The Washington PostDemocracy Dies in Darkness

The fight for LGBT equality: ‘It’s not over’ no matter what Supreme Court does

Protesters hold a pro-gay rights flag outside the Supreme Court on April 25, countering the demonstrators who attended the March for Marriage in Washington. (Paul J. Richards/Agence France-Presse via Getty Images)
Placeholder while article actions load

There have been enormous strides in the quest for equality for lesbian, gay, bisexual and transgender (LGBT) Americans. An overwhelming majority of the country supports same-sex marriage, which is now legal in 37 states and the District of Columbia. So, there’s a reason for the unbridled euphoria sweeping gay communities across the country as we await what many expect will be a Supreme Court ruling next month in favor of marriage equality. But if that happens we will be at the end of the beginning of the fight for LGBT civil rights.

The title of a new book by noted gay rights activist and radio host Michelangelo Signorile says it all. “It’s not over: getting beyond tolerance, defeating homophobia, and winning true equality” makes the case clearly and convincingly that after the high court’s ruling on same-sex marriage, the lives of LGBT Americans won’t change all that much. He calls that euphoria I mentioned earlier “victory blindness.” A new report from the Movement Advancement Project (MAP) brings that blindness into focus.

MAP looked at the laws and policies related to LGBT people in all 50 states and the District of Columbia. It then devised a policy tally for each state and grouped them into four categories: high equality, medium equality, low equality and negative equality. Most LGBT Americans (52 percent) live in states with low or negative equality tallies. “Only 12 states and D.C. have high policy tallies,” the MAP study notes. “This would not change even if the Supreme Court were to open the freedom to marry to couples in all 50 states.” That translates to 39 percent of LGBT Americans living in states that “generally offer solid protections” in six policy areas, including “marriage and relationship recognition; adoption and parenting; non-discrimination; safe schools; health and safety, and ability for transgender people to correct the gender marker on identity documents.”

While a Supreme Court ruling in favor of a constitutional right to marry would not change the number of high-equality states, it would lead to shifts for some states from negative-equality tallies to low-equality.

The number of negative-equality states would shrink from 15 (29 percent of LGBT population) to two (3 percent of the LGBT population) while the number of low-equality states would jump from 13 (23 percent of the LGBT population) to 26 (49 percent). The MAP report adds data to Signorile’s “It’s not over” mantra.

Even with marriage equality nationwide, 52% of same-sex couples would live in states that do not protect them from being unfairly fired or kicked out of their homes because they are lesbian, gay, or bisexual. Fifty-seven percent of families would live in states where LGBT children are not protected from discrimination in school, and 86% of LGBT families would live in states where their children could face discrimination in school because of who their parents are.

And, as for the “T” in LGBT, the impending Supreme Court ruling will have no affect on transgender Americans, as 37 percent of the LGBT population will live in 24 states with a negative policy tally on gender identity.

Those against LGBT equality might have given up their battle against marriage equality, but they are not giving up the overall war. The battles over so-called religious freedom laws in Indiana and Arkansas that captured the national imagination back in March are a prime example. Signorile went into some detail on this tactic in a piece for PostEverything earlier this month,

Opponents of gay rights often rely upon rebranding and re-wording laws after they fail in order to get them passed. Saying bills to allow discrimination are really about “restoration” of religious “freedom” reframes the argument as that of a struggle to bring back something that has been lost. They also strategize to pass the laws under the radar while the national media, big business and activists aren’t paying attention. They’ve had some big failures. But they’ve also had some stealthy big wins. …
This year, in late February, just a few weeks before RFRA bills in Indiana and Arkansas drew widespread criticism, Arkansas’ legislature had also passed a much more draconian statute that essentially banned any local gay rights ordinances from being passed anywhere in the state. The law says only groups that have statewide protections from discrimination — and gay, lesbian, bisexual and transgender people do not — may be protected under local ordinances. Because it doesn’t name gays as a group, some legal experts believe it could withstand court scrutiny.

Signorile calls on the LGBT community to “redouble the fight” at the local and federal level. Most notably, he calls for the 1964 Civil Rights Act to be amended or for “a similar bill protecting LGBT people in all areas, from housing and education to employment and public accommodations, with no broad religious exemption.” That is the ground on which the next big battles for LGBT equality will be fought. Given the current composition of Congress, the fight will be long, but not impossible to win. All that’s needed is for the LGBT community to realize that “it’s not over,” no matter how the court rules next month.

Follow Jonathan on Twitter: @Capehartj