Sex change doesn't end spousal support

This one should be a no-brainer: a Florida court has rejected an ex-husband's bid to end his support obligations on account of the fact his former wife has become a man. The ex-husband had first argued that the person to whom he owed the obligation no longer exists (not quite, sir), and then argued that his paying alimony (as it's still called there) to a man was against the State's public policy against recognizing same-sex marriage.

Unfortunately, the court reached this inevitable result by way of unnecessarily bad reasoning -- albeit reasoning seemingly compelled by state precedent. To wit, Florida does not recognize the possibility of changing one's sex, per Kantaras v. Kantaras, 884 So.2d 155 (Fla. App. 2004).

Accordingly, the Lambda Legal attorneys representing the former Mrs. Roach, now Mr. Silverwolf, called this

a good news, bad news decision. While the end result of the court ruling is good for our client, part of how we got there is bad for the transgender community as a whole in Florida. This is the precise example of why it is damaging to chain people to the gender on their birth certificate. It's wrong to call our client a woman when Julio is a man.

The conclusion that sex change is legally impossible is simply not necessary to decide a case like this. Even once one accepts that the former wife is now male, this should not invalidate the support obligation. First, the support order itself contemplates only limited circumstances in which the obligation ceases, none of which have occurred. And second, a gender transition after divorce cannot invalidate a marriage ex post facto. Though no court has squarely addressed the question, it is plain as day that, like any other prerequisite for marriage, the sex criteria must be met at the time of marriage, but a change of circumstance later has no effect.

If you are a minor who marries with your parent's consent, and after the wedding your folks have regrets, that does not invalidate your marriage. If you marry while competent but become incompetent, that does not invalidate your marriage. And if you marry while female and become male, that does not invalidate your marriage. The same result should be found whether the transition occurs during the marriage or after divorce -- or else there are a lot of potentially invalid marriages out there.

This case is the natural inverse of M.T. v. J.T., 355 A.2d 204 (N.J. Super 1976), in which a husband could not escape his obligations on the basis that his ex-wife had once (prior to their marriage) been male. Because the sex change there occurred before the marriage, the court was called upon to decide its validity and did so. Because the marriage was valid, the support obligation was, too. The same is true in this case (where the transition is in the "opposite" direction), precisely because the gender transition occurred after the marriage.

Is sex a BFOQ for exotic dancing?

Title VII of the federal Civil Rights Act states that otherwise impermissible discrimination is not prohibited "in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." Ever since I first began to study Title VII, I have wondered about how the BFOQ exception should apply to exotic dancing.

In a 1999 article, Margot Rutman described how dancers' protections against age, race and national origin discrimination are undercut by club owners' ability to characterize an employment action as based on beauty or style. See Exotic Dancers' Employment Law Regulations, 8 Temp. Pol. & Civ.Rts. L.Rev. 515 (1999). Unless a club really puts its foot in its mouth, or systematically discriminates for some time, that defense will be very difficult to try on the facts.

But at least it's clear that such claims can be made. What about sex discrimination?

As far as I know, there is no case law squarely addressing whether exotic dancing clubs can discriminate on the basis of sex, but dicta in some court decisions treat the issue as a paradigmatic no-brainer. Consider the oft-cited decision in Wilson v. Southwest Airlines, 517 F.Supp. 292 (N.D. Tex. 1981), which torpedoed the flirty-attendants-in-hot-pants, Airline-That-Loves-You business model on which Southwest was built. There, the court held that sex appeal, and specifically female sex appeal, was not an essential part of the job of a flight attendant, despite being preferred by customers and being a key part of Southwest's particular business plan. By way of contrast, the court mused that:

in jobs where sex or vicarious sexual recreation is the primary service provided, e. g. a social escort or topless dancer, the job automatically calls for one sex exclusively; the employee's sex and the service provided are inseparable.

In support of this conclusion, it cited two unpublished 1971 cases of the New York Human Rights Appeals Board, which concerned age discrimination but stated in dicta, without explanation, that sex was a BFOQ for being a Playboy Bunny at the Playboy Club. This was evident because, according to the Wilson court, "female sexuality [is] reasonably necessary to perform the dominant purpose of the job which is forthrightly to titillate and entice male customers."

The distinction drawn between flight attendants and exotic dancers or Playboy Bunnies has always troubled me. A quick read of the Wilson facts makes clear that in a very significant sense Southwest Airlines was also selling "female sexuality" to its largely male clientele. But the Wilson court held that the essense of the flight attendant job lies in the attendant's "mechanical, non-sex-linked duties." Female sex appeal was simply "the manner of job performance, not the job performed."

Now, it would be mere sophistry to argue that an exotic dancer's duties are merely "mechanical," for indeed the essence of his or her job is not just dancing but sexual entertainment. Sexiness (of a sort) is certainly "the job" and not "the manner."

But is femaleness also an essential feature of the job? Consider that male and female exotic dancers, while typically working in separate clubs, perform essentially the same job. Clearly both men and women can (a) dance, (b) strip, and (c) be sexy. The only thing men cannot do is be sexy in the eyes of a straight male customer.

(This, of course, is a convenient overstatement. The success, indeed the mere existence, of the film 300 itself proves that ostensibly heterosexual males often derive enjoyment from blatant displays of the male body.)

The Wilson dictum, then, is founded on two basic assumptions: first, that exotic dance clubs by their nature must cater to heterosexual males (or alternatively, that the world contains two kinds of clubs -- gay and straight ones -- and the two are fundamentally distinct and irreconcilable); and second, that heterosexuality (or, in a few clubs, homosexuality) is far more than a mere customer preference and indeed defines sexual entertainment.

In other words, exotic dancing at its essence is pleasing straight men. Or, to the extent that there may be more than one audience out there that wants more than one thing, each audience wants only one thing, and each club can attract only one audience.

This is, of course, an accurate reflection of the industry as it exists today. With very few exceptions, clubs do not offer a mix of male and female dancers in the same venue. (The few that do specifically market themselves to straight women and men respectively; it is not just heterosexuality at work here, but homophobia, as straight male patrons are assumed to be repelled by the presence of gay male patrons.) Imagine the reaction in your average Crazy Horse Saloon or Diamond Men's Club if, between Amy the Blonde Princess and Cherise the Dark-Eyed Beauty a handsome man in a g-string appeared on stage.

But isn't that a quintessential example of customer preference at work? And what about the increasing number of female patrons at these clubs? And what about those few exceptional clubs that offer male and female dancers on separate stages? And might there not be some bisexual or bi-curious patrons, or potential patrons, of both sexes who would prefer a combination of male and female dancers? Sure, the tried-and-true all-girl approach might make more money, but that in itself does not a BFOQ make under Wilson.

To be sure, it's hard to imagine the male dancer who would want to work in an all-female club, or vice versa. A serious challenge to sex discrimination in exotic dancing would presumably lead to a downturn in business for clubs in the immediate short term, and a radical transformation of adult entertainment in the longer term. But would that be so bad? Might that not produce some benefits in terms of sex equality?

In reality, this issue may never be litigated, and if it is, courts are likely to hold fast to the assumptions implicit in Wilson. If nothing else, though, thinking about BFOQ in the context of exotic dancing can serve to illuminate both the rigid way we're in which we're used to thinking about sexuality, sexiness and gender; as well as the potentially hazy line-drawing inherent in the BFOQ doctrine.

We're still litigating a 1998 porn law?

Looks like the downright silliest waste of Federal resources of the new century -- that is, the government's tireless efforts to defend the never-enforced Child Online Protection Act of 1998 -- is nearly at an end with today's meticulous district court decision permanently enjoining COPA. Tip of the hat to Nerve.com -- one of an all-star cast of sex-positive plaintiffs -- for their fascinating, quirky, in-depth coverage of last year's trial in the case. Up for one more round of appeals, Alberto?

Briggs Initiative goes Polish?

I see an EU smackdown in the works: Poland is thinking about banning queers from teaching. With any luck, though, it'll just galvanize the gay community.

Isn't "Bong Hits 4 Jesus" fun to say?

You've probably heard ten times this week about Morse v. Frederick, just argued before the Supremes. It's perceived by many as being a silly case -- and certainly, a case involving a real message rather than a meaningless stunt might've made a nicer vehicle for the legal issues at stake. But "Bong Hits" is what we've got, and it's important.

What intrigues me, however, is that Morse seems such a perfect companion to Harper v. Poway Unified School District, which the Court will be hearing later this term. Poway, which I've mentioned before, concerns a student disciplined for wearing a vitriolic anti-gay t-shirt. And the two cases provide the opportunity for some much-needed clarity on the twin aspects of the landmark Tinker v. Des Moines decision, which established that First Amendment rights don't stop "at the schoolhouse door." Tinker contemplated two permissible grounds for limiting student speech: disruptions to the school's educational function, and interference with the rights of others. The Ninth Circuit controversially upheld the Poway school's action based on the rights-of-others prong; the same court held for the student in Morse because the school had failed to meet the disruption prong.

The rights-of-others prong has pretty much lain dormant all these years; whether you agree with the Ninth Circuit's holding or not, it's about time to get some guidance on what it means. By contrast, the disruption prong has been very much alive, inasmuch as school administrators are always using it -- and getting sued over it. The general public perception, and that of administrators (of course), has been that the reach of the disruption prong is very broad indeed -- so much so that a lot of folks are surprised to hear that students have First Amendment rights at school at all. Too broad a view of the disruption prong pretty well eviscerates Tinker, but defining the reach of either prong is bound to bedevil the Court.

While many take the same side (student or school) in both cases -- including, interestingly, social conservative groups, to whom student speech is increasingly important in relation to anti-abortion and anti-gay messages -- I think the relevant facts and (in some respects) the relevant principles are quite different, and thus the results should differ. (For one thing, both the room for abuse and the inclination to abuse seem to me much greater with the disruption rationale.) In any event, when these decisions come down one will want to read them in conjunction, I think, to fully assess the legacy of Tinker. Assuming you haven't had too many bong hits with Jesus.

Marriage debate continues in France

Marriage equality continues to be a hot issue (although far from the top issue) in the French presidential elections, following Tuesday's unsurprising ruling by the Court de Cassation, which held the 2004 civil marriage of two men from the city of Belges to be illegal. This follows that court's decision last month that a nonbiological lesbian parent could not adopt her daughter.

Without getting too much into French politics, the Socialist candidate (consistently running a close second in the polls) promises to see a marriage equality bill introduced, while the apparent center-right front runner opposes such a measure.

The couple that just lost in the Court de Cassation have promised to appeal to the European Court of Human Rights. That court has thus far refused to recognize the extension of European Convention Article 12 (right to marry) to same-sex couples, but it is certainly conceivable that in the future it could - as indicated, for example, by that court's gradual evolution of view with regard to transsexualism.

Alleged DC madam denies charges, aims to disclose clients

Via Transcending Gender, I've been reading about the case of Deborah Palfrey, accused Washington, D.C. madam. Palfrey claims she was running a legal "fantasy escort" service that did not provide actual sex for pay. At the same time, she is talking about selling her client list -- and is now the prosecutor is trying to have her gagged to protect those clients, including, allegedly, prominent political types such as Dick Morris (hey, why not? he's admitting buying sex before).

Without having studied the details of this case -- info on the Web is relatively scant at this point -- it's not at all clear whether Palfrey's defense is credible. On the one hand, lots of folks who were running prostitution claim they were only providing legal services. On the other hand, there are plenty of adult businesses out there, from dominatrices to escorts, who do provide personalized erotic services within the confines of the law, and who fall occasionally victim to authorities' attempts to twist the law or entrap them. The devil is often in the details, and sometimes it comes down to he-said, she-said. It'll be interesting to see how this plays out.

A completely separate and also interesting issue is the proposed protective order. Though the motion doesn't say just what type of information they're concerned about, it looks like an effort to protect the reputations of, in some cases, prominent men in Washington (be they consultants, businessmen, or public servants). Whether the court can intervene to protect their privacy, or whether the prominence of certain clients creates matters of public concern covered by the First Amendment, remains to be seen. I personally don't know if there have been cases quite like this before -- I'm betting there have -- or for that matter whether a First Amendment issue will come to the forefront here, but that too will be interesting to see.

DADT bedevils Air Force rape prosecution

It's been clear for some time now that Congress's "Don't Ask, Don't Tell" policy towards queer servicemembers has perverse, and serious consequences. But it never occurred to me, or probably to almost anyone, that on top of everything else is might complicate the investigation and prosecution of crimes within the armed forces. That, apparently, is just what has happened in the case of an Air Force officer accused of raping fellow servicemen. As this news report indicates, where sexual crimes are concerned DADT may give victims and witnesses disincentives to report and cooperate with investigators; lead innocent accused to jeopardize their defense by lying; and give guilty accused convenient explanations for their lies.