LGBT Fear Under The New Administration

The election of President Donald Trump and Vice President Mike Pence has set off panic in gay, lesbian, bisexual and transgender communities across the country, as people worry that their divisive campaign promises would come true.

Many questions have flooded the offices of LGBT advocacy groups nationwide. Will the President change the health system so that transgender people are not protected from discrimination? Will he appoint conservative judges to the US Supreme Court who could roll back marriage equality and other civil rights? Will Vice Present Pence’s long-ago support for so-called “conversion therapy” translate to a directive for LGBT youth?

Trump, Pence and the Republican Party’s anti-LGBT platform are a threat to the progress made during the Obama administration’s legacy. People in the community are scared. There is fear of an atmosphere of intolerance that was pre-viewed in Trump’s campaign.

The concerns that are most commonly heard by people in the LGBT community have to do with same-sex marriage, same-sex adoption, bathroom bills, talk of conversion therapy for LGBT youth and whether or not we will be able to serve openly in the military.

Many same-sex couples are worried that their marriages could be invalidated in Trump’s America. Neither the President nor Congress can take away what the Supreme Court has deemed a “fundamental right,” leaving current marriages safe. While Trump does not have the right to unilaterally scrap marriage equality, he has the power to appoint Supreme Court justices who could. It would take a long time for the court to repeal marriage equality, and by then society will potentially change to a more supportive attitude.

In regard to same-sex adoption, gay and lesbian parents are worried that their parental rights could be in jeopardy, especially for the non-biological parent. Experts say that even though that person’s name is on the birth certificate it is best to adopt the child. States set adoption and parental rights policies, so that adoption ensures both parents have a legal tie, which could help in challenges to parental rights at the federal level.

North Carolina’s controversial HB 2, bathroom bill, has set the precedent for proposals to regulate bathroom access for transgender people across the country. HB 2 was redefined and passed this week and even though some of the things the transgender communities wanted were named, protection was not addressed and remains ambiguous. In 2016 there was an upswing in anti-trans legislation and it is anticipated that will continue to increase in 2017. Advocacy groups have been training across the country for more legislative battles.

Transgender students are at particular risk. The Obama administration’s recommendation to schools to treat transgender students in accordance with their gender identity was popular with advocacy groups and was criticized by conservatives. President Trump has said that transgender people should be protected under the law but rejected the use of federal law to do so, saying it should be left to the states.

Even though Obamacare is secure for the moment we are aware that President Trump will try again to repeal the Affordable Care Act. Of the 20 million Americans covered, about 5% are gay, lesbian, bisexual or transgender. The Affordable Care Act has a non-discrimination provision that includes gender identity and sexual orientation. It is especially meaningful for transgender people, who often face discrimination when they try to access gender-affirming health care. It remains to be seen how President Trump would take away the protections in Obamacare when his own health plan is brought up for a vote again.

At no point during the presidential campaign did Vice President talk about supporting conversion therapy, a widely discredited practice that claims to undo homosexuality. Pence’s record in his own state would indicate that he promotes conversion therapy. Because the practice has been widely rejected by mental health professionals and outlawed in some states, it’s hard to imagine that it could ever gain credibility or become law, even with the support of an elected official.

Another concern is about serving in the military. It is exceedingly unlikely that Pence’s opposition to the repeal of “Don’t Ask, Don’t Tell” will reverse the decision to let gays and lesbians serve openly in the military. Transgender service began this year, too, signed off on by the chairs of each military branch. It is thought that regulations are not easy to undo and the military leadership of our country feels good about it and all of those people have skills and expertise that our military needs.

There has been surprising numbers of people who are overcoming their complicity and are getting involved at all levels of government to make their concerns be heard. If anything is going to affect our future we need to continue contacting our constituents to maintain protection for our community.

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Supreme Court's Hearings on Same-sex Marriage

Just two years ago, the Supreme Court struck down part of the federal anti-gay marriage law that denied a range of government benefits to legally married same-sex couples. The decision in United States v. Windsor did not address the validity of state marriage bans, but courts across the country, with few exceptions, said its logic compelled them to invalidate state laws that prohibited gay and lesbian couples from marrying. The number of states allowing same-sex marriage has grown rapidly. As recently as October, just over one-third of the states permitted same-sex marriage. Now, same-sex couples can marry in 36 states and the District of Columbia. 

The Supreme Court justices today are hearing extended arguments, scheduled to run 2 1/2 hours, in highly anticipated cases about the right of same-sex couples to marry. The cases before the court come from Kentucky, Michigan, Ohio and Tennessee, all of which had their marriage bans upheld by the federal appeals court in Cincinnati in November. That appeals court is the only one that has ruled in favor of the states since the 2013 Windsor decision.

Two related issues would expand the marriage rights of same-sex couples. The bigger one: Do same-sex couples have a constitutional right to marry or can states continue to define marriage as the union of a man and a woman? The second: Even if states won't allow some couples to marry, must they recognize valid same-sex marriages from elsewhere?

The arguments of marriage-rights supporters boil down to a claim that states lack any valid reason to deny the right to marry, which the court has earlier described as fundamental to the pursuit of happiness. They say state laws that allow only some people to marry violate the Constitution's guarantee of equal protection under the law and make second-class citizens of same-sex couples and their families. Same-sex couples say that preventing them from marrying is akin to a past ban on interracial marriage, which the Supreme Court struck down in 1967. 

The states respond that they have always set the rules for marriage and that voters in many states have backed, sometimes overwhelmingly, changes to their constitutions to limit marriage to a man and a woman. They say a lively national debate is underway and there is no reason for courts to impose a solution that should be left to the political process. The states also argue that they have a good reason to keep defining marriage as they do. Because only heterosexual couples can produce children, it is in the states' interest to make marriage laws that encourage those couples to enter a union that supports raising children.

The Obama administration is backing the right of same-sex couples to marry, although its argument differs in one respect. The plaintiffs say that the state laws should fall, no matter what standard the court applies. The administration calls for more rigorous scrutiny than courts ordinarily apply to most laws, saying it is appropriate when governments discriminate against a group of people. 

That already is the case for claims that laws discriminate on a basis of race, sex and other factors. But the administration is silent about what the outcome should be if the court does not give gays the special protection it has afforded women and minorities. The Justice Department's decision to stop defending the federal anti-marriage law in 2011 was an important moment for gay rights and President Barack Obama declared his support for same-sex marriage in 2012.

A ruling that same-sex couples have a right to marry would invalidate the remaining anti-gay marriage laws in the country. If the court limits its ruling to requiring states to recognize same-sex unions, couples in states without same-sex marriage presumably could married elsewhere and then demand recognition at home.

The bans in 14 states would survive. Beyond that, confusion probably would reign. Some states that had their marriage laws struck down by federal courts might seek to reinstate prohibitions on gay and lesbian unions. Questions also could be raised about the validity of some same-sex weddings. Many of these problems would be of the Supreme Court's own making.

From October to January, the justices first rejected appeals from states seeking to preserve their marriage bans, then allowed court rulings to take effect even as other states appealed those decisions. The result is that the court essentially allowed the number of states with same-sex marriage to double.

Same-sex couples can marry in 36 states, the District of Columbia and parts of Missouri. More than 500 marriage licenses were issued to same-sex couples in Alabama this year after a federal court struck down the state's ban. But probate judges have not issued any more licenses to gay and lesbian couples since the Alabama Supreme Court ordered a halt to same-sex unions in early March. Gay and lesbian couples may not marry in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, most of Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas.

Gary Gates an expert at UCLA's Williams Institute on the demography of gays and lesbians in the U.S., estimated that there were 350,000 married same-sex couples as of February. Gates relied on Gallup Inc. survey date and Census Bureau information to arrive at his estimate. That's just 0.3 percent of the nations 242 million adults. Almost as many same-sex couples are unmarried, Gates said.

What are the next issues facing gay rights? One fight in the news this year is over efforts to carve out religious exemptions for people and institutions that object to same-sex marriage. It is clear that churches do not have to marry same-sex couples if doing so violates their religious tenets. What about county clerks? Can photographers refuse to shoot same-sex weddings? Can bakers decline to bake a cake for two men? 

Civil rights groups say they will continue pressing for other protections from discrimination against LGBT people in employment and housing, among other areas. Even if same-sex couples win the right to marry everywhere, people still can be fired because of their sexual orientation in more than half the states. We still have a long way to go to have the same human rights heterosexual couples take for granted.

U.S. Supreme Court To Hear Historic DOMA and Proposition 8 Cases

The U.S. Supreme Court will hear arguments of the two prominent cases that could test the bounds of laws restricting gay marriage next month. No matter the outcome, two facts alone make these cases historic: never before has the Supreme Court heard such comprehensive, sweeping advocacy in favor of LGBT people, and never before has the federal government been the advocate.

The first case will be argued March 26, involving a dispute over California’s constitutional ban on gay marriage known as Proposition 8. The 9th U.S. Circuit Court of Appeals earlier struck down that rule. The second case is expected to be argued the following day. It is a challenge to part of the federal Defense of Marriage Act. Lower courts have declared both DOMA and Proposition 8 unconstitutional.

The Obama Administration’s argument is that the 1996 “Defense of Marriage Act” violates the U.S. Constitution in defining marriage as the legal union between one man and one woman—specifically Section 3 of DOMA, which bars recognition of same-sex marriages in the granting of federal benefits including Social Security survivors’ benefits, immigration, insurance benefits for government employees, and filing joint tax returns.

The law was passed by overwhelming bipartisan majorities in the House and Senate and signed by President Bill Clinton. The Obama Administration broke with its predecessors when it announced last year that it would no longer defend the provision. Republicans in the House of Representatives directed by Speaker John Boehner, stepped in to take up the defense of the law in court.

The Proposition 8 case could have the broadest implications. A decision in favor of gay marriage could set a national rule and overturn every state constitutional provision and law banning same-sex marriages. A ruling that upholds California’s ban would be a setback for gay marriage proponents in the nations largest state, although it would leave open the state-by-state effort to allow gays and lesbians to marry.

President Obama’s position on gay marriage has “evolved” in its favor. In his inaugural address last month, he said, “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well.” His Administration will weigh in against Proposition 8 as it has with DOMA.

Homosexual conduct has a history of being prosecuted as criminal in the United States. Although same-sex marriages now are legally recognized in nine states and the District of Columbia, many more states still have laws aimed at gays and lesbians—including restrictions on the adoption of children, banning gay marriage, and refusing legal benefits to same-sex couples.

Polls show a clear shift in public acceptance of same-sex marriage, especially among under-30 Americans. 65-35% approve, according to a Quinnipiac University Poll in December. For all age groups, Gallup puts the number at 53-46 % approval.

We will be watching anxiously while these cases’ arguments are being heard by the U.S. Supreme Court. The fact alone that the Court will hear them at this time is momentous and we can hope that the shifting attitudes about same-sex marriage will be reflected in their opinions.