Two pieces of Venetian glass a breath
Could break if carelessness betrayed; yet strong To hold
the wine-mad force of life and death Through many years
for toasts that love be long…
In light of University of Wisconsin Law School allowing the openly anti-trans Women’s Liberation Front to participate in the Wisconsin Public Interest Interview Program* even after several entities, including their own students, have voiced concerns over it, it is pertinent to ask a question: Is the law school doing enough to protect its queer students?
A few days ago, I met with the dean of the law school, Daniel Tokaji. I expressed my concerns to him that the law school was not doing enough to protect its trans and non-binary students from harm on a campus they pay to be on. Dean Tokaji expressed to me that the law school has explicitly taken a stance against transphobia but cannot infringe on the rights of the Women’s Liberation Front (WoLF)** to express viewpoints, even if transphobic, as it is their First Amendment right. I firmly believe that the law school is undermining its own power of activism in order to play appeasement politics to stay “safe” by attempting to appease those for and against WoLF on campus. I believe that University of Wisconsin needs to remember its heinous past of suppressing queer rights and realize that being “neutral” encourages oppression, and neutrality is a political myth designed to justify inaction because it does not affect those with privilege.
Oppression of queer rights in Wisconsin can be dated back to 1894 or the pre-Stonewall era, when Frank Blunt, a.k.a Anna Morris, was sentenced to one year in state penitentiary after it was discovered that she was actually a woman who wore masculine clothes and was married to another woman named Gertrude Field. The violation of queer rights by the university has been documented to have begun as early as 1936. However, one of the darkest eras in the history of the university started in 1948 when a UW-Madison campus security officer arrested two men who were engaging in consensual amorous activities in a parked car. In another incident, a party invitation from a student led to a raid on a Madison home on the near Westside which was termed a “den” for lewd activities by a “ring” of men. In all, 12 were arrested through cooperation of university and city police. Four students were expelled by the university. The court convicted the four and sentenced them to one year’s probation with a stern warning about “abnormal sexual behavior.” They came from Janesville, Slinger, Barron, and Covington. Two Madison men were each fined $300 (around $3,000 today) on no-contest pleas to the charge of possession of obscene literature, with a further sodomy charge dismissed.
In 1956, George Mosse, a young professor of European History and refugee from Nazi Germany, came to UW-Madison. As a Jewish person and closeted gay man, he was an outsider on his new campus. In Confronting History: A Memoir, published in 2000, he recalls of the faculty in the 1950s, “The closet door had to be tightly closed, and was so even with members of this group whom I knew to have had some gay adventures when younger.”
The year 1962 holds special significance, as it saw the university engage in extremely violent “gay purges” on campus. It lasted until February1963. During this time, the university campus protection and Dean of Men identified a list of those suspected of homosexuality. Upon being accused of homosexuality, individuals were coerced to provide the names of other gay people they knew on campus. Some were pressured to leave, while some left the campus due to political reasons. When some of them threatened the university with a lawsuit, the Department of Psychiatry weighed in on the mental health consequences.
With such violent queerphobic history, one would expect the university to learn from its past and do a better job at advocating for queer folks and protecting queer members of their community from harmful entities both within and outside the university. However the recent events on the law school campus—and how the issue has been politicised to the disadvantage of queer community—only goes to show that allyship from white, cisgender, and heterosexual-majority institutions does not come easily or in a timely fashion. One has to then ask another pertinent question: If not now then when? Especially when the law school has resources, tools, and even a history of activism.
For decades, the law school has been looked upon for their legal opinion, and their activism has had real consequences on campus issues, especially prior to the establishment of a formalized office of legal affairs. That is because they carry the weight of scholarly expertise and practice of law.
In the late 1980s, the university temporarily suspended the Zeta beta Tau fraternity for throwing a “slave auction” party. This came after the incident received repeated national news attention and in response to students’ demands. There was a very public conversation both for and against this decision. Some zealous people who argued against this decision claimed that the university was being anti-Semitic. In this case, too, the focal point for consideration was fraternity members’ constitutional right to free speech. After receiving legal threats, the university reinstated Zeta beta Tau fraternity based on the interpretation of the First Amendment right by two law school professors who were called in to consult administrators. The decision was not overturned despite a letter by minority faculty members from the law school to then-Chancellor Donna Shalala clearly stating that that was not the only possible interpretation of the First Amendment right. Kimberle Crenshaw was the first signatory to that letter, who was a visiting scholar at the time.
In 1990, faculty members with the support of student activists took up a proposal to ban ROTC from campus because of their discriminatory policy against queer people. The argument was that ROTC was violating UW-Madison anti-discrimination policy as well as a State of Wisconsin anti-discrimination law. Legally speaking, ROTC was protected from these types of state laws as a federal entity. However, faculty and students hoped that banning ROTC from campus would send a message of support to queer students. Following a series of controversial faculty senate meetings, law professor Gordon Baldwin contended that ROTC does not discriminate because queer people can enroll in ROTC, they just cannot graduate. He stated, “It’s an unguided missile. This faculty would abolish football if the issue were presented at the right time and place. It would be quite emotional. I view it mostly seriously.”
In 2006, the UW-Madison Law School joined 36 other law schools in a suit that challenged a federal law compelling universities to accept military recruiters on campus who were queerphobic. The law school dean at the time, Kenneth B. Davis, Jr., said the faculty decided to join the lawsuit as “proof of the Law School’s commitment to oppose discrimination against gay, lesbian, and bisexual students.” The judgment was adverse.
Time and again the law school has taken a stance that they felt reflected their beliefs and interpretations of law. Passively stating that they are against transphobia does little-to-nothing. The law school must understand that performative allyship is hollow and is the real “unguided missile.” The presence of a transphobic organization on campus severely impedes the right of trans students to peacefully exist in a space that is as much theirs to claim as much as a cisgendered student’s. So many trans and non-binary lives are annually lost due to the toxic expectations society imposes on queer folks. So many queer folks fall short from achieving our true potential because of “viewpoints” that advocate denying us basic human dignity. I implore the law school to ask themselves if they would remain this passive if a hypothetical organization that advocated for forced mass hysterectomies of non-citizen women was to come to the campus to recruit their students? Where do you draw the line between a general viewpoint and a seriously regressive, flawed, and inhuman advocacy? At what point do you stop playing politics and start using the incredible tools we lawyers have toward equality and justice? What would be the best time, according to you, to challenge the 2006 Supreme Court Judgment?
Research Credits: GSAFE and UW Public History Project.
*Wisconsin Public Interest Interview Program is an opportunity for students of UW-Madison Law School to interview with multiple public interest and government employers for either paid or unpaid summer internships or permanent positions after graduation.
**The Women’s Liberation Front (WoLF) is an American non-profit radical feminist organization founded by Lierre Keith in 2016. In media outlets, it has often been noted for its opposition to gender identity legislation. WoLF has engaged in litigation on transgender topics, working against the Obama administration’s Title IX directives and the Gavin Grimm case. WoLF is chaired by Natasha Chart.
Ankita Bharadwaj is a lawyer and a legal academic with three degrees in law from Jamia Millia Islamia, Amity University (both in India) and UW-Madison Law School. Ankita is an organizer and currently serves as a member of Madison police civilian oversight board. They have previously served on the boards of Madison Community Coop and North American Students of Cooperation, and contributed to the betterment of the campus through their position as Vice President of the Middle Eastern Law Students Association from 2016 to 2017.