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OPINION | JOHN BRUMMETT: Wrong side of history, again

by John Brummett | May 12, 2021 at 2:55 a.m.

This is a situation in which Sarah Sanders, as governor, presumably would stand in the medical clinic door keeping out the transgender children and telling federal marshals where to insert their federal court orders.

She repeatedly says as a candidate for governor in 2022 that she will present the state's "last line of defense" against the federal government.

It's a line reminiscent of the Civil War and demagoguery's golden era with governors Orval Faubus, Ross Barnett and George Wallace vowing to keep black children from entering white schools in the late 1950s and early 1960s.

I can hear Governor Sanders now: "No hormone therapy for children today, no hormone therapy for children tomorrow, no hormone therapy for children forever."

It turns out there is a collision course in which Arkansas heads one way and the United States another, with the crash likely sometime after the 2022 election.

Our state Legislature took out after transgender children in the recent session with several bills including the first of its kind anywhere. It was so egregious that yesteryear's right-wing extremist, Gov. Asa Hutchinson, felt obliged to issue a promptly overridden veto.

The law says doctors are forbidden from providing transgender medical services to minors. Hutchinson talked to doctors and came to understand the ill-advised meanness. He also explained that it wasn't conservative at all to put the government between parents and a doctor in the matter of children's care.

Then, on Monday, the Biden administration said it will actively protect transgender persons' health care from discriminatory laws, a policy presumably that would engage the Justice Department in filing or intervening in lawsuits challenging discriminatory events or laws.

So, here's your looming main event: Joe Biden versus Sarah Sanders, he vowing to transgender persons that "your president has your back" and she vowing to man the last line of defense of Arkansas' proudly discriminating ways.

We already know how it will turn out. Federal action will prevail in court and in substance and practice, but Sanders will prevail in Arkansas politics, which is probably all that she, as a prominent Donald Trump puppet, seeks.

Recent polling shows that Arkansas Republican fortunes rise as disdain for the United States rises. When the state Republican essence is political victory for the purpose of "owning the libs" and exalting Trump, that's all you want.

Apparently, Arkansas Republicanism will grow, at least for a while, if the United States will do it the kind favor of protecting people from our wrong-headed laws.

All the Biden administration is doing is restoring an Obama administration policy based on a U.S. Supreme Court ruling that the Trump administration killed by ignoring the Supreme Court ruling.

The Supreme Court ruled--in an opinion by conservative jurist Neil Gorsuch--that federal laws prohibiting discrimination in the workplace based on "sex" extend to more than biological gender at birth and to sexual orientation and gender identity.

The court's reasoning was that to discriminate against a person on the basis of sexual orientation or gender identity is to discriminate on the simple basis of sex because the person wouldn't face the discrimination if of another sex.

As Gorsuch wrote: "Take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth."

So, the Obama administration established a policy to protect people from discrimination in health care based on their sexual orientation or gender identity. The Trump administration came along and said the existing court ruling was about job discrimination alone and that it would allow discrimination in health care based on sexual orientation and gender identity.

Think about that: The Trump administration was saying, oh, all right, the court says we can't discriminate in the workplace, but it didn't say we couldn't keep discriminating in health care, so we shall.

Now comes the Biden administration to dump the Trump anti-transgender policy and reinstate the Obama protections.

The collision course toward Arkansas portends that national protections for transgender persons will strengthen while Republican dominance of Arkansas will grow a couple of percentage points.

We'll have a kinder, gentler nation and a marginally meaner state.

It's a trend line and side of history that Arkansas knows well from the wrong side.

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.

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