++Capitalism, white supremacy, and yoga pants: An interview with DeJa Love, CEO of the Black Womenâs Wellness Agency. +
++My relationship with wellness is more complicated than running into a guy I ghosted at an office party. I began my journey in 2017 as a lot of people do â dressed in Lululemon and sipping green juice on my way to a yoga class. (I had chosen trap classes because I was much more comfortable hearing âMouth Full of Goldsâ during childâs pose than risking stepping on a white womanâs yoga mat.) Soon, wellness became a capitalistic pursuit I held near. I loved grabbing a blue spirulina smoothie while out on a run â but only dressed in head-to-toe Nike gear. Lulu was for the gym and yoga. I became obsessed with rings, namely, closing the ones on my Apple Watch. +
++By 2020, after spending thousands of dollars on this journey without seeing any measurable improvement in my mental health â which people do experience from wellness efforts â I began to interrogate why I expected this effort to cure my anxiety and depression. I was sidelined by the coronavirus pandemic and, like many others, began to question what actually mattered to me. Still, I did yoga, strength trained, cycled, and meditated at home to keep myself mentally afloat during the pandemic, and during the antiracism protests over the murder of George Floyd â an immensely triggering moment for Black folks. Having a routine was helpful until it wasnât. +
++By 2022 I was experiencing weekly panic attacks that slowly increased to I-donât-know-how-many-days a week. I wasnât sleeping or moving much farther than from my bed to the couch. When I was eating, I wasnât choosing nutritious foods. Iâd run out of motivation to care for myself â and all of it felt like it shouldnât be happening to me because I should be tougher. +
++Mainstream wellness was, to lean further into cliches, a Band-Aid on a bullet wound. I was actively pursuing better mental and physical health, a key piece of a wellness journey, but I wasnât taking the time to establish what felt good to me. I was trying to fit into the trendiness of wellness, and I desperately wanted the freedom it proclaimed I could have if I bought enough stuff. Nowadays, I define wellness as, âDoing what feels good and aligns with what I believe I need in this moment.â +
++My burnout story is a quintessential narrative among Black women. Many of us have been raised to be âstrongâ despite the systemic factors that make such an ideal impossible to uphold. The Strong Black Woman trope demands that we swallow our pain for the greater good of others, and it comes with grave psychological consequences. It can make us more susceptible to depression, anxiety, and feelings of isolation. For some Black women, we rarely forgive ourselves for our mistakes and relentlessly seek to meet othersâ expectations. This is more harrowing when we consider that stress compounds. Besides causing headaches, chest pain, fatigue, and stomach issues, heightened stress levels can make sleeping impossible. Your breathing can quicken. You could develop high blood pressure, a weakened immune system, anxiety, depression, Type 2 diabetes, or memory loss â adverse health outcomes that Black people are more likely to experience. +
++The systemic conditions that prevent Black women from being able to take proper care of ourselves is one of our nationâs most significant health injustices. And to add insult to our spiritual injury, wellness practices, which can be a useful tool to fight poor mental health, are presented to us through a Eurocentric, capitalist lens, encouraging us to spend money many of us donât have on products we donât need to care for ourselves. +
++I discussed these conditions and the role wellness plays in navigating them with DeJa Love, the CEO of the Black Womenâs Wellness Agency. Loveâs agency supports Black women who are stressed, burnt out, and overwhelmed by connecting them to Black women wellness providers. This could be a yoga teacher, meditation or life coach, personal trainer, or any non-clinical wellness service that helps manage stress. +
++âWe have to go deeper because the world in which weâre living in, itâs not sustainable for us to keep at this pace,â Love says. âI really view this as a fierce urgency, as life or death. When Black birthing persons are dying at three times the rates of white folks, thatâs a crisis. We are dying, across the board, at higher rates. This is why itâs so important.â +
++This interview has been condensed and lightly edited for clarity. +
++Explain your personal approach to wellness. Is it more spiritual? Or is it more political? +
++For Black women, our wellness is infinite. That it is not a $200 yoga mat or yoga pants. Since, especially in the mainstream context of the United States â which is incredibly racist with white supremacist undertones â wellness is generally capitalistic. Itâs about the doing, and the purchasing. +
++Infinite wellness is knowing that maybe wellness for me in one moment is sitting in silence, sensory deprivation, not on social, not logged in, but sitting, connecting to breath, connecting to the divine spirit that guides us, whatever folks identify with. In the context of America, wellness is rest. Itâs challenging a toxic grind culture that tells us we need to constantly produce, that weâre not enough, that weâre not doing enough. Iâm guided by Tricia Hersey and her work. She leads The Nap Ministry, and her book Rest Is Resistance has really shifted my paradigm and informs a lot of what I view as wellness. +
++What are some of those white supremacist undertones to wellness? +
++Itâs really this notion of, âI have to do something. I have to purchase something. I have to buy something. I have to keep performing.â And that can look like, âI need to buy the expensive mask. I need to buy expensive face serums. I need to go to the gym classes.â Itâs still a perpetuation of grind culture and hyper-productivity. Whereas the Black Womanâs Wellness Agency and I challenge that and say, âBlack women, you are enough by just being!â It seems so simple, but the brilliance is in the simplicity of being â not doing. Wellness is shifting our minds away from what we have been indoctrinated with, such as: âI have to be a certain weight, I have to look a certain way, I have to have this.â No. We have to be on the path of unlearning. +
++Those are some of the undertones. Itâs about this aesthetic, and thatâs what we get. But wellness is not an aesthetic. Wellness is being connected to our breath, our bodies, and calming the mental fluctuations that happen constantly. +
++This multibillion-dollar wellness industry that says you have to drink this or take this supplement or be in this intricate yoga posture just creates more work. +
++Why isnât wellness binary for Black women? I was looking on your website, and I saw that. I think I know what that means, but Iâm very, very intrigued. +
++Itâs not binary because we, as Black women, are so robust. We have had to be. Weâve had to be the heads of households, to be cooks and cleaners, to raise children and make sure the finances are handled â weâre constantly wearing so many hats. Our healing and our wellness are not going to be boxed in. It canât be because we have to do so much. +
++Black women are the largest demographic of advanced degree holders and business owners post-2020. Weâre doing so much, and thatâs why weâre proponents of wellness being whatever it is you need. +
++If wellness is saying, âIâm just really tired, and I donât need to push through,â then thatâs wellness. If wellness is saying, âMy family is expecting me to do something, and I say I canât do that because I need to uphold my boundaries, and I canât keep pouring from this empty cup,â then thatâs wellness. Thatâs the journey that Iâm still on. Weâre all still on it. +
++It has to be full-spectrum and incredibly inclusive. It has to counter the mainstream approach to wellness â the skinny white woman in Lululemon doing an intricate yoga posture. That is not true wellness; that is a capitalistic approach that we have been fed, and we have to keep pushing back because that image may not serve us. Now, we are not a monolith, so maybe that image serves some Black women. I know for many, though, that it does not. +
++One thing that I think most Black women can all relate to is the pressure to fit into these spaces, whether itâs work or a yoga studio, where youâre the only Black person there, and people are looking at you crazy. So when we reclaim and reframe wellness â meaning we stop looking at it through this billion-dollar lens â how do we reconnect with our power? +
++Itâs multifaceted. It will take many different approaches. One of them is going for a walk and doing a walking meditation, not having your AirPods in, just listening to the sounds of nature so you can get out of your head and connect with the many thoughts that are going to come into your mind. I donât want to demonize social media. Itâs an amazing tool that connects us, but part of reclaiming is having healthy sabbaticals from social [media]. +
++Iâm also a proponent of therapy. Therapy helps us be introspective. +
++Another thing that has helped me is being able to be free. Business ownership has allowed me to feel free. Iâve had an 18-year career in many business sectors, and within all of those sectors, you become indoctrinated, and your truth gets stifled by the dominant group. And even those who look like me can fall into assimilation and respectability. I speak unapologetically, and many people do not connect, and thatâs fine. Iâve had to make peace with the fact that I may not get all the business contracts, or I may not gross the revenue that I want. But I can sleep at night knowing that I am speaking for Black women, that I am challenging inequities, the status quo, and a society that perpetuates it. +
++You pointed out that when Black women really start taking care of ourselves, prioritizing our needs, and start centering our well-being, we lose people. Itâs always been very interesting to me that when a Black woman starts thinking about her well-being versus how she can be in service to everyone else, people start dropping off. +
++Earlier today, when I was on my walk, I was thinking about when weâre on journeys of evolution. I donât want to be the same DeJa I was three years ago, a year ago. I want to be evolving, and learning, and there are folks that will not be there on that journey ⊠itâs hard sometimes. Itâs always the folks you donât expect, the people who were always there. And that just hurts harder. Part of that evolution is releasing that attachment. And the folks that connect to me will find me. I will build a new community. +
++Itâs like my granny used to say, âEverybody canât come.â Speaking of her â a Black woman who absolutely prioritized her well-being after raising three generations of her family â how does wellness help Black women thrive? +
++It helps us because we are able to get reconnected with self. When Iâm putting on my public health hat, our life expectancy is reduced in this white supremacist, very racist society. From medical racism in health care, housing, education, transportation â every facet that we intersect with has a huge impact on our outcome. Every facet of being in this country challenges us. Wellness helps us get back to our center when all of these forces that create the inequities we live in challenge us. +
++Sometimes we will question ourselves. We forget the confidence, the power, the self-esteem, the self-efficacy because we have been metaphorically beaten down by all of these systems. +
++We even have to combat the complicity of folks in our own communities and other white-adjacent folks of color. I know thatâs a provocative notion. Black people and other folks of color can uphold white supremacy because weâre all stewed in the same society. So people get surprised, for instance, that a Black physician can perpetuate harm to their Black patients. They have been trained in racist medical schools, so they can perpetuate what they have been taught. Thatâs why wellness is so important. Wellness is whatever a Black woman needs. We know what we need for our healing, to feel grounded, to feel at peace, to feel centered. That is crucial as we navigate this society that we operate in. +
++How does taking care of ourselves challenge hustle culture? Sometimes this strikes me as a conundrum. Weâre trying to get out of this capitalistic dynamic of wellness, but we live in a capitalistic society, and we have to survive. And sometimes, for certain wellness practices, you have to buy something. It feels very sticky sometimes to see taking care of yourself as a challenge to capitalism when we live in a society where itâs so deeply entrenched. +
++Itâs so important because grind culture is insidious. We are not even aware of the hold that grind culture has on us. Thatâs why stepping back transforms. +
++Again, Iâm not immune from it. Thatâs why Iâm so intentional with my unlearning, even as a business owner, challenging myself to not just push through. Iâll say: âDeJa, youâve been up for how many hours? Youâve been in how many back-to-back meetings? Go out, take a walk, do a guided meditation, go do some yoga, just do something!â +
++I want to see a world where all Black women, and I use that term inclusively, are well. Where weâre not burnt out, where weâre not overwhelmed, where weâre not stressed, where employers donât undervalue our contribution â theyâre not even paying us the full dollar! Weâre getting what? Sixty-seven cents on the dollar? And working twice as hard to prove ourselves. That is the encapsulation of grind culture and being unwell. +
++Julia Craven is a writer covering anything she thinks is cool. Sheâs the brain behind Make It Make Sense, a wellness newsletter. +
++
++Anti-LGBTQ Republicans are governing like they have no adult supervision. At least for now, the courts arenât tolerating that behavior. +
++
++For transgender people and those who care about them, the last several months have been bleak. +
++In the past year, weâve seen a wave of state laws targeting transgender athletes and even forbidding many trans people from receiving gender-affirming medical care. These laws, moreover, are part of a much broader legal assault on LGBTQ Americans, which includes attacks on drag performers, attempts to remove queer-themed books from libraries, and a simply astonishing array of anti-LGBTQ laws from the state of Florida alone. +
++Not that long ago, LGBTQ rights lawyers could have been fairly confident that these laws would be heavily scrutinized by the Supreme Court. Before then-President Donald Trump remade the Court by appointing a third of its members, an alliance of Justice Anthony Kennedy and four liberal justices struck down an array of laws driven by anti-LGBTQ animus. As Kennedy wrote in Romer v. Evans (1996), the first of these decisions, laws motivated by âa bare ⊠desire to harm a politically unpopular groupâ are not constitutional. +
++But after Kennedyâs retirement in 2018 â and especially after Justice Ruth Bader Ginsburgâs death in 2020 gave Republican appointees a 6-3 majority on the Supreme Court â the future of LGBTQ rights looked grim. Many of the architects of todayâs moral panic against queer people have spoken quite openly about their belief that the Court will no longer follow left-leaning precedents of all kinds. As Floridaâs Republican Gov. Ron DeSantis said about one of the Courtâs many 5-4 decisions where Kennedy joined the liberals in the majority, âwe do not believe the Supreme Court, in its current iteration, would uphold it.â +
++But the picture thatâs emerged since Kennedy let Trump choose his successor is more complicated than many court-watchers â including myself â predicted as we watched Trump fill the judiciary with Federalist Society stalwarts. In Bostock v. Clayton County (2020), conservative justices John Roberts and Neil Gorsuch unexpectedly joined the Courtâs liberal minority and ruled that federal civil rights law prohibits anti-LGBTQ discrimination in the workplace. Meanwhile, lower court judges â including some Republicans â have read Bostock fairly broadly to forbid many of the latest attacks on LGBTQ people. +
++Just this week, a federal judge in Arkansas struck down the stateâs new ban on gender-affirming care for transgender teens, and that decision built on an earlier opinion by a bipartisan panel of the United States Court of Appeals for the Eighth Circuit, which used similar reasoning to the Supreme Courtâs decision in Bostock. +
++To be sure, the picture is nuanced, and lawyers challenging certain state laws â such as laws banning trans athletes from sports teams that align with their gender identity, or laws barring trans students from bathrooms aligned with their identity â are likely to face an uphill battle in a Supreme Court dominated by socially conservative Republicans. +
++But other anti-LGBTQ laws have thus far not received a very welcome reception even from GOP-appointed judges. Trump appointee Judge Thomas Parker, for example, recently struck down a Tennessee anti-drag law targeting âmale or female impersonatorsâ in that state. In addition to the Arkansas ruling, courts have blocked three other state bans on gender-affirming care. +
++And even when courts do rule in favor of anti-LGBTQ policies, those decisions are often tempered with doctrinal rulings that will likely benefit queer litigants in the future. +
++In Adams v. School Board of St. Johns County (2022), for example, the 11th Circuit split along party lines, with all seven of the courtâs active Republican judges upholding a public school policy that prohibited a transgender male student from using the menâs restroom. But even that decision concluded that laws targeting trans people must survive âintermediate scrutinyâ â meaning that such laws are presumptively unconstitutional and will normally be struck down. Thatâs a powerful legal weapon that litigants in the 11th Circuit can now use to attack anti-trans laws. +
++Itâs important to be clear-eyed about what the future will look like for LGBTQ litigants. It is unlikely that five of the current justices agree with Romerâs conclusion that laws motivated solely by anti-LGBTQ animus are unconstitutional, for example. And many lower courts have been reluctant to protect transgender rights in contexts like public bathrooms and sports teams, where gender segregation has historically been allowed. +
++Yet the picture for LGBTQ litigants has thus far been more favorable than anyone reasonably could have predicted on the day Kennedy announced his retirement. +
++The current state of LGBTQ rights under the Supreme Courtâs precedents +
++Under Justice Kennedy, the Court handed down four landmark decisions protecting gay and bisexual Americans from discrimination by their government: Romer, the decision striking down Texasâs âsodomyâ law in Lawrence v. Texas (2003), and the marriage equality decisions in United States v. Windsor (2013) and Obergefell v. Hodges (2015). +
++Notably, all four of these cases involved anti-gay discrimination, and not trans rights issues. Indeed, if one looks solely at the justicesâ published opinions, itâs easy to come away with the impression that they only recently discovered that trans people exist. The first Supreme Court opinion that even used the word âtransgenderâ wasnât handed down until 2012, and that case did so only in passing. +
++Yet, despite their limited scope, all four of Kennedyâs gay rights decisions appeared to be in grave danger when he retired. Romer and Lawrence were 6-3 decisions with Kennedy, Ginsburg, and long-since retired Justice Sandra Day OâConnor in the majority. Windsor and Obergefell were both 5-4 decisions, with Kennedy and Ginsburg rounding out the majority. +
++Five years later, however, many of the rights gay people secured in the Kennedy era appear safe â at least so long as none of the current justices are replaced by a Republican. Conservative Chief Justice John Roberts joined the Courtâs decision in Pavan v. Smith (2017), which reaffirmed Obergefellâs holding that âthe Constitution entitles same-sex couples to civil marriage âon the same terms and conditions as opposite-sex couples.ââ And, while Justice Brett Kavanaugh joined the Courtâs opinion in Dobbs v. Jackson Womenâs Health Organization (2022), which eliminated the constitutional right to an abortion, he wrote a separate concurring opinion emphasizing that his decision âdoes not threaten or cast doubtâ on Obergefell. +
++The fate of the right to sexual autonomy recognized in Lawrence, meanwhile, is a bit more uncertain. But it is noteworthy that, in his Dobbs concurrence, Kavanaugh listed Bowers v. Hardwick (1986), the anti-gay decision that was overruled by Lawrence, as an example of a decision that demonstrates that the Courtâs loyalty to precedent âcannot be absolute.â That list also included other widely reviled decisions, such as Plessy v. Ferguson (1896) and Lochner v. New York (1905), which are taught in law schools as examples of how judges should never behave. +
++Indeed, if anything, the Supreme Court has expanded LGBTQ rights since Kennedyâs departure. Bostock was a landmark decision not only because it held that federal law prohibits employers from discriminating on the basis of sexual orientation or gender identity, but also because it announced a new framework that, if applied to all cases alleging LGBTQ discrimination, could prove much more potent than the more cautious approach to gay rights that Kennedy often took in his decisions. +
++Admittedly, Bostock is likely to be tempered by the Courtâs religious liberty decisions, which frequently allow religiously conservative business owners to ignore civil rights laws prohibiting anti-LGBTQ discrimination. But lower courts have thus far read Bostock fairly expansively to also prohibit discrimination by state governments â and the government, unlike a private business owner, cannot make religious liberty claims because the Constitution explicitly forbids the government from establishing an official state religion. +
++How the Bostock framework could revolutionize LGBTQ rights +
++Bostock involved Title VII of the Civil Rights Act of 1964, which forbids âsexâ discrimination in the workplace. The Courtâs core insight in Bostock is that âit is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.â If an employer fires a male employee for dating other men, for example, but does not fire a female employee for also dating men, then thatâs just ordinary sex discrimination, because the employer has punished a man for doing something that it will allow women to do. +
++Similarly, if an employer penalizes an âemployee who was identified as female at birthâ for presenting as a man or otherwise engaging in stereotypically male behavior, but does not penalize âa person identified as male at birthâ for the same actions, that is sex discrimination forbidden by federal law. +
++Notably, Bostock explicitly dodged the question of whether the concept of âgenderâ exists separately from âstatus as either male or female [as] determined by reproductive biology.â âNothing in our approach to these cases turns on the outcomeâ of that question, Justice Neil Gorsuch wrote for his Court. Indeed, Bostock begins with the assumption that laws prohibiting âsexâ discrimination refer âonly to biological distinctions between male and female.â +
++And yet, even if someone takes the position that a trans man is a woman, Bostockâs framework still forbids employers from discriminating against transgender workers. Your boss cannot assign a gender role to you based on your sex assigned at birth. +
++The specific question in Bostock, it is worth reiterating, was only whether federal law prohibits anti-LGBTQ discrimination in employment. But multiple lower courts have applied Bostockâs framework to other contexts, such as health care or education, and the few judges whoâve refused to do so appear to be outliers (such as Judge Matthew Kacsmaryk, the Christian right activist best known for his failed attempt to ban the abortion drug mifepristone). +
++The Eighth Circuitâs decision in Brandt v. Rutledge (2022) is emblematic of this approach. In that case, a bipartisan panel blocked Arkansasâs ban on gender-affirming health care for people under age 18, on the theory that it violates the Constitutionâs safeguards against sex discrimination. Applying reasoning very similar to Bostock, the Eighth Circuit reasoned that Arkansasâ ban necessarily discriminates on the basis of âbiological sex.â +
++Under this law, Brandt explained, âmedical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex.â For example, âa minor born as a male may be prescribed testosterone or have breast tissue surgically removed,â but âa minor born as a female is not permitted to seek the same medical treatment.â Thatâs just ordinary sex discrimination, even if you deny that transgender people actually exist. +
++Where Bostock has failed transgender litigants +
++Recall that Bostockâs core insight is that discrimination against LGBTQ people is a form of sex discrimination. This is a potent tool in the hands of civil rights litigators because the law provides many safeguards against discrimination on the basis of sex. Title VII prohibits such discrimination in employment. The Affordable Care Act prohibits sex discrimination by health providers. A law known as Title IX forbids sex discrimination in most schools and universities. +
++And, on top of all of these statutory safeguards, the Supreme Court has long held that any law or government policy that discriminates on the basis of sex is presumptively unconstitutional, and may only stand if the government can offer an âexceedingly persuasive justificationâ for treating men and women differently. +
++Yet, while sex discrimination is rarely lawful, there are a few areas where it is permitted. Title IX, for example, contains a carveout permitting colleges and universities to maintain âseparate living facilities for the different sexes.â And federal regulations implementing Title IX permit schools to have âseparate toilet, locker room, and shower facilities on the basis of sex,â as long as the facilities âprovided for students of one sex [are] comparable to such facilities provided for students of the other sex.â +
++Similarly, other federal bans on sex discrimination have long been understood to permit separate-but-equal bathroom facilities and sex-segregated sports teams. It is not illegal for an employer to have separate bathrooms for men and women. Nor is it illegal for a high school to have one soccer team for boys and another for girls. +
++These carveouts for certain kinds of sex discrimination make it harder for trans rights litigants to rely on Bostock to challenge laws prohibiting trans students from using the bathroom that aligns with their gender identity, or that prohibit those students from playing on the appropriate sports team. Bostock, after all, said that discrimination against LGBTQ people is not allowed because it necessarily entails treating men differently than women. But Bostock is silent on what should happen to transgender students and workers in spaces where sex discrimination is lawful. +
++So lower federal courts have divided on whether trans people may be excluded from bathroom and sports teams that align with their gender identity, with some courts even reaching contradictory results. +
++In B.P.J. v. West Virginia State Board of Education (2023), for example, a (Clinton-appointed) federal judge initially halted West Virginiaâs trans sports ban. After presiding over a full trial on this issue, however, the judge changed course. While the judge deemed the law to be presumptively unconstitutional, he ruled that West Virginia overcame this presumption because âit is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexesâ â and therefore a state could prevent athletes who might go through male puberty from playing on a womenâs sports team. +
++Similarly, in Adams, the 11th Circuit also concluded that a school districtâs trans-restrictive bathroom policy is lawful, pointing to the fact that âthe privacy afforded by sex-separated bathrooms has been widely recognized throughout American history and jurisprudence.â Adams was not a total loss for transgender litigants, because it also held that any policy that classifies students based on sex is presumptively unconstitutional, including policies that target transgender students. But the Court held that this presumption is overcome within the context of sex-segregated bathrooms. +
++It should be noted that at least two other appeals courts â the Fourth and Seventh Circuits â held that schools may not prevent trans students from using the bathroom that aligns with their identity, and four judges dissented from the 11th Circuitâs conclusion in Adams. So itâs not like the case against trans-inclusive bathroom policies is a slam-dunk. +
++But every circuit judge to vote in favor of a trans-exclusive bathroom policy was appointed by a Republican, and, with only one exception, every circuit judge to vote against such a policy was appointed by a Democrat. So if you are trying to predict how the current Supreme Court will resolve this issue, that partisan breakdown probably tells you everything you need to know. +
++So whatâs the future of LGBTQ rights in the courts? +
++The state of LGBTQ rights is much better than seemed likely after Kennedyâs retirement. But the future for LGBTQ Americans is still precarious, and things could get much worse in a hurry, particularly for trans people, depending on how the Supreme Court behaves â and on what happens to the Courtâs membership. +
++First of all, Bostock was a 6-3 decision, with the now-late Justice Ginsburg in the majority. That means that there are probably only five votes on the current Supreme Court â the three liberals plus Gorsuch and Roberts, who joined Gorsuchâs opinion â who support that decision. If someone like Donald Trump or Ron DeSantis is elected president in 2024, they could easily replace one or more members of the Courtâs pro-Bostock majority with new justices who will vote to overrule that decision. +
++Similarly, if President Joe Biden is reelected, he could potentially replace archconservative Justices Clarence Thomas and Samuel Alito, both of whom are in their 70s. That would give the Court its first left-leaning majority since the beginning of the Nixon administration, and would most likely ensure robust protections against anti-LGBTQ discrimination. +
++Itâs also worth reiterating that Bostock itself applied solely to employment discrimination â although lower court judges from both parties have applied the decision to other contexts. So, even if the Courtâs membership remains the same, there is a risk that the Courtâs current majority will not apply Bostockâs sex discrimination framework to every case involving discrimination on the basis of sexual orientation or gender identity. +
++Finally, I want to close by acknowledging that the status quo is demeaning to transgender people. As Judge Robert Hinkle wrote in a recent decision blocking Floridaâs ban on gender-affirming care for minors, an âunspoken suggestionâ animating so many recent anti-trans laws is that âtransgender identity is not real, that it is made up.â +
++Bostock, of course, dodged the question of whether the scientific and medical consensus, that some people authentically identify with a gender that does not match their sex assigned at birth, is correct. And the Bostock framework does not allow trans litigants to claim protection as trans people. If anything, it implicitly requires them to identify with their sex assigned at birth. Bostock, after all, ruled that the reason a trans man may present as a man at work is because, as an âemployee who was identified as female at birth,â they may not be treated differently than a cisgender man. +
++Eventually, the Supreme Court will have to confront the question it avoided in Bostock, most likely in a case involving bathrooms or sports, and it is far from clear that this very conservative Court will agree with the medical and scientific consensus that transgender identity is real. +
++Anti-establishment candidates were barred from running in Sundayâs elections. +
++Guatemalaâs Sunday elections are occurring during a period of democratic backsliding â and indeed, increasing authoritarianism â in the Central American country. With leading candidates barred from running, press freedom under serious attack, and many of the countryâs institutions co-opted in defense of the political establishment, Guatemalaâs democracy, such as it is, balances on a knifeâs edge. +
++The current president, Alejandro Giammattei, is limited to one term in office, but the system that enabled him will continue, in part because of the active role he and his predecessors played in weaponizing it for their own advantage. Guatemala has suffered from violence, poverty, and corruption for decades; now the military, economic, and political establishment, or âpacto de corruptos,â has effectively captured the state, eroding democratic institutions and the rule of law in Central Americaâs most populous country. +
++Sundayâs elections cover more than just the presidency â Guatemalans will also elect the vice president and all 160 members of the unicameral legislature, as well as mayors and municipal governments in Guatemalaâs 340 municipios, and 20 members of the Central American Parliament. +
++Guatemalaâs government has the contours of a hybrid regime in that it holds elections, but they cannot be considered free or fair. Though its mechanisms appear democratic, the underlying practice â how the powerful used those mechanisms and institutions â tends toward autocracy. +
++Guatemalaâs Constitutional Court prohibited popular anti-establishment candidates like businessman Carlos Pineda, Indigenous leader Thelma Cabrera, and businessman and political scion Roberto ArzĂș from running in this yearâs elections; Cabrera and ArzĂș both ran in the 2019 elections but neither received enough votes to move to a runoff. Candidate Edmond Mulet was also threatened with potential exclusion from the race but is currently one of three frontrunners, along with Zury RĂos and Sandra Torres. +
++All three leading candidates have ties to previous governments; RĂos was a long-time member of Congress and is the daughter of General EfraĂn RĂos Montt, who took over the government in a 1982 coup and in 2013 was convicted of ordering acts of genocide to suppress internal dissent, though that conviction was later vacated. Torres is a former first lady who is making her third bid for the presidency; in 2015 and 2019, she finished second. Mulet is a center-right former member of Congress and diplomat whose surprising prominence in this yearâs elections was aided by Pinedaâs removal from the ballot, according to Reuters. +
++Torres and Mulet have both put forth policies aimed at helping Guatemalaâs poor, while RĂos has promised a crackdown on crime similar to that seen in neighboring El Salvador under authoritarian President Nayib Bukele. +
++Guatemalan democracy rests on shaky foundations +
++Like many post-colonial Latin American countries, Guatemala has never had a clear and easy path to a truly democratic system with strong and independent institutions. +
++The US interrupted Guatemalaâs initial transition to democracy in the 1950s; the CIA instituted a plan, called Operation PBFORTUNE, to overthrow Guatemalaâs elected leftist President Jacobo Arbenz. Arbenzâs land reform project threatened the United Fruit Company, a US-based fruit concern that had manipulated Central American governments to serve its interests for years. In the Cold War 1950s, the US government was also concerned about Arbenzâs friendly relations with communist bloc countries, though the closeness of those relations, particularly to Soviet bloc nations, was likely exaggerated to support intervention. +
++That meddling likely sowed the seeds for decades of instability and civil war that were only abated by a peace process in the 1990s and reforms in the early 2000s. +
++In particular, the 2007 implementation of the ComisiĂłn Internacional Contra la Impunidad en Guatemala, or CICIG, aimed to root out criminal organizations and corruption in the government to bolster the rule of law. +
++Under CICIG, Guatemalan prosecutors were tasked with investigating crime at the highest levels, even bringing corruption charges against a former president and vice president, among others. It was enormously successful, providing a model for other Latin American countries where similar problems â state capture, organized crime, and graft â have been allowed to flourish with impunity. +
++That mandate expired in 2019 under former President Jimmy Morales, who faced his own accusations of corruption and pushed the country further into autocracy. +
++Troubling anti-democratic patterns and state capture, where governments significantly cater to the demands of private interests, continued under the deeply unpopular Giammattei. Juan Luis Font, a Guatemalan journalist and political analyst who left the country in 2022, told Vox that âGiammatei has spearheaded this capture for the benefit of corruption and the economic elite meekly accepts it.â +
++Both Giammattei and Attorney General MarĂa Consuelo Porras, who has been sanctioned by the US for âsignificant corruption,â have both been accused of graft; in 2021, the attorney generalâs office opened a probe into allegations that Giammattei had taken a bribe from a Russian businessman in exchange for a dock at one of Guatemalaâs primary ports, Reuters reported at the time. Juan Francisco Sandoval, the former head of Guatemalaâs Special Prosecutorâs Office Against Impunity, raised the allegations publicly, but then was quickly dismissed by Porras. +
++In addition to serious concerns about official corruption, government transparency and accountability, and civil rights violations, Guatemala suffers from serious violent crime. Human trafficking, drug and arms smuggling, and gang violence related to the drug trade all contribute to Guatemalaâs high crime levels, according to the Global Organized Crime Index. +
++Those opposed to the government and committed to exposing its wrongdoing have been forced to flee or risk prison time, as in the case of José Rubén Zamora, founder of the Guatemalan outlet El Periódico. +
++The justice system, however, is beholden to Guatemalaâs powerful elites, making it more responsive to their needs â like going after adversaries. +
++Furthermore, according to the Global Organized Crime Index, âorganized crime continues to penetrate the countryâs political system, particularly via links between drug cartels and members of congress, the army and law-enforcement authorities,â a 2021 report found. +
++âIndependent media and journalists are currently suffering a permanent attack against our work, freedom of expression, and the right of the population to be informed,â Marielos Monzon, a Guatemalan journalist, told Vox. +
++âWe see a malicious use of criminal law by the justice system and the public ministry to persecute journalists and columnists. And also attacks from social networks with defamation and slander. They want to silence and censor journalists by prosecuting and imprisoning them. Between 2022 and 2023 alone, 22 journalists had to go into exile to protect their freedom.â +
++What are Guatemalansâ choices in such a flawed system? +
++Without an independent media and strong institutions, this yearâs elections donât offer much for a more resilient and democratic Guatemala â nor a safer, more prosperous one â given the choice of candidates. As much as 13 percent of voting Guatemalans are so fed up with their countryâs politics that they plan to cast a ânullâ vote. +
++As of Sunday afternoon, Torres and Mulet appear to be the front runners, though RĂos cannot yet be discounted. +
++RĂos, the daughter of former dictator RĂos Montt, has campaigned on an anti-corruption platform, but Font told Vox she ârepresent[s] the most accurate continuity of the system.â RĂos has also embraced the strongman tactics of Bukele in dealing with organized crime, calling his system of jailing thousands of people for suspected affiliation with gangs âa model.â +
++Mulet and Torres have both denounced what they have said are voting irregularities. âThere are worrying reports that the ruling party is using the coercion of money and power,â Mulet said this afternoon as he cast his ballot, according to TeleSUR. âThese elections are key opportunities to put a stop to corruption.â +
++Mulet has also campaigned against corruption; however, he has come out against CICIG during his campaign despite his past support for the commission. âCICIG never again in Guatemala,â he tweeted in May. âWeâre not going to revive something thatâs in the past,â he added in an accompanying video, in which he also said that corruption is âdestroying Guatemalaâ and his party would âbe determined in this fight.â +
++Muletâs political party, Cabal, âis less of a bloc and more of an alliance of convenience,â according to a report by InSight Crime, and includes politicians and parties accused of widespread, significant corruption. Mulet has implied that he would oust Porras should he win the presidency â a critical step in the fight against corruption, and seems to be less caught up in the general web of corruption in Guatemalaâs political system than those currently in power. +
++Torresâs party, Unidad Nacional de la Esperanza or UNE, is deeply entrenched in Congress and though itâs an important power, it reportedly trades favors like government jobs and contracts for votes. That tactic makes the party â and Torres as its head â more vulnerable to corruption. Furthermore, UNE is heavily involved with the executive branch, the judiciary, and the countryâs elites; should Torres win Sundayâs vote or a potential runoff, those facts donât bode well for a major change in Guatemalaâs politics. +
++Should no candidate win 50 percent of the vote in Sundayâs election, the top two will face each other in an August 20 runoff. +
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