Gay Marriage and LGBT Rights Progress in U.S.A.
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For the end of the year, contributing editor Rob Salerno looks back on the developments in the global struggle for LGBT rights in a six-part review. Each day, we’ll be posting an article looking back at the successes and struggles in a different part of the world. In today’s article, we look at North America.
This article originally appeared on Rob Salerno’s Global LGBT News Substack, which is free to read and subscribe to.
Canada
Canada has already achieved most of the major 2SLGBTQI legal milestones that rights groups have been fighting for across the world, but that doesn’t mean that there wasn’t news to report here in 2023.
The most notable issue that’s arisen in Canada is a so-called “parents’ rights” movement, which is centered on the idea that school children cannot change the name or pronouns they use in schools, mirroring similar movements afoot south of the border. While this sounds reasonable at first blush, I’ve written about why it’s nonsense.
This started with a surprise policy announcement by the deeply unpopular conservative premier of New Brunswick, which led to the resignations of two cabinet ministers. The policy was then mirrored by the conservative governments of Ontario and Saskatchewan, the latter of which actually passed a law that insulated the policy from challenges under the Charter of Rights. Manitoba conservatives attempted to turn it into an election issue and were resoundingly defeated. New Brunswick and Saskatchewan go to the polls in 2024 and may be able to test these policies on the hustings too.
Meanwhile, the federal Conservative Party started taking a harder turn against LGBT people in 2023, under new leader Pierre Poilievre, who’s attempted to make “parents rights” a central issue of his campaign, despite the fact that the federal government has absolutely no jurisdiction over education. The next scheduled federal election isn’t until 2025, but it’s possible the minority government falls before then.
And the governing federal Liberals have been somewhat feckless here. They’ve made basically zero response to an increasingly emboldened set of conservative provincial premiers attacking Charter rights, especially in Quebec, where the governing CAQ seems to just be violating the Constitution for sport at this point.
But it has to be noted that the federal government has made scant progress on the few promises it has made to 2SLGBTQI Canadians in 2023. A promised bill to ban medically unnecessary surgeries on Intersex children has not as yet materialized, and the federal government has also stood by while a deeply troubling internet censorship bill proposed by a conservative Senator is just a vote away from passing into law.
United States
LGBT issues continued to be deeply schizophrenic in the USA in 2023. Republicans in red states seemed to be competing to introduce and pass the most cruel and mean-spirited bills targeting queer Americans, but Democrats governing blue states went to work passing progressive legislation to improve queer Americans lives.
The biggest story in LGBT issues centered around trans rights in America, especially in red states. Republicans passed sweeping bills in red states that banned gender confirming health care for minors – with a clear plan to target all trans health care eventually. They passed bans on drag performance, many of which have been blocked by the courts for being unconstitutional. They passed laws banning legal gender change. They passed laws banning trans people from sex-segregated bathrooms, change rooms, and sports teams. They banned discussion of queer topics in classrooms or libraries – and again, these are subject to constitutional challenges across the country. They even censured a trans state representative in Montana over the most asinine reason – a tactic state Republicans have started using with abandon against minority Democratic legislators in a couple of states. Many of these bills were passed despite strong local objection, and over the vetoes of both Democratic and Republican governors. The sheer volume of anti-trans legislation has been hard to keep up with, to be honest. I recommend you follow @ErinInTheMorn on Twitter and Substack for regular updates on these laws across the country.
And this is all mirroring the disturbing trends coming from the courts. The Supreme Court punched an enormous hole through civil rights law with its 303 Creative decision, which essentially legalized discrimination in provision of goods and services in any business that calls itself a creative or expressive business. On the flip side, Biden managed to appoint dozens of judges to the federal bench, but this progress may stall if Democrats lose the Senate next year.
The flip side is what’s been going on in Democratic-governed states, where legislators and governors are pushing for greater and greater states rights. In many states, for example, they passed “shield laws” protecting queer people who migrate from red states to access trans health services or abortion services.
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This trend was particularly evident in states where Democrats won trifectas (both state houses and the governor’s office) in 2022: Minnesota, Michigan, Massachusetts, and Maryland. In these states, we saw some key priorities advanced to enshrine queer rights. Minnesota and Maryland fully repealed their defunct sodomy, fornication, and adultery laws, while bills to do the same in Michigan and Massachusetts have been introduced and stand a good chance of passing next year (albeit that the Michigan bill appears to be flawed, in that it leaves a ban on oral sex in place). A bill to repeal Texas‘ sodomy law was introduced and looked promising for a minute when it was sponsored by a majority of the Texas House, but it was never brought to a vote. Twelve states in total still have sodomy laws on their books; the others are: Florida, Georgia, Kansas, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, and South Carolina.
Minnesota and Michigan also banned conversion therapy, while the newly elected Democratic governor of Arizona banned the use of state funds for conversion therapy. The Republican-controlled legislature of Wisconsin used a procedural move to block the Democratic administration’s rule change that banned conversion therapy in the state. Meanwhile, Washington state’s conversion therapy ban withstood a court challenge, and the Supreme Court declined to hear an appeal, which bizarrely leaves a circuit split on the issue (the 11th Circuit Court has ruled conversion therapy bans to be unconstitutional, blocking them in Florida, Alabama, and Georgia).
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Bans to the “gay/trans panic defense” were passed in Delaware and, surprisingly, New Hampshire, which is governed by Republicans. It’s about the only good news that came from a Republican-controlled state this year. A gay panic bill is also under consideration in Michigan. A federal bill to ban the gay/trans panic defense was reintroduced by congressional Democrats, but stands exactly zero chance of passing.
Michigan also passed its first hate crime law that is inclusive of LGBT people – although this law is limited specifically to “institutional desecration.” A broader hate crime law is pending passage in the legislature. And in US Territories, the Commonwealth of the Northern Mariana Islands enacted a hate crime law that includes protections for sexual orientation and gender identity.
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Minnesota and Michigan updated their civil rights laws to fully include sexual orientation and gender identity as prohibited grounds of discrimination and to remove loopholes that allowed discrimination. Those states also fully repealed their abortion laws. Pennsylvania’s newly Democratic-controlled state house for the first time passed an LGBT non-discrimination bill, although it stalled in the Republican-controlled Senate. Dems are trying to win control of the Senate this year, but it may be a tough climb.
And that’s a good segue to the big story of 2024: Elections.
Most directly, LGBT rights will be on the ballot in at least two states. California will have a referendum on repealing Prop 8 – the defunct same-sex marriage ban – from its constitution, and New York will have a question on enshrining abortion and equality rights in the state constitution. Marriage ban repeals have also been proposed in Hawaii, Oregon, and Michigan. Hawaii’s is probably the most likely to end up on the ballot given the state’s lopsided Democratic control. Oregon Republicans blocked Democrats from passing a bill to put it on the ballot during this year’s session, and they may do so again in 2024. And it is extremely unlikely that Michigan Republicans will give Democrats the supermajority support in the state legislature required to put it on the ballot. Virginia Democrats, who recaptured the state legislature this year, are likely to try to restart the process for repealing its marriage ban with an eye on the 2026 elections at the earliest.
Minnesota Democrats are considering putting an abortion and equal rights question on their ballot in 2024 as well.
Of course, wherever Democrats win, they create a bulwark against further encroachment against LGBT rights by Republicans, and in that respect, look for Democrats to try to win control of state legislatures in Arizona, New Hampshire, Pennsylvania, and Alaska, while trying to blunt Republican dominance or erase veto-proof majorities in Wisconsin, Kentucky, Kansas, North Carolina, Texas, and Florida, which may be bolstered in some cases by recent decisions undoing some of the most extreme Republican gerrymandering.
But federally, we’re headed for a very tight presidential election, likely re-running the 2020 Biden vs Trump matchup. Obviously, another Trump presidency would be another disaster. Democrats are also facing a slew of very tough races in the Senate, which they are likely to lose control of. However, they may be able to regain the House, thanks to recent redistricting decisions, which would help provide at least some bulwark against Republican excesses.
Other developments of note in 2023 include the US FDA finally ending the ban on blood donations from men who have sex with men, and the Pentagon beginning a review of the records of all people who were dishonorably discharged from the military for being gay.
Among Native American Tribal Jurisdictions, the Choctaw Nation legalizing same-sex marriage within its jurisdiction. A bill to legalize same-sex marriage in the Navajo Nation, the largest of the Native American Tribal jurisdictions, has been introduced but is currently being held up by some councilmembers who oppose it or want to hold a referendum on it. We’ll see how that develops in the new year.
Mexico
On paper, Mexico has advanced a lot of progressive legislation for queer people, especially over the last several years. However, in 2023, some of that momentum seems to have stalled.
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A bill to ban conversion therapy has stalled in the federal Congress. It awaits a final vote that some legislators hope will come in February when Congress returns from break. Meanwhile, Queretaro, Sinaloa, Quintana Roo, and Morelos states passed local conversion therapy bans, bringing the total to 18/32 states that have such bans.
A rash of violence against LGBT people, especially trans women, has led to growing demands for hate crime laws. Last month, a federal legislator proposed the first nationwide hate crime law to protect queer people, but it awaits debate. Bills have also been proposed in several states, but none have passed yet. A hate crime bill was also introduced in Durango, and one has stalled in Morelos state. Currently, 22 of 32 states have an LGBT-inclusive hate crime law.
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Durango became the latest state to update its laws to allow trans people to change their legal gender, bringing the total to 21. The federal government began allowing people to use an “X” gender marker on passports, as did the National Electoral Institute for voting cards. A bill to recognize non-binary gender was introduced in Mexico City.
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Sinaloa state passed a law banning discrimination based on sexual orientation and gender identity. Federal law already prohibits discrimination based on sexual orientation and gender. Every state except for the State of Mexico has passed a law banning discrimination based on sexual orientation and either gender identity or gender.
I reported for Xtra this year on the persistence of laws that bar people living with HIV from being able to marry, despite a Supreme Court ruling that these laws are unconstitutional. They persist in nine states, although Puebla became the latest state to repeal its HIV marriage ban this year after a couple whose marriage license was denied made national headlines.
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Although same-sex couples can marry in all Mexican states as of 2022, some had not codified this into their laws, particularly around adoption. None of these states did so this year.
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