DOMA Didn’t End, It Wasn’t Struck Down, and Stop Saying That It Was

Unless you have been living under a rock the last couple of days, you likely know that the Supreme Court of the United States (SCOTUS) recently struck down part of the Defense of Marriage Act (DOMA). However, if you have been reading about the decision in many online sources, you may have been misled.

In many of the news outlets that I have been looking at over the last 48 hours, I have seen one HUGE mistake being reported again and again. This mistake is news outlets reporting that DOMA has been repealed or struck down.

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Sadly, this isn’t what actually happened. The ruling that the SCOTUS handed down did not strike down the entirety of DOMA, but rather, the ruling struck down a specific section within the larger law. Specifically, the ruling by the SCOTUS struck down Section 3.

    (a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

`Sec. 7. Definition of `marriage’ and `spouse’

    `In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.
    (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
        `7. Definition of `marriage’ and `spouse’.’.

Assuming that your legalese is up to scratch, you know that Section 3 of DOMA was the section of the law that was being used to stop same-sex couples (i.e. those who have been legally married in a state which allows same-sex marriage) from accessing the same benefits that are given to heterosexual couples. So, by striking down this section, the SCOTUS paved the way for a lot of really positive things… in the states that have legal same-sex marriage.

In these states, the federal government can no longer deny access to the benefits of marriage based on the fact that the marriage is between two members of the same-sex. This means that, unlike the day before the decision, immigration, pension, healthcare, and tax benefits have to be extended to same-sex couples in the same way that they are in heterosexual couples.

Needless to say, this is great news, even if it only truly impacts a select subset of the LGBT subset of the population of the US.

However, what would have been ever greater news would be if the entirety of DOMA was struck down. If this were the case, not only would Section 3 (the federal ban on benefits) be removed from the books, but so would Section 2.

    (a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:

`Sec. 1738C. Certain acts, records, and proceedings and the effect thereof

    `No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’.
    (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
        `1738C. Certain acts, records, and proceedings and the effect thereof.’.

This section of DOMA is the section that bars the federal government from enacting any legislation that would open the ability to marry up to same-sex couples. Basically, it makes it so that same-sex marriage, as it is at the moment, must be won on a state-by-state basis.

Should this section had fallen to the pen of the SCOTUS as well, the federal government could have, and likely would have, drafted a bill aimed at making same-sex marriage legal nationwide. While this would not have likely been successful (as you could imagine given the Republican controlled House), it would have almost definitely been stalled for the remainder of the Obama presidency, giving the Democrats strong political fire power come election time.


RCMP Harass and Threaten Trans Women… again

[Image] The outdoor sign of the RCMP

Image by: waferboard

On Thursday, two Canadian Transgender Artists, Nina Arsenault and Lexi Sanfino, were arrested after their WestJet flight landed in Edmonton, Alberta. During this flight, Lexi Sanfino took off her top and walked topless down the aisle of the plane. When the plane arrived at its destination, Sanfino was taken into custody for causing a disturbance while Arsenault was detained but released without charge.

Here in Canada, laws against women baring their breasts are scantly used. For the most part, police and legislators alike understand that any woman arrested for baring her breasts would likely challenge the law all the way up to the Supreme Court of Canada. Given that Canada’s Charter of Rights and Freedoms promises equal protections under the law based on sex, the law in question (and all laws like it in Canada) would most likely be ruled without standing, and thus, be struck down.

Because of this, police officers use other laws to cover their butts. In this case, they used the law against “causing a disturbance,” a catch-all that allows police to arrest anyone who they feel is doing something they don’t like. Usually, when the police resort to catch-all laws to arrest people, the line in the sand between fair policing practices and police abuse of power has already been crossed.

In this case, that is exactly what happened. In further conversations with Nina Arsenault, news sources such as the Huffington Post and The Toronto Star found out that, while in police custody, Nina had her camera confiscated, had pictures and videos (including those of the arrest) deleted, and both women were verbally harassed by police. Given that the arresting officers were members of the RCMP and given the RCMP’s track record of harassment, this isn’t surprising to me. However, the comments (allegedly) made by the officers still warrant examination.

According to the Toronto Star,

Arsenault and Sanfino said they were taken to an RCMP holding cell, where Arsenault claims an officer took her camera and deleted photos and a video of the arrest.

They claim the officers began referring to them as males after seeing their passports.

“They were addressing us by male pronouns,” said Arsenault. “I was like, “OK dude, I understand that legally it says ‘M’ on our passports, but we present as women. . . . Everyone knows I’ve had a lot of surgical procedures to feminize myself.”

“They said, ‘Just so you know, we might have to put you two in the male prison.’ ”

Regarding the alleged comment, Sanfino said, “All I kept thinking is they are threatening me with one hell of a good time.”

Arsenault alleges an officer questioned her about her operations.

“He said, ‘So have you had the final sex change surgery? Do you have the original parts down there? Did you get something new?’ I said, ‘I don’t think that has anything to do with my arrest.’

If the conversation between police, Sanfino, and Arsenault took place the way that Arsenault reported to the Toronto Star, there is a (yet another) major issue with the RCMP. While it is not exactly uncommon for people to ask trans people about what is between their legs, it is still something that is deeply problematic. In this case, however, it wasn’t just that someone was breaching social decorum to ask questions that were transphobic and offensive, but a police officer (someone with training in how to lawfully arrest and detain people) was asking them.

However, this is not the worst part of the conversation, not by a long way. The worst part of the conversation comes when the police officer openly threatens to place these two Trans women in Male prison environments. In doing so, these officers have to have a clear understanding that this would put the women at greatly increased risk of sexual violence, assault, or even murder.

If the police officers in this conversation didn’t know that this were the case, this wouldn’t have been a threat, it wouldn’t have even needed to be mentioned. However, in mentioning that they could well lock these women up in male lock-up, these officers made it extremely clear that they wished to use their power to harass, embarrass, debase, and degrade these women.

This shows, yet again, that police services throughout Canada do not have the training or general knowledge to appropriately handle the transgender population. Further, this shows, yet again, why legislation (such as Bill C-279) is needed to ensure that those in positions of power do not continue to use their power to deny opportunity, harass, degrade, assault, or threaten trans people as a matter of business as usual.