same degree.” Robyn Ochs, Definition of Bisexuality, https://robynochs.com/bisexual/. Kenji Yoshino, in an article that I discuss later, has offered “a provisional definition of bisexuality as the ability to feel more than incidental sexual desire for both sexes.” Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 Stanford Law Review 353, page 361 (2000). That definition—which Yoshino calls “desire-based,” id. At 373—was suited to the purpose of articulating how monosexuals conspire, intentionally or unintentionally, to erase bisexuals. It’s a useful definition for understanding the bisexual community through the lens of the harms it experiences. Heron Greensmith, in another article that I discuss later, uses the term bisexuality to refer to “the range of sexualities between 100% monosexual to 100% queer,” noting that “it is truly everyone between the two polar ends of the spectrum that is being erased.” Heron Greensmith, Drawing Bisexuality Back into the Picture: How Bisexuality Fits into LGBT Legal Strategy Ten Years After Bisexual Erasure, 17 Cardozo Journal of Law & Gender 65, pages 68-69 (2010).
“Bisexual” is a contested concept; some basic internet searches can show you that there are tensions about the scope of the term, how it compares to terms like pansexual and queer, and whether it carries vestigial features of the gender binary. I won’t try to untangle all of that here. I’m using the word bisexual because it feels about right for me, it has a rich lineage, it helps to identify unique harms, and I’m invested in its potential as an umbrella term—within the larger umbrella of LGBTQ+—for all of the experiences and identities that Greensmith’s definition encompasses.
Page 88, “In the restorative justice tradition,”: Centre for Justice & Reconciliation, What Is Restorative Justice? (November 2008), http://restorativejustice.org/am-site/media/what-is-restorative-justice.pdf. My original source is less citable: a training I attended during a rare New Orleans snowfall in 2008. The specific subject of the training was Defense Initiated Victim Outreach, an idea that grew out of the restorative justice paradigm. At the time restorative justice seemed to me like a radical concept, but in researching literature on the topic to write this endnote, I’m struck by how moderate its goals really are. The situation in criminal justice reform has been such a disaster for so long that even the slightest shifts toward sanity often have an aura of great innovation that’s unwarranted on the merits but makes somewhat more sense in light of policymakers’ historic inclination to adopt only those changes that advance human destruction.
Page 89, “Bi people make up more than half of everyone”: Movement Advancement Project Invisible Majority: The Disparities Facing Bisexual People and How to Remedy Them 2-3, 5, 15 (September 2016), http://www.lgbtmap.org/file/invisible-majority.pdf. If you’ve taken the trouble to look at this note, I beg you to go just a little further and read the report, as I’ve only cited the two disparities about which I feel able to speak. There are many others—disparities that are both surprising and all-encompassing: bisexual people face discrimination at home, at work, at school, in physical health, in health care, in victimization, in immigration proceedings, and on and on.
Page 91, “the Dear Colleague Letter”: U.S. Department of Justice, Civil Rights Division; U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter on Transgender Students (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf; U.S. Department of Justice, Civil Rights Division; U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter (February 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf (withdrawing May 13, 2016 Dear Colleague Letter).
Page 92, “But to myself, a spontaneous overflow of events / recollected in distress.”: The Complete Poetical Works of William Wordsworth, Henry Reed, ed., page 668 (Troutman & Hayes 1852).
I have said that Poetry is the spontaneous overflow of powerful feelings: it takes its origin from emotion recollected in tranquillity: the emotion is contemplated till, by a species of re-action, the tranquillity gradually disappears, and an emotion, kindred to that which was before the subject of contemplation, is gradually produced, and does itself actually exist in the mind. In this mood successful composition generally begins, and in a mood similar to this it is carried on; but the emotion, of whatever kind, and in whatever degree, from various causes, is qualified by various pleasures, so that in describing any passions whatsoever, which are voluntarily described, the mind will, upon the whole, be in a state of enjoyment. Now, if Nature be thus cautious in preserving in a state of enjoyment a being thus employed, the Poet ought to profit by the lesson thus held forth to him, and ought especially to take care, that, whatever passions he communicates to his Reader, those passions, if his Reader’s mind be sound and vigorous, should always be accompanied with an overbalance of pleasure.
Page 93, “I was never more hated / than when I tried to be honest. . . .”: Ralph Ellison, Invisible Man, pages 572-73 (Vintage International 1995).
Page 94, “Years ago she writes an amicus brief / for Price Waterhouse v. Hopkins”: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The facts and quoted language from Hopkins can be found at pages 232-235 of the opinion.
Page 97, “The federal government got to gender identity / and then retreated.”: The federal government first reversed course on gender identity discrimination in education—see the Dear Colleague Letters cited above. The government would later reverse its position on job discrimination as well: Attorney General Eric Holder, U.S. Department of Justice, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 2014), https://www.justice.gov/file/188671/download; Attorney General Jeff Sessions, U.S. Department of Justice, Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Oct. 4, 2017), https://www.justice.gov/ag/page/file/1006981/download.
Page 97, “It’s never been there for sexual orientation.”: The federal government hasn’t yet said that employment discrimination on the basis of sexual orientation violates federal job discrimination laws. But the government has said that laws that discriminate on the basis of sexual orientation should be treated similarly to laws that discriminate against women and should often be struck down under the Fourteenth Amendment’s Equal Protection Clause—see the government’s arguments in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), the marriage equality case. Brief for the United States as Amicus Curiae in Support of Petitioners, pages 15-25, Obergefell v. Hodges, Case No. 14-556 (U.S. Supreme Court, filed March 6, 2015), https://www.justice.gov/sites/default/files/osg/briefs/2015/03/17/14-556tsacunitedstates.pdf.
Page 97, “And Gavin Grimm’s oral argument / is a month away”: Docket entry of February 3, 2017, Gloucester County School Board v. G.G., No. 16-273 (Sup. Ct., docketed Sept. 1, 2016) (setting case for argument on March 28, 2017), https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-273.htm.
Page 99-104: The facts of Gavin Grimm’s case come from the complaint he filed in federal court against the school board. Complaint, Docket No. 8, G.G. v. Gloucester County School Board, Case No. 4:15-cv-54 (E.D. Va. June 11, 2015). The videos of the school board meetings can be found at http://archive-media.granicus.com:443/OnDemand/gloucester/gloucester_d1364bdf-d16c-4804-9c61-7e81ba40dac4.mp4 (November 11, 2014 school board meeting) and http://archive-media.granicus.com:443/OnDemand/gloucester/gloucester_a0264ec0-e5f3-40c6-9377-1473ab56186c.mp4 (December 9, 2014 school board meeting). All quotations from the videos are based on my own transcription.
Page 104, “loses again in the federal trial court”: G.G. v. Gloucester County School Board, 132 F. Supp. 3d 736 (E.D. Va. 2015).
Page 104, “but he wins on appeal”: G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016).
Page 104, “Then the Supreme Court decides to hear his case.”: Docket entry of October 28, 2016, Gloucester County School Board v. G.G., No. 16-273 (Sup. Ct., docketed Sept. 1, 2016) (granting petition for a writ of certiorari), https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-273.htm.
Page 106, “Bi people make up more than half”: Movement Advancement Project, Invisible Majority: The Disparities Facing Bisexual People and How to Remedy Them, pages 2-3, 5, 15 (September 2016), http://www.lgbtmap.org/file/invisible-majority.pdf. Please see the fourth end note for more about this report.
Page 106, “77% of gay men and 71% of lesbians / said that they were out to all or most / of the important people in their lives. / The number for bisexual people was just 28%. / And for bi men, 12%.”: Invisible Majority, supra, at 5. “Sixty-five percent of bisexual men said that few or none of the important people in their lives know they are bisexual.”
Page 107, “Lesbian and gay adults”: Invisible Majority, supra, at 15.
Page 107, “I had to take myself by the throat.” Invisible Man, supra.
Page 107, “the Supreme Court remands Gavin Grimm’s case / to the lower court”: Docket entry of March 6, 2017, Gloucester County School Board v. G.G., No. 16-273 (Sup. Ct., docketed Sept. 1, 2016) (vacating the judgment of the Fourth Circuit and remanding the case back to that court “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017”), https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-273.htm.
Page 107-108, “as June Jordan writes in A New Politics of Sexuality”: A New Politics of Sexuality, in June Jordan, Some of Us Did Not Die: New and Selected Essays of June Jordan, page 135 (Basic/Civitas Books 2002).
Page 108, “Or Kate Bornstein in Gender Outlaw”: Kate Bornstein, Gender Outlaw: On Men, Women, and the Rest of Us, page 46 (Vintage Books 2016).
Page 108, “In 2010 she writes in a legal academic article”: Heron Greensmith, Drawing Bisexuality Back into the Picture: How Bisexuality Fits into LGBT Legal Strategy Ten Years After Bisexual Erasure, 17 Cardozo Journal of Law & Gender 65 (2010) (discussing Colker, infra).
Page 109, “Ruth Colker writes what has to be correct”: Ruth Colker, Hybrid: Bisexuals, Multiracials, and Other Misfits Under American Law, pages 5-7 (New York University Press 1996).
Page 109, “But, legal academic Kenji Yoshino asks,”: Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 Stanford Law Review 353, pages 409-410 (2000).
Page 109, “what Susan Sontag says of being Jewish”: from the film Regarding Susan Sontag, produced and directed by Nancy Kates, at 1:55; see the script at http://www.thefilmcollaborative.org/films/img/dialoguelists/Sontag_Dialogue_List_71114.pdf.
Page 109-110, “In his confirmation hearing back in January”: Video of Jeff Sessions’s confirmation hearing can be found on C-SPAN at https://www.c-span.org/video/?420932-1/attorney-general-nominee-jeff-sessions-testifies-confirmation-hearing. All quotations from the video are based on my own transcription. Sessions’s prepared remarks can be found at https://www.nytimes.com/2017/01/10/us/politics/sessions-remarks-transcript.html.
Page 111, “Emily’s death and temporary resurrection”: Thornton Wilder, Our Town: A Play in Three Acts (Harper & Row 1957), page 100.
Pages 112-113, “Seventeen years ago Kenji Yoshino”: Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 Stanford Law Review 353 (2000). June Jordan makes a point similar to Yoshino’s first: “I understand why women who identify themselves as lesbians and why men who identify themselves as gay might wish to ostracize, or condemn, bisexuality. It is that fearful emulation of the history of the Dominant Culture’s response to those who differ/who choose to be different. It is fear that an already marginalized and jeopardized status will become confused and/or extinguished by yet another complicated sexual reality seeking its safety and its equal rights.” June Jordan, On Bisexuality and Cultural Pluralism, in Affirmative Acts: Political Essays, pages 137-138 (Anchor Books 1998).
Page 113, “the so-called monosexual agenda”: This line does not come from Yoshino’s article but is an adaptation of a phrase from Justice Scalia’s dissent in Lawrence v. Texas, where he decried what he perceived as the Supreme Court’s decision to take sides in the culture wars: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” 539 U.S. 558, 602 (2003).
Page 113, “protests spring up wherever he goes”: Margaret Talbot, Supreme Confidence: The Jurisprudence of Justice Antonin Scalia, The New Yorker (March 28, 2005), page 40 (“Outside the auditorium, a dozen or so students marched in a ragged oval, chanting, ‘Two, four, six, eight, separation of church and state!’—not the most original of slogans but one that they thought appropriate for a Justice who so often stresses the deep and redeeming religiosity of the American people. One student had drawn a poster of Scalia as Oscar the Grouch.”) From page 55 of the article: “Lately, it seems that Justice Scalia is campaigning for the job of Chief Justice.”
Page 113-114, “in Lawrence v. Texas / Scalia rejected in his dissent”: Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting) (criticizing the majority’s belief in “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex”).
Page 114, “by, for instance, equating gay sex with bestiality”: Id.
Page 114, “A decade later Scalia earns gasps of his own”: Adam Liptak, Supreme Court Justices’ Comments Don’t Bode Well for Affirmative Action, New York Times (Dec. 9, 2015), https://www.nytimes.com/2015/12/10/us/politics/supreme-court-to-revisit-case-that-may-alter-affirmative-action.html (“In a remark that drew muted gasps in the courtroom, Justice Antonin Scalia said that minority students with inferior academic credentials may be better off at ‘a less advanced school, a slower-track school where they do well.’”). The quotations from the oral argument can be found on page 67 of the argument’s transcript, which is available on the Supreme Court’s website: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2015/14-981_onjq.pdf.
Page 115, “The process of coming out as a bisexual”: Yoshino, supra, at page 430.
Page 115, “June Jordan in A New Politics of Sexuality”: A New Politics of Sexuality, supra, page 135.
Page 115-116, “Sunfrog, a bi man, writes,”: Sunfrog, Pansies Against Patriarchy: Gender Blur, Bisexual Men, and Queer Liberation, in Bisexual Politics: Theories, Queries, and Visions, Naomi S. Tucker, ed., page 322 (Routledge 1995). He goes on: “My sexuality exudes a manner of being in the natural world that extends beyond simply loving both genders. It includes the entire scope of sensuality. I also love trees, rivers, the sky, and food. My sexuality is bigger than words. We are very queer.” (Internal quotation marks omitted.)
Page 116, “its most modest, most / diminutive scales”: “The truth is that sexuality is everywhere: the way a bureaucrat fondles his records, a judge administers justice, a businessman causes money to circulate; the way the bourgeoisie fucks the proletariat; and so on.” Gilles Deleuze and Felix Guattari, Anti-Oedipus: Capitalism and Schizophrenia, translated by Robert Hurley, Mark Seem, and Helen R. Lane, page 293 (University of Minnesota Press 1983).
Page 117, “In 1969, Fred Rogers appears before Congress”: The video can be found here: https://www.youtube.com/watch?v=fKy7ljRr0AA&frags=pl%2Cwn.
Page 117-118, “Neil Gorsuch, facing Congress at his confirmation hearing”: Video of the first day of Justice Gorsuch’s confirmation hearing can be found on C-SPAN at https://www.c-span.org/video/?424146-1/supreme-court-nominee-neil-gorsuch-delivers-opening-statement-confirmation-hearing.
Page 118, “from a canonical 1962 book by legal academic Alexander Bickel”: Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, page 261 (Yale University Press 1962).
Page 119, “I think of two naked men wrestling fireside / in D.H. Lawrence’s Women in Love”: D.H. Lawrence, Women in Love, pages 305-310 (Thomas Seltzer 1922).
They seemed to drive their white flesh deeper and deeper against each other, as if they would break into a oneness. . . . So the two men entwined and wrestled with each other, working nearer and nearer. Both were white and clear, but Gerald flushed smart red where he was touched, and Birkin remained white and tense. He seemed to penetrate into Gerald’s more solid, more diffuse bulk, to interfuse his body through the body of the other, as if to bring it subtly into subjection . . . . It was as if Birkin’s whole physical intelligence interpenetrated into Gerald’s body, as if his fine, sublimated energy entered into the flesh of the fuller man, like some potency, casting a fine net, a prison, through the muscles into the very depths of Gerald’s physical being. . . . Now and again came a sharp gasp of breath, or a sound like a sigh, then the rapid thudding of movement on the thickly-carpeted floor, then the strange sound of flesh escaping under flesh.
Page 119, “At oral argument in Lawrence Rehnquist asks”: The quotations from the oral argument can be found on page 20 of the argument’s transcript, which is available on the Supreme Court’s website: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2002/02-102.pdf.
Page 119, “Scalia follows up to ask why such a policy”: Id. at page 21.
Page 119, “Jeff Sessions signs a memo”: Attorney General Jeff Sessions, U.S. Department of Justice, Supporting Federal, State, Local, and Tribal Law Enforcement (March 31, 2017), https://www.justice.gov/opa/press-release/file/954916/download.
Page 122, “the federal appeals court in Chicago / decides in early April”: Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017).
Page 122, “Judge Richard Posner asks”: An audio recording of the oral argument can be found at http://media.ca7.uscourts.gov/sound/2016/nr.15-1720.15-1720_11_30_2016.mp3. The quotations from the recording are based on my own transcription.
Page 123, “like deciding how to dress”: Hively, 853 F.3d at page 354.
Page 123, “On April 7 a different appellate court”: G.G. v. Gloucester County School Board, 853 F.3d 729 (4th Cir. 2017).
Page 123-124, “Judge Andre Davis writes a separate opinion”: Id. at pages 730-731.
Page 124, “Famous by Naomi Shihab Nye”: Naomi Shihab Nye, Famous, in Words Under the Words: Selected Poems, page 80 (Far Corner Book 1995). The poem is also available on the website of the Poetry Foundation at https://www.poetryfoundation.org/poems/47993/famous.
Page 125, “I recite John Ashbery’s Soonest Mended”: John Ashbery, Soonest Mended, in John Ashbery: Collected Poems 1956-1987, Mark Ford, ed., pages 184-186 (Library of America 2008). The poem is also available on the website of the Poetry Foundation at https://www.poetryfoundation.org/poems/47765/soonest-mended.
Page 125, “as Ashbery writes / in the poem Imperfect Sympathies”: John Ashbery, Imperfect Sympathies, in John Ashbery: Collected Poems 1956-1987, Mark Ford, ed., page 980 (Library of America 2008).
Page 125-126, “we drop a bomb on Afghanistan”: Eric Schmitt, Helene Cooper, and C.J. Chivers, A Giant U.S. Bomb Carries an Even Bigger Message, New York Times (April 14, 2017), https://www.nytimes.com/2017/04/14/world/asia/bomb-afghanistan.html; Anna Fifield, As North Korea Celebrates Anniversary, Its Neighbors Are United by Jitters, Washington Post (April 13, 2017), https://www.washingtonpost.com/world/as-north-korea-celebrates-anniversary-its-neighbors-are-united-by-jitters/2017/04/13/8ca2f8a0-2038-11e7-bcd6-6d1286bc177d_story.html?noredirect=on&utm_term=.59873de7ab47.
Page 126, “Last week we bombed an airfield in Syria”: Michael R. Gordon, Helene Cooper, and Michael D. Shear, Dozens of U.S. Missiles Hit Air Base in Syria, New York Times (April 6, 2017), https://www.nytimes.com/2017/04/06/world/middleeast/us-said-to-weigh-military-responses-to-syrian-chemical-attack.html.
Page 127, “Like the Due Process Clause”: Section one of the Fourteenth Amendment lays out three overlapping protections: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The government cannot deprive you of fundamental rights—“privileges or immunities”; it can’t constrain you at random, but only through fair procedures—“due process of law”; and it has to be even-handed—“equal protection.” Or, as John Hart Ely wrote in his legal theory page-turner Democracy and Distrust, “The Due Process Clause addresses itself to procedural fairness. The Equal Protection Clause is directly concerned with equality . . . . The Privileges or Immunities Clause adds yet another dimension: it seems to announce rather plainly that there is a set of entitlements that no state is to take away.” John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, page 24 (Harvard University Press 1980). The Thirteenth Amendment eliminates slavery—or purports to. The Fourteenth aims to go further by establishing conditions for actual life: rights, process, equality. They all hang together.
But less than five years after ratification of the Fourteenth Amendment, in something called the Slaughter-House Cases, 83 U.S. 36 (1873), the Supreme Court interpreted the Privileges or Immunities Clause to protect a comically thin set of rights. It’s never been restored, and next July will be its hundred and fiftieth anniversary—a date that has been called our “second founding,” but should properly be considered our first.
The idea of “substantive due process” grew out of this evisceration of the Privileges or Immunities Clause. In Griswold v. Connecticut, 381 U.S. 479 (1965), a case that forms the foundation of Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges, the Supreme Court struck down a law that makes it a crime for a doctor to consult with a patient about methods of birth control. The Court found that the law conflicted with the constitutional right to privacy—not a new right, exactly, but one that the Court hadn’t, to that point, placed on its own footing. Rights don’t come out of thin air here but from the Constitution, a document in which the word privacy doesn’t appear. The source of the right to privacy nevertheless could plausibly have been the Privileges or Immunities Clause—what else is an “immunity” of citizenship if not the right to be left alone?—but Justice Byron White positioned it elsewhere, in the Due Process Clause, finding that the clause protects a “realm of family life which the state cannot enter.” Id. at 502 (1965) (White, J., concurring) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). He doesn’t grapple with the oddity of locating this realm of protection—one potentially planted thick with other rights to self-determination—within words that on their face don’t protect any particular area of life like the First Amendment’s protection of speech or the Fourth’s protection from unreasonable searches, but only entitle us to fair procedures should the government wish to take those other protections away. This is the move that’s known as “substantive due process”—the incorporation of substantive rights into language that would only seem to protect procedural rights. The term sounds to lawyers the way something like “content as form” might sound to poets—a shading-together of concepts that get their oomph from using them to illuminate distinctions between two features.
Page 128, “As Kenji Yoshino writes: / Immutability has exonerative force”: Yoshino, supra, at page 405.
Page 129, “If, as Yoshino writes, immutability offers absolution”: Yoshino, supra, at page 406.
Page 129, “Or, as Heron Greensmith writes, / a court might find it less ‘abhorrent’ to ask a bisexual”: Greensmith, supra, at pages 75-76.
Page 129, “Anselm Berrigan, quoting Aquinas,”: Anselm Berrigan, Zero Star Hotel, in Zero Star Hotel, page 65 (Edge Books 2002).
Page 130-131, “and a book called Written in the West.”: Wim Wenders, Written in the West (teNeues 2000).
Page 133, “like Walt Whitman’s Crossing Brooklyn Ferry,”: Walt Whitman, Crossing Brooklyn Ferry, in Leaves of Grass, page 132 (Small, Maynard & Company 1907).
Page 134, “and, to paraphrase Rachel Cusk, / emergencies of definition.”: “An argument is only an emergency of self-definition, after all.” Rachel Cusk, Aftermath: On Marriage and Separation, page 3 (Farrar, Straus and Giroux 2012).
Page 134, “The advocacy community is calling it the license to discriminate.”: Trudy Ring, Trump Reportedly Will Issue ‘License to Discriminate’ Order Thursday, Advocate (May 2, 2017), https://www.advocate.com/politics/2017/5/02/trump-reportedly-will-issue-license-discriminate-order-thursday.
Page 134, “Then on Thursday the order comes out,”: Promoting Free Speech and Religious Liberty, 82 Federal Register 21675 (May 9, 2017) (announcing Executive Order No. 13798, which was released by the White House on May 4, 2017).
Page 134, “the Post has carried a couple of stories”: Robert Barnes, Trump Makes His Pick, but It’s Still Anthony Kennedy’s Supreme Court, Washington Post (January 31, 2017), https://www.washingtonpost.com/politics/courts_law/trump-makes-his-pick-but-its-still-anthony-kennedys-supreme-court/2017/01/31/1de12472-e7e0-11e6-bf6f-301b6b443624_story.html?utm_term=.105ed917e658; James Hohmann, The Daily 202: 10 Storylines to Follow as the House Votes on Health Care, Washington Post (May 4, 2017), https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2017/05/04/daily-202-10-storylines-to-follow-as-the-house-votes-on-health-care/590abe8fe9b69b6eaccb15fb/?utm_term=.72d9816453b8.
Page 135, “Marine Le Pen loses the French presidential election”: Alissa Rubin, Macron Decisively Defeats Le Pen in French Presidential Race, New York Times (May 7, 2017), https://www.nytimes.com/2017/05/07/world/europe/emmanuel-macron-france-election-marine-le-pen.html.
Page 136, “May 8. / Sally Yates and James Clapper”: Video of their testimony can be found on C-SPAN at https://www.c-span.org/video/?c4668811/senators-grill-sally-yates-james-clapper-part-1-russian-interference-2016-elections.
Page 136, “That evening the administration announces / a contemplated buildup of troops in Afghanistan.”: Missy Ryan and Greg Jaffe, U.S. Poised to Expand Military Effort Against Taliban in Afghanistan, Washington Post (May 8, 2017), https://www.washingtonpost.com/world/national-security/us-poised-to-expand-military-effort-against-taliban-in-afghanistan/2017/05/08/356c4930-33fa-11e7-b412-62beef8121f7_story.html?utm_term=.0304eaf9f646.
Page 136, “May 9. / He fires James Comey.”: Michael D. Shear and Matt Apuzzo, F.B.I. Director James Comey Is Fired by Trump, New York Times (May 9, 2017), https://www.nytimes.com/2017/05/09/us/politics/james-comey-fired-fbi.html.
Page 137, “May 10. / He meets with two Russian diplomats,”: Julie Vitkovskaya and Amanda Erickson, The Strange Oval Office Meeting Between Trump, Lavrov and Kislyak, Washington Post (May 10, 2017), https://www.washingtonpost.com/news/worldviews/wp/2017/05/10/the-strange-oval-office-meeting-between-trump-lavrov-and-kislyak/?utm_term=.16890c177a8d.
Page 137, “and reveal[s] highly classified information to them.”: Greg Miller and Greg Jaffe, Trump Revealed Highly Classified Information to Russian Foreign Minister and Ambassador, Washington Post (May 15, 2017), https://www.washingtonpost.com/world/national-security/trump-revealed-highly-classified-information-to-russian-foreign-minister-and-ambassador/2017/05/15/530c172a-3960-11e7-9e48-c4f199710b69_story.html?utm_term=.e2c369b53665.
Page 137, “May 11. / He tells Lester Holt in a televised interview”: James Griffiths, Trump Says He Considered ‘This Russia Thing’ Before Firing FBI Director Comey, CNN (May 12, 2017), https://www.cnn.com/2017/05/12/politics/trump-comey-russia-thing/index.html. The full interview is available on YouTube at https://www.youtube.com/watch?time_continue=3&v=5Wvuw_Zmubg.
Page 137, “May 12. / He says he might have tapes”: Philip Rucker, Trump Suggests There May Be ‘Tapes’ of His Private Conversations with Former FBI Director, Washington Post (May 12, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/05/12/trump-suggests-there-may-be-tapes-of-his-private-conversations-with-former-fbi-director/?utm_term=.58e4ec1834a1.
Pages 137, “May 14. / North Korea fires a missile”: Choe Sang-Hun, North Korea Says Missile It Tested Can Carry Nuclear Warhead, New York Times (May 14, 2017), https://www.nytimes.com/2017/05/14/world/asia/north-korea-missile-nuclear.html.
Page 137, “May 15. / The Post breaks its story on his disclosures to the Russian diplomats.”: Greg Miller and Greg Jaffe, Trump Revealed Highly Classified Information to Russian Foreign Minister and Ambassador, Washington Post (May 15, 2017), https://www.washingtonpost.com/world/national-security/trump-revealed-highly-classified-information-to-russian-foreign-minister-and-ambassador/2017/05/15/530c172a-3960-11e7-9e48-c4f199710b69_story.html?utm_term=.e2c369b53665.
Page 137-138, “May 16. / In the morning the administration says”: Peter Baker and Julie Hirschfeld Davis, Trump Defense Sharing Information on ISIS Threat with Russia, New York Times (May 16, 2017), https://www.nytimes.com/2017/05/16/us/politics/trump-intelligence-russia-classified.html.
Page 138, “In the afternoon the Times reports”: Michael S. Schmidt, Comey Memo Says Trump Asked Him to End Flynn Investigation, New York Times (May 16, 2017), https://www.nytimes.com/2017/05/16/us/politics/james-comey-trump-flynn-russia-investigation.html.
Page 138, “The Constitution isn’t a suicide pact”: For example, dissenting in Terminiello v. Chicago, 337 U.S. 1, 37 (1949), Justice Robert H. Jackson wrote, “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Usually the suicide-pact sentiment is used to denigrate claims to individual rights that the government believes will limit its ability to protect the public.
Page 139, “In 2009 Congress passes a law”: The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249.
Page 139-140, “The first federal prosecution under that law”: U.S. Department of Justice, Office of Public Affairs, Mississippi Man Pleads Guilty to Hate Crime for Murdering Transgender Victim Because of Her Gender Identity (December 21, 2016), https://www.justice.gov/opa/pr/mississippi-man-pleads-guilty-hate-crime-murdering-transgender-victim-because-her-gender; U.S. Department of Justice, Office of Public Affairs, Mississippi Man Sentenced to 49 Years in Prison for Bias-Motivated Murder of Transgender Woman in Lucedale, Mississippi (May 15, 2017), https://www.justice.gov/opa/pr/mississippi-man-sentenced-49-years-prison-bias-motivated-murder-transgender-woman-lucedale.
Page 140, “May 17. / Rod Rosenstein names Robert Mueller as special counsel”: Rebecca R. Ruiz and Mark Landler, Robert Mueller, Former F.B.I. Director, Is Named Special Counsel for Russia Investigation, New York Times (May 17, 2017), https://www.nytimes.com/2017/05/17/us/politics/robert-mueller-special-counsel-russia-investigation.html.
Page 140, “Chelsea Manning is free.”: Charlie Savage, Chelsea Manning Released and ‘Looking Forward’ to Freedom, New York Times (May 17, 2017), https://www.nytimes.com/2017/05/17/us/politics/chelsea-manning-released-from-prison.html.
Page 140, “The State Department denies visas”: Clark Mindock, Gay Chechens Denied US Visas After Attempting to Flee Horrors of Government Crackdown, The Independent (May 17, 2017), https://www.independent.co.uk/news/world/americas/chechnya-gay-men-us-visas-denied-trump-government-crackdown-flee-536-a7741901.html.
Page 140-141, “in Ashbery’s Self-Portrait in a Convex Mirror”: John Ashbery, Self-Portrait in a Convex Mirror, in John Ashbery: Collected Poems 1956-1987, Mark Ford, ed. (Library of America 2008). The poem can also be found on the website of the Poetry Foundation at https://www.poetryfoundation.org/poetrymagazine/browse?volume=124&issue=5&page=3.
Pages 141, “as Yoshino puts it,”: Yoshino, supra, at page 413.
Page 142, “John Hinckley is said to have been / inspired by Travis Bickle.”: Stuart Taylor, Jr., Experts in Hinckley Trial Cite Poems and Puzzlings of Troubled Mind, New York Times (May 30, 1982), https://www.nytimes.com/1982/05/31/us/experts-in-hinckley-trial-cite-poems-and-puzzlings-of-troubled-mind.html.
Page 143, “James Schuyler’s Hymn to Life”: James Schuyler, Hymn to Life, in The Collected Poems of James Schuyler (Farrar Straus Giroux 1993), pages 214-223. The poem can also be found on the website of the Poetry Foundation at https://www.poetryfoundation.org/poetrymagazine/poems/32568/hymn-to-life.
Page 144, “the federal appeals court in Chicago / again relies on Hopkins / in finding”: Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017).
Page 145, “Or as the court puts it:”: Id. at pages 1052-1053.
Page 146, “It’s not just that, as Loretta Lynch alluded to”: Video of the press conference at which Attorney General Loretta Lynch announced the United States’ lawsuit against the state of North Carolina over its anti-transgender statute can be found on C-SPAN at https://www.c-span.org/video/?409316-1/attorney-general-loretta-lynch-responds-north-carolina-lawsuit. “It was not so very long ago that states—including North Carolina—had other signs above restrooms, water fountains, and on public accommodations, keeping people out based on a distinction without a difference.”
Page 147, “or, as June Jordan writes”: June Jordan, On Bisexuality and Cultural Pluralism, in Affirmative Acts: Political Essays, page 133 (Anchor Books 1998). “But that hierarchical urge is antidemocratic, at least, and, I believe, immoral, besides. That hierarchical urge to be The One out of the many (or despite the many), that urge to be The One above The Others cannot be satisfied for any individual or any groups of individuals except at the expense—except at the possibly exterminating expense—of another individual or group.” Id. at page 135.
Page 147, “or, as John Hart Ely put it,”: Ely, supra, at page 86.
Page 148, “after protesters from a collective / called No Justice No Pride”: http://nojusticenopride.org; Perry Stein and Lynh Bui, Capital Pride Parade Disrupted by Protesters; Revelers Rerouted, Washington Post (June 10, 2017), https://www.washingtonpost.com/local/public-safety/captial-pride-parade-disrupted-by-protesters-revelers-rerouted/2017/06/10/97053aa6-4e28-11e7-9669-250d0b15f83b_story.html?utm_term=.7b246f147326.
Page 148-149, “Rufus Wainwright’s song Oh What a World”: Rufus Wainwright, Oh What a World, from Want One (Dreamworks SKG 2003).
Page 149, “In Arbie Orenstein’s biography, Ravel: Man and Musician”: Arbie Orenstein, Ravel: Man and Musician, page 94 (Dover 1991).
Page 150, “and Bill Cosby gets a mistrial”: Graham Bowley, Richard Pérez-Peña, and John Hurdle, Bill Cosby’s Sexual Assault Case Ends in a Mistrial, New York Times (June 17, 2017), https://www.nytimes.com/2017/06/17/arts/television/bill-cosby-trial-day-11.html.
Page 150, “In the middle of pride month / the Department of Commerce”: David Mack, Commerce Department Removes Sexual Orientation and Gender Identity from Equal Employment Policy, Buzzfeed (June 15, 2017), https://www.buzzfeed.com/davidmack/commerce-department-eeo-statement-sexual-orientation-gender?utm_term=.kwLJr8QQ88#.sx51VQZZQQ.
Page 150, “Malevolence, as Ben Wittes puts it,”: Benjamin Wittes, Malevolence Tempered by Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas, Lawfare (January 28, 2017), https://www.lawfareblog.com/malevolence-tempered-incompetence-trumps-horrifying-executive-order-refugees-and-visas.
Page 151, “the 26th the anniversary of its rulings”: Lawrence v. Texas, 539 U.S. 558 (2003); United States v. Windsor, 570 U.S. 744 (2013); Obergefell v. Hodges, 135 S.Ct. 2584 (2015). June 26, 2017 was a momentous day for same-sex parents. In Pavan v. Smith, 137 S.Ct. 2075 (2017), the Supreme Court ruled that a married same-sex couple cannot be denied the right to have both parents listed on their child’s birth certificate.
Page 152, “Later he’s quoted by the AP:”: Sadie Gurman, Justice Dept. Group Honors Transgender Teen in Bathroom Case, U.S. News & World Report (June 28, 2017), https://www.usnews.com/news/politics/articles/2017-06-28/lgbt-group-at-justice-department-honors-transgender-teen.
Page 152, “Tweets in the morning”: Julie Hirschfeld Davis and Helene Cooper, Trump Says Transgender People Will Not Be Allowed in the Military, New York Times (July 26, 2017), https://www.nytimes.com/2017/07/26/us/politics/trump-transgender-military.html.
Page 153, “the Pentagon appears to have been caught off guard”: Helene Cooper, Transgender People Can Still Serve for Now, U.S. Military Says, New York Times (July 27, 2017), https://www.nytimes.com/2017/07/27/us/politics/transgender-military-trump-ban.html.
Page 153, “Same day, the government files a brief”: Brief for the United States as Amicus Curiae, Docket No. 417, Zarda v. Altitude Express, Inc., Case No. 15-3775 (2d Cir., filed July 26, 2017).
Page 153, “in Loving v. Virginia”: Loving v. Virginia, 388 U.S. 1 (1967).
Page 153, “At oral argument in Loving, the lawyer for Virginia says,”: An audio recording of the oral argument can be found at https://apps.oyez.org/player/#/warren13/oral_argument_audio/15451. The quotations from the recording are based on my own transcription.
Page 154, “Such laws, the Court noted,”: Loving v. Virginia, 388 U.S. 1, 11-12 (1967).
Page 155, “the federal court in Phoenix / finds Arpaio guilty of criminal contempt of court.”: Findings of Fact and Conclusions of Law, Docket No. 210, United States v. Joseph M. Arpaio, No. 2:16-CR-01012-1-SRB (D. Ariz., July 31, 2017).
Page 155, “when he says that North Korea”: Peter Baker and Choe Sang-Hun, Trump Threatens ‘Fire and Fury’ Against North Korea if It Endangers U.S., New York Times (August 8, 2017), https://www.nytimes.com/2017/08/08/world/asia/north-korea-un-sanctions-nuclear-missile-united-nations.html.
Page 155, “Three days later / white supremacists and nazis”: Hawes Spencer and Sheryl Gay Stolberg, White Nationalists March on University of Virginia, New York Times (August 11, 2017), https://www.nytimes.com/2017/08/11/us/white-nationalists-rally-charlottesville-virginia.html; Cheryl Gay Stolberg and Brian M. Rosenthal, Man Charged After White Nationalist Rally in Charlottesville Ends in Deadly Violence, New York Times (August 12, 2017), https://www.nytimes.com/2017/08/12/us/charlottesville-protest-white-nationalist.html; Christina Caron, Heather Heyer, Charlottesville Victim, Is Recalled as ‘a Strong Woman,’ New York Times (August 13, 2017), https://www.nytimes.com/2017/08/13/us/heather-heyer-charlottesville-victim.html; Frances Robles, Two Men Arrested in Connection with Charlottesville Violence, New York Times (August 26, 2017), https://www.nytimes.com/2017/08/26/us/charlottesville-arrests.html.
Page 155, “He says there’s blame on both sides,”: Michael D. Shear and Maggie Haberman, Trump Defends Initial Remarks on Charlottesville; Again Blames ‘Both Sides,’ New York Times (August 15, 2017), https://www.nytimes.com/2017/08/15/us/politics/trump-press-conference-charlottesville.html.
Page 156, “I think of Justice Harlan’s dissent in Plessy v. Ferguson:”: Plessy v. Ferguson, 163 U.S. 537, 560 (1896) (Harlan, J., dissenting).
Page 156, “He has a campaign rally coming up in Phoenix,”: Noah Weiland and Maggie Haberman, White House Bracing for an Angry Reception in Phoenix, New York Times (August 20, 2017), https://www.nytimes.com/2017/08/20/us/politics/white-house-bracing-for-an-angry-reception-in-phoenix.html.
Page 156, “she says it won’t be discussed:” David Nakamura, Trump Will Not Pardon Former Arizona Sheriff Joe Arpaio at Phoenix Rally, White House Says, Washington Post (August 22, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/08/22/trump-to-inspect-predator-drone-meet-with-marines-at-yuma-ariz-border-station-ahead-of-rally/?utm_term=.46c35191543f.
Page 156, “at the rally he asks,”: Madison Park, Trump Hints at Potential Pardon for Ex-Sheriff Joe Arpaio, CNN (August 23, 2017), https://www.cnn.com/2017/08/22/politics/joe-arpaio-sheriff/index.html.
Page 156, “August 25. / A Friday. Hurricane Harvey”: Morgan Winsor, Harvey Hammers Rockport, Texas; 1 Dead, ABC News (August 26, 2017), https://abcnews.go.com/US/hurricane-harvey-preventing-rockport-texas-emergency-crews-responding-calls/story?id=49433327.
Page 156-157, “when he formally orders the transgender military ban,”: Military Service by Transgender Individuals: Memorandum for the Secretary of Defense [and] the Secretary of Homeland Security, 82 Federal Register 41319 (August 30, 2017) (announcing presidential memorandum of August 25, 2017).
Page 157, “Then he pardons Joe Arpaio.”: Julie Hirschfeld Davis and Maggie Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, New York Times (August 25, 2017), https://www.nytimes.com/2017/08/25/us/politics/joe-arpaio-trump-pardon-sheriff-arizona.html.
Page 157, “North Korea tests a hydrogen bomb.”: Ian Sample, Did North Korea Just Test a Hydrogen Bomb?, The Guardian (September 2, 2017), https://www.theguardian.com/world/2017/sep/03/did-north-korea-just-test-a-hydrogen-bomb.
Page 157, “John Ashbery dies at the age of 90.”: David Orr and Dinitia Smith, John Ashbery Is Dead at 90; A Poetic Voice Often Echoed, Never Matched, New York Times (September 3, 2017), https://www.nytimes.com/2017/09/03/arts/john-ashbery-dead-prize-winning-poet.html.
Page 157, “Time does not finish a poem.”: Jack Spicer, Imaginary Elegies IV, in My Vocabulary Did This to Me: The Collected Poetry of Jack Spicer, edited by Peter Gizzi and Kevin Killian, page 48 (Wesleyan University Press 2010).
Page 157, “Surely some revelation is at hand.”: William Butler Yeats, The Second Coming, in Easter 1916 and Other Poems, page 60 (Dover Thrift Editions 1997). The poem can also be found on the website of the Poetry Foundation at https://www.poetryfoundation.org/poems/43290/the-second-coming.
Page 157, “Or W.G. Sebald in The Rings of Saturn:”: W.G. Sebald, The Rings of Saturn, translated by Michael Hulse, page 24 (New Directions 1999).
Page 157-158, “Online you can find the song Under Pressure”: https://m.youtube.com/watch?v=uMQb9LCNGxs.
Page 158, “The government files a brief / in a case called Masterpiece Cakeshop,”: Brief for the United States as Amicus Curiae Supporting Petitioners, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Case No. 16-111 (U.S. Supreme Court, filed September 7, 2017), https://www.justice.gov/sites/default/files/briefs/2017/09/08/16-111tsacunitedstates_0.pdf. The facts of the case can be found in one of the Supreme Court briefs filed by Charlie Craig and David Mullins: Brief for Respondents Charlie Craig and David Mullins, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Case No. 16-111 (U.S. Supreme Court, filed October 23, 2017), http://www.scotusblog.com/wp-content/uploads/2017/11/16-111_bs-cc-and-dm.pdf.
Page 159, “Or, as the government puts it,”: Brief of the United States, supra, pages 10-11.
Page 160, “The brief ends with an argument”: Id. at pages 32-33.
Page 160, “Remarkably the brief leaves out the very next sentence:”: Id. at page 32; Obergefell v. Hodges, 135 S.Ct. 2584, 2602 (2015). I’m indebted to Mark Joseph Stern at Slate, who noticed the selective quotation from Obergefell. Mark Joseph Stern, Cake Wreck: The Trump Administration’s Brief in the Supreme Court’s Anti-Gay Baker Case Is Cynical, Dishonest, and Embarrassing, Slate (September 8, 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/doj_s_cynical_embarrassing_brief_in_the_supreme_court_s_anti_gay_baker_case.html.
Page 160-161, “a political named Hashim Mooppan”: An audio recording of the oral argument can be found on C-SPAN at https://www.c-span.org/video/?433984-1/zarda-v-altitude-express-oral-argument. The quotations from the recording are based on my own transcription.
Page 161-162, “As Kate Manne writes in Down Girl: The Logic of Misogyny”: Kate Manne, Down Girl: The Logic of Misogyny, page 72 (Oxford University Press 2017).
Page 163, “Sessions formally reverses the government’s position”: Attorney General Jeff Sessions, U.S. Department of Justice, Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (October 4, 2017), https://www.justice.gov/ag/page/file/1006981/download.
Page 163, “Two days later he issues the guidance on religious liberty”: Attorney General Jeff Sessions, U.S. Department of Justice, Federal Law Protections for Religious Liberty (October 6, 2017), https://www.justice.gov/opa/press-release/file/1001891/download.
Page 165, “The Times prints its Harvey Weinstein story on October 5,”: Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, New York Times (October 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html.
Page 165, “The first indictments, Manafort and Gates, / the guilty plea of George Papadopoulos,”: Matt Apuzzo, Adam Goldman, Michael S. Schmidt, and Matthew Rosenberg, Former Trump Aids Charged as Prosecutors Reveal New Campaign Ties with Russia, New York Times (October 30, 2017), https://www.nytimes.com/2017/10/30/us/politics/paul-manafort-indicted.html.
Page 165, “and a federal court here in DC”: Jane Doe v. Donald J. Trump, 275 F. Supp. 3d 167, 210 (D.D.C. 2017).
Page 165, “I read a book about depression.”: Andrew Solomon, The Noonday Demon: An Atlas of Depression (Scribner 2011).
Page 166, “The world is all cut-outs,”: James Schuyler, Hymn to Life, supra.