Gay-mandering?

In December 2009 Annise Parker was elected mayor of Houston, making it, The Huffington Post gleefully reported, “the largest U.S. city to ever have an openly gay mayor.”

Last month, Houston’s FOX 26 Morning News reported,

Mayor Annise Parker abruptly walked out of her own press conference at City Hall on Tuesday afternoon.

That came after reporters repeatedly questioned Parker about rumors she and some other council members are trying to create a majority gay council district in Houston.

Mayor Parker later “adamantly denied reports that she wants to create a majority gay City Council district,” but reports continued to surface

that Parker has expressed a desire to create a council district that would help elect a member of the gay, lesbian, bisexual or transgender community.

Some have suggested the city should combine parts of the Heights with the Montrose to give gay voters more influence in a City Council election.

Some of the responses have been quite heated. Parents and Friends of ExGays and Gays, for example, asked whether Houston “is getting what it deserves,” and claimed that “Mayor Annise Parker is the first openly gay mayor of a city with over a million residents. Now it appears that she is pushing her sexual orientation onto Houston.”

Less polemical responses, however, also recognized that redistricting to benefit gays was a real possibility. For example, University of Houston Professor Richard Murray, a respected analyst of Houston politics, commented in one of his regular essays for the local ABC affiliate:

Can Montrose be excised from District D? When the original council districts were drawn in 1979, Montrose was placed in District C, a mostly white area that included Rice University, Braes Bayou, and Meyerland. The district tended to elect progressive white members … , and the gay community in Montrose had considerable clout in C at that time. But Montrose was moved out of  C some years ago, possibly because the then Gay/Lesbian Caucus leader, Annise Parker, ran against incumbent Vince Ryan. Whatever the reason, Montrose has been attached to D for 20 years, a district dominated by African American voters who have been predictably electing black council members not dependent on white votes from Montrose. The GLBT Caucus would very much like to dissolve the Montrose/D connection, and get back into C again…. I expect this will happen because of pressure from the GLBT … and, last but not least, the presence of longtime Montrose resident Annise Parker in the mayor’s seat on City Council.

The debate over what I’ve termed “gay-mandering,” redistricting to increase or decrease the influence of gays and lesbians, is of course not unique to Houston. It has occurred on both coasts, as well as spots in flyover country, and the number of such debates is likely to increase as the gay rights movement gathers steam.

For example, in Geographically Sexual?: Advancing Lesbian And Gay Interests Through Proportional Representation, a 1996 article in the Harvard Civil Rights – Civil Liberties Law Reporter, Darren Rosenblum begins his article describing, favorably, “a system of proportional representation” in the New York City School Board that “allowed lesbians and gay men to elect representatives of their choice,” and he goes on to endorse proportional representation because, he argues, gays and lesbians have separate and distinct “interests” and

in a district-based electoral system, only geographically defined lesbian and gay communities have the opportunity to elect officials who represent their interests. Although many lesbians and gay men choose to live in areas with large lesbian and gay populations, sexual orientation has no natural correlation to geography. This lack of a geographic correlation greatly decreases the ability of districting schemes to represent a broad base of lesbian and gay interests. Therefore, a districting system fails to ensure effective interest representation for lesbians and gay men. By contrast, a proportional representation system would greatly expand possibilities for lesbian and gay interest representation.

California, not surprisingly, is well-represented in debates over gay-mandering. In San Diego, for example, the initial map adopted by a redistricting commission in 2001

created a safe gay district, to allow the gay community to elect a candidate of its choice. The problem was that, in order to create a gay district, the commission had to split the community of City Heights into three separate council districts, a decision that proved controversial. Should the interests of the gay community take precedence over a unified City Heights?

More recently, last November saw a battle between two competing Propositions on California’s ballot: Prop. 27, which would eliminate “a seminal voter-approved reform from 2008 [that] outlawed gerrmandering by California’s legislature”; and Prop. 20, “Proposition 27’s near-opposite,” which would extend the 2008 reform by taking the ability to draw the state’s 53 congressional districts away from the legislature. In the battle between the dueling propositions most newspapers and all good government organizations supported Prop. 27, but Equality California, the powerful gay rights group opposed it.

“To our amazement,” an article in the L.A. Weekly reported, at a rally in West Hollywood “we saw that EQCA described Proposition 20 as a ballot measure that ‘eliminates LGBT-inclusive redistricting for Congress.’ EQCA also pushed for Proposition 27, saying that it ‘restores LGBT-inclusive redistricting for state legislature.’” When pressed, EQCA executive director explained:

The current process has resulted in a pro-equality legislature and likely more than five percent of the legislature will be LGBT come December. We know the legislature will have LGBT representation and therefore our community will be represented in the drawing of districts if done by the legislature. We don’t know if that will occur if there is a new commission created.

EQCA, in short, trusts gerrymandered California legislators to draw gay-mandered districts more than it trusts a citizens’ commission. It certainly doesn’t want an independent commission drawing lines that are not specifically “LGBT-inclusive.” (Proposition 27, by the way, passed.)

Far more significant, I think, than whether or not gays get to have electoral districts designed to enhance their influence, i.e., some gay approximation of the “majority/minority” district abominations that perverted the original intent of the Voting Rights Act, is whether or not gay rights mean treating gays without regard to their sexual orientation, which gays generally claim when seeking gay rights legislation, or with regard to it. In short, now that gay rights is gaining momentum, the more fundamental question is whether the gay rights movement will go down the road well travelled, indeed rutted, by the civil rights movement of abandoning the demand for equal treatment as soon as it is received in favor of preferential treatment.

In discussing these issues on Pajamas Media a year ago (“Does Sexual Equality Require Preferential Treatment?”) I asked whether the movement for gay rights would follow the same trajectory as the civil rights movement — from non-discrimination to preferential treatment based on sexual persuasion. In addition to the redistricting issues in Houston and San Diego, there is now mounting evidence that the movement away from “without regard” equality and toward sex-conscious special treatment is well on its way.

For example, as I discussed here last spring, the University of Pennsylvania has launched an “outreach” program for gay students. So far Penn has not directly asked applicants or admits if they are gay, but some students are pressing it to do so and others were preparing to petition the Common Application to add questions about sexual orientation.

And Penn was not the first; as I discussed here, based on reporting by Inside Higher Ed, in 2006 Middlebury College began “giving students who identify themselves as gay in the admissions process an ‘attribute’ — the same flagging of an application that members of ethnic minority groups, athletes, alumni children and others receive.” Gay students, Middlebury’s assistant director of admissions explained, “bring a unique quality” to the college. Middlebury, in fact, went beyond giving gay applicants an admissions-enhancing “attribute,” announcing that its admissions officers “were also likely to look favorably and give an admissions tip to ‘straight allies’ of gay students — not just out of support for that view, but because a college benefits from having people who are “‘bridge builders.’”

I don’t think Middlebury meant engineers.

Gay rights supporters always insist that what they seek is equal rights, not special rights or preferential treatment, but most people understand equal rights to mean “without regard” treatment, whether of race, ethnicity, sex, or sexual orientation. Thus it is clear that much, perhaps most, of the opposition to gay rights stems from a fear that gay rights really means special rights. Those opponents have seen women and blacks campaign for decades and longer for “equal rights” only to demand affirmative action in the form of preferential treatment as soon as equal rights were enacted.

For the movement for gay rights to attract greater public support it will be necessary for it to reject, emphatically and persuasively, any suggestion of a desire for special treatment. Here are two recent examples of how not to do that.

1. In 2005 Gov. Rod Blagojevich of Illinois signed a gay rights bill that added “sexual orientation” to the list of reasons for which people cannot discriminate in housing, lending and employment. It specifically stated “that the law would not require any employer, lender, real estate agent or landlord to give preferential treatment or special rights to people based on their sexual orientation.” Not requiring, however, is a woefully inadequate bar to preferential treatment. The Civil Rights Act of 1964 has the same empty bluster about not requiring employers to give preferences, etc., but preferentialists have successfully argued that “not requiring” is not the same thing as “not allowing.”

2. The supporters of the Employment Non-Discrimination Act (ENDA) attempted to blunt the preferential treatment criticism by inserting the following language in the bill (Quoted in Does Sexual Equality Require Preferential Treatment?):

[Sec. 4] (f) No Preferential Treatment or Quotas — Nothing in this Act shall be construed or interpreted to require or permit

(1) any covered entity to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any actual or perceived sexual orientation or gender identity employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such actual or perceived sexual orientation or gender identity in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

“Sounds good,” I pointed out in Will ENDA End Sexual Orientation Discrimination?,

but this attempt to bar preferential treatment also raises questions. First, does it really bar all preferential treatment by employers on the basis of sexual orientation, or only preferential treatment that is employed to correct “an imbalance”? What about preferential treatment undertaken for other reasons?

….

Second, assuming this provision really does prohibit preferential treatment, wouldn’t that mean that sexual orientation lacks the “protection” awarded to race and ethnicity (assuming, of course, that allowing preferential treatment can be viewed as protection)?

Third, and perhaps most interesting, if this provision really does accurately state the current understanding of Congress (and is signed into law by the president) about the nature of discrimination that is prohibited, and that that prohibition extends to preferential treatment of all people in protected classes, perhaps the courts could be persuaded to unconstrue their construals of Title VI et al. that are inconsistent with this new consensus.

Finally, if the gay rights movement wants only to secure equal rights, it will have to be much clearer than it has been so far. And if it should attempt to do that, it should expect sharp criticism from what is still known as the civil rights movement. Although not all advocates of racial preferences regard all opponents as racist, many do. Believing as they do that “civil rights” and “equality” require rejecting the “without regard” principle and treating people differently based on their race, they are convinced that ending racial preferences would be racist in effect and thus that those who oppose preferences are themselves racist.

Given the current theory and practice of civil rights, Gay rights leaders who persuasively reject preferential treatment for gays can expect to be denounced as homophobic just as those who oppose racial preferences are routinely denounced as racist.

Say What?