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The unclear future of LGBTQ rights at the Supreme Court

Is there reason to hope the justices will surprise us?

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marriage equality, Supreme Court, gay news, Washington Blade
marriage equality, Supreme Court, gay news, Washington Blade

(Washington Blade file photo by Michael Key)

The Supreme Court’s new term began Oct. 1. The justices have not yet accepted any cases squarely addressing LGBTQ rights questions; however, numerous appeals raising key issues for our community are waiting in the wings. As Brett Kavanaugh settles into his new position on the Court after a fractious confirmation process, many in the LGBTQ community are wondering which, if any, pending cases the Court will choose to hear and, if it does take on any such cases, how it will rule.

There’s no question that there’s a lot at stake.

There are four petitions now pending before the Court asking it to decide whether federal sex discrimination laws encompass discrimination based on sexual orientation or gender identity. If the Court agrees to hear any of these, its ruling could determine whether LGBTQ people are protected under current federal laws prohibiting discrimination in employment, education, housing and credit.

Two cases challenging President Trump’s attempt to bar transgender people from the military are at the federal courts of appeals, one step from the Supreme Court. One of them—Lambda Legal’s and OutServe-SLDN’s Karnoski v. Trump case—is being argued to the Ninth Circuit on Oct. 10.

Several cases already on appeal could again put before the Court as to whether there are circumstances in which businesses have a constitutional right to discriminate. In one, a Hawaii bed & breakfast owner is expected to soon petition the Court to review a decision that rejected her claim of a right to refuse a lesbian couple lodging.   

Three suits questioning whether schools can bar transgender students from restrooms that match their gender identity also are now on appeal. So, too, is a case asking whether the city of Philadelphia acted properly in terminating its contracts with two religiously affiliated foster care agencies that refused to abide by the city’s sexual orientation nondiscrimination policies.

Accordingly, it could be a big year for LGBTQ Americans in the highest court of the land—but it might not be. The Supreme Court doesn’t have to consider any of these cases. Out of approximately 7,000 requests that the Court review lower court decisions each year, the Court agrees to hear about only 80, or slightly more than one percent of them.

Brett Kavanaugh’s recent confirmation brings even more uncertainty to the Supreme Court this year. Lacking a record of LGBTQ rulings, we still do not know for sure how Kavanaugh will rule on sexual orientation or gender identity questions. He has a record of ruling conservatively on many issues. Nonetheless, during his confirmation hearing, he repeatedly quoted from an opinion authored by his mentor, Justice Anthony Kennedy, that, “The days of discriminating against gay and lesbian Americans or treating gay and lesbian Americans as inferior in dignity and worth are over.”

Even if the new Justice Kavanaugh does end up siding with members of the Court who have dissented from the Court’s prior landmark victories for LGBTQ rights in any cases the Court agrees to hear, it may be possible to swing Chief Justice Roberts to join with the four justices who have ruled in favor of LGBTQ people in the past. Roberts previously voted with those justices in decisions rejecting a challenge to the Affordable Care Act, allowing cities to sue banks that targeted people of color for high-risk loans, and restricting the police’s ability to obtain suspects’ cellphone location data without a warrant. And notwithstanding Roberts’ criticism of the Court’s marriage equality decision, he subsequently voted to summarily reverse the Arkansas courts’ judgment that the state did not have to list both same-sex spouses’ names on their children’s birth certificates.

The Chief Justice’s votes sometimes reflect institutionalist concerns with preserving the Court’s legitimacy and stature. That impulse may cause him to decline to overturn certain prior precedents. It also may lead him to vote against hearing cases that may be especially divisive or to find ways to avoid particularly controversial outcomes that would subject the Court to criticism. That’s especially likely to weigh on his mind because of how partisan Justice Kavanaugh’s confirmation turned out to be.

There also are important cases already on the Court’s docket that go beyond LGBTQ concerns. For example, the Court has agreed to hear Gamble v. United States. That appeal asks the Court to overturn its precedent that the Constitution’s bar on double jeopardy—which prohibits prosecuting someone twice for the same offense—does not bar separate prosecutions for violation of state and of federal law based on the same conduct. The issue is important because, if that precedent were reversed, a presidential pardon of those indicted for federal crimes could preclude states from prosecuting them as well.

Time will tell. In the meantime, it’s imperative that we not give up hope and that we not put all our apples in the Supreme Court basket.

 

Jon Davidson is chief counsel for Freedom for All Americans.

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Trump administration is set to abandon LGBTQ Africans

Ugandan officials have applauded incoming U.S. president

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President-elect Donald Trump at the 2024 Republican National Convention in Milwaukee. (Washington Blade photo by Michael Key)

As the results of the U.S. presidential election came in on Nov. 5, showing that former President Donald Trump had won a second term, homophobic political leaders celebrated 7,000 miles away, in Uganda’s capital of Kampala.  

“The sanctions are gone,” Anita Among, the country’s parliamentary speaker, told members of parliament, referring to the fact that she had been barred from entering the U.S. by the Biden administration on June 16, 2023, after Uganda passed what was known as the “Kill The Gays” act on May 28, 2023.  

The act, officially called the Anti-Homosexuality Act, was signed into law by President Yoweri Museveni on May 28, 2023. The new Ugandan law imposes life imprisonment for same-sex acts, up to 20 years in prison for “recruitment, promotion, and funding” of same-sex “activities,” and anyone convicted of “attempted aggravated homosexuality” faces the death penalty.    

On May 8, Among proclaimed that the enactment of the law demonstrated that “the Western world will not come and rule Uganda.” And on May 9 Among tweeted: “The president … has assented to the Anti-Homosexuality Act. As the parliament of Uganda, we have answered the cries of our people. We have legislated to protect the sanctity of [the] family. We have stood strong to defend our culture and [the] aspirations of our people,” she said, thanking Museveni for his “steadfast action in the interest of Uganda.”  

Among said in his tweet that Ugandan MPs had withstood pressure from “bullies and doomsday conspiracy theorists” and called for the country’s courts to begin enforcing the new law. The passage of the bill and that fact that Among and other African homophobes celebrated Trump’s re-election tells us what the next four years are going to be like for Africa’s LGBTQ+ people.

African political leaders and religious zealots (both Christian and Muslim) have used homophobia as a tool for political and religious power for many years. They say that same-sex relations and gay rights are imports from the West. They have used homophobia to portray themselves as nationalists and defenders of African and religious values. They have used homophobia to frighten and divide people to mobilize popular support and votes.

But it is homophobia, as others have said before me, that is the real import from the West. And the whole panoply of weapons employed by the homophobes in Uganda and elsewhere in Africa are themselves colonial imports, ranging from sodomy laws that were a legacy of colonial rule to the parliaments that pass these laws.

And homophobia is growing stronger in Africa.  

In mid-March 2023, Museveni was quoted by the Monitor newspaper website as saying that the “Western countries should stop wasting the time of humanity by imposing their social practices on us.” And Kenyan President William Ruto declared the same month that “our culture and religion does not allow same-sex marriages.”  

On April 2, 2023, Museveni called upon African leaders to reject “the promotion of homosexuality” and said homosexuality was “a big threat and danger to the procreation of human race.” According to Museveni, “Africa should provide the lead to save the world from this degeneration and decadence, which is really very dangerous for humanity. If people of opposite sex stop appreciating one another then how will the human race be propagated.”

On Dec. 29, 2023, Burundian President Evariste Ndayishimiye, speaking at an event in the country’s eastern Cankuzo province, where he answered questions from journalists and members of the public, defiantly proclaimed that powerful nations “should keep” their aid if it comes with an obligation to give rights to LGBTQ+ persons.  “I think,” Ndayishimiye declared, “that if we find these people in Burundi they should be taken to stadiums and stoned, and doing so would not be a crime.”

In Ghana, legislators have been debating the Proper Human Sexual Rights and Ghanaian Family Values Bill since it was introduced in August 2021. Same-sex relations are already punished by up to three years in jail under current law in Ghana, but this new bill will impose punishment for even identifying as LGBTQ+. It will also criminalize being transgender and includes jail sentences of up to 10 years for advocating for LGBTQ+ rights. It also imposes a legal obligation on all persons and entities to report any people perceived to be LGBTQ+ or any homosexual activity to the police or community leaders.  

The bill was passed by the Ghanaian parliament on Feb. 28. President Nana Addo Dankwa Akufo-Addo has not yet announced whether he will sign it, saying he will await the results of two Supreme Court cases challenging its constitutionality. And on July 17, the Supreme Court issued a ruling that delayed judgement on the bill until all related legal issues have been resolved.

John Dramani Mahama, the former president of Ghana and a leading presidential candidate in the country’s upcoming elections, standing for the National Democratic Congress, said during a meeting with members of the clergy in eastern Ghana that gay marriage and being transgender were against his Christian beliefs. “The faith I have will not allow me to accept a man marrying a man, and a woman marrying a woman,” Mahama said while responding to a church leader’s call against LBGTQ+ people. “I don’t believe that anyone can get up and say I feel like a man although I was born a woman and so I will change and become a man,” he added. Mahama did not say whether or not he would sign the anti-LGBTQI+ bill should he win the presidential election in December 2024.

In Kenya, opposition parliamentarian Peter Kaluma introduced the Family Protection Bill in February 2023. The bill mirrors many aspects of the Ugandan law and would punish gay sex with prison for up to ten years or even death in some cases. The new bill is “cut from the same cloth” as the Ugandan legislation, said Kevin Muiruri, a Nairobi-based lawyer. The bill is being vetted by a parliamentary committee, which is expected to refer it to the full chamber for a vote. And President William Ruto, an evangelical Christian, has already endorsed the legal repression of LGBTQI+ rights.  

“We cannot travel down the road of women marrying their fellow women and men marrying their fellow men,” he declared in March 2023.

More recently, the National Transitional Council of Mali, which has effectively served as the country’s legislature since the military seized power in 2020, voted on Oct. 31 to approve a penal code that criminalizes same-sex relations by 132 votes to one. The media was not able to obtain a copy of the new penal code and the penalties imposed for same-sex acts are unknown. But, according to the Malian Justice and Human Rights Minister Mamadou Kasogue, “anyone who indulges in this practice, or promotes or condones it, will be prosecuted.” The bill still requires the signature of the country’s military junta, which is led by General of the Army Assimi Goita.

Trump’s foreign policy advisors have already drawn up an explicitly anti-LGBTQ+ rights foreign policy agenda for his second term in office. The Project 2025 report (prepared under the leadership of the Heritage Foundation, so the new administration can start implementing this agenda as soon as it comes into office in January 2025) states that the U.S. should “stop promoting policies birthed in the American culture wars” and stop pressing African governments to respect the rule of law, human rights/LGBT+ rights, political and civil rights, democracy, and women’s rights, especially abortion rights.

“African nations are particularly (and reasonably) non-receptive to the US social policies such as abortion and pro-LGBT initiatives being imposed on them,” by the U.S., the report declares. Therefore, “the United States should focus on core security, economic, and human rights engagement with African partners and reject the promotion of divisive policies that hurt the deepening of shared goals between the U.S. and its African partners.”

The principal responsibility for implementing this policy reversal on LGBTQ+ rights in Africa will fall on Trump’s nominee for Secretary of State, Marco Rubio, and whoever Trump chooses as his Assistant Secretary of State for African Affairs. It will be up to them to direct the activities and programs that Trump wants in order to endorse, encourage, promote, and fund homophobic groups and organizations in Africa, and there is no doubt that they will implement this agenda energetically and zealously.

African homophobes say they are standing up to the West and saving the continent and the world from homosexuality, but they are just serving their own selfish interests and the interests of right-wing Christian nationalists in the West. Gay communities in Africa and the West share a common interest in fighting back, and civil society groups and all genuine supporters of human rights are increasingly active. As Eric Gilari, an LGBTQ+ activist in Kenya said, “one day we shall defeat these assaults on our human rights and triumph in equality and inclusion for LGBTQ persons within African countries. This ideal must be our guiding light in this moment of darkness and tears.”

Daniel Volman is the director of the African Security Research Project in Washington, D.C. and a specialist on U.S. national security policy toward Africa and African security issues.

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Christian Nationalism: a ‘prop’ to achieving power?

The drive toward an authoritarian theocracy

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(Photo by ehrlif/Bigstock)

“Ladies and Gentlemen, please stand for the Pledge of Allegiance.” I clearly remember this call from a pulpit decades ago because it seemed so odd to hear such a thing in church. Rev. D. James Kennedy, a ballroom dancing instructor in the 1950s who became senior pastor of Coral Ridge Ministries in Fort Lauderdale, Fla., grandly announced: “The Pledge of Allegiance to the Bible!”  

Down from the rafters, hanging on wires above the pulpit descended a huge Bible seemingly ablaze. Accompanied by old time miracle-riffs on an organ, Kennedy’s congregants stood with hand over heart to recite a chilling pledge of allegiance to The Word: “I pledge allegiance to the Bible….”.  I went to Coral Ridge to see for myself how Kennedy preached about “the infamous men of Sodom who have moved into our churches.” I was one of those men.  In the 1980s, when visiting my hometown Dallas, I attended what is still considered the largest LGBTQ church in the world, the Cathedral of Hope. I had helped this church raise money for a chapel to be designed by gay architect Philip Johnson (1906-2005). I had not experienced Christian Nationalists warning about the “men of Sodom moving into our churches” until I saw that giant hanging Bible in Fort Lauderdale.

A pledge of allegiance to a flying Bible seems quaint compared to today’s Christian Nationalist movement, now a pillar of the new Trump presidency, which evangelical leaders liken to a “Red Sea moment in America.” One leader recently compared Donald Trump to Moses parting the Red Sea allowing his people safe passage into a new Promised Land. Amanda Tyler, the lead organizer of  the Christians Against Christian Nationalism Campaign of the Baptist Joint Committee for Religious Liberty in Washington, D.C., warns in her new book the U.S. is now at “a high tide of Christian Nationalism.”  

Tyler, a devout Baptist from Austin, is direct about the threat Christian Nationalism poses to religious freedom in the U.S. “Christian Nationalism is a political ideology that seeks to fuse American and religious identities….into one set of political beliefs…..It is pernicious and insidious,”  she explains in her book, “How to End Christian Nationalism.” Besides being written by a Christian from Texas who asks hard questions, what makes this “how to” book such a good read is Tyler’s rejection of the despondency of the moment. She has no time for that. “We all have a role to play in ending Christian Nationalism,” she explains, by organizing in our communities, churches and with our legislative allies nationwide. This, she emphasizes, includes all who are impacted by Christian nationalism in unequal ways including “people of color, people who are not Christian, LGBTQIA+ people and people who belong to more than one of those identity groups.”

Tyler lays it out: Christian Nationalism exists in a multiverse beyond the old-school haters we once knew and loved. How can one forget “God Hates Fags” Rev. Fred Phelps of the Westboro Baptist Church? When my friend the conservative Republican Sen. Alan Simpson of Wyoming said he favored same-sex marriage, Phelps called him a “Senile Old Fag Lover” (2003). Today, Tyler writes, Christian Nationalists have smoothed those rough edges “using Christianity as a prop to achieving power” in their drive toward an authoritarian theocracy. She explains with cool precision how they evolved into a “well-funded and highly organized political” movement that “points not to Jesus of Nazareth but to the nation….as the object of allegiance.”

A Texan to her Baptist core, Tyler draws from her unique experience working at “ground zero of the culture wars,” the Texas Legislature. Following a proposal to post the Ten Commandments in every classroom in the Texas public school system (which passed in Louisiana) came legislation to replace licensed counselors in the public schools with religious chaplains.  Using her “how to” logic she tells the story of Texas State Rep. James Talarico (D-Austin), a committed Christian and seminarian, who successfully opposed the school chaplain bill. Talarico told Tyler that his years as a public school teacher and his Christian faith meant he couldn’t stay silent “in the face of the Christian Nationalist agenda.” Tyler asks, “What would happen if a broad-based coalition of people of faith joined state Rep. James Talarico in saying we don’t want religious instruction happening in our public schools?” Tyler puts this to readers as a basis for action to be carried from the lawmaking trenches of Austin to Washington itself.  Tyler’s how-to book rises beyond anger, despondency and “hopium” into concrete ideas for organizing and action among believers and non-believers alike. 

Maybe Amanda Tyler’s campaign will take root in states like Oklahoma where the Superintendent of Schools issued a request for vendors to supply 55,000 Bibles (for $59.99 each) that sounded a lot like Donald Trump’s “God Bless the USA” Bible printed in China for $3. The Bibles were to be used for classroom instruction in history, supporters claimed. After a storm of derision, the superintendent’s request was revoked without explanation. 

Charles Francis is president of the Mattachine Society of Washington, D.C., and author of “Archive Activism: Memoir of a ‘Uniquely Nasty’ Journey.”

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Meth is still ravaging the LGBTQ community, we must address the crisis

Queer people at least twice as likely to use drug than straight counterparts

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(Photo by mikeledray/Bigstock)

As the opioid epidemic continues to dominate national news, another urgent crisis is wreaking havoc in communities throughout the United States. Methamphetamine addiction is on the rise, and it’s hitting communities hard, especially the LGBTQ+ community.

November 30 is National Methamphetamine Awareness Day, a poignant time to raise the alarm about the devastating impact of this drug and the reasons behind its growing prevalence within the LGBTQ+ community.

Based on 2020 and 2021 data compiled by the Substance Abuse and Mental Health Services Administration (SAMHSA), sexual minorities (gay, lesbian, or bisexual) adults were at least twice as likely to use stimulants in the past year as their heterosexual counterparts. Gay men were over four times more likely than straight men to have used meth in the past year.

As a mental health counselor and coordinator of the LGBTQ+ program at River Oaks Treatment Center in South Florida, I know firsthand how devastating meth addiction in this marginalized demographic can be. The National Institute on Drug Abuse notes that sexual minorities tend to enter treatment with more severe substance use disorders than those who identify as heterosexual, and I often find this to be the case in our patient population as well. Our LGBTQ+ patients face numerous challenges that may lead to substance use as a means of coping, such as discrimination, stigma, and trauma. 

Our LGBTQ+ patients talk often about feeling their needs and experiences are invalidated by those around them. Constantly feeling unsafe or unable to live as one’s true self at a young age can have a lasting impact on a person’s mental health and is a risk factor for problematic substance use as a tool to manage shame and emotional pain. 

Another complicating factor is that for many queer people, there are few safe spaces, and one of the first ones they encounter is gay bars, where drinking and/or substance use is the norm. Meth is popular in gay nightclubs and parties because it causes euphoria, increases libido, and raises energy, enabling people to party for many hours before crashing. But while use of the drug often begins voluntarily, it quickly becomes compulsive and very difficult to quit. 

The brain quickly learns to link certain people, places, and activities with drug use, triggering uncontrollable cravings. Meth use is ubiquitous in the social circles or “chosen families” of some sexual and gender minorities, making avoiding the drug uniquely difficult. Quitting meth may require them cutting ties and breaking contact with people they’ve come to love and care about deeply.

Our LGBTQ+ patients sometimes express fear they won’t be able to experience sex and other activities in the same way once they quit using meth. Indeed, it can take some time for someone’s brain and body to return to normalcy after quitting. Methamphetamine has a profound effect on dopamine activity, a brain chemical associated with motivation and the urge to repeat pleasurable activities. Over time, this effect can limit someone’s ability to experience pleasure from healthy activities. 

The effects of chronic meth use and withdrawal also complicate the early treatment and recovery process. Intense paranoia — a common long-term effect of meth use — makes it very difficult to trust people, a crucial facet of treatment that is necessary for building relationships with counselors, mentors, and peers. 

Distrust of clinicians and treatment programs is often heightened among LGBTQ+ patients, who often face even more stigma when entering treatment programs and have a distrust of institutions like law enforcement, which they may associate with addiction treatment. To further this point, some of our patients have had bad experiences in the past and worry about treatment being safe for them. Many of our LGBTQ+ patients also have complicated relationships with their families who might otherwise form the foundation of their support network in recovery.

These obstacles highlight the importance of specialized LGBTQ+ addiction treatment programs, in which patients are surrounded by peers who can relate to their experiences. It’s crucial that treatment centers don’t just claim to be accepting of sexual and gender minorities but do the necessary work to make these patients feel safe and welcome, protecting them from harassment and mistreatment from both staff and other patients.

These programs also must work to address common issues that co-occur with addiction among LGBTQ+ patients, such as trauma, emotional turmoil, and interpersonal conflicts. For example, utilizing effective, evidence-based therapeutic approaches, such as dialectical behavior therapy (DBT). 

DBT is among the techniques we use in our programs. Originally developed to treat borderline personality disorder (BPD), DBT has been expanded to treat many mental health disorders that involve emotional dysregulation, which is something we often see among our patients in early recovery from meth addiction. 

The approach functions to enhance one’s capabilities to regulate emotions, practice mindfulness, improve interpersonal effectiveness, and strengthen distress tolerance before practicing these skills and encouraging patients to apply them in their daily lives. DBT also works to improve a patient’s motivation to track and reduce their dysfunctional behaviors.

On a nationwide level, it will take significant work to disentangle the grip of methamphetamine on the LGBTQ+ community. With the pervasiveness of illicitly manufactured fentanyl — a synthetic opioid that causes overdose in very small doses — in the drug supply, the need for action has never been more immediate.

A large part of this work involves changing the perception of society toward methamphetamine addiction and especially queer people who struggle with this disease. Rather than viewing it as a moral failure, we need to see it for what it truly is: A public health crisis. Much like at the start of the HIV/AIDS epidemic, the disease of addiction is heavily stigmatized and too often, we place blame on those who are impacted rather than taking effective action to curb the crisis. 

In addition to culturally competent addiction treatment, we desperately need more sober, safe spaces for the LGBTQ+ community. Upon exiting treatment, many find themselves on uncertain ground and in desperate need of sober friendships and networks that support their recovery. Substance-free community centers provide a useful model that can be implemented on a larger scale.

While these are trying times, I sincerely believe we can make a profound difference by confronting this issue with compassion and understanding. It will take a multi-faceted approach that involves the cooperation of treatment centers, queer people in recovery, allies, and the broader LGBTQ+ community.

Karah Moody, LMHC, CPP, MCAP, is a counselor and LGBTQ2+ Coordinator at River Oaks Treatment Center, an American Addiction Centers facility.

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