Davina Kotulski

Prop 8 Trial Day 2 Recap: Homosexuality This Is Your Life

Filed By Davina Kotulski | January 13, 2010 9:30 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: David Boies, George Chauncey, John Lewis, marriage equality, Prop 8, Prop 8 trial, Prop. 8, same-sex marriage, Ted Olson, Terry Stewart

Leaving where I left off yesterday in my coverage of the Prop 8 trial, at 12:30 PM we broke for lunch and raced to the cafeteria on the 2nd floor of the federal building. I inhaled some sushi because I couldn't wait for something to cook. I was famished. Can you believe they have a sushi bar at the fed building?

I had lunch with Terry Stewart's wife and daughter, my wife, and plaintiff for the California marriage case John Lewis.

I asked Lewis to tell me what he thought of the case. He said he was struck by the bravery of the plaintiff couples and said "over the past decade the success of the marriage equality movement can be attributed to LGBTI couples, their family and friends, who have spoken the truth of their lives in every possible setting, with co-workers, at rallies, to media, and even going door to door."

Lewis said "This takes tremendous courage and belief in one's dignity to be treated equally under the law and to stand up for your own life and offer that for the betterment of others now and in the future. The plaintiffs offered live testimony of their lives in a court case where they are subjecting themselves to hostile cross examination on the most important part of their lives."

Well said, John!


Thanks to the wonderful generosity of blogger Michael Petrelis who shared his media pass with me, I had the chance to sit in the court room for the afternoon testimony by Yale professor George Chauncey. Stuart Milk, Harvey Milk's gay nephew, was there. Hoping to do an interview with him tomorrow.

Chauncey is a historian who wrote Why Marriage: The History Shaping the Debate Over Gay Equality (2004). He is an internationally sought after speaker whose received numerous awards.

Unfortunately, this is when my computer decided to die.

Chauncey began talking about the widespread discrimination gays and lesbians faced in the public and private arenas, focusing specifically on public accommodation, employment, censorship, stereotyping, and then just plain old discrimination.


Chauncey's testimony was like "homosexuality this is your life!" Remember when you could be arrested for association and sodomy? Remember when we called you a degenerate and made up laws to throw you in jail for simply being in a bar?

Oh, this one's great, remember when vagrancy laws were used to ensnare you in California and getting arrested meant the police would, according to Chauncey:

  • Call your family to "verify your identity" and out you.
  • Call your landlord to confirm that you lived there and out you.
  • Call your employer to verify your employment and out you.

And remember after prohibition when everyone else could drink, laws were passed to keep you out of the bars. Laws that actually prohibited gays and lesbians being served drinks or the bar would lose its liquor license, so you had to hang out at the bars that were operated by organized crime syndicates. Boy, homosexuality, you've come a long way baby, except, because of this, people still affiliate you with and compare you to criminals.


I was shocked to learn today that there were actually signs posted outside of bars that said "If you're gay, stay away" and "It's against the law to serve homosexuals." Hmm, what does that remind me of? And if these offensive signs weren't enough, cops regularly raided bars looking for homosexuals or people that they thought looked like 'em.

According to Chauncey, and you older gays probably remember this (I was in the womb during stonewall, literally), plain-clothed policemen would go into bars and look for "stereotypical cross-gender behavior...women with short hair, masculine clothing, swaggering around the bar in ways that women shouldn't walk..men with colorful clothes, long hair, and greeting each other in a feminine way."

Chauncey even said that one person he interviewed said that one way to tell was if "two men were talking about the opera, something no real man would do."

Chauncey went on to talk about the legacy of police raiding bars and arresting gay people and referenced the Black Cat Bar raid in San Francisco which lost it's license in 1949. There was a court ruling that you couldn't discriminate, but Chauncey said the police continued to crack down on bars with gays.

As we know they continued in 1969 with the Stonewall Inn in NY and even last year in Texas. This legacy, while less frequent Chauncey says, still continues.


2:07 PM

Terry Stewart asked Chauncey, "How did this effect gay people?"

Chauncey - "They were a despised class of people, outlaws in the eyes of the law. They needed to take great care and keep secret that they were gay. It more broadly associated gay life with criminality, the seedy, underbelly of society, and associated it with organized crime."

Chauncey - "WWI military decided to exclude homosexuals and to begin screening procedures to keep gay people out. Not surprisingly, they didn't ferret people out. Most gays, like their peers, wanted to serve their country and were accustomed to passing as straight. Small town gays were very concerned about keeping that hidden."


Chauncey stated that the military had various procedures in place to keep homosexuals out and that when discovered they were discharged. Sound familiar?

The consequences for those who were discovered to be gay either before or during military service were profound.

Chauncey - "It was humiliating. They were denied benefits under the GI bill - even soldiers who served in combat and were kicked out because they were discovered to be gay. They were prohibited from benefits for housing, education, employment, etc. People wanted to see your discharge papers and find out what you were fired for before they hired you, which did not help them."

Chauncey - "The War was an important moment of bringing people together." He mentioned WWII. "Think of the classic WWII movie- The Jew from Brooklyn, the Irish guy from Jersey, the Italian from San Francisco." Gay men were not able to be a part of this and then were seen as suspect because they were not a part of protecting the country.

The following fact is submitted for evidence: "Over the first 10 years of Don't Ask, Don't Tell, it cost the Defense Department 95 million dollars."


Chauncey went on to talk about what happened after WWII. Things got worse for gays.

He said that in 1950, Joseph McCarthy wanted the names of communists and sex perverts. This led to the formation of top congressional committees on the employment of homosexuals and other sex perverts in Government.

A document entitled something like On the Employment of Homosexuals, Sex Perverts and Communists is submitted to evidence.

Chauncey said that approximately "1,700 people had been prohibited from getting federal jobs" and noted that the State Department "dismissed more suspected homosexuals than communists."

He said that President Eisenhower also created a policy that homosexuals could not work for the government, be in the military, or work for private companies who had contracts with the government, and that they had to fire their gay employees.

In 1975, Carter rescinded that policy, so that most government agencies no longer were required to fire gays and were able to hire them. But it was not until the 1990s that President Clinton ended that policy in intelligence agencies and prohibited discrimination in federal employment for gay employees.

I was hired by the Department of Justice as a psychologist in June 1996 and during my background investigation I came out. The investigator documented that I had revealed I was a homosexual and proceeded to ask me if people knew of my homosexuality. I affirmed that I open about my sexual orientation and found out later that they contacted my employer, my landlord, and many of my friends to confirm that I was a "known homosexual," and therefore could not be blackmailed.


Chauncey talked about employment discrimination that still exists in at least 20 states.

Terry Stewart asked if discrimination in employment effected "access to jobs in the private sector"

Chauncey - "Gay people faced discrimination from a range of employers varied from occupation to occupation, company to company, most people had to hide their homosexuality for fear of losing their job."

Stewart - Did it limit their job choices or channel them into specific occupations?

Chauncey - "A good number of gay people pursued the profession they wanted and hid their identities, but there were also a good number of people who did not want to risk that and were funneled into low status job where their being gay wouldn't matter."

He mentions waiter, hairdresser, clerical worker.


Stewart - What were the effects on gay people generally?

Chauncey - "Gay life was pushed underground. They had to hide it. It increased the stakes for people. It meant that they were secretive, and used special codes. Until gay liberation in the 1970, in 1940s and 1960s, they used the word 'gay' as a code word."


Stewart-Can you explain how gay people have been subject to censorship?

Chauncey - "In the movies, the Legion of Decency was led by Catholics to edit films with gay content. They pressured Hollywood." In 1934 the government enforced this code - the Hays code.

You had to pay a fine for violating the code. It prohibited interracial relationships, lesbian and gay characters, or any discussion of homosexuality. A generation of Hollywood films could not include gay characters or explore gay lives.

Hollywood screen writers had to submit scripts. It was very strictly managed. TV networks were even more constrained than Hollywood.

In the 1980s - as recently as 1989 - a pop TV series called 30 Something had a scene with two men in bed with sheets, it was so shocking that various religious organizations threatened boycotts and it was not shown at all, putting a chilling effect on the inclusion of gay characters.

Gay people didn't know there were other gay people like themselves. Older gays didn't see themselves represented and were reminded that they were a despised group.

Kept people hiding themselves and it kept straight people from knowing gay people and allowed stereotypes to emerge.

See you later today as move into Day 3 of the Prop 8 trial.

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Gay people didn't know there were other gay people like themselves. Older gays didn't see themselves represented and were reminded that they were a despised group.

That was the whole point, but, for some reason, that didn't stop gay sex from happening.

A lot of those things Chauncey says used to happen to gays, still happen to trans people. I was outed to my employer by an Air Force background checker in 2007 for example. I'd also like to point out that as much as people gripe about DADT, (and don't get me wrong, it's abominable), they still have it much better than we who were thrown out prior did. I lost two pay grades, ALL of my benefits and received an other than honorable discharge for being trans in 1991. I would also like to point out that I never violated the UCMJ, because being trans isn't mentioned therein, unlike "sodomy", which is. Now I can't upgrade my discharge and recover my benefits and the reason that is always given is because as a transgendered person, I don't come under the umbrella of DADT like gay people do. get that? I can be thrown out for being transgendered but I cannot even get the limited "benefits" of Don't Ask, Don't Tell. It was only last week that federal agencies were told to not discriminate against trans people.
I'm going to say it, even though it will no doubt piss people off: When victory happens in the same sex marriage issue, and happen it will, I don't believe that LGB people will then fight for my civil rights. Look at Ron Gold, look at John Aravosis, look at Barney Frank, look at Joe Solmonese. \Some have shown open hostility toward transgendered Americans, ALL have shown a willingness to throw us under the bus at the slightest indication that it may be convenient to do so. That belief isn't going to stop me from fighting for the civil rights of same sex couples, (or any group for that matter), but I would no doubt be more enthusiastic if I thought I wasn't going to again be discarded by the LGB community once my usefulness is outweighed by their embarrassment of being associated with people like me. This of course isn't a condemnation of all LGB people but the community has a track record with regard to T rights. It cannot be denied that it isn't a very good one. I don't even have the "right" in my state to work and support myself but all of our energy and efforts are given to securing marriage rights. Sorry if your right to marry doesn't seem as important to me as my right to eat.

Steve Ribisi | January 13, 2010 10:46 AM

I don't think that most LGB people will be content to leave the Trans folks out in the cold. Our experiences share some major themes in common such as alienation, hiding and shame (imposed on us from the outside, and sometimes tragically internalized as a result of the constant assault from society) that bind us together.

Several years ago I was at an LGBT event at the University of California in San Francisco at which several community leaders were being honored. One of these people was a trans woman. In accepting her award, she described a bit of her experience and how she became the person who she wanted to be. I was moved to tears, as were many other people present. It is a bit cliche, but we will either stand together or fall separately.

Reading about this trial has been a bit of a catharsis for me. Finally an effort to, for the record, document the challenges that LBG people face in the United States. I hope that similar efforts will be made on behalf of transgender folks too. My one concern is that if this ends up with prop 8 being upheld I will feel like even though folks have learned a bit about our lives they still didn't care to extend equal rights to us. That will leave a bitter, but unfortunately a familiar, taste.

"...attributed to LGBTI couples..."

I...as in intersex?

I continue to be amazed at how the GLB insist on including and appropriating any and every group possible, whether that particular group likes it or not. Considering many who are intersexed are not even aware they are intersexed and that most of those who are aware of it are happy with their assigned gender and grow up to be heterosexual it seems disingenuous at best for the LGB to continue to include intersex under their umbrella. It is tantamount to having a LGBTWAJ because some whites, african americans, and jews (etc) might be either transgender, gay or lesbian.

The LGBT just doesn't seem to understand that they would have way more support for their causes from these colonized groups if they would not insist on including whole groups of people under their banner - many, many, many of whom do not chose to be included or recognized and are thus alienated - just because some of them might be either gay, lesbian, or bisexual.


You know, marriage rights are probably one of the few areas where Intersex people have an interest along with LGBT people in a way that really has nothing to do with sexuality.

I say this as a pre-op transwoman in a legal "heterosexual" marriage with a post-op transwoman in a state that forbids same-sex marriages being recognized. Any doubt cast on the gender of either spouse can put your marriage in a strange nether realm, and because of the visibility of the fight for same-sex marriage, no one seems willing to make even common-sense accomodations. (The kind they would have made 10 or 20 years ago without much thought.)

So, you know, no argument with your larger point on colonization, but for this particular issue (only) I don't think you need to read it that way. Their are ramifications here for intersex people no matter how they identify.

And I realized that I probably should give an example so you know what I mean.

My spouse's insurance company has a policy that they will only recognize heterosexual marriages, *and* that for that purpose they will use an individual's *genetic* sex. This may change (we are in dispute resolution as we speak) but I'm sure you see how this effects intersex people, even those otherwise unconnected to the LGB community.

And until same-sex marriage issues are completely resolved, no one who is trans or intersex and married can feel completely secure in their status. Regardless of their sexuality.