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The evolution of queer equality in the United States post-US v Windsor

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Ally Bolour
Bolour/Carl Immigration Group, Los Angeles
ally@americanvisas.net

 

Queer equality, though a global goal, is a journey best travelled locally. The United States remains a leader in this march, yet our community experiences multiple and often daily challenges in our attempt to reach our destination. The separation of state and church is enshrined in the US Constitution, yet too often, we witness courts and governments apply exceptions to this supreme law of the land. We must remain vigilant and vocal as we march forward to true equality.

The 2013 US Supreme Court decision in US v Windsor resulted in the demise of the Defense of Marriage Act (DOMA), the federal law under which a marriage was restricted to those between members of the opposite sex. The decision was a tectonic shift in the journey for full queer equality in the US. Unfortunately, the backlash to the Supreme Court’s decision was more robust than expected.

Equality opponents, mostly under the guise of religious liberty, began their campaign against the spirit and intent of the Supreme Court's ruling in earnest. There is now a multitude of cases from all over the US, often in states that don’t offer protections against LGBT discrimination, where those opposed to same-sex marriage have successfully imposed their belief system onto others in harmful and discriminatory ways.

In a country as vast as the US, where 52 per cent of our queer community live in 28 states with no laws against discrimination on the basis of sexual orientation and/or gender identity in employment or housing – bigotry may be subtle or even explicit.[1]

For example, in 2017, a court clerk in Kentucky refused to issue a marriage licence to same-sex applicants. Thankfully, the same-sex couple sued and eventually won in court and the clerk now is obligated to pay their attorney fees. However, in Colorado, a baker who refused to bake a wedding cake for a same-sex couple based on his Christian beliefs prevailed in court.

The resistance to equality is relentless. Most recently, the Governor of Tennessee signed a bill that allows state-funded adoption agencies to deny services to queer couples. Also, recently in Washington, two gay teachers at Kennedy High School were forced to resign after they announced their same-sex marriage plans.

Even conversion therapy, a practice to ‘cure’ homosexuality, denounced by all legitimate medical associations in the US, is still legally permitted in most states. Realising the bad publicity associated with the term ‘conversion’, providers of this technique often advertise their services by other names such as ‘Sexual Attraction Fluidity Exploration in Therapy’, ‘Reparative Therapy’, ‘Promoting Health Sexuality’, and ‘Healing Sexual Brokenness’. The prevailing view within the medical community is that people subjected to this abhorrent practice, under any name, are more prone to experience stigma, shame, depression, and even suicidal thoughts, which unfortunately sometimes have been successfully carried out to fruition.

In another disturbing development, several US states are now considering bills to deny gender-affirming care to transgender youth. The legislators in Colorado, Illinois, Kentucky, New Hampshire, Oklahoma, and South Carolina wish to criminalise the delivery of hormones by medical professionals if inconsistent with a child’s gender at birth. Parents can also be targeted if they seek gender-affirming care for their own children. Experts fear such bills would spike rates of depression, anxiety, and suicide among transgender youth.

The US Federal Government is taking measures to limit queer equality as well. For example, the Trump administration enacted a ban on most transgender people serving in the US Armed Forces. The US Department of Labor instituted a rule to permit employers that receive US federal contracts to avoid current employment non-discrimination requirements for religious reasons. And most recently, Judge Andrew Brasher, a 38-year-old anti-LGBT rights advocate earned himself a lifetime position on the 11th Circuit Court of Appeals. Judge Brasher previously argued against marriage equality by stating that it is ‘harmful to children’.[2]

On the other hand, in 2019, the US House of Representatives passed the Equality Act. The Act aims to amend the Civil Rights Act 1964 by outlawing discrimination on several additional bases, including sex, sexual orientation, and gender identity. Unfortunately, however, the US Senate has refused to bring the bill up for a vote. In the unlikely event that the Senate approves this legislation, it would still need to be signed by the President to become federal law in the US.

Since the Supreme Court decision in Windsor, the US LGBTQ community clearly has experienced setbacks. US elections are to be held in November 2020 and queer equality is an important issue not only at the federal level, but also at every state and local jurisdiction.

Lambda Legal (www.lambdalegal.org) provides a fantastic resource on the battle lines drawn in the march for equality, in every locality and nationally. Please vote responsibly.

 


[2] Obergefell & Henry v Ohio Department of Health, Supreme Court of the United States, Brief of Amicus Curiae State of Alabama in Support of Respondents, available at http://sblog.s3.amazonaws.com/wp-content/uploads/2015/04/14-556_State_of_Alabama.pdf.