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LGBTQ activists on what progress looks like 5 years after same-sex marriage ruling
When the Supreme Court issued a landmark ruling on June 15 intended to protect LGBTQ people from employment discrimination, writer and activist Raquel Willis said the good news was overshadowed by reports that two Black transgender women had been murdered just two days before. It was also on the same day news surfaced that Oluwatoyin Salau, an activist who had fought for justice for the murder of Black trans man Tony McDade, had been killed.
"It was a day of celebration, but it also was still a day of mourning for so many Black, queer and trans folks," said Willis, who recently helped plan a massive March For Black Trans Lives in Brooklyn, New York, to bring attention to the violence that disproportionately affects transgender people of color in the U.S.
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This year alone, at least 16 transgender or gender non-conforming people have been fatally shot or killed by other violent means, according to Human Rights Campaign.
"We should always carry an understanding that even with these winds of change…there's also the truth that queer and trans folks who are Black are literally being killed every day," Willis said.
June 26 marked five years since the ruling of Obergefell v. Hodges — the landmark Supreme Court case legalizing same-sex marriage. Nearly 300,000 same-sex couples have married since, but the fight for marriage equality represents just one piece of the LGBTQ agenda for progress and equality. The recent killings of Black trans women is a reminder that many LGBTQ lives are still in danger. Activists and scholars say major wins in the Supreme Court do not negate the myriad setbacks that have occurred at the state and local level for the LGBTQ community as a whole, even after the Obergefell ruling.
This past weekend, some 50,000 protesters gathered for the Queer Liberation March for Black Lives and Against Police Brutality. The group — which has placed itself apart from more mainstream, corporate Pride celebrations — clashed with members of the NYPD, and some members were beaten and pepper-sprayed. It was a reminder to some LGBTQ activists that despite progress made since the Stonewall Riots, members of the community are still subject to targeting by law enforcement and other U.S. institutions. The LGBTQ community is not a monolith, and progress means different things to different people.
Five years after Obergefell, and 50 years since the first gay Pride march in New York City, many LGTBQ activists say there's still much work to be done. Amid the latest calls for action against police brutality and systemic racism, some are turning away from larger institutions and looking within their own communities to effect change.
5 years ago, a historic win signaled a shift in public opinion on same-sex marriage
When William Eskridge, now a law professor at Yale, agreed to represent Craig Dean when he sued the District of Columbia for the right to marry in 1991, he was surprised at how much pushback there was to same-sex marriage.
"I certainly did not expect the huge backlash that there was," Eskridge told the PBS NewsHour. "Like wow, that was a steamroller. It surprised me how hysterical people were." They lost the case and in 1996, then-president Bill Clinton signed the Defense of Marriage Act, which prevented the federal government from recognizing same-sex marriages.
By that time, Eskridge had laid out his case for same-sex marriage in a book, and in 2004, Massachusetts became the first state to legalize it. Still, Eskridge said any honest advocate for same-sex marriage at the time would have expressed skepticism that it could be achieved in the next decade.
"I was a little bit surprised at how quickly the dominoes fell after Massachusetts," Eskridge said of the push for nationwide legalization of same-sex marriage. "I was still prepared for it to be a long haul, not 2015."
When the Supreme Court ruled five years ago that same-sex couples could marry anywhere in the U.S., it was with the support of conservative justice Anthony Kennedy, who authored the decision. Cheers erupted outside of the court when the ruling was delivered, and the White House of then-President Barack Obama lit up in rainbow colors to celebrate the decision.
The hundreds of thousands of same-sex couples who have married since have gained access to the same benefits — such as health care, adoption, and recognition on birth and death certificates — that straight couples are entitled to. The plaintiff in the case, Jim Obergefell, who sued for his marriage to his late partner to be recognized, said the symbolic impact has been important, too.
Obergefell said that as more family members, friends and coworkers of same-sex couples have seen them get legally married, it's normalized the process: "It makes what for some people seemed like such a foreign concept, such a hard thing to understand or to grasp or to accept — it's made it just normal. It's part of everyday life."
Eskridge — who has another book on marriage equality called "From Outlaws to In-Laws" coming out in August — noted that although Congress once labeled homosexual people as "sexual psychopaths," in recent years, "space has been made in American political and social culture for people who who do not follow majority approaches to sexual orientation or gender identity."
Indeed, positive public opinion of legal same-sex marriage has continued to rise steadily since the Obergefell ruling, with a 63 percent majority favoring it as of last May.
Conservative backlash follows a landmark ruling
While same-sex marriage was a historic win for LGBTQ rights in the U.S., it still represented the interests of a narrow bloc of the community: mostly cisgender same-sex couples. As Eliel Cruz, an activist and director of the New York City anti-violence project, noted, "I don't think five, 10 years ago, if you asked Black trans women, 'what is the legislation that we need to keep you safe?' that marriage would have been what folks said."
Cory Albertson, a lecturer at Smith College and author of "A Perfect Union? Television and the Winning of Same-Sex Marriage," spoke about the limits of the Obergefell decision in a recent interview: "When talking about many of the bigger, practical financial issues that marriage helps, same-sex marriage has really only benefited cisgender white lesbians and gay men who already had some upward mobility," he noted. "So, positioning marriage equality as the LGBTQ civil rights issue was disingenuous because, in many ways, it only helped those who were already privileged."
The legalization of same-sex marriage also triggered a conservative backlash of legislation targeting LGBTQ rights in the workplace, health care, housing, schools and other public accommodations, which has had an impact on wide swaths of the community.
Less than a year after the Obergefell rulings, North Carolina lawmakers passed a bill requiring transgender people to use the bathroom associated with the gender assigned on their birth certificate. The legislation triggered a debate over gender and identity that only resolved last year, when a federal judge approved a settlement affirming transgender people's right to use the bathroom associated with their gender identity. In 2017 alone, 36 states considered similar "bathroom bills," although none ever successfully passed.
Christy Mallory, the state policy director at UCLA's Williams Institute, said there's also been a push at the state and federal level in the last five years to pass legislation that allows for discrimination against LGBTQ people on religious grounds. More than a dozen states have pursued legislation allowing private businesses, medical professionals and state-licensed child welfare agencies to deny services to LGBTQ people, according to tracking by the Movement Advance Project.
As of last fall, more than half of LGBTQ adults in the U.S. lived in states without non-discrimination laws, meaning they could be fired because of their gender identity or sexual orientation. And even with the recent surprise Supreme Court decision prohibiting LGBTQ discrimination in the workplace — authored by conservative Trump appointee Justice Neil Gorsuch — the Trump administration has continued to roll back LGBTQ protections.
"Just as we saw that Supreme Court decision come out, we are also seeing the Trump administration continue to roll back protections, especially for transgender people," said Mallory.
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Just days before the landmark work discrimination case was decided, the Department of Health and Human Services finalized a rule revoking Obama-era protections for transgender patients in the health care system. The Trump administration also implemented a policy barring openly transgender individuals from serving in the military and rolled back a number of housing protections and policies for LGBTQ individuals. The department for Housing and Urban Development, for example, removed resources from its website that had advised emergency shelters on how to provide equal access to transgender and other LGBTQ people.
These rollbacks are part of a broader effort by the Trump administration to target transgender individuals, and narrow the definition of gender to the biological sex one is assigned at birth — a policy that The New York Times first reported on in 2018.
"There's still a lot more work to be done, even though it seems like a huge landmark decision," Mallory said of the workplace discrimination case, Bostock v. Clayton County.
What progress means to LGBTQ activists today
Despite major federal wins, some activists say the patchwork nature of LGBTQ legislation in the U.S. has proved ineffective at protecting their community, and have thus stopped relying on their lawmakers to protect them.
"Policy is only part of what this fight is about," said Fran Tirado, an activist and writer who helped plan the March for Black Trans Lives. Tirado noted that Raquel Willis — one of his partners in organizing the march — has often said that "white people get to worry about policy while Black trans folks have to worry about their lives."
"We're not just looking for progress. We're looking for liberation. And liberation goes beyond just the legislation; that also goes to us being able to live our lives without the threat of violence and murder," Willis said.
Tirado and Willis said that marginalized voices within the LGBTQ community have often not been represented in the broader movement, particularly when it comes to national policy discussions. The recent March for Black Trans Lives is a nod to an intersectional movement that's more representative of marginalized groups, with less focus on support from lawmakers and major non-profits that have traditionally funded LGBTQ actions.
"It is to our benefit to create our own systems, to create our own concepts of power while we can, as we're kind of waiting for the rest of the world to wake up," said Tirado, who noted that since the killing of George Floyd and subsequent protests against police brutality and systemic racism, he's noticed a greater awareness among his wider circle about the issues that continue to affect marginalized members of the LGBTQ community, particularly people of color.
If the COVID-19 pandemic has demonstrated anything, said Willis, it's the strength of the "built-in networks that queer and trans communities of color have always had" for one another, absent support of major state and government institutions, with grassroots initiatives focusing, for example, on HIV advocacy or the LGBTQ homeless population.
"We have been organizing radically to keep each other alive," said Willis. "And this is our moment for the world to take notice and also take notes on what they should be doing to support us in this work."