No Time to Be Blue

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December 22, 2015

Today, on the winter solstice – the darkest day of the year – some in the fight for LGBT rights seem to be mired in gloom. They despair that the great triumphs of 2015 – most notably marriage equality – are being followed by state and local legislative backlash efforts and ongoing Congressional deadlock and the fear that a false sense of “mission accomplished” is weakening support for our LGBT groups. While those of us at Lambda Legal have our eyes wide open about the challenges ahead, I for one am not ready to join in pessimistic group-think. It’s not just that I’m still feeling the glow of this past year’s victories; I’m too busy with the ongoing work and looking forward to what I believe the coming year will bring to be glum.

There’s no doubt 2015 will go down in history as a watershed year in the fight for equality, liberty and dignity for LGBT individuals and their families and for people living with HIV. From the continuing state-by-state elimination of discriminatory marriage bans that marked the beginning of the year through the historic U.S. Supreme Court ruling in Obergefell v. Hodges that eliminated all remaining bans, LGBT advocates had almost non-stop smiles on their faces for much of the year.

But same-sex couples wanting to marry and their families were not the only winners. In addition to Obergefell, the Supreme Court again rejected a challenge to the Affordable Care Act, maintaining access to life-saving care for many in our community. It also rejected efforts to narrow employment and housing anti-discrimination protections. In July, the EEOC ruled that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 protects lesbians, gay men and bisexuals against discrimination at work. New York this year joined the EEOC ‘s earlier conclusion that bans on sex discrimination also protect transgender employees. Transgender people needing medical care secured protections in numerous states, including Connecticut, Maryland, Minnesota, Nevada, New York, Oregon and Rhode Island. The Boy Scouts decided to allow local scouting units to accept openly gay leaders. All in all, 2015 was an amazing year.

To be sure, it was not a year without setbacks and without clear signals as to some of the battles ahead. The high-profile effort by some in Indiana to establish expansive religious exemptions that would allow businesses to discriminate was but the tip of a very large iceberg. In fact, in 2015 some 80 bills were introduced in state legislatures designed to in some way allow government officials and business owners to discriminate, and eight passed. And, of course, by spreading misinformation and instilling unjustified fears, opponents were able to defeat the Houston Equal Right Ordinance, something they may seek to export to other communities across the country. As we stated after Obergefell, the fight is far from over.

But – and this is critical to keep in mind – despite these challenges, we still continue to win in the courts, in the schools, in administrative agencies and, yes, even in some legislatures. To date, every effort to justify discrimination against LGBT individuals and couples in public accommodations based on claims of “religious freedom” has been defeated in court. In schools across the country, officials have quickly reversed efforts to suppress the free expression rights of LGBT young people in the face of advocacy efforts by Lambda Legal and others. Facing litigation we brought, the U.S. Veterans Administration and Social Security Administration have amended policies in order to extend benefits to the surviving spouses of married same-sex couples. Seven pro-LGBT bills became law in California. The number of elected legislators at the federal, state and local levels is at an all-time high, as are the number of localities with robust – if in some cases imperfect – non-discrimination ordinances.

Is there a backlash? Yes, and it would be naïve to think there wouldn’t be. Do we have our work cut out for us? Of course, and we and our members continue to be excited to be engaged. While Obergefell may have settled the marriage question, Lambda Legal currently is working on four cases seeking to ensure that states issue birth and death certificates that accurately reflect the parentage of both spouses and the marital status and surviving spouse of those who have passed away. We are working hard to get courts to rethink outdated precedents and accept the view of the EEOC, the Department of Education, and the Department of Housing and Urban Development that sex discrimination laws protect LGBT people – and increasing numbers of judges are agreeing.

Transgender people continue to face discrimination and often horrific abuse, but our responses are stronger than ever; indeed, more than 20% of Lambda Legal’s docket currently concerns trans rights issues. And, of course, we continue to join forces with our sister LGBT rights organizations and with those promoting racial justice, women’s rights and immigrants’ rights and to address intersections of racism, income inequality and gender bias with discrimination based on sexual orientation, gender identity and HIV status. Our community understands that none of this work takes place in a vacuum and that discrimination, abuse and injustice suffered by one impacts us all. Lambda Legal accordingly has filed or joined in numerous friend-of-the-court briefs – supporting critical causes like voting rights, diversity on college campuses and reproductive justice, and has added program priority areas such as racial justice and low income advocacy, immigrants’ rights, and criminal justice and police misconduct. We’re busier than ever. 

So yes, the winter solstice may be upon us and the challenges we face are significant. And yes, we may on occasion differ as to focus and tactics. But to obsess about a setback here or a disagreement there is to lose sight of our inexorable march towards full equality and justice for all. Eight years ago, a majority of California voters approved a state constitutional amendment defining marriage as between one man and one woman. Today, while 28 percent of people in this country may still hold that definition of marriage, 60 percent do not. And the remaining 12 percent? Well, they’re evolving. That’s progress. Advances like that and the ones that surely lie ahead keep me warm even as the fight persists and the light outside my window dims early.