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How to Use Civil Rights Law to End Mask Mandates
A call for doctors, lawyers, and regular people to join me in helping to preserve American freedom
Alameda County, which is in the Bay Area, just returned to having a mask mandate. Since the start of the pandemic, I’ve worried that parts of the country would have to live under permanent, or at least seasonal, masking. LA County, where I live, was the first major county in the country to reinstate its mandate in July 2021 after vaccines became available and the CDC no longer recommended universal indoor masking. It wasn’t lifted until April, which means that we had a second mask mandate for around 9 months in the vaccine era. The Omicron surge last winter was accompanied by a number of “Vaxxed and Done” takes in the prestige media, and I thought we finally might have actually been finished with all this. But apparently not. Alameda County is probably not going to remain alone, as LA appears ready to follow in its footsteps. If California counties can’t get through the summer without returning to mask mandates, do we have any hope of ever getting through a winter? Last Christmas, they let the local mall Santa go maskless for pictures but he was socially distanced from the kids. I guess this is supposed to be life now. The CDC is now recommending people mask while traveling to avoid monkeypox, a disease that has only 1,000 known cases worldwide and for which the exact mechanisms of spread remain unclear, though gay sex seems to play a role. There’s no monkeypox mandate yet, but clearly they’ve discovered a tool and they intend to keep using it.
I’ve written about the evils of masking before. I was willing to tolerate it as a temporary measure when we were dealing with uncertainty; when it became clear that there was an extremely weak or non-existent connection between mandates and covid outcomes, I came to see them as an unusually illegitimate form of state power. In every other situation, we recognize that forcing people to cover themselves in public is an extreme affront to human liberty. This is the whole point of Handmaid’s Tale cosplay. And not even in The Handmaid’s Tale do they force women to cover their faces (or maybe they do sometimes, I’ve never watched it). The Taliban doesn’t apply its dress code to women who are “too old or too young.” Are these hyperbolic comparisons? If so, why? Because they do it for social conservatism, while we do it for “public health”? If tens of millions could be saved by mask mandates maybe we would actually face a tough decision here, but we don’t, and the more extreme the infringement on liberty, the more extreme the justification for it needs to be.
Luckily, there may be a way out. It relates to my other obsession, which is civil rights law. After July 2021, I’ve refused to wear a mask in public, and at first this meant simply avoiding the establishments that tried to enforce the mandate. Until a few months ago, I had to keep a list in my head of which places I could go to, which ones I needed to avoid, and where they might bother me and where they might not depending on who was working that day. Hardware stores are the least likely to care, probably because they are filled with high testosterone men. Target puts up LGBT posters everywhere, so I had to stop shopping there. I was never asked to put on a face covering at the mall, probably because it’s too easy to exit and just go to a different store. Most restaurants didn’t try to force me to put on a mask to walk to the table, but those owned by Asians sometimes did. I justified my willingness to do so at one sushi restaurant by reframing it as a matter of respecting private property rights rather than submitting to a government mandate, since Asians seem to love masking so much that they might’ve forced it upon me even if they weren’t required to by law. Plus, I was hungry. (As it turns out, not even Asian restaurants require masking without a government mandate, so I can no longer tell myself that. You still see a lot of Asian kids masked though, which is very depressing.) Independent businesses tend to be better than chains, and gay men are more likely than others to enforce masking. Other people going unmasked helped; if I was the only one in a store, which happened often, there was always a chance they would bother me, while I knew everything would be fine if I saw at least two or three others. My gym has a trainer who I used to hear keep talking about “Brandon,” and there they unsurprisingly never care if you mask. For going to the airport, I’ve relied on randos from Twitter rather than Uber, a practice that I’ve realized makes sense whether there is a mask mandate being enforced or not. Then I would get to LAX, briefly put the thinnest mask I could possibly find under my nose to drop off my luggage, take it off, put the mask back on when going through TSA, and then take it off again while waiting to get on the plane, where I’d keep water close by, my hoodie up, and my body tilted away from the aisle so that the crew could have enough plausible deniability to leave me alone, which they usually did except for this one time when the flight attendant was a gay man (thank you, civil rights law, for forcing airlines to hire them instead of letting the attendants all be pretty young women, God forbid).
And so on. I lived like this for a very long time. I still have to avoid the dentist, the optometrist, and most kinds of more optional medical care. When forced to comply with masking, I create a big scene to make it as unpleasant as possible for the person enforcing the mandate, in the hope that it will raise the costs of them bothering the next person. But not when going to the doctor, as I think that while you might change the cost-benefit calculations of a cashier, you probably won’t for a medical receptionist. It’s not always easy being pro-social, but I feel a moral obligation to try.
The reason I usually don’t have to wear a mask even during mandates is that most people are conflict-averse, and will be more likely to let you do what you want if you’re willing to complain loudly and aggressively enough. This is the secret of the success of identity politics, not the philosophical underpinnings of “Cultural Marxism” or “postmodernism” or any other nonsense. At some point, I thought that I could make things even easier for myself if I had a doctor’s note saying I couldn’t wear a mask. The problem was I didn’t know any doctors. But then I realized that I am a doctor, and I could write myself a note and I would be telling the truth when saying I had a “doctor’s note” exempting me from the mask mandate. I never bothered doing this, as it turns out all I needed to do was say “I have a condition” when asked to put on a mask, and that basically always worked. So I’ll still be able to go to the supermarket and most other places when LA brings back masking. But medical offices, government buildings, and Asian restaurants remain as potential problems. Moreover, my heart breaks every time I see a masked child, and I want there to be a way to help them too, along with people working in service sector jobs who would like to be able to show their faces when they want.
Under the Americans with Disabilities Act, businesses must, as the name of the law suggests, reasonably accommodate individuals with disabilities. How do we determine what a disability is and what kinds of accommodations a person needs? Basically, it all comes down to whatever a doctor is willing to attest to. If a business doesn’t like what a doctor says, they can fight the patient in court, but most of the time they will just give in because it’s not worth it.
When I first moved into graduate student housing at UCLA, a girl who lived across the hall told me she owned a cat, which she was only allowed as a treatment for anxiety. I imagined a doctor sitting there, talking to this girl, and saying with a straight face “Nervous before exams? Not to worry. I prescribe you a CAT. I think there’s one in the alley out back, pick him up on your way out.” Then he draws a little cat on his prescription pad, finishes with the whiskers, and sends her on her way. In 2018, a woman was kicked off a flight for bringing her “emotional support squirrel.” Here’s an op-ed complaining about “fake” therapy animals like peacocks making a mockery of “real” therapy animals like dogs, cats, and ponies.
I don’t know if this is a California thing or it’s taken off to a similar extent nationwide, but I now regularly see dogs in stores, as many businesses appear to have completely given up on the “no pets” rule since so many people can get around it that there’s no point. For the curious, here’s a government FAQ on therapy animals and the ADA. The number of disability lawsuits, by the way, is skyrocketing as other kinds of civil rights lawsuits have leveled off. There are entire firms that now specialize in extorting small businesses over minor violations.
You can see where I’m going with this. All mask mandates nationwide must be compliant with the Americans with Disabilities Act, and California has a similar law at the state level. To stop masking all you need is, at most, a doctor willing to say you should be exempt, and if enough people do this, enforcement completely breaks down. Every person that goes unmasked makes it easier for everyone else, and when business owners and their employees come to realize that medical exemptions for mask mandates are not all that rare, they will completely give up on enforcement. As I discovered, you don’t even actually need the note most of the time. This is not just because cashiers usually don’t feel like arguing over things like this, but also because the law is somewhat ambiguous about whether businesses can even question your claim to have a medical condition in the first place. According to a website that provides advice for complying with the ADA, “guidance from the US Department of Justice has not allowed asking for documentation for accommodations at businesses where interactions are brief, such as grocery stores or pharmacies,” though you might need to bring something official to the doctor’s office.
This is such a simple idea. Why hasn’t anyone thought of it yet? I think it has something to do with the politicization of the issue. Here’s a WebMD article about the dilemmas faced by doctors with patients who ask for mask exemptions, with the tone being very skeptical about whether they should provide them in any but the most extreme cases. Considering that there are doctors out there doodling cats on prescription pads (or so I’d like to think), it’s pretty funny that this is where the medical profession draws the line. They just don’t want to help people they assume are Trump supporters. And most anti-maskers don’t appear to be inclined towards solving their problems through relying on disability law, as they tend not to come from the demographic that is used to medicalizing its problems. Nonetheless, it doesn’t appear that there’s any legal barrier to doctors being very generous with regards to handing out exemption letters for mask mandates – even the doctors in the WebMD article admitted doing so was appropriate in some cases – and all it takes is a few individuals to get the ball rolling.
So if you’re a doctor willing to provide a consultation for free or a reasonable price, e-mail me, or preferably send a DM on Twitter. If cats can be medicine, you can certainly in good conscience decide that in your medical judgment I am too autistic to submit to a public humiliation ritual. For diagnostic evidence, you can browse through my Twitter feed or refer to the parts of this essay above where I discuss how my life has for years revolved around trying to avoid wearing a mask. Also, I have sensitive skin and masks tend to irritate my face. Or one might be able to say I have a phobia towards public policies that don’t pass a cost-benefit test, or that I have a hyper-masculine “gender identity” that doesn’t allow me to do things I consider feminine or gay. I’m willing to follow the science and trust your medical opinion.
Please send me a message too if you’re a lawyer and think you can also find a way to help, say by being willing to in certain cases send strongly worded letters to businesses reminding them of their responsibilities under the ADA or California law. In fact, anyone who wants to help in any way should get in touch.
Just declaring that you “have a condition” works at the supermarket, but for schools, universities, and employees on the job, you probably need a doctor’s note. I’d like to encourage others to start exploring how to get one, and doctors to help them out. Here’s a NYT article about the growing trend of rich parents getting their kids extra time on exams. I’m guessing these are mostly the kinds of parents who don’t mind masking, but others who simply want their children to live normal lives should take a lesson here. For readers who are college students or professors, I’d encourage you in particular to start pushing back as you’re at institutions that are among those that have gone the most overboard in their covid hysteria. If you’re worried about taking on your institution alone, I can help you through getting positive media attention, negative media attention directed towards those that get in your way, and potentially even financial support. This will be a top priority for me, not simply one project of many. I enjoy writing and have never felt much of a desire to divert my time into activism, but masking is a truly unique evil. If you’re interested in trying to help me end it, please reach out.