Human Rights Watch has done it again, releasing on Monday an invaluable—and deeply troubling—report documenting the effects of so-called religious liberty laws that permit discrimination against LGBTQ people, among others. The researchers and authors behind the publication have made the effects of these laws legible to those who live outside of the states in which they apply, using not just numbers but stories.
Consider the words of Pastor Brandiilyne Mangum-Dear, a lesbian living in Mississippi:
“We’re not being melodramatic. You’re being treated with disrespect, as a second-class citizen—not even a citizen, an outsider. And after a while, that begins to tear a person down, to hurt them emotionally and spiritually. Rejection is hard for everyone, and we get it over and over.”
Over the past six months, the report’s author, HRW LGBTQ rights researcher Ryan Thoreson, interviewed nearly 120 LGBTQ people across the country, including service providers and advocates in states with laws allowing businesses, healthcare providers and adoption and foster care agencies to discriminate based on their moral or religious beliefs.
The report couldn’t be more timely. These “religious liberty” laws are picking up steam, and a major LGBTQ rights case that hinges on the limits of religious freedom as an excuse for discrimination—the infamous cake artist case, involving a baker refusing to make “cake art” for a gay couple—is before the Supreme Court this term.
In recent years and mostly since 2015, when the US Supreme Court ruled in favor of marriage equality, numerous states have considered and at least eight US states have enacted new laws that permit people to infringe on the rights of LGBT individuals and their families to the extent they believe that discriminating against them is necessary to uphold their own religious or moral beliefs. In 2018, lawmakers in at least six other states will consider similar legislation.
These laws and bills vary in scope. As has been widely publicized, some would permit people to refuse to participate in same-sex wedding ceremonies or to provide goods and services related to such weddings. Others, less widely publicized, would permit child welfare agencies, physical and mental health providers, businesses that serve the public, and other actors to refuse service to LGBT people and other groups. Such legislation immediately endangers LGBT rights. By allowing people to elevate their prejudices above fairness and equality, it also threatens the broader principle that people should not be refused goods and services solely because of who they are.
Thoreson succeeds in demonstrating—showing, rather than telling—that the effects of these laws are not merely legal but psychological, cultural and economic.
Some laws enable and embolden businesses and service providers to refuse to serve LGBT people, compelling LGBT people to invest additional time, money, and energy to find willing providers; others simply give up on obtaining the goods or services they need. More insidiously, they give LGBT people reason to expect discrimination before it even occurs, and to take extra precautions or avoid scenarios where they might face hostility out of self-preservation.
Such laws also threaten the basic dignity of LGBT people, sending a clear message that their rights and well-being are not valued and are contingent on the goodwill of others. Our interviewees explained that, by enacting religious exemptions to blunt the advancement of LGBT equality, lawmakers sent a powerful signal that they were unequal or unvalued in their community.
Many people, including LGBTQ people, are unaware of just how legally vulnerable LGBTQ people are. Fact is, we have virtually no federal protections.
[F]ederally speaking, there are no “gay” rights yet. The only gay rights that the [Supreme] Court has upheld are not, in fact, “gay” but universal. The Court merely ensured that those [privacy-related] rights are now — finally — guaranteed to gay as well as straight Americans. No federal legislation explicitly protects LGBT rights writ large, although the Matthew Shepard Act labels crimes against LGBT people motivated by their sexual orientation or gender identity as hate crimes, and the Violence Against Women Act creates some situational protections. The Employment Non-Discrimination Act failed repeatedly, and the Equality Act stalled last year. Although the latter will be re-introduced ... its prospects are even dimmer under the Trump administration than they were against the Republican-dominated House of Representatives under Barack Obama.
State protections, and court rulings, are our best hope in this political climate; state laws are hardly comprehensive.
[N]either Congress nor most state legislatures have expressly prohibited discrimination against LGBT people. At the beginning of 2018, only 19 states and the District of Columbia had explicitly prohibited discrimination based on sexual orientation and gender identity in employment, housing, and public accommodations. In three other states, narrower protections exist. New Hampshire and Wisconsin prohibit discrimination in employment, housing, and publications based on sexual orientation, but do not prohibit discrimination based on gender identity. Utah prohibits discrimination on the basis of sexual orientation and gender identity in employment and housing, but not public accommodations.
When it comes to keeping up with the status of federal and state protections, some complacency seems to stem from the sense that intolerance is diminishing and discrimination is no longer a critical concern. That’s just not true.
In an amicus brief filed in late 2017, LGBT organization Lambda Legal noted it had received nearly a thousand reports of discrimination against LGBT people in public accommodations, including in reproductive services, child care, medical services, retail and service establishments, hotels, restaurants, recreational facilities, homeless shelters, transportation services, and funeral services, from 2008 to 2017.
Many non-LGBTQ people, and many privileged LGBTQ people, are unaware of just how pervasive, and serious, discrimination—and violence—is.
Anti-LGBT hate-violence homicides increased toward the end of the 2016 election cycle, and 2017 saw an 86 percent increase over even 2016's high totals. While there were 28 single-incident homicides in 2016, there were 52 such killings last year. Of the 52 people slain, two thirds were under the age of 35. Almost half of the homicides of gay, queer, or bi cisgender men qualified as "hook-up violence," involving online ads or app-driven hook-ups.
Granted, considerable progress was made under the Obama administration.
In 2014, the Department of Justice adopted the position that employment discrimination based on gender identity is a violation of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex. In 2016, the Department of Justice and Department of Education’s Office of Civil Rights jointly issued guidance that clarified that discrimination against transgender youth constituted sex discrimination and was impermissible under federal law. After a lengthy policy review process, the Department of Defense in 2016 also began allowing transgender people to serve openly in the US military.
While the US Congress has been slower to enact protections for LGBT people, there have been notable advances, including new protections for LGBT survivors of domestic violence in the reauthorization of the Violence Against Women Act (VAWA) in 2013.
Problem is, there’s nothing Obama did that Trump can’t undo. This administration is historically, proactively hostile to LGBTQ people.
In February 2017, the Trump Administration withdrew the guidance prohibiting discrimination against transgender youth in US schools, arguing that the issue should be left to the states to resolve. In July 2017, President Trump announced on Twitter that transgender people would no longer be able to serve in the US military; while a court order has allowed transgender recruits to enlist in 2018, the ban on military service remains under review by the courts. Under Attorney General Jeff Sessions, the Department of Justice has also reversed course on its interpretation of Title VII. In July 2017, it filed a brief adopting the stance that Title VII does not cover discrimination based on sexual orientation, and in October 2017, it issued a memorandum concluding that it also does not cover discrimination based on gender identity.
As HRW points out, Republican state lawmakers are taking Trump’s lead.
As LGBT rights come under renewed assault at the federal level, they have also come under attack in state legislatures. Hundreds of anti-LGBT bills were filed in the 2016 and 2017 state legislative sessions. While many of these bills sought to restrict recognition of transgender rights or bar transgender people from accessing bathrooms, locker rooms, and other facilities consistent with their gender identity, many others sought to exempt individuals who asserted religious or moral beliefs from complying with the rights and recognition that LGBT people had achieved under the law.
Thoreson goes on to survey specific state laws, examine the effects of discrimination on LGBTQ people for everything from access to critical services to the effects of refusals on propensity to seek services in the future, and recount interviewees’ stories.
Perhaps Thoreson’s most remarkable contribution is in marrying an incisive discussion of the state of LGBTQ rights in the United States, and the experiences of our LGBTQ population, with an examination of U.S. obligations per international agreements like the International Covenant on Civil and Political Rights and deviations from basic precepts of human rights. The report concludes with a series of clear, actionable recommendations.
If you know anyone who isn’t aware of this attack on LGBTQ rights under the banner of a (recently manufactured) sham version of religious liberty, who still thinks these laws are striking a reasonable balance between protecting religious exercise and respecting civil rights, or who doesn’t get just how outrageous an outlier the United States is on human rights, send them Thoreson’s report.