Fight of the Century

by Michael Chabon

  I think we should all ask ourselves: Who’s your villain? Is it the CEO of Monsanto? Rachel Maddow? Mitch McConnell? Vladimir Putin? The neo-Nazi in the newspaper, the immigrant down the street?

  Remember Bill Buckingham, chair of the curriculum committee on the Dover school board? When I started this essay, Buckingham was my villain.

  Then I started trying harder. Buckingham grew up seven miles from Dover in York, Pennsylvania. He joined the Marine Corps as a young man and returned home in 1969—a year of intense racial violence in York—to become a police officer. He went on to become a narcotics detective, during which time, according to the British journalist Matthew Chapman, he was shot at “and peppered once with pellets.” When the strain of that job became too much, he became a supervisor at the York County Prison.

  One day when Buckingham was in his thirties, he confronted two prisoners for passing a written note back and forth. The encounter became physical, and in the process of picking up one of the men and hauling him into a holding cell, Buckingham severely damaged his back. Over the coming months, he would undergo six spine surgeries. After the sixth, according to Chapman, Buckingham said, “When I woke up in the recovery room and they said, ‘rate your pain from one to ten,’ I begged them to kill me.… I told my wife, ‘If I ever talk about back surgery again, you remind me of this, ‘cause I’ll die first.’ ”

  During Buckingham’s convalescence, no one from the Catholic church where he was a eucharistic minister visited him. But a pastor from Harmony Grove Community Church did; they struck up a friendship, and soon Buckingham was born again. Still, back pain hounded him. He started taking OxyContin in 1998 and became addicted. “I’d go out in a snowstorm with my pants and no shirt on and just breathe in cold air because I would get so hot,” he said. “I was high all the time.” Around this time he lost his dog, several relatives, and his parents.

  Did Bill Buckingham truly believe that intelligent design was the theory that best explained the stupendous diversity of life on Earth? By 2005, he had been through addiction treatment twice, and it wasn’t clear he even understood the debate. On the stand, he defined intelligent design as “a lot of scientists believe that back through time something, molecules, amoeba, whatever, evolved into the complexities of life we have now.” That’s a halfway decent definition of evolution, not intelligent design.

  I think that, like all other humans, what Bill Buckingham really craved was community. As a Marine, detective, and corrections officer, he had served on intensely bonded teams of people, and when he became disabled and could no longer work, what did he have left to give his life meaning and purpose? His church. When he felt that one of his community’s central beliefs was being threatened, in a public institution right down the street, Buckingham stepped up to defend it. Isn’t that a value pretty much every person involved in Kitzmiller—and every person reading this book—can relate to?

  On day sixteen of the trial, when Buckingham took the stand, a lawyer for the plaintiffs asked him to recount an interview he once gave to a Fox affiliate in which he said “creationism” when he meant to say “intelligent design”:

  BUCKINGHAM: And what happened was when I was walking from my car to the building, here’s this lady and here’s a cameraman, and I had on my mind all the newspaper articles saying we were talking about creationism, and I had it in my mind to make sure, make double sure nobody talks about creationism, we’re talking intelligent design. I had it on my mind, I was like a deer in the headlights of a car, and I misspoke. Pure and simple, I made a human mistake.

  Q: Freudian slip, right, Mr. Buckingham?

  BUCKINGHAM: I won’t say a Freudian slip. I’ll say I made a human mistake.

  Buckingham’s behavior on the Dover school board was dogmatic and dangerous, but it wasn’t impossible to understand. Before he was entry #43 in the Encyclopedia of American Loons, before he was an addict or a fundamentalist or a creationist or a villain, he was a human, Homo sapiens, just like the rest of us, each of us 99.9 percent identical in genetic makeup to every other, each of us related to every other living thing on Earth by a trillion ancient and deeply beautiful threads.

  The person you think you will never understand in a million years? The villain in the dark room? For every one thousand “letters” that make up one of your DNA sequences, he has 999 that are the exact same. Evolution has given us all the same tools; we all live in the same matrix of memory, fear, and perception; we all yearn to belong; we all use story and ritual to bind the world with meaning. And before each of us goes extinct, it would serve us all well to remember that.

  SCHROER V. BILLINGTON (2008)

  In 2004, the Library of Congress rescinded Diane Schroer’s job offer on learning that she was in the process of transitioning from male to female. In Schroer v. Billington, the ACLU, acting as Schroer’s counsel, urged the court to find that the library’s actions violated Title VII, which prohibits employment discrimination on the basis of sex. Despite multiple appellate courts’ prior refusals to find statutory protection for trans employees, the Court agreed with the ACLU, holding that the library’s actions amounted to impermissible sex stereotyping, as well as a violation of the most literal reading of the text of Title VII. Schroer was awarded the maximum damages allowed, marking a significant personal victory and a deeper societal understanding of what it means to be protected from discrimination on the basis of sex.

  You’ve Given Me a Lot to Think About

  CHARLIE JANE ANDERS

  Five days before Christmas 2004, Diane Schroer went to the Library of Congress to talk to her new boss. I picture it being one of those ugly DC winters, where the cold air from the Potomac stings your cheeks and gets inside your winter clothes. Schroer must have been doubly uncomfortable, because she was wearing men’s clothing that no longer felt right. A twenty-five-year decorated veteran, Schroer had just been hired to work at the Congressional Research Service, and she was here to come out as a transgender woman.

  Schroer was already midtransition but hadn’t yet legally changed her name or gender marker, which is why she’d interviewed for the job under her assigned-at-birth name. And she already had facial feminization surgery scheduled before the job was supposed to begin. She explained all of this to the CRS’s Charlotte Preece, who took in all this information and then just said, “You’ve given me a lot to think about.”

  Preece immediately set about the process of pulling the plug on Schroer’s job offer, on the (probably bogus) theory that Schroer would need a whole new security clearance as “Diane” rather than keeping the security clearance she’d already obtained under her old name. Preece also felt that Schroer would be distracted by transitioning, plus both Schroer’s old military contacts and Congress might not take her seriously as a transwoman.

  Preece told Schroer, “You are putting me and CRS in an awkward position.”

  With the help of the ACLU, Schroer sued the CRS for job discrimination—and won, helping to reinforce that transpeople are protected under Title VII’s prohibitions on sex discrimination. This was a big deal, because some other high-profile cases (like Ulane v. Eastern Airlines, 1984) had gone the opposite way, with judges insisting that Title VII applied only to people being discriminated against for their assigned-at-birth gender.

  In Schroer v. Billington, Judge James Robertson dismissed all of the security concerns and other issues as “pretextual.” And he held that discrimination against transpeople was “sex stereotyping,” similar to the famous case of Price Waterhouse v. Hopkins (1989), where a female employee was discriminated against for being insufficiently feminine. He also held that discriminating against someone because that person is transitioning from one sex to another is necessarily sex discrimination prohibited by Title VII. (Robertson compares this situation to a recent convert from Christianity to Judaism facing religious discrimination.)

  A few years after Schroer, in 2011, the ACLU won another major victory for transpeople, striking down a Wisconsin law, the Inma
te Sex Change Prevention Act, which prohibited the use of any state funds to treat transprisoners with hormones or surgery. Wisconsin argued that because prisons were providing antidepressants and counseling to transprisoners, the law should stand. But an appeals court ruled that this would be similar to giving painkillers and therapy to cancer patients and calling it a day.

  When I started to transition, I knew the law wasn’t on my side. California hadn’t yet passed a law protecting transpeople from discrimination, and the courts were spitting out rulings like Ulane v. Eastern Airlines all the time. If I wanted to rent an apartment, get a job, or even just walk on the street in peace, I had to depend on the enlightened goodwill of others. Even now, trans and nonbinary people (especially people of color) have much higher rates of unemployment and homelessness and have much worse access to health care and other services.

  I was turned down for a couple of jobs explicitly for being trans. (In both cases, they had told me over the phone that I had the job, and then they met me in person, and suddenly I had given them a lot to think about.) I was turned down for health insurance too because being trans was a “preexisting condition.”

  So victories like Schroer matter a lot. It matters that employers and prisons will think twice before discriminating against transpeople—but also the reasons for these rulings matter. Judge Robertson’s ruling in Schroer calls out other judges who had ruled that Title VII couldn’t include transpeople for having too narrow a view of the statute’s intent (quoting, of all people, Antonin Scalia, as propounding an expansive view of sex discrimination).

  Back in the day, the ACLU was fighting just for people to appear in public in clothes that were at odds with their assigned gender—because even having a gender-nonconforming appearance was often illegal, under local “cross-dressing” ordinances. And according to ACLU attorney Chase Strangio, these cases were usually fought on the grounds of “free speech” and “due process” rather than sex discrimination.

  For example, in 1985, the ACLU of Hawaii intervened on behalf of a group of LGBTQAI+ people who wanted to hold a Miss Gay Molokai pageant featuring contestants in drag. Some local churches objected, and Maui County mayor Hannibal Tavares decided to ban the pageant, calling it “unwholesome and inappropriate.” But the ACLU fought Tavares in court and won. (The ACLU attorney in this case, Dan Foley, later won same-sex marriage rights in Hawaii and went on to become a judge.)

  I can’t imagine living in a world where I could be arrested just for being in a dress despite the label a doctor slapped on me when I was born. Or when a harmless drag show could be outlawed. (In the Miss Gay Molokai case, people expressed a concern that the mere existence of a drag performance on the island “might spread AIDS.”)

  But I also can’t believe that in my lifetime, there was a moment when my identity as a transwoman could only have been defended as a free speech issue—as if I’m making some kind of a point or trying to express something. It’s not enough for me to exist; I have to be saying something. And if my gender presentation is a form of speech, then I’m clearly giving people a lot to think about just by occupying physical space.

  In the 1990s and early 2000s, the ACLU started taking on more cases involving people being disciplined at work for “being gender-nonconforming,” says Strangio, plus more cases about student rights and employment discrimination. And the ACLU increased its already strong focus on the rights of transprisoners. But it wasn’t until the past several years that the ACLU has been pursuing more sex discrimination cases involving trans-plaintiffs.

  And now that the federal government is trying to erase transpeople in as many ways as possible—making it easier to deny us health care, keeping us from serving in the military, allowing discrimination based on religion, and even working to define gender as based on “biological sex”—these fights are even more important than before. And that’s why I’m proud to be a supporter of the ACLU.

  I’m not here to give you a lot to think about. My body is not a statement, or an inconvenience, or a threat to anyone’s security. My gender isn’t a mistake, or a disruption, or a rebellion against biology, and I don’t need anybody’s tolerance for my self-expression. Put simply, this is about bodies and personhood and transpeople’s right to live our lives. When some bodies are illegal, when people are forced to choose either having basic rights or being their authentic selves, then everybody is diminished.

  Trans and nonbinary people have only recently been recognized as having basic rights, and we’ll have to fight to keep them. But when those battles come, at least we’ll be standing on high ground thanks to the valiance and dedication of those who came before us.

  ADOPTIVE COUPLE V. BABY GIRL (2013)

  In the long history of the United States, there have been few victories for Native tribes. The US genocidal policy transitioned into less obvious means of ethnic cleansing, such as child theft, erasure of Native identity, and physical disruption of tribal communities. The Indian Child Welfare Act (1978) arose as a fitful response to this abuse. Congress heard reams of testimony on how the systematic kidnapping of Indian children caused severe emotional and mental trauma in those taken, and literally stole the future of tribal communities. The ICWA was passed as a direct attempt to end this epidemic of child theft.

  While the ICWA was a victory for Native families, the case of Adoptive Couple v. Baby Girl illustrates how courts can undermine even social or legislative successes. The struggle continues to erect legal and regulatory safeguards for Native sovereignty. The ACLU stands with tribal authorities to contest the abuse and exploitation of Native persons.

  Relative Sovereignty

  A Brief History of Indigenous Family Separation in the United States

  BRENDA J. CHILD

  My son Thomas reported that you peoples tortured him like slave and went without eat for three days, punishment at hard labor just like he was in a penitentiary.

  —Letter from the Omaha Agency to the Flandreau Indian School, 1917

  She hasn’t been home for 3 years and I am real anxious to have her here while we make maple sugar.

  —Letter from the Leech Lake Reservation, Cass Lake, Minnesota, 1924

  This makes my third letter to you in regard of my daughter Margaret. If you would only know how I feel longing to see her. Please take my word send her home to me for a few weeks you know it won’t be long school start just to see her before she goes to school again you know she will be gone good four years.

  —Letter from the Lac Courte Oreilles Reservation, Hayward, Wisconsin, 1925

  It seems it would be much easier to get her out of prison than out of your school.

  —Letter from the Red Lake Reservation, Redby, Minnesota, 1938

  Hopefully, these regulations keep other Indian children, families and tribes from suffering the heartbreak that we experienced over the last 5 1/2 years.

  —Remarks of Dusten Brown, father in the case Adoptive Couple v. Baby Girl

  Family Separation in US History

  Four of the quotes are from letters written by American Indian parents in the Midwest whose children were forced to attend government boarding schools in the early twentieth century and illustrate the immense pain inherent in policies of family separation, which, according to the professed logics of American settler colonialism, was rationalized by American politicians and policymakers as the only way for American Indians to progress from paganism to civilization. For the children sent away, boarding school was not always a path to success, advancement, or steady employment. The metaphor American Indians—both parents and children—often used regarding the boarding school experience was that of incarceration.

  Like other chapters of American Indian history, boarding school history is also a narrative about American settler-colonial desire for control over indigenous land and resources. Boarding schools were part of a plan to support the allotment of Indian reservations. Once they had been dispossessed of their lands, Indian people would need an education suitable to enter Am
erican society as lower-class workers. Reformers and politicians viewed the Indian community as obsolete, as one boarding school administrator commented in 1896: “The school is the only place for the Indian child to learn. He learns nothing of value at home; nobody there is competent to teach. He learns nothing from his neighbors; nobody with whom he associates does anything better than he finds in his own home.” And so family separation became the means to compel Indigenous people to adopt values of individualism and become “US citizens.” From Maine to California, it was a devastating assault on Indigenous families.

  The final quotation at the start of the essay is not from a letter but rather from a father involved in a US Supreme Court case. The speaker is Dusten Brown, a Cherokee citizen and the biological father in one of the most stunning cases of child removal in recent times, Adoptive Couple v. Baby Girl (2013). The case gained widespread media attention and went all the way to the Supreme Court, and in that sense it is remarkable, but there is a chilling ordinariness in the way it replicates patterns of Indian child removals throughout American history. A dual narrative about the powerful exploiting the powerless, first and foremost in the way it illustrates the tyrannical authority of the American government over the sovereignty of Indian nations, but also in the way in which it highlights adult authority in the face of children’s vulnerability. Though it may appear to be less harsh and coercive than nineteenth-century policies, American settler colonialism continues to present itself in cases like this one.