This week, Joe Biden was inaugurated as President of the United States. As part of his day one agenda, he rescinded one of the Trump administration’s most noxious orders. The Muslim ban, enacted within Trump’s first days in office, blocked virtually all immigration from countries with substantial Muslim populations, including Syria, Iraq, Sudan, Libya, Somalia, and Yemen.

The order sent people across the world scrambling to avoid permanent separation from their families, their jobs, and their education. Amidst a national outcry and protests in airports and on the streets across the country, the ACLU was able to secure an early victory in the courts.
But, over the years, fighting the Muslim ban became like a game of Whac-a-Mole. The administration would concoct superficial language tweaks to dodge judicial scrutiny, and the ACLU and others would fight anew. In the end, we were left with a ban, rubber stamped by the Supreme Court, that blocked entry to people from 13 countries around the world, mostly in Africa and the Middle East.

This week on At Liberty, we share the stories of three people directly impacted by the Muslim ban, and discuss what ending it will and won’t do for the future of Muslims in America with Manar Waheed, senior legislative and advocacy counsel at the ACLU.

An End to the Muslim Ban Is Just the Beginning

An End to the Muslim Ban Is Just the Beginning

Yesterday, Joe Biden was inaugurated as President of the United States. And today, as part of his day one agenda, he has rescinded one of the Trump administration’s most incendiary orders: the Muslim Ban. The Muslim ban, enacted within Trump’s fir...

Yesterday, Joe Biden was inaugurated as President of the United States. And today, as part of his day one agenda, he has rescinded one of the Trump administration’s most incendiary orders: the Muslim Ban. The Muslim ban, enacted within Trump’s fir...

Listen to this episode

A note for listeners: the conversations in this week’s episode were recorded prior to the Biden administration’s move to end the ban.

Living in New York City, there are some things you just know. You know that if you see a gigantic rat in the subway station you look the other way and pretend it doesn’t exist. And you know that if you see a gigantic inflatable rat in front of a business it means that workers are protesting unfair employer practices.

Scabby the Rat, a 12-foot inflatable rat balloon, is a familiar sight not just in New York but around the country. But the government is now trying to deflate him. Luckily for Scabby, the First Amendment is on his side.

Under existing precedent, unions have a legal right to display Scabby. They cannot be held liable under the National Labor Relations Act (NLRA), the law that governs most private sector employees’ collective bargaining rights, for simply standing with Scabby on a public street. But Peter Robb, the now-fired general counsel of the National Labor Relations Board (NLRB), a government agency, has been on an anti-Scabby mission for years. He has succeeded in bringing the question of whether Scabby is protected by the First Amendment back before the NLRB, prompting the board to invite the public to weigh in. Specifically, the NLRB asked whether it could find that displaying Scabby violates the NLRA without also violating the First Amendment.

It cannot. Since speech about labor disputes is constitutionally protected, particularly when it occurs in public spaces, we filed a brief explaining why the First Amendment protects the giant rat balloon.

Scabby is fully protected symbolic speech. We use symbols all the time to express ourselves, from gestures to black armbands, and Scabby is no different. His presence communicates a clear message to workers, labor unions, and the public: worker dissatisfaction and protest against unfair labor practices.

The government argues that unions and workers have diminished speech rights, and that their criticism of businesses is inherently less protected, because unions advocate the economic interests of workers. But the labor movement and the working conditions it seeks to improve are inherently political, as recently exemplified through the ongoing public debate about the health and safety of essential workers. The Supreme Court has recognized this reality and has repeatedly held that speech touching on working conditions and hiring practices is speech on a matter of public concern — a category of highly protected speech. This is all the more true when the speech is directed at the “public square,” or addressed to a public audience — as it is whenever Scabby appears on public sidewalks.

The government also argues that Scabby deserves no First Amendment protection because he is so scary that his mere presence forces people away from a business and encourages other workers to strike. In the government’s words, “the iconic and menacing rat . . . create[s] an emotional and confrontational barrier” because it is “glaring in character and size and an unmistakable symbol of contempt,” in part thanks to “red eyes, fangs, and claws.” Scabby, the government complains, appeals to “emotions,” rather than “to reason.”But speech does not lose protection because it is emotionally persuasive. And to say that Scabby is coercive is absurd. What the government seems to forget is that Scabby is … a balloon. If anything, the real rats scurrying about in a subway station are much more frightening than the fake, inflatable cartoon outside of it.

Finally, the government tries to analogize Scabby to a union picket line, which the Supreme Court has held may be more strictly regulated than other forms of expression. The government’s argument is yet again absurd. Nobody would confuse a giant rat balloon for a picket line. But the bigger problem is that the Supreme Court’s labor picketing cases no longer make any sense. The Supreme Court has recognized this when it comes to everyone from civil rights picketers to anti-abortion picketers, but it has nevertheless allowed restrictions on labor pickets to stand. For too long, labor speech has been afforded second-class status under the First Amendment. The time has come to reevaluate those decisions, and give labor speech the robust First Amendment protections it deserves.

While it may be fun to make light of defending a gigantic rat balloon, the constitutional implications here are very real. The government is attempting to exterminate Scabby because he is a labor symbol. But the First Amendment protects labor unions just as much as anyone else, and the NLRB should recognize that.

Yesterday, as part of a slate of executive orders signed by President Biden on his first day in office, he issued an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” It is now the policy of this administration that “[e]very person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.”

These opening lines were a salve after four years of relentless attacks by the Trump administration on LGBTQ people in all aspects of life. This new administration is willing to recognize and work to combat the sobering reality that “transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.” And we now have a president who is planning to follow the Supreme Court’s landmark decision in Bostock v. Clayton County and who has instructed the applicable federal agencies to do the same.

Contrary to a trending hashtag on social media and the polemics of a few loud voices, President Biden most certainly did not “erase women” — whatever that means. By stating the administration’s intention to follow Supreme Court precedent and federal law, at core all the newly-elected president did was lay out what the law is and agree, unlike his predecessor, to follow it. That includes, as the order makes clear, ensuring that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.” If only we lived in a world where this would go without saying; a world where it would be uncontroversial to merely affirm that every young person deserves a chance to learn and thrive and participate in school.

Sadly, that is not the world we live in.

Predictably, powerful individuals and organizations immediately objected to the idea that trans people might actually be protected in schools and began circulating the insidious lie that trans people are inherently a threat to non-transgender women. This is not true in the context of restrooms and locker rooms and it is likewise untrue in the context of sports, where opponents of trans existence have focused their efforts over the last two years.

But whatever opposition anti-trans individuals, organizations, and lawmakers have to trans existence, federal law already prohibits discrimination on the basis of sex in employment, education, housing, health care, and credit. And since the Supreme Court’s decision in Bostock recognized that it is impossible to discriminate against someone for being LGBTQ without discriminating on the basis of sex, our federal statutes are the source of legal protections for LGBTQ people — not yesterday’s executive order. Those who claim to be victims of Biden’s affirmation of these legal protections are really angry about legal rules that were drafted by Congress decades ago and affirmed by the Supreme Court in June.

What yesterday’s order does mean, though, is that this administration is prepared to vigorously defend and enforce the legal protections that LGBTQ people enjoy under federal law. Every state considering anti-trans bills barring trans people from sports must now consider that they will face a U.S. government that is not facilitating anti-trans discrimination but actually enforcing Title IX’s protections to stop it. Every employer, every landlord, every health care provider that is considering firing or evicting or denying health care to a transgender person must now think about the fact that all three branches of the federal government have made clear that anti-LGBTQ discrimination is illegal.

Now on to the work of ensuring that the Biden administration lives up to this promise, that states end their attacks on trans youth, and that we can build a movement for gender justice that works to eradicate the stereotypes and assumptions about who we are and must be based solely on the sex we are assigned at birth.

American Civil Liberties Union

Legislation Affecting LGBT Rights Across the Country | American Civil Liberties Union

Last updated 1/22/2021Lesbian, gay, bisexual, and transgender people in America continue to face discrimination in their daily lives. While more states every year work to pass laws to protect LGBTQ people, we continue to see state legislatures advancing bills that target transgender people, limit local protections, and allow the use of religion to discriminate.