Far from over: Anti-LGBT laws and the next phase of queer activism

As of this afternoon, Indiana’s Republican governor Mike Pence has just signed a “religious freedom” bill that would empower private businesses to discriminate against LGBT people if their “conscience” should compel them. The targets of this legislation are clear in spite of the sometimes cloudy language used by politicians to describe it.

One man who was far from circumspect was Eric Miller, a right wing lobbyist who is one of the bill’s fathers. According to CNN: “On his website, Miller highlighted examples of the law’s effect: Christian bakers, florists and photographers won’t have to participate in ‘homosexual marriage,’ he wrote, while Christian businesses won’t be punished for ‘refusing to allow a man to use the women’s restroom.'” Given the latter slur it’s quite clear who is being targeted here. I myself now feel nervous about attending a conference in Indiana in July.

In a glimmer of hope that conference, the titanic gaming convention GenCon, publicly threatened to leave its long time Indianapolis home if the bill were signed into law. “Gen Con proudly welcomes a diverse attendee base, made up of different ethnicities, cultures, beliefs, sexual orientations, gender identities, abilities, and socio-economic backgrounds,” Adrian Swartout, owner and CEO of Gen Con, wrote in an open letter this past week. “Legislation that could allow for refusal of service or discrimination against our attendees will have a direct negative impact on the state’s economy, and will factor into our decision-making on hosting the convention in the state of Indiana in future years.” It’s a breath of fresh air for which GenCon should be praised, but the future of LGBT Hoosiers remains woefully uncertain.

Meanwhile, in another bright spot trans rights advocates are celebrating the news that a terrifying “bathroom bill” has been — in the punny phrasing of the National Center for Transgender Equality — “flushed” by the Kentucky legislature. The bill, advanced by State Senator C.B. Embry, is part of a terrifying new wave of anti-trans legislative efforts across the country and his was particularly insidious: he proposed a 2,500 dollar bounty for any trans person caught using what he deemed to be the ‘wrong’ washroom. As ever, it is trans women who are the prime targets: right wing adverts purporting to keep “men in dresses” from peeing next to one’s “wives and daughters” are as commonplace as they are tedious.

We are confronted with a backlash against LGBT rights in general. The outbreak of so-called “religious freedom” legislation — like Indiana’s new law and a similar law in Arkansas that overrides local anti-discrimination legislation — is part of a trend toward crowdsourcing anti-gay/anti-trans bigotry in the United States.

What is alarming about these laws is that they empower the worst instincts and prejudices of individuals, compel them to act as surrogates of the state, and ennoble these bigoted tendencies with the sanctity of an inalienable right. Rather than relying on the top-down legislative proposals of a decade past (remember the abortive Constitutional amendment proposal to ban same-sex marriage?), the far right is now coming after LGBT people from the other end, legalizing and empowering private discriminatory practice as a means of rolling back the tide of progress we’ve seen since the turn of the century.

This is the end result of our troublingly narrow vision of rights and responsibilities in the United States. If you believe, as many do, that the only force capable of infringing on your rights is the government, then you render informal discrimination invisible as a violation of rights. To locate the oppressor of rights in the state is to suggest a world where perfect freedom exists outside of the law, and implicitly suggest that no harm inflicted by one private individual on another is a true violation of rights. The freedom to discriminate is more vital to protect, in this worldview, than freedom from discrimination, because realizing the latter requires the collective force of the state.

This is the challenge that faces us over the next decade, as the parade of legal victories for same sex marriage becomes the settled law of the land, our right as LGBT people to be free from discrimination is increasingly being eroded. In denying us the protection of the state, these new laws seek to throw us to the wolves of crowdsourced prejudice, obviating the full exercise of our supposedly newfound freedoms.

This map, produced by the Human Rights Campaign, gives some sense of the scale of the problem:

So, where to now for LGBT politics? First and foremost, this is a profound wake up call about the naivete that has long surrounded the debate on same-sex marriage. Important as that right is — and much as I should like to marry another woman someday — that right requires far more meaningful socio-economic scaffolding than most American LGBT folks currently have access to. The right to work without being discriminated against, for instance, or economic security and access to healthcare, social welfare, and other services, all should be seen as meaningful pre-requisites to even beginning to have the kind of life where long-term partnership is possible and not riven by quests for mere survival.

We are by no means in the sunset years of the fight for LGBT rights and justice, much as I might wish we were. The terrain mapped by the recent spate of backlash bills provides us with some direction: we need to redouble efforts to pass anti-discrimination legislation and begin the process of centralizing the struggle of trans people in this debate.

The reality that I and many others feared is coming to pass. As same-sex marriage increasingly looks like a fait accompli and a lost cause to many on the far right, they’ll move to the softer target that had long been left behind in the all-consuming push towards the single-issue victory of gay marriage: trans people and poorer LGBT folks more widely. When we can’t so much as get a minimum wage job at a national retailer, that speaks volumes. When trans children are scapegoated by adult politicians and far right activists, that is beyond unconscionable and should’ve sent up wailing alarms long ago.

Those are the people that must, now, be the face of LGBT activism in the coming years. In the words of trans civil rights attorney Emily Prince: “Given that the issue of marriage equality is likely to be resolved this year, activists need to continue the hard work of fighting the attitudes that allow these bills to proliferate.” Our work is far from finished.