To a significant number of Americans, the quest for gay rights is either over or mostly over. On 28 June of this year, for example, the Atlantic ran an article by James Kirchick with the headline, “The Struggle for Gay Rights Is Over.” To his credit, Kirchick did hedge somewhat, admitting, for example, that, “In many places it’s still dangerous to be gay. Homosexuals continue to face higher rates of depression than heterosexuals, and gay teenagers attempt suicide more frequently than their straight peers.” But the thrust of his article was that gay rights activists should accept victory.
While tremendous progress has been made on gay rights in America, massive amounts of work still need to be done. LGBT people and their allies must be on guard to prevent the progress that has been made from being reversed. The legal and sociocultural situation for transgender Americans is even more precarious.
On the one hand, there is much to celebrate. Gay marriage and adoption are legal in all fifty states. Don’t Ask, Don’t Tell has been dead for eight years. Warnings that alleged LGBT overzealousness and intolerance of conservative Christians would sour the public on gay rights have not panned out. Public support for gay marriage and adoption is stable at worst, increasing at best. More states are including gay people in anti-discrimination laws and banning the dangerous, useless practice of gay conversion therapy for people under the age of eighteen.
On the other hand, it would be an oversimplification to say that gay people have achieved equal rights in America. A number of states, for example, allow taxpayer-funded adoption agencies to discriminate against LGBT parents. It is not merely that religious institutions are legally permitted to only place children with heterosexual parents: they can do so while receiving money from LGBT taxpayers. In January of this year, the federal government affirmed its support for these policies when the Department of Health and Human Services “issued a waiver permitting South Carolina adoption agencies that receive government money to refuse to comply with nondiscrimination requirements as a stipulation of receiving federal funding.” Would an adoption agency that refused to place children with heterosexual couples be allowed to receive taxpayer funding?
Taxpayer-funded discrimination extends beyond adoption agencies. In 2018, Donald Trump weakened an Obama administration executive order preventing most federal contractors from discriminating against LGBT people. Under Trump’s revision, contractors could claim a religious exemption and be allowed to discriminate while receiving federal money. The claim that an institution’s religious liberty requires the government to forcibly extract tax money from the very groups the institution is discriminating against and give the money to said institution seems like a stretch.
The Trump administration’s efforts to apply anti-LGBT discrimination to immigration policies is also alarming. For example, last year, the State Department imposed a new policy stating that gay foreign diplomats and UN staffers could not get visas for foreign spouses unless they were able to legally marry in said spouse’s country of origin. As Scott Shackford of Reason has pointed out, this requirement is often impossible to satisfy, since many countries do not allow gay couples to marry or even enter into civil unions or domestic partnerships.
LGBT Americans often do not enjoy the legal protections that other Americans are granted. Conservatives have often attempted to frame debates over anti-discrimination laws for LGBT people in terms of whether or not bakers should be able to refuse to bake cakes for same-sex weddings. But the problem goes far deeper than that. In much of the country, it is legal for businesses to refuse any service or employment to people based on sexual orientation or gender identity. While a heavy majority of the public supports anti-discrimination laws for LGBT Americans, all too many people either think that these laws already exist nationwide or that anti-gay discrimination is rare. According to Kirchick, “When I asked the Human Rights Campaign, the country’s leading gay-rights group, for statistics on the number of LGBT people annually denied employment, housing or service at a hotel or restaurant due to their sexuality or gender identity, the group was unable to provide me with any.” His question misses a key point. If a company lacks an LGBT-inclusive nondiscrimination policy—as do a minority of companies, such as Chick-fil-A—then LGBT workers have no recourse from either Human Resources or the authorities if they face discrimination. Thus, the true extent of anti-LGBT discrimination in the business sector is difficult to identify because of policies promoted by many of the people who insist discrimination is not a problem. (I do not put Kirchick in this category, as he seems to be in favor of anti-discrimination laws on general principle.) By analogy, in countries such as Iran and Saudi Arabia, marital rape is legal. Imagine that you were debating someone about women’s rights in these countries and brought up the fact that Iranian and Saudi Arabian women can be legally raped by their husbands. Your interlocutor asks for statistics on marital rape. You respond that such statistics are hard to come by, since women raped by their husbands cannot legally report it. But the apologist declares that, since you cannot provide statistics, there is no reason to think that marital rape is a serious problem in Iran and Saudi Arabia. These are the kinds of arguments used by those who dismiss the idea that anti-LGBT discrimination is a problem. Nor is this issue limited to private corporations. In states such as Texas, Oklahoma and Louisiana, even LGBT state government workers are not covered under anti-discrimination laws for public employees.
The victories that have been won for gay rights must be steadfastly defended. In January 2016, Donald Trump said that he “would strongly consider” appointing Supreme Court judges to reverse the previous year’s pro-gay marriage ruling. He backpedaled later that year, but this is cold comfort to anyone familiar with his track record of constantly changing positions on important issues—including gay rights. His appointment of Neil Gorsuch to the Supreme Court indicates a willingness to appoint anti-gay marriage judges. In 2017, the Supreme Court ruled against an Arkansas policy preventing both same-sex parents of a child from being listed as parents on the child’s birth certificate, despite the fact that Arkansas lists non-biological heterosexual parents on birth certificates. Gorsuch dissented from the ruling, which even John Roberts—who dissented from the decision to legalize gay marriage—supported. In North Carolina, Tennessee and Kansas, legislators have introduced anti-gay marriage bills, with the probable goal of re-litigating the issue before a more conservative Supreme Court.
Furthermore, while this year’s Gallup poll shows that Americans support gay marriage at a rate of almost two to one, the poll also betrays deep fissures in public opinion. Only 44% of Republicans think gay marriage should be legal. Up to 37% of Americans are still anti-gay marriage or undecided/unwilling to answer. Polling data on the legality of homosexuality itself is also worrying. A 2017 poll found that almost a quarter of Americans believe that homosexuality should be against the law. Roy Moore, that year’s Alabama Republican Senate candidate, took such a stance, was endorsed by President Trump, and would probably have won, had multiple women not accused him of sexual abuse. The ongoing stigma that interracial couples face, especially in more reactionary parts of the country, cautions us against believing that opposition to gay marriage will disappear any time soon.
Major progress has also been made on transgender rights, though less than on gay rights. An increasing number of cities and states include trans people in anti-discrimination laws and allow them to use public restrooms corresponding to their gender identity. Public acceptance of trans people and support for trans rights is on the rise, particularly among women, millennials, liberals and irreligious Americans. Nonetheless, legal equality for transgender Americans seems a long way off. They are currently banned from serving in the military, though this policy is unpopular with most Americans, including the majority of veterans. Opponents of transgender military service respond by saying that nobody has a right to serve in the military, but this is a straw man. Virtually nobody is arguing that people should automatically be able to join the military just because they are trans. Trans individuals should be able to serve if they meet the same standards as other members of the military. As Captain Jay Caputo of the US Coast Guard explains, arguments about trans soldiers needing access to medication are not compelling. “Service members have a wide array of health-care issues the military treats to ensure fitness for duty,” writes Caputo, “including high blood pressure, cancer, musculoskeletal injuries, high cholesterol, concussions and mental health issues.” In many states, transgender people, including children, cannot use public, taxpayer-funded restrooms that correspond to their gender identity—despite the correlation between greater levels of support for trans people and lower suicide rates, and the fact that predatory behavior by trans people in bathrooms is very rare. There is considerable evidence that most trans people do not choose to be trans but that gender identity is a function of biology, largely relating to the brain. Many opponents of transgender rights implicitly acknowledge this by referring to being trans as a mental illness. Since mental illnesses are not voluntary, those who use this term seem to agree with trans rights advocates that being trans is not a choice. They simply disagree about whether it is harmful.
Some opponents of trans rights claim that transgenderism is a fad, which most self-identified trans people embrace to be trendy. Large numbers of Americans consider transgenderism illegitimate and oppose major aspects of trans rights. Government and private sector discrimination against trans people is legal in much of the country, including in certain jurisdictions where anti-gay discrimination is illegal. Transgender Americans are at significant risk of hate crimes. The idea that considerable numbers of people are willing to deal with all of these hardships simply to be trendy is untenable. Even if you disagree that a person born with a male anatomy and a female gender identity is a woman, you must agree that the current legal status of transgender Americans cannot stand.
In 1852, abolitionist Wendell Phillips warned his audience that “eternal vigilance is the price of liberty.” I do not believe that gay marriage and adoption will be repealed or that homosexuality and cross-dressing will be banned again. I do not believe that America will revert to its old, barbaric practice of institutionalizing its transgender citizens. I believe that we will continue to see progress. But such progress is not inevitable. If we grow complacent out of a belief that regression is impossible and that progress is assured, we may well be proven wrong. Our victories will stay in place, and progress will continue only if those of us who support LGBT rights remain vigilant.