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➤ DRIVER’S LICENSE, from p.26
rate identifi cation of their gender, so
an important adverse effect of the
challenged policy would remain.
“By Defendants’ own representations,”
wrote Liman, “the system
currently in place will not permit
DMV, through automated process,
to accommodate Plaintiff’s demand
not to have to elect a binary gender.
If the license DMV has offered Plaintiff
were to expire tomorrow, DMV
could not and has not offered any
assurance that Plaintiff would not
again be confronted with the allegedly
unconstitutional Application.”
Normally, a constitutional claim
will be considered moot when the
challenged policy is changed, not
based on representations that it will
be change in the future. Thus, it is
possible that the violation of constitutional
rights will recur in the
future if the change does not take
place, so the ability of the court to
issue a declaratory judgment and
injunction will still have meaning
now. The courts recognize a “voluntary
cessation doctrine” under
which a governmental unit whose
practice is challenged as unconstitutional
may voluntarily change
the policy, making the case moot,
but in this instance what DMV has
offered to do does not change the
underlying policy or eliminate its
effects until some indefi nite time
in the future. A subsequent administration
could decide not to make
the change, since it is not embodied
in a statute or regulation.
Judge Liman thus denied the
mootness claim, but he did conclude
that Saba’s demand for monetary
damages for violation of their
constitutional rights was barred by
11th Amendment immunity. New
York government offi cials may not
be sued in federal court for damages
for their past actions under
the doctrine of sovereign immunity.
On the other hand, the court
can declare that the policy in place
violates the Constitution and may
enjoin its future operation.
The defendant’s motion did not
take any position on the question
of whether the existing policy is
unconstitutional. It was focused on
the claim that the case was moot
and that in any event the 11th
Amendment barred relief against
the defendants. Judge Liman was
careful not to indicate any opinion
about whether Saba’s constitutional
claims are valid, since that question
was not raised by the motion.
Judge Liman was appointed by
President Trump in 2019. Lambda
Legal attorneys Carl S. Charles
and Omar Gonzalez-Pagan represent
Saba, together with attorneys
from O’Melveny & Meyers, LLP.
Governor Cuomo and Commissioner
Shroeder are represented by
Andrew S. Amer of the New York
State Department of Law.
➤ TOM OF FINLAND, from p.35
profi le casts on the wall behind
him is indeed the epitome of a Tom
of Finland face.
Laaksonen eventually relocated
to Los Angeles. He found the men of
that city, both close and unknown
to him, stimulating. The Tom of
Finland Foundation, from whose
extensive holdings the photographs
and artworks for this show were
selected, is housed in Laaksonen’s
former L.A. residence.
Perhaps not surprisingly given
his fi xation with hypermasculinity,
Laaksonen took an interest in
Black men, long characterized as
preternaturally virile. One collection
of photographs in the show,
“Untitled 1986,” is of an African
American subject, the largest of
which is a close study of the man’s
body cropped at the neck and just
above the knees, his bulging crotch
the central point of attraction,
reminiscent of Mapplethorpe’s controversial
piece, “Man in Polyester
Suit” (1980). Many Tom of Finland
illustrations came to feature
Black characters or interracial sex
scenes. These photographs introduce
one human model Laaksonen
picked to help him create the iconic
illustrations that are now relics of a
bygone era in gay self-fashioning.
“Nobody knew about this material,”
said Arell. “You have maybe
to rethink your picture of Tom of
Finland, of Touko Laaksonen.”
TOM OF FINLAND, THE DARKROOM
| Fotografi ska, New York |
April 30 – August 20, 2021
Nicholas Boston, Ph.D., is an associate
professor of media studies
at Lehman College of the City University
of New York (CUNY), and author
of “The Amorous Migrant: Race,
Relationships and Resettlement”
(Temple University Press).
GayCityNews.com | MAY 6 - MAY 19, 2021 39
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