LGBTQI Rights Affirmed
In the first two decades of the 21st Century there had been a number of significant changes in legislation that have had a major impact on the everyday lives of LGBTQ people in America. A series of court decisions in the early 2000s overturned previous rulings that had kept in place the often reinforced state and federal laws which constrained and limited the possibilities for LGBTQ people.
In 2003 the United States Supreme Court’s decision in Lawrence v. Texas demonstrated the importance of activism, visibility, and of writing LGBTQ history. On June 16, 2003 the highest court in the nation struck down the Texas sodomy law that made consensual sex between men illegal. In doing so, the court implicitly rendered other sodomy and so-called “crimes against nature” laws unconstitutional. Sodomy laws had a long history in the United States of being used to criminalize and imprison predominantly gay men as sex offenders, as well as being used as the rationale for denying or removing children from the custody of gay and lesbian parents.
The majority decision written by Justice Anthony Kennedy reflected the work of those who had been recording LGBTQ histories. In fact, Kennedy based a substantial portion of his opinion on the historical research outlined by historian George Chauncey and nine other LGBTQ scholars. As John D’Emilio remarked in an article discussing his reactions to the decision, when Justice Kennedy “used words such as ‘transcendent’ and ‘dignity’ when referring to intimate same-sex relationships” it was a “dizzying and heady moment for me” — “oh my god, I thought, ‘history really does matter!’”
The US Supreme Court in United States v. Windsor (2013) and Obergefell v. Hodges (2015) struck down the federal Defense of Marriage Act (and similar statutes passed by individual states), legalizing same-sex marriage nationally. At the same time as the Windsor decision, however, the Supreme Court also gutted key provisions of the long-standing 1964 Voting Rights Act. In one fell swoop, the court created cause for optimism and hope among some LGBTQ people and simultaneously delivered a devastating blow to the continuing struggle for racial justice and equity — a blow that affected straight and LGBTQ people alike.
The legalization of same-sex marriage created backlash in two related and overlapping types of legal responses. The first is modeled on federal religious freedom provisions and aims to remove sexual orientation and gender identity from state legal protections; the second are the so-called bathroom bills that target transgender people directly.
As the American Civil Liberties Union noted on its website, “There are bills in state legislatures across the country and in Congress that could allow religion to be used to discriminate against gay and transgender people in virtually all aspects of their lives.” In North Carolina, HB2 codified this discrimination to directly target transgender people by requiring them to use bathrooms and other facilities in government buildings and public schools that match the sex on their birth certificates. In May 2016, the federal Department of Justice responded by filing suit related to gender discrimination; later in the month, a joint letter from the Departments of Education and Justice issued guidelines directing public schools to allow transgender students to use facilities that match their gender identity.
The tensions between a politics of respectability and a more radical approach have long been factors in American LGBTQ civil rights struggles. Respectability politics is a concept first articulated by Higginbotham in the context of black civil rights work of the late nineteenth and early twentieth centuries. It describes the self-policing of marginalized groups to enforce social values compatible with mainstream values (assimilation) as a strategy for acceptance, rather than challenging the mainstream’s failure to embrace difference.
Respectability politics in the struggle for LGBTQ rights is well summarized by a quote attributed to a French organization: “public hostility to homosexuals resulted largely from their outrageous and promiscuous behaviour; homophiles would win the good opinion of the public and the authorities by showing themselves to be discreet, dignified, virtuous and respectable." This kind of respectability politics — that gays and lesbians (predominantly portrayed as white and middle class, rarely bisexuals, even more rarely transgender people, and hardly ever queers) are just like straight people — has, as well as existing in other guises, underpinned many of the arguments for same-sex marriage.
This is in contrast to more radical actions for LGBTQ civil rights that insist, despite differences from mainstream society, LGBTQ people deserve, and will demand, their civil rights. This more radical stance is perhaps best reflected in a slogan of Queer Nation, “We’re Here, We’re Queer, Get Used to It.”
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