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Third Circuit Provides Practical Guidance on Common Workplace Issues

Offensive Facebook Postings

In Chinery v. American Airlines, Melissa Chinery worked as a flight attendant for American Airlines based out of Philadelphia. She was represented by the Association of Professional Flight Attendants Union and ran for president of its Philadelphia local chapter in November 2014. Chinery lost the election, but claimed that during its course and thereafter, she was harassed by a group of flight attendants who were part of a Facebook group used primarily by Philadelphia-based flight attendants. American Airlines had nothing to do with the Facebook group and there was no evidence that the company was aware of posts within the group.

Specifically, Chinery cited numerous posts that used vulgar language about the union election that Chinery interpreted as being directed at her. There were also multiple posts that called Chinery’s supporters “cavalier harpies” and “shrews of misinformation” among other offensive gender-based phrases.

Chinery complained about these posts to American Airlines’ human resources department, which investigated her claims but found them to be meritless.

“Chinery claims that the investigator failed to adequately address her concerns and that American Airlines could have enforced its social media policy against the flight attendants at issue but chose not to.” Chinery brought suit against American, claiming that she was subject to a hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964. The district court granted summary judgment in favor of American and Chinery appealed.

Posts Were Not Harassing Under Title VII

Initially, the court affirmed dismissal of the sexual harassment claim, finding that the complained-of conduct was neither severe nor pervasive enough to “amount to a change in the terms and conditions of employment.” The court rejected Chinery’s novel argument that the allegedly offensive posts were “pervasive” because “social media posts are public and endure.” The court found no authority to suggest that “permanence” alone is enough for a reasonable trier of fact to conclude that the posts rose to the level of pervasiveness.

Secondly, while the posts were found to be offensive, the court affirmed that they constituted only “offhand comments and isolated incidents” that do not rise to the level of harassment as a matter of law.

Alleged Inadequate Investigation Is Not Harassment

Finally, Chinery argued that American’s failure to (in her mind) adequately investigate her claims and the company’s failure to enforce its social media policy constituted a level of “severe” harassment. The court also rejected this argument, finding that Chinery failed to show how “American’s shortcomings caused a material change in the terms of condition of her employment. Rather, any failure to investigate or discipline the flight attendants merely preserved the very circumstances that were the subject of the complaint.”

The case brings to the legal system a very real conundrum for employers in the age of social media. An employer, of course, is not responsible for intra-employee social media postings, but the court implied that the employer’s failure to investigate or apply its own social media policy might have some bearing on the question of whether respondeat superior liability may be attributed to the employer—but the (alleged) failure to follow policy will not, in and of itself, rise to the level of actionable harassment.

Inconsistent Statements Regarding Disability

In Ehnert v. Washington Penn Plastic, Hahns Ehnert was a temporary employee assigned by a staffing company to work at Washington Penn Plastic in April 2012. It was understood that Ehnert would be considered for hire by Washington Penn at the conclusion of his temporary assignment. While Ehnert worked at Washington Penn, he suffered from a “variety of medical conditions, but never requested any accommodations” from the company. On May 23, the last day at his workplace, Ehnert was advised by the staffing agency that he would not be hired on a permanent basis.

A few months later, in July 2012, Ehnert completed an application for Social Security disability insurance benefits on which he represented that he had been “unable to work due to a ‘disabling condition’ since May 21, 2012—two days before his temporary assignment at Washington Penn ended.” Ehnert was ultimately granted the sought-for SSDI benefits based upon a finding that he was “unable to perform any past relevant work” and that there are “no jobs that exist in significant numbers in a national economy that Ehnert can perform.”

Ehnert subsequently brought a claim against Washington Penn and the staffing agency, alleging that he had been discriminated against on the basis of his disability. Thus, Ehnert set up a classic “speaking out of both sides of your mouth” situation (McNemar v. Disney Store, 91 F.3d 610 (3d Cir. 1996)) in which his claim for disability benefits conflicted with his assertion that he was “otherwise qualified” to perform the duties of his position in his ADA claim. The district court granted summary judgment in favor of Washington Penn and Ehnert appealed.

LTD Representation Inconsistent With ADA Claim

The court began its consideration by noting that when a plaintiff’s claim that he was “a qualified individual with a disability” conflicts with a concurrent claim for disability benefits in which he asserts that he was “unable to work,” a court’s first inquiry is whether the representations are “patently inconsistent,” as in Cleveland v. Policy Management Systems,526 U.S. 795, 806 (1999). Ehnert argued that his apparently conflicting representations were not “patently inconsistent” because he represented to the Social Security Administration that “he could not work because he was being discriminated against.” The court rejected this argument based upon a finding that Ehnert represented “to the SSA that he was incapable of performing any work beginning May 21, 2012,” and that such representation “crashes face first against” his current representation that he “had been able to work at that time.”

Secondly, the court rejected Ehnert’s assertion that his representations could be reconciled because “reasonable accommodations are not considered by the SSA when making its decision.” While the court recognized this to be accurate, Ehnert presented no evidence that he had sought any accommodation during the course of his employment.

The case reinforces the need for employers and their counsel to review claims for disability benefits made by current or future (potential) litigants for the type of inconsistencies recognized by the court.

 

The utilization of social media as a means to alienate, intimidate, and bully women into submission cannot be tolerated.

The Melissa Chinery and Laura Medlin cases against American Airlines, cases currently being litigated by my firm, the Law Office of Faye Riva Cohen, P.C., have been featured in an article entitled “The utilization of social media as a means to alienate, intimidate, and bully women into submission cannot be tolerated,” on Now.org published on November 16, 2018, which can be found here.

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Melissa Chinery and Laura Medlin are two flight attendants who are suing American Airlines for negligence in handling their sexual harassment case. Forbes.com detailed the nature of the Chinery’s and Medlin’s claim. Chinery is a member of the Association of Professional Flight Attendants (APFA) union. She faced harsh online harassment from male union members and colleagues after Chinery ran for APFA local president.  Medlin says she faced similar harassment after attempting to take part in union activities. Both were called sexist, derogatory names such as “sow”, “flipper”(a euphemism for prostitute), and they used the c-word. After filing a report with the American Airlines Human Resources department, little was done to address Chinery’s harassment, according to Chinery. The online harassment escalated the more Chinery tried to seek help from within. Her car was keyed and anonymous numbers called to harass her mother. Amid the increasing attacks, American Airlines, according to Chinery, continuously failed to provide the two attendants with adequate support and protection.

The litigation between Chinery and Medlin against American Airlines started in June of 2016. Over the last two years, Chinery and Medlin provided ample evidence of a neglectful Human Resources department in their case. Dan Cleverly, a senior Human Resource investigator, admitted during the trial that Chinery’s harassment complaints were not properly investigated.

American Airline’s failure to enforce its social media policy showed a lack of understanding of the evolving nature of workplace harassment and discrimination. The utilization of social media as a means to alienate, intimidate, and bully women into submission cannot be tolerated. Additionally, the leadership of the Association of Professional Flight Attendants (APFA) should do a better job of countering harassment and intimidation by its members.

In September, Chinery and Medlin announced that are seeking an appeal after their case was ruled in favor of American Airlines. We stand with Chinery and Medlin and hope the appellate judge considers the new dimensions of the modern workplace. The continued fight for respect in the workplace needs to extend into online spaces as the internet becomes increasingly integrated into our lives.  Women deserve safe working environments online and offline.

Further Reading:

https://www.forbes.com/sites/tedreed/2018/09/12/american-airlines-flight-attendants-will-appeal-case-of-alleged-facebook-sexual-harassment/#d9baa5e16f66

Rebecca A. is a Government Relations Intern at the National Organization for Women (NOW) Action Center in Washington, DC. She is a student at the George Washington University.

Breaking Faith

The culture war over religious morality has faded; in its place is something much worse.

Over the past decade, pollsters charted something remarkable: Americans—long known for their piety—were fleeing organized religion in increasing numbers. The vast majority still believed in God. But the share that rejected any religious affiliation was growing fast, rising from 6 percent in 1992 to 22 percent in 2014. Among Millennials, the figure was 35 percent.

Some observers predicted that this new secularism would ease cultural conflict, as the country settled into a near-consensus on issues such as gay marriage. After Barack Obama took office, a Center for American Progress report declared that “demographic change,” led by secular, tolerant young people, was “undermining the culture wars.” In 2015, the conservative writer David Brooks, noting Americans’ growing detachment from religious institutions, urged social conservatives to “put aside a culture war that has alienated large parts of three generations.”

That was naive. Secularism is indeed correlated with greater tolerance of gay marriage and pot legalization. But it’s also making America’s partisan clashes more brutal. And it has contributed to the rise of both Donald Trump and the so-called alt-right movement, whose members see themselves as proponents of white nationalism. As Americans have left organized religion, they haven’t stopped viewing politics as a struggle between “us” and “them.” Many have come to define us and them in even more primal and irreconcilable ways.

When pundits describe the Americans who sleep in on Sundays, they often conjure left-leaning hipsters. But religious attendance is down among Republicans, too. According to data assembled for me by the Public Religion Research Institute (PRRI), the percentage of white Republicans with no religious affiliation has nearly tripled since 1990. This shift helped Trump win the GOP nomination. During the campaign, commentators had a hard time reconciling Trump’s apparent ignorance of Christianity and his history of pro-choice and pro-gay-rights statements with his support from evangelicals. But as Notre Dame’s Geoffrey Layman noted, “Trump does best among evangelicals with one key trait: They don’t really go to church.” A Pew Research Center poll last March found that Trump trailed Ted Cruz by 15 points among Republicans who attended religious services every week. But he led Cruz by a whopping 27 points among those who did not.

Why did these religiously unaffiliated Republicans embrace Trump’s bleak view of America more readily than their churchgoing peers? Has the absence of church made their lives worse? Or are people with troubled lives more likely to stop attending services in the first place? Establishing causation is difficult, but we know that culturally conservative white Americans who are disengaged from church experience less economic success and more family breakdown than those who remain connected, and they grow more pessimistic and resentful. Since the early 1970s, according to W. Bradford Wilcox, a sociologist at the University of Virginia, rates of religious attendance have fallen more than twice as much among whites without a college degree as among those who graduated college. And even within the white working class, those who don’t regularly attend church are more likely to suffer from divorce, addiction, and financial distress. As Wilcox explains, “Many conservative, Protestant white men who are only nominally attached to a church struggle in today’s world. They have traditional aspirations but often have difficulty holding down a job, getting and staying married, and otherwise forging real and abiding ties in their community. The culture and economy have shifted in ways that have marooned them with traditional aspirations unrealized in their real-world lives.”

The worse Americans fare in their own lives, the darker their view of the country. According to PRRI, white Republicans who seldom or never attend religious services are 19 points less likely than white Republicans who attend at least once a week to say that the American dream “still holds true.”

But non-churchgoing conservatives didn’t flock to Trump only because he articulated their despair. He also articulated their resentments. For decades, liberals have called the Christian right intolerant. When conservatives disengage from organized religion, however, they don’t become more tolerant. They become intolerant in different ways. Research shows that evangelicals who don’t regularly attend church are less hostile to gay people than those who do. But they’re more hostile to African Americans, Latinos, and Muslims. In 2008, the University of Iowa’s Benjamin Knoll noted that among Catholics, mainline Protestants, and born-again Protestants, the less you attended church, the more anti-immigration you were. (This may be true in Europe as well. A recent thesis at Sweden’s Uppsala University, by an undergraduate named Ludvig Broomé, compared supporters of the far-right Swedish Democrats with people who voted for mainstream candidates. The former were less likely to attend church, or belong to any other community organization.)

How might religious nonattendance lead to intolerance? Although American churches are heavily segregated, it’s possible that the modest level of integration they provide promotes cross-racial bonds. In their book, Religion and Politics in the United States, Kenneth D. Wald and Allison Calhoun-Brown reference a different theory: that the most-committed members of a church are more likely than those who are casually involved to let its message of universal love erode their prejudices.

Whatever the reason, when cultural conservatives disengage from organized religion, they tend to redraw the boundaries of identity, de-emphasizing morality and religion and emphasizing race and nation. Trump is both a beneficiary and a driver of that shift.

So is the alt-right. Read Milo Yiannopoulos and Allum Bokhari’s famous Breitbart.com essay, “An Establishment Conservative’s Guide to the Alt-Right.” It contains five references to “tribe,” seven to “race,” 13 to “the west” and “western” and only one to “Christianity.” That’s no coincidence. The alt-right is ultra-conservatism for a more secular age. Its leaders like Christendom, an old-fashioned word for the West. But they’re suspicious of Christianity itself, because it crosses boundaries of blood and soil. As a college student, the alt-right leader Richard Spencer was deeply influenced by Friedrich Nietzsche, who famously hated Christianity. Radix, the journal Spencer founded, publishes articles with titles like “Why I Am a Pagan.” One essay notes that “critics of Christianity on the Alternative Right usually blame it for its universalism.”

Secularization is transforming the left, too. In 1990, according to PRRI, slightly more than half of white liberals seldom or never attended religious services. Today the proportion is 73 percent. And if conservative nonattenders fueled Trump’s revolt inside the GOP, liberal nonattenders fueled Bernie Sanders’s insurgency against Hillary Clinton: While white Democrats who went to religious services at least once a week backed Clinton by 26 points, according to an April 2016 PRRI survey, white Democrats who rarely attended services backed Sanders by 13 points.

Sanders, like Trump, appealed to secular voters because he reflected their discontent. White Democrats who are disconnected from organized religion are substantially more likely than other white Democrats to call the American dream a myth. Secularism may not be the cause of this dissatisfaction, of course: It’s possible that losing faith in America’s political and economic system leads one to lose faith in organized religion. But either way, in 2016, the least religiously affiliated white Democrats—like the least religiously affiliated white Republicans—were the ones most likely to back candidates promising revolutionary change.

The decline of traditional religious authority is contributing to a more revolutionary mood within black politics as well. Although African Americans remain more likely than whites to attend church, religious disengagement is growing in the black community. African Americans under the age of 30 are three times as likely to eschew a religious affiliation as African Americans over 50. This shift is crucial to understanding Black Lives Matter, a Millennial-led protest movement whose activists often take a jaundiced view of established African American religious leaders. Brittney Cooper, who teaches women’s and gender studies as well as Africana studies at Rutgers, writes that the black Church “has been abandoned as the leadership model for this generation.” As Jamal Bryant, a minister at an AME church in Baltimore, told The Atlantic’s Emma Green, “The difference between the Black Lives Matter movement and the civil-rights movement is that the civil-rights movement, by and large, was first out of the Church.”

Black Lives Matter activists sometimes accuse the black Church of sexism, homophobia, and complacency in the face of racial injustice. For instance, Patrisse Cullors, one of the movement’s founders, grew up as a Jehovah’s Witness but says she became alienated by the fact that the elders were “all men.” In a move that faintly echoes the way some in the alt-right have traded Christianity for religious traditions rooted in pagan Europe, Cullors has embraced the Nigerian religion of Ifa. To be sure, her motivations are diametrically opposed to the alt-right’s. Cullors wants a spiritual foundation on which to challenge white, male supremacy; the pagans of the alt-right are looking for a spiritual basis on which to fortify it. But both are seeking religions rooted in racial ancestry and disengaging from Christianity—which, although profoundly implicated in America’s apartheid history, has provided some common vocabulary across the color line.

Critics say Black Lives Matter’s failure to employ Christian idiom undermines its ability to persuade white Americans. “The 1960s movement … had an innate respectability because our leaders often were heads of the black church,” Barbara Reynolds, a civil-rights activist and former journalist, wrote in The Washington Post. “Unfortunately, church and spirituality are not high priorities for Black Lives Matter, and the ethics of love, forgiveness and reconciliation that empowered black leaders such as King and Nelson Mandela in their successful quests to win over their oppressors are missing from this movement.” As evidence of “the power of the spiritual approach,” she cited the way family members of the parishioners murdered at Charleston’s Emanuel AME church forgave Dylann Roof for the crime, and thus helped persuade local politicians to remove the Confederate flag from South Carolina’s Capitol grounds.

Black Lives Matter’s defenders respond that they are not interested in making themselves “respectable” to white America, whether by talking about Jesus or wearing ties. (Of course, not everyone in the civil-rights movement was interested in respectability either.) That’s understandable. Reformists focus on persuading and forgiving those in power. Revolutionaries don’t.

Black Lives Matter activists may be justified in spurning an insufficiently militant Church. But when you combine their post-Christian perspective with the post-Christian perspective growing inside the GOP, it’s easy to imagine American politics becoming more and more vicious.

In his book Twilight of the Elites, the MSNBC host Chris Hayes divides American politics between “institutionalists,” who believe in preserving and adapting the political and economic system, and “insurrectionists,” who believe it’s rotten to the core. The 2016 election represents an extraordinary shift in power from the former to the latter. The loss of manufacturing jobs has made Americans more insurrectionist. So have the Iraq War, the financial crisis, and a black president’s inability to stop the police from killing unarmed African Americans. And so has disengagement from organized religion.

Maybe it’s the values of hierarchy, authority, and tradition that churches instill. Maybe religion builds habits and networks that help people better weather national traumas, and thus retain their faith that the system works. For whatever reason, secularization isn’t easing political conflict. It’s making American politics even more convulsive and zero-sum.

For years, political commentators dreamed that the culture war over religious morality that began in the 1960s and ’70s would fade. It has. And the more secular, more ferociously national and racial culture war that has followed is worse.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

By PETER BEINART in The Atlantic and published in its April 2017 edition and can be found here.

Studies Are Usually Bunk, Study Shows

An interesting detail went overlooked in the fury over fired Google engineer James Damore ’s “diversity memo.” At the end of the document he calls for an end to mandatory “Unconscious Bias training.” Large corporations often force employees into re-education classes, this one a dull, hourlong, 41-slide seminar supported by study after study. Can these studies be trusted? Doubtful. Hands down, the two most dangerous words in the English language today are “studies show.”

The world is inundated with the manipulation of flighty studies to prove some larger point about mankind in the name of behavioral science. Pop psychologists have churned out mountains of books proving some intuitive point that turns out to be wrong. It’s “sciencey,” with a whiff of (false) authenticity.

Malcolm Gladwell is the master. In his 2008 book, “Outlier,” he argues that studies show no one is born better than anyone else. Instead success comes to those who put in 10,000 hours of practice. That does sound right, but maybe Steph Curry shoots hoops for 10,000 hours because he is better than everyone at basketball in the first place. Meanwhile I watch 10,000 hours of TV. Facing criticism, Mr. Gladwell somewhat recanted: “In cognitively demanding fields, there are no naturals.” News alert: Professional sports are cognitively demanding.

Many of the studies quoted in newspaper articles and pop-psychology books are one-offs anyway. In August 2015, the Center for Open Science published a study in which 270 researchers spent four years trying to reproduce 100 leading psychology experiments. They successfully replicated only 39. Yes, I see the irony of a study debunking a study, but add to this a Nature survey of 1,576 scientists published last year. “More than 70% of researchers have tried and failed to reproduce another scientist’s experiments,” the survey report concludes. “And more than half have failed to reproduce their own experiments.”

Bunk medical studies are worrisome, but who really cares about pop behavioral science? It’s easy to write this off as trivial, except millions take these studies and their conclusions seriously. The 2008 book “Nudge,” from academics Richard Thaler and Cass Sunstein, called for “libertarian paternalism” to push people in the right direction. But who decides what’s the right direction? Turns out the answer is Mr. Sunstein. He was hired by the Obama administration in 2009 to run the Office of Information and Regulatory Affairs. Call it psychobabble authoritarianism.

In his best seller “Blink,” Mr. Gladwell finds studies suggesting we are all unconsciously biased sexists, racists, genderists, ableists, and a litany of other “ists”—victimhood’s origin story. Newer research has deflated this theory, but the serious conclusions, and boring training seminars they inevitably lead to, remain. In her first debate against Donald Trump, Hillary Clinton channeled her inner Malcolm Gladwell and declared: “Implicit bias is a problem for everyone, not just police.” Everyone? Speak for yourself. It’s as if she called an entire slice of society deplorable.

Psych labs are being replaced. In the past decade, companies have built vast platforms to probe, test and study humans every time they search, like or snap. Google runs what are called Split A/B tests, dividing users into groups and testing usability and other features to see what works best. In 2014, Facebook caused a bit of a stir after altering 689,000 users’ newsfeeds to see if the company could manipulate their emotions. It could. Good or bad, this is the future of studies.

The world is not binary, but conclusions drawn from studies always are. These studies show whatever someone wants them to. So stay skeptical and remember: Correlation doesn’t equal causation. If only I could find a study that shows this.

Mr. Kessler writes on technology and markets for the Journal.

Copyright ©2019 Dow Jones & Company, Inc. All Rights Reserved.

Appeared in the August 14, 2017, print edition of the Wall Street Journal and can be found here.

Bums

Living the low-stakes life

I have lost touch with my friend Mark, and, assuming he is alive, it will be some work to track him down, because he is periodically homeless or semi-homeless. My first impression was that his economic condition was mainly the result of his having been for many years a pretty good addict and a pretty poor motorcyclist, a combination that had predictable neurological consequences. I never knew Mark “before” — there is something in such men as Mark suggesting an irrevocably bifurcated life — but the better I got to know him, the more I came to believe that he probably had been much the same man, but functional, or at least functional enough.

Part of it was an act, but not all of it. If you saw him on the street and called his name, he’d spin around on you, fists balled up, half enraged and half afraid, ready to fight, until he recognized you, which could sometimes take a few seconds longer than it should have. But then he was all smiles and wry commentary on the passers-by and the police. He’d gesture at passing police cars (he lived about two blocks from the police station) and say, “They all know me,” which was true. We talked about motorcycles and his longing to ride again, and he’d explain to me all the reasons why that was never, ever going to happen. “They’d lock me up,” he’d say darkly, which also was true. He’d sometimes ask to borrow mine, and I’d explain to him all the reasons why that was never, ever going to happen. “You’re a maniac.” This was an approved line of argument. “That’s right!” he’d thunder. Maniac was fine, but he objected to lunatic. He didn’t like bum very much, either, but he was a realist.

A 20-year-old man with adequate shelter, cheap food, computer games, weed, and a girlfriend is apt to be pretty content.

Necessity used to be what forced us to grow up. That was the stick, and sex was the carrot, and between the two of them young men were forced/inspired to get off their asses, go to work, and start families of their own from time immemorial until the day before yesterday. A 20-year-old man with adequate shelter, cheap food, computer games, weed, and a girlfriend is apt to be pretty content. Some of them understand that there is more to life than that, but some do not. David Foster Wallace’s great terror in Infinite Jest was entertainment so engrossing that those consuming it simply stopped doing anything else. (Is it necessary to issue a spoiler alert for a 1,000-page novel that’s 20 years old? Well, spoiler alert: It’s Québécois separatists.) He revisited the idea later in “Datum Centurio,” which is one of the all-time great short stories, one that is written in the form of a dictionary entry from the future for the word “date.” Over the course of the definition (and the inevitable footnotes), we learn that pornography has become so immersive in the future that conventional sexual behavior has been restricted entirely to procreation. The final footnote reads: “Cf. Catholic dogma, perverse vindication of.”

Tyler Cowen considers some of this in his new book, The Complacent Class, in which he argues (in the words of Walter Russell Meade’s review) that “the apparent stability of American society . . . is an illusion: behind the placid façade, technological change and global competition have combined with domestic discontent to bring forth a new age of disruption.”

By Kevin D. Williamson and published in National Review on February 26, 2017 and can be found here.

A Spectral Witness Materializes

The Salem witch trials turned on what was called “spectral evidence.” That was testimony from witnesses—either malicious or hysterical—who claimed the accused had assumed the form of a black cat or some other devilish creature and had come visiting in the night in order to torment the witness with bites and scratches, or to rearrange the bedroom furniture, or to send the baby into paroxysms.

The judge, William Stoughton, admitted this nonsense into evidence. Hysterical fantasies had real consequences: Sarah Good and four other defendants were hanged on July 19, 1692.

Three hundred twenty-six years later, an anonymous woman—a spectral and possibly nonexistent woman, for all that one knew when the story emerged—accused Brett Kavanaugh of sexually assaulting her 36 years ago, when he was a high-school student. It seemed as if the American constitutional process might be drawn back to the neighborhood of Salem, Mass. According to this phantom testimony, 17-year-old Brett held the girl down, pawed her and tried to force himself upon her, and held his hand over her mouth when she screamed, until a second prep-school devil piled on top, they all tumbled to the floor, and the girl managed to slip away. The boys were “stumbling drunk,” according to the account.

You were supposed to feel the sudden wind-shear of hypocrisy. The nominee was a seeming paragon—perfect father and husband and coach of his daughters’ basketball teams. He is a Roman Catholic with an Irish name, but now the script became as gleefully Calvinist as a Hawthorne tale. What imp of hell had possessed the Kavanaugh boy? The Protestant tale seemed to obtain subliminal verification against the background of Catholic sex-abuse scandals.

Thus the constitutional process takes on an aspect of the 21st-century medieval. The accuser’s story first emerged in a letter that came into the hands of California Sen. Dianne Feinstein. Ms. Feinstein brought it to light only after the Senate Judiciary Committee’s hearing, which featured somewhat Salem-like drama—costumed apparitions from “The Handmaid’s Tale” arranging themselves outside the committee room; inarticulate background screams of people being led away for disrupting the proceedings. It seemed as if Ms. Feinstein, not liking the odds of defeating Judge Kavanaugh’s confirmation, had found a devilishly clever way to head it off after all.

But then the accuser materialized, in the form of a 51-year-old California professor of clinical psychology, Christine Blasey Ford.

What to make of it now? The tale became a lot less spectral. Still, there had been no police report, and there were no witnesses. The second boy allegedly in the room said he had no memory of such an incident and called the accusation “absolutely nuts.” Judge Kavanaugh flatly denied it. Her therapist’s notes from 30 years later are not objective reporting, merely a transcription of what Ms. Ford herself said.

The thing happened—if it happened—an awfully long time ago, back in Ronald Reagan’s time, when the actors in the drama were minors and (the boys, anyway) under the blurring influence of alcohol and adolescent hormones. No clothes were removed, and no sexual penetration occurred. The sin, if there was one, was not one of those that Catholic theology calls peccata clamantia—sins that cry to heaven for vengeance.

The offense alleged is not nothing, by any means. It is ugly, and stupid more than evil, one might think, but trauma is subjective and hard to parse legally. Common sense is a little hard put to know what to make of the episode, if it happened. The dust of 36 years has settled over the memory. The passage of time sometimes causes people to forget; sometimes it causes them to invent or embellish. Invention takes on bright energies when its muse is politics, which is the Olympics of illusion. Inevitably, people will sort the matter out along mostly partisan lines. A lot will depend upon the testimony of Ms. Ford, who has volunteered to appear before the Senate Judiciary Committee. If the left expects a windfall from all this in November, it may find itself instead the victim of a terrific backlash.

These are part of the 21st century’s strange sectarian struggles. In another Senate hearing a year ago, Ms. Feinstein addressed Amy Coney Barrett, a Notre Dame law professor, about her nomination to the Seventh U.S. Circuit Court of Appeals. Ms. Feinstein began fretting earnestly about the nominee’s Catholicism. “The dogma lives loud within you,” the senator told the professor—an oddly mystical locution.

But 21st-century progressivism is also a religion—a militant faith, a true church in nearly all important respects. It is a community of belief and shared values, with dogmas, heresies, sacraments and fanatics; with saints it reveres and devils it abhors, starting with the great Satan Donald Trump. If religion were to disqualify a Catholic from public service, it would logically have to disqualify a practicing progressive, who is the creature of a belief system that is, on the whole, considerably more dogmatic than the one with headquarters in Rome.

By Lance Morrow , a senior fellow at the Ethics and Public Policy Center, is a former essayist for Ti

Published in the Wall Street Journal on September 17, 2018 (see here) and Wealth Creates Good on September 18, 2018 (see here).

Science Is Giving the Pro-Life Movement a Boost

Advocates are tracking new developments in neonatal research and technology—and transforming one of America’s most contentious debates.

A 1980s March for Life protest in front of the White House COURTESY OF MARCH FOR LIFE
The first time Ashley McGuire had a baby, she and her husband had to wait 20 weeks to learn its sex. By her third, they found out at 10 weeks with a blood test. Technology has defined her pregnancies, she told me, from the apps that track weekly development to the ultrasounds that show the growing child. “My generation has grown up under an entirely different world of science and technology than the Roe generation,” she said. “We’re in a culture that is science-obsessed.”

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Activists like McGuire believe it makes perfect sense to be pro-science and pro-life. While she opposes abortion on moral grounds, she believes studies of fetal development, improved medical techniques, and other advances anchor the movement’s arguments in scientific fact. “The pro-life message has been, for the last 40-something years, that the fetus … is a life, and it is a human life worthy of all the rights the rest of us have,” she said. “That’s been more of an abstract concept until the last decade or so.” But, she added, “when you’re seeing a baby sucking its thumb at 18 weeks, smiling, clapping,” it becomes “harder to square the idea that that 20-week-old, that unborn baby or fetus, is discardable.”

Scientific progress is remaking the debate around abortion. When the U.S. Supreme Court decided Roe v. Wade, the case that led the way to legal abortion, it pegged most fetuses’ chance of viable life outside the womb at 28 weeks; after that point, it ruled, states could reasonably restrict women’s access to the procedure. Now, with new medical techniques, doctors are debating whether that threshold should be closer to 22 weeks. Like McGuire, today’s prospective moms and dads can learn more about their baby earlier into a pregnancy than their parents or grandparents. And like McGuire, when they see their fetus on an ultrasound, they may see humanizing qualities like smiles or claps, even if most scientists see random muscle movements.

These advances fundamentally shift the moral intuition around abortion. New technology makes it easier to apprehend the humanity of a growing child and imagine a fetus as a creature with moral status. Over the last several decades, pro-life leaders have increasingly recognized this and rallied the power of scientific evidence to promote their cause. They have built new institutions to produce, track, and distribute scientifically crafted information on abortion. They hungrily follow new research in embryology. They celebrate progress in neonatology as a means to save young lives. New science is “instilling a sense of awe that we never really had before at any point in human history,” McGuire said. “We didn’t know any of this.”

In many ways, this represents a dramatic reversal; pro-choice activists have long claimed science for their own side. The Guttmacher Institute, a research and advocacy organization that defends abortion and reproductive rights, has exercised a near-monopoly over the data of abortion, serving as a source for supporters and opponents alike. And the pro-choice movement’s rhetoric has matched its resources: Its proponents often describe themselves as the sole defenders of women’s welfare and scientific consensus. The idea that life begins at conception “goes against legal precedent, science, and public opinion,” said Ilyse Hogue, the president of the abortion-advocacy group NARAL Pro-Choice America, in a recent op-ed for CNBC. Members of the pro-life movement are “not really anti-abortion,” she wrote in another piece. “They are against [a] world where women can contribute equally and chart our own destiny in ways our grandmothers never thought possible.”

In their own way, both movements have made the same play: Pro-life and pro-choice activists have come to see scientific evidence as the ultimate tool in the battle over abortion rights. But in recent years, pro-life activists have been more successful in using that tool to shift the terms of the policy debate. Advocates have introduced research on the question of fetal pain and whether abortion harms women’s health to great effect in courtrooms and legislative chambers, even when they cite studies selectively and their findings are fiercely contested by other members of the academy.

Not everyone in the pro-life movement agrees with this strategic shift. Some believe new scientific findings might work against them. Others warn that overreliance on scientific evidence could erode the strong moral logic at the center of their cause. The biggest threat of all, however, is not the potential damage to a particular movement. When scientific research becomes subordinate to political ends, facts are weaponized. Neither side trusts the information produced by their ideological enemies; reality becomes relative.

Abortion has always stood apart from other topics of political debate in American culture. It has remained morally contested in a way that other social issues have not, at least in part because it asks Americans to answer unimaginably serious questions about the nature of human life. But perhaps this ambiguity, this scrambling of traditional left-right politics, was always unsustainable. Perhaps it was inevitable that abortion would go the way of the rest of American politics, with two sides that share nothing lobbing claims of fact across a no-man’s land of moral debate.

When Colleen Malloy, a neonatologist and faculty member at Northwestern University, discusses abortion with her colleagues, she says, “it’s kind of like the emperor is not wearing any clothes.” Medical teams spend enormous effort, time, and money to deliver babies safely and nurse premature infants back to health. Yet physicians often support abortion, even late into fetal development.

As medical techniques have become increasingly sophisticated, Malloy said, she has felt this tension acutely: A handful of medical centers in major cities can now perform surgeries on genetically abnormal fetuses while they’re still in the womb. Many are the same age as the small number of fetuses aborted in the second or third trimesters of a mother’s pregnancy. “The more I advanced in my field of neonatology, the more it just became the logical choice to recognize the developing fetus for what it is: a fetus, instead of some sort of sub-human form,” Malloy said. “It just became so obvious that these were just developing humans.”

Malloy is one of many doctors and scientists who have gotten involved in the political debate over abortion. She has testified before legislative bodies about fetal pain—the claim that fetuses can experience physical suffering, perhaps even prior to the point of viability outside the womb—and written letters to the U.S. Senate Judiciary Committee.

Her career also shows the tight twine between the science and politics of abortion. In addition to her work at Northwestern, Malloy has produced work for the Charlotte Lozier Institute, a relatively new D.C. think tank that seeks to bring “the power of science, medicine, and research to bear in life-related policymaking, media, and debates.” The organization, which employs a number of doctors and scholars on its staff, shares an office with Susan B. Anthony List, a prominent pro-life advocacy organization.

“I don’t think it compromises my objectivity, or any of our associate scholars,” said David Prentice, the institute’s vice president and research director. Prentice spent years of his career as a professor at Indiana State University and at the Family Research Council, a conservative Christian group founded by James Dobson. “Any time there’s an association with an advocacy group, people are going to make assumptions,” he said. “What we have to do is make our best effort to show that we’re trying to put the objective science out here.”

This desire to harness “objective science” is at the heart of the pro-science bent in the pro-life movement: Science is a source of authority that’s often treated as unimpeachable fact. “The cultural authority of science has become so totalitarian, so imperial, that everybody has to have science on their side in order to win a debate,” said Mark Largent, a historian of science at Michigan State University.

Some pro-life advocates worry about the potential consequences of overemphasizing the authority of science in abortion debates. “The question of whether the embryo or fetus is a person … is not answerable by science,” said Daniel Sulmasy, a professor of biomedical ethics at Georgetown University and former Franciscan friar. “Both sides tend to use scientific information when it is useful towards making a point that is based on … firmly and sincerely held philosophical and religious convictions.”

For all the ways that the pro-life movement might be seen as countering today’s en vogue sexual politics, its obsession with science is squarely of the moment. “We’ve become steeped in a culture in which only the data matter, and that makes us, in some ways, philosophically illiterate,” said Sulmasy, who is also a doctor. “We really don’t have the tools anymore for thinking and arguing outside of something that can be scientifically verified.”

Sometimes, scientific discoveries have worked against the pro-life movement’s goals. Jérôme Lejeune, a French scientist and devout Catholic, helped discover the cause of Down syndrome. He was horrified that prenatal diagnosis of the disease often led women to terminate their pregnancies, however, and spent much of his career advocating against abortion. Lejeune eventually became the founding president of the Vatican’s Pontifical Academy for Life, established in 1994 to navigate the moral and theological questions raised by scientific advances against a “‘culture of death’ that threatens to take control.”

When scientific evidence seems to undermine pro-life positions on issues such as birth control and in vitro fertilization, pro-lifers’ enthusiasm for research sometimes wanes. For example: Some people believe emergency contraception, also known as the morning-after pill or Plan B, is an abortifacient, meaning it may end pregnancies. Because the pill can prevent a fertilized egg from implanting in a woman’s uterus, advocates argue, it could end a human life.

Sulmasy, who openly identifies as pro-life, has argued against this view of the drug—and found it difficult to reach his peers in the movement. “It’s been very difficult to convince folks within the pro-life community that the science seems to be … suggesting that [Plan B] is not abortifacient,” he said. “They are too readily dismissing that work as being motivated by advocacy.”

And at a basic level, the argument for abortion is also framed in scientific terms: The procedures are “gynecological services, and they’re health-care services,” Cecile Richards, the president of Planned Parenthood, says. This alone is enough to make even gung ho pro-life advocates wary. “Science for science’s sake is not necessarily good,” said McGuire, who serves as a senior fellow at the Catholic Association. “If anything, that’s what gave us abortion. … When the moral and human ethics are removed from it, it’s considered a medical procedure.”

Even with all these internal debates and complications, many in the pro-life movement feel optimistic that scientific advances are ultimately on their side. “Science is a practice of using systematic methods to study our world, including what human organisms are in their early states,” said Farr Curlin, a physician who holds joint appointments at Duke University’s schools of medicine and divinity. “I don’t see any way it’s not an ally to the pro-life cause.”

Pro-lifers’ enthusiasm for science isn’t always reciprocated by scientists—sometimes, quite the opposite. Last summer, Vincent Reid, a professor of psychology at Lancaster University in the United Kingdom, published a paper showing that late-development fetuses prefer to look at face-like images while they’re in the womb, just like newborn infants. As Reid told The Atlantic’s Ed Yong, the study “tells us that the fetus isn’t a passive processor of environmental information. It’s an active responder.”

After his research was published, Reid suddenly found himself showered with praise from American pro-life advocates. “I had a few people contacting me, congratulating me on my great work, and then giving a kind of religious overtone to it,” he told me. “They’d finish off by saying, ‘Bless you,’ this sort of thing.” Pro-life advocates interpreted his findings as evidence that abortion is wrong, even though Reid was studying fetuses in their third trimester, which account for only a tiny fraction of abortions, he said. “It clearly resonated with them because they had a preconceived notion of what that science means.”

Reid found the experience perplexing. “I’m very proud of what I did … because it made genuine advances in our understanding of human development,” he said. “It’s frustrating that people take something which actually has no relevance to the position of anti-abortion or pro-abortion and try to use it … in a way that’s been pre-ordained.” He’s not going to stop doing his research on fetal development, he said. But he “will probably be a bit more heavy, perhaps, in my anticipation of how it’s going to be misused.”

This fate is nearly impossible to avoid in any field that remotely touches on abortion or origin-of-life issues. “There [are] no people who are just sitting in a lab, working on their projects,” said O. Carter Snead, a professor of law and political science at Notre Dame who served as general counsel to President George W. Bush’s Council of Bioethics. “Everybody is politicized.” This is true even of researchers like Reid, who was blindsided by the reaction to his findings. “You can’t do this and not get sucked into somebody’s orbit,” said Largent, the Michigan State professor. “Everyone’s going to take your work and use it for their ends. If you’re going to do this, you either decide who’s going to get to use your work, or it’s done to you.”

That can have a chilling effect on scientists who work in sensitive areas related to conception or death. Abortion is “the third-rail of research,” said Debra Mathews, an associate professor of pediatrics at Johns Hopkins who also has responsibility for science programs at the university’s bioethics institute.* “If you touch it, your research becomes associated with that debate.” Although the abortion debate is important, she said, it can be intimidating for researchers: “It tends to envelop whatever it touches.”

As often as not, scientists dive into the debate, taking funding from pro-life or pro-choice organizations or openly advancing an ideological position. This, too, has consequences: It casts doubt on the validity and integrity of any researcher in bioethics-related fields. “Anybody with money can get a scientist to say what they want them to say,” said Largent. “That’s not because scientists are whores. It’s because the world is a really complex place, and there are ways that you can craft a scientific investigation to lend credence to one side or another.”

This can have a fun-house-mirror effect on the scientific debate, with scholars on both sides constantly criticizing the methodological shortcomings of their opponents and coming to opposite conclusions. For example: Priscilla Coleman is a professor at Bowling Green State University who studies the mental-health effects of abortion. Coleman has testified before Congress, and pro-life advocates cite her as an important scholar working on this issue. At least some of her work, however, has been challenged repeatedly by others in her field: When she published a paper on the connection between abortion and anxiety, mood, and substance-abuse disorders in 2009, for instance, a number of scholars suggested her research design led her to draw false conclusions. She and her co-author claimed they had only made a weighting error and published a corrigendum, or corrected update. But ultimately, the author of the dataset Coleman used concluded that her “analysis does not support … assertions that abortions led to psychopathology.”

“If the results are questionable or not reproducible, then the study gets retracted. That’s what happens in science,” Coleman said in an interview. “The bottom line was that the pattern of the findings did not change.” She expressed frustration at media reports that questioned her work. “I’m so past trying to defend myself in these types of articles,” she said. “To me, there isn’t anything much worse than distorting science for an agenda, when the ultimate impact falls on these women who spend years and years suffering.”

At least in one respect, she is correct: Her opponents often do have affiliations with the pro-choice movement. In this case, one of the researchers questioning her work was associated with the Guttmacher Institute, a pro-abortion organization. In an email, Lawrence Finer, the co-author who serves as Guttmacher’s vice president for research, said that Coleman’s results were simply not reproducible. While Guttmacher advocates for abortion rights, the difference, Finer claimed, is that it places a priority on transparency and integrity—which, he implied, the other side does not. “It’s actually not difficult to distinguish neutral analysis from advocacy,” he wrote in an email. “The way that’s done is by making one’s analytical methods transparent and by submitting one’s analysis—‘neutral’ or not—to peer review. No researcher—no person, for that matter—is neutral; everyone has an opinion. What matters is whether the researcher’s methods are appropriate and reproducible.”

“There is a false equivalence between the science and what [Coleman] does,” added Julia Steinberg, an assistant professor at the University of Maryland’s School of Public Health and Finer’s co-author, in an email. “It’s not a debate, the way global warming is not a debate. There are people claiming global warming is not occurring, but scientists have compelling evidence that it is occurring. Similarly, there are people like Coleman, claiming abortion harms women’s mental health, but the scientists have compelling evidence that this is not occurring.”

Yet, even the academy that establishes and promotes transparent methodologies for science research has its own institutional biases. Since support for legal abortion rights is commonly seen as a neutral position in the academy, said Sulmasy, openly pro-life scholars may have a harder time getting their colleagues to take their work seriously. “If an article is written by somebody who … is affiliated with a pro-life group or has a known pro-life stand on it, that scientific evaluation is typically dismissed as advocacy,” he said. “Prevailing prejudices within academia and media” determine “what gets considered to be advocacy and what is considered to be scientifically valid.”

Pro-life optimists believe those biases might be changing—or, at least, they hope they’ve captured the territory of scientific authority. As the former NARAL president Kate Michelman told Newsweek in 2010, “The technology has clearly helped to define how people think about a fetus as a full, breathing human being … The other side has been able to use the technology to its own end.” In recent years, this has been the biggest change in the abortion debate, said Jeanne Mancini, the president of March for Life: Pro-choice advocates have largely given on up on the argument that fetuses are “lifeless blobs of tissue.”

“There had been, a long time ago, this mantra from our friends on the other side of this issue that, while a little one is developing in its mother’s womb, it’s not a baby,” she said. “It’s really hard to make that argument when you see and hear a heartbeat and watch little hands moving around.”

Ultimately, this is the pro-life movement’s reason for framing its cause in scientific terms: The best argument for protecting life in the womb is found in the common sense of fetal heartbeats and swelling stomachs. “The pro-life movement has always been a movement aimed at cultivating the moral imagination so people can understand why we should care about human beings in the womb,” said Snead, the Notre Dame professor. “Science has been used, for a long time, as a bridge to that moral imagination.”

Now, the pro-life movement has successfully brought their scientific rallying cry to Capitol Hill. In a recent promotional video for the Charlotte Lozier Institute, Republican legislators spoke warmly about how data helps make the case for limiting abortion. “When we have very difficult topics that we need to talk about, the Charlotte Lozier Institute gives credibility to the testimony and to the information that we’re giving others,” said Tennessee Representative Diane Black. Representative Claudia Tenney of New York agreed: “We’re winning on facts, and we’re winning hearts and minds on science.”

This, above all, represents the shift in America’s abortion debate: An issue that has long been argued in normative claims about the nature of human life and women’s autonomy has shifted toward a wobbly empirical debate. As Tenney suggested, it is a move made with an eye toward winning—on policy, on public opinion, and, ultimately, in courtrooms. The side effect of this strategy, however, is ever deeper politicization and entrenchment. A deliberative democracy where even basic facts aren’t shared isn’t much of a democracy at all. It’s more of an exhausting tug-of-war, where the side with the most money and the best credentials is declared the winner.

* This article has been updated to clarify that Mathews helps run science programs at the Johns Hopkins Berman Institute of Bioethics, rather than the institute itself.

By Emma Green and published in January 18, 2018 in The Atlantic and can be found here.

America’s ‘broken’ Constitution is exactly what the founders intended

Next month, the Democrats may win a significant majority of the votes for the House of Representatives and an overwhelming majority of the votes for the Senate and still fail to take the majority in either. They might even lose seats in the Senate.

That sounds like prima facie evidence that American democracy is badly broken. But it’s exactly the result America’s system was designed to deliver.

The Senate, which guarantees each state equal representation, was devised from the beginning to be a check on the democratic centralist tendencies that the founders presumed would dominate the House of Representatives. Unlike the infamous three-fifths compromise, this was not a measure meant to placate (or mitigate) the interests of the slave states. The largest state in the 1790 census (and by far the largest when slaves are included) was Virginia. Other slave states like North and South Carolina were also under-represented relative to their total population in the nascent Senate, while Rhode Island, Maine, and Vermont were all over-represented.

Rather, the Senate was designed to prevent the interests of large states, slave or free, from completely dominating those of small states. While the large states would dominate in the House, as well as in the corridors of power generally, the Senate would give the small states an opportunity to extract concessions as part of the legislative process.

Is that an affront to democracy? It depends what your theory of democracy is. If democracy is about discerning and implementing the will of the majority of its citizens, then a system that frustrates that will is clearly unjust. But a political system’s legitimacy depends, ultimately, on all its various segments and factions accepting its decisions. If the states are seen as distinct and at least semi-sovereign bodies with interests of their own, it’s not obviously unjust to seek ways to alleviate the reasonable fears of the weakest among them, anymore than it is obviously unjust to give Scotland or Quebec special rights and powers so as to encourage them to remain in the United Kingdom and Canada respectively.

Of course, if the small states all voted as a bloc against the large states, that could be a serious problem. But today’s Senate is not as biased against Democrats as one might think. The 16 smallest states by population have between them 16 Democratic senators (including independents who caucus with the Democrats) and 16 Republicans — and the Democrats actually represent fewer aggregate voters than the Republicans do. Even if Sens. Heidi Heitkamp (D-N.D.) and Jon Tester (D-Mont.) both lose their seats, the partisan split would still be fairly close.

Rather, the bias against Democrats and toward Republicans comes higher up the population scale. From Mississippi to Missouri, the 17 states in the middle-rank of population have a total of 21 Republican senators and 13 Democrats. By contrast, the largest 17 states are represented by 14 Republicans and 20 Democrats. And 75 percent of the disparity between the population represented by the average Democratic senator and the average Republican senator can be explained by a single mega-state: California. The counter-majoritarian structure of the Senate sounds less obviously absurd when you describe it as a way of keeping California from pushing the rest of the country around.

The House of Representatives, of course, is another matter. It was designed to represent the people directly, and the fact that Democrats could lose the House even if they won a significant majority of votes should be troubling. But this, too, is a potential consequence of any territory-based system of voting. For instance, Westminster-style parliamentary systems can also produce minority governments (and have, in recent memory, in both the U.K. and Canada) when the ideological majority is divided between multiple parties, or when it is “inefficiently” distributed, with lopsided majorities for one side in some districts and thinner majorities for the other side in other districts. Gerrymandering makes this problem worse, and is completely unjustified by any democratic theory. But even neutrally-drawn districts would, in America today, probably result in a bias towards the Republicans because of the scale of Democratic majorities in uncompetitive urban districts.

Is that an affront to democracy? Again, it depends on what your theory of democracy is. A territorial system of representation is designed to assure that individual representatives are attentive to the particular interests of their districts. If a population’s true interests are no longer driven by geography, but by other factors, then that’s an argument for shifting to a system of proportional representation.

But it’s worth pointing out that such systems can also be stymied by determined minorities — and can prove distinctly oppressive to other minorities. Consider Israel. Parties representing ultra-Orthodox Jewish voters have nearly always been part of the governing coalition, whether of the right or of the left, and have repeatedly stymied broadly-popular efforts to rein in the power of the rabbinate. By contrast, the Arab-dominated parties have never been part of any coalition government and have far less influence over national policy than their population would suggest they should.

My point is not to minimize the drift in America against liberal democracy. Rather, it’s to illustrate that profound cultural cleavages can warp and distort any democratic system. And it’s those cleavages rather than our kludgy, frequently counter-majoritarian system that are to blame for the uphill climb the Democrats face in assembling a governing majority.

In our system, such a governing majority must be geographically broad, must overweight rural interests, and must overweight the interests of small states. One party has found success in deliberately deepening those cleavages, the better to build a governing majority out of a dispersed minority. The other party can only counter that strategy by adopting a politics that finds genuine common ground, not with the other party, but with the dispersed minority that increasingly votes for it.

Because if the counter-majoritarian kludges of our system are the problem, there are hard limits to what we can do about it. Even amending the Constitution won’t necessarily do the trick. Article V specifies that while the Constitution can be amended in nearly all ways, there are exceptions, specifically: “[N]o state, without its consent, shall be deprived of its equal suffrage in the Senate.”

However hard winning a majority might be, it’s got to be easier than unanimity.

By Noah Millman and published in The Week on October 25, 2018 and can be found here.

Explosive Ivy League Study Repressed For Finding Transgender Kids May Be A Social Contagion

“Rapid-onset gender dysphoria” among teens and young adults may be a social contagion linked with having friends who identify as LGBT, an identity politics peer culture, and an increase in internet use, finds a study out this month from a Brown University professor. The study was quickly yanked from Brown’s news releases after a transgender activist feeding frenzy, and the journal it was published in is reconsidering the publication. There is a parent and researcher-driven petition to stand behind the publication of the first study to look in detail at rapid-onset gender dysphoria.

The petition includes the following graph about gender referrals in the United Kingdom. Anecdotal and news reports, as well as the rapid recent growth in transgender treatment centers, indicates a similar phenomenon inside the United States.

“[T]he parental reports in this study offer important and much-needed preliminary information about a cohort of adolescents, mostly girls, who with no prior history of dysphoria, are requesting irreversible medical interventions, including the potential to impair fertility and future sexual function,” says the petition. “In any other group of children, these grave consequences would be seen as human rights violations unless there was significant and overwhelming evidence these procedures would be beneficial long-term.”

Despite these facts on the ground, Brown issued a statement Tuesday effectively apologizing for publicizing their own professor’s research because, “Brown community members express[ed] concerns that the conclusions of the study could be used to discredit efforts to support transgender youth and invalidate the perspectives of members of the transgender community.”

“The spirit of free inquiry and scholarly debate is central to academic excellence,” said the statement from Bess Marcus, the dean of Brown’s School of Public Health. “At the same time, we believe firmly that it is also incumbent on public health researchers to listen to multiple perspectives and to recognize and articulate the limitations of their work.”

Hm, I wonder if she would worry about “invalidating the perspectives of members of the alternative  health community” after a Brown researcher published a study indicating a vaccine is effective and anti-vaxxers went crazy about it on Twitter. Doubtful.

The reason trans activists went nuts is that the study reinforces what plenty of parents, public health experts, and doctors have been saying: Transgenderism looks a lot like a dangerous fad. It’s telling that their response was to demand suppressing the results. It’s also telling that Brown chose to prioritize the unreasonable demands of a tiny minority above the potential well-being of children and the process of scientific inquiry.

How This Study Came About

The study is authored by Lisa Littman, a behavior and social sciences professor at Brown, and an OB-GYN whose publications are mainly in reproductive health and abortion. Here’s the phenomenon that caused her to conduct the study to learn more:

Parents have described clusters of gender dysphoria outbreaks occurring in pre-existing friend groups with multiple or even all members of a friend group becoming gender dysphoric and transgender-identified in a pattern that seems statistically unlikely based on previous research. Parents describe a process of immersion in social media, such as ‘binge-watching’ Youtube transition videos and excessive use of Tumblr, immediately preceding their child becoming gender dysphoric. These descriptions are atypical for the presentation of gender dysphoria described in the research literature…

Littman recruited for the study by posting on the transgender-critical websites 4thWaveNow, Transgender Trend, and YouthTransCriticalProfessionals, seeking parents of adolescents who had quickly come out as transgender. She recruited 256 parents of children ages 11 to 27. They filled out a 90-question survey that took about 30-60 minutes to complete. Eighty percent of their transgender-identifying children were female, and on average the kids came out at age 15.

Littman found a number of things that make transgender narratives look terrible. For example, she explored the horrifyingly irresponsible lies anonymous internet users frequently offer to confused kids who were apparently free to browse for this information online. The below graph from the study quotes common “advice” transgender activists gave children over these kinds of forums.

It is also notable that 86 percent of the parents who took this survey said they support same-sex relationships and 88 percent “believe trans people deserve the same rights and protections as everyone else.” Similar numbers supported their kids’ decision to adopt opposite-sex hairstyles, clothes, and so forth. Of the children who told their parents they wanted to see a gender therapist, 82 percent took them.

Here’s What the Study Found

The study offers insights into how gender dysphoria seems to develop among those who declare it suddenly. Among the children studied, 59 percent identified as heterosexual prior to expressing gender dysphoria. This is a disproportionately high percent of non-heterosexual kids (41 percent), although homosexuality and especially lesbian activity is highly fluid and tends to dissipate, especially for teens and females. Eighty-seven percent of the children studied became gender dysphoric after friends did, after increasing their time online, or both.

Eighty-seven percent of the children studied became gender dysphoric after friends did, after increasing their time online, or both.

None of the young people Littman studied would have met the American Psychiatric Association’s criteria for diagnosing childhood gender dysphoria, the study says. However, a very high rate, 62 percent, had been diagnosed with a psychiatric disorder or neurodevelopmental disability before their gender dysphoria began.

Nearly half of these children (48 percent) “experienced a traumatic or stressful event prior to the onset of their gender dysphoria,” the study says, such as parental divorce, a death in the family, a romantic breakup, rape or attempted rape, school bullying, family relocation, or a serious illness. Nearly half (45 percent) had been harming themselves before coming out trans. The parents of most of these children also reported they were bad at handling strong negative emotions.

“The majority of respondents (69.4%) answered that their child had social anxiety during adolescence; 44.3% that their child had difficulty interacting with their peers, and 43.1% that their child had a history of being isolated (not associating with their peers outside of school activities),” says the study. One parent explained that her daughter “had very high expectations that transitioning would solve their problems,” the study says. The parent wrote that the child “discontinued anti- depressant quickly, stopped seeing psychiatrist, began seeing gender therapist, stopped healthy eating. [She] stated ‘none of it’ (minding what she ate and taking her Rx) ‘mattered anymore.’ This was her cure, in her opinion.”

This makes it obvious why transgender activists do not want this information public. It suggests many gender dysphoric young people hit a rough patch in life (or several), have poor or immature coping skills, and got the message from peers, online, or both that transgenderism was a handy, simple explanation for their feelings that also offered instant social acceptance and attention.

High Correlation to Peers Who Promote LGBT Sexuality

The study includes other eye-opening information, such as case studies of several children’s stories. Here are three:

  • “A 14-year-old natal female and three of her natal female friends were taking group lessons together with a very popular coach. The coach came out as transgender, and, within one year, all four students announced they were also transgender.”
  • “A 21-year-old natal male who had been academically successful at a prestigious university seemed depressed for about six months. Since concluding that he was transgender, he went on to have a marked decline in his social functioning and has become increasingly angry and hostile to his family. He refuses to move out or look for a job. His entire family, including several members who are very supportive of the transgender community, believe that he is ‘suffering from a mental disorder which has nothing to do with gender.’”
  • “A 14-year-old natal female and three of her natal female friends are part of a larger friend group that spends much of their time talking about gender and sexuality. The three natal female friends all announced they were trans boys and chose similar masculine names. After spending time with these three friends, the 14-year-old natal female announced that she was also a trans boy.”

The study also describes links between social acceptance and even obsession with alternative sexuality as being a high risk factor for children contracting gender dysphoria:

Parents described intense group dynamics where friend groups praised and supported people who were transgender-identified and ridiculed and maligned non-transgender people. Where popularity status and activities were known, 60.7% of the [children with gender dysphoria in the study] experienced an increased popularity within their friend group when they announced a transgender-identification and 60.0% of the friend groups were known to mock people who were not transgender or LGBTIA (lesbian, gay, bisexual, transgender, intersex, or asexual).

The study also may indicate that school “anti-bullying” programs typically created by LGBT activist organizations such as the Human Rights Campaign may help accelerate children identifying as transgender by pushing peers and authority figures to profusely express their support. It also may suggest that Marxist-style identity politics that brand heterosexuality as oppressive increase gender dysphoria. Perhaps this is one reason a 2013 study found that anti-bullying programs actually increase bullying.

‘They are constantly putting down straight, white people for being privileged, dumb and boring.’

“Great increase in popularity among the student body at large. Being trans is a gold star in the eyes of other teens,” wrote one parent on the study response form. Another wrote, “not so much ‘popularity’ increasing as ‘status’ … also she became untouchable in terms of bullying in school as teachers who ignored homophobic bullying …are now all at pains to be hot on the heels of any trans bullying.”

Children who contracted gender dysphoria in the study were highly likely to have peer groups with a culture of directing animosity towards people who are white, straight, and male. “They are constantly putting down straight, white people for being privileged, dumb and boring,” one study participant wrote. Another wrote: “In general, cis-gendered people are considered evil and unsupportive, regardless of their actual views on the topic. To be heterosexual, comfortable with the gender you were assigned at birth, and non-minority places you in the ‘most evil’ of categories with this group of friends.”

The peer groups of rapid-onset gender dysphoric children also routinely mocked family members and adults, the study found, alienating these distressed children from their most likely sources of help. A handful of study participants who heeded their children’s petition to be removed to a different social environment reported the children were much happier and ceased describing themselves as transgender. One of these children “expressed a strong desire to ‘…get out of the culture that if you are [heterosexual], then you are bad or oppressive or clueless.’”

Social Contagion Is a Well-Documented Human Behavior

“The results of the study support the possibility that social contagion, rather than an innate, immutable sense of incongruence between body and mind, may be at work in some of these cases,” says the open letter petitioning Brown to stand behind Littman’s work.

The petition is the work of 4thWaveNow, a networking and information website for gay-friendly parents and researchers concerned about transgender politics. As mentioned above, Littman recruited parents for her study on the site, which trans activists are ridiculously claiming is a “far-right” “hate” site. 4thWaveNow clearly leans politically liberal and strongly supports non-heterosexuality. These are parents who are righteously concerned about manipulating and mutilating children for the sake of a highly politicized narrative that has little real support beyond its ability to create a business and political industry that profits from despair.

We are allowing people to get fame and profit by lying to vulnerable people and facilitating procedures that very likely do more harm than good.

I’m a free market supporter, but I also see that markets function on desire, and not all desires are good. It’s good to desire to mother a child. It’s not good to meet that desire by renting a womb and buying the medical machinery and human parts to make one. It’s good to desire social acceptance and a strong identity. It’s not good to address that desire by pretending to be a male when you are a female, or vice versa. Believing and acting on lies hurts people, often badly.

Rather than blaming the market mechanisms by which people pursue these bad answers to their desires, it’s more appropriate to set boundaries defining what longings are good and not, and what are healthy and morally right ways to satisfy them. Markets cannot do this. This is what a society is for. And because our society is failing in this duty, through things like suppressing the research, discussion, and inquiry that facilitates it, we are allowing people to get fame and profit by lying to vulnerable people and facilitating procedures that very likely do more harm than good.

This is what we call exploitation. It’s an old human story. Social hysterias like the Dutch tulip craze, Salem witch trials, lynchings, buying stock in a mythical America where the streets were paved with gold, and countless other contagions are a persistent feature of human history. Often it is intermixed with buying and selling because where there is desire, there is exchange. People did, and still do, buy and sell human beings. Now we are also buying and selling, mixing and matching human body parts. There ought to be both social and legal limits on things like this, and far better ones than we have now.

Desire drives exchange. Thus it’s big business to create desires for products and services. In so doing, business takes on the social and especially religious function of defining, refining, and directing our desires. The answer is to take that responsibility back for ourselves, and inform our desires, and ensure our children’s desires are formed, with history, research, ethics, religion, and other products of an advanced and successful culture.

The goal should be to minimize harm as much as possible. We do that by thinking before acting, and part of that thinking is talking. Research is also thinking, in a particularly rigorous fashion. This is why trans activists try to suppress talking and thinking. That shows very clearly their true goals are not for bettering human society. It also provides even greater urgency that we refuse to heed their wild, petulant, dangerous demands.

By Joy Pullman and published in The Federalist on August 31, 2018 and can be found here.

American Airlines Defeats Flight Attendant’s Suit Claiming Facebook Harassment

U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania granted American’s motion for summary judgment on plaintiff Melissa Chinery’s claims.

According to Robreno’s opinion, Chinery ran for the presidency of the flight attendants’ association on the platform of rejecting a contract with American. She lost.

Fellow flight attendants Paul Sears, Jim Brown, Victor Dunson and Dan Datzer posted on a Facebook group called “Wingnuts” and Chinery alleged the posts amounted to sexual harassment.

‘“I just voted ‘NO’ to these clowns,’” Datzer wrote on the page, according to Robreno’s opinion. “’it’s your cunstitutional [sic] right to vote NO.’”

Dunson posted on Wingnuts, according to Robreno: “’this is war. Brian and [incumbent president] Kim [Kaswinkel] are my friends. If you f**k with my friends you f** with me and I don’t like being f**ked with.’”

Chinery took this as a form of sexual harassment, alleging that Dunson would not have said the same to a male candidate.

Chinery filed a claim with American’s human resources department and the U.S. Equal Employment Opportunity Commission but no action was taken. Later, Chinery was reported to have surreptitiously filmed American’s vendor and was called into a two-hour meeting by American to discuss the matter.

In order to prevail on disparate treatment, Robreno said Chinery would have to prove she belongs to a protected class; she was qualified for her position; she was subject to an adverse employment action; and members of the opposite sex were treated better or that there was an inference of discrimination. For the retaliation claim, Chinery had to show she was engaged in a protected activity and suffered an adverse employment action for it.

“Chinery argues that after she was anonymously accused of violating American policy, she was required to participate in an approximately two-hour meeting after which she was cleared of wrongdoing and not disciplined in any way,” Robreno said. “This event is not serious enough to alter the terms of Chinery’s employment, thus, it is not a qualifying adverse action.”

Robreno said Chinery’s hostile work environment claim also failed.

“While there are a number of serious questions that are raised by Chinery’s claims—including whether the alleged harassment over Facebook was due to her sex rather than her opinions regarding the union’s collective bargaining agreement with American, and whether the harassment actually occurred in the work environment—it is clear that the alleged instances of harassment were not so objectively severe or pervasive to give rise to a cause of action,” Robreno said.

Daniel Farrington represents American and did not respond to a request for comment.

David Koller represents Chinery and said, “We just received the decision and have not had a chance to go over it yet with our clients so cannot comment much on it.  We thought the situation presented an interesting and timely legal issue regarding social media policies in the workplace.  But more important than that, we are obviously disappointed for our clients.”

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