A Novel Legal Theory for Gay Folks

I’m no lawyer, but I did win five years of free rent for me and 14 other tenants in a dilapidated building with 20 one room apartments on East 3rd Street in the East Village of Manhattan by being our pro se representative in housing court. I did have some help. I worked as a printer at night for Weil, Gotshal and Manges. They’re General Motors’ law firm. They took up a good chunk of the big white striped 50 story building with FAO Schwartz’s toy store in it, across from the Plaza Hotel and the Plaza of the Grand Army of the Republic – which is what that plaza in front of the Plaza is called. And since I did the printing there from 6 PM to 1 AM, and the young $80,000 a year lawyers wanted to go home early, and they were given the grunt work of getting stuff printed I made a deal – make me sharp in my case and pleadings, and you can get your stuff pronto. So I researched, and they sometimes directed me to where, and I wrote the pleadings, and they gussied up, and well, there you go – while going to college at NYU and working full time as a printer, and cavorting in the Village, I also managed to defeat a pernicious landlord at his own game. Other than Charlie Rangel who lives rent free in Manhattan? Other than that, I don’t think too legally. Ahem.

And so let’s look at some things of a legal nature to help the folks fighting DOMA, and to help those “defending” it to think carefully about their claims for its wondrous assistance to the General Welfare this law does bring to the nation’s people – all of us. Not just some of us. Helping us all is the law’s purpose – by essentially targeting a tiny group of people as a class to protect everyone in the nation from the evil we pose. And to keep some 50% now or less of the population happy.

Indeed, the law is done on behalf of one group of citizens against another, after all. Tony Perkins of “Gays are domestic terrorists” fame did claim his fingerprints are all over the law. He’s proud of enshrining his personal beliefs about citizens he won’t deign to talk to into the federal law of this land. Which is what is being defended – the personal beliefs of Tony Perkins. Oh well, your problem to defend it.

But you see, there’s this law called Section 504. Here, let me just give you what I found:

“An important goal of the Office for Civil Rights (OCR) is to foster partnerships between school districts and parents to address the needs of students with disabilities. Such partnerships empower all parties to secure quality education. OCR has experienced a steady influx of complaints and inquiries in the area of elementary and secondary education involving Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504). Most of these concern identification of students who are protected by Section 504 and the means to obtain an appropriate education for such students. OCR reached out to parents and school districts to determine the kinds of assistance they needed.

Section 504 is a federal law designed to protect the rights of individuals with disabilities in programs and activities that receive federal funds from the U.S. Department of Education (ED).

Section 504 is a federal law designed to protect the rights of individuals with disabilities in programs and activities that receive federal funds from the U.S. Department of Education (ED). Section 504 provides: “No otherwise qualified individual with a disability in the United States … shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…”


What is a physical or mental impairment that substantially limits a major life activity?

The determination of whether a student has a physical or mental impairment that substantially limits a major life activity must be made on the basis of an individual inquiry. The Section 504 regulation, at 34 C.F.R. 104.3(j)(2)(i), defines a physical or mental impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The regulation does not set forth an exhaustive list of specific diseases and conditions that may constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list.”


END >>

OK, so that’s what I found. And you know, gay folks are right there in this melange of definitions. The forces against us are quite clear gayness is a “mental or psychological disorder” and even an “organic brain syndrome, emotional or mental illness” for sure. And so it is surely among the “any” that are vaguely promulgated. And since the best defense is a good offense – I’d put into any pleadings the old legal standby “In the alternative…” When asking for “relief” in a pleading based on the facts you marshal you can offer specific “reliefs” you want – or in the “alternative” something else that the judge might like. I did it all the time in my suit against the landlord. Our first defense is of course – we’re citizens and this is just nasty, 14th Amendment, due process, blah blah blah – actually, I’m never happy with our defenses – too, um, defendy, and not enough legal aggression through creative use of the very words of those against us.

And a “cosmetic disfigurement”? Well, transgendered and effeminate sissy boys and butch tomboys – need I say more? Lipstick and nail polish goes right the very word, perhaps. And according to one study straights can spot us with some 70% accuracy in milliseconds – and that’s not “cosmetic disfigurement”? Oh, I’d say it is. But I’m a “radical,” I’m sure.

Our “neurological” something or other is askew, ya think? It must be if we are so dangerous to society as to warrant special laws. And so too if our opponents are sure they can “cure” us with neurology sorts of thingies that they can’t define more than if only we pray or something it will go away. Still, it’s not my business to delve into the fetid minds of our opponents so much as to use their surface arguments. If you can “cure” us through quack psychology and quackier psychiatry, oh I’m sure you’d have to agree it’s neurological to say the least.

So too our “reproductive” abilities for sure are impacted – by the very “illness” they think it is. I must be one sick puppy whose reproductive system has failed miserably.

And it’s also possible to “stipulate” certain facts before hand, or in the pleadings, so that both parties don’t argue over the known facts. Well, suppose the Family Research Council and heathen brethren are correct? Suppose we are, say, of an “organic brain syndrome” and it’s “not normal” by the definition of Section 504 – and it needs medical intervention? Must be organic, no? They do say we have this “predisposition” after all. Of this too they are certain. NARTH – a “well respected” research group within the coven of the FRC is quite sure we need a “Temperment” from the get go – sounds organic to me – so that we can get the right dose of cooties and such to really go gay 100% when we’re between 2 & 4 years old when it’s doubtful where doing the choosing of much. So, I suppose, temperment wise, we’re oh, 50% gay upon exit from the womb with said “Temperment” right there in our tiny brains. For without the “Temperment” the cooties have no effect whatsoever, apparently. So it must be organic, no?

OK, so let’s stipulate that – in the “alternative” only of course – (The irony? We’re called alternative all the time.) – and now, well, so now we’re covered by Section 504.

And so in schools gay kids deserve and should expect any accommodation such as is required under this law. And gay kids grow up, mind you, and do become the pilloried gay adults of lore. We carry Section 504 right into adulthood, too. Why, are college students covered by it since the colleges receive federal funding? It’s still school, no? The Department of Education is involved in colleges too, no?

And thus for instance Tennessee State Representative Stacey Campbell’s “Don’t say gay” law is unlawful under Section 504. And so is banning “Heather has two mommies” or “Harold has two dads” or whatever other stuff is out there. In fact, Section 504 sounds like you ought to be mollycoddling gay boys and girls, and accommodating their innate characters. To not do so seems unlawful.

And since the Supreme Court has already ruled that crazy and retarded and autistic people, and schizophrenics and even mass murderers can be married – for the “disability” is not an impediment to the marriage – and they’re covered by the grown up’s version of 504, then, well, since we’re “disabled” under Section 504 too – and thus protected and in need of accommodation, well, then, there you go: DOMA is wrong.

As well too is all the Fundamentalist bleating about the morality of the thing – we’re naturally nuts. Our opponents in defense of DOMA claim this. So cut the condemnation and get on to the mollycoddling already. And see our wedding registry down at Bed, Bath and Beyond.

Or we’re not covered by 504 because we’re not crazy or nuts or any such malady that might be proposed or concocted – and in which case, we’re being penalized for nothing more than you don’t like whom we smooch but it has nothing to do with the nation or yourself. And thus, well, thus DOMA is wrong.

Wow, if we’re crazy or not crazy – DOMA is wrong. Who would have thunk it? And the Office of Civil Rights ought to come join our side of the issue, against even the rest of the federal government which is coming against us.


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