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Supporters of LGBTQ rights took to the artery in a affirmation in advanced of the U.S. Supreme Cloister aftermost October. Manuel Balce Ceneta/AP adumbrate explanation
At the affection of a adventure now arena out in schools, workplaces and courts aloft the U.S. is a altercation over the acknowledged acceptation of the chat “sex” — and whether bigotry adjoin gay and transgender bodies for actuality gay or transgender is sex discrimination.
The White Abode has a accurate affectionate of ability over this question. It has the ability to adapt whether LGBTQ bodies are adequate by sex bigotry protections in laws anesthetized by Congress, to affair rules and behavior that reflect that interpretation, and — through those accomplishments — the ability to accelerate a bulletin to the country.
In the aftermost several years, two White Abode administrations accept acclimated this ability in diametrically adverse ways. LGBTQ activists and their allies say it feels like civilian rights “whiplash.”
Take, for instance, the Obama administration’s advice to schools on transgender acceptance that came out in the bounce of 2016. It adapted schools to assure transgender acceptance from harassment, lath their adopted names and pronouns, and accord them admission to the locker apartment and bathrooms of their choice.
Sasha Buchert acutely remembers the abatement she acquainted aback that advice came out. At the time, she was an advocate with the Transgender Law Centermost in Oakland, Calif., tracking these issues closely, and watching as the country became captivated with what the New York Times beat lath referred to as “trans bath hysteria.”
Earlier that year, a bill alleged HB2 had anesthetized in North Carolina acute bodies to use the bathrooms that akin their bearing certificate.
During agitation on that bill in the North Carolina statehouse, Buchert listened to the untelevised adapted affair from her appointment in Oakland — it was 4 a.m. on the West Coast.
“It anesthetized and my affection aloof sank,” she says.
Advocate Sasha Buchert now works for Lambda Legal, in Washington, D.C., on LGBTQ federal action and litigation. Max Posner/NPR adumbrate explanation
The law sparked protests and a civic banking backfire adjoin North Carolina: PayPal absitively not to accompany 400 jobs to the state, Bruce Springsteen canceled a concert, and the Civic Basketball Association abashed its All-Star Game out of the state.
At the aforementioned time, Virginia jailbait Gavin Grimm’s accusation adjoin his canton academy lath for its action on transgender acceptance was headed for the Supreme Court. As he explained to NPR at the time, “The addition ability was a unisex bathroom. I’m not unisex. I’m a boy.”
More and added claimed belief from adolescent transgender bodies abounding the news, including one about a 9-year-old who said she was “really mad and sad,” to accept an bearding agenda slipped into her appointment binder that read: “You’re a boy not a babe get it throu your head.”
When the Obama apprenticeship administering issued its federal advice to schools in May of that year, Buchert acquainted affinity and abatement — aboriginal of all — for adolescent transgender bodies about the country, she says. “There are absolute bodies — absolute auto bodies — who are adversity discrimination, not activity to the bathroom, absence gym class. Those kinds of abominable altitude can accept a constant appulse on these youth.”
She says she additionally acquainted abatement on account of the schools about the country that bare clarity.
“I don’t anticipate that all schools accept built-in acrimony appear transgender people,” Buchert says. “I anticipate they’re aloof abashed and they don’t apperceive what their liabilities are, what they’re adapted to do beneath the law. The advice was accessible for them — it antiseptic what their duties and responsibilities are.”
Krys Didtrey, left, and Gloria Merriweather, center, led chants in a Raleigh, N.C., statehouse beef in 2016 in action to HB2, a accompaniment law that, in effect, adapted bodies to alone use appointed bathrooms that akin the sex on their bearing certificate. The law was repealed in 2017. Robert Willett/Raleigh Account & Observer/Tribune Account Service via Getty Images adumbrate explanation
One affair she did not feel was that the White Abode was creating new law, or acting on an activist agenda.
“It was based on absolute law,” she says. Buchert had brash the acknowledged history years earlier, as a anew out transgender advocate active in Washington, D.C. “I would go to the American University Law Academy and aloof apprehend through the case law and aloof try to get a bigger abstraction about auto rights,” she says.
Though the U.S. had a history of discrimination, Buchert realized, “there is aloof so abundant case law captivation that auto bodies are protected” aback it comes to bigotry on the base of “sex.” The Obama administration’s academy advice — in her appearance — was accurately applying that absolute law.
Ryan Anderson’s acknowledgment at the time was actual different. He’s a chief assay adolescent at The Heritage Foundation, a bourgeois anticipate tank, and he’s accounting books about religious liberty, gender and marriage.
“This was the controlling annex of government authoritative new law, which violates break of powers,” he says of the Obama White House’s 2016 advice to schools on transgender issues. Anderson additionally acquainted the advice alone brash the needs of transgender students.
“It didn’t booty into application the apropos of added acceptance — whether that would be changeable athletes who accept apropos [about] advancing adjoin boys who analyze as girls, whether that’s changeable acceptance accept apropos about aloofness and bathrooms, locker rooms, abode rooms, etc.”
Sudden action reversals beneath Trump
The changeabout from the Trump administering came quickly. In February 2017, aloof a few weeks afterwards Admiral Trump’s inauguration, his administering rescinded the transgender apprentice guidance. Weeks afterwards that, because of the reversal, the Supreme Cloister took transgender plaintiff Gavin Grimm’s case off its calendar.
Gavin Grimm, who is now 20, with his mom Deirdre Grimm a brace of years ago, in Gloucester, Va. The transgender boyhood sued the Gloucester Canton Academy Lath in 2015, afterwards it barred him from application the boys’ bathroom. Nikki Khan/The Washington Post via Getty Images adumbrate explanation
Of course, Obama’s transgender apprentice advice wasn’t the alone one Trump bound reversed. Obama’s behavior in commendations to Iran, the Paris Climate Accord, abounding ecology regulations and added accept additionally been reversed. Abundant of that was telegraphed in attack promises. But the reversals on LGBTQ rights and protections were not, Buchert says.
“It did shock me,” she says, “that this was one of the aboriginal things they absitively they bare to move on.” Afore Admiral Trump came into office, he seemed to be affective in a altered administering on these issues — vowing “to assure our LGBTQ citizens” in his assemblage speech, and assuming with a bubble banderole while campaigning.
Trumps changeabout of Obama’s transgender apprentice advice was aloof the aboriginal “warning shot,” Buchert says, that the courting of LGBTQ voters assured with the campaign, and as president, Trump planned to move aggressively to cycle aback LGBTQ protections.
For Anderson, Trump’s axis was no surprise. Despite the signals that he ability be affable to the LGBTQ community, Anderson says, “the accepted attitude that Trump had taken was, ‘Look, I’m activity to be a acquaintance to amusing conservatives. I’m activity to be a acquaintance to evangelicals and Catholics.’ “
Rolling aback Obama’s transgender apprentice advice was a antecedence for those groups, Anderson says. Plus, he adds, abolishment the advice was artlessly a acknowledgment to how things had been beneath than a year before. “I don’t anticipate that’s a decidedly extreme, outrageous, arguable position to hold.”
More reversals anon followed. In July 2017, Trump tweeted that transgender bodies could no best serve in the military. Buchert, a adept who served as a beforehand assassin in the Marine Corps, says she activate that accurate action change “extremely insulting.”
In October of 2017, again Advocate Accepted Jeff Sessions issued a announcement that the U.S. Administering of Justice would no best altercate in cloister that transgender bodies are federally adequate from application discrimination. By that point, Buchert had arranged up her accouterments and abashed to Washington D.C. to assignment for Lambda Acknowledged on LGBTQ federal action and litigation, so she could “be in the fight.”
Behind all of these reversals is the Trump administration’s position that actuality gay or transgender is a chic of character that is altered from “biological sex,” and accordingly not adequate beneath accepted law — a complete changeabout from the position taken by the Obama administration.
“It acutely apropos me as a transgender actuality that they’re activity afterwards our protections, agreement our lives at risk. But it’s additionally abhorrent as an attorney,” Buchert says. “They aloof are foolishly blank the aphorism of law.” For instance, she credibility out the administering of Justice announcement on transgender bodies and application bigotry cites a bone in a animal acclimatization case, which she calls “very, actual coarse justification.”
Transgender Army adept Tanya Walker addressed protesters in New York’s Times Square on July 26, 2017. The demonstrators had aggregate abreast a advancing application center, affronted at Trump’s accommodation to reinstate a ban on transgender individuals from confined in the military. Spencer Platt/Getty Images adumbrate explanation
Buchert knows that best transgender bodies are not account and allegory these memos and rules as acknowledged documents. What they are hearing, she says, is the bulletin that they’re not adequate by the federal government and that they should be afraid. Buchert emphasizes there are abounding years of administrative cases establishing the protections and rights of transgender people.
“We’ve approved actual adamantine to assure bodies that those protections still abide and we’ll accumulate angry for you,” she says. As an advocate alive on these issues, she says it’s “hard not to backpack the weight.”
“I accumulate acquisitive our country is bigger than this,” she says.
A bootless ‘poison pill’ in a battleground law
To bigger accept the history of sex bigotry and U.S. law, a acceptable abode to alpha is a aloft allotment of legislation that accustomed ample protections for abounding accessible groups: the Civilian Rights Act of 1964.
“The aboriginal Civilian Rights Act of 1964 banned bigotry based on race, color, civic origin, etc., but did not accommodate bigotry based on sex,” says law assistant Samuel Bagenstos of the University of Michigan.
“Sex” was added to Title VII — the allotment of the law that prohibits application bigotry — in an alteration put advanced in backward stages of agitation of the bill that became the Civilian Rights Act. The accumulation abaft the alteration was what Bagenstos calls a “weird coalition” of Southern conservatives (who believed the chat would be a “poison pill” that would doom the accomplished bill) and women’s rights advocates (who anticipation it was an important and all-important protection).
“Obviously, the bodies who affected that abacus ‘sex’ would bore the bill were wrong,” Bagenstos notes.” ‘Sex’ got added, and the bill got anesthetized anyway.”
Still, alike admitting it was on the books, sex-based bigotry initially was beheld as “kind of a joke,” Bagenstos says. “It absolutely took a lot of assignment by amusing movement actors aural the feminist movement to adapt and activate and accompany cases — and accompany political burden — so that by the end of the 1960s, both the [Equal Application Opportunity Commission] and the courts were alpha to admit the prohibition on sex bigotry was article serious.”
Anthony Michael Kreis, a law assistant at Chicago-Kent College of Law, says aback it comes to LGBTQ people, if you took a time apparatus aback to the year the law aboriginal anesthetized — 1964 — you’d acquisition a “pretty bleak” acknowledged landscape.
“There isn’t a state-wide anti-discrimination law that adequate LGBTQ bodies [at that time],” Kreis says. “There’s no accord acceptance for aforementioned sex couples. And auto bodies are targeted — because abounding municipalities had anti cross-dressing laws.”
It didn’t booty continued for bodies complex in the growing gay rights movement to activate because how the aegis adjoin bigotry on the base of “sex” ability appulse them, Kreis says.
“In 1966, there was a beef at Julius’s Bar in Manhattan — the bar, citation accompaniment regulators, banned to serve these aboveboard gay men,” Kreis says. “And at the time, the administrator of what’s about the New York City’s adaptation of the Equal Opportunity Application Commission, adapted that this was a anatomy of sex bigotry — and this is alone two years afterwards the Civilian Rights Act of 1964 was passed.”
In the 1970s and 1980s, gay and transgender bodies began to book lawsuits authoritative this argument, Kreis says, but it took decades afore board began to ancillary with them.
Two important Supreme Cloister decisions set the foundation for their arguments. The aboriginal was Price Waterhouse vs. Hopkins in 1989. Ann Hopkins was not acknowledgment to accomplice at the close because those in allegation anticipation her too advancing and not feminine enough. (One accomplice at the close brash her, she says, that if she capital a promotion, she should “walk added femininely, allocution added femininely, dress added femininely, abrasion architecture and jewelry, accept my beard styled.”)
Ann Hopkins, pictured with her children, was the plaintiff in a battleground case about sex-discrimination in the abode — Price Waterhouse v. Hopkins. The Supreme cloister disqualified in 1989 that “sex stereotyping” — acute adjoin addition for not befitting to gender-based expectations — is a anatomy of sex discrimination. Lucian Perkins/The Washington Post via Getty Images adumbrate explanation
The cloister disqualified that “sex stereotyping” — acute adjoin addition for not befitting to gender-based expectations — was a anatomy of sex discrimination.
Then, addition battleground accommodation emerged from the aerial cloister in 1998: In Oncale v. Sundowner Offshore Services, Inc., Joseph Oncale claimed that he had been addled on the base of sex by his macho co-workers on an oil belvedere in the Gulf of Mexico. The cloister disqualified absolutely that this did aggregate sex discrimination.
Justice Antonin Scalia, who wrote the decision, fabricated a acute point: “Male-on-male animal aggravation in the abode was absolutely not the arch angry Congress was anxious with aback it allowable Title VII. But approved prohibitions generally go aloft the arch angry to awning analytic commensurable evils, and it is ultimately the accoutrement of our laws, rather than the arch apropos of our legislators, by which we are governed.”
LGBTQ advocates accept congenital on that argument, Bagenstos of the University of Michigan explains. “In 1964, maybe no one was cerebration about this law attention gays and lesbians and transgender individuals — they may not accept had all the aforementioned words to alarm absolutely the affectionate of bigotry at affair actuality that we do now,” he says. “But they wrote a law that said if you’re advised beneath able-bodied because of your sex, that is unlawful. And these are bodies who are actuality advised less-well because of their sex.”
Today, the altercation attorneys for LGBTQ bodies are authoritative goes article like this: “If you’re accomplished with Jane advancing to assignment as Jane, but you accept a botheration with Jane advancing to assignment as Joe, the alone affair that’s afflicted is the sex,” explains Buchert of Lambda Legal.
“Or if Jane has a account of her bedmate on her board and you’re accomplished with that, but she puts a account of her wife on her board and you accept a botheration with that — that’s a sex-based consideration.”
The counterargument from the Trump administering and its allies is that someone’s sex refers to whether they are a man or a woman, and that alike if bigotry on the base of animal acclimatization or gender character is unjust, it’s not sex bigotry — and is currently not accurately protected.
To allegorize this idea, Anderson from Heritage uses the archetype of how Caitlyn Jenner, a celebrity who is transgender, ability acquaintance sex bigotry in applying for a job: “Someone could say, I anticipate you’re absolutely a man and accordingly I’m not activity to appoint you because alone women can do this array of work, or I anticipate you’re a woman and I won’t appoint you because alone men can do this array of work.”
In either of those cases, Anderson argues, “Caitlyn is still adequate adjoin sex discrimination. But if addition was to say, ‘Oh, I won’t appoint you because you’re trans,’ that’s not a approved aegis that Congress has alleged to enact.”
A charge for clarity
In the aboriginal canicule of the Obama administration, Bagenstos formed in the Civilian Rights Division of the Justice Department, and says it was a bright antecedence aural the White Abode to “try and see area — aural absolute law — they could extend added protections adjoin bigotry to LGBT individuals.”
It started about 2011, aback admiral in the Obama administration’s Application Equal Opportunity Commission absitively they bare to accomplish a allegorical alarm on the catechism of whether “sex” amid animal acclimatization and gender identity.
The adventure of this action is laid out in an amicus abrupt in three application bigotry cases currently afore the Supreme Cloister — a abrupt submitted by federal admiral who formed in the Obama administration. In the brief, they write: “The evolving and added abashed case law, and ascent charge to abode real, advancing discrimination, prompted the EEOC and several Departments to undertake abysmal and abundant analyses of whether the above-mentioned absolute approaches to Title VII and agnate laws were correct.”
After creating an LGBT alive accumulation and accomplishing accurate analysis, the EEOC assured that animal acclimatization and gender character “are intrinsically subsets of sex and, thus, are absolutely covered by Title VII’s prohibition of bigotry based on sex.”
Other departments and agencies about the aforementioned time were advancing to the aforementioned conclusion. In 2014, Advocate Accepted Eric Holder wrote in a memorandum: “I accept bent that the best account of Title VII’s prohibition of sex bigotry is that it encompasses bigotry based on gender identity, including transgender status.” In 2016, the Defense Secretary appear that transgender servicemembers could serve openly. The Federal Bureau of Prisons, Bloom and Human Services, and the Administering of Apartment and Urban Development all issued rules and behavior in the aforementioned attitude in those years.
Destiny, transgender and, at the time, homeless, talked with a acquaintance abreast a Chicago abandoned apartment in 2011. The Trump administering has proposed abandoning an Obama-era aphorism that requires abandoned shelters to abode transgender bodies according to their gender identities. David Pierini/Chicago Tribune/Tribune Account Service via Getty Images adumbrate explanation
This was allotment of a analytical accomplishment aloft the controlling branch. “One of the attempt that has heretofore absolute government action is that the government should allege with one voice,” says Jocelyn Samuels, who directed the HHS Appointment for Civilian Rights in the Obama years, and now runs the Williams Institute, a LGBTQ anticipate catchbasin at the UCLA Academy of Law. The aggregate efforts were painstaking, she says.
“The agencies complex took a actual accurate attending at the accent of anniversary statute basal the programs, at the aldermanic history and at the case law,” she says, in advancing to the cessation that animal acclimatization and gender character were accurately protected.
That action continued aloft Title VII and application bigotry to include, for instance, sex bigotry in bloom care, as categorical in Section 1557 of the Affordable Affliction Act, and sex bigotry in schools in Title IX of the of the Apprenticeship Amendments Act of 1972.
Buchert says the assignment accident in the federal government was “the acme of a lot of advancement that had been done and a lot of acceptance that auto bodies exist,” she says. “That afterimage additionally brings alternating with it a lot of opposition.”
A ‘tit for tat’ response
Under the Trump Administration, anniversary of these behavior has been formed aback or rescinded, one by one.
“The Obama administering was alive to beforehand LGBTQ rights aural the ambit of what the law permitted,” says Anthony Kreis, the law assistant who studies LGBTQ discrimination. “The Trump administering is — tit for tat — activity aback and aggravating to reverse-engineer every distinct one of those advances.”
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Kreis says it’s created a activity of “whiplash” amid the Obama andTrump administrations, abnormally in the ambience of Trump’s signals aboriginal on that he would be added admiring of LGBTQ rights than accomplished Republican presidents. The Trump administering does not aloof authenticate “a attrition or aloofness appear LGBTQ rights,” Kreis says. “It’s aboveboard adverse in a way that I don’t anticipate anyone absolutely absolutely could accept predicted.”
Buchert describes the reversals as “hurtful and infuriating.” She adds that the administering has also, in her view, appointed abounding anti-LGBTQ judges, and has fabricated moves to stop accession abstracts on LGBTQ bodies in a “drive to abolish LGBT bodies from from the record.” Evidence for those accuse was abundant in a address aftermost year by the Sunlight Foundation, a nonprofit, detached accumulation that advocates for artlessness in government.
Jocelyn Samuels — the above HHS administrator — says watching the accepted administering disengage the assignment that she and added admiral affected over is “heartbreaking, because it stands to put accessible bodies at accident aloft a accomplished spectrum of activities in which they should be able to appoint afterwards abhorrence of discrimination.”
The Trump White Abode pushes aback on the angle that Admiral Trump is adjoin gay or transgender people.
“President Trump has never brash LGBT Americans additional chic citizens, and has adjoin bigotry of any affectionate adjoin them,” White Abode agent Judd Deere tells NPR in an emailed statement. He addendum Trump’s accord in Washington’s Pride activities aftermost year, and that the admiral has assassin and acknowledgment White Abode agents who are gay, and pushed for all-embracing decriminalization of homosexuality.
The Trump administering has additionally launched a plan to end the HIV catching — “a charge that, aback achieved, will save LGBT lives aloft the country,” Deere says.
Anderson adds that the Trump administration’s reversals are “entirely appropriate.” If you accept determined, as the Trump administering has, that Obama overstepped the ascendancy of the controlling annex and misinterpreted the acceptation of sex discrimination, Anderson says, “then all of the assorted accomplishments that the Obama administering took area it interpreted the chat sex as gender character were unlawful. So activity aback to the aboriginal acceptation of the chat isn’t a ‘tit for tat,’ it’s a abating — advancement the aphorism of law.”
What’s abutting from Congress and the Supreme Court
Will these acknowledged reversals on protections for LGBTQ bodies abide to toggle aback and alternating every time the White Abode changes parties?
The acknowledgment to that depends in allotment on what the Supreme Cloister decides in those three accessible cases accompanying to LGBTQ bodies and application discrimination: Altitude Express v. Zarda; Bostock v. Clayton County; and R.G. & G.R. Harris Burial Homes Inc. v. Equal Application Opportunity Commission. Oral arguments in those cases were heard in October 2019.
In anniversary case, a gay or transgender actuality was accursed allegedly because of their animal acclimatization or gender identity. The Supreme Court’s decisions, accepted ancient this spring, will authorize whether or not those firings are acknowledged beneath Title VII of the Civilian Rights Act of 1964, which prohibits “sex” bigotry in employment.
Aimee Stephens was accursed from the Michigan burial home area she formed in 2013 — because, she says, she’d afresh appear out as actuality transgender. Stephens’ accusation is one of three cases now beneath application in the Supreme Cloister that analyze federal civilian rights law as it relates to LGBTQ people. Paul Sancya/AP adumbrate explanation
“The Supreme Court, aback it weighs in on these Title VII cases, will apparently acquaint us a lot about what the law is activity to be — unless and until Congress acts,” Bagenstos says. Those decisions will actuate how “sex” can be interpreted beneath accepted law. But, he adds, “ultimately you’ll get added adherence aback Congress passes a new law.”
A bill alleged The Adequation Act has been blame about Congress for decades — it was aboriginal alien in 1974, aloof 10 years afterwards the Civilian Rights Act became law. The accepted adaptation of the Adequation Act would apotheosize in law abounding of the protections conferred by the Obama administration’s rules and policies, by absolutely prohibiting bigotry on the base of animal acclimatization and gender character in education, federal funding, employment, housing, and more. Aftermost year, the Democrat-controlled Abode anesthetized the bill and beatific it to the Republican-controlled Senate, area it is not accepted to be brought up for a vote.
Kreis makes the point that acclamation advance that, in allegory to accomplished eras, American association is now abundant added accepting and compassionate of bodies who are gay or transgender.
“Those acquaint from the amusing movement – the LGBTQ rights movement – haven’t afflicted and best Americans’ angle on this accept not afflicted [since Trump’s election],” Kreis says. That’s “what makes the Trump administration’s changeabout so adamantine for so abounding bodies to swallow.”
Anderson from the Heritage Foundation doesn’t anticipate there’s a bucking amid amusing advance and Trump’s rollbacks — he says it’s about “nuance” on these issues. “I don’t anticipate anyone in America wants to be blowing or afflictive or abusive LGBT people,” he says. “But I additionally anticipate there are affidavit that women are anxious about aloofness and assurance in accessible restrooms or locker apartment or the adequation on able-bodied fields and tracks.”
Joaquín Carcaño, at his home in North Carolina in 2016. A transgender man, Carcaño was the advance plaintiff in a accusation brought adjoin the governor of North Carolina to block HB2, the state’s “transgender bath law.” The case acclimatized aftermost year afterwards the law was repealed. Gerry Broome/AP adumbrate explanation
For Buchert of Lambda Legal, “it’s not about the bathroom,” she says, and “it’s about it’s not about the cake,” apropos to the acclaimed Masterpiece Cakeshop Supreme Cloister case.
“If you attending at the aldermanic attacks,” Buchert says, “they accept evolved. And you can see that this is acutely a concerted accomplishment to acquisition what’s activity to assignment to acknowledgment auto rights. Is it the bathroom? They had aerial hopes and it didn’t assignment out — there was a lot of abutment and a lot of adulation for auto bodies in the community, and bodies saw through the deception that [allowing auto bodies to use assertive bathrooms] is adverse for women in some way.”
She says she sometimes reminds herself of a adage about amusing movements: “First, they do avoid you, again they do beam at you and again they action you — and again you win.”
“For a continued aeon of our history, we’ve been abandoned and laughed at,” Buchert says. “If you attending at the sitcoms from ’60s, ’70s, ’80s TV — a man in a dress is ‘the best amusing affair ever,’ ” she says. “The association that argue us accept abashed from bedlam at us to angry us. It’s not over — we’re rolling up our sleeves because it’s gonna be a continued fight.”
Along with her assignment on action and LGBTQ bigotry cases — Buchert additionally wants to action the bulletin she says the Trump administration’s accomplishments are sending: that gay and transgender bodies should not be adequate from bigotry and that they should aloof abandon or pretend to be article they are not.
Her own message? “We’re aloof people,” Buchert says, and laughs. “We like dogs. We like ice cream. We’re absolute bodies — this is how we were made.” And, she adds, “we’re not activity aback in the closet.”
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