In the wake of last weekend’s tragic shootings, President Trump did what he does best: stoked fear and cast blame. He proclaimed that  “we must reform our mental health laws to better identify mentally disturbed individuals who may commit acts of violence and make sure those people, not only get treatment, but when necessary, involuntary confinement.”

There are two things wrong with the idea of involuntary commitment as a solution to gun violence. First, focusing on people with identifiable mental disabilities won’t help. The data is clear: mental disability is not the primary cause of gun violence. Second, making it easier to commit people against their will would repeat one of the great wrongs of the last 150 years. It will rob innocent people of their most basic civil liberty: the day-to-day freedom to live on your own and make your own decisions about whether and what kind of medical treatment to receive.

In its modern form, the institutionalization of people with disabilities first emerged in the nineteenth century. Initially, the goal for mental institutions was to provide treatment, and quickly return patients to the community. However, facilities soon became warehouses for the same people for years and sometimes decades as they failed to deliver the quick cures they had once promised.

These problems were further exacerbated by the eugenics movement, which dramatically expanded the institutionalization of people with mental disabilities. Eugenics held that humanity should be improved by “removing” “inferior” stock from the country including, Jews, all people of color, Catholics, southern and Eastern Europeans, and people with mental and physical disabilities. The movement’s great victories were immigration laws largely based on racism and the involuntary sterilization and forced institutionalization of people with disabilities. These measures disproportionately targeted low-income Americans and, in the case of sterilization, women.

Proponents of eugenics promoted the idea that people with mental disabilities were violent, sexually promiscuous, and dangerous to society. None of it true. They succeeded in shifting the goal of institutionalization from helping the individual patient — an objective institutions were already failing to achieve — to protect society from perceived risks based on stereotypes. To eugenicists, the solution was lifelong institutionalization.  

By the 1970s, thousands of people with mental disabilities were languishing in institutions — many of them living under shocking conditions of abuse and neglect. Senator Robert Kennedy and journalist Geraldo Rivera were among the first to expose these abuses at Willowbrook State School, a massive institution in New York. 

In response, the New York Civil Liberties Union filed a class-action lawsuit representing the 5,400 people with mental disabilities living at Willowbrook. After three years the case forced reforms that would lead to Willowbrook’s closure, and give those within it the opportunity to live free. 

NYCLU and the ACLU continued to fight for people with mental disabilities, setting up a Mental Health Law Project (now the independent Bazelon Center for Mental Health law). The tide really began to turn after the ACLU won Kenneth Donaldson’s case in the Supreme Court. Donaldson appeared to have a mental illness but had never posed a danger to himself or anyone else. He was nonetheless involuntarily confined in a mental hospital for fifteen years because other people found him disturbing.   The Supreme Court ruled: “Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty. In short, a State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”

People with psychiatric and intellectual disabilities have had a long and difficult path to basic freedom in the United States. This is not the moment to turn back, and most especially not in the name of safety.

The right to keep and bear arms is subject to regulation. Just like the right to privacy, the right to be free from government searches, even the right to speech. While the Constitution allows guns to protect one’s home, it does not stop the state from regulating or banning assault weapons or high capacity clips.

Nevertheless, targeting a group of Americans for incarceration is not the answer. The demographic with the highest rates of gun violence are men between the ages of 16 and 35. No one would propose as a solution forcibly institutionalizing all young men.

If the Eugenics movement sounds familiar, it should.  It is largely being recycled by today’s white supremacists. Solutions to the epidemic of gun violence should be based on data, not a return to a shameful episode from our past.

Susan Mizner, Disability Counsel, ACLU
& Ari Ne'eman, Advisor, ACLU

I went to a counter-serve restaurant recently, and when the time came to pay for my order, took out my wallet, presented a $20 bill, and was told, “Sorry, we don’t accept cash.” I was flabbergasted. What happened to “legal tender for all debts public and private,” as it says right there on the bill? This has now happened to me at three separate establishments in recent months. The rise of cashless establishments is happening amid continuing hype over the supposed dawn of a “cashless future” and agitation by some very powerful interests that would love to see cash disappear. The credit card companies love it, naturally, and tech industry associations have also pushed for the concept.

Meanwhile, a backlash has prompted several cities and states including San Francisco, Philadelphia, and New Jersey to ban cashless stores (they’ve also been banned in Massachusetts since 1978). One salad chain, Sweetgreen, reversed its decision to go cashless amid criticism, and Amazon, which had reportedly been opposing legislative bans, has since announced that it will accept cash at its automated, cashier-less convenience stores. (As for the “legal tender” statement, that does not actually mandate the acceptance of cash for payment.)

It is great to see this pushback against the supposed cashless future because this is a trend that should very much be nipped in the bud. There are several reasons why cashless stores, and a cashless society more broadly, are a bad idea. Such stores are:

• Bad for privacy. When you pay cash, there is no middleman; you pay, you receive goods or services — end of story. When a middleman becomes part of the transaction, that middleman often gets to learn about the transaction — and under our weak privacy laws, has a lot of leeway to use that information as it sees fit. (Cash transactions of more than $10,000 must be reported to the government, however.) More on privacy and payment systems in a follow-up post.
• Bad for low-income communities. Participation in a cashless society presumes a level of financial stability and enmeshment in bureaucratic financial systems that many people simply do not possess. Opening a bank account requires an ID, which many poor and elderly people lack, as well as other documents such as a utility bill or other proof of address, which the homeless lack, and which generally create bureaucratic barriers to participating in electronic payment networks. Banks also charge fees that can be significant for people living on the economic margins. According to government data from 2017, about one in 15 U.S. households (6.5%) were “unbanked” (had no checking or savings account), while almost one in five (18.7%) were “underbanked” (had a bank account but resorted to using money orders, check cashing, or payday loans). Finally, because merchants usually pass along the cost of credit card fees to all their customers through their prices, the current credit card system effectively serves to transfer money from poor households to high-income households, according to a study by the Federal Reserve.
• Bad for people of color. The burden of lack of access to banking services such as credit cards does not fall equally. While 84% of white people in 2017 were what the Federal Reserve calls “fully banked,” only 52% of Black and 63% of Hispanic people were.
• Bad for the undocumented. Facing a lack of official identity documents, not to mention all the other obstacles mentioned above, undocumented immigrants can have an even harder time accessing banking services.
• Bad for many merchants. Merchants pay roughly 2-3% of every transaction to the credit card companies, which can be a significant “tax,” especially on low-margin businesses. With the credit card sector dominated by an oligopoly of 2-3 companies, there is not enough competition to keep these “swipe fees” low. Big companies have the leverage to negotiate lower fees, but small merchants are out of luck, and the amount that they pay to the credit card companies is often greater than their profit. If cashless stores are allowed to become widespread, that will harm the many merchants who either discourage or flat-out refuse to accept credit cards due to these fees.
• Less resilient. The nationwide outage of electronic cash registers at Target stores several weeks ago left customers unable to make purchases — except those who had cash. That’s a reminder that electronic payments systems can mean centralized points of failure — not just technical failures like Target’s, but also security failures. A cashless society would also leave people more susceptible to economic failure on an individual basis: if a hacker, bureaucratic error, or natural disaster shuts a consumer out of their account, the lack of a cash option would leave them few alternatives.

The issue goes beyond restaurants and retail stores; other services that are built around electronic payments should also offer cash options (or cash-like anonymous stored value cards). Those include ride-share services like Uber and Lyft, bike and scooter share systems, and transit systems. In San Francisco, for example, the city’s bike-share program is providing an option to pay with cash. In DC, where I live, the Metro requires a smart card to use — but riders have the option to either register their card so that they can cancel it if it’s lost or stolen, or buy it with cash and not register it to keep it more private.

Proponents of non-cash payment systems point to one of the biggest downsides of cash: the risk of loss or theft. That security risk is real, and we’re certainly not going to tell anybody they should always use cash, especially for large purchases. That said, the security considerations are not one-sided. The harms that can result from privacy invasions (abuses, profiling, embarrassment, financial losses, etc.) should also be included in the concept of “security,” properly conceived. And payment networks have security risks that cash does not; ask anybody who has experienced identity theft and was forced to wrangle with a nightmare mix of credit card companies, debt collectors, credit scoring agencies, and others.

What to do

So what should you do if you walk into a store and are told: “your cash is no good here”?

• Register your objection. Say to the staff, “I know this isn’t your policy personally, but I think it’s a bad one, and I hope you’ll pass that along to your management. Not accepting cash is bad for privacy, bad for poor people, and bad for the undocumented.” 
• Refuse to provide a credit card. If you haven’t been given very clear advance notice that cash is not accepted, tell them you don’t have a credit card with you and see what they propose. There’s no law that a person has to possess a credit card or furnish one on demand. This may tie up their line, require the calling of a manger, create abandoned food that has already been prepared, and generally create inefficiencies that, if repeated among enough customers, will start to erode the advantages of going cashless for merchants.
• Walk out. If you can do without, leave the establishment without buying anything after registering your objection to a staff person so they are aware they’ve lost your business over it.
• Understand why some stores charge fees for credit card use. If you visit a store or restaurant that charges a higher price for credit card purchases, understand that this is a socially beneficial policy and be supportive. Merchants are explicitly permitted to pass swipe fees (also known as “interchange fees”) along to customers, which among other things is fairer to low-income customers who don’t have credit cards and shouldn’t have to absorb the costs of those cards. If you are a business, consider passing along those fees to increase fairness as well as customer awareness of how the current system works.
• Contact your elected representatives. We have already seen some cities and states ban cashless stores. Your state or city can do so as well.

The bottom line is that the technocratic “dream” of a cashless society is a vision in which we discard what is left of the anonymity that has characterized urban life since the dawn of modernity, and our freedom from the power of centralized companies like banks. Doing without cash may be convenient at times, but if we lose cash as an option we’re going to regret it later.

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

The Trump Administration has shown it will stop at nothing to undermine access to health care for marginalized communities. Most recently, the Administration has proposed to undermine critical protections against sex discrimination in Section 1557 of the Affordable Care Act, the Health Care Rights Law. Instead of combatting discrimination in accessing health care and insurance coverage, the Administration is looking for any opportunity to weaken the Health Care Rights Law’s protections, which have been life saving for many transgender and non-binary people.

Under the Trump Administration, the Department of Health and Human Services (HHS) has abandoned its duty to fight against discrimination in health care. It stopped defending existing regulations in a lawsuit attacking protections for transgender individuals and people who have obtained abortions. HHS then turned around and cited that very lawsuit as a reason for changing the regulations. But HHS cannot use its failure to defend current protections as a reason to gut them.

The proposed rule removes explicit protections for transgender, non-binary, and gender nonconforming people, as well as for people seeking, or who have obtained, services related to pregnancy, childbirth, and abortion. The Administration has made clear that a central goal of the proposed changes is to excise transgender people from the protections of the Health Care Rights Law. Though their intent has been to “erase” transgender people, the Administration can neither erase transgender people from existing statutory protections nor exclude them from society. 

Case after case has confirmed that transgender people are protected under the Health Care Rights Law—and that is something the Administration cannot change even if this rule is finalized.

This isn’t just about definitions, though. This rule is yet another attempt by the Trump administration to undermine our nation’s antidiscrimination laws. The proposed rule would also: eliminate protections ensuring that people who have limited English proficiency are aware of their health care rights; narrow the list of health insurance providers covered by the Health Care Rights Law and prohibited from discriminating based on race, national origin, age, disability, or sex; and give religiously-affiliated health care institutions a broad license to discriminate on the basis of sex.

Even though one in six hospital beds in the United States is in a Catholic hospital, and the number of religious health care providers is only growing, the Administration wants to lift prohibitions on religious health care institutions discriminating based on a patient’s sex.

The proposed rule continues the Trump Administration’s mission to undermine access to health care for marginalized communities. So far they want to deprive people of coverage for contraceptives, decimate family planning services, dramatically expand the ability of health care institutions and workers to refuse to provide medical services, and penalize access to health care by immigrant women and children.

Transgender people already face threats of violence and discrimination in all aspects of their lives and the Trump Administration is inviting more. The Administration is intent on emboldening discriminatory and dangerous denials of care for transgender individuals. They have already banned transgender members of the military from openly serving and accessing certain critical medical procedures, reversed positions as to whether federal law protects transgender people from workplace discrimination, and proposed allowing taxpayer-funded shelters to turn away transgender people experiencing homelessness.

Despite these attacks by the Trump Administration we will continue to fight to ensure equal access to health care and coverage, free from discriminatory treatment or denials. For all these reasons, tens of thousands of people are telling HHS to abandon the proposed rule, and to keep the current Health Care Rights Law regulations in place – and I hope you join us in doing so.

Lindsey Kaley, Staff Attorney, ACLU