Photo: Gettty Images
It seems like since November, hair-on-fire news stories about controversial issues have come so thick and fast that it’s hard to keep track of them all. This month alone, Pepsi’s cringe-worthy “Pepsi solves tension between generic protesters and law enforcement officers” ad was quickly overtaken by a passenger being dragged unconscious and bleeding from a United flight, which was in turn supplanted by White House press secretary Sean Spicer first forgetting that the Nazis gassed more than 6 million people (Jews, gays, Roma, etc.) to death in Germany and some German-occupied countries and then admitting poison gases were used in “Holocaust centers” (seriously?).
When it comes to anti-LGBT initiatives, the news so far in 2017 has also seemed headline worthy. Take, for example, South Dakota: in early March, South Dakota passed Senate Bill 149, which allows taxpayer-funded adoption and foster agencies to refuse to work with LGBT couples (or single parents of any orientation) on the basis of the agencies’ religious beliefs (Michigan, North Dakota, and Virginia already have similar laws on the books). Or North Carolina: in early April, four lawmakers filed House Bill 780, aka the “Uphold Historical Marriage Act,” which would allow North Carolina to refuse to recognize gay marriages (although it’s worth noting that the measure has already all but failed). According to the Human Rights Campaign, some 100 bills with possibly anti-LGBT provisions have been introduced in 29 states so far in 2017. Clearly, some Pepsis are in order.
However, while there’s reason to be concerned, before we start sharpening our pitchforks, let’s first parse out some of the inaccurate information that’s been circulating in addition to the true bad news. For example, in late March President Trump rescinded Executive Order 13673, also called the Fair Pay and Safe Workplaces Executive Order. The order, which President Obama signed in 2014, required certain prospective federal contractors to disclose violations of some workplace protections, including pay, safety and health, collective bargaining, leave, and civil rights, before receiving a contract with federal agencies.
Although LGBT rights organizations widely lauded this order as being the only nationwide protection for LGBT employees not working directly for the federal government (true) and railed against its rescission as an attack against gay rights (probably a bit of an exaggeration given that the words “sexual orientation” aren’t even in the order), in fact parts of the order had been enjoined by a federal judge before it was even implemented. This means that although the order had the potential to help a small subset of LGBT Americans had it not been rescinded, in reality it never got off the ground in the first place.
Photo: Getty Images
Nor did the new Trump administration aggressively remove LGBT references throughout the US Government. In late March, news circulated that the administration had removed questions relating to sexual orientation and gender identity from the decennial (every ten years) 2020 Census. However, those questions have never been in the US census and therefore weren’t there to be removed. Instead, this was a garble of news that more than 75 Congressmen had signed a proposal to add such questions to the annual American Community Survey based on a request from, but the Census Bureau, after considering the issue, found there was no clear statutory or regulatory need for the collection of this type of data-the criteria for determining what questions will be included in the census-and ultimately declined to add the questions, a decision made without pressure from the administration.
Separately, in late January news outlets began to report that federal agencies were scrubbing LGBT references from their websites, singling out the State Department website in particular: NBC Out ominously reported: “Entering ‘LGBT’ into the website’s search field resulted in numerous dead links where webpages used to house information about LGBTQ Pride month, LGBTQ refugees, LGBTQ human rights issues, human trafficking of LGBTQ people and the Special Envoy for the Human Rights of LGBT Persons,” A cursory search today, however, reveals that not only are those pages there, but the US Special Envoy for the Human Rights of LGBTI Persons Randy Berry has continued on in his position even in the new administration. It is therefore more likely that the previous website issues were reflective of the administration turnover rather than a directed policy measure to marginalize LGBT issues.
That said, there are real and concerning issues at hand, and the ongoing saga of LGBT rights in North Carolina might be an indicator of the future of gay rights throughout conservative, Republican-held areas. A year after House Bill 2 (the “Charlotte Bathroom Bill”) was passed in North Carolina, it was partially repealed late last month. House Bill 142 restored the ability of local governments to pass nondiscrimination ordinances, although not until 2020, but permanently prevents government agencies at all levels in North Carolina from adopting trans-friendly bathroom or locker room policies and instead places bathroom policy under the purview of the Republican supermajority-dominated North Carolina Legislature.
The lesson learned from North Carolina’s HB2 situation is twofold: first, economic blowback and the economic/reputation loss from having the NCAA move its basketball championship tournament out of state were the widely acknowledged, primary drivers for HB2’s repeal. Republican Representative Carl Ford, who voted against HB2’s repeal, said, “If we could have props in here, I would take a basketball covered in money and roll it down the middle aisle there, because that’s what this is about, money and basketball.”
While the repeal of HB2 is partially good news, missing from this list of one and a half drivers is “the right thing to do” and “fair and humane treatment of equal human beings.” For future anti-LGBT legislation around the nation, opposition is likely to be most effective when tied to economics, not civil rights and equality. Second, kicking the can to sub-state governments may be quickly becoming the next tactic states use to duck civil rights legislation. By allowing cities and municipalities to pass nondiscrimination ordinances but not adopting a state-wide policy, North Carolina has effectively transferred the fight for gay rights from a single battlefield (the drive for a statewide nondiscrimination law) to thousands of small battlefields. Moreover, many of these battlefields remain defiantly and proudly homophobic, an attitude that this approach condones. As a practical matter, this policy says, “It’s okay for cities/municipalities/counties to be rampantly homophobic, because the gays can move somewhere else.”
Photo: Getty Images
Going forward, there are two major legislative threats to LGBT rights: one, as mentioned, is the enabling of homophobia through states’ refusals to enact nondiscrimination laws in support of LGBT residents and, consequently, implicit tolerance of inequality. The other is a spate of religious freedom bills that would enable discrimination against LGBT individuals on the basis of religious beliefs (Texas’s Senate Bill 892 and House Bill 1805, Oklahoma’s House Bill 1507, and Alabama’s Senate Bill 145, for example).
Despite the current conservative backlash in parts of the US, there is reason to remain hopeful: the American Civil Liberties Union has a list of all the legislation introduced in state legislatures in 2016 that would have allowed individuals and organizations to discriminate against LGBT individuals on the basis of religion. Of the very long list, only four passed. Here’s hoping 2017 looks similar.
