Why is America Backsliding on LGBT Rights?


In late April, unbeknownst to most Americans, something shameful happened: the UK Foreign Office issued a travel warning to LGBT travelers visiting North Carolina and Mississippi. That’s right: The British Government feels new legislation in those states is so discriminatory to LGBT individuals that it felt it necessary to warn its citizens vacationing or conducting business there. This is particularly humiliating because in December 2011 President Obama issued a memo instructing US federal agencies engaged in international diplomacy to encourage other countries to “combat discrimination, homophobia and intolerance on the basis of LGBT status or conduct.” Viewed pessimistically, we’re now telling other countries to do what we ourselves do not. 

For those who haven’t been following the news closely, here’s the summary of what’s going on:

North Carolina House Bill 2 (HB2), also known as the “Charlotte bathroom law” or the Public Facilities Privacy and Security Act, was signed into law on March 23. The law bans individuals from using public bathrooms that don’t correspond to their biological sex at birth and bars all North Carolina cities from passing anti-discrimination ordinances to protect LGBT people. Put another way, it ensures that discrimination on the basis of sexual orientation and gender identity—which are protected by Executive Orders 13087 and 13672 only for federal government employees—remain legal.  

HB2 protests in Raleigh, N.C.photo by Jill Knight/Raleigh News & Observer/TNS via Getty Images

Meanwhile, Mississippi’s House Bill 1523, the Protecting Freedom of Conscious from Government Discrimination Act, was signed into law on April 5 and will go into effect in July. The law will allow businesses and religious groups to deny the LGBT community certain services such as counseling, wedding planning and adoption support on the basis of “religious belief or moral conviction” that marriage “should be recognized as the union of one man and one woman.” Businesses are also free to fire employees “whose conduct or religious beliefs are inconsistent” with their beliefs or moral convictions, and deny housing to individuals on the same basis. Like North Carolina’s HB2, HB 1523 also blocks Mississippian cities from allowing transgender people to use public bathrooms for the sex for which they identify and prevents cities from passing non-discrimination laws.

According to Mississippi State Senator Jennifer Branning, “I don’t think this bill is discriminatory. It takes no rights away.”

Wait, what? Blatant discrimination that specifically singles out an identified class of people for separate and unequal treatment? Haven’t we already gone over this? In 1996, the US Supreme Court ruled in Romer v. Evans that Colorado couldn’t amend its constitution to prevent any city, town, or county from recognizing homosexuals as a protected class. The Court held Colorado’s attempted amendment to do just that was “inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.” It violated the Equal Protection Clause in the Fourteenth Amendment of the Constitution (“No state…shall deny to any person within its jurisdiction the equal protection of the laws.”) because it “identifies persons by a single trait and then denies them protection across the board.” And finally, “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare…desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

But I’m not a lawyer, and I digress.

According to the ACLU website, the following bills currently under consideration in state legislatures would restrict LGBT rights. All told, 31 states appear to have active bills or introduced bills that seek to curtail LGBT rights while only 19 states haven’t yet. Into which category does your state fall?

·      Religious Freedom Restoration Acts: Colorado HB 1180; Iowa HFs 2032 and 2200 and SF 2171; Hawaii HB 1160; Michigan SB 4; and Oklahoma HB 1371 and SBs 1371, 440, 723, and 898. Similar bills were killed in Georgia, Indiana, Maine, New Mexico, and West Virginia. 

·      Marriagerelated Religious Exemption Laws: Alaska HB 236/SB 120; Colorado HB 1123; Hawaii HB 2532; Illinois SB 2164; Louisiana HB 597; Michigan HBs 4732 and 4855; Minnesota SF 2158; Missouri HJR 97/SJR 39 and HBs 2000, 2040, 2730, and 2754; New Jersey AB 1706; Ohio HBs 286 and 296; Oklahoma SBs 440, 478, 811, and 973, HJR 1059, and HBs 1125, 1599, and 1371; and South Carolina SB 116 and H 3022, 3150, 4513, 4446 and 4508. Similar bills were killed in Florida, Georgia, Indiana, Kentucky, Maryland, New Mexico, Tennessee, Virginia, Washington, and Wyoming, but Florida HB 43/SB 110 became law in March.

·      Adoption and Foster Care: Alabama HB 158/SB 204 and Oklahoma’s HJR 1059 and HB 2428. Similar bills were killed in Florida and Nebraska.

·      Access to Health Services: Alaska HB 325 and Oklahoma HJR 1059. Similar bills were killed in Florida and Tennessee.

·      Other Exemption Bills: Hawaii HBs 2181, 2764 and HB 1337/SB 940; Iowa’s HF 2207/SF 2211 and SFs 2043 and 2044; Missouri HJR 96 and SB 916; and Oklahoma’s SB 1328. Similar bills were killed in South Dakota, Virginia, and Washington.

America bills itself as the “land of the free, home of the brave,” so how did we get here? 

GettyImages-511029136via Getty

The truth is, we were always here. We are a nation deeply and profoundly riven by ambivalence towards minorities (race, ethnicity, sexual orientation, etc.) at all levels. People tend to view the red state-blue state divide as a short-hand way of identifying the geographical location of social conservatism, but that’s a deceptive oversimplification; of the 19 states that haven’t yet introduced anti-LGBT bills, 8 went Republican in the 2012 presidential election, while of the states with active bills alone, eight went Democrat in that election. Then there are the following data points: a poll by the organization Public Policy Polling (which is Democratically-aligned) in February showed that 20% of South Carolinian voters would support banning LGBT individuals from entering the U.S. and 17% of respondents were “unsure” of their response. That up to a third of South Carolinians are comfortable with barring foreign LGBT visitors might be unsurprising given South Carolina’s historical conservatism, but according to a YouGov poll by The Economist in January that polled transnationally, 54% of Americans view gay rights as either “not very important” or “unimportant.” Ouch.

According to a Pew Research Survey from 2013, although 87% of Americans reported knowing someone who was gay or lesbian—with 49% reporting it was a family member or close friend—31% of Americans still believed homosexuality should be discouraged by society. Support for the queer community has increased consistently over time, but there are still many Americans that view homophobia as appropriate and legislation that discriminates against queer individuals to be acceptable or even desirable.

Civil rights movements often are subject to backlash, and the current crop of bills allowing discrimination against the LGBT community can be linked to conservative backlash against the legalization of gay marriage last June. Sadly, although the bills may seem especially egregious, they aren’t even a new phenomenon. After Vermont legalized civil unions in 2000, Nevada and Nebraska promptly amended their constitutions to prohibit gay marriage. The next year, the Vermont House of Representatives passed several bills to repeal gay civil unions (none of which passed the Senate). When Massachusetts legalized gay marriage in 2003, an additional 28 states passed constitutional amendments prohibiting gay marriage. And these are just reactions to the marriage issue since 2000.

As a final note, these anti-LGBT bills are not new, but the environment in which they find themselves is. Our present socio-political environment is empowering the expression of bigotry ways that were previously more limited in scope.The First Amendment, for example, unequivocally protects freedom of religion, and yet in the aforementioned Public Policy Polling survey of Republican primary voters, 25% of respondents agreed Islam should be illegal in the US, with 22% unsure. I believe the US judicial system will eventually overturn bills/laws HB2 and HB 1523 because they are clearly in violation of the Constitution, but it will take time for these cases to wind through the court system.  In the meantime, the empowerment of conservatism in the US poses a long-term threat to all minorities living here.

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