I wish it were.
Mississippi passed a prototype for the Texas law five years ago — a sweeping anti-LGBTQ law titled the Religious Liberty Accommodations Act that gives the public license to target gay and trans people for discrimination, and the right to sue and collect money from anyone who tries to interfere. The text of Mississippi’s law offers multiple pages of the types of discrimination it invites: Landlords can evict gay and trans renters. Businesses can refuse service to LGBTQ people. Doctors and nurses can decline to treat LGBTQ people. It goes on and on. The law also permits and protects “expressive conduct” — vitriol and harassment.
I was one of the lawyers who challenged that law. Mississippi had passed it in response to the Supreme Court’s landmark same-sex marriage decisions and our subsequent victories striking down Mississippi’s bans on gay marriage and LGBTQ people fostering and adopting children. So by 2016, Mississippi, out of legal options for state-imposed discrimination, turned to a novel strategy: outsource discrimination to ordinary people.
It worked. While the trial court agreed the law was unconstitutional, the appeals court ruled, just as the Supreme Court did with the Texas abortion law, that technical limitations governing who can sue and be sued made it impossible to strike down even an unconstitutional law. The Supreme Court refused to hear our appeal and, in 2018, the Mississippi law went into effect. The Texas abortion law is Mississippi 2.0.
These laws don’t just target constitutionally protected activity, whether accessing abortion care in Texas or living your life as a gay or trans person in Mississippi; they encourage harassment, discrimination and vigilantism. They reward and protect it. And they ensure the mob’s targets live in fear of those around them.
I know that fear firsthand. I am trans and gender-nonconforming; I look androgynous. And I travel to Mississippi, where I represent the state’s last abortion clinic, including in the case before the Supreme Court this fall. On these trips, I know that when I try to use the restroom or to interact with someone, the state has encouraged its citizens to target me based on nothing more than how I look.
It turns out that regular people aren’t very good at enforcing laws. So despite the fact that I was born a girl, and thus laws such as Mississippi’s would have me use the women’s room, I have many times been yelled at or forcibly removed for doing so. Likewise, in Texas, there will be women who miscarry desperately wanted pregnancies who will be mistakenly sued under the law.
The fights for LGBTQ and reproductive rights are both, at root, over our ability to control our bodies, our lives and our futures. The Mississippi and Texas laws were passed to coerce a rigid view of what it means to be a woman — conventionally feminine in appearance, pregnant and married to a man. Practically, they work by deploying our neighbors to do what the Constitution prohibits our government from doing: policing our bodies.
And all either law requires is suspicion. Today in Texas, I can sue you because you gained some weight, suddenly lost it, and I think you might have been pregnant. Today in Mississippi, I can prevent you from entering a bathroom if I think you don’t look like you belong there. In both states, people are looking over their shoulders.
Today, we should all be looking over our shoulders.
Currently in Mississippi, a clerk can refuse to perform a marriage or issue a marriage license and, if they are fired or reassigned, can sue the state. Why wouldn’t Mississippi now try to take it a step further: reward people with bounties to sue anyone who weds someone of the same sex or “aids and abets” such a union, whether by performing the ceremony or passing the hors d’oeuvres at the reception?
These kinds of laws are corrosive. And they will proliferate and mutate, finding other targets in other states, on these and other issues. Anyone who feels safe would be wise to remember: Once unleashed, the mob decides its victims.