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LGBT Rights in America: Incremental Progress, Ongoing Problems

  • August 28, 2019
  • 28 comments
  • 8 minute read
  • Charles Boyd
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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.

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Charles Boyd

Charles Boyd is a historian, writer, and left-libertarian activist. He specializes in American slavery, abolitionism, and civil liberties history generally and lives with his Great Pyrenees puppy, Wendell, in Atlanta, Georgia

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28 comments
  1. Charles Boyd says:
    August 30, 2019 at 10:14 pm

    I accidentally seem to have posted this comment at the top of the comments section when I meant to post it in reply to your last comment, so I reposting it here:

    Well, you haven’t explicitly asked Question 1 until now. But I am happy to answer it. 😀Trans men don’t compete in women’s athletics, trans women do. And it is fair. Some trans women have a physical advantage over most cis women. Some trans women do not. But there are many women who are physically stronger than many other women, and we generally don’t consider that to be cheating. To your second point, I think the primary motive for the Jerusalem Pride Parade was taking a stand against homophobia in a place where, by your own account, homophobia is rampant. And quite frankly, if someone is offended by people not feeling ashamed about being gay, then maybe that is someone those of us who believe in equality and fair treatment should want to offend or upset. By your own logic, conservative Christians shouldn’t have revivals or evangelism efforts in place like San Francisco or NYC. As to why Gay Pride events are worthwhile, it’s pretty simple: gay people have been subjected to massive legal and societal discrimination and had their sexual orientation treated as something to be ashamed of. Pride events are a way of pushing back against that kind of discrimination and stigma. One could easily ask why anyone should be proud to have been born in a certain country, but most critics of Gay Pride have no issue with national pride.

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    1. Anonymous says:
      August 31, 2019 at 4:49 pm

      «…gay people have been subjected to massive legal and societal discrimination and had their sexual orientation treated as something to be ashamed of…» – Sounds familiar. Since somebody spat on their faces, they have the right to spit on the faces of others.

      That’s more than enough for me 🙁

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      1. Charles Boyd says:
        August 31, 2019 at 5:37 pm

        Gay Pride isn’t spitting on the face of anyone. If you’re offended by it, that’s on you.

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        1. Anonymous says:
          August 31, 2019 at 6:58 pm

          But transgenders may be offended by using wrong pronouns… «All animals are equal, but some animals are more equal than others»

          So you said what you were embarrassed to say from the very beginning

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  2. Charles Boyd says:
    August 30, 2019 at 9:28 pm

    Well, you haven’t explicitly asked Question 1 until now. But I am happy to answer it. 😀Trans men don’t compete in women’s athletics, trans women do. And it is fair. Some trans women have a physical advantage over most cis women. Some trans women do not. But there are many women who are physically stronger than many other women, and we generally don’t consider that to be cheating. To your second point, I think the primary motive for the Jerusalem Pride Parade was taking a stand against homophobia in a place where, by your own account, homophobia is rampant. And quite frankly, if someone is offended by people not feeling ashamed about being gay, then maybe that is someone those of us who believe in equality and fair treatment should want to offend or upset. By your own logic, conservative Christians shouldn’t have revivals or evangelism efforts in place like San Francisco or NYC. As to why Gay Pride events are worthwhile, it’s pretty simple: gay people have been subjected to massive legal and societal discrimination and had their sexual orientation treated as something to be ashamed of. Pride events are a way of pushing back against that kind of discrimination and stigma. One could easily ask why anyone should be proud to have been born in a certain country, but most critics of Gay Pride have no issue with national pride.

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  3. stache13 says:
    August 29, 2019 at 3:51 pm

    I am surprised how much hatred I am seeing in the comments. I have taken an I’ll live my life you live your life approach to these issues.

    Honestly, why do people care about how other people love their life? If it isn’t harming you or anyone else then why bother? There are more passages of the Bible saying to love your neighbor, than to hate homosexuals. If their actions cause them to go to hell, then let them go to hell and leave more room in paradise for you. Personally, I have a reserved room in the first circle of hell.

    On the other hand, I have a hard time taking transgender seriously. Since I was introduced to the joke of “I identify as an Apache attack helicopter” almost ten years before I realized transgenderism is actually a thing. But it still falls under my I’ll live my life you live your life approach. That said transgender athletics is an issue that should be addressed to both prevent harm to female athletes and support transgender athletes. But I am not qualified to say what form this should take.

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    1. Anonymous says:
      August 29, 2019 at 4:13 pm

      «I am surprised how much hatred I am seeing in the comments.» – There was zero hatred in my comments. I only said that it’s unfair when men defeat women in women’s competitions. And Jerusalem is not the best place for a pride parade. Not me but those who organize these parades enjoy to insult others and I don’t like this. I’m an atheist, by the way, but I have a strange habit of respecting the feelings of others.
      «That said transgender athletics is an issue that should be addressed to both prevent harm to female athletes and support transgender athletes. But I am not qualified to say what form this should take.» – It’s simple. There are Paralympic Games. You can say that this is rude advice, but I have no other, because you have so many genders…

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      1. Charles Boyd says:
        August 29, 2019 at 11:14 pm

        1. Is it your position that gay people shouldn’t have Pride events in areas where the majority of the public opposes gay rights? I thought conservatives were against going out of your way not to offend people…
        2. Being trans is not a disability, and you’ve made no attempt to prove that it is.

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        1. Anonymous says:
          August 30, 2019 at 5:11 pm

          «Conservatives»… You try again and again to explain to me who I am and what kind of opinions I should have. I’m afraid you know me better than I know myself 🙂
          But I still have not received simple answers to 2 very simple questions:

          1. Is it a fair play when trans males participate in women’s sport competitions?
          2. Are parades in Jerusalem motivated by anything other than a desire to offend believers?

          By the way, I can’t understand why any specific sexual habits can be the cause of “pride” and why believers are considered as some kind of sub-human.

          All the best and goodbye!

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  4. Edwin Pole II says:
    August 28, 2019 at 4:37 pm

    A substantial number of the outstanding issues in this article are based on two premises. One is that tax support should be distributed irrespective of LGBTQ considerations. The other is that LGBTQ persons are entitled to the equal services from private suppliers. Directly, in the latter case, and indirectly, in the former case, this assumes a positive right on the part of LGBTQ individuals to require the use of another individual’s actions. In the first case, an individual who disagrees with a government action is required to financially support it through taxation. In the second, a “baker” is required to “bake a cake” for an individual. While an LGBTQ individual has, and should have, equal rights and privileges under the law, the imposition of a legal obligation on another individual to act is a bridge too far. A requirement TO act is entirely different than a requirement NOT TO act.

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    1. Charles Boyd says:
      August 28, 2019 at 10:42 pm

      There are a couple of problems with your point. Under the current system, which you seem to support, LGBT people are forced to pay taxes to institutions that discriminate against them. It basically amounts to people having to pay an extra tax for being LGBT. To justify this, you would need to argue that, for instance, Catholic institutions have a positive right to use gay people’s tax dollars for programs that exclude gay people, whether or not gay people actually want to put up money for a program they are denied access to. As regards nondiscrimination laws, the current system makes it illegal at the federal level for a gay business owner to discriminate against someone for being Christian but legal for a Christian to discriminate against someone for being gay. This is rank hypocrisy.

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      1. onlyslightlybent says:
        August 29, 2019 at 6:00 pm

        But we all pay taxes to governments that do some things we disagree with them.

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        1. Charles Boyd says:
          August 29, 2019 at 11:16 pm

          This goes way beyond paying “taxes to governments that do some things we disagree with them.” This is a case in which a class of people are required to pay taxes to institutions that arbitrarily exclude them based on their sexual orientation. As I said, an analogous situation would be an adoption agency that got taxpayer funding despite refusing to let heterosexual couples adopt. Such an organization would not get taxpayer funding for one nanosecond.

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  5. Anonymous says:
    August 28, 2019 at 3:12 pm

    Men who claim to be women set a record after the record, competing with women in powerlifting and athletics, but I have never heard of a woman who claims to be men, competing with men in powerlifting…

    Why, may I ask you?

    Pride parade in Jerusalem, do you really need this? Or do you just like to insult someone who does not share your beliefs?

    Sorry, it’s already no longer “The Struggle for Gay Rights”, this is a war against normal people.

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    1. Charles Boyd says:
      August 28, 2019 at 11:01 pm

      Your argument has an unproven premise that biological birth sex and gender are indistinct, but nevertheless, it’s hard to see what you’re arguing here. Are you implying that trans women are pretending to be women for the purpose of winning competitions, despite the massive amount of discrimination trans women are subject to? Or are you saying there are aggregate differences in strength between the average cis male and the average trans male? If your argument is the former, it’s an outlandish conspiracy theory that doesn’t make much sense. If it’s the latter, it doesn’t do anything to disprove that biological birth sex and gender are different.

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      1. Anonymous says:
        August 29, 2019 at 12:26 am

        Please explain to me in a clear and understandable manner why biological men participate in powerlifting among women, and biological women do not participate in powerlifting among men.
        This is a very simple question, you are not answering. Do not refer to “conspiracies.” Do not tell me who I am. Give me an answer!

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        1. Charles Boyd says:
          August 29, 2019 at 4:08 pm

          Well, again, you are assuming, without substantiating, that someone born with a male anatomy but hardwired to identify as a woman is a “biological male.” Nevertheless, I have no problem answering your question. It’s not at all clear that no trans men participate in male powerlifting competitions, and since you’re the one who made that claim, the burden is on you to prove it. Not all trans people are “out.” Trans men in sports may well be less likely to be “outed” than trans women in sports, because they are less likely to be seen as having a competitive advantage and therefore potentially less likely to attract attention from critics of trans athletes.

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          1. Anonymous says:
            August 29, 2019 at 4:22 pm

            So, if I understood correctly, now I have to prove that XY and XX are different anatomically and biologically?

            OK, at least it’s fun 🙂

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            1. Charles Boyd says:
              August 29, 2019 at 11:12 pm

              That’s not what I said. What I said is that you need to prove that sex and gender are indistinct and that the definition of “man” and “woman” should be based only on chromosomes and birth sex, despite the evidence for a minority of the population being hardwired to identify as a gender that does not correspond with their sex at birth. You also need to prove and have not proven that there is not a biological component to why trans people identify as the gender that they do. Biology is about a lot more than just chromosomes and anatomy, after all. It also includes the way that your brain is wired.

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              1. John Lee says:
                September 3, 2019 at 9:58 pm

                intersex (Biological SEX neither XX -femaie or XY – occurs at the rate of 0.02 percent) Radically LESS, than other rare mutation like albinoism) There IS ZERO scientific evidence of a MALE or FEMALE Brain. Conflating Transgender ism (The desire of MAN to wear stereotypical Woman’s, or of a Woman to be wear stereotypical Men’s clothing) with INTERSEX (a medical condition is hogwash. The Reason there is SEX segregated sports, is based on FAIRNESS- Biological MEN are faster, stronger, have larger lungls, larger hearts, all as a result of NATAL hormones. NON Male competitive athletes are out competing Women and Gir;s in Sex segregated sports like Rugby, Power Lifting, Track and Field. To Restore Fairness there should be a SEPERATE TransWomen League, so the playing field is FAIR

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                1. Charles Boyd says:
                  September 3, 2019 at 11:05 pm

                  Obviously, every woman doesn’t have an identical brain, nor does every man. There is great diversity in brains amongst both women and men. Nevertheless, the link I cited discusses evidence that being trans is related to facets of the brain. If you feel that’s wrong, you need to address the article specifically and provide sources for why you think it’s wrong. With regard to sports, it is important not to conflate aggregate differences in strength levels with the physical abilities/strength levels of every individual athlete. Trans women in sports suffer from a Catch-22. When a trans woman wins, people say she cheated. When a trans woman loses, nobody uses them as a political football, but they also don’t get any credit either.

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              2. John Lee says:
                September 4, 2019 at 12:48 am

                I have noticed that TRAs (especially GAY white Transwomen) seem to have it out for biological female feminsts) going after TERFS, and seem inordinately happy to destroy woman’s spaces, sports, and advocacy).

                I don’t have to prove anything about Trannie rights, I am not calling for the world to be re-ordered to put biological males BACK on top the intersectional pyramid. Some How Crazy Gay Men (JY) with teen girls menstruation obsessions) are more oppressed than high school girls soccer players, Really?

                Transwomen Should compete against Transwomen- Just becasue the IOC drank the PC coolaid, doesn’t make it even a little fair.

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            2. Ray Andrews says:
              August 31, 2019 at 1:07 pm

              Chromosomes are a social construction, didntchaknow?

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              1. Charles Boyd says:
                August 31, 2019 at 5:37 pm

                Not quite. You have to prove chromosomes are the sole determinant of a person’s gender or that gender is indistinct from sex. As I’ve said.

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          2. John Lee says:
            September 4, 2019 at 12:33 am

            You are unnecessarily making a simple thing, ‘someone born with a male anatomy’ IS A MALE. That is the definition of a MALE. only because of your blank slatism ideology, do you need to tie yourself into knots, about how they ‘identifiy’. if you have female anatomy, you are femaie, if you have male anatomy you are male (at birth), as Cartman would say M’kayt?
            Breast Implants doesn’t make you a woman, Jonathon Yaniv is Still a Dude, and no one wants to wax his balls

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  6. Paul Melonas says:
    August 28, 2019 at 1:44 pm

    Yada Yada Yada…Here’s a big dose of truth whether you like it or not, in America even the most despicable human being alive is recognized as having certain unalienable rights that come from GOD, NOT GOVERNMENT. If rights came from government then government can take them away but if rights are from God then only God can remove them and he won’t because his word and who he is never changes.

    It’s also in Gods word that LGBTQ is an ABOMINATION and the unrepentant LGBTQ person is bound for hell because they love their sin more than they love Gods truth.
    LGBTQ people know that deep in their heart of hearts, i.e. their soul, and that’s why depression and sorrow hang on them like a heavy weight. They know they are hell bound, they even have to try and convince themselves and us that they are really “gay,” which is just another misallocation of a good word…

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    1. Benny Markovitch says:
      August 29, 2019 at 2:30 am

      Yada yada yada… Here’s a big dose of truth whether you like it or not:

      It’s in GOD’s word that hating people, and justifying that hate by falsely saying it is GOD’s will is an ABOMINATION and the unrepentant hateful person is bound for HELL because they love their sinful hate towards fellow men more than they love God’s truth, which is loving of all mankind.
      Hateful people know that deep in their heart of hearts, i.e. their SOUL, and that’s why anger and anxiety hang on them like a heavy weight. They know they are hell bound, they even have to try and convince themselves and us that they are really “believers” which is just another misapplication of a good word…

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